Greg Abbott, in His Official Capacity as Governor of the State of Texas John Scott, in His Official Capacity as Secretary of State of Texas The State of Texas v. Mexican American Legislative Caucus, Texas House of Representatives Roland Gutierrez Sarah Eckhardt Ruben Cortez, Jr. Tejano Democrats

Supreme Court of Texas

══════════

No. 22-0008

══════════

Greg Abbott, in His Official Capacity as Governor of the

State of Texas; John Scott, in His Official Capacity as

Secretary of State of Texas; and the State of Texas,

Appellants,

v.

Mexican American Legislative Caucus, Texas House of

Representatives; Roland Gutierrez; Sarah Eckhardt;

Ruben Cortez, Jr.; and Tejano Democrats,

Appellees

═══════════════════════════════════════

On Direct Appeal from the

250th District Court of Travis County, Texas

═══════════════════════════════════════

Argued March 23, 2022

JUSTICE LEHRMANN delivered the opinion of the Court, in which

Justice Devine, Justice Busby, Justice Bland, Justice Huddle, and

Justice Young joined.

CHIEF JUSTICE HECHT filed a dissenting opinion, in which Justice

Boyd and Justice Blacklock joined.

Two sets of plaintiffs—the Mexican American Legislative Caucus

(MALC) and a group of plaintiffs we and the parties refer to as the

Gutierrez Plaintiffs—sued various State defendants claiming that the

recently enacted laws reapportioning Texas’s legislative districts violate

Article III, Sections 26 and 28 of the Texas Constitution. Those now-

consolidated cases come to us on direct appeal of the trial court’s order

largely denying the defendants’ pleas to the jurisdiction. The

defendants challenge jurisdiction on multiple grounds, including

mootness, lack of standing, and sovereign immunity. We hold: (1) the

claims are not moot; (2) MALC lacks associational standing to pursue

its claims; (3) at least one of the Gutierrez Plaintiffs has standing to

pursue each claim against a proper defendant, but not the State of

Texas; (4) the Gutierrez Plaintiffs’ Section 26 claim is not barred by

sovereign immunity; (5) the Gutierrez Plaintiffs’ Section 28 claim is

barred by sovereign immunity; and (6) the Gutierrez Plaintiffs should

have the opportunity to replead their Section 26 claim against a proper

defendant. We reverse the trial court’s order in part, dismiss MALC’s

claims and the Gutierrez Plaintiffs’ Section 28 claim for lack of

jurisdiction, and remand the case to the trial court.

I. Background

Under federal law, the U.S. Census Bureau is required to release

a census of the population on the first day of April every ten years. 13

U.S.C. § 141(a). Texas uses this data to reapportion its legislative

districts in accordance with the United States and Texas Constitutions.

See Reynolds v. Sims, 377 U.S. 533, 577 (1964) (holding that “the Equal

Protection Clause requires that a State make an honest and good faith

effort to construct districts, in both houses of its legislature, as nearly of

equal population as is practicable”); TEX. CONST. art. III, § 28 (“The

2

Legislature shall, at its first regular session after the publication of each

United States decennial census, apportion the state into senatorial and

representative districts, agreeable to the provisions of Sections 25 and

26 . . . .”); id. art. III, § 26 (governing apportionment of legislative

districts among counties).

In 2021, the COVID-19 pandemic caused the Census Bureau to

miss the April 1 deadline for release of the data from the 2020 census,

and the Bureau published that data on September 16, 2021. In the

meantime, the Texas Legislature’s 87th regular session ran from

January 12, 2021, to May 31, 2021, and thus concluded several months

before the data’s release. On September 7, 2021, Governor Greg Abbott

called a special session of the Legislature to commence on September 20

and specifically address reapportionment.

During that special (third called) session, the Legislature passed

H.B. 1 and S.B. 4, the two bills that reapportioned the districts for the

Texas House and Senate, respectively. The Governor signed the bills

into law on October 25. One of the complaints at issue relates to the

manner in which H.B. 1 adjusts the House districts within Cameron

County. Under the old map, House Districts 37 and 38 were wholly

contained within Cameron County, and House District 35 was shared

between Cameron and Hidalgo Counties. Under the new law,

District 38 remains wholly contained within Cameron County and

District 35 remains shared between Cameron and Hidalgo Counties, but

District 37 is now shared between Cameron and Willacy Counties.

As relevant here, two lawsuits challenging the reapportionment

laws were filed. First, on November 3, 2021, the Mexican American

3

Legislative Caucus, Texas House of Representatives (MALC), “the

nation’s oldest and largest Latino legislative caucus,” sued Governor

Abbott and Secretary of State John Scott in their official capacities,

challenging the constitutionality of H.B. 1. MALC alleged that H.B. 1

violates the so-called “county line rule” in Article III, Section 26 of the

Texas Constitution by providing only one district wholly contained

within Cameron County even though the county’s population is

sufficient to support two such districts. MALC sought a declaration that

H.B. 1 violates Section 26 and requested temporary and permanent

injunctions “enjoining the administration and oversight of upcoming

primary and general elections” under the unconstitutional law. The

Governor and Secretary petitioned the Chief Justice of this Court to

convene a special three-judge district court to hear the case. See TEX.

GOV’T CODE § 22A.001(a)(2) (authorizing the attorney general to file

such a petition in a suit against a state defendant involving the

apportionment of certain electoral districts). That petition was granted,

and the case was transferred to the three-judge court.

Shortly thereafter, on November 22, 2021, a second lawsuit

regarding the reapportionment laws was filed—this time against the

State of Texas—by two state senators (Roland Gutierrez and Sarah

Eckhardt), a candidate for House District 37 (Ruben Cortez Jr.), and the

Tejano Democrats (collectively, the “Gutierrez Plaintiffs”). The

Gutierrez Plaintiffs similarly alleged that H.B. 1 violates Article III,

Section 26, and they further alleged that both H.B. 1 and S.B. 4 violate

Article III, Section 28 because they were enacted before, rather than

“at,” the “first regular session after the publication of [the] United States

4

decennial census.” The Gutierrez Plaintiffs requested a declaration that

H.B. 1 and S.B. 4 are unconstitutional and sought to enjoin their

implementation. The three-judge district court transferred the second-

filed suit to itself and consolidated the causes. Id. § 22A.003(b).

The two sets of defendants filed pleas to the jurisdiction. The

Governor and Secretary argued that MALC lacked standing because it

had not established that the new House map injured MALC or any of its

members. They further argued that MALC failed to plead a viable claim

on the merits and thus failed to establish a waiver of sovereign

immunity. The State similarly argued that the Gutierrez Plaintiffs

lacked standing and that their claims were barred by sovereign

immunity. 1

The trial court held a combined evidentiary hearing on the pleas

to the jurisdiction and the plaintiffs’ motions for temporary injunctive

relief. As to MALC’s claims, the trial court denied the Governor and

Secretary’s plea and denied MALC’s motion. As to the Gutierrez

Plaintiffs’ claims, the trial court granted the State’s plea with respect to

the claims for injunctive relief, dismissing those claims, and denied the

plea with respect to the claims for declaratory relief. Thus, what

remains pending after the trial court’s order are both sets of plaintiffs’

claims for declaratory relief and MALC’s request for a permanent

injunction.

