Brian Charles Smith Robert Hammond, David Talton And John Collins, Individually, and on Behalf of All Others Similarly Situated v. Greg Abbott, in His Official Capacity as Attorney General of the State of Texas Cathleen Parsley, in Her Official Capacity as Chief Administrative Law Judge, State Office of Administrative Hearings And Alicia Key, in Her Official Capacity

• Court: Court of Appeals of Texas
• Decided: July 31, 2009
• Docket: 03-06-00358-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00358-CV

Brian Charles Smith; Robert Hammond; David Talton; and John Collins, Individually, and on Behalf of All Others Similarly Situated, Appellants

v.

Greg Abbott, in his Official Capacity as Attorney General of the State of Texas; Cathleen Parsley, in her Official Capacity as Chief Administrative Law Judge, State Office of Administrative Hearings; and Alicia Key, in her Official Capacity as Director, Title IV-D Agency, Office of the Attorney General, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. D-1-GN-04-002159, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

OPINION

Brian Charles Smith, Robert Hammond, David Talton, and John Collins

(collectively, appellants) appeal a district court judgment dismissing, for lack of subject-matter

jurisdiction, individual and putative class claims they asserted against the Attorney General,

the Chief Administrative Law Judge of the State Office of Administrative Hearings (SOAH), and

the Director of the Attorney General’s Child Support Division (the “Division”), all in their

official capacities.1 Appellants also complain of a district court order, merged into the judgment,

1 Where there has been a change in the interim, we have substituted the current officers. See Tex. R. App. P. 7.2(a). disqualifying their counsel. Appellants have not obtained replacement counsel, and appear pro se

in this appeal.

We will affirm the disqualification order. However, we conclude that appellants have

demonstrated that the district court erred in dismissing several of their claims for want of subject-

matter jurisdiction. Furthermore, while the court properly dismissed other claims, it erred in doing

so “with prejudice.”

BACKGROUND

This appeal concerns the authority that chapter 232 of the family code delegates to

the Attorney General and the Division to administratively suspend state licenses as a means

of enforcing child support obligations. See generally Tex. Fam. Code Ann. §§ 232.001-.016

(West 2008). The legislature has designated the Office of the Attorney General as Texas’s “Title IV

agency” and charged it with providing the child support enforcement functions and services required

by Title IV-D of the federal Social Security Act. See Tex. Fam. Code Ann. § 231.001 (West 2008);

see generally id. §§ 231.002-.309 (West 2008); 42 U.S.C.A. § 651 (West 2003). Within the

Attorney General’s office, these duties are handled by the Division. See Tex. Fam. Code Ann.

§ 231.0012 (requiring that “[t]he person appointed by the attorney general as the person responsible

for managing the Title IV-D agency’s child support enforcement duties shall report directly to the

attorney general”). Among other powers, the “Title IV-D agency” (i.e., the Division) may issue an

order under chapter 232 suspending a state license held by a child support obligor if it is determined

that the obligor (1) owes overdue child support in an amount equal to or greater than the total support

due for three months under a support order, (2) has been provided an opportunity to make payments

2 toward the overdue child support under a repayment schedule, and (3) has failed to comply with

the repayment schedule. Id. § 232.003(a). A proceeding to obtain such an order—which may be

initiated by the “Title IV-D Agency” itself—is governed by the contested-case provisions of the

Administrative Procedures Act, excluding the APA’s provisions governing license revocations. See

id. § 232.004(d); Tex. Gov’t Code Ann. § 2001.054 (West 2008). Chapter 232 further provides

that “[t]he director of the Title IV-D agency or the director’s designee may render a final decision

in a contested case proceeding under this chapter.” Tex. Fam. Code Ann. § 232.004(d). “An order

issued by a Title IV-D agency under this chapter is a final agency decision and is subject to review

under the substantial evidence rule” of the APA. Id. § 232.010.

During the period relevant to this case, the Attorney General by rule had

designated “an administrative law judge designated by the Office of the Administrative Law Judge,

Child Support Division,” to both preside at the contested-case hearings in Title IV-D license-

revocation proceedings and to issue the final orders. 20 Tex. Reg. 5555 (1995) (codified at 1 Tex.

Admin. Code § 55.208(a)); 25 Tex. Reg. 3232 (2000).2 However, it is undisputed that, in

January 2004, the Attorney General entered into an interagency contract with SOAH whereby the

Division would refer Title IV-D license-revocation proceedings to SOAH, whose ALJs would then

conduct the contested-case hearings in the proceedings and issue the final orders. The contract itself

is not in our record.

2 While this cause was pending in the district court, the Attorney General’s office amended its rules to designate “an administrative law judge, including an administrative law judge of the State Office of Administrative Hearings,” to conduct hearings and issue final orders in Title IV-D license-suspension proceedings. 30 Tex. Reg. 7427 (2005). However, these subsequent amendments do not apply here.

3 In April 2004, under color of family code chapter 232 and SOAH’s interagency

contract with the Attorney General, a SOAH ALJ conducted a contested-case hearing and issued

a final order suspending Smith’s driver’s license for non-payment of child support. Smith timely

filed a motion for rehearing with SOAH and, after it was denied, timely filed suit for judicial review

of the suspension order under the APA. See Tex. Gov’t Code Ann. § 2001.174 (West 2008). With

his APA judicial review claim, Smith also asserted claims for relief under the Uniform Declaratory

Judgments Act (UDJA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008).

Named as defendants were the Attorney General, the Director of the Division, and SOAH’s

chief ALJ, all in their official capacities (collectively, appellees). Smith’s principal allegation was

that his license-suspension order was void or invalid because SOAH had lacked statutory authority

either to conduct the contested-case hearing or to issue the final order because that authority

lay solely in the Division. Smith also alleged that appellees had failed to take account of a

2002 statutory change in calculating the interest on his child-support arrearages. Subsequently,

Hammond, Talton, and Collins joined the suit as plaintiffs and asserted similar complaints regarding

license-suspension orders3 issued by SOAH ALJs.4 In addition to asserting their claims individually,

appellants purported to represent a putative class of persons “whose license privileges have

3 All three had their driver’s licenses suspended by final orders of SOAH ALJs, acting under color of chapter 232 and the interagency contract, following contested-case hearings. Talton’s order also suspended his barber’s license. 4 Each of these plaintiffs acknowledged that their respective suspension orders had been issued by default; i.e., they had not contested the merits before SOAH. See Tex. Fam. Code Ann. § 232.009 (West 2008) (where obligor defaults, “Title IV-D agency shall consider the allegations of the [license suspension] petition to be admitted and shall render an order suspending the license without the requirement of a hearing”).

