Glenn Allen Hegar, Jr., Texas Comptroller of Public Accounts v. Arnulfo P. Alcorta ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00414-CV
Glenn Allen Hegar, Jr., Texas Comptroller of Public Accounts, Appellant
v.
Arnulfo P. Alcorta; Jose Abram Alcorta; Reyes Alcorta; Armando Alvarado, Jr.;
David A. Arizmendi; Adela A. Bautista; Guadalupe Cantu, Jr.; Jose Angel Gomez Cantu;
Julian Jesus Torres Cantu; Olga Cantu; Olivia T. Cantu; Hortencia Cantu Castillo;
Carmelo Cordero; Guadalupe Torres Corona; Margarita Diaz; Maria Torres Galvan;
Frances A. Garcia; Guadalupe S. Gonzales; Julia C. Gonzalez; Maria Christina Gonzales;
Teresa Arizmendi Gordon; Pedro T. Guajardo; Juanita T. Hernandez;
Margarita T. Hernandez; Brandon R. Hugonnett; Christopher Hugonnett;
Jose Luis Hugonnett; Manuel Hugonnett; Maria Guadalupe Hugonnett;
Ricardo Guillermo Hugonnett; Rolando R. Hugonnett; Shawn Hugonnett;
Cleofas Torres Juarez; Dora Alicia A. Medina; Aurora Diana Cantu Mejia;
Rosalinda Cantu Pena; Edwardo Ramos, Jr.; Eloyd D. Ramos; Linda A. Rios;
Carmen Rodriguez; Maria Del Rosario Rodriguez; Carlos Salazar; Velma Thies;
Beatris Torres; Cosme Torres, Jr.; James Torres; Jose Angel Torres; Jose Luis Torres;
Marcelina Torres; Raul Torres; Alfredo R. Torrez;, Miguel Torrez; Isabel C. Vasquez;
Mary T. Venable; and Irma Salazar Villanueva, Appellees
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-17-006831, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING
MEMORANDUM OPINION
In a prior interlocutory appeal in this lawsuit, we concluded the trial court correctly
denied the Comptroller’s plea to the jurisdiction with respect to claims brought under Texas
Property Code Section 74.506. See Hegar v. Alcorta, No. 03-19-00348-CV, 2020 WL 2047920(Tex. App.—Austin Apr. 29, 2020, no pet.) (mem. op.) (Alcorta I). The Comptroller now seeks
interlocutory review of the trial court’s denial of his second plea to the jurisdiction. We conclude
that (1) because the Comptroller’s second plea to the jurisdiction does not raise new and distinct
grounds for relief, the pleading constitutes a motion to reconsider the denial of his prior plea to the
jurisdiction, and (2) time for interlocutory appeal from the prior plea to the jurisdiction has expired.
Accordingly, we dismiss this appeal for lack of jurisdiction.
BACKGROUND
In 2017, Arnulfo Alcorta and 53 others (collectively, the Alcortas) sued the
Comptroller under Section 74.506, challenging the Comptroller’s purported failure to timely
decide or pay their claims to mineral royalties held in the Unclaimed Money Fund. See Tex. Prop.
Code § 74.506(b) (waiving sovereign immunity if Comptroller does not decide claim for mineral
royalties within 90 days). The Alcortas pled that they filed claims for mineral royalties with the
Comptroller’s office on September 8, 2017, and March 12, 2018, that the Comptroller did not
decide or pay within the statutory time period. 1
The amended plea and its appeal
The Comptroller filed an original answer and plea to the jurisdiction that argued
that the Alcortas did not file a claim to enable the State’s waiver of sovereign immunity and the
Alcortas lacked standing to sue. The Comptroller subsequently reasserted these issues in his first
amended plea to the jurisdiction (amended plea). The Comptroller specifically argued that the
Alcortas did not file a claim on September 8, 2017, that would trigger the State’s waiver of
1 The Alcortas filed their original petition in 2017 and amended it several times,
adding claimants.
2
sovereign immunity under Section 74.506 and confer jurisdiction on the trial court. The
Comptroller alleged that
[w]hile Plaintiffs “and/or their representatives” may have visited the office
of the Comptroller on September 8, 2017, they did not file anything. The
Comptroller logs each unclaimed property claim, whether presented in paper
or electronic form, and there is no record of Plaintiffs filing anything “on or
about September 8, 2017.”
The Comptroller also argued that the Alcortas lacked standing to sue because they were not
“aggrieved by the decision of a claim filed under” Section 74.506.