On December 7, 2021, the defendants filed a direct appeal to this

Court of the trial court’s order on the pleas to the jurisdiction. See TEX.

1 After the pleas to the jurisdiction were filed, MALC amended its

petition to add the State as a defendant but did not serve it with citation.

5

CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing an interlocutory

appeal from an order that grants or denies a plea to the jurisdiction by

a governmental unit); TEX. GOV’T CODE § 22A.006(a) (“An appeal from

an appealable interlocutory order or final judgment of a special three

judge district court is to the supreme court.”). 2 In their response to the

defendants’ statement of jurisdiction in this Court, the plaintiffs stated

that they were not “ask[ing] this Court to disturb the current election

cycle at this point in the litigation and in light of the Court’s opinion in

In re Khanoyan,” in which this Court explained the judicial limitations

on issuing relief that would disrupt an ongoing election process. See 637

S.W.3d 762, 764–66 (Tex. 2022). The plaintiffs further requested

expedited consideration of the case to “allow the parties time to litigate

the constitutionality of the 2021 maps in time for the 2023 regular

legislative session.” We granted the appeal.

The defendants argue that the district court erred in denying

their pleas to the jurisdiction and present three overarching grounds for

reversal: (1) the plaintiffs seek an improper advisory opinion because

“there is no longer a live controversy between the parties”; (2) the

plaintiffs lack standing; and (3) the plaintiffs’ claims are barred by

sovereign immunity. We address the grounds in the order presented.

2 The portions of the trial court’s order denying MALC’s motion for

temporary injunction and granting the State’s plea to the jurisdiction as to the

Gutierrez Plaintiffs’ claims for injunctive relief were not appealed and are not

before us.

6

II. Standard of Review

A plea to the jurisdiction is a “dilatory plea” that challenges a

court’s jurisdiction to hear the case. Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 635 (Tex. 2012). A plea may challenge whether

the plaintiff has alleged facts that affirmatively demonstrate

jurisdiction or the existence of those jurisdictional facts. Id. For the

former, we resolve the plea based solely on the pleadings. Id. For the

latter, our review mirrors that of a traditional motion for summary

judgment. Id.

III. Mootness

Under the Texas Constitution’s separation-of-powers doctrine,

courts lack jurisdiction to issue an advisory opinion, the “distinctive

feature” of which is that it “decides an abstract question of law without

binding the parties.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444 (Tex. 1993); TEX. CONST. art. II, § 1. We thus lack

jurisdiction to issue an opinion on a moot controversy. See Heckman v.

Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Summarizing

black-letter law on mootness, we explained in Heckman that “[a] case

becomes moot if, since the time of filing, there has ceased 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. (citations omitted). “Put simply,” we

continued, “a case is moot when the court’s action on the merits cannot

affect the parties’ rights or interests.” Id. However, mootness is difficult

to establish. The party asserting it must prove that intervening events

make it “impossible for a court to grant any effectual relief whatever to

7

the prevailing party.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161

(2016) (emphases added) (citation omitted).

The defendants here assert that this controversy is moot because,

by expressly disclaiming in this Court any request for relief that would

disturb the current (2022) election cycle, the plaintiffs effectively

concede that they seek the Court’s opinion about the constitutionality of

H.B. 1 and S.B. 4 solely to guide the Legislature when it again

undertakes reapportionment during the 2023 regular session. Such an

opinion, the defendants assert, would clearly be advisory (or, said

differently, would resolve a moot controversy) because it would have no

effect on the laws being challenged in this suit. 3

The plaintiffs disagree with both the defendants’ characterization

of the plaintiffs’ “disclaimer” and its effect on the existence of a live

controversy. The plaintiffs contend that they merely clarified in their

response to the statement of jurisdiction, filed on January 18, 2022, that

they were not asking this Court to enjoin the March 2022 primary

because (1) they did not appeal the trial court’s interlocutory rulings

denying or dismissing injunctive relief and (2) Khanoyan foreshadowed

the futility of such a request. The plaintiffs further argue that their

existing claims for declaratory relief invalidating H.B. 1 and S.B. 4 are

live disputes, and that the trial court retains jurisdiction to declare the

bills unconstitutional and then consider the propriety of permanent

injunctive relief. And to the extent that injunctive relief before the 2022

3 The defendants do not expressly use the word “moot,” but they

impliedly do so by asserting that “there is no longer a live controversy between

the parties.”

8

general election is unavailable under Khanoyan, the plaintiffs contend

that such relief is nevertheless available to enjoin the challenged laws

in future elections, as the defendants’ assertion that the Legislature will

enact new reapportionment laws during the 2023 session is mere

speculation.

In light of the plaintiffs’ clarification of the relief they continue to

seek in this suit, we cannot conclude, as the dissent does, that they have

clearly abandoned any request for relief that relates to the 2022 election.

Post at 2 (Hecht, C.J., dissenting). That said, we recognize that, because

the primary has already taken place, the likelihood of obtaining judicial

relief that would disturb the general election is exceedingly low. See

Khanoyan, 637 S.W.3d at 767 (“Both because of where we are in the

electoral calendar [the primary process had already begun] and because

of the likelihood of substantial harm that would flow from any judicial

action, the relief Relators seek [invalidating challenged precinct maps]

transgresses this Court’s settled limits on judicial interference with

elections.”). But courts are not without jurisdiction to grant such relief,

and we cannot say that it is “impossible” that a judgment would “grant

any effectual relief whatever” to the plaintiffs. Campbell-Ewald, 577

U.S. at 161. The plaintiffs challenge existing statutes and seek

declaratory and injunctive relief in the trial court regarding the effect of

those statutes on the 2022 election. We hold that a live controversy

remains and turn to whether the plaintiffs have standing to assert their

claims.

9

IV. Standing

We recently reiterated that the “Texas standing requirements

parallel the federal test for Article III standing,” such that a “plaintiff

must allege personal injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the requested relief.” In

re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (citation omitted); Allen v.

Wright, 468 U.S. 737, 751 (1984). To establish standing, then, a plaintiff

must show (1) an “injury in fact” that is (2) “fairly traceable” to the

defendant’s challenged action and (3) redressable by a favorable

decision. Abbott, 601 S.W.3d at 808; Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992). Such a showing ensures the existence of “a real

controversy between the parties” that “will be actually determined by

the judicial declaration sought.” Brown v. Todd, 53 S.W.3d 297, 305

(Tex. 2001) (citation omitted).

