ENGIE IR Holdings LLC and Hamlin Collegiate Independent School District v. Kelly Hancock, Acting Texas Comptroller of Public Accounts

Dissenting Opinion filed September 22, 2025.

In The

Fifteenth Court of Appeals

NO. 15-24-00058-CV

ENGIE IR HOLDINGS LLC AND HAMLIN COLLEGIATE
INDEPENDENT SCHOOL DISTRICT, Appellants
V.
KELLY HANCOCK, ACTING TEXAS COMPTROLLER OF PUBLIC
ACCOUNTS, Appellee

On Appeal from the 39th District Court
Stonewall County, Texas
Trial Court Cause No. 4764

DISSENTING OPINION
ENGIE IR and the School District filed a lawsuit against the Comptroller for
declarations that the Comptroller had no legal authority to withdraw the certificate
of limitation after the cut-off date, and thus acted ultra vires. Appellants argued that
the Comptroller’s authority to withdraw the certificate had expired on December 14,
2022, because the Comptroller did not amend or withdraw the certificate within the
20-business-day period under Rule 9.1055(e)(2), and that his authority certainly
expired by December 31, 2022, when Chapter 313 expired. The Comptroller filed a
plea to the jurisdiction arguing that sovereign immunity bars Appellants’ suit
because Appellants did not allege a viable ultra vires claim.
“An ultra vires claim based on actions taken ‘without legal authority’ has two
fundamental components: (1) authority giving the official some (but not absolute)
discretion to act and (2) conduct outside of that authority.” Hall v. McRaven, 508
S.W.3d 232, 239 (Tex. 2017). The governing rule stated as follows:
(e) Action after agreement review. No later than 20 business days after
receiving an agreement for limitation on appraised value acceptable to
an applicant, the comptroller:

(1) shall review the agreement for:

(A) compliance with Tax Code, Chapter 313, and this
subchapter; and

(B) consistency with the application submitted to the
comptroller and as amended or supplemented;

(2) may amend or withdraw the comptroller certificate for a
limitation if the comptroller determines that the agreement as
submitted by the applicant does not comply with Tax Code,
Chapter 313 or this subchapter or that the agreement contains
provisions that are not consistent with or represents
information significantly different from that presented in the
application as submitted to the comptroller; and

(3) provide written notification to the school district of the
actions taken under this subsection.

34 Tex. Admin. Code § 9.1055(e) (emphasis added).

This rule directed that if the Comptroller determined that the draft agreement
submitted did not comply with Chapter 313 or was inconsistent with the application

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the Comptroller had certified, he could—“[n]o later than 20 business days after
receiving an agreement”—“amend or withdraw the comptroller certificate.” 34 Tex.
Admin. Code § 9.1055(e). I would hold that Appellants have stated a viable ultra
vires claim by seeking a declaration that the Comptroller lacked authority to
withdraw the Certificate after the deadline to do so expired. See 34 Tex. Admin.
Code § 9.1055(e); Tex. Tel. Ass’n v. Pub. Util. Comm’n of Tex., 653 S.W.3d 227,
254 (Tex. App.—Austin 2022, no pet.) (holding that Public Utility Commission
commissioners acted ultra vires based upon non-compliance with a rule).
In my view, the question whether authority existed to withdraw the Certificate
is a separate question from whether the Certificate was invalid ab initio for the
reasons advanced by the Comptroller. The Comptroller is free to seek a declaratory
judgment on the question of Certificate validity. The question before us is whether
Appellants stated a viable ultra vires claim based upon the late withdrawal of the
Certificate. Based upon the plain language of the rule, I would conclude that the
Appellants have carried their burden of demonstrating the trial court’s jurisdiction.

/s/ April Farris
April Farris
Justice

Before Chief Justice Brister and Justices Field and Farris (Brister, C.J., majority).

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