source: Caselaw Access Project

author: G. ALAN WALDROP, Justice. JAN P. PATTERSON, Justice,

license: Public Domain

text:
    Susan COMBS, in her Official Capacity as Comptroller of Public Accounts for the State of Texas, Appellant, v. CITY OF WEBSTER, Webster Economic Development Corporation, City of Denton, City of Humble, City of Lewisville, City of Mesquite, City of North Richland Hills, City of Plano, City of Waco, Denton County Transportation Authority, and Fort Worth Transportation Authority, Appellees.
    No. 03-08-00291-CV.
    Court of Appeals of Texas, Austin.
    Oct. 2, 2009.
    Rehearing Overruled April 16, 2010.

      Kristofer S. Monson, Assistant Solicitor General, Natalie A. Maloney, Assistant Attorney General, Austin, TX, for Appellant.
    David M. Feldman, Jonathan G. Brush, Feldman, Rogers, Morris & Grover, L.L.P., David H. Gregg Jr., Gregg & Gregg, P.C., Houston, TX, Raymond Bonil-la Jr., Doug W. Ray, Ray, Wood, & Bonil-la, Austin, TX, for Appellees.
    Before Justices PATTERSON, PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

This suit involves the allocation of local sales tax revenue by the Texas Comptroller of Public Accounts. The Comptroller is responsible for collecting local sales tax from retailers, and then distributing the revenue to the appropriate local taxing jurisdictions. Appellees are numerous local taxing jurisdictions that had originally received allocations of local sales tax revenue attributable to certain furniture retailers’ sales, based on the locations of the retail stores in which the sales occurred. Beginning in 2006, the Comptroller notified appellees that a portion of that revenue would instead be allocated to another local taxing jurisdiction. This reallocation was based on the Comptroller’s determination that the sales were consummated for sales tax purposes in the city where the retailers’ warehouses are located. The Comptroller applied this determination both prospectively and retroactively to May 2002. The retroactive aspect of the Comptroller’s ruling requires the Comptroller to recoup tax revenues from appel-lees that have already been paid to them.

Appellees filed suit against appellant Susan Combs, in her official capacity as Comptroller of Public Accounts for the State of Texas, asserting (1) claims under the Texas Constitution for violation of the due course of law and takings provisions, (2) claims under the Uniform Declaratory Judgments Act (UDJA) that the Comptroller had acted outside her authority in interpreting and applying the Texas Tax Code provisions that govern the location where a sale is consummated, and in applying a change in local sales tax allocation retroactively, and (3) a claim under the Administrative Procedure Act (APA) that the Comptroller’s rule allowing retrospective reallocation of local sales tax was not properly promulgated. The Comptroller filed a plea to the jurisdiction as to all claims. The district court denied the plea, and the Comptroller appeals.

We affirm the district court’s denial of the plea to the jurisdiction as to appellees’ claim under the UDJA that the Comptroller acted outside her authority in applying the tax code regarding where the specific sales at issue were consummated. We reverse the district court’s order as to the remainder of appellees’ UDJA claims, their constitutional claims, and their APA claim, and dismiss those claims for lack of subject-matter jurisdiction.

Factual and Procedural Background

Appellees are municipalities and other local jurisdictions that have authority by statute to impose or receive local sales and use taxes. See Tex. Tax Code Ann. § 321.101 (West 2008) (municipalities), § 322.101 (West 2008) (transportation authorities); Tex.Rev.Civ. Stat. Ann. art. 5190.6, §§ 4A(d), 4B(d) (West Supp. 2008) (economic development corporations). Although such local jurisdictions can impose local sales and use taxes, the Comptroller is responsible for administering, collecting, and enforcing the taxes. See Tex. Tax Code Ann. §§ 321.301, 322.201 (West 2008). Retailers are generally responsible for reporting and remitting sales tax collected — state and local — to the Comptroller. See, e.g., id. §§ 151.409, .410 (West 2008). The Comptroller is then responsible for disbursing the local portion of the sales tax to the appropriate local taxing jurisdictions. See id. §§ 321.502, 322.302 (West 2008).

In August 2006, appellees the City of Webster and the Webster Economic Development Corporation (collectively, “Plaintiffs”) received notice that the Comptroller intended to recover over $500,000 in local sales tax previously disbursed to them. This reclaiming and reallocation of disbursed tax revenue was a result of RoomStore, Inc., which operated a retail furniture store in Webster, Texas, having amended its sales tax reports to change its “place of business” from its retail store in Webster to its warehouse located in Grand Prairie, Texas. The Comptroller’s reallocation applied retroactively to the time period from May 2002 through January 2006, and was to be applied prospectively as well. Also, in 2006 and 2007, appellees the City of Denton, the City of Humble, the City of Lewisville, the City of Mesquite, the City of North Richland Hills, the City of Plano, the City of Waco, the Denton County Transportation Authority, and the Fort Worth Transportation Authority (collectively, “Interve-nors”) received similar notices from the Comptroller, involving over $4,000,000 previously disbursed to them. This reallocation and reclaiming of tax revenue, similarly, was a result of the Comptroller’s determination that the “places of business” for sales tax purposes of furniture retailers Ashley Furniture and RoomStore were their warehouses located in Grand Prairie rather than their retail outlets in other cities.

On September 15, 2006, Plaintiffs filed suit against the Comptroller, and on April 18, 2007, Intervenors filed a plea in intervention and third-party petition in the lawsuit. Appellees — both Plaintiffs and Inter-venors — assert essentially the same causes of action. Specifically, appellees assert: (1) claims under the Texas Constitution for the Comptroller’s failure to provide due course of law, see Tex. Const, art. I, § 19, and for the taking of property without compensation, see id. art. I, § 17; (2) claims for declaratory relief under the UDJA, see Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008); and (3) a claim for declaratory relief under the APA, see Tex. Gov’t Code Ann. § 2001.038 (West 2008).

The Comptroller filed a plea to the jurisdiction as to all of appellees’ causes of action. The district court denied the Comptroller’s plea. The Comptroller filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008).

Analysis

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of a specific cause of action. See, Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). Whether a court has subject-matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

When a plea to the jurisdiction challenges the plaintiffs’ pleadings as to a cause of action, we determine if the plaintiffs have alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. If so, the plea to the jurisdiction should be denied. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then the plea should be granted. See id. at 227. If, however, the pleadings — construed liberally in favor of the plaintiffs — neither contain sufficient facts to affirmatively demonstrate the existence of jurisdiction nor affirmatively demonstrate incurable defects in jurisdiction, then the plaintiffs should receive an opportunity to amend their pleadings. See id. at 226-27.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties as necessary to resolve the jurisdictional issues raised. Id. at 227. When such a jurisdictional challenge implicates the merits of the plaintiffs’ cause of action, the relevant evidence must be reviewed for the existence of a fact issue. Id. In that case, we take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. See id. at 228. If the relevant jurisdictional evidence is undisputed or fails to raise a fact question, the plea may be ruled on as a matter of law. Id. If, however, the jurisdictional evidence raises a material fact question on the jurisdictional issue, the plea should not be granted, as fact issues must be resolved by the fact-finder. See id. at 227-28. See generally Hendee v. Dewhurst, 228 S.W.3d 354, 366-69 (Tex.App.-Austin 2007, pet. denied).

In this lawsuit, appellees seek judicial review of the Comptroller’s determinations of certain retailers’ “place of business” for purposes of local sales tax allocation and, in accordance with such determinations, the Comptroller’s reclaiming and reallocation of tax revenue already disbursed. “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.” Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex.2000) (citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.1967)); see Smith v. Abbott, 311 S.W.3d 62, 79 (Tex.App.-Austin 2010, no pet. h.) (“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, unless the orders were ultra vires of SOAH’s statutory authority or unconstitutional.” (citations omitted)). Appellees concede that while taxpayers have the statutory authority to amend their tax returns and seek a refund, see Tex. Tax Code Ann. § 111.104 (West 2008), no provision of the tax code provides a method for local taxing jurisdictions to raise the challenges that appellees assert in this lawsuit. Nonetheless, appellees argue that they have a right to judicial review under the Texas Constitution, by way of their due course of law and takings claims, and by statute, through their UDJA and APA claims.