A. MALC’s Associational Standing

MALC seeks a declaration that H.B. 1 violates Article III,

Section 26 of the Texas Constitution and an injunction restraining the

defendants from conducting elections under that law. MALC claims

“associational standing” to pursue those claims on behalf of its members.

Adopting the United States Supreme Court’s standard for associational

standing, we have held that “an association has standing to sue on

behalf of its members when ‘(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual

members in the lawsuit.’” Tex. Ass’n of Bus., 852 S.W.2d at 447 (quoting

10

Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343

(1977)). In other words, associational standing requires establishing

everything that an individual plaintiff would have to establish, plus

satisfying additional burdens that apply only to associational standing.

To properly address MALC’s associational standing, we begin with a

discussion of the constitutional provision at issue and the dispute about

what it requires.

Article III, Section 26 of the Texas Constitution, the source of the

county-line rule, was adopted in 1876 and provides:

The members of the House of Representatives shall be

apportioned among the several counties, according to the

number of population in each, as nearly as may be, on a

ratio obtained by dividing the population of the State, as

ascertained by the most recent United States census, by

the number of members of which the House is composed;

provided, that whenever a single county has sufficient

population to be entitled to a Representative, such county

shall be formed into a separate Representative District,

and when two or more counties are required to make up the

ratio of representation, such counties shall be contiguous

to each other; and when any one county has more than

sufficient population to be entitled to one or more

representatives, such representative or representatives

shall be apportioned to such county, and for any surplus of

population it may be joined in a Representative District

with any other contiguous county or counties.

TEX. CONST. art. III, § 26. In Smith v. Craddick, we discussed the

parameters of this provision:

Representation in the House of Representatives is thereby

apportioned among the counties of the state according to

population. If the population of a county is so small as not

to entitle that county to one representative, two or more

contiguous Counties may be joined in a separate district.

11

When one county has a population which exceeds that

which entitles it to one or more representatives, that

County is to be apportioned to what it is entitled, and the

County may be joined with contiguous counties for the

district representative to which the surplus population

entitles it.

471 S.W.2d 375, 376 (Tex. 1971). Under Section 26, barring any conflict

with the Fourteenth Amendment’s requirement of “substantially equal

legislative representation for all citizens of a state”—i.e., the one-person,

one-vote rule, which is not at issue here—apportionment of House

districts is “by county,” and when the population is sufficient, district

lines generally follow county lines. Id. at 377 (citing Reynolds, 377 U.S.

at 533). In requiring that House districts be apportioned by county,

Section 26 serves a markedly different purpose than the laws that

ensure voting rights are not abridged on the basis of race. See, e.g.,

Voting Rights Act § 2, 52 U.S.C. § 10301(a).

The parties agree that when a county’s population exceeds the

number required to make up a single House district (dubbed the “ideal

district size”), at least one district must be wholly contained within the

county’s borders. They part ways on how the provision applies when a

county’s population exceeds the number required to make up multiple

districts—that is, when the population is more than twice the ideal

district size. Cameron County, for example, has a population of 421,017,

which is 2.17 times the current ideal district size of 194,303. MALC

asserts that for a county with that population, two districts must be

wholly contained within its borders (again, absent conflict with the one-

person, one-vote requirement). The Governor and Secretary respond

that so long as one district is wholly contained within that county and

12

any additional districts are joined only with contiguous counties,

Section 26 is satisfied.

With those clarifications, we turn to MALC’s associational

standing to pursue a Section 26 claim. The Governor and Secretary

argue that MALC meets neither the first nor second requirement to

establish this type of standing. As to the first—its members would

otherwise have standing to sue in their own right—they argue that

MALC has identified no individual members who have suffered a

particularized injury from the allegedly unconstitutional law. MALC

responds that (1) its petition generally states that its members include

the Texas House Representatives who represent and are residents of the

challenged districts and (2) one of its members, Representative Alex

Dominguez, currently represents House District 37 but, because of

reapportionment under H.B. 1, is ineligible to run for reelection.

Representative Dominguez is the only specifically named MALC

member. His ineligibility to run for reelection, we agree, could

constitute a particularized injury traceable to the challenged action if

there were any indication that he intended to run for that seat but was

prevented from doing so. However, as the Governor and Secretary note,

Representative Dominguez is currently running for a state Senate seat,

which is not affected by the county-line rule, and there is no allegation

or evidence that he would have run for reelection in the House rather

than for a Senate seat but for H.B. 1. Thus, the fact that Representative

Dominguez no longer resides in District 37 does not establish a concrete,

particularized injury traceable to H.B. 1’s reapportionment of the House

districts. Moreover, Representative Dominguez resides in the new

13

District 38, which remains wholly within Cameron County. Our

disposition today makes it unnecessary to resolve whether residents of

a district that is wholly contained within a single county could satisfy

the injury-in-fact prong of standing, but at the very least, a Cameron

County resident of one of the other two districts would have a far less

abstract injury.

MALC fails to identify any other specific individual members.

Instead, it generally claims that its members who are residents of

Cameron County “have an interest in maintaining Cameron County’s

representational power, which is embodied by the Texas Constitution’s

county line rule,” and “that power will be diluted by splitting Cameron

County unnecessarily into two districts extending in two different

directions.” The Governor and Secretary note that Cameron County

voters will still fully control two House districts, with 100% control of

District 38 and 89.1% of the voting-age population in District 37.

Accordingly, they argue, the reapportionment law has not caused any

resident to suffer “a ‘vote dilution’ injury.” MALC responds that

Cameron County residents, including two of its members, will

nevertheless suffer a concrete deprivation of their constitutional right to

two “whole state representative[s]” rather than “one whole state

representative and two partial representatives.” This harm, MALC

explains, is in the nature of “representational dilution” because “[t]he

residents of Texas counties have their practical interests served better

when their political representation is unified, rather than split apart.”

As an initial matter, we note that to establish associational

standing, general references to members are usually insufficient. See,

14

e.g., Summers v. Earth Island Inst., 555 U.S. 488, 498–99 (2009) (“Th[e]

requirement of naming the affected members has never been dispensed

with in light of statistical probabilities, but only where all the members

of the organization are affected by the challenged activity.”). MALC does

not claim that all its members are injured by the alleged

“representational dilution,” and indeed it is possible that some members

might be affected in contradictory ways, as we discuss below in assessing

the related question of whether the litigation is germane to the

organizational purpose. The mere likelihood that some member of an

association would have individual standing has never been enough. If

it were, the cases involving environmental standing would all have come

out differently. Lujan, for example, involved minute dissection of two

individual members’ standing. See 504 U.S. at 563–67. And in Sierra

Club v. Morton, the Court did not dispute that the Sierra Club surely

had some members who would have been aggrieved by the challenged

development; however, without saying who they were, the Sierra Club

could not satisfy the first requirement to establish associational

standing. 405 U.S. 727, 735 (1972).

