Edward Rudolph Turnbull, IV v. Commission for Lawyer Discipline, Daniela Grosz, Daniel Martinez, Seana Willing, John S. Brannon, Amanda Kates, Jenny Hodgkins, and the Board of Directors of the State Bar of Texas, Cindy v. Tisdale, Steve Benesh, Laura Gibson, Kennon Lily Wooten

ACCEPTED

15-24-00095-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

1/28/2025 10:23 PM

No. 15-24-00095-CV CHRISTOPHER A. PRINE

CLERK

In the Court of Appeals FILED IN

Fifteenth District of Texas 15th COURT OF APPEALS

AUSTIN, TEXAS

1/28/2025 10:23:29 PM

CHRISTOPHER A. PRINE

Clerk

Edward Randolph Turnbull, IV Appellant

v.

Commission for Lawyer Discipline, et al. Appellees

Appeal from the 201st Judicial District Court, Travis County, Texas

Hons. Karin Crump and Maya Guerra Gamble, Judges

Cause No. D-1-GN-24-002025

BRIEF OF APPELLEE JENNY HODGKINS

Daniel J. Olds Justin B. Cox

Texas Bar No. 24088152 Texas Bar No. 24140160

dolds@clarkhill.com jbcox@clarkhill.com

Jadd F. Masso CLARK HILL PLC

Texas Bar No. 24041411 3711 South MoPac Ex-

jmasso@clarkhill.com pressway, Building One,

CLARK HILL PLC Suite 500

901 Main Street, Suite 6000 Austin, Texas 78746

Dallas, Texas 75202 (214) 651-2191

(214) 651-4300

Attorneys for Appellee

Jenny Hodgkins

Identities of Parties and Counsel

Party Counsel

Edward Randolph Turnbull, IV, Gaines West

John “Jay” Rudinger, Jr.

Appellant WEST, WEBB, ALLBRITTON & GEN-

TRY P.C.

1515 Emerald Plaza

College Station, Texas 77845

Judd E. Stone II

STONE HILTON PLLC

600 Congress Ave., Suite 2350

Austin, Texas 78701

Board of Directors of the State Bar Patrick W. Mizell

of Texas; Cindy V. Tisdale; Steve VINSON & ELKINS L.L.P.

Benesh; Laura Gibson; Kennon 845 Texas Avenue, Suite 4700

Lily Wooten; Kade W. Browning; Houston, Texas 77002

Elizabeth Sandoval Cantu; Luis

Cavazos; Jason Charbonnet; Craig Brooke A. Noble

Cherry; Kelly-Ann F. Clarke; Jeff Emily S. Bamesberger

Chochran; David C. Courreges; VINSON & ELKINS L.L.P.

Thomas A. Crosley; August W. 200 West Sixth Street, Suite 2500

Harris III; Britney E. Harrison; Austin, Texas 78701

Noelle Hicks; Matthew J. Hill;

Forrest L. Huddleston; Kristina N.

Kastl; Lori M. Kern; Bill Kroger;

Hisham Masri; Dwight McDonald;

Rudolph K. Metayer; Lawrence

Morales II; Kimberly N. Naylor;

Rosalind V.O. Perez; Christopher

D. Pineda; Chris Popov; Laura

Pratt; Shannon Quadros; Michael

J. Ritter; Audio Sciumbato; John

i

Sloan; G. David Smith; Paul K.

Stafford; Alex J. Stelly Jr.; Nitin

Sud; Carlo Taboada; Radha Thia-

garajan; Dr. Martin A. Tobey; Aa-

ron Z. Tobin; G. Michael Vasquez;

Stephen J. Venzor; and Michael J.

Wynne

Appellees

Commission for Lawyer Discipline; Michael G. Graham

Daniela Grosz; Daniel Martinez;

Seana Willing; John S. Brannon; (on appeal only)

and Amanda Kates

Royce Lemoine

Appellees

(on appeal and in trial court)

Office of the Chief Disciplinary

Counsel

State Bar of Texas

P.O. Box 12487

Austin, Texas 78711

Jenny Hodgkins Daniel J. Olds

Jadd F. Masso

Appellee CLARK HILL PLC

901 Main Street, Suite 6000

Dallas, Texas 75202

Justin B. Cox

CLARK HILL PLC

3711 South MoPac Expressway

Building One, Suite 500

Austin, Texas 78746

ii

Table of Contents

Identities of Parties and Counsel............................................................... i

Table of Contents .....................................................................................iii

Index of Authorities................................................................................... v

Issue Presented (Restated) ....................................................................... 1

Statement of Facts .................................................................................... 2

Summary of the Argument ..................................................................... 10

Argument ................................................................................................. 11

I. Turnbull lacks standing to bring his claims against

Hodgkins......................................................................................... 12

A. Turnbull lacks standing to complain about the

alleged failure to prosecute other attorneys. ........................ 12

B. Hodgkins cannot provide the relief Turnbull

seeks in an injunction and therefore Turnbull

cannot meet the redressability prong of standing. ............... 15

II. Hodgkins has full sovereign immunity to both suit and

liability. .......................................................................................... 17

A. To the extent Turnbull has pled ultra vires claims

against Hodgkins, those claims fail, and

Hodgkins has retained her sovereign immunity

from suit and liability from those claims. ............................ 20

B. Turnbull’s state constitutional claims fail, and

Hodgkins has retained her sovereign immunity

from suit and liability as to those claims. ............................ 22

i. Turnbull’s claim under article I, section 19

of the Texas Constitution fails. .................................... 22

iii

ii. Turnbull’s claim under article I, section 3 of

the Texas Constitution fails. ........................................ 24

iii. Turnbull’s claim under article I, section 13

of the Texas Constitution fails. .................................... 26

III. Hodgkins has full immunity from both suit and liability

pursuant to the Texas Rules of Disciplinary Procedure. .............. 27

IV. The trial court correctly dismissed Turnbull’s claims

against Hodgkins with prejudice, and Turnbull should not

be afforded an opportunity to replead. .......................................... 31

Prayer ...................................................................................................... 33

Certificate Of Compliance ....................................................................... 35

Certificate of Service ............................................................................... 35

iv

Index of Authorities

Page(s)

Cases

In re Abbott,

601 S.W.3d 802 (Tex. 2020) .......................................................... 12, 13

Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000) .................................................................. 17

Burch v. State Bar of Tex.,

No. 07-19-00224-CV, 2020 WL 830982 (Tex. App.—

Amarillo 2020, pet. denied) (mem. op.) .............................................. 29

In re Caballero,

272 S.W.3d 595 (Tex. 2008) ................................................................ 29

CenterPoint Energy Res. Corp. v. Ramirez,

640 S.W.3d 205 (Tex. 2022) ................................................................ 26

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) .......................................................... 18, 20

