Glenn Hegar, Comptroller of Public Accounts of the State of Texas The Office of the Comptroller of Public Accounts of the State of Texas Ken Paxton, Attorney General of the State of Texas And the Office of the Attorney General of the State of Texas v. CSG Forte Payments, Inc. F/K/A Forte Payment Systems, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00325-CV

Glen Hegar, Comptroller of Public Accounts of the State of Texas, and Ken Paxton,

Attorney General of the State of Texas, Appellants

v.

CSG Forte Payments, Inc. f/k/a Forte Payment Systems, Inc., Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-003520, THE HONORABLE TIM SULAK, JUDGE PRESIDING

MEMORANDUM OPINION

This is an interlocutory appeal from the district court’s order denying the

Comptroller’s plea to the jurisdiction1 in a sales-tax protest case brought under Chapter 112 of the

Tax Code. See Tex. Tax Code §§ 112.051–.060 (authorizing tax challenges after payment under

protest). For the reasons set forth below, we reverse the district court’s order and render judgment

dismissing the claims challenged in the Comptroller’s plea to the jurisdiction.

1

The Comptroller filed a motion to dismiss for lack of jurisdiction, but for convenience

we refer to the motion as a plea to the jurisdiction. See Texas Nat. Res. Conservation Comm’n v.

White, 46 S.W.3d 864, 866–67 (Tex. 2001) (treating “Motion to Dismiss for Lack of Jurisdiction

Based on Sovereign Immunity” as plea to jurisdiction).

BACKGROUND

CSG Forte Payments, Inc. (Forte) provides electronic-payment services to its

customers and charges fees to move money by electronic transfer. After an audit, the Comptroller

concluded that Forte should have collected sales tax on the services it provides to its customers

because, the Comptroller asserts, those services constitute a taxable “data processing service.” See

id. §§ 151.035 (defining “data processing service”), .0101 (including “data process service” in list

of “taxable services”). Accordingly, it assessed additional sales and use taxes totaling

approximately $445,000 for tax periods 2009–2012 and 2013–2016. Forte sought redetermination

of that assessment through the Comptroller’s administrative redetermination process. See id.

§ 111.009 (authorizing petition for redetermination of Comptroller’s assessment).

While the administrative redetermination proceeding was pending, the Fourteenth

Court of Appeals decided, in a case transferred from this Court under the Texas Supreme Court’s

docket-equalization authority, that electronic-payment services are not taxable. See Hegar v.

Checkfree Servs. Corp., No. 14-15-00027-CV, 2016 WL 1576414, *5–6 (Tex. App.—Houston

[14th Dist.] Apr. 19, 2016, no pet.) (mem. op.); see also Tex. Gov’t Code § 73.001 (authorizing

supreme court to transfer appellate cases). Forte asked the Comptroller to reconsider the

assessment in light of the Checkfree decision, but the Comptroller refused. Forte then asked the

Comptroller to dismiss the pending administrative redetermination proceeding so that Forte could

seek judicial review of the assessment, but the Comptroller refused to do so until Forte paid the

assessed taxes under protest, filed a tax protest suit in district court, and then moved to dismiss the

administrative proceeding. See 34 Tex. Admin. Code § 1.39 (2108) (Comptroller of Public

Accounts, Dismissal of Case), repealed and recodified by 43 Tex. Reg. 8126, 8123 (2018) (current

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version at 34 Tex. Admin. Code § 1.32) (“former Rule 1.39”). After Forte complied, the

Comptroller dismissed the administrative proceeding.

Forte’s suit against the Comptroller challenges the Comptroller’s assessment

against it under Chapter 112 of the Tax Code; asserts a claim under the Administrative Procedure

Act, see generally Tex. Gov’t Code §§ 2001.001–.903; and seeks declaratory relief under the

Uniform Declaratory Judgments Act (UDJA), see generally Tex. Civ. Prac. & Rem. Code

§§ 37.001–.011. Only Forte’s UDJA claims are at issue in this appeal.

In connection with its UDJA claims, Forte requests the following statutory-

construction declarations on the ground that “it is entitled to know, for future periods, whether its

service is subject to the Texas sales and use tax”:

(a) Electronic-payment services are not taxable under Texas Tax Code § 151.0101

[(defining “taxable services” for purposes of sales and use taxes)].

