Sandra L. McGarry v. the Houston Firefighters Relief and Retirement Fund, Brett Robert Besselman in His Capacity of Chair of the Board of Trustees Od the Houston Firefighters Relief and Retirement Fund, and the Board of Trustees of the Houston Firefighters Relief and Retirement Fund

Opinion issued March 9, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-21-00624-CV
———————————
SANDRA L. MCGARRY, Appellant
V.
THE HOUSTON FIREFIGHTERS’ RELIEF AND RETIREMENT FUND,
BRETT ROBERT BESSELMAN IN HIS CAPACITY AS CHAIR OF THE
BOARD OF TRUSTEES OF THE HOUSTON FIREFIGHTERS’ RELIEF
AND RETIREMENT FUND, AND THE BOARD OF TRUSTEES OF THE
HOUSTON FIREFIGHTERS’ RELIEF AND RETIREMENT FUND,
Appellees

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2020-80333

O P I N I O N

Sandra L. McGarry sued the Houston Firefighters’ Relief and Retirement

Fund, the Fund’s board of trustees, and the chairman of the Fund’s board of trustees,
claiming she is entitled to pension benefits earned by her deceased husband. The

Fund and the other two defendants filed pleas to the jurisdiction, requesting

dismissal of McGarry’s claims, which the trial court granted. McGarry appeals.

We reverse and remand.

BACKGROUND

McGarry’s Lawsuit

McGarry sued the Fund, its board of trustees, and the chairman of the board

of trustees, seeking a declaratory judgment and asserting multiple other causes of

action. In her petition, McGarry alleged that she and James Joseph McGarry, a

retired firefighter who died a day after retiring in April 2018, had entered into a

common-law or informal marriage in July 2016. As the widow of a deceased

firefighter, McGarry contacted the Fund to apply for survivor’s benefits (a portion

of James’s pension benefits to which she is entitled as his widow). According to

McGarry, the Fund refused to allow her to apply unless and until she first obtained

a court judgment recognizing that she had been informally married to James.

McGarry obtained such a judgment in a contested heirship proceeding

pending in one of Montgomery County’s courts at law. The judgment recited that

she had been informally married to James in July 2016, their informal marriage

continued until his death in April 2018, and their informal marriage met the

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requirements set forth in section 2.401 of the Texas Family Code, which is the statute

that specifies the evidence needed to prove the existence of an informal marriage.

Once McGarry had this judgment, the Fund allowed her to apply for

survivor’s benefits. She alleged, however, that after she had applied for benefits but

before the Fund acted on the application, the Fund’s board of trustees revised the

policies and procedures applicable to proof of an informal marriage. In particular,

the Fund now required that any judgment recognizing an informal marriage had to

be rendered by a Texas district court and also had to be submitted to the Fund before

a member’s death to be valid proof of an informal marriage. Because James had died

beforehand, McGarry could no longer qualify for survivor’s benefits because she

could not supply the required proof (a district-court judgment recognizing the

marriage that had been submitted to the Fund before James’s death). Under the

circumstances, the Fund notified McGarry that it regarded her application for

survivor’s benefits as incomplete and thus would not consider her application.

McGarry requested that the trial court enter a judgment declaring that:

• the county court at law’s judgment is valid and enforceable;

• she and James had been informally married under Texas law; and

• the county court at law’s judgment recognizing her informal marriage to
James is sufficient proof to require the Fund to process her application.

In addition, McGarry sought several other declarations regarding her rights as a

survivor or any additional rights she had with respect to James’s pension, the validity

3
and enforceability of the Fund’s revised application policies and procedures, and the

validity and enforceability of the Fund’s enabling statute to the extent that statute

allowed the Fund to adopt the application policies and procedures it had adopted.

McGarry further alleged that the Fund and the other two defendants had

violated her constitutional rights to due process and equal protection by infringing

on and unduly burdening her fundamental marriage rights. She further alleged that

the board of trustees and its chairman had committed ultra vires acts—acts beyond

their legal power or authority—by revising the Fund’s application policies and

procedures after she had already applied and retroactively applying the revised

policies and procedures to her and also by refusing to process her application and

thus depriving her of a final benefits decision that she could appeal in court.

McGarry also alleged claims for breach of contract and conversion. As

damages, she sought the amount of pension benefits she alleged she was owed.

Finally, McGarry sought a writ of mandamus, requesting that the trial court

compel the Fund and the other two defendants to process her application.

Defendants’ Jurisdictional Pleas

The Fund filed a plea to the jurisdiction, arguing that it generally possessed

governmental immunity and therefore was not subject to most of McGarry’s claims.

According to the Fund, its enabling statute waives the entity’s governmental

immunity solely with respect to final benefits decisions. Because McGarry was not

4
a member or member’s beneficiary and thus not entitled to a benefits decision, the

Fund argued, its governmental immunity had not been waived under the statute.

In addition, to the extent a justiciable controversy existed between the parties,

the Fund argued it had exclusive jurisdiction over the controversy. Because McGarry

had not exhausted her administrative remedies by complying with the Fund’s revised

application policies and procedures, the Fund argued, the district court lacked

subject-matter jurisdiction and could not entertain any controversy until McGarry

had exhausted her administrative remedies by obtaining a final benefits decision.

The Fund’s board of trustees and its chairman, Besselman, filed jurisdictional

pleas that, for the most part, were materially indistinguishable from the Fund’s.

In conjunction with their jurisdictional pleas, the Fund and the other two

defendants filed a motion to dismiss that elaborated upon their jurisdictional claims.

