# 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 > Texas Court of Appeals, 3rd District (Austin) · May 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4067328 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** May 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4067328 ## How later opinions describe it (automated extraction) - 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 ## Opinion text 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 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 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 v. 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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 v. 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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. A 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 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 C 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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.” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 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 § © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 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). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 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 v. 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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.). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 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. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 II 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 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 v. 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4067328. Public record. Not legal advice.