City of Georgetown v. Lower Colorado River Auth.,

413 S.W.3d 803 (Tex. App.—Austin 2013, pet. dism’d) ..................... 11

City of Killeen v. Cheney,

No. 03-18-00239-CV, 2018 WL 5832088 (Tex. App.—

Austin 2018, no pet.) (mem. op.) ......................................................... 32

Crampton v. Farris,

596 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2019, no

pet.) ............................................................................................... 18, 30

Doe v. Bd. of Directors of State Bar of Tex.,

No. 03-15-00007-CV, 2015 WL 6656216 (Tex. App.—

Austin 2015, pet. denied) .............................................................. 18, 23

v

Engquist v. Oregon Dep’t of Agr.,

553 U.S. 591 (2008) ............................................................................. 25

Gatesco Q.M., Ltd. v. City of Houston,

333 S.W.3d 338 (Tex. App.—Houston [14th Dist.] 2010, no

pet.) ..................................................................................................... 20

Heckman v. Williamson Cty.,

369 S.W.3d 137 (Tex. 2012) ................................................................ 12

Klumb v. Houston Municipal Employees Pension Sys.,

458 S.W.3d 1 (Tex. 2015) .............................................................. 20, 22

Lefebure v. D’Aquilla,

15 F.4th 650 (5th Cir. 2021), cert. denied, 212 L. Ed. 791,

142 S. Ct. 2732 (2022) ......................................................................... 12

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) ............................................................................. 13

Little v. KPMG LLP,

575 F.3d 533 (5th Cir. 2009) ............................................................... 12

Mann v. Denton Cty.,

No. 02-16-00030-CV, 2017 WL 526309 (Tex. App.—Fort

Worth 2017, pet. denied) (mem. op.) .................................................. 11

Martinez v. State Bar of Tex.,

797 F. App’x 167 (5th Cir. 2020) (unpublished) ..................... 13, 14, 24

Moreno v. Sterling Drug, Inc.,

787 S.W.2d 348 (Tex. 1990) ................................................................ 27

Rountree v. Dyson,

892 F.3d 681 (5th Cir. 2018) ............................................................... 25

In re State Bar of Tex.,

113 S.W.3d 730 (Tex. 2003) .......................................................... 27, 28

vi

State Bar of Tex. v. Wilson,

No. 03-18-00649-CV, 2019 WL 1272616 (Tex. App.—

Austin 2019, pet. denied) (mem. op.) .................................................. 18

Stefanoff v. Hays Cnty., Tex.,

154 F.3d 523 (5th Cir. 1998) ............................................................... 25

Tex. A&M Univ. Sys. v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ................................................................ 32

Tex. Assoc. of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993) ................................................................ 12

Tex. Dep’t of Ins., Division of Worker’s Comp. v. Brumfield,

No. 04-15-00473-CV, 2016 WL 2936380 (Tex. App.—San

Antonio 2016, no pet.) (mem. op.) ....................................................... 31

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ................................................................ 17

Tex. Dep’t of Protective & Regulatory Servs. v. Sherry,

46 S.W.3d 857 (Tex. 2001) .................................................................. 31

Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011) ................................................................ 31

Trinity River Auth. v. URS Consultants, Inc.-Tex.,

889 S.W.2d 259 (Tex. 1994) ................................................................ 26

Turnbull v. Bd. of Directors of State Bar of Tex.,

No. 24-50260, 2024 WL 4903274 (5th Cir. 2024) ........................... 8, 14

Univ. of Tex. Med. Branch at Galveston v. Qi,

402 S.W.3d 374 (Tex. App.—Houston [14th Dist.] 2013, no

pet.) ..................................................................................................... 19

Univ. of Tex. Med. School at Houston v. Than,

901 S.W.2d 926 (Tex. 1995) .......................................................... 22, 23

vii

Washington v. Comm’n for Lawyer Discipline,

No. 03-15-00083-CV, 2017 WL 1046260 (Tex. App.—

Austin Mar. 17, 2017, pet. denied) (mem. op.) ................................... 29

Webster v. Comm’n for Lawyer Discipline,

__ S.W.3d __, 2024 WL 5249494 (Tex. Dec. 31, 2024)........................ 27

Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692 (Tex. 2003) ................................................................ 19

Wilker v. Peniche,

No. 01-20-00596-CV, 2021 WL 4995513 (Tex. App.—

Houston [1st Dist.] 2021, no pet.) (mem. op.) ..................................... 15

Zawislak v. Moskow,

No. 03-18-00280-CV, 2019 WL 2202209 (Tex. App.—

Austin 2019, no pet.) (mem. op.) ......................................................... 33

Statutes

TEX. GOV'T CODE § 81 (State Bar Act) ............................................. passim

TEX. GOV'T CODE § 81, Subchapter E-1 ..................................................... 3

TEX. GOV’T CODE § 81.011(a) .................................................................... 19

TEX. GOV’T CODE § 81.11(c)...................................................................... 28

TEX. GOV'T CODE § 81.072(b)(2) ............................................................... 23

TEX. GOV’T CODE § 81.073.......................................................................... 4

TEX. GOV’T CODE § 81.073(b) ................................................................. 2, 5

TEX. GOV’T CODE § 311.034 ...................................................................... 18

TEX. GOV'T CODE T. 2, Subt. G App A-1 .................................................. 28

TEX. GOV'T CODE Title 2 .......................................................................... 28

Rules

BODA IPR 1.01(d) ............................................................................. 3, 6, 7

viii

BODA IPR 1.04...................................................................................... 4, 6

BODA IPR 1.10(a) ............................................................................. 3, 6, 7

BODA IPR 2.10(A)............................................................................. 24, 26

BODA IPR 3.02...................................................................................... 4, 5

TEX. R. APP. P. 9.4(i) ................................................................................ 35

TEX. R. APP. P. 33.1(a).............................................................................. 31

TEX. R. DISC. P. R. 1.02 ............................................................................ 29

TEX. R. DISC. P. R. 7.11 ........................................................................ 5, 21

TEX. R. DISC. P. R. 17.09 .................................................................. passim

TEX. R. DISC. P. pt. VII ........................................................................ 2, 19

TEX. R. DISC. P. R. 2.10 .............................................................................. 4

TEX. R. DISC. P. R. 2.10(A) ..................................................................... 2, 4

TEX. R. DISC. P. R. 2.12-.14, .16 ..................................................... 3, 4, 5, 6

TEX. R. DISC. P. R. 7.05 .............................................................................. 3

TEX. R. DISC. P. R. 7.08(A) ......................................................................... 3

TEX. R. DISC. P. R. 7.08(C) ..................................................................... 2, 4

Constitutional Provisions

TEX. CONST. .............................................................................................. 28

TEX. CONST. art. I, sect. 13 ...................................................................... 26

TEX. CONST. art. II, § 1 ............................................................................ 28

U.S. CONST. art. III ............................................................................ 12, 13

ix

Issue Presented (Restated)

Did the trial court err when it granted Hodgkins’s plea to the jurisdiction?

