Augustin Rivera, Jr., Teresa Ereon Giltner, Harold Odom, Barbara Ellis, Anna M. McKim, Cynthia Eva Hujar Orr, C. Alfred MacKenzie, Dwaine M. Massey, and Carlos R. Soltero, in Their Official Capacities as Members of the Texas Board of Law Examiners v. Deborah Sonnenschein ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00516-CV
Augustin Rivera, Jr.; Teresa Ereon Giltner; Harold Odom;
Barbara Ellis; Anna M. McKim; Cynthia Eva Hujar Orr; C. Alfred MacKenzie;
Dwaine M. Massey; and Carlos R. Soltero, in their Official Capacities as
Members of the Texas Board of Law Examiners, Appellants
v.
Deborah Sonnenschein, Appellee
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-007210, THE HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
MEMORANDUM OPINION
Deborah Sonnenschein sued the members of the Texas Board of Law Examiners
(Board Members)1 in their official capacities after the Board denied her request for admission to
the Texas Bar without taking the bar examination. Sonnenschein asserted ultra vires claims
against the Board Members, who filed a plea to the jurisdiction arguing that the trial court lacked
subject-matter jurisdiction over the suit. The trial court denied the plea, and the Board Members
appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting interlocutory appeal of
grant or denial of governmental unit’s plea to jurisdiction); Texas A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 845 (Tex. 2007) (holding that “governmental unit” in Section 51.014(a)(8)
1
The Board Members are Augustin Rivera, Jr., Teresa Ereon Giltner, Harold Odom,
Barbara Ellis, Anna M. McKim, Cynthia Eva Hujar Orr, C. Alfred MacKenzie, Dwaine M.
Massey, and Carlos R. Soltero.
includes governmental official sued in official capacity). For the following reasons, we will
reverse the trial court’s order and render judgment dismissing Sonnenschein’s claims except
those alleging violations of her rights to equal protection, which claims we remand to the trial
court to allow Sonnenschein an opportunity to amend her pleadings to allege sufficient facts to
support them.
BACKGROUND
In her live petition, Sonnenschein alleged that in 2012 she earned a J.D. degree
from Northwestern California University (NWCU) School of Law, a non-ABA-approved law
school that was “registered and regulated” by the State Bar of California although not
“accredited” by that state. The California Bar nonetheless authorized NWCU law-school
graduates to sit for the California Bar Exam after successfully passing the state’s First-Year
Law Students’ Examination and completing a four-year course of study. After graduating,
Sonnenschein passed the California Bar Exam on her first effort and obtained a California law
license in December 2012.
The Massachusetts Board of Bar Examiners permitted Sonnenschein to take
the February 2013 Massachusetts Bar Exam by waiving its requirement that applicants be
graduates of law schools that are either ABA-approved or authorized by the Commonwealth
of Massachusetts. Sonnenschein passed that exam on her first attempt and obtained a
Massachusetts law license in June 2013. Thereafter, Sonnenschein and her husband (also an
attorney) established a Massachusetts law firm and practiced law for more than five years.
In late 2018, the Sonnenscheins moved to Texas and, since Spring 2019, have
been providing pro bono legal representation to low-income Texas clients via Volunteer Legal
2
Services of Central Texas, as authorized by the Texas State Bar under its New Opportunities
Volunteer Attorney (NOVA) pro bono program for attorneys licensed in other states.
In April 2019, Sonnenschein submitted to the Board an application to be admitted
to the Texas Bar without examination (commonly called an AWOX application) pursuant
to Rule 13, Section 1 of the Rules Governing Admission to the Bar of Texas (Rules), which
then provided:
An Applicant who is authorized to practice law in another state must meet the
requirements imposed on any other Applicant under these Rules, except that the
Applicant is exempt from the requirement of successfully completing the Texas
Bar Examination if the Applicant:
(a) has been actively and substantially engaged in the lawful practice of law as
the Applicant’s principal business or occupation for at least five of the last
seven years immediately preceding the filing of the Application;
(b) has a J.D. degree from an approved law school; and
(c) has not failed the Texas Bar Examination.
