Galveston County Judge Mark Henry and County Commissioners Ryan Dennard, Joe Guisti, Stephen Holmes and Ken Clark, in Their Official Capacity as the Galveston County Commissioners Court v. Kimberly Sullivan, Judge Probate Court of Galveston County

Opinion of April 5, 2016 Withdrawn; Motion for Rehearing Denied; Motion

to Strike Denied; Affirmed as Modified; and Substitute Opinion filed July 12,

2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00161-CV

GALVESTON COUNTY JUDGE MARK HENRY AND COUNTY

COMMISSIONERS RYAN DENNARD, JOE GUISTI, STEPHEN HOLMES

AND KEN CLARK, IN THEIR OFFICIAL CAPACITY AS THE

GALVESTON COUNTY COMMISSIONERS COURT, Appellants

V.

KIMBERLY SULLIVAN, JUDGE, PROBATE COURT OF GALVESTON

COUNTY, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 14-CV-1112

SUBSTITUTE OPINION

We deny the parties’ motions for rehearing; withdraw our opinion of April 5,

2016; and issue this substitute opinion in its place.

When Judge Kimberly Sullivan submitted her proposed budget for the

2014–2015 fiscal year to the Galveston County Commissioners Court, she included

compensation for her services as the county’s local administrative statutory probate

court judge. The $5,000 payment was to be paid from the “contributions fund,” a

dedicated fund that “may be used only for court-related purposes for the support of

the statutory probate courts in the county.”1 The commissioners court eliminated

this payment from the budget, and Sullivan sued the members of the court in their

official capacities under a state constitutional provision that grants district courts

“general supervisory control” over the commissioners court. See TEX. CONST. art.

V, § 8.

In this interlocutory appeal, the members of the commissioners court

contend that the trial court erred in denying their plea to the jurisdiction because

Sullivan failed to allege sufficient facts to establish the district court’s jurisdiction

over her claims against them. They additionally argue that they are entitled to

legislative and governmental immunity from suit. We conclude that Sullivan

invoked the trial court’s jurisdiction over her claims by alleging that the members

of the commissioners court acted arbitrarily and capriciously. We also conclude

that when Sullivan filed her pleadings, the relief she sought was within the trial

court’s jurisdiction because she sought only mandamus, declaratory relief, and

prospective monetary relief. By the time this case was submitted, however, some

of the relief she requested had become retrospective monetary relief barred by

governmental immunity. We therefore modify the trial court’s ruling to grant the

plea to the jurisdiction only as to Sullivan’s requests for retrospective monetary

relief; affirm the ruling as modified; and remand the case for further proceedings.

1

See TEX. GOV’T CODE ANN. § 25.00213 (West Supp. 2015).

2

I. MOTION TO STRIKE

The appellants are the members of the Galveston County Commissioners

Court—Galveston County Judge Mark Henry and Galveston County

Commissioners Ryan Dennard, Joe Guisti, Stephen Holmes, and Ken Clark—in

their collective official capacity as the Galveston County Commissioners Court.

See TEX. LOC. GOV’T CODE ANN. § 81.001 (West 2008) (providing that the

members of the commissioners court are the county commissioners and the county

judge, who presides over the commissioners court). For ease of reference, we omit

the parties’ titles, and we refer to Henry as though he were representative of all of

the appellants.

Before reaching the merits of the appeal, we must address Henry’s motion to

strike certain material from the appellate record or from Sullivan’s brief and its

accompanying appendix.

A. Sullivan’s Response to the Jurisdictional Plea

Henry first asks that we strike Sullivan’s timely filed response to the plea to

the jurisdiction from the record. He states a number of reasons, none of which are

valid.

1. Reason One: Henry did not ask for the response to be included in

the record.

Although Henry is appealing the trial court’s denial of his plea to the

jurisdiction, he did not ask the clerk of the trial court to include Sullivan’s response

to his plea. The clerk nevertheless included the response and its exhibits in the

record. While Henry acknowledges that Sullivan cites this material in her

appellate brief, he nevertheless characterizes the documents as “unnecessary.”

Citing Texas Rule of Appellate Procedure 34.5(b), he asks us not only to strike the

3

unrequested material from the record, but also to strike those portions of Sullivan’s

brief in which she relies on those documents.

There is no support for granting such relief. Rule 34.5 provides that a party

requesting unnecessary items can be required to pay for them, but it does not

authorize material to be struck from the clerk’s record. See TEX. R. APP. P.

