State of Texas, the Texas Facilities Commission, the Texas Health and Human Services Commission, Mike Novak, in His Official Capacity as Executive Director of the TFC, and Rolland Niles, in His Official Capacity as Deputy Executive Commissioner for the System Support Services Division of the Texas Health and Human Services Commission v. Broadmoor Austin Associates, a Texas Joint Venture

Reverse and Render in Part, Affirm in Part, and Remand Memorandum
Opinion filed March 10, 2026

In The

Fifteenth Court of Appeals

NO. 15-25-00013-CV

STATE OF TEXAS, THE TEXAS FACILITIES COMMISSION, THE
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, MIKE
NOVAK, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF
THE TFC, AND ROLLAND NILES, IN HIS OFFICIAL CAPACITY AS
DEPUTY EXECUTIVE COMMISSIONER FOR THE SYSTEM SUPPORT
SERVICES DIVISION OF THE TEXAS HEALTH AND HUMAN
SERVICES COMMISSION, Appellants

V.

BROADMOOR AUSTIN ASSOCIATES, A TEXAS JOINT VENTURE,
Appellee

On Appeal from the 455th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-23-007899

MEMORANDUM OPINION

The State is not an agency of the State; it is the State. Appellant the State of
Texas, acting through appellant Texas Facilities Commission (“TFC”), sought to
terminate its lease for office space with appellee Broadmoor Austin Associates, a
Texas Joint Venture, (“Broadmoor”). The office space was being occupied by
appellant Health and Human Services Commission (“HHSC”). Broadmoor sued
TFC, HHSC, the State, Mike Novak, in his official capacity as Executive Director
of TFC, Rolland Niles, in his official capacity as Deputy Executive Commissioner
for the System Support Services division of the HHSC (collectively, “Appellants”),
and others contesting the termination of the lease. Appellants and others filed a plea
to the jurisdiction, which the trial court granted in part and denied in part. The denial
related to all of Broadmoor’s claims against Appellants. Appellants appealed to this
Court. Because we conclude that all claims against TFC, HHSC, the State, and Niles
are barred by sovereign immunity but that there is a fact question as to whether a
claim against Novak is barred by immunity, we reverse in part and affirm in part the
trial court’s order.

BACKGROUND

The State of Texas, operating through its representative TFC, entered into a
10-year lease agreement with private landlord Broadmoor for office space to be
occupied by HHSC starting August 1, 2015. The end date of the lease was later
extended to October 31, 2026. The lease agreement stipulates the lease “is made
contingent upon the continuation of the availability of money appropriated by the
legislature to pay for the lease.” In the event “the Legislature or the Executive Branch
of the State of Texas cease to fund the lease,” TFC, “upon written notice to the
Lessor, either may terminate [the] lease, or sublet in whole or in part to a private
third party” if it cannot find another state agency to at least partially fill the office
space. The lease also states that if the State “fails to pay rentals” and fails to timely
cure, Broadmoor “will have the remedies now or hereafter provided by law for
recovery of rent, repossession of premises and damages occasioned by Lessee’s

2
default.”

In 2022, HHSC submitted its Legislative Appropriations Request for the
2024–2025 biennium, requesting $105,369,343 and $105,245,466 to fund all of its
rental payments for fiscal years 2024 and 2025 respectively. HHSC also made an
exceptional item request for an additional $29,601,497 and $41,826,149 for fiscal
years 2024 and 2025 respectively to pay for expected increase in lease costs. The
Legislature in the State’s General Appropriations Act (the “Act”) decided to
appropriate $118,826,243 for fiscal year 2024 and $119,751,160 for fiscal year 2025,
explaining that $12,275,361 had been appropriated for cost increases for state leases.
The Act was signed into law on June 18, 2023.
On May 31, 2023, HHSC sent a request to TFC asking it to terminate the lease
“due to the non-availability of money, either appropriated by the legislature or
funded by grants, to pay for the leased premises . . . .” Pursuant to this request, TFC
Executive Director Novak the next day sent a notice of termination to Broadmoor
stating the lease was being terminated due to lack of funds and that TFC could not
find another state agency to occupy the space. The notice further informed
Broadmoor that HHSC “has directed that rent will not be certified for the biennium
beginning September 1, 2023 . . . .” Days later, TFC sent a letter to HHSC, as
required by law, requesting it to certify available funding to pay for all its leases in
the 2024–2025 biennium. HHSC Deputy Executive Commissioner Niles responded
to the letter certifying the availability of funds—$93,767,377.36 annually—for all
except five leases, one of which was the Broadmoor lease.
Broadmoor sued in Travis County. In its live petition, Broadmoor brings
claims against the State, TFC, and HHSC alleging they breached the lease agreement
by sending a false and improper lease termination notice and failing to pay rent due
under the lease. Broadmoor also brings ultra vires claims against Niles, Novak,

3
Cecile Erwin Young, in her official capacity as Executive Commissioner of HHSC,
and Glenn Hegar, in his official capacity as Comptroller of Public Accounts.
Regarding its claims against Niles and Novak, Broadmoor alleges Niles acted ultra
vires when he failed to certify that HHSC did in fact have funds available to fund
the lease and that Novak acted ultra vires when he sent the termination notice to
Broadmoor when such funds were available. Lastly, Broadmoor seeks declaratory
relief against all defendants that “the 88th Texas Legislature did in fact appropriate
funds to pay rent to Broadmoor in satisfaction of the State Lessee’s obligations under
the Broadmoor Lease for the 2024 and 2025 fiscal years.” Defendants filed a plea to
the jurisdiction, which they amended, arguing that sovereign immunity barred
Broadmoor’s claims. The trial court granted in part and denied in part defendants’
plea. It granted the plea as to the claims against Young and Hegar, dismissing them
from the case, but denied the plea as to all claims relating to Appellants. Appellants
then appealed to this Court.