4 been interfered with or otherwise impaired by the application or threatened application of this

illegal process.” Appellants requested that the district court vacate the suspension orders, enjoin the

Division from transferring—and SOAH from hearing—Title IV-D license-suspension proceedings,

and declare that SOAH has and is exceeding its authority in conducting contested-case hearings and

in issuing final orders in those proceedings. Appellants also sought attorney’s fees under the UDJA.

Finally, appellants requested an order that the Division “recalculate the arrearage due on their child

support obligations” in a manner consistent with statutory interest provisions.

The Attorney General and the Director filed a plea to the jurisdiction attacking

appellants’ pleadings. They argued that appellants’ claims, as pled, were barred by sovereign

immunity. Following a hearing at which only argument was presented, the district court denied

the plea.5

Thereafter, the Attorney General and the Director filed a motion to disqualify

appellants’ counsel, Samuel T. Jackson. Until April 2004, when he left to begin a private practice,

Jackson had served as an ALJ in the Division who conducted Title IV-D license-suspension

proceedings. The motion alleged that, before departing the Division, Jackson had obtained a copy

of a “confidential” internal Division database containing names and contact information concerning

respondents in Title IV-D license-suspension proceedings pending in the Division. The motion

further alleged that Jackson had utilized this “confidential information” in soliciting business

from license-suspension respondents and had obtained each of the plaintiffs as clients in this way.

5 Although the Hon. Yelenosky rendered the order dismissing appellants’ last remaining claims, several other district judges made interlocutory rulings in the case. The Hon. Jenkins was the judge who denied the first plea to the jurisdiction.

5 The motion invoked the general requirement that lawyers decline representation when

the representation will result in the lawyer violating other disciplinary rules or “other law,” see

Tex. Disc. R. Prof. C. 1.15, and three specific grounds: Jackson’s conduct violated rules 1.10(c)

and 7.03 of the Texas Disciplinary Rules of Professional Conduct, as well as a separation agreement

Jackson signed before he departed the Attorney General’s office. See id. R. 1.10(c), 7.03. An

evidentiary hearing was held in which Jackson admitted having obtained each appellant as a client

through his use of the database, but disputed whether the information was confidential and whether

his conduct violated any of the legal standards the movants had accused him of violating.

The district court6 granted the motion, disqualified Jackson from serving as counsel

in the case, and entered findings of fact and conclusions of law. Appellants (with Jackson still

representing them) thereafter sought mandamus relief from this Court. We concluded that appellants

did not establish their entitlement to relief.7 Appellants then unsuccessfully sought mandamus relief

in the supreme court,8 then unsuccessfully sought rehearing of the supreme court’s order.9

After the supreme court overruled appellants’ motion for rehearing, appellees filed

a first supplemental plea to the jurisdiction asserting that the district court lacked subject-matter

jurisdiction over Hammond, Talton, and Collins’s claims because each had failed to satisfy statutory

6 The Hon. Livingston presiding. 7 In re Smith, No. 03-05-00226-CV (Tex. App.—Austin 2005, orig. proceeding [mand. denied]). 8 In re Smith, No. 05-0457 (Tex. 2005) (orig. proceeding). 9 In re Smith, No. 05-0457, 2005 Tex. LEXIS 808 (Tex. 2005) (orig. proceeding, reh’g denied).

6 prerequisites to a suit for judicial review under the APA.10 Appellees presented proof that Talton

had filed an untimely motion for rehearing of his license-suspension order and that Collins had never

filed one at all. Appellees also showed that, after their motions for rehearing were overruled by

SOAH, Talton and Hammond failed to timely file their suit for judicial review. The district court11

granted the plea and issued an order dismissing the claims of Hammond, Talton, and Collins

“with prejudice.”

Subsequently, appellants, with Jackson still purporting to represent them, filed in

the district court a “Motion to Reinstate Counsel or to Clarify” the disqualification order, which

was denied.12 Appellees then filed a second supplemental plea to the jurisdiction seeking dismissal

of Smith’s claims on grounds of mootness.13 Appellees presented evidence that the Division had

obtained an order from SOAH staying the April 2004 order suspending Smith’s driver’s license on

grounds that Smith had agreed to a schedule for repaying his child-support arrearages. Appellees

reasoned that, because this order had the effect of returning Smith’s driver’s license to him,

he no longer had a justiciable interest in the case. The district court granted the motion and

dismissed Smith’s claims “with prejudice.”14 As this order disposed of the last remaining claims in

10 The file copy of this plea indicates that appellees served a copy on the now-pro se plaintiffs rather than Jackson, as he had been disqualified. 11 This time, the Hon. Triana-Doyal presiding. 12 Judge Livingston, who had issued the disqualification order, also decided the motion to revisit it. 13 As before, the file copy of the plea indicated that appellees served the pro se plaintiffs directly and did not transmit a copy to Jackson. 14 This was Judge Yelenosky’s order.

7 the case, it resulted in a final, appealable judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d

191 (Tex. 2001).

Thereafter, appellants, again with Jackson purporting to represent them, sought

mandamus in this Court from the district court’s order denying their “Motion to Reinstate Counsel

or to Clarify Order,” as well as an emergency stay of the disqualification. We again concluded that

appellants had not shown their entitlement to relief.15 Jackson proceeded to file a “Joint Notice of

Appeal” on appellants’ behalf as well as on his own. The Attorney General responded with a motion

to dismiss the appeal based on Jackson’s disqualification. This Court ordered Jackson to appear for

a show cause hearing. He appeared and filed a written response to the dismissal motion. In a nine-

page per curiam order, we rejected Jackson’s contentions, held that he did not have standing to

participate in the appeal on his own behalf, and further held that, unless and until his disqualification

order was overturned, he could not represent appellants.16 However, in the interest of justice, we did

not dismiss the appeal outright, but permitted appellants fifteen days in which to decide whether they

wished to proceed by filing an amended notice of appeal to reflect that Jackson was not a party and

was not representing them any longer.17 Appellants, pro se, timely filed an amended notice of appeal

indicating they were challenging both the dismissal of their claims and the disqualification order.