1

Statement of Facts

The Board of Disciplinary Appeals (BODA) is a statewide independ-

ent adjudicatory body of twelve attorneys appointed by the Supreme

Court of Texas to hear certain attorney discipline cases and to promote

consistency in interpretation and application of the Texas Disciplinary

Rules of Professional Conduct (“TDRPC”) and the Texas Rules of Disci-

plinary Procedure (“TRDP”). TEX. R. DISCIPLINARY P. Part VII. The Board

is governed by the TRDP (promulgated by the Texas Supreme Court), the

State Bar Act (Texas Government Code Chapter 81) (enacted by the Leg-

islature), and the Board of Disciplinary Appeals Internal Procedural

Rules (“BODA IPR”)1 (promulgated by the Texas Supreme Court). Among

other things, and as relevant in this matter, BODA exercises appellate

jurisdiction over the initial classification of grievances against Texas at-

torneys. TEX. R. DISCIPLINARY P. R. 2.10(A); 7.08(C); TEX. GOV’T CODE

§ 81.073(b).

i. The Role of the Executive Director

Appellee Jenny Hodgkins is the Executive Director and General

Counsel of BODA. She is not a member of the Board appointed by the

1 The BODA IPR are located in the clerk’s record at CR 1455-67.

2

Texas Supreme Court and does not cast a vote on matters adjudicated by

the Board. See TEX. R. DISCIPLINARY P. R. 7.05. The Executive Director

“assume[s] all duties normally performed by the clerk of a court.” BODA

IPR 1.01(d). Acting as BODA clerk, one of the Executive Director’s duties

is to notify parties of all decisions. BODA IPR 1.10(a). Importantly, the

BODA Executive Director is not a part of the Office of the Chief Discipli-

nary Counsel (“CDC”), the Commission for Lawyer Discipline, or the

State Bar Board of Directors. CR 1422. Specifically, the Executive Direc-

tor has no involvement in, or even knowledge of, the conduct of an inves-

tigation of a grievance that has been classified as a complaint. See TEX.

R. DISCIPLINARY P. R. 2.12-.14, .16. In addition, the Executive Director

has no power to amend either the TRDP or the BODA Internal Proce-

dural Rules. See TEX. R. DISCIPLINARY P. R. 7.08(A), TEX. GOV’T CODE

Chapter 81, Subchapter E-1.

ii. Classification Appeals

Once a grievance is filed in Texas, CDC must determine whether to

classify the grievance as a “complaint” (a writing that alleges conduct

that, if true, constitutes professional misconduct) or an “inquiry” (a writ-

ing that alleges conduct that, even if true, does not constitute professional

3

misconduct cognizable under the TDRPC). TEX. RULES DISCIPLINARY P. R.

2.10; TEX. GOV’T CODE § 81.073. During this initial screening, if CDC de-

termines that the allegations do not constitute professional misconduct,

the writing is dismissed as an inquiry. TEX. RULES DISCIPLINARY P. R.

2.10. A complainant has the right to appeal the dismissal of a grievance

as an inquiry to BODA. TEX. RULES DISCIPLINARY P. R. 2.10(A); 7.08(C).

When a notice of appeal from a classification decision has been filed, CDC

must forward to BODA a copy of the grievance, and BODA may only con-

sider documents that were filed with CDC prior to the classification de-

cision. IPR 3.02. Three-member panels of the Board are assigned to hear

weekly dockets of classification appeals. BODA IPR 1.04. If the Board

members disagree with CDC’s initial classification of a grievance as an

inquiry (i.e., BODA determines that the grievance describes conduct that,

if true, constitutes professional misconduct), they “reverse” the classifi-

cation and the dismissal of the grievance; the grievance is then reclassi-

fied as a complaint, and the matter is returned to CDC for investigation

and to determine just cause. TEX. RULES DISCIPLINARY P. R. 2.10, 2.12,

7.08(C). Neither the Board, nor the Executive Director, have any

knowledge of, or participation in, the process that follows the reversal of

4

an inquiry classification. See TEX. R. DISCIPLINARY P. R. 2.12-.14, .16. If

the Board “affirms” CDC’s classification of a grievance as an inquiry (i.e.,

they determine that it does not state a claim for professional misconduct),

the complainant “may, within twenty days, amend the Grievance one

time only by providing new or additional evidence.”2 Disposition letters

contain standard language; for every classification decision affirmed by

BODA, the letter includes the phrase “[t]he Board’s decision is final” to

reflect that, pursuant to Rule 7.11 of the TRDP, “[d]eterminations by the

Board of Disciplinary Appeals that a statement constitutes an Inquiry . .

. are conclusive, and may not be appealed to the Supreme Court.” CR

1424. This process happens on a routine basis, as BODA adjudicates over

1,000 classification appeals every year. CR 1424.

2 The TRDP and the State Bar Act contain slightly different provisions regarding

the amendment of a grievance. While the TRDP provide that an amendment can be

made after an appeal to BODA, the State Bar Act’s language in effect at the time

stated that a complainant may opt to submit an amended grievance immediately af-

ter CDC’s initial classification decision without requiring an appeal to BODA as a

prerequisite. See TEX. GOV’T CODE § 81.073(b) (2022) (“A complainant may appeal

the classification of a grievance as an inquiry to the Board of Disciplinary Appeals,

or the complainant may amend and resubmit the grievance. An attorney against

whom a grievance is filed may not appeal the classification of the grievance.”).

BODA will consider and decide a classification appeal whether it is from an initial

CDC classification or from CDC classification of an amended grievance. See BODA

IPR 3.02 (requiring transmittal of the amended and original grievance in classifica-

tion appeals concerning amended grievances).

5

The Executive Director’s role in the classification appeal process is

administrative. She oversees the filing and docketing of appeals, the as-

signment of classification appeals to three-member panels, facilitates

panel conferences and deliberations, and she is responsible for communi-

cating the disposition to the parties. BODA IPR 1.04, 1.10(a).

iii. The Turnbull Grievances

Turnbull submitted grievances to CDC against Lovett and Trevino,

which CDC dismissed. CR 18. Turnbull then appealed the dismissal. CR

18. Though CDC classified Turnbull’s initial grievances as inquiries and

dismissed them, the Board reversed these determinations and referred

the matters back to CDC for investigation. CR 18. Hodgkins communi-

cated these dispositions pursuant to her routine duties as the BODA

Clerk. BODA IPR 1.01(d); 1.10(a); CR 18. Neither Hodgkins nor any

member of the Board had any involvement in or knowledge of the ensuing

investigation by CDC and subsequent proceedings that form the basis of

much of Turnbull’s Original Petition—indeed, investigating grievances

classified as complaints, making just cause determinations, and all pro-

ceedings involving complaints are entirely outside the purview of BODA

and its Executive Director. See TEX. R. DISCIPLINARY P. R. 2.12-.14, .16.

