# Opinion

> Texas Court of Appeals, 3rd District (Austin) · October 31, 2013

URL: https://www.frixlaw.com/law-library/cases/2956371

## Case

- **Full name:** Texas Department of Public Safety Steve McGraw, in His Official Capacity as Director of the Texas Department of Public Safety Allan B. Polunsky, in His Official Capacity as Chairman of the Public Safety Commission v. Miguel Salazar Edgar Soria Francisco Avila Trejo Green Meadows Landscaping, Inc. Merida Flores Nader Dalo Godofredo A. Orellana And Ruwaidha Liwaza
- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** October 31, 2013
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2956371

## How later opinions describe it (automated extraction)

- concluding that suit was not moot even though legislature had amended statute because there was live controversy regarding whether plaintiffs were entitled to recover their attorney’s fees awarded in pursuing their declaratory claims
- explaining that subject-matter jurisdiction is question of law that appellate courts review de novo
- explaining need to vacate underlying judgment if case becomes moot during appeal

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00478-CV

Texas Department of Public Safety; Steve McGraw, in his Official Capacity as Director of
the Texas Department of Public Safety; the Public Safety Commission; Cynthia Leon, in
her Official Capacity as Chair of the Public Safety Commission; and Carin Marcy Barth,
Ada Brown, Allan B. Polunsky, and Randy Watson, in their Official Capacities as
Members of the Public Safety Commission, Appellants1

v.

Miguel Salazar; Edgar Soria; Francisco Avila Trejo; Green Meadows Landscaping, Inc.;
Merida Flores; Nader Dalo; Godofredo A. Orellana; and Ruwaidha Liwaza, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-09-000273, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

MEMORANDUM OPINION

Miguel Salazar; Edgar Soria; Francisco Avila Trejo; Green Meadows Landscaping,

Inc.; Merida Flores; Nader Dalo; Godofredo A. Orellana; and Ruwaidha Liwaza filed suit against

the Texas Department of Public Safety; Steve McGraw, in his Official Capacity as Director of the

Texas Department of Public Safety; the Public Safety Commission; Cynthia Leon, in her Official

Capacity as chair of the Public Safety Commission; and Carin Marcy Barth, Ada Brown, Allan B.

Polunsky, and Randy Watson, in their Official Capacities as members of the Public Safety

1
As originally filed, the style of this case reflected that Allan Polunsky was the chair of the
Public Safety Commission (the “Commission”) and that John Steen and A. Cynthia Leon were
members of the Commission. In this opinion, we have substituted the current chair and members
of the Commission.
Commission. For ease of reading, we will refer to the plaintiffs in the underlying suit as the

Applicants and to the defendants as the Department except where it is necessary to refer to the

parties individually. In their suit, the Applicants sought relief under the Administrative Procedure

Act as well as declaratory relief under the Uniform Declaratory Judgment Act. In addition, the

Applicants sought an award of attorney’s fees as part of their declaratory claims. Ultimately, the

district court granted the relief requested by the Applicants, and the Department appeals the district

court’s judgment. We will vacate the district court’s judgment and dismiss the cause.

BACKGROUND AND GOVERNING SCHEME

This appeal has a long appellate history with this Court. Before delving into the

facts of the current appeal, it is helpful to provide some context for the issues on appeal by giving

a brief discussion regarding the history of the case as well as the various statutes and rules bearing

upon the issues in this case. The legislature empowered the Department with the authority to adopt

rules necessary to the issuance of driver’s licenses and personal identification certificates.2 See Tex.

Transp. Code §§ 521.005, .291. In addition, the legislature set out certain criteria for driver’s license

applications and mandated that applications “include any other information the department requires

to determine the applicant’s identity, residency, competency, and eligibility.” Id. § 521.142(e); see

also id. § 521.142(a) (specifying that applicant must provide full name and place of birth and requiring

information to be “verified by presentation of proof of identity satisfactory to the department”).

2
The claims and governing framework for the underlying suit address personal identification
certificates and driver’s licenses. In our opinion, we will generally refer to the two types of
identification as driver’s licenses.

2
In light of the statutory directives discussed above, the Department promulgated

Rule 15.24. That rule lists the types of documents “that may be presented to establish proof of

identity.” See 37 Tex. Admin. Code § 15.24 (Texas Dep’t of Pub. Safety, Identification of Applicants).

At the time relevant to the conflict in this case, former Rule 15.24 provided that one type of

document that may be used as proof of identity is an “unexpired United States Bureau of Citizenship

and Immigration Services document issued for a period of at least one year” but also required that the

document “be valid for no less than six (6) months from the date presented to the [D]epartment with

a completed application.” 33 Tex. Reg. 2011 (2008), adopted 33 Tex. Reg. 4008 (2008), amended

by 36 Tex. Reg. 6871 (2011), adopted 36 Tex. Reg. 8383 (2011) (current version at 37 Tex. Admin.

Code § 15.24).