Tex. Rules Govern. Bar Adm’n 13, § 1 (Sept. 8, 2017), amended eff. Dec. 1, 2019. In August
2019, the Board declared Sonnenschein’s AWOX application ineligible because she did not meet
Rule 13, Section 1(b)’s requirement that she have a J.D. degree from an ABA-approved law
school (the law-study requirement). See id. R. 1(a)(4) (defining “approved law school” as “a
law school approved by the American Bar Association”). Shortly thereafter, Sonnenschein
requested, under Rule 20, that the Board waive the law-study requirement for her AWOX
application and provided documentation and a memo to support the waiver, including a reference
to a “similarly situated applicant” who in 2017 was granted “essentially the same waiver” and
admitted to the Bar. See id. R. 20(e) (granting Board “discretion in the interpretation and
application of these Rules” and providing that for “good cause shown to the satisfaction of the
3
Board,” “waivers of specific requirements described in these Rules may be granted, unless it
appears therefrom that no exceptions are contemplated by the Supreme Court”). The Board
informed Sonnenschein that her waiver request would be considered at a public meeting in
September 2019.
At the public meeting, before a three-member panel considering waiver requests,
Sonnenschein (who is Black) and her husband (who is White) appeared and spoke in support
of their similar requests.2 Later that month, the Board issued its final decision denying
Sonnenschein’s waiver request and terminating her AWOX application. Sonnenschein filed a
motion for rehearing with the Board, “in the erroneous belief that the Board was subject to the
Texas Administrative Procedure Act (‘APA’).” In October 2019, the Board’s Executive Director
sent Sonnenschein a Summary Letter explaining why she did not qualify for admission without
taking the bar examination under Rule 13—because “the JD [she] earned at an unaccredited
on-line school does not satisfy the education requirements” of the rule. In the letter, the Board
explained that it had not yet developed AWOX waiver-request licensing guidelines mandated
by Texas Government Code Section 82.039; that it was not subject to the APA; that its decision
was “final and unappealable”; and that even under the impending revised rules (effective
December 1, 2019), Sonnenschein would not meet the law-study requirement to take the Texas
bar exam because NWCU’s law school, while “state-authorized,” was not “state-accredited” and,
in any event, was an online law school. See id. R. 13, §§ 2 (providing exemption from Rule 3’s
law-study requirement for applicant authorized to practice law in another state who holds
2
Sonnenschein’s husband, Dr. Alexander Sonnenschein, Ph.D.—who is not a party to
this lawsuit—also requested a waiver of the law-study requirement in support of his AWOX
application. After the Board denied his AWOX application, he filed a separate but similar suit
against the Board Members. His appeal of the trial court’s grant of the Board Members’ plea to
the jurisdiction in that lawsuit is pending before this Court in cause number 03-21-00602-CV.
4
J.D. “from an unapproved law school that is accredited in the state where it is located”),
5 (“No Degree by Correspondence”).
Sonnenschein brought ultra vires claims against the Board Members for allegedly
violating Government Code Section 82.039, Texas Civil Practice and Remedies Code Section
106.001(1), and her Texas constitutional rights to equal protection and procedural and
substantive due course of law.3 She sought declaratory judgments—including that graduates of
law schools such as NWCU’s be treated by the Board as “on par with graduates of state-
accredited law schools from other jurisdictions”—and injunctive relief requiring the Board to
develop specific guidelines for granting AWOX waiver requests and to approve her AWOX
application. The trial court denied the Board Members’ plea to the jurisdiction after a hearing
at which it admitted into evidence several of Sonnenschein’s exhibits.4 Those included her
AWOX application materials and correspondence with the Board, copies of the Rules,
correspondence confirming her acceptance into the NOVA program, and Board-meeting
minutes. In her correspondence with the Board, Sonnenschein explained that NWCU Law
School “is a California-registered, unaccredited correspondence law school” and that “most
of the interactions at NWCU were via the internet.”
3
Although Sonnenschein did not use the phrase “ultra vires” in her petition, she cited
City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009), in support of the trial court’s
jurisdiction. That case explained that ultra vires suits seeking to compel officials to comply with
statutory or constitutional provisions or asserting that officials acted without legal authority or
failed to perform a purely ministerial act are not barred by sovereign immunity. See id. at 372.
4
The trial court granted the Board Members’ plea as to two other defendants—the
Board’s former Executive Director and former Eligibility Director—but Sonnenschein does not
appeal the dismissal of her claims against those parties.
