Opinion

John Doe v. Board of Directors of the State Bar of Texas Commission for Lawyer Discipline And Linda Acevedo, in Her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: May 29, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

“[A] Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., judgment against a public servant ‘in his official capacity’ 600 S.W.2d 264, 265–66 (Tex.1980

How later courts described this case

“[A] Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., judgment against a public servant ‘in his official capacity’ 600 S.W.2d 264, 265–66 (Tex.1980
challenging a New Jersey Supreme Court decision made in the course of labor negotiations with its judicial employees
Tex.App.-Houston [14th Dist.] 2001, pet. denied
holding that a lower court has no supervisory control over the Supreme Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions

Written by the judges who cited it.

The opinion

ACCEPTED

03-15-00007-CV

5478951

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/29/2015 4:41:03 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00007-CV

__________________________________

FILED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

AUSTIN, TEXAS 5/29/2015 4:41:03 PM

_________________________________ JEFFREY D. KYLE

Clerk

JOHN DOE

Appellant

BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS,

COMMISSION FOR LAWYER DISCIPLINE; AND LINDA ACEVEDO, IN

HER OFFICIAL CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL

OF THE STATE BAR OF TEXAS

Appellees

______________________________

On Appeal from the 126th Judicial District Court of Travis County, Texas

Cause No. D-1-GN-14-001635

______________________________

APPELLANT’S REPLY BRIEF

______________________________

WEST, WEBB, ALLBRITTON & GENTRY, GAINES WEST

P.C. State Bar No. 21197500

1515 Emerald Plaza gaines.west@westwebblaw.com

College Station, Texas 77845

Telephone ~ (979) 694-7000 JENNIFER D. JASPER

Facsimile ~ (979) 694-8000 State Bar No. 24027026

jennifer.jasper@westwebblaw.com

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

Index of Authorities ................................................................................................. iii

I. Rule 2.16 ................................................................................................................. 1

II. Sovereign Immunity Does Not Bar Doe’s Claims ................................................ 2

A. Appellees cannot validly apply Rule 2.16 to Doe ...................................... 2

B. Doe properly asserts an ultra vires claim against the CDC ........................ 5

III. Statutory Immunity Does Not Bar Doe’s Claims ................................................ 3

IV. Doe’s Claims are Justiciable................................................................................ 4

A. The trial court has the authority to grant the relief Doe Seeks ................... 4

B. Doe does not seek an advisory opinion ...................................................... 6

Conclusion ................................................................................................................. 7

Prayer ......................................................................................................................... 7

Certificate of Compliance .......................................................................................... 8

Certificate of Service ................................................................................................. 9

APPELLANT’S REPLY BRIEF ii

INDEX OF AUTHORITIES

Cases

Bd. of Disciplinary Appeals v. McFall,

888 S.W.2d 471, 472 (Tex. 1994) ......................................................................5, 6

City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009) ..........................................................................3

Estate of Terrell v. Sisk,

111 S.W.3d 274, 282 (Tex. App.—Texarkana 2003, no pet).................................4

In re State Bar of Tex.,

440 S.W.3d 621 (Tex. 2014) ..................................................................................5

Love v. State Bar of Tex.,

982 S.W.2d 939, 942 (Tex. App. —Houston [1st Dist.] 1998, no pet.) .................5

State Bar of Tex. v. Gomez,

891 S.W.2d 243, 244—45, 246 (Tex. 1994)) .....................................................4, 5

State Bar of Tex. v. Jefferson,

942 S.W.2d 575, 576 (Tex. 1997) ..........................................................................5

State v. Sewell,

487 S.W.2d 716 (Tex. 1972) ..................................................................................5

RULES AND CODES

TEX. R. DISCIPLINARY P. 1.06L ..............................................................................2, 3

TEX. R. DISCIPLINARY P. 2.13. ...................................................................................6

TEX. R. DISCIPLINARY P. 2.16 .......................................................................... passim

APPELLANT’S REPLY BRIEF iii

TEX. R. DISCIPLINARY P. 15.09 ..............................................................................3, 4

TEX. DISCIPLINARY R. PROF’L CONDUCT, Preamble ¶ 8. ...........................................7

TEX. GOV’T CODE ANN. § 81.072(b)(10) ...............................................................1, 3

APPELLANT’S REPLY BRIEF iv

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant, John Doe, files the following Reply Brief to respond to matters

raised by Appellees in their Amended Brief.

I. RULE 2.16

The underlying question in this case is whether Rule 2.16 requires

“Disciplinary Proceedings” to be kept confidential from complainants. It does not,

and because it does not, there is no authority for the CDC to deny Doe’s request for

a copy of its recommendation to the SDP.

The express language of Rule 2.16 does not contemplate excluding

complainants. In relevant part, Rule 2.16 states, “[a]ll members and staff of the

Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals, Committees,

and Commission shall maintain as confidential all Disciplinary Proceedings and

associated records . . . .” TEX. R. DISCIPLINARY P. 2.16. Rule 2.16 omits any

language requiring Disciplinary Proceedings to be kept confidential from the

complainant, the very person who started the proceedings in the first place.

Furthermore, the Texas Government Code expressly allows the complainant

to be physically present at some “Disciplinary Proceedings,” including Evidentiary

Panel proceedings. TEX. GOV’T CODE ANN. § 81.072(b)(10); see TEX. R.

DISCIPLINARY P. 1.06L (defining “Disciplinary Proceedings” to include the

proceeding before an Evidentiary Panel); see also TEX. R. DISCIPLINARY P. 2.16.

APPELLANT’S REPLY BRIEF 1

The CDC’s interpretation of Rule 2.16, as requiring “Disciplinary

Proceedings” to remain confidential from the complainant, cannot stand. This is

particularly evident because Disciplinary Proceedings include Evidentiary Panel

proceedings, before which the complainant has an express right to appear.

Because Rule 2.16 does not apply to complainants, this Court should reverse the

trial court’s dismissal and remand this case for rulings on the substantive issues

presented in Doe’s pleadings.

II. SOVEREIGN IMMUNITY DOES NOT BAR DOE’S CLAIMS

Appellees assert that neither exception to the doctrine of sovereign immunity

applies. See APPELLEE’S BRIEF at **20–24. First, Appellees claim that Doe did

not challenge Rule 2.16’s validity. Id. at **20–22. Then, appellees claim that the

ultra vires exception does not apply because Doe seeks to compel a government

official to affirmatively perform a discretionary act. Id. at **22–24.

A. Appellees cannot validly apply Rule 2.16 to Doe

Despite Appellees’ characterizations of Doe’s arguments, the issue Doe

raises is whether Rule 2.16 can be applied to him, not how Rule 2.16 is applied.

See APPELLEES’ BRIEF at **20–21. In his live pleading, and on appeal, Doe

contends that Rule 2.16 does not apply to complainants, including himself. See,

e.g., infra I. As the complainant, Doe is a participant in the proceedings, not

merely an uninvolved member of the public, so Rule 2.16 does not apply to him.

APPELLANT’S REPLY BRIEF 2

See TEX. GOV’T CODE ANN. § 81.072(b)(10); TEX. R. DISCIPLINARY P. 1.06L, 2.16.

Because Rule 2.16 does not apply to Doe, the trial court erred in dismissing the

case on this ground.

B. Doe properly asserts an ultra vires claim against the CDC

Doe’s claim is a proper ultra vires claim. He alleges that Linda Acevedo,

the CDC, denied him a copy of the CDC’s recommendation to the SDP, without

legal authority to do so. That is the very nature of an ultra vires claim: a

governmental official takes an action that it lacked authority to take. See, e.g., City

of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Because Rule 2.16 did

not authorize Linda Acevedo to take the action she did (withhold from Doe a copy

of the CDC’s recommendation to the SDP), she acted ultra vires, and the trial court

erred in dismissing the case on this ground.

III. STATUTORY IMMUNITY DOES NOT BAR DOE’S CLAIMS

Appellees argue that Rule 15.09 blankets them with immunity. APPELLEES’

BRIEF at **24–26. However, Rule 15.09 applies only to (1) individuals who are

(2) acting in the course of their official duties. TEX. R. DISCIPLINARY P. 15.09.

Because Appellees are not individuals, Rule 15.09 does not apply. Further, Doe

sued the CDC in her official capacity, which is not a lawsuit against her as an

individual. See, e.g., Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex. App.—

Texarkana 2003, no pet) (noting that an official-capacity suit against a

APPELLANT’S REPLY BRIEF 3

governmental employee is not a suit against the employee but against the

governmental-unit employer). But even if it were a lawsuit against her

individually, Doe alleged that she acted without legal authority, which means that

she was not acting in the course of her official duties, as is required for Rule 15.09

to provide immunity in this case. TEX. R. DISCIPLINARY P. 15.09. Thus, the trial

court erred in dismissing the case on this ground.

IV. DOE’S CLAIMS ARE JUSTICIABLE

Appellees argue that Doe’s claims are not justiciable because he asks the

trial court to exercise authority it does not have, and because a declaratory

judgment in this matter would be advisory because the SDP has already dismissed

his complaint. APPELLEES’ BRIEF at ** 26-31.

A. The trial court has the authority to grant the relief Doe seeks

Citing the plurality in Gomez, Appellees argue that granting Doe’s requested

declarations in this case would cause the trial court to usurp the Texas Supreme

Court’s authority. APPELLEE’S BRIEF at *27 (citing State Bar of Tex. v. Gomez,

891 S.W.2d 243, 244—45, 246 (Tex. 1994)). Appellees further allege that lower

courts lack authority to interfere in disciplinary proceedings at any point in the

process. Id. at *28 (citations omitted). However, none of the cases Appellees cite

apply here because in each case, the plaintiff asked the court to either create a new

rule or obligation, or to enjoin the disciplinary proceedings. Id. at **27–28 (citing

APPELLANT’S REPLY BRIEF 4

In re State Bar of Tex., 440 S.W.3d 621 (Tex. 2014) (orig. proceeding) (finding

trial court cannot order Commission for Lawyer Discipline to turn over

investigative records); Gomez, 891 S.W.2d at 244–45, 246 (holding trial court

cannot order state bar to create a new program); State Bar of Tex. v. Jefferson, 942

S.W.2d 575, 576 (Tex. 1997) (orig. proceeding) (concluding trial court cannot

enjoin disciplinary investigative proceedings); Bd. of Disciplinary Appeals v.

McFall, 888 S.W.2d 471, 472 (Tex. 1994) (orig. proceeding) (per curiam) (finding

that trial court cannot enjoin a disciplinary suspension); State v. Sewell, 487

S.W.2d 716 (Tex. 1972) (orig. proceeding) (holding trial court cannot enjoin

disciplinary investigative proceedings).

In the present case, Doe is not asking the court to create a new rule, institute

a new program, insert a new requirement, promulgate a new policy or regulation,

or enjoin disciplinary proceedings. Doe is merely asking the court to declare that

Rule 2.16 does not require the CDC to withhold from Doe its recommendation to

the SDP. Appellees did not cite any case holding that a trial court cannot review a

rule of disciplinary procedure. And in fact, a trial court is well within its authority

in reviewing a rule of disciplinary procedure. See, e.g., Love v. State Bar of Tex.,

982 S.W.2d 939, 942 (Tex. App. —Houston [1st Dist.] 1998, no pet.) (noting that

disciplinary rules have the force and effect of a statute and should be construed in

APPELLANT’S REPLY BRIEF 5

accordance with rules of statutory construction). Thus, the trial court erred in

dismissing the case on this ground.

B. Doe does not seek an advisory opinion

Appellees argue that because the SDP has already dismissed Doe’s

complaint, any opinion in this matter would be advisory, thus, this issue is moot.

APPELLEES’ BRIEF at **29–31. However, as discussed in Doe’s opening brief, this

case satisfies the “public interest” exception to the mootness doctrine. See

APPELLANT’S BRIEF at **9–11.

Appellees attempt to hide behind the SDP, asserting that any future

grievance Doe may file will not be “handicapped” by the CDC’s refusal to provide

a copy of its recommendation to the SDP. This is so because, Appellees contend,

the SDP, not the CDC, decides to dismiss complaints. Therefore, Appellees argue,

Doe will receive no benefit from reviewing the CDC’s recommendation.

However, it is the CDC who determines whether “just cause” exists to further

investigate a complaint, and it is the CDC who recommends dismissal to the SDP.

See TEX. R. DISCIPLINARY P. 2.13.

Reviewing the CDC’s recommendation in this matter will provide Doe, the

complainant, with information as to why his sixteen-page complaint failed, in the

CDC’s eyes, to provide “just cause.” Such information will play a critical role in

aiding a member of the public, aggrieved by the behavior of an attorney, in

APPELLANT’S REPLY BRIEF 6

adequately presenting the issues to the CDC. Therefore, an opinion in this matter

will not be advisory, and the trial court erred in dismissing the case on this ground.

CONCLUSION

“The legal profession has a responsibility to assure that its regulation is

undertaken in the public interest rather than in furtherance of parochial or self-

interested concerns of the bar . . . [n]eglect of these responsibilities compromises

the independence of the profession and the public interest which it serves.” TEX.

DISCIPLINARY R. PROF’L CONDUCT, Preamble ¶ 8. Allowing the CDC to hide its

recommendation to the SDP from the complainant violates the principles espoused

in the Preamble mentioned above. Rule 2.16 does not require such secrecy. The

trial court erred in dismissing this case on the procedural grounds raised by

Appellees.

