Anna Dickson, Individually and on Behalf of All Others Similarly Situated v. American General Life Insurance Company

Supreme Court of Texas
══════════
No. 22-0730
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Anna Dickson, Individually and on
Behalf of All Others Similarly Situated,
Petitioner,

v.

American General Life Insurance Company,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Ninth District of Texas
═══════════════════════════════════════

JUSTICE YOUNG, concurring in the denial of the petition for review.

Respondent American General Life Insurance Company challenged
the trial court’s interlocutory class-certification order and raised two
issues on appeal—one concerning jurisdiction and the other concerning
the merits. The court of appeals bypassed the jurisdictional issue and
reversed the trial court’s order on the merits. The court explained that
while private litigants like American General have a statutory right to
immediately appeal Rule 42 class-certification orders, it was “not aware
of any statute giving a private litigant . . . the right to file an interlocutory
appeal from a ruling on a plea to the jurisdiction.” 2022 WL 2719633, at
*5 (Tex. App.—Beaumont July 14, 2022) (citing Tex. Civ. Prac. & Rem.
Code § 51.014). From that premise it reached this result: “We conclude
that we lack jurisdiction to consider the arguments American General
raises in its [jurisdictional] issue.” Id.
That conclusion was error—serious error. The correct premise
was this one: “Courts always have jurisdiction to determine their own
jurisdiction.” Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151,
158 (Tex. 2007) (emphasis added). And that principle goes further for an
appellate court, which “always has jurisdiction to determine its own, and
the lower courts’, jurisdiction.” Abbott v. Mexican Am. Legis. Caucus, 647
S.W.3d 681, 699 (Tex. 2022) (emphasis added). That foundational
premise of judicial authority means that a court—especially an appellate
court—is never right to think that it is empowered to reach a merits
question but forbidden from resolving an antecedent jurisdictional dispute.
So courts never lack jurisdiction—that is, power and authority—to
resolve challenges to subject-matter jurisdiction. They also have the
obligation to do so. Subject-matter jurisdiction is perhaps the one thing
that courts must always address when contested or otherwise in doubt.
After all, courts “may not assume jurisdiction for the purpose of deciding
the merits of the case.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (citing Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94 (1998)). If an appeal on the merits is properly pending before
an appellate court (like an interlocutory appeal of a class-certification
order), therefore, that court needs no separate procedural vehicle (like an
appealable denial of a plea to the jurisdiction) before it can and must first

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discharge its duty to ensure its own jurisdiction. The order of operations
is not optional. Resolving the merits and then addressing a justiciability
challenge is no better than planning to cook a plate of spaghetti only after
eating it. The results are equally grotesque in either scenario.
Whether a challenge to subject-matter jurisdiction is well-founded,
of course, is a wholly different matter. My chief point today is to
emphasize that courts must resolve any jurisdictional challenges—hard
or easy, first raised in the trial court or first raised in the court of appeals,
raised by a party or raised by the court itself—before turning to the
merits. Sometimes a jurisdictional challenge is easily resolved, like the
one in this case. The court of appeals did have the authority to reach the
merits question because American General’s jurisdictional objections,
while made in good faith, are mistaken.
It would be appropriate for us to reverse and remand for the court
of appeals to reach that jurisdictional question in the first instance, as it
should have done all along. I instead concur in the denial of the petition
for review so that I can emphasize the essential order of operations for
the future yet allow this case to come to its inevitable end.

I

Dickson sued American General for allegedly withholding interest
due on a significant number of life-insurance policies. She later amended
her pleadings to assert claims on behalf of a putative class. In the sixth
amended petition (the live pleading), Dickson asserted equitable claims
of money had and received and unjust enrichment. American General, in
turn, challenged her claims on two grounds. First, in a plea to the
jurisdiction, American General argued that the trial court lacked subject-

