author: BOB PEMBERTON, Justice.

text:
    David LONG, Appellant, v. Dianne YURRICK, Appellee.
    No. 03-10-00115-CV.
    Court of Appeals of Texas, Austin.
    Aug. 25, 2010.

      Lane Heginbotham, William Harris, Harris Law Office, Killeen, TX, for appellant.
    Todd M. Hurd, Todd Hurd & Associates, Lubbock, TX, Ryan J. Damiano, Lubbock, TX, for appellee.
    Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

The central issue presented in this appeal is whether a trial court erred in granting a no-evidence summary-judgment motion one day before the previously scheduled hearing on the motion when the non-movant had failed to file either a response or objections to the motion before the deadline for doing so. Under the circumstances here, we conclude there was no reversible error.

Appellant Long and appellee Yurrick were involved in a relationship that did not end well and left in its wake disputes regarding ownership of various assets. Long sued Yurrick, initially alleging the existence of a common-law marriage and petitioning for a divorce and property division. After the district court dismissed these claims on a finding that no marriage existed, Long asserted claims for damages under causes of action for breach of contract or unjust enrichment, breaches of fiduciary duties, fraud, conversion, and intentional infliction of emotional distress. After these claims had been pending almost three years, on September 8, 2009, Yurrick filed a no-evidence summary-judgment motion challenging whether evidence supported one or more elements of each of Long’s causes of action. The certificate of service attached to the motion reflects that Yurrick served the motion on September 3, 2009, via certified mail to Long’s counsel.

By order dated October 28, 2009, the district court set a hearing on Yurrick’s motion for Wednesday, November 18, 2009 — exactly 21 days thereafter — at 1:30 p.m. On the same day, the court faxed notice of the hearing to Long’s attorney. The deadline for Long to file and serve a response to Yurrick’s motion — Thursday, November 12 (extended one day because the 11th was Veterans Day) — passed without Long either responding or objecting to the motion. See Tex. R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”); see also id. R. 4 (in determining the deadline, “[t]he last day of the period ... is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.”).

On the morning of Tuesday, November 17, 2009 — the day before the scheduled summary-judgment hearing — Yurrick’s counsel faxed a letter to the district court pointing out that Long had neither responded nor objected to Yurrick’s no-evidence motion by the response deadline. Yurrick emphasized that under the no-evidence summary-judgment rule, the district court was required to “grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(i). As the district court was already required to grant the motion by virtue of Long’s failure to respond, and the parties could not present live testimony at the hearing, Yurrick urged that the scheduled summary-judgment hearing on the following day was unnecessary. Instead, Yur-rick suggested, the district court could proceed to grant the motion, thereby saving the court’s time and Yurrick’s counsel (who is based in Lubbock) a long trip to Bell County.

The letter prompted the district court to arrange what the court and parties alternatively term a “conference” or “hearing” that same afternoon with Long’s counsel (a Killeen lawyer who happened to be at the Bell County courthouse on other matters) and Yurrick’s counsel, who participated by telephone. The record indicates that the proceeding had begun in chambers but ultimately was moved to the courtroom, where a court reporter began transcribing it. Yurrick urged that Long’s failure to file a response made it mandatory and inevitable at that juncture that the district court would grant her no-evidence summary-judgment motion. Long did not dispute that he had not filed a response nor objected to Yurrick’s motion by his response deadline — and still had not — nor had he sought leave to file a late response or previously moved for a continuance of the hearing. Instead, Long attempted to justify his failure to file a response by asserting (and it appears undisputed) that there had been a trial setting in the ease scheduled on the same day as the summary-judgment hearing, but at an earlier hour. “Relying on those notices and those settings,” Long reasoned that it would have been unnecessary and “a waste of time” to file a response to Yurrick’s no-evidence motion “because trial will have started and concluded before the summary judgment is heard.” In the alternative, “if the court is inclined to even entertain the no evidence motion for summary judgment,” Long orally requested a continuance “so we can supply the court with the evidence to oppose the no evidence motion for summary judgment.” Long later added that “we have been unduly surprised and prejudiced by the idea of having to hear the no evidence motion for summary judgment prior to its setting.” Long further indicated his readiness to go to trial the following morning. In reply, Yurrick emphasized the requirements of rule 166(a)(i) and the consequences of a non-movant failing to file a response.

After hearing argument, the district court granted Yurrick’s no-evidence motion, signing an order to that effect, and orally denied Long’s request for a continuance. Long subsequently filed a motion for new trial, which was denied by written order following a hearing, and then appealed.

On appeal, Long does not assert that the district court abused its discretion in denying his oral motion for continuance. Similarly, Long does not contend that he was entitled to leave to file a late response; indeed, there is no indication in the record that he ever requested such leave or filed a late response. Instead, Long relies on the complaint that he did not receive proper notice of the November 17, 2009 “summary-judgment hearing.” In his first issue, Long argues that this asserted failure violated Texas Rule of Civil Procedure 166a. Assuming without deciding that the district court’s decision to grant the motion one day early violated rule 166a, Long has not shown any harm from the error. Rule 166a(i), as previously noted, placed the burden on Long to file and serve a response not later than seven days prior to the summary-judgment hearing. He un-disputedly did not do so — and never did so — nor has he preserved any complaint that he should have been entitled to do so after that deadline. In short, as matters stood as of the November 17, 2009 conference or hearing, the district court was already obligated to “grant the motion.” See Tex. R. Civ. P. 166a(i). In his appeal, Long does not suggest how the result would have been any different if the district court had only waited until the following day to rule. See Tex. R. App. P. 44.1(a)(1). We overrule Long’s first issue.

In his second issue, Long argues that this “lack of timely, adequate notice” deprived him of his procedural due-process rights “to be heard.” Due process requires, at a minimum, notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Texas Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 363 (Tex.App.-Dallas 2009, pet. denied). Long had both.

Due process does not require an oral hearing on a motion for summary judgment, but notice of hearing or submission of the motion is required. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) (per curiam). The reason that notice of hearing or submission of the motion is mandatory is because the hearing date determines the time for response to the motion. Id. The Texas Rules of Civil Procedure contemplate that a party may be required to file a response to a motion for summary judgment in as little as fourteen days from the time he is served with the opposing party’s motion. See Tex. R. Civ. P. 166a(c); Reedy v. Webh, 113 S.W.3d 19, 26 (Tex.App.-Tyler 2002, pet. denied). As of the district court’s November 17, 2009 ruling, Long had been provided twenty days from the date of the district court’s hearing notice to file a response to a no-evidence motion with which he had been served over seventy days earlier. We conclude that Long had a reasonable opportunity to respond to Yurrick’s motion and was not deprived of notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Cf. Texas Integrated Conveyor Sys., Inc., 300 S.W.3d at 362-65 (holding non-movant deprived of due process when court granted summary judgment before response was due based on scheduled hearing date). Moreover, the record reflects that any injury to Long resulted not from the lack of a reasonable opportunity to respond, but from a calculated decision not to respond in the view that a response was unnecessary. We overrule Long’s second issue.

Having overruled Long’s issues on appeal, we affirm the district court’s judgment.

      . In one portion of his brief, Long also seems to complain that he did not receive a full 21 days' notice of the originally scheduled November 18, 2009 summary-judgment hearing because the district court served notice of the hearing by fax on October 28. Applying rule 2la's proviso that "[w]henever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or by telephonic document transfer, three days shall be added to the prescribed period,” Tex. R. Civ. P. 21a, Long reasons, ”[t]he earliest possible date Appellee’s no evidence motion for summary judgment could have been set for hear-mg would have been November 21, 2009,” a Saturday, making the earliest proper hearing date the following Monday, November 23. See id. R. 4. As Yurrick points out, however, there is no indication in the record that Long ever raised this complaint in the district court, see Tex. R. App. P. 33.1(a), and, to the contrary, the reporter’s record from the November 17 proceeding reflects that Long conceded the timeliness of notice of the November 18 hearing. Additionally, even assuming that the proper hearing date for the summary-judgment motion was Monday, November 23, it remains that Long had still failed to file a response by seven days prior to that date, November 16.


source: Caselaw Access Project

author: G. ALAN WALDROP, Justice.

license: Public Domain

text:
    CITY OF GALVESTON and Texas Commission on Environmental Quality, Appellants, v. FLAGSHIP HOTEL, LTD., Appellee.
    No. 03-10-00094-CV.
    Court of Appeals of Texas, Austin.
    Aug. 27, 2010.

      See also, 73 S.W.3d 422, 117 S.W.3d 552.
    William Scott Helfand, Charles T. Jeremiah, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, Linda B. Secord, Assistant Attorney General, Environmental Protection & Administrative Law Division, Austin, TX, for Appellants.
    Millard A. Johnson, Andrew H. Sharen-son, Adrian L. Guerra-Paz, Johnson, Delu-ca, Kennedy & Kurisky, P.C., Houston, TX, for Appellee.