34.5(b)(3). Moreover, a party, the trial court, or the appellate court can direct the

clerk of the trial court to supplement the clerk’s record, and the supplement

becomes part of the appellate record. See TEX. R. APP. P. 34.5(b)(4), (c).

2. Reason Two: Henry did not receive Sullivan’s response before the

hearing.

Henry next contends that Sullivan failed to timely deliver a copy of her

response to him. The record reflects that Sullivan’s response was timely filed four

days before the hearing, and according to the certificate of service, it was served

the same day. See TEX. R. CIV. P. 21a(a)(1) (electronically filed documents must

be served electronically if the email address of the recipient is on file with the

electronic filing manager); TEX. R. CIV. P. 21a(b)(3) (electronic service is complete

on transmission to the serving party’s electronic filing service provider). The

certificate is prima facie evidence of the fact of service, and the appellate record

does not show that Henry offered proof in the trial court that he did not receive the

response. See TEX. R. CIV. P. 21a(e). In an appendix to his reply brief, Henry has

included material that is not part of the record in an attempt to introduce evidence

that he did not timely receive Sullivan’s response. He nevertheless concedes, both

in his reply brief and in his motion to strike, that this court “must hear and

determine a case on the record as filed, and may not consider documents attached

as exhibits to briefs.” See, e.g., Markowitz v. Markowitz, 118 S.W.3d 82, 87 & n.1

(Tex. App.—Houston [14th Dist.] 2003, pet. denied). We therefore do not

consider this material, and instead rely on the appellate record.

4

Because the appellate record shows that Henry neither objected to the

allegedly late service nor asked the court to strike Sullivan’s response, he has

waived any complaint as to untimely service. See TEX. R. APP. P. 33.1(a).

3. Reason Three: The trial judge did not read the response.

Although Henry admits that Sullivan handed the trial court a copy of her

response at the hearing on the plea to the jurisdiction, he asserts that the trial judge

did not read it, and thus, the response should be struck from the record. He cites

no authority for this unwarranted proposition. But see Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) (“[W]e consider relevant

evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do.” (emphasis added)); Desai v.

Chambers Cnty. Appraisal Dist., 376 S.W.3d 295, 300 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (“[T]his court may review[] the evidence attached in response

to the pleas to the jurisdiction . . . .” ).

We deny the portion of Henry’s motion in which he asks us to strike

Sullivan’s response from the appellate record and to strike the portions of her brief

relying on that response.

B. Authorities Included in the Appendix to Sullivan’s Brief

In the second portion of the motion to strike, Henry asks that we strike from

the appendix to Sullivan’s brief material that is not included in the clerk’s record,

and that we strike the portions of Sullivan’s brief in which she cites that material.

The only items in the appendix that are not part of the clerk’s record are copies of a

Texas Attorney General opinion and a concurring opinion in another case. See

Tex. Att’y Gen. Op. GA-0105 (2003); In re Henry, No. 01-14-00820-CV, 2015

WL 1735368 (Tex. App.—Houston [1st Dist.] Apr. 14, 2015, orig. proceeding

5

[mand. denied]) (Massengale, J., concurring in denial of reconsideration en banc).

Such authority properly may be included in the appendix to a party’s brief. See

TEX. R. APP. P. 38.1(k)(2) (the appendix to an appellant’s brief may contain copies

or excerpts of court opinions and similar material); see also Jessen Assocs., Inc. v.

Bullock, 531 S.W.2d 593, 598 n.6 (Tex. 1975) (orig. proceeding) (explaining that

opinions of attorneys general, “while not binding on the judiciary, are persuasive

and are entitled to consideration”).

Because there are no grounds to strike any of this material, we deny the

motion.

II. PLEA TO THE JURISDICTION

A defendant seeking dismissal of a case for want of jurisdiction may file a

plea to the jurisdiction challenging the plaintiff’s pleadings or challenging the

existence of jurisdictional facts. See City of Waco v. Kirwan, 298 S.W.3d 618,

621–22 (Tex. 2009). Where, as here, a plea to the jurisdiction challenges the

plaintiff’s pleadings, we determine whether the plaintiff has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause. See Miranda,

133 S.W.3d at 226. This is a question of law which we review de novo. Id. To

determine whether the plaintiff has met this burden, we liberally construe the

pleadings, taking all factual assertions as true and looking to the pleader’s intent.