These requirements may seem technical, but they are

fundamental. Without standing, the courts cannot proceed at all, and

the party who invokes the courts’ jurisdiction “bears the burden of

establishing these elements” of standing; it is not the duty of the other

side, or of the courts, to negate them. Lujan, 504 U.S. at 561. The lack

of specifically identified members—who are then subject to scrutiny to

ensure that they would in fact have standing on their own—calls into

15

question whether MALC has established the first prong of associational

standing.

Nonetheless, we can assume without deciding that MALC has

met this initial burden. Moreover, if MALC’s substantive interpretation

of Section 26 is correct, we agree that Cameron County’s residents are

being deprived of their right, under the Texas Constitution, to two

representatives fully devoted to serving the interests of those residents

rather than the residents of both Cameron County and a neighboring

county. That this harm is shared among county residents does not make

it a “generalized grievance” that cannot confer individual standing. See

id. at 575 (quoting United States v. Richardson, 418 U.S. 166, 171 (1974)

(holding that resting standing on a “generalized grievance” is

inconsistent with “the framework of Article III” because “the impact on

[the plaintiff] is plainly undifferentiated and ‘common to all members of

the public’”)). The Supreme Court has explained that such generalized

grievances involve harm that “is not only widely shared, but is also of

an abstract and indefinite nature—for example, harm to the ‘common

concern for obedience to law.’” Fed. Election Comm’n v. Akins, 524 U.S.

11, 23 (1998) (citation omitted). The harm at issue here is not abstract

but quite specific: Cameron County residents are allegedly entitled to

two whole representative districts within Cameron County but, under

H.B. 1, they have only one. If a Cameron County resident does not have

standing to pursue a Section 26 claim, we struggle to envision a plaintiff

who would.

That said, we recognize that standing requirements render some

constitutional violations particularly (and frustratingly) unamenable to

16

challenge. Richardson, cited above, illustrates this point. There, the

plaintiff argued that keeping CIA expenditures secret violated the

U.S. Constitution’s requirement that such amounts be made public. 418

U.S. at 168. The Supreme Court held that Richardson did not have

standing despite agreeing with the contention that “if [he] is not

permitted to litigate this issue, no one can do so.” Id. at 179. Voting in

a lawfully apportioned district, however, is a personal right;

participating in the political process is a fundamental individual liberty,

not merely a generic and undifferentiated one. See, e.g., Khanoyan, 637

S.W.3d at 763. Section 26 provides the kind of right that someone will

be able to vindicate.

However, even assuming that MALC has alleged that at least one

of its members has individual standing to pursue a Section 26 claim,

associational standing requires more. The Governor and Secretary also

argue that MALC fails to meet the second requirement of associational

standing: that the interests it seeks to protect are germane to its

purpose. Tex. Ass’n of Bus., 852 S.W.2d at 447. We agree.

Importantly, to satisfy this element, the interest that is germane

to the organization’s purpose “must also relate to the interest by which

its members would ‘have standing to sue in their own right.’” Save Our

Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 886 (Tex.

App.—Austin 2010, pet. denied); Mosaic Residential N. Condo. Ass’n v.

5925 Almeda N. Tower, L.P., No. 01-16-00414-CV, 2018 WL 5070728, at

*12 (Tex. App.—Houston [1st Dist.] Oct. 18, 2018, no pet.). For example,

in Save Our Springs Alliance, an organization (SOS Alliance) that was

formed to protect the Edwards Aquifer and to prevent and reverse

17

pollution of Barton Springs claimed associational standing to challenge

a city’s development agreements based on injuries to SOS Alliance’s

members that were unrelated to increased pollution to the aquifer, such

as increased traffic and decreased property values. 304 S.W.3d at 886.

Because the members’ interests that gave them individual standing to

bring the claims asserted were not themselves germane to SOS

Alliance’s purpose, SOS Alliance could not satisfy the second prong of

associational standing. Id. at 886–87. By contrast, in Hays County v.

Hays County Water Planning Partnership, the threatened injuries that

allowed the members of a community group to sue the county in their

own right to invalidate a transportation plan—involving loss of property

values based on the proposed development—were the specific “kinds of

community issues” that the group was created to address. 106 S.W.3d

349, 357 (Tex. App.—Austin 2001, no pet.). Accordingly, the court held

that the members’ interests the group sought to protect through its

lawsuit were germane to its organizational purpose. Id.

We agree with this required connection between the first and

second prongs of associational standing. Without it, “an association that

has an interest against a challenged activity [could] obtain standing by

adding a member who has individual standing to sue based on his own

unrelated interest against the same activity.” Save Our Springs All.,

304 S.W.3d at 886. MALC has failed to make the requisite connection.

MALC alleges that its mission includes “maintaining and

expanding Latino representation across elected offices in Texas.” It

further alleges that, although all three districts lying wholly or partly

within Cameron County contain a Hispanic majority, H.B. 1 has

18

nevertheless reduced the Latino population percentage in two of those

districts. In this way, MALC explains, its Section 26 claims are

“germane to its organizational purpose.” But as MALC itself asserts,

the injury that gives a Cameron County resident individual standing to

pursue a Section 26 claim is the deprivation of the right to have two

“whole state representative[s]” representing the interests of the county

and its residents. That injury is shared by county residents regardless

of race, and the county-line rule applies across the State irrespective of

county geography or demographics. Indeed, one can hypothesize an

application of Section 26 that would objectively cut against MALC’s

stated purposes by preventing the placement of Latinos from different

counties into the same district, thus diffusing rather than enhancing

their political might. Thus, the injury that gives some MALC members

standing to sue in their own right as Cameron County residents for a

Section 26 violation is unrelated to MALC’s organizational purpose.

MALC also asserts that, as a legislative caucus whose members

are Texas House Representatives, it has a general interest in opposing

unconstitutional legislation. However, MALC does not argue here that

its members have standing to sue in their own right based on their

duties as legislators, so again, the requisite connection between the

interest giving rise to the members’ standing and the interest that is

germane to MALC’s purpose is lacking.

Accordingly, MALC does not have associational standing to bring

its claims. Because MALC does not assert any other basis for standing,

its claims must be dismissed for lack of subject matter jurisdiction.

19

B. The Gutierrez Plaintiffs’ Standing

As noted, like MALC, the Gutierrez Plaintiffs seek a declaratory

judgment that H.B. 1 violates Section 26’s county-line rule. They also

seek a declaratory judgment that both H.B. 1 and S.B. 4 violate

Article III, Section 28. Because Section 28 requires the Legislature to

apportion the senatorial and representative districts “at its first regular

session after the publication of each United States decennial census,”

the Gutierrez Plaintiffs assert that the Legislature violated that

provision by undertaking the reapportionment process during an earlier

special session. Although there are four Gutierrez Plaintiffs, they

defend the standing of only two—one for each claim. See Heckman, 369

S.W.3d at 152 n.64 (explaining that “where there are multiple plaintiffs

in a case, who seek injunctive or declaratory relief (or both), who sue

individually, and who all seek the same relief . . . the court need not

analyze the standing of more than one plaintiff—so long as that plaintiff

has standing to pursue as much or more relief than any of the other

plaintiffs”).