6

In 2022, the Board received notices of appeal for two subsequent

grievances filed by Turnbull against Lovett and Trevino. CR 22. CDC had

again classified these grievances as inquiries, and Turnbull again ap-

pealed to BODA. CR 22. This time, the BODA panel affirmed CDC’s ini-

tial classification of the grievances. CR 22. Defendant Hodgkins again

communicated the result to the parties pursuant to her official duties as

the BODA Clerk. BODA IPR 1.01(d); 1.10(a); CR 22. The disposition let-

ter contained the standard language for affirming classification deci-

sions. CR 1443-44.

Turnbull’s counsel (who also represented Turnbull in the classifica-

tion appeals before BODA) sent a letter to Defendant Hodgkins on July

28, 2022, predicated on his incorrect belief that the disposition of the sec-

ond set of appeals was somehow dispositive of his right to amend the

grievances filed against Lovett and Trevino, and urging the Board to re-

consider. CR 1446-47. Defendant Hodgkins responded to this letter to

clarify that the standard language regarding finality only referred to the

fact that a complainant may not file an appeal with the Texas Supreme

Court, and also clarifying that the Board’s disposition had no impact on

7

whether a complainant could, or could not, file amended grievances. CR

1449-50. Specifically, the letter stated:

In deciding classification appeals, the Board

makes no determination as to whether a grievance

may be amended. The Board’s decision regarding

classification is based on the record as forwarded

by the CDC, and the finality of that decision has

no bearing on whether a complainant may amend

the grievance to present additional information

and documentation. In fact, when a grievance is

amended and resubmitted, the CDC assigns the

amended grievance a new case number, and any

appeals are then assigned a new case number by

BODA.

CR 1449. The letter further referred Turnbull’s counsel to CDC for ques-

tions regarding his ability to submit an amended grievance. CR 1450.

Turnbull’s counsel then responded again to Hodgkins, acknowledging

Hodgkins’s response and indicating that he intended to file amended

grievances. CR 1452-53.

Turnbull then filed a lawsuit against Hodgkins, the CDC, and var-

ious State Bar of Texas officials, among others, in federal court in Austin,

Texas, which the district court dismissed for lack of standing and which

the United States Court of Appeals for the Fifth Circuit affirmed on ap-

peal. See Turnbull v. Bd. of Directors of State Bar of Tex., No. 24-50260,

2024 WL 4903274 (5th Cir. 2024). During the pendency of that

8

proceeding, Turnbull filed this lawsuit in state court. Hodgkins filed a

plea to the jurisdiction (CR 1421-68), which the trial court granted in full.

CR 1522. This appeal followed. CR 1523-37.

9

Summary of the Argument

The trial court did not err in granting Hodgkins’s plea to the juris-

diction.

Turnbull lacks standing to bring his claims against Hodgkins be-

cause he cannot complain about a prosecuting authority’s failure to pros-

ecute other individuals. Turnbull also lacks standing because Hodgkins

cannot provide him redressability.

Hodgkins also has full sovereign immunity from both suit and lia-

bility. Turnbull has failed to allege valid ultra vires or constitutional

claims against Hodgkins, and therefore she has retained full sovereign

immunity.

Hodgkins also has absolute immunity pursuant to Texas Rule of

Disciplinary Procedure 17.09.

The trial court correctly dismissed all of Turnbull’s claims with

prejudice without an opportunity to replead because Turnbull’s pleadings

affirmatively negated jurisdiction.

10

Argument

The trial court did not err in granting Hodgkins’s plea to the ju-

risdiction.

“A plea to the jurisdiction is a dilatory plea that challenges the trial

court’s authority to determine the subject matter of a specific cause of

action.” City of Georgetown v. Lower Colorado River Auth., 413 S.W.3d

803, 806 (Tex. App.—Austin 2013, pet. dism’d). Whether a trial court has

subject-matter jurisdiction is a question of law that is reviewed de novo.

Id.

When the trial court grants a plea to the jurisdiction and does not

state the basis of its ruling, an appellate court may affirm on any basis

preserved in the record. Mann v. Denton Cty., No. 02-16-00030-CV, 2017

WL 526309, at *6 (Tex. App.—Fort Worth 2017, pet. denied) (mem. op.).

“When the trial court does not specify the basis of its ruling, the appeal-

ing party must show that the trial court erred regardless of which ground

asserted in the motion the trial court relied on.” Id. “An appellate court

must affirm the trial court’s judgment if any one of the movant’s theories

has merit.” Id. “When an appellant fails to attack one of the possible

grounds on which a judgment was granted, the judgment must be af-

firmed.” Id.

11

I. Turnbull lacks standing to bring his claims against Hodg-

kins.

Standing is a component of subject matter jurisdiction and is

properly raised in a plea to the jurisdiction. Tex. Assoc. of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). “Texas standing require-

ments parallel the federal test for Article III standing[.]” In re Abbott, 601

S.W.3d 802, 807 (Tex. 2020).

For standing, there must be: (1) an injury that is concrete and ac-

tual or imminent, not hypothetical; (2) a fairly traceable causal link be-

tween the injury and the defendant’s actions; and (3) the likelihood of

redressability. See Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009);

Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012).

A. Turnbull lacks standing to complain about the alleged

failure to prosecute other attorneys.

Turnbull lacks standing to bring claims regarding a state bar au-

thority’s decision to prosecute or not prosecute an alleged perpetrator un-

der both the causation and redressability prongs of standing. “Supreme

Court precedent makes clear that a citizen does not have standing to

challenge the policies of the prosecuting authority unless she herself is

prosecuted or threatened with prosecution.” Lefebure v. D’Aquilla, 15

F.4th 650, 652 (5th Cir. 2021), cert. denied, 212 L. Ed. 791, 142 S. Ct.

12

2732 (2022). Indeed, “a private citizen lacks a judicially cognizable inter-

est in the prosecution or nonprosecution of another.” Linda R.S. v. Rich-

ard D., 410 U.S. 614, 619 (1973).

Applying Linda R.S., the Fifth Circuit has held that a person has

no standing to pursue complaints about the prosecution of State Bar

grievances against individuals other than himself. Martinez v. State Bar

of Tex., 797 F. App’x 167, 168 (5th Cir. 2020) (unpublished). In Martinez,

a prisoner who filed a bar grievance against an attorney did not have “a

cognizable interest in the procedures used to consider his bar grievance

or in the ultimate outcome of the proceedings.” Id. The court relied on

Linda R.S. in holding that “a private citizen generally does not have a

cognizable interest in the decision to prosecute a third party[.]” Id.

Not only does U.S. Supreme Court and Fifth Circuit precedent3

make clear Turnbull lacks standing to complain about grievance proce-

dures that result in nonprosecution of other attorneys, but the Fifth Cir-

cuit recently affirmed a district court’s dismissal of a lawsuit brought

by Turnbull against largely the same parties he sued in this case

3 Again, the “Texas standing requirements parallel the federal test for Article III

standing[.]” Abbott, 601 S.W.3d at 807.

13

based on virtually the same facts for lack of standing. Turnbull v.

