dismissing ultra vires claims and concluding pension board had broad authority to construe the statute and to add language necessary for administration of pension fund
How later courts described this case
- dismissing ultra vires claims and concluding pension board had broad authority to construe the statute and to add language necessary for administration of pension fund
Written by the judges who cited it.
The opinion
Affirmed and Memorandum Opinion filed August 14, 2025.
In The
Fifteenth Court of Appeals
NO. 15-24-00008-CV
TROY THOELE, MIKE BARRO, RYAN PARTLOW, ADAM OUDA,
AND TROY RICHARD, Appellants
V.
RENE HINOJOSA, IN HIS OFFICIAL CAPACITY AS THE
DIRECTOR OF THE PAROLE DIVISION OF THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE; MARSHA MOBERLEY IN
HER OFFICIAL CAPACITY AS CHAIRMAN OF THE TEXAS BOARD OF
PARDONS AND PAROLES; AND THE TEXAS BOARD OF PARDONS
AND PAROLES, Appellees
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-006192
MEMORANDUM OPINION
Appellants Troy Thoele, Mike Barro, Ryan Partlow, Adam Ouda, and Troy
Richard are former inmates currently residing in the community while on parole.
Because each Appellant was convicted of a crime of a sexual nature involving a child
victim, each Appellant’s release is subject to a mandatory condition (Special
Condition X) that prohibits them from residing within certain proximity of a “Child
Safety Zone.” Tex. Gov’t Code §§ 508.187 (“Child Safety Zone” for parolees), –
.225 (“Child Safety Zone” for releasees on mandatory supervision). Each Appellant
submitted a post-release housing plan that was denied because of its proximity to a
school bus stop.
Appellants brought a putative class action asserting a Texas Administrative
Procedure Act (APA) claim against the Texas Board of Pardons and Paroles (the
Board). According to Appellants, the Board promulgated a “Bus Stop Rule”
interpreting Section 508.187 to include school bus stops without providing a
reasoned justification for the rule or the opportunity for public comment.
Appellants also asserted ultra vires and Uniform Declaratory Judgment Act
(UDJA) claims against David Gutierrez1 in his official capacity as chair of the Board
of Pardons and Paroles; the Board; and Rene Hinojosa in his official capacity as the
director of the Parole Division of the Texas Department of Criminal Justice (TDCJ)
for implementing and enforcing the alleged “Bus Stop Rule”. Denying having
promulgated any such “Bus Stop Rule,”, the Board filed a plea to the jurisdiction.
Gutierrez and Hinojosa filed pleas to the jurisdiction denying having engaged in any
1
Appellants named David Guitierrez in his official capacity as Chairman of the Texas
Board of Pardons and Paroles. Gutierrez was succeeded by Marsha Moberley. In accordance with
Rule 7.2(a) of the Texas Rules of Appellate Procedure, Chairman Moberley has been automatically
substituted as the named party in this appeal. We will continue to name Gutierrez in our analysis
to maintain consistency with the pleadings and record before us.
2
ultra vires activity. The trial court granted the pleas and dismissed all of Appellants’
claims.
Appellants raise two issues on appeal. First, Appellants argue that the location
of a school bus stop does not meet the statutory definition of a “Child Safety Zone”
defined by statute as “premises where children commonly gather.” Tex. Gov’t Code
§ 508.187(b)(1)(B). Second, Appellants argue that the trial court erred by dismissing
the matter in its entirety without addressing the argument that the “Bus Stop Rule”
was promulgated in violation of the APA. We hold that Appellants’ APA and UDJA
claims are barred by sovereign immunity, and that Appellants have not pleaded
viable ultra vires claims. 2 Accordingly, we affirm.
BACKGROUND
Each of the Appellants was convicted of committing an offense of a sexual
nature against a child victim. After their respective convictions, Appellants were
incarcerated at facilities operated by TDCJ. Upon eligibility, each Appellant was
evaluated by and approved for early release on parole by the Board. Because of the
circumstances of their offenses—crimes of a sexual nature involving a child
victim—each Appellant’s parole is mandatorily subject to Special Condition X.