In addition to the above rule, the Department also promulgated former Rule 15.171,

which governed the issuance of driver’s licenses to non-citizens. 33 Tex. Reg. 5271 (2008), adopted

33 Tex. Reg. 8032 (2008), repealed by 36 Tex. Reg. 6872 (2011), adopted 36 Tex. Reg. 8384 (2011)

(former 37 Tex. Admin. Code § 15.171 (Texas Dep’t of Pub. Safety, Issuance of Driver Licenses and

Identification Certificates to Non-citizens)). At the time relevant to the conflict in this appeal,

former Rule 15.171 provided that an applicant could not be issued a driver’s license if he had less

than six months remaining on his admission to the United States. Id. Further, the rule explained that

if an applicant’s period of lawful admission is more than six months but less than the full term for

a driver’s license, he may only be given a driver’s license “with a status date displayed that coincides

with the expiration of the applicant’s lawful admission period in the United States.” Id. Moreover,

the rule stated that if an applicant’s period of lawful admission has an indefinite end date, he may

be issued a driver’s license with a one-year status date from the date of the application and that if he

3
is unable to provide valid documentation of a change or extension within 45 days from the status

date, his license will be cancelled. Id.

In addition to the promulgated rules discussed above, the Department also issued an

internal memo explaining that driver’s licenses issued to certain non-citizens will differ from

standard driver’s licenses by being oriented vertically and by bearing the phrase “Temporary Visitor.”

Furthermore, the memo directed that the modified licenses show the individual’s status date.

After the rules and memo discussed above became effective, Miguel Salazar, Edgar

Soria, Francisco Avila Trejo, and Green Meadows Landscaping, Inc.,3 filed suit against the

Department seeking declaratory and injunctive relief under the Declaratory Judgment Act, see Tex.

Civ. Prac. & Rem. Code §§ 37.001-.011, and under the provision of the Administrative Procedure

Act allowing individuals to challenge the validity of an administrative rule, see Tex. Gov’t Code

§ 2001.038. In their suit, they argued that “the enforcement of Rules 15.24 and . . . 15.171 and

the Department’s policies as outlined in the memorandum would cause them probable injury.”

Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 902 (Tex. App.—Austin 2009, no pet.).

In particular, “Salazar, Soria, and Trejo assert[ed] that they [we]re authorized workers under the

federal H-2B4 work visa program, but [could not] obtain driver’s licenses under the new rules

3
Eustolio Galvan and Jose Gomez were also listed as plaintiffs in the suit, but this Court
later dismissed those plaintiffs for lack of standing. Texas Dep’t of Pub. Safety v. Salazar, 304
S.W.3d 896, 907-08 (Tex. App.—Austin 2009, no pet.).
4
The H-2B program is a federal program allowing employers to seek permission from the
federal government to hire temporary workers from other countries if the job positions cannot
be filled with individuals in the United States. See 8 U.S.C.A. § 1101(a)(15)(H)(ii)(b); see also
Rayas v. Texas Mut. Ins. Co., No. 03-11-00310-CV, 2013 Tex. App. LEXIS 298, at *3 n.1 (Tex.
App.—Austin Jan. 11, 2013, no pet.) (mem. op.) (explaining that “H-2B program allows U.S.
employers to bring foreign nationals to the U.S. to fill temporary non-agricultural jobs”).

4
because their visas are only valid for ten months at a time.” Id. at 902. In addition, Green Meadows,

which is a landscaping business that relies on temporary employees, “allege[d] that the Department’s

new rules . . . prevented its H-2B workers from obtaining Texas driver’s licenses, and therefore

precluded Green Meadows from employing them as foremen, as that position requires the ability

to drive work crews from one job site to another.” Id. After convening a hearing, the district court

granted the requested injunctive relief, and the Department appealed the district court’s determination

arguing that the district court did not have jurisdiction over the claims. Id.

On appeal, this Court determined that although “there is no doubt that Rules 15.24

and 15.171 are agency rules,” the memo requiring that driver’s licenses for non-citizens be oriented

vertically and have the phrase “Temporary Visitor” at the top did not qualify as a rule under the

Administrative Procedure Act. Id. at 905. Accordingly, this Court determined that the district court

did not have jurisdiction to consider the plaintiffs’ challenge to the memo under section 2001.038

of the Administrative Procedure Act. Id. In reaching this result, we explained that “[t]he Department’s

internal policy regarding the appearance of driver’s licenses as outlined in the memorandum does

not affect the interest of the public such that it cannot be altered without public input, nor does it

have any legal effect on private persons.” Id. Stated differently, we related that the plaintiffs did

not identify “any public interest in ensuring that all qualified applicants receive a horizontally

oriented driver’s license or a driver’s license free from any ‘Temporary Visitor’ designation” or

identify “any legal effect on private persons as a result of the Department’s policy.” Id.

Turning to the plaintiffs’ challenge to the memo under the Declaratory Judgment

Act, this Court determined that the plaintiffs did not have standing to pursue the claim. Id. at 906.

