TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00220-CV
Nandita Berry, in her Official Capacity as Secretary of State of the State of Texas,
Appellant
v.
Texas Democratic Party and Gilberto Hinojosa in his Official Capacity as Chair of The
Texas Democratic Party, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-13-002362, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
OPINION
The Texas Democratic Party and its chair, Gilberto Hinojosa, (collectively, the TDP)
sued Nandita Berry, in her Official Capacity as Secretary of State of the State of Texas, (the
Secretary) seeking reimbursement of certain of its primary-election expenses for the 2012 election.1
See Tex. Elec. Code §§ 173.001-.088 (governing primary-election financing). The trial court denied
the Secretary’s plea to the jurisdiction, from which she perfected this interlocutory appeal. See Tex.
Civ. Prac. & Rem. Code § 51.04(a)(8) (authorizing interlocutory appeal from denial of governmental
entity’s challenge to jurisdiction). The principal issue on appeal is whether the TDP satisfied all
statutory prerequisites to suit necessary to invoke the limited waiver of sovereign immunity in
1
John Steen, in his official capacity as Secretary of State, was the original defendant.
Nandita Berry was substituted as the defendant when she succeeded Steen as Secretary of State in
January 2014.
section 173.086 of the Texas Election Code. See Tex. Elec. Code § 173.086(a) (authorizing person
who submitted “a statement of estimated primary election expenses” under Chapter 173, Subchapter
D of Election Code to challenge amount approved for reimbursement of primary-election expenses).
We conclude that the TDP failed to invoke section 173.086’s waiver of immunity because it did not
timely submit to the Secretary an itemized estimate of the category of expense for which it
seeks reimbursement in the underlying lawsuit. See id. § 173.081(b)(1) (statement of estimated
primary-election expenses is required to “contain an itemized estimate . . . of the primary expenses
to be incurred”). We therefore reverse the trial court’s order denying the Secretary’s plea to the
jurisdiction and dismiss the TDP’s claims for want of jurisdiction.
STATUTORY SCHEME GOVERNING STATE REIMBURSEMENT
OF PRIMARY-ELECTION EXPENSES
As authorized by Chapter 173 of the Election Code, state funds appropriated to
finance primary elections may be spent to reimburse “expenses incurred by a political party in
connection with a primary election” if such expenses are “necessary for the holding of a primary
election.” Id. § 173.001(a), (b). “Regardless of whether state funds are requested for paying primary
expenses, a written statement of estimated expenses to be incurred in connection with a primary
election shall be submitted to the secretary of state by . . . the state chair, for expenses of the state
chair or state executive committee.” Id. § 173.081(a)(2). Among other required components, “the
statement must . . . contain an itemized estimate, prepared by the authority submitting the statement,
of the primary expenses to be incurred and a statement by the authority of whether state funds are
requested.” Id. § 173.081(b)(1). The “statement of estimated primary-election expenses” (SEPE)
2
for a general primary election must be submitted not later than the 45th day before that election, and
the SEPE for a runoff primary election must be submitted no later than the 10th day after the general
primary election day. Id. § 173.081(c)(2), (e).
On receipt of a SEPE, the Secretary “shall review the statement to determine which
items of estimated expense and the amounts of those items to approve.” Id. § 173.082(a). The
Secretary “shall approve an item of estimated expense if the secretary determines that it is reasonably
necessary for the proper holding of the primary election.” Id. § 173.082(b). The Secretary is thus
charged with determining, on a per-item basis, which expense items to approve in whole or part.
The Secretary must “promptly notify the authority submitting the statement of each item of estimated
expense not approved or approved in a reduced amount,” and no primary funds may be used to pay
an item of estimated primary-election expenses that has not been approved by the Secretary.
Id. § 173.082(c), (d).
Chapter 173 authorizes the state comptroller to pay, in installments, the bulk of the
estimated primary expenses that have been approved by the Secretary. The final installment,
however, cannot be paid until the party chair has filed a final expense report itemizing the actual
primary expenses incurred. Id. §§ 173.083, .084. The final expense report must be filed with the
Secretary within 30 days after the general or runoff election, as applicable, regardless of whether
state funds are requested for paying primary expenses. Id. § 173.084(a), (b).