      Before Justices PATTERSON, WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

This case involves an administrative determination by appellant Texas Commission on Environmental Quality (TCEQ) that it has no jurisdiction over a dispute between appellee Flagship Hotel, Ltd. and appellant City of Galveston. Flagship sought a determination from TCEQ that the agency had no jurisdiction over the dispute, and TCEQ issued a final order in the case to that effect. Flagship then filed suit in district court appealing and challenging the result that it had requested. We conclude that Flagship is not aggrieved by TCEQ’s final order and, therefore, is not entitled to judicial review under section 2001.171 of the Administrative Procedure Act (APA). We dismiss Flagship’s suit for lack of subject-matter jurisdiction.

Factual and Procedural Background

At all times relevant to this lawsuit, Flagship was the lessee and operator of the Flagship Hotel — located on a pier in Galveston, Texas — and the City was the lessor and owner. During the 1990s, a dispute arose between the City and Flagship regarding amounts owed for municipal water service provided to the hotel.

Flagship filed suit in Galveston County against the City and in 2001 obtained a temporary restraining order enjoining the City from discontinuing water service to the hotel. The City appealed the temporary injunction. In March 2002, the First Court of Appeals held that the trial court lacked jurisdiction to issue the injunction because the Texas Natural Resource Conservation Commission (TNRCC) — the predecessor agency to TCEQ — had exclusive appellate jurisdiction over the City’s order, based on Texas Water Code section 13.042(d). See City of Galveston v. Flagship Hotel, Ltd., 78 S.W.3d 422, 426-27 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see also Tex. Water Code Ann. § 13.042(d) (West 2008) (“The commission shall have exclusive appellate jurisdiction to review orders or ordinances of those municipalities as provided in this chapter.”). Four days later, Flagship requested an emergency order from TNRCC with respect to the dispute. TNRCC did not issue any ruling at that time, but a TNRCC employee replied by letter that the agency “has no jurisdiction to issue an emergency order in this matter.” Nine days later, the Galveston County district court entered a final judgment based on both parties’ motions for summary judgment on the remaining issues. Both parties appealed the judgment. In addition to addressing other portions of the district court’s judgment, the Texarkana Court of Appeals found the First Court of Appeals’ reasoning in the previous appeal “persuasive,” and held that Flagship had to exhaust its administrative remedies through TCEQ. See Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 562-63 (Tex.App.-Texarkana 2003, pet. denied).

In April 2007, Flagship filed with TCEQ an “Amended Petition for Review of the City of Galveston with Respect to the City of Galveston’s Failure to Refund Sums Paid to Avoid Disconnection of Water Service.” Flagship requested that TCEQ rule on its jurisdiction to hear the dispute between the City and Flagship — the same subject matter over which the two courts of appeals had held TCEQ has exclusive appellate jurisdiction. In the petition, Flagship prayed that:

[TCEQ] set this matter for hearing on the issue of jurisdiction and issue a final ruling that [TCEQ] has no jurisdiction over this dispute and [Flagship] is free to pursue its claims against the City of Galveston in a state court.

Alternately, Flagship prayed that:

In the unlikely event that [TCEQ] holds that it has jurisdiction over this matter, [Flagship] requests that [TCEQ] review the City of Galveston’s failure to refund certain sums [Flagship] paid to avoid disconnection of its water service and, after a hearing on the same, order the City of Galveston to refund the amount [Flagship] paid to avoid disconnection of its water service, and for such other and further relief to which [Flagship] may be justly entitled.

TCEQ referred the case to the State Office of Administrative Hearings (SOAH). The SOAH administrative law judge, in turn, certified to TCEQ the question of whether TCEQ has exclusive appellate jurisdiction to review orders of a governing municipality pursuant to water code section 13.042(d). TCEQ answered the certified question in the negative. According to TCEQ, the City of Galveston is a municipally owned utility. See Tex. Water Code Ann. § 13.002(13) (West 2008). The water code states that TCEQ does not have jurisdiction to regulate or supervise the rates or service of a utility owned and operated by a municipality within its corporate limits. See id. § 13.042(f); see also id. § 13.043(a) (West 2008) (“Any party to a rate proceeding before the governing body of a municipality may appeal the decision of the governing body to the commission. This subsection does not apply to a municipally owned utility.”). Based on TCEQ’s answer, the administrative law judge dismissed the case from SOAH’s docket. On February 23, 2009, TCEQ issued a final order dismissing Flagship’s petition for lack of jurisdiction.

Upon obtaining a final ruling that TCEQ has no jurisdiction over the dispute, however, Flagship did not pursue its claims against the City. Instead, Flagship filed suit in Travis County district court on February 27, 2009, seeking reversal of TCEQ’s final order that it lacked jurisdiction. See Tex. Gov’t Code Ann. § 2001.176(a), (b) (West 2008). Appellants filed pleas to the jurisdiction. On January 20, 2010, the district court denied appellants’ pleas to the jurisdiction. Appellants 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, 84 S.W.3d 547, 554 (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 plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. If the pleadings affirmatively negate the existence of jurisdiction, then the plea should be granted. See id. at 227.

Governmental immunity from suit deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued, unless the State consents to suit. See id. at 224. Flagship relies on section 2001.171 of the APA for waiver of immunity. See Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex.2004) (concluding that section 2001.171 provides limited waiver of sovereign immunity). Section 2001.171 provides that a person “who is aggrieved by a final decision in a contested case” is entitled to judicial review. See Tex. Gov’t Code Ann. § 2001.171 (West 2008).

Appellants contend that Flagship is not “aggrieved” because it obtained from TCEQ the very relief it requested. We agree. The primary relief Flagship sought was a ruling that TCEQ was without jurisdiction, and this is precisely the relief Flagship received. A party is not aggrieved for purposes of APA section 2001.171 by a final order that provides the result that party sought.

Flagship contends that it is aggrieved by TCEQ’s final order because there is now no forum for its dispute against the City. Two courts of appeals declined to hear the dispute based on their conclusion that TCEQ had exclusive appellate jurisdiction, and TCEQ determined that it did not have appellate jurisdiction. However, before each tribunal, Flagship took the position that TCEQ did not have jurisdiction. Therefore, to the extent that Flagship is aggrieved, it is the result of the decisions by the courts of appeals, not the final order by TCEQ. Section 2001.171 of the APA requires not that the person merely be aggrieved, but that the person be aggrieved by the final decision in the contested case. See id.

This case is similar to GTE Southwest Inc. v. Public Utility Commission, 87 S.W.3d 546 (Tex.App.-Austin 2001, no pet.). In that case, the plaintiff, GTE, had sought dismissal by the state agency of an application made by another party, and the agency dismissed the application, but on a separate basis than that requested by GTE. See 87 S.W.3d at 547-48. GTE sought judicial review so as to challenge two conclusions of law in the agency’s final order. See id. at 548-49. This Court held that GTE was not “aggrieved” as that term is used in APA section 2001.171 because, although the agency issued conclusions of law that were contrary to GTE’s interests, GTE obtained the relief it requested in the final order itself and did not challenge that order. See id. at 549. Here, as in GTE Southwest, Flagship received the final order that it requested. Therefore, as in GTE Southwest, Flagship is not aggrieved as that term is used in APA section 2001.171.

Because Flagship received the relief it requested, it is not aggrieved by TCEQ’s final decision. Consequently, the district court lacks jurisdiction to entertain Flagship’s petition for judicial review of the administrative decision. See C.O.N.T.R.O.L. v. Sentry Envtl., L.P., 916 S.W.2d 677, 678-79 (Tex.App.-Austin 1996, writ denied). We reverse the district court’s denial of appellants’ pleas to the jurisdiction and dismiss Flagship’s suit for lack of subject-matter jurisdiction.

      . Flagship argues it should not be prejudiced by the fact that it “raised the issue’’ of jurisdiction when TCEQ would have raised the issue even if Flagship had not. However, Flagship did more than merely raise the issue. Flagship requested the very result that TCEQ reached.


author: DIANE M. HENSON, Justice.

text:
    The UNIVERSITY INTERSCHOLASTIC LEAGUE, Appellant, v. SOUTHWEST OFFICIALS ASSOCIATION, INC., d/b/a Texas Association of Sports Officials, Appellee.
    No. 03-10-00030-CV.
    Court of Appeals of Texas, Austin.
    Aug. 27, 2010.