Constitutional Claims

Appellees have alleged the following claims under the Texas Constitution: (1) the Comptroller’s interpretation of the tax code constitutes a violation of their right to substantive due course of law, see Tex. Const, art. I, § 19; (2) the Comptroller’s attempt to recover and reallocate sales tax revenues already disbursed to the local jurisdiction, without providing notice or opportunity to be heard, violates the procedural due course of law provisions of the Texas Constitution, see id.; and (3) the Comptroller’s recovery of tax revenues and transfer of those revenues to another taxing jurisdiction is a taking of property without the payment of adequate compensation, see id. art. I, § 17. Because no waiver of sovereign immunity is necessary for these types of constitutional claims, to the extent any of these claims is viable the district court has jurisdiction over them. See General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001); Texas State Employees Union v. Texas Workforce Comm’n, 16 S.W.3d 61, 66-67 (Tex.App.-Austin 2000, no pet.).

The Comptroller’s plea to the jurisdiction as to appellees’ constitutional claims challenges the pleadings. Therefore, our task is to determine whether appellees have alleged facts that affirmatively demonstrate the district court’s jurisdiction to hear the constitutional claims. See Miranda, 133 S.W.3d at 226. If the pleadings affirmatively negate the existence of jurisdiction, then the plea should be granted. See id. at 227.

The Comptroller contends that appellees do not have a vested property interest at stake. Each of appellees’ constitutional claims requires the existence of such a protected right. See Spring Branch Indep. Sch. Disk v. Stamos, 695 S.W.2d 556, 560-62 (Tex.1985) (procedural and substantive due process claims); Dallas County v. Gonzales, 183 S.W.3d 94, 111 (Tex.App.-Dallas 2006, pet. denied) (same); City of Houston v. Northwood Mun. Util. Disk No. 1, 73 S.W.3d 304, 311 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (takings claim). Moreover, if the pleadings affirmatively negate a required element of a constitutional claim against the State, grant of the State’s plea to the jurisdiction as to that claim is proper. See State v. Holland, 221 S.W.3d 639, 643-44 (Tex. 2007). According to appellees’ pleadings, the property interest at stake is the tax revenues that were received by appellees, but that have been or will be diverted to the City of Grand Prairie. If, then, the Comptroller is correct that appellees do not have a vested interest in the tax revenues at issue, appellees’ constitutional claims have no merit, and the Comptroller’s plea to the jurisdiction should be granted as to those claims. If, on the other hand, appellees do have a vested interest in the tax revenues, the Comptroller’s arguments fail and the district court’s denial of her plea as to appellees’ constitutional claims should be affirmed.

A right is “vested” when it has some definitive, rather than potential, existence. City of La Marque v. Braskey, 216 S.W.3d 861, 864 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see Shanks v. Treadway, 110 S.W.3d 444, 446 n. 2 (Tex.2003) (“Pension plan benefits become vested when the employee has an unconditional ownership interest in them.... ”). To have a property interest in welfare benefits, for example, a person must have a legitimate claim of entitlement, based on an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Therefore, we look to Texas tax law to determine the nature of appellees’ interest in the tax revenues at issue.

The Comptroller is responsible for collecting local sales taxes. Tex. Tax Code Ann. § 321.301. In general, the Comptroller may make a refund or credit based on a taxpayer’s overpayment of tax attributable to the same period for which the Comptroller may assess a tax deficiency, see id. § 111.107(a) (West 2008), which period ends four years from the date that the tax becomes due and payable, see id. § 111.201 (West 2008). It follows that the amount of local sales tax to which a municipality is entitled for a given year is subject to change depending on refunds or other adjustments made by the Comptroller to taxpayers — more specifically for this case, retailers — prior to the end of the four-year period. Until that time, the municipality’s interest in a definite amount remains contingent rather than unconditional, and potential rather than definitive. See Corpus Christi People’s Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621, 626 (Tex.1995) (taxing unit has no vested right to taxes upon assessment due to existing potential that exemption applies). Because the tax revenues at issue in this lawsuit are attributable to sales tax paid within the four-year period during which tax adjustments are authorized by statute, appellees had no vested interest in the tax revenues actually disbursed but later adjusted and subject to reallocation.

Appellees argue that the contingency of their entitlement to the tax revenues during the four-year period is better characterized as a potential defeasance of their otherwise vested rights. Appellees refer to military retirement pay, which has been held to be a “vested right” even though it is subject to defeasance under federal law for reasons such as the service person’s breach of good conduct or death. See Ex parle Burson, 615 S.W.2d 192, 196 (Tex. 1981). We are not faced here with possible methods by which a city’s entitlement to the tax revenues may be forfeited under statute. Rather, in this situation, the amount of tax revenue to which the city may ultimately be entitled is not fixed on the date the revenues are initially disbursed. State law provides for a window of time in which taxpayers may seek and receive adjustments to their tax liability from the Comptroller, and in this instance the Comptroller has made an adjustment within that window. Thus, during that time period, the taxing unit’s entitlement to the precise amount of tax revenues that have been disbursed is conditional under state law. In the event that the Comptroller recalculates a taxpayer’s tax liability at a higher amount than paid, and assessed that higher amount within the four-year period, see Tex. Tax Code Ann. § 111.201, the Comptroller’s demand for additional taxes from the taxpayer would not impair a vested right of the taxpayer, even though attributable to a prior tax year. In the same way, when the Comptroller recalculates the amount to which a local taxing entity is entitled based on taxpayers’ adjusted tax liabilities, such action is not an impairment of a vested right. Local jurisdictions are presumably aware that the final amount of tax revenues available to them is not — and, by statute, cannot — be fixed until the window for adjustment closes.

In sum, appellees have no vested right in the tax revenues at issue, and therefore, their due course of law and constitutional takings claims fail as a matter of law. Therefore, the pleadings affirmatively negate the existence of jurisdiction over ap-pellees’ constitutional claims, and the Comptroller’s plea to the jurisdiction should be granted as to those claims. See Miranda, 133 S.W.3d at 227.

UDJA Claims

Appellees also seek relief under the Uniform Declaratory Judgments Act. The Comptroller argues that appellees’ UDJA claims are barred by sovereign immunity because they are an attempt to control state action.

Sovereign immunity from suit, unless waived, protects the State of Texas, its agencies, and its officials from lawsuits. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997). It is for the legislature alone to waive sovereign immunity. See id. at 409. In administering local sales taxation, the Comptroller exercises a governmental function. See Tex. Tax Code Ann. §§ 321.301, 322.201. A suit against a state officer lawfully exercising her governmental functions is considered a suit against the State and is barred by sovereign immunity absent legislative consent. McLane Co. v. Strayhorn, 148 S.W.3d 644, 649 (Tex.App.-Austin 2004, pet. denied); see City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex.2009) (suit alleging violation of statute “leaving no room for discretion” is not barred). Conversely, a private litigant does not need legislative permission to sue the State for a state official’s violations of state law. Federal Sign, 951 S.W.2d at 404. Unlike a suit challenging a state official’s discretionary acts, an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority — i.e. has acted ultra vires — is not a suit against the State that is barred by sovereign immunity. See id. The issue here, then, is whether appellees have alleged an act by the Comptroller that is not within her legal or statutory authority.

Appellees contend that such an inquiry, here, would involve an improper inquiry into the merits of their claims. However, when a plea to the jurisdiction challenges the existence of jurisdictional facts — as is the case with the Comptroller’s challenge of appellees’ UDJA claims — and the jurisdictional challenge implicates the merits, we must resolve the jurisdictional issue unless the jurisdictional inquiry involves an issue of material fact that is properly disputed and controverted. See Miranda, 133 S.W.3d at 227-28; Hendee, 228 S.W.3d at 368-69 (“summary judgment-like process” applies when plea challenges alleged acts that are asserted to have been beyond actor’s constitutional or statutory authority). Appellees are correct that the proper interpretation of the tax code provisions at issue overlaps with the merits of appellees’ claims. However, we must construe these same statutes in our jurisdictional inquiry because if we determine as a matter of law that the Comptroller’s actions were within her statutory authority, then appellees’ claims are not ultra vires claims, the Comptroller’s sovereign immunity against appellees’ claims has not been waived, and the Comptroller’s plea must be granted and appellees’ claims dismissed. See Miranda, 133 S.W.3d at 228; McLane Co., 148 S.W.3d at 650-51.

(1) Construction of “place of business” definition

Appellees seek a declaratory judgment that the Comptroller’s reallocation of certain tax revenues to the City of Grand Prairie — including amounts previously disbursed to appellees — is based on an incorrect statutory interpretation. Specifically, appellees take issue with the Comptroller’s interpretation of the statutory requirements that apply for the retailers’ warehouses located in Grand Prairie to be considered “places of business” under the tax code.