First, they argue that Ruben Cortez Jr., a candidate for House

District 37, has standing to pursue the Section 26 claim. They contend

that under H.B. 1, District 37 now comprises a much larger geographic

territory than before, requiring a greater expenditure of campaign

resources. They further argue that Cortez has standing as a resident of

Cameron County and District 37, which is one of the districts that is not

wholly contained within Cameron County. As discussed above with

regard to the first element of MALC’s associational standing, we agree

that Cortez has sufficiently alleged a particularized injury as a Cameron

20

County (and, notably, as a District 37) resident. We therefore need not

address whether he has alleged a sufficient injury as a candidate for

office. 4

Next, the Gutierrez Plaintiffs argue that Roland Gutierrez, a

state senator elected in 2020, has standing to pursue a Section 28 claim.

State senators are elected to serve four-year terms; however, following

reapportionment, all senators must stand for reelection under the new

district maps. TEX. CONST. art. III, § 3. The Gutierrez Plaintiffs assert

that because “the first legitimate opportunity for the Legislature to

reapportion is in 2023 [at the first regular session after the publication

of the decennial census], Senator Gutierrez’s tenure is protected until

2024, when his four-year term expires.” The Legislature’s

unconstitutional apportionment during a special session in 2021, they

argue, requires Senator Gutierrez to run for reelection in 2022 and thus

deprives him of his right to a four-year term. The State responds that

Senator Gutierrez’s “injury” of being forced to run for reelection before

the expiration of his current term is traceable not to any wrongdoing by

the State, but to the Texas Constitution’s requirement that senators

stand for reelection when districts are reapportioned.

On this point, we agree with the Gutierrez Plaintiffs. It is true

that the Texas Constitution requires Senator Gutierrez to run for

reelection, but the basis of the Section 28 claim is that the circumstances

giving rise to that requirement would not have arisen if not for the

4We note that during the pendency of this cause, Cortez lost the

Democratic primary runoff election for House District 37. Accordingly, he no

longer has standing as a candidate to pursue the prospective relief he seeks.

21

allegedly unconstitutional reapportionment. That is sufficient for

standing purposes. See Bennett v. Spear, 520 U.S. 154, 168–69 (1997)

(explaining that traceability does not require the defendant’s actions to

be “the very last step in the chain of causation”).

The State further contends that the Gutierrez Plaintiffs’ alleged

injury is not traceable to or redressable by the State of Texas itself—the

only defendant against whom they asserted their claims—providing an

additional reason that they lack standing to pursue the declaratory

relief they request. Prior suits challenging reapportionment laws have

typically been brought against state officials like the Governor, whose

duties include ordering elections for officers of the state government and

members of the United States Congress, TEX. ELEC. CODE § 3.003(a)(1),

and the Secretary of State, who is the “chief election officer of the state,”

id. § 31.001(a). See Clements v. Valles, 620 S.W.2d 112, 113 (Tex. 1981)

(plaintiffs sought a declaration of the unconstitutionality of a

reapportionment bill and an injunction restraining the Governor,

Attorney General, and Secretary of State from conducting elections

pursuant to the bill); Smith, 471 S.W.2d at 375–76 (plaintiffs sought a

declaration of the unconstitutionality of a reapportionment bill and an

injunction restraining the Governor, Secretary of State, Chairman of the

Democratic Executive Committee, and County Judge and County Clerk

of Midland County from conducting elections pursuant to the bill). 5 The

lack of requested relief against “the State” in these cases makes sense

5In Perry v. Del Rio, another redistricting case, some of the plaintiffs

named the State as a defendant but ultimately nonsuited it. 66 S.W.3d 239,

246 (Tex. 2001).

22

because the State itself does not enforce election laws. See Lewis v.

Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (holding that the

plaintiffs, in challenging the constitutionality of a statute voiding local

laws requiring compensation higher than the minimum wage, lacked

standing under Lujan as to their claims against the attorney general,

who had no authority to enforce the complained-of statute).

Though we have not been presented with the precise issue, our

courts of appeals have generally held that challenges to the

constitutionality of a statute are not properly brought against the State

in the absence of an “enforcement connection” between the challenged

provisions and the State itself. Paxton v. Simmons, 640 S.W.3d 588,

602–03 (Tex. App.—Dallas 2022, no pet. h.); Ector Cnty. All. of Bus. v.

Abbott, No. 11-20-00206-CV, 2021 WL 4097106, at *10 (Tex. App.—

Eastland Sept. 9, 2021, no pet.); see also Holt v. Tex. Dep’t of Ins.–Div. of

Workers Comp., No. 03-17-00758-CV, 2018 WL 6695725, at *5 (Tex.

App.—Austin Dec. 20, 2018, pet. denied) (holding, in suit challenging

the constitutionality of certain Labor Code provisions, that the State

was not a proper party to the lawsuit and affirming the trial court’s

dismissal of the State on a plea to the jurisdiction). In Paxton, the court

reversed the trial court’s denial of the plea to the jurisdiction filed by the

State and the Attorney General in a suit involving a constitutional

challenge to a Texas Property Code provision. 640 S.W.3d at 592–93.

The plaintiff argued that the “State of Texas, via its legislature, directly

passed the challenged statute and thus appears to have the most

relevant connection to defending the constitutionality of that law.” Id.

at 603. However, in light of the absence of any enforcement authority

23

by the State, the court held that the plaintiff failed to allege sufficient

facts to satisfy the traceability element of standing. Id.; see Lujan, 504

U.S. at 560–61 (the injury must be “fairly traceable” to the defendant’s

challenged action). Similarly, in Ector County Alliance, which involved

a challenge to the constitutionality of the Texas Disaster Act and certain

executive orders issued under it, the court of appeals held that the

plaintiff lacked standing to seek relief against the State and the

Governor where it “did not plead that the Governor or the State ever

threatened to enforce any executive order [issued under the Act], and

the Governor and the State have conceded that they do not have the

authority to do so.” 2021 WL 4097106, at *10.

Notably, Texas law requires that, in a lawsuit in which the

constitutionality of a state statute is challenged and the attorney

general is not a party or counsel, notice must be served on the attorney

general, who may intervene in the suit without waiving the State’s

immunity. TEX. GOV’T CODE § 402.010. Similarly, in a proceeding

brought under the Uniform Declaratory Judgments Act to declare a

statute, ordinance, or franchise unconstitutional, “the attorney general

of the state must . . . be served with a copy of the proceeding and is

entitled to be heard,” but neither the attorney general nor the State is

required to be made a party to the proceeding. TEX. CIV. PRAC. & REM.