PRAYER

Appellant John Doe prays that this Court reverse the trial court’s dismissal

and remand this case for further proceedings.

APPELLANT’S REPLY BRIEF 7

Respectfully submitted,

WEST, WEBB, ALLBRITTON & GENTRY, P.C.

1515 Emerald Plaza

College Station, Texas 77845-1515

Telephone: (979) 694-7000

Facsimile: (979) 694-8000

By: /s Gaines West

GAINES WEST

State Bar No. 21197500

gaines.west@westwebblaw.com

JENNIFER D. JASPER

State Bar No. 24027026

jennifer.jasper@westwebblaw.com

COUNSEL FOR APPELLANT

JOHN DOE

CERTIFICATE OF COMPLIANCE

I certify that this APPELLANT’S REPLY BRIEF complies with the typeface

and word-count requirement set forth in the Rules of Appellate Procedure. This

motion has been prepared, using Microsoft Word, in 14-point Times New Roman

font for the text and 12-point Times New Roman font for any footnotes. This

motion contains 1,549 words, as determined by the word count feature of the word

processing program used to prepare this document, excluding those portions of the

notice exempted by TEX. R. APP. P. 9.4(i)(1).

/s Gaines West

Gaines West

APPELLANT’S REPLY BRIEF 8

CERTIFICATE OF SERVICE

On May 29, 2015, the undersigned certifies that he served a copy of this

Brief of Appellee on the following in the manner listed below, in compliance with

Texas Rules of Appellate Procedure 9.5 and 25.1(e):

PAUL HOMBURG, III Via email: phomburg@texasbar.com

Disciplinary Counsel and Certified Mail, RRR

Office of the Chief Disciplinary Counsel

State Bar of Texas

711 Navarro, Suite 750

San Antonio, Texas 78205

Rebecca Stevens Via email: bstevens@texasbar.com

Disciplinary Counsel and Certified Mail, RRR

Office of the Chief Disciplinary Counsel

State Bar of Texas

P. O. Box 12487

Austin, Texas 78711-2487

Cynthia Canfield Hamilton Via email: chamilton@texasbar.com

Office of the Chief Disciplinary counsel and Certified Mail, RRR

State Bar of Texas

P. O. Box 12487

Austin, Texas 78711-2487

/s Gaines West

Gaines West

APPELLANT’S REPLY BRIEF 9

Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471 (1994)

38 Tex. Sup. Ct. J. 110

compliance with a supervision agreement, which required

Smith to “remain abstinent from all alcohol and other mind

Original Image of 888 S.W.2d 471 (PDF) altering drugs.”

888 S.W.2d 471

Supreme Court of Texas. In March of 1994, a member of the Board of Disciplinary

Appeals observed Smith drinking alcohol in a hotel bar.

BOARD OF DISCIPLINARY APPEALS, Relator

The State Bar subsequently filed a motion to revoke Smith's

probation. At an evidentiary hearing, Smith admitted to

The Honorable John R. having used alcohol while on probation. The Board of

McFALL, Judge, Respondent. Disciplinary Appeals revoked the probation and suspended

Smith from the practice of law. Smith filed a Notice of Appeal

No. 94–0960. | Dec. 1, 1994.

with this Court but did not request a stay of his suspension.

Board of Disciplinary Appeals sought writ of mandamus The decision of the Board of Disciplinary Appeals was

to vacate district court's injunction against suspension of affirmed on October 6, 1994.

attorney and writ of prohibition barring further proceedings

in district court. The Supreme Court held that district court The day after filing his appeal, Smith petitioned for a

lacks jurisdiction to enjoin suspension of attorney. Temporary Restraining Order from the 237th District Court in

Lubbock. Judge McFall granted the Temporary Restraining

Relief granted. Order and scheduled a hearing on a temporary injunction.

After the hearing, Judge McFall took the matter under

advisement and extended the restraining order pending

Attorneys and Law Firms further hearings. The Board of Disciplinary Appeals then

petitioned for a writ of mandamus and a writ of prohibition.

*472 Christine E. McKeeman and Thomas H. Watkins,

Austin, for relator. [2] A writ of mandamus and writ of prohibition are

appropriate when a district court issues an order beyond

John R. McFall and Mark S. Smith, Lubbock, for respondent.

its jurisdiction. Crouch v. Craik, 369 S.W.2d 311, 314

(Tex.1963). The district court lacked jurisdiction under the

Rules of Disciplinary Procedure to enjoin Smith's suspension.

ON PETITIONS FOR WRITS OF Section 81.071 of the Texas Government Code provides

MANDAMUS AND PROHIBITION that each attorney practicing in Texas is “subject to the

disciplinary and disability jurisdiction of the supreme court

PER CURIAM.

and the Commission for Lawyer Discipline, a committee

[1] The Board of Disciplinary Appeals requests a writ of of the state bar.” Pursuant to this authority, this court has

mandamus to vacate the district court's injunction against the established a comprehensive system of lawyer discipline

suspension of an attorney and a writ of prohibition barring governed by the Rules of Disciplinary Procedure.

further proceedings in that court. Because the district court

lacked jurisdiction to enjoin these disciplinary proceedings, The rules provide for appeals directly to this Court.

we grant the requested relief. TEX.R.DISCIPLINARY P. 7.11. If the appeal is

unsuccessful, Smith may seek reinstatement in district court,

In 1992, the State Bar initiated a disability disciplinary with a jury trial if he desires one. TEX.R.DISCIPLINARY

action against Mark S. Smith in accordance with P. 12.06. The rules do not, however, provide for interim

TEX.R.DISCIPLINARY P. 12.01 (1992). At a hearing equitable relief, and the district court did not have the power

before the District Disability Committee, Smith stipulated to to enjoin Smith's suspension.

his disability and the Committee recommended a probated

suspension. The Board of Disciplinary Appeals accepted the In State v. Sewell, 487 S.W.2d 716 (Tex.1972), we

recommendation and issued a Judgment Probating Disability granted mandamus to vacate an injunction barring Grievance

Suspension, setting out the terms and conditions of Smith's Committee proceedings, holding that an injunction by a

probation. One of the terms of Smith's probation was district court “is an interference with the grievance procedures

Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471 (1994)

38 Tex. Sup. Ct. J. 110

the Texas Rules of Appellate Procedure, without hearing oral

authorized by ... the State Bar Act and constitutes a clear

argument, a majority of the court grants the writ of mandamus

abuse of discretion.” Id. at 719. We did not even reach

and the writ of prohibition.

the question of whether an adequate remedy at law existed

because the case was one “affecting the state as a whole

and in which the orderly processes of government have been

Parallel Citations

disturbed.” Id. (quoting *473 State v. Ferguson, 133 Tex.

60, 125 S.W.2d 272, 274 (1939)). Pursuant to Rule 122 of 38 Tex. Sup. Ct. J. 110

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

Stewart W. Forbes, Forbes & Forbes, El Paso, for

Original Image of 284 S.W.3d 366 (PDF) Respondent.

284 S.W.3d 366

Supreme Court of Texas. Philip Durst, Deats Durst Owen & Levy, P.L.L.C., Austin, for

Amicus Curiae Texas State Association of Fire Fighters.

The CITY OF EL PASO, et al., Petitioners,

Kristofer S. Monson, Asst. Solicitor Gen., Austin, for Amicus

Curiae State of Texas.

Lilli M. HEINRICH, Respondent.

Opinion

No. 06–0778. | Argued Nov.

13, 2007. | Decided May 1, 2009. Chief Justice JEFFERSON delivered the opinion of the Court.

Synopsis [1] [2] [3] “Sovereign immunity protects the State from

Background: Police officer's widow brought action against lawsuits for money damages.” Tex. Nat. Res. Conservation

city, public employee's pension fund, board of trustees of Comm'n v. IT–Davy, 74 S.W.3d 849, 853 (Tex.2002). But

pension fund, and named individuals, alleging that board “an action to determine or protect a private party's rights

breached its fiduciary duty by reducing her pension benefits against a state official who has acted without legal or

by one-third, and seeking total pension benefits allegedly statutory authority is not a suit against the State that sovereign

owed to her plus cost of living allowances. The 346th District immunity bars.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,

Court, El Paso County, 2005 WL 4926502, Angie Barill, 405 (Tex.1997). Today we examine the intersection of these

J., denied defendants' plea to the jurisdiction. Defendants two rules. We conclude that while governmental immunity

appealed. The Court of Appeals, 8th District, El Paso, 198 *369 generally bars suits for retrospective monetary relief, it

S.W.3d 400, Richard Barajas, C.J., affirmed, and defendants does not preclude prospective injunctive remedies in official-

appealed. capacity suits against government actors who violate statutory

or constitutional provisions. We affirm in part and reverse in

part the court of appeals' judgment and remand this case to

the trial court for further proceedings.

Holdings: The Supreme Court, Jefferson, C.J., held that:

[1] widow's declaratory judgment and injunction action

regarding pension was not barred by sovereign immunity; I

[2] widow's lawsuit regarding reduction of pension did

Background

not implicate constitutional prohibition of bill of attainder,

ex post facto law, retroactive law, or any law impairing Lilli M. Heinrich is the widow of Charles D. Heinrich, a

obligation of contracts; and member of the El Paso Police Department who died in August

1985 from wounds received in the line of duty. Shortly after

[3] fact questions precluded grant of plea to the jurisdiction. Charles died, the El Paso Firemen & Policemen's Pension

Fund began paying Heinrich monthly survivor benefits equal

Affirmed in part, reversed in part, and remanded. to 100% of the monthly pension her husband had earned. 1

The parties contest how those payments were apportioned.

The City of El Paso, the El Paso Firemen & Policemen's

Attorneys and Law Firms Pension Fund (“the Fund”), the Fund's Board of Trustees

(“the Board”), and the individual board members contend that

*368 Jennifer F. Callan, Laura P. Gordon, Asst. City Attys., the Fund's bylaws assigned only two-thirds of this payment

Michele Little Locke, John Lomax Anderson, El Paso, Eric to Heinrich, the other third being paid to her on behalf of

G. Calhoun, Richard J. Pradarits Jr., Travis & Calhoun, P.C., her then-minor child. Heinrich, on the other hand, contends

Dallas, Robert D. Klausner, Stuart A. Kaufman, Klausner & that, notwithstanding the bylaws, the Board voted to award

Kaufman, P.A., Plantation, FL, for Petitioners.

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

her 100% of Charles' pension benefits in her own right, as repeatedly that the Legislature is in the best position to waive

more fully explained below. or abrogate immunity, “because this allows the Legislature

to protect its policymaking function.” IT–Davy, 74 S.W.3d at

Accordingly, when in 2002 the Board reduced the monthly 854 (citations omitted) (collecting cases).

payments to Heinrich by one-third after Heinrich's son turned

23, Heinrich filed this lawsuit, alleging that petitioners Heinrich concedes that the City, Fund, and Board enjoy

violated the statute governing the Fund by reducing her governmental immunity from suit, but argues that because her

benefits retroactively. Heinrich sought both declaratory relief claim alleges a reduction in her benefits that was unauthorized

and an injunction restoring Heinrich to the “status quo from by law, it is not barred. This is so, she says, because “[p]rivate

[the] date of the illegal act.” Petitioners filed pleas to the parties may seek declaratory relief against state officials who

jurisdiction asserting that governmental immunity shielded allegedly act without legal or statutory authority.” Id. at

the governmental entities from suit and that the individual 855 (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432

board members enjoyed official immunity. The trial court (Tex.1994) (suit challenging state officials' construction of

denied the pleas, and petitioners filed an interlocutory appeal. compulsory school-attendance law)); see also Fed. Sign., 951

S.W.2d at 404 (“A private litigant does not need legislative

The court of appeals affirmed, holding that “a party may permission to sue the State for a state official's violations of

bring a suit seeking declaratory relief against state officials state law.”) (citations omitted). We explained the rationale

who allegedly act without legal or statutory authority and behind this exception to governmental immunity in Federal

such suit is not a ‘suit against the state.’ ” 198 S.W.3d 400, Sign:

406. The court acknowledged that, if successful, Heinrich

would be entitled to past and future benefits, but held that A state official's illegal or

Heinrich's suit made a valid claim for her vested right to unauthorized actions are not acts of

pension benefits rather than money damages. Id. at 407. We the State. Accordingly, an action to

granted the petition for review in order to clarify the types determine or protect a private party's

rights against a state official who

of relief that may be sought without legislative consent. 2 50

has acted without legal or statutory

Tex. Sup.Ct. J. 910 (June 22, 2007).

authority is not a suit against the

State that sovereign immunity bars.

In other words, we distinguish suits

II to determine a party's rights against

the State from suits seeking damages.

A party can maintain a suit to

Discussion

determine its rights without legislative

permission.

Fed. Sign, 951 S.W.2d at 404 (citations omitted).

