legal right privilege in Texas

2025The APA waives sovereign immunity for challenges regarding the “validity” or “applicability of a rule” “if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” Tex. Gov’t Code § 2001.038(a); see Tex. Logos, L.P. v. TxDOT, 241 S.W.3d 105, 123 (Tex. App.—Austin 2007, no pet.) (holding that “sec- tion 2001.038 is a grant of original jurisdiction and, moreover, waives sovereign im- munity”).

2017See Tex. Gov’t Code § 2001.038(a) ("The validity or applicability of a rule ... may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”); Texas Logos, L.P. v. Texas Dep’t of Transportation, 241 S.W.3d 105, 122-24 (Tex. App.—Austin 2007, no pet.) (noting that relief under section 2001.038 does not extend to invalidating agency decisions and that challenge to validity of rules would amount to "mere abstract, advisory opin

2023Appellees’ APA claim against the Department invokes the trial court’s “subject matter jurisdiction if appellees have challenged the ‘validity’ or ‘applicability’ of a rule under the APA and they allege that the ‘rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.’” Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, no pet.) (quoting Tex. Gov’t Code § 2001.038(a)).

2015No claim to original U.S. Government Works. 9 Teladoc, Inc. v. Texas Medical Board, 453 S.W.3d 606 (2014) Med & Med GD (CCH) P 305,173 applicability of a rule ... may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair a legal right or privilege of the plaintiff.”), (c) (“The state agency must be a party to the action.”); see also Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 700 (Tex.App.–Austin 2011, no pet.) (explaining that section 2001.038 wai

2023The APA waives governmental immunity for a suit challenging “[t]he validity or applicability of a rule” when the rule or its threatened application will interfere with, impair, or 4 threaten to interfere with or impair a legal right or privilege.” See Tex. Gov’t Code § 2001.038(a); see also LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 122 (Tex. App—Austin 2017, pet. denied).

2018Section 2001.038 authorizes only actions for declaratory judgment to determine either the “validity” or “applicability” of a rule “if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with 8 or impair, a legal right or privilege of the plaintiff.” Tex. Gov’t Code § 2001.038(a); see LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 125 (Tex. App.—Austin 2017, pet. denied).

2015The APA gives the district court jurisdiction to resolve two issues: "(1) whether a rule is valid, and/or (2) whether a rule is applicable." Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.-Austin 2002, pet. denied). "[The APA] authorizes declaratory relief when determining the validity or applicability of a rule, if the plaintiff alleges `that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.'" El Paso Hosp.

2014The APA gives the district court jurisdiction to resolve two issues: “(1) whether a rule is valid, and/or (2) whether a rule is applicable.” Friends of Canyon Lake, Inc. v. Guadalupe–Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.—Austin 2002, pet. denied). “[The APA] authorizes declaratory relief when determining the validity or applicability of a rule, if the plaintiff alleges ‘that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.’” El Paso Hosp.

2010Because section 2001.038 of the APA does not prescribe a standard of review, the Texas Supreme Court has held that “[jjudicial review of rules is thus largely unlimited in ... scope.” Railroad Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69, 75 (Tex.2003).

2010Because section 2001.038 of the APA does not prescribe a standard of review, the Texas Supreme Court has held that "[j]udicial review of rules is thus largely unlimited in . . . scope." Railroad Comm'n v. WBD Oil & Gas Co. , 104 S.W.3d 69, 75 (Tex. 2003).

2016See Tex. Gov't Code § 2001.038(a); Slay v. Texas Comm’n on Envtl Quality, 351 S.W.3d 532, 544 (Tex.App.—Austin 2011, pet. denied) ("In APA section 2001.038, the Legislature has waived sovereign immunity to the extent of creating a cause of action for declaratory relief regarding the "validity” or "applicability” of a "rule,” as defined under the Act, if "it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” (citing Texas Logos, L.P,, 241 S.W.3d at 123 (holding that "section 2

2015Code are to rules promulgated by the Commission. 6 See, e.g., Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.) (“Absent Legislative waiver, sovereign immunity deprives Texas courts of subject- matter jurisdiction over any suit against the State or its agencies or subdivisions.” (citing Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 , 620–21 (Tex. 2011) (per curiam))). 3 action for declaratory judgment” against an agency to determine “[t]he validity or applicability of a rule” where “it is alleged that the rule or its threatened application interferes wit

2022See Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 720 (Tex. App.—Austin 2007, no pet.).

2016See Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 720 (Tex.App.—Austin 2009, no pet.).

2017See Tex. Gov’t Code § 2001.038(a) ("The validity or applicability of a rule ... may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”); Texas Logos, L.P. v. Texas Dep’t of Transportation, 241 S.W.3d 105, 122-24 (Tex. App.—Austin 2007, no pet.) (noting that relief under section 2001.038 does not extend to invalidating agency decisions and that challenge to validity of rules would amount to "mere abstract, advisory opin

2016GOV’T CODE ANN. § 2001.038(a) (West 2016); Machete’s Chop Shop, Inc. v. Tex. Film Comm’n, 483 S.W.3d 272, 285 (Tex. App.—Austin 2016, no pet.).