      Gregory S. Coleman, Yetter Coleman, LLP, Austin, TX, for appellant.
    Gary N. Schumann, Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, LLP, Austin, TX, for appellee.
    Erika M. Kane, Assistant Attorney General, General Litigation Division, Austin, TX, for a tty. Gen.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

The University Interscholastic League (“the UIL”) appeals from the trial court’s order denying its plea to the jurisdiction in a suit brought by Texas Association of Sports Officials (“TASO”). In its suit for declaratory and injunctive relief, TASO seeks to prevent the UIL from implementing its plan to begin regulating the officiating of high school varsity sports in Texas. TASO also seeks damages based on a claim that the UIL has tortiously interfered with TASO’s contractual relations with its members. Because we conclude that TASO’s claims are barred by sovereign immunity, we reverse the order of the trial court and dismiss this suit for want of jurisdiction.

BACKGROUND

The UIL is an organization governing extracurricular athletic and academic contests in all Texas public schools and certain private parochial schools. According to the education code, the UIL “is a part of The University of Texas at Austin.” Tex. Educ.Code Ann. § 33.083(b) (West 2006). In addition to administering extracurricular activities, the UIL is charged by statute with enforcing certain regulatory schemes, including the “No Pass No Play” policy applicable to student athletes and the prevention of illegal steroid use. See id. §§ 33.081(c), .091 (West Supp.2009).

TASO is a professional trade association made up of approximately 12,000 Texas sports officials, organized in 196 local chapters across the state. According to its pleadings, TASO registers sports officials, provides educational materials and training, promotes the professional interests of Texas sports officiants, advocates on behalf of its members, and conducts formal disciplinary hearings and oversight of its members.

Until recently, section 1204 of the UIL rules (“Rule 1204”) provided that member schools should use TASO-registered sports officials for UIL-sponsored sporting events. In November 2009, however, the UIL amended Role 1204 to provide that only those sports officials who register and pay dues to the UIL may officiate UIL-sponsored varsity team-sport contests. In response to the amendment to Rule 1204, TASO filed suit, arguing that the UIL was (1) attempting to exercise an unauthorized delegation of power, (2) improperly imposing an occupation tax, and (3) tortiously interfering with the contractual relationships between TASO and its individual members. TASO sought a temporary restraining order and injunctive relief to prevent the UIL from implementing the changes to Rule 1204, as well as a declaration that the UIL’s actions were unauthorized, illegal, and void. TASO further sought actual and consequential damages resulting from its claim of tortious interference with contractual relationships.

After the trial court granted TASO’s request for a temporary restraining order, the UIL filed a plea to the jurisdiction on the basis of sovereign immunity. The trial court denied the plea, and the UIL filed the present interlocutory appeal. TASO then filed a petition for writ of injunction in this Court, seeking to extend the terms of the temporary restraining order to cover the pendency of the interlocutory appeal. This Court granted the petition and issued a writ of injunction, incorporating the terms of the temporary restraining order. See In re Texas Ass’n of Sports Officials, No. 03-10-00029-CV, 2010 WL 392342, 2010 Tex.App. LEXIS 856 (Tex.App.-Austin Feb. 5, 2010, orig. proceeding) (mem. op.).

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). In an appeal from a plea to the jurisdiction, we “review the face of appellants’ pleadings to determine whether they show a lack of jurisdiction or whether the pleadings, if liberally construed, favor[] jurisdiction.” Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 855 (Tex.App.-Austin 2004, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.2007). If the pleadings do not 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. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). If the pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. Id. at 227. Unless a pleaded jurisdictional fact is challenged and conclusively negated, it must be taken as true for purposes of determining subject-matter jurisdiction. City of Austin v. Leggett, 257 S.W.3d 456, 462 (Tex.App.-Austin 2008, pet. denied). In reviewing a plea to the jurisdiction, we consider the pleadings and, when necessary to resolve the jurisdictional issues raised, relevant evidence submitted by the parties. See Miranda, 133 S.W.3d at 227.

DISCUSSION

On appeal, the UIL argues that the trial court lacks jurisdiction over TASO’s suit because the UIL is entitled to sovereign immunity and because sovereign immunity has not been waived with respect to TASO’s claims. The UIL also argues that the trial court lacks jurisdiction because TASO does not have standing to assert its claims.

Entitlement to Sovereign Immunity

In its first issue on appeal, the UIL asserts that the trial court erred in denying its plea to the jurisdiction because the UIL is a governmental entity entitled to sovereign immunity. TASO, on the other hand, argues that the UIL is a private, voluntary association and therefore is not protected by sovereign immunity. While other courts have addressed the UIL’s legal status for purposes such as federal antitrust law, see Saenz v. UIL, 487 F.2d 1026, 1028 (5th Cir.1973) (holding that UIL is governmental entity immune from antitrust liability), and the now defunct appeal-bond requirement, see UIL v. Maroney, 681 S.W.2d 285, 286 (Tex.App.-Austin 1984, writ ref d) (holding that UIL is not governmental entity excused from appeal-bond requirement), the question of the UIL’s legal status under the current statutory scheme for purposes of sovereign immunity appears to be an issue of first impression.

Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to suit. Miranda, 133 S.W.3d at 224. The definition of “governmental unit” for purposes of sovereign immunity under the Texas Tort Claims Act, see Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 2005 & Supp.2009), includes, in relevant part:

(A) this state and all the several agencies of government that collectively constitute the government of this state, in-eluding other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;
(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.

Id. § 101.001(3).

In support of its position that the UIL is not protected by sovereign immunity, TASO argues that no statutory or constitutional provision specifically creates the UIL. While this is true, section 33.083 of the education code, entitled “Interscholastic Leagues,” specifically addresses the existence and status of the UIL, stating:

(b) The [UIL] is a part of The University of Texas at Austin and must submit its rules and procedures to the commissioner [of education] for approval or disapproval. The funds belonging to the [UIL] shall be deposited with The University of Texas at Austin for the benefit of the league and shall be subject to audits by The University of Texas at Austin, The University of Texas System, and the state auditor. Copies of annual audits shall be furnished, on request, to members of the legislature.

Tex. Edue.Code Ann. § 33.083(b) (emphasis added); see also id. § 5.001(3) (West Supp.2009) (defining “Commissioner” as “the commissioner of education”).

Based on the plain language of section 33.083, the UIL is a component part of The University of Texas at Austin (“UT-Austin”). See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) (holding that legislative intent should be discerned, when possible, from plain meaning of words chosen). The University of Texas was created by the Texas Constitution, see Tex. Const, art. VII, § 10, and it is well settled that state universities are governmental entities subject to sovereign immunity. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex.2006) (“The State’s sovereign immunity extends to various divisions of state government, including agencies, boards, hospitals, and universities.”) (emphasis added); see also Axtell v. University of Tex., 69 S.W.3d 261, 267 (Tex.App.-Austin 2002, no pet.) (affirming grant of UT-Austin’s plea to jurisdiction based on sovereign immunity).

TASO contends, however, that section 33.083 is not dispositive as to the UIL’s legal status, citing cases in which courts of appeals, including this Court, have held that the UIL is not a governmental entity for purposes of exemption from the now defunct appeal-bond requirement. See Maroney, 681 S.W.2d at 286; UIL v. Payne, 635 S.W.2d 754, 757 (Tex.App.Amarillo 1982, no writ). At the outset, we note that neither Maroney nor Payne specifically addresses the issue of the UIL’s entitlement to sovereign immunity. Further, the current version of education code section 33.083, which provides that the UIL “is a part” of UT-Austin, did not exist when Maroney and Payne were decided. In Maroney, this Court rejected the UIL’s argument that it was a part of UT-Austin, noting that the relevant statutory provision at that time stated, “The [UIL], which is a part of [UT-Austin], must submit its rules and procedures to the State Board of Education for approval.” 681 S.W.2d at 287; see also Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. IV, part F, § 2, 1984 Tex. Gen. Laws 117,168. The Court held that this statutory language was not “conclusive recognition” of the UIL’s status as a part of the university, but was “simply to identify or make certain the particular organization which had the duty to submit its rules and procedures to the State Board of Education for approval.” Maroney, 681 S.W.2d at 287. After this Court’s decision in Maroney, the education code was amended to its current version, which definitively states, “The [UIL] is a part of [UT-Austin].” Tex. Educ.Code Ann. § 33.083(b); see also Act of May 29, 1989, 71st Leg., R.S., ch. 813, § 5.01, 1989 Tex. Gen. Laws 3678, 3710, recodified by Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 33.083, 1995 Tex. Gen. Laws 2207, 2348. As a result of this change, the relevant language of the statute can no longer be read as merely a means of identifying the UIL, as it is now a clear statement that the UIL is in fact “a part of’ UT-Austin. See National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000) (“We presume that the Legislature intended the plain meaning of its words.”). Further, in amending the statute, the legislature not only stated that the UIL is a part of UT-Austin, but also added the requirements that the UIL deposit its funds with and be subject to audits by UT-Austin, further indicating the legislature’s intent to classify the UIL as a part of UT-Austin. Compare Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. IV, part F, § 2, 1984 Tex. Gen. Laws 117, 168, with Act of May 29, 1989, 71st Leg., R.S., ch. 813, § 5.01, 1989 Tex. Gen. Laws 3678, 3710.