Ultra Vires Claims

[4] [5] On this basis, Heinrich argues that rather than

Petitioners contend that although Heinrich requests money damages, she seeks only equitable and injunctive

declaratory and equitable relief, her claim is essentially for relief under the Uniform Declaratory Judgment Act. That

past and future money damages, and that governmental Act is a remedial statute designed “to settle and to afford

immunity therefore bars her suit. As we said in Reata relief from uncertainty and insecurity with respect to rights,

Construction Corp. v. City of Dallas, “ ‘[s]overeign immunity status, and other legal relations.” TEX. CIV. PRAC. &

protects the State from lawsuits for money damages.’ Political REM.CODE § 37.002(b). It provides: “A person ... whose

subdivisions of the state ... are entitled to such immunity rights, status, or other legal relations are affected by a

— *370 referred to as governmental immunity—unless it statute, municipal ordinance, contract, or franchise may have

has been waived.” Reata, 197 S.W.3d 371, 374 (Tex.2006) determined any question of construction or validity arising

(citations omitted); see also Wichita Falls State Hosp. v. under the ... statute, ordinance, contract, or franchise and

Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). We have said obtain a declaration of rights, status, or other legal relations

thereunder.” Id. § 37.004(a). The Act, however, does not

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

enlarge a trial court's jurisdiction, and a litigant's request for leaving no room for discretion, a suit alleging a government

3 official's violation of that law is not barred, even though it

declaratory relief does not alter a suit's underlying nature.

*371 IT–Davy, 74 S.W.3d at 855; State v. Morales, 869 necessarily involves a contract. We explained this distinction

S.W.2d 941, 947 (Tex.1994). It is well settled that “private in W.D. Haden Co. v. Dodgen:

parties cannot circumvent the State's sovereign immunity

[A]lthough [Epperson ] ar[ose] out

from suit by characterizing a suit for money damages ... as

of [ ] contract transaction ... [it]

a declaratory-judgment claim.” IT–Davy, 74 S.W.3d at 856

appears to fall into the class of cases

(citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d

projected by United States v. Lee, [106

838, 842 (1958)).

U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171

[6] Heinrich relies on State v. Epperson, 121 Tex. 80, 42 (1882) ]. 4 In that class of cases it is

S.W.2d 228, 231 (1931), in which we held that a suit against held that suits for property alleged to

a tax collector for the recovery of money (alleged to be due be unlawfully or wrongfully withheld

under a contract and withheld unlawfully) was not barred from the rightful owner by officers

by immunity. There, we noted that the tax collector had of the state are not suits against the

no discretion under the governing law to deny payment on sovereign itself and may be maintained

Epperson's contract: without permission of the sovereign.

By legislative act the state has 158 Tex. 74, 308 S.W.2d 838, 841 (1958). In other

constituted the tax collector of the words, where statutory or constitutional provisions create an

county its agent to receive delinquent entitlement to payment, suits seeking to require state officers

taxes collected under such contract, to comply with the law are not barred by immunity merely

and it is the duty of such officer because they compel the state to make those payments.

to pay all fees and commissions This rule is generally consistent with the letter and spirit of

lawfully incurred in the collection our later caselaw. In IT–Davy, we distinguished permissible

thereof to the various parties who declaratory-judgment suits against state officials *372

may be entitled thereto. Under such “allegedly act[ing] without legal or statutory authority”

circumstances, the tax collector's duty from those barred by immunity: “In contrast [to suits not

with reference to money belonging to implicating sovereign immunity], declaratory-judgment suits

persons who are entitled under valid against state officials seeking to establish a contract's validity,

contracts to receive the same from him to enforce performance under a contract, or to impose

is purely ministerial. If he withholds contractual liabilities are suits against the State. That is

the payment of such funds when a because such suits attempt to control state action by imposing

person is lawfully entitled to receive liability on the State.” 74 S.W.3d at 855–56 (citations

same, he has failed to discharge a duty omitted) (emphasis added).

imposed upon him by law and his act

is a wrongful one. [7] From this rationale, it is clear that suits to require

state officials to comply with statutory or constitutional

Epperson, 42 S.W.2d at 231. We therefore concluded that

provisions are not prohibited by sovereign immunity, even if

although the trial court would “not possess jurisdiction to

a declaration to that effect compels the payment of money.

enforce the specific performance of the contract relied upon

To fall within this ultra vires exception, a suit must not

by Epperson or to award damages for any breach of said

complain of a government officer's exercise of discretion,

contract,” Epperson's suit was “simply an action to compel an

but rather must allege, and ultimately prove, that the officer

officer, as agent of the state, to pay over funds to a party who

acted without legal authority or failed to perform a purely

claims to be lawfully entitled thereto.” Id.

ministerial act. Compare Epperson, 42 S.W.2d at 231 (“the

tax collector's duty ... is purely ministerial”) with Catalina

Thus, the rule arising out of Epperson is that while suits for

Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706

contract damages against the state are generally barred by

(Tex.2003) (newly elected commissioners court immune

immunity, where a statute or the constitution requires that

from suit where it “acted within its discretion to protect

government contracts be made or performed in a certain way,

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

the perceived interests of the public” in rejecting contract Sign, 951 S.W.2d at 404 (“A private litigant does not need

approved by predecessor), and Dodgen, 308 S.W.2d at legislative permission to sue the State for a state official's

842 (suit seeking “enforcement of contract rights” barred violations of state law.”) (citations omitted), with IT–Davy,

by immunity in the absence of any “statutory provision 74 S.W.3d at 855 (“Private parties may seek declaratory

governing or limiting the manner of sale”). Thus, ultra vires relief against state officials who allegedly act without legal

suits do not attempt to exert control over the state—they or statutory authority.”) (citations omitted). It seems to us,

attempt to reassert the control of the state. 5 Stated another however, that because the rule that ultra vires suits are not

way, these suits do not seek to alter government policy but “suit[s] against the State within the rule of immunity of the

rather to enforce existing policy. State from suit” derives from the premise that the “acts of

officials which are not lawfully authorized are not acts of the

Further, while “[a] lack of immunity may hamper State,” Cobb, 190 S.W.2d at 712, it follows that these suits

governmental functions by requiring tax resources to be used cannot be brought against the state, which retains immunity,

for defending lawsuits ... rather than using those resources for but must be brought against the state actors in their official

their intended purposes,” Reata Constr. Corp., 197 S.W.3d capacity. 7 This is true even though the suit is, for all practical

at 375, this reasoning has not been extended to ultra vires purposes, against the state. See Brandon v. Holt, 469 U.S.

suits, see Fed. Sign, 951 S.W.2d at 404 (citing Dir. of the 464, 471–72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (“[A]

Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., judgment against a public servant ‘in his official capacity’

600 S.W.2d 264, 265–66 (Tex.1980) (legislative consent not imposes liability on the entity that he represents provided, of

required for suit for injunctive relief against state agency to course, the public entity received notice and an opportunity to

halt unauthorized printing equipment and printing activities), respond.”); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d

Tex. Highway Comm'n v. Tex. Ass'n of Steel Imps., Inc., 372 835, 844 (Tex.2007) (“It is fundamental that a suit against

S.W.2d 525, 530 (Tex.1963) (legislative consent not required a state official is merely ‘another way of pleading an action

for declaratory judgment suit against Highway Commission against the entity of which [the official] is an agent.’ ”)

to determine the parties' rights), and Cobb v. Harrington, (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct.

144 Tex. 360, 190 S.W.2d 709, 712 (1945) (legislative 3099, 87 L.Ed.2d 114 (1985)).

consent not required for declaratory judgment suit against

State Comptroller to determine parties' rights under tax

statute)). Further, extending immunity to officials using state

resources in violation of the law would not be an efficient

way of ensuring those resources are spent as intended. This

is particularly true since, as discussed below, suits that lack Permissible Relief

merit may be speedily disposed of by a plea to the jurisdiction.

[11] But the ultra vires rule is subject to important

See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d

qualifications. Even if such a claim may be brought, the

217, 226 (Tex.2004).

remedy may implicate immunity. Cf. 13 CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

& PROCEDURE § 3524.3 (under federal *374 immunity

B law, an ultra vires suit may be brought but “if the defendant

is a state officer, sovereign immunity bars the recovery of

Proper Parties damages from the state treasury in a private suit”). This is a

curious situation: the basis for the ultra vires rule is that a

[8] [9] [10] Nonetheless, as a technical matter, the government official is not following the law, so that immunity

governmental entities themselves—as opposed to their is not implicated, but because the suit is, for all practical

officers in *373 their official capacity—remain immune purposes, against the state, its remedies must be limited. Cf.

from suit. We have been less than clear regarding the Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670,

permissible use of a declaratory remedy in this type of ultra 685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (“There is a

6 well-recognized irony in Ex parte Young; unconstitutional

vires suit. Must it be brought directly against the state or

its subdivisions? Or must it be brought against the relevant conduct by a state officer may be ‘state action’ for purposes

government actors in their official capacity? Compare Fed. of the Fourteenth Amendment yet not attributable to the

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

State for purposes of the Eleventh.”). We recently held action to restrain a government official from unconstitutional

that retired firefighters could not pursue a declaratory conduct was not barred by immunity. Later, in Edelman, the

judgment action against the City to recover amounts allegedly Court recognized that the distinction between prospective

previously withheld from lump-sum termination payments in and retrospective relief “will not in many instances be that

violation of the Local Government Code. City of Houston between day and night” and cautioned that a fiscal impact on

v. Williams, 216 S.W.3d 827, 828 (Tex.2007). Without the *375 State did not necessarily implicate immunity:

discussing Epperson, we applied the rule from IT–Davy

and Dodgen that the declaratory judgment act cannot be The injunction issued in Ex parte

used to circumvent immunity, noting that “[t]he only injury Young was not totally without effect

the retired firefighters allege has already occurred, leaving on the State's revenues, since the

them with only one plausible remedy—an award of money state law which the Attorney General

damages.” Id. at 829. Williams stands for the proposition, was enjoined from enforcing provided

then, that retrospective monetary claims are generally barred substantial monetary penalties against

by immunity. railroads which did not conform

to its provisions. Later cases from

We also stated that “in every suit against a governmental this Court have authorized equitable

entity for money damages, a court must first determine the relief which has probably had greater

parties' contract or statutory rights; if the sole purpose of impact on state treasuries than did

such a declaration is to obtain a money judgment, immunity that awarded in Ex parte Young.

is not waived.” Id. This does not mean, however, that a In Graham v. Richardson, 403 U.S.

judgment that involves the payment of money necessarily 365, 91 S.Ct. 1848, 29 L.Ed.2d 534

implicates immunity. Drawing the line at monetary relief (1971), Arizona and Pennsylvania

is itself problematic, as “[i]t does not take much lawyerly welfare officials were prohibited from

inventiveness to convert a claim for payment of a past due denying welfare benefits to otherwise

sum (damages) into a prayer for an injunction against refusing qualified recipients who were aliens.

to pay the sum, or for a declaration that the sum must be In Goldberg v. Kelly, 397 U.S.

paid, or for an order reversing the agency's decision not to 254, 90 S.Ct. 1011, 25 L.Ed.2d

pay.” Bowen v. Massachusetts, 487 U.S. 879, 915–16, 108 287 (1970), New York City welfare

S.Ct. 2722, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting) officials were enjoined from following

(discussing section 702 of the Administrative Procedure Act, New York State procedures which

which waives sovereign immunity in actions against federal authorized the termination of benefits

agencies as long as the plaintiff seeks “relief other than money paid to welfare recipients without prior

damages”) (quoting 5 U.S.C. 702 (2000)). hearing. But the fiscal consequences

to state treasuries in these cases were

Parsing categories of permissible relief in cases the necessary result of compliance

implicating immunity inevitably involves compromise. See, with decrees which by their terms

e.g., DOUGLAS LAYCOCK, MODERN AMERICAN were prospective in nature. State

REMEDIES 482 (3d ed. 2002) (“The law of remedies against officials, in order to shape their

governments and government officials is a vast and complex official conduct to the mandate of the

body of doctrine, full of technical distinctions, fictional Court's decrees, would more likely

explanations, and contested compromises.”). The United have to spend money from the state

States Supreme Court has held that, under federal immunity treasury than if they had been left

law, claims for prospective injunctive relief are permissible, free to pursue their previous course

while claims for retroactive relief are not, as such an award of conduct. Such an ancillary effect

is “in practical effect indistinguishable in many aspects from on the state treasury is a permissible

an award of damages against the State.” Edelman v. Jordan, and often an inevitable consequence of

415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). the principle announced in Ex parte

This rule originated in Ex parte Young, 209 U.S. 123, 28 S.Ct. Young, supra.

441, 52 L.Ed. 714 (1908), in which the Court held that an

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

Williams, dichotomy between declaratory and injunctive

Id. at 667–68, 94 S.Ct. 1347 (footnote omitted). The claims regarding past statutory violations and those seeking

retroactive portion of the Edelman district court's decree only to compel the city to follow the law in the future;

was different, however, as “[i]t require[d] payment of state the government was immune from the former but not the

funds, not as a necessary consequence of compliance in latter); Bell v. City of Grand Prairie, 221 S.W.3d 317,

the future with a substantive federal-question determination, 325 (Tex.App.-Dallas 2007, no pet.) (holding that, under

but as a form of compensation to those whose applications Williams, firefighters' requested declaration regarding past

were processed on the slower time schedule at a time when statutory violation was barred, but to the extent the requested

petitioner was under no court-imposed obligation to conform declaration concerned future violations, the claim was not

to a different standard.” Id. at 668, 94 S.Ct. 1347. barred, providing the firefighters did not seek an award

of money damages). And finally, it ensures that statutes

While “[t]he line between prospective and retrospective specifically directing payment, like any other statute, can be

remedies is neither self-evident nor self-executing,” judicially enforced going forward.

