Petition for Writ of Certiorari — Mitchell Vexler, et al., Petitioners v. Don Spencer, Chief Appraiser, Denton Central Appraisal District, et al.

TABLE OF CONTENTS

Appendix A - Court of Appeals memorandum

opinion (May 1, 2025)

Appendix B - Court of Appeals judgment

(May 1, 2025)

Appendix C - July 10, 2024 order denying new

trial

Appendix D - May 8, 2024 final judgment

Appendix E - May 2, 2024 order granting

Spencer's plea

Appendix F - Supreme Court of Texas denial

orders

Appendix G - First Amended Petition

excerpts

Appendix H - Appellants' opening brief

excerpts

Appendix I - Appellants' reply brief excerpts

Appendix J - Petition for Review excerpts

Appendix K - Motion for Rehearing excerpts

Appendix L - Combined Reply excerpts

Appendix M - Motion for Reconsideration

excerpts

Appendix N - Constitutional and statutory

provisions

la

27a

29a

30a

31a

32a

34a

39a

45a

49a

56a

61a

65a

77a

APPENDIX A

In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

No. 02-24-00305-CV

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER

MOUND, LP, JIM SOLINSKI, AND GLORIA

SOLINSKI, Appellants

V.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF DENTON

CENTRAL APPRAISAL DISTRICT, AND

DENTON CENTRAL APPRAISAL

DISTRICT, Appellees

On Appeal from the 481st District Court Denton

County, Texas Trial Court No. 23-9526-481

MEMORANDUM OPINION

Appellants Mitch Vexler, Catherine Vexler,

Mavex Shops of Flower Mound, LP, Jim Solinski, and

Gloria Solinski—a group of Denton County property

owners1—sued Appellees Denton Central Appraisal

District and its Chief Appraiser, Don Spencer, in his

official capacity, under a variety of theories

challenging their property taxes and more broadly

attacking D CAD’s and Spencer’s implementing the

Texas Tax Code. DCAD and Spencer filed separate

pleas to the jurisdiction, raising the Property

Owners’ failure to sue under the legislatively

1 For ease and clarity, we refer to Appellants collectively as the

“Property Owners.”

mandated exclusive-remedies provision in the tax

code, see Tex. Tax Code Ann. § 42.09, and DCAD also

raised their lack of standing to challenge the

constitutionality of Section 23.01(b) of the Texas Tax

Code, see id. § 23.01(b). Because the trial court

correctly granted both jurisdictional pleas, we affirm.

I. Background

The Property Owners initially sued DCAD, Spencer,

Hope McClure (Spencer’s predecessor, in her official

capacity), and Michelle French (in her capacity as

Denton County’s Tax Assessor-Collector). The

Property Owners challenged their assessed

property-tax amounts, as well as the appraisal

system as a whole, asserting claims for declaratory

relief (including a declaration that Section 23.01 of

the Texas Tax Code is unconstitutional), injunctive

relief, relief for alleged ultra vires acts, and money

had and received (including actual and exemplary

damages). They also sought attorney’s fees. Each

defendant answered, filed a plea to the jurisdiction,

and set the plea for a hearing on May 2, 2024.

Eight days before the hearing, the Property

Owners amended their petition and, among other

things, dropped their claims against McClure and

French. Focusing solely on DCAD and Spencer, the

Property Owners alleged that when DCAD sent out

its 2023 notices of appraised values, DCAD had

“brazenly,” “recklessly,” and “fraudulent[ly]”

increased Denton County property values as it had

done “for years, unchecked and without any

accountability.” The Property Owners alleged that

DCAD was not following the law or any recognizable

2a

appraisal method in appraising Denton County

property. They also alleged that DCAD had

artificially and arbitrarily increased property values

“so that the various taxing entities/units [could]

collect illegal and inflated property taxes.”

Among other things, the Property Owners

alleged that in 2021, former DCAD Chief Appraiser

McClure, and her then-deputy and later-successor,

Spencer, had falsified the tax rolls to the Texas

Comptroller’s Office. DCAD’s allegedly fraudulent

property valuations had cost taxpayers their money,

time, and effort in fighting against allegedly illegal

taxation. The Property Owners alleged that DCAD’s

valuations were not uniform and equal as required by

the Texas Constitution and that DCAD, Spencer, and

his predecessor had been aware of a myriad of

problems within DCAD for years, including staffing

and management issues, a lack of policies and

procedures, a lack of professionalism, a lack of

training, and a lack of a compliance director.

The Property Owners sought declaratory relief,

injunctive relief, and money damages to reimburse

them for taxes they had paid/

2 They also expressly contemplated that additional Denton County

property owners would join

the lawsuit. The amended petition grouped the

potential future litigants into three categories: “(1) those who

accepted DCAD’s fraudulent appraisals; (2) those who protested

DCAD’s appraisals to the ARB [appraisal review board] like the

Solinskis; and (3) those who ha[d] appealed the ARB’s appraisal to

a district court, like the Vexlers and Mavex.” Although DCAD’s

nonjurisdictional defenses are not before us, we observe that DCAD

alleged in its Original Answer that Mavex Shops had previously

sued DCAD in a separate lawsuit challenging Section 23.Ol’s

constitutionality, which resulted in a final agreed judgment that

DCAD argued barred Mavex Shops from relitigating identical

claims.

3a

We outline the

Property Owners’ pleaded theories for requesting

these remedies: Declaratory Relief:3 The Property

Owners sought declarations that DCAD had violated

the Texas Tax Code by failing to comply with various

provisions from the Uniform Standards of

Professional Appraisal Practice (USPAP) when

conducting 2023’s mass appraisal. They also sought a

declaration that DCAD’s valuation of their properties

violated the Texas Constitution’s equal-and-uniform

requirement.

The Property Owners further alleged that

Spencer had committed ultra vires acts. They sought

a declaratory judgment (1) “that Spencer committed

ultra vires acts in connection with the certification of

the 2021 Denton County tax roll” and (2) “that

Spencer committed an ultra vires act by authorizing

and condoning appraisals to occur outside of the

PACS [Appraisal] software DCAD use[d] to conduct

mass appraisals.”