In Payne, the court held that the UIL was not exempt from the appeal bond requirement because it presented no authority to establish its public entity status, noting that the UIL’s assertion that it was a part of UT-Austin appeared for the first time in a post-submission brief. 635 S.W.2d at 757. The court then went on to conclude that the UIL’s status as a part of UT-Austin was not established on the record, stating, “[W]e do not believe that the [UIL] can incorporate itself into the University of Texas system by custom and usage or at the behest of a single university officer.” Id. In the present case, the UIL does not rely on custom or usage, but on section 33.083(b) of the education code, which formally classifies the UIL as a component part of UT-Austin. Given the manner in which Maroney and Payne can be distinguished from the present case, we do not consider them to be persuasive authority on the issue of whether the UIL is subject to sovereign immunity.

In addition to its statutorily recognized status as a component part of UT-Austin, the UIL is also subject to legislative oversight in ways that are inconsistent with private entity status. Section 33.083 of the education code requires the UIL to submit its rules and procedures for approval by the commissioner of education, deposit its funds with UT-Austin, and submit to state audits. See Tex. Educ.Code Ann. § 33.083(b). Section 33.083(d) requires the UIL to provide annual financial reports to the executive and legislative branches of state government. See id. § 33.083(d). Specifically:

The [UIL] shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the [UIL] during the preceding fiscal year. The form of the annual report and the reporting time are as provided by the General Appropriations Act.

Id. Section 33.084 of the education code creates an “interscholastie league advisory council,” composed of members of the State Board of Education, the state legislature, the UIL legislative council, public school boards, and three members of the public. See id. § 33.084(a) (West 2006). This advisory council reviews UIL rules and makes recommendations regarding the rules to the governor, the legislature, the UIL legislative council, and the State Board of Education. Id. § 33.084(e).

Notably, the education code also grants the UIL rulemaking authority with respect to certain state education policies, as well as the authority to impose sanctions for noncompliance. See id. § 33.081(b) (West Supp.2009) (providing that students enrolled in Texas school districts are subject to UIL rules regarding participation in extracurricular activities when under supervision of school or district); id. § 33.081(c) (stating that students faffing to meet “No Pass No Play” requirements shall be suspended from participation “or sanctioned by the school district or the [UIL] ”); id. § 33.091(b), (d) (West Supp. 2009) (requiring UIL to adopt rules enforcing statutory scheme for preventing illegal steroid use by student athletes, including “rules for the annual administration of a steroid testing program”); id. § 33.203 (West Supp.2009) (providing that failure to accurately and truthfully answer questions on form provided by UIL as condition for sports participation subjects signer of form “to penalties determined by the [UIL] ”); id. § 33.206(c) (West Supp. 2009) (stating that school campus faffing to comply with statutory safety requirements in conducting extracurricular activities “shall be subject to the range of penalties determined by the [UIL] ”); id. § 33.209 (West Supp.2009) (requiring UIL to incorporate statutory safety requirements into UIL constitution and rules); see also id. § 33.091(c) (requiring UIL to develop educational program for student athletes regarding health effects of steroid use); id. § 33.091(f) (authorizing UIL to increase membership fees to offset cost of implementing steroid-prevention program).

In addition to expressly authorizing the UIL to adopt and enforce rules for implementing state education policies, the legislature has also exercised a measure of authority over the rulemaking power of the UIL. When the legislature substantially revised the education code during the 1995 regular session, it included a sunset provision for all UIL rules adopted prior to the effective date of the new legislation, further indicating that the legislature considers the UIL’s rulemaking power to be a public matter subject to legislative oversight. See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 33.083, 1995 Tex. Gen. Laws 2207, 2348 (“Each rule of the [UIL] adopted before September 1, 1995, expires August 31, 1996, unless readopted by the league and approved by the State Board of Education after September 1, 1995.”).

TASO argues that the UIL’s rulemaking and enforcement authority over certain state education policies has no bearing on the issue of whether the UIL is a state agency subject to sovereign immunity because, according to TASO, the UIL’s obligation to comply with the education code is no different from a gas station’s obligations to comply with regulations promulgated by the Texas Commission on Environmental Quality. We disagree. A gas station, or any other private entity subject to state statutory or regulatory requirements, lacks the type of rulemaking power granted to the UIL under the education code. The UIL is expressly authorized— even required — to adopt rules enforcing state education policies, and is further authorized to assess sanctions for noncompliance. The scope and importance of the UIL’s rulemaking power is reflected in the fact that the legislature has exerted sunset control over UIL rules, see id., as well as the education code provision requiring that all UIL rules be approved by the commissioner of education, see Tex. Educ.Code Ann. § 38.083(b).

In Alamo Workforce Development, Inc. v. Vann, the court was presented with the question of whether a nonprofit corporation tasked with planning, overseeing, and evaluating the delivery of publicly funded workforce training and services was subject to sovereign immunity. 21 S.W.3d 428, 430 (Tex.App.-San Antonio 2000, no pet.). In reaching its conclusion that the workforce board was a government agency entitled to immunity, the court emphasized the fact that the board was charged with administration of state workforce development programs created by statute. Id. at 432-33. The court determined that because local workforce boards were contemplated by statute and acted as arms of the State in carrying out state workforce policies, they were governmental entities protected by sovereign immunity. Id.

Similarly, the UIL is required under the education code to act as an arm of the State in carrying out certain education policies. See, e.g., Tex. Educ.Code Ann. §§ 33.081(c), .083, .091. The UIL also enjoys greater statutory recognition than the workforce board in Vann, given that it is expressly characterized by education code section 33.083 as a part of UT-Austin, which derives its authority directly from the Texas Constitution. See Tex. Const, art. VII, § 10; see also Whitehead v. University of Tex. Health Sci. Ctr., 854 S.W.2d 175, 180 (Tex.App.-San Antonio 1993, no writ) (holding that where health science center was characterized by education code as part of University of Texas system, it was protected by sovereign immunity). While the UIL may not have specifically been created by statute, it derives its status and authority from state law. See Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(D).

We note also that federal courts have viewed the UIL as a state agency immune from antitrust liability and have considered actions of the UIL to be state action for constitutional purposes. See Cornerstone Christian Schs. v. UIL, 563 F.3d 127, 135-36 (5th Cir.2009) (reviewing UIL rule to determine whether it violated constitutional rights to free exercise of religion, due process, and equal protection); Saenz, 487 F.2d at 1027 (holding that UIL is governmental entity immune from antitrust liability); Blue v. UIL, 503 F.Supp. 1030, 1034 (N.D.Tex.1980) (concluding that UIL rules “constitute state action for the purposes of the Fourteenth Amendment and Section 1983”); see also Sullivan v. UIL, 616 S.W.2d 170, 172 (Tex.1981) (“All public schools are eligible for membership in the [UIL], and its conduct has been held to constitute state action.”). But see Payne, 635 S.W.2d at 757 n. 5 (citing Blue and noting that state action is “a different and far broader concept than the jurisdictional question before this court,” in reference to question of whether UIL was state agency exempt from appeal-bond requirement). In Saenz, the Fifth Circuit stated that “the UIL clearly is imbued with ample characteristics to warrant the trial court’s determination that the organization is an agency of the State of Texas,” and therefore immune from antitrust liability, citing, among other things, the facts that the UIL is “an integral part of [UT-Austin]” and that its “employees are employed and paid by the University.” 487 F.2d at 1027-28.

We also find it significant that the education code includes a mandatory venue provision requiring that all suits against the UIL be filed in Travis County. See Tex. Educ.Code Ann. § 67.26 (West 2002) (“Venue for suits brought against the [UIL] or for suits involving the interpretation or enforcement of the rules or regulations of the [UIL] shall be in Travis County, Texas.”). This provision is located in chapter 67 of the education code, entitled, “The University of Texas at Austin,” further reflecting the legislature’s intent to classify the UIL as part of UT-Austin. See id. §§ 67.01-.62 (West 2002 & Supp.2009). Notably, in addition to creating mandatory venue for suits against the UIL, chapter 67 identifies a number of other entities that, like the UIL, are component parts of UT-Austin. See id. §§ 67.23 (providing that Texas Memorial Museum is “an integral part of [UT-Austin]”); .51 (providing that McDonald Observatory is part of UT-Austin); .61 (providing that The University of Texas Marine Science Institute is part of UT-Austin). The mandatory venue provision applicable to the UIL is reminiscent of other venue provisions requiring or allowing suits against governmental entities to be brought in Travis County. See generally Tex. Civ. Prac. & Rem.Code Ann. § 15.014 (West 2002) (mandamus petition against head of department of state government must be filed in Travis County); Tex. Gov’t Code Ann. § 554.007 (West 2004) (public employee of state governmental entity bringing whistleblower claim may sue in county where cause of action arose or Travis County); id. § 2001.038 (West 2008) (agency rule challenges under the Administrative Procedure Act must be brought in Travis County); id. § 2001.176 (West 2008) (petition for judicial review of state agency action in contested case proceeding must be filed in Travis County, unless otherwise provided by statute). In a 1994 opinion, the supreme court included the UIL’s mandatory venue provision in a list of statutes that “minimiz[e] the litigation costs that taxpayers must bear by providing state agencies with a convenient venue in which to litigate.” K.D.F. v. Rex, 878 S.W.2d 589, 595 & n. 5 (Tex.1994). Prior to the enactment of the mandatory venue provision, the San Antonio court of civil appeals upheld a transfer of venue to Travis County based on the trial court’s implied finding that the UIL “is an agency of the State of Texas.” Lopez v. UIL, No. 16275, 1980 Tex.App. LEXIS 3158, at *9-10 (Tex.Civ.App.-San Antonio Mar. 12, 1980, no writ) (not designated for publication).

