OPINION
In these interlocutory appeals, MHCB (USA) Leasing and Finance Corp. (“MHCB”) and Valero Refming-Texas, L.P. (“Valero Refining”) (together, “the protesting parties”), who were plaintiffs below, and Galveston Central Appraisal District (“the District”) and Galveston Central Appraisal District Review Board (“the Board”), who were defendants below, each appeal from the trial court’s order granting in part and denying in part the District’s and Board’s joint plea to the jurisdiction. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2006). We determine (1) whether either or both of the protesting parties lacked standing to protest, and to seek judicial review of, the District’s and Board’s complained-of actions and (2) whether the trial court lacked jurisdiction over the protesting parties’ requests for declaratory and injunctive relief when, at their core, those claims sought a determination of whether the District had the statutory authority unilaterally to rescind an appraisal agreement between itself and the protesting parties. We reverse the order and remand the cause for the trial court to render an order dismissing certain claims asserted by MHCB and to deny the District’s and Board’s jurisdictional plea against certain of the claims of Valero Refining.
Background
This dispute concerns the 2004 appraised value, for ad valorem tax purposes, of Valero Refining’s Delayed Coker Unit (“the Coker Unit”), which is a refinery unit located in Texas City, Texas.
Valero Refining did not always own the Coker Unit. Before March 2004, MHCB owned the Coker Unit, and Valero Refining leased the unit from MHCB. Under its lease agreement with MHCB, Valero Refining was contractually obligated to pay property taxes on the Coker Unit. It was not until March 9, 2004 that Valero Refining purchased the Coker Unit from MHCB.
In December 2003, while MHCB still owned the Coker Unit, Robert T. Lehn, working for a private appraisal company on behalf of the District’s chief appraiser, 1 wrote Valero Refining to begin the 2004 appraisal process for Valero Refining’s Galveston County facilities, including the Coker Unit that it rented. Specifically, Lehn wrote to Roy G. Martin Jr., who was the vice president of Valero Corporate Services Company (“Valero Corporate”), the general partner of Valero Refining. Both Valero Corporate and Valero Refining were subsidiaries of Valero Energy Corporation (“Valero Energy”).
The appraisal process for the Coker Unit that had begun in December 2003 was part of a larger appraisal of what appears to have been all of the Valero Energy corporate family’s Galveston County industrial properties. Starting in March 2004, after Valero Refining had
On May 18, 2004, the District issued a notice of appraised value (“the first notice”), appraising the Coker Unit at $60,525,090. The protesting parties did not contest the appraised value set by the first notice, even though the new value significantly exceeded the Coker Unit’s 2003 appraised value, because the 2004 appraised value was consistent with that required by the Appraisal Agreement.
Within days of the first notice’s issuance, Lehn contacted Novosad to explain that the Texas City appraisal office was “under pressure” to explain certain appraisal figures. Then, on June 14, 2004, the Board held a meeting at which the District’s chief appraiser submitted the 2004 records for all industrial accounts, including those for the Coker Unit. At that meeting, the Board appears to have questioned the $60,525,090 appraisal value for the Coker Unit because, shortly thereafter, on June 21, 2004, Lehn contacted Novosad to advise him that
[s]ome are laughing at the values I put on Tall and on BP in Tx City, but more are very unhappy — saying anyone else would’ve put more on you two. I’m getting threatened by HCAD protests being blamed on equity and I’m getting what appears to be a possible tax unit challenge from Tx City — it’s your new Coker [Unit]....
On June 22, 2004, Lehn contacted Novosad to inform him that the 2004 appraisal for the Coker Unit would have to be increased by $100 million because of “information being brought to light” that Lehn “hadn’t properly considered,” among other things. That same day, the District issued a revised notice of appraised value for the Coker Unit (“the second notice”), which appraised the Coker Unit at $193,370,890. The record does not show that the second notice was issued upon order of the Board; rather, the evidence indicates that the second notice issued before any protest had been filed concerning the 2004 appraisal of the Coker Unit and that the second notice may have been based on revised appraisal figures submitted to the District by Lehn.
The protesting parties filed a joint protest of the District’s 2004 reappraisal and second notice on July 19, 2004. 2 After having held a hearing, the Board denied the protesting parties’ protest in August 2004, at which time the Board also ordered the District’s chief appraiser to correct the appraisal rolls to reflect an appraised value of $240,000,000 for the Coker Unit for 2004. The protesting parties then filed suit for judicial review of the Board’s decision in the protest and asserted claims, within the same suit, against the District based on its unilaterally having rejected the Appraisal Agreement.