Additionally, the Property Owners specifically

challenged the constitutionality of the following

provision in Section 23.01(b): “If the appraisal district

determines the appraised value of a property using

mass[-]appraisal standards, the mass[-]appraisal

standards must comply with [USPAP].” See Tex. Tax

Code Ann. § 23.01(b). Even though the Property

Owners wanted declarations that DCAD and Spencer

had failed to comply with the USPAP, their

constitutional claim presented a “facial challenge” to

the “unfettered legislative delegation” to the private

3 The Property Owners sought their attorneys’ fees under the

Declaratory Judgments Act.

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009.

4 See generally Tex. Tax Code Ann. § 23.01(h)(3) (stating that the

“[a]ppraisal

methods and techniques included in the most recent

version[] of the following are considered generally accepted

appraisal methods and techniques for the purposes of this title: . . .

the Uniform Standards of Professional Appraisal Practice

published by The Appraisal Foundation”).

4a

entity that writes the USPAP standards and asked

the trial court to determine that Section 23.01

violates (1) Article III, Section 36 of the Texas

Constitution, (2) Article II, Section 1 of the Texas

Constitution, and (3) Section 2001.021 of the Texas

Government Code (within the Administrative

Procedures Act).5 Injunctive Relief: The Property

Owners alternatively pleaded for prospective

injunctive relief. Notably, this request was not made

as part of their ultra vires claim against Spencer.

Instead, the Property Owners pleaded that if the trial

court determined that Section 23.01 was

constitutional, the Property Owners requested a

“permanent injunction against DCAD and Don

Spencer to follow and adhere to the USPAP

standards for mass appraisals going forward.”

Takings Damages: The Property Owners

asserted a takings claim under the Texas

Constitution against DCAD. See Tex. Const, art. I, §

17. They claimed that DCAD had taken their

property—that is, their money “for the fraudulently

levied property taxes”—“in a fraudulent and illegal

manner.”

Tax Refund: Relabeling their

money-had-and-received claim, the Property Owners

claimed to be pursuing a “common[-]law

reimbursement claim,” in which they sought

reimbursement from DCAD for their payments of

“illegally levied taxes.” They sought “a return of the

illegal taxes collected by DCAD” and claimed that

because their “injuries resulted from DCAD’s gross

negligence, malice, or actual fraud,” they were also

entitled to exemplary damages.

Three days before the hearing on the

5The Property Owners failed to notify the Attorney General of

their constitutional challenge, but DCAD filed the requisite

statutory notice. See Tex. Gov’t Code Ann. § 402.010.

5a

jurisdictional pleas, the Property Owners responded

to the pleas, and DCAD replied. Upon hearing both

pleas, the trial court granted them, dismissed the

Property Owners’ claims against DCAD and Spencer,

and signed a final judgment. The Property Owners

filed a motion for new trial and a motion to

reconsider, to which Spencer and DCAD responded.

The trial court heard and denied both motions.

II. Issues Presented

The Property Owners raise four issues on appeal.

The first two concern their claims against Spencer

and the latter two their claims against DCAD. First,

they argue that the trial court should have exercised

jurisdiction over their request for prospective

injunctive relief to require Spencer to follow the law.

Second, they assert that the trial court should have

exercised jurisdiction over their

declaratory-judgment claims against Spencer

concerning his alleged prior violations of the law.

Third, they argue that the trial court had jurisdiction

to order a tax refund. Fourth, they dispute the trial

court’s determination that they did not have standing

to challenge Section 23.01(b)’s constitutionality.

6a

III. Standard of Review

Unless the state consents to suit, sovereign

immunity deprives a trial court of jurisdiction over

lawsuits against the state or certain governmental

units. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004) (op. on reh’g). Appraisal

districts are political subdivisions of the state and,

absent waiver, are similarly entitled to governmental

immunity. Tex. Tax Code Ann. § 6.01(c) (“An

appraisal district is a political subdivision of the

state.”); Travis Cent. Appraisal Dist. v. Norman, 342

S.W.3d 54, 57-58 (Tex. 2011).

A plea to the jurisdiction is a dilatory plea that

seeks dismissal of a case for lack of subject-matter

jurisdiction. Harris County v. Sykes, 136 S.W.3d 635,

638 (Tex. 2004). A jurisdictional plea may challenge

the pleadings, the existence of jurisdictional facts, or

both. Alamo Heights Indep. Sch. Dist. v. Clark, 544

S.W.3d 755, 770 (Tex. 2018). Whether a court has

subject-matter jurisdiction is a legal question, and we

review de novo a trial court’s ruling on a plea to the

jurisdiction. Miranda, 133 S.W.3d at 226, 228.

When, as here, a plea challenges the pleadings,

we determine if the plaintiff has alleged facts that

affirmatively demonstrate the trial court’s

jurisdiction. Id. at 226. We construe the pleadings

liberally in the plaintiffs favor and look to the

plaintiffs intent. Id. If the pleadings are insufficient

to establish jurisdiction but do not affirmatively

demonstrate an incurable defect in jurisdiction, the

plaintiff should ordinarily be given the opportunity to

amend. See id. at 226-27. But if the pleadings

affirmatively negate the existence of jurisdiction

altogether, then a jurisdictional plea may be granted

without allowing a (necessarily futile) chance to

amend. See id. at 227.

7a

Overarching all these principles is that “the plea

should be decided without delving into the merits of

the case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000); see also Vernco Constr., Inc. v.

Nelson, 460 S.W.3d 145, 149 (Tex. 2015) (“When a

jurisdictional issue is not intertwined with the merits

of the claims, which is the case here, disputed fact

issues are resolved by the court, not the jury.”).