For purposes of local sales tax, the sale of a taxable item occurs within the municipality in which the sale is consummated. See Tex. Tax Code Ann. § 321.203(a) (West 2008). Generally, the location at which a sale is consummated is a “place of business” of the retailer. See id. § 321.203(b) — (d). As to the sales at issue, customers ordered furniture at the retail store locations within appellees’ jurisdictions, and the retailers shipped the furniture directly to the customers from the Grand Prairie warehouses. The parties do not dispute that the retail stores affiliated with the retailers at issue in this lawsuit are places of business. Under tax code section 321.203, then, if the warehouses are not places of business, the sales will be considered consummated at the retail store locations, which are “the retailer’s place of business in this state where the order is received.” Id. § 321.203(d)(1). If, however, the warehouses are places of business, the furniture sales are considered to have been consummated at the warehouses, which are the locations “from which the retailer ships or delivers the item, if the retailer ships or delivers the item to a point designated by the purchaser or lessee.” Id. § 321.203(c)(1).

Consequently, whether the Comptroller’s allocation to the City of Grand Prairie of local sales tax paid by RoomStore and Ashley Furniture is in compliance with the tax code depends on whether the Grand Prairie warehouses qualify as “places of business.” Section 321.002 of the tax code defines “place of business” in relevant part as:

an established outlet, office, or location operated by the retailer or the retailer’s agent or employee for the purpose of receiving orders for taxable items and includes any location at which three or more orders are received by the retailer during a calendar year. A warehouse, storage yard, or manufacturing plant is not a “place of business of the retailer” unless at least three orders are received by the retailer during the calendar year at the warehouse, storage yard, or manufacturing plant.

Id. § 321.002(a)(3) (West 2008); see 34 Tex. Admin. Code § 3.374(a)(2) (2007).

When construing a statute, we begin with its plain language. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Appellees contend that a location must be operated “for the purpose of receiving orders for taxable items” for the location to be a place of business under the statutory definition. See Tex. Tax Code Ann. § 321.002(a)(3). However, the statute plainly states that the definition of place of business “includes any location at which three or more orders are received by the retailer during a calendar year.” Id. This portion of the definition is not qualified or conditional in any way on the portion of the definition referring to a retailer’s “purpose” for the location. Whether one views the “three or more orders” language as setting out independent criteria for being a place of business or articulating a specific manner in which the “purpose” requirement can be met, it is a reasonable interpretation of the statutory definition that a location may be a place of business if it receives three or more orders during a calendar year. See id.; Tarrant Appraisal Disk v. Moore, 845 S.W.2d 820, 823 (Tex.1993) (“Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute”); Farmers Tex. County Mut. Ins. Co. v. Romo, 250 S.W.3d 527, 536 (Tex.App.-Austin 2008, no pet.).

We hold that the Comptroller’s interpreting tax code section 321.002(a)(3), such that a location at which a retailer receives three or more orders during a calendar year can be a place of business even without separate evidence that it is a location established “for the purpose of’ receiving orders for taxable items, is a reasonable interpretation. The phrase “and includes” can reasonably be interpreted to indicate that the “for the purpose of’ phrase and the “three or more orders” phrase are alternate methods of satisfying the statutory definition. To fall within the ultra vires exception to sovereign immunity, a suit must allege, and ultimately prove, that the state official acted without legal authority or failed to perform a ministerial act. See Heinrich, 284 S.W.3d at 372. Appellees have failed to allege an act by the Comptroller that is outside her legal or statutory authority. The Comptroller’s interpretation of section 321.002(a)(3) is consistent with the statute and legislative intent as expressed in the language of the statute. Consequently, appellees have not alleged a valid ultra vires claim. Sovereign immunity bars ap-pellees’ claim under the UDJA.

(2) Application of “place of business” definition

Appellees also seek a declaratory judgment that in reallocating to the City of Grand Prairie tax revenues previously disbursed to appellees, the Comptroller misapplied tax code section 321.002(a)(3). Specifically, Appellees contend that, even if we find the Comptroller’s interpretation of section 321.002(a)(3) to be reasonable, the Comptroller’s determination that the retailers’ Grand Prairie warehouses are “places of business” is incorrect under such interpretation. In seeking a declaration that the retailers’ warehouses are not “places of business” in accordance with the Comptroller’s interpretation of the statutory definition, appellees have alleged an ultra vires claim under the UDJA. See Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945) (sovereign immunity does not bar UDJA claim seeking declaration that plaintiffs are not “motor carriers” as defined by statute and, therefore, that Comptroller acted without legal authority in compelling plaintiffs to pay tax applicable to motor carriers); Texas Dep’t of Ins. v. Reconveyance Servs., Inc., 240 S.W.3d 418, 434 (Tex.App.-Austin 2007, pet. filed) (“[I]t is well-established that Texas courts have subject-matter jurisdiction to declare illegal or enjoin agencies’ acts that misinterpret and misapply the laws they are charged with administering.” (Emphasis added.)).

An administrative agency has the power to interpret its own rules, and its interpretation is entitled to great weight and deference. ASAP Paging Inc. v. Public Util. Comm’n, 213 S.W.3d 380, 394 (TexApp.-Austin 2006, pet. denied). According to statements by the Comptroller in the documents attached to the plea to the jurisdiction and appellees’ responsive filings, the three orders required for a distribution center to be considered a place of business under the tax code may be received at the distribution center itself, or by any of the following that is in the same building, provided that the connecting doors are unlocked: (1) a corporate office that sells products; (2) a salesperson assigned to the distribution center; (3) a showroom or clearance center with regular hours of operation open to the public for sales of merchandise; or (4) an internet computer system receiving orders. Appellees contend that the Room-Store warehouse does not qualify under the Comptroller’s own guidelines. The record includes the Comptroller’s internal email from September 2005 indicating that at some point the Comptroller had determined that the RoomStore’s Grand Prairie distribution center and corporate office were “separated by a wall and the doors are locked,” and that customers “can never order anything from the distribution center” itself.

When the plea to the jurisdiction challenges the existence of jurisdictional facts and such challenge implicates the merits, we may rule on the plea as a matter of law if the relevant evidence is undisputed or fails to raise a fact issue. See Miranda, 133 S.W.3d at 227-28. Here, however, the Comptroller has not produced any evidence relevant to whether the retailers’ warehouses are, in fact, places of business as defined by the tax code. The Comptroller alleges that the retailers “satisfactorily explained” in amended tax returns that their warehouses were places of business, but the record contains no evidence to support this allegation. There is some evidence in the record that the retailers did not receive orders at the warehouses. In contrast, there is no evidence showing that a sufficient number of orders were received at the warehouses and, therefore, that the Comptroller acted within her discretion in reaching its determination. Consequently, given the current state of the record, the Comptroller’s plea to the jurisdiction was properly denied as to ap-pellees’ claim under the UDJA that the Comptroller misapplied tax code section 321.002(a)(3).

(3) Retroactive reassessment of local sales tax

Appellees also seek a declaratory judgment that the Comptroller had no authority to reclaim taxes already paid to appellees and reallocate them to the City of Grand Prairie. According to appellees, no statute or rule provides the Comptroller such authority, regardless of whether the Comptroller properly interpreted and applied tax code section 321.002(a)(3) in determining that the Grand Prairie warehouses are places of business.

The Comptroller is authorized by statute to administer, collect, and enforce local sales tax imposed by a municipality. See Tex. Tax Code Ann. § 321.301. The Comptroller has the authority to adjust tax amounts if she finds that an amount of tax, penalty, or interest has been unlawfully or erroneously collected. See id. § 111.104(a). The process of adjusting the tax amount due can be initiated by the “person who directly paid the tax to this state or by the person’s attorney, assignee, or other successor.” Id. § 111.104(b); see 34 Tex. Admin. Code §§ 3.282(j), .325(a) (2007). These adjustments by the Comptroller may be made any time within four years from the date that the tax becomes due and payable. See Tex. Tax Code Ann. § 111.107(a), .201. The Comptroller may also determine that a person owes a greater amount of taxes than reported. See, e.g., id. §§ 111.008, .108 (West 2008).

