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

ACCEPTED

03-15-00007-CV

7091545

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/24/2015 5:05:11 PM

JEFFREY D. KYLE

October 27, 2015 CLERK

NO. 03-15-00007-CV

__________________________________

RECEIVED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

AUSTIN, TEXAS 9/24/2015 5:05:11 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 SUPPLEMENTAL 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

TABLE OF CONTENTS

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

A. Review of Texas Rules of Disciplinary Procedure 2.16 ....................................... 1

B. The Legislature expressly contemplated providing an explanation to

a complainant, upon dismissal of a complaint ...................................................... 2

C. Exceptions to sovereign immunity apply in this case ........................................... 3

1. Doe’s challenge to Rule 2.16 falls within the exception for

“challenging a statute.” ................................................................................ 4

2. Linda Acevedo acted ultra vires when she refused to provide the

requested information without legal authority. ........................................... 7

D. There is a real controversy and a real injury, which will continue to evade

judicial review ..................................................................................................... 9

1. Doe’s declaratory judgment action to interpret Rule 2.16

does not seek to usurp control vested in the Texas Supreme Court ............ 9

2. This case meets the public interest exception to the mootness doctrine ... 10

Prayer ....................................................................................................................... 12

Certificate of Compliance ........................................................................................ 14

Certificate of Service ............................................................................................... 14

APPELLANT’S SUPPLEMENTAL BRIEF ii

INDEX OF AUTHORITIES

CASES

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ..................................................................... 4, 5, 7, 8

Sefzik v. Tex. Dep’t of Transp.,

267 S.W.3d 127 (Tex. App.—Corpus Christi 2008). .............................................5

State Bar of Texas v. Gomez,

891 S.W.2d 243 (Tex. 1994). .................................................................................9

Tex. Educ. Agency v. Leeper,

893 S.W.2d 432 (Tex. 1994). .............................................................................6, 7

Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011). ..................................................................... 4, 5 6, 7

Univ. Scholastic League v. Buchanan,

848 S.W.2d 298 (Tex. App.—Austin 1993, no writ). ..........................................10

RULES AND CODES

TEX. CIV. PRAC. & REM. CODE §37.006(b) ................................................................6

TEX. R. DISC. P. 1.06(u) .......................................................................................... 12

TEX. R. DISC. P. 2.12 ............................................................................................... 11

TEX. R. DISC. P. 2.13 .......................................................................................... 11,12

TEX. R. DISC. P. 2.14 ............................................................................................... 11

APPELLANT’S SUPPLEMENTAL BRIEF iii

TEX. R. DISC. P. 2.16 ........................................................................................ passim

TEX. EDUC. CODE §21.032 .........................................................................................6

TEX. EDUC. CODE §21.033 .........................................................................................6

TEX. GOV’T CODE §81.072 ....................................................................................2, 3

APPELLANT’S SUPPLEMENTAL BRIEF iv

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant, John Doe, files this Supplemental Brief to provide additional

support for his position in this proceeding.

A. Review of Texas Rule of Disciplinary Procedure 2.16

Texas Rule of Disciplinary Procedure 2.16 does not prohibit Appellees from

providing Doe with the Chief Disciplinary Counsel’s recommendation to the

summary disposition panel regarding Doe’s grievance, which was summarily

dismissed with no explanation to Doe. See Tex. R. Disciplinary P. 2.16.

For the Court’s convenience, the relevant text of Rule 2.16 is stated below:

2.16 Confidentiality

A. All 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, except that:

...

Tex. Rules Disciplinary P. R. 2.16, reprinted in Tex. Gov’t Code Ann., tit. 2,

subtit. G, app. A-1 (West 2013) (“Rule 2.16”).

This rule thus provides that “Disciplinary Proceedings and associated

records” “shall [be] maintained as confidential,” with some specified exceptions.

Id.

Notably, Rule 2.16 does not expressly address from whom the proceedings

are kept confidential. Id. The Rule does not expressly indicate that the

proceedings must be kept confidential from the complainant himself. Id. Such a

APPELLANT’S SUPPLEMENTAL BRIEF 1

rule would seem misplaced, when it is the complainant himself who initiated the

disciplinary process, who knows the underlying facts, who knows the attorney

under investigation, and who knows the exact allegations raised against that

attorney.