IV. Discussion

We first discuss the Property Owners’ claims for

declaratory, injunctive, and monetary relief (other

than concerning Section 23.01(b)’s

constitutionality)—the subject of their first three

appellate issues—and next address their request to

declare part of Section 23.01(b) unconstitutional—the

subject of their fourth issue. As we explain, the trial

court did not err in granting the jurisdictional pleas.

And because the Property Owners failed to cure the

jurisdictional defects that were pointed out to them

before they amended their petition, they are not

entitled to a remand.

A. Tax Code Section 42.09’s Exclusive Remedies

The Property Owners have described themselves

as five of the approximately 500,000 Denton

County taxpayers who are seeking to end the

alleged “systematic[] miscalculat[ion]” of Denton

County property taxes. They sought declarations

“that [DCAD’s and Spencer’s] past behavior

violated the law, an injunction against future

violations, and a refund of the taxes [they] paid

based on the illegal assessments.” In their first

three appellate issues, the Property Owners

contend that the trial court should have exercised

jurisdiction over their claims for declaratory and

injunctive relief (unrelated to the Section 23.01(b)

6 The Property Owners do not challenge the trial court’s

8a

challenge) and for a tax refund. But we agree with

Spencer and DCAD that Section 42.09 of the Texas

Tax Code bars these claims.

1. Applicable Law

“Taxation shall be equal and uniform.” Tex.

Const, art. VIII, § 1(a). Before 1982’s tax-code

amendments, for any taxpayer resisting allegedly

unconstitutional taxation, court-created common-law

remedies left “a very unsatisfactory state of affairs.”

Valero Transmission Co. v. Hays Consol. Indep. Sch.

Dist., 704 S.W.2d 857, 861-62 (Tex. App.—Austin

1985, writ refd n.r.e.).

A pre-1982 opinion from the Beaumont Court of

Appeals outlined the then-extant situation: “An

aggrieved taxpayer who assert[ed] that a taxing

agency ha[d] adopted a fundamentally erroneous and

arbitrary plan of taxation which increase[d] his share

of the tax burden ha[d] two remedies available.”

Owens-Illinois, Inc. v. Little Cypress-Mauriceville

Indep. Sch. Dist., 481 S.W.2d 477, 482 (Tex.

App.—Beaumont 1972, writ dism’d). First, the

taxpayer could “allow the taxing agency to put the

plan into effect and challenge the assessment in

defense of a suit to collect the delinquent taxes based

upon the assessment.” Id. Second the taxpayer could

act on a prospective basis and could “make a direct

attack by availing himself of the remedies of

mandamus and injunction to prevent a taxing

authority from putting such a plan into effect.” Id.

Each option carried different burdens and risks for

the taxpayer, but “[t]he chief characteristic of this

6 (continued)

dismissal of their takings claim. We therefore affirm the

dismissal of that claim. See Fossil Grp., Inc. v. Harris, 691

S.W.3d 874, 880 n.ll (Tex. 2024) (concluding party waived any

challenge to claim dismissed by trial court by not addressing it

in its brief).

9a

state of affairs was that the taxpayer normally lost.”

Valero Transmission Co., 704 S.W.2d at 861 (citing

Mark G. Yudof, The Property Tax in Texas Under

State and Federal Law, 51 Tex. L. Rev. 885, 895-96

(1973)).

But after a legislative overhaul, the tax code

“provides for a regular, systematic, certain, and

effective remedy for a taxpayer who believes his tax

to be erroneous for any reason.” Id. at 860 n.l; see

Atascosa Cnty. Appraisal Dist. v. Tymrak, 858

S.W.2d 335, 337 (Tex. 1993) (generally describing the

tax code’s “annual administrative process” and

explaining that a property owner “must pursue the

annual administrative process for each tax year that

he wants to appeal to the trial court”). Every year,

the appraisal district, through its chief appraiser,

appraises taxable property generally at its market

value as of January 1. Tex. Tax Code Ann. § 23.01.

Each property owner is given notice and has the right

to protest the appraised value before an ARB. Id. §§

25.19(a), 41.41(a).

A property owner is entitled to protest, among

other actions:

(1) [the] determination of the appraised value of the

owner’s property or, in the case of [certain land

appraisals, the] determination of its appraised or

market value;

(2) [the] unequal appraisal of the owner’s property;

[or] ....

(9) any other action of the chief appraiser, appraisal

district, or appraisal review board that applies to

and adversely affects the property owner. Id. §

41.41(a). When a property owner protests, the

ARB hears the protest and determines value. Id.

§§ 41.01(a)(1), 41.45, 41.47. An owner may appeal

an ARB order to a district court. Id. §§ 42.01,

10a

42.23(a).

The Texas Tax Code further provides that its

remedies are exclusive, stating in pertinent part that

procedures prescribed by this title for adjudication of

the grounds of protest authorized by this title are

exclusive, and a property owner may not raise any of

those grounds ... as a basis of a claim for relief in a

suit by the property owner to arrest or prevent the

tax collection process or to obtain a refund of taxes

paid. Id. § 42.09(a)(2). Through Section 42.09, the

Legislature not only abolished previously existing

common-law remedies to redress unconstitutional

taxation but also created an exclusive statutory

remedial scheme. Id.-, Cameron Appraisal Dist. v.

Rourk, 194 S.W.3d 501, 502 (Tex. 2006) (requiring

taxpayers to adhere to the tax code’s administrative

framework before filing suit); Matagorda Cnty.

Appraisal Dist. v. Coastal Liquids Partners, L.P., 165

S.W.3d 329, 331 (Tex. 2005) (“[A] taxpayer’s failure to

pursue an [ARB] proceeding deprives the courts of

jurisdiction to decide most matters relating to ad

valorem taxes.”); SPX Corp. v. Altinger, 614 S.W.3d

362, 378-80 (Tex. App.—Houston [14th Dist.] 2020,

no pet.) (collecting cases holding that the tax code’s

exclusive remedial scheme supplanted common-law

claims, equitable remedies, and claims outside of

Chapter 42 of the tax code); Schneider v. Williamson

Cent. Appraisal Dist., No. 03-16-00781-CV, 2017 WL

2417836, at *2 (Tex. App.—Austin May 31, 2017, pet.

denied) (mem. op.) (same).