(b) Texas Tax Code § 151.0035 [(defining “data processing service” for purpose of

sales and use taxes)] does not impose Texas sales and use tax on charges for

services that incidentally use computers to store and process data, such as check

approval or authorization when performed by nonprofessionals.

(c) Texas Tax Code § 151.0035 does not require a showing that the taxpayer is

engaged in the provision of a “professional service” to be excluded from the

definition of data processing.

(d) Texas Tax Code § 111.009 [(authorizing taxpayer to seek administrative

redetermination)], and Chapter 112 [(setting forth rules and procedures governing

taxpayer suits)], do not require a taxpayer seeking to terminate an administrative

redetermination hearing to pursue a protest suit in district court to obtain . . . the

Comptroller’s agreement. The taxpayer may unilaterally dismiss its

administrative redetermination hearing by filing a notice of dismissal.

(Collectively, “UDJA statutory-construction claims.”) Forte maintains that it is entitled to these

declarations because the UDJA authorizes a person “whose rights, status, or other legal relations

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are affected by a statute [to] have determined any question of construction or validity arising under

the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.”

Tex. Civ. Prac. & Rem. Code § 37.004.

Also under the UDJA,2 Forte alleges that the Comptroller acted ultra vires by

assessing the additional tax and by not allowing it to unilaterally dismiss the administrative

redetermination proceeding (collectively, “ultra vires claims”). As relief for these claims, Forte

seeks declarations (a) through (d) listed above plus the following additional declarations:

(e) In endeavoring to compel Forte to pay Texas sales and use tax on its

electronic payment service in violation of Texas Tax Code Chapter 151,

Comptroller Hegar acted wrongfully and without legal authority.

(f) Forte is not liable for the Texas sales and use tax, penalty, or interest

assessed by the Comptroller.

(g) [Former Rule] 1.39 allows a taxpayer to file a unilateral Motion to Dismiss

a pending administrative redetermination hearing to change venues.

The Comptroller filed a plea to the jurisdiction challenging Forte’s UDJA statutory-

construction claims and ultra vires claims. The Comptroller argued that sovereign immunity bars

the UDJA statutory-construction claims because the relief sought is redundant to that Forte could

obtain in its Chapter 112 suit and because the UDJA does not waive immunity for claims seeking

a declaration of rights under a statute. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–

22 (Tex. 2011) (per curiam) (observing that “the UDJA does not waive the state’s sovereign

immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law”);

2

Private parties may seek declaratory relief under the UDJA in connection with alleged

ultra vires acts. See, e.g., Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—

Austin 2009, no pet.).

4

Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011) (observing that

“there is no general right to sue a state agency for a declaration of rights” in light of limited scope

of UDJA’s immunity waiver). The Comptroller argued that sovereign immunity bars Forte’s

UDJA ultra vires claims because the relief sought is retrospective and because the issues related

to the administrative proceedings are moot. See City of Dallas v. Albert, 354 S.W.3d 368, 378–79

(Tex. 2011) (“Heinrich clarified that only prospective, not retrospective, relief is available in an

ultra vires claim.” (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009)); Texas

Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 119–20 (Tex. App.—Austin 2007, no pet.)

(holding that sovereign immunity barred ultra vires claim seeking to invalidate previously

executed state contract because that remedy was retrospective in nature). Finally, the Comptroller

argued that Forte’s UDJA ultra vires claims relating to a taxpayer’s ability to dismiss a pending

administrative redetermination hearing—i.e., declarations (d) and (g)—were moot because Forte’s

redetermination hearing had already been dismissed. After a hearing, the district court denied the

Comptroller’s motion, and this interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code

§ 51.014(a)(8) (authorizing interlocutory appeal from order granting or denying plea to the

jurisdiction by a governmental unit).

Analysis

The Comptroller raises six challenges to the district court’s order denying its plea

to the jurisdiction: (1) the redundant-remedies doctrine bars Forte’s UDJA statutory-construction

claims; (2) sovereign immunity bars Forte’s UDJA statutory-construction claims because the

UDJA does not waive sovereign immunity for statutory-construction claims; (3) Forte’s UDJA

statutory-construction claims regarding its future taxability are not ripe; (4) Forte’s request for

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attorney fees under the UDJA is barred by sovereign immunity; (5) Forte’s UDJA ultra vires claims

are barred by sovereign immunity because they seek retrospective relief; (6) Forte’s UDJA ultra

vires claims related to the administrative process are moot because the hearing has been dismissed.