Appellees contend that because the statute authorizing taxpayers to initiate the process of adjusting the tax amount due refers to “tax refund claims,” see id. § 111.104(b), it is not applicable to a retailer’s changing the local taxing jurisdiction to which local sales tax should be allocated. Appellees reason that because no provision of the tax code expressly addresses this specific type of amendment to a retailer’s tax returns, the Comptroller acted outside her legal authority in allowing such a retroactive amendment. We are not persuaded by appellees’ view of the scope of the Comptroller’s authority. A taxpayer has express authority to amend its tax return during the applicable four-year period in a manner that results in a refund of taxes based on the amendment. See id. There is no statutory limitation on what information may be amended such that a tax refund results. We consider it a reasonable interpretation for the Comptroller to determine that a taxpayer is also entitled to amend its tax return in a manner that results in additional taxes owed, and to pay those additional taxes. See Tarrant Appraisal Dist, 845 S.W.2d at 823; Farmers Tex. County Mut. Ins. Co., 250 S.W.3d at 536. This is precisely what has happened here. The retailers amended their tax returns to correct the location in which certain sales were consummated, and the result was a refund of tax paid to appellees and an increase in taxes owed — and, eventually, paid — to the City of Grand Prairie.

This Court, in McLane Co. v. Strayhom, held that when the Comptroller has been provided a “clear grant of discretion” by statute, a claim under the UDJA seeking to compel the Comptroller to exercise that discretion in a certain manner is a suit against the State and is barred by sovereign immunity absent legislative permission. 148 S.W.3d at 650-51. Appellees contend that we should reach a different result in this case because, unlike here, the grant of discretion by the statute at issue in McLane explicitly contained the phrase “acceptable to the comptroller.” See id. at 650 (quoting Tex. Tax Code Ann. § 154.051(o) (West 2008)). A statute need not, however, contain this precise phrase— or some variation thereof — regarding a specific issue in order for the agency, which has been charged with enforcement over the matter by statute, to have some discretion as to that specific issue. See Heinrich, 284 S.W.3d at 371 (where statute leaves no room for discretion, suit alleging violation of that statute not barred); Tarrant Appraisal Dist., 845 S.W.2d at 823 (“Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.”).

The Comptroller is authorized by statute to administer, collect, and enforce local sales tax. See Tex. Tax Code Ann. § 321.301. She is authorized to accept and process amended sales tax returns that result in a tax refund. See id. § 111.104. Such amended tax returns can apply retroactively if filed within the four-year limitations period. See id. § 111.107(a). Therefore, we hold that the Comptroller acted within her statutory discretion in determining that the Comptroller had authority to reallocate local sales tax based on amended sales tax returns within the applicable limitations period correcting the location at which sales were consummated.

In sum, based on the Comptroller having acted within the scope of her statutory authority, the Comptroller’s plea to the jurisdiction should have been granted as to appellees’ UDJA claim that the Comptroller improperly interpreted tax code section 321.002(a)(3) and their UDJA claim that the Comptroller had no authority to retroactively transfer local sales tax revenues. Conversely, given the current state of record, the Comptroller’s plea to the jurisdiction was properly denied as to appellees’ UDJA claim that the Comptroller incorrectly determined that the retailers at issue received three or more orders at their Grand Prairie warehouses during each relevant calendar year.

APA Section 2001.038 Claim

Appellees also seek declaratory relief under the authority of section 2001.038 of the Administrative Procedure Act. Section 2001.038 of the APA provides for a declaratory judgment action to determine the “validity or applicability of a rule ... if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” Tex. Gov’t Code Ann. § 2001.038(a). Ap-pellees, in their pleadings, allege that the Comptroller’s rule allowing retrospective reallocation of local sales tax was not properly promulgated and, therefore, is invalid.

Section 2001.088 is a grant of original jurisdiction and waives sovereign immunity. Texas Logos, L.P. v. Texas Dep’t ofTransp., 241 S.W.3d 105,123 (Tex. App.-Austin 2007, no pet.). Appellees contend that because an APA section 2001.038 claim is not barred by sovereign immunity, in order to grant the Comptroller’s plea as to the APA claim we would be required to first delve into the claim’s merits, which, appellees allege, is improper at this stage of the proceedings. See Sefzik v. Texas Dep’t of Transp., 267 S.W.3d 127, 134-35 (Tex.App.-Corpus Christi 2008, pet. filed). However, it is the plaintiffs responsibility to plead a cause of action upon which the trial court has jurisdiction. See Hams County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004). Section 2001.038 only authorizes a district court to resolve whether an administrative rule is valid or whether an administrative rule is applicable. Friends of Canyon Lake, Inc. v. Guadalupe-Bianco River Auth., 96 S.W.3d 519, 529 (Tex.App.Austin 2002, pet. denied). The Comptroller contends that appellees have failed to plead such a cause of action. Therefore, we must determine if appellees have alleged facts that affirmatively demonstrate the existence of a cause of action under APA section 2001.038. See Miranda, 133 S.W.3d at 226.

The Comptroller argues that because appellees have no constitutional property right at stake, they have no “legal right or privilege” that can be interfered with or impaired, and therefore, ap-pellees’ pleadings affirmatively negate the existence of jurisdiction over the APA section 2001.038 claim. However, section 2001.038 does not require that the legal right at stake be protected by the constitution. See Tex. Gov’t Code Ann. § 2001.038(a). Appellees have a statutory right to their share of the collected sales tax. See Tex. Tax Code Ann. § 321.502 (comptroller to send “the municipality’s share of the taxes”). This is a sufficient legal right for purposes of section 2001.038 of the APA.

Next, the Comptroller argues that there can be no validity challenge under section 2001.038 absent procedural or constitutional grounds, and that such grounds are absent here. See City Pub. Serv. Bd. v. Public Util. Comm’n, 96 S.W.3d 355, 359 (Tex.App.-Austin 2002, no pet.). However, this Court has also found a viable APA claim where a state agency’s rules were allegedly not passed in accordance with the APA’s rulemaking requirements and contained guidelines that “appear contrary to the plain wording of the statute.” Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators, 997 S.W.2d 651, 654, 658 (Tex.App.-Austin 1999, pet. dism’d w.o.j.). Appellees have raised similar allegations here.

The Comptroller also argues that the pleadings affirmatively negate the existence of jurisdiction over the section 2001.038 claim because appellees have not challenged a “rule.” To the extent that no rule as defined by the APA is at issue, section 2001.038 does not provide any basis for the district court’s jurisdiction over appellees’ declaratory judgment action. See Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260, 268-69 (Tex.App.-Austin 2002, no pet.). Not every statement by an administrative agency is a rule for which the APA prescribes procedures for judicial review. Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764, 769-71 (Tex.App.-Austin 1999, no pet.). The APA defines a “rule,” in part, as a “state agency statement of general applicability.” Tex. Gov’t Code Ann. § 2001.003(6)(A) (West 2008). Appellees, in their pleadings, refer to the Comptroller’s rule allowing retrospective reallocation of local sales tax. Appellees acknowledge that no administrative rule regarding retrospective reallocation has been promulgated, but contend that the Comptroller has issued a “statement of general applicability” as to the matter, which should be deemed a “rule” for purposes of APA section 2001.038. However, appellees have failed to allege precisely which “statement of general applicability” is at issue. In the hearing before the district court on the Comptroller’s plea to the jurisdiction, appellees admitted that to date they had encountered “no rule, no official publication, nothing that we can find where the Comptroller has clearly delineated what is its policy regarding retroactive reallocation of sales tax among local jurisdictions.”

It appears that appellees consider the Comptroller to be obligated to produce a statement of general applicability. Regardless of the merit of this position, however, it is not the proper subject of an APA section 2001.038 claim. To attack the validity or applicability of a rule, there must first be a rule. See Tex. Gov’t Code Ann. § 2001.038(a). Because appellees have failed to allege the existence of a rule, appellees have failed to plead a cause of action under section 2001.038 of the APA over which the district court has subject-matter jurisdiction. See Beacon Nat’l Ins. Co., 86 S.W.3d at 268-69.

Conclusion

We affirm the order of the district court denying the Comptroller’s plea to the jurisdiction as to appellees’ claim under the UDJA that the Comptroller misapplied section 321.002(a)(3) of the tax code, specifically, in the Comptroller’s determining that the warehouses at issue received three or more orders in the relevant calendar years. As to the remainder of appel-lees’ claims, we reverse the order of the district court denying the Comptroller’s plea to the jurisdiction, and dismiss those claims for lack of subject-matter jurisdiction.

JAN P. PATTERSON, Justice,

concurring and dissenting.

