Dianne Hensley v. State Commission on Judicial Conduct

Supreme Court of Texas

══════════

No. 22-1145

══════════

Dianne Hensley,

Petitioner,

v.

State Commission on Judicial Conduct et al.,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of Texas

═══════════════════════════════════════

Argued October 25, 2023

CHIEF JUSTICE HECHT delivered the opinion of the Court, in which

Justice Boyd, Justice Devine, Justice Blacklock, Justice Busby, Justice

Bland, Justice Huddle, and Justice Young joined.

Justice BLACKLOCK filed a concurring opinion, in which Justice

Devine joined.

Justice YOUNG filed a concurring opinion.

Justice LEHRMANN filed a dissenting opinion.

Judges, by their constitutionally mandated oath of office, 1 and to

promote public confidence in the integrity and impartiality of the

judiciary, must carefully and faithfully follow the law in all judicial

proceedings, irrespective of their purely personal views. 2 And while they

may have rights to hold and express personal views outside their judicial

duties, 3 their extra-judicial actions must not cast reasonable doubt on

their capacity to be equally fair to all. 4 Judges are subject to discipline

for violating these fundamental principles. 5 And the parties to a case

may move to recuse a judge who they believe cannot be fair. 6

1 See TEX. CONST. art. XVI, § 1(a) (“All elected and appointed officers,

before they enter upon the duties of their offices, shall take the following Oath

or Affirmation: ‘I, [name], do solemnly swear (or affirm), that I will faithfully

execute the duties of the office of [name office] of the State of Texas, and will

to the best of my ability preserve, protect, and defend the Constitution and

laws of the United States and of this State, so help me God.’”).

2 See TEX. CODE JUD. CONDUCT, Canon 2(A), reprinted in TEX. GOV’T

CODE ANN., tit. 2, subtit. G, app. C (“A judge shall comply with the law and

should act at all times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary.”). We refer to the provisions of the

Texas Code of Judicial Conduct as Canons.

3 See Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002)

(holding that “prohibiting candidates for judicial election from announcing

their views on disputed legal and political issues violates the First

Amendment”).

4 See TEX. CODE JUD. CONDUCT, Canon 4A (“A judge shall conduct all of

the judge’s extra-judicial activities so that they do not: (1) cast reasonable

doubt on the judge’s capacity to act impartially as a judge; or (2) interfere with

the proper performance of judicial duties.”).

5 See TEX. CONST. art. V, § 1-a; TEX. GOV’T CODE §§ 33.001-33.051.

6 See, e.g., TEX. R. CIV. P. 18a (motions to recuse); id. R. 18b(b) (“A judge

must recuse in any proceeding in which: (1) the judge’s impartiality might

reasonably be questioned; (2) the judge has a personal bias or prejudice

2

Petitioner, a justice of the peace, 7 is authorized by virtue of her

judicial office to officiate at wedding ceremonies 8 but not required to do

so as part of her judicial duties. She announced that because of her

religious beliefs she would not perform weddings for same-sex couples

but would refer them to others who would. No one in any case before her

moved to recuse her for that reason. But the State Commission on

Judicial Conduct 9 issued her a public warning (the Public Warning) “for

casting doubt on her capacity to act impartially to persons appearing

before her as a judge due to the person’s sexual orientation in violation

of Canon 4A(1) of the Texas Code of Judicial Conduct.” 10 She did not

concerning the subject matter or a party . . . .”); see also Caperton v. A.T.

Massey Coal Co., 556 U.S. 868, 872 (2009) (holding that there is a federal due

process right to recusal “when ‘the probability of actual bias on the part of the

judge or decisionmaker is too high to be constitutionally tolerable’” (quoting

Withrow v. Larkin, 421 U.S. 35, 47 (1975))).

7 A justice of the peace serves a county precinct. See TEX. CONST. art. V,

§ 18. Very generally, justice courts have civil jurisdiction over small claims

involving up to $20,000 and criminal jurisdiction over misdemeanors

punishable by fine only. See TEX. GOV’T CODE §§ 27.001-27.060. There are

around 800 justices of the peace in Texas. See Office of Court Administration,

ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY: FY 2022, at v (2023).

8 See TEX. FAM. CODE § 2.202(a)(4), (b) (authorizing “a current, former,

or retired federal judge or state judge”, as defined by Section 25.025 of the Tax

Code, to conduct a marriage ceremony); TEX. TAX CODE § 25.025 (a-1)(3)(c)

(‘“State judge’ means . . . a justice of the peace . . . .”).

9 See TEX. CONST. art. V, § 1-a(2); TEX. GOV’T CODE § 33.002(a-1) (“The

commission is an agency of the judicial branch of state government and

administers judicial discipline.”).

10 State Comm’n on Jud. Conduct, Public Warning: Honorable Dianne

Hensley, Justice of the Peace, Precinct 1, Place 1, Waco, McLennan County,

Texas, CJC No. 17-1572 (Nov. 12, 2019) https://www.scjc.texas.gov/media/

46780/hensley17-1572pubwarn111219.pdf.

3

avail herself of her right to appeal to a Special Court of Review (SCR) 11

but instead sued the Commission and its members and officers for

violating the Texas Religious Freedom Restoration Act (TRFRA) 12 and

her right to freedom of speech under Article I, Section 8 of the Texas

Constitution (the Free Speech Clause). 13 The trial court dismissed her

claims for want of jurisdiction, and the court of appeals affirmed. 14

We hold that, apart from one declaratory request against the

Commission, 15 petitioner’s suit is not barred by her decision not to

appeal the Commission’s Public Warning or by sovereign immunity.