Standard of review

“A plea to the jurisdiction challenges the court’s authority to decide a case.”

Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012). We review a plea challenging

the trial court’s subject-matter jurisdiction de novo, affording no deference to the trial court’s

ruling. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

Analysis of whether this authority exists begins with the plaintiff’s live pleadings and continues

with evidence the parties presented below that is relevant to the jurisdictional issues. Id. “When,

as here, the facts relevant to jurisdiction are undisputed, the court should make the jurisdictional

determination as a matter of law based solely on those undisputed facts.” Machete’s Chop Shop,

Inc. v. Texas Film Comm’n, 483 S.W.3d 272, 278 (Tex. App.—Austin 2016, no pet.). If the

pleadings lack facts sufficient to affirmatively demonstrate jurisdiction, but also do not

demonstrate incurable defects in jurisdiction, then the issue is one of pleading sufficiency and the

plaintiff must be allowed the opportunity to amend. Miranda, 133 S.W.3d at 226–27. If the

pleadings or undisputed facts affirmatively negate jurisdiction, then a plea to the jurisdiction may

be granted without allowing the plaintiff an opportunity to amend. Id. at 227; Gattis v. Duty, 349

S.W.3d 193, 209 (Tex. App.—Austin 2011, no pet.) (reversing and rendering judgment dismissing

claims for want of jurisdiction because defects are “a function of pled or undisputed facts that

affirmatively negate jurisdiction”).

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Forte’s UDJA statutory-construction claims

The Comptroller asserts on appeal that the district court erred in denying its plea to

the jurisdiction as to Forte’s UDJA statutory-construction claims because the UDJA does not

waive sovereign immunity for declaratory relief requesting construction of a statute. We agree.

Sovereign immunity is the “well-established doctrine ‘that no state can be sued in

her own courts without her consent, and then only in the manner indicated by that consent.’”

Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (quoting Tooke v. City of

Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). The Legislature may waive immunity by statute, but

it must do so by clear and unambiguous language. Tex. Gov’t Code § 311.034; Tooke, 197 S.W.3d

at 332–33.

As Forte asserts, the UDJA generally authorizes claimants “whose rights, status, or

other legal relations are affected by a statute” to “have determined any question of construction or

validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal

relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a). But this authorization is not a

waiver of sovereign immunity to entertain such a claim—the UDJA generally “does not enlarge

the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a

court’s jurisdiction.’” Sefzik, 355 S.W.3d at 621–22 (adding that “we have consistently stated”

that principle (quoting Sawyer Tr., 354 S.W.3d at 388)). As the Texas Supreme Court has clarified,

the UDJA’s sole feature that can affect a trial court’s jurisdiction to entertain a substantive claim

is the statute’s implied limited waiver of sovereign immunity for claims challenging the validity

of ordinances or statutes. See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d

628, 634–35 (Tex. 2010) (citing Tex. Civ. Prac. & Rem. Code § 37.006(b); Texas Educ. Agency

v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)). It has squarely repudiated the once widespread

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notion that the UDJA confers some broader right to sue the government to obtain “statutory

construction” or a “declaration of rights.” See Sefzik, 355 S.W.3d at 621–22 (“The UDJA does

not waive the state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights

under a statute or other law.”); Sawyer Tr., 354 S.W.3d at 388 (“there is no general right to sue a

state agency for a declaration of rights” in light of limited scope of UDJA’s immunity waiver).

Forte has not asserted a challenge to the validity of a statute. Consequently, the

UDJA itself ultimately has no bearing on whether Forte’s claims invoke the district court’s

jurisdiction. We must look instead to the claims’ underlying substance in order to determine

whether the district court has jurisdiction to entertain them. See, e.g., Sawyer Tr., 354 S.W.3d at

389 (“[t]he central test for determining jurisdiction” looks to whether “the ‘real substance’ of the

plaintiffs’ claims” is within court’s jurisdiction (citing Dallas Cnty. Mental Health & Retardation

v. Bossley, 968 S.W.2d 339, 343–44 (Tex. 1998))).