STANDARD OF REVIEW

Sovereign immunity implicates a trial court’s jurisdiction and is properly
raised in a plea to the jurisdiction. Christ v. Tex. Dep’t of Transp., 664 S.W.3d 82,
86 (Tex. 2023). A plea questioning the trial court’s jurisdiction raises a question of
law that is reviewed de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
When considering a plea to the jurisdiction, our analysis begins with the live
pleadings. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).

We first determine if the pleader has alleged facts that affirmatively
demonstrate the court’s jurisdiction to hear the case. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In doing so, we construe the pleadings
liberally in favor of the plaintiff, and unless challenged with evidence, we accept all
allegations as true. Id. at 226–27. The plea must be granted if the plaintiff’s pleadings

4
affirmatively negate the existence of jurisdiction or if the defendant presents
undisputed evidence that negates the existence of the court’s jurisdiction. Heckman,
369 S.W.3d at 150.

ANALYSIS

Appellants challenge the trial court’s order denying their plea, arguing that (1)
Broadmoor’s breach of lease claim against the State of Texas, TFC, and HHSC is
barred by sovereign immunity; (2) Broadmoor’s ultra vires claims against Niles and
Novak are barred by immunity; and (3) Broadmoor’s request for declaratory relief
that the Texas Legislature appropriated sufficient funds for Appellants to pay rent to
Broadmoor is barred by immunity.

I. Broadmoor’s Breach of Lease Claim is Barred by Sovereign
Immunity

In their first issue, Appellants argue that Broadmoor’s breach of lease claim
against the State, TFC, and HHSC (collectively, “State Entities”) is barred by
immunity and that Chapter 114 of the Texas Civil Practice and Remedies Code’s
immunity waiver provision does not apply. Appellants reason that this provision
only applies to state agencies, and the State—the only entity that is a party to the
lease—is not a state agency as defined under Chapter 114. Appellants also argue that
Chapter 114’s waiver, which covers contracts for construction, architectural, and
engineering services, does not apply to lease agreements. Appellants further argue
that Broadmoor points to no provision of the lease that was violated.

Broadmoor responds that the State Entities are all state agencies that entered
into the lease, the lease is also a contract for construction services, and that
Broadmoor alleged the State Entities breached the lease provision requiring rental
payments. We hold that Chapter 114’s immunity waiver does not apply to the State
Entities because the State is the only entity that is a party to the lease and the State

5
is not a state agency as defined by Chapter 114. As TFC and HHSC are not parties
to the lease, Chapter 114 does not apply to them.

Chapter 114’s waiver provision states:

A state agency that is authorized by statute or the constitution to enter
into a contract and that enters into a contract subject to this chapter
waives sovereign immunity to suit for the purpose of adjudicating a
claim for breach of an express provision of the contract, subject to the
terms and conditions of this chapter.

Tex. Civ. Prac. & Rem. Code § 114.003. A “state agency” under Chapter 114 is
defined as “an agency, department, commission, bureau, board, office, council,
court, or other entity that is in any branch of state government and that is created by
the constitution or a statute of this state . . . .” Id. § 114.001(3). Narrowing the scope
of this waiver, Chapter 114 only applies “to a claim for breach of a written contract
for engineering, architectural, or construction services or for materials related to
engineering, architectural, or construction services brought by a party to the written
contract . . . .” Id. § 114.002.

Broadmoor contends that the State Entities are “state agencies” as defined by
Chapter 114 and that they all entered the lease with Broadmoor. Section 2167.055
of the Texas Government Code mandates that the State be the lessee in all contracts
for lease space: “In a contract by the commission for the lease of space under this
chapter, the state, acting through the commission, is the lessee.” 1 Tex. Gov’t
Code § 2167.055(a). The lease agreement states “[t]his Agreement is made and
entered into . . . by and between LESSOR, BROADMOOR . . . and LESSEE,
STATE OF TEXAS, acting by and through the Texas Facilities Commission
(TFC).” The terms of the lease and Section 2167.055 are clear that it is the State

1
The “commission” refers to TFC. Tex. Gov’t Code § 2167.0011 (“In this chapter,
‘commission’ means the Texas Facilities Commission.”).

6
which entered into the lease and that TFC is acting on the State’s behalf as its
representative. Without even reaching the issue of whether the lease is for
construction services, Chapter 114 does not apply to TFC and HHSC because neither
“enter[ed] into a contract” with Broadmoor. Tex. Civ. Prac. & Rem. Code § 114.003.