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matter jurisdiction because Dickson was essentially seeking a declaration
of unconstitutionality of an Insurance Code provision but failed to join
the Insurance Commissioner as a necessary and indispensable party.1
See Tex. R. Civ. P. 39. Second, in response to the class-certification
motion, American General reiterated its argument that the court lacked
subject-matter jurisdiction and also argued that the nature of Dickson’s
equitable claims, along with the factual variations attending each
putative class member’s policy, were unsuitable for class-wide litigation
and thus could not satisfy Rule 42’s predominance requirement. See Tex.
R. Civ. P. 42(b)(3).
The record does not show that the trial court ever expressly ruled
on American General’s plea to the jurisdiction, but the court did hold a
hearing on the class-certification motion, which it granted months later.2
American General then exercised its statutory right to appeal that
interlocutory order under § 51.014(a)(3) of the Civil Practice and
Remedies Code. American General maintained its position that class
certification was improper under Rule 42’s predominance requirement.
Importantly, though, American General also argued on appeal, as it had

1 As American General points out in its briefing, Dickson had indeed
raised a question of constitutionality more expressly before dropping it in the
live pleading.
2 A trial court, of course, is bound by the same jurisdictional principles
that bind all courts. Thus, it is impermissible to ignore a challenge to its subject-
matter jurisdiction and proceed to any merits decision. A trial court that reaches
a merits issue implicitly denies a plea to the jurisdiction. See Thomas v. Long,
207 S.W.3d 334, 339–40 (Tex. 2006) (holding that a trial court’s merits ruling
constituted an implicit denial of a jurisdictional challenge). One reason for this
principle is that no court of this State should be presumed to undertake the
unlawful and ultra vires action of reaching a merits issue without resolving a
contested issue of jurisdiction.

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previously in its plea to the jurisdiction and its response to the class-
certification motion, that the trial court lacked subject-matter jurisdiction
because of Dickson’s failure to join the Insurance Commissioner in the suit.
The court of appeals did not reject American General’s
jurisdictional challenge. The court instead determined that it lacked
authority to consider it at all. “[E]ven had the trial court ruled on the
plea,” the court reasoned, “we are not aware of any statute giving a
private litigant . . . the right to file an interlocutory appeal from a ruling
on a plea to the jurisdiction.” 2022 WL 2719633, at *5 (citing Tex. Civ.
Prac. & Rem. Code § 51.014). So “[w]e conclude,” the court said, “that we
lack jurisdiction to consider the arguments American General raises in
its first issue [i.e., its jurisdictional challenge].” Id. (citing Tex. R. App. P.
42.3). The court of appeals proceeded to consider American General’s
second issue—whether the proposed class met Rule 42’s predominance
requirement. It found American General’s merits arguments persuasive
and reversed the certification order on that ground. See id. at *6–9.

II

I start by emphasizing that the court of appeals was properly
attentive to the importance of jurisdiction. That court commendably
recognized the need to avoid exceeding its jurisdictional scope. See id. at
*5. Ironically enough, a court less concerned about jurisdiction may have
reached American General’s jurisdictional objection. The problem,
therefore, is only that the court of appeals got it backwards by concluding
that it had jurisdiction to consider the merits but not to consider subject-
matter jurisdiction. Getting that matter right is among the most
important things any court can do, which prompts my separate writing.

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A

First, American General was right to raise its jurisdictional
challenge before the court of appeals. Every party has a duty to the court
to raise any potential defects in its (or a lower court’s) subject-matter
jurisdiction whenever a jurisdictional doubt arises. This obligation is part
of the duty of an officer of the court—it helps protect the tribunal from
undertaking objectively unauthorized action, the avoidance of which lies
at the heart of any tribunal’s legitimacy.3 Said differently, subject-matter
jurisdiction is not merely another litigation tool that parties may deploy
(or not) when convenient. A dismissal for lack of jurisdiction may benefit
one side or another, but such a result is adventitious. Subject-matter
jurisdiction is wholly collateral to the parties’ interests—if it is lacking,