5
DISCUSSION
We review the trial court’s denial of the Board Members’ plea to the jurisdiction
de novo. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 805 (Tex. 2018).
Due-course-of-law claims
In her first two causes of action, Sonnenschein alleges that the Board Members
violated her Texas constitutional rights to substantive and procedural due course of law in the
pursuit of her “liberty interest to practice her profession.”5 See Tex. Const. art. I, §§ 19 (“No
citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in
any manner disenfranchised, except by the due course of the law of the land.”), 29 (providing
that Bill of Rights (Sections 1–35) “shall forever remain inviolate” and all laws contrary thereto
“shall be void”); Su Inn Ho v. University of Tex. at Arlington, 984 S.W.2d 672, 683 (Tex. App.—
Amarillo 1998, pet. denied) (noting that substantive component of due-course-of-law guarantee
protects citizens from state action that arbitrarily or capriciously deprives them of interest
in life, liberty, or property). However, as the Board Members argued in their plea to the
jurisdiction, before due-process rights attach, a citizen must identify the liberty or property
interest that is entitled to constitutional protection. See Honors Acad. Inc. v. Texas Educ.
Agency, 555 S.W.3d 54, 61 (Tex. 2018).
5
In her petition, Sonnenschein specifies that she “only alleges state law claims” and
“specifically excludes . . . any federal cause of action” including those arising under the federal
Constitution. We note that Texas courts evaluate equal-protection challenges under the Texas
Constitution using the same standard for equal-protection challenges brought under the federal
Constitution, see Bell v. Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002), and due-
course-of-law claims under the Texas Constitution using the same standard applied to due-
process claims under the federal Constitution, University of Tex. Med. Sch. at Houston v. Than,
901 S.W.2d 926, 929 (Tex. 1995).
6
Sonnenschein failed to identify any legally protected liberty or property interest in
her petition or response to the Board Members’ plea to the jurisdiction and has failed on appeal
to cite any authority supporting her contention that she has a constitutionally protected interest in
obtaining a Texas law license. Rather, she has no right—liberty or otherwise—to be admitted to
the Texas Bar except in conformity with the Supreme Court’s Rules. See Tex. Gov’t Code
§§ 82.001 (“The supreme court shall appoint the members of the [B]oard.”), .004 (“The Board,
acting under instructions of the supreme court as provided by this chapter, shall determine the
eligibility of candidates for examination for a license to practice law in this state . . . [and]
shall examine each eligible candidate as to the candidate’s qualifications to practice law.”),
.021 (“Only the supreme court may issue licenses to practice law in this state as provided by this
chapter. The power may not be delegated.”), .022 (“The supreme court may adopt rules on
eligibility for examination for a license to practice law . . . .”). Unlike common occupations that
are not regulated, the practice of law is a profession and a privilege that the United States
Supreme Court has identified as one for which a state “can require high standards of
qualification, such as good moral character or proficiency in its law, before it admits an applicant
to the bar.” See Schware v. Board of Bar Exam’rs of State of N.M., 353 U.S. 232, 239 (1957);
see also Hankamer v. Templin, 187 S.W.2d 549, 551 (Tex. 1945) (“[T]he right to practice law is
not a personal right, but a franchise, or privilege[.]”);State v. Arnett, 385 S.W.2d 452, 454 (Tex.
App.—San Antonio 1964, writ ref’d n.r.e.) (“The right to practice the profession of law is a very
great privilege.”).
Because Sonnenschein did not identify any constitutionally protected property or
liberty interest, she has not alleged a viable claim for violation of substantive due course of law,
and the trial court accordingly erred in denying the Board Members’ plea to the jurisdiction as to
7
that cause of action. See Honors Acad., 555 S.W.3d at 61. For the same reason, her claims for
violation of her procedural right to due course of law necessarily fail. See Texas S. Univ. v.
Villarreal, 620 S.W.3d 899, 905 (Tex. 2021) (noting that to determine whether governmental
action violates due-course-of-law guarantee, courts first ask whether plaintiff has liberty or
property interest that is entitled to protection and, if so, whether government defendant followed
due course of law in depriving plaintiff of that interest); University of Tex. Med. Sch. at Houston
v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“The requirements of procedural due process apply
only to the deprivation of interests protected under Article I, Section 19.”). The trial court erred
in not granting the Board Members’ plea to the jurisdiction as to Sonnenschein’s due-process
causes of action.