15 In re Samuel T. Jackson, No. 03-06-00209-CV (Tex. App.—Austin 2006, orig. proceeding). 16 Smith v. Abbott, No. 03-06-00358-CV (Tex. App.—Austin 2007) (per curiam). 17 Smith, No. 03-06-00358-CV, slip op. at 9.

8 ANALYSIS

Appellants bring six issues on appeal. Two issues concern the dismissals, and the

rest address the disqualification order.

Disqualification of counsel

In their fifth issue, appellants urge us to revisit our previous holding that Jackson

is not entitled to participate in this appeal either in his own behalf or (unless and until we reverse

the disqualification order) as counsel for appellants. In their third issue, appellants complain that

the district court failed to make “specific findings” “articulating a compelling reason for the

disqualification and demonstrating that disqualification was the least restrictive means of guarding

against an irreparable and imminent injury,” which, they contend, are required by the “First and

Fourteenth Amendments and Texas’s free speech, due course of law, and open courts provisions.”

In their fourth issue, appellants argue that the district court erred in disqualifying their counsel

under rule 1.10(c). Finally, in their sixth issue, appellants urge that, even if Jackson was properly

disqualified from representing them in proceedings adverse to the Attorney General and the

Division, these grounds do not support disqualifying him from representing them in their claims

against SOAH’s chief ALJ.

Appellees’ sole response to these arguments is to assert that the disqualification order

is “void,” and “should be vacated,” because the district court properly held that it lacked subject-

matter jurisdiction over appellants’ claims. We reject appellees’ premise that they can invoke

the district court’s subject-matter jurisdiction to obtain an order disqualifying their opponents’

counsel of choice, then effectively insulate the disqualification order from appellate review by

9 arguing that their unrepresented opponents could not establish the district court’s subject-matter

jurisdiction. Moreover, as we explain below, the disqualification order is not “void,” even under

appellees’ theory, because we ultimately conclude that the district court possessed subject-matter

jurisdiction over several of appellants’ claims. Consequently, we must evaluate—without briefing

from appellees—whether appellants have shown reversible error in the disqualification order.

This Court has thoroughly addressed appellants’ fifth issue in its opinion following

the show-cause hearing, and we continue to adhere to that analysis.18 We overrule appellants’

fifth issue.

As for appellants’ third issue, it is, in substance, a complaint that the district court

failed to file additional or amended findings of fact and conclusions of law. See Tex. R. Civ. P. 298.

Rule 298 provides that, after a trial court files original findings of fact and conclusions of law, “any

party may file with the clerk of the court a request for specified additional or amended findings or

conclusions . . . within ten days after the filing of the original findings and conclusions by the court.”

Id. The district court filed its original findings and conclusions on April 19, 2005. Appellants did

not file a request for additional or amended findings and conclusions within the required ten-day

18 See Smith v. Abbott, No. 03-06-00358-CV (Tex. App.—Austin 2007) (per curiam).

10 time period.19 Appellants have not preserved this complaint. See Tex. R. App. P. 33.1(a). We

overrule appellants’ third issue.

Appellants’ fourth issue challenges the merits of the disqualification order.20 Attorney

disqualification “is a severe remedy,” having the potential to cause “immediate harm by depriving

a party of its chosen counsel and disrupting court proceedings.” In re Sanders, 153 S.W.3d 54, 57

(Tex. 2004) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990)

and citing In re Nitla S.A. De C.V., 92 S.W.3d 419 (Tex. 2002)). Thus, the movant on a motion to

disqualify bears a high burden, and must establish with specificity the basis for disqualification.

Spears, 797 S.W.2d at 656. To meet this burden, “mere allegations of unethical conduct or evidence

showing a remote possibility of a violation of the disciplinary rules will not suffice.” Id. While the

Texas Disciplinary Rules of Professional Conduct are not binding in such matters, courts often look

to them as guidelines in determining whether attorney conduct warrants disqualification. Henderson

v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995); Spears, 797 S.W.2d at 656. However, “[e]ven if a

lawyer violates a disciplinary rule, the party requesting disqualification must demonstrate that the

opposing lawyer’s conduct caused actual prejudice that requires disqualification.” In re Nitla S.A.

19 Appellants did complain in their “Motion to Reinstate Counsel” that “[t]he Court has failed to state either in her order of disqualification or in her findings of fact and conclusions of law any specific violation of the Texas Disciplinary Rules of Professional Conduct or of any other unethical act warranting this Draconian remedy.” However, appellants did not file this document until December 1, 2005—over seven months after the original findings and conclusions were filed—and did not request any “specified additional or amended findings or conclusions” as required by rule 298. 20 Although appellants have previously been denied the same relief in mandamus proceedings, these rulings were without comment on the merits and do not foreclose appellants from raising this complaint on appeal. See Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007).

11 De C.V., 92 S.W.3d at 422. We review the district court’s disqualification ruling for abuse of

discretion. See Metropolitan Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994).

Here, as noted, the Attorney General and the Division asserted three specific grounds

for disqualification: that Jackson violated rules 1.10(c) and 7.03 of the Texas Disciplinary Rules of

Professional Conduct, and that he also violated a separation agreement he had signed before leaving

the Attorney General’s Office. Appellants requested, and the district court filed, findings of fact and

conclusions of law detailing the bases for disqualification. The findings of fact that are relevant to

our analysis are as follows:

FOF 1: Plaintiffs’ lawyer, Samuel T. Jackson (“Jackson”), is a former OAG employee. He left his governmental post in April 2004. Jackson worked for the OAG, first as the Director of the Child Support Litigation Division (1991), and subsequently as an Administrative Law Judge, Child Support Division (1996-2004).

FOF 2: Upon separation from his governmental post, Jackson entered into an agreement with the OAG. The agreement contained the following affirmations: 1) I will decline representation in any license suspension or any other case prior to my official separation date of April 30, 2004, in which the Office of the Attorney General is a party; 2) I will decline representation in any license suspension case which was set on my docket while employed as an Administrative Law Judge for the Child Support Division; 3) I will decline representation in any license suspension cases in which I was knowingly[,] substantially[,] and personally involved, or in which I acquired confidential client information while an employee of the Office of Attorney General; and 4) In the event that I should unwarily accept representation on a case prohibited by this paragraph, I will immediately withdraw from such case as soon as it is brought to my attention. The agreement cited the disciplinary rules for private practice after government employment.

FOF 3: The OAG maintains a proprietary confidential License Suspension Database. It was created and is maintained for the Office of the Attorney General, Child Support Division.