2. Analysis

The flaw in the Property Owners’ lawsuit is that

they have tried to sue DCAD and Spencer outside of

the tax code’s exclusive remedial scheme. The

Property Owners complain about DCAD’s and

Spencer’s prior conduct and how that alleged conduct

11a

has continued and will continue to adversely impact

the appraised values of their respective

properties—all of which are grounds for protest. See

Tex. Tax Code Ann. § 41.41(a). But the Property

Owners did not affirmatively allege that they are

seeking judicial review of their respective ARB orders

under the Texas Tax Code. See id. §§ 42.01, 42.23(a);

see also Town of Shady Shores v. Swanson, 590

S.W.3d 544, 550 (Tex. 2019) (requiring plaintiffs to

allege facts that affirmatively demonstrate the

court’s jurisdiction to hear the claim). Rather, they

have tried to state claims outside of the Texas Tax

Code’s exclusive remedial process.

For instance, the Property Owners requested

various declarations under the Declaratory

Judgments Act concerning D CAD’s and Spencer’s

past conduct— including for Spencer’s alleged ultra

vires acts. But the Declaratory Judgments Act does

not create or enlarge a trial court’s subject-matter

jurisdiction. Bauer v. Braxton Minerals III, LLC, 689

S.W.3d 633, 640 n.4 (Tex. App.—Fort Worth 2024,

pet. filed). It is only a procedural device for deciding

cases already within the trial court’s jurisdiction. Id.

(first citing Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443-44 (Tex. 1993); then citing

Devon Energy Prod. Co. v. KCS Res., LLC, 450

S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.]

2014, pet. denied); and then citing Tex. Civ. Prac. &

Rem. Code Ann. § 37.004(a)).

Because Section 41.41(a) provides the exclusive

method to protest the appraisal of their properties,

the Property Owners cannot ignore their exclusive

tax-code remedies and employ the Declaratory

Judgments Act in a standalone fashion.7 See Tex.

Tax Code Ann. §§ 41.41(a), 42.09; SPXCorp., 614

S.W.3d at 378-80 (“But where, as here, the Property

7 The Property Owners argue that the Texas Tax Code does not

12a

Tax Code authorizes a particular ground of protest,

then the Code’s procedures are the property owner’s

exclusive means of adjudicating that ground as a

basis for tax relief.”). The trial court therefore

correctly dismissed the Property Owners’

declaratory-relief claims. See Rourk, 194 S.W.3d at

502; SPXCorp., 614 S.W.3d at 378-80; Schneider,

2017 WL 2417836, at *2.

The same holds true for the Property Owners’

request for judicial declarations that Spencer

committed ultra vires acts in certifying “the 2021

Denton County tax roll” and “by authorizing and

condoning appraisals to occur outside of the PACS

software DCAD uses to conduct mass appraisals.”

Because Section 41.41(a)(9) allows the Property

Owners to protest “any other action of the chief

appraiser .. . that applies to and adversely affects the

property owner,” the Texas Tax Code provided the

Property Owners their exclusive remedy to raise the

official-capacity complaints about Spencer’s (or his

predecessors’) past conduct that are the subject of the

7 (continued) provide grounds for protesting DCAD’s alleged failure

to comply with Section 23.01(a)’s mass-appraisal requirements, but

they are incorrect. Section 41.41(a) clearly states that a taxpayer

may protest the “determination of the appraised value of the

owner’s property,” the “unequal appraisal of the owner’s property,”

and “any other action of the chief appraiser, appraisal district, or

[ARB] that applies to and adversely affects the

property owner.” Tex. Tax Code Ann. § 41.41(a)(1),

(2), (9). These broad grounds certainly encompass a protest arising

out of an alleged failure to comply with Section 23.01(a)’s

mass-appraisal requirements. Cf. Webb County Appraisal Dist. v.

New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990) (“The

intent of the administrative review process is to resolve the

majority of tax protests at this level, thereby relieving the burden

on the court system.”).

8 Governmental immunity “does not bar a suit against a

13a

Property Owners’ ultra vires claims. See Tex. Tax

Code Ann. §§ 41.41(a)(9), 42.09(a). Accordingly, the

trial court properly refused to exercise subject-matter

jurisdiction over the Property Owners’ claim seeking

“a declaratory judgment that Spencer committed

ultra vires acts.” See id. § 42.09(a); Rourk, 194

S.W.3d at 502; SPXCorp., 614 S.W.3d at 378-80;

Schneider, 2017 WL 2417836, at *2.

Similarly, the trial court properly dismissed the

Property Owners’ money-had-and-received claim that

the Property Owners relabeled as a claim for

“reimbursement of funds paid by illegally levied

taxes.” In their tax-refund claim, the Property

Owners outlined the elements of a

money-had-and-received claim and, in response to

the jurisdictional pleas, added a paragraph trying to

explain why their relabeled “common[-]law

reimbursement claim” was not barred by

governmental immunity.

But the Property Owners’ explanation falters

because, among other reasons, the 1982 tax-code

amendments abolished common-law reimbursement

claims and provided the exclusive means to obtain a

tax refund. See Tex. Tax. Code Ann. § 42.43

(providing method to obtain a tax refund from a

taxing unit—not from an appraisal district or its

chief appraiser), § 42.09(a); Valero Transmission Co.,

704 S.W.2d at 862 (“The

8 (continued) government officer for acting outside his

authority—i.e., an ultra vires suit.” See Houston Belt & Terminal

Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016). “To fall

within this ultra vires exception ... a suit. . . must allege . . . that

the officer acted without legal authority or failed to perform a

purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d

366, 372 (Tex. 2009). Such “ultra vires claims” may seek only

prospective injunctive remedies. Id. at 376.