Statutory claim
As sub-parts of her first two causes of action, Sonnenschein alleged that the
Board Members violated Section 82.039 of the Government Code by failing to develop specific
guidelines for granting waiver requests. See Tex. Gov’t Code § 82.039(a) (“To assist the
Board of Law Examiners in making consistent and fair determinations related to the licensing
of attorneys in this state, the board shall develop specific guidelines for . . . granting waiver
requests.”). However, we conclude that Sonnenschein does not have standing to pursue her ultra
vires claims against the Board Members arising from their alleged violation of Section 82.039.
While that section provides that the Board “shall develop the [required] guidelines . . . based
on [its] past decisions and on any other criteria [it] considers necessary,” it also provides that
the Board is “not required to take any specific action provided in the guidelines.” See id.
§ 82.039(b). To have standing under the facts alleged, Sonnenschein must have a concrete or
8
particularized stake in the declaration she sought that the Board Members acted ultra vires by
failing to develop guidelines specific to waiver requests and that such declaration and any related
injunctive relief will redress her alleged injury. See Garcia v. City of Willis, 593 S.W.3d 201,
207 (Tex. 2019). The very statute that Sonnenschein contends the Board Members violated—by
not developing guidelines to use in evaluating waiver requests—provides the Board Members
with complete discretion in determining whether to grant waiver requests by stating that,
regardless of what the guidelines provide, the Board is not required to take any specific
action. Therefore, Sonnenschein cannot demonstrate a legal injury, much less that the Board’s
development of such guidelines would redress any alleged past injury.6 See Suarez v. Silvas,
No. 04-21-00113-CV, 2022 WL 379965, at *9 (Tex. App.—San Antonio Feb. 9, 2022, no pet.)
(mem. op.) (holding that plaintiff did not have standing to pursue ultra vires claim because she
did not plead facts to show (1) concrete and particularized or actual or imminent injury or
(2) that her requested prospective relief would likely redress her past injury). Accordingly, the
trial court lacked subject-matter jurisdiction over Sonnenschein’s Section 82.039 claim.
Equal-protection claims
In her third and fourth causes of action, Sonnenschein alleges, respectively, that
the Board Members violated her Texas constitutional and statutory rights to equal protection by
(a) engaging in “apparent invidious discrimination due to [her] race, interracial marriage, and
sex” through their “grossly disparate treatment” of her and a similarly situated prior applicant
and (b) failing to treat her law study as equivalent to that of previous applicants who also had
6
Although this standing issue constrains the judiciary from remedying the Board
Members’s years-long failure to comply with their mandatory statutory duty, it is within the
legislature’s purview to amend the statute or take other measures to ensure that the Board’s duty
is legally enforceable.
9
graduated from non-ABA-approved law schools but were nonetheless granted admittance to the
Bar. See Tex. Const. art. I, §§ 3 (“All free men, when they form a social compact, have equal
rights . . . .”), 3a (“Equality under the law shall not be denied or abridged because of sex, race,
color, creed, or national origin.”); Tex. Civ. Prac. & Rem. Code § 106.001(1) (prohibiting state
officials and employees from refusing to issue license, permit, or certificate “because of a
person’s race, religion, color, sex, or national origin”). As to her third cause of action, she
alleged the following facts: that the Board Members approved the waiver request for an AWOX
application of a White male in 2017 who had graduated from “the same category of California-
registered-unaccredited law schools” that she had graduated from but that the Board denied her
substantially similar waiver request and AWOX application “due to” her race, interracial
marriage, and sex.7 As to her fourth cause of action, Sonnenschein alleged that the Board
Members have “previously accepted the law study of graduates of non-ABA-approved state-
authorized law schools in Alabama, Massachusetts, [and] California” but declined to accept her
law study of the same type, which violated her right to equal protection under the law, regardless
of whether the Board Members based their decision on a suspect classification (e.g., race or sex).8
7
In her response to the Board Members’ plea to the jurisdiction, Sonnenschein expanded
her equal-protection allegation to include the Board’s “acceptance” of the law study of two
additional, White applicants—in 2019 and 2021—who had graduated from law schools similar
to NWCU’s in that they were “California-registered unaccredited 4-year law schools.”