12 FOF 4: Jackson knew or should have known that the License Suspension Database is proprietary and confidential.

FOF 5: Jackson, when he left the employ of the OAG, took a copy of the OAG’s proprietary confidential License Suspension Database.

* * *

FOF 7: Jackson represents Brian Charles Smith, Robert Hammond, David Talton, and John Collins in this lawsuit against the OAG.

FOF 8: Jackson obtained Smith’s, Hammond’s, Talton’s and Collin’s information from the proprietary confidential License Suspension Database.

FOF 9: But for the use of the proprietary confidential License Suspension Database, Jackson would not have been able to solicit the plaintiffs as clients.

FOF 10: Smith’s, Hammond’s, Talton’s and Collin’s interest in this lawsuit are adverse to those of the OAG.

FOF 11: Jackson violated the Texas Rules of Professional Conduct.

FOF 12: Jackson’s conduct causes actual prejudice to the OAG and requires disqualification.

The district court also made the following relevant conclusions of law:

COL 1: Rule 1.15 of the Texas Rules of Professional Conduct requires a lawyer to withdraw from representation of a client “if . . . the representation will result in violation of other applicable rules of professional conduct or other law, . . . .”

COL 2: Rule 1.10(c) of the Texas Rules of Professional Conduct provides that “a lawyer having information that the lawyer knows or should know is confidential government information about a person or other legal entity acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person or legal entity.

13 The district court also made a finding that Jackson had made an unsuccessful, unsolicited

telephone solicitation offering his services to an individual whose contact information Jackson had

obtained from the database, as well as a corresponding conclusion of law quoting the language of

rule 7.03. See Tex. Disc. R. Prof. C. 7.03 (“A lawyer shall not by . . . telephone . . . seek professional

employment . . . from a prospective client or nonclient who has not sought the lawyer’s advice

regarding employment or with whom the lawyer has no family or past or present attorney-client

relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain”).

However, because the district court made no finding as to how Jackson’s unsuccessful telephone

solicitation had caused actual prejudice to the movants, Jackson’s disqualification must rest upon

violations of the other legal standards that the movants alleged.

Appellants do not dispute the district court’s findings regarding Jackson’s

employment history with the Division, that Jackson took with him a copy of a password-protected

internal Division database used to track Title IV-D license-suspension cases that he had obtained

while working in the Division, or that Jackson subsequently used information from this database in

successfully soliciting appellants as clients.21 They challenge only whether these findings establish

that Jackson violated rule 1.10(c). Appellants first question whether the findings establish that the

database information was “confidential government information” under the meaning of rule 1.10(c).

“Confidential government information,” as used in rule 1.10(c), “means information which has

21 During the hearing, the movants called Jackson to testify. Jackson admitted that when he left the Division, he had taken with him copies of a password-protected database maintained within the Division that he had obtained while working there. He further admitted that it was from these copies of the database that he came to know of Smith, Hammond, Talton and Collins. Jackson further indicated that he sent letters to each of these individuals soliciting their business.

14 been obtained under governmental authority and which, at the time this rule is applied, the

government is [1] prohibited by law from disclosing to the public or has a legal privilege not to

disclose, and [2] which is not otherwise available to the public.” Id. R. 1.10(g). In another case

involving Jackson, we recently held that information concerning Title IV-D license-suspension

proceedings maintained by the Attorney General’s Office and SOAH is confidential by law.

See Jackson v. State Office of Admin. Hearings, No. 03-07-00293-CV, 2009 Tex. App. LEXIS __,

at ___ (Tex. App.—Austin July 30, 2009, no pet. h.) (mem. op.). Consequently, the district court’s

fact findings establish that the database information satisfies the first prong of rule 1.10(c)’s

“confidential government information” definition.

Appellants urge that, nonetheless, the movants failed to establish the second prong

of the definition—that the information was not otherwise available to the public. Moreover, even

assuming the movants met that burden, appellants question how Jackson’s use of information from

the database about them in contacting them to offer his services on their behalf, as the district court

found Jackson did, could run afoul of rule 1.10(c)’s prohibition against lawyers who acquire

“confidential government information about a person or other legal entity” subsequently

“represent[ing] a private client whose interests are adverse to that person or legal entity.” Id.

R. 1.10(c). Appellants’ argument finds support in an American Bar Association advisory opinion

concerning ABA Model Rule 1.11(b), on which rule 1.10(c) was modeled. See ABA Comm. on

Ethics and Prof’l Responsibility, Formal Op. 97-409 (1997), at 468 n.7 (“The term ‘person’ in

Rule 1.11(b) does not include the former government client, but refers only to third parties whom

the former government lawyer may oppose on behalf of a private party after leaving government

15 service”), 470 (“Rule 1.11(b) comes into play only if the lawyer acquired ‘confidential government

information’ about an adverse third party while in government service, and offers no protection

to the former government client respecting its confidences”). We also observe that rule 1.10(c)

presumes an attorney-client relationship between the lawyer and the former governmental client,

whereas Jackson, as an ALJ, would be considered an “adjudicatory official” under the rules. See

Tex. Disciplinary R. Prof’l Conduct Terminology, reprinted in Tex. Gov’t Code Ann., tit. 2,

subtit. G app. A (West 2005) (Tex. State Bar R. art. X, § 9) (defining “adjudicatory official” and

“tribunal”), 1.11 (conflict-of-interest restrictions applicable to “adjudicatory officials”).

Even if the district court’s findings do not support Jackson’s disqualification under

rule 1.10(c), they do establish a violation of Jackson’s separation agreement that can support

disqualification. The district court found that Jackson agreed that, among other terms, he would

“decline representation in all license suspension cases . . . in which [he] acquired confidential client

information while an employee of the Office of the Attorney General.” The district court’s findings

establish that Jackson obtained confidential information about appellants from the database,

see Jackson, No. 03-07-00293-CV, 2009 Tex. App. LEXIS, at ___, and then proceeded to represent

appellants in their license-suspension cases despite the restriction.22 That violation, together with

the district court’s findings that this conduct caused actual prejudice to the movants by enabling

Jackson to sign up clients he otherwise could not have obtained to sue the Attorney General, supports

the disqualification order. See Tex. Disciplinary R. Prof’l Conduct 1.15 (requiring that lawyers

22 There were, however, no findings that Jackson had begun representing appellants before his official separation date of April 30, 2004, that appellants’ license-suspension proceedings had been on his docket, or that he had been substantially involved in those cases.