The Open Records Division of the Attorney General’s Office has issued opinions requiring the UIL to release its records under the Texas Public Information Act, which applies to public information that is collected, assembled, or maintained by or for a governmental body. See Tex. Att’y Gen. ORD-3753 (2003) (“[W]e conclude that the UIL must promptly release the information to the requestor.”); Tex. Att’y Gen. ORD-3469 (1999) (ruling that “the signature at issue must be released” by UIL pursuant to Public Information Act); see also Tex. Gov’t Code Ann. § 552.002(a) (West 2004) (defining “public information” for purposes of Act).

Finally, we address TASO’s reliance on UIL v. Green, in which the Corpus Christi court of appeals held that the trial court had jurisdiction over a suit against the UIL and its officers for injunctive relief in conneetion with an eligibility ruling related to certain student-athletes. 583 S.W.2d 907, 909 (Tex.Civ.App.-Corpus Christi 1979, no writ). The court in Green never determined that the UIL was not a government entity subject to sovereign immunity. See id. Rather, it held that the State’s consent to suit was not required because the UIL and its officers “were not sued in this action in their capacities as agents of the State” and because the plaintiffs “alleged loss of their civil and constitutional rights.” Id. (citing Martine v. Board of Regents, 578 S.W.2d 465, 473 (Tex.Civ.App.-Tyler 1979, writ ref d n.r.e.) (holding that State’s consent to suit was not required for claim against state agency for deprivation of vested property interest)). Without addressing the merits of the court’s conclusion that the UIL was not sued in its capacity as an agent of the State, we note that Green does not stand for the proposition that the UIL is not a governmental entity, but in fact suggests the opposite, given the court’s application of sovereign-immunity principles to an action brought against the UIL and its officers. See id.

While “[w]e are careful not to extend the blanket of sovereign immunity to every entity which at first blush exhibits the characteristics of a governmental unit,” Vann, 21 S.W.3d at 433, we are dealing here with an entity that is required by statute to implement state education policies, granted rulemaking and enforcement power over such policies, subjected to extensive oversight from the legislative and executive branches, and statutorily classified as a component part of a governmental unit that was created by the Texas Constitution. For these reasons, we hold that the UIL is a governmental unit subject to sovereign immunity. The UIL’s first issue on appeal is sustained.

Waiver of Sovereign Immunity

Because the UIL is entitled to sovereign immunity from suit, the trial court lacks jurisdiction over TASO’s claims absent an express waiver of that immunity. See Shwmake, 199 S.W.3d at 283. In its second issue on appeal, the UIL argues that the trial court erred in denying its plea to the jurisdiction because sovereign immunity has not been waived with respect to TASO’s claims.

In order to determine whether immunity has been waived, we must first discuss the nature of TASO’s claims. In its live pleading, TASO asserts causes of action for (1) “illegal attempt to exercise an unauthorized delegation of power,” (2) “illegal occupation tax,” and (3) “tortious interference with contractual relationships.” With respect to its tort claim, TASO has not pleaded facts that fall under any waiver of immunity found in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109. TASO concedes on appeal that sovereign immunity has not been waived for this claim, stating, “TASO has alleged a cause of action for tortious interference with a contract in the event the UIL is not a state entity.” In light of our determination that the UIL is a state entity, we hold that TASO’s tort claim is barred by sovereign immunity.

According to TASO’s petition, its remaining claims for declaratory and injunc-tive relief are based on the allegation that the UIL’s plan to begin regulating the sports officiating profession is “an illegal and improper usurpation of power” because “there exists no legislative enactment that would give the UIL any authority to oversee or regulate any trade or profession.” (Emphasis in original.) TASO further alleges:

[T]he UIL, without any grant of legislative or other authority, now seeks improperly and illegally to usurp and wholly take over the function of TASO, to tax and regulate its independent sports official members, and otherwise to act wholly outside the role of any authority vested in the UIL by the legislature or any other body.

TASO repeats similar allegations throughout its petition, stating that “[t]o the extent that the UIL maintains that it is a governmental agency or arm of the government, the legislature has not given it the power or authority to compel the payment of fees, or to tax, regulate, require registration, or act as the sole or exclusive trade association of an independent profession.” Accordingly, TASO’s claims for declaratory and injunctive relief represent ultra vires claims, alleging that the UIL has exceeded the scope of its authority by attempting to regulate and “tax” an independent profession.

A suit complaining that a government officer “acted without legal authority” and seeking to compel the official “to comply with statutory or constitutional provisions” is an ultra vires suit that is not protected by sovereign immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009). Sovereign immunity does not act as a bar to ultra vires suits, not because immunity has been waived, but because “ultra vires suits do not attempt to exert control over the state — they attempt to reassert the control of the state.” Id. “Stated another way, these suits do not seek to alter government policy but rather to enforce existing policy.” Id.; see also Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (“[S]uits to compel state officers to act within their official capacity do not attempt to subject the State to liability.”). However, these ultra vires suits “must be brought against the state actors in their official capacity” because the governmental entity itself remains immune from suit. Heinrich, 284 S.W.3d at 373. In the present case, TASO brought its ultra vires claims against the UIL rather than a state actor in his or her official capacity. Under the supreme court’s holding in Heinrich, TASO’s claims are barred by sovereign immunity.

For the first time on appeal, TASO characterizes its suit as a “rule challenge” to the validity of the amendments to UIL Rule 1204. Even viewing TASO’s claims in this light, the fact remains that its challenge to Rule 1204 is based on an allegation that the UIL acted ultra vires in amending the rule to allow it to regulate and collect dues from sports officials. TASO’s claims are, in substance, ultra vires claims. See Texas Dep’t of Ins. v. Reconveyance Servs., 306 S.W.3d 256, 258-59 (Tex.2010) (determining party’s claims were, “in substance,” ultra vires claims because they were based on allegations that agency acted beyond its statutory authority); see also City of Austin v. Austin Gas-Light & Coal Co., 69 Tex. 180, 7 S.W. 200, 203 (1887) (holding that city acted ultra vires in attempting to exercise taxing power not authorized by Texas Constitution). TASO, however, argues that sovereign immunity does not bar declaratory-judgment actions challenging the validity of legislative pronouncements when the relevant governmental entities must be made parties to such challenges. See Heinrich, 284 S.W.3d at 373 n. 6 (citing Tex. Civ. Prac. & Rem.Code Ann. § 37.006(b)). Section 37.006(b) of the UDJA provides that in “any proceeding that involves the validity of a municipal ordinance or franchise,” the municipality must be made a party and that if a “statute, ordinance, or franchise is alleged to be unconstitutional,” the attorney general is entitled to be heard. Tex. Civ. Prac. & RermCode Ann. § 37.006(b). UIL Rule 1204, however, represents neither a “municipal ordinance or franchise,” nor a “statute,” and therefore is not subject to section 37.006(b). Further, institutions of higher education, such as UT-Austin, are not governed by the Administrative Procedure Act (APA), see Tex. Gov’t Code Ann. § 2001.003(7)(E) (West 2008), and therefore are not subject to the APA’s legislative grant of subject-matter jurisdiction for suits challenging agency rules. See id. § 2001.038 (allowing validity or applicability of agency rule to be determined in action for declaratory judgment and requiring that agency be made party to action); see also Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 903-04 (Tex.App.-Austin 2009, no pet.). Because there is no statute requiring that the UIL be made a party to suits challenging the validity of its rules, the UIL’s immunity is not waived with respect to TASO’s suit alleging that it exceeded its authority in amending Rule 1204. See Tooke v. City of Mexia, 197 S.W.3d 325, 342-43 (Tex.2006) (holding that immunity is not waived absent clear legislative intent to do so). TASO’s challenge to Rule 1204 remains an ultra vires claim that must be brought against a state actor in his official capacity.