To support his amended plea, the Comptroller submitted an affidavit from Bryant
Clayton, Assistant Director of Unclaimed Property for the Comptroller, dated April 2019. Clayton
swore that there was no record of any of the Alcortas appearing at the Comptroller’s office on
September 8, 2017, but “it [wa]s possible that Plaintiffs or someone representing them appeared
before an employee of the Unclaimed Property Division on or about September 8, 2017, and no
record was made of that visit.” Clayton also averred that “there [wa]s no record of any claim filed
by any plaintiff on or about September 8, 2017.” 2
Clayton provided a second affidavit, dated May 2019, where he stated that the
Unclaimed Property Division is on the sixth floor of the Lyndon Baines Johnson State Office
Building (LBJ Building). Clayton swore that all visitors to the LBJ Building, including persons
seeking assistance with filing an unclaimed property claim, must check in with security and be
escorted while in the building. Clayton swore that the Comptroller maintained an electronic
visitor’s log showing all visitors to the building, and he attached a copy of the EasyLobby visitor
2 Clayton also provided deposition testimony as the Comptroller’s designated
corporate representative.
3
report for September 2017 to his affidavit. Clayton stated that the EasyLobby visitor report did not
reflect that any of the Alcortas appeared at the Comptroller’s office on or about September 8, 2017.
The Comptroller submitted the LBJ Building September 2017 EasyLobby visitor
report through a business-records affidavit from Shane Hill, the Comptroller’s Assistant Manager
for Support Services. The Comptroller argued that the September 2017 EasyLobby visitor
report demonstrated that the Alcortas did not “sign[] in” to the Comptroller’s office during
September 2017.
In April 2019, the Alcortas submitted declarations from Margarita Hernandez and
Oran Venable. Hernandez averred that, on September 8, 2017, she and Venable “walked into the
office of the Texas Comptroller” “and sought to file a claim, and did file a claim” with the
Comptroller for payment of mineral proceeds “held in the Unclaimed Money Fund.” Hernandez
declared that “no one from the Comptroller’s office” asked her or Venable “for any additional
supporting documentation,” or assisted Hernandez or Venable “in any meaningful fashion.”
Hernandez also averred that, on March 12, 2018, she and the Venables (Oran and his wife, Mary)
walked into the office of the Texas Comptroller and filed another claim with the Comptroller for
payment of mineral proceeds held in the Unclaimed Money Fund.
Venable averred that he had personal knowledge of his “two visits to the office of
the Texas Comptroller” when the Alcortas “filed their claims which are at issue in this case.”
Venable declared that he, his wife, Mary Venable, and her sister, Hernandez, filed “another claim
with the Texas Comptroller” on March 12, 2018, and he further described the “the two claims”
that the Alcortas filed.
4
After considering the record and the arguments of counsel, the trial court denied
the Comptroller’s amended plea with respect to claims under Section 74.506 in May 2019. The
Comptroller then filed the interlocutory appeal that resulted in our decision in Alcorta I. 3
In his Alcorta I briefing, the Comptroller argued that, because the Alcortas filed no
claim to trigger the waiver of sovereign immunity, the trial court lacked jurisdiction. 4 The
Comptroller specifically argued that there was no evidence that the Alcortas filed a claim on
September 8, 2017, and he cited the September 2017 EasyLobby visitor report as support. The
Comptroller also argued that six of the Alcortas lacked standing to participate in the lawsuit
because they were not “aggrieved” by non-payment of a claim. In response, the Alcortas “[di]d
not admit that no claim was made in 2017.”
In Alcorta I, we overruled the Comptroller’s argument and concluded that the
trial court possessed jurisdiction over the Alcortas’ Unclaimed Property Act claim. Alcorta I,
2020 WL 2047920, at *3. We recognized that “[t]he Alcortas alleged that they filed a claim to the
royalties in September 2017 and sued the Comptroller after the claim was not decided.” Id. at *2
& n.3 (noting that we based our summary on Alcortas’ pleadings and attached affidavits and other
evidence admitted at trial court hearing on plea). The Alcortas subsequently appeared at the
Comptroller’s office and “file[d] a new claim” in March 2018. Id. We applied facts concerning
3 In Alcorta I, we concluded that the trial court correctly denied the Comptroller’s plea to
the jurisdiction with respect to the Alcortas' claim under Section 74.506, because a fact issue
existed concerning whether the Alcortas filed a claim with the Comptroller that was in compliance
with the statute. Hegar v. Alcorta, No. 03-19-00348-CV, 2020 WL 2047920, at *5 (Tex. App.—
Austin Apr. 29, 2020, no pet.) (mem. op.) (analyzing March 2018 Claim).