Appellees’ UDJA claims fall squarely within the jurisdiction of the courts, and the Comptroller’s plea to the jurisdiction on those claims was properly denied by the trial court. Citing the supreme court’s holding in Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945), and quoting this Court’s prior opinion in Texas Department of Insurance v. Reconveyance Services, Inc., 240 S.W.3d 418, 434 (Tex.App.Austin 2007, pet. filed), the majority finds, “ ‘[I]t is well-established that Texas courts have subject-matter jurisdiction to declare illegal or enjoin agencies’ acts that misinterpret and misapply the laws they are charged with administering.’ ” See Combs v. City of Webster, 311 S.W.3d 85, 97 (Tex.App.-Austin Oct. 2, 2009). The majority, however, then ignores its own statement of the law and dismisses appellees’ misinterpretation claim, while remanding appel-lees’ misapplication claim for further proceedings. Because I conclude that the trial court had jurisdiction over both appel-lees’ misinterpretation and misapplication claims for declaratory judgment, I dissent from that portion of the majority’s opinion dismissing appellees’ claim that the Comptroller misinterpreted the statute and acted without legal authority in reallocating tax revenues from appellees to the City of Grand Prairie. I also dissent from that portion of the majority’s opinion dismissing appellees’ constitutional claims.

Declaratory Judgment Claims

In Cobb v. Harrington, a taxpayer sued the Comptroller seeking a declaration that it was not legally liable to pay an occupation tax for “motor carriers.” 190 S.W.2d at 710. The supreme court held that the taxpayer’s action for declaratory judgment was proper because the Comptroller misinterpreted the tax code and, therefore, acted without legal authority in compelling the taxpayer to pay a tax applicable to motor carriers. Id. at 712. Like the taxpayer in Cobb v. Harrington, appellees claim that the Comptroller misinterpreted the tax code’s definition of “place of business” and, therefore, acted without legal authority in reallocating the tax revenues from appellees to Grand Prairie. The majority agrees that the issue is whether appellees have alleged an ultra vires claim. Combs, supra, at 94-95.

Relying on the supreme court’s holding in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.2009), however, the majority concludes that appellees’ claim that the Comptroller misinterpreted the statute cannot fall within the ultra vires exception to sovereign immunity unless the Comptroller’s interpretation of the statute is unreasonable or inconsistent with the legislative intent. Combs, supra, at 96 (“To fall within the ultra vires exception to sovereign immunity, a suit must allege and ultimately prove, that the state official acted without legal authority or failed to perform a ministerial act.” (citing Heinrich, 284 S.W.3d at 372)). The majority misreads Heinrich.

In Heinrich, the supreme court explained that when a statute provides that an agency’s interpretation of the statute is final and binding, there is no right of judicial review to that interpretation. See Heinrich, 284 S.W.3d at 371 n. 3 (citing and discussing Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151 (Tex.2007)). Stated differently, there is no right to judicial review where a statute gives an agency exclusive authority to interpret the act. Id. But the supreme court acknowledged that “[a] different case [is] presented” when a statute does not give an agency exclusive authority to interpret a statute and the plaintiff alleges that the agency is violating the statute. Id.

Applying the supreme court’s analysis here, the tax code does not give the Comptroller exclusive authority to interpret the relevant statutory provisions, and appel-lees have alleged that the Comptroller has misinterpreted section 321.002(a)(3) of the tax code and that her resulting reallocation of tax revenues from appellees to the City of Grand Prairie violates that act. See id. Because appellees contend that the Comptroller reallocated their tax revenues without any statutory authority, appellees’ suit seeks to compel the Comptroller to comply with state law. That claim is not prohibited by sovereign immunity, and the trial court thus had jurisdiction to consider whether the Comptroller misinterpreted section 321.002(a)(3) of the tax code. See id. at 372 (“[I]t is clear that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity.”); see also Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (suits to compel state officers to act within their official capacity are not “suits against the State,” and, therefore, do not implicate sovereign immunity).

Finding that the jurisdictional inquiry “overlaps with” the merits of appellees’ claim, the majority goes on to consider whether the Comptroller’s interpretation of section 321.002(a)(3) of the tax code was reasonable. Combs, supra, at 96-97. The supreme court has confirmed that a trial court exercises its discretion in determining whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004). Given appellees’ allegations that the Comptroller withheld discovery regarding her past interpretations of the relevant statutory provisions at issue, I would conclude that the trial court acted within its discretion to deny the Comptroller’s plea to the jurisdiction.

Upon determining that the Comptroller’s interpretation was reasonable, the majority concludes that appellees’ misinterpretation claim should be dismissed. Although questions of statutory construction are questions of law, at this juncture, it is unnecessary here to reach the merits of appellees’ claim to decide the jurisdictional inquiry because appellees have alleged that the Comptroller has both misinterpreted the statutory definition of “place of business” and violated the law by reallocating tax revenues from appellees to the City of Grand Prairie. See Heinrich, 284 S.W.3d at 370 n. 3. “[T]he proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). It is merely an empty tautology to assert that the merits must be reached to address the threshold jurisdictional inquiry.

Constitutional Claims

While I agree with the general principle that appellees must assert a vested right in order to maintain their constitutional claims, I disagree with the majority’s analysis of whether appellees have a vested right in their sales tax revenues under the facts of this case. Relying on the supreme court’s holding in Corpus Christi People’s Baptist Church, Inc. v. Nueces County Appraisal District, 904 S.W.2d 621, 626 (Tex.1995), the majority concludes that ap-pellees have no vested right to their sales tax revenues during the period in which a taxpayer may request a refund. See Combs, supra, at 93-94. The majority, however, fails to address appellees’ argument that the State does not own the tax revenues at issue because such revenues are merely held in trust by the Comptroller for the benefit and use of appellees pursuant to the tax code. See Tex. Tax Code Ann. §§ 321.101, .103-.104, .501 (West 2008). Nor does the majority address conflicting supreme court authority cited by appellees in which the supreme court held that taxing units, including cities and school districts, have a vested right in funds derived from local taxation. See

Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20, 29 (Tex.1931).

The supreme court’s analysis and holding in Corpus Christi People’s Baptist Church was based on a single taxpayer’s belated claim of a religious exemption from liability for real property taxes. See 904 S.W.2d at 624-25. In concluding that a challenged statute “merely determined the procedures for claiming a religious organization exemption,” id. at 625 (emphasis added), the supreme court did not cite or otherwise reference or overrule its prior holding in Love v. City of Dallas regarding a taxing unit’s vested right to funds derived from local taxation. See id. at 626. Moreover, the facts of Corpus Christi People’s Baptist Church did not involve allegations of a taxing unit’s coordinated lobbying efforts and taxpayer refund requests to encourage the Comptroller to change her longstanding interpretation and application of Texas tax law. Nor did that case involve a situation in which a municipality’s tax revenues are held in trust by the Comptroller for the benefit and use of the municipality. For these reasons, I find the majority’s reliance on Corpus Christi People’s Baptist Church misplaced, and I dissent from that portion of the majority’s opinion dismissing appellees’ constitutional claims.

CONCLUSION

Because I would conclude that the trial court had jurisdiction over appellees’ claim that the Comptroller misinterpreted, as well as misapplied, the statute at issue, I respectfully dissent from that portion of the majority opinion dismissing appellees’ claim that the Comptroller misinterpreted the statute and acted without legal authority in reallocating the tax revenues at issue. I likewise dissent from that portion of the majority’s opinion dismissing appel-lees’ constitutional claims.

      . For this reason, a trial court has discretion to postpone its consideration of a jurisdictional challenge, so that the plaintiff has sufficient opportunity to produce evidence that can raise a fact issue. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); Hendee v. Dewhurst, 228 S.W.3d 354, 369 (Tex.App.-Austin 2007, pet. denied). Providing the plaintiff the opportunity to produce relevant evidence also supports this Court’s reluctance to consider bases for dismissal on interlocutory appeal that were neither included in the plea to the jurisdiction nor considered by the trial court. See Hendee, 228 S.W.3d at 375-76; Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d 827, 833-34 (Tex.App.-Austin 2006, pet. denied); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 687 (Tex.App.-Dallas 2003, pet. denied).