Special Condition X prohibits parole-eligible individuals from going within a certain
distance of a Child Safety Zone, defined by statute as “premises where children
commonly gather.” Tex. Gov’t Code § 508.187(b)(1)(B).
Parole in Texas
In Texas, parole is a “discretionary and conditional release of an eligible
inmate . . . so that the inmate may serve the remainder of the inmate’s sentence under
2
Because we find jurisdiction lacking for other reasons, we do not reach the question of
whether a school bus stop is a “Child Safety Zone” for purposes of the relevant statute.
3
supervision of the pardons and paroles division [of TDCJ].” Id. § 508.001(6). There
is no constitutional right to release on parole in Texas; early release from
incarceration is a privilege. Creel v. Keene, 928 F.2d 707, 712 (5th Cir. 1991).
The parole process in Texas involves two independent agencies, the Board
and TDCJ. See Tex. Gov’t Code ch. 508; id. § 491.001. Each agency’s role in the
process is demarcated within Chapter 508’s statutory scheme. See id. ch. 508 subch.
B (“Board of Pardons and Paroles”), subch. D (“[TDCJ] Pardons and Parole
Division”).
TDCJ is charged with housing and supervising inmates who have been
sentenced to a term of confinement in the state’s custody. Id. § 493.004. TDCJ’s
institutional division houses the inmates during the term of their incarceration and is
tasked with collecting certain metrics about each inmate’s conduct—all placed in
the inmate’s file—while in custody. Id. § 508.152; Tex. Dep’t of Crim. Just. Parole
Div., File Folder Composition, PD/POP-2.1.1 (eff. Mar. 9, 1999). Once an inmate
is eligible for parole, TDCJ transmits that file to the Board for review. PD/POP
2.1.11.
Upon receiving the inmate’s file, a parole panel appointed by the Board is
tasked with determining whether to grant parole to the inmate. Tex. Gov’t Code
§ 508.141. The Board has sole discretion on whether to grant parole. Tex. Const. art.
IV, § 11; Tex. Gov’t Code §§ 508.0441, –.141(b). The Government Code lists
several mandatory conditions—including Special Condition X—that the panel is
required to impose. See Tex. Gov’t Code §§ 508.181, –.192. However, the parole
panel has discretion to modify Special Condition X upon request by the parolee. Tex.
Gov’t Code § 508.187(d).
4
If an offender meets the criteria in Section 508.187(a), the parole panel is
required to impose Special Condition X as a mandatory condition of release. The
statute states that:
[a] parole panel shall establish a child safety zone as applicable to a releasee .
. . by requiring as a condition of parole or mandatory supervision that the
releasee:
(1) not:
(A) supervise or participate in any program that includes as
participants or recipients persons who are 17 years of age or
younger and that regularly provides athletic, civic, or cultural
activities; or
(B) go in, on, or within a distance specified by the [parole] panel
of premises where children commonly gather, including a
school, day-care facility, playground, public or private youth
center, public swimming pool, or video arcade facility[.]
Id. § 508.187(b).
After a parole panel approves parole and determines which parole conditions
to impose, TDCJ steps back in to vet the inmate’s proposed release plan. Id.
§ 508.181; see Tex. Dep’t of Crim. Just. Parole Div., Pre-Release Placement
Investigation (PPI), PD/POP-2.1.11 (eff. Oct. 30, 2019). A TDCJ parole officer
investigates the plan to make sure it complies with all the conditions imposed by the
panel, such as ensuring that the proposed residence is not within proximity of a Child
Safety Zone. PD/POP-2.1.11 at sec. II. 2. Based upon the results of their
investigation, the reviewing officer “shall approve or deny the plan in accordance
with [] this policy.” PD/POP-2.1.11 at sec. II.
When possible, TDCJ parole officers are encouraged to approve housing if it
is suitable. Id. at sec. III (“Failure of plans shall be regarded as a last resort[.]”)
(emphasis in original). However, a plan cannot be approved if it does not comply
5
with the conditions of parole. Id. at sec. III.E. In that situation, TDCJ works with the
inmate to develop alternate release plans “in order to serve the best interests of the
community and the offender.” Id.