16 shall decline representation when the representation will result in lawyer violating “other law”).

Accordingly, the district court did not abuse its discretion in disqualifying Jackson from representing

appellants in their suit against the Attorney General and the Division. We overrule appellants’

fourth issue.

In their sixth issue, appellants urge that even if the district court properly

disqualified Jackson from representing them against the Attorney General and the Division,

the district court nonetheless abused its discretion in extending the disqualification to their

claims against SOAH’s chief ALJ. Appellants emphasize that SOAH did not join in the original

disqualification motion. We conclude that the district court did not abuse its discretion. Regardless

of which appellee they are asserted against, appellants’ claims ultimately challenge the authority of

the Attorney General and the Division to delegate certain of their statutory duties to SOAH.

Consequently, Jackson’s representation of appellants in pursuing those claims against SOAH’s

chief ALJ would implicate the same grounds for disqualification as did their claims against the

Attorney General and the Division. We overrule appellants’ sixth issue.

Subject-matter jurisdiction

In their first issue, appellants assert that the district court erred in dismissing Smith’s

claims on grounds of mootness. In their second issue, appellants challenge the district court’s

dismissal of Collins, Hammond, and Talton’s claims.

An assertion that a trial court lacks subject-matter jurisdiction over a claim

may be raised through a plea to the jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225-26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

17 (Tex. 2000). The determination of whether the trial court has subject-matter jurisdiction begins with

the pleadings. See Miranda, 133 S.W.3d at 226. The pleader has the initial burden of alleging facts

that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Id. (citing Texas Ass’n

of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Whether the pleader has met

this burden is a question of law that we review de novo. Id. We construe the pleadings liberally and

look to the pleader’s intent. Id. We also assume the truth of the jurisdictional facts alleged in

the pleadings unless the defendant presents evidence to negate their existence. Id. at 227 (citing

Blue, 34 S.W.3d at 555). In resolving the jurisdictional challenges presented by the plea, we may

also consider evidence that the pleader has attached to its petition or submitted in opposition to the

plea. See Blue, 34 S.W.3d at 555.

If the pleadings do not contain sufficient facts to affirmatively demonstrate the

trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to

amend. See Miranda, 133 S.W.3d at 226-27. If the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an

opportunity to amend. Id. at 227.

Mootness

In their first issue, appellants contend that appellees failed to demonstrate that

Smith’s claims had been rendered moot after filing. Texas courts are prohibited from deciding

moot controversies. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). This

prohibition is rooted in separation-of-powers concepts and the prohibition against courts rendering

18 advisory opinions. See id. A case becomes moot if a controversy ceases to exist or the parties lack

a legally cognizable interest in the outcome. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640,

642 (Tex. 2005) (citing Texas Bd. of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex. 2002)). To

demonstrate that Smith no longer has a legally cognizable interest in the case outcome, appellees

relied on a January 2006 order that the Division had obtained from SOAH. The order states:

The Office of the Attorney General of Texas, Petitioner, filed a Motion to Stay Order Suspending License on January 23, 2006, in the above styled case. Respondent, BRIAN CHARLES SMITH, has paid all delinquent child support, has established a satisfactory payment record, or good cause otherwise exists to stay the Decision and Order issued April 26, 2004, suspending Respondent’s Driver’s license number [redacted] issued by the Texas Department of Public Safety. The Administrative Law Judge concludes the motion should be granted.

It is, therefore, ORDERED that the Motion to Stay Order Suspending License is GRANTED, and the order suspending Respondent’s license(s) is hereby STAYED. The stay shall remain subject to a motion to revoke for noncompliance in accordance with Tex. Fam. Code Ann. § 232.012. This order shall be promptly delivered to the [sic] for observance. Upon payment of any fee required by the licensing agency under Tex. Fam Code Ann. § 232.014, the agency shall issue the affected license to BRIAN CHARLES SMITH if he is otherwise qualified for the license.

See Tex. Fam. Code Ann. § 232.013 (authorizing “Title IV-D agency” to “render an order vacating

or staying an order suspending an individual’s license” for “good cause” or if individual has paid all

delinquent child support or “established a satisfactory payment record”). Appellees also presented

a copy of the Division’s motion, which reflected that Smith had entered into an agreed repayment

schedule. Appellees reason that because this order allowed the return of Smith’s driver’s license,

he no longer has a justiciable interest in any of his claims. We disagree.

19 Smith challenges the April 2004 order revoking his driver’s license primarily on

grounds that SOAH had no authority either to issue that order or to conduct the contested-case

hearing that preceded the order. Smith seeks, among other relief, a judgment vacating this order

and declarations that SOAH had no authority to issue it in the first place or to conduct the contested-

case hearing that preceded it. The January 2006 order that the Division obtained, in contrast, does

not vacate or void the April 2004 order, but merely stays it.23 In other words, the underlying

April 2004 order giving rise to Smith’s controversy remains in effect—and can be enforced anew, as

the January 2006 order states, if a motion to revoke the stay is filed. See id. § 232.012. Furthermore,

the January 2006 order leaves Smith subject to administrative fees that can be imposed under family

code section 232.014 on “an individual who is the subject of an order suspending license.” See id.

§ 232.012. For these reasons, the January 2006 order did not obviate Smith’s legally cognizable

interest in his claims challenging the April 2004 order as beyond SOAH’s authority, and they are

not moot. See Allstate Ins. Co., 159 S.W.3d at 642.

However, the record demonstrates that Smith’s claim challenging appellees’

calculation of interest on his child-support arrearages is moot. Smith’s agreed repayment schedule,

which is attached to the Division’s motion to stay the April 2004 license-suspension order, reflects

that Smith agreed he “owe[d] child support of $38,732.93, as of 01/16/2006,” and that he would

repay this amount through a lump-sum payment and a series of monthly payments until the balance

was paid in full. There is no indication that Smith reserved any right to dispute the amount of

23 We observe that the Division could have sought to vacate the order, but instead opted to request a stay. See Tex. Fam. Code Ann. § 232.013 (West 2008).