Accordingly, we affirm the part of the court of appeals’ judgment

dismissing the one declaratory request for lack of jurisdiction, reverse

the remainder of the judgment, and remand to the court of appeals to

address the remaining issues on appeal.

11 See TEX. GOV’T CODE § 33.034.

12 TEX. CIV. PRAC. & REM. CODE §§ 110.001-110.012.

13 “Every person shall be at liberty to speak, write or publish his

opinions on any subject, being responsible for the abuse of that privilege; and

no law shall ever be passed curtailing the liberty of speech or of the press.”

TEX. CONST. art. I, § 8.

14 683 S.W.3d 152 (Tex. App.—Austin 2022).

15 Hensley’s requested declaration against the Commission (but not the

commissioners) that Canon 4A violates the Free Speech Clause is barred by

sovereign immunity, as discussed in Part III.C below.

4

I

A

Dianne Hensley was first elected justice of the peace in McLennan

County 16 in 2014 for a four-year term and has been re-elected twice

since. Upon taking office, Hensley began officiating marriage

ceremonies, as justices of the peace are authorized to do, charging

$100 for each. At the time, same-sex marriage was unlawful in Texas. 17

But in June 2015, the United States Supreme Court decided Obergefell

v. Hodges, holding that the U.S. Constitution “does not permit the State

to bar same-sex couples from marriage on the same terms as accorded

to couples of the opposite sex.” 18 Hensley believes—it is undisputed,

sincerely—that officiating a same-sex marriage would be inconsistent

with her religious faith. So she stopped officiating marriages altogether.

To her knowledge, so did all the judges in the county at the time.

Concerned that couples would lack access to a low-cost wedding, Hensley

decided to resume conducting weddings for opposite-sex couples and to

refer same-sex couples to others she and her staff identified in the area

as willing to perform the marriages for the same $100 fee she charged.

She prepared a form for her staff to hand out, which explained that she

did not perform same-sex weddings because of her religious beliefs and

provided contact information for others who would.

No one complained to Hensley, her staff, or the Commission about

16 McLennan County is in central Texas. Its estimated population is

268,583, and its county seat is Waco.

17 See TEX. CONST. art. I, § 32(a); TEX. FAM. CODE § 6.204(b).

18 576 U.S. 644, 680 (2015).

5

her marriage-referral system or her ability to be fair—or even her

appearance of fairness—in any judicial proceeding. Nevertheless, the

Commission learned of her system from an interview she gave a

newspaper and opened a preliminary investigation in May 2018. 19 After

Hensley responded to the Commission’s written questions about her

officiating practices and her reasons for declining to conduct same-sex

ceremonies, the Commission issued a tentative public warning in

January 2019, 20 concluding that she was violating Canon 3B(6), which

applies to conduct in the performance of judicial duties, 21 and Canon

4A(1), which applies to a judge’s extra-judicial conduct. 22

Rather than accept the warning, Hensley chose to challenge it in

a hearing before the Commission. 23 There she asserted that her speech

19 See TEX. CONST. art. V, § 1-a(7) (“The Commission shall keep itself

informed as fully as may be of circumstances relating to the misconduct or

disability of [judges] . . . and make such preliminary investigations as it may

determine.”).

20 The Commission may discipline a judge for “willful or persistent

conduct that is clearly inconsistent with the proper performance of his duties

or casts public discredit upon the judiciary or administration of justice.” Id.

§ 1-a(6)(A). Among other things, “the Commission may in its discretion issue a

private or public admonition, warning, reprimand, or requirement that the

person obtain additional training or education”. Id. § 1-a(8).

21 “A judge shall not, in the performance of judicial duties, by words or

conduct manifest bias or prejudice, including but not limited to bias or

prejudice based upon race, sex, religion, national origin, disability, age, sexual

orientation or socioeconomic status . . . .” TEX. CODE JUD. CONDUCT,

Canon 3B(6).

22 See supra note 4.

23 Under Rule 6 of the Commission’s procedural rules, the Commission

may offer a judge the opportunity to appear informally before the Commission

terminates its investigation. Evidence is limited to the judge’s testimony and

6

was protected by the Free Speech Clause and that the Commission’s

sanction infringed on her sincerely held religious beliefs in violation of

TRFRA. She had notified the Commission and its members and officers

in writing earlier, shortly after receiving the tentative warning, of her

constitutional and TRFRA claims. At the hearing in August

2019, Hensley testified that if any party who appeared in her court

expressed doubt about her impartiality based on her refusal to perform

same-sex marriages, she would recuse herself from that case. Hensley

stopped officiating weddings entirely around the time of the hearing,

concerned that the Commission would further sanction her.

Following the hearing, the Commission issued the final Public

Warning on November 12, 2019. The Public Warning found only a

violation of Canon 4A(1), concluding that Hensley’s referral system, an

extra-judicial activity, cast reasonable doubt on her capacity to act

impartially as a judge.

B

Hensley was entitled to appeal the Public Warning to an SCR

composed of three justices of the courts of appeals selected at random by

the Chief Justice of this Court. 24 A judge must file a written request for

an SCR within 30 days after the date the Commission issues its

decision. 25 Hensley did not do so.

documentary evidence, and the judge may be represented by counsel. Hensley

had three lawyers present at her hearing.