City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per

curiam).

Sullivan asserted in her pleadings that the district court has jurisdiction over

her suit pursuant to Article V, Section 8 of the Texas Constitution, which provides

that “[t]he District Court shall have appellate jurisdiction and general supervisory

control over the County Commissioners Court, with such exceptions and under

such regulations as may be prescribed by law.” TEX. CONST. art. V, § 8. The

6

enabling legislation repeats this language,2 and with a few exceptions inapplicable

here, the legislature has not specified how this jurisdiction is exercised or even

invoked. See Comm’rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). As a

result, the scope of the district court’s supervisory jurisdiction generally has been

defined by case law. Id. at 80.

To decide whether the trial court erred in denying Henry’s plea to the

jurisdiction, we will begin by identifying Sullivan’s allegations. We will then

address the parties’ arguments about whether, under the relevant case law, these

allegations are sufficient to invoke the district court’s jurisdiction over the suit as

pleaded.

A. Sullivan’s Pleadings

As context for her claims, Sullivan states in her pleadings that fifteen years

ago, the presiding judge over all of the state’s statutory probate courts issued

Administrative Order 2001-11, under which Sullivan is required to act as the

county’s local administrative statutory probate court judge. She represents that the

local administrative judge for each of three types of courts in the county

historically has been paid an annual “judicial administrative fee” or “administrative

salary” of $5,000. She states that this amount is paid to the local administrative

district court judge and the local administrative county court at law judge from the

county’s general fund, but the fee to the local administrative statutory probate court

judge is paid from a dedicated “contributions fund” created from the filing fees in

probate cases. Sullivan further explains that she submits to the commissioners

court an annual budget that includes the fee payment from the contributions fund.

She contends that she submits the budget as a matter of public disclosure, and not

for the commissioners court’s approval. According to Sullivan, the commissioners

2

See TEX. GOV’T CODE ANN. § 24.020 (West 2004).

7

court has no jurisdiction over the contributions fund from which the administrative

fee is paid; no jurisdiction over the administrative-fee portion of her budget; and no

discretion to approve or disapprove the payment.

Despite the history of paying a $5,000 administrative fee to all three local

administrative judges, Sullivan alleges that Henry voted in September 2014 to

continue paying the fee from the county’s general fund to the local administrative

judges for the district and county courts at law, but to eliminate the payment to

Sullivan—even though her fee was paid from the county’s “contributions fund,”

which can be used only “for court-related purposes for the support of the statutory

probate courts in the county.”3 She characterizes this vote both as “arbitrary and

capricious” and as an impermissible effort to exercise authority regarding the

contributions fund, over which Henry has no jurisdiction. She contends that she

was damaged in the fiscal year beginning October 1, 2014 and ending September

30, 2015 by losing $5,000 of earnings and related benefits, and that for as long as

she remains in office, she will be similarly damaged in each fiscal year that

payment is denied.

She seeks declaratory judgment (1) construing the statutory rights and

obligations of the parties under Section 51.704 of the Texas Government Code,

which provides in part that “the clerk of a statutory probate court shall collect a

$40 filing fee in each probate, guardianship, mental health, or civil case filed in the

court to be used for court-related purposes for the support of the judiciary”;4

(2) determining whether the commissioners court has jurisdiction over the

3

See TEX. GOV’T CODE ANN. § 25.00213(b).

4

See id. § 51.704(a) (West 2013). The fees are sent to the comptroller for deposit in the

state judicial fund. Id. § 51.704(c). From the judicial fund, the state annually pays into the

county’s contributions fund $40,000 per statutory probate court judge in the county. Id.

§ 25.00211 (West 2004).

8

contributions fund created from those filing fees;5 and (3) ruling that she is entitled

to payment of the administrative fee from the contributions fund in accordance

with the budget she submitted. She also asks the district court to issue a writ of

mandamus directing Henry to reinstate the administrative fee. Finally, she asks for

judgment against Henry for her actual damages, and recovery of her costs and

attorney’s fees under the Uniform Declaratory Judgments Act.6

In sum, Sullivan alleges both that Henry exercised control regarding a fund

over which he had no jurisdiction, and that he acted arbitrarily and capriciously in

voting to eliminate the $5,000 administrative fee paid to one local administrative

judge from that fund while continuing to pay administrative fees to two other local

administrative judges from the county’s general fund. She seeks declaratory relief,

recovery of damages sustained in the past, and the issuance of a writ of mandamus

to prevent future damages.