Admittedly, however, Rule 2.16 does not expressly state that its

confidentiality requirement does not apply to complainants. For this reason, Rule

2.16 must be, and has been, interpreted. In this case, and presumably in all cases,

the Commission for Lawyer Discipline through the Chief Disciplinary Counsel

(“CDC”) has interpreted Rule 2.16 as keeping the CDC’s recommendation to the

summary disposition panel confidential from complainants.

Doe disagrees with this interpretation of Rule 2.16 and instead, believes a

common sense interpretation should prevail—pursuant to which the Disciplinary

Proceedings, and associated records, are indeed confidential as to all third-parties;

but not as to the complainant who initiated the proceeding and who already has

knowledge of the underlying facts.

Doe’s interpretation is supported by existing Texas statutory law, as

discussed below.

B. The Legislature expressly contemplated providing an explanation to a

complainant, upon dismissal of a complaint.

Section 81.072 of the Texas Government Code, in relevant part, states:

APPELLANT’S SUPPLEMENTAL BRIEF 2

Sec. 81.072. GENERAL DISCIPLINARY AND DISABILITY

PROCEDURES. (a) In furtherance of the supreme court’s powers to

supervise the conduct of attorneys, the court shall establish disciplinary and

disability procedures in addition to the procedures provided by this

subchapter.

(b) The supreme court shall establish minimum standards and procedures

for the attorney disciplinary and disability system. The standards and

procedures for processing grievances against attorneys must provide

for:

(1) classification of all grievances and investigation of all complaints;

(2) a full explanation to each complainant on dismissal of an inquiry or

a complaint; . . . .

Tex. Gov’t Code ¶ 81.072 (emphases added).

Section 81.072’s plain language requires the provision of “a full explanation

to each complainant on dismissal of an inquiry or complaint.” Id. Clearly, the

Legislature contemplated providing a complainant with a “full explanation” when

his complaint is dismissed. Id. Construing Rule 2.16 to prohibit a complainant

from learning the reason his complaint was referred to a summary disposition

contradicts this requirement.

Accordingly, because Appellees’ interpretation of Rule 2.16 contradicts the

Legislature’s intent in section 81.072, it cannot stand. See id.; Rule 2.16.

C. Exceptions to sovereign immunity apply in this case.

Appellees’ primary defense to Doe’s declaratory judgment action is

sovereign immunity; but well-recognized exceptions to immunity apply in this

case.

APPELLANT’S SUPPLEMENTAL BRIEF 3

Appellees have not disputed that 2 exceptions to sovereign immunity exist in

a declaratory judgment case: (1) the state is an appropriate party to a suit that

“challenges the validity of a statute”; and (2) the state actor is an appropriate party

to a suit that makes an ultra vires allegation. These exceptions were discussed in

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (the primary case

upon which Appellees rely for their sovereign immunity argument) and City of El

Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), a predecessor case to Sefzik. Both

cases are discussed below.

1. Doe’s challenge to Rule 2.16 falls within the exception for “challenging

a statute.”

Appellees argue Doe is not “challenging the validity of a statute,” and thus

this exception to sovereign immunity cannot apply in this case.

Appellees, however, misunderstand what it means to “challenge the validity

of a statute,” as evidenced by the fact that at oral argument, they insisted that the

case at bar was just like Sefzik.

In Sefzik, the Texas Department of Transportation (“TxDOT”) denied

Sefzik’s application for a sign permit. 355 S.W.3d at 620. Sefzik appealed this

denial, but lost. Id. Sefzik then complained that he was entitled to a hearing on the

denial, because the APA’s procedures pertaining to contested cases applied. Id.

TxDOT disagreed, refused to grant him a hearing, and Sefzik then sought a

APPELLANT’S SUPPLEMENTAL BRIEF 4

declaratory judgment “that the APA’s ‘contested case’ procedures entitled him to a

hearing.” Id.