5
In reaching this result, we explained that to establish standing under the Act, a party must show

“‘a particularized, legally protected interest that is actually or imminently affected by the alleged

harm.’” Id. (quoting Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871,

882 (Tex. App.—Austin 2010, pet. denied)). In light of that proposition, we reaffirmed our previous

determination that the plaintiffs had “not alleged any cognizable effect on private persons as a result

of the Department’s September 2008 memorandum, as it merely alters the appearance of certain

driver’s licenses,” and that the plaintiffs failed to show that receiving a license that is standard in

appearance “is a recognizable legally protected interest.” Id.

Regarding the challenges to former Rule 15.24 and former Rule 15.171 under the

Administrative Procedure Act, this Court determined that the plaintiffs had standing to pursue these

claims and that, therefore, the district court had jurisdiction over those claims. Id. at 907-08.5 Under

the provision of the Act authorizing rule challenges, a party must “allege[] that the rule or its

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

or privilege.” Tex. Gov’t Code § 2001.038(a). In determining whether the plaintiffs had standing,

we noted that a driver’s license is a privilege. Salazar, 304 S.W.3d at 906 (citing Texas Dep’t of

Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex. 1985)). Further, we explained that Salazar,

Soria, and Trejo “demonstrated that the new rules interfere with their privilege to obtain a Texas

driver’s license” because the new rules require “a non-citizen’s immigration documentation . . . [to]

5
In reaching our decision, we dismissed on jurisdictional grounds the plaintiffs’ challenges
to former Rule 15.24 and former Rule 15.171 under the Declaratory Judgment Act. Salazar, 304
S.W.3d at 906 n.7. In dismissing those claims, we noted that parties are not authorized to “seek
relief under the [Declaratory Judgment Act] when such relief would be redundant to relief under
the” Administrative Procedure Act. Id.

6
have been originally issued for a period of at least one year” but that the visas issued under the

federal H-2B program have an effective “period of approximately ten months.” Id. Regarding

Green Meadows, we explained that it alleged that it “relies on H-2B workers in conducting its

landscaping business,” that the rules prevent H-2B workers from obtaining driver’s licenses, that it

cannot employ workers without driver’s licenses as foremen because the job requires them to drive

to various job sites, and that “the resulting shortage of foremen has prevented it from fulfilling

obligations to its landscaping customers.” Id. at 907. Further, we noted that “[t]he ability of an

employer to participate in federal guest-worker programs, such as the H-2B program, is a privilege

created by federal law” and that Green Meadows “alleged that the Department’s new rules threaten

to impair this privilege” and, therefore, “established standing to challenge the new rules under the”

Administrative Procedure Act. Id.

Ultimately, this Court determined that the district court had jurisdiction over the

challenges to former Rule 15.24 and former Rule 15.171 under section 2001.038 of the Administrative

Procedure Act but “dismissed for want of jurisdiction” the challenges to the 2008 memo under both

the Administrative Procedure Act and the Declaratory Judgment Act and all other “claims raised

pursuant to the” Declaratory Judgment Act. Id. at 908, 910.6

6
Subsequent to our ruling, the Department filed another interlocutory appeal contending
that the district court had implicitly denied its plea to the jurisdiction. Texas Dep’t of Pub. Safety
v. Salazar, No. 03-11-00206-CV, 2011 Tex. App. LEXIS 2921 (Tex. App.—Austin Apr. 19, 2011,
no pet.) (mem. op. on reh’g). However, this Court determined that we did not have jurisdiction over
the appeal because the district court’s order did not actually deny the plea as required by the
provision of the civil practice and remedies code governing interlocutory appeals. Id. at *2-3. After
our determination, the Department filed a petition for writ of mandamus asserting that the district
court abused its discretion by failing to rule on the plea, but we denied the petition. In re Texas
Dep’t of Pub. Safety, No. 03-11-00208-CV, 2011 Tex. App. LEXIS 3092, at *1 (Tex. App.—Austin
Apr. 21, 2011, orig. proceeding).

7
After our ruling, Merida Flores, Nader Dalo, Godofredo A. Orellana, and Ruwaidha

Liwaza were added to the suit, and the Applicants filed an amended petition for declaratory

and injunctive relief. In their amended petition, the Applicants again pursued claims under the

Administrative Procedure Act and under the Declaratory Judgment Act. Regarding their administrative

claims, the Applicants challenged the “validity and applicability of Rules 15.24 and 15.171.”

Moreover, the Applicants asserted that the Department had improperly implemented policies that

altered “the appearance of licenses for nonimmigrants.” In particular, the Applicants contended that

the Department’s policies interfered with their ability to “receive a license that does not differ in

appearance from standard licenses” and that the altered appearance has led to deleterious effects.