20 his obligation. Smith’s unqualified agreement to pay this amount was a final settlement and

compromise of any dispute concerning the amount of his obligation at that time. See Miga v. Jensen,

96 S.W.3d 207, 211 (Tex. 2002). Further, Smith does not seek any prospective relief concerning

the calculation of interest on child-support arrearages, nor would he have standing to do so, as

the prospect that he will owe future child-support arrearages and that the Division will miscalculate

them is too remote, contingent, and speculative to give rise to a justiciable claim. See Williams

v. Lara, 52 S.W.3d 171, 183-85 (Tex. 2001).

Consequently, the district court did not err in dismissing Smith’s claim concerning

the calculation of interest he owes on his child-support arrearages. However, as appellants

point out—and appellees concede—the district court erred in dismissing this claim “with prejudice.”

See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (dismissal for mootness). We will thus

modify this portion of the district court’s judgment to reflect that Smith’s claim concerning interest

on his child-support arrearages was dismissed without prejudice.

Sovereign immunity

In the district court, appellees asserted that sovereign immunity barred all of

appellants’ claims. Absent a statutory right to judicial review of the license-suspension orders, a

suit challenging the orders is one to “control state action” and is barred by sovereign immunity, see

Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198

(Tex. 2004); Scott v. Presidio I.S.D., 266 S.W.3d 531, 534 (Tex. App.—Austin 2008, pet. filed)

(op. on reh’g); Southwest Airlines Co. v. Texas High-Speed Rail Auth., 867 S.W.2d 154, 157

(Tex. App.—Austin 1993, no writ) (op. on reh’g), unless the orders were ultra vires of SOAH’s

21 statutory authority or unconstitutional. See Texas Hwy. Comm’n v. Texas Ass’n of Steel Importers,

372 S.W.2d 525, 530 (Tex. 1963); Southwestern Bell Tel. Co. v. Public Util. Comm’n, 735 S.W.2d

663, 668 (Tex. App.—Austin 1987, no writ).24 APA section 2001.171 provides a statutory right of

judicial review from administrative orders in contested-case proceedings, thereby waiving sovereign

immunity as to claims within its scope. Tex. Gov’t Code Ann. § 2001.171; see Mega Child Care,

Inc., 145 S.W.3d at 173. Smith pled a claim under APA section 2001.171, and there is no dispute

that he complied with the statutory prerequisites for such a claim—he timely filed a motion for

rehearing and, after it was denied, timely filed his suit for judicial review. See Tex. Gov’t Code Ann.

§§ 2001.146, .176 (West 2008). Consequently, sovereign immunity does not bar Smith from

prosecuting his live claims for the relief provided under that section. This relief may include reversal

of his license-suspension order on grounds that SOAH had no authority to issue it. See Tex. Gov’t

Code Ann. § 2001.174(2) (court shall reverse agency order and remand for further proceedings if it

is “in violation of a constitutional or statutory provision,” “in excess of the agency’s statutory

authority,” or “affected by other error of law”).

On the other hand, appellants do not dispute that Collins, Hammond, and Talton

failed to exhaust their administrative remedies and otherwise satisfy the statutory prerequisites

for bringing a suit for judicial review under APA section 2001.171. Accordingly, the district court

did not err in dismissing these claims—although, as with Smith’s moot claim, its dismissal “with

24 See also Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393, 397 (Tex. 2000) (citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967)) (“It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.”).

22 prejudice” was error and must be modified. See Blue Cross Blue Shield v. Duenez, 201 S.W.3d 674,

675 (Tex. 2006) (dismissal for failure to exhaust administrative remedies).

In their second issue, appellants complain that the district court erred in dismissing

Collins, Hammond, and Talton’s UDJA claims on exhaustion grounds because these claims

allege acts ultra vires of appellees’ statutory authority, such that administrative exhaustion is not

required. See Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 789 (Tex. 1978); see also

Southwestern Bell Tel. Co., 735 S.W.2d at 667 (observing that, “in the context of administrative

proceedings, the court’s jurisdiction under Uniform Declaratory Judgments Act has derived from

its inherent power to hear and determine whether the agency action in controversy was ultra vires

or unconstitutional”). Appellees respond that these claims do not actually allege ultra vires conduct

and, thus, seek only to “control state action” by directing conduct within their statutory powers.

While the parties join this issue only with respect to Collins, Hammond, and Talton’s UDJA claims,

we observe that the same issue is presented by Smith’s UDJA claims.25

The UDJA is not a general waiver of sovereign immunity; it “does not enlarge a

trial court’s jurisdiction, and litigant’s request for declaratory relief does not alter a suit’s underlying

nature.” City of El Paso v. Heinrich, No. 06-0778, 284 S.W. 3d 366, , 2009 Tex. LEXIS 253,

at *6 (Tex. May 1, 2009). Consequently, sovereign immunity will bar an otherwise proper

25 Appellees have not contended that Smith’s UDJA claims improperly seek a remedy redundant of his suit for judicial review under APA 2001.171. See Strayhorn v. Raytheon E-Systems, 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied); see also Texas Mun. Power Agency v. Public Util. Comm’n, 100 S.W.3d 510, 517-20 (Tex. App.—Austin 2003, pet. denied) (distinguishing between APA appeal of “a particular Commission order” and UDJA claim for “a determination of the Commission’s general authority” that would resolve larger underlying controversy regarding its authority reflected in other agency proceedings).

23 UDJA claim that has the effect of establishing a right to relief against the State for which sovereign

immunity has not been waived. See City of Houston v. Williams, 216 S.W.3d 827, 828-29

(Tex. 2007) (“[P]rivate parties cannot circumvent the State’s sovereign immunity from suit by

characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment

claim,” and “if the sole purpose of such a declaration [regarding a governmental body’s statutory

authority] is to obtain a money judgment, immunity is not waived”) (quoting Texas Natural Res.

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002)); Koch v. Texas Gen. Land

Office, 273 S.W.3d 451, 455 (Tex. App.—Austin 2008, pet. filed) (citing, as examples, UDJA claims

that would establish State’s contractual or tort liability). In the case of an ostensible ultra vires

claim, as the Texas Supreme Court recently explained, the plaintiff “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, No. 06-

0778, 284 S.W. 3d at ___, 2009 Tex. LEXIS, at *11. If the plaintiff, in fact, alleges or ultimately

can prove only acts within the officer’s legal authority and discretion, the claim seeks “to control

state action,” and is barred by sovereign immunity. See id. Appellees have challenged only whether

appellants’ pleadings allege acts beyond their statutory authority. We evaluate this issue by

construing the relevant statutory or constitutional provisions defining appellees’ authority and

determine whether appellants have alleged acts outside that authority. See Dir. of Dep’t of Agric.

& Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264, 265-70 (Tex. 1980); Hendee v. Dewhurst,

228 S.W.3d 354, 368-69 (Tex. App.—Austin 2007, pet. denied).

24 Appellants have argued that they alleged facts that, if taken as true, would constitute

conduct beyond appellees’ statutory authority. They contend that, by pleading that SOAH rather

than the Division adjudicated their license-suspension proceedings, they have alleged conduct that

violates chapter 232 and the Attorney General’s rules in effect at the time, which had designated “an

administrative law judge designated by the Office of the Administrative Law Judge, Child Support

Division,” to both preside at the contested-case hearings and to issue final orders. 20 Tex. Reg. 5555

(codified at 1 Tex. Admin. Code § 55.208(a)); 25 Tex. Reg. 3232.26 Appellants characterize

the Attorney General’s delegation of these duties to SOAH as an improper rule amendment

without complying with the APA’s requirements. Even if SOAH could conduct the hearings,

appellants further assert, it had no statutory authority to render a final order. Appellants emphasize

section 232.004(d) of the family code, which provides that “[t]he director of the Title IV-D agency

or the director’s designee may render a final decision in a contested case proceeding under this

chapter.” Tex. Fam. Code Ann. § 232.004(d). They also point to SOAH’s statute, chapter 2003 of

the government code, which, they contend, does not authorize SOAH ALJs to render final orders in

Title IV-D license-suspension proceedings. See Tex. Gov’t Code Ann. § 2003.046 (West 2008).

26 Appellants do not appear to contend that Collins, Hammond, and Talton’s allegations regarding the “erroneous” calculation of interest on their child-support arrearages also allege ultra vires acts (apart from their complaint that the Division rather than SOAH should have heard and decided the matter). See North Alamo Water Supply Corp. v. Texas Dep’t of Health, 839 S.W.2d 455, 459 (Tex. App.—Austin 1992, writ denied) (“The fact that the [agency] might decide ‘wrongly’ in the eyes of an opposing party does not vitiate the agency’s jurisdiction to make an initial decision.”). Instead, appellants appear to be asserting these claims under APA section 2001.171—and, again, they did not meet the statutory prerequisites to bring such a claim.

25 Appellees respond that the family code authorized the Attorney General and the

Division, to enter into contracts or agreements to effectuate their duties as Texas’s “Title IV-D

agency.” They rely upon section 231.002:

Sec. 231.002. POWERS AND DUTIES.

(a) The Title IV-D agency may:

...

(4) enter into contracts or agreements necessary to administer this chapter.

(c) The Title IV-D agency may enter into agreements or contracts with federal, state, or other public or private agencies or individuals for the purpose of carrying out the agency’s responsibilities under federal or state law. The agreements or contracts between the agency and other state agencies or political subdivisions of this or another state, including a consortia of multiple states, and agreements or contracts with vendors for the delivery of program services are not subject to Chapter 771[27] or 783,[28] Government Code.

Tex. Fam. Code Ann. § 231.002. Appellants judicially admitted in their pleadings that the

Attorney General and SOAH entered into an interagency contract in January 2004 whereby

SOAH agreed to conduct all administrative Title IV-D child support hearings referred to it by

27 The Interagency Cooperation Act, Tex. Gov’t Code Ann. §§ 771.001-.010 (West 2004 & Supp. 2008). 28 The Uniform Grant and Contract Management Act, Tex. Gov’t Code Ann. §§ 783.001- .010 (West 2004).

26 the Attorney General.29 Appellees conclude that section 231.002 provided independent statutory

authority enabling the Attorney General and the Division to contractually transfer their authority to

decide Title IV-D license-suspension cases, and that is what happened here.

Although appellees have demonstrated that the Attorney General and the

Division have statutory authority to make contracts to effectuate and administer the functions of

the “Title IV-D agency,” this does not necessarily mean that SOAH had corresponding statutory

authority to perform those functions, any more than any other third party. The issue of SOAH’s

authority to perform these functions is at the core of appellants’ ultra vires claims.

Regarding SOAH’s authority to conduct Title IV-D contested-case hearings

for the Division, we observe that the legislature has authorized SOAH to “conduct, for a fee and

under a contract, administrative hearings or alternative dispute resolution procedures in matters

voluntarily referred to the office by a governmental entity.” Tex. Gov’t Code Ann. § 2003.021(b)(4)

(West 2008). The conduct that appellants allege falls within SOAH’s authority under this provision.

We thus agree with appellees that appellants have not stated a valid ultra vires claim with respect

to SOAH’s conducting the contested-case hearing portions of appellants’ license-suspension

proceedings. See Heinrich, No. 06-0778, 284 S.W. 3d at ___, 2009 Tex. LEXIS, at *11; McLane

29 Appellants pled:

On January 8, 2004, under the authority of Tex. Fam. Code Ann. § 231.002(a)(4) and (c), the OAG entered into an interagency contract with SOAH. The contract purportedly delegated the OAG’s authority to conduct contested case proceedings in the Title IV-D license suspension cases to SOAH. Pursuant to the interagency contract, SOAH has conducted administrative hearings in the Title IV-D cases referred to it from the OAG’s Child Support Division since May 1, 2004.

27 Co. v. Strayhorn, 148 S.W.3d 644, 649 (Tex. App.—Austin 2004, pet. denied). However,

appellants’ claims challenging the authority of SOAH ALJs to issue the final orders in those

proceedings present a closer question.

Appellants emphasize section 2003.042 of the government code, which enumerates

the powers of SOAH ALJs:

Sec. 2003.042 POWERS OF ADMINISTRATIVE LAW JUDGE.

(a) An administrative law judge employed by the office or a temporary administrative law judge may:

(1) administer an oath;

(2) take testimony;

(3) rule on a question of evidence;

(4) issue an order relating to discovery or another hearing or prehearing matter, including an order imposing a sanction;

(5) issue an order that refers a case to an alternative dispute resolution procedure, determines how the costs of the procedure will be apportioned, and appoints an impartial third party as described by Section 2009.053 to facilitate that procedure;

(6) issue a proposal for decision that includes findings of fact and conclusions of law;

(7) if expressly authorized by a state agency rule adopted under Section 2001.058(f), make the final decision in a contested case;

(8) serve as an impartial third party as described by Section 2009.053 for a dispute referred by an administrative law judge, unless one of the parties objects to the appointment; and

(9) serve as an impartial third party as described by Section 2009.053 for a dispute referred by a government agency under a contract.