Bd. of Directors of State Bar of Tex., No. 24-50260, 2024 WL 4903274 (5th

Cir. 2024). In the federal court lawsuit, Turnbull brought (1) a federal

equal protection claim because he alleged his grievances were treated dif-

ferently than others; (2) a federal free speech and expression claim alleg-

ing the defendants’ actions caused him to suffer an injury that would chill

the speech of a person of ordinary firmness from continuing to engage in

filing grievances under the Texas grievance process; (3) a state law due

process claim; and (4) a state law equal protection claim. Id. at *1. The

district court dismissed each of the federal law claims for lack of standing

and dismissed the state law claims for lack of supplemental jurisdiction.

Id. The Fifth Circuit affirmed the district court’s dismissal of the federal

law claims for lack of standing, holding that Turnbull “has presented no

compelling reason why Martinez should not apply here[.]” Id.

Turnbull’s claims in this case likewise fail for the same reasons.

Turnbull’s claims all revolve around Defendants’ failure to prosecute his

grievances against two other attorneys—Lovett and Trevino. In his Orig-

inal Petition, Turnbull appears to argue that the letter communicating

BODA’s reversal of the dismissal of his initial grievances, a decision in

14

his favor, somehow confers standing because it indicated that CDC would

communicate with the parties regarding additional steps in the discipli-

nary process. But no cognizable legal interest is created in prosecutorial

process merely because of an assurance of future communication that can

only be provided by another party. And although Turnbull tries to rechar-

acterize his claims in his brief, Appellant’s Br. at 10, a trial court must

decide a “plea by reviewing the real substance of the pleadings (rather

than their characterization or form)[.]” Wilker v. Peniche, No. 01-20-

00596-CV, 2021 WL 4995513, at *2 (Tex. App.—Houston [1st Dist.] 2021,

no pet.) (mem. op.).

B. Hodgkins cannot provide the relief Turnbull seeks in

an injunction and therefore Turnbull cannot meet the

redressability prong of standing.

In his Original Petition, Turnbull sought a permanent injunction

against Hodgkins effectively prohibiting her from continuing to engage

in allegedly ultra vires actions, without legal authority, including depriv-

ing Turnbull of his procedural due process rights by denying Turnbull of

the right to amend his second set of grievances or have his amended

grievances be considered. In his brief, Turnbull asserts that Hodgkins

“informed Mr. Turnbull that BODA affirmed the dismissal of his

15

grievances, told Mr. Turnbull that BODA’s decision was final and denied

Mr. Turnbull his right to amend his grievances, in violation of the TRDP.”

Appellant’s Br. at 12. But as outlined above, Hodgkins lacks authority to

grant or deny Turnbull the ability to amend any grievances, have any

grievances be considered by CDC, or decide any appeals before BODA.

Again, Hodgkins’s role is purely ministerial—informing a complainant of

BODA’s decision. Hodgkins has no authority to act on a grievance—she

provides purely administrative support to the members of BODA who

opine on the substantive merits of an appeal of a grievance classification.

Hodgkins’s letter to Turnbull’s counsel simply stated that “the

Board affirms the dismissal of your grievance. This decision concludes

your appeal, and the Board has closed its file. The Board’s decision is

final.” CR 1444. Turnbull’s counsel then sent a letter to Hodgkins stating

that it was improper to consider the decision “final” and that Turnbull

had a right to amend his grievances. CR 1446-47. Hodgkins then sent

another letter to Turnbull’s counsel clarifying her statements in her pre-

vious letter that she meant the appeals were final and those decisions

could not be appealed to the Texas Supreme Court: “When the Board af-

firms a dismissal based on review of the grievance and supporting

16

documents that were before the CDC, the decision as to that appeal is

final . . . . As stated in Texas Rule of Disciplinary Procedure 7.11, “[d]eter-

minations by the Board of Disciplinary Appeals that a statement consti-

tutes an Inquiry . . . are conclusive, and may not be appealed to the Su-

preme Court.” CR 1449 (internal quotation marks omitted). Hodgkins

even clarified that complainants often may amend grievances after

BODA finally decides their appeal: “You are correct that the Texas Rules

of Disciplinary Procedure provide an opportunity for complainants to

amend grievances under certain circumstances . . . . The Board’s decision

regarding classification is based on the record as forwarded by the CDC,

and the finality of that decision has no bearing on whether a complainant

may amend the grievance to present additional information and docu-

mentation.” CR 1449. Therefore, Turnbull also fails to meet the redress-

ability prong of standing, and therefore the trial court was correct in

granting Hodgkins’s plea to the jurisdiction for that reason, too.

II. Hodgkins has full sovereign immunity to both suit and lia-

bility.

Sovereign immunity deprives a trial court of subject matter juris-

diction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Bland

17

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Under this doc-

trine, the State of Texas and its subdivisions are immune from suit ab-

sent a clear and express waiver of immunity. See TEX. GOV’T CODE §

311.034; City of El Paso v. Heinrich, 284 S.W.3d 366, 369-70 (Tex. 2009).

Immunity from suit arising out of a grievance proceeding is properly

raised in a plea to the jurisdiction. Crampton v. Farris, 596 S.W.3d 267,

276 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

Hodgkins is immune from both suit and liability in her official ca-

pacity4 as Executive Director and General Counsel of BODA because

Turnbull has failed to plead facts affirmatively demonstrating that Hodg-

kins’s immunity is waived.

“The State Bar is a governmental agency that is entitled to the pro-

tection afforded by sovereign immunity.” State Bar of Tex. v. Wilson, No.

03-18-00649-CV, 2019 WL 1272616, at *2 (Tex. App.—Austin 2019, pet.

denied) (mem. op.); see also Doe v. Bd. of Directors of State Bar of Tex.,

4 Hodgkins was sued in both her official capacity and in her individual capacity. CR

7. It is unclear why Hodgkins was sued in her individual capacity. In her plea to the

jurisdiction, Hodgkins asked the trial court to construe all of Turnbull’s claims

against her as official-capacity claims, rather than individual-capacity claims. CR

1437 (citing Heinrich, 284 S.W.3d at 377 (considering nature of liability sought to be

imposed in determining whether public official was being sued in an individual or

official capacity)). The trial court did so and dismissed all claims against Hodgkins.

Turnbull does not complain about this on appeal.

18

No. 03-15-00007-CV, 2015 WL 6656216, at *2 (Tex. App.—Austin 2015,

pet. denied) (“citing TEX. GOV’T CODE 81.011(a) (“The state bar is a public

corporation and an administrative agency of the judicial department of

government.”). The Board of Disciplinary Appeals is a judicial agency of

the State of Texas operating under the authority and rules of the State

Bar Act and the Texas Supreme Court. See TEX. R. DISCIPLINARY P., Part

VII.