24 TEX. GOV’T CODE § 33.034(a).

25 Id. § 33.034(b).

7

Instead, on December 17, 2019, she sued the Commission and its

members and officers 26 in district court under TRFRA. TRFRA provides

that “a government agency may not substantially burden a person’s free

exercise of religion” unless it “demonstrates that the application of the

burden to the person: (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that

interest.” 27 This prohibition expressly applies to an agency “order” or

“decision”, like the Public Warning the Commission issued to Hensley. 28

TRFRA contains a waiver of sovereign immunity from a TRFRA

action. 29 A person who successfully establishes a violation is entitled to

recover declaratory relief, injunctive relief to prevent future violations,

and compensatory damages not to exceed $10,000, as well as attorney’s

fees and other expenses incurred in bringing the action. 30

Hensley asserts that the Commission violated TRFRA by its

investigation, Public Warning, and threat of future discipline if she

persists in using her referral system and declining to perform same-sex

marriages. She seeks damages for her lost income in not being able to

perform opposite-sex weddings, declaratory relief under TRFRA, and

injunctive relief prohibiting the Commission from further sanctioning

26 We refer to the defendants collectively as the Commission unless the

context or an express statement indicates otherwise.

27 TEX. CIV. PRAC. & REM. CODE § 110.003(a)-(b).

28 Id. § 110.002(a).

29 See id. § 110.008(a) (“Subject to Section 110.006, sovereign immunity

to suit and from liability is waived and abolished to the extent of liability

created by Section 110.005 . . . .”).

30 Id. § 110.005(a)-(b).

8

her speech and conduct. She also seeks several declarations under the

Uniform Declaratory Judgments Act (UDJA) against both the

Commission and the commissioners, among them that: (1) the

Commission’s interpretation and application of Canon 4A(1) violates the

Free Speech Clause; (2) the officiating of weddings is not a judicial ‘duty’

under Canon 3B(6); and (3) her referral system does not violate

Article V, Section 1-a(6)(A) of the Texas Constitution. 31 Hensley also

contends that the commissioners acted ultra vires and are therefore not

protected by sovereign immunity. Hensley does not seek any form of

relief that would require the Commission to reverse the Public Warning

or take it down from its website.

The Commission filed a plea to the jurisdiction. It asserts, first,

that Hensley’s claims are an impermissible collateral attack on the

Public Warning barred by her failure to exhaust her administrative

remedies by not appealing it to the SCR—the exclusive forum provided

by the Legislature for appeals from Commission warnings. Second, the

Commission contends that Hensley’s claims are barred by sovereign

immunity for four reasons: (1) TRFRA’s waiver of sovereign immunity

does not apply because Hensley failed to strictly comply with TRFRA’s

notice requirement, 32 which functions as a jurisdictional requirement in

31 This provision authorizes a sanction for “willful or persistent conduct

that is clearly inconsistent with the proper performance of his duties or casts

public discredit upon the judiciary or administration of justice.” TEX. CONST.

art. V, § 1-a(6)(A).

32 TEX. CIV. PRAC. & REM. CODE § 110.006.

9

all suits against a governmental entity; 33 (2) the Commission has special

immunity under Section 33.006 of the Texas Government Code, 34 not

waived by TRFRA’s general waiver; (3) the UDJA’s sovereign immunity

waiver does not apply; 35 and (4) the ultra vires doctrine does not negate

immunity because the commissioners’ actions were all discretionary and

authorized. 36 The Commission’s plea did not assert that the trial court

lacked jurisdiction because Hensley failed to plead facts that, if true,

would support her claims. 37

33 See TEX. GOV’T CODE § 311.034 (“Statutory prerequisites to a suit,

including the provision of notice, are jurisdictional requirements in all suits

against a governmental entity.”).

34 See id. § 33.006(b)-(c) (providing that the Commission and

commissioners are “not liable for an act or omission committed by the person

within the scope of the person’s official duties”, and “[t]he immunity from

liability provided by this section is absolute and unqualified and extends to any

action at law or in equity”).

35 See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 552

(Tex. 2019) (“[T]he UDJA . . . provid[es] only a limited waiver for challenges to

the validity of an ordinance or statute.” (citing Tex. Parks & Wildlife Dep’t v.

Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011))).

36 See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (“To

fall within this ultra vires exception, a suit must not complain of a government

officer’s exercise of discretion, but rather must allege, and ultimately prove,

that the officer acted without legal authority or failed to perform a purely

ministerial act.”).

37 “When a plea to the jurisdiction challenges the pleadings, we

determine if the pleader has alleged facts that affirmatively demonstrate the

court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).

10

The trial court agreed with the Commission and dismissed

Hensley’s claims for want of jurisdiction. The court of appeals

affirmed. 38

We granted Hensley’s petition for review.

II

We begin with whether an appeal of the Public Warning to the

SCR was an administrative remedy that Hensley was required to

exhaust before bringing this suit to recover for violations of her rights

under TRFRA and the Free Speech Clause. The Commission argues that

it was, and the lower courts agreed, holding that because Hensley chose

not to avail herself of her appellate remedy, her suit is an impermissible

collateral attack on the Public Warning. For several reasons, we

disagree.

A

District courts are presumed to have the jurisdiction to resolve

legal disputes. 39 That presumption is overcome where the Constitution

38 683 S.W.3d at 152. The trial court also granted the plea to the

jurisdiction on the bases that Hensley was seeking an advisory opinion and

seeking to litigate unripe claims and granted the Commission’s alternative

plea of estoppel. The court of appeals did not address these additional reasons

for granting the plea to the jurisdiction, nor did it address any reasons for

granting the plea of estoppel.