That leaves the remaining question of whether the State is a state agency as
defined by Chapter 114. It is not. The Texas Supreme Court has distinguished the
State from its agencies. See State ex rel. Durden v. Shahan, 658 S.W.3d 300, 303–
04 (Tex. 2022) (holding that a suit filed “on behalf of the state” is not filed “on behalf
of a governmental subdivision or agency”); see also Christ, 664 S.W.3d at 86
(“Generally, the State of Texas and its agencies retain sovereign immunity from suit
unless the Legislature clearly and unambiguously waives it.”) (emphasis added);
Nettles v. GTECH Corp., 606 S.W.3d 726, 740–41 (Tex. 2020) (Boyd, J.,
concurring) (“[S]tate agencies, political subdivisions, and arm-of-the-state entities
are not themselves the sovereign State of Texas . . . .”) (emphasis added); PHI, Inc.
v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 301 (Tex. 2019) (“Sovereign immunity
protects the State of Texas and its agencies and subdivisions from suit and liability.”)
(emphasis added). That is because “[t]here is a distinction between the State of Texas
when considered as a sovereign and when considered as a government.” Harris v.
O’Connor, 185 S.W.2d 993, 998 (Tex. App.—El Paso 1944, writ ref’d w.o.m.). The
State “is inviolably sovereign” and “[s]uch sovereignty is inherent in its statehood.”
Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429 (Tex. 2016). The
source of this sovereignty “resides only in the people of Texas” and not in “[t]he
sum total of the powers of the legislative, executive and judicial officers of the State
exercised under the Constitution . . . .” Harris, 185 S.W.2d at 998; see also Tex.
Const. Preamble (“Humbly invoking the blessings of Almighty God, the people of
the State of Texas, do ordain and establish this Constitution.”); Tex. Const. art. I, § 2

7
(“All political power is inherent in the people . . . .”).

For these reasons, the State is not a state agency under Chapter 114—an
“entity that is in any branch of state government”—because it is the sovereign itself.
Tex. Civ. Prac. & Rem. Code § 114.001(3). As such, the Chapter 114 immunity
waiver provision does not apply to it. Broadmoor’s breach of lease claim against the
State is thus barred by sovereign immunity.

Broadmoor raises three objections. First, Broadmoor objects that Chapter
114’s immunity waiver applies to TFC because its applicability is not contingent on
the contracting status of the party sued, meaning one does not have to be a party to
a contract to be sued. Broadmoor argues that it is enough for TFC to be sued for a
breach of lease claim because it entered into the lease as Broadmoor’s agent. The
Chapter 114 waiver provides that a state agency that enters into a contract “waives
sovereign immunity to suit for the purpose of adjudicating a claim for breach of an
express provision of the contract, subject to the terms and conditions of this chapter.”
Id. § 114.003 (emphasis added). Broadmoor contends that the waiver is for
“adjudicating a claim” for “breach of an express provision of the contract” without
respect to whom the claim is made against or even their liability status.

This reading is not supported by the text and context of the waiver provision.
The waiver applies to claims for “breach of an express provision of the contract,”
which entails that the person sued breached the contract. As Broadmoor
acknowledges, “an agent who contracts for a disclosed principal is generally not
liable on the contract.” Hull v. S. Coast Catamarans, L.P., 365 S.W.3d 35, 45 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied); See RESTATEMENT (THIRD) OF
AGENCY § 6.01 (AM. L. INST. 2006) (“When an agent acting with actual or apparent
authority makes a contract on behalf of a disclosed principal, (1) the principal and
the third party are parties to the contract; and (2) the agent is not a party to the

8
contract unless the agent and third party agree otherwise.”) (emphasis added).
Indeed, Broadmoor does not contest that TFC acted within its legal authority as the
State’s agent in entering the lease and does not allege any exception that would make
TFC personally liable applies. See, e.g., Burch v. Hancock, 56 S.W.3d 257, 261 (Tex.
App.—Tyler 2001, no pet.) (“In order for an agent to avoid personal liability on a
contract, he has the duty to disclose not only that he is acting in a representative
capacity but also the identity of his principal.”).

Broadmoor’s argument that TFC can be sued as an agent regardless of its
liability status conflicts with the common-law principles on the agent-principal
relationship. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 385 (Tex. 2000)
(acknowledging that the agent-principal relationship is one of common law).
Common-law principles “may be abrogated by statute, but under Texas law, statutes
purporting to abrogate common-law principles must do so either expressly or by
necessary implication.” Taylor v. Tolbert, 644 S.W.3d 637, 649 (Tex. 2022)
(footnote omitted). Such abrogation “is disfavored” and “a clear repugnance
between the common law and a statutory cause of action is required for courts to
find that the Legislature abrogated a common law right.” Abutahoun v. Dow Chem.
Co., 463 S.W.3d 42, 51 (Tex. 2015). The Chapter 114 waiver provision neither
expressly abrogates the principle that an agent is not liable for a principal’s contract
nor does it do so by necessary implication—waiver is still effective against
principals even if it is not against agents. 2 TFC therefore cannot be sued for entering
the lease in its capacity as the State’s agent.

In its second objection, Broadmoor argues that by law the State encompasses

2
The fact that Broadmoor cannot sue the principal in this case, the State, also does not
abrogate the common-law principal-agent relationship by necessary implication because there are
other “engineering, architectural, [and] construction services” contracts where the State is not a
party that the Chapter 114 waiver would still apply to. Tex. Civ. Prac. & Rem. Code § 114.002.

9
both TFC and HHSC. In support, Broadmoor cites the Texas Tort Claims Act
definition of “governmental unit”, which includes “all the several agencies of
government that collectively constitute the government of this state,” Tex. Civ. Prac.
& Rem. Code § 101.001(3)(A), and Monsanto Company v. Cornerstones Municipal
Utility District, which interprets the meaning of “state” in a statute to mean an entity
“having statewide jurisdiction rather than an entity having local or limited
jurisdiction.” 865 S.W.2d 937, 939–40 (Tex. 1993). Broadmoor also argues that the
text of Section 2167.055 itself evidences that TFC and HHSC are parties to the lease.
This objection conflates state agencies with the State. As discussed above, the State
as sovereign is distinct from its state agencies. See Christ, 664 S.W.3d at 86; Nettles,
606 S.W.3d at 740–41 (Boyd, J., concurring); Wasson, 489 S.W.3d at 429; Harris,
185 S.W.2d at 998. The authorities Broadmoor cites to do not support its position
when examined in full context. The full text of the Tort Claims Act definition of
“governmental unit” states “this state and all the several agencies of government that
collectively constitute the government of this state . . . .” Tex. Civ. Prac. & Rem.
Code § 101.001(3)(A) (emphasis added). The emphasized language indicates a
distinction between the State and its agencies.