3 See, e.g., I.L. v. Alabama, 739 F.3d 1273, 1284 n.6 (11th Cir. 2014) (“We
remind counsel that, as officers of the court, they have a duty to raise alleged
defects in subject-matter jurisdiction when they first become apparent, not
merely when doing so becomes strategically expedient.” (citing Aves ex rel. Aves
v. Shah, 997 F.2d 762, 767 (10th Cir. 1993)); see also Bd. of License Comm’rs of
Town of Tiverton v. Pastore, 469 U.S. 238, 240 (1985) (per curiam) (reminding
“counsel that they have a ‘continuing duty to inform the Court of any
development which may conceivably affect the outcome’ of the litigation”
(quoting Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J.,
concurring))); First Nat’l Bank of Chi. v. A.M. Castle & Co. Emp. Tr., 180 F.3d
814, 819 (7th Cir. 1999) (pointing out that “a lawyer (and his client) cannot be
sanctioned directly or indirectly for performing his duty as an officer of the court
of apprising the court that it is acting beyond its jurisdiction; the lawyer has an
ethical duty to do that”); Richmond v. Chater, 94 F.3d 263, 267 (7th Cir. 1996)
(noting that “lawyers violate their duty as officers of the court when they agree
to suppress their doubts about the court’s jurisdiction”); Missouri ex rel. Nixon
v. Craig, 163 F.3d 482, 484 n.3 (8th Cir. 1998) (“The mootness doctrine is of such
importance that ‘[i]t is the duty of counsel to bring to the federal tribunal’s
attention, ‘without delay,’ facts that may raise a question of mootness.’ ”
(emphasis in original) (quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43,
68 n.23 (1997)).

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even their joint agreement to the contrary is unavailing. Parties cannot
“waive” subject-matter jurisdiction because, unlike arguments or claims
or affirmative defenses, it is not theirs. Subject-matter jurisdiction
protects the courts and the public by ensuring that judges do not assume
power—even inadvertently or about seemingly trivial matters—that does
not belong to them. For the same reason, courts not only may but should
raise jurisdictional doubts sua sponte. Parties that hide a plausible
jurisdictional objection are no friends of the court.
All these points are summed up with the truism that subject-matter
jurisdiction is no mere technicality but constitutes the indispensable core
of judicial power itself. “Jurisdiction is power to declare the law,” the U.S.
Supreme Court has said, “and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the
cause.” Ex parte McCardle, 7 Wall. 506, 514 (1868); see also Fin. Comm’n
of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem,
549 U.S. at 431). “Were the . . . courts merely publicly funded forums for
the ventilation of public grievances or the refinement of jurisprudential
understanding,” jurisdictional limitations would be unnecessary. Cf.
Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 473 (1982). But such limitations on the courts’
power are necessary to prevent “the conversion of courts . . . into judicial
versions of college debating forums.” Id. A jurisdictional inquiry is thus
different in kind from, and necessarily precedes, any inquiry into the
merits: “Subject-matter jurisdiction determines only whether a court has
the power to entertain a particular claim—a condition precedent to
reaching the merits of a legal dispute.” Haywood v. Drown, 556 U.S. 729,

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755 (2009) (Thomas, J., dissenting).
The jurisdictional inquiry therefore cannot be put off pending any
merits decision; jurisdiction is needed “to entertain” the claim at all and
at any point. “I’ll examine jurisdiction later—let’s resolve the merits first”
is as incoherent for a judge as “I’ll fill up when we get to Texas—let’s get
on the highway” would be for a motorist leaving California in a car with
an empty tank. Any “ruling on the merits,” not just a final judgment,
implicates this jurisdictional barrier. Brownback v. King, 592 U.S. 209,
218 (2021) (citing Steel Co., 523 U.S. at 101–02). This concept is ancient,
not novel. See, e.g., Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379,
382 (1884) (describing rules of subject-matter jurisdiction as “inflexible
and without exception” because they “spring[] from the nature and limits
of the judicial power”); Steel Co., 523 U.S. at 94–95 (1998) (same). We
have reiterated—and described as a “fundamental rule”—that a “court
may not reach the merits if it finds a single valid basis to defeat
jurisdiction.” Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex.
2023). The “fundamental” descriptor is well warranted because the only
real power a court possesses—the power of judgment—cannot be
exercised without jurisdiction. Id. at 867; see also, e.g., William Baude,
The Judgment Power, 96 Geo. L.J. 1807, 1808, 1833 (2008) (arguing that
the president “must treat unjurisdictional judgments as if they were no
judgment at all”).
The last thing that any court should want is a party’s hesitation in
raising a good-faith jurisdictional objection. No special pleading device is
needed to do so, and courts should welcome rather than resist efforts to
ensure that the judiciary is empowered to step into the merits.