Notably, Sefzik was not complaining about, or “challenging,” the underlying

regulations pertaining to the sign permit. He was not complaining that the

regulations applied to him, when they should not have. He was not complaining

that the regulations had been misconstrued, misinterpreted, or misapplied. Sefzik’s

sole complaint before the trial court was that the APA’s contested-case procedures

applied to his permit denial, so that he was entitled to a hearing. Id.

The Sefzik defendants sought to dismiss the case, based on sovereign

immunity. Id. at 620. Sefzik argued a declaratory judgment action did not

implicate sovereign immunity. Sefzik v. Tex. Dep’t of Transp., 267 S.W.3d 127,

131 (Tex. App.—Corpus Christi 2008) rev’d in part, 355 S.W.3d 618. Ultimately,

the Texas Supreme Court agreed in part with the Sefzik defendants, and found the

Declaratory Judgment Act itself does not waive immunity. In doing so, however,

the Court recognized exceptions to sovereign immunity in declaratory judgment

cases:

Although the UDJA waives sovereign immunity in particular cases,

Sefzik’s claim does not fall within the scope of those express waivers.

For example, the state may be a proper party to a declaratory

judgment action that challenges the validity of a statute. Heinrich,

284 S.W.3d at 373 n. 6 (citing TEX. CIV. PRAC. & REM. CODE

APPELLANT’S SUPPLEMENTAL BRIEF 5

§ 37.006(b)); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 629,

697-98 (Tex. 2003); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432,

446 (Tex. 1994).

Id. at 622 (emphasis added).

By expressly citing Leeper as an example of when the state may be a

proper party to a declaratory judgment action, the Court gave litigants clear

direction regarding what it means to “challenge the validity of a statute.”

Id., citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).

In Leeper, the plaintiffs brought a declaratory judgment against State

entities complaining that the defendants had misinterpreted the private school

exemption to Texas’s compulsory attendance law. 893 S.W.2d at 433 (citing Tex.

Educ. Code §§ 21.032 and 21.033(a)(1)).1 Specifically, the plaintiffs claimed that

home-schooling should be interpreted as falling within the private school

exemption. Id.

The case at bar is analogous to Leeper (and not to Sefzik), because like

Leeper, there is a specific statute (or rule) at issue being “challenged.”

As in Leeper, Doe’s argument is that the particular provision at issue has

been “misinterpreted.” Id. Specifically, in Leeper, the plaintiffs argued the State

entities had misinterpreted the private school exemption as not applying to, or not

1

Leeper did not expressly address sovereign immunity; but it is nonetheless instructive based on

Sefzik’s reference to that case. Sefzik, 355 S.W.3d at 622, citing Leeper, 893 S.W.2d at 446.

APPELLANT’S SUPPLEMENTAL BRIEF 6

including, home-schooled children. Id. In the case at bar, Doe makes an

analogous argument: the State entities have misinterpreted 2.16, so as to preclude

Doe from obtaining the requested information.

Finally in Leeper, the plaintiffs challenged the State’s actions (prosecuting

parents of home-schooled children), which were taken based on the State’s

(mis)interpretation of the statute at issue. Id. at 433. In the case at bar, Doe has

challenged the CDC’s actions (refusing to provide information to Doe), which

were taken based on the CDC’s misinterpretation of Rule 2.16.

Thus, Doe has indeed “challenged the validity of a statute,” as did the

plaintiffs in Leeper, and in contrast to the plaintiff in Sefzik. Compare id. with

Sefzik, 355 S.W.3d at 622. Accordingly, the exception to sovereign immunity

exemplified by Leeper applies to make the State entities proper parties to this

proceeding. See Leeper, 893 S.W.2d at 438, 446; Heinrich, 284 S.W.3d at 372.

2. Linda Acevedo acted ultra vires when she refused to provide the

requested information without legal authority.

In the alternative, by refusing to provide the requested information without

any legal authority for doing so, the Chief Disciplinary Counsel, Linda Acevedo,

has acted ultra vires.