“In determining whether sovereign immunity has been waived,

courts look to the real substance of a plaintiff’s cause of action, not the

plaintiff’s characterization of [their] claims.” Univ. of Tex. Med. Branch

at Galveston v. Qi, 402 S.W.3d 374, 389 (Tex. App.—Houston [14th Dist.]

2013, no pet.). In his brief, Turnbull asserts that the Legislature waived

Appellees’ sovereign immunity—including that of Hodgkins—in the

State Bar Act. Appellant’s Br. at 17-19. But the Texas Supreme Court

has only found waiver of sovereign immunity absent “magic words” “on

rare occasions.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697

(Tex. 2003) (stating that a statute must waive immunity “beyond doubt”

and that ambiguities regarding waiver are resolved in favor of retaining

immunity). Of course sovereign immunity “does not preclude prospective

19

equitable remedies in official-capacity suits against government actors

who allegedly have violated statutory or constitutional provisions.”

Gatesco Q.M., Ltd. v. City of Houston, 333 S.W.3d 338, 348 (Tex. App.—

Houston [14th Dist.] 2010, no pet.); see also City of El Paso v. Heinrich,

284 S.W.3d 366, 372-73 (Tex. 2009). But Turnbull has failed to allege any

cognizable violation of any statutory or constitutional provision on the

part of Hodgkins.

A. To the extent Turnbull has pled ultra vires claims

against Hodgkins, those claims fail, and Hodgkins has

retained her sovereign immunity from suit and liabil-

ity from those claims.

“[T]he ultra vires doctrine applies when a government official’s con-

duct is without legal or statutory authority.” Klumb v. Houston Munici-

pal Employees Pension Sys., 458 S.W.3d 1, 9 (Tex. 2015) (internal quota-

tion marks omitted). “To trigger the ultra vires exception to sovereign

immunity, 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.” Id. (internal quotation marks omitted).

Here, as outlined above, the real substance of Turnbull’s suit

against Hodgkins is that he disagrees with the final result of the attorney

20

disciplinary process as it relates to grievances Turnbull filed against

other attorneys. Thus, the underlying nature of Turnbull’s cause of action

against Hodgkins is a suit for judicial review of the final decision not to

discipline an attorney and BODA’s classifying grievances as inquiries.

See TEX. R. DISCIPLINARY P. R. 7.11 (stating that “[d]eterminations by the

Board of Disciplinary Appeals that a statement constitutes an Inquiry . .

. are conclusive” and may not be appealed). That allegation does not con-

stitute a waiver of sovereign immunity and, in fact, affirmatively demon-

strates that Plaintiff cannot plead a waiver of immunity as to Hodgkins.

On appeal, Turnbull tries to re-characterize his ultra vires claim

against Hodgkins: “Ms. Hodgkins informed Mr. Turnbull that BODA af-

firmed the dismissal of his grievances, told Mr. Turnbull that BODA’s

decision was final and denied Mr. Turnbull his right to amend his griev-

ances, in violation of the TRDP[.]” Appellant’s Br. at 21. But as outlined

above, all Hodgkins did was inform Turnbull that BODA—not Hodg-

kins—affirmed the dismissal of the grievances. Hodgkins did not deny

Turnbull the right to file amended grievances. Hodgkins even sent Turn-

bull’s counsel a letter clarifying this point. As such, Turnbull cannot show

that Hodgkins acted outside her statutory authority, and Hodgkins has

21

retained her sovereign immunity from suit and liability from Turnbull’s

ultra vires claims.

B. Turnbull’s state constitutional claims fail, and Hodg-

kins has retained her sovereign immunity from suit

and liability as to those claims.

“While it is true that sovereign immunity does not bar a suit to vin-

dicate constitutional rights, immunity from suit is not waived if the con-

stitutional claims are facially invalid.” Klumb, 458 S.W.3d at 13 (internal

citations omitted). Here, all of Turnbull’s constitutional claims against

Hodgkins are facially invalid. In his brief, Turnbull fails to explain how

his constitutional claims against Hodgkins are facially valid. Appellant’s

Br. at 19-20. Nevertheless, Hodgkins explains in detail below why they

are invalid.

i. Turnbull’s claim under article I, section 19 of the

Texas Constitution fails.

Turnbull’s due-course-of-law claim fails as a matter of law. When

determining whether a governmental action violates the due course of

law guarantee, the courts engage in a two-step inquiry. Univ. of Tex. Med.

School at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). A court first

determines if the plaintiff has an enumerated interest that is entitled to

protection; if so, the court then determines whether the governmental

22

agency followed due course of law in depriving the plaintiff of that inter-

est. Id.

Turnbull’s allegations under this claim appear to center on his de-

mand for the reasoning behind CDC’s referral of his grievances to the

summary disposition panel and not an investigatory hearing. But he does

not have an enumerated interest in this information. Indeed, Texas

courts have rejected the notion that section 81.072(b)(2) of the State Bar

Act somehow requires CDC to disclose its reasoning for electing to refer

a grievance to a summary disposition panel. See TEX. GOV’T CODE §

81.072(b)(2); see, e.g., Doe v. Bd. of Directors of State Bar of Tex., 2015 WL

6656216, at *4 (Tex. App.—Austin Oct. 27, 2015, pet. denied). This claim

fails as a matter of law.

Though not explicitly asserted under his due-course-of-law claim,

Turnbull’s Original Petition appears to assert a due process claim against

Hodgkins, alleging that, along with Defendant Martinez (CDC classifica-

tion attorney), she deprived Turnbull of his procedural due process rights

by denying Turnbull the right to amend his second set of grievances or

have his amended grievances be considered. As noted throughout, a com-

plainant does not have “a cognizable interest in the procedures used to

23

consider his bar grievance or in the ultimate outcome of the proceedings.”

Martinez, 797 F. App’x at 168. Without a cognizable interest, Turnbull

cannot assert a due process violation. Nevertheless, Turnbull focuses not

on the rules’ lack of a rehearing or appeal process for classification ap-

peals decided by BODA, but instead on his disagreement with CDC’s de-

termination that the subsequent grievances fell within the scope of his

previously submitted grievances and thus did not qualify for further

amendment under Rule 2.10(A). Even if a claim could be asserted on

these facts, Hodgkins was in no way involved in this determination, and

explicitly informed Turnbull’s counsel that the Board’s disposition had no

effect on whether he could (or could not) amend his grievances. CR 1449-

50. Thus, Turnbull’s due course of law claims fail as a matter of law.

ii. Turnbull’s claim under article I, section 3 of the

Texas Constitution fails.

Turnbull’s equal protection claim also fails as a matter of law. While

this claim largely focuses on how his grievances were prosecuted as com-

pared to others within the attorney discipline system, none of these alle-

gations assert that others were permitted to file amended grievances, but

he was not. And as to the Board’s decisions on Turnbull’s grievances, the

Board reversed the classification of the first set of grievances and

24

affirmed the classification of the second set of grievances—hardly a basis

for comparison as to cases involving other parties.