Hensley moved for summary judgment on her claims. The trial court

did not rule on her motion, and the court of appeals did not discuss her

arguments that the motion should have been granted. Hensley and the

Commission both brief the summary-judgment issues here, but we decline to

address them in the first instance.

39 CPS Energy v. Elec. Reliability Council of Tex., 671 S.W.3d 605, 617

(Tex. 2023) (citing Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546

S.W.3d 133, 138 (Tex. 2018)); see also TEX. CONST. art. V, § 8.

11

or another law grants exclusive jurisdiction to another court or an

administrative agency. 40 “A statute may grant an agency exclusive

jurisdiction either expressly or by establishing a ‘pervasive regulatory

scheme’ that impliedly ‘indicates that the Legislature intended for the

regulatory process to be the exclusive means of remedying the problem

to which the regulation is addressed.’” 41 A state agency has exclusive

jurisdiction when the Legislature grants it sole authority to make an

initial determination in “disputes that arise within the agency’s

regulatory arena.” 42 “Thus, to establish exclusive jurisdiction over a

particular issue, there must be (1) an express or implied grant of

exclusive jurisdiction and (2) the issue must ‘fall[] within that

jurisdictional scope.’” 43 If the agency has exclusive jurisdiction over a

particular issue, a trial court lacks jurisdiction over a claim involving

that issue until the claimant has exhausted all available administrative

remedies. 44

Exhaustion is required so that the agency given exclusive

jurisdiction can exercise it and because the administrative remedies

40 CPS Energy, 671 S.W.3d at 617 (citing Chaparral Energy, 546 S.W.3d

at 138).

41 Id. (quoting Chaparral Energy, 546 S.W.3d at 138).

42 Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016)

(citing City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013)); see also In

re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004); Cash Am. Int’l Inc. v.

Bennett, 35 S.W.3d 12, 15 (Tex. 2000).

CPS Energy, 671 S.W.3d at 617 (alteration in original) (quoting

43

Chaparral Energy, 546 S.W.3d at 139).

44 Id. at 617-618.

12

provided may moot the claim. We have held repeatedly that a claim is

barred when administrative remedies that could have mooted the claim

were not exhausted. 45 But we have never held that administrative

remedies must be exhausted when they cannot moot the claim—when

exhaustion would be a pointless waste of time and resources. 46 Indeed,

we have suggested the contrary. 47 The SCR could have reversed

Hensley’s Public Warning, but she does not seek reversal, and reversal

could not have mooted her claims. One claim is that the sanction—while

it existed, until any reversal—unduly burdened her freedoms of religion

and speech. Reversal could have limited that claim to a shorter period,

45 See id. at 618-620; Garcia v. City of Willis, 593 S.W.3d 201, 211-212

(Tex. 2019); City of Beaumont v. Como, 381 S.W.3d 538, 540 (Tex. 2012); Patel

v. City of Everman, 361 S.W.3d 600, 601-602 (Tex. 2012); City of Dallas v.

Stewart, 361 S.W.3d 562, 579-580 (Tex. 2012); City of Dallas v. VSC, LLC, 347

S.W.3d 231, 235-237 (Tex. 2011).

46 A cursory reading of CPS Energy might suggest otherwise. See 671

S.W.3d at 620. That case addressed a scenario where the agency’s

determination on the issue within the area of its exclusive jurisdiction had the

potential—but was not guaranteed—to moot the plaintiff’s constitutional

claims. Requiring exhaustion was appropriate there because the agency’s

determination could have eliminated the need for the independent suit, and

constitutional claims could still be pursued following exhaustion if they weren’t

mooted by the agency’s determination. CPS Energy did not address a scenario

where exhaustion had no potential to moot the plaintiff’s constitutional claims

at all.

47 See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d

212 (Tex. 2002) (holding that a party who did not challenge an agency’s

findings was not required to pursue the available remedy of an appeal before

suing in district court); see also Hous. Fed’n of Tchrs., Loc. 2415 v. Hous. Indep.

Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987) (“Parties are not required to pursue

the administrative process regardless of the price. If irreparable harm will be

suffered and if the agency is unable to provide relief, the courts may properly

exercise their jurisdiction in order to provide an adequate remedy.”).

13

but it could not have extinguished it. The other claim is that she is

entitled to injunctive relief from the threat of future such sanctions. As

we explain, the SCR is not authorized to grant injunctive relief.

B

Article V, Section 1-a of the Texas Constitution and Chapter 33 of

the Texas Government Code create the Commission, 48 define its

powers, 49 require and govern its administrative review of complaints

and concerns regarding judges’ conduct, 50 authorize it to impose

sanctions of judges, and provide for de novo review of the Commission’s

decisions by an SCR. 51 The Commission “is an agency of the judicial

branch of state government”. 52 It “does not have the power or authority

of a court”. 53 The Commission consists of 13 members appointed with

the advice and consent of the Senate. 54 Six are judges appointed by the

Supreme Court: a justice of a court of appeals, a district judge, a county

judge, a constitutional county judge, a justice of the peace, and a

municipal judge. Two members are lawyers appointed by the State Bar.