TDCJ parole officers continue to supervise the parolee once they are released
to ensure they comply with the conditions of their release. Tex. Gov’t Code
§§ 508.001(7), –.112.
The Lawsuit
Appellants filed a class action lawsuit on behalf of “all individuals on parole
with Special Condition X or who have been discharged from parole in the State of
Texas whose residential plans have been or may be rejected by enforcement of the
“Bus Stop Rule.” In the 353rd Civil District Court in Travis County. They asserted
APA, UDJA, and ultra vires claims, requesting declaratory, mandamus, and
injunctive relief.
As to their APA claim against the Board, Appellants asserted that the Board’s
inclusion of school bus stops as Child Safety Zones constituted a “rule” within the
meaning of the APA. Because the Board failed to follow the procedural requirements
of the APA in promulgating the rule, Appellants sought a declaration that the
Board’s “tacit adoption” of the “Bus Stop Rule” was “without legal authority and in
violation of the [APA].”
Regarding their UDJA and ultra vires claims, Appellants pleaded that
Gutierrez, former chair of the Board, “acted in an ultra vires fashion, in a manner
[that] is contrary to law, and in excess of his legal authority, by tacitly allowing,
affirmatively ratifying, implementing or enforcing the ’Bus Stop Rule.’” Similarly,
Appellants alleged Hinojosa, director of TDCJ’s parole division, “acted in an ultra
vires fashion, in a manner [that] is contrary to law, and in excess of his legal
6
authority, when adopting, implementing, and enforcing the ‘Bus Stop Rule.’”
Appellants alleged that Appellees acted outside the scope of their authority when
they “unlawfully disapproved [Appellants’] release plans solely because the
residences [Appellants] have proposed to live while on parole are within 500 feet of
a school bus stop.”
As relief, Appellants sought to enjoin Gutierrez and Hinojosa from including
school bus stops as Child Safety Zones. They also requested a declaration that
Appellees’ “adoption and enforcement of the ‘Bus Stop Rule’ exceeds [Appellees’]
authority and that [Appellees] have engaged in ultra vires acts.” Appellants asked
the trial court to order Appellees to “re-assess any residential release plans submitted
by individuals currently on parole with Condition X, and to approve or deny those
plans without considering the proximity of a school bus stop to the proposed place
of residence.”
Appellees’ Pleas to the Jurisdiction
Appellees filed pleas to the jurisdiction. The Board and Gutierrez asserted
sovereign immunity and asked the trial court to dismiss all claims because the Board
had not enacted or implemented any such rule. Hinojosa also asserted sovereign
immunity and further argued that Appellants’ requested relief was barred under the
redundant remedies doctrine.
The trial court held a hearing on Appellees’ respective pleas and Appellants’
request for a temporary injunction. At the hearing, Appellants Partlow and Ouda
testified about how the denial of their housing plans impacted their ability to
reintegrate into society. Partlow testified that he submitted seven different proposed
residences to his parole officer. All of his proposals were rejected. In at least one
instance, Partlow was told by a “parole officer at the Hightower Unit that the address
7
was denied due to a bus stop.” Instead, he was forced to live in a halfway house
before his TDCJ parole officer finally approved the house he lives in now.
Ouda’s proposed housing plan was approved, and he was released to reside
with his parents. However, the day after he arrived at his parents’ house, his TDCJ
parole officer informed him that the plan had been erroneously approved because
the home was within 500 feet of a school bus stop. He was required to move. As a
result, Ouda was placed on house arrest and transferred to a halfway house, where
he resided for seven months until he was able to purchase a house that complied with
Special Condition X.
Appellants also presented emails between Dianne Johnson (Appellant Troy
Thoele’s mother) and two representatives from TDCJ: regional director Joe Balleza
and Hinojosa himself. In response to Johnson’s question about why her residence
had been denied, Ballez wrote “[p]arole rules require your son to reside at least 500ft
from any Child Safety Zone, such as school bus stops. The school bus stop in
question is under 500ft from the residence, therefore the residence cannot be
approved.” When asked who had imposed the Child Safety Zone condition on
Thoele, Hinojosa responded that “[t]he Board of Pardons and Parole imposed special
condition X (Sex Offender Conditions) . . . The child safety zone is a component of
this condition when criteria is met according to policy and statute.”