Trial Court’s Ruling

The trial court granted the defendants’ jurisdictional pleas and dismissed

McGarry’s claims. The trial court did not specify a basis for its jurisdictional ruling.

McGarry’s Motion for New Trial

McGarry moved for a new trial. She argued that the trial court erred in

dismissing all of her claims for lack of subject-matter jurisdiction because:

• she should have received an opportunity to replead before dismissal;

• she had a claim for violation of her due-process rights based on the Fund’s
refusal to even process or hear her application for survivor’s benefits;

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 • the defendants’ revised application policies and procedures violated the
Fund’s enabling statute or else the statute itself is unconstitutional; and

• the defendants’ refusal to recognize her informal marriage to James
unconstitutionally abrogated her fundamental marriage rights.

McGarry’s new-trial motion was denied by operation of law.

DISCUSSION

Standard of Review

Because subject-matter jurisdiction is a question of law, we review a trial

court’s ruling on a plea to the jurisdiction de novo. Nettles v. GTECH Corp., 606

S.W.3d 726, 731 (Tex. 2020). When, as here, a jurisdictional plea challenges the

pleadings, we must decide whether the plaintiff has pleaded facts that affirmatively

demonstrate the trial court’s jurisdiction to hear her claims. Tex. Dep’t of Crim. Just.

v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). In deciding whether the plaintiff has

met this burden, we liberally construe the plaintiff’s pleadings, taking all factual

allegations as true and looking to the plaintiff’s intent. Id. If the plaintiff has not

pleaded sufficient facts to affirmatively demonstrate jurisdiction and her pleadings

do not affirmatively demonstrate incurable jurisdictional defects either, the trial

court must allow the plaintiff an opportunity to replead her claims. Dohlen v. City of

San Antonio, 643 S.W.3d 387, 397 (Tex. 2022). But if her pleadings demonstrate

incurable jurisdictional defects, the trial court must dismiss her claims. See id.

6
 Applicable Law

The Texas Constitution authorizes the Legislature to create pension systems

for public employees. TEX. CONST. art. XVI, § 67(a). The Legislature created the

Fund via a comprehensive, standalone statute. TEX. CIV. STAT. art. 6243e.2(1).

Under the Fund’s enabling statute, it is governed by a board of trustees and

any committees established by the board. Id. § 2(b), (h-1). The board “shall receive,

manage, and disburse the fund for the municipality and shall hear and determine

applications for retirement and claims for disability and designate the beneficiaries

or persons entitled to participate.” Id. § 2(k). Decisions made by the board are “final

and binding as to each affected member and beneficiary, subject only to the rights

of appeal specified” in the statute itself. Id. § 2(j); see also id. § 2(h-2) (providing

that if board establishes pension-benefits committee, then pension-benefits

committee’s decisions are final and binding, except to extent its decisions may be

appealed to full board, subject only to rights of appeal specified in statute).

The statute gives the board broad powers of self-governance. Among other

things, the board’s powers include the authority to “adopt for the administration of

the fund written rules, policies, and procedures not inconsistent” with the statute. Id.

§ 2(p)(1). Any rule, policy, or procedure the board adopts “is final and binding with

respect to any matter within the board’s jurisdiction and authority.” Id. § 2(p-1).

7
 In addition to granting the board rulemaking authority, the statute empowers

the board to “interpret and construe” the statute itself; “correct any defect, supply

any omission, and reconcile any inconsistency” in the statute “in a manner and to

the extent that the board considers expedient to administer” the statute “for the

greatest benefit of all members”; and “determine all questions, whether legal or

factual, relating to eligibility for participation, service, or benefits.” Id. § 2(p)(2), (3),

(5).

The statute refers to the Fund as “a governmental entity.” Id. § 3(l). Given the

Fund’s role and relative autonomy, we have previously described it as being like a

public administrative body. Williams v. Houston Firemen’s Relief & Retirement

Fund, 121 S.W.3d 415, 426 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also

City of Houston v. Houston Firefighters’ Relief & Retirement Fund, 502 S.W.3d

469, 477 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (agreeing that Fund is

public entity). Accordingly, the Fund has governmental immunity from suit. See

Thayer v. Houston Mun. Emps. Pension Sys., 95 S.W.3d 573, 576–77 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (discussing immunity enjoyed by state-created

entities and citing with approval another court’s decision that held another city’s

firefighter’s fund was entitled to governmental immunity).

Because the Fund has governmental immunity, suit against it is barred and it

is free from liability unless the Legislature has clearly and unambiguously waived

8
the Fund’s immunity. Dohlen, 643 S.W.3d at 392. The Legislature has waived the

Fund’s immunity from suit solely with respect to its board’s benefits decisions. See

Williams, 121 S.W.3d at 428–29 (stating that sole right of judicial review allowed

by statute is contained in section 12(a), which allows review of benefits decisions).

The statute provides a limited right of appeal from the board’s benefits

decisions. A member or member’s beneficiary “who is aggrieved by a decision or

order of the board, whether on the basis of rejection of a claim or of the amount

allowed, may appeal from the decision or order of the board to a district court in the

county in which the board is located by giving written notice” to an officer of the

board no later than 20 days after the date of the decision or order. TEX. CIV. STAT.

art. 6243e.2(1), § 12(a). After serving this notice, the aggrieved member or

member’s beneficiary must file the notice with the district court along with an

affidavit as to service of the notice. Id. The board has 30 days after service to file a

transcript of all papers and proceedings in the case with the district court, at which

point the appeal is perfected. Id. § 12(b). The district court then sets a date for hearing

the appeal, after which it issues its decision. Id. § 12(b), (c). A party may then appeal

to the court of appeals. Id. § 12(c).