TASO argues that in the event this Court determines that its suit is barred by sovereign immunity, it should be afforded the opportunity to amend its pleadings and cure the jurisdictional defect by naming a state official as a party to suit. See Miranda, 133 S.W.3d at 226-27 (holding that if pleadings do not affirmatively negate jurisdiction, plaintiff should be afforded opportunity to amend). Under the circumstances presented here, however, the jurisdictional defect in TASO’s pleadings cannot be cured by amendment because the sole defendant is immune from suit. The opportunity to amend pleadings to cure a jurisdictional defect has not been extended to the opportunity to substitute a state-entity defendant with a state actor acting in an official capacity in an ultra vires claim that would otherwise be barred by sovereign immunity. See Reconveyance Servs., 306 S.W.3d at 259 (dismissing ultra vires suit for want of jurisdiction where state entity, rather than state official, was sole defendant).

Because TASO brought its ultra vires claims against the UIL rather than a state official acting in an official capacity, TASO’s suit is barred by sovereign immunity and the trial court erred in denying the UIL’s plea to the jurisdiction. We reverse the trial court’s order and dismiss this suit for want of jurisdiction.

Standing

In light of our conclusion that TASO’s suit is barred by sovereign immunity, we need not reach the UIL’s third issue on appeal, in which it argues that the trial court lacked subject-matter jurisdiction over this suit because TASO did not have standing to bring its claims.

CONCLUSION

We reverse the trial court’s order denying the plea to the jurisdiction and dismiss this cause for want of jurisdiction.

      . The "No Pass No Play” policy dictates that a student receiving a grade lower than the equivalent of a 70 on a scale of 100 in any academic class shall be suspended from UIL-sponsored activities or otherwise sanctioned by the UIL or the student's school district. See Tex. Educ.Code Ann. § 33.081(c) (West Supp.2009). Section 33.091 of the education code requires high school athletes to agree to submit to random testing for the presence of illegal steroids as a condition of participation in UIL-sponsored athletic contests. See id. § 33.091 (West Supp.2009).

      . The amended rule does not prohibit officials from registering with both TASO and the UIL. Officials who do not register with the UIL remain free to officiate non-varsity sporting events and individual-sport contests such as tennis, golf, swimming, and wrestling.

      . TASO’s tortious-interference claim was based in part on an allegation that the UIL had persuaded certain local TASO chapters to turn over collected membership dues to the UIL.

      . An interlocutory appeal from an order denying a plea to the jurisdiction "stays all other proceedings in the trial court pending resolution of the appeal.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (West 2008); see also id. § 51.014(a)(8). In the absence of a writ of injunction, the trial court’s temporary restraining order would have expired while the interlocutory appeal was pending.

      . Because the statutory provision described by this Court in Maroney was not enacted until 1984, it appears that the court in Payne did not have the benefit of any legislative pronouncement regarding the UIL’s relationship to UT-Austin. See Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. IV, part F, § 2, 1984 Tex. Gen. Laws 117, 168.

      . In support of its position, TASO argues that during the 2003 legislative session, a single legislator, in an attempt to pass a bill that would abolish the UIL, argued before the House Committee on Public Education that the UIL does not legally exist, has no legislative oversight, and is not subject to sunset review. See Hearings on Tex. H.B. 580 Before the House Comm, on Pub. Educ., 78th Leg., R.S. (April 1, 2003) (statement of Rep. Joe Nixon). First, the statement of a single legislator does not determine legislative intent. AT & T Commc’ns of Tex., L.P. v. Southwestern Bell Tel. Co., 186 S.W.3d 517, 529-30 (Tex.2006). Second, the proposed bill was left pending in committee. Third, a legislative mandate of formal sunset review is not a prerequisite to governmental entity status. This Court, for example, is free from sunset review, as is The University of Texas System. See Sunset Advisory Commission, Guide to the Sunset Process 1 (Dec. 2009).

      . One might argue that the mandatory venue provision constitutes a waiver of immunity for suits against the UIL regarding the interpretation or enforcement of its rules or regulations. But see Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex.2006) (holding that waiver of immunity must be clear and unambiguous); SE Ranch Holdings, Ltd. v. City of Del Rio, No. 04-06-00640-CV, 2007 WL 2428081, at *3-4, 2007 Tex.App. LEXIS 6939, at *8-9 (Tex.App.-San Antonio Aug. 29, 2007, pet. denied) (mem. op.) (holding that contract language providing mandatory venue for resolution of disputes did not represent clear and ambiguous waiver of immunity). The legislative history of section 67.26 states that the mandatory venue provision became necessary in light of the facts that after enactment of extracurricular eligibility rules, there were “numerous suits filed in state district courts regarding [UIL] eligibility rulings,” and that these suits had “the effect of disrupting the planned extracurricular activities.” See House Comm, on State Affairs, Bill Analysis, Tex. H.B. 63, 69th Leg., 3d C.S. (1986). This Court has previously been presented with cases in which students have challenged the interpretation or enforcement of a UIL rule in connection with a finding of ineligibility to participate in extracurricular activities. See UIL v. Hatten, No. 03-03-00691-CV, 2004 WL 792328, at *1, 2004 Tex.App. LEXIS 3372, at *1-2 (Tex.App.-Austin Apr. 15, 2004, no pet.) (mem. op.); UIL v. Buchanan, 848 S.W.2d 298, 300 (Tex.App.-Austin 1993, no writ). The present case, however, is not a challenge to the interpretation or enforcement of a UIL rule in the context of an eligibility ruling, but instead represents an ultra vires claim based on the UIL's plan to begin regulating sports officiants. The ultra vires nature of TASO's claims will be addressed more fully in our discussion of whether sovereign immunity was waived.

      . Because the UIL's state entity status is established as a matter of law by the relevant legal authorities, we need not address TASO’s argument that the UIL improperly attempts to introduce evidence of its state entity status for the first time on appeal. See generally Employees Ret. Sys. v. Putnam, LLC, 294 S.W.3d 309, 323 (Tex.App.-Austin 2009, no pet.) (holding that trial court need not allow discovery before ruling on plea to jurisdiction where party's status as public entity was conclusively resolved as matter of law). In resolving the matters before us in this appeal, we do not consider any evidentiary materials that were not included in the trial court's record, including any materials that were produced for the first time on appeal and attached to appellate briefs.

      . To the extent that TASO also argues that we do not have jurisdiction over this appeal because the UIL ⅛ not a governmental unit entitled to an interlocutory appeal from an order denying its plea to the jurisdiction, this argument fails as well. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008) (providing for interlocutory appeal from order granting or denying plea to jurisdiction by governmental unit as defined by section 101.001(3) of civil practice and remedies code); see also id. § 101.001(3) (West 2005). The UIL qualifies as a “governmental unit” under section 101.001(3) both as a part of UT-Austin, which derives its authority directly from the Texas Constitution, and because it derives its own status and authority from the education code. See id. § 101.001(3)(D) (defining "governmental unit” to include any "institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution”).

      . While TASO contends that sovereign immunity is waived under the Uniform Declaratory Judgments Act (UDJA), see Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-37.011 (West 2008), the UDJA is not a general waiver of sovereign immunity and does not "extend a trial court’s jurisdiction.” Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). A declaratory-judgment action is merely a procedural device for deciding matters already within a trial court’s subject-matter jurisdiction. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).

      . In its response to the UIL’s plea to the jurisdiction, TASO describes its suit as "seeking a declaration that the UIL is without any vested authority to take over the profession of sports officiating, and that no body has delegated to it the authority to tax or regulate sports officials.”

      . We express no opinion on the merits of TASO's ultra vires claims, including whether, in the event that TASO brought these claims against a government officer acting in an official capacity, it could "allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009).


text:
    Adam Lee CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 03-09-00371-CR.
    Court of Appeals of Texas, Austin.
    Sept. 10, 2010.
    Kenneth G. Mahalfey, Austin, for Appellant.
    Lisa Stewart, Asst. Dist. Atty., Austin, Appellee.

      Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

BOB PEMBERTON, Justice.

We withdraw our opinion and judgment dated August 13, 2010, and substitute the following in its place. We overrule Castillo’s motion for rehearing.

A jury convicted appellant Adam Lee Castillo of the offense of capital murder. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West Supp.2009). Punishment was assessed at life imprisonment. In a single point of error, Castillo asserts that the district court erred by permitting alternate jurors to be present during deliberations. We will affirm the judgment.