In Heinrich, the Texas Supreme Court discussed the contours of the ultra

vires exception to sovereign immunity. 284 S.W.3d at 372-74. “To fall within this

APPELLANT’S SUPPLEMENTAL BRIEF 7

ultra vires exception, a suit must not complain of a government officer’s exercise

of discretion, but rather must allege, and ultimately prove, that the officer acted

without legal authority or failed to perform a purely ministerial act.” Id. at 372.

Heinrich complained that the City’s reduction of her pension benefits under

a municipal pension fund was “illegal or unauthorized.” Id. at 378. She argued

that the City had improperly and without legal authority made a retrospective

reduction in her pension benefits. Id. The Court found some evidence to support

her position, and thus affirmed the lower court’s denial of the plea to the

jurisdiction with respect to specific named state actors, under the ultra vires

doctrine. Id. at 379-80.

In the case at bar, Appellees focus on the “ministerial act” portion of the

ultra vires exception, and argue that there is no such act in this case. Appellees

argue that because Rule 2.16 does expressly require them to provide a complainant

with the information Doe requested, there is no ministerial act to implicate the

ultra vires exception.

This argument is misplaced, because Doe is not complaining there was some

failure to perform a ministerial act (nor is a ministerial act required, to implicate

the ultra vires doctrine). Acting without legal authority is also a proper basis for

an ultra vires finding. See id. And that is exactly what Doe has alleged in this

case: that the State actor, Linda Acevedo, acted without legal authority, when she

APPELLANT’S SUPPLEMENTAL BRIEF 8

refused to give the requested information based solely on a misinterpretation of

Rule 2.16. As discussed above, Rule 2.16 does not expressly prohibit disclosure of

the information requested to a complainant.

Accordingly, the ultra vires exception to sovereign immunity applies in this

case to render Linda Acevedo a required party to this action. Id.

D. There is a real controversy and a real injury, which will continue to

evade judicial review.

Appellees raised several additional arguments as to why the lower court

lacked subject matter jurisdiction. Examined individually, each argument fails.

1. Doe’s declaratory judgment action to interpret Rule 2.16 does not seek to

usurp control vested in the Texas Supreme Court.

Relying primarily on State Bar of Tex. v. Gomez, 891 S.W.2d 243 (Tex.

1994), Appellees urge this court to find that Doe’s actions constitute an attempt to

usurp power that is vested exclusively in the Texas Supreme Court: the power to

institute Disciplinary Rules. This argument fails because its premise is incorrect.

Doe is not seeking to “rewrite” Rule 2.16, or “change” Rule 2.16 as Appellees

allege. Doe is simply asking for Rule 2.16 not to be misinterpreted as keeping

recommendations to summary dismissal panels confidential from complainants, for

all the reasons described above.

Gomez is inapposite because in that case, the plaintiffs asked a state district

court to create a mandatory duty for attorneys to undertake pro bono

APPELLANT’S SUPPLEMENTAL BRIEF 9

representations. 891 S.W2d at 246. The supreme court held that creating duties

for attorneys is the sole province of the supreme court, and thus the district court

lacked authority to grant the relief requested by the plaintiff. Because the district

court could not grant the relief requested, the case before it was not justiciable, and

that court lacked jurisdiction. Id.

But in the case at bar, Doe is not asking the trial court to create a new rule,

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

regulation. All the trial court is asked to do is declare that Rule 2.16 does not

prohibit the CDC from disclosing its recommendation to a summary disposition

panel.

2. This case meets the public interest exception to the mootness doctrine.

Because the questions involved in this case are of considerable public

importance, are capable of arising again between the same parties or other

members of the public, and will continue to evade judicial review, this case meets

the “public interest” exception to the mootness doctrine. See Univ. Scholastic

League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.—Austin 1993, no writ).

Appellees have argued that this court should not apply the public interest

doctrine in this instance, because there is another way of obtaining what Doe

wants: a petition to the Texas Supreme Court. Again, though, Appellees

APPELLANT’S SUPPLEMENTAL BRIEF 10

mischaracterize Doe’s request. Doe is not asking for a rule re-write, a new rule, or

new policy. Doe is simply asking for an interpretation of Rule 2.16.