In their live petition, the protesting parties asserted two alternative sets of allegations. Primarily, they alleged as follows:
• that the District had acted “outside its statutory authority” and “abused its discretion” by having issued the second notice in violation of the Appraisal Agreement, rendering the second notice invalid, and
• “because [the District] acted outside its authority” in rejecting the Appraisal Agreement, the Board also “acted outside its authority and abused its discretion by denying [the protesting parties’] protest regarding the invalidity and void character” of the second notice that the District issued after having rejected the Appraisal Agreement.
We will refer to these allegations as the protesting parties’ “Primary Allegations.” In conjunction with the Primary Allegations, the protesting parties sought declarations that
• the Appraisal Agreement was a “binding contract” for an appraisal value of $60 million;
• the District’s second notice of the appraised value was void;
• the District’s chief appraiser had abused his discretion and exceeded his authority by having issued the second notice, and that notice was thus “invalid and void”;
• the District had “breached its contractual agreement with [the protesting parties]”;
• the Board had “exceeded its authority” by having taken any action that resulted from the second notice or increased the amount appraised in the first notice; and
• the District and Board were estopped from valuing the Coker Unit at more than the value in the Appraisal Agreement.
The protesting parties also sought injunc-tive relief in the following forms:
• “enforcement” of the Appraisal Agreement by correcting the 2004 tax rolls to reflect the value for the Coker Unit reached in the Appraisal Agreement;
• “relief from the Second Notice and [the District’s] assessment of taxes” based upon the second notice, including the cancellation and setting aside of the Board’s pertinent final order; and
• “reimbursement of other fees and fines that have accrued and/or have been assessed against [the protesting parties] because of [the District’s and Board’s] improper and void conduct.”
The protesting parties further sought attorney’s fees and court costs.
Alternatively, in the event that the trial court determined that the second notice and the Board’s final determination of appraised value were valid, the protesting parties alleged that the District’s and Board’s actions in reappraising the Coker Unit’s value were unfair and discriminatory because of a “fundamentally erroneous and unlawful plan, method and formula of valuation and assessment” that resulted in an excessive valuation that was unequal with the values assessed for comparable properties. The protesting parties further alternatively alleged that the resulting appraisal was “an unlawful levy” that created an “illegal lien” on the Coker Unit. We will refer to these allegations as the protesting parties’ “Alternative Allegations.” In conjunction with their Alternative Allegations, the protesting parties alleged that the equalized value of the Coker Unit was approximately $37,732,240, sought injunc-tive relief to have the appraisal rolls corrected to reflect “an appraised value that is equal and uniform as required by law,” and sought attorney’s fees.
The District and Board filed a joint plea to the jurisdiction, challenging both the protesting parties’ Primary Allegations,
As for the protesting parties’ Alternative Allegations, alleging that the reappraisals were excessive and unequal, the District and Board argued that the protesting parties lacked standing to seek judicial review under the Property Tax Code either because (1) Valero Refining’s parent corporation, Valero Energy, which had not properly been designated as the agent of either protesting party, had filed the appraisal protest or, alternatively, (2) even if MHCB had standing, Valero Refining did not.
The protesting parties responded, as to their Primary Allegations based on the Appraisal Agreement, that the declaratory relief that they sought did not require waiver of immunity from suit because it did not seek damages (although the protesting parties sought recovery of court costs and attorney’s fees) and because it sought to establish whether the District and Board acted outside their statutory authority. Specifically, the protesting parties argued that suits challenging governmental-unit or agency action that falls outside of the unit’s or agency’s statutory authority — which the protesting parties alleged that the failure to adhere to the Appraisal Agreement was here — did not require legislative permission to proceed and did not require exhaustion of administrative remedies (although the protesting parties had exhausted administrative remedies anyway). The protesting parties further argued that, although their challenge to the 2004 reappraisals was based upon an agreement, their suit was still one challenging the appraisal value, for which the Property Tax Code waived immunity from suit in the form of a suit for judicial review. That is, the protesting parties argued that, because the Property Tax Code undisputedly allowed them to maintain a suit for judicial review of their protest to adverse appraisal decisions, and also because they sought to determine whether the District and Board had acted illegally, it should make no difference that the basis for their protest and for the declaratory and injunctive relief that they sought was an appraisal agreement with the District.