By suing for declarations that its form of business is not subject to Texas sales and

use taxes, Forte is, in substance, asserting a taxpayer challenge to the Comptroller’s tax

assessment. More specifically, given that Forte explicitly limits its UDJA statutory-construction

claims to possible future tax assessments—Forte’s petition states, with respect to these claims, that

it “is entitled to declaratory relief under the UDJA for future periods” (emphasis added)—Forte is

asserting a taxpayer challenge to possible future tax assessments.3 Assuming that these claims are

ripe, the Legislature has not waived immunity for such a suit.

3

The Comptroller asserts in his first issue that because the relief sought under Forte’s

UDJA statutory-construction claims is identical to the relief it seeks under its Chapter 112 protest

claim, the UDJA statutory-construction claims are barred under the redundant-remedies doctrine.

See Patel v. Texas Dep’t of Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015) (explaining that

redundant-remedies doctrine prohibits courts from entertaining UDJA action when same claim

could be pursued through different channels) (citing Texas Mun. Power Agency v. Public Util.

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The Legislature has waived the State’s sovereign immunity for only three types of

tax challenges—protests, injunctions, and refunds. EBS Sols., Inc. v. Hegar, 601 S.W.3d 744,

749–50 (Tex. 2020) (citing Tex. Tax Code §§ 112.001, .051, .101, .108); In re Nestle USA, Inc.,

359 S.W.3d 207, 209 (Tex. 2012) (orig. proceeding) (“Chapter 112 allows no other actions to

challenge or seek refunds of the taxes to which it applies.”). None of these waivers contemplates

the challenge to possible future assessments that Forte asserts here. To the contrary, each waiver

is predicated on the existence of an assessment or pending assessment. For example, protest suits

are authorized to recover a tax “required to be paid to the state,” Tex. Tax Code §§ 151.051(a),

.052(a), and the taxpayer in a protest suit must produce records relating to “the amount of the tax,

penalty, or interest that has been assessed or collected or will be refunded,” id. § 151.052(d).

Refund suits are authorized “to recover an amount of tax, penalty, or interest” that has already

been collected, id. § 112.151(a), and a taxpayer bringing a refund suit must also produce records

relating to the amounts “assessed or collected or [that] will be refunded,” id. § 112.151(f).

Relatedly, for each of these kinds of tax suits, the taxpayer normally must meet

some prepayment requirement before bringing the suit. EBS, 601 S.W.3d at 750; see Tex. Tax

Code §§ 112.051 (requiring taxpayer in protest suit to first pay the amount allegedly owed in tax

and fees), .101. (same for refund suit), .101(a) (requiring taxpayer in injunction suit to either pay

amount allegedly owed or file bond covering the amount allegedly owed). These prerequisites are

Comm’n, 253 S.W.3d 184, 200 (Tex. 2007)). We agree that the relief requested would be

redundant to that sought in the Chapter 112 claims if it were directed to the existing assessment,

but Forte’s UDJA statutory-construction claims are explicitly limited to the possibility of future

assessments. For that reason, these claims go beyond resolution of its pending Chapter 112 claims

and, accordingly, the Chapter 112 claim would not provide a redundant remedy. See Patel, 469

S.W.3d at 79 (holding that redundant-remedies doctrine did not apply because the declaration

sought went beyond reversal of an agency order under APA).

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jurisdictional requirements to challenging a tax assessment. EBS, 601 S.W.3d at 750 (citing In re

Nestle USA, Inc., 387 S.W.3d 610, 616 (Tex. 2012) (orig. proceeding); In re Nestle, 359 S.W.3d

at 208)). Forte could not meet these jurisdictional prerequisites because there is no existing amount

allegedly owed for possible future assessments. Nor could Forte use the Tax Code’s exception to

the prepayment requirement to avoid these jurisdictional prerequisites because the exception

likewise assumes the existence of an assessment or alleged amount owed. See Tex. Tax Code

§ 112.108 (carving out exception to prepayment requirement where taxpayer “file[s] an oath of

inability to pay the tax, penalties, and interest due” (emphasis added)).

For these reasons, we conclude that the Tax Code’s waiver of sovereign immunity

for taxpayer challenges does not provide the district court with jurisdiction over Forte’s UDJA

statutory-construction claims. See Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex. 1980)

(holding that statutory predecessor providing for protest-payment suit “created a right not existing

at common law and prescribed a remedy to enforce the right”; “[t]hus, the courts may act only in

the manner provided by the statute which created the right”); see also In re Nestle, 359 S.W.3d at

212 (“Because these taxpayer rights of action are created by statute, waiving the State’s immunity

from suit, ‘the courts may act only in the manner provided by the statutes which created the right.’”