CODE § 37.006(b). 6 This is consistent with the conclusion that the State

6 By contrast, “[i]n any proceeding [under the UDJA] that involves the

validity of a municipal ordinance or franchise, the municipality must be made

a party.” TEX. CIV. PRAC. & REM. CODE § 37.006(b) (emphasis added); see Holt,

2018 WL 6695725, at *5 (discussing the meaningful distinction between the

24

is not automatically a proper defendant in a suit challenging the

constitutionality of a statute merely because the Legislature enacted it. 7

Holt, 2018 WL 6695725, at *5; cf. California v. Texas, 141 S. Ct. 2104,

2114–15 (2021) (holding that the plaintiffs lacked standing to challenge

an unenforceable statute).

We recognize that the Fifth Circuit has held to the contrary in

addressing a challenge to a Texas statute establishing the requirements

and procedures for a voter needing assistance to vote. OCA-Greater

Houston v. Texas, 867 F.3d 604, 607, 613 (5th Cir. 2017). The plaintiff

in OCA sued both the State and the Secretary of State, and the court

held that the plaintiff had standing to sue both defendants, summarily

stating that “[t]he facial invalidity of a Texas election statute is, without

question, fairly traceable to and redressable by the State itself and its

Secretary of State.” Id. at 613. But while the Fifth Circuit explained

the basis for its conclusion as to the Secretary of State—the

“enforcement connection” to the statute was satisfied considering the

Secretary’s position as “the ‘chief election officer of the state’ [who] is

instructed by statute to ‘obtain and maintain uniformity in the

application, operation, and interpretation of this code and of the election

UDJA’s requirement that a municipality be “made a party” and its

requirement that the Attorney General be “served with a copy of the

proceeding”).

7 In discussing the UDJA’s limited waiver of immunity for claims

challenging the validity of statutes, we have explained that the waiver extends

to “the relevant governmental entities.” City of El Paso v. Heinrich, 284 S.W.3d

366, 373 n.6 (Tex. 2009). The identity of the relevant governmental entity for

waiver purposes necessarily depends on the statute being challenged.

25

laws outside this code’”—it provided no such analysis with respect to the

State itself. Id. at 613–14 (internal citations omitted). Given the

conclusory nature of the court’s determination of standing as to the

claims against the State, as well as the fact that another defendant with

the proper enforcement connection to the statute had been named in

that case, we decline to follow OCA’s bare holding here.

As the State itself has no enforcement authority with respect to

election laws, and the State is the only defendant against which the

Gutierrez Plaintiffs seek a declaration regarding the constitutionality of

those laws, the Gutierrez Plaintiffs have failed to meet the traceability

element of standing. However, if the pleadings “do not affirmatively

demonstrate incurable defects in jurisdiction,” we allow plaintiffs an

opportunity to amend. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226–27 (Tex. 2004). Declaratory-judgment claims

challenging the validity of a statute may be brought against the relevant

governmental entity. And again, our case law is replete with

reapportionment challenges brought against proper defendants like the

Governor and the Secretary of State. E.g., Clements, 620 S.W.2d at 113;

Smith, 471 S.W.2d at 375–76.

The State asserts that incurable defects in jurisdiction exist for

three reasons, two of which we have already rejected (that the plaintiffs

seek an advisory opinion and lack a cognizable injury in fact). We turn

to the third—sovereign immunity—to determine whether the case must

be dismissed rather than remanded.

26

V. Sovereign Immunity

Although the UDJA generally waives immunity for declaratory-

judgment claims challenging the validity of statutes, we have held that

“immunity from suit is not waived if the constitutional claims are

facially invalid.” Klumb v. Houston Mun. Emps. Pension Sys., 458

S.W.3d 1, 13 (Tex. 2015). The State asserts that both constitutional

claims are facially invalid and thus barred by immunity. Whether that

is so hinges on our interpretation of the provisions at issue. We recently

reaffirmed that “[o]ur guiding principle when interpreting the Texas

Constitution is to give effect to the intent of the voters who adopted it.”

Degan v. Bd. of Trs. of Dall. Police & Fire Pension Sys., 594 S.W.3d 309,

313 (Tex. 2020). In doing so, we “presume that the framers carefully

chose the language,” “interpret their words accordingly,” and “may

consider contextual factors such as ‘the history of the legislation, the

conditions and spirit of the times, the prevailing sentiments of the

people, the evils intended to be remedied, and the good to be

accomplished.’” Id. (quoting Harris Cnty. Hosp. Dist. v. Tomball Reg’l

Hosp., 283 S.W.3d 838, 842 (Tex. 2009)).

We also emphasize, however, that our analysis of these

constitutional provisions arises as part of our consideration of

jurisdiction. 8 This Court always has jurisdiction to determine its own,

8 Cf., e.g., In re Lazy W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016)

(“Governmental immunity from suit ‘implicates a court’s subject-matter

jurisdiction over pending claims, and without jurisdiction the court cannot

proceed at all in any cause’. The trial court had the obligation to consider

the . . . assertion of immunity when the plea to the jurisdiction was filed. We

27

and the lower courts’, jurisdiction. Houston Mun. Emps. Pension Sys. v.

Ferrell, 248 S.W.3d 151, 158 (Tex. 2007). As in every Texas case

involving sovereign immunity, this jurisdictional inquiry touches the

merits because, as noted, courts lack jurisdiction to proceed if the claim

appears “facially invalid.” Klumb, 458 S.W.3d at 13. We go no further

than necessary to determine jurisdiction.

A. Section 26

We first address the validity of the Gutierrez Plaintiffs’ claim for

a declaratory judgment that H.B. 1 violates the county-line rule in

Article III, Section 26. As discussed below, we hold that the claim is not

facially invalid and thus not barred by immunity. The ultimate merits

determination remains open for additional proceedings on remand if the

parties pursue it.

Section 26 begins: “The members of the House of Representatives

shall be apportioned among the several counties, according to the

number of population in each, as nearly as may be, on a ratio obtained

by dividing the population of the State, as ascertained by the most recent

United States census, by the number of members of which the House is

composed.” TEX. CONST. art. III, § 26. As discussed above, that “ratio”

yields what the parties label the “ideal district size,” which is 194,303

based on the 2020 census. Section 26 goes on to state that “whenever a

single county has sufficient population to be entitled to a

do not hold that a trial court must make an early ruling in every situation, only

that the trial court did not abuse its discretion in determining to do so here.”

(internal footnotes omitted)).

28

Representative, such county shall be formed into a separate

Representative District.” Id. The parties agree that under Section 26,

a county with a population of the ideal district size is entitled to its own

House district.