To determine whether these allegations are sufficient to invoke the district

court’s jurisdiction, we turn to the governing case law.

B. The District Court’s Jurisdiction Over the Commissioners Court

The district court may exercise general supervisory control when the

commissioners court (1) fails to perform a mandatory act; (2) performs an

unauthorized act; or (3) abuses its discretion while undertaking an act it is

authorized to perform.

First, if the commissioners court fails to perform a clear statutory duty, the

district court may mandate that it do so. See Vondy v. Comm’rs Court, 620 S.W.2d

104, 108–09 (Tex. 1981) (“Vondy I”) (holding that where the commissioners court

5

See id. § 25.0213.

6

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015).

9

failed to comply with a state constitutional provision mandating that it compensate

constables on a salary basis, the district court should have exercised its general

supervisory jurisdiction to grant the constable’s request for mandamus relief).

Second, the district court also has jurisdiction over claims in which it is

alleged that the commissioners court acted illegally or exceeded its authority, or

that the challenged act is otherwise invalid. See, e.g., J. R. Phillips Inv. Co. v. Rd.

Dist. No. 18, 172 S.W.2d 707, 712 (Tex. Civ. App.—Waco 1943, writ ref’d)

(explaining that the district court had jurisdiction under Article V Section 8 over

taxpayers’ suit for declaratory and injunctive relief to prevent the commissioners

court from illegally paying funds under a contract alleged to be void); Stovall v.

Shivers, 129 Tex. 256, 260–61, 103 S.W.2d 363, 365–66 (1937) (“If the order of

the commissioners court . . . be invalid, then there can be no question of the right

of the district court under section 8 of article 5 of the Constitution . . . to review

same and prevent its enforcement.”); Mobil Oil Corp. v. Matagorda Cnty.

Drainage Dist. No. 3, 580 S.W.2d 634, 639 (Tex. Civ. App.—Corpus Christi 1979)

(“Mobil I”) (holding that the district court had jurisdiction under Article V Section

8 over a complaint that the commissioners court’s annexation of offshore property

“was void because it lacked jurisdiction, because its action was arbitrary and

because it was not supported by substantial evidence”), rev’d on other grounds,

597 S.W.2d 910, 910 (Tex. 1980) (“Mobil II”) (rendering judgment that the

annexation “was in excess of the commissioners’ statutory powers”).

Third, when the commissioners court performs an act that is entrusted to its

discretion, the district court has jurisdiction to determine whether the

commissioners court abused that discretion. See Vondy I, 620 S.W.2d at 109.7

7

Only exercises of absolute discretion—“discretion where no specific, substantive or

objective standards govern the exercise of judgment”—are absolutely protected by governmental

immunity. See Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161, 163

10

This basis for jurisdiction can be invoked by allegations that the commissioners

court’s decision is arbitrary, capricious, or unsupported by substantial evidence.

See Vondy v. Comm’rs Court, 714 S.W.2d 417, 420 (Tex. App.—San Antonio

1986, writ ref’d n.r.e.) (“Vondy II”), quoted with approval in Ector County v.

Stringer, 843 S.W.2d 477, 479 n.2 (Tex. 1992).

C. Sullivan Invoked the District Court’s Supervisory Jurisdiction

Sullivan alleges that Henry (1) has neither jurisdiction nor discretion to

approve or disapprove of her proposed expenditure of $5,000 from the

contributions fund as compensation for her services as the local administrative

statutory probate court judge, or (2) abused his discretion by arbitrarily and

capriciously enacting the 2014–2015 budget eliminating that compensation. Thus,

she alleges that Henry exercised authority he did not possess or abused whatever

discretion he had in exercising authority he did possess. 8 We need not consider

whether Sullivan’s allegations that Henry exceeded his authority were sufficient to

invoke the trial court’s supervisory jurisdiction, because her allegation that Henry

abused his discretion is itself sufficient to do so. See Stringer, 843 S.W.2d at 479

& n.2; Tarrant County v. Shannon, 129 Tex. 264, 274, 104 S.W.2d 4, 9 (1937).

We turn now to Henry’s arguments to the contrary.

1. Henry’s Statutory Arguments

In arguing that the trial court erred in denying his plea to the jurisdiction,

Henry first points out that no statute requires payment of an administrative fee to

(Tex. 2016). The commissioners court does not have absolute discretion in its budgetary

decisions. See TEX. LOC. GOV’T CODE ANN. § 111.068 (West 2015).