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B

Second, the foregoing discussion makes clear why the doctrine of
“hypothetical jurisdiction”—that is, assuming the presence of jurisdiction
and then proceeding to the merits—is not just imprudent but unlawful.
See, e.g., Steel Co., 523 U.S. at 93–94, 101. Assuming rather than
establishing jurisdiction represents indifference to judicial intrusion into
areas that do not belong to the judiciary under our constitutions and laws.
My assuming that your bank account is mine and my subsequent use of
your money would represent indifference to your property rights—to say
nothing of the law—in quite a similar way. Law-abiding (or at least
responsible) people ensure that the money they treat as theirs actually is
theirs—they do not just hope it turns out that way in the end. For the
judiciary in particular, certainty before action is fundamental to our
constitutional limitations, which is why courts may not “resolve contested
questions of law when [their] jurisdiction is in doubt.” Id. at 101
(emphasis added). Only after that doubt is dispelled may a court proceed,
regardless of how the court would rule on the merits.4
Consider what it would mean for courts to act in conscious
disregard of their authority (and authority, again, is what jurisdiction is).
I can hardly say it better than Justice Blacklock: “A court that carelessly
exceeds the constitutional boundaries on its own power can hardly claim
the authority to determine whether another co-equal branch of

4 Assuming jurisdiction may seem harmless if the court will just reject
a claim on the merits—but any merits ruling is an unauthorized exercise of
judicial power unless jurisdiction is established. As Justice Scalia put it for
the Supreme Court: “Hypothetical jurisdiction produces nothing more than a
hypothetical judgment—which comes to the same thing as an advisory opinion,
disapproved by this Court from the beginning.” Steel Co., 523 U.S. at 101.

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government has done the same.” In re Hotze, 627 S.W.3d 642, 646 (Tex.
2020) (Blacklock, J., concurring). Partly because courts must be neutral
arbiters when they subject other governmental actors to scrutiny for
allegedly ultra vires conduct, it is essential for courts to keep the mirror
handy. Whether the underlying issue is of societal import or of
comparative insignificance, “a court cannot issue a ruling on the merits
‘when it has no jurisdiction’ because ‘to do so is, by very definition, for a
court to act ultra vires.’ ” Brownback, 592 U.S. at 218 (quoting Steel Co.,
523 U.S. at 101–02).

C

Third, it follows that the court of appeals was wrong to disregard
the pending subject-matter-jurisdiction challenge when reviewing the
district court’s class-certification order. The court of appeals’ stated
reason was the non-appealability of the trial court’s denial of American
General’s plea to the jurisdiction. That rationale is immaterial because
there was a different basis for the appeal—the authorized appeal of a
grant of class certification.
It would have been different if the trial court’s only ruling had been
to deny the plea to the jurisdiction. In non-governmental cases, the denial
of a plea to the jurisdiction does not itself confer appellate jurisdiction.
See Tex. Civ. Prac. & Rem. Code § 51.014. When a trial court denies a
plea to the jurisdiction, that court has confirmed its own jurisdiction.
That confirmation may turn out to be erroneous, but once a court resolves
any jurisdictional challenges, it is not lawless but instead mandatory to
proceed to the merits.
But when such a case generates an appeal—any appeal—the

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appellate court cannot proceed to a merits issue without first addressing
any challenge to subject-matter jurisdiction. Statutory interlocutory
jurisdiction may be part of that question but would by no means be all of
it. As this Court observed in McAllen Medical Center, Inc. v. Cortez, “the
interlocutory appeal statute does not supplant the constitutional
requirement that the court of appeals have subject-matter jurisdiction.”
66 S.W.3d 227, 231 (Tex. 2001). We repeated that admonition in Rusk
State Hospital v. Black and added that it would “violate constitutional
principles” for “appellate courts to address the merits of cases without
regard to whether the courts have jurisdiction.” 392 S.W.3d 88, 94–95
(Tex. 2012). Indeed, any such opinion would be “advisory” and beyond
the power granted to courts by the Texas Constitution. Id. at 95 (first
citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000); and then citing Tex. Const. art. IV, §§ 1, 22). Thus, if subject-
matter jurisdiction is lacking for any reason—the lack of standing,
collusive litigation, mootness, whatever—the appellate court must
dismiss the appeal.
If a matter is truly one of subject-matter jurisdiction, a party (or
the court itself ) can raise it at any time that the case is properly pending.
Norwood, 418 S.W.3d at 580. If a party raises what it thinks is an
objection to subject-matter jurisdiction, the court cannot ignore it even if
the objection is mistaken. If the court rejects the jurisdictional challenge
on legal grounds, it may then proceed to the merits.