The protesting parties then responded, as to their Alternative Allegations alleging that the reappraisals were excessive and unequal, that (1) Valero Refining was the owner of the Coker Unit both at the time of the Appraisal Agreement’s execution and at all pertinent times thereafter; (2) even at the time that Valero Refining was a lessee of the Coker Unit, it was contractually obligated to pay property taxes on
The trial court granted the District’s and Board’s plea in part and denied it in part. The order recited:
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that [the protesting parties’] cause of action against [the District and Board] for breach of contract is hereby DISMISSED for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that the remaining grounds asserted in [the District’s and Board’s] Joint Plea to the Jurisdiction and Supplemental Plea to the Jurisdiction relating to (1) [the protesting parties’] claim that the [second notice] relating to the subject property was legally invalid, and (2) concerning [the protesting parties’] failure to follow necessary procedures for appeal and judicial review of appraised value, 4 are DENIED.
We construe this order to have dismissed for want of jurisdiction the protesting parties’ Primary Allegations, which were based on the Appraisal Agreement, but to have retained their Alternative Allegations, which alleged that the reappraisals were excessive and unequal.
Both the protesting parties and the District and Board have appealed.
Standard of Review
A governmental unit may challenge the trial court’s subject-matter jurisdiction by filing a plea to the jurisdiction.
Tex. Dep’t of Tmnsp. v. Jones,
The District’s and Board’s Appeal
In three issues, the District and Board challenge the trial court’s denial of their jurisdictional plea asserted against what they describe as the protesting parties’ “suit for declaratory judgment.”
A. The District’s and Board’s Appellate Challenges
The District’s and Board’s appellate challenges evidence a partial misunderstanding of the effect of the trial court’s ruling. The trial court’s order dismissed the protesting parties’ Primary Allegations, which included their claims for declaratory relief based on the statute governing appraisal agreements. What the trial court refused to dismiss were the protesting parties’ Alternative Allegations, which challenged the reappraisals as excessive and unequal and which constituted a suit for judicial review of the District’s and Board’s adverse actions affecting the 2004 appraised value of the Coker Unit. Therefore, after the order, the only claims pending before the trial court were those
Only the District’s and Board’s third issue challenges the protesting parties’ claims that the trial court did not dismiss: the Alternative Allegations that the reappraisals were excessive and unequal. The District’s and Board’s first and second issues, in contrast, challenge the protesting parties’ Primary Allegations, which the trial court dismissed and which ruling is favorable to the District and Board. 5 We thus interpret the District’s and Board’s first and second issues as responsive arguments to the protesting parties’ appellate challenges, and for this reason, we discuss the District’s and Board’s first and second issues in our discussion of the protesting parties’ appeal. For these reasons, we also overrule the District’s and Board’s first and second issues, although we reach those issues’ merits in our discussion of the protesting parties’ appeal. We now address the District’s and Board’s third issue.
B. Standing
In their third issue, the District and Board argue that the protesting parties did not have standing to protest the District’s 2004 reappraisal and the second notice, or to seek judicial review of the Board’s adverse ruling on that protest, because they did not follow the Tax Code’s strict protest procedures. Specifically, they argue that either MHCB or Valero Refining — depending on which owned the Coker Unit at the relevant time — could protest the District’s complained-of actions and seek judicial review of the Board’s adverse decision on that protest, but not both parties. 6 This issue attacks the protesting parties’ standing to assert the Alternative Allegations.
The Property Tax Code, contained within Title I of the Tax Code, provides:
[Pjroperty taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed.... A person is not relieved of the obligation because he no longer owns the property.
Tex. Tax Code Ann. § 32.07(a) (Vernon Supp.2006). Given that it has personal liability for property taxes, a property owner may protest, among other matters, a determination of the appraised value of the owner’s property.
Id.
§ 41.41(a)(1) (Vernon 2001). The property owner may also appeal (that is, seek judicial review of) an order of the appraisal review board determining its protest.
Id.
§ 42.01(1)(A) (Vernon 2001). When the property’s ownership changes after January 1 of, and before the deadline for filing a protest in, a given tax year, the new owner may pursue
A property owner may, alternatively, designate a lessee or other person to act as its agent for any purpose under the Property Tax Code relating to the owner or its property. Id. § 1.111(a) (Vernon 2001). The designation of the owner’s agent must be in writing, must be signed by the owner (among other authorized persons), and must also clearly indicate that the agent is authorized to act on the owner’s behalf in tax matters relating to the owner or the property. Id. § 1.111(b) (Vernon 2001).