BACKGROUND

Castillo was charged with murdering two individuals and brought to trial. At the conclusion of voir dire, twelve jurors were selected, plus two alternates. The trial then began. After closing arguments, the jury, plus the two alternates, retired to deliberate. At some point either prior to or during deliberations, the jury had been given a supplemental, instruction regarding the conduct of the alternates. The instruction stated:

LADIES AND GENTLEMEN OF THE JURY:
Your jury includes two alternate jurors. In order of selection, they are jurors: [names of alternate jurors].
The law requires that the alternate jurors remain through the entirety of the trial process. In this vein, the alternates cannot be selected as foreperson of the jury and cannot actively participate in deliberations until they are used as a replacement for a regular juror. The alternates must attentively listen to all deliberations, as it is always uncertain if and when we might need to utilize them in the process until the trial is concluded. Alternates serve quite a valuable purpose, and without them, much time and dollars would be spent in the re-trial of cases. Thus, our legislature has enacted this provision providing for the above process for alternate jurors.

At some point after the jury had retired to deliberate, defense counsel approached the bench and objected to the supplemental instruction and the presence of the alternate jurors in the jury room. Counsel argued that the presence of the alternates in the jury room violated article 33.01 of the code of criminal procedure, which provides that a jury in the district court “shall consist of twelve qualified jurors,” see Tex. Code Crim. Proc. Ann. art. 33.01 (West 2006), and article 36.22, which provides, “No person shall be permitted to be with a jury while it is deliberating,” see id. art. 36.22 (West 2006). Counsel also lodged a generic due process complaint.

In response, the State argued that article 33.011 of the code of criminal procedure required the alternates to be present and that article 36.22 was not referring to alternate jurors. In the State’s view, “it would not seem to make too much sense that alternate jurors sit outside and miss the deliberations. In case something happens to one person, they have to come in and everything starts fresh.” The State then asked to “go off record for one moment.”

Following an off-the-record discussion and a recess, defense counsel amended his objection to include article 5, section 13 of the Texas Constitution, which requires that “juries in the District Courts shall be composed of twelve persons.” See Tex. Const, art. V, § 13. The State, after acknowledging that a recent case out of the San Antonio Court of Appeals supported Castillo’s position, maintained, “We’re satisfied at this point with what has gone on, both from a statutory and a constitutional basis.... We will probably ask the Court as an additional potential safeguard just to have them not communicate, not only in deliberations, but just not to anything at all.”

The district court acknowledged that article 33.011 required the alternate jurors “to stay” until a verdict is reached, and proceeded to read into the record the supplemental instruction that it had previously given to the jury. After reading the instruction, the district court noted, “And then I have signed and dated it and sent it to each individual juror as well as the alternates.” The district court added,

In addition, I think what I’m going to do is call all of them, they’ve only been back in the jury room for 30 minutes. I’m going to call them in with everybody present and instruct them orally as to their discussions and what they can and cannot say while they are in the jury room as alternates and make them understand that they cannot talk about anything having to do with Mr. Castillo’s case until they become an actual juror in the case. And that will hopefully alleviate any misunderstanding that they may have about their role as an alternate.

Once the members of the jury and the alternates returned to the courtroom, the district court orally instructed them:

Ladies and gentlemen of the jury, excuse me for interrupting your deliberations, but I wanted to place some emphasis on the instruction that I had earlier given you regarding the jury alternates.
It’s very important that the alternates not actively speak and participate in the deliberations regarding the case at this point. They will only be able to talk about any of the evidence or any of the facts and circumstances surrounding this offense and this case if and when they become jurors in the case. However, it is just as important that they be able to sit there and listen so, if needed, they will be aware of everything that has taken place as far as what you have done in this case. But it is critical that they not speak in this regard.
I wanted to personally bring each of you out here so that you will all know that and for the security of the ease in the future to let you know how important that is that the alternates not participate until called upon to be a regular juror. Do each of you understand?

The record reflects that the jury members replied, “Yes.” The district court then concluded, “Thank you. You can go back and continue your deliberations.” The jury then retired to resume deliberations. Defense counsel never objected to the district court’s oral instruction.

Later, the jury returned its verdict of guilty. Defense counsel requested that the jury be polled, and each of the twelve individual members of the jury affirmed that the verdict represented his or her individual verdict in the case. Immediately thereafter, Castillo was assessed a mandatory sentence of life imprisonment. The jury was then excused. This appeal followed.

ANALYSIS

In his sole point of error, Castillo carries forward the arguments he made at trial, namely that the presence of the two alternates in the jury room violated his constitutional and statutory rights to have a jury composed of no more than twelve jurors and the statutory prohibition against outside influence. While acknowledging the district court’s instructions to the jury that the alternates not participate in the deliberations, Castillo claims — for the first time on appeal — that the district court’s instructions were insufficient. According to Castillo, prejudice should be presumed from the alternates’ presence in the jury room during deliberations, and, in his view, it was incumbent upon the State to make an offer of proof demonstrating that the alternates did not participate in deliberations. As no such offer of proof was made in this ease, Castillo asserts, harm should be presumed and the cause reversed for a new trial.

In response, the State makes three arguments. First, the State contends that Castillo failed to preserve error by not objecting until after deliberations had begun. Second, the State asserts that there was no constitutional or statutory error in allowing the alternates to be present in the jury room during deliberations. Finally, the State argues that any error was harmless because of the district court’s instructions to the jury regarding the alternates and that Castillo failed to show that the jury conversed with the alternates in violation of the court’s instructions.

This case concerns the 2007 amendment to article 33.011(b) of the code of criminal procedure. Prior to September 1, 2007, article 33.011(b) required alternate jurors to be discharged “after the jury retires to consider its verdict.” See Act of May 30, 1983, 68th Leg., R.S., ch. 775, § 2, 1983 Tex. Gen. Laws 4593, 4594 (amended 2007) (current version at Tex.Code Crim. Proc. Ann. art. 33.011(b)). However, as the statute is currently written, alternate jurors “shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.” Tex.Code Crim. Proc. Ann. art. 33.011(b) (West Supp.2009). The statute does not address what trial courts should do with alternate jurors during deliberations but prior to the jury rendering its verdict — sequester them until such time as their services might be needed, or allow them to be present in the jury room during deliberations even if their services are not needed. The district court in this case chose the latter option.

In two opinions decided in 2008, the San Antonio Court of Appeals took issue with the practice of permitting alternate jurors to be present during deliberations. See Adams u State, 275 S.W.3d 61 (Tex.App.San Antonio 2008), rev’d, 312 S.W.3d 23 (Tex.Crim.App.2010); Trinidad v. State, 275 S.W.3d 52 (Tex.App.-San Antonio 2008), rev’d, 312 S.W.3d 23 (Tex.Crim.App.2010). In these opinions, the court held that the practice violates either the constitutional prohibition against more than twelve jurors deliberating, or, if the alternate is not considered a juror, article 36.22’s prohibition against outside influence. See Adams, 275 S.W.3d. at 67; Trinidad, 275 S.W.3d at 60. Additionally, in each opinion, the court held that the right to a twelve-member jury is a “waiva-ble-only right” and that the defendant is not required to comply with rule 33.1 in order to preserve error on appeal. See Adams, 275 S.W.3d at 65; Trinidad, 275 S.W.3d at 58. Castillo cites to both of these opinions in his brief.

After this case was briefed by the parties, the court of criminal appeals reversed both Adams and Trinidad. See Trinidad v. State, 312 S.W.3d 23 (Tex.Crim.App. 2010). The court held that allowing the alternate jurors to be present in the jury room during deliberations did not violate the constitutional prohibition against deliberation by more than twelve jurors. See id. at 28. The court declined to address the merits of the alleged violation of article 36.22, but held that any complaint about a statutory violation was forfeited by the appellants’ failure to invoke the statute in a timely manner. See id. at 24.

With the above considerations in mind, we turn to the case before us. We first address the State’s contention that Castillo failed to preserve error. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. See Tex.R.App. P. 33.1. Here, the record shows that, when Castillo objected, he cited to the specific constitutional and statutory provisions that he claimed were being violated by allowing the alternate jurors to be present during deliberations. However, regarding his objection to the supplemental instruction, Castillo never indicated why he believed the instruction was erroneous. He complains on appeal that “neither the written or verbal instruction included an admonition to recommence deliberation or disregard any possible statements made by the outside alternate jurors,” but this complaint was never made to the district court. Nor did Castillo raise any objection to the court’s subsequent oral instruction to the jury. Additionally, to the extent Castillo is alleging a violation of article 36.22, he is essentially arguing juror misconduct. See Ocon v. State, 284 S.W.3d 880, 885 (Tex.Crim.App.2009) (characterizing violation of article 36.22 as complaint of juror misconduct); Hughes v. State, 24 S.W.3d 833, 842 (Tex.Crim.App.2000) (same). To preserve error caused by juror misconduct, the defendant must either move for a mistrial or file a motion for new trial supported by affidavits of a juror or other person in a position to know the facts alleging misconduct. See Trout v. State, 702 S.W.2d 618, 620 (Tex.Crim.App.1985); Menard v. State, 193 S.W.3d 55, 59 (Tex.App.-Houston [1st Dist.] 2006, pet. refd). Castillo did neither.