14a

necessary consequence of making the Code provisions

exclusive ... is to abolish the previously existing

common[-]law actions created to prevent

unconstitutional taxation.” (citing Tex. Architectural

Aggregate, Inc. v. Adams, 690 S.W.2d 640, 642-43

(Tex. App.—Austin 1985, no writ))). Therefore, the

trial court properly refused to exercise jurisdiction

over the Property Owners’ tax-refund claim. See

Tex. Tax Code Ann. § 42.09; Rourk, 194 S.W.3d at

502; SPXCorp., 614 S.W.3d at 378-80; Schneider,

2017 WL 2417836, at *2.

Likewise, the trial court properly dismissed the

Property Owners’ claims for injunctive relief, in

which they sought to prospectively require “DCAJD

and Don Spencer to follow and adhere to the USPAP

standards for mass appraisal going forward.” The

Property Owners argue that they ought to be able to

enjoin DCAD and Spencer into compliance with the

Texas Tax Code outside of the statutory process,

which they characterize as “border[ing] on the

Byzantine.”10 See Herrera v. Mata, 702 S.W.3d 538,

540 (Tex. 2024) (discussing generally when ultra

vires claims for prospective relief may be brought but

without discussing Section 42.09’s application); see

also Heinrich, 284 S.W.3d at

9The Property Owners sprinkled “fraud” allegations throughout

their amended complaint and specifically in their relabeled

money-had-and-received claim. But nowhere did they allege or

identify a legislative waiver enabling them to obtain a tax

refund premised on allegedly fraudulent conduct. See City of

Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex.

App.—Fort Worth 2001, no pet.) (dismissing fraud claims

against appellants, including Tarrant Appraisal District, for

lack of jurisdiction).

10As we pointed out above, under the pre-1982 system,

taxpayers could prospectively seek injunctive relief to prevent

an alleged illegal or fraudulent tax scheme from being

implemented. See Owens-Illinois, Inc., 481 S.W.2d at 482.

15a

374 (“The law of remedies against governments and

government officials is a vast and complex body of

doctrine, full of technical distinctions, fictional

explanations, and contested compromises.” (quoting

Douglas Laycock, Modern American Remedies 482

(3d ed. 2002))). But the Legislature has prescribed

the exclusive remedies that taxpayers must use for

tax protests, see Tex. Tax Code Ann. §§ 41.41(a),

42.09, and “[t]he Legislature intends courts to follow

its instructionst,]” Rodriguez v. Safeco Ins. Co. of

Indiana, 684 S.W.3d 789, 795 (Tex. 2024) (“[I]t is not

for courts to decide if legislative enactments are wise

or if particular provisions of statutes could be more

effectively worded to reach what courts or litigants

might believe to be better or more equitable

results.”).

Because the Legislature abolished the

common-law remedies created to prevent

unconstitutional taxation, including claims seeking

prospective injunctive relief like the Property Owners

pleaded, the trial court properly dismissed their

claim for injunctive relief. See Rourk, 194 S.W.3d at

502; SPXCorp., 614 S.W.3d at 378-80; Schneider,

2017 WL 2417836, at *2 (“[T]rial courts do not have

jurisdiction over claims for declaratory and injunctive

relief in ad valorem tax disputes, including those

based on alleged constitutional violations.”); Parra

Furniture & Appliance Ctr., Inc. v. Cameron

Appraisal Dist., No. 13-09-00211-CV, 2010 WL

672882, at *4 (Tex. App.—Corpus Christi-Edinburg

Feb. 25, 2010, no pet.) (mem. op.) (holding that

claims for injunctive relief fall outside of the Texas

Tax Code and are barred by immunity).

In sum, the Property Owners’ first three

appellate issues complain about the trial court’s

dismissing their claims for injunctive relief, for

16a

declaratory relief (other than the facial challenge to

Section 23.01(b)), and for a tax refund. Because the

tax code jurisdictionally bars the Property Owners

from raising these three claims outside of the Texas

Tax Code’s exclusive remedial scheme, and because

the Property Owners otherwise failed to affirmatively

demonstrate the trial court’s subject-matter

jurisdiction by alleging a valid waiver of immunity,

the trial court properly granted DCAD’s and

Spencer’s pleas to the jurisdiction on these claims,

and we overrule the Property Owners’ first three

issues. See Kamy Investments, LLC v. Denton Cnty.

Appraisal Review Bd., No. 02-23-00487-CV, 2024 WL

3611451, at *13 (Tex. App.—Fort Worth Aug. 1, 2024,

no pet.) (mem. op.).

17a

B. Standing

In their fourth issue, the Property Owners argue

that the trial court erred by determining that they

lacked standing to seek a declaration that part of

Section 23.01(b) is facially unconstitutional. We

disagree.

1. Applicable Law

“Generally, a citizen lacks standing to bring a

lawsuit challenging the lawfulness of governmental

acts.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 5

(Tex. 2011). This concept reflects “the rule that

neither citizens nor taxpayers can appear in court

simply to insist that the government and its officials

adhere to the requirements of law.” Id. (cleaned up).

The government may challenge a party’s

standing by a plea to the jurisdiction. Bushee v.

County of Medina, 681 S.W.3d 391, 395 (Tex. 2023).

As the supreme court has stated, Standing consists of

some interest peculiar to the person individually and

not just as a member of the public. A plaintiff has

standing to seek prospective relief only if he [or she]

pleads facts establishing an injury that is concrete

and particularized, actual or imminent, not

hypothetical.

An opinion issued in a case brought by a party

without standing is advisory because rather than

remedying an actual or imminent harm, the

judgment addresses only a hypothetical injury.

Garcia v. City of Willis, 593 S.W.3d 201, 206 (Tex.

2019) (cleaned up). “Standing to sue may be

predicated upon either statutory or common law

authority.” Everett v. TK-Taito, L.L.C., 178 S.W.3d

844, 850 (Tex. App.—Fort Worth 2005, no pet.) (citing

Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex.

2001)).