Regarding Monsanto, it is true that the Court understood “state” in a statute to
mean an entity having statewide jurisdiction and contemplated this to include state
agencies. Monsanto, 865 S.W.2d at 939–40. But this understanding was made in the
context of contrasting state agencies having statewide jurisdiction with local entities
having limited or local jurisdiction. Id. (“The ordinary meaning of ‘state,’ as it used
by the Texas courts, envisions an entity having statewide jurisdiction rather than an
entity having local or limited jurisdiction.”). The dispute in Monsanto concerned the
interpretation of a statute articulating that “[a] right of action of this state, a county,
an incorporated city or town, or a school district is not barred by any of the following

10
sections . . . .” Id. at 938 n.1 (quoting Act of February 27, 1989, 71st Leg., R.S., ch.2,
§ 4.02, sec. 16.061, 1989 Tex. Gen. Laws 123, 125 (amended 1993) (current version
at Tex. Civ. Prac. & Rem. Code § 16.061)). The parties contested whether a
municipal utility district could bring a lawsuit as the “state.” Id. at 938–39. The Court
held that it could not because municipal utility districts, not having statewide
jurisdiction, are not the State. Id. at 940–41. Unlike the statute in Monsanto, Section
2167.055 does not involve a contrast between statewide entities and local entities
but between the State and state agencies. The text of Section 2167.055 draws a
distinction between the State and a state agency, making clear that TFC was
authorized to enter the lease not in its own right but as the State’s representative.

Broadmoor contests that Section 2167.055 draws such a distinction. For TFC,
Broadmoor argues that the State having to act “through” the TFC to be a lessee and
that the TFC being obligated to “accept the [lease] space” upon “the execution of the
lease contract” indicates TFC is a party to the lease. Tex. Gov’t Code § 2167.055(a),
(f). As for HHSC, Broadmoor asserts provisions in the Government Code showing
the occupying agency’s involvement in the process, such as Section 2167.055’s
language providing that “[a] lease contract is contingent on the availability of money
appropriated by the legislature to pay for the lease,” makes HHSC a party. 3 Id.
§ 2167.055(e); see also id. §§ 2167.002(a), 2167.053(c)–(e), 2167.101. Neither of
these interpretations is supported by the text.

To begin, Section 2167.055 does not describe TFC entering into a lease in its
own right but as an agent of the State. This is clear from the full text of Section
2167.055(a): “[i]n a contract by the commission for the lease of space under this
chapter, the state, acting through the commission, is the lessee.” (emphasis added).

3
The parties do not dispute that the money available for the lease comes from HHSC, the
occupying agency. Tex. Gov’t Code § 2167.002(a).

11
“We presume the Legislature included each word in the statute for a purpose and
that words not included were purposefully omitted.” Lippincott v. Whisenhunt, 462
S.W.3d 507, 509 (Tex. 2015) (per curiam). If the Legislature wanted to say TFC is
the lessee for lease contracts, it could have taken out any reference to the state being
the lessee and not used agent-oriented language such as “acting through the
commission.” The fact that it did not indicates the Legislature did not intend for TFC
to be the lessee. Accordingly, Section 2167.055(f)’s language that TFC is obligated
to accept lease space upon a lease’s execution should be understood as binding TFC
to accept the space independent of the lease terms. As TFC itself is not a party to the
lease, such language is necessary to ensure that it accepts the lease space.

On HHSC, it is true that the occupying agency has significant involvement in
the process to secure a lease, from being the source of funding to—in competitive
bidding scenarios—having the power to require the governor to decide the winning
bidder if it and the TFC cannot agree. Tex. Gov’t Code §§ 2167.002(a),
2167.053(c)–(e), 2167.055(e). But having involvement in the process does not make
an occupying agency a party to the lease. Section 2167.055(a) mandates that the
State is the lessee. Even if we assume Section 2167.055 also made TFC a lessee,
nowhere does it say HHSC as the occupying agency is also a lessee.

In its third objection, Broadmoor contends that the term “State” as used in the
lease captures TFC and HHSC. Broadmoor argues the lease in various places refers
to the lessee as a state agency. It points to language stating the lessee is “an agency
of the State of Texas” and other language such as the lessee being able to terminate
the lease “without liability to the State of Texas . . . .” (emphasis added). Broadmoor
concludes that this language distinguishes the State of Texas from the “lessee” and
so evidences that the lease contemplates the term “State” to encompass more entities
than the State of Texas—here HHSC and TFC.

12
None of the language Broadmoor points to in the lease refers to either HHSC
or TFC as the “lessee.” Regardless of how the lessee may have otherwise been
described, the section naming the parties is unambiguous: “This Agreement is made
and entered into . . . by and between LESSOR, BROADMOOR . . . and LESSEE,
STATE OF TEXAS, acting by and through the Texas Facilities Commission
(TFC).” This language shows TFC is an agent of the State. On the same page, the
lease lists HHSC as an occupying agency, not as a party. Broadmoor asks us to read
into the above plain language that TFC and HHSC are also “lessees.” We decline to
do so. URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 764 (Tex. 2018) (stating contract
language should be interpreted “according to its ‘plain, ordinary, and generally
accepted meaning’ unless the instrument directs otherwise” (quoting Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996))). Such an interpretation of
the lease would also be in violation of Section 2167.055, which does not authorize
TFC and HHSC to enter leases in their own right. See Tex. Gov’t
Code § 2167.055(a).