(quoting Dan Ingle, Inc. v. Bullock, 578 S.W.2d 193, 194 (Tex. App.—Austin 1979, writ ref’d))).

Accordingly, the district court erred in denying the Comptroller’s plea to the jurisdiction as to

Forte’s UDJA statutory-construction claims. Having so concluded, we need not consider the

Comptroller’s remaining jurisdictional challenges to those claims. See Tex. R. App. P. 47.1.

Instead, we turn to the Comptroller’s challenges to Forte’s ultra vires claims.

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Forte’s UDJA ultra vires claims

The Texas Supreme Court “has long recognized that [sovereign] immunity does not

bar claims alleging that a government officer acted ultra vires, or without legal authority, in

carrying out his duties.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

157–58 (Tex. 2016). “‘To fall within this ultra vires exception,’ however, ‘a suit must not

complain of a government officer’s exercise of discretion, but rather must allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely ministerial act.’”

Id. at 161 (quoting Heinrich, 284 S.W.3d at 372). In its live petition, Forte alleges that the

Comptroller acted ultra vires:

• by assessing Texas sales and use tax on Forte’s electronic payment service when it

is not taxable under Texas Tax Code Chapter 151, as construed by the Fourteenth

Court of Appeals in CheckFree;

• in enforcing an illegal data-processing rule that imposes tax in excess of the

governing statute, as well as in denying Forte’s unilateral Motion to Dismiss under

[former] Rule 1.39; and

• by misinterpreting the limitations on his taxing authority and/or acting without

reference to or in conflict with the law enabling him to act.

Forte brings its ultra vires claims under the UDJA and, as relief, seeks the seven declarations

described above that would, stated generally, establish that its form of business is not subject to

Texas sales and use taxes, that it is not liable for the sales-tax assessment imposed on it by the

Comptroller, and that, under the Tax Code and former Rule 1.39, a taxpayer may unilaterally

dismiss a redetermination hearing by filing a notice of dismissal. See Texas Dep’t of Pub. Safety

v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—Austin 2009, no pet.). (noting that private parties

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may seek declaratory relief under UDJA in connection with alleged ultra vires act). On appeal,

the Comptroller challenges the district court’s jurisdiction over Forte’s ultra vires claims.

Comptroller’s authority related to dismissal of the redetermination hearing

As noted above, Forte asked the Comptroller to dismiss the pending administrative

redetermination hearing so that Forte could seek judicial review of the assessment under

subsections 112.051 and 112.052 of the Tax Code. See Tex. Tax Code §§ 112.051–.052 (waiving

sovereign immunity for tax protest suit if taxpayer submits a written protest and pays the amount

due under protest before filing suit). The Comptroller refused to dismiss the proceeding until Forte

paid the assessed taxes under protest, filed a tax protest suit in district court, and then moved again

to dismiss the administrative proceeding. See id.; 34 Tex. Admin. Code § 1.39 (2018) (requiring

motion to dismiss administrative proceeding and including as ground for dismissal of

redetermination that “a taxpayer’s claims for the same tax and the same period are pending in a

court”). After Forte complied, the Comptroller dismissed the administrative proceeding.

In its suit for judicial review, Forte alleges that the Comptroller acted ultra vires

when it refused to allow Forte to unilaterally dismiss the administrative proceeding and, as relief,

asks for declarations—(d) and (g) listed above—that the Tax Code does not require the

Comptroller’s agreement to dismiss a case and, relatedly, that former Rule 1.39 allows a taxpayer

to unilaterally dismiss a pending administrative redetermination. On appeal, the Comptroller

asserts that these ultra vires claims are moot because the administrative redetermination

proceeding has been dismissed. We agree.

A court lacks jurisdiction to decide a case that becomes moot during the pendency

of the litigation. Heckman, 369 S.W.3d at 161 (citing National Collegiate Athletic Ass’n v. Jones,

1 S.W.3d 83, 86 (Tex. 1999)). A case becomes moot if, since the time of filing, there has ceased

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to exist a justiciable controversy between the parties—that is, if the issues presented are no longer

“live” or if the parties lack a legally cognizable interest in the outcome. Id. (citing VE Corp. v.

Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam)). “Put simply, a case is moot when

the court’s action on the merits cannot affect the parties’ rights or interests.” Id.