In addition, Doe has suffered a real harm and injury because he could bring

another grievance, and preventing him from understanding why his prior grievance

was dismissed, hamstrings him in preparing another complaint. The Appellees

have taken the position that, because the Commission only makes

“recommendations” to a summary disposition panel (“SDP”), and the SDP

ultimately makes the decision to dismiss, Doe cannot possibly stand to gain from

knowledge of the Commission’s recommendation. This is simply false and

mischaracterizes the process.

The Commission decides whether any filing constitutes an “inquiry” or a

“grievance.” Tex. Rules Disciplinary P. R. 2.12. If a filing is classified as a

“grievance,” the Commission then decides, after investigation, whether or not Just

Cause exists. Id. (providing that “the Chief Disciplinary Counsel shall investigate

the Complaint and determine whether there is Just Cause.”). Id. Only after the

CDC has determined that no Just Cause exists, is the matter referred to a summary

disposition panel. Id.

If the CDC determines Just Cause exists, then the grievance bypasses the

summary disposition panel, and the matter is either decided by an evidentiary panel

or district court. Tex. Rules Disciplinary P. R. 2.13 and 2.14.

APPELLANT’S SUPPLEMENTAL BRIEF 11

In the case at bar, based solely on the fact that Doe’s grievance landed

before a summary disposition panel, we know that the CDC made a “no just cause”

determination. See Tex. Rules Disciplinary P. R. 2.13. Thus, when Doe asks for

the CDC’s recommendation regarding his grievance, he wants to know why his

grievance did not meet the very low “Just Cause” threshold.2 That information

would absolutely help him in determining whether he would file an additional

grievance based on the same underlying facts.

Appellees’ insistence that they should not have to to “show their hand” by

giving Doe this information demonstrates a lack of appreciation for who is asking.

Doe is not the opposing party. Doe is the CDC’s ally and potentially best witness

in any case against the respondent. It does not jeopardize the CDC’s position in

future proceedings if it explains to Doe, or allows Doe to see, why it made a “no

just cause” determination.

PRAYER

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

and remand this case for further proceedings.

2

The Rules of Disciplinary Procedure define “Just Cause” as “such cause as is found to exist

upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to

believe that an attorney either has committed an act or acts of Professional Misconduct requiring

that a Sanction be imposed, or suffers from a Disability that requires either suspension as an

attorney licensed to practice law in the State of Texas or probation.” Tex. Rules Disciplinary P.

R. 1.06(u). This is a low threshold. It focuses on what a reasonable “person” would believe (not

a reasonable attorney), which is in keeping with the overall purposes of the Rules: to protect the

public.

APPELLANT’S SUPPLEMENTAL BRIEF 12

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

APPELLANT’S SUPPLEMENTAL BRIEF 13

CERTIFICATE OF COMPLIANCE

I certify that this APPELLANT’S SUPPLEMENTAL 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 2,735 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

CERTIFICATE OF SERVICE

On September 24, 2015, the undersigned certifies that he served a

copy of Appellant’s Supplemental Brief on the following in the manner listed

below, in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

Cynthia Canfield Hamilton Via email: chamilton@texasbar.com

Senior Appellate Counsel Via E-file Notification

Office of the Chief Disciplinary Counsel and Certified Mail, RRR

State Bar of Texas

P.O. Box 12487

Austin, Texas 78711

Paul Homburg Via email: phomburg@texasbar.com

Disciplinary Counsel Via E-file Notification

Office of the Chief Disciplinary Counsel and Certified Mail, RRR

State Bar of Texas

711 Navarro, Suite 750

San Antonio, Texas 78205

APPELLANT’S SUPPLEMENTAL BRIEF 14

Rebecca Stevens Via email: bstevens@texasbar.com

Disciplinary Counsel Via E-file Notification 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 SUPPLEMENTAL BRIEF 15

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

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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

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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.”

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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

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

KeyCite Red Flag - Severe Negative Treatment

Judgment Reversed in Part by Texas Dept. of Transp. v. Sefzik, Tex., October 21, 2011

267 S.W.3d 127

Court of Appeals of Texas,

Corpus Christi–Edinburg.