Thus, the statute expressly contemplates that an initial estimate of primary expenses
expected to be incurred may vary from the expenses actually incurred in holding the primary. If the
final expense report reveals that primary expenses were overestimated in the SEPE, the discrepancy
3
is to be resolved in the final installment payment. Id. § 173.083(d). If the actual expenditure for an
item of primary-election expense exceeds the amount estimated for the item in the SEPE, the excess
expense may be paid with state funds in accordance with the provisions in section 173.085.
Id. § 173.085(a). To obtain reimbursement from the state for an excess primary expense, section
173.085 requires that the party chair include in the final expense report “(1) an identification of the
item for which the excess expense was incurred; (2) the amount of the excess; and (3) an explanation
of the reason for exceeding the estimate.” Id. § 173.085(b). The Secretary can approve state
payment of the excess expense only if “that payment is justified by good cause.” Id. § 175.085(c).
If the Secretary does not approve all the primary-election expenses requested, “[t]he
authority who submitted a statement of estimated primary election expenses under [subchapter D of
chapter 173] may challenge in a district court in Travis County the amount of state funds approved
by the secretary of state for disbursement.” Id. § 173.086(a).
TDP’S CLAIM FOR REIMBURSEMENT OF LITIGATION EXPENSES
In the present case, the TDP seeks reimbursement from state primary funds for
litigation expenses incurred in connection with several federal court lawsuits challenging
redistricting maps adopted by the Texas Legislature in 2011. According to the TDP: it was sued in
some of the lawsuits and intervened in others; its participation in the lawsuits was necessary and was
related to the 2012 primary elections because the TDP had been enjoined from using the 2011
redistricting maps for the 2012 elections; and the party reasonably and necessarily incurred attorney’s
fees and expenses in connection with the lawsuits. It is undisputed that the TDP (1) was a party to
at least some of the redistricting lawsuits before the 2012 SEPE was due; (2) had actually incurred
4
at least some attorney’s fees and expenses related to that litigation before the 2012 SEPE filing
deadline; and (3) timely filed its 2012 SEPE but did not include in that report any amount for
estimated litigation expenses.2
Although no litigation expenses were included in the TDP’s 2012 SEPE, the party
later requested reimbursement of attorney’s fees and expenses for the redistricting litigation in its
2012 final primary-cost report and submitted supporting invoices and documentation in connection
with that request. After reviewing the information and materials provided by the TDP, the Secretary
determined that the redistricting litigation expenses were not “necessary for and directly related to
the conduct of primary elections” and thus were not eligible for payment from 2012 primary funds.
See id. § 173.001(b) (“Expenses incurred in connection with . . . party activity that is not necessary
for the holding of a primary election may not be paid with state funds.”); see also 1 Tex. Admin.
Code §§ 81.109(a) (Office of Sec’y of State, Primary Elections) (“[O]nly expenses necessary for and
directly related to the conduct of primary elections are payable from primary funds.”), .134 (Office
of Sec’y of State, Primary Elections) (procedure for obtaining reimbursement of legal expenses from
primary funds).3
2
The TDP’s petition and brief in this case do not identify when it began incurring litigation
expenses related to the redistricting cases or the amount of its reimbursement claim. On appeal, the
Secretary requested that we take judicial notice of various federal-court pleadings establishing that
the TDP’s participation in the federal-court proceedings substantially pre-dated the due date for filing
the 2012 SEPE. At oral argument, the TDP conceded that it had participated in at least some of the
lawsuits and incurred related litigation expenses in those cases prior to filing its 2012 SEPE.
3
Although pertinent provisions of the Texas Administrative Code were amended after the
events giving rise to the underlying litigation, we cite the current versions of the regulations for
convenience because the changes to the rules, although substantive, are not material to the
jurisdictional matter at issue in this appeal.
5
Following disapproval of the requested expenses, the TDP sued the Secretary under
section 173.086 of the Election Code, sought a declaration that the litigation expenses are
reimbursable under section 173.001(a) of the Code, and requested a writ of mandamus directing the
Secretary to pay the requested expenses. The TDP also sought interest on the amounts denied and
reasonable and necessary attorney’s fees for prosecuting the underlying lawsuit. See Tex. Civ. Prac.