Appellate review of the board’s benefits decisions is highly deferential. In any

appeal, the reviewing court applies the substantial-evidence rule. Green v. Houston

Firefighters’ Relief & Retirement Fund, No. 14-19-00734-CV, 2020 WL 6737537,

9
at *5 (Tex. App.—Houston [14th Dist.] Nov. 17, 2020, no pet.) (mem. op.). Under

this rule, a court presumes the board’s decision is valid and that substantial evidence

supports it. Id. Substantial evidence is more than a mere scintilla of evidence but less

than a preponderance of the evidence. Id. In other words, the board’s decision may

be supported by substantial evidence even if the evidence preponderates against it.

Id. The issue on appeal is not whether the board made the correct decision, but rather

whether some reasonable basis in the record exists for the board’s decision. Id.

Apart from the board’s benefits decisions, the statute does not confer a right

of judicial review. See TEX. CIV. STAT. art. 6243e.2(1), § 3(l) (except for waiver

expressly provided in statute, statute does not contain implied waiver of any

immunity). Thus, the lone other situation in which the Fund itself may be sued is

when a plaintiff challenges the constitutionality of the Fund’s enabling statute—

TEX. CIV. STAT. art. 6243e.2(1)—whether in part or in whole. See Patel v. Tex. Dep’t

of Licensing & Regul., 469 S.W.3d 69, 75–77 (Tex. 2015) (Declaratory Judgments

Act waives governmental entity’s immunity from suit when plaintiff challenges

constitutionality of statute and seeks only equitable relief); see also Tex. Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam) (Declaratory

Judgments Act does not waive governmental entity’s immunity from suit when

plaintiff seeks declaration of her rights under statute or under other law).

10
 The Fund’s board of trustees has governmental immunity to the same extent

as the Fund with one exception: governmental immunity does not bar suits against

individual board members in their official capacity alleging they have exceeded their

legal authority. Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011). Thus,

governmental immunity poses no obstacle to suits against board members alleging

they have violated statutory or constitutional provisions. Patel, 469 S.W.3d at 76.

Claims that a government official, like a member of the Fund’s board of

trustees, acted beyond his power or authority—commonly referred to as ultra vires

claims—seek to bring him back into compliance with statutory or constitutional

provisions through prospective injunctive remedies. Chambers–Liberty Ctys. Nav.

Dist. v. State, 575 S.W.3d 339, 348 (Tex. 2019); see also City of El Paso v. Heinrich,

284 S.W.3d 366, 368–69, 372 (Tex. 2009) (governmental immunity generally bars

retrospective monetary relief but does not bar prospective injunctive remedies, even

when these remedies will compel payment of money, in official-capacity suits

asserting statutory or constitutional violations). An ultra vires claim will lie against

an official when he: (1) exceeds the bounds of his granted authority or acts in conflict

with the law itself; or (2) fails to perform a purely ministerial act, one that is defined

by the law with such precision and certainty that it affords the official no discretion

or room for judgment. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017).

11
 But if the official’s act was not on its face beyond his authority or in conflict

with the law, the plaintiff has not stated a valid ultra vires claim that bypasses the

official’s governmental immunity. Matzen v. McLane, 659 S.W.3d 381, 388 (Tex.

2021). Likewise, when constitutional violations are at issue, immunity from suit is

not waived by constitutional claims that are facially invalid. Klumb v. Houston Mun.

Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015); see, e.g., Caleb v. Carranza, 518

S.W.3d 537, 545 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (ultra vires claims

pleaded did not defeat official’s governmental immunity because plaintiff’s pleaded

constitutional claims were facially invalid).

Analysis

On appeal, McGarry argues that the trial court erred in granting the

defendants’ jurisdictional pleas on multiple grounds. We examine each in turn.

Statutory Waiver of Immunity in the Declaratory Judgments Act

McGarry argues that the Legislature has expressly waived the Fund’s

governmental immunity with respect to her challenge of the revised policies and

procedures the Fund issued requiring that proof of an informal marriage be submitted

before a member’s death and in the form of a district-court judgment recognizing

the informal marriage. In particular, she relies on the Declaratory Judgments Act’s

waiver of immunity with respect to municipal ordinances. See TEX. CIV. PRAC. &

12
REM. CODE § 37.006(b) (requiring municipalities to be party to declaratory-

judgment actions challenging validity of municipal ordinances).

McGarry is correct that this provision of the Declaratory Judgments Act

constitutes a waiver of a municipality’s governmental immunity. City of Dallas v.

Albert, 354 S.W.3d 368, 378 (Tex. 2011). In addition, this provision waives the

governmental immunity of other governmental entities with respect to statutes. See

TEX. CIV. PRAC. & REM. CODE § 37.006(b) (requiring Attorney General to be served

with copy of proceeding when constitutionality of statute is challenged and granting

Attorney General entitlement to be heard); Tex. Lottery Comm’n v. First State Bank

of DeQueen, 325 S.W.3d 628, 633–34 (Tex. 2010) (Declaratory Judgments Act

waives governmental immunity when constitutionality of statutes is challenged).

But the Fund is not a municipality. Nor are its revised policies and procedures

about eligibility for survivor’s benefits a municipal ordinance or statute. And the

Declaratory Judgments Act does not waive governmental immunity more generally.

See Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011)

(Declaratory Judgments Act is not general waiver of sovereign immunity and

generally does not enlarge subject-matter jurisdiction of courts). Thus, McGarry’s

reliance on the Act as an express waiver of the Fund’s governmental immunity in

connection with her challenge of its revised policies and procedures is misplaced.