18a

2. Analysis

Here, the Property Owners pleaded a facial

challenge to the constitutionality of this part of

Section 23.01(b): “If the appraisal district determines

the appraised value of a property using

mass[-]appraisal standards, the mass[-]appraisal

standards must comply with [USPAP].” See Tex. Tax

Code Ann. § 23.01(b). DCAD challenged the Property

Owners’ standing to assert their facial challenge to

Section 23.01(b), arguing that they had failed to

allege a particularized injury and had failed to

identify an “‘actual or threatened restriction’ they are

suffering by [D CAD’s] compliance with Section

23.01(b).” See Tex. Workers’ Comp. Comm’n v. Garcia,

893 S.W.2d 504, 518 (Tex. 1995) (“[T]o satisfy the

requirements of standing, [the parties facially

challenging a statute] must demonstrate that they

are suffering some actual or threatened restriction

under the [statute].”). The Property Owners claim to

have standing because they “are five of the

approximately 500,000” Denton County property

taxpayers.

On appeal, the Property Owners make two

standing arguments. First, they claim to “possess

taxpayer standing.” As the supreme court stated in

Perez v. Turner, “Properly construed, taxpayer

standing provides important protection to the public

from the illegal expenditure of public funds without

hampering too severely the workings of the

government.” 653 S.W.3d 191,199 (Tex. 2022)

(cleaned up). Taxpayer standing is generally limited

to a plaintiff who can show “(1) that the plaintiff is a

taxpayer; and (2) that the public funds are being

expended on an allegedly illegal activity.” Id.

(cleaned up). But the Property Owners’ argument

about taxpayer standing—and their reliance on cases

19a

like Perez concerning taxpayer standing—is

misplaced.

Here, even after DCAD raised the Property

Owners’ lack of standing and the Property Owners

amended their petition, they failed to plead that

DCAD is expending public funds on an allegedly

illegal activity. Nor did the Property Owners seek an

injunction against such an expenditure. See id.

(concluding that a plaintiff had taxpayer standing

who had alleged that a tax was “altogether illegal

and [sought] an injunction against expenditure of the

proceeds.”). Instead, the Property Owners alleged

merely that their property taxes had increased too

much. Such an allegation is insufficient to establish

taxpayer standing. See id.

The Property Owners’ second argument—at first

blush—seemingly elaborates on their first argument.

The introductory header to the second argument

states that the Property Owners “possess standing

because they suffered a particularized injury when

property they own was improperly assessed and they

paid property taxes based on that illegal

assessment.” In arguing this issue, they claim to be

on “equal footing” with the plaintiffs in Perez, 653

S.W.3d at 199, and in Jones v. Turner, 646 S.W.3d

319, 323 (Tex. 2022). But Perez and Jones are both

taxpayer-standing cases in which the plaintiffs

alleged not only that they were taxpayers but also

that the defendant was expending public funds on

allegedly illegal activity: The threshold dispute . . .

was whether the challenged activity involved the

expenditure of public funds at all. We required the

plaintiffs to show that measurable, significant public

funds that would not otherwise have been spent were

truly at stake in order to assert taxpayer standing.

Perez, 653 S.W.3d at 199; see Jones, 646 S.W.3d at

20a

323. Because the Property Owners’ facial challenge to

Section 23.01(b) does not challenge an allegedly

illegal expenditure of public funds, the Property

Owners do not stand in the same shoes as the

taxpayers in Perez and Jones.

Although the Property Owners’ second standing

argument cites only taxpayer-standing cases, it

appears that they are raising citizen standing in a

more general sense—that is, whether the Property

Owners have “some interest peculiar to [them] and

not just as [members] of the public.” 1 See Garcia,

593 S.W.3d at 206. We have addressed a similar

standing question in the context of a group of citizens

challenging the constitutionality of Parker County’s

use of an electronic voting system. Ramsey v. Miller,

No. 02-22-00412-CV, 2023 WL 3645468, at *1 (Tex.

App.—Fort Worth May 25, 2023, pet. denied) (mem.

op.).

11 In the summary of their argument, the Property Owners argue

that they “allege[d] an injury that is particular to them” because

they “challenged the illegal valuation of the property they own and

pay taxes on.” DCAD responds that the Property Owners have not

identified a particularized injury fairly traceable to DCAD that the

underlying lawsuit could address. We are mindful of the supreme

court’s admonition that intermediate courts should hesitate to

resolve appeals on a determination of inadequate briefing. See

Bertucci v. Watkins, No. 23-0329, 2025 WL 807355, at *4-5 (Tex.

Mar. 14, 2025). Given that DCAD’s brief interpreted the Property

Owners’ brief as raising citizen standing and responded to that

argument—even though the Property Owners cite no authorities

other than taxpayer-standing cases—we will analyze the issue.

21a

In Ramsey, we determined that the citizens had

not alleged a “concrete and particularized” injury but

had “merely assert[ed] a generalized grievance.” Id.

at *3. The citizens’ petition revealed that “far from

asserting disparate treatment or a particularized

injury, [they] actually impl[ied] that they [were] in

the same situation as ‘all Texas citizens.’” Id. at *4.

Similarly, the Property Owners’ amended petition

alleges the following:

- “DCAD is not following the law or any recognizable

appraisal methods when appraising Denton

County properties, but instead are artificially and

arbitrarily increasing property values so that the

various taxing entities/units can collect illegal and

inflated property taxes.”

- “DCAD’s fraudulent property valuations costs the

taxpayers money, time, and effort.”

22a

- “On [their] face, DCAD’s valuations are not uniform

and equal as required by the Texas Constitution as

such an increase far exceeds the present fair

market cash value of those properties as a whole.

This has been the case at DCAD for years, yet

every chief appraiser has either outright ignored

this problem at best, or willingly violated the

constitutional rights of property owners in Denton

County at worst. Property owners are entitled to

appraisals that comply with constitutional and

statutory requirements.”