If the owner or its agent does not file a tax protest, then a person leasing real property who is contractually obligated to reimburse the property owner for property taxes may protest the property’s appraised value. Id. § 41.418(b) (Vernon 2001). Either the owner (or its agent) or the lessee described in section 41.413 may file a protest, but both cannot do so. See id.
One who is not the owner, the owner’s designated agent, or an authorized lessee under section 41.418 lacks standing to protest an adverse appraisal decision.
See Toumeau Houston, Inc. v. Harris County Appraisal Dist.,
Valero Refining became the Coker Unit’s owner after January 1, 2004, but before the deadline for filing a protest had passed-indeed, before any 2004 appraisal had been rendered for the Coker Unit. Therefore, Valero Refining had standing to protest the District’s 2004 reappraisal and second notice. See Tex. Tax Code Ann. § 41.412(a). The Property Tax Code makes no provision for both the current owner, under section 41.41, and the new owner, under section 41.412, to file a protest for the same property in a given tax year. 7 See id. §§ 41.41(a) (“A property owner is entitled to protest”) (emphasis added), 41.412 (indicating that new property owner may file first protest or, on application to appraisal review board, may be substituted in pending protest for former owner). Accordingly, only Valero Refining, as the Coker Unit’s new owner that filed the first protest for the 2004 appraisal, had standing to protest the District’s and Board’s actions; MHCB did not.
We sustain the District’s and Board’s third issue to the extent that they complain of MHCB’s standing to protest the District’s 2004 reappraisal and second notice, to seek judicial review of the Board’s adverse decision on that protest, and thus to assert the Alternative Allegations,
The Protesting Parties’ Appeal
In their sole issue, the protesting parties challenge the trial court’s granting of the District’s and Board’s jurisdictional plea against, and its dismissal of, the Primary Allegations, which were ultimately based on the Appraisal Agreement. In a nutshell, the protesting parties assert that these allegations, which they have at times described as a suit to enforce the Appraisal Agreement with the District, were not barred by governmental immunity from suit for the following reasons:
• the protesting parties did not seek monetary damages, but sought only declaratory and injunctive relief — with the exception of attorney’s fees, which were not barred by governmental immunity from suit in a declaratory-judgment suit;
• the declarations that the protesting parties sought — that, by having breached the Appraisal Agreement, the District and Board acted outside of their statutory authority — did not require waiver of governmental immunity from suit;
• the declarations that the protesting parties sought were ones to interpret a governmental unit’s or agency’s authority, for which claims governmental immunity from suit did not apply or was waived; and
• even if governmental immunity from suit applied to their declaratory-judgment claims, the protesting parties could nonetheless seek enforcement of the Appraisal Agreement under the authority of Texas A & M Univ.— Kingsville v. Lawson, 87 S.W.Sd 518 (Tex.2002).
The protesting parties also argue that the relief that they sought under the Primary Allegations was not merely redundant of that which they sought in the Alternative Allegations in their suit for judicial review of the Board’s final order.
A. The Nature of the Protesting Parties’ Primary Allegations
As for their Primary Allegations, the protesting parties sought only declaratory and injunctive relief, plus attorney’s fees and court costs, in their suit challenging the District’s and Board’s reappraisals as violative of the statute governing appraisal agreements. That is, the protesting parties sought declarations that the District and Board exceeded their statutory authority by unilaterally rejecting the Appraisal Agreement (the District), reappraising the Coker Unit (the District), and ordering an even higher appraisal of the Coker Unit (the Board).
B. Governmental Immunity From Suit
1. Constructs of Immunity from Suit Applicable to the District
The District is a political subdivision of the State. Tex. Tax Code Ann. § 6.01(c) (Vernon 2001). Governmental immunity, which is derived from the State’s sovereign immunity, shields political subdivisions of the State from suit and liability.
Tooke v. City of Mexia,
“[G]overnmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether.”
Id,
“By entering into a contract, a governmental entity necessarily waives immunity from liability, ... but it does not waive immunity from suit.”
Id.
Notwithstanding the above constructs, there are certain suits that private citizens may maintain against the State without legislative permission. For example, private litigants may always sue the State, without legislative permission, for state officials’ violations of state law because such violations are not considered to be acts of the State.
Fed. Sign v. Tex. S. Univ.,
Nonetheless, suits to establish a contract’s validity, to enforce its performance, or to impose its liabilities are suits against the State that are precluded by the doctrine of immunity from suit.