Jennifer Robinson, deputy director of TDCJ’s parole division, testified about
TDCJ’s role in the parole process. Specifically, she testified that once approved,
inmates submit proposed addresses to an “institutional parole officer” employed by
the Board, who then sends it to a TDCJ field parole officer for investigation. That
TDCJ parole officer vets the plan to ensure it complies with the conditions of parole.
In evaluating proposed placements, TDCJ field officers “go out and they investigate
that location” to “ensure that proposed residences were not within 500 feet of a Child
8
Safety Zone.” When asked “who implemented the bus stop practice at [TDCJ’s]
parole division,” Robinson replied that the practice predated her employment with
TDCJ, which began in 1998. When asked “what authority does [TDCJ’s] Parole
Division rely on to enforce this practice,” Robinson responded that “[t]he
Government Code states that a Child Safety Zone is a place where children
commonly gather.”
The trial court denied Appellants’ request for injunctive relief and granted the
Board and TDCJ’s respective pleas to the jurisdiction, dismissing all claims and
denying the request for mandamus relief against each Appellant with prejudice “for
lack of subject matter jurisdiction.” This appeal followed.
STANDARD OF REVIEW
Whether a court has subject matter jurisdiction over a cause is a question of
law reviewed de novo. Davis v. Morath, 624 S.W.3d 215, 221 (Tex. 2021).
“Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and
thus 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) (quoting Tex. Dep’t of Transp. v.
Jones, 8 S.W.3d 636, 637 (Tex. 1999)).
When evidence is relevant to the question of jurisdiction, a court “may
consider evidence and must do so when necessary to resolve the jurisdictional issues
raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “[I]n a
case in which the jurisdictional challenge implicates the merits of the plaintiffs’
cause of action and the plea to the jurisdiction includes evidence, the trial court
reviews the relevant evidence to determine if a fact issue exists.” Miranda, 133
9
S.W.3d at 227. If the relevant evidence presented is undisputed or fails to raise a fact
question, the trial court may rule on the plea as a matter of law. Id. at 228.
ANALYSIS
I. “Bus Stop Rule”ADMINISTRATIVE PROCEDURE ACT CLAIM AGAINST THE
BOARD OF PARDONS AND PAROLES
As part of their second issue, Appellants challenge the trial court’s dismissal
of their claim against the Board for a “declaratory judgment invalidating the “Bus
Stop Rule” under the Texas APA.”
Chapter 2001 of the Government Code waives sovereign immunity to allow
parties to challenge improperly promulgated rules in certain circumstances. See
generally Tex. Gov’t Code ch. 2001. Parties may bring actions 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.” Id. § 2001.038(a); see Kensington Title-Nevada, LLC v. Tex. Dep’t of
State Health Svcs., 710 S.W.3d 225, 230 (Tex. 2025).
Chapter 2001 is not universally applicable to all agency action, however.
Section 2001.226 expressly states that Chapter 2001 “does not apply to a rule or
internal procedure of the Texas Department of Criminal Justice or Texas Board of
Criminal Justice that applies to an inmate or any other person under the custody or
control of the department or to an action taken under that rule or procedure.” Tex.
Gov’t Code § 2001.226. Accordingly, there is no waiver of sovereign immunity for
Appellants to challenge a “Bus Stop Rule” to the extent that such a rule was created
by TDCJ’s Parole Board. See Harrison v. Tex. Dep’t of Crim. Just., Inst. Div., 164
S.W.3d 871, 876 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.) (interpreting
Section 2001.226 to “expressly bar[]” review by the district court of TDCJ agency
action). Significantly, Appellants acknowledge that Section 2001.226 bars them
10
from bringing an APA claim against TDJC’s Parole Division based upon the
promulgation or implementation of any “Bus Stop Rule.”