LAYCOCK, MODERN AMERICAN REMEDIES at 483,

the Supreme Court shed further light on the issue in Milliken [12] This approach is inconsistent with Epperson, however,

v. Bradley, 433 U.S. 267, 269, 97 S.Ct. 2749, 53 L.Ed.2d in which we held that, if successful, Epperson would be

745 (1977), a case involving desegregation of the Detroit entitled to “the sum of $93,000 which belonged to him

school system. The Supreme Court upheld a trial court's order as his commission for services rendered.” Epperson, 42

requiring state officials to spend $6 million on education to S.W.2d at 229. In that respect, Epperson conflicts with

remedy effects of segregation. Milliken, 433 U.S. at 290, 97 Williams, in which we implied that prospective remedies

S.Ct. 2749. The Court held that this relief was permissible might not be barred even though retrospective monetary ones

under Edelman: “That the programs are also ‘compensatory’ were. Williams, 216 S.W.3d at 829 (noting that “[t]he only

in nature does not change the fact that they are part of a plan injury the retired firefighters allege has already occurred,

that operates prospectively to bring about the delayed benefits leaving them with only one plausible remedy—an award of

of a unitary school system.” Id.; see also 13 CHARLES money damages” and that “they assert no right to payments

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL from the City in the future”). The best way to resolve this

PRACTICE & PROCEDURE § 3524.3 (noting that, under conflict is to follow the rule, outlined above, that a claimant

Edelman, “[i]njunctions requiring expenditure of state funds who successfully proves an ultra vires claim is entitled to

are acceptable, so long as the order is prospective” but prospective injunctive relief, as measured from the date of

“[r]etroactive relief, including compensatory damages from injunction. Cf. Edelman, 415 U.S. at 669, 94 S.Ct. 1347

state funds are barred”). (using entry of injunction to distinguish retrospective from

prospective relief). Thus, while the ultra vires rule remains

This compromise between prospective and retroactive relief, the law, see Federal Sign, 951 S.W.2d at 404, Epperson's

while imperfect, best balances the government's immunity retrospective remedy does not.

with the public's right to redress in cases involving ultra vires

actions, and this distinction “appear[s] in the immunity of the [13] But this rule is not absolute. For example, a claimant

United States, and in the law of most states' immunity from who successfully proves a takings claim would be entitled

state-law claims.” LAYCOCK, MODERN AMERICAN to compensation, and the claim would not be barred by

REMEDIES at 482. It also comports with the modern immunity even though the judgment would require the

justification for immunity: protecting the public fisc. *376 government to pay money for property previously taken. Gen.

Tooke v. City of Mexia, 197 S.W.3d 325, 331–32 (Tex.2006) Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591,

(observing that immunity “shield[s] the public from the 598 (Tex.2001) (noting that governmental immunity “does

costs and consequences of improvident actions of their not shield the State from an action for compensation under

governments”); Federal Sign, 951 S.W.2d at 417 (Enoch, J., the takings clause”); cf. WRIGHT & MILLER, FEDERAL

dissenting) (noting that suits against the state would deplete PRACTICE & PROCEDURE § 3524.3 (“If the state cannot

treasury resources and tax funds necessary to operate the invoke its immunity, retroactive relief against it is allowed.”).

government). Moreover, it is generally consistent with the

way our courts of appeals have interpreted Williams. See, [14] Heinrich has not alleged a takings claim. In the trial

e.g., City of Round Rock v. Whiteaker, 241 S.W.3d 609, 633– court, Heinrich alleged only that “a suit for equitable relief

34 (Tex.App.-Austin 2007, pet. denied) (approving, under

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

against a governmental entity for violation of a provision Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099 (citations

of the Texas Bill of Rights is excepted from ... sovereign omitted). Here, the injunctive relief Heinrich seeks would

immunity under Texas Constitution article [I], section 29” necessarily come from the Board, rather than the individual

without specifying which provision of the Bill of Rights members. Considering “the nature of the liability sought to be

had been violated. In the court of appeals, however, she imposed,” id., and construing Heinrich's pleadings liberally,

clarified that her constitutional complaint was a “violation Miranda, 133 S.W.3d at 226, we conclude that she has sued

of Article 1, section 16.” TEX. CONST. art. I, § 16 (“No the Board members in their official capacities, and her claims

bill of attainder, ex post facto law, retroactive law, or any are therefore not automatically barred by immunity. 10 To the

law impairing the obligation of contracts, shall be made.”). extent that the court of appeals held that the suit is against the

Petitioners contend that she waived this argument by failing to Board members in their individual capacities, we reverse that

*377 raise it in the trial court. See Tex. Dep't of Protective & portion of its judgment.

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). Even if Heinrich's D

constitutional argument was properly presented, however,

it has no merit. Heinrich does not challenge the governing Evidence That Petitioners Acted Ultra Vires

statute or bylaws, but rather the Board's actions under those

provisions. Indeed, Heinrich argues that “[t]he Pension Board [15] In their second issue, petitioners argue that

and its individual members acted outside their authority and governmental immunity prohibits *378 Heinrich's suit

in violation of the Texas Constitution when they reduced because Heinrich has offered no evidence that the reduction

[Heinrich's] benefits.” Because Heinrich does not allege that in her benefits was illegal or unauthorized. We conclude,

any law sanctioned the retroactive reduction in her benefits, however, that Heinrich has presented evidence raising a fact

her constitutional argument fails. 8 question on this issue.

As we have repeatedly noted, the Legislature is best [16] “When a plea to the jurisdiction challenges the

positioned to waive immunity, and it can authorize pleadings, we determine if the pleader has alleged facts that

retrospective relief if appropriate. See, e.g., TEX. LOCAL affirmatively demonstrate the court's jurisdiction to hear the

GOV'T CODE § 180.006 (enacted after Williams and waiving cause. We construe the pleadings liberally in favor of the

immunity for firefighter and police officer claims for back plaintiffs and look to the pleaders' intent.” Miranda, 133

pay and civil penalties). There are cases in which prospective S.W.3d at 226 (citations omitted). Here, Heinrich alleges that

relief is inadequate to make the plaintiff whole, but the petitioners violated article 6243b, section 10A(b) of the Texas

contours of the appropriate remedy must be determined by Revised Civil Statutes when they reduced her benefits. Thus,

the Legislature. if Heinrich's allegations are true, her suit would fall within the

ultra vires exception to governmental immunity as described

Thus, Heinrich's claims for prospective relief may be brought above.

only against the appropriate officials in their official capacity,

and her statutory claims for future benefits against the City, [17] [18] This is not the end of our analysis, however:

“if a plea to the jurisdiction challenges the existence of

Fund, and Board must be dismissed. 9 Heinrich's pleadings

jurisdictional facts, we consider relevant evidence submitted

are unclear as to the capacity or capacities in which she

by the parties when necessary to resolve the jurisdictional

has sued the individual Board members. The United States

issues raised, as the trial court is required to do.” Id. at 227.

Supreme Court has observed that, “[i]n many cases, the

If there is no question of fact as to the jurisdictional issue, the

complaint will not clearly specify whether officials are sued

trial court must rule on the plea to the jurisdiction as a matter

personally, in their official capacity, or both.” Kentucky v.

of law. Id. at 228. If, however, the jurisdictional evidence

Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d

creates a fact question, then the trial court cannot grant the

114 (1985); see also United States ex rel. Adrian v. Regents

plea to the jurisdiction, and the issue must be resolved by the

of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004). In these

fact finder. Id. at 227–28. This standard mirrors our review

cases, “ ‘[t]he course of proceedings' in such cases typically

of summary judgments, and we therefore take as true all

will indicate the nature of the liability sought to be imposed.”

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

evidence favorable to Heinrich, indulging every reasonable place in every station or substation of a department to

inference and resolving any doubts in her favor. Id. at 228. which the change would directly apply and in the city hall;

Petitioners argue that, in accordance with the governing TEX.REV.CIV. STAT. art. 6243b, § 10A (emphasis added).

bylaws, the payments to Heinrich were reduced when her son Under this statute, while benefits may be increased if certain

ceased to be eligible to receive them, and asserts that the procedures are followed, the Board has no discretion to

statutory provisions Heinrich relies upon are “inapplicable.” retroactively lower pensions. Petitioners, however, cite the

Conversely, Heinrich alleges that she was awarded 100% of provisions of the 1980 bylaws, under which the reduction

her husband's pension in accordance with these provisions, would be proper due to Heinrich's son's age. They therefore

and that petitioners' subsequent retroactive reduction of her suggest that Heinrich erroneously relies on 1985 changes to

benefits violated, among others, article 6243b, section 10A(a) the bylaws that increased the surviving spouse's share but

(1) of the Texas Revised Civil Statutes. The relevant portions were prospective only in nature and do not apply to Heinrich.

of article 6243b, section 10A provide:

Heinrich submitted an affidavit from John Batoon, former

(a) Notwithstanding anything to the contrary in other parts Assistant City Attorney for El Paso. 11 Batoon's affidavit

of this Act and subject to Subsections (b) and (c) of this provided:

section, the Board of Trustees may, by majority vote of the

whole board, make from time to time one or more of the

following changes, or modifications: I was serving as an Assistant City Attorney for the

City of El Paso in 1985. I reviewed and approved the

(1) modify or change prospectively or retroactively in any award to Ms. Lilli M. Heinrich of 100% of her deceased

manner whatsoever any of the benefits provided by this husband's, Charles D. Heinrich, benefits from The El Paso

Act, except that any retroactive change or modification Firemen & Policemen's Pension Fund. All procedures were

shall only increase pensions or benefits; followed according to the Plan and according to law. The

membership voted and approved of the benefits awarded

***

Ms. Heinrich as was required by the Plan. Because Mr.

(b) None of the changes made under Subsection (a) of this Heinrich had been an outstanding police officer for the City

section may be made unless all of the following conditions of El Paso and because he was killed in the line of duty, the

are sequentially complied with: Board of Trustees and the membership voted to award Ms.

Heinrich 100% of Mr. Heinrich's benefits.

(1) the change must be approved by a qualified actuary

selected by a four-fifths vote of the Board; the actuary's Consideration of the amount of benefits awarded Ms.

approval must be based on an actuarial finding that Heinrich was not based, in any way, on the fact that she

the change is supported by the existing funding status had a minor child at that time. Ms. Heinrich was awarded

of the fund; the actuary, if an individual, must be a 100% of the benefits because Mr. Heinrich had been a

Fellow of the Society of Actuaries or a Fellow of the well-loved officer and his death was a terrible loss for the

Conference of Actuaries in Public Practice or a Member police department. It was the Board of Trustees and the

of the American Academy of Actuaries; the actuary, membership's way of paying tribute to a fallen officer.

if an actuarial consulting firm, must be established in Along with this sworn testimony, the evidence included a

the business of providing actuarial consulting services pair of October 16, 1985 letters from the chief of police,

to pension plans and have experienced personnel able one signed by the then-Board members, stating that “Mrs.

to provide the requested *379 services; the findings Heinrich will receive 100% of her husband's final pension

upon which the properly selected and qualified actuary's amount,” and one unsigned, stating that 100% would go to

approval are based are not subject to judicial review; “Mrs. Heinrich and her dependent children.” The minutes

of the November 20, 1985 Board meeting also indicate that

(2) the change must be approved by a majority of the membership had previously voted to change benefits so

all persons then making contributions to the fund as that surviving spouses' benefits would increase from 66 2/3

employees of a department to which the change would to 100% of the pension amount. The Board contends that

directly apply, voting by secret ballot at an election held these bylaw changes do not apply to Heinrich, but even if

after ten (10) days' notice given by posting at a prominent they do not, Batoon's affidavit and the letters raise a fact

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

hold that Heinrich has not sued the Board members in

question as to whether Heinrich's individual benefits were

their individual capacities, official immunity is inapplicable

increased to 100% of her husband's pension payments under

the provisions of article 6243b and subsequently reduced in here. 12

violation thereof. We conclude that the trial court correctly

denied that portion of the plea to the jurisdiction *380

challenging Heinrich's claims against the individuals in their III

official capacities. Miranda, 133 S.W.3d at 227–28.

Conclusion

E In sum, because there is a question of fact as to whether

Heinrich's pension payments have been reduced in violation

of state law, her claims for prospective declaratory and

The Individuals' Immunity

injunctive relief against the Board members and the mayor

In their final issue, petitioners assert that the trial court in their official capacities may go forward, but we dismiss

erred in denying the individual board members' plea to the her retrospective claims against them. All of her claims

jurisdiction based on governmental and official immunity. against the City, Fund, and Board, however, are barred by

With the limited ultra vires exception discussed above, governmental immunity, and we dismiss them. Finally, we

governmental immunity protects government officers sued hold that the Board members have not been sued in their

in their official capacities to the extent that it protects their individual capacities, and to the extent the court of appeals

employers. See Univ. of Tex. Med. Branch v. Hohman, held otherwise, we reverse its judgment. We affirm in part and

6 S.W.3d 767, 776 (Tex.App.-Houston [1st Dist.] 1999, reverse in part the court of appeals' judgment and remand this

pet. dism'd w.o.j.). Because of this exception, however, case to the trial court for further proceedings. TEX.R.APP.

governmental immunity does not bar Heinrich's claims P. 60.2(a),(d).

against the individuals in their official capacities. Official

immunity, by contrast, is an affirmative defense protecting

Parallel Citations

public officials from individual liability. See Telthorster v.