IT-Davy,
2. Constructs of Immunity from Suit Applicable to the Board
Likewise, persons aggrieved by the action of an administrative agency, like the Board,
8
have no absolute right to challenge that agency’s action in court.
Helton v. R.R. Comm’n,
There are, however, some well-settled exceptions to this general rule. One such exception is that, even in the absence of a statute that allows for judicial review, one may challenge in court an agency action that exceeds the agency’s jurisdiction.
See Hitchcock v. Bd. of Trustees of Cypress-Fairbanks Indep. Sch. Dist.,
Despite this and other exceptions to the exhaustion-of-remedies requirement, when a statute provides a
C. The Property Tax Code’s Protest Scheme
A statute is construed to waive a governmental entity’s immunity from suit only if the waiver is by clear and unambiguous language. Tex. Gov’t Code Ann. § 311.034 (Vernon 2005);
City of LaPorte v. Bar-field,
A property owner, the owner’s designated agent, 9 the owner’s authorized lessee, 10 or a person acquiring the owner’s property within a certain time frame 11 may file a protest to the appropriate appraisal review board of, among other matters not relevant here, a determination of the appraised value of the property, an unequal appraisal of the property, or “any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.” Tex. Tax Code Ann. § 41.41(a)(1), (2), (9) (Vernon 2001). The property owner (or others mentioned above) initiates the protest by filing a notice of protest with the appraisal review board. Id. § 41.44 (Vernon Supp.2006). After the filing of a notice of protest, the appraisal review board must hold a hearing, of which it must timely notify the protesting party. Id. § 41.45(a)-(d) (Vernon 2001); id. § 41.46 (Vernon 2001), amended by Act of May 22, 2007, 80th Leg., R.S., ch. 626, § 3, 2007 Tex. Sess. Law Serv. -, -. With certain exceptions inapplicable here, in a protest of the property’s appraised value or of an unequal appraisal of the property, the appraisal district has the burden of establishing both the property’s value and the appraisal’s equality. Id. § 41.43(a), (b) (Vernon Supp.2006). Once it has reached a decision on the protest, the appraisal review board must issue a written order embodying its decision. Id. § 41.47(a) (Vernon 2001).
Within 45 days of its having received notice of a final, appealable order by the appraisal review board on its protest, the protesting party may seek judicial review of that order.
Id.
§§ 42.01(1)(A), 42.015,
With certain exceptions inapplicable here, the “procedures prescribed by this title [the Property Tax Code] for adjudication of the grounds of protest authorized by this title are
exclusive,
and a property owner may not raise any of those grounds: ... as a basis of a claim for relief in a suit by the property owner to arrest or prevent the tax collection process or to obtain a refund of taxes paid.”
Id.
§ 42.09(a)(2) (Vernon 2001) (emphasis added). The failure to exhaust the Property Tax Code’s exclusive, administrative remedies deprives the trial court of jurisdiction to review most adverse ad valorem tax decisions.
See
Tex. Gov’t Code AnN. § 311.034 (Vernon Supp.2006) (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”);
Cameron Appraisal Dist. v. Rourk,
D. The Property Tax Code’s Provisions Concerning Appraisal Agreements
The Property Tax Code contemplates agreements between property owners and appraisal districts’ chief appraisers. The Code first mentions such appraisal agreements in its general provisions relating to the appointment of agents to represent the property owner in certain circumstances:
(e) An agreement between a property owner or the owner’s agent and the chief appraiser is final if the agreement relates to a matter:
(1) which may be protested to the appraisal review board or on which a protest has been filed but not determined by the board; ...
Tex. Tax Code Ann. § 1.111(e)(1) (Vernon 2001) (emphasis added). Given our standard of review, we must assume that section 1.111(e)(1) governed the Appraisal Agreement here because that agreement concerned a matter
(i.e.,
the appraised value for the Coker Unit) that could have been protested to the Board.
12
See id.;
In fact, the Property Tax Code precludes an appraisal review board from even reviewing such agreements. “In 1993, the Legislature amended section 1.111(e) by deleting the previous requirement that the Board must approve of the agreement before it became final.”
Son-dock v. Harris County Appraisal Dist.,
The result of the above statutes is two-fold. First, appraisal agreements between property owners and chief appraisers are final and cannot be reviewed or rejected by appraisal review boards.
See
Tex. Tax Code Ann. §§ 1.111(e), 41.01(b). Second, the Property Tax Code allows a property owner to seek judicial review of only limited types of orders, including one by the appraisal review board determining the owner’s protest.