8
In her petition, she further explained that California “regulates local non-ABA-approved
law schools of two types: ‘accredited’ schools, whose students must complete a 3-year study
program, and ‘registered unaccredited’ schools, whose students are required to first pass the
First-Year Law Students’ Exam (‘Baby Bar’) before completing a 4-year study program.” She
alleged that “California regards graduates of both types of schools, as well as graduates of ABA-
approved schools, as being on an equal footing with regard to being authorized to take the
California Bar Exam and, upon passing the exam, being admitted to the California Bar.”
10
The Board Members argued in their plea to the jurisdiction that Sonnenschein had
not alleged sufficient facts to demonstrate the trial court’s jurisdiction over her claim that they
violated her rights to equal protection. Furthermore, they argued, Sonnenschein could not allege
sufficient facts to support her claims because their denial of her AWOX application and request
to waive the law-study requirement was the “expected result of uniform application of the
Rules,” which unequivocally provide that a J.D. degree obtained primarily through online
courses or other distance-learning methods—as Sonnenschein’s was—does not meet the law-
study requirement. See Tex. Rules Govern. Bar Adm’n 13, § 5 (Sept. 8, 2017), amended eff.
Dec. 1, 2019 (current version appearing as R. 13, § 6) (“A J.D. degree or an equivalent degree
completed at a foreign law school that is earned primarily through online courses or other
distance learning-learning mediums does not satisfy the requirements of this Rule.”). However,
despite Rule 13’s provision that applicants from jurisdictions other than Texas may not satisfy
the law-study requirement with a J.D. degree earned “primarily through online learning,” we do
not agree with the Board Members that the existence of such provision precludes, as a matter
of law, an equal-protection claim. Sonnenschein is contending that the Board Members did not
uniformly apply this provision to her application as compared to those of others similarly
situated, a colorable claim falling under protection of the equal-protection clauses.9 See
Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985) (“Under the rational basis test . . .
similarly situated individuals must be treated equally under the statutory classification unless
there is a rational basis for not doing so.”); see also Lindquist v. City of Pasadena, 525 F.3d 383,
386–87 (5th Cir. 2008) (recognizing that equal-protection guarantee extends to claims of
9
Sonnenschein also contests the Board’s construction of the “no degree by
correspondence” provision—arguing that “foreign” refers to non-U.S. jurisdictions rather than
other states—but we need not resolve this legal question at this stage.
11
intentional, differential treatment of person from others similarly situated when there is no
rational basis for difference, such as city’s refusal to grant used-car-dealer license to plaintiff
while granting them to others similarly situated); Combs v. STP Nuclear Operating Co.,
239 S.W.3d 264, 275 n.13 (Tex. App.—Austin 2007, pet. denied) (“Claims of selective or
discriminatory enforcement fall within the scope of the constitutional guarantee of equal
protection under the law.”).
The elements of a claim for violation of the equal-protection clause based on a
party’s membership in a protected class are that the challenged act had a disproportionate impact
on a protected class and had a discriminatory intent or purpose. See Richards v. League of
United Latin Am. Citizens (LULAC), 868 S.W.2d 306, 312 (Tex. 1993); Su Inn Ho, 984 S.W.2d
at 685 (“Proof of discriminatory intent or purpose is required to show a violation of the
Equal Protection Clause.”). While in her third cause of action—the Board Members’ alleged
discrimination due to her sex, race, and interracial marriage—Sonnenschein has alleged that she
is a member of a protected class, she has not alleged facts supporting the other necessary
elements, to wit: any discriminatory intent or disparate impact on a protected class. Instead,
she makes the conclusory allegation of “apparent invidious discrimination.” Construing the
pleadings liberally in favor of jurisdiction and accepting the allegations in Sonnenschein’s
pleadings as true, as we must do under a de novo review of a ruling denying a plea to the
jurisdiction, we cannot say that she has alleged sufficient facts to affirmatively demonstrate that
the trial court has jurisdiction to hear her equal-protection and Section 106.001 claims of alleged
sexual or racial discrimination. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). However, we cannot conclude that her petition affirmatively demonstrates
incurable defects of jurisdiction. See id. at 226–27. Therefore, although the trial court did not
12
have jurisdiction over Sonnenschein’s equal-protection and Section 106.001 claims based on
sexual or racial discrimination as pleaded, Sonnenschein should be afforded the opportunity to
amend her pleadings with respect to those claims to allege facts supporting the required elements
of such claims, as noted above. See id.; see also Port of Corpus Christi, LP v. Port of Corpus
Christi Auth. of Nueces Cnty., No. 13-19-00378-CV, 2021 WL 2694772, at *12–13 (Tex. App.—
Corpus Christi-Edinburg Jul. 1, 2021, no pet.) (mem. op.) (concluding that trial court erred in
dismissing equal-protection claim without affording plaintiff opportunity to amend pleadings that
did not contain sufficient facts demonstrating elements of claim but did not affirmatively
demonstrate incurable defects); City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501,
518 (Tex. App.—Austin 2014, no pet.) (remanding to allow plaintiff reasonable opportunity to
amend pleadings to cure jurisdictional defect as to equal-protection claim where petition was
“insufficient to invoke the district court’s subject-matter jurisdiction” but did not “affirmatively
negate jurisdiction either”).