Appellants argue that no statutory bar prevents them from alleging an APA
challenge against the Board, a separate agency not mentioned in Section 2001.226’s
statutory carveout from Chapter 2001. According to Appellants, the Board failed to
follow required APA procedures in creating and implementing a “Bus Stop Rule”
that interprets Child Safety Zones to include school bus stops, thereby preventing
Appellants from living at their proposed residences while on parole.
The Board responds that it has not promulgated a “Bus Stop Rule” of any sort.
According to the Board, the trial court properly granted the plea because TDCJ is
the agency in charge of vetting and approving housing plans—the Board has no role
in that process. The Board contends that Appellants are attempting to circumvent the
Legislature’s express bar of APA claims against TDCJ by suing the Board for
TDCJ’s actions.
“[T]he APA applies only to statements of general applicability that
implement, interpret or prescribe law or policy.” Tex. Educ. Agency v. Leeper, 893
S.W.2d 432, 443 (Tex. 1994). A “rule” is a “state agency statement of general
applicability that: (i) implements, interprets, or prescribes law or policy; or (ii)
describes the procedure or practice requirements of a state agency[.]” Tex. Gov’t
Code § 2001.003(6)(A).
A rule is invalid when the promulgating agency adopts the rule without
following Chapter 2001’s required rulemaking procedures, such as notice,
publication, and public comment. El Paso Hosp. Dist. v. Tex. Health & Human
Servs. Comm’n, 247 S.W.3d 709, 715 (Tex. 2008) (citing Tex. Gov’t Code
§ 2001.035(a)). A court “shall reverse or remand the case for further proceedings if
11
substantial rights of the appellant have been prejudiced” when a rule is “made
through unlawful procedure.” Tex. Gov’t Code § 2001.174(2)(C).
But “[i]f there is no ‘rule as defined by the APA’ being challenged, in other
words, the claimant cannot obtain the declaratory relief the statute authorizes against
the State, its agencies, or its agents, because sovereign immunity would bar the cause
of action.” Slay v. Tex. Comm’n on Env’t. Quality, 351 S.W.3d 532, 545 (Tex.
App.—Austin 2011, pet. denied) (citing Combs v. City of Webster, 311 S.W.3d 85,
100–01 (Tex. App.—Austin 2009, pet. denied)). “To the extent that no rule as
defined by the APA is at issue, section 2001.038 does not provide any basis for the
district court’s jurisdiction over [the] declaratory judgment action.” Combs, 311
S.W.3d at 100.
We agree with the Board that there is no “Bus Stop Rule” as defined by the
APA that could provide a basis for the exercise of the district court’s jurisdiction
over Appellants’ APA claim against the Board. Even if we take Appellants’
allegations as true and assume that an injury has occurred, Appellants failed to
establish that the challenged practices here constitute Board action at all—much less
the invalid promulgation of a Board “rule” under the APA.
We find no Board statement or policy evidencing any practice or requirement
to deny housing based on proximity to a school bus stop. By statute, the Board may
impose Special Condition X and establish a Child Safety Zone applicable to an
inmate serving a sentence for certain felony offenses of a sexual nature involving a
child victim. See Tex. Gov’t Code §§ 508.187, –.225. The Board’s official policy on
Special Condition X provides that sex offenders with child victims shall:
Not go in, on, or within a distance specified by Board policy of a
premises where children commonly gather, including a school, day care
facility, and playground, public or private youth center, public
12
swimming pool, or video arcade facility [Child Safety Zone restrictions
section 508.187(b)(1)(B) AND 508.225(a)(2), Texas Government
Code.].
Tex. Bd. Pardons & Paroles, Special Condition “X” (Sex Offender Condition), BPP-
POL. 145.263 at sec. (D)(6) (Oct. 19, 2023).
The Board’s official policy interpreting Special Condition X does not mention
bus stops. That policy mirrors the language in Government Code Sections 508.187
and 508.225 almost word for word. Absent this policy, we cannot find, nor have
Appellants identified, any other statement or policy by the Board interpreting Child
Safety Zone.