Id.
§ 42.01(1)(A). But because an appraisal review board cannot review a section-l.lll(e) agreement, it necessarily cannot render an order resolving a protest based on a review of that agreement.
See id.
§ 41.01(b). If the appraisal review board cannot render an order resolving a protest based on a review of an appraisal agreement, then the property owner cannot file a suit for judicial review under Tax Code chapter 42 (which, generally speaking, allows judicial review of board orders) of matters relating to an appraisal agreement.
See BPAC Tex., LP,
E. Analysis
1. Whether the Protesting Parties’ Primary Allegations Are Contract Claims that Sovereign Immunity from Suit Bars
The protesting parties implicitly recognize that Tax Code section 42.01 does not provide for suit for judicial review of the Appraisal Agreement itself because they do not assert that their Primary Allegations, which are based on the Appraisal Agreement, are part of their statutory suit for judicial review. Neither have the protesting parties argued that the Property Tax Code otherwise waived governmental immunity from suit for their Primary Allegations. Rather, they have consistently argued that their Primary Allegations — despite having their genesis in the Appraisal Agreement — were claims to which governmental immunity from suit (and the requirement to exhaust administrative remedies) did not apply. That is, the protesting parties have attempted to show jurisdiction over their Primary Allegations by demonstrating that those allegations fit into an exception to governmental immunity from suit and the exhaustion-of-remedies requirement derived from it-speeifi-cally, that the District, by reappraising the Coker Unit and issuing the second notice in violation of the Appraisal Agreement, and the Board, by reappraising the Coker Unit in violation of the Appraisal Agreement that the District could not reject, acted outside their statutory authority.
See Fed. Sign,
In response, the District and Board first argue that the protesting parties cannot avail themselves of a declaratory-judgment action merely to create jurisdiction that would otherwise not exist in the trial court. Specifically, the District and Board argue that the protesting parties’ lawsuit is merely a suit for breach of contract and for “damages” (in the form of lessened tax liability) — both of which claims are barred by governmental immunity from suit — disguised as a suit for declaratory relief. Among other things, the District and Board argue that
[i]t is clear from [the protesting parties’] pleadings that they are not simply seeking a determination that [the District] exceeded its authority in issuing the Second Notice. Rather, they are seeking a determination that [the District] exceeded its authority by issuing the Second Notice due to the existence of a purported contract. Thus, [the protesting parties] are seeking declarations that a contract exists and that by acting contrary to the alleged contract, [the District and Board] exceeded their statutory authority_[The protesting parties’] claim that [the District] acted outside of its statutory authority in issuing the Second Notice is in truth an impermissible attempt to validate and enforce a contract against [the District and Board ]. ...
(Emphasis added.)
We agree with the protesting parties that their Primary Allegations do not implicate governmental immunity from suit
Let us begin at the beginning. The District and Board (and occasionally even the protesting parties) have characterized the Appraisal Agreement as a “contract.” It is not: it is a statutory agreement. A contract requires, among other things, consideration, which is mutuality of obligation or a bargained-for exchange of promises.
See Fed. Sign,
This distinction is important because, in the typical situation in which a private party contracts with a governmental unit, the former agrees to provide goods or services for which the latter agrees to pay or to tender something of value in return. This does not occur with an appraisal agreement. Virtually all of the authority on which the District and Board rely involves the typical contract between a private entity and a governmental unit, in which the latter agrees to pay (or to provide something of value) for something of value from the former. 14 It is understandable that the courts in those cases held that immunity from suit barred claims based on those contracts because the underlying purpose of governmental immunity from suit is “to shield the public from the costs and consequences of improvident actions of their governments,” as well as to promote the following policies:
• “the handling of contract claims against the government involves policy choices more complex than simply waiver of immunity,” including whether to rely on administrative processes and what remedies to allow;
• the government should not be kept from responding to changing conditions for the public welfare by prior policy decisions reflected in long-term or ill-considered obligations;
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• the Legislature is able to deal not only with these policy concerns but also with individual situations in deciding whether to waive immunity by resolution, case[] by case, or by statute.
Tooke,
Although the protesting parties’ pleadings at times described this case as a suit to enforce a statutory agreement or even a “contract,” their suit is actually one to determine whether a governmental unit is statutorily bound — as a taxpayer is
15
— to a section-l.lll(e) appraisal agreement. It is, at its core, a suit to determine the meaning of section 1.111(e). A suit seeking an interpretation of a governmental unit’s or administrative agency’s statutory authority, and the related determination of whether that unit or agency is acting outside of that authority, is not a suit against the State (as long as money damages are not sought) and is thus not precluded by immunity from suit.