And five are public members appointed by the Governor. Commissioners

generally serve one six-year term. 55 The Commission reviews,

48 TEX. CONST. art. V, § 1-a(2) to (14).

49 See, e.g., TEX. GOV’T CODE §§ 33.002, 33.021.

50 Id. §§ 33.0211-33.0212, 33.022.

51 Id. § 33.034.

52 Id. § 33.002(a-1).

53 Id.

54 TEX. CONST. art. V, § 1-a(2).

55 Id. § 1-a(3).

14

investigates, and hears complaints of judicial misconduct. 56 The

Commission alone is charged with enforcement of the Canons through

sanctions, including public warnings. 57 The Commission has original

jurisdiction to determine whether a judge has violated a Canon and, if

so, the discretion to decide whether to impose a sanction. Because the

Commission’s membership regularly and routinely changes by design,

one group’s decisions are not binding on the next.

A judge subject to a lesser sanction, like the Public Warning in

this case, may appeal by applying to the Chief Justice of the Supreme

Court for the appointment of an SCR. 58 An SCR is composed of three

justices of the courts of appeals randomly selected to serve for the one

appeal only. If the judge were to be sanctioned again, even for the same

type of action, or if another judge received a similar sanction, an appeal

would be to a different SCR. The opinion of one SCR does not bind

another. 59 An SCR has the power to dismiss or affirm a Commission

56 Id. § 1-a(7).

57 See Hagstette v. State Comm’n on Jud. Conduct, No. 01-19-00208-CV,

2020 WL 7349502, at *5 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.)

(mem. op.) (holding that the trial court lacked jurisdiction over a suit by three

judges to declare sanctions issued by the Commission void); Schied v. Merritt,

No. 01-15-00466-CV, 2016 WL 3751619, at *6 (Tex. App.—Houston [1st Dist.]

July 12, 2016, no pet.) (mem. op.) (holding that it lacked jurisdiction to

adjudicate a claim that the trial judge’s breached the Code of Judicial

Conduct).

58 TEX. GOV’T CODE § 33.034(a)-(b).

59 See In re Uzomba, 683 S.W.3d 358, 363-364 (Tex. Spec. Ct. Rev. 2024)

(per curiam) (noting “the recent opinion of another special court of review” that

concluded “that the [SCR] may sua sponte determine that [a] Respondent

violated additional canons”, but nevertheless sustaining the Respondent’s

15

decision, impose a lesser or greater sanction, or order the Commission

to file formal proceedings against a judge. 60 Because it is created by

statute, the SCR is limited in its powers to those expressly granted to

it. 61 Nowhere has the SCR been granted the powers of a court of general

jurisdiction or authorized to give injunctive, declaratory, or

compensatory relief.

C

Before the Commission, Hensley argued that her conduct did not

violate Canon 4A(1) and that she should not be sanctioned. She also

argued, separately, that TRFRA and the Free Speech Clause bar

enforcement of the Canon against her for declining to perform same-sex

marriages because of her religious beliefs, for stating those beliefs

publicly, and for her marriage-referral system, even if her actions

“objections to the additional charges” that “were not included in [the

Commission’s] charging document”).

60 See Rule 9(d) of the Procedural Rules for the State Commission on

Judicial Conduct.

61 See TEX CONST. art. V, § 1 (“The Legislature may establish such other

courts as it may deem necessary and prescribe the jurisdiction and

organization thereof, and may conform the jurisdiction of the district and other

inferior courts thereto.”). In line with this, the SCR has interpreted its own

jurisdiction exceedingly narrowly. See In re Jenevein, 158 S.W.3d 116 (Tex.

Spec. Ct. Rev. 2003); In re Keller, 357 S.W.3d 413 (Tex. Spec. Ct. Rev. 2010).

For example, in Jenevein, the SCR dismissed an appeal from a Commission

order of public censure because it had resulted from “formal”, not “informal”,

proceedings. 158 S.W.3d at 119. The Legislature subsequently found it

necessary to amend the governing statute to provide a statutory right to appeal

formal “censures” to the SCR. Keller, 357 S.W.3d at 420 n.9 (citing TEX. GOV’T

CODE § 33.034).

16

violated the Canon and were sanctionable. 62

The Commission ruled against Hensley on both arguments,

concluding that she had violated Canon 4A(1) and is subject to sanction

and, implicitly, by rejecting her second argument, that a sanction is not

prohibited by the Free Speech Clause and TRFRA. Interpreting and

applying the Canon was within the Commission’s jurisdiction, subject to

appeal to an SCR. But while the Commission can assess whether a

sanction is prohibited by some other law, that jurisdiction is not

exclusive. The district court may likewise determine whether a sanction

is prohibited, and it is not bound by the Commission’s or SCR’s decisions.

In this district court action against the Commission, Hensley

makes only her statutory and constitutional arguments. She has

repeatedly asserted that she does not now complain that the Public

Warning was an abuse of the Commission’s discretion to interpret and

apply Canon 4A(1). She does not seek review or reversal of that

decision. 63 She accepts it for what it is: the Commission’s exercise of its

62 See TEX. CIV. PRAC. & REM. CODE § 110.004 (“A person whose free

exercise of religion has been substantially burdened in violation of [TRFRA]

may assert that violation as a defense in a judicial or administrative

proceeding without regard to whether the proceeding is brought in the name

of the state or by any other person.”).

63 Were Hensley requesting reversal of the Public Warning in her

current action, the request would be barred by her failure to seek review of the

Public Warning in the SCR. When the Legislature specifies procedures for

obtaining judicial review of an agency decision, the appeal of that decision

must be taken in compliance with those procedures. See Grounds v. Tolar

Indep. Sch. Dist., 707 S.W.2d 889, 891-892 (Tex. 1986) (concluding that a

statute’s requirement for an appeal to be taken in a particular court meant

that “[t]he decision to appeal is optional, but the place of trial is jurisdictional”),

overruled on other grounds by Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.