8

These characterizations of Henry’s actions are mutually exclusive: either he had

authority and discretion to make the challenged decisions, or he did not. We therefore look to

Sullivan’s intent, and treat these as alternative allegations. See Miranda, 133 S.W.3d at 226

(citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).

11

the local administrative statutory probate court judge. He acknowledges, however,

that Sullivan does not allege that a statute requires that she be paid an

administrative fee from the contributions fund. And, as we have seen, the district

court’s supervisory jurisdiction is not limited to those claims in which it is alleged

that the commissioners court failed to perform a constitutional or statutory duty.

Thus, this argument does not defeat jurisdiction.

Henry similarly contends that under Texas Government Code section

25.00213(b), the only personnel who are statutorily authorized to receive

compensation from the contributions fund are certain associate probate court

judges. See TEX. GOV’T CODE ANN. § 25.00213(b) (specifying that money in the

contributions fund “may be used only for court-related purposes for the support of

the statutory probate courts in the county, including for the payment of the

compensation of a statutory probate court associate judge”). Nevertheless, Henry

has not challenged Sullivan’s factual allegation that she historically has been paid

the administrative fee from the contributions fund. Sullivan disagrees with

Henry’s 2014 interpretation of the statute. She contends that compensating her for

her services as the local administrative statutory probate court judge continues to

be a “court-related purpose[] for the support of the statutory probate courts in the

county.” The trial court has jurisdiction to determine whether the parties’

historical interpretation of the statute or Henry’s current interpretation is correct.

2. Henry’s Semantic Argument

Although Sullivan alleges that Henry “arbitrarily and capriciously” voted to

reduce her annual compensation by $5,000, Henry contends that she failed to

invoke the district court’s supervisory jurisdiction because she did not allege that

Henry’s action was (a) “so clearly arbitrary or unreasonable, or based upon so

gross and prejudicial an error of law, as to constitute a flagrant abuse of

12

discretion”; (b) a “clear” or “gross” abuse of discretion; or (c) “clearly or grossly

arbitrary.”

This argument is not persuasive. Sullivan was not required to use specific

modifiers when alleging that Henry abused his discretion. See Vondy II, 714

S.W.2d at 420 (“[T]his supervisory jurisdiction can be invoked in a direct attack in

the district court when it is alleged that the Commissioners Court order is voidable

as being arbitrary, capricious, unsupported by substantial evidence or that the court

has acted beyond its jurisdiction.” (quoting Mobil I, 580 S.W.2d at 638)); Stringer,

843 S.W.2d at 479 (“Once the commissioners court acts, the district court may

review the commissioners’ orders to determine if they are arbitrary, or otherwise

constitute an abuse of discretion.”). Even if modifiers were required, then Henry

still would not be entitled to dismissal with prejudice, because Sullivan would be

entitled to amend her pleadings on remand. See Westbrook v. Penley, 231 S.W.3d

389, 395 (Tex. 2007) (“If the pleadings are insufficient to establish jurisdiction but

do not affirmatively demonstrate an incurable defect, the plaintiff should be

afforded the opportunity to replead.”).9

3. Henry’s Immunity Arguments

Henry additionally argues that the trial court erred in denying his plea to the

jurisdiction because he is entitled to governmental and legislative immunity. We

conclude that each type of immunity was waived. Because our reason for this

9

As part of the same argument, Henry asserts without elaboration that Sullivan’s suit is

“a collateral attack of [the] Commissioners Court’s statutory jurisdiction to set her salary.” As a

matter of long-settled law, however, a case such as this not a “collateral attack”; it is an equitable

proceeding in which the commissioners court’s action is directly attacked. See, e.g., Mobil II,

597 S.W.2d at 911–12; Scott v. Graham, 156 Tex. 97, 102–03, 292 S.W.2d 324, 328 (1956); J.R.

Phillips Inv. Co., 172 S.W.2d at 712; Haverbekken v. Hale, 109 Tex. 106, 113–14, 204 S.W.

1162, 1165 (1918).

13

conclusion is the same for both governmental and legislative immunity, we will

briefly describe each type of immunity before addressing them together.

(a) Governmental Immunity

Under the common-law doctrine of sovereign immunity, the state cannot be

sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.