4 We take judicial notice of the record and briefing in Alcorta I. See Reynolds v. Quantlab
Trading Partners US, LP, 608 S.W.3d 549, 558 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
(explaining that appellate court may take judicial notice of its own records in same or related
proceedings involving same or nearly same parties).
5
the Alcortas’ March 2018 claim in our statutory analysis, overruled the Comptroller’s issues and
concluded that there was no reversible error in the trial court’s interlocutory order. See id. at *4–6.
The Comptroller thereafter filed a motion for rehearing and a motion for en banc
reconsideration of Alcorta I, arguing in both motions that the March 2018 claim did not qualify as
a statutory claim. The Comptroller did not raise in the motion for rehearing or the motion for
en banc reconsideration the issue that there was purportedly no evidence that the Alcortas filed a
claim on September 8, 2017. We denied both motions.
The second plea and present appeal
On June 17, 2021, the Comptroller filed what he titled a second plea to the
jurisdiction (second plea), alleging that the court lacked jurisdiction because the Alcortas did not
file a claim in September 2017 that could trigger the waiver of sovereign immunity under Section
74.506. The Comptroller acknowledged that his “First Amended Plea alleged [] that Plaintiffs had
failed to file a claim in September 2017 . . .” The Comptroller also reasserted the allegation that
six of the Alcortas purportedly are not “person[s] aggrieved by the decision of a claim.”
In support of his second plea, the Comptroller attached the LBJ Building’s
September 2017 EasyLobby visitor report that had been considered with his amended plea. The
Comptroller also attached the EasyLobby visitor report for September 8, 2016, which purportedly
reflected that the Venables and Hernandez entered and left the LBJ building that day. 5
5 The Comptroller submitted the EasyLobby visitor report with his amended plea through
a 2019 business-record affidavit of Shane Hill, Assistant Manager for Support Services. This
affidavit referred to Shane Hill as “her.” The Comptroller submitted the EasyLobby visitor report
with his second plea through a business-record affidavit of Shane A. Hill, Sr., “the Comptroller’s
Risk Manager since 2013.” The signatures on both business-record affidavits appear similar. It is
unclear if these affiants are the same person.
6
The Comptroller attached additional evidence that had been considered with his
amended plea, including: (1) Hernandez’s and Venable’s April 2019 declarations; and
(2) Clayton’s April 2019 affidavit attesting that the Comptroller had no record of a claim filed by
the Alcortas on September 8, 2017, but that it was possible that the Alcortas appeared before a
Comptroller’s employee that day and no record was made.
The Alcortas responded that issues the Comptroller raised in his second plea had
been briefed in his amended plea and previously ruled upon by the trial court. In support of their
response, the Alcortas attached new July 2021 sworn declarations from the Venables and
Hernandez. All three declared that they walked into the Comptroller’s office on
September 8, 2016, to obtain information for filing a claim, and that Venable and Hernandez
walked into the office again on September 8, 2017, to file a claim. Venable stated that all three of
them walked into the Comptroller’s office on September 8, 2017, and left a claim with the person
at the front counter.
At the hearing on the second plea, the Comptroller argued that the trial court must
determine if the Alcortas made “a claim for unclaimed property on September the 8th, 2017, as
they have alleged in their complaint and in several affidavits . . .” The Comptroller stated that in
Alcorta I, this Court recognized that the Alcortas “alleged they filed a claim in September 2017.”
The Comptroller argued that the LBJ Building EasyLobby visitor reports were business records
and newly discovered evidence.
The Alcortas argued that the Comptroller had asserted the same argument in his
amended plea, which the trial court had denied. The Alcortas maintained that this Court had
affirmed that ruling, which necessarily included the trial court’s ruling on this issue, because the
Alcortas had declared in response to the Comptroller’s amended plea that they filed a claim on
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September 8, 2017, and the Comptroller’s designated corporate representative, Clayton, had
averred that it was possible that the Alcortas came in and filed something. The Alcortas also
argued that the EasyLobby visitor report was not newly discovered evidence because the
Comptroller had possessed the report for five years. The Alcortas maintained that they were not
obligated to produce copies of their September 2017 claim because the Comptroller never sent a
request for production or any discovery in the case.