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 Ultra Vires Claims

Policies and Procedures Inconsistent with the Enabling Statute

McGarry argues that Besselman and other unnamed members of the Fund’s

board of trustees exceeded their authority in several ways. First, she argues that they

acted beyond their statutory authority in adopting the revised application policies

and procedures because the Fund’s enabling statute makes no distinction between

ceremonial and informal marriages. As the enabling statute does not make this

distinction, McGarry argues, the board members cannot adopt policies and

procedures that distinguish between ceremonial and informal marriages, at least not

to the extent that the latter are treated less favorably than the former.

McGarry is correct that the Fund’s enabling statute solely refers to marriage,

without distinguishing between ceremonial and informal marriage. See TEX. CIV.

STAT. art. 6243e.2(1), § 1(10)(A) (defining “eligible spouse” as “spouse to whom

the member was married at the time of the member’s death”). But the distinction

between ceremonial and common-law or informal marriage is embedded in Texas

law. See, e.g., Creel v. Martinez, 176 S.W.3d 516, 519 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied) (Texas recognizes two forms of marriage, ceremonial and

common-law); McClendon v Brown, 63 S.W.2d 746, 749 (Tex. App.—Galveston

1933, writ dism’d) (Texas courts have long recognized validity of common-law

marriage). Under the Family Code, certain proof is required to establish the existence

14
of an informal marriage precisely because the requisites of a ceremonial marriage

were not observed. See TEX. FAM. CODE §§ 2.401(a), 2.402 (providing that in

judicial, administrative, or other proceedings, informal marriage may be proved by

evidence that declaration of informal marriage has been signed by spouses and

certified by county clerk or evidence that they agreed to be married and then lived

together as husband and wife and represented to others that they were married).

Nothing in the Fund’s enabling statute suggests that it dispenses with Texas’s

longstanding distinction between ceremonial and informal marriage. But McGarry

posits that because the Legislature explicitly distinguished between ceremonial and

informal marriage in the enabling statutes of other public pension funds, its silence

in the Fund’s enabling statute prohibits the adoption of policies and procedures that

draw this distinction. See, e.g., TEX. CIV. STAT. art. 6243e.1, §§ 1.01, 1.02(13)

(defining “spouse” as one “legally married” to member but requiring informal

marriage to be evidenced by declaration of informal marriage per FAM. §§ 2.401(a),

2.402 for firefighters’ funds in cities with populations of more than 750,000 and less

than 850,000).

We disagree with McGarry, given the sweeping authority the Legislature has

conferred on the Fund’s board of trustees. Under its enabling statute, the Fund’s

board is empowered to interpret the statute, correct defects in the statute, supply

omissions in the statute, and reconcile inconsistencies in the statute. TEX. CIV. STAT.

15
art. 6243e.2(1), § 2(p)(2), (3). In addition, the board is authorized to “determine all

questions, whether legal or factual, relating to eligibility for participation, service,

or benefits.” Id. § 2(p)(5). The board may adopt written rules, policies, and

procedures so long as they are “not inconsistent” with the statute, and these written

rules, policies, and procedures are “final and binding with respect to any matter

within the board’s jurisdiction and authority.” Id. § 2(p)(1), (p-1). Because the

breadth of the board’s authority is self-evident, the courts lack the jurisdiction to

review its policies and procedures “absent a manifest conflict with express statutory

terms” of the Fund’s enabling statute. Klumb, 458 S.W.3d at 10; see also Houston

Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158–59 (Tex. 2007) (“final

and binding” language barred judicial review, thereby depriving trial court of

jurisdiction to review pension board’s decision as to retirement service credit).

Here, there is no manifest conflict between the board’s revised policies and

procedures concerning informal marriage and the Fund’s enabling statute. Indeed,

there is no conflict whatsoever. The Fund’s enabling statute is silent as to how and

when informal marriage may be proved by a surviving spouse. Thus, the board did

not act beyond its authority in adopting the revised policies and procedures requiring

informal marriage to be proved either by a declaration of informal marriage or a

district-court judgment recognizing the marriage filed before the member’s death.

See Klumb, 458 S.W.3d at 10–11 (board’s construction of term “employee”

16
presented no manifest conflict with statute, given that statutory definition of term

was composed of essential terms that were undefined and supplemental language

adopted by board neither inherently nor patently conflicted with statutory terms).

Policies and Procedures Inconsistent with the Family Code

McGarry argues that “the Family Code supplies the means of proof” with

respect to informal marriage. Thus, she maintains that Besselman and other unnamed

board members have exceeded their authority in adopting the revised policies and

procedures on proving an informal marriage because these policies and procedures

do not comply with the Family Code and are an attempt to rewrite it.

McGarry is correct that the Family Code generally governs what constitutes

proof of informal marriage in “a judicial, administrative, or other proceeding.” FAM.

§ 2.401(a). In particular, the Family Code specifies that an informal marriage may

be proved by two types of evidence: evidence that a declaration of their marriage

has been signed or evidence that “the man and woman agreed to be married and after

the agreement they lived together in this state as husband and wife and there

represented to others that they were married.” Id.; see also id. § 2.402(a)–(b)

(specifying the requirements for valid declaration of informal marriage).

The revised policies and procedures adopted by the Fund’s board of trustees

do not mirror the Family Code. Under the Fund’s policies and procedures, a

beneficiary may prove an informal marriage either by a declaration of informal

17
marriage made in compliance with the Family Code or a final district-court judgment

recognizing the existence of the informal marriage under the standards set forth in

the Family Code, provided that the declaration or judgment is filed with the Fund

before the death of the member through whom the beneficiary claims benefits.