Roger SEFZIK, Appellant,

v.

TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.

No. 13–06–550–CV. | June 19, 2008. | Rehearing Overruled Oct. 2, 2008.

Synopsis

Background: Applicant for permit to erect outdoor-advertising sign brought suit against Texas Department of Transportation

(TxDot), seeking declaration that Administrative Procedure Act’s provisions governing “contested cases” applied to TxDot’s

denial of his application and alleging that denial of contested-case proceeding violated due process. The 53rd District Court

of Travis County, Suzanne Covington, J., granted TxDot’s plea to jurisdiction based on sovereign immunity. Applicant

appealed.

Holdings: The Court of Appeals, Benavides, J., held that:

[1]

suit seeking declaration of rights was not subject to sovereign immunity defense;

[2]

Administrative Procedure Act’s (APA) declaratory relief provision was not a waiver of sovereign immunity; but

[3]

sovereign immunity was not waived as to constitutional claims.

Affirmed in part, reversed and remanded, in part.

Vela, J., dissented and filed opinion.

Attorneys and Law Firms

*129 C. Russell Woody, J. Allen Smith, Scott J. Conrad, SettlePou, Dallas, TX, for Appellant.

Betsy J. Johnson, Office of the Atty. Gen. of Texas, Austin, TX, for Appellee.

Before Chief Justice VALDEZ and Justices BENAVIDES and VELA.

OPINION

Opinion by Justice BENAVIDES.

Appellant, Roger Sefzik, sued the appellee, the Texas Department of Transportation (TxDot), seeking a declaration that the

Texas Administrative Procedure Act’s provisions governing “contested cases” apply to TxDot’s denial of an application for a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

permit to erect an outdoor-advertising sign. Sefzik also sought damages for constitutional due process violations. TxDot filed

a plea to the jurisdiction, asserting that sovereign immunity barred Sefzik’s claims. The trial court granted TxDot’s plea to

the jurisdiction, and Sefzik now appeals. We affirm, in part, and reverse and remand, in part.

I. BACKGROUND

On March 18, 2005, Sefzik filed an application with TxDot for a permit to erect an outdoor-advertising sign at a designated

location on the north side of Interstate 30 in Greenville, Texas. Sefzik sought to advertise on behalf of two businesses at the

specific location: T–Bar Fence, Inc. and Gym’s Star Gymnastics. As part of the *130 application process, Sefzik was

required to demonstrate that the two businesses had been operating for at least 90 days (the “90–day waiting period”).1 TxDot

received Sefzik’s application at its Paris, Texas office on March 21, 2005.

1

43 TEX. ADMIN. CODE §§ 21.142(2)(K), 21.150(b)(4).

Apparently, Gym’s Star Gymnastics had not been operating for the requisite 90 days at the time TxDot received Sefzik’s

application. Rather, the 90–day waiting period did not end until April 2, 2005. TxDot did not immediately notify Sefzik of

the defect in his application. On April 4, 2005, Daum Advertising applied for a permit to erect an advertising sign at the same

location on behalf of the same businesses.

On June 15, 2005, TxDot denied Sefzik’s application for a permit. In its denial letter, TxDot informed Sefzik that his

application to advertise for Gym Star Gymnastics did not satisfy the 90–day waiting period at the time that TxDot received

his application. Additionally, TxDot informed Sefzik that Daum Advertising’s permit had been received on April 4, 2005,

which was 92 days after Gym’s Star Gymnastics opened for business. It told Sefzik that because Daum Advertising’s

application satisfied the 90–day waiting period, Daum Advertising was awarded the permit.

On June 20, 2005, Sefzik resubmitted his permit application,2 and on June 29, 2005, he appealed the previous denial of his

application.3 Sefzik filed his appeal with Michael Behrens, TxDot’s Executive Director. He argued that his application was

the only one on file on April 2, 2005 when the 90–day waiting period expired. Sefzik argued that TxDot should have notified

him of the deficiency in his permit application so that he could resubmit his application. He requested an oral, contested-case

hearing, which he asserted was required under Texas Government Code section 2001.051.4

2

The Texas Administrative Code appears to contemplate that if a permit application is filed with errors, TxDot will notify the

applicant and allow him or her to correct any deficiencies and resubmit the application. Id. § 21.150(c).