The only witness who testified at the hearing on the second plea was the
Comptroller’s Risk Manager, Shane A. Hill, Sr. Through Hill, the Comptroller introduced the
2016 LBJ Building EasyLobby visitor report submitted with the second plea that reflected the
Venables and Hernandez visited the Unclaimed Property Division on September 8, 2016. Hill
testified that the LBJ Building EasyLobby visitor report was kept in the course of a regularly
conducted business activity.
Although Hill testified that the Venables and Hernandez did not visit the LBJ
Building on September 8, 2017, he did not ask any employees if they spoke with the Venables and
Hernandez on that day. 6 Hill testified that it was possible the Venables and Hernandez entered the
LBJ Building on September 8, 2017, told the receptionist that they wanted to deliver documents
to the unclaimed money fund, and an employee came to the front desk to retrieve the documents.
Hill agreed that in such a circumstance, the Venables’ and Hernandez’s names would not appear
in the EasyLobby visitor report. During the hearing, the Alcortas relied on the Venables’ and
Hernandez’s new July 2021 declarations, which they alleged were consistent with the declarations
filed in the amended plea.
6 It is not clear if Hill was testifying about any of the Alcortas during this portion of
cross-examination, or about Hernandez and the Venabales specifically.
8
At the conclusion of the hearing, the trial court noted that the case was over three
years-old and the Comptroller could have used the discovery process and the court’s prior hearing
on the amended plea to explore the Alcortas' September 2017 claim. Counsel for the Comptroller
acknowledged that he could have examined the issue through discovery and that he did not send a
request for production seeking the September 8, 2017 claim. The Alcortas pointed out that
the Comptroller also chose not to depose Venables and Hernandez. The trial court denied the
second plea. 7
This appeal
In this second interlocutory appeal, the Comptroller argues that the trial court erred
in denying the second plea because the evidence showed that the Alcortas did not file a claim on
September 8, 2017, that would trigger a waiver of sovereign immunity under Section 74.506 and
confer jurisdiction on the court. The Comptroller acknowledges that he previously argued in his
amended plea that the court did not have jurisdiction because there was no record that the Alcortas
filed a claim on September 8, 2017. The Comptroller also reasserts the same argument from
Alcorta I concerning six of the Alcortas not being proper parties to this action. 8
The Alcortas respond that the Comptroller may not relitigate in the second plea the
same issues using the same evidence that he presented in his amended plea. The Alcortas argue
that because this Court had a duty to consider subject-matter jurisdiction sua sponte, we impliedly
7 The trial court prepared findings of fact and conclusions of law in response to the
Comptroller’s request.
8 In anticipation of the Alcortas’ response brief, the Comptroller also asserts a preemptive
argument that the March 2018 claim did not trigger a waiver of sovereign immunity and confer
jurisdiction on the court.
9
resolved the Comptroller’s complaint about the September 2017 claim in Alcorta I. The Alcortas
maintain that the September 2016 EasyLobby visitor report is not newly discovered evidence, and
the report is not relevant to whether the Alcortas filed a claim in September 2017.
APPLICABLE LAW
Generally, Texas appellate courts have jurisdiction to hear appeals only from final
judgments. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam).
A party may, however, appeal an interlocutory order that denies or grants a government entity’s
plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). This interlocutory appeal is
an accelerated appeal that must be filed within twenty days after the order is signed. See Tex. R.
App. P. 26.1(b), 28.1(a). Although Section 51.014(a)(8) does not expressly limit a party to one
interlocutory appeal, the right to successive interlocutory appeals is not without limits. See Scripps
NP Operating, LLC v. Carter, 573 S.W.3d 781, 789 (Tex. 2019); see also Rusk State Hosp.
v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (explaining that Section 51.014(a) is strictly construed
because it is limited exception to general rule that party may appeal only from final judgments
or orders).
When a governmental unit files successive pleas to the jurisdiction, an appellate
court’s jurisdiction for an interlocutory appeal of the order denying the latter plea can turn on
whether the appellate timetable actually ran from the order denying the original plea. City of
Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 300 (Tex. 2017) (per curiam). To
reset the appellate clock such that the governmental entity may take an interlocutory appeal from
the latter order, the latter plea must be “new and distinct” from the earlier plea. Id. at 301; see
Jones, 388 S.W.3d at 667 (noting that permitting successive interlocutory appeals that are not new
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and distinct would eliminate clear twenty-day deadline in Rule 26.1(b) and work against statutory
purpose of judicial efficiency). If the latter plea is not new and distinct, then it, despite its name,
is merely a motion for reconsideration of the denial of the earlier plea. Smedley, 533 S.W.3d at
301. To determine whether the latter plea is new and distinct, a court should compare the substance
and procedural nature of the two pleas. See id. A second plea to the jurisdiction that makes new
arguments to support a previously asserted ground is simply a motion to reconsider. Id.; see also
Jones, 388 S.W.3d at 667 (concluding that City’s new reason why it believed its immunity had not
been waived was change in “form without substance” that did not reset appellate clock).