However, the inconsistency between the Family Code and the Fund’s revised

policies and procedures regarding proof of informal marriage does not give rise to

an ultra vires claim because the Fund’s enabling statute displaces the Family Code.

The Fund’s enabling statute establishes a “comprehensive statutory scheme” from

which all of McGarry’s benefits-related rights derive. Williams, 121 S.W.3d at 434.

Thus, because the Fund’s enabling statute comprehensively addresses the specific

subject in dispute, it is controlling in the event of a conflict with any other statute, a

result the enabling statute expressly mandates. See TEX. CIV. STAT. art. 6243e.2(1),

§ 1E (Fund’s enabling statute “prevails” to extent of conflict with “any other law”);

First State Bank of DeQueen, 325 S.W.3d at 639 (when statute manifests clear

legislative intent that conflicting statutes are ineffective, statute prevails over

conflicting statutes).

Of course, the Fund’s enabling statute itself, as opposed to the board’s revised

policies and procedures, does not conflict with the Family Code’s provisions

concerning proof of an informal marriage. But the enabling statute empowers the

board of trustees to supplement the Fund’s enabling statute in ways that are

18
inconsistent with the Family Code. In particular, the board has the power to “supply

any omission” that appears in its enabling statute “in a manner and to the extent that

the board considers expedient to administer” the statute “for the greatest benefit of

all members.” TEX. CIV. STAT. art. 6243e.2(1), § 2(p)(3). The board also has the

power to “determine all questions, whether legal or factual, relating to eligibility.”

Id. § 2(p)(5). As the Fund’s enabling statute does not specify how an informal

marriage is to be proved, the board of trustees did not act beyond its authority by

adopting its revised policies and procedures, even though they differ from the Family

Code’s approach to the same subject. In effect, the board merely supplemented the

enabling statute’s definition of “eligible spouse” on a subject about which the

enabling statute was silent, which is precisely how the Legislature intended this

comprehensive statutory scheme to operate. See Klumb, 458 S.W.3d at 10 (holding

that similarly broad pension statute empowered board to “add language” to statute

“it deems necessary for the administration of the pension fund”).

Violation of McGarry’s Constitutional Right to Due Process

McGarry argues the courts have subject-matter jurisdiction to decide whether

Besselman and other unnamed members of the Fund’s board of trustees acted

beyond their authority by denying her constitutional right to due process. She makes

arguments as to both procedural and substantive due process.

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 In terms of procedural due process, McGarry argues that the board violated

her rights by refusing to process her application for benefits instead of processing

and denying her application. In doing so, the board effectively afforded her no

meaningful opportunity to have her claim heard. Thus, at a minimum, McGarry

maintains, she is entitled to an order requiring the members of the board to process

her benefits application and make a decision on the merits, which would afford her

the right to seek judicial review afterward.

As to substantive due process, McGarry argues the board’s refusal to process

her benefits application deprived her of survivor’s benefits that rightfully belong to

her. According to McGarry, her late husband had a vested property right in his

pension benefits, which is now hers by way of survivorship as his widow through

their informal marriage. By denying McGarry’s vested property right, she maintains,

the board has violated her substantive due-process rights. Thus, she contends the

trial court could and should have made a final determination as to whether she is

entitled to survivor’s benefits as a widow.

Though the United States Constitution and Texas Constitution use somewhat

different language with respect to due process, the two are identical in substance.

Klumb, 458 S.W.3d at 14–15. Whether framed as a violation of procedural or

substantive due process, a constitutionally protected right must be a vested right—

one that amounts to more than a mere expectancy based on the anticipated

20
continuance of existing law. Id. at 15. As our Supreme Court has observed, the

members of public pension funds do not have vested property rights in benefits

because the Legislature may diminish or eliminate those benefits at any time. Id. at

15–17. For this reason, McGarry’s due-process claims are facially invalid, and

consequently cannot form the basis of a cognizable ultra vires claim against board

members that would give the trial court subject-matter jurisdiction. Id. at 17.

McGarry concedes the pension benefits at issue are “subject to the whim of

the Legislature,” but argues that she has a distinct vested contractual right, which the

board has disregarded by failing to process her application. She reasons that her late

husband and the Fund agreed “that whatever pension benefits he had would also

accrue to his qualified survivors,” like her. This agreement, she says, gives her a

vested contractual right, which the Fund cannot take away, even though the

Legislature could abolish the pension system.

McGarry does not cite any authority in support of this argument, and we have

not been able to find any supporting authority. Klumb is to the contrary: it stands for

the proposition that no one has a vested right of any kind in retirement or other

benefits administered by public pension funds. Id. at 15–17; see also Van Houten v.

City of Fort Worth, 827 F.3d 530, 539–40 (5th Cir. 2016) (rejecting claims asserted

under U.S. Constitution’s contracts and takings clauses on basis that Texans do not

have vested right to public pension benefits and observing that to extent any sort of

21
contractual right to benefits existed, this right was subject and subordinate to

Legislature’s unqualified right to amend, modify, or repeal public pension system).

Nonetheless, if we disregard the due-process label McGarry has affixed to her

procedural argument and instead focus on the argument’s substance, she does state

a viable ultra vires claim to the extent that she maintains Besselman and other

unnamed board members have deprived her of her statutory right to judicial review

of an adverse benefits decision by the expedient of not making a benefits decision.