We sustain Appellants’ first issue. 4

II. Broadmoor’s Ultra Vires Claims Against Niles and Novak

A. Broadmoor Fails to Plead an Ultra Vires Claim Against Niles

In their third issue, Appellants argue that Broadmoor has not sufficiently pled
that Deputy Executive Commissioner Rolland Niles of HHSC acted ultra vires by
allegedly failing to certify to TFC that HHSC had funds available to pay for the lease
rentals. Appellants contend that Niles had discretion to determine whether funds
were available for the lease and that Broadmoor’s ultra vires claim is barred for

4
As TFC and HHSC are not parties to the lease and the State is not subject to the Chapter
114 waiver, we do not reach Broadmoor’s arguments on whether the lease is the type of contract
subject to Chapter 114 and whether the State Entities breached any of the lease provisions.

13
seeking retrospective relief. Broadmoor responds that Niles did not have discretion
in determining the availability of funds, as such a determination is ministerial.
Broadmoor also responds that Niles never certified that funds were unavailable.
Broadmoor further responds that the relief it seeks is prospective and not
retrospective. We agree with Appellants that Niles had discretion to determine the
availability of funds.

HHSC, as a state agency occupying office space under the lease, was required
under Section 2167.101 of the Texas Government Code to “certify to the
commission, at least 60 days before the beginning of each fiscal biennium during the
lease term, that money is available to pay for the lease until the end of the next fiscal
biennium.” 5 Id. § 2167.101 (emphasis added). The parties do not dispute Niles
certified the availability of funds for all but five leases, one of which was the
Broadmoor lease. The parties do dispute whether the certification that there is money
“available to pay” is a matter of discretion or is ministerial—in this instance whether
Niles’ decision as to the availability of money for the Broadmoor lease was
discretionary or ministerial.

To succeed on an ultra vires claim, a party must “allege, and ultimately prove,
that the officer acted without legal authority or failed to perform a purely ministerial
act.” City of Hous. v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex.
2018) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)).
“‘Ministerial acts’ are those ‘where the law prescribes and defines the duties to be
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.’” Id. (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578,

5
Contrary to what Broadmoor contends, there is no requirement in Section 2167.101—and
Broadmoor points to no other provision—requiring Niles to certify the unavailability of funds for
a lease.

14
587 (Tex. 2015)). “Conversely, ‘discretionary acts’ are those that ‘require the
exercise of judgment and personal deliberation.’” Id.

Whether there is money “available to pay” for the lease is a matter of
discretion and is not ministerial. “Available” is undefined and the plain meaning of
“available” that Broadmoor cites—“capable of use for the accomplishment of a
purpose” and that which “is accessible or may be obtained”—is broad. Ross v. Blake,
578 U.S. 632, 642 (2016) (quoting Booth v. Churner, 532 U.S. 731, 737 (2001)).
Section 2167.101 does not prescribe “with such precision and certainty as to leave
nothing to the exercise of discretion or judgment” what amounts to there being
available funds to pay for the lease. City of Hous., 549 S.W.3d at 576 (quoting
Emmett, 459 S.W.3d at 587). It provides no criteria for Niles to use in determining
what makes funds available to pay for lease rentals. This lack of “precision and
certainty” renders this determination a matter of discretion.

Broadmoor objects that there is no discretion here because the Legislature
appropriated funds to HHSC to pay rent for its leases. Whether funds are available
is merely a question of whether all those appropriated funds will be expended.
Broadmoor asserts this determination is a matter of math and that “[a]n official ‘has
no discretion or authority to misinterpret the law’ or the rules of arithmetic.” In re
Phillips, 496 S.W.3d 769, 775 (Tex. 2016) (orig. proceeding) (quoting In re Smith,
333 S.W.3d 582, 585 (Tex. 2011) (orig. proceeding)). Broadmoor contends that the
availability of funds can be determined by subtracting the amount of funds Niles
certified that HHSC had available to pay for all lease rental payments from the total
the Legislature appropriated for those payments. The differential is the available
funds.

Broadmoor then applies this formula, noting that the Legislature appropriated
approximately $118 million and $119 million for fiscal years 2024 and 2025

15
respectively and that Niles certified to TFC that HHSC had $93 million in funds to
pay for lease rentals for each of those fiscal years. Because “$118+ million > $93
million”, Broadmoor concludes there were available funds. But this standard for
determining availability of funds is nowhere to be found in the text of Section
2167.101 or elsewhere in the statutory schema. It is also not found in the General
Appropriations Act itself, which contains an appropriation to HHSC for “Rent –
Building” but provides no further instructions on how such funds must be used, aside
from requiring that HHSC “coordinate with the Texas Facilities Commission to
identify ways to reduce costs for state leases, including, but not limited to lowering
costs associated with Consumer Price Index escalation.” See Act of May 27, 2023,
88th Leg., R.S., ch. 1170, § 1, 2023 Tex. Gen. Laws 3573, 3731, 3788. This
appropriation does not include a line-by-line appropriation for each lease on which
HHSC occupies space, only detailing the total rent appropriated for the 2024 and
2025 fiscal years.