Regarding their declaratory claims, the Applicants repeated the same arguments

made in the pleading that was the subject of the prior appeal and alleged that their rights pertaining

to driver’s licenses had been affected. Further, the Applicants added the following declaratory

requests in their amended petition: (1) that the Transportation Code does not authorize the Department

to deny a driver’s license “or to adopt rules or implement policies providing for a denial of a

driver’s license . . . based on the length of time” that an applicant was authorized to reside in the

United States; (2) that the Transportation Code does not authorize the Department to deny a driver’s

license “or to adopt rules or implement policies providing for a denial of a driver’s license . . . based

on the length of time remaining before expiration of the applicant’s authorization to remain in the

United States”; (3) that the Transportation Code does not empower the Department “to limit, or to

adopt rules or implement policies that would limit, the duration of such licenses . . . to a period less

than the standard duration”; (4) that the Transportation Code does not allow the Department “to

8
limit, or to adopt rules or implement policies that would limit, the duration of a license to the time

remaining before expiration of the applicant’s current authorization to reside in the United States”;

and (5) that the Transportation Code does not authorize the Department to issue to individuals

“lawfully residing” in the United States driver’s licenses “that differ in appearance from standard

driver’s licenses.”

In a subsequently filed motion for summary judgment, the Applicants requested an

additional declaration that was not included in their petition. Essentially, the Applicants asserted

that the Department was requiring certain individuals to submit immigration documentation that

was not legally required. Accordingly, the Applicants asked the district court to declare that the

Department does not have the authority to require applicants to submit additional immigration

documents beyond what the federal government issues to applicants seeking indefinite residency.

After reviewing the filings by both sides and after convening numerous hearings, the

district court issued its judgment. In its judgment, the district court granted relief under the

Administrative Procedure Act and the Declaratory Judgment Act. Regarding the administrative

relief, the court declared that former Rule 15.171 was invalid and that portions of former Rule 15.24

were also invalid. Specifically, the district court decreed the following:

(a) The portion of 37 Texas Administrative Code § 15.24(l)(D) that reads “issued for
a period of at least one year and must be valid for no less than six (6) months from
the date presented to the department with a completed application” and the portion
of § 15.24(l)(F) that reads “marked valid for a fixed duration. The Form I-94 must
have been issued for a period of at least one year and must be valid for no less
than six (6) months from the date presented to the department with a completed
application” and § 15.171 are invalid due to a lack of Texas Transportation Code or
other statutory authority to adopt such provisions;

9
(b) The portion of 37 Texas Administrative Code § 15.24(1)(D) that reads “issued
for a period of at least one year and must be valid for no less than six (6) months
from the date presented to the department with a completed application” and
§ 15.171 are invalid for lack of the adequate reasoned justification required by Texas
Gov’t Code § 2001.033(a); and

(c) applied according to their texts, 37 Texas Administrative Code § 15.171 and 37
Texas Administrative Code §§ 15.24(1)(D) and (F) do not authorize or require the
DPS to issue, or the individual Defendants to require, direct or authorize DPS to
issue, to lawfully admitted persons residing in Texas class C Texas driver’s licenses
that are oriented vertically and labeled “Temporary Visitor,” or that are otherwise
different in appearance (except for the requirement that such licenses contain a status
date) from the standard class C Texas driver’s license.

Turning to the claims under the Declaratory Judgment Act, the district court

concluded that it had jurisdiction over those claims, that the Applicants had standing to pursue those

claims, that those claims were not moot or redundant of the Applicants’ administrative claims, that

those claims are “proper ultra vires claims concerning what the Transportation Code does and does

not authorize [the Department Officials] to impose on lawfully admitted persons seeking Texas

driver’s licenses.” Further, the district court issued the following declarations against the Department

officials specifying that the Transportation Code does not authorize the Department:

(a) to deny an application for a class C Texas driver’s license based on either (i) the
length of time the applicant was originally lawfully admitted to the United States by
federal authorities, or (ii) the time remaining before the applicant’s permission to
remain in the United States expires;

(b) to issue class C Texas driver’s licenses that are oriented vertically, labeled
“Temporary Visitor,” or otherwise not standard in appearance (except as specifically
provided in the Transportation Code, e.g., Chapter 521, Subchapter F, pertaining to
provisional licenses or licenses for persons under the age of 21), or that are limited
in duration to a period less than that specified in Transportation Code § 521.271, to
(i) refugees and asylees residing in Texas; and (ii) other lawfully admitted persons
residing in Texas; or

10
(c) to require lawfully admitted persons residing in Texas and seeking a class C
Texas driver’s license to present immigration documents that the United States
authorities do not require such persons to have.

In addition, the district court awarded the Applicants attorney’s fees under the

Declaratory Judgment Act. Specifically, the district court awarded $148,525.00 for services and

fees incurred during the trial as well as appellate attorney’s fees in the event that the Applicants

pursued appeals to this Court or to the supreme court.

The Department appeals the district court’s judgment.

DISCUSSION

In several issues on appeal, the Department raises various jurisdictional and non-

jurisdictional challenges to the district court’s judgment. First, the Department asserts that the

district court did not have jurisdiction over the Applicants’ declaratory-judgment claims. Second,

the Department insists that the district court erred by failing to strike a declaratory claim that was

untimely added. Third, the Department argues that several of the Applicants lacked standing to

pursue their claims or that their claims were moot. Fourth, the Department contends that because

the district court did not have jurisdiction over the claims under the Declaratory Judgment Act, it

erred by awarding the Applicants attorney’s fees under that Act. Fifth, the Department urges that

the Applicants’ rule challenges under the Administrative Procedure Act and their claims under the

Declaratory Judgment Act have been mooted by statutory amendments made by the legislature and

by the promulgation of new rules by the Department. Finally, the Department insists that the attorney’s

fees award was “inequitable and unjust.” For ease of reading, we will address the Department’s

fifth issue first and then address the remaining issues in the order briefed.