McGarry filed the present suit as a declaratory-judgment action, not as an

appeal from the board’s (nonexistent) administrative decision denying her survivor’s

benefits. It is undisputed that the board of trustees refused to process or consider

McGarry’s benefits application on the ground that she has not submitted satisfactory

proof that she qualifies as an eligible spouse, rather than considering and denying

her application on the ground that she has not proved she is an eligible spouse. By

refusing to act on her application, rather than denying it, Besselman and the other

board members have attempted to thwart McGarry’s statutory right of judicial

review.

Under the Fund’s enabling statute, members eligible for retirement or who

have a disability claim and their beneficiaries have the right to appeal to a district

court from a decision by the board rejecting a benefits claim. TEX. CIV. STAT. art.

6243e.2(1), § 12(a). If the board could circumvent these legislatively granted

22
appellate rights by refusing to process benefits applications, rather than processing

these applications and denying them, the statute’s provision guaranteeing judicial

review would be a dead letter. That the board must act on applications is confirmed

elsewhere in the enabling statute, which states the board “shall hear and determine

applications for retirement and claims for disability and designate the beneficiaries

or persons entitled to participate.” Id. § 2(k). Thus, McGarry is entitled to a decision.

The board members’ failure to act on her application for benefits and render a

decision on the application constitutes a cognizable basis for an ultra vires claim.

See Phillips v. McNeill, 635 S.W.3d 620, 627–30 (Tex. 2021) (statute gave party

right to hearing and failure to docket one thus gave rise to ultra vires claim).

Violation of McGarry’s Constitutional Right to Equal Protection

McGarry argues the courts have subject-matter jurisdiction to decide whether

Besselman and other unnamed members of the Fund’s board of trustees acted

beyond their authority by denying her equal-protection rights.

Though the United States Constitution and Texas Constitution use somewhat

different language with respect to equal protection, the two provisions are

sufficiently similar as to require the same general kind of analysis. See Fort Worth

Osteopathic Hosp. v. Reese, 148 S.W.3d 94, 97–98 (Tex. 2004) (stating that both

guarantees require similar analysis and treating both as requiring same outcome,

given that party did not argue that Texas’s guarantee was broader or different).

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 To state a viable equal-protection claim, McGarry must show that she has

been treated differently from others similarly situated. Klumb, 458 S.W.3d at 13.

McGarry argues she has been treated differently from others similarly

situated, asserting that because the enabling statute makes “no distinction between

formal and informal marriages,” both “are entitled to equal treatment.” Thus, she

maintains, the board’s adoption of a “brand new requirement that a judgment be

submitted to the Fund during the member’s lifetime” violates her right to equal

protection by treating ceremonial and informal marriages differently.

We reject McGarry’s contention that simply distinguishing between

ceremonial and informal marriage could violate her right to equal protection. The

constitutional guarantee of equal protection does not require governmental actors to

treat all persons or classes of persons alike heedless of their differences; rather, it

“keeps governmental decisionmakers from treating differently persons who are in

all relevant respects alike.” In re Nestle USA, 387 S.W.3d 610, 624 (Tex. 2012).

Ceremonial and informal marriage are not alike in all relevant respects.

Proving the existence of an informal marriage invariably requires evidence different

from that required to prove a ceremonial marriage because an informal marriage is

one in which the requisites of ceremonial marriage were not observed. See FAM.

§§ 2.401(a), 2.402 (setting forth distinct evidentiary requirements for proving

existence of informal marriage). Thus, the Fund’s revised policies and procedures

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are not constitutionally suspect simply because they distinguish between ceremonial

and informal marriages, imposing certain evidentiary requirements on the latter but

not the former. See Dannelley v. Almond as Next Friend of Almond, 827 S.W.2d 582,

585–86 (Tex. App.—Houston [14th Dist.] 1992, no writ) (rejecting arguments that

distinction between ceremonial and common-law marriage was suspect

classification subject to heightened scrutiny and that all persons married

ceremonially and informally are alike and should be treated same by law). And

consequently, McGarry’s equal-protection argument is facially invalid and therefore

inadequate to state a cognizable ultra vires claim against members of the board.

Violation of McGarry’s Fundamental Marriage Rights

McGarry argues the courts have subject-matter jurisdiction to decide whether

Besselman and other unnamed members of the Fund’s board of trustees acted

beyond their authority by adopting policies and procedures that deprived her of

fundamental marriage rights that are constitutionally guaranteed. She maintains that

by adopting the revised policies and procedures as to the evidence required to prove

an informal marriage after she submitted her application for survivor’s benefits, the

board is refusing to recognize an existing court judgment establishing that she was

informally married to her late husband.

The Fund and the other two defendants deny that a fundamental right is at

stake, arguing that the right to marriage is not implicated here because the board’s

25
revised policies and procedures did not bar McGarry from marrying. According to

the defendants, McGarry’s invocation of marriage rights is mere window dressing,

and the parties’ real dispute concerns whether McGarry is entitled to survivor’s

benefits, a dispute that cannot implicate fundamental marriage rights because no one

has such rights with respect to public benefits.

The United States Supreme Court has recognized that marriage is a

fundamental right based on the due-process and equal-protection clauses of the

United States Constitution. Obergefell v. Hodges, 576 U.S. 644, 672 (2015). In the

Court’s view, one of the principal considerations that makes marriage a fundamental

constitutional right is the way in which the states have made the institution of

marriage “a keystone of our social order” supported by a wide array of governmental

rights and benefits, including “the rights and benefits of survivors.” Id. at 669–70;

see also id. at 679 (identifying “public benefits” as “intertwined with marriage”).