Broadmoor presents its formula as the only way Niles could determine the
availability of funds, but this is not so at least for the lease at issue. As Appellants
note, there are considerations that may complicate predicting how much funding will
be spent on rental payments for this lease. For instance, the lease contains a
Consumer Price Index (CPI) escalation clause, which states “[o]n each anniversary
date of the lease commencement, the total monthly rent of the lease shall be adjusted
by changes in the Consumer Price Index (CPI) reflecting percentage increases.”
Appellants allege, and Broadmoor does not dispute, that other HHSC leases also
contained CPI escalation clauses. Appellants assert that Niles’ $93 million
certification was an estimate and that he could not know the true availability of funds
due to how the CPI escalation clauses, along with other “lease support costs” and
the “future need for newer facility leases,” might change rental payments for the

16
biennium. 6 Appellants maintain that, given that a certification commits the amount
of funds available for the future, Niles certified less than was appropriated as a matter
of prudence “to leave room for contingencies when predicting and committing to
future funds.” We do not weigh in on whether Appellants’ assertions here truly
reflect Niles’ reasoning but they demonstrate that Broadmoor’s formula is not the
only way to calculate the availability of funds for this lease. Adopting Broadmoor’s
understanding would amount to requiring a state agency to always certify that it will
use the full amount appropriated for rent or else risk being sued by a landlord the
agency terminated a lease with.

That there are multiple ways a state agency can determine the availability of
funds stands in contrast with Phillips, which Broadmoor cites to support its
contention that a state official has no discretion to misinterpret “the rules of
arithmetic.” 496 S.W.3d at 775. In Phillips, at issue was a law providing that a
wrongly imprisoned person was entitled to compensation in amount equal to
“compensation for child support payments owed by the person . . . that became due
and interest on child support arrearages that accrued during the time served in prison
but were not paid.” Id. at 770, 773 (quoting Tex. Civ. Prac. & Rem. Code
§ 103.052(a)(2)). The law stated the Texas Comptroller determined “the amount of
compensation owed to an eligible claimant.” Id. at 773 (quoting Tex. Civ. Prac. &
Rem. Code § 103.051(b)). The parties disputed whether this law imposed a
ministerial duty on the Comptroller to determine the amount of compensation owed.
Id. at 775. The Court held that it did, stating that “the Act requires the Comptroller
to base compensation on unpaid child support. The determination involves law and
arithmetic: in this case, determining and applying Arkansas law, and then making

6
Indeed, Broadmoor acknowledges that HHSC spent more funds on rent than it had
certified to TFC.

17
the necessary calculations.” Id. at 774–75.

The Court’s holding rests on the fact that the law stipulates unpaid child
support forms the basis of the calculation for what constitutes “the amount of
compensation owed.” This is not so here. Unlike in Phillips, Section 2167.101 does
not “base” the “availability of funds” to pay for rent on any metric. Section 2167.101
and the surrounding statutory schema provide no formula to calculate what
constitutes “availability of funds.” This lack of a stipulated metric leads to the
possibility of an official having more than one way to calculate the “availability” of
funds, making such a calculation a matter of discretion rather than a ministerial duty.

Accordingly, Broadmoor fails to sufficiently allege an ultra vires claim
against Niles. 7

B. Broadmoor Sufficiently Alleges an Ultra Vires Claim Against
Novak

Appellants in their third issue also argue that Broadmoor has not sufficiently
pled that Executive Director Mike Novak of TFC acted ultra vires when he sent
Broadmoor the lease termination notice. Appellants contend that Novak was acting
within his discretion to send the termination notice based on Niles’ determination
that funds were not available to fund the lease. Appellants also argue that
Broadmoor’s ultra vires claim is barred for seeking impermissible retrospective
relief. Broadmoor responds that Novak lacked authority to send the termination
notice because (1) funds were available and (2) Novak’s notice violated TFC
regulations. Broadmoor further responds that the relief it requests is prospective. We
hold that Broadmoor sufficiently alleges Novak violated TFC regulations when he
issued the termination notice.

7
As this resolution disposes of Broadmoor’s claim against Niles, we do not reach the issue
of whether the relief Broadmoor seeks is impermissibly retrospective.

18
“When a state agency adopts an administrative rule, it commits itself to follow
the plain meaning of the promulgated text, which courts should interpret as they
would a statute . . . .” Port Arthur Cmty. Action Network v. Tex. Comm’n on Env’t
Quality, 707 S.W.3d 102, 104 (Tex. 2025). Chapter 2167 of the Texas Government
Code, which concerns leasing space for state agencies, authorizes TFC to “adopt
rules necessary to administer this chapter.” Tex. Gov’t Code § 2167.008. Of the
regulations promulgated pursuant to Chapter 2167, Broadmoor alleges two were
violated. One of the regulations states that “[u]pon furnishing a written
determination that the governmental agency occupies idle facilities or has idle
capacity based upon [specified] factors . . . to the Commission, a lease may be
considered for cancellation by the Commission upon request by a governmental
agency.” 8 1 Tex. Admin. Code § 115.21(b) (emphasis added). The other regulation
provides that a governmental agency such as HHSC in requesting “to cancel a lease
due to lack of funding” must “provide evidence of notification to the Office of the
Governor in order for such a request to be considered for action by the
Commission.” Id. § 115.22(b) (emphasis added).

Before Novak could consider terminating the lease with Broadmoor, these
regulations thus required Novak to (1) receive a written determination from HHSC
regarding whether it occupied idle facilities or has idle capacity based upon specified
factors and (2) receive evidence from HHSC that it notified the Office of the
Governor. Appellants do not contest in their briefing that Novak received neither a
written determination nor evidence of notice to the Governor’s Office from HHSC
before he sent the termination notice. Here, Broadmoor has sufficiently alleged that
Novak acted beyond his authority in violation of TFC regulations when he sent the

8
“‘Governmental agency’ means a board, commission, department, office, or other agency
in the executive branch of state government . . . .”1 Tex. Admin. Code § 115.20(4).