11
Subsequent Legal Changes

In its fifth issue, the Department insists that the entire case has been mooted by

amendments to the Transportation Code that went into effect after the district court issued its

judgment as well as the Department’s decision to amend portions of former Rule 15.24 and to repeal

former Rule 15.171. Accordingly, the Department insists that we should vacate the district court’s

judgment in its entirety. See Marshall v. Housing Auth. of San Antonio, 198 S.W.3d 782, 788-89

(Tex. 2006) (explaining need to vacate underlying judgment if case becomes moot during appeal).

As discussed above, in the administrative portion of their pleadings, the Applicants

challenged former Rule 15.171, which placed limitations on the duration of licenses, and the portions

of former Rule 15.24 imposing additional requirements and duration limits on licenses issued to

certain non-citizens. After the district court issued its judgment, former Rule 15.171 was repealed,

and the challenged portions of former Rule 15.24 were removed. Moreover, the changes to the

two rules were made in response to statutory amendments to the Transportation Code provisions

governing the issuance of licenses. Among other things, those changes require that all licenses have

the same format, appearance, and orientation, see Tex. Transp. Code §§ 521.101(k), .121(e); prohibit

the Department from denying a personal identification certificate on the basis of “the duration of the

person’s authorized stay in the United States,” id. §§ 521.101(d-1), (f-2), (f-4); and specify that the

expiration date for driver’s licenses is the same regardless of whether the license was issued to a

“citizen, national, or legal permanent resident . . . or a refugee or asylee lawfully admitted,” id.

§ 521.271(a); see also id. § 521.271(a-2) (governing expiration dates for temporary lawful residents).

On appeal, the Applicants do not seem to dispute the Department’s assertion that their

administrative claims are moot, and in light of the statutory amendments and rule changes, we must

12
conclude that the Applicants’ administrative challenges to former Rules 15.171 and 15.24 are indeed

moot. Cf. Texas Parks & Wildlife Dep’t v. Texas Ass’n of Bass Clubs, 622 S.W.2d 594, 596 (Tex.

App.—Austin 1981, writ ref’d. n.r.e.) (explaining that legislation enacted after trial mooted rule

challenge because new statute explicitly authorized behavior in question).

The Applicants do, however, argue that their declaratory claims are not moot for

various reasons. For example, the Applicants contend that the Department declined to issue standard

licenses to several of the Applicants even after allegedly announcing that it would change its

policies. In addition, the Applicants claim that their declaratory issues are not moot because the

Department allegedly continues to claim that it has the authority to issue non-standard licenses

and that it has the authority to require applicants to produce additional immigration documents.

Moreover, the Applicants contend that there is a live dispute because the Department has “never

made any binding judicial admission that [it] lacked the statutory authority” to issue non-standard

licenses. Finally, and most importantly, the Applicants urge that the issue of attorney’s fees under

the Declaratory Judgment Act was not mooted by the changes to the governing statutes and rules.

See Camarena v. Texas Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (concluding that suit was

not moot even though legislature had amended statute because there was live controversy regarding

whether plaintiffs were entitled to recover their attorney’s fees awarded in pursuing their declaratory

claims); see also Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005) (concluding that

insurance company’s declaratory suit regarding whether policyholder’s claim was covered was not

moot even though jury had returned verdict in favor of policyholder in suit brought by neighbor

because policyholder’s request for attorney’s fees under Declaratory Judgment Act breathed life

into appeal and prevented it from being moot).

13
In addition to arguing that the Applicants’ declaratory claims were mooted by

subsequent changes in the governing framework, the Department also asserts that the district court

did not have jurisdiction over the declaratory claims at the time of trial. Given our ultimate

resolution that the district court never had jurisdiction over those claims, we need not address

whether those claims were mooted by changes to the governing statutes and rules occurring after the

district court issued its judgment.7

The Applicants’ Requested Declarations and Claim for Attorney’s Fees

In its first issue on appeal, the Department asserts that the district court did not have

jurisdiction over the Applicants’ claims under the Declaratory Judgment Act. See Texas Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (explaining that subject-matter

jurisdiction is question of law that appellate courts review de novo). As a corollary, in its fourth

issue on appeal, the Department contends that district court did not have authority to award the

Applicants attorney’s fees under the Act.

As discussed previously, in the portion of their current live pleading seeking relief

under the Act, the Applicants repeated the general arguments made in their prior pleading but also

7
Although we do not reach the issue of mootness regarding the Applicants’ declaratory
claims, we do note that resolution of the mootness issue would likely involve consideration of
the same jurisdictional matters discussed in the Department’s other issues. As set out above, the
Applicants contend that the attorney’s fees issue is a live dispute that prevented this case from being
entirely mooted by subsequent changes to the governing law. The issue of attorney’s fees could only
be a live dispute if the district court had jurisdiction over the declaratory claims to begin with.
Accordingly, in addressing mootness as it pertained to the declaratory claims, we would necessarily
have to decide whether the district court had jurisdiction over those claims during the trial. For the
reasons more thoroughly explained in the opinion, we conclude that the district court did not have
jurisdiction over those claims.