Section 26 then addresses what happens “when any one county

has more than sufficient population to be entitled to one or more

representatives”; in that case, “such representative or representatives

shall be apportioned to such county, and for any surplus of population it

may be joined in a Representative District with any other contiguous

county or counties.” Id. The parties again agree that if a county has a

population of more than the ideal district size but less than twice the

ideal district size, Section 26 entitles that county to one district wholly

within its borders, with the surplus population joined in a district with

a contiguous county or counties.

Cameron County, with a population of 421,017, is more than twice

the ideal district size. The State argues that H.B. 1 facially complies

with Section 26 because it apportions one House district entirely to

Cameron County—District 38—and joins the “surplus population” with

two “contiguous . . . counties” to form District 35 (with Hidalgo County)

and District 37 (with Willacy County). The Gutierrez Plaintiffs respond

that a county with Cameron’s population is entitled to two House

districts within its borders, with the surplus population joined with one

other adjacent district, not two.

We conclude that the Gutierrez Plaintiffs’ arguments are more

than sufficient to survive a sovereign-immunity challenge at this stage

of the proceedings. Section 26 states that a county with a sufficient

29

population for “more” than one representative is entitled to be

apportioned “such . . . representatives.” Then, any “surplus of

population” is joined with a “contiguous county or counties.” We

interpreted Section 26 in this manner in Smith, explaining:

[For] a county which already has one or more

representatives allocated thereto, it becomes permissible to

join a portion of that county (in which the surplus

population reside and which is not included in another

district within that county) with contiguous area of another

county to form a district. . . . It is still required that a

county receive the member or members to which that

county’s own population is entitled when the ideal district

population is substantially equalled or is exceeded.

471 S.W.2d at 378 (emphasis added). And we at least impliedly

endorsed this interpretation again in Clements, stating that “the failure

of the [reapportionment] plan in House Bill 960 to allot two

representative districts to Nueces County is not justified by the

necessity of complying with the Voting Rights Act” based on “evidence

of two alternate plans which created two districts wholly within Nueces

County and [complied with] the Voting Rights Act.” 620 S.W.2d at 115.

The State dismisses Clements as containing a “stray statement” that

should not “override the plain language of the constitutional text.” Even

if the statement was dicta, it is wholly consistent with the constitutional

text. By contrast, the State’s interpretation appears to stretch

Section 26’s language and undermine its structure. And the State’s

argument is cursory at best in responding to both (1) the provision’s

mandate to apportion “representatives” to a county with sufficient

population to be entitled to “more” than one and (2) the provision’s use

of the word “surplus” to describe the remaining population after those

30

representatives are apportioned. TEX. CONST. art. III, § 26 (emphasis

added).

As noted, we recognized in Smith that Section 26’s requirements

“are inferior to the necessity of complying with the Equal Protection

Clause.” 471 S.W.2d at 378. However, the burden is on the State to

show that noncompliance with Section 26 is “either required or justified

to comply with the one-man, one-vote decisions.” Id. Thus far, the State

has asserted no such justification here. The possibility that it could do

so in further proceedings does not render the Gutierrez Plaintiffs’

Section 26 claim facially invalid for purposes of whether immunity has

been waived. Accordingly, we hold that the State is not entitled to

dismissal of that claim on immunity grounds. 9

B. Section 28

Finally, we address whether the Gutierrez Plaintiffs’ Section 28

claim is barred by sovereign immunity. Article III, Section 28 was

amended to its current form in 1948 and states in pertinent part:

The Legislature shall, at its first regular session after the

publication of each United States decennial census,

9 The dissent accuses us of resolving the merits after concluding the

plaintiffs lack standing and giving those plaintiffs “exactly what they sued to

obtain: an opinion of this Court siding with their interpretation of [Section 26].”

Post at 3 (Hecht, C.J., dissenting). Saying we “resolve[] the merits” of the

claims is an erroneous characterization. Id. As we have emphasized, we

address only whether the claims are barred by sovereign immunity, an

additional jurisdictional hurdle presented by the State. The basis for the

State’s assertion of sovereign immunity is that the claims are facially invalid,

and we address the “merits” at this initial stage of the proceedings only to the

extent necessary to grant the opportunity to replead. We have not, as the

dissent implies, decided the ultimate outcome of the case.

31

apportion the state into senatorial and representative

districts, agreeable to the provisions of Sections 25 and 26

of this Article. In the event the Legislature shall at any

such first regular session following the publication of a

United States decennial census, fail to make such

apportionment, same shall be done by the Legislative

Redistricting Board of Texas . . . . Said Board shall

assemble in the City of Austin within ninety (90) days after

the final adjournment of such regular session. The Board

shall, within sixty (60) days after assembling, apportion

the state into senatorial and representative districts, or

into senatorial or representative districts, as the failure of

action of such Legislature may make necessary. . . . The

Supreme Court of Texas shall have jurisdiction to compel

such Board to perform its duties in accordance with the

provisions of this section by writ of mandamus or other

extraordinary writs conformable to the usages of law. . . .

TEX. CONST. art. III, § 28. The provision’s interpretive commentary

explains that although the Constitution had required reapportionment

after each decennial census since 1876, no mechanism existed to enforce

that obligation, and at the time of the 1948 amendment there had been

no reapportionment since 1921. Id. interp. commentary (West 2007).

Section 28 was thus amended to (1) create the Legislative Redistricting

Board (LRB) to accomplish that task if the Legislature failed to do so

and (2) give this Court jurisdiction to compel the LRB to fulfill its duties

if necessary. Id. The Gutierrez Plaintiffs’ Section 28 claim is premised

on the assertion that because the decennial census data was released

after the conclusion of the 2021 regular session, the Legislature could

not undertake reapportionment until the 2023 regular session—“the

first regular session following the release”—and thus violated Section 28

by doing so during an earlier special session.

32

In arguing that the Section 28 claim is facially invalid, the State

asserts that while Section 28 requires the Legislature to apportion

during the first regular session after publication of the census, it does

not forbid apportionment at other times and thus allows it. Further, the

State argues that interpreting Section 28 to foreclose reapportionment

under the circumstances would cause Section 28 to violate the U.S.

Constitution and thus open the State to malapportionment challenges

under federal law. The Gutierrez Plaintiffs respond that Section 28

imposes a single, binding schedule for reapportionment that begins with

the Legislature’s having the opportunity to act during the identified first

regular session after release of the census data. See Mauzy v. Legis.

Redistricting Bd., 471 S.W.2d 570, 573 (Tex. 1971) (holding that the

“first regular session following the publication” of the census

encompasses a regular session that was convened before publication so

long as publication occurred during the session).