Appellants nevertheless contend that the Board informally promulgated the
“Bus Stop Rule” by requiring TDCJ to enforce it and that the Board cannot “evade
responsibility for issuing a rule simply because someone else carries it out.” But
Appellants presented no evidence that the Board issued such a rule or even
informally stated that school bus stops were ”Child Safety Zone.”
Nor did Appellants provide any evidence that the Board had any practice or
role in denying housing plans based on their proximity to a school bus stop. At the
hearing on Appellees’ pleas to the jurisdiction, Partlow and Ouda testified that it was
TDCJ parole officers who denied their housing plans. TDCJ’s director Robinson
testified that it was TDCJ parole officers who had a practice of denying housing
plans based on proximity to school bus stops.
The evidence presented establishes that it was TDCJ parole officers—not the
Board—who investigated and denied Appellants’ proposed housing plans. And that
role is in line with Chapter 508’s bifurcation of duties in the parole process. The
Board and TDCJ are distinct agencies with different duties and responsibilities in
the parole process, all governed by chapter 508 of the Government Code. TDCJ is
13
charged with investigation and supervision of releasees. Tex. Gov’t Code § 508.112.
The Board’s role is limited to that of approving parole and assessing which
conditions apply. Id. §§ 508.0441, –.141. The authority to approve or deny housing
plans is vested with TDCJ, an agency not subject to a suit by Appellants under the
APA. Id. § 508.112 (“Duty of Division”); id. §2001.226 (TDCJ not subject to APA
suit by parolee).
Appellants nevertheless argue that by failing to prohibit TDCJ from including
school bus stops within Child Safety Zones, the Board implicitly ratified or adopted
TDCJ’s policy to do so. But Appellants present no authority to support their
contention that APA liability can be imputed by the actions of a separate,
independent agency. The plain text of the APA imposes responsibility on each
agency only for its own rules or practices, and explicitly carves TDCJ’s parole
procedures out of the Act. See infra sec. III. Appellants cannot circumvent Section
2001.226’s explicit exclusion by attributing TDCJ’s actions and decisions to the
Board. The trial court therefore did not err by granting the Board’s plea to the
jurisdiction on Appellants’ APA claim.
Accordingly, we overrule Appellants’ second issue with respect to their APA
claim against the Board.
II. ULTRA VIRES AND UNIFORM DECLARATORY JUDGMENT ACT CLAIMS
AGAINST THE CHAIR OF THE BOARD OF PARDONS AND PAROLES
Appellants also challenge the trial court’s dismissal of their UDJA and ultra
vires claims against Gutierrez, the former chair of the Board. Appellants pleaded that
Gutierrez “acted in an ultra vires fashion . . . by tacitly allowing, affirmatively
ratifying, implementing or enforcing the ‘Bus Stop Rule’”. Appellants’ asserted that
Gutierrez acted ultra vires by “impos[ing] the ‘Bus Stop Rule’” that was improperly
promulgated by the Board on Appellants.
14
An ultra vires action waives sovereign immunity if a plaintiff “allege[s], and
ultimately prove[s], that the officer acted without legal authority or failed to perform
a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.
2009). The UDJA is “merely a procedural device for deciding cases already within
a court’s jurisdiction rather than a legislative enlargement of a court’s power . . . .”
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Thus,
the UDJA “is not a general waiver of sovereign immunity.” Tex. Parks & Wildlife
Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).
Appellants provided no evidence to establish that Gutierrez took any action in
denying their housing plans, much less that he “tacitly allowed, affirmatively
ratified, implemented or enforced” the “Bus Stop Rule.” The evidence in the record,
including testimony from Appellants and TDCJ’s witness, established that it was
TDCJ parole officers who vetted and denied housing plans, not Gutierrez or any
employee of the Board. The record contains no evidence that the Board has
promulgated such a rule, and there is no evidence that Gutierrez implemented it if it
did exist. Accordingly, we overrule Appellants’ first issue with respect to
Appellants’ UDJA and ultra vires claims against Gutierrez.