So, while the Fund is correct that McGarry’s ultimate goal is to obtain

survivor’s benefits, we do not think this is dispositive of the issue immediately

before us. The dispute at hand concerns what McGarry must do to prove she was

informally married to James. The board’s failure to recognize she was informally

married to James, or to even consider the proof of informal marriage she submitted

with her application, is what led her to file this declaratory-judgment action.

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 We also agree with the Fund that not every public benefit for which marriage

is a criterion of eligibility is thereby transformed into a fundamental marriage right.

See, e.g., Califano v. Jobst, 434 U.S. 47, 53–54 (1977) (rule ending social security

benefits upon beneficiary’s marriage did not violate principal of equality embodied

in due process clause because rule did not try to interfere with right to marry). Nor

does the fundamental nature of the right to marry require that courts subject to

rigorous scrutiny every governmental rule that relates in any way to the incidents of

or prerequisites for marriage. Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

But the due-process and equal-protection clauses of the United States

Constitution guarantee more than just the literal right to marry. They also contain a

right of recognition: at the very least, a marriage recognized as valid by one

jurisdiction must be recognized as valid by others. See Obergefell, 576 U.S. at 680–

81 (holding that marriages validly entered out of state must be recognized by states

that would not recognize their validity and disapproving of recognition bans).

Here, the Fund’s revised policies and procedures on informal marriage operate

somewhat akin to a recognition ban. It is undisputed that a Montgomery County

court at law recognized the validity of McGarry’s informal marriage and that the

county court at law did so before the Fund’s board adopted its revised policies and

procedures. Indeed, McGarry had applied to the Fund for survivor’s benefits,

27
submitting the court’s judgment recognizing the validity of her informal marriage

with her application, before the board adopted its revised policies and procedures.

Of course, the prior county court at law judgment does not have preclusive

effect in the Fund’s proceedings. See Est. of Howard, 543 S.W.3d 397, 403 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied) (judgment entered in heirship

proceeding that recognized informal marriage had no preclusive effect in wrongful-

death suit because defendant was not in privity with party to heirship proceeding).

But the Fund’s revised policies and procedures do not just decline to accord that

judgment preclusive effect, they bar any consideration of the judgment or the

evidence supporting it. Indeed, these revised policies and procedures bar McGarry

from offering any proof whatsoever of the validity of her informal marriage—and

thus prevent her from even trying to establish eligibility for benefits—because they

require that different proof—a declaration of informal marriage or a district-court

judgment recognizing the marriage—be submitted before a member’s death. In sum,

because James is already dead, McGarry can never satisfy this proof requirement.

The question is not whether the Fund’s board of trustees can adopt policies

and procedures as to the terms on which it will recognize informal marriages. As we

have already said, it can. See TEX. CIV. STAT. art. 6243e.2(1), § 2(p)(1)–(3), (5).

Nor do we necessarily question whether the Fund may require members and

their beneficiaries to submit proof of an informal marriage before a member’s death

28
without running afoul of fundamental marriage rights. With respect to at least one

other public pension fund, the Legislature has explicitly limited proof of informal

marriage to duly recorded declarations of informal marriage made in compliance

with the Family Code. See TEX. CIV. STAT. art. 6243e.1, § 1.02(13). Because the

Family Code requires both spouses to sign such declarations, that statute necessarily

requires an informal marriage to be proved before a member’s death, even though it

does not require that the declaration be filed with the pension fund beforehand. See

FAM. §§ 2.401(a)(1), 2.402(a), (b)(6) (requiring parties’ signatures). Such proof

requirements serve the obvious purpose of counteracting the lack of public records

documenting the existence of informal marriages and thereby protecting public

pension funds from spurious benefits claims made after members are dead.

But can the Fund’s board not only adopt but also apply policies and

procedures of this kind to an ostensible beneficiary’s claim for survivor’s benefits

after the member has died and the benefits application is already on file without

violating the applicant’s fundamental marriage rights? No, because under these

circumstances the ostensible beneficiary is deprived of any opportunity to prove that

she was informally married to the deceased member by policies and procedures of

which neither one had notice and with which neither one had a chance to comply.

In this regard, we draw guidance from our sister court’s Dannelley decision.

In that case, an intervenor in a paternity suit sought to prove that she had previously

29
been informally married to the now deceased father. 827 S.W.2d at 583–84. But her

alleged informal marriage to the deceased had admittedly ended more than a year

beforehand, and a statute of limitations that has since been repealed required that

any claim of informal marriage had to be made within one year of the relationship’s

end. Id. So, the trial court held she had no standing to intervene. Id.

On appeal, the would-be intervenor asserted that the statute of limitations was

unconstitutional, in part because it violated her equal-protection rights by allowing

a ceremonial marriage to be proved after the one-year period but not an informal

one. Id. at 585. The court of appeals disagreed, holding that no fundamental right or

suspect class was implicated by the one-year statute of limitations, and that the

legislature could rationally treat ceremonial and informal marriages differently in

this context due to the lack of public-record proof associated with the latter. Id. at

585–86. But the court of appeals noted in its opinion that the statute of limitations

did not completely deprive the intervenor of the right to prove that she had been

informally married to the decedent and also that she had not offered any explanation

as to why she had not complied with the one-year limitations period. Id. at 585.

In contrast, the revised policies and procedures at issue in this appeal do

completely deprive McGarry of any opportunity to prove she was informally married

to James, at least for purposes of benefits proceedings before the Fund. Moreover,

McGarry has explained why she did not comply with these policies and procedures:

30
they did not exist before James died and she applied for benefits. And she did

successfully assert that she had been informally married to James in an heirship

proceeding before the Fund’s board adopted its revised policies and procedures.