2011). Sovereign immunity encompasses both immunity from suit and immunity

from liability. Miranda, 133 S.W.3d at 224. Absent waiver, political subdivisions

of the state are entitled to the same immunity, which is then referred to as

governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,

374 (Tex. 2006) (op. on reh’g). When sued in his official capacity for conduct

within his scope of authority, an official generally has the same governmental

immunity as his employer. See Franka v. Valasquez, 332 S.W.3d 367, 382–83

(Tex. 2011). Thus, unless waived, an official sued in his official capacity usually

has governmental immunity from suit and from liability. Henry contends that the

trial court erred in denying his plea to the jurisdiction because Sullivan did not and

cannot allege a valid waiver of governmental immunity. 10

(b) Legislative Immunity

Under the doctrine of legislative immunity, “individuals acting in a

legislative capacity are immune from liability for those actions.” Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). The commissioners court’s

“powers and duties ‘include aspects of legislative, executive, administrative, and

judicial functions.’” Harris County v. Nagel, 349 S.W.3d 769, 794 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied) (quoting Agan, 940 S.W.2d at 79). In

10

But see Hous. Belt & Terminal Ry. Co., 487 S.W.3d at 158 n.1 (clarifying that the ultra

vires doctrine is not an exception to governmental immunity because “when a governmental

officer is sued for allegedly ultra vires acts, governmental immunity does not apply from the

outset”).

14

creating the county budget, the members of the commissioners court perform a

legislative function. Id. Because Sullivan’s claims arise from Henry’s actions in

eliminating part of Sullivan’s compensation from the budget, Henry argues that he

is entitled to legislative immunity from suit. Courts have offered varying opinions

about the scope of legislative immunity,11 but for the purpose of this suit, we may

assume, without deciding, that legislative immunity can provide immunity from

suit to an individual sued in his official capacity for legislative activities within the

scope of his authority.

11

Our sister court recently interpreted legislative immunity narrowly. See Henry v. Cox,

483 S.W.3d 119, 149–50 (Tex. App.—Houston [1st Dist.] Dec. 22, 2015, pet. pending). In that

case, County Judge Mark Henry was sued by District Court Judge Lonnie Cox for Judge Henry’s

acts, as a member of the commissioners court, in terminating the employment of the county’s

director of judicial administration, creating a new position, and setting the salary for the new

position. See id. at 149. The First Court of Appeals stated that “[l]egislative immunity protects

individuals from ‘personal liability’ for actions performed in their legislative capacity.” Id.

(citing In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (orig. proceeding)). The court then reasoned

that legislative immunity did not bar Judge Cox’s suit because, inter alia, (a) Judge Henry was

sued in his official capacity rather than his personal capacity, and (b) immunity from liability did

not affect the district court’s jurisdiction to hear the case. Id. at 149–50. Thus, our sister court

appears to have treated legislative immunity solely as immunity from personal liability for an

official’s performance of legislative functions.

Other courts have interpreted the doctrine of legislative immunity more broadly. The

United States Supreme Court has held that, at least in some contexts, legislative immunity can

confer immunity from suit. See Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S. Ct. 966, 970, 140

L. Ed. 2d 79 (1998) (“[W]e now hold that local legislators are likewise absolutely immune from

suit under § 1983 for their legislative activities.”); see also Hays County v. Hays Cnty. Water

Planning P’ship, 106 S.W.3d 349, 359 (Tex. App.—Austin 2003, no pet.) (“The purpose of

legislative immunity is to prevent lawsuits from interfering with the legislative process.”).

Further, the Court has applied the doctrine not only when the defendant is sued in an individual

capacity, but also when the defendant is sued in an official capacity. See Sup. Ct. of Va. v.

Consumers Union of U.S., Inc., 446 U.S. 719, 737–38, 100 S. Ct. 1967, 1977–78, 64 L. Ed. 2d

641 (1980) (holding that, although a federal statute authorized the recovery of attorney’s fees

“from state officials sued in their official capacities,” the trial court erred in assessing attorney’s

fees against the state supreme court and its chief justice based on acts for which they enjoyed

legislative immunity).

15

(c) Waiver

Although governmental and legislative immunity are different, each is

rooted in the same separation-of-powers tenets. See, e.g., Brown & Gay Eng’g,

Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (governmental immunity); In re

Perry, 60 S.W.3d 857, 859 (Tex. 2001) (orig. proceeding) (legislative immunity).