Tennell, 92 S.W.3d 457, 459–60 (Tex.2002). Because we 52 Tex. Sup. Ct. J. 689

Footnotes

1 The City withheld a percentage of Charles's compensation (and that of other officers) to fund the plan.

2 The State of Texas and the Texas State Association of Fire Fighters submitted amicus curiae briefs.

3 We recently dismissed a claim for declaratory and injunctive relief against the Houston Municipal Employees Pension

System in which the “plaintiffs ... requested that the trial court issue an injunction directing the pension board to comply

with the trial court's interpretation of Article 6243h,” the governing statute. Houston Mun. Employees Pension Sys. v.

Ferrell, 248 S.W.3d 151, 158–59 (Tex.2007). Under Article 6243h, the Houston board's “interpretation of [the] Act [is] final

and binding on any interested party,” TEX.REV.CIV. STAT. art. 6243h § 2(y), and we held that this language precluded

judicial review. Ferrell, 248 S.W.3d at 158 (“There is no right to judicial review of an administrative order unless a statute

explicitly provides that right or the order violates a constitutional right.”) (citations omitted). Here, however, Article 6243b

contains no language similar to that in 6243h granting the Board exclusive authority to interpret the act, see TEX.REV.CIV.

STAT. art. 6243b, and, in any case, Heinrich does not challenge petitioners' interpretation of 6243b, but rather alleges

that they have violated that statute under an undisputed reading thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J.,

concurring) (“A different case might be presented if the plaintiffs alleged the board was clearly violating some provision

of the statute. Article 6243h gives the pension board complete discretion to interpret the statute, but not to violate it.”).

4 The Dodgen Court expressly declined to limit Epperson based on changes in federal immunity jurisprudence. Dodgen,

308 S.W.2d at 843.

5 Because the policy embodied in the law extends only as far the amount wrongfully withheld, claims for amounts beyond

those alleged to be due under the relevant law, such as consequential damages, remain barred by immunity.

6 For claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act requires that

the relevant governmental entities be made parties, and thereby waives immunity. TEX. CIV. PRAC. & REM.CODE §

City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)

52 Tex. Sup. Ct. J. 689

37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be

made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the

attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.”); see Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697–698 (Tex.2003) (“[I]f the Legislature requires that the State be joined

in a lawsuit for which immunity would otherwise attach, the Legislature has intentionally waived the State's sovereign

immunity.”); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (“The DJA expressly provides that persons

may challenge ordinances or statutes, and that governmental entities must be joined or notified. Governmental entities

joined as parties may be bound by a court's declaration on their ordinances or statutes. The Act thus contemplates that

governmental entities may be—indeed, must be—joined in suits to construe their legislative pronouncements.”). Here,

Heinrich is not challenging the validity of the bylaws or the governing statute, but rather petitioners' actions under them.

7 State officials may, of course, be sued in both their official and individual capacities. Judgments against state officials in

their individual capacities will not bind the state. See Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d

636 (1999) (“Even a suit for money damages may be prosecuted against a state officer in his individual capacity for

unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the

state treasury but from the officer personally.”).

8 Further, although the parties do not address it, we note that the reduction in Heinrich's survivor payments occurred before

the effective date of article XVI, section 66 of the Texas Constitution (“Protected Benefits Under Certain Public Retirement

Systems”), and we do not consider whether it would otherwise apply in this case.

9 While this case was pending on interlocutory appeal, the Legislature enacted 271.151–.160 of the Local Government

Code, waiving immunity from suit for certain claims against cities and other governmental entities. Heinrich does not

argue that her claims fall within these provisions, and we express no opinion on that subject.

10 Because the mayor of El Paso, who is also a Board member, was named as a defendant in his official capacity, Heinrich

may seek liability from the City through that officer, although her claims against the City itself must be dismissed.

11 The Fund, the Board, and the Board members objected to this evidence. The trial court did not explicitly rule on the

objections, and the petitioners do not raise any evidentiary issues on appeal.

12 The court of appeals failed to draw this distinction, instead discussing the protections available to officials from

governmental immunity. 198 S.W.3d at 407. This conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T

CODE § 22.225(c), (e).

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

jurisdiction filed by Rains County and Robert M. Sisk, the

county judge of Rains County, and dismissing the Terrell

111 S.W.3d 274

family's lawsuit. We affirm.

Court of Appeals of Texas,

Texarkana.

The lawsuit stemmed from an automobile accident resulting

Odell TERRELL, on Behalf of the ESTATE in serious personal injuries to, and ultimately the deaths of,

OF J.R. TERRELL, Jr., and on Behalf of J.R. Terrell, Jr., and his wife, Virginia. The accident was

the Estate of Virginia Terrell, David Elkins, caused by June Goble, Judge Sisk's secretary, while on her

way to a doctor's appointment. The Terrell family alleged that

and Jimmy Wayne Terrell, Appellants,

Goble was in a drug-induced stupor, that Judge Sisk knew

she had been misusing prescription drugs but made no effort

Robert M. SISK and Rains County, Texas, Appellees.

to control the situation through her employment, and that her

medical visit on the date of the accident was “in furtherance of

No. 06–02–00174–CV. | Submitted

County business.” The lawsuit was filed against Rains County

June 19, 2003. | Decided July 16, 2003.

and Judge Sisk. 2 The County and Judge Sisk raised sovereign

Survivors of motorists killed in collision with county immunity and official immunity as defenses.

employee brought action against county and county judge

alleging failure to supervise, failure to train, failure to control, In the sole issue presented for review, the Terrell family

negligent implementation of policy, and negligent hiring. The challenges the trial court's order granting the plea to the

402nd Judicial District Court, Wood County, G. Timothy jurisdiction. The Terrell family has presented a number of

Boswell, J., dismissed for lack of subject matter jurisdiction. arguments in an effort to support that contention. We will

Survivors appealed. The Court of Appeals, Ross, J., held address those as necessary, but recognize that the main thrust

that: (1) county employee driving her own car to doctor's of their contentions is that, as to the County and Judge

appointment was not acting within scope of her employment; Sisk, sovereign immunity has been waived by the Texas Tort

(2) joint enterprise did not exist between employee, judge, Claims Act. 3 They contend there is a cause of action for

and county; (3) judge did not act in bad faith by failing failure to supervise, for failure to train, for failure to control,

to request drug test of employee; and (4) official immunity for negligent implementation of policy, negligent hiring (or

barred negligence claims against judge. retention), and that “joint enterprise” applies.

Affirmed. [1] As to the claims against Rains County, the only question

is whether sovereign immunity has been waived. If not, then

no claim against the County can prevail. Under the doctrine of

Attorneys and Law Firms

sovereign immunity, a governmental unit is not liable for the

*276 Christopher A. Kalis, Law Offices of Christopher A. torts of its officers or agents in the absence of a constitutional

Kalis, Dallas, for appellants. or statutory provision creating such liability. Dallas County

Mental Health & Mental Retardation v. Bossley, 968 S.W.2d

Robert T. Bass, Allison, Bass & Associates, LLP, Austin, for 339, 341 (Tex.1998). In the absence of the state's consent to

appellees. suit, a trial court lacks subject matter jurisdiction and must

dismiss. The Tort Claims Act creates that limited waiver of

Before MORRISS, C.J., ROSS and CARTER, JJ.

sovereign immunity. See TEX. CIV. PRAC. & REM.CODE

ANN. § 101.021 (Vernon 1997).

OPINION As a governmental unit, Rains County is immune from both

suit and liability unless the Tort Claims Act has waived

Opinion by Justice ROSS.

that immunity. *277 Section 101.021 of the Tort Claims

Odell Terrell, on behalf of the estates of J.R. Terrell, Jr., and Act has been interpreted as waiving sovereign immunity in

Virginia Terrell, David Elkins, and Jimmy Wayne Terrell (the three general areas: “use of publicly owned automobiles,

premises defects, and injuries arising out of conditions or

Terrell family) 1 appeal from an order granting a plea to the

use of property.” Tex. Dep't of Transp. v. Able, 35 S.W.3d

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

608, 611 (Tex.2000), quoting Lowe v. Tex. Tech Univ., 540

S.W.2d 297, 298 (Tex.1976). Pursuant to Section 101.021, a The facts alleged by the Terrell family are that the damage

governmental unit in the state is liable for: was caused by the private vehicle of the driver (Judge Sisk's

secretary) while that driver was on her way to a doctor's

(1) property damage, personal injury, and death appointment. There is no allegation of an express waiver of

proximately caused by the wrongful act or omission or immunity. Thus, in order to fall under the Tort Claims Act

the negligence of an employee acting within his scope of exception, the Terrell family must show that the use of the

employment if: vehicle was part of the scope of the driver's employment

by the County. “Scope of employment” is defined as “the

(A) the property damage, personal injury, or death arises

performance for a governmental unit of the duties of an

from the operation or use of a motor-driven vehicle or

employee's office or employment *278 and includes being

motor-driven equipment; and

in or about the performance of a task lawfully assigned to

(B) the employee would be personally liable to the an employee by competent authority.” TEX. CIV. PRAC. &

claimant according to Texas law; and REM.CODE ANN. § 101.001(5) (Vernon Supp.2003).

(2) personal injury and death so caused by a condition There are no allegations in the Terrell family's pleadings that

or use of tangible personal or real property if the can reasonably be interpreted as showing that the driver was

governmental unit would, were it a private person, be liable acting within the scope of her employment at the time of

to the claimant according to Texas law. the accident. She was not traveling at the direction of her

employer. There is nothing to suggest this trip to the doctor

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021. was any part of the performance of her duties as an employee;

rather, the pleadings show conclusively it was a personal

The lack of subject matter jurisdiction is properly raised by activity away from the workplace.

a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones,

8 S.W.3d 636, 638 (Tex.1999) (correcting a number of The Terrell family also alleged, however, that Goble's trip to

misunderstandings on that point). 4 The plaintiff has the the doctor was a part of her employment—and thus her use

burden to show that jurisdiction exists by alleging facts that of her car was actionable under the vehicle exception to the

affirmatively demonstrate that the trial court has subject Tort Claims Act. They argue that this theory applies because

matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Judge Sisk had, on an earlier occasion, directed Goble to go

Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Midland v. home, and because he permitted her to leave on this occasion.

Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd

w.o.j.). In the context of suit against a governmental unit, The underlying principle is that an employee is generally

the plaintiff must allege consent to suit either by reference to not in the course and scope of employment while driving

statute or express legislative permission. Jones, 8 S.W.3d at his or her own vehicle to or from his or her place of

638; Sullivan, 33 S.W.3d at 6. employment. Mata v. Andrews Transp., Inc., 900 S.W.2d

363, 366 (Tex.App.-Houston [14th Dist.] 1995, no writ).

In our analysis, the question of subject matter jurisdiction is a This rule is based on the premise that an injury occurring

legal question which we review de novo. Sullivan, 33 S.W.3d while traveling to or from work has nothing to do with the

at 6. We examine the pleadings, taking as true the facts pled, risks associated with a place of employment. Smith v. Tex.

and we determine whether those allegations of fact support Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193

jurisdiction in the trial court. Tex. Ass'n of Bus., 852 S.W.2d (1937).

at 446. In so doing, we construe the pleadings in favor of

the pleader. Id. If necessary, we may review the entire record There is an exception to this rule that applies when an

to determine if there is jurisdiction. Id. If the petition does employee undertakes a special mission for his or her

not allege jurisdictional facts, the plaintiff's suit is subject to employer. Direkly v. ARA Devcon, Inc., 866 S.W.2d 652,

dismissal only when it is impossible to amend the pleadings 654 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.).

to confer jurisdiction. See id. In this case, special exceptions A special mission is a specific errand that an employee

directed at this matter were raised, and the Terrell family had undertakes at the specific request of the employer. Wilie

the opportunity to amend their pleadings. v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

(Tex.App.-Houston [14th Dist.] 2001, pet. denied); Upton v. Arguably, there was an agreement, and a common purpose,

Gensco, Inc., 962 S.W.2d 620, 621–22 (Tex.App.-Fort Worth between Goble and the County, as the Terrell family alleges.

