BHP Petroleum Co. v. Millard
In BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990), the plaintiff asserted breach-of-contract and tort claims, but did not assert any declaratory-judgment claim. See id. at 839 & n.3.
The BHP Petroleum court held that the defendant in that case stated a claim for affirmative relief under the Texas Declaratory Judgments Act that survived the plaintiff's nonsuit. See id. at 840-42.
The high court did not hold that a defendant may not counterclaim for a declaratory judgment that it is not liable for breach of a contract in response to the plaintiff's request for a declaratory judgment that the defendant breached the contract. See id.