2015Code are to rules promulgated by the Commission. 6 See, e.g., Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.) (“Absent Legislative waiver, sovereign immunity deprives Texas courts of subject- matter jurisdiction over any suit against the State or its agencies or subdivisions.” (citing Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 , 620–21 (Tex. 2011) (per curiam))). 3 action for declaratory judgment” against an agency to determine “[t]he validity or applicability of a rule” where “it is alleged that the rule or its threatened application interferes wit

2014Absent legislative waiver, sovereign immunity deprives Texas courts of subject-matter jurisdiction to adjudicate any suit against the State or its agencies or subdivisions.13 Accordingly, Hernández purports to rely on APA section 2001.038, which waives or overcomes sovereign immunity to the extent of authorizing “an action for declaratory judgment” against a state agency to determine “[t]he validity or applicability of a rule . . . if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the

2014Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex.1996)). .See Tex. Gov’t Code § 2001.038(a), (c); see also Texas Dep't of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 700 (Tex.App.-Austin 2011, no pet.) (“APA section 2001.038 waives sovereign immunity to the extent of creating a cause of action for declaratory relief regarding the ‘validity’ or ‘applicability’ of a 'rule' if 'it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.' "). . 971 S.W.2d at 445-46 (G

2014Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex. 1996)). 77 See Tex. Gov’t Code § 2001.038(a), (c); see also Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 700 (Tex. App.—Austin 2011, no pet.) (“APA section 2001.038 waives sovereign immunity to the extent of creating a cause of action for declaratory relief regarding the ‘validity’ or ‘applicability’ of a ‘rule’ if ‘it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.’”). 25 whether appellees h

2016See Tex. Gov't Code § 2001.038(a); Slay v. Texas Comm’n on Envtl Quality, 351 S.W.3d 532, 544 (Tex.App.—Austin 2011, pet. denied) ("In APA section 2001.038, the Legislature has waived sovereign immunity to the extent of creating a cause of action for declaratory relief regarding the "validity” or "applicability” of a "rule,” as defined under the Act, if "it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” (citing Texas Logos, L.P,, 241 S.W.3d at 123 (holding that "section 2

2014Quality, 351 S.W.3d 532 , 543-48 (Tex. App.—Austin 2011, pet. denied). 16 See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95-96 (Tex. 2012); Texas State Bd. of Veterinary Med.

2014It is from this judgment that Hernández appeals, insisting that he properly invoked the district court’s subject-matter jurisdiction via section 2001.038. 4 See Tex. Gov’t Code § 2001.038 (authorizing “an action for declaratory judgment” against a state agency to determine “[t]he validity or applicability of a rule . . . if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”). 5 Cf. id. §§ 2001.003(6) (APA’s definition of a “rule”), .021-.034 (APA’s rule-making procedures),

2014It is from this judgment that Hernández appeals, insisting that he properly invoked the district court’s subject-matter jurisdiction via section 2001.038. 4 See Tex. Gov’t Code § 2001.038 (authorizing “an action for declaratory judgment” against a state agency to determine “[t]he validity or applicability of a rule . . . if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”). 5 Cf. id. §§ 2001.003(6) (APA’s definition of a “rule”), .021-.034 (APA’s rule-making procedures),

2025Ins., 214 S.W.3d at 622 (“The purpose of Section 2001.038 is to obtain a final declaration of a rule’s validity before the rule is applied.”).

2023But that statute also contains an exclusive-jurisdiction provision specifying that an action seeking this kind of declaratory relief “may be brought only in a Travis County district court.” Id. § 2001.038(b); see also Gordon v. Jones, 196 S.W.3d 376 , 383 & n.5 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (characterizing § 2001.038(b) as being jurisdictional in nature).

2023Texas Ass’n of Acupuncture & Oriental Med. v. Texas Bd. of Chiropractic Exam’rs, 524 S.W.3d 734, 739 (Tex. App.—Austin 2017, no pet.); see also Tex. Gov’t Code § 2001.038(a) (authorizing “validity or applicability of a rule” to be “determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff”).

2016Finance Comm'n of Tex. v. Norwood, 418 S.W.3d 566 , 582 n. 83 (Tex.2013) (observing that APA section 2001.038, by requiring that plaintiff ”allege[] that [a] rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff[,] ... does not purport to set a higher standard than that set by the general doctrine of standing, and it cannot be lower, since’courts’ constitutional jurisdiction cannot be enlarged by statute” (citing In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 462 (Tex.2011))); see also In re Lazy W

2015Insurers v. Texas Dep’t of Ins., 925 S.W.2d 667, 670 (Tex. 1996) (noting that “purposes of [APA] section 2001.033 [reasoned justification and other required contents of agency order adopting rule] [are] to provide meaningful public participation in the rulemaking procedure, to allow opponents of the rule to formulate specific challenges, and to ensure that the agency carefully considers and analyzes a rule before adopting it”), superseded on other grounds by statute as noted in Lower Laguna Madre Found. v. Texas Nat.

2015Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983). 40 application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff87.

2014Quality, 351 S.W.3d 532 , 543-48 (Tex. App.—Austin 2011, pet. denied). 16 See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95-96 (Tex. 2012); Texas State Bd. of Veterinary Med.

2014They acknowledge that section 2001.038 authorizes “an action for declaratory judgment” against a state agency—thereby waiving sovereign immunity—to the extent of determining “[t]he validity or applicability of a rule . . . if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”77 However, they dispute 75 See Bland, 34 S.W.3d at 554 . 76 See Andrade, 345 S.W.3d at 6 (“Because the [plaintiffs] seek only declaratory and injunctive relief, and because each [plaintiff] seeks the

2014Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex.1996)). .See Tex. Gov’t Code § 2001.038(a), (c); see also Texas Dep't of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 700 (Tex.App.-Austin 2011, no pet.) (“APA section 2001.038 waives sovereign immunity to the extent of creating a cause of action for declaratory relief regarding the ‘validity’ or ‘applicability’ of a 'rule' if 'it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.' "). . 971 S.W.2d at 445-46 (G