The Texas Constitution expressly provides for exceptions to the general rule that

no member of one branch of government shall exercise a power properly attached

to another branch of government. See TEX. CONST. art. II, § 1. The power

conferred on district courts to exercise general supervisory control over the

commissioners court is such an exception. See id. art. V § 8; Hooten v. Enriquez,

863 S.W.2d 522, 528 (Tex. App.—El Paso 1993, no writ); Comm’rs Court v. Ross,

809 S.W.2d 754, 757 (Tex. App.—Tyler 1991, no writ).

We therefore disagree with Henry’s contention that Sullivan failed to allege

facts affirmatively showing waiver of immunity from suit. Sullivan sufficiently

invoked the district court’s supervisory jurisdiction under Article V Section 8 of

the Texas Constitution, and this provision must be read as a waiver of immunity

from suit for such claims. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 695 (Tex. 2003) (explaining that waiver of immunity from suit may be found

in a constitutional provision). To hold otherwise would be to render the provision

meaningless. See id. at 697 (“[W]e have found waiver when the provision in

question would be rendered meaningless unless immunity were waived.” (citing

Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex. 2000))); Stringer v.

Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex. 2000) (“We strive to give

constitutional provisions the effect their makers and adopters intended. We avoid a

construction that renders any provision meaningless or inoperative.” (citations

omitted)).

16

(d) Immunity from Liability for Monetary Damages

In a single sentence in his brief, Henry also states that Sullivan’s “pleadings

further contain no allegations that her actions for monetary damages are the subject

of any waiver of sovereign or governmental immunity.” Henry did not distinguish

between past and future damages, but in her response brief, Sullivan did.

Sullivan points out that governmental immunity generally bars claims for

monetary relief, but that governmental immunity does not apply to an “official who

has acted without legal or statutory authority.” City of El Paso v. Heinrich, 284

S.W.3d 366, 368–69 (Tex. 2009). And as previously discussed, Sullivan has

alleged that Henry acted without legal authority. She acknowledges that under

Heinrich, a plaintiff who proves such an ultra vires claim is entitled to prospective

relief—which may entail payment of money—but is not entitled to retrospective

monetary relief. See id. at 376–77.12 Although she seeks monetary relief for each

fiscal year in which Henry denies payment of the administrative fee, she argues

that this is a request only for prospective relief, because the first fiscal year in

which payment was denied has not yet ended.

When Sullivan made that argument in her opening brief, it was true that

Galveston County’s 2014–2015 fiscal year had not yet ended; however, that fiscal

year ended on September 30, 2015—the day before this case was argued and

submitted. Thus, some of the prospective monetary relief she requested in the trial

court is now retrospective monetary relief that is barred by governmental

12

Henry points out that Sullivan did not request injunctive relief in the trial court, and

implies that a claimant can obtain prospective monetary relief only through an injunction. This

is incorrect. The Texas Supreme Court has identified a suit for declaratory relief as another

means of establishing a right to prospective monetary relief. See Sw. Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 589 (Tex. 2015) (“AT & T is entitled to declaratory relief that payment of its

relocation expenses by the District is required by § 49.223. Although that declaration essentially

is a requirement for prospective relief against the District, the District’s immunity does not shield

it from such relief.”).

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immunity.13 We therefore modify the trial court’s ruling to grant Henry’s plea to

the jurisdiction only as to Sullivan’s claims for monetary relief for a fiscal year that

has ended.

III. CONCLUSION

When the trial court denied Henry’s plea to the jurisdiction, the ruling was

correct. Since then, however, some of Sullivan’s claims for prospective monetary

relief have become claims for retrospective monetary relief that are barred by

governmental immunity. We therefore modify the trial court’s ruling to grant

Henry’s plea to the jurisdiction only as to Sullivan’s claims for monetary relief for

any county fiscal year that ended on or before September 30, 2015; affirm the trial

court’s order as modified; and remand the case for further proceedings.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Busby.

13

See Heinrich, 284 S.W.3d at 376 (“[A] claimant who successfully proves an ultra vires

claim is entitled to prospective injunctive relief, as measured from the date of injunction.” (citing

Edelman v. Jordan, 415 U.S. 651, 669 (1974) (using entry of injunction to distinguish

retrospective from prospective relief))); accord, Lowell v. City of Baytown, 356 S.W.3d 499, 501

(Tex. 2011) (per curiam).

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