To establish an equal protection claim, a plaintiff must show that

two or more classifications of similarly situated persons were treated dif-

ferently. See Stefanoff v. Hays Cnty., Tex., 154 F.3d 523, 525-26 (5th Cir.

1998). However, Turnbull cannot bring an “Equal Protection claim on the

ground that one person received a discretionary punishment and another

did not, ‘even if for no discernable or articulable reason.’” Rountree v. Dy-

son, 892 F.3d 681, 684 (5th Cir. 2018) (quoting Engquist v. Oregon Dep’t

of Agr., 553 U.S. 591, 604 (2008)). This is because “[t]here are some forms

of state action . . . which by their nature involve discretionary decision

making based on a vast array of subjective, individualized assessments.”

Id. In those cases, “the rule that people should be ‘treated alike, under

like circumstances and conditions’ is not violated when one person is

treated differently from others, because treating like individuals differ-

ently is an accepted consequence of the discretion granted.” Id. Nowhere

does Turnbull allege any differential treatment by Hodgkins as compared

to other similarly situated complainants, either as to the processing of

Turnbull’s classification appeals or as to amendment of grievances

25

pursuant to Rule 2.10(A). This claim fails as a matter of law, and thus

Turnbull has failed to plead a valid waiver of sovereign immunity under

this constitutional provision.

iii. Turnbull’s claim under article I, section 13 of the

Texas Constitution fails.

Turnbull’s open courts claim also fails. The open courts provision of

Section 13 “includes at least three separate constitutional guarantees: 1)

courts must actually be operating and available; 2) the Legislature can-

not impede access to the courts through unreasonable financial barriers,

and 3) meaningful remedies must be afforded.” CenterPoint Energy Res.

Corp. v. Ramirez, 640 S.W.3d 205, 220 (Tex. 2022). The third guarantee

precludes the Legislature from “abrogat[ing] the right to assert a well-

established common law cause of action unless the reason for [the Legis-

lature’s] action outweighs the litigants’ constitutional right of redress.”

Id. Stated differently, an open-courts challenge must show that (1) “the

litigant has a cognizable common law cause of action that is being re-

stricted,” and (2) “the restriction is unreasonable or arbitrary when bal-

anced against the purpose and basis of the statute.” Trinity River Auth.

v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 262 (Tex. 1994). But a

constitutional attack that is not premised upon restriction of a common-

26

law cause of action necessarily fails the first prong of the open courts test.

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex. 1990).

Here, the grievance procedures in Texas are not premised on a com-

mon law right, but on the State Bar Act (TEX. GOV’T CODE Chapter 81),

the TRDP, and as related to BODA, the BODA IPR. None of these provi-

sions are rooted in the common law. Moreover, Hodgkins explicitly clari-

fied in her correspondence with Turnbull’s counsel that the Board’s dis-

position of the second set of Turnbull appeals had no bearing on whether

such grievances could be amended. Thus, even if an open courts claim

could be asserted, Hodgkins had no involvement in any action regarding

Turnbull’s attempt to amend his grievances.

In short, Turnbull’s constitutional claims against Hodgkins are fa-

cially invalid, and therefore Hodgkins has retained her sovereign immun-

ity from suit and liability as to those claims, too.

III. Hodgkins has full immunity from both suit and liability pur-

suant to the Texas Rules of Disciplinary Procedure.

The Texas Supreme Court has the exclusive power to regulate the

practice of law in the State of Texas. In re State Bar of Tex., 113 S.W.3d

730, 732 (Tex. 2003); see also Webster v. Comm’n for Lawyer Discipline,

__ S.W.3d __, 2024 WL 5249494, at *6-10 (Tex. Dec. 31, 2024) (outlining

27

the judiciary’s authority to regulate the practice of law). The Texas Su-

preme Court derives its power to regulate the practice of law in Texas

from the State Bar Act and the Texas Constitution. Id. (citing TEX. GOV’T

CODE § 81.11(c), TEX. CONST. art. II, § 1). Based on this authority, the

Texas Supreme Court “promulgated a regulatory scheme in which the

power to regulate the practice of law is delegated to BODA.” Id. The

Texas Supreme Court will not tolerate “the interference by a district

court in the regulation of the legal practice.” Id. at 735.

The Texas Rules of Disciplinary Procedure, incorporated into Title

2 of the Texas Government Code, explicitly provide for immunity from

civil actions for BODA and its members:

All members of the Commission, the Chief Disci-

plinary Counsel . . ., all members of Committees,

all members of the Board of Disciplinary Ap-

peals, all members of the District Disability Com-

mittees, all officers and Directors of the State Bar,

and the staff members of the aforementioned

entities are immune from suit for any conduct

in the course of their official duties. The im-

munity is absolute and unqualified and ex-

tends to all actions at law or in equity.

TEX. R. DISCIPLINARY P. R. 17.09; TEX. GOV’T CODE T. 2, Subt. G App A-1,

Disc. Proc. 17.09 (emphasis added). Likewise, the Texas Rules of Disci-

plinary Procedure “govern the attorney-disciplinary process and are to be

28

treated as statutes.” Washington v. Comm’n for Lawyer Discipline, No.

03-15-00083-CV, 2017 WL 1046260, at *9 (Tex. App.—Austin Mar. 17,

2017, pet. denied) (mem. op.) (citing TEX. R. DISCIPLINARY P. R. 1.02; In

re Caballero, 272 S.W.3d 595, 599 (Tex. 2008)).

Turnbull has sued Hodgkins in her official capacity for conduct

taken in the course of her official duties. Therefore, pursuant to statute,

this Court has no jurisdiction to hear any claim against Hodgkins that

may have resulted in other attorneys not being disciplined as a result of

Turnbull’s grievances. See Burch v. State Bar of Tex., No. 07-19-00224-

CV, 2020 WL 830982, at *2 (Tex. App.—Amarillo 2020, pet. denied)

(mem. op.) (holding that Texas Rule of Disciplinary Procedure 17.09 bars

suit against the Board of Disciplinary Appeals for actions taken related

to classification appeals).

And Texas Rule of Disciplinary Procedure 17.09 immunizes Hodg-

kins from suit and liability above and beyond what sovereign immunity

provides to her. As one court has said, “Rule 17.09’s immunity provision

is similar in nature to the doctrine of absolute prosecutorial immunity

recognized at common law because it provides immunity for any conduct

in the course of their official duties and states that the immunity is

29

absolute and unqualified and extends to all actions at law or in equity.”

Farris, 596 S.W.3d at 273 (internal quotation marks and citations omit-

ted). “In determining whether absolute immunity applies, we examine

the nature of the function performed, not the identity of the actor who

performed it.” Id. “If an individual’s actions are intimately associated

with his job responsibilities as a prosecutor, he enjoys absolute immunity

no matter if he acted maliciously, in bad faith, or with ulterior motives.”