& Rem. Code § 37.009 (authorizing costs and reasonable and necessary attorney’s fees for
declaratory-judgment action).
In addition to disputing that the requested litigation expenses are eligible for
reimbursement under the Election Code and related regulations, the Secretary filed a plea to the
jurisdiction based on sovereign immunity. According to the Secretary, the itemization of estimated
expenses requirement in section 173.081(b)(1) of the Election Code is a statutory prerequisite to the
waiver of immunity from suit in section 173.086(a) of the Code; accordingly, she argued that
immunity has not been waived for disputes about primary expenses that were not itemized in a
timely filed SEPE. Because it is undisputed that the TDP’s 2012 SEPE did not include an estimate
for any litigation expenses to be incurred in connection with the 2012 primary election, the Secretary
contended that there has been no waiver of immunity as to that category of expenses. The TDP
countered that, under a plain reading of section 173.086(a), the only prerequisite to a suit challenging
the Secretary’s disbursement decision is the timely filing of a SEPE, a requirement that the
TDP satisfied.
Following a non-evidentiary hearing, the trial court denied the Secretary’s plea to the
jurisdiction. This interlocutory appeal followed.
6
DISCUSSION
Although the parties agree that section 173.086(a) of the Election Code is a waiver
of the state’s immunity from suit, they disagree about its scope and whether the TDP’s
declaratory-judgment and mandamus claims are viable separate and apart from the Election Code
claim. The Secretary contends that (1) section 173.086(a) does not waive immunity from suit when
a party challenges the denial of an alleged primary expense that was not included in the party’s
SEPE; (2) declaratory-judgment relief is not available because it is duplicative of the TDP’s Election
Code claim and improperly seeks to compel a discretionary act; and (3) mandamus relief is likewise
unavailable because the TDP seeks to compel a discretionary act and the relief requested is derivative
of a claim barred by sovereign immunity.
The TDP takes the position that (1) section 173.086(a) waives immunity from suit
as long as a SEPE was timely filed, which indisputably occurred in this case; (2) the failure to
include any particular expense in the SEPE cannot be a statutory prerequisite to suit because sections
173.081(b)(1) and 173.086(a) do not require that any specific categories or types of expenses be
included in the itemized SEPE; (3) jurisdiction cannot hinge on whether litigation expenses were
included in the SEPE because the redistricting litigation was ongoing and no estimate could have
been made at the time the SEPE was due; (4) declaratory relief is available because the Secretary has
no discretion not to pay the litigation expenses; (5) the trial court has jurisdiction to issue mandamus
relief to compel compliance with a rule or statute requiring the Secretary to pay the requested
litigation expenses; and (6) even if mandamus relief would be unavailable to compel payment of the
7
requested expenses, it is available to compel the Secretary to consider the reimbursement claim on
its merits.
Standard of Review
The state generally enjoys immunity from suit and liability unless immunity has been
clearly and unambiguously waived by legislative enactment or constitutional provision. See Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374-75 (Tex. 2006); Wichita Falls State Hosp.
v. Taylor, 106 S.W.3d 692, 694 n.3, 695 (Tex. 2003); see also Tex. Gov’t Code § 311.034 (requiring
clear and unambiguous language to effect statutory waiver of sovereign immunity). Whether
sovereign immunity has been waived implicates subject-matter jurisdiction. Texas Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject-matter jurisdiction is essential
to the authority of a court to decide a case; it is never presumed and cannot be waived. Texas Ass’n
of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Whether a court has
subject-matter jurisdiction is a question of law, which we review de novo, when disputed facts are
not presented. See Miranda, 133 S.W.3d at 226 (subject-matter jurisdiction is determined as matter
of law on pleadings and when evidence relevant to jurisdictional inquiry is undisputed);
Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 85-86 (Tex. App.—Austin 2004,
pet. denied).