See Fed. Sign,
For these reasons, this case is distinguishable from
W.D. Haden Co. v. Dodgen,
on which the District and Board rely.
See
In the case before us, the protesting parties in essence argue that section 1.111(e) — by the fact that it renders appraisal agreements “final” upon their making — deprives an appraisal district of the statutory authority to assess taxes contrary to that agreement.
16
This is not an allegation merely to enforce an agreement against a governmental unit in the abstract, without a statutory basis for alleging that the governmental unit is bound to the agreement. Rather, it is an allegation that a governmental unit acted outside its statutory authority by unilaterally rejecting an agreement to which a statute allegedly bound it. Accordingly, the case before us does not fall within the rule of
Dodgen.
We thus hold that the trial court has subject-matter jurisdiction to consider whether section 1.111(e) precludes the District’s (and thus the Board’s) actions hei'e.
See Cobb,
The trial court dismissed all of the protesting parties’ Primary Allegations for lack of subject-matter jurisdiction, despite their being requests for only declarative and injunctive relief based, ultimately, on the interpretation of section 1.111(e) and despite their seeking only a determination of whether the District and Board acted without authority in their respective actions. This was error for the reasons that we have indicated above. Under these circumstances, the DJA waives immunity from suit for the attorney’s fees and court costs that the protesting parties also sought.
See Tex. Educ. Agency v. Leeper,
2. Whether the Protesting Parties’ Primary Allegations Requesting Declaratory Relief Are Redundant of the Re
The District and Board argue that the trial court lacked subject-matter jurisdiction of the Primary Allegations for the further, and independent, reason that the declaratory and injunctive relief that the protesting parties sought was merely redundant of the relief sought in their suit for judicial review — that is, in their Alternative Allegations — of the Board’s order on their protest.
See Strayhom,
We disagree. The Texas Tax Code provides that the “procedures prescribed by this title [the Property Tax Code]
for adjudication of the grounds of protest authorized by this title
are exclusive.... ” Tex. Tax Code Ann. § 42.09(a) (Vernon 2001) (emphasis added). Likewise, a property owner is entitled to appeal an order of the appraisal review board that determines
“a protest
by the property owner
as provided by Subchapter C of Chapter Jpl
” of the Texas Tax Code.
Id.
§ 42.01(1)(A) (Vernon 2001) (emphasis added). Under chapter 41 of the Texas Tax Code, although a property owner has the general right to protest a “determination of the appraised value of the owner’s property” and “any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner,”
17
that right of protest does
not
extend to a matter determined by a section-l.lll(e) appraisal agreement.
See id.
§ 41.01(b) (“The [appraisal review] board may not review or reject an agreement between a property owner or the owner’s agent and the chief appraiser under [Texas Tax Code] Section 1.111(e).”);
see also Sondock,
What the protesting parties sought by their Primary Allegations were declarations related to the Appraisal Agreement: that the District acted illegally in unilaterally rejecting that agreement and, therefore, that the Board also acted outside its jurisdiction by “reviewing] or rejecting]” an agreement that the District could not reject.
See
Tex. Tax Code Ann. § 41.01(b). There is an open question, implicit in some
3. Resolution
We hold that the trial court had subject-matter jurisdiction to consider the protesting parties’ Primary Allegations and that it erred in dismissing those claims upon the jurisdictional plea of the District and Board.
We sustain the protesting parties’ sole issue.
What We Do Not Decide
We think it prudent to state what we do not decide by this opinion. First, as stated in footnote 12, above, we do not decide whether the Appraisal Agreement was, in fact, an agreement created under and subject to Texas Tax Code section 1.111(e). The trial court did not decide that matter because it related to the merits, which the trial declined to consider by having dismissed the Primary Allegations for want of jurisdiction.
See Fort Bend County v. Martin-Simon,
Second, we do not determine the merits of the protesting parties’ Primary Allegations, that is, whether the District violated section 1.111(e) by unilaterally rejecting the Appraisal Agreement and whether that violation rendered the second appraisal and notice void. By dismissing the protesting parties’ Primary Allegations, the trial court declined to exercise its jurisdiction to make these legal determinations, and there is thus no ruling on the merits for us to review.