- “Plaintiffs assert that the entire mass appraisal

system utilized by DCAD is unconstitutional and

resulted in overvaluations across the board and

collection of an illegal tax.” Similar to the

allegations in Ramsey, the Property Owners’

allegations here reveal the generalized nature of

the Property Owners’ claims and indicate that they

stand in the same position as all Denton County

property-owning taxpayers. See id. The Property

Owners therefore did not allege a concrete and

particularized injury. See id. (citing Garcia, 593

S.W.3d at 206-08 (holding that appellant lacked

standing to bring prospective claims regarding the

constitutionality of red-light traffic cameras

because he “st[ood] in the same shoes as any other

citizen who might potentially be fined for running

a red light” and therefore “lack[ed] the

particularized interest for standing that

prospective relief requires”)). Additionally, the

Property Owners have not alleged an “actual or

imminent” injury from DCAD’s abiding by USPAP

when conducting future mass appraisals, which

Section 23.01(b) requires. See Tex. Tax

23a

Code Ann. § 23.01(b). In fact, the Property Owners

have not alleged any specific injury arising from

Section 23.01(b)’s alleged unconstitutionality. 2 The

amended petition contained no allegations of how the

“delegation of legislative authority to a private

entity” that promulgates USPAP has caused the

Property Owners any injuries. Nor have the Property

Owners—in generally complaining about “across the

board” “illegal and inflated property taxes” in Denton

County—pleaded an injury that is redressable by

DCAD, which does not set the tax rate or collect

property taxes. See Tex. Tax Code Ann. §§ 26.01-.18

(providing the procedures for a taxing unit and its

assessor—collector to calculate and assess taxes); §

41.01(a)(1) (stating that the ARB decides taxpayer

protests); see also id. § 1.04(12) (defining “taxing

unit”). Because our opining on Section 23.01(b)’s

constitutionality would address only a hypothetical,

non-redressable injury, such an opinion would be an

impermissible advisory one. See Garcia, 593 S.W.3d

at 206; see also In re Hotze, 627 S.W.3d 642, 648 (Tex.

2020) (orig. proceeding) (Blacklock, J., concurring)

(“Although all citizens share a general interest in

lawful government action, ‘recognizing standing

based on ... an undifferentiated injury is

fundamentally inconsistent with the exercise of the

judicial power.’” (quoting Protect Our Parks, Inc. v.

Chicago Park Dist., 971 F.3d 722, 731 (7th Cir.

2020))).

12Pleading in the alternative, the Property Owners requested

that if Section 23.01(b) was not ruled unconstitutional as an

improper legislative delegation to the entity that promulgates

USPAP, then they wanted a permanent injunction ensuring

that DCAD follows USPAP.

24a

Accordingly, because the Property Owners did

not plead standing’s requisite elements, the trial

court properly dismissed their facial challenge to

Section 23.01(b). We overrule the Property Owners’

fourth issue.

C. Repleading

The Property Owners have requested a remand to

replead their claims if we determine that the trial

court properly granted the jurisdictional pleas.

Ordinarily, “Texas courts allow parties to replead

unless their pleadings demonstrate incurable

defects.” Dohlen v. City of San Antonio, 643

S.W.3d 387, 397 (Tex. 2022).

But the supreme court has also stated that “[i]f a

plaintiff has been provided a reasonable opportunity

to amend after a governmental entity files its plea to

the jurisdiction, and the plaintiffs amended pleading

still does not allege facts that would constitute a

waiver of immunity, then the trial court should

dismiss the plaintiffs action.” Harris County, 136

S.W.3d at 639; see also Fraley v. Tex. A&M Univ.

Sys., 664 S.W.3d 91, 101 (Tex. 2023) (“Once the

defendant’s jurisdictional plea gives notice of the

jurisdictional defect, however, and the plaintiff

responds with an amended pleading that ‘still does

not allege facts that would constitute a waiver of

immunity,’ then the trial court should order the case

dismissed with prejudice.”).

Here, on November 13, 2023, DCAD filed its plea

to the jurisdiction—raising both Section 42.09’s

exclusive remedial scheme and the Property Owners’

lack of standing. The hearing on DCAD’s and the

other defendants’ pleas was scheduled for May 2,

2024, and the Property Owners knew of the hearing

as of January 18, 2024.

Eight days before the hearing—on April 24—and

25a

over five months after DCAD pointed out the

jurisdictional defects, the Property Owners filed an

amended petition that did not fix any of those defects.

Accordingly, the Property Owners are not entitled to

a remand. See Fraley, 664 S.W.3d at 101; Matzen v.

McLane, 659 S.W.3d 381, 395-96 (Tex. 2021)

(denying remand for opportunity to amend when a

party “has already been permitted to amend his

petition to no avail”); Clint Indep. Sch. Dist. v.

Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (noting

that plaintiffs were not entitled to another

opportunity to replead when they “had the

opportunity to, and did in fact, amend their pleadings

in the trial court after the district filed its plea to the

jurisdiction and motion to dismiss”); Harris County,

136 S.W.3d at 639.

V. Conclusion

Having overruled the Property Owners’ four

issues, we affirm the trial court’s final judgment.

Delivered: May 1, 2025

/s/ Elizabeth Kerr

Elizabeth Kerr, Justice

26a

APPENDIX B

IN THE COURT OF APPEALS

SECOND APPELLATE DISTRICT OF TEXAS

AT FORT WORTH

No. 02-24-00305-CV

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER MOUND, LP,

JIM SOLINSKI, AND GLORIA SOLINSKI,

Appellants

v.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF DENTON CENTRAL

APPRAISAL DISTRICT, AND DENTON

CENTRAL APPRAISAL DISTRICT,

Appellees

On Appeal from the 481st District Court of Denton

County

(Trial Court No. 23-9526-481)

May 1, 2025

Memorandum Opinion by Justice Kerr

JUDGMENT

27a

This court has considered the record on appeal in this

case and holds that there was no error in the trial

court's judgment. It is ordered that the trial court's

judgment is affirmed.

It is further ordered that Appellants Mitch Vexler,

Catherine Vexler, Mavex Shops of Flower Mound,

LP, Jim Solinski, and Gloria Solinski must pay all

costs of this appeal.