However, even assuming Castillo had preserved error, we could not conclude on this record that Castillo was entitled to reversal and a new trial. The court of criminal appeals has held that the presence of alternate jurors in the jury room does not violate article 5, section 18 of the Texas Constitution. Trinidad 312 S.W.3d at 28. There is no error, according to the court, so long as the alternate jurors are not “allowed to vote on the ultimate verdict in the case, at either stage of trial.” Id. The court explained,

As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were judged by a jury of more than the constitutionally requisite number. That the alternate jurors were present in the jury rooms during deliberations, and may even have participated in all but the voting, does not mean that the jury was “composed” of more than twelve members for purposes of Article V, Section 13.

Id. In this case, there is no indication in the record that the alternate jurors voted on the verdict. Thus, we cannot conclude on this record that there was a constitutional violation. For the same reason, we cannot conclude that there was a violation of article 33.01(a) of the code of criminal procedure, the statute that codifies the constitutional requirement of no more than twelve jurors. See id. at 29 n. 22 (“Article 33.01(a) was not violated any more than Article V, Section 13 was. Because only twelve regular jurors ultimately voted on the appellants’ verdicts, their juries did ‘consist’ of twelve jurors for purposes of the statute.”). Nor can we agree with Castillo’s contention that the procedure for replacing regular jurors with alternate jurors as specified in article 33.0.11(b) was violated. See Tex.Code Crim. Proe, Ann. art. 33.011(b) (“Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict ... become or are found to be unable or disqualified to perform their duties-”). There is no indication in the record that the alternate jurors improperly took the place of the regular jurors during deliberations.

Thus, all that remains is the issue left unresolved by the court of criminal appeals — whether the practice of allowing alternate jurors in the jury room violates the requirement in article 36.22 that “[n]o person shall be permitted to be with a jury while it is deliberating.” However, we need not address that question today. Even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). See Trinidad, 312 S.W.3d at 27 & n. 15. Thus, unless the error affected Castillo’s substantial rights, it must be disregarded. See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

Here, the district court instructed the jury in writing who the alternates were and informed the jury that “the alternates cannot be selected as foreperson of the jury and cannot actively participate in deliberations until they are used as a replacement for a regular juror.” Then, after the jury had been deliberating for approximately thirty minutes, the district court decided to call the jury back into the courtroom and “place some emphasis on the instruction that I had earlier given you regarding the jury alternates.” The district court then orally instructed the jury:

It’s very important that the alternates not actively speak and participate in the deliberations regarding the case at this point. They will only be able to talk about any of the evidence or any of the facts and circumstances surrounding this offense and this case if and when they become jurors in the case. However, it is just as important that they be able to sit there and listen so, if needed, they will be aware of everything that has taken place as far as what you have done in this case. But it is critical that they not speak in this regard.
I wanted to personally bring each of you out here so that you will all know that and for the security of the case in the future to let you know how important that is that the alternates not participate until called upon to be a regular juror ....

We find no error in the district court’s instructions, and there is no indication in the record that the jury or the alternates disregarded the instructions in any manner. To the contrary, when asked if they understood the court’s instructions, the jury members replied, “Yes.”

Castillo claims that because the alternate jurors were present in the jury room, harm should be presumed and that the State has the burden to rebut the presumption of harm. We disagree. A similar issue was previously addressed by this Court in Klapesky v. State, 256 S.W.3d 442 (Tex.App.-Austin 2008, pet. refd), a case cited by Castillo. In that case (involving a trial that had occurred prior to the 2007 amendment to article 33.011(b)), the trial court selected two alternate jurors but explained that the alternate jurors would be excused at the beginning of deliberations if they were not needed. Id. at 451-52. At the beginning of deliberations, however, the trial court forgot to discharge the alternates and they proceeded to the jury room. Id. at 452. Approximately five minutes later, the trial court returned the jury to the courtroom, discharged the alternates, instructed the jury to disregard anything said in the presence of the alternate jurors and to begin deliberations, and asked the jury if deliberations had commenced. Id. The jury replied that they had not. Id. On appeal, the appellant claimed that the presence of the alternate jurors in the jury room violated article 36.22.

In overruling the appellant’s point of error, this Court explained that harm to the accused is presumed when a juror converses with an unauthorized person about the case and that, if the presumption of harm arises, the State has the burden to rebut the presumption by showing no injury or prejudice to the accused. Id. “However,” this Court added, “the defendant has the initial burden to show that a conversation about the case on trial occurred between a juror and an unauthorized person. The defendant’s burden is not satisfied if there is no showing what a reported conversation was about.” Id. (internal citations omitted). In that case, “there [was] no showing of any conversation about the case between the two alternate jurors and the regular jurors during the time period involved.” Id. Similarly, in this case, Castillo made no showing that the alternate jurors conversed with the regular jurors regarding the case in violation of the district court’s instructions. Thus, Castillo failed to meet his initial burden.

The other cases cited by Castillo are distinguishable. In Quinn v. State, 958 S.W.2d 395 (Tex.Crim.App.1997), Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995), and Green v. State, 840 S.W.2d 394 (Tex.Crim.App.1992), the defendant first presented evidence that jurors had actual conversations and contact with outside influences (none of whom were alternate jurors). In each case, the State was required to rebut the presumption of harm. In this case, in contrast, the defendant presented no evidence that the alternate jurors conversed with the regular jurors. Thus, the presumption of harm does not arise here. Similarly, in Rojas v. State, 171 S.W.3d 442 (Tex.App.-Houston [14th Dist.] 2005, pet. ref d), a case decided prior to the 2007 amendment to article 33.011(b), there was evidence presented that an alternate juror may have asked at the beginning of deliberations “whether anyone wanted to volunteer” to be foreperson, and the State was required to rebut the presumption of harm. Id. at 450 & n. 1. Again, in this case, Castillo made no showing of a conversation involving the alternate jurors.

In his motion for rehearing, Castillo suggests that requiring the appellant to obtain information from jurors regarding whether the alternates participated in deliberations violates the prohibition against inquiring into jurors’ “mental processes” during deliberations. See Tex.R. Evid. 606(b). However, the rule expressly allows jurors to testify regarding “whether any outside influence was improperly brought to bear upon any juror.” See id. Moreover, the court of criminal appeals has recognized the questioning of jurors as a permissible method to inquire into potential article 36.22 violations and that the party alleging such a violation, “not the State nor the court, should initiate juror questioning.” See Ocon, 284 S.W.3d at 885-87. Because Castillo failed to do so, we cannot conclude on this record that the district court’s procedure had a substantial and injurious effect or influence in determining the jury’s verdict.

We overrule Castillo’s sole point of error.

CONCLUSION

We affirm the judgment of the district court.

      . The instruction is referring to article 33.011(b) of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 33.011(b) (West Supp.2009).

      . It is unclear from the record exactly when during deliberations the objection was made. The record reflects that the following occurred after closing arguments:
      The Court: You may retire to the jury room.
      (Jury deliberations)
      (Open court, no defendant, no jury)
      (At the Bench, on the record)
      [Defense counsel]: Your Honor, I understand the Court is sending back an instruction regarding alternate jurors which allows the alternate jurors to remain in the jury room but not participate in the deliberations until they replace an active juror. We would object to sending that order back and object to their presence in the jury room....
      The record does not reflect how long the jury had been deliberating when counsel approached the bench, although a later comment by the district court suggests that it was no more than approximately thirty minutes after the jury had retired.

      . See Trinidad v. State, 275 S.W.3d 52, 61 (Tex.App.-San Antonio 2008), rev'd, 312 S.W.3d 23 (Tex.Crim.App.2010).

      . In his motion for rehearing, Castillo asserts that he "objected to any instructions” regarding alternate jurors. On the contrary, the record reflects that Castillo objected only to the district court's written instruction, and even then, he did not ask the district court to include in the written instruction an admonition to recommence deliberation or disregard any possible statements made by the outside alternate jurors.

      . While Castillo did file an amended motion for new trial, he did not include in the motion the complaints he now raises on appeal, much less affidavits from the jurors or alternate jurors who were in a position to know if the facts alleging a violation of article 36.22 had occurred.

      . Castillo also asserts in his motion for rehearing that requiring such a procedure is "impractical." Castillo's counsel cites to no authority on this point, other than his "personal experience that jurors generally do not want to talk about their service.” However, jurors may be questioned during trial about alleged article 36.22 violations, thus alleviating the need to depose or subpoena jurors after they have been excused from service: In this case, when the district court brought the jury into the courtroom during a break in deliberations and orally instructed the jurors that the alternates should not participate in deliberations, Castillo could have requested permission from the district court to question the jurors about whether the alternates had already participated in deliberations contrary to the district court's instructions. Castillo did not do so.