14
added five new and specific declaratory requests. In their final request, the Applicants asked the

district court to declare that the Transportation Code does not authorize the Department to issue to

individuals “lawfully residing” in the United States driver’s licenses “that differ in appearance from

standard driver’s licenses.”

The fifth requested declaration regarding the appearance of driver’s licenses is

essentially a repeat of the Applicants’ prior challenge to the Department’s memo under which the

Department specified that driver’s licenses issued to certain non-citizens will not have a standard

appearance and will instead be oriented vertically and have the phrase “Temporary Visitor” affixed

to the license. In our prior opinion, we determined that the Applicants did not have standing to

pursue that challenge because they failed to allege “any cognizable legal effect on private persons

as a result of the Department’s September 2008 memorandum, as it merely alters the appearance of

certain driver’s licenses. The Appellees have not shown that receipt of a Texas driver’s license that

is standard in appearance . . . is a recognizable legally protected interest.” Salazar, 304 S.W.3d at 906.

In the current appeal, the Applicants contend that they added additional plaintiffs after

our prior ruling and that they also “alleged specific facts that demonstrate how [the Department’s]

policies” resulted in actual, concrete, and particularized injuries to the new plaintiffs. In particular,

the Applicants point to various allegations that the Department’s issuance of non-standard licenses

caused “them to be treated differently as consumers in day-to-day transactions, interfered with their

freedom to contract for services, and [in some cases] . . . misrepresented their immigration status by

requiring their licenses to state they were ‘temporary visitors.’” (Brief at 20). However, none of the

added allegations demonstrate that receiving a license that is standard in appearance is a recognizable

15
legally protected interest. Accordingly, for the reasons identified in our prior opinion, we must

conclude that the Applicants did not have standing to pursue their fifth declaratory request and that,

therefore, the district court did not have jurisdiction over that claim.8

Turning to their other four requests that were included in their amended petition, the

Applicants asked the district court to declare the following: (1) that the Transportation Code does

not authorize the Department to deny a driver’s license “or to adopt rules or implement policies

8
In post-submission briefing, the Applicants contend that a recent case by the supreme court
supports a determination that the Applicants had standing. See Finance Comm’n v. Norwood, No.
10-0121, 2013 Tex. LEXIS 491 (Tex. June 21, 2013). In Norwood, the supreme court was
confronted with a controversy regarding a constitutional amendment that authorized the legislature
to “delegate to a state agency the power to interpret certain provisions of the Texas Constitution
governing home equity lending.” Id. at *4. In that case, the supreme court determined that the
agency’s interpretation of the constitutional provisions was subject to judicial review under the
Administrative Procedure Act, id. at *33-34, and that various homeowners had standing to pursue
that type of review, id. at *49. In light of that determination, the Applicants insist that their
allegations were sufficient to establish standing in this case.

However, we believe that the Applicants’ reliance on Norwood is misplaced. When
discussing why the homeowners had standing, the supreme court noted that the case confronted a
“unique consideration” because of the safe-harbor provision of the constitutional amendment, which
prohibits a borrower from being injured by a lender’s compliance with the agency’s interpretation
of the provision even if the agency’s interpretation is wrong. Id. at *38. Stated differently, the
supreme court determined that an injury “to the interest in obtaining a home equity loan resulting
from the [agency’s] misinterpretation of” the constitutional amendment must be sufficient to confer
standing or else the agency’s interpretations would be “final and absolute.” Id. at *39. Accordingly,
the supreme court warned that the case presented “an exceptional context in which to assess
standing” and that the unique constitutional interplay required less of a substantial injury than is
typical to confer standing. Id. at *47-48.

In this case, there are no comparable constitutional concerns. Moreover, it is worth noting
that the supreme court was confronted with ascertaining standing under the Administrative Procedure
Act and not the Declaratory Judgment Act, which is the law applicable to this issue. In any event,
we can find nothing in the language of Norwood that contradicts our prior determination that in
order to establish standing in this case, the Applicants were required to show that they possessed
a recognizable legally protected interest. See Salazar, 304 S.W.3d at 906.

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providing for a denial of a driver’s license . . . based on the length of time” that an applicant was

authorized to reside in the United States; (2) that the Transportation Code does not authorize the

Department to deny a driver’s license “or to adopt rules or implement policies providing for a denial

of a driver’s license . . . based on the length of time remaining before expiration of the applicant’s

authorization to remain in the United States”; (3) that the Transportation Code does not empower

the Department “to limit, or to adopt rules or implement policies that would limit, the duration of

such licenses . . . to a period less than the standard duration”; [and] (4) that the Transportation Code

does not allow the Department “to limit, or to adopt rules or implement policies that would limit,

the duration of a license to the time remaining before expiration of the applicant’s current

authorization to reside in the United States.”