SECOND DISTRICT COURT OF APPEALS

By /s/ Elizabeth Kerr, Justice Elizabeth Kerr

28a

APPENDIX C

CAUSE NO. DC-23-9526-481

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER MOUND, LP, JIM

SOLINSKI, AND GLORIA SOLINSKI,

Plaintiffs

v.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF THE DENTON CENTRAL

APPRAISAL DISTRICT; MICHELLE FRENCH,

IN HER CAPACITY AS TAX ASSESSOR

COLLECTOR FOR DENTON COUNTY; HOPE

MCCLURE, IN HER CAPACITY AS FORMER

CHIEF APPRAISER OF THE DENTON

CENTRAL APPRAISAL DISTRICT; AND

DENTON CENTRAL APPRAISAL DISTRICT,

Defendants

IN THE DISTRICT COURT

DENTON COUNTY, TEXAS

481ST JUDICIAL DISTRICT

ORDER DENYING MOTION FOR NEW TRIAL

On 10th day of July, 2024, came on to be heard

Plaintiffs' Motion for New Trial.

After consideration of the pleadings and papers on

file, and arguments of counsel, the Court finds that

Plaintiffs' Motion for New Trial should be and hereby

is DENIED.

SIGNED this the 10th day of July, 2024.

s/ Crystal Levonius

JUDGE PRESIDING

29a

APPENDIX D

FILED: MAY 8, 2024,11:01 A.M.

DAVID TRANTHAM, DENTON COUNTY DISTRICT

CLERK; BY JADE KENEMORE, DEPUTY

CAUSE NO. 23-9526-481

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER MOUND, LP, JIM

SOLINSKI, AND GLORIA SOLINSKI,

v.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF DENTON CENTRAL

APPRAISAL DISTRICT, AND DENTON

CENTRAL APPRAISAL DISTRICT,

IN THE DISTRICT COURT OF

DENTON COUNTY, TEXAS

481ST JUDICIAL DISTRICT

FINAL JUDGMENT

Defendant, the Denton Central Appraisal District,

filed a plea to the jurisdiction. After having reviewed

the plea, the response, the reply and having heard

the arguments of counsel, the Court determines that

the plea is well taken and should be GRANTED.

It is therefore ordered that the Defendant's, Denton

Appraisal District, Plea to the Jurisdiction is granted

and all claims brought by Plaintiffs against

Defendant, Denton Central Appraisal District, are

hereby dismissed for want of subject matter

jurisdiction. It is further ordered that all costs are

taxed to Plaintiffs.

The Court has previously dismissed Plaintiffs' claims

against Defendant, Don Spencer. This judgment

disposes of the remaining parties and claims and is

therefore final and appealable.

Signed and ordered on May 8, 2024.

s / Crystal Levonius

JUDGE PRESIDING

30a

APPENDIX E

CAUSE NO. 23-9526-481

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER MOUND, LP, JIM

SOLINSKI, AND GLORIA SOLINSKI,

v.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF THE DENTON CENTRAL

APPRAISAL DISTRICT; MICHELLE FRENCH,

IN HER CAPACITY AS TAX

ASSESSOR-COLLECTOR FOR DENTON

COUNTY; HOPE MCCLURE, IN HER

CAPACITY AS FORMER CHIEF APPRAISER;

AND DENTON CENTRAL APPRAISAL

DISTRICT,

IN THE DISTRICT COURT

DENTON COUNTY, TEXAS

481 ST JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT DON

SPENCER'S PLEA TO THE JURISDICTION

On the 2nd day of May, 2024, came on to be heard

Defendant Don Spencer's Plea to the Jurisdiction.

The Court, after reviewing the evidence and hearing

the arguments of counsel, finds that the Plea should

be GRANTED.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that Defendant Don Spencer's Plea to the

Jurisdiction is hereby GRANTED and that all claims

brought by Plaintiffs against Defendant Don Spencer

are hereby dismissed for want of subject matter

jurisdiction.

Costs to be taxed SIGNED this the

against Plaintiffs. 2nd day of May,

2024.

31a

s / Crystal

Levonius

JUDGE

PRESIDING

APPENDIX F

FILE COPY

IN THE SUPREME COURT OF TEXAS

NO. 25-0615

MITCH VEXLER, CATHERINE VEXLER,

MAVEX SHOPS OF FLOWER MOUND, LP, JIM

SOLINSKI, AND GLORIA SOLINSKI,

Petitioners

v.

DON SPENCER, IN HIS CAPACITY AS CHIEF

APPRAISER OF DENTON CENTRAL

APPRAISAL DISTRICT, AND DENTON

CENTRAL APPRAISAL DISTRICT,

Respondents

Denton County

No. 02-24-00305-CV

Second District

October 24, 2025

Petitioners' petition for review, filed herein in the

above numbered and styled case, having been duly

considered, is ordered, and hereby is, denied.

May 8, 2026

Petitioners' motion for rehearing of petition for

review, filed herein in the above numbered and

styled case, having been duly considered, is ordered,

and hereby is, denied.

[Seal of the Supreme Court of Texas]

I, BLAKE A. HAWTHORNE, Clerk of the Supreme

Court of Texas, do hereby certify that the above is a

true and correct copy of the orders of the Supreme

32a

Court of Texas in the case numbered and styled as

above, as the same appear of record in the minutes of

said Court under the date shown.

It is further ordered that petitioners, MITCH

VEXLER, CATHERINE VEXLER, MAVEX SHOPS

OF FLOWER MOUND, LP, JIM SOLINSKI, AND

GLORIA SOLINSKI, pay all costs incurred on this

petition.

WITNESS my hand and seal of the Supreme Court of

Texas, at the City of Austin, this the 8th day of May,

2026.

Blake A. Hawthorne, Clerk

By Monica Zamarripa, Deputy Clerk

33a

Additional material

from this filing is

available in the

Clerk's Office.