19
termination notice without first having received the written determination and
evidence of notice to the Governor’s Office.

Appellants object that these regulations do not apply because they were
enacted in 2016, two years after the lease was entered into in 2014. Appellants cite
to Progressive County Mutual Insurance Company v. Caltzonsing for support, which
states “[t]he general rule is that the laws which are in existence at the time of the
making of the contract are impliedly incorporated into the contract.” 658 S.W.3d
384, 393 (Tex. App.—Corpus Christi-Edinburg 2022, no pet.) (quoting Savin Corp.
v. Copy Distrib. Co., 716 S.W.2d 690, 692 (Tex. App.—Corpus Christi–Edinburg
1986, no writ)). Caltzonsing is inapposite here. Novak’s alleged conduct does not
involve the violation of a contract—the lease—but rather of TFC regulations. The
date that controls is not the date the lease was executed but rather the date of the
alleged violative conduct, Novak sending the notice of termination to Broadmoor.
The parties do not dispute that the notice was sent well after the regulations at issue
were promulgated in 2016. 1 Tex. Admin. Code § 115.21–22.

Appellants also object that Broadmoor’s ultra vires claim against Novak must
fail because Broadmoor seeks impermissible retrospective relief. For ultra vires
claims, “claimants are only entitled to prospective relief”, which is “measured from
the date of injunction.” City of Hous., 549 S.W.3d at 576. “Retrospective relief,
however, remains barred by immunity absent a legislative waiver.” Hartzell v. S.O.,
672 S.W.3d 304, 311 (Tex. 2023). Broadmoor in its live petition seeks the following
injunctive relief against Novak:

• an injunction mandating that Defendant Mike Novak, in his Official
Capacity as Executive Director of the Texas Facilities Commission:
(i) withdraw the Notice of Termination of Lease, and (ii) cause the
Texas Comptroller of Public Accounts to recommence rent
payments as they come due under the terms of the Broadmoor Lease;

20
• an injunction mandating that Defendant Mike Novak, in his Official
Capacity as Executive Director of the Texas Facilities Commission,
comply with 1 Tex. Admin. Code § 115.22 in connection with any
attempted termination of the Broadmoor Lease;

Citing City of Galveston v. CDM Smith, Inc., Appellants argue that this requested
relief is retrospective because the lease has already terminated and this relief seeks
to undo that termination. 470 S.W.3d 558 (Tex. App.—Houston [14th Dist.] 2015,
pet. denied). In CDM Smith, a contractor sued officials of the City of Galveston for
breaching a contract for services by purportedly failing to approve and then submit
the contractor’s invoices to the state agency that disbursed payments. Id. at 562–63,
570. The contractor argued it was pursuing prospective relief by seeking to compel
the city officials to “correct violations of law in the future by” sending its invoices
to the agency disbursing payments and “carrying out the City’s prior determination
to approve for payment $6 million of [the contractor’s] invoices.” Id. at 568. The
Court held that this relief was retrospective because the City’s refusals to approve
and submit the invoices “have already occurred and are not recurring because the
contract has expired . . . .” Id. at 570. The Court concluded that the contractor’s
claims “are based on alleged past breaches of contract—for which money damages
are available—disguised as claims for prospective relief.” Id.

The circumstances in this case are different. Broadmoor’s ultra vires claim
against Novak is not for breach of contract but for his alleged failure to properly
follow TFC regulations before terminating a lease. The wording of Broadmoor’s
request seeks “to recommence rent payments as they come due,” which is
prospective—seeking rental payments only going forward—and does not seek
impermissible past rental payments. 9 Heinrich, 284 S.W.3d at 368–69 (“We

9
To the extent Broadmoor’s request could be interpreted as seeking past rental payments,
Broadmoor seeks impermissible retrospective monetary relief. City of Hous., 549 S.W.3d at 576
21
conclude that while governmental immunity generally bars suits for retrospective
monetary relief, it does not preclude prospective injunctive remedies . . . .”).
Broadmoor’s request for Novak to withdraw the notice of termination is also in line
with court precedent compelling government officials to reverse past decisions as a
form of corrective relief. Hartzell, 672 S.W.3d at 319–20 (approving “restoration of
[plaintiff’s doctorate] degree on a forward-looking basis.”); Van Boven v. Freshour,
659 S.W.3d 396, 400–01, 404 (Tex. 2022) (approving injunctive relief directing
Texas Medical Board officials to file a “Void Report,” which would remove a report
of a doctor’s alleged misconduct previously filed by the officials); Bracey v. City of
Killeen, 417 S.W.3d 94, 114 (Tex. App.—Austin 2013, no pet.) (Field, J., sitting)
(observing that governmental “immunity would not bar [a police officer’s] claim for
prospective reinstatement” after being indefinitely suspended).

In addition to arguing that Novak sending the termination notice violated TFC
regulations, Broadmoor also maintains that sending the notice violated Section
2167.055(e) of the Texas Government Code, which states “[a] lease contract is
contingent on the availability of money appropriated by the legislature to pay for the
lease.” Broadmoor argues Section 2167.055 gives TFC the implied authority to
terminate leases when funds are no longer available and that Novak exceeded that
authority when it sent its notice of termination because funds were in fact available.