1997, pet. denied). However, the Terrell family's counsel has However, neither the “pecuniary interest” nor the “equal right

explicitly stated in a post-submission letter to this Court that to control” elements make any sense in the context of a

the “special mission” concept does not apply to the facts of benefit provided for an employee by an employer. There is no

this case. We will therefore not further address that theory. real pecuniary interest involved as a profit-making business

arrangement between the parties. The County provided health

There is no allegation of fact to show that, on the occasion of insurance as a benefit. That was arguably a pecuniary benefit

this accident, the employee went to the doctor at the specific to Goble. The health benefits are provided by doctors, who

request of Judge Sisk. There is also no allegation of fact to presumably receive a pecuniary benefit from their use. In

support the Terrell family's theory that Rains County had a return, the County receives—not money—but a worker who

duty to keep Goble from leaving her workplace. There is is more satisfied with his or her employment and is thus more

nothing in the Terrell family's pleadings that can be read to likely to remain employed by the County.

support the application of the Tort Claims Act to allow them

to pursue a cause of action against Rains County. The plea to Further, the mere fact that an employee has the ability to

the jurisdiction was therefore properly granted. choose the doctor whom he or she will visit does not indicate

such employee has “control” over a joint enterprise. It simply

[2] The Terrell family also contends the County has waived shows that the employee has the ability under the provided

its sovereign immunity because it was in a joint enterprise insurance contract to choose which doctor he or she will visit.

with Goble. They so contend because Judge Sisk allowed

Goble to use her personal vehicle to occasionally run errands In light of the fact the Texas Supreme Court has held that

for the County and because the County's health insurance even business relationships such as a franchisor, wholesaler,

plan provided the drugs Goble was taking, and Judge Sisk or supplier do not have a “community of pecuniary interest”

allowed her to go to the doctor to obtain those drugs and did adequate to show the existence of a joint enterprise, neither

not attempt to stop her. can we find any indication a joint enterprise exists in this

situation. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 528

In Able, the Texas Supreme Court held that “a governmental (Tex.2002).

unit that enters into a joint enterprise can be liable under the

waiver of sovereign immunity found in the Tort Claims Act.” [4] The Terrell family then takes a different direction in

Able, 35 S.W.3d at 610. In that case, the plaintiffs alleged a their pleadings concerning Judge Sisk. They allege that Judge

premises defect involving a state highway. See id. at 612. The Sisk was the negligent party and that his negligence was the

plaintiffs also alleged that a joint enterprise existed between proximate cause of the deaths because of his failure to enforce

the Texas *279 Department of Transportation (TxDOT) the County's drug-testing policy. The policy, as stated in the

and the Houston Metropolitan Transit Authority (Metro) with Terrell family's brief, provided that an “employee suspected

respect to the highway. See id. at 610. As a party to a joint of drug/alcohol abuse may be requested to take a test. If an

enterprise with Metro, the plaintiffs contended TxDOT was employee refuses to take this test or fails a test, they are

equally responsible for the premises defect. See id. at 613. subject to immediate dismissal.”

[3] A plaintiff must show four elements to prove the The initial question is whether this alters the analysis set

existence of a joint enterprise: (1) an agreement, express or out above for Judge Sisk in his official capacity as the

implied, among the members of the group; (2) a common county judge. Article IX, Section 1 of the Texas Constitution

purpose to be carried out by the group; (3) a community of provides that counties are legal subdivisions of the state. TEX.

pecuniary interest in that purpose, among the members; and CONST. art. IX, § 1. A suit against a government official in

(4) an equal right to a voice in the direction of the enterprise, his or her official capacity seeks to impose liability only on the

which gives an equal right of control. Id.; Tex. Dep't of governmental entity the official represents, and any judgment

Transp. v. City of Floresville Elec. Power & Light Sys., 53 in this type of suit is collectible only against the governmental

S.W.3d 447, 456 (Tex.App.-San Antonio 2001, no pet.). entity, not against the official's personal assets. Kentucky v.

Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d

114 (1985); Herring v. Houston Nat'l Exch. Bank, 113 Tex.

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

264, 253 S.W. 813 (1923); Harris County v. Walsweer, 930 would be personally liable under Texas law. A government

S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ employee is entitled to official immunity for (1) the

denied); Winograd v. Clear Lake City Water *280 Auth., performance of discretionary duties (2) that are within the

811 S.W.2d 147, 162 (Tex.App.-Houston [1st Dist.] 1991, scope of the employee's authority, (3) provided the employee

writ denied); see also Bowles v. Reed, 913 S.W.2d 652, acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d

655 (Tex.App.-Waco 1995, writ denied) (suit against county 650, 653 (Tex.1994); see also DeWitt v. Harris County, 904

official is a suit solely against the county); Bowles v. Wade, S.W.2d 650, 652 (Tex.1995).

913 S.W.2d 644, 649, 649 n. 13 (Tex.App.-Dallas 1995, writ

denied) (suits against public officials are suits against the In deciding whether the facts alleged fall outside the scope

entities for whom they work and official-capacity judgments of official immunity, we recognize that the basis for alleged

impose liability on the entity). liability is the County's policy, which explicitly provides

that requiring a drug test of an employee is absolutely

[5] As a public official sued in his official capacity, Judge discretionary, and that the Terrell family has alleged the

Sisk is protected by the same sovereign immunity enjoyed accident was caused by Judge Sisk while acting within the

by the state agency he represents. Tex. Dep't of Health scope of his official duties. The sole disputed question then

v. Rocha, 102 S.W.3d 348, 353 (Tex.App.-Corpus Christi, becomes whether he acted in good faith.

2003, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454,

460 (Tex.App.-Tyler 1999, pet. denied); Morris v. Copeland, If Judge Sisk was performing a discretionary function, then

944 S.W.2d 696, 698–99 (Tex.App.-Corpus Christi 1997, he is protected by official immunity, regardless of whether he

no writ). Because a suit against a state officer in his or was negligent in the exercise of his public duties. See City of

her official capacity is equivalent to a suit against the Wichita Falls v. Norman, 963 S.W.2d 211, 215 (Tex.App.-

state, employees acting in their official capacity share their Fort Worth 1998, pet. dism'd w.o.j.). The Terrell family

employer's sovereign immunity. Rocha, 102 S.W.3d at 353; cannot breach the immunity wall merely because Judge Sisk

Denson, 63 S.W.3d at 460; Morris, 944 S.W.2d at 698– was negligent—they can only do so if Judge Sisk exercised

99; see also Sykes v. Harris County, 89 S.W.3d 661, 669 his discretionary authority in *281 bad faith. See Harless v.

(Tex.App.-Houston [1st Dist.] 2002, pet. filed); Univ. of Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.).

Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d

767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd The Terrell family must do more than show that a reasonably

w.o.j.) (holding employee sued in her official capacity was prudent supervisor could have acted differently; they must

shielded by sovereign immunity). Accordingly, a plea to the show that no reasonable person in Judge Sisk's position could

jurisdiction is procedurally the proper method of contesting have thought the facts were such that they justified his acts.

the propriety of the lawsuit against him or her as a public See Chambers, 883 S.W.2d at 657. Good faith is not defeated

official. simply by a showing of negligence. Wadewitz v. Montgomery,

951 S.W.2d 464, 467 n. 1 (Tex.1997).

The Terrell family alleges Judge Sisk is liable to them for

two main reasons: 1) the judge knew his secretary at least Good faith is established when it is proved that a reasonably

occasionally had problems (i.e., sleeping on the job) caused prudent government official, under the same or similar

by her use of prescription medications, but had negligently circumstances, could have believed that his actions were

failed to exercise the County's policy to require her to undergo justified. Chambers, 883 S.W.2d at 656. A government

drug testing; and 2) the judge knew on that particular occasion employee acts in bad faith only if that employee could not

that his secretary was in no condition to drive her automobile have reasonably reached the decision in question. Univ. of

and was thus negligent in allowing her to drive to her Houston v. Clark, 38 S.W.3d 578, 581 (Tex.2000). Good

doctor's appointment. We will first analyze these allegations faith can be established as a matter of law when the factual

as viewed through the window of sovereign/official immunity recitation by the governmental unit's employee is otherwise

of a public servant. supported by the evidence. Dovalina v. Nuno, 48 S.W.3d 279,

283 (Tex.App.-San Antonio 2001, no pet.); Alamo Workforce

[6] In determining whether a waiver of the application Dev., Inc. v. Vann, 21 S.W.3d 428, 434–35 (Tex.App.-San

of sovereign immunity is shown in this context, a critical Antonio 2000, no pet.). The Terrell family alleged negligence.

question is whether the employee of a governmental unit Although they also used the term “good faith” throughout

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

official is an agent. Will v. Mich. Dep't of State Police, 491

their pleadings, the allegations involving that language are the

U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); City

same ones used in their allegations of negligence. 5

of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-

Houston [1st Dist.] 1995, no writ). The suit is therefore the

The facts concerning the accident alleged by the Terrell

same as one brought directly against the state. Will, 491 U.S.

family do not support a finding that Judge Sisk acted in bad

at 71, 109 S.Ct. 2304; Kmiec, 902 S.W.2d at 122. The United

faith, either for failing to require Goble to undergo a drug

States Supreme Court has held that “neither a State nor its

test, or in connection with her driving to her doctor's office

officials acting in their official capacities are ‘persons' under

in her own vehicle. Requiring a drug test was discretionary

§ 1983.” Will, 491 U.S. at 71, 109 S.Ct. 2304; see Harrison v.

on the part of the county judge, and there are no facts alleged

Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d

showing any directive by Judge Sisk to Goble to drive her

882, 889–90 (Tex.App.-Houston [1st Dist.] 1995, no writ).

automobile. Taking the allegations at their most extreme

The Court went on to explain that, “As such, it is no different

possible meaning, with maximal inferences applied, they at

from a suit against the State itself.” Will, 491 U.S. at 71, 109

most show questionable judgment, and thus possibly show

S.Ct. 2304.

negligence. They do not show the absence of good faith,

which is necessary to avoid the sovereign immunity bar.

Therefore, as a government official in his official capacity,

Accordingly, the trial court did not err by concluding Judge

Judge Sisk is not a “person” under Section 1983. Section 1983

Sisk, riding on the coattails of sovereign immunity of his

of the Civil Rights Act provides as follows:

county, is not amenable to suit in his official capacity.

Every person who, under color of

[7] [8] We next consider whether claims were raised any statute, ordinance, regulation,

against Judge Sisk in his individual capacity. State employees custom, or usage, of any State or

sued in their individual capacities may be liable for their Territory or the District of Columbia,

negligence if they do not have official immunity. Sykes, 89 subjects, or causes to be subjected,

S.W.3d at 669; Denson, 63 S.W.3d at 460. any citizen of the United States or

other person within the jurisdiction

We have reviewed the pleadings in detail. Although there thereof to the deprivation of any rights,

are places where the Terrell family referred to claims against privileges, or immunities secured by

Judge Sisk in his personal capacity, there were no claims the Constitution and laws, shall be

raised involving any act by the judge outside of his public liable to the party injured in an action

servant persona. This is not a situation where there is a at law, suit in equity, or other proper

mixture of allegations, some of which are directed at actions proceeding for redress.

taken outside a public capacity. In this case, all allegations

were of claimed wrongdoing or negligence by Judge Sisk in 42 U.S.C.A. § 1983 (West Supp.2003).

actions he was able to take only because of his position as a

public servant. Under these circumstances, we conclude that Section 1983 was not designed to override sovereign

a fair reading of the Terrell family's pleadings is that there immunity. Will, 491 U.S. at 66, 109 S.Ct. 2304. Accordingly,

*282 was no effective pleading against Judge Sisk in his the Section 1983 claim made against Judge Sisk in his official

individual capacity. capacity could not serve to avoid the application of sovereign

immunity and the claim was properly the subject of the plea

[9] [10] The Terrell family has also raised a federal Section to the jurisdiction.

1983 claim against Judge Sisk. A suit against a state official

in his or her official capacity is not a suit against the official, We affirm the judgment.

but against the official's office and the state for which the

Footnotes

1 Odell Terrell is a surviving brother of J.R. Terrell, Jr. David Elkins is the surviving son of Virginia Terrell, and Jimmy Wayne Terrell

is the surviving son of J.R. Terrell, Jr.

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

2 The style of the lawsuit in the Terrell family's pleadings does not specify whether Judge Sisk was sued in his personal capacity or

in his capacity as county judge (and the supervisor of his secretary). We will therefore review the pleadings to determine the nature

of the Terrell family's claims.

3 TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(1)(A), (B) (Vernon 1997).

4 Since as early as 1847, the law in Texas has been that, absent the state's consent to suit, a trial court lacks subject matter jurisdiction.

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A party may contest a trial court's subject matter jurisdiction by filing

a plea to the jurisdiction. Id.

5 “When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings' to determine

the nature of the liability the plaintiff seeks to impose.” Harless v. Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.),

quoting Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.).

In re State Bar of Texas, 440 S.W.3d 621 (2014)

57 Tex. Sup. Ct. J. 1253

Opinion

Original Image of 440 S.W.3d 621 (PDF)

440 S.W.3d 621 Justice DEVINE delivered the opinion of the Court, in

Supreme Court of Texas. which Chief Justice HECHT, Justice GREEN, Justice

JOHNSON, Justice GUZMAN, Justice LEHRMANN, and

In re The STATE BAR OF TEXAS. Justice BROWN joined.

No. 13–0161. | Argued Feb. 6, A person wrongfully arrested for a crime “is entitled to have

2014. | Decided Aug. 22, 2014. all records and files relating to the arrest” expunged, if certain

conditions are met. TEX.CODE CRIM. PROC. art. 55.01(a).

Synopsis One such condition is an acquittal. Id. art. 55.01(a)(1)(A). The

Background: Commission for Lawyer Discipline petitioned statute thus serves to protect wrongfully-accused people by

for a writ of mandamus to the district court regarding its ruling eradicating their arrest records.

that expunction order in case underlying alleged prosecutorial

misconduct precluded the Commission from relying on any In this original mandamus proceeding, the Commission

expunged records. for Lawyer Discipline complains that a former prosecutor,

facing allegations of prosecutorial misconduct, has used an

expunction order to block the Commission's prosecution. A

district court has refused the Commission access to expunged

[Holding:] The Supreme Court, Devine, J., held that order

criminal records for use in the disciplinary proceeding against

denying request by Commission to use expunged records was

the former prosecutor and has ordered the Commission to

an abuse of discretion.

turn over investigative records. The grievance panel in the

collateral disciplinary proceeding has construed the district

Writ conditionally granted. court's actions as a bar to the disciplinary proceeding and

granted the former prosecutor's summary judgment motion.