3

Id. § 21.162(a) (“An applicant may file a petition with the executive director to appeal a denied permit.”).

4

“In a contested case, each party is entitled to an opportunity: (1) for hearing after reasonable notice of not less than 10 days; and (2)

to respond and to present evidence and argument on each issue involved in the case.” TEX. GOV’T CODE ANN. § 2001.051

(Vernon 2000).

On October 7, 2005, Behrens denied Sefzik’s appeal without holding a hearing. Behrens opined that TxDot acted reasonably

in denying Sefzik’s permit application because the initial application did not meet the 90–day waiting period. Behrens cited

to the administrative code, which states that applications are considered on a first-come, first-serve basis.5 Sefzik filed a

motion for rehearing,6 arguing that TxDot failed to comply with the Administrative Procedure Act (“APA”)’s7 contested case

*131 procedures by refusing to provide him with a contested-case hearing under government code section 2001.051. That

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Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

motion was overruled by operation of law on November 21, 2005.8

5

43 TEX. ADMIN. CODE 21.150(c) (“Permits will be considered on a first-come, first-serve basis. If an application is returned

because of errors or incomplete information, other applications received for the same or conflicting sites between the time a denied

application is returned to the applicant and the time it is resubmitted, will be considered before the resubmitted application. A

second application for a conflicting site may be held until a decision is made on the first application.”).

6

TEX. GOV’T CODE ANN. § 2001.146 (Vernon 2000).

7

Id. §§ 2001.001–2001.902 (Vernon 2000 & Supp.2007).

8

Id. § 2001.146(c).

Sefzik then filed the underlying lawsuit in Travis County District Court. Sefzik alleged jurisdiction pursuant to Texas

Government Code section 2001.171, which provides for appeals to the Travis County District Courts from administrative

decisions in contested cases.9 Sefzik alleged claims for declaratory relief under the Uniform Declaratory Judgments Act

(“UDJA”)10 and the APA’s declaratory judgment provision.11 Sefzik sought a declaration that the APA’s contested-case

procedures apply to TxDot’s denial of his permit application and that, therefore, he was entitled to an oral hearing on appeal

of TxDot’s denial of his permit application. Sefzik also alleged that by denying him a contested-case proceeding, TxDot

violated his due process rights under the United States and Texas Constitutions.12 Finally, he sought attorney’s fees under the

UDJA.13

9

Id. § 2001.171 (Vernon 2000) (“A person who has exhausted all administrative remedies available within a State agency and who

is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.”). On appeal, Sefzik does not

assert this provision as a ground for jurisdiction.

10

TEX. CIV. PRAC. & REM.CODE §§ 37.001–37.011 (Vernon 1997 & Supp.2007).

11

TEX. GOV’T CODE ANN. § 2001.038 (Vernon 2000). Section 2001.038(a) provides: “The validity or applicability of a rule,

including an emergency rule adopted under Section 2001.034, may be determined in an action for declaratory judgment if it is

alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or

privilege of the plaintiff.” Id.

12

U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 19.

13

TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (Vernon 1997).

TxDot filed a plea to the jurisdiction and a general denial, asserting that Sefzik’s claims were barred by sovereign immunity.

It asserted that Sefzik was not entitled to a contested-case proceeding; therefore, he was not entitled to appeal under Texas

Government Code section 2001.171. TxDot further argued that Sefzik was required to demonstrate a waiver of sovereign

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

immunity for his claims for declaratory relief and for constitutional violations. It argued that Sefzik did not have a property

interest in the permit but, rather, only had an expectation of a permit. TxDot reasoned that because Sefzik did not have a

property interest, he could not establish that the APA’s declaratory relief provision waived sovereign immunity. For the same

reason, TxDot argued that sovereign immunity barred his constitutional claims. Furthermore, TxDot argued that the UDJA is

merely a procedural device for deciding cases already within a trial court’s jurisdiction. Therefore, the UDJA claim was also

barred by sovereign immunity