See Martin-Simon,
Third, we do not determine the open question, implicit in some of the parties’ discussions at oral argument, as to whether the Board could consider the protesting parties’ protest at all if, as the protesting parties assert, the District violated section 1.111(e) by rescinding the Appraisal
Conclusion
We rule as follows:
1. We reverse the complained-of order to the extent that it denied the District’s and Board’s jurisdictional plea against MHCB for lack of standing to assert the Alternative Allegations.
2. We further reverse the complained-of order to the extent that it granted the District’s and Board’s jurisdictional plea against the Primary Allegations of the protesting parties and dismissed those claims.
3.We remand the cause for the trial court
a. to render an order granting the District’s and Board’s jurisdictional plea to the extent that that plea asserted that MHCB lacked standing to assert the Alternative Allegations,
b. to render an order dismissing the Alternative Allegations asserted by MHCB,
c. to render an order denying the District’s and Board’s jurisdictional plea to the extent that that plea attacked the protesting parties’ Primary Allegations, and
d. to conduct further proceedings consistent with this opinion.
Notes
. Each appraisal district must establish an appraisal office. Tex Tax Code Ann. § 6.05(a) (Vernon Supp.2006). "The chief appraiser is the chief administrator of the appraisal office.” Id. § 6.05(c) (Vernon Supp.2006).
. The protest notice incorrectly listed Valero Refining as the lessee of the Coker Unit.
. The District and Board also moved for traditional summary judgment, as did the protesting parties. However, the trial court did not rule on these motions, but instead ruled only on the jurisdictional plea.
. We construe the court’s reference to the "failure to follow necessary procedures for appeal and judicial review of appraised value” to refer to the District’s and Board’s standing arguments.
. In their first issue, the District and Board argue that the declaratory relief that the protesting parties sought was redundant of the protesting parties’ suit for judicial review and was thus impermissible. In their second issue, the District and Board argue that the protesting parties could not avail themselves of a declaratory-judgment action merely to create jurisdiction that would otherwise not have existed in the trial court.
. This challenge is slightly different from the standing arguments asserted in the District’s and Board’s jurisdictional plea. The reason for this change in the District’s and Board’s argument appears to be the protesting parties’ belated assertion below that Valero Refining was the owner at all relevant times. Nonetheless, because standing affects subject-matter jurisdiction, and because one may not waive jurisdictional challenges, we review the District’s and Board’s challenge.
See Tex. Ass’ri of Bus.,
. The protesting parties argue that both MHCB and Valero were named in a single protest notice "out of an abundance of caution” simply because MHCB still owned the Coker Unit on January 1, 2004. Although one joint protest was filed, there were, in effect, two protests submitted under one notice: MHCB’s and Valero Refining’s.
.
See
Tex. Tax Code Ann. § 6.41(a) (Vernon Supp.2006) (establishing appraisal review boards for each appraisal district);
Cameron Appraisal Dist. v. Rourk,
. See Tex. Tax Code Ann. § 1.111(a).
. See id. % 41.413.
. See id. § 41.412(a).
. For purposes of our discussion, we assume without deciding that Lehn’s entering into the Appraisal Agreement was the equivalent of the chief appraiser's having done so and that Novosad, who was employed by Valero Energy (Valero Refining's corporate parent) could validly act as Valero Refining’s section-1.111(a) agent for purposes of entering into the Appraisal Agreement.
See
Tex. Tax Code Ann. § 1.111(e) (providing for agreement between appraisal district’s
chief appraiser
and property owner
or owner’s
agent);
cf. Tour-neau Houston, Inc.,
. Tex. Tax Code Ann. § 41.01(a)(1) (Vernon 2001).
.
See Tooke v. City ofMexia,
.
See Sondock v. Hams County Appraisal Dist.,
. The same can be said of the protesting parties’ allegations against the Board. The gist of those allegations is that, because the District’s Chief Appraiser acted contrary to law in rejecting the Appraisal Agreement and issuing a second appraisal and notice, the second notice and appraisal were void, and the Appraisal Agreement remained intact; because the Appraisal Agreement remained intact, the Board also acted outside its jurisdiction in issuing an order that, in effect, rejected the still-valid Appraisal Agreement.
. Tex. Tax Code Ann. § 41.41(a)(1), (9) (Vernon 2002).
. The protesting parties’ notice of protest to the Board alleged that the second notice was invalid for unspecified reasons, but the record does not show whether the Board considered the specific argument that the second notice was invalid because statute bound the District to the Appraisal Agreement.