D

Fourth, I acknowledge that the line between “jurisdiction” and “the
merits” is not always clear-cut. The word “jurisdiction” itself is

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semantically overladen. “ ‘Jurisdiction,’ it has been observed, ‘is a word of
many, too many, meanings.’ ” Steel Co., 523 U.S. at 90 (quoting United
States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). This Court has
reiterated that point, including just last year. See Tex. Med. Res., LLP v.
Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 440 n.115 (Tex. 2023).
But we have never denied the distinction. In Molina, we observed
that the “integrity of that line [between jurisdictional and merits issues]
is fundamental to the working of the civil justice system because a court
without subject-matter jurisdiction cannot decide the case at all.” Id. at
440. If a party mistakenly claims a lack of subject-matter jurisdiction (as
American General does here), or mistakenly asserts the presence of
subject-matter jurisdiction (as happens repeatedly, such as in cases
asserting illusory standing), then, as in other cases, the judicial role is to
resolve the matter, not to let it pass by. “The judge’s job is to determine
and apply the law to individual cases, even if doing so is difficult.” In re
Abbott, 601 S.W.3d 802, 811 (Tex. 2020).5
Difficulties most frequently arise in truly exigent situations where
judicial intervention is urgent. When, for instance, relief is necessary to
prevent a matter from becoming moot (e.g., enjoining the demolition of a
building), a court of equity may issue temporary relief to preserve its
jurisdiction over the subject matter. See, e.g., City of Dallas v. Wright, 36
S.W.2d 973, 976 (Tex. 1931). This action is jurisdictionally sound because

5 For today’s purposes, there is no need to explore the niceties of the
dividing line. As a general matter, merits questions concern a party’s ability to
establish the elements of its claims or defenses, see, e.g., Am. Campus Cmtys.,
Inc. v. Berry, 667 S.W.3d 277, 282 (Tex. 2023), whereas jurisdictional questions
concern the court’s ability to hear and rule on those claims and defenses, see,
e.g., Sosa v. Alvarez–Machain, 542 U.S. 692, 714 (2004).

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it also preserves a court’s jurisdiction to decide its own jurisdiction—
which should be done as soon as possible to avoid the trap of resolving
merits questions when jurisdiction is lacking. As we have said on several
occasions, “[a] trial court ‘must determine at its earliest opportunity
whether it has the constitutional or statutory authority to decide the case
before allowing the litigation to proceed.’ ” See In re Lazy W Dist. No. 1,
493 S.W.3d 538, 544 (Tex. 2016) (quoting Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
No such exigent circumstances attend this appeal. This case did
not involve an emergency TRO, an impending election, or anything of the
sort. The court of appeals had the obligation to address any challenge to
its subject-matter jurisdiction before proceeding to the merits of the class-
certification order.

III

What, then, should we do about it?
As a general matter, this Court should rarely be the first court to
examine any issue presented to but not resolved by the court of appeals,
including jurisdictional issues. Each court has the duty to resolve its own
subject-matter jurisdiction, so it would be proper to reverse and remand
for the court of appeals to address any unaddressed challenge. If this
problem proliferates, I assume that the Court would do so.
I conclude, however, that in this instance it is proper just to deny
the petition for review. My independent assessment of American
General’s jurisdictional objection persuades me that the objection was not
well founded and that the court of appeals, had it reached the issue, would
have quickly rejected it and thus confirmed its own (and the trial court’s)

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subject-matter jurisdiction.6 That court, therefore, would inevitably have
had to address the merits of American General’s appeal. I agree with the
Court that there is no substantial basis for us to grant review of that
class-certification ruling. Rather than send the case back just to reinstate
the inexorable result, I concur in the denial of the petition for review.
But this case is not a mere one-off. I cautioned last term that a
court must not reach the merits of a dispute when its jurisdiction is in
doubt without first determining whether it has jurisdiction. See Tex. S.
Univ. v. Young, 682 S.W.3d 886, 887 (Tex. 2023) (Young, J.) (concurring
in the denial of petitions for review and for writ of mandamus). And as I
have explained at length today, the same is true for the courts of appeals.
Every court is obliged to determine its jurisdiction any time it is in doubt,
even when the parties have not challenged it. See Pike v. Tex. EMC