ANALYSIS
Based on our review of the record, the Comptroller’s second plea was a change in
“form without substance” that did not warrant resetting the appellate clock. Smedley, 533 S.W.3d
at 300. The Comptroller did not raise “new and distinct” grounds for relief in his second plea.
See id. at 301. The Comptroller acknowledges that his “First Amended Plea alleged [] that
Plaintiffs had failed to file a claim in September 2017” that could trigger a waiver of sovereign
immunity under Section 74.506. The second plea was no different in substance on this score
because it too alleged that business records demonstrated that the Alcortas did not file a claim in
September 2017 and thus that “sovereign immunity ha[d] not been waived, and the suit should be
dismissed.” See Jones, 388 S.W.3d at 667 (concluding that City’s amended plea that purported to
assert new reason why it believed immunity had not been waived raised no new grounds and was
motion to reconsider.) The Comptroller also argued in both pleas that six of the Alcortas were not
authorized to file an appeal under Section 74.506 because they are not persons aggrieved by the
decision of a claim.
11
Moreover, the trial court examined the same or substantially similar evidence to
consider the amended and second pleas. See Smedley, 533 S.W.3d at 302 (concluding that later
motion for summary judgment was easily distinguished from original plea to the jurisdiction based
on extensive evidence that trial court considered for first time). The September 2016 EasyLobby
visitor report at the core of the second plea was not newly discovered evidence unknown or
unavailable to the Comptroller when he filed the first plea. Indeed, the Comptroller submitted the
September 2017 EasyLobby visitor report for the LBJ Building with his first plea, and he argued
that the records controverted the Alcortas’ declarations and demonstrated that the Alcortas did not
sign into the Comptroller’s office in September 2017.
The trial court considered the April 2019 affidavit and deposition testimony of
Clayton, the Comptroller’s designated corporate representative, when it denied both the amended
and second pleas. Clayton averred that there was no record of a claim filed by the Alcortas on
September 8, 2017, but it was possible that the Alcortas appeared before a Comptroller employee
that day and no record was made of the visit.
The court also considered the April 2019 sworn declarations from Venable and
Hernandez when it denied the amended and second pleas. The declarations reference that Venable
and Hernandez made “two visits” to the Comptroller’s office to file “two claims,” and state
that Venable and Hernandez walked into the Comptroller’s office and filed a claim on
September 8, 2017. The declarations that these parties submitted in 2021 are substantially similar
to their 2019 affidavits. Although the 2021 affidavits include that the Alcortas walked into the
Comptroller’s office on September 8, 2016, to obtain information, this fact has no bearing
on jurisdiction.
12
Finally, evidence that the Comptroller presented in support of its second plea was
not material to the court’s jurisdictional analysis. See Smedley, 533 S.W.3d at 302. The
Comptroller did not establish a jurisdictional fact by the September 2016 EasyLobby visitor report,
and the trial court had already considered the September 2017 EasyLobby report when analyzing
the amended plea to the jurisdiction.
CONCLUSION
While subject-matter jurisdiction can be raised at any time, it can only be raised
before a court of competent jurisdiction. See Texas Comm’n on Env’t. Quality v. Bosner-Lain,
438 S.W.3d 887, 891 n.1 (Tex. App.—Austin 2014, no pet.) (citing Jones, 388 S.W.3d at 667).
Under Smedley, the issues in the Comptroller’s second plea were not sufficiently new and distinct
from the issues previously presented to render the ruling on the second plea independently
appealable. See Smedley 533 S.W.3d at 301. The pleas alleged the same jurisdictional issues and
concerned the same relevant evidence. We thus conclude that the second plea was a motion to
reconsider the previous denial of the amended plea. See Jones, 388 S.W.3d at 667. Because the
Comptroller filed his notice of appeal more than twenty days after the trial court signed the order
denying the amended plea, we lack jurisdiction over this appeal. See Tex. R. App. P. 26.1(b),
28.1(a); Smedley, 533 S.W.3d at 300, 302.
For the foregoing reasons, we dismiss this appeal for want of jurisdiction. See
Tex. R. App. P. 42.3(a).
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__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Dismissed for Want of Jurisdiction
Filed: August 18, 2023
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