2000).

17

jurisdiction to interpret and apply the Canons. But she claims, as she

did before the Commission, that the Public Warning, even if otherwise

permitted by the Canons, violates TRFRA and the Constitution.

Hensley is not seeking relief the SCR could afford, nor would the

relief it could provide moot or preclude her claims in this case. In an

appeal, the SCR could have determined both the correctness of the

Public Warning and whether TRFRA or the Free Speech Clause prohibit

it. A ruling for Hensley on either ground would have vacated the Public

Warning. But that would not have mooted Hensley’s TRFRA claim. She

still seeks redress for the burden of the Public Warning during the time

it was in effect. 64 Chapter 33 of the Government Code does not stay

warnings during the pendency of an appeal to the SCR. TRFRA allows

Hensley to sue for relief and assert that the Public Warning unduly

64 TRFRA does not necessarily require that a plaintiff file suit while the

substantial burden is still in place. See TEX. CIV. PRAC. & REM. CODE

§ 110.007(a) (“A person must bring an action to assert a claim for damages

under this chapter not later than one year after the date the person knew or

should have known of the substantial burden on the person’s free exercise of

religion.”). However, if the agency that caused the burden alleviates that

burden before the burdened party files suit, the aggrieved party may not bring

a TRFRA claim. Id. § 110.006(c) (“A government agency that receives a notice

under Subsection (a) may remedy the substantial burden on the person’s free

exercise of religion.” (emphasis added)); id. § 110.006(e) (“A person with respect

to whom a substantial burden on the person’s free exercise of religion has been

cured by a remedy implemented under [Section 110.006(c)] may not bring an

action under Section 110.005.”). Because the SCR—not the Commission

itself—would have vacated the Public Warning, the government agency that

caused Hensley’s burden would not have alleviated that burden and Hensley

would not be foreclosed from bringing a TRFRA action. See Keller, 357 S.W.3d

at 431 (“vacat[ing] the Commission’s order” and “dismiss[ing] the . . . charging

document”); In re Ginsberg, 630 S.W.3d 1, 20 (Tex. Spec. Ct. Rev. 2018)

(“revers[ing] the Commission’s public admonition of the [judge] and

dismiss[ing] the charges against him without sanction”).

18

burdened the exercise of her religious freedom. The SCR could not have

provided her with the relief TRFRA provides, should her TRFRA claim

have merit. Vacating the Public Warning could not have mooted her

claim.

Moreover, in this action Hensley seeks injunctive relief under

TRFRA against the Commission prohibiting future sanctions for

repeated actions like those the Public Warning sanctioned. The SCR’s

reversal of the Public Warning would not prevent the Commission from

continuing to sanction Hensley, as it does not bind the Commission to

any future course of action or to refrain from infringing on

constitutionally protected activity. As a court that reviews the

imposition of Commission sanctions in a specific case, the SCR has no

power to prospectively bind or otherwise interfere with the

Commission’s broad discretion to investigate claims, initiate

proceedings, and order sanctions and censures. Hensley could have won

at the SCR but remained under the threat of future Commission

sanctions should she resume use of her referral system. This threat is

amplified because justices on the SCR are newly appointed for each case

and are not bound by the decisions of previous SCRs.

D

Hensley’s request for a declaration under the UDJA that the

Commission’s interpretation of Canon 4A violates the Free Speech

Clause is subject to the same exhaustion of remedies rationale as her

TRFRA claim. A declaration would prevent the Commission from

ignoring Hensley’s Free Speech Clause defense in the future should she

19

reimplement her referral system. 65 As already discussed, a favorable

SCR decision vacating the Public Warning would not restrict the

Commission from sanctioning Hensley in the future, so the SCR could

not have provided Hensley with the relief she seeks. Nor could a

favorable SCR decision moot her need for declaratory relief because the

prospective threat of future sanctions would remain following vacatur of

the Public Warning. Hensley’s requested Free Speech Clause

declaration under the UDJA is thus not barred by the exhaustion

requirement. Another of Hensley’s requested declarations—that a judge

does not violate Canon 4A by engaging in the same type of religious

speech and referral system as Hensley—is also not barred for the same

reasons.

Likewise, Hensley’s requested declarations that her selective

officiating practice does not violate Canon 3B(6) or Article V,

Section 1-a(6)(A) of the Texas Constitution are not barred by the

exhaustion requirement. The Commission did not sanction Hensley for

violating those provisions, and her appeal before the SCR would not

have involved those issues. Hensley is not required to appeal to the SCR

before seeking declaratory relief in district court for matters completely

unrelated to the Public Warning and potential appeal.

In sum, Hensley’s requested declarations are not barred by the

exhaustion requirement. Hensley’s ultra vires claim, which seeks the

65 A declaration under the UDJA “has the force and effect of a final

judgment or decree.” TEX. CIV. PRAC. & REM. CODE § 37.003(b). Such

“judgment or decree will terminate the controversy or remove an uncertainty.”

Id. § 37.003(c). “Further relief based on a declaratory judgment or decree may

be granted whenever necessary or proper.” Id. § 37.011.

20

same UDJA declaratory relief and TRFRA injunctive relief against the

commissioners, is subject to identical treatment.

