# Hendee v. Dewhurst

> Texas Court of Appeals, 3rd District (Austin) · July 27, 2007 · 228 S.W.3d 354

URL: https://www.frixlaw.com/law-library/cases/9758385

## Case

- **Full name:** Edd HENDEE, Individually and as Executive Director of C.L.O.U.T., Appellant, v. David DEWHURST, Tom Craddick, State of Texas, and the Texas Legislative Budget Board, Appellees
- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** July 27, 2007
- **Citations:** 228 S.W.3d 354; 2007 WL 1518249
- **Precedential status:** Published
- **Opinion:** Concurrence by Patterson
- **Judges:** Patterson, Pemberton, Waldrop
- **Cited by:** 147 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9758385

## How later opinions describe it (automated extraction)

- explaining that, when a jurisdictional challenge implicates the merits of the plaintiff’s cause of action and the plea includes evidence, a standard of review mirroring that of a summary judgment is applied, citing Miranda, 133 S.W.3d at 227–28
- acknowledging that while jurisdictional issues generally can be raised sua sponte or on appeal, procedural limitations may come into play that render dismissal on sovereign immunity grounds erroneous or an abuse of discretion
- noting limits of appellate court’s sua sponte review of subject-matter jurisdiction, including that it adhere to jurisdictional review as set forth in Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.2004)
- recognizing that taxpayers have standing to sue in equity to enjoin the illegal expenditure of public funds, even without showing a distinct injury
- holding that an appellate court’s decision whether to take judicial notice of a fact on appeal is generally discretionary

## Opinion text

JAN P. PATTERSON, Justice,
concurring.
Were we to address the issues raised but not fully formed in this litigation, we would be speaking without portfolio. Tempting as it may be to speak to these important issues, the posture of this case shows the inefficiencies of using a plea to the jurisdiction, particularly without the production of essential evidence, to force the trial judge — and this Court — to make an ad hoc decision and give an advisory opinion that should be determined after a fuller ventilation of pleadings, evidence, and briefing in the district court than occurred here. By allowing parties to opt out of the procedures designed to allow full and fair consideration of these issues, we introduce greater uncertainty and gamesmanship into the system. The employment of standard procedural motions in the district court allows issues to be ruled upon first by the district court instead of *384 being raised for the first time on appeal without an adequate record. The only issue ripe for decision is the district court’s dismissal of the claim alleging unconstitutional delegation of legislative powers, and I join in this Court’s affirmance of that issue. I otherwise concur only in reversing and remanding this cause to the district court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758385. Public record. Not legal advice.