Boyd, J., concurred in the judgment and filed opinion in Because we conclude that the expungement order does not bar

which Willett, J., joined. the Commission from using records from the criminal trial in

the grievance proceeding, we conditionally grant the writ.

Attorneys and Law Firms

*622 Gregory Max Hasley, Jennifer A. Hasley, Hasley I

Scarano, L.L.P., Houston, TX, for Other interested party Jon

This mandamus relates to a disciplinary proceeding against

L. Hall.

former prosecutor Jon L. Hall, who allegedly suppressed

Barry C. Willey, Donald S. Glywasky, Jack Duane Roady, exculpatory evidence in an aggravated robbery prosecution.

Galveston County Crim. Dist., Galveston, TX, for Other The Commission's involvement began in November 2011,

Interested Party Jack Roady. when it received a news article about the aggravated robbery

trial. The article reported that *623 Joshua Bledsoe was

Christopher L. Tritico, Lloyd James Krell, Ron S. Rainey, acquitted because the prosecutor suppressed exculpatory

Tritico Rainey PLLC, Houston, TX, for Other interested party evidence.

Vikram Vu.

The Commission began by interviewing, among others

Taft Foley, The Foley Law Firm, Houston, TX, for Real Party

familiar with the case, the judge who presided over the

in Interest Joshua Bledsoe.

trial and the attorney who represented Bledsoe. Shortly

Cynthia Canfield Hamilton, Senior Appellate Disciplinary thereafter, the Commission anonymously received a partial

Counsel, Laura Kathryn Bayouth, Linda A. Acevedo, Office trial transcript that included discussions between the trial

of the Chief Disciplinary Council, Austin, TX, for Relator judge and counsel regarding the prosecution's suppression of

State Bar of Texas. evidence, including a 911 tape.

In re State Bar of Texas, 440 S.W.3d 621 (2014)

57 Tex. Sup. Ct. J. 1253

In that tape, the robbery victim made statements that she the Commission's stay request and, based on the trial court's

later contradicted during trial. At trial, the victim identified order, granted Hall's summary judgment motion.

Bledsoe as one of the robbers based partially on his race,

but in the 911 call, the same witness claimed that she could The Commission has appealed the panel's summary judgment

not provide any description of the robbers, including race, to the Board of Disciplinary Appeals and has sought review of

because they wore masks. the trial court's order in the court of appeals. The Commission

advises that both reviews have been stayed, pending our

Following its investigation, the Commission commenced review of the Commission's petition for writ of mandamus.

a disciplinary action against Hall, the lead prosecutor in

the aggravated robbery case, and Vikram Vij, an assistant The Commission submits that mandamus relief in this Court

prosecutor. The Commission subsequently dismissed the is appropriate because the court of appeals cannot redress

action against Vij. Hall elected to have his disciplinary action the ultimate consequence of the trial *624 court's order—

proceed before a grievance panel rather than in district court. the dismissal of the Commission's disciplinary action. That

dismissal can only be challenged in a separate appeal to the

In answer to the Commission's evidentiary petition, Hall Board of Disciplinary Appeals. The Commission submits

complained that he did not have access to records necessary to that the attendant risk of conflicting appellate decisions that

his defense because all records from the aggravated robbery can only be reconciled in this Court suggests the present

case had been expunged. After receiving Hall's answer, the mandamus as the appropriate remedy. See, e.g., In re State

Commission, with Bledsoe's consent, filed a motion in the Bar of Texas, 113 S.W.3d 730, 732 (Tex.2003) (concluding

trial court that had presided over the criminal prosecution and that mandamus was the appropriate remedy to correct district

signed the expunction order. The motion sought access to the court's interference in the regulation of the legal practice). We

expunged records for use in the pending disciplinary action. turn then to that review.

Although Hall had complained about not having access to

the criminal-case records, he nevertheless responded to the

Commission's motion by urging the trial court to deny access

to the expunged records.

[1] [2] [3] Expunction is not a right; it is a statutory

The Commission's motion was assigned to a visiting judge, privilege. T.C.R. v. Bell Cnty. Dist. Attorney's Office,

sitting by assignment for the trial court. Following a hearing, 305 S.W.3d 661, 663 (Tex.App.-Austin 2009, no pet.).

the visiting judge concluded that the underlying expunction The expunction statute is an exception to the established

order precluded the Commission from relying on any of the principle that court proceedings and records should be open

expunged records and ordered the Commission to turn over to the public. See, e.g., Express–News Corp. v. MacRae,

all information in its possession related to Bledsoe's arrest, 787 S.W.2d 451, 452 (Tex.App.-San Antonio 1990, orig.

including the partial trial transcript. The order also barred for proceeding) (recognizing constitutional right to public trials

any purpose “any document or other evidence derived from and presumptively open court records); TEX.CODE CRIM.

the underlying criminal case and subject to the District Court's PROC. art. 1.24 (requiring public trials). The statute is

expunction order or derived from the arrest of J.B. and subject designed to protect wrongfully-accused people from inquiries

to the District Court's expunction order.” about their arrests. See Ex parte S.C., 305 S.W.3d 258, 263–

64 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (stating

Meanwhile, in response to Hall's requests, the grievance panel “statute was enacted to prevent the record of a wrongful arrest

chair ordered restrictions on the Commission's discovery in from negatively impacting a person for the remainder of his

the disciplinary action. The order recited that the Commission life”).

could not acquire or use any documents or other evidence

related to the underlying criminal case and expungement The statute provides for a truncated expunction procedure that

order until the trial court amended the expungement, if it did. requires neither filing a petition nor a hearing. TEX.CODE

Hall subsequently moved to strike the evidentiary petition, CRIM. PROC. art. 55.02 § 1. The truncated procedure

to dismiss the disciplinary proceeding, and for summary commences with a defendant's request for expunction, such

judgment. The Commission sought a stay so that it could seek as a request made orally on the record by defense counsel.

relief from the trial court's order. The grievance panel denied Id. The acquitted defendant must provide the trial court

In re State Bar of Texas, 440 S.W.3d 621 (2014)

57 Tex. Sup. Ct. J. 1253

with certain information, including a list of all officials and order did not name the Commission as a respondent in

agencies to be named in the expunction order and notified possession of records to be expunged. Nor did the order make

of the expunction proceedings. Id. art. 55.02 §§ 1, 2(b). an exception for the Commission to use expunged records in

Within thirty days of acquittal, the trial court is to enter the its prosecution.

expunction order, which is prepared and filed by defense

counsel or by the prosecutor, if the acquitted defendant is not The Commission filed its Original Evidentiary Petition in

represented by counsel. Id. art. 55.02 § 1. The court clerk the disciplinary proceeding in July 2012. Hall answered in

then sends a certified copy of the expunction order to the August, complaining that the expunction order handicapped

Department of Public Safety and to each of the officials and his ability to defend himself. In response, the Commission

agencies named in the order. Id. art. 55.02 § 3(c). moved to modify the expunction order in the criminal trial

court. The motion recited that the Commission had recently

“On receipt of the order, each official or agency or other learned of the order's possible existence but that it had not

governmental entity named in the order” is required to return been served with a certified copy of the order nor been given

to the court all records and files that are subject to the order notice of an expunction hearing. See TEX.CODE OF CRIM.

or, if their return is impracticable, to obliterate all information PROC. art. 55.02 § 3(c). The Commission requested access

identifying the acquitted defendant. Id. art. 55.02 § 5(a)(1). to records and files in the underlying criminal case for the

Any of the entities named in the order may appeal the order purpose of prosecuting disciplinary proceedings against third

as in civil cases generally. Id. art. 55.02 § 3(a). The clerk parties.

is directed to destroy the collected files and records in some

cases, but the files and records are not destroyed in the case of The trial court denied the request. It further ordered the

an acquittal. Id. art. 55.02 § 5(d). In acquittal cases, the clerk Commission to turn over any material in its investigation

maintains the expunged records and files but generally only file related to Bledsoe's arrest and broadly ordered the

the acquitted defendant has access to them. Id. art. 55.02 § Commission not to use any evidence derived from the

5(c). underlying criminal case in any manner. This order, signed

by the visiting judge on December 11, 2012, is the subject of

Expunction, however, is not absolute. The statute provides the Commission's request for mandamus relief.

for exceptions, permitting the retention of records and files,

if they may be needed in future criminal or civil proceedings. The Commission argues that the court's order perverts the

Id. art. 55.02 § 4. Article 55.02 provides two exceptions for expunction statute's purpose. It submits that a statute designed

acquittal cases which apply if “(1) the records and files are to protect an acquitted defendant's reputation has been

necessary [to investigate and prosecute] a person other than applied to impede the disciplinary prosecution of the person

the person who is the subject of the expunction order; or (2) accused of violating the acquitted defendant's rights. The

the state establishes that the records and files are necessary Commission further notes that the acquitted defendant fully

for use in (A) another criminal case ...; or (B) a *625 civil supports the Commission's use of the expunged records in the

case, including a civil suit or suit for possession of or access disciplinary case against the former prosecutor. In fact, the

to a child.” Id. art. 55.02 § 4(a–2)(1), (2). acquitted defendant filed a brief supporting the Commission's

mandamus petition in this Court, and his lawyer appeared at

oral argument. The Commission concludes that the court's

application of the expunction statute is a clear abuse of

III

discretion because it ignores the acquitted defendant's wishes,

Bledsoe was acquitted in the underlying criminal prosecution contravenes the statute's primary purpose, and interferes with

on June 17, 2011. Despite the statute's directive that the the Commission's ability to prosecute the disciplinary action

court enter the expunction order “not later than the 30th before the grievance panel.

day after the acquittal,” the expunction order was not signed

until December 28, 2011. By that time, the Commission's [4] [5] We agree that the court's December 11 order,

preliminary investigation into prosecutorial misconduct was denying the Commission's request to use expunged records in

virtually complete. The Commission, of course, had no the disciplinary action, is an abuse of discretion. A person can,

direct connection to the criminal prosecution and no apparent in effect, “unexpunge” his records by putting those records

knowledge of the expunction proceedings. The expunction at issue in another proceeding. See, e.g., W.V. v. State, 669

In re State Bar of Texas, 440 S.W.3d 621 (2014)

57 Tex. Sup. Ct. J. 1253

S.W.2d 376, 378–79 (Tex.App.-Dallas 1984, writ ref'd n.r.e.) Antonio 2000, pet. denied) (concluding that civil service

(holding that retention of files was not necessary to afford commission did not rely on expunged records or files but

protection from potential civil action because expunged on officers' testimony about their personal observations). The

records would be held by district clerk and could be retrieved statute thus cannot reasonably be construed to apply to all

if needed for subsequent proceedings); see also Thomas v. investigative files and records generated by a state agency,

City of Selma, 2006 WL 2854405, *3 (W.D.Tex. Oct. 4, like the Commission in this case.

2006) (holding that district clerk must produce arrest records

for use in suit based on arrest). Bledsoe has done precisely The grievance panel, however, interpreted the visiting judge's

*626 that, making his arrest and prosecution a matter of order as precluding the Commission from proceeding in

public record, by filing a federal lawsuit against Hall and the disciplinary action. The Commission argued against

other defendants based on his arrest and prosecution. The that construction and presented evidence independent of the

Commission advises that Hall filed the full transcript of expunged records, including the affidavit from the judge

Bledsoe's trial as a summary judgment exhibit in federal court who presided over the criminal trial, but to no avail. The

and that it is publicly available on the Internet. See Bledsoe v. panel chair concluded that there was “no way we can get

Galveston Cnty. Dist. Attorney's Office, No. 4:13–CV–00469, the evidence” and that “as [the trial court's] order stands,

Document 52–2 (S.D. Tex. filed Feb. 21, 2013) (available at then we have to grant the no-evidence motion for summary

https:// www.pacer.gov). judgment.”

The Commission argues that if an acquitted defendant can In barring the Commission's use of any document or other

make expunged records public by filing a lawsuit based on evidence derived from the underlying criminal case, the court

his wrongful prosecution, he should likewise be able to make construes the expunction statute at odds with the acquitted

the records public by participating in a grievance proceeding defendant's interests. A process intended to protect acquitted

based on the wrongful prosecution. Thus, if Hall can use the defendants has been used as a shield against charges of

expunged records to defend himself in federal court, he can prosecutorial misconduct. Moreover, the court's order fails to

also use them to defend himself in the disciplinary action. consider that an expunction order may except records needed

And, if Hall has the right to use the expunged records, they for future investigations and proceedings by a prosecutor or

should also be available to the Commission. The acquitted a law enforcement agency. TEX.CODE CRIM. PROC. art.

defendant supports the Commission's use of the expunged 55.02 § 4(a–2). The exception extends not only to criminal

records in the disciplinary case, and we conclude that he has matters, but *627 to civil cases as well. Id. art. 55.02 § 4(a–

the right to voluntarily waive his expunction rights for this 2)(2)(B). And, as already mentioned, an acquitted defendant

purpose. In re Expunction of Jones, 311 S.W.3d 502, 505 who obtains an expunction may subsequently waive the

(Tex.App.-El Paso 2009, no pet.) (citing TEX.CODE CRIM. statute's protection. Given the waiver expressed by the

PROC. art. 1.14(a)). We conclude further that the court acquitted defendant, the relevance of the expunged records to

abused its discretion in disregarding the acquitted defendant's the disciplinary proceeding, and the Commission's expressed

voluntary waiver, particularly in light of the Commission's need for those records, the trial court abused its discretion

expressed need for the records to prosecute the disciplinary by extending the expungement order to the Commission and

proceeding. thereby interfering in the disciplinary proceeding.