We do not reach this issue today. If Novak violated the lease termination
procedures in the TFC regulations, the appropriate remedy is to require Novak to
follow the TFC regulations. If those procedures are followed, it is possible that TFC
may decide not to terminate the lease. See, e.g., 1 Tex. Admin. Code § 115.21
(requiring an agency seeking to terminate a lease due to lack of funding to send TFC

(“[R]etrospective monetary claims are generally barred.”).

22
a determination that it “occupies idle facilities or has idle capacity based upon” one
of five factors before TFC can consider the agency’s request). As we do not know at
this stage of the proceedings whether the termination procedures were followed and,
if they were not, how TFC may adjust its decision once they are, we decline to reach
the issue of whether Novak violated Section 2167.055 at this time.

We sustain Appellants’ third issue as to Broadmoor’s ultra vires claim against
Niles. We overrule Appellants’ third issue as to Broadmoor’s ultra vires claim
against Novak with regard to whether Novak violated TFC regulations. We do not
reach whether Novak violated Section 2167.055 at this stage of the proceedings.

III. Broadmoor’s Declaratory Judgment Act Claim

Broadmoor in its live petition seeks a judgment against Appellants “declaring
that the 88th Texas Legislature did in fact appropriate funds to pay rent to Broadmoor
in satisfaction of the State Lessee’s obligations under the Broadmoor Lease for the
2024 and 2025 fiscal years.” Appellants in their second issue argue that this claim
as to the State, TFC, and HHSC is barred by sovereign immunity because it does not
include a challenge to the validity or constitutionality of a statute. Appellants also
argue that declaratory relief would not resolve the underlying controversy—a breach
of contract claim—between these parties. Appellants further argue that declaratory
judgment claims cannot be brought against state officials and so Broadmoor’s claims
against Novak and Niles are barred by immunity. Broadmoor responds that
declaratory relief can be sought against state officials.

Broadmoor’s Uniform Declaratory Judgment Act (“UDJA”) claims against
the State, TFC, HHSC, and Niles are fully barred by sovereign immunity. We do not
reach whether Broadmoor’s claim is barred as to Novak. “A declaratory judgment
requires a justiciable controversy as to the rights and status of parties actually before
the court for adjudication, and the declaration sought must actually resolve the

23
controversy.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex. 2004).
Broadmoor’s sought for declaration on its own would not “actually resolve” the
controversies between these parties and Broadmoor does not make any argument
that it would. Rather, this declaration is only instrumental in resolving the other
claims Broadmoor raises—its breach of lease and ultra vires claims.

For the breach of lease claim, Broadmoor alleges the State Entities breached
the lease because they improperly sent a notice of termination to Broadmoor and
failed to pay rent in violation of the lease. Whether the Legislature appropriated
sufficient funds to pay the rent is not enough on its own to show the State Entities
violated the lease—that is the task of the breach of lease claim. But as discussed in
Part I, HHSC and TFC are not parties to the lease and no waiver of immunity applies
to the State, meaning the breach of lease claim against the State Entities fails.
Without a viable breach of lease claim to latch onto, granting relief to Broadmoor’s
UDJA claim as to the State Entities would not “actually resolve” the controversies
as to these parties and so too fails.

For the ultra vires claim against Niles, Broadmoor alleges Niles acted beyond
his authority by failing to certify to TFC that HHSC had funds available to pay for
the lease. Again, a declaration that the Legislature appropriated sufficient funds to
pay for rent is not sufficient to resolve this controversy because the proper inquiry
is whether Niles failed to perform a ministerial act by not certifying such funds were
available under Section 2167.101. As explained in Part II.A., Niles’ determination
of whether there are sufficient funds available to pay for the lease is a matter of
discretion under Section 2167.101, at least in this instance, and is not subject to an
ultra vires claim. Absent a sufficiently alleged ultra vires claim against Niles,
Broadmoor’s UDJA claim against Niles does not “actually resolve” the dispute
between Niles and Broadmoor.

24
That leaves the ultra vires claim against Novak. 10 We have held that
Broadmoor has sufficiently alleged Novak violated TFC regulations. For the same
reasons stated in Part II.B., we do not reach at this time whether Broadmoor has
sufficiently alleged a UDJA claim as to Novak. That is, if Novak violated the lease
termination procedures in the TFC regulations, the UDJA claim as to Novak may
not need to be decided depending on what steps TFC takes after such a
determination.

We sustain Appellants’ second issue as to the UDJA claims against the State,
TFC, HHSC, and Niles. We do not reach this issue as to the UDJA claim against
Novak.

CONCLUSION

We reverse the trial court’s order denying Appellants’ plea to the jurisdiction
as to (1) Broadmoor’s breach of lease claim against the State Entities; (2)
Broadmoor’s ultra vires claim against Niles; and (3) Broadmoor’s UDJA claim
against the State Entities and Niles. We render judgment dismissing these claims
from the case.

We affirm the trial court’s order denying Appellants’ plea as to Broadmoor’s
ultra vires claim against Novak regarding his alleged TFC regulation violations. We
do not reach the issue of whether Novak acted ultra vires under Section 2167.055 of
the Texas Government Code. We also do not reach Broadmoor’s UDJA claim as to
Novak.

We remand to the trial court for further proceedings in accordance with this

10
We note that, contrary to what Appellants argue, Broadmoor can seek declaratory relief
against state officials. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002) (“Private parties may seek declaratory relief against state officials who allegedly act without
legal or statutory authority.”).

25
opinion.

/s/ April Farris
April Farris
Justice

Panel consists of Chief Justice Brister and Justices Field and Farris.

26