Although the declarations are written in terms of the Transportation Code, they echo

the relief that the Applicants sought under their rule challenge under the Administrative Procedure

Act. Specifically, under the portion of their petition setting out their administrative claims, the

Applicants argued that the requirements and restrictions imposed by the Department through its

enactment of former Rules 15.24 and 15.171 were contrary to “controlling Texas statutes.” Those

policies and restrictions, as summarized above, form the basis for the Applicants’ declaratory

challenges. Moreover, when making their administrative claims, the Applicants refer to provisions

of the Transportation Code that are also at issue in their declaratory claims.

After reviewing the Applicants’ petition, it appears that the relief sought in the

Applicants’ declaratory claims is essentially the same as the relief that they sought through their

administrative claims. Previously, this Court has explained that a party may not seek relief under

17
the Declaratory Judgment Act when that relief is redundant to relief available under the Administrative

Procedure Act. See Texas State Bd. of Pub. Accountancy v. Bass, No. 03-09-00251-CV, 2011 Tex.

App. LEXIS 294, at *28-29 (Tex. App.—Austin Jan. 14, 2011, no pet.) (mem. op.) (dismissing

constitutional declaratory claim because it was “essentially duplicative of the relief” sought under

Administrative Procedure Act); SWEPI LP v. Railroad Comm’n, 314 S.W.3d 253, 268-69 (Tex.

App.—Austin 2010, pet. denied) (concluding that party’s declaratory claims were redundant of

administrative claims when both sets of claims were “based upon the same statutory construction

arguments”); Salazar, 304 S.W.3d at 906 n.7 (dismissing plaintiffs’ declaratory claims because

they were redundant of other claims); Texas State Bd. of Plumbing Exam’rs v. Associated

Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.—Austin 2000,

pet. dism’d by agr.) (stating that parties challenging validity of rule are bound by Administrative

Procedure Act and may not seek relief under Declaratory Judgment Act).

When arguing in support of the district court’s judgment, the Applicants assert that

their declaratory claims are not redundant of their administrative claims because resolution of the

two sets of claims “turn[s] on different statutory construction issues.” Specifically, the Applicants

contend that they presented rule challenges in their administrative claims and that resolving those

claims requires construction of sections 521.181 and 521.201 of the Transportation Code, which

describe individuals who are and are not eligible to receive a driver’s license. See Tex. Transp.

Code §§ 521.181, .201. On the other hand, the Applicants insist that their declaratory claims pertain

to the appearance of driver’s licenses issued by the Department and that deciding those issues

involves construing sections 521.121 and 521.123 of the Transportation Code, which set out what

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must appear on a driver’s license and also describe what the non-standard licenses given to people

under the age of 21 look like. Id. §§ 521.121, .123. In addition, the Applicants also assert that their

declaratory claims were not entirely redundant of their administrative claims because they pursued

relief that went beyond their rule challenges under the Administrative Procedure Act. Specifically,

the Applicants refer to the declaratory challenge to the policies contained in the Department’s 2008

memo regarding the appearance of issued licenses and assert that none of the claims under the

Administrative Procedure Act pertain to the memo.

As discussed previously, we have already determined that the district court did not

have jurisdiction over the Applicants’ declaratory claim regarding the appearance of driver’s licenses

issued by the Department and challenging the Department’s memo. The remaining declaratory

requests all concern limitations imposed on the effective period of driver’s licenses issued by the

Department and improperly denying certain non-citizens driver’s licenses entirely. Accordingly, we

cannot agree with the Applicants’ assertion that resolution of their four remaining declaratory

requests pertained solely to provisions of the Transportation Code regarding what must appear on

standard driver’s licenses as well as licenses issued to individuals under the age of 21.

However, even assuming that some of the remaining requested declarations would

involve consideration of the Transportation Code provisions pertaining to the appearance of driver’s

licenses, the Applicants also challenged the decision by the Department to alter the appearance of

the licenses given to certain non-citizens in their administrative claims. Specifically, the Applicants

asserted that the Department’s actions were inconsistent with the provisions of the Transportation

Code governing the appearance of driver’s licenses and specifically referenced section 521.123.

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Accordingly, we cannot agree with the Applicants’ contention that the relief requested under their

two sets of claims involve construction of different statutory provisions.

In light of the fact that the relief that the Applicants sought in the four declaratory

claims discussed above is redundant of their administrative claims, we must conclude that the district

court did not have jurisdiction over the declaratory claims.

In its judgment, the district court also declared that the Department could not require

individuals seeking driver’s licenses “to present immigration documents that the United States

authorities do not require such persons to have.” As discussed previously, the Applicants did not

request this declaration in their petition and instead made the request in a subsequently filed motion

for summary judgment. Essentially, the Applicants asserted that the Department was improperly

requiring non-citizens applying for licenses to produce additional identifying documentation.

Further, the Applicants claimed that the Department had listed these additional requirements in a

Temporary Visitor Issuance Guide.