[6] The expunction statute's purpose is not to eradicate An order that directly interferes with the Commission's ability

all evidence of wrongful conduct. See Gomez v. Tex. Educ. to collect and present evidence is as much a direct interference

Agency, 354 S.W.3d 905, 917–18 (Tex.App.-San Antonio in the disciplinary process as an order directed to a grievance

2011, pet. denied) (holding that a police officer's eyewitness panel itself. See State Bar of Tex. v. Jefferson, 942 S.W.2d

testimony in a contested case administrative hearing was not 575 (Tex.1997) (orig. proceeding) (granting mandamus relief

barred by an expunction order issued before the hearing, against district court that enjoined disciplinary proceedings

but after the administrative petition); Ex parte S.C., 305 before a grievance panel); State v. Sewell, 487 S.W.2d 716

S.W.3d at 266 (holding an expunction order overbroad (Tex.1972) (orig.proceeding) (same). Because the court's

because it included state securities board's investigation order interferes with the disciplinary process, disrupting the

records mentioning S.C.); Bustamante v. Bexar Cnty. Sheriff's regulatory scheme promulgated by this Court to govern cases

Civil Serv. Comm'n, 27 S.W.3d 50, 53–54 (Tex.App.-San of attorney discipline, we conditionally grant relief and direct

In re State Bar of Texas, 440 S.W.3d 621 (2014)

57 Tex. Sup. Ct. J. 1253

the trial court to vacate its order of December 11, 2012. We

Article 1.14 of the Texas Code of Criminal Procedure affirms

are confident the district court will comply, and the writ will

that a defendant in a criminal prosecution “may waive

issue only if it does not.

any rights secured him by law.” TEX.CRIM. PROC.CODE

art. 1.14(a). Article 55.01 provides a defendant a right to

expunction that may be waived. See, e.g., In re Expunction

Justice BOYD filed a concurring opinion, in which Justice of Jones, 311 S.W.3d 502 (Tex.App.-El Paso 2009, no pet.)

WILLETT joined. (holding that a defendant knowingly waived his rights to

expunction under article 1.14). The defendant in this case

Justice BOYD, joined by Justice WILLETT, concurring in

consented to the Commission's motion for access to the

the judgment.

expunged records for use in the pending disciplinary action

The Court concludes in this case “that [an] expungement

and has filed a brief in support of the Commission's petition

order does not bar the Commission [for Lawyer Discipline]

in this Court. Article 55.01 grants a right to the defendant, not

from using records from [a] criminal trial in [a subsequent]

the prosecutor, and I agree that in this case the defendant has

grievance proceeding.” Ante at 622. The Court reaches

waived that right.

this conclusion because (1) the defendant in the criminal

case “has the right to voluntarily waive his expunction

There is no need in this case for the Court to consider whether

rights” and has done so here, ante at 626; (2) the trial

the trial court's order “contravenes” the expunction statute's

court's construction of the expunction statute “contravenes the

unexpressed purpose or “interferes with the disciplinary

statute's primary purpose” and is “at odds with the acquitted

process.” Because the defendant has waived his rights under

defendant's interests,” ante at 626; and (3) the trial court's

the expunction statute, I agree that the trial court abused its

order “interferes with the disciplinary process, disrupting the

discretion by denying *628 the Commission access to the

regulatory scheme promulgated by this Court to govern cases

criminal trial record.

of attorney discipline,” ante at 627. In my view, the latter two

reasons, even if true, provide an inadequate basis to ignore

the unambiguous language of the expunction statute. But I Parallel Citations

agree with the Court's first reason and therefore concur in the

judgment. 57 Tex. Sup. Ct. J. 1253

Love v. State Bar of Texas, 982 S.W.2d 939 (1998)

Love was brought under article X of the former State Bar

Rules or the current Texas Rules of Disciplinary Procedure.

Original Image of 982 S.W.2d 939 (PDF) We hold that the State Bar Rules apply, and affirm the

982 S.W.2d 939 judgment of the trial court.

Court of Appeals of Texas,

Houston (1st Dist.).

Jack Edward LOVE, Appellant, Facts and Procedural History

On June 21, 1990, Love appeared as counsel for a criminal

THE STATE BAR OF TEXAS, Appellee.

defendant in Harris County Criminal Court at Law No. 10.

No. 01–95–01340–CV. | Dec. 17, After arriving an hour late for a 9:00 a.m. hearing, Love

attempted to obtain a trial setting, but was directed by the

1998. | Rehearing Overruled Dec. 17, 1998.

court to confer with the prosecution before attempting to set

State Bar filed disciplinary petition against attorney. The a trial date. While court was still in session, Love left the

270th District Court, Harris County, J.F. Clawson, J., entered courtroom without resetting or otherwise disposing of his

post-answer default judgment and disbarred attorney. He client's case and without conferring with the prosecution as

appealed. On denial of motion for rehearing en banc, the instructed by trial judge. Love did not return for two hours.

Court of Appeals, Schneider, C.J., held that: (1) allegations in

petition were sufficient to support application of prior State The court concluded all other matters, and, along with Love's

Bar rules rather than the new Texas Rules of Disciplinary client, awaited his return. The court eventually reset the cause

Procedure; (2) evidence was sufficient to show attorney and directed Love's client to return the following day. After

violated former State Bar disciplinary rules; and (3) trial court the trial judge retired to chambers, Love returned to the

did not abuse its discretion in disbarring attorney. courtroom. The court coordinator explained to Love that the

court had reset the cause for the next day. Love became angry

Judgment affirmed. and in the presence of court personnel, made antisemitic

remarks regarding the trial judge.

Attorneys and Law Firms On August 14, 1990, Love was found guilty of three counts of

misdemeanor contempt. For each count, Love was assessed

*941 Jack E. Love, Houston, for Appellant.

punishment of six months in jail and a fine of $500. Love

Linda A. Acevedo, Mary Klapperich, Houston, Austin, for filed a writ of habeas corpus to the Texas Court of Criminal

Appellee. Appeals. The Court, en banc, upheld the first two findings

of contempt and set aside the third. Love then filed a writ

Before Chief Justice SCHNEIDER and Justices WILSON of habeas corpus in federal district court. This writ was

and HEDGES. dismissed.

On July 29, 1994, the State Bar filed its first disciplinary

OPINION petition against Love. The petition was based on the first two

contempt findings and violations of Texas Disciplinary Rules

MICHAEL H. SCHNEIDER, Chief Justice. of Professional Conduct 3.02, 3.04(c)(5), 8.04(a)(2) and (4).

TEX DISCIPLINARY R. PROF'L CONDUCT 3.02, 3.04,

The Court considered the appellee's motion for rehearing en 8.04, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit, G

banc. A majority of the justices of the Court voted to deny the app. A (Vernon Supp.1997) (TEXAS STATE BAR R. art. X,

motion. However, the panel withdraws its prior opinion, and § 9). Although Love was properly notified and had an answer

issue this opinion in its place. on file, he did not appear at trial. Thus, the trial court entered a

post-answer default judgment against Love, and, based on the

This is an attorney disciplinary action that resulted in the evidence presented by the State Bar, disbarred Love. Love's

disbarment of appellant, Jack Edward Love. The controlling motion for new trial was denied, and this appeal followed.

issue in this case is whether the disciplinary action against

Love v. State Bar of Texas, 982 S.W.2d 939 (1998)

pleading requirements on the State Bar to prosecute claims

under the old State Bar Rules. Therefore, we must presume

The Applicable Rules of Professional Conduct

that the absence of such language was intentional. See Martin,

The disposition of the case ultimately hinges on which set 102 S.W.2d at 1039.

of disciplinary rules applies to the disciplinary action against

Love. To make that determination, we must determine what Moreover, Texas Rule of Disciplinary Procedure 1.03

requires us to broadly construe the new rules “to ensure

effect the Texas Rules of Disciplinary *942 Procedure, 1

the operation, effectiveness, integrity, and continuation of

which became effective on May 1, 1992, had on then pending

the professional disciplinary and disability system.” TEX.

disciplinary matters involving attorney conduct that occurred

R. DISCIPLINARY P. 1.033. If we were to accept Love's

prior to May 1, 1992. Texas Rule of Disciplinary Procedure

contention that the State Bar was required to plead and prove

1.04 provides in pertinent part:

a pending disciplinary investigation, we would essentially be

reading Texas Rule of Disciplinary Procedure 1.04 to do away

These rules apply prospectively to all attorney professional with an entire class of disciplinary matters that were based

disciplinary and disability proceedings commenced on on conduct that occurred prior to May 1, 1992, but that were

and after [May 1, 1992] ... [T]he State Bar Rules ... are not commenced until after the Texas Rules of Disciplinary

repealed except to the extent that they apply to then pending Procedure became effective. We decline to accept Love's

disciplinary matters. reading of rule 1.04. Such a construction would not only

TEX.R. DISCIPLINARY P. 1.04 (emphasis added). hamper the State Bar's efforts to control attorney conduct, but

Love argues that the disciplinary rules in effect at the time would engraft additional requirements on the State Bar not

of trial apply, absent the State Bar pleading and proving that expressly imposed by the Texas Supreme Court. See Sharp v.

the disciplinary investigation against him was pending prior House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991) (noting

to May 1, 1992. Love contends the language in rule 1.04 that court construing a statute should consider consequences

implementing the Rules of Disciplinary Procedure effectively of construction).

engrafts additional pleading and proof requirements on the

State Bar in disciplinary matters prosecuted under the former Therefore, we hold that the State Bar was not required to plead

State Bar Rules. We disagree. and prove that there was a pending disciplinary investigation

against Love prior to May 1, 1992, to prosecute Love under

[1] [2] Promulgated rules have the same force and effect the State Bar rules. To invoke the jurisdiction of the trial court,

as statutes. Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868, all that was required of the State Bar was that they plead

872 (Tex.1973). Consequently, rules should be interpreted in sufficient facts to show that the trial court had jurisdiction.

accordance with the rules of statutory construction. Knight Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,

v. Intern. Harvester Credit Corp., 627 S.W.2d 382, 384 446 (Tex.1993).

(Tex.1982). The primary goal of interpretation is to determine

what the enacting body intended. Id. Here, our goal is [5] In its First Amended Disciplinary Petition, the State Bar

to determine what the Texas Supreme Court intended by referred to the applicable rules in pertinent part as follows:

enacting Texas Rule of Disciplinary Procedure 1.04 and the

*943 Petitioner brings this

resulting effect on disciplinary investigations commenced

disciplinary action pursuant to the

before May 1, 1992. We must interpret rule 1.04, and, in

State Bar Act, Tex. Gov't.Code Ann.

the process, harmonize and give effect to the entire set of

§ 81.000, et seq. (Vernon 1988) and

disciplinary rules. See Martin v. Sheppard, 129 Tex. 110, 102

the State Bar rules. The complaints

S.W.2d 1036, 1039 (Tex.1937).

which forms (sic) the basis of the

First Amended Disciplinary Petition

[3] [4] A cardinal rule of statutory construction is that

were filed prior to May 1, 1992.

every word used must be presumed to have been used for

The acts and conduct of Respondent,

a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d

as hereinafter described, constitute

535, 540 (Tex.1981). It is also presumed that words excluded

professional misconduct under the

were left out for a purpose. Id. The language of rule 1.04

State Bar Rules. Art. X, § 57.

is absolutely silent regarding the existence of any additional

Love v. State Bar of Texas, 982 S.W.2d 939 (1998)

of the truth of their allegations. Stanley, Harris, Rice &

The State Bar's petition specifically stated they were bringing Assoc. v. Lewis, 410 S.W.2d 533, 534 (Tex.Civ.App.—Dallas

“this disciplinary action pursuant to the State Bar Act, TEX. 1966, no writ); Kroger Co. v. Warren, 410 S.W.2d 194, 196

GOV'T. CODE ANN. § 81.000, et seq. (Vernon 1988) and (Tex.Civ.App.—Tyler 1966, no writ). Moreover, a defendant

the State Bar rules.” They specifically referred to complaints with an affirmative defense who fails to appear at trial, and

that had been filed against Love prior to the effective date of offers no evidence to support that defense, effectively waives

the Texas Rules of Disciplinary Procedure. that affirmative defense. Stoner v. Thompson, 578 S.W.2d

679, 685 (Tex.1979); RE/MAX of Texas, Inc. v. Katar Corp.,

[6] [7] We find this language sufficient to support the 961 S.W.2d 324, 327 (Tex.App.—Houston [1st Dist.] 1997,

application of the State Bar Rules. See State Bar of Texas no writ); TEX. R. CIV. P. 94.

v. Dolenz, 893 S.W.2d 113, 114–15 (Tex.App.—Dallas

1995, writ denied) (holding that disciplinary action based Here, there is no evidence in the record proving or disproving

on conduct occurring before effective date of Texas Rules Love's statute of limitations claims. Therefore, we overrule

of Disciplinary Procedur

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