Citing Walker v. Baker, the Gutierrez Plaintiffs rely on the

interpretive principle that “where a power is expressly given [by the

Constitution] and the means by which, or the manner in which, it is to

be exercised is prescribed, such means or manner is exclusive of all

others.” 196 S.W.2d 324, 327 (Tex. 1946) (citation omitted). However,

the Gutierrez Plaintiffs read too much into Walker and the principle it

espouses. The issue in that case was whether the Senate had the

authority to convene itself in order to exercise its express power to

consider the Governor’s recess appointments. Id. at 326. In holding it

did not, this Court examined the constitutional provisions governing the

timing and manner of legislative sessions; those provisions “furnish a

33

regular session of the Senate every two years and a special session at

such other times as the Legislature may be convened by the Governor.”

Id. at 328. We held that “[t]he means being thus expressly provided for

the Senate to be in session and thereby to have an opportunity to

consider the Governor’s appointments, it follows that any authority in

the Senate to convene itself at other times for that purpose is excluded.”

Id.

Importantly, we went on to reiterate another fundamental

constitutional principle: the Legislature is vested with “all legislative

power—the power to make, alter and repeal laws—not expressly or

impliedly forbidden by other provisions of the State and Federal

Constitutions.” Id.; see also Shepherd v. San Jacinto Junior Coll. Dist.,

363 S.W.2d 742, 743 (Tex. 1962) (noting that “an act of a state legislature

is legal when the Constitution contains no prohibition against it” and

that such a prohibition must be “express” or at least “clearly implied”).

Because that principle “applies to legislative power to be exercised by

the Legislature,” and “[c]onfirmation or rejection of the Governor’s

appointments is an executive function expressly delegated to the

Senate,” we rejected the argument that “the power asserted in this case

exists because not expressly prohibited.” Walker, 196 S.W.2d at 328

(emphasis added).

In apportioning legislative districts, the Legislature is exercising

its legislative power to make laws, not “a power ordinarily and

intrinsically belonging to another department of the government.” Id.

Section 28 provides a mechanism to ensure that the Legislature

exercises this power in a timely fashion following each decennial census,

34

but it neither expressly nor impliedly forecloses this power from being

exercised at another time. See Mumme v. Mars, 40 S.W.2d 31, 33 (Tex.

1931) (“[T]he enumeration in the Constitution of what the Legislature

may or shall do in providing a system of education is not to be regarded

as a limitation on the general power of the Legislature to pass laws on

the subject . . . .”).

The Gutierrez Plaintiffs argue that our precedent forecloses the

State’s reading of Section 28, but the case on which they rely does not

contain the broad holding they discern. In Mauzy, the LRB convened to

reapportion senatorial districts when the Legislature failed to do so

during the 1971 regular session, and the courts then struck down the

statute apportioning the representative districts. 471 S.W.2d at 572.

We were asked whether the LRB had jurisdiction to apportion the

districts in those circumstances. We first addressed the argument that

because the 1970 decennial census was published during—not before—

the 62nd Legislature’s regular session, the LRB lacked any authority to

reapportion under Section 28 even though the Legislature had failed to

complete that task. Id. at 572–73. We rejected the argument, holding

that the “first regular session following publication” of a census

encompasses a regular session that was convened before publication so

long as publication occurs “during the session.” Id. at 573. Holding

otherwise, we explained, “would require interpolation of the word

‘convened’ into the constitutional provision” and would defeat “the

overriding intent of the people in adopting Sec[tion] 28”: legislative

apportionment at the regular session convened in January following the

taking of the census (if publication was before or during the session),

35

“with jurisdiction in the [LRB] to complete the task in the event of

legislative failure.” Id.

Here, if the Legislature had failed to reapportion the legislative

districts during the special session called by the Governor, the LRB

would have no authority to “complete the task” because Section 28 is the

source of both the LRB’s power and this Court’s authority to order the

LRB to act. As Section 28 prescribes the means and manner in which

that power may be exercised—via a set schedule when the Legislature

fails to apportion at the “first regular session following the publication”

of the decennial census—such means and manner “is exclusive of all

others.” Walker, 196 S.W.2d at 327. The same cannot be said of the

Legislature’s exercise of its legislative power. 10

The Gutierrez Plaintiffs emphasize that since Section 28 was

adopted, the Legislature has never (until now) first reapportioned state

legislative districts during a special session. But neither has the

Legislature been faced with such a lengthy delay in the release of the

decennial census, and it is undisputed that the 2020 census data

rendered the then-existing district maps unconstitutional. That the

Legislature took unprecedented action to address an unprecedented

situation says nothing about whether it exceeded its authority in doing

so.

10 In Terrazas v. Ramirez, we held that Section 28 does not “prohibit[]

the Legislature from acting in later special or regular sessions after the

constitutional authority of the [LRB] has expired.” 829 S.W.2d 712, 726 (Tex.

1991). We were not asked, and did not opine on, whether Section 28 prohibits

the Legislature from acting in earlier sessions.

36

Finally, the Gutierrez Plaintiffs argue that the State’s

interpretation leads to absurd results. Noting that the Texas

Constitution provides for four-year senate terms but requires all

senators to run for reelection following reapportionment, TEX. CONST.

art. III, § 3, the Gutierrez Plaintiffs contend that Section 28 must be

read to cabin the Legislature’s reapportionment authority, lest the

Legislature seek to perpetually interfere with the four-year senate

terms by minimally altering districts every legislative session. For two

reasons, we disagree that this argument assists the Gutierrez Plaintiffs

in carrying their jurisdictional burden to show that their claim is not

facially invalid.

First, as the State argues, the mere “specter” of such

gamesmanship, which has never occurred, does not override the

Constitution’s plain text or the nature of the legislative authority that

the plaintiffs contend has been restricted. Second, the Gutierrez

Plaintiffs’ interpretation leads to the equally, if not more, absurd result

that the Legislature cannot reapportion legislative districts despite

their undisputed, facial unconstitutionality. And that result is not a

possibility; it is a factual certainty.

In sum, we hold that the Gutierrez Plaintiffs’ claim for

declaratory relief that H.B. 1 and S.B. 4 violate Article III, Section 28 is

facially invalid and thus barred by sovereign immunity. The trial court

therefore erred in denying the State’s plea to the jurisdiction on that

claim.

37

VI. Conclusion

Because MALC lacks associational standing to bring its claims,

the trial court erred in denying the Governor and Secretary’s plea to the

jurisdiction. We thus reverse that portion of the trial court’s judgment

and dismiss MALC’s claims for lack of jurisdiction. Further, the

Gutierrez Plaintiffs’ Section 28 claim is facially invalid and barred by

sovereign immunity, requiring its dismissal. However, plaintiff Ruben

Cortez Jr. has standing to pursue the Section 26 claim against a proper

State defendant, and sovereign immunity does not bar that claim.

Although he did not sue the proper defendant, requiring reversal of the

trial court’s order as to the Section 26 claim, that defect is curable.

Accordingly, we remand the case to the trial court to give the Gutierrez

Plaintiffs the opportunity to replead.

Debra H. Lehrmann

Justice

OPINION DELIVERED: June 24, 2022

38