* * *

The SCR could not have finally decided whether Hensley is

entitled to the relief sought in this case or awarded the relief TRFRA

provides if it is determined that her claim has merit. Nor could the SCR

have mooted Hensley’s TRFRA claim. Hensley was not required to

further exhaust her remedy by appeal to a court that could not afford

her the relief TRFRA provides to successful claimants before suing in a

court that can. 66

III

We turn to the Commission’s arguments that Hensley’s action is

barred by sovereign immunity. 67

66 TRFRA’s prohibition against a government agency substantially

burdening a person’s exercise of religion expressly “applies to any ordinance,

rule, order, decision, practice, or other exercise of governmental authority.”

TEX. CIV. PRAC. & REM. CODE § 110.002(a). Hensley does not argue, and we

need not decide, whether TRFRA thus preempts a requirement of exhaustion

of administrative remedies.

67 It is undisputed that the Commission is a state agency that is entitled

to immunity. The State Commission on Judicial Conduct is a constitutionally

created agency composed of judges, attorneys, and citizens from the State of

Texas. See TEX. CONST. art. V, § 1-a(2); TEX. GOV’T CODE § 33.002(a-1) (“The

commission is an agency of the judicial branch of state government and

administers judicial discipline.”). As a state agency, the Commission is entitled

to sovereign immunity. See Miranda, 133 S.W.3d at 224; Hagstette, 2020 WL

7349502, at *4. When a governmental entity challenges jurisdiction on

immunity grounds, the plaintiff’s burden of affirmatively demonstrating

jurisdiction includes establishing a waiver of immunity. Swanson, 590 S.W.3d

at 550.

21

A

TRFRA waives sovereign immunity from suit and liability under

the Act. 68 The Commission argues that the waiver does not apply

because Hensley failed to give written notice of her claims as TRFRA

requires, and therefore the trial court lacks jurisdiction over this action.

A person may not sue under TRFRA without giving 60 days’ written

notice

(1) that the person’s free exercise of religion is

substantially burdened by an exercise of the government

agency’s governmental authority; 2) of the particular act or

refusal to act that is burdened; and (3) of the manner in

which the exercise of governmental authority burdens the

act or refusal to act. 69

The Commission contends that the notice Hensley gave is deficient for

two reasons.

First, Hensley sent her notices to the Commission and its

members and officers a few weeks after she received the tentative public

warning. The Commission argues that Hensley’s religious freedom was

not burdened until after the Public Warning, months later, and that she

never gave notice that the Public Warning burdened her exercise of

religious freedom. But Hensley contends that her protected religious

freedom was burdened from the Commission’s opening of an

investigation months before her notice and has continued till now. The

68 TEX. CIV. PRAC. & REM. CODE § 110.008(a).

69 Id. § 110.006(a).

22

Commission may disagree she has ever been burdened, but the notice

she gave certainly provided notice of her claim. 70

Second, the Commission argues that Hensley’s presuit notice

“merely implied that [she] had been required to suspend her

opposite-sex wedding ceremonies due to the [Commission’s]

‘investigation’ and ‘threatened penalties.’” Such notice, the Commission

contends, fails to properly state the manner in which the exercise of

governmental authority burdens the act or refusal to act as required by

TRFRA Section 110.006(a)(3). Hensley’s presuit notice, sent by her

lawyer to each Commissioner via letter, stated:

I represent Justice of the Peace Dianne Hensley. I write to

inform you that the Commission’s investigation of Judge

Hensley, and its threatened discipline of Judge Hensley for

refusing to perform same-sex weddings, substantially

burdens her free exercise of religion. See Tex. Civ. Prac. &

Rem. Code § 110.006(a)(1).

The Texas Religious Freedom Restoration Act protects a

“refusal to act that is substantially motivated by sincere

religious belief.” Tex. Civ. Prac. & Rem. Code

§§ 110.001(1). . . .

The Commission’s investigation of Judge Hensley and its

threatened penalties are imposing substantial burdens on

Judge Hensley for her refusal to perform same-sex

weddings in violation of her Christian faith. See Tex. Civ.

Prac. & Rem. Code § 110.006(a)(2)-(3).

70 See Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) (holding that

an ordinance passed to ban halfway houses operated as part of a religious

ministry burdened religious freedom from the moment it was passed, even

though it was never enforced).

23

The Commission does not dispute that Hensley’s religious beliefs are

sincere. Her notice clearly states that they were burdened by the

Commission’s threatened sanction against her for refusing to perform

same-sex marriages.

Hensley’s notice of the burden she claims to her religious freedom

is clearly sufficient under TRFRA. 71

B

The Commission argues that TRFRA’s general waiver of

sovereign immunity does not extend to the “immunity from liability”

granted the Commission and commissioners under Section 33.006 of the

Texas Government Code, which “is absolute and unqualified and

extends to any action at law or in equity.” 72

71 The court of appeals held that TRFRA does not waive the

Commission’s immunity because Hensley has not shown that she has a

“successful” claim. 683 S.W.3d at 161. But Hensley need not prove her claim

for immunity to be waived. The district court would lack jurisdiction over

Hensley’s action if she failed to plead facts supporting claims for which

immunity is waived. See Miranda, 133 S.W.3d at 226. The Commission has not

asserted that the facts Hensley alleges in her pleadings are insufficient to

support her claims.

We have indicated that TRFRA’s presuit notice requirement is not

jurisdictional. In Barr, we acknowledged the trial court’s finding of a “fail[ure]

to give notice as required by [TRFRA]”, but we did not engage in sua sponte

review of our jurisdiction as we must whenever our jurisdiction is uncertain,

and we concluded that plaintiffs were entitled to relief. 295 S.W.3d at 292 n.8,

308; see also Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 591 (5th Cir.