On this record, we cannot say that McGarry’s claim that the board acted

beyond its authority by disregarding her fundamental constitutional marriage rights

is facially invalid. Because her claim is not facially invalid, it is not subject to

dismissal for lack of subject-matter jurisdiction on a plea to the jurisdiction. See

Klumb, 458 S.W.3d at 13 (suits to vindicate constitutional rights not barred by

sovereign immunity, so long as constitutional claims are not facially invalid).

Constitutionality of the Fund’s Enabling Statute

Finally, McGarry argues that to the extent the Fund’s enabling statute

empowers or authorizes the Fund, Besselman, or the board of trustees to act as they

have in this proceeding, she challenges the constitutionality of the enabling statute

itself. She argues the Fund lacks governmental immunity as to this claim as well.

We agree that a governmental entity, like the Fund, does not have immunity

from a suit challenging the constitutional validity of a statute due to the waiver of

immunity in the Declaratory Judgments Act. See Patel, 469 S.W.3d at 75–77

(Declaratory Judgments Act waives governmental entity’s immunity from suit when

plaintiff challenges constitutionality of statute and seeks only equitable relief).

However, we note the Attorney General’s absence from this proceeding. On

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remand, we therefore direct McGarry to file the required form notifying the Attorney

General of her challenge of the statute’s constitutionality. See TEX. GOV’T CODE

§ 402.010(a) (requiring party who claims statute is unconstitutional to file form with

trial court, which must then notify Attorney General of constitutional challenge).

Defendants’ Jurisdictional Counterarguments

The Fund and the other two defendants make two jurisdictional

counterarguments. First, they argue that all of McGarry’s ultra vires claims are

invalid because she does not assert them against the specific board members who

allegedly violated her rights. Second, they argue that until the Fund has made a final

benefits decision, it has exclusive jurisdiction that displaces any judicial challenge.

As to the first counterargument, we agree that a plaintiff must assert ultra vires

claims against individual government officers in their official capacity, rather than

against the governmental entity that employs them or any of its subdivisions. See

Sefzik, 355 S.W.3d at 621 (proper defendant is state official); Heinrich, 284 S.W.3d

at 377 (suit must be against appropriate officials acting in official capacity). But

McGarry has sued Besselman, who is the chairman of the Fund’s board of trustees.

And even if she should sue other board members in addition to or instead of

Besselman, this failing is a jurisdictional defect that can be cured by repleading.

When, as here, a jurisdictional defect is not incurable, dismissal is improper. See

Dohlen, 643 S.W.3d at 397. Therefore, this argument does not support dismissal.

32
 As to the second counterargument, we agree that the Fund has exclusive

jurisdiction over benefits claims while a benefits application is pending before it.

See Ferrell, 248 S.W.3d at 157 (when Legislature gives administrative entity, like

municipal pension system, sole authority to make initial decision on issue, entity has

exclusive jurisdiction over issue); Williams, 121 S.W.3d at 427–29 (recognizing that

Fund is administrative entity with exclusive jurisdiction). Because applicants must

exhaust their administrative remedies before seeking judicial review, the Fund’s

exclusive jurisdiction bars lawsuits challenging its benefits decisions until the Fund

has made an appealable decision. See Ferrell, 248 S.W.3d at 157 (trial court lacks

jurisdiction when plaintiff has not exhausted administrative remedies).

But this is not an appeal from a benefits decision, final or otherwise. The Fund

has not denied McGarry’s application for benefits; it has refused to process her

application altogether. McGarry’s suit is one for declaratory judgment, in which she

asserts that Besselman and other unnamed board members have exceeded their

statutory or constitutional authority by refusing to process her benefits application

based on proof requirements as to informal marriage that are impossible for her to

satisfy and that were imposed only after she applied. She also claims the Fund’s

enabling statute is unconstitutional to the extent that it authorizes the board

members’ refusal to act on her application under these circumstances. The Fund’s

exclusive jurisdiction does not apply to McGarry’s ultra vires claims or her

33
challenge to the constitutionality of the Fund’s enabling statute. See Williams, 427–

33 (holding benefits claim was barred by Fund’s exclusive jurisdiction but reviewing

applicant’s constitutional claims, including ultra vires claims, on merits).

CONCLUSION

We conclude that the trial court erred in holding that it lacked subject-matter

jurisdiction to hear McGarry’s declaratory-judgment action. In particular, we hold:

(1) the trial court has jurisdiction to hear McGarry’s claim that Besselman, or
other relevant board members should she join them, acted beyond his
authority by refusing to process and render a decision granting or denying
her application for survivor’s benefits;

(2) the trial court has jurisdiction to hear McGarry’s claim that Besselman, or
other relevant board members should she join them, acted beyond his
authority by applying the revised policies and procedures concerning
proof of an informal marriage to her application for benefits; and

(3) the trial court has jurisdiction to hear McGarry’s claim that the Fund’s
enabling statute is unconstitutional to the extent it authorizes Besselman
and any other relevant board members to refuse to process her application
or apply the revised policies and procedures to her application for benefits.

Accordingly, we reverse the trial court’s judgment granting the jurisdictional

pleas of the Fund, its board of trustees, and Besselman in his official capacity as

chairman of the board of trustees. We remand this cause to the trial court for further

proceedings consistent with our opinion.

Gordon Goodman
Justice

Panel consists of Justices Goodman, Hightower, and Guerra.
34