28 (b) An administrative law judge may not serve as an impartial third party for a dispute that the administrative law judge refers to an alternative dispute resolution procedure.

Tex. Gov’t Code Ann. § 2003.042 (West 2008) (emphasis added). Appellants point out that

subsection (a)(7) authorizes SOAH ALJs to “make the final decision in a contested case” only

when “expressly authorized by a state agency rule adopted under Section 2001.058(f).”

Section 2001.058(f) of the government code provides: “A state agency by rule may provide that, in

a contested case before the agency that concerns licensing in relation to an occupational license

and that is not disposed of by stipulation, agreed settlement, or consent order, the administrative

law judge shall render the final decision in the contested case.” Id. § 2001.058(f).

It is undisputed that, at the time relevant to these proceedings, the Attorney General

had not adopted rules providing that SOAH ALJs would issue the final orders in Title IV-D license-

suspension cases, as government code sections 2003.042(a) and 2001.058(f) require. Moreover,

the driver’s licenses at issue here are not occupational licenses.30 Consequently, appellants have

alleged conduct by SOAH ALJs that falls outside their statutory authority under government code

sections 2003.042 and 2001.058. Appellees have not presented any other basis—legal or

evidentiary—for concluding that SOAH possesses statutory authority to issue final orders in the

Title IV-D license-suspension proceedings that are referred to it. Thus, on this record, we conclude

that appellants have stated a claim that SOAH has been acting ultra vires of its statutory authority

in issuing final orders in Title IV-D license-suspension proceedings.

30 However, the SOAH order suspending Talton’s driver’s license, as noted, also suspended his barber’s license.

29 Nevertheless, to determine whether appellants’ UDJA claims are within the

district court’s subject-matter jurisdiction, we must also consider the independent sovereign-

immunity implications of appellees’ interagency contract. That is, even if appellants have stated

an otherwise-valid ultra vires claim regarding SOAH’s issuance of final orders in Title IV-D license-

suspension proceedings, such a claim would nonetheless implicate sovereign immunity if the

effect of the remedy appellants seek would be to invalidate a previously executed state contract. See

Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 119-21 (Tex. App.—Austin 2007,

no pet.) (citing IT-Davy, 74 S.W.3d at 856); see also Williams, 216 S.W.3d at 828-29. A

qualification to this principle is that sovereign immunity would not bar such a suit if the contract

was void—i.e., a legal nullity—and not merely voidable. See Texas Logos, L.P., 241 S.W.3d at 121

(citing Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d 233 (Tex. 1957)). As appellees observe,

appellants’ pleadings “have not challenged the legality of the contract or claimed that it is void in

any way.” Consequently, appellants have not affirmatively demonstrated, through their present

pleadings, the district court’s subject-matter jurisdiction over their UDJA claims. The district court

did not err in granting appellees’ plea to the jurisdiction as to those claims.

CONCLUSION

We have held the following:

• The district court did not abuse its discretion in disqualifying appellants’ counsel.

• The district court erred in dismissing Smith’s suit for judicial review under APA section 2001.171, with the exception of Smith’s claim regarding interest on his child-support arrearages, which is moot and was properly dismissed.

30 • The district court did not err in dismissing Collins, Hammond, and Talton’s suit for judicial review under APA section 2001.171 because they failed to comply with statutory prerequisites to suit under this provision.

• The district court did not err in dismissing appellants’ UDJA claims because their pleadings do not affirmatively demonstrate the district court’s subject- matter jurisdiction, i.e., that the claims are not barred by sovereign immunity.

In light of these holdings, we affirm the district court’s order disqualifying appellants’

counsel. However, we reverse the district court’s judgment dismissing Smith’s APA claims (except

for the moot interest-related claim), and remand those claims to the district court for further

proceedings.

As for the claims that were properly dismissed, appellants have requested that, if we

affirm the dismissal of any of their claims, they be afforded the opportunity to cure the jurisdictional

defects by repleading and, if not, that we at least modify the judgment to reflect that the dismissals

are without prejudice. Appellants are not entitled to leave to replead a claim unless it is possible

they could cure the jurisdictional defect that was the basis for dismissing the claim. See Texas A&M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex. 2007). Repleading cannot possibly cure

the mootness of Smith’s claim regarding interest on his child-support arrearages, nor can it cure

the other appellants’ failures to satisfy the statutory prerequisites to their APA judicial review claims.

We conclude the same as to appellants’ UDJA claims concerning SOAH’s authority to conduct

contested-case hearings in Title IV-D license-suspension cases. However, as noted, and as

conceded by appellees, the district court erred in dismissing the APA claims with prejudice. See

Duenez, 201 S.W.3d at 675 (dismissal for failure to exhaust administrative remedies); Ritchey,

986 S.W.2d at 612 (dismissal for mootness). Accordingly, we modify the district court’s judgment

31 to dismiss these APA claims without prejudice and, as modified, affirm the dismissal of those claims

without leave to replead. See Koseoglu, 233 S.W.3d at 839-40; Duenez, 201 S.W.3d at 675; Ritchey,

986 S.W.2d at 612.

As for appellants’ UDJA claims concerning SOAH’s statutory authority to issue

final orders in Title IV-D license-suspension proceedings, we cannot conclude that appellants

would be unable to replead these claims to remedy the jurisdictional defect we have identified (i.e.,

to allege that the interagency contract is void). Consequently, while we affirm the district court’s

judgment granting appellees’ plea to the jurisdiction as to these claims, we reverse its judgment

dismissing the claims and remand the claims to the district court with orders to afford appellants a

reasonable opportunity to replead these claims, if possible, in a manner that affirmatively invokes

the district court’s subject-matter jurisdiction. See City of Round Rock v. Whiteaker, 241 S.W.3d

609, 640 (Tex. App.—Austin 2007, pet. denied). By this, we are not suggesting that any repled

claim would necessarily survive future jurisdictional challenges by appellees. We conclude only

that the record does not demonstrate that this opportunity to replead would be futile. See Koseoglu,

233 S.W.3d at 839-40. We also emphasize that our holding is limited to the jurisdictional issue, as

presented on this record, and that we intend no comment on the ultimate merits of these claims.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Modified and, as Modified, Affirmed in part; Reversed and Remanded in part

Filed: July 31, 2009