The jurisdictional analysis in the present case requires us to construe the Election
Code provisions that bear on waiver of immunity. We review questions of statutory construction
de novo, Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624
(Tex. 2011), and our primary objective is to give effect to the legislature’s intent as expressed in the
8
language of the statute, First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008). We
discern legislative intent from the statute as a whole, not from isolated portions. 20801, Inc.
v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). Absent an absurd result, we rely on the plain meaning
of the text unless a different meaning is supplied by legislative definition or is apparent from the
context. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). In addition to these core
statutory-construction principles, we are required to strictly construe statutes waiving sovereign
immunity. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). “[Sovereign] immunity
remains intact unless surrendered in express and unequivocal terms by the statute’s clear and
unambiguous waiver.” Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012); see
Tex. Gov’t Code § 311.034.
Waiver of Sovereign Immunity under Chapter 173
Section 173.086(a) of the Election Code provides that “[t]he authority who submitted
a statement of estimated primary election expenses under [subchapter D of chapter 173] may
challenge in a district court in Travis County the amount of state funds approved by the secretary of
state for disbursement.” Tex. Elec. Code § 173.086(a). This provision clearly and unambiguously
waives immunity from suit. The critical issues in this case are whether the statute provides any
prerequisites to suit and whether TDP complied with such prerequisites.
“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity.” Tex. Gov’t Code § 311.034. When the
legislature “carves out particular substantive claims for which the State will consent to suit,” it may
also provide “the procedures a litigant must follow to obtain such a waiver.” Chatha, 381 S.W.3d
9
at 512-13. “[I]t is the Legislature’s function to determine what steps a litigant must take before the
state’s immunity is waived.” Id. at 513. However, not all of a statute’s provisions are necessarily
“statutory prerequisites to suit.” See id. at 511-12. Rather, a statutory prerequisite to suit has three
defining characteristics: (1) it is found in the relevant statutory language, (2) it is a requirement, and
(3) the requirement must be met before the lawsuit is filed. Id.
The parties agree that, under section 173.086(a)’s plain language, filing a SEPE is a
statutory prerequisite to suit. See Tarrant Cnty. Democratic Party v. Steen, 434 S.W.3d 188, 196
(Tex. App.—San Antonio 2014, pets. filed) (holding that filing SEPE is jurisdictional prerequisite
to suit). They join issue, however, on whether and to what extent the itemized-estimate requirement
in section 173.081(b)(1) is a statutory prerequisite to suit.
Section 173.081, which is part of subchapter D, provides in relevant part:
(a) Regardless of whether state funds are requested for paying primary expenses, a
written statement of estimated expenses to be incurred in connection with a primary
election shall be submitted to the secretary of state by [the party chair].
(b) The statement must:
(1) contain an itemized estimate, prepared by the authority submitting the
statement, of the primary expenses to be incurred and a statement by the authority of
whether state funds are requested; and
(2) be sworn to by the authority submitting the statement.
Tex. Elec. Code § 173.081(a), (b) (emphases added). The Secretary contends that a SEPE that does
not include a specific primary-expense item is insufficient to invoke section 173.086(a)’s waiver of
immunity in a suit challenging the Secretary’s decision disapproving reimbursement of the
omitted item.
10
The San Antonio Court of Appeals recently considered this precise issue in Tarrant
County Democratic Party v. Steen and concluded that filing a statement of estimated primary
expenses that complies with subchapter D’s provisions, including section 173.081, is a statutory
prerequisite and that failure to file a compliant SEPE is a jurisdictional bar to suit. Steen,
434 S.W.3d at 196. The court further held, however, that “including an estimate of legal expenses
to defend against a suit that has not been filed is not required to satisfy the [SEPE] statutory
prerequisite,” because section 173.081(b)(1) does not require any particular categories to be itemized
and it would be pointless to include an estimate for a category of wholly unanticipated expenses
under such circumstances. Id. at 196-97 (emphasis added).
In that case, the Tarrant County Democratic Party (TCDP) sought reimbursement of
litigation expenses incurred in connection with several lawsuits originating in a challenge to an
individual’s eligibility to be a candidate in the 2008 Democratic primary election. Id. at 192-93.
Two lawsuits had been filed and resolved prior to the 2008 SEPE filing deadline. Id. at 193 & n.4.