III. ULTRA VIRES AND UNIFORM DECLARATORY JUDGMENT ACT CLAIMS
AGAINST THE DIRECTOR OF THE INSTITUTIONAL DIVISION OF TEXAS
DEPARTMENT OF CRIMINAL JUSTICE
Finally, Appellants challenge the trial court’s dismissal of their UDJA and
ultra vires claims against Hinojosa, Director of the Parole Division of TDCJ.
Appellants plead that Hinojosa “acted in an ultra vires fashion . . . when adopting,
implementing and enforcing the ‘Bus Stop Rule’ by including school bus stops
within the definition of a Child Safety Zone. Tex. Gov’t Code §508.187(b)(1)(B)
(defining as “premises where children commonly gather, including a school, day-
15
care facility, playground, public or private youth center, public swimming pool, or
video arcade facility”).
As discussed, Appellants have no ability to make an APA claim against TDCJ
for promulgation of an invalid rule. Section 2001.226 expressly states that Chapter
2001 “does not apply to a rule or internal procedure of the Texas Department of
Criminal Justice or Texas Board of Criminal Justice that applies to an inmate or any
other person under the custody or control of the department or to an action taken
under that rule or procedure.” Tex. Gov’t Code § 2001.226. This statute divested the
trial court of jurisdiction over any APA claim against the TDCJ based on any rule or
internal procedure of TDCJ.See Harrison, 164 S.W.3d at 876. Appellants
acknowledge that the APA’s sovereign immunity waiver “does not apply to the
TDCJ.”
Yet, there is little question based on the record before us, that if either
Appellee implemented a “Bus Stop Rule” and applied it to Appellants, it was TDCJ.
TDCJ is the entity that manages the conditions of Appellants’ parole, including
determining where they were allowed to live. Faced with this inability to challenge
TDCJ’s policy as an invalid rule under the APA, Appellants have turned instead to
pursuing a claim for ultra vires conduct against Hinojosa.
Ultra vires claims, however, are limited. As the Texas Supreme Court has
concluded, “whether a suit attacking an exercise of limited discretion will be barred
is dependent upon the grant of authority at issue in any particular case. And so many
legislative grants of authority, although not absolute, will be broad enough to bar
most, if not all, allegedly ultra vires claims.” Hou. Belt & Terminal Ry. Co. v. City
of Houston, 487 S.W.3d 154, 164 (Tex. 2016). That is the case here. The Legislature
in Section 2001.226 barred any challenges by those on parole to rules implemented
by TDCJ, thereby granting broad authority to TDCJ to implement rules relating to
16
parole. And, as the Texas Supreme Court has recognized, when a governmental
entity is given broad power under a given statutory scheme, it will be given some
leeway in construing statutory terms as wellabsent “manifest conflict” with the
statute, making an ultra vires claim unavailable here. Klumb v. Houston Mun.
Employees Pension Sys., 458 S.W.3d 1, 11 (Tex. 2015) (dismissing ultra vires
claims and concluding pension board had broad authority to construe the statute and
to add language necessary for administration of pension fund).
Although the Legislature may not have given TDCJ absolute discretion to
interpret the definition of Child Safety Zone in any way it sees fit, it clearly granted
TDCJ broad authority and discretion to ensure compliance with conditions of parole,
including what locations constitute a Child Safety Zone under the statute and the
rules that result from that interpretation. Under these circumstances, an ultra vires
claim is not viable against Hinojosa, in his official capacity with TDCJ, for
implementing a rule that prohibits parolees under Special Condition X from living
within 500 feet of a school bus stop, where it is undisputed that children commonly
gather. That is true, even if the interpretation of the statutory language at issue is a
close question on whether a bus stop qualifies as a “premises,” as Appellants argue.
Interpreting “premises where children commonly gather” to include a school bus
stop does not present a manifest conflict with the statute itself and is consistent with
TDCJ’s broad authority to enforce the conditions of parole. Appellants’ ultra vires
claim against Hinojosa fails.
We overrule Appellants’ first issue with respect to their UDJA and ultra vires
claims against Hinojosa.
17
CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment granting
Appellees’ pleas to the jurisdiction and dismissing the case with prejudice.
_/s/ April Farris ________________
April Farris
Justice
Before Chief Justice Brister and Justices Field and Farris.
18