      . We find no merit in the Comptroller's other challenges to appellees’ constitutional claims. The Comptroller contends that the Texas Supreme Court in Neeley v. West Orange-Cove Consolidated. Independent School District, 176 S.W.3d 746 (Tex.2005), limited a local governmental entity’s standing to challenge the constitutionality of a state action to situations in which the entity is charged with implementing a statute it believes violates the constitution. Contrary to the Comptroller's argument, however, the supreme court in West Orange-Cove recognized that such a situation was a means of establishing standing, not that it was the exclusive means. See 176 S.W.3d at 773.
      Citing General Services Commission v. Little-Tex Insulation Co., the Comptroller also contends that appellees' takings claim fails because they had to plead that the government acted "within its eminent domain capacity.” 39 S.W.3d 591, 598-99 (Tex.2001). The court in Little-Tex held that the State is not subject to a takings claim when it acts within a color of right under a contract because it is "acting akin to a private citizen and not under any sovereign powers.” Id. at 599. Here, the Comptroller, in overseeing the allocation of local sales tax, was not acting akin to a private citizen. See Aldine In-dep. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955) (agreeing that assessment and collection of taxes is part of sovereign power of State).

      . Having concluded that any interest appel-lees had in the tax revenues had not yet vested, we do not reach or express any opinion on the related issues — raised by the Comptroller — of whether a local governmental entity can, in fact, acquire vested property interests against the State, whether sales tax revenues are the type of property in which such an entity can obtain such a vested right, or whether such an entity can, in fact, assert a due course of law or takings claim against a state agency based on the agency's discretionary acts or statutory violations.

      .In addressing the scope of our ultra vires inquiry at this stage, the Comptroller argues that this Court, in the case Texas Department of Insurance v. Reconveyance Services, Inc., 240 S.W.3d 418 (Tex.App.-Austin 2007, pet. filed), failed to “followf] the Texas Supreme Court's precedent and resolved the scope of the plaintiff's legal and statutory claims in order to determine whether the claim falls within an exception to immunity.” However, the state agency in Reconveyance did not challenge the denial of its plea to the jurisdiction based on sovereign immunity. See 240 S.W.3d at 427. Consequently, this Court did not reach the question of whether the agency's actions in Reconveyance were within its statutory authority as a matter of law.

      . The municipal sales tax statutes relevant to the UDJA claim are also made applicable to local sales tax imposed by transportation authorities. See Tex. Tax Code Ann. § 322.108(a)(1), (3) (West 2008). Moreover, an economic development corporation's receipt of sales tax revenue is dependent on the municipality’s. See Tex.Rev.Civ. Stat. Ann. art. 5190.6, §§ 4A(f), 4B(g) (West Supp. 2008).

      . For the retailers’ sales in which the customers instead take possession of and remove the furniture at the retail store, the retail store is the applicable place of business. See Tex. Tax Code Ann. § 321.203(c)(2) (West 2008).

      . We note that, based on the second sentence of the definition, a location must receive three or more orders during a calendar year to be a place of business if that location is a "warehouse, storage yard, or manufacturing plant." See id. We also note that we do not determine whether a place of business must be "an established outlet, office, or location operated by the retailer or the retailer's agent or employee,” see id., as appellees do not raise this issue.

      . Appellees’ primary complaint against the Comptroller’s statutory interpretation appears to be that it leads to unfair results. Under the Comptroller’s interpretation, when a customer visits a retail store, where he places an order and pays for his purchase, and then receives the merchandise at his home, all occurring within the same taxing jurisdiction, the City of Grand Prairie will nonetheless receive the local tax revenue simply because the warehouse that shipped the merchandise to the customer received three unrelated orders during the same calendar year. Supporting their complaint, appellees allege that the City of Grand Prairie has made arrangements with the retailers to pay back to them a considerable portion of the local sales taxes collected. We offer no opinion on this point, however, because whether this result involves "fair” tax policy is a question for the legislature.

      . Appellees indicated at oral argument that the statements being challenged under their section 2001.038 claim were the guidelines by which the Comptroller determines whether a warehouse receives three or more orders during a calendar year. However, such a claim is not in appellees' pleadings. Plaintiffs referred only to the "rule” by which the Comptroller maintains "authority to transfer Plaintiffs’ tax revenues to another taxing entity,” and likewise, Intervenors referred only to "detailed procedures and requirements used for the reallocation of local sales taxes.”

      . Had the legislature intended to give the Comptroller exclusive jurisdiction to interpret the relevant statutory provisions, it could have done so. See, e.g., Tex. Tax Code Ann. § 151.0101(b) (giving the comptroller exclusive jurisdiction to interpret the definition of "taxable service” in subsection 151.0101(a) of the tax code).

      . In any event, the trial court did not have the benefit of the supreme court's decision in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.2009), when it issued the order denying the Comptroller's plea to the jurisdiction on April 11, 2008, since Heinrich was not released until over a year later on May 1, 2009. See id. Thus, I would affirm the trial court’s order, or, in the alternative, I would remand both of appellees' UDJA claims for reconsideration in light of Heinrich. See Tex.R.App. P. 43.3; Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993) (remanding cause in the interest of justice for reconsideration in light of new standard announced by court).


author: MACKEY K. HANCOCK, Justice.

text:
    Albert MARTINEZ, Jr., Appellant v. The STATE of Texas, Appellee.
    No. 07-08-00523-CR.
    Court of Appeals of Texas, Amarillo, Panel C.
    March 24, 2010.

      Paul E. Mansur, Denver City, for Appellant.
    Jeffrey S. Ford, Asst. Criminal District Attorney, Lubbock, for Appellee.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Albert Martinez, Jr., appeals his conviction for the offense of capital murder and sentence of life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Background

On October 26, 1996, Eva Garcia was murdered and her battered and naked body was left behind a row of bushes next to a Lubbock church. Police were called to the scene by the pastor of the church after he discovered the body on the morning of October 27. Officer Bruce Short, one of the investigating police officers, opined that Garcia had struggled against her assailant and that it appeared that her clothes had been forcibly removed. Short further opined that it appeared that Garcia had been strangled and had received multiple blunt force trauma injuries. The police recovered multiple items from the scene that were submitted to the Department of Public Safety Crime Laboratory in Lubbock for analysis and testing. None of the analysis and testing provided the police any leads and, in fact, excluded the only suspects. As a result, the case became a “cold case.”

Two days after the discovery of the body, a blood stain was discovered on the wall of the church some distance away from where the body had been located. A swab was taken of this blood stain and it was submitted for testing. The results of the testing excluded Garcia as the source of the blood. In December of 2003, the swab of blood taken from the church wall was retested and the results of that testing was entered into the Combined DNA Index System (CODIS), a national database that stores known DNA profiles to generate leads in unsolved cases. In 2004, the Lubbock Police Department was notified by CODIS that the DNA found in the blood swab had been matched to an individual within the database. According to a CODIS report, the DNA found in the blood swab matched appellant’s DNA. The Lubbock Police Department obtained a blood sample from appellant and compared it to the blood swab obtained from the location of Garcia’s body. The result of this comparison was that appellant could not be excluded as the contributor of the blood found at the location where Garcia’s body was discovered and that the probability of selecting a random Hispanic person that could be the source of the blood stain would be 26.44 quadrillion to one.

As a result of the genetic matching of appellant to the blood stain found at the scene of the crime, appellant became the primary suspect in the murder of Garcia. Appellant was taken into custody while the case was investigated. As part of the investigation, appellant was interviewed by Detective Martinez four times over the course of a week. During these interviews, appellant gave statements to Martinez in which appellant accepted responsibility “for what happened to” Garcia and admitted to beating a woman on October 26. Further, while in custody, appellant made phone calls in which he admitted his involvement in the murder of Garcia, but stated that he did not act alone. In one of these calls, appellant stated that “I was there when they were hitting her and the fucking, you know? but I wasn’t the only one, you hear me?”

Appellant was tried for the offense of capital murder. Following the trial, the jury returned a verdict finding appellant guilty of capital murder, as charged in the indictment. Following the jury verdict, the trial court sentenced appellant to a capital life sentence in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed notice of appeal of the conviction and sentence.

By three issues, appellant challenges the trial court’s Judgment of Conviction by Jury. By his first issue, appellant contends that the trial court violated appellant’s Sixth Amendment right to confront and cross-examine witnesses against him when it allowed Dr. Thomas Beaver to testify from an autopsy report prepared by another doctor. By his second and third issues, appellant contends that the evidence was legally and factually insufficient to support the jury’s verdict that appellant committed murder during the course of committing or attempting to commit aggravated sexual assault. We will address appellant’s sufficiency challenges first.

Sufficiency of the Evidence

By his second and third issues, appellant challenges both the legal and factual sufficiency of the evidence, specifically as it relates to the sufficiency of the evidence to support the finding that he committed murder during the course of committing or attempting to commit aggravated sexual assault. When both legal and factual sufficiency is challenged, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126,133 (Tex.Crim.App.1996).