TCDP requested reimbursement of their attorney’s fees from the primary-election fund for those
lawsuits, and the Secretary approved the request and authorized reimbursement. Id. Several months
after the primary election, however, another lawsuit was filed raising the same challenge to the
Democratic Party’s candidate, who had run unopposed in the primary. Id. Although the TCDP
requested reimbursement of litigation expenses related to the later-filed lawsuit, it apparently had
not included any estimate of expenses related to that proceeding in its 2008 SEPE. Id. at 193, 196
(indicating that fees were incurred four months after primary election and analyzing whether future
expenses for unanticipated litigation must be included in SEPE to invoke statutory waiver of
11
immunity). The Secretary denied the reimbursement claim on the basis that the requested fees were
“unrelated to the administration of the primary election.” Id. at 193. Following a bench-trial on the
merits, the trial court ruled in the Secretary’s favor.
In the TCDP’s appeal from the adverse trial-court judgment, the Secretary asserted
that sovereign immunity had not been waived for expenses that were not included in the party’s
SEPE, which issue the court of appeals was obligated to consider as a threshold matter. The court
determined that unanticipated future litigation expenses were not required to be included in the SEPE
to satisfy section 173.086(a)’s SEPE requirement. Id. at 196-97. The court’s salient holdings can
be summarized as follows: (1) filing a SEPE that complies with subchapter D’s provision, including
section 173.081, is necessary to invoke the waiver in section 173.086(a), (2) section 173.081(b)(1)
does not specify any particular categories of expenses to include, and (3) as a result, the failure to
include an estimate for unanticipated expenses does not render a SEPE defective for purposes of the
immunity waiver in section 173.086(a). Although it was unclear whether the TCDP had filed any
SEPE as required by section 171.081(a), the court assumed that either a SEPE had been filed or the
filing requirement had been waived by the Secretary and, with or without inclusion of an itemized
estimate for the requested fees, the record was sufficient to establish waiver of immunity under
section 173.086(a). See id. at 196-197.4
4
The case was tried on stipulated facts that did not include information about whether TCDP
had submitted a SEPE for the 2008 primary. However, the court inferred that a SEPE had either
been filed or the filing requirement had been waived by the Secretary because the Secretary would
not have been obligated to pay the fees for the two prior lawsuits unless the party chair had filed a
SEPE. Tarrant Cnty. Democratic Party v. Steen, 434 S.W.3d 188, 197 (Tex. App.—San Antonio
2014, pets. filed).
12
In the present case, the TDP contends that we are compelled to come to the same
conclusion given the undisputed fact that it timely filed its 2012 SEPE. The TDP reads Tarrant
County to hold that section 173.081(b)(1)’s requirement that a SEPE contain “an itemized estimate
. . . of the primary expenses to be incurred” does not constitute a statutory prerequisite as to any
particular category or item of primary expense. We do not construe Tarrant County so broadly,
however. Rather, the appellate court in that case acknowledged that the SEPE filing requirement in
section 173.086(a) contemplated the submission of a compliant SEPE. In any event, we hold that
the itemization requirement in section 173.081(b)(1) meets the definition of a statutory prerequisite:
it is found in the relevant statutory language; it is a requirement; and the requirement must be met
before the lawsuit is filed. It is therefore jurisdictional and must be satisfied to invoke section
173.086(a)’s waiver.
The central question here, of course, is whether the TDP has met the requirement
under the particular circumstances of this case. While it is true that section 173.081(b)(1) does not
specify particular categories of expenses that must be included in a SEPE, it does expressly mandate
the inclusion of an itemized estimate of expenses anticipated for the ensuing primary election. See
Tex. Elec. Code § 173.081(b)(1) (requiring itemized estimate of “primary expenses to be incurred”
(emphasis added)). In the present case, not only were the litigation expenses for which the TDP
seeks reimbursement from state primary funds anticipated, but some litigation expenses had actually
been incurred. Despite these circumstances, the TDP wholly omitted from its 2012 SEPE any
estimate of expenses associated with the redistricting litigation, nor did it include any reference to
13
such expenses that had already been incurred.5 These undisputed facts distinguish the present case
from Tarrant County. Because the TDP failed to include any estimate for litigation expenses that
were not only anticipated but also, to some degree, incurred prior to the 2012 SEPE filing deadline,
the TDP failed to successfully invoke section 173.086(a)’s immunity waiver.