Forte does not dispute that its requested declarations are moot—the Comptroller

dismissed the administrative redetermination proceeding after Forte met the Comptroller’s

requirements, including the requirement that Forte file the underlying suit. Instead, Forte asks us

to apply the “capable of repetition yet evading review” exception to the mootness doctrine because

“a taxpayer would never be able to challenge the Comptroller’s improper dismissal conduct in

district court because it must first dismiss its administrative claims before it can proceed with its

protest suit.” We decline to do so in this case.

The “capable of repetition yet evading review” exception to mootness “applies only

in rare circumstances.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). To invoke the

exception, a plaintiff must show: (1) the challenged action was too short in duration to be litigated

fully before the action ceased or expired; and (2) a reasonable expectation exists that the same

complaining party will be subjected to the same action again. Id. Forte has not met its burden to

show the exception applies. First, it has not shown, or even alleged, that it has a reasonable

expectation that it will be subjected to the same action again. See Heckman, 369 S.W.3d at 165

(noting that plaintiff must show that “the claim is capable of repetition as to him”). Moreover, it

has not shown how the challenged action—i.e., the Comptroller’s refusal to allow Forte to

unilaterally dismiss its administrative hearing—is of such a short duration that it could not be

litigated fully before the action ceased or expired. We also note that, to the extent that it is

complaining about the Comptroller’s construction and application of former Rule 1.39, Forte has

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not explained why it could not challenge that rule under the Administrative Procedure Act, see

Tex. Gov’t Code § 2001.038 (waiving sovereign immunity for declaratory action challenging the

“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”). Accordingly, we hold that Forte’s ultra vires claims related to the administrative

proceeding are moot and, thus, the district court lacks jurisdiction over them.

Comptroller’s assessment of taxes

The Comptroller asserts that the district court also lacks jurisdiction over Forte’s

remaining ultra vires claims, which challenge the Comptroller’s authority to assess sales and use

tax on Forte’s electronic-payment service. These claims are brought under the UDJA and seek

declarations (a), (b), (c), (e), and (f) described above.

Assuming without deciding that Forte has properly pleaded these ultra vires claims

against the Comptroller, we nevertheless conclude that the district court lacks jurisdiction to hear

them because of the redundant-remedies doctrine. “Under the redundant remedies doctrine, courts

will not entertain an action brought under the UDJA when the same claim could be pursued through

different channels.” See Patel v. Texas Dep’t of Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015)

(citing Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 200 (Tex. 2007)).

“The focus of the doctrine is on the initiation of the case, that is, whether the Legislature created a

statutory waiver of sovereign immunity that permits the parties to raise their claims through some

avenue other than the UDJA.” Id.

The Legislature has created an explicit waiver of sovereign immunity for challenges

to the Comptroller’s assessment of taxes. See EBS, 601 S.W.3d at 749–50 (noting that Legislature

has waived the State’s sovereign immunity for only three types of tax challenges—protests,

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injunctions, and refunds (citing Tex. Tax Code §§ 112.001, .051, .101, .108)). If Forte were to

prevail on these ultra vires claims, its relief would be declarations establishing that it is not liable

for the tax assessment imposed by the Comptroller because its form of business is not subject to

Texas sales and use taxes. This is essentially the same relief that Forte will obtain if it prevails in

its tax-protest suit—i.e., a judgment against the Comptroller for recovery of the taxes assessed

against it because Forte’s form of business is not subject to Texas sales and use taxes. Therefore,

Forte already has a statutory channel by which to obtain the relief it seeks, and any remedies it

could obtain through an ultra vires suit against the Comptroller would be redundant. Therefore,

the district court lacks jurisdiction over Forte’s ultra vires claims related to the Comptroller’s

assessment of taxes. See McLane Co. v. Texas Alcoholic Beverage Comm’n, 514 S.W.3d 871, 877

(Tex. App.—Austin 2017, pet. denied) (holding that trial court lacked jurisdiction over ultra vires

claims because of redundant-remedies doctrine).

CONCLUSION

Because the district court lacks subject-matter jurisdiction over Forte’s UDJA

statutory-construction claims and ultra vires claims, we reverse the district court’s order denying

the Comptroller’s plea to the jurisdiction and render judgment dismissing Forte’s UDJA statutory-

construction claims and ultra vires claims.

__________________________________________

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Triana and Smith

Reversed and Rendered

Filed: December 9, 2020

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