In arguing that the district court did not have jurisdiction to enter this declaration, the

Department presents various jurisdictional arguments including that the issuance of the declaration

was improper because the Applicants failed to show that the Department had engaged in any

ultra vires actions. In supporting the district court’s declaration, the Applicants contend that the

Transportation Code provisions in effect during the relevant time did not authorize the Department

to “require lawfully admitted drivers’ license applicants to produce federal immigration documents

for which they did not qualify for or need for any federal immigration purposes.” Further, the

Applicants insist that no statutory provision in effect granted the Department “discretion to require

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additional federal documentation of a driver’s license applicant whose identity has already been

established by his passport, stamped by the U.S. Department of Homeland Security ‘Asylum Status

Granted Indefinitely,’ and by the Immigration Court order.”

Generally speaking, the doctrine of sovereign immunity bars suits against the State

and its entities. Texas Adjutant General’s Office v. Ngakoue, No. 11-0686, 2013 Tex. LEXIS 681,

at *5-6 (Tex. Aug. 30, 2013). However, the supreme court has recognized that declaratory suits

seeking to require State officials “to comply with statutory or constitutional provisions are not

prohibited by sovereign immunity.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

To properly fall within this ultra-vires exception, a party must allege that an official acted

completely outside of his jurisdiction and may not simply allege that an official failed to comply

fully “with all of the intricacies” of a governing regulatory framework. Friends of Canyon Lake,

Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 528 (Tex. App.—Austin 2002, pet. denied).

The current statutes as well as those in effect at the time that the suit was filed

specified that applicants for driver’s licenses “must apply in a manner prescribed by the department,”

Tex. Transp. Code § 521.141, and that an applicant’s proof of identity must be “satisfactory to the

department,” id. § 521.142(a). Moreover, the statutes explain that an “application must include

any other information the department requires to determine the applicant’s identity, residency,

competency, and eligibility as required by the department.” Id. § 521.142(e).

In light of these broad delegations of power by the legislature, we cannot agree that

the Department’s decision to require certain non-citizen applicants to file additional immigration

documentation as proof of identity when seeking driver’s licenses constituted actions taken

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completely outside the Department’s authority. Accordingly, we must conclude that the Applicants’

allegations were insufficient to invoke the ultra-vires exception, see Texas Comm’n of Licensing

& Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 292 (Tex. App.—Austin 1997, no writ)

(explaining that allegations that agency interpreted legislative directive incorrectly does not

give rise to ultra-vires claim when legislature empowered agency to interpret that statutory

provision), and therefore that the district court did not have jurisdiction over the Applicants’ final

declaratory claim.

In light of our determination that the district court did not have jurisdiction over

any of the Applicants’ declaratory claims, we must conclude that the district court erred by failing

to dismiss those claims, and therefore, we sustain the Department’s first issue on appeal. For that

reason, we also sustain the Department’s fourth issue regarding the award of attorney’s fees under

the Declaratory Judgment Act.9

9
In reaching this result, we are mindful of our recent determination in Zurita v. SVH-1
Partners, Ltd., No. 03-10-00650-CV, 2011 Tex. App. LEXIS 9670, at *25-26 (Tex. App.—Austin
Dec. 8, 2011, pet. denied) (mem. op.), which upheld an award of attorney’s fees under the
Declaratory Judgment Act even though the trial court determined that it did not have jurisdiction
over the declaratory requests. In Zurita, a defendant sought declarations against the plaintiff, but
the trial court determined that it did not have jurisdiction over the declaratory claims. Id. at *17.
However, the trial court did award attorney’s fees to the plaintiff under the Declaratory Judgment
Act. Id. at *23-24. In upholding the attorney’s fee award, this Court determined that even though
the trial court did not have jurisdiction over the declaratory claims, the nature of the proceeding was
a suit under the Declaratory Judgment Act. Id. at *26. Although that case may stand for the logical
proposition that a person against whom declarations are sought may recover attorney’s fees when
defending himself against those claims by challenging the court’s jurisdiction to consider them, we
do not believe that the case stands as support for the idea that attorney’s fees awarded to a person
seeking declaratory relief can be upheld if an appellate court determines that the trial court did not
have jurisdiction over those claims to begin with.

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The Department’s Remaining Issues

In the Department’s second issue, it asserts that the district court erred by either

failing to strike the Applicants’ declaratory claim added in their motion for summary judgment or,

alternatively, by failing to grant a continuance after the claim was added. In its third issue, the

Department contends that many of the individuals who were added to the suit after this Court’s

prior opinion did not have standing to pursue the Applicants’ declaratory claims. In its sixth issue,

the Department argues that the attorney’s fee award was not equitable or just as required by the

Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code § 37.009. Given our rulings above,

we need not address these issues on appeal.

CONCLUSION

Having determined that the Applicants’ administrative claims are moot and that

the district court did not have jurisdiction over the Applicants’ declaratory claims, we vacate the

judgment of the district court and render judgment dismissing the cause.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Henson, and Goodwin
Justice Henson not participating

Vacated and Rendered

Filed: October 31, 2013

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2956371. Public record. Not legal advice.