In sum, we hold that filing a SEPE that complies with subchapter D’s requirements,
including the itemization requirement in section 173.081(b)(1), is a statutory prerequisite to suit and
thus essential to invoke section 173.086(a)’s waiver of immunity. The failure to include an estimate
of a category of primary expenses at least some of which have already been incurred renders a SEPE
inadequate for jurisdictional-prerequisite purposes in a suit challenging the Secretary’s denial of
reimbursement for omitted expenses.6 The TDP did not satisfy section 173.086(a)’s SEPE
requirement as to the redistricting litigation expenses it seeks in the underlying suit; accordingly, the
Secretary retains sovereign immunity from suit as to the TDP’s claims under the Election Code.
5
The TDP contends that, even though the lawsuits were known and some litigation expenses
had actually been incurred prior to the 2012 SEPE filing deadline, it was neither required to nor
capable of providing an estimate of expenses related to those suits because the lawsuits had not
concluded before the SEPE filing deadline. We are unpersuaded by this argument. Chapter 173
plainly contemplates a measure of uncertainty regarding the actual expenses that may be incurred
in connection with a primary. The party chair is only required to provide an estimate of expenses
in the SEPE, and the statute specifically provides a true-up mechanism in the event initial estimates
prove inaccurate. Tex. Elec. Code § 173.085. At any rate, the lack of certainty would not have
precluded the TDP from making at least some estimate based on the expenses incurred to date; the
number, nature, and complexity of the lawsuits; and the experience of its legal counsel.
6
We express no opinion as to the jurisdictional effect of a party’s omission of estimates for
expenses that are wholly unanticipated. Nor do we express any opinion as to what other provisions
in subchapter D of Chapter 173 constitute statutory prerequisites to suit. We hold only that when
a political party has, at the time its SEPE is filed, already incurred some expenses of a particular
type, the inclusion in its SEPE of an estimate as to that category of expenses is a statutory
prerequisite to a suit for reimbursement of expenses in that category.
14
Declaratory Judgment and Mandamus Relief
Having concluded that the TDP failed to invoke section 173.086(a)’s waiver of
immunity, we must now consider whether subject-matter jurisdiction may be based on the TDP’s
remaining claims for declaratory and mandamus relief.
The TDP’s declaratory-judgment claim has two aspects: (1) a declaration that the
Secretary violated section 173.001 by refusing to approve the disputed litigation expenses and (2) an
award of reasonable and necessary attorney’s fees for prosecuting the reimbursement lawsuit against
the Secretary. We conclude that neither of these claims survives the sovereign-immunity bar.
The Texas Uniform Declaratory Judgments Act (UDJA) “is not a general waiver of
sovereign immunity.” Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.
2011). The UDJA “does not enlarge a trial court’s jurisdiction, and a litigant’s request
for declaratory relief does not alter a suit’s underlying nature.” City of El Paso v. Heinrich,
284 S.W.3d 366, 370 (Tex. 2009). “‘[P]rivate parties cannot circumvent the State’s sovereign
immunity from suit by characterizing a suit for money damages . . . as a declaratory-judgment
claim.’” Id. at 371 (quoting Texas Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 856
(Tex. 2002)); see City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex. 2007) (immunity is not
waived if sole purpose of declaration of contractual or statutory rights is to obtain money judgment).
The relief the TDP seeks in its UDJA claim emanates from substantive rights conferred under
Chapter 173 of the Election Code; as discussed above, however, the TDP’s Election Code claims
are barred by sovereign immunity. “[A]n otherwise proper UDJA claim seeking to construe or
invalidate a statute is nonetheless barred by sovereign immunity if the remedy would have the effect
of establishing a right to relief against the State that implicates sovereign immunity and for which
15
immunity has not been waived.” Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl.