As to Sonnenschein’s fourth cause of action—an equal-protection claim arising
from the Board Members allegedly treating her differently than other similarly situated
individuals with respect to the type of law study they completed—we similarly conclude that she
has not alleged sufficient facts to affirmatively demonstrate that the trial court has jurisdiction.
See Miranda, 133 S.W.3d at 226. Specifically, she does not allege facts showing that she was
similarly situated to other applicants in all material ways10 or that the Board Members treated
her differently without a reasonable basis. See Texas Dep’t of Transp. v. City of Sunset Valley,
10
For instance, she did not allege whether such other “similarly situated” graduates of
“non-ABA-approved state-authorized law schools” submitted AWOX applications, completed
their law studies “primarily through online courses,” were permitted to take the Texas Bar
despite not meeting the law-study requirement, or met the other requirements of admission to
the Bar.
13
146 S.W.3d 637, 647 (Tex. 2004) (noting that to bring individual equal-protection claim,
plaintiff must demonstrate that she was intentionally singled out and treated differently than
others similarly situated); City of Floresville v. Starnes Inv. Grp., LLC, 502 S.W.3d 859, 868
(Tex. App.—San Antonio 2016, no pet.) (reversing trial court’s denial of plea to jurisdiction as
to equal-protection claim because pleading made mere conclusory statement that plaintiff was
treated differently from others similarly situated but did not allege any facts describing how
parties were similarly situated or nature of alleged different treatment); Sanders v. Palunsky,
36 S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]o assert an equal
protection claim [that is not based on a suspect class], the deprived party must establish two
elements: (1) that he was treated differently than other similarly-situated parties; and (2) he
was treated differently without a reasonable basis.”); see also John Corp. v. City of Houston,
214 F.3d 573, 577 (5th Cir. 2000) (“The Equal Protection Clause protects individuals from
governmental action that works to treat similarly situated individuals differently.”). Accordingly,
Sonnenschein’s pleadings, on their face, failed to invoke the trial court’s jurisdiction. However,
we again cannot conclude that her pleadings affirmatively demonstrate incurable defects of
jurisdiction. See Miranda, 133 S.W.3d at 226–27. Because this is an issue of pleading
sufficiency, and consistent with Miranda, we must remand this claim to the trial court to afford
Sonnenschein the opportunity to amend her pleadings and allege facts supporting the above-
noted elements of a disparate-treatment claim to sufficiently invoke the trial court’s jurisdiction.
See id.; City of Austin v. Cherry, No. 03-14-00212-CV, 2015 WL 4508819, at *2 (Tex. App.—
Austin July 21, 2015, no pet.) (mem. op.) (reversing trial court’s order denying city’s plea to
jurisdiction and remanding cause to allow plaintiff to amend pleadings that were insufficient to
affirmatively demonstrate jurisdiction but did not demonstrate incurable defects in jurisdiction).