Standard of Review

In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim. App.2007). In conducting a legal sufficiency review, it is assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton, 235 S.W.3d at 778. An appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

To prove appellant guilty of the indicted offense, the State had to prove: 1) appellant, 2) intentionally, 3) caused the death of Garcia, 4) while in the course of committing or attempting to commit the offense of aggravated sexual assault of Garcia. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp.2009). As applicable to the case before us, a person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another by any means, without that person’s consent. Id. § 22.021(a)(l)(A)(i). In a capital murder case, the intent to commit aggravated sexual assault must be formed prior to or concurrent with the murder. See Herrin v. State, 125 S.W.3d 436, 441 (Tex.Crim. App.2002).

Legal Sufficiency

Appellant contends that the State failed to present legally sufficient evidence to establish that he murdered Garcia during the course of committing or attempting to commit aggravated sexual assault. However, evidence was presented to the jury that Garcia’s clothes had been forcibly ripped from her body and her body was found naked. Further, Garcia’s body was found with abrasions, lacerations, and contusions in the external genitalia as well as a severe laceration in her vagina. Finally, the jury heard appellant’s phone conversation in which he stated, “I was there when they were hitting her and the fucking, you know? but I wasn’t the only one, you hear me?” From this evidence, viewed in the light most favorable to the verdict, we cannot say that the jury acted irrationally in finding appellant guilty of capital murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Clayton, 235 S.W.3d at 778.

Factual Sufficiency

Because we find the evidence to be legally sufficient, we must next review the evidence in a neutral manner to determine whether the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. Watson, 204 S.W.3d at 415. When conducting a factual sufficiency review, we must remain mindful that the jury has already passed on the evidence and their conclusions are entitled to deference when supported by the evidence. Id. at 417. Further, we cannot supplant the jury’s verdict simply because we might disagree, rather we must be able to state with particularity where the deficiency in the evidence to support the jury’s determination exists. Id.

Appellant contends that there is a “complete lack of forensic evidence demonstrating a sexual assault occurred.” Appellant points to the fact that the laceration of Garcia’s vagina was established to have occurred postmortem and contends that this is the only evidence of penetration of Garcia’s sexual organ.

While appellant’s characterization of the evidence is correct, his contention that this makes the evidence factually insufficient is in error. It is sufficient to find that appellant committed capital murder if the evidence supports that appellant murdered Garcia while attempting to commit aggravated sexual assault. See Tex. Penal Code Ann. § 19.03(a)(2). As such, the State was not required to prove that appellant actually committed aggravated sexual assault on Garcia. The evidence that Garcia’s clothes had been forcibly removed, the an-temortem injuries to Garcia’s genitals, and appellant’s statement that he was present during the “fucking” of Garcia is sufficient evidence to allow a rational jury to conclude that appellant murdered Garcia while attempting to commit aggravated sexual assault.

Accordingly, we find that the evidence to support appellant’s conviction for the offense of capital murder was both legally and factually sufficient. Therefore, we overrule appellant’s second and third issues.

Confrontation

By his first issue, appellant contends that his Sixth Amendment right to confront the witnesses against him was violated by the admission of testimonial hearsay evidence, specifically information contained in the report from the autopsy on Garcia’s body. The medical examiner who conducted the autopsy, Dr. Randy Frost, did not testify. Instead, the State called the chief medical examiner for Lubbock County, Dr. Thomas R. Beaver, who was not present at the autopsy, to testify regarding the examination of the body and to give his opinions regarding Garcia’s injuries and the cause of her death. Appellant contends that he was denied his constitutional right to confront Frost and challenge his findings and conclusions contained in his autopsy report.

Standard of Review

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses • against him.” U.S. Const, amend. VI. The confrontation right also applies to out-of-court statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68,124 S.Ct. 1354. Whether a particular out-of-court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). Generally speaking, a hearsay statement is testimonial when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. Error in admitting evidence in violation of a defendant’s confrontation right is constitutional error, which necessitates reversal unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex.R.App. P. 44.2(a); Wood v. State, 299 S.W.3d 200, 214 (Tex.App.-Austin 2009, pet. filed).

The Autopsy Report

Appellant contends that the contents and results of Frost’s autopsy report were testimonial out-of-court statements that, as such, are subject to the Confrontation Clause of the Sixth Amendment. Appellant contends that the admissibility of statements contained in Frost’s autopsy report depends on an evaluation of the reasons the declarant made the statements. If these statements were made in anticipation for use in a later criminal trial, they are testimonial and subject to appellant’s confrontation right. Appellant relies on Melendez-Diaz v. Massachusetts, — U.S. —, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), to support his argument.

The State contends that the recent Wood decision of the Austin Court of Appeals was wrongly decided and should not be followed by this Court. The court, in Wood, construes Melendez-Diaz in much the same way that appellant does in this appeal and concludes that the autopsy report involved in that case was testimonial hearsay subject to the Confrontation Clause of the Sixth Amendment. See Wood, 299 S.W.3d at 209-10. The State argues that Wood overlooked a distinction drawn in Melendez-Diaz, 129 S.Ct. at 2538, between business records created as a regular part of a business’s activity and business records created for use in the courts. In making its argument, the State relies upon the statutory requirement that a medical examiner conduct an inquest whenever there is an unexplained death, regardless of whether there is suspicion that a crime has occurred. See Tex.Code Crim. Proc. Ann. art. 49.25, § 6(a).

The Austin Court of Appeals acknowledged that a medical examiner is statutorily required to conduct an inquest whenever the cause of a person’s death is unknown. Wood, 299 S.W.3d at 209. However, the court also noted that the statute specifically requires the medical examiner to perform an autopsy when a person dies under circumstances warranting the suspicion that death was caused by unlawful means. Id. (citing Tex.Code Crim. Proc. Ann. art. 49.25, § 6(a)(4)). If the cause of death is determined beyond a reasonable doubt, the medical examiner must file a report stating the cause of death with the district, criminal district, or county attorney. Id. (citing Tex.Code Crim. Proc. Ann. art. 49.25, § 9(a)). Further, an autopsy must be performed if requested by the district, criminal district, or county attorney. Id. Because the statutory prerequisites giving rise to the medical examiner’s duty to perform an autopsy varies greatly, the Austin court expressly stated that, “We do not hold that all autopsy reports are categorically testimonial.” Id. The court then analyzed the facts of that case and held that, because the circumstances surrounding the victim’s death warranted the police in the suspicion that his death was a homicide, the police evidence specialist attended the autopsy, and it was a reasonable assumption that the medical examiner performing the autopsy understood that the report containing her findings and conclusions would be used prosecutorially, the autopsy report was a testimonial statement and the medical examiner performing the autopsy was a witness against the defendant within the meaning of the Confrontation Clause. Id. at 209-10.

We agree with the analysis of our sister court in Wood. That the medical examiner may be required to perform an autopsy on a body when there is no suspicion that the death was tied to criminal activity does not justify this Court abdicating its duty to determine whether the primary purpose of the autopsy report was to establish or prove past events potentially relevant to later criminal prosecution. See De La Paz, 273 S.W.3d at 680. In the present case, the circumstances surrounding Garcia’s death warranted the police to suspect that Garcia had been killed, an officer attended the autopsy and took photographs of the body, and it was reasonable for Frost to have assumed that his autopsy report would be used prosecutorially. Since the statutory basis giving rise to Frost’s duty to perform the autopsy was that the circumstances surrounding Garcia’s death warranted the suspicion that the death was caused by unlawful means, see Tex.Code Grim. PROC. Ann. art. 49.25, § 6(a)(4), we hold that Frost’s autopsy report was a testimonial statement and that Frost was a witness within the meaning of the Confrontation Clause of the Sixth Amendment.

Beaver’s Testimony

However, while we have found Frost’s autopsy report to be testimonial, the autopsy report was not admitted into evidence in appellant’s trial. Rather, Beaver testified to his own opinions regarding Garcia’s injuries and death and was, of course, subject to cross-examination by appellant. Beaver did, however, testify that he relied on the contents of the autopsy report as a basis for his opinions.