Id. (internal quotation marks and citations omitted). Here, Turnbull pur-

portedly complains about the substance of Hodgkins’s communications to

Turnbull’s counsel regarding BODA’s disposition of his grievances. Hodg-

kins’s communications to Turnbull’s counsel is an activity “intimately as-

sociated” with her job responsibilities as Executive Director and General

Counsel of BODA, performing her role as BODA Clerk. Therefore, Hodg-

kins is entitled to absolute immunity under Texas Rule of Disciplinary

Procedure 17.09.

On appeal, Turnbull argues that “only the Texas Legislature may

grant absolute and unqualified immunity,” and seemingly makes an ar-

gument that Hodgkins cannot rely on Rule 17.09’s grant of immunity be-

cause Rule 17.09 itself is constitutionally infirm. Appellant’s Br. at 23.

30

But although Hodgkins has asserted immunity under Rule 17.09 at every

turn, Turnbull did not raise Rule 17.09’s constitutionality in the trial

court, and therefore Turnbull has waived any ability to make that argu-

ment on appeal. See, e.g., Tex. Dep’t of Protective & Regulatory Servs. v.

Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (“[A]s a rule, a claim, including a

constitutional claim, must have been asserted in the trial court in order

to be raised on appeal.’”) (citations omitted); TEX. R. APP. P. 33.1(a).

IV. The trial court correctly dismissed Turnbull’s claims

against Hodgkins with prejudice, and Turnbull should not

be afforded an opportunity to replead.

The trial court correctly dismissed Turnbull’s claims against Hodg-

kins without affording him an opportunity to replead. Although Turnbull

does not complain about this particular point on appeal and simply asks

this Court to reverse the trial court’s order, Appellant’s Br. at 29, Hodg-

kins nevertheless wishes to explain why the trial court’s disposition was

correct out of an abundance of caution.

Generally, when a court grants a plea to the jurisdiction based on

sovereign immunity, the court will allow the plaintiff to replead if the

plaintiff can cure the defects in his or her pleading. See, e.g., Tex. Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011); Tex. Dep’t of Ins.,

31

Division of Worker’s Comp. v. Brumfield, No. 04-15-00473-CV, 2016 WL

2936380, at *5-6 (Tex. App.—San Antonio 2016, no pet.) (mem. op.). How-

ever, “a pleader must be given an opportunity to amend in response to a

plea to the jurisdiction only if it is possible to cure the pleading defect.”

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (em-

phasis added). If “the pleadings affirmatively negate the existence of ju-

risdiction, then a plea to the jurisdiction may be granted without allowing

the plaintiff an opportunity to replead.” City of Killeen v. Cheney, No. 03-

18-00239-CV, 2018 WL 5832088, at *2 (Tex. App.—Austin 2018, no pet.)

(mem. op.).

Here, Hodgkins, who was sued in her official capacity, is entitled to

sovereign immunity. Further, as quoted above, Texas Rule of Discipli-

nary Procedure 17.09, codified in the Texas Government Code, affirma-

tively states that Hodgkins has complete immunity for claims arising out

of her conduct in the course of her official duties. Clearly, notifying a com-

plainant of the Board’s decision as to their appeal falls within her official

duties. Therefore, because both sovereign immunity and Texas Rule of

Disciplinary Procedure 17.09 explicitly bar claims such as these against

Hodgkins, the trial court correctly did not permit Turnbull the

32

opportunity to cure his pleadings and correctly dismissed all claims

against Hodgkins with prejudice. See Zawislak v. Moskow, No. 03-18-

00280-CV, 2019 WL 2202209, at *3-4 (Tex. App.—Austin 2019, no pet.)

(mem. op.) (holding that state statute affirmatively provided immunity

to an individual).

Prayer

For the reasons set forth above, Appellee Jenny Hodgkins requests

that the Court:

1. Affirm the trial court’s judgment;

2. Grant Appellee Hodgkins her costs incurred in this Court; and

3. Grant Appellee Hodgkins such other and further relief to

which she may be entitled at law or in equity.

33

Respectfully submitted,

/s/ Daniel J. Olds

Daniel J. Olds

State Bar No. 24088152

dolds@clarkhill.com

Jadd F. Masso

State Bar No. 24041411

jmasso@clarkhill.com

901 Main Street, Suite 6000

Dallas, Texas 75202

(214) 651-4300

(214) 651-4330 (facsimile)

-and-

Justin B. Cox

Texas Bar No. 24140160

jbcox@clarkhill.com

3711 South Mopac Expressway

Building One, Suite 500

Austin, Texas 78746

(214) 651-2191

(214) 659-4178 (facsimile)

Attorneys for Appellee Jenny Hodg-

kins

34

Certificate Of Compliance

In accordance with Tex. R. App. P. 9.4(i), I hereby certify that this

document contains 6,386 words.

/s/ Daniel J. Olds

Daniel J. Olds

Certificate of Service

I hereby certify that, on January 28, 2025, this document has been

served on the following by electronic service through the eFileTexas.gov

electronic filing system:

Gaines West

gaines.west@westwebblaw.com

John “Jay” Rudinger, Jr.

jay.rudinger@westwebblaw.com

Judd E. Stone, II

judd@stonehilton.com

/s/ Daniel J. Olds

Daniel J. Olds

35

Automated Certificate of eService

This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

Envelope ID: 96716683

Filing Code Description: Brief Not Requesting Oral Argument

Filing Description: Brief of Appellee Jenny Hodgkins

Status as of 1/29/2025 7:13 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Pat Mizell pmizell@velaw.com 1/28/2025 10:23:29 PM SENT

Billy SHart billy.hart@westwebblaw.com 1/28/2025 10:23:29 PM SENT

Jay Rudinger jay.rudinger@westwebblaw.com 1/28/2025 10:23:29 PM SENT

Jadd Masso 24041411 jmasso@clarkhill.com 1/28/2025 10:23:29 PM SENT

Royce Lemoine 24026421 royce.lemoine@texasbar.com 1/28/2025 10:23:29 PM SENT

Richard Huntpalmer 24097857 Richard.Huntpalmer@texasbar.com 1/28/2025 10:23:29 PM SENT

Gaines West 21197500 gaines.west@westwebb.law 1/28/2025 10:23:29 PM SENT

John Rudinger 24067852 jay.rudinger@westwebblaw.com 1/28/2025 10:23:29 PM SENT

Judd Stone 24076720 Judd@stonehilton.com 1/28/2025 10:23:29 PM SENT

Daniel Olds 24088152 dolds@clarkhill.com 1/28/2025 10:23:29 PM SENT

Brooke Noble bnoble@velaw.com 1/28/2025 10:23:29 PM SENT

Michael Graham 24113581 Michael.Graham@TEXASBAR.COM 1/28/2025 10:23:29 PM SENT

Emily Bamesberger ebamesberger@velaw.com 1/28/2025 10:23:29 PM SENT

Justin B.Cox jbcox@clarkhill.com 1/28/2025 10:23:29 PM SENT

Gaines West gaines.west@westwebblaw.com 1/28/2025 10:23:29 PM SENT