14
Uniform Declaratory Judgment Act (UDJA) claims
Lastly, Sonnenschein sought the following declarations under Chapter 37 of the
Civil Practice and Remedies Code: (1) Sonnenschein “has the right to judicial appeal of
[the Board Members’] decisions . . . that allegedly violate Texas constitutional or statutory
provisions,” (2) the Board Members’ “willful failure to develop and use” the guidelines
prescribed by Government Code Section 82.039 caused their evaluation of Sonnenschein’s
waiver request “to be unlawful,” and (3) Sonnenschein’s “status as a graduate of a California-
registered law school should be deemed equivalent to that of a graduate of a non-California state-
accredited law school and thereby accepted as sufficient under the law-study exception.” See
Tex. Civ. Prac. & Rem. Code § 37.004(a) (“A person . . . whose rights, status, or other legal
relations are affected by a statute . . . may have determined any question of construction or
validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal
relations thereunder.”). The Board Members contended in their plea to the jurisdiction that these
claims must be dismissed because in essence they constitute constitutional challenges to the
rules, which must be filed against the Board. See Tex. Gov’t Code § 2001.038(c) (requiring
state agency to be party to rule challenge); see also B.C. v. Steak N Shake Operations, Inc.,
512 S.W.3d 276, 283 (Tex. 2017) (“The gravamen of a claim is its true nature, as opposed to
what is simply alleged or artfully pled, allowing courts to determine the rights and liabilities of
the involved parties.”).
As to her first and third requested declarations, Sonnenschein does not seek to
have determined any question of construction or validity arising under any statute affecting her
15
“rights, status, or other legal relations.” See Tex. Civ. Prac. & Rem. Code § 37.004(a). Her
sought declarations are therefore not within the scope of the UDJA. See id.; Tijerina v. Texas
Prop. Cas. Ins. Guar. Ass’n, No. 03-13-00300-CV, 2015 WL 869344, at *3 & n.6 (Tex. App.—
Austin Feb. 26, 2015, pet. denied) (mem. op.) (concluding that when plaintiff had not challenged
validity of any statute or sought declaration of rights thereunder but merely challenged agency’s
actions, UDJA did not apply, although plaintiff could assert ultra vires claims against state
actors in their official capacities). Furthermore, her first sought declaration would not resolve
any controversy between her and the Board Members because—notwithstanding the absence of
any statute expressly providing her a right to judicial review of the Board’s decision—it is settled
law that she may sue the Board Members for their alleged ultra vires actions, which is what she
has done by this lawsuit (and which we have discussed supra). See City of El Paso v. Heinrich,
284 S.W.3d 366, 372–73 (Tex. 2009). And, as the Board Members argued in their plea to the
jurisdiction, the gravamen underlying Sonnenschein’s third requested declaration is that the
Board Members have allegedly misconstrued or misapplied the Rules, a type of challenge that
must be brought against the Board. See Tex. Gov’t Code § 2001.038(c).11
While as to her second requested declaration Sonnenschein cites a statute—
Government Code Section 82.039—that she contends affects her “rights, status, or other legal
relations,” see Tex. Civ. Prac. & Rem. Code § 37.004(a), we have already determined that
she does not have standing to pursue a claim for the declaration because she cannot show
that obtaining it will redress any past or imminent injury, given that the Board Members
11
Because it is not necessary to our holding and is not an issue in this lawsuit, we
expressly do not decide the question of whether Sonnenschein may maintain a viable rule
challenge under the APA or any other type of claim under the APA, including whether she has a
right to judicial review of the Board’s decision denying her application (although the parties
appear to agree that she does not).
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have absolute discretion to decide waiver requests irrespective of the guidelines’ provisions.
We conclude, therefore, that the trial court erred in denying the Board Members’ plea to the
jurisdiction as to Sonnenschein’s UDJA claims.
CONCLUSION
The trial court lacked jurisdiction over Sonnenschein’s claims as pleaded in her
live petition and therefore erred in denying the Board Members’ plea to the jurisdiction. We
accordingly reverse the trial court’s order and render judgment dismissing Sonnenschein’s
claims except her claims for violations of her rights to equal protection, which claims we remand
to the trial court to allow Sonnenschein an opportunity to amend her pleadings to state sufficient
facts supporting them and for further proceedings consistent with this opinion.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Reversed and Rendered in Part; Reversed and Remanded in Part
Filed: June 1, 2022
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