2013) (Elrod, J., dissenting) (concluding that the Texas Supreme Court does

not consider a plaintiff’s failure to provide proper notice under TRFRA to be a

jurisdictional defect). But see State v. Valerie Saxion, Inc., 450 S.W.3d 602, 615

n.11 (Tex. App.—Fort Worth 2014, no pet.) (citing the Morgan majority’s

proposition that “[T]RFRA’s pre-suit notice requirement is jurisdictional”).

72 TEX. GOV’T CODE § 33.006(c).

24

Section 33.006(b) expressly provides only an immunity from

liability, not an immunity from suit. 73 “[I]mmunity from liability does

not affect a court’s jurisdiction to hear a case and cannot be raised in a

plea to the jurisdiction.” 74 The trial court thus erred in relying on the

immunity provided by Section 33.006 as a basis for concluding that it

lacked jurisdiction over the Commission and commissioners. 75

C

The lower courts concluded that Hensley’s request for a

declaration against the Commission (not the commissioners) that

Canon 4A violates the Free Speech Clause is barred by sovereign

immunity. 76

The UDJA provides that “[a] person . . . whose rights . . . are

affected by a statute . . . or municipal ordinance . . . may have

determined any question of construction or validity . . . and obtain a

declaration of rights . . . thereunder.” 77 Hensley argues that this

provision waives the Commission’s sovereign immunity from her claim.

73 See Tarrant County v. Bonner, 574 S.W.3d 893, 900 (Tex. 2019)

(“Immunity from liability and immunity from suit are distinct aspects of

governmental immunity under common law. Immunity from liability protects

governmental entities from judgments; immunity from suit protects those

entities from the burdens of litigation altogether, absent legislative consent.”

(citations omitted)).

74 Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).

75 The parties also dispute the relationship between Section 33.006 and

the express waiver of sovereign immunity in TRFRA Section 110.008. We

express no opinion on the matter in this case.

Hensley made other requests for declaratory relief against the

76

Commission in the trial court that she has abandoned on appeal.

77 TEX. CIV. PRAC. & REM. CODE § 37.004(a).

25

But Canon 4A is neither an ordinance nor a statute but a rule

promulgated by this Court. Thus, the UDJA waiver does not apply.

Hensley also argues that the Commission’s sovereign immunity

from her claim is waived by the Texas Administrative Procedure Act,

which provides that “[t]he validity or applicability of a rule . . . may be

determined in an action for declaratory judgment if it is alleged that the

rule or its threatened application interferes with or impairs, or

threatens to interfere with or impair, a legal right or privilege of the

plaintiff.” 78 A “rule” is defined as “a state agency statement of general

applicability”. 79 The definition of “state agency” expressly excludes

courts. 80 Canon 4A is not a rule promulgated by a state agency.

The lower courts correctly concluded that the Commission’s

sovereign immunity is not waived for Hensley’s request for a declaration

regarding Canon 4A.

D

The lower courts dismissed Hensley’s declaratory requests

against the commissioners under both the UDJA and TRFRA on the

grounds that the commissioners’ sovereign immunity was not waived.

Hensley argues that the commissioners acted ultra vires because

“unlawful acts of officials are not acts of the State” 81 and the

commissioners have no discretion to violate TRFRA by determining that

78 TEX. GOV’T CODE § 2001.038(a).

79 Id. § 2001.003(6).

80 Id. § 2001.003(7)(c).

81 Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 76 (Tex.

2015).

26

it does not apply here. The Commission responds that in investigating

Hensley and ultimately issuing the Public Warning, the commissioners

were performing their duties precisely as authorized by the

Commission’s enabling laws. Even if the commissioners erred in

exercising their discretion, they contend, any alleged error does not

constitute an ultra vires act because the error occurred while acting

within the zone of their authority.

Not all acts of a government official misinterpreting and

misapplying a law are ultra vires. Sovereign immunity bars suits

complaining of legal errors stemming from the exercise of the officer’s

absolute discretion but not suits complaining of those errors stemming

from an officer’s exercise of limited discretion. 82 Acts within an officer’s

absolute discretion are those where the officer exercises “free

decision-making without any constraints”, while acts within the officer’s

limited discretion are those where the officer must exercise “discretion

that is otherwise constrained by the principles of law.” 83

Hensley alleges that the commissioners’ decision to warn her

violated her statutorily protected constitutional right to free exercise.

We have noted that questions of law that determine the constitutionality

of an agency’s decision fall “outside the competence of administrative

agencies” because “the power of constitutional construction is inherent

in, and exclusive to, the judiciary.” 84 Though the Commission does have

82 Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

163 (Tex. 2016).

83 Id.

84 Stewart, 361 S.W.3d at 578-579.

27

the discretion to issue informal warnings, 85 the commissioners’

discretion to issue a warning over a TRFRA defense is necessarily of the

limited sort because the Commission does not have absolute discretion

to interpret and apply TRFRA. Because the commissioners’ discretion in

interpreting and applying TRFRA is limited, a claim that alleges that

the Public Warning violated TRFRA is a sufficient ultra vires allegation

to survive a plea to the jurisdiction.

* * * * *

We affirm the part of the court of appeals’ judgment dismissing

Hensley’s requested declaratory relief against the Commission

concerning the Free Speech Clause for lack of jurisdiction, reverse the

remainder of the judgment, and remand to the court of appeals for

consideration of the unaddressed issues remaining on appeal.

Nathan L. Hecht

Chief Justice

OPINION DELIVERED: June 28, 2024

85 TEX. CONST. art. V, § 1-a(8).

28