Quality, 307 S.W.3d 505, 515 (Tex. App.—Austin 2010, no pet.). Thus, the TDP cannot use a
declaratory-judgment action to obtain indirectly what is otherwise directly barred by
sovereign immunity.
To the extent the TDP seeks to invoke the narrow ultra vires exception to confer
jurisdiction over its UDJA claim, we conclude that the exception is not applicable. “To fall within
[the] ultra vires exception, a suit must not complain of a government officer’s exercise of discretion,
but rather must allege, and ultimately prove, that the officer acted without legal authority or failed
to perform a purely ministerial act.” Heinrich, 284 S.W.3d at 372. To determine whether the TDP
could state a claim under the ultra vires exception, we must determine whether the Secretary has
discretion to deny a claim for reimbursement of primary expenses from primary funds.
Chapter 173 requires approval of an item of estimated expense “if the secretary
determines that [the item of expense] is reasonably necessary for the proper holding of the primary
election.” Tex. Elec. Code § 173.082(b). If the Secretary disapproves of an estimated primary
expense on the grounds that it is not reasonably necessary, in whole or part, that expense cannot be
reimbursed from primary funds. Id. § 173.082(d). Section 173.085 also authorizes the Secretary to
determine whether good cause exists to reimburse all or part of an excess expense and would be
implicated in this case but for the sovereign immunity bar that obtains from the TDP’s omission of
the disputed litigation expenses from its SEPE. These provisions clearly imbue the Secretary with
some discretion as to the reimbursement of primary expenses.
16
If the Secretary’s determinations are disputed and the aggrieved party files suit, the
trial court is required to “order payment in the proper amount,” but only if the the court decides the
claimant is entitled by law to the additional relief. Id. § 173.086(c). Despite this mandatory
language, we observe two things: (1) there can be no trial-court determination of an entitlement to
additional relief here because the TDP’s claims are barred by sovereign immunity, and (2) the
legislature has expressly granted the Secretary discretion to make the determinations at issue in the
TDP’s lawsuit—whether the disputed expenses are “reasonably necessary for the holding of the
primary election” and whether there is “good cause” to pay an item of expense in excess of the
estimated amount. Because the TDP’s lawsuit complains of the Secretary’s discretionary act rather
than her failure to perform a purely ministerial act, the ultra vires exception is not available to avoid
the sovereign immunity bar. Accord Tarrant Cnty. Democratic Party, 434 S.W.3d at 199-200
(lawsuit implicated Secretary’s discretionary acts under primary-fund reimbursement statute such
that ultra vires exception is not available in suit to compel reimbursement of litigation expenses).
For the same reasons, we conclude that mandamus relief is not available to compel
payment of the disputed litigation expenses. The TDP’s mandamus claim is derivative of its claims
under the Election Code and likewise implicates sovereign immunity. Mandamus is not available
to compel the state to perform a discretionary act, but it may be viable for ultra vires acts or to
compel performance of a clearly mandatory and ministerial duty. See City of Round Rock
v. Whiteaker, 241 S.W.3d 609, 628 (Tex. App.—Austin 2007, pet. denied). As stated above, these
exceptions are inapplicable in the present case. Even when sovereign immunity is not implicated,
mandamus is available only when there is no adequate remedy at law. See In re Masonite Corp.,
17
997 S.W.2d 194, 197 (Tex.1999) (orig. proceeding). The TDP had an adequate remedy under the
Election Code but failed to satisfy the statutory prerequisites to suit. It cannot now obtain a
mandamus remedy to avoid the adverse consequences of such omission.
On appeal, the TDP has further asserted that the request for mandamus relief has
another aspect that does not involve a discretionary task: compelling the Secretary to consider the
reimbursement request on its merits. However, the documentation the TDP attached to its petition
conclusively establishes that the Secretary has already considered and denied the reimbursement
request on its merits. Mandamus relief is therefore unnecessary to compel the requested action.
CONCLUSION
For the reasons stated, we reverse the trial court’s order denying the Secretary’s
plea to the jurisdiction and render judgment dismissing the TDP’s claims for want of
subject-matter jurisdiction.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Reversed and Dismissed
Filed: October 24, 2014
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