6 While it is true that Dickson may have challenged the constitutionality
of a provision in the Insurance Code initially, that challenge was never made
affirmatively, and in any event has since been dropped from the live pleading.
Dickson now asserts only equitable claims of money had and received and unjust
enrichment, neither of which relies on the unconstitutionality of the disputed
Insurance Code provision for their success. I thus fail to see how the Insurance
Commissioner would be a necessary and indispensable party to this lawsuit such
that his absence could deprive the courts of subject-matter jurisdiction even if
American General’s theory of subject-matter jurisdiction were correct. I have
some doubt about that premise, too, however. Dickson does not seem to dispute
that the Commissioner’s presence would be necessary if constitutional claims
had been affirmatively pleaded in the live pleading, but American General cites
no cases from this Court for the proposition that the Insurance Commissioner’s
absence would have affected subject-matter jurisdiction. Nor, for that matter,
does American General cite anything in the Insurance Code even requiring the
Commissioner’s presence in the event the constitutionality of a provision is
challenged. The legislature has created a notice requirement for the Attorney
General, see, e.g., Tex. Gov’t Code § 402.010, but it is not apparent from the
briefing or the record that a similar rule is at issue here. I take no position on
American General’s position—whether it is couched as a statutory or equitable
argument—but note only the sparse and conclusory premises that support it.

14
Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020); In re City of Dallas, 501
S.W.3d 71, 73 (Tex. 2016) (orig. proceeding). But it is perhaps most
obvious that the court must address a jurisdictional issue when the
parties do raise it, as they did here and in Young. And when a
jurisdictional issue is raised, a court should address it with alacrity.
Today we also deny the petition in No. 23-0632, Beaumont
Independent School District v. LRG-Loss Recovery Group, LLC. In that
case, BISD raised a jurisdictional argument in its reply brief in the court
of appeals, arguing that a contract was not properly executed because it
exceeded the scope of the superintendent’s delegated authority. Raising
an argument for the first time in reply is apt to cause some confusion—
an ordinary appellate issue raised only on reply, after all, may as well not
be raised at all. But “[c]ourts always have jurisdiction to determine their
own jurisdiction,” In re Lazy W, 493 S.W.3d at 544, and jurisdiction is not
an issue that belongs to any party, so jurisdiction cannot be forfeited or
waived. The court of appeals in BISD appeared to acknowledge as much,
yet ultimately failed to address the jurisdictional issue. See 2023 WL
3521936, at *4 (Tex. App.—Beaumont May 18, 2023); but see id. at *9.7
These cases, in short, are not alone.8

7 The school district later filed a plea to the jurisdiction, the trial court
ruled, and an interlocutory appeal is pending, so the jurisdictional issue has not
disappeared.
8 In another case, we recently granted a stay where, on the eve of trial,
the trial court refused to rule on the city’s pending plea to the jurisdiction. See
No. 24-0203, In re City of Houston. If moving to the merits stage amounts to
implicitly denying a plea to the jurisdiction, see supra note 2, then it is especially
improper for a governmental unit to be forced to trial, the ultimate merits
proceeding. After all, unlike a private party, a governmental unit may take an

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* * *
In the future, the lower courts should expressly resolve any
jurisdictional objections, whether complex or simple, before turning to any
merits issue. Had the trial court lacked subject-matter jurisdiction, it
should never have ruled on certification at all, and neither should the
court of appeals. The only judicial task would have been to dismiss the
case without opining about the mechanics of class certification at all. It
should never be assumed, therefore, that it is harmless to skip
jurisdiction because a higher court can later address it. The opposite is
true. On the premise that courts will comply with this duty, and with
these comments, I concur in denying the petition for review in this case.

Evan A. Young
Justice

OPINION FILED: September 6, 2024

interlocutory appeal. Whether its plea to the jurisdiction is granted or denied,
therefore, a trial before appellate review would be improper. The artifice of
simply refusing to rule on a jurisdictional objection is therefore especially
insufficient to justify trial proceedings in that context.

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