After Beaver introduced himself and briefly summarized his education and experience, the prosecutor asked him if he could read Frost’s autopsy report and view the photographs and substantiate the findings made by Frost. Appellant indicated that he had an objection and requested a conference at the bench. At the bench conference, appellant stated, “we would object to this witness testifying as to the autopsy report. Initially its hearsay, but we’re also in violation of confrontation clause under Crawford versus Washington, Your Honor.” The trial court overruled appellant’s objection without further discussion. While this objection was sufficient to preserve error in regard to the contents and conclusions contained in the autopsy report, it did not notify the trial court of any error in the admission of the photographs upon which Beaver based his testimony.

Reviewing Beaver’s testimony, it is clear that the majority of his testimony was based on his review of the photographs taken during the autopsy. Based on these photos, Beaver opined that Garcia suffered extensive blunt force trauma injuries, but that she most likely died from asphyxia or, in other words, strangulation.

During Beaver’s testimony, he was asked, on two separate occasions, about his opinion based on his review of the photographs and Frost’s autopsy report. Under Texas Rule of Evidence 703, an expert witness may base an opinion on facts or data that are not admissible in evidence, provided that the inadmissible facts or data are of a type reasonably relied upon by experts in the particular field. Tex.R. Evid. 703. The Confrontation Clause is not violated merely because an expert bases an opinion on inadmissible testimonial hearsay. Wood, 299 S.W.3d at 213. This is so because the testifying expert’s opinion is not hearsay and the testifying expert is available for cross-examination regarding his opinion. Id. Because in these specific instances Beaver did not disclose the testimonial hearsay upon which his expert opinion was based, the jury only heard the direct, in-court testimony of Beaver and appellant’s confrontation rights were not violated. See Id.

However, Beaver did disclose to the jury certain testimonial statements contained in the autopsy report. Texas Rule of Evidence 705(d) permits an expert to disclose inadmissible facts or data underlying his opinion, but only if the value of the inadmissible evidence disclosed is not outweighed by the danger that the inadmissible evidence will be used for another, impermissible purpose. Tex.R. Evid. 705(d); Wood, 299 S.W.3d at 213. In the present case, the facts and data in the autopsy report explained and supported Beaver’s opinions only if those facts and that data were deemed true. Thus, under the circumstances of this case, the disclosure of the out-of-court testimonial statements underlying Beaver’s opinions, even if offered only for the purpose of explaining and supporting those opinions, constituted the use of testimonial statements to prove the truth of the matters asserted in violation of the Confrontation Clause. Wood, 299 S.W.3d at 213.

Harm Analysis

Having found that portions of Beaver’s testimony violated appellant’s confrontation rights, we must analyze the erroneously admitted evidence to determine if it was harmful to appellant. Because the error was constitutional error, we must reverse appellant’s conviction unless we are satisfied beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R.App. P. 44.2(a); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App.2010). In determining whether constitutional error under Crawford may be declared harmless beyond a reasonable doubt ... the following factors are relevant: 1) how important was the out-of-court statement to the State’s case; 2) whether the out-of-court statement was cumulative of other evidence; 3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and 4) the overall strength of the prosecution’s case. Langham, 305 S.W.3d at 582 (quoting Scott v. State, 227 S.W.3d 670, 690-91 (Tex.Crim.App.2007)). Appellant contends that Beaver’s use of inadmissible testimonial hearsay harmed him because it was used to establish the manner and means of Garcia’s death, it was used to prove that appellant was guilty of murder rather than aggravated assault, and failure to reverse appellant’s conviction could encourage the State to repeat the violation of the Confrontation Clause found in this case.

None of appellant’s contentions are persuasive. As to the cause of death, Beaver testified that it was his opinion, based on the photographs, that Garcia had been choked, the choking had caused numerous abrasions to Garcia’s neck as the assailant’s hands shifted on her neck, and Garcia died from “... some sort of strangulation, some sort of asphyxia death.” None of this testimony was in violation of the Confrontation Clause because it constituted the opinions of the expert witness that was on the stand and subject to cross-examination. See Wood, 299 S.W.3d at 213. Thus, while it is true that Beaver informed the jury that Frost had found the cause of Garcia’s death to be asphyxiation, Frost’s opinion is cumulative of other, properly admitted evidence and, as such, is harmless beyond a reasonable doubt. See Langham, 305 S.W.3d at 582. As to appellant’s contention that Frost’s testimonial hearsay was used to establish that appellant was guilty of murder rather than aggravated assault, appellant relies on a confessional statement that he made in which he stated that Garcia was alive when he left the scene of the crime. However, Beaver testified that neither he nor Frost were able to determine a time of death. Nothing in Beaver’s testimony refuted appellant’s defensive theory that he was guilty of only aggravated assault. As a result, we conclude that the jury must have found appellant guilty of capital murder based on other evidence. Finally, appellant contends that the failure to reverse appellant’s conviction could have the effect of encouraging the State to repeat the error found in this case by using sponsoring witnesses in lieu of the actual medical examiner that performed the autopsy. However, the potential of future abuses by the State is not demonstrated by appellant’s analysis to have caused harm in this case.

Looking specifically to those statements from Frost’s autopsy report that were admitted into evidence through Beaver’s testimony, we conclude that the error was harmless. Beaver identified that Frost concluded that the cause of Garcia’s death was asphyxiation. However, as discussed above, Frost’s conclusion regarding cause of death was cumulative of Beaver’s opinion and of the photographs that showed extensive injuries to Garcia’s neck consistent with strangulation. Additionally, we note that the indictment of appellant indicated that the cause of Garcia’s death was either strangulation or blunt force trauma. All of the evidence presented regarding the injuries suffered by Garcia were consistent with either strangulation or blunt force trauma. Beaver also testified regarding the livor findings made by Frost. Initially, we note that this testimony was elicited by appellant during cross-examination. Further, the testimony regarding the livor found in Garcia’s body was never tied to anything that would make this testimony relevant to the issue of whether appellant was guilty of murder. The only testimonial hearsay evidence that was admitted that was not cumulative or irrelevant actually favored appellant. Beaver testified that Frost’s report found that Garcia’s blood-alcohol level was at a .20 and that Garcia had pharmaceutical nar-cotíes in her urine. While Beaver opined that these findings did not contribute to Garcia’s death, the evidence that Garcia was intoxicated was potentially exculpatory in that it might have suggested that Garcia died as a result of an accident.

Looking to the factors that we must consider in determining whether error in this case may be declared harmless beyond a reasonable doubt, the disclosure of Frost’s conclusion regarding the cause of Garcia’s death was cumulative of other evidence that was properly presented to the jury and, as such, was not of great import to the State’s case. Further, significant evidence was admitted that would corroborate that appellant murdered Garcia by strangulation or blunt force trauma and the State’s case against appellant, even without considering the inadmissible testimony regarding Frost’s opinions, was strong. See Langham, 305 S.W.3d at 582. While the admission of the testimonial hearsay from Frost’s autopsy report violated the Confrontation Clause, we are satisfied beyond a reasonable doubt that the disclosure of this information did not contribute to appellant’s conviction or punishment. See Tex.R.App. P. 44.2(a); Wood, 299 S.W.3d at 215.

For the foregoing reasons, appellant’s first issue is overruled.

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial court.

      . Appellant's phone conversation alternated between English and Spanish and the quoted statement was made in Spanish. However, at trial, the State had the conversations translated and transcribed and the transcription of these calls were offered as demonstrative evidence to aid those jury members that do not understand Spanish. Appellant stated that he had no objection to these transcriptions.

      . Appellant contends that the context of the use of the word that was translated to "fucking" makes it apparent that appellant was referring to beating Garcia and not to sexual activity. However, appellant raised no objection to the use of the translation as a demonstrative aid in the trial court and, in cross-examination of the translator, presented evidence to the jury that the word used by appellant could be translated as a sexual act, messing around, or messing someone up. However, the jury was tasked with determining the facts, specifically what was the proper translation, and the weight that should be afforded to this evidence. See Tex.Code Crim. Proc. Ann arts. 36.13, 38.04 (Vernon 2007); Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008). We must defer to the jury's determination.

      . Appellant's brief does not directly address the Wood decision. Appellant’s brief was filed with this Court on August 25, 2009, while the Wood decision was issued on October 7, 2009. Appellant did not file a reply brief.

      . The State concedes that this objection was sufficient to preserve error in the admission of any statements from the autopsy report. See Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003).

      . Specifically, Beaver was asked "And from your review of the autopsy report and the photographs taken in this case, do you believe that a thorough job was done and a correct job was done,” and "But they [the photographs] were, in your opinion, necessary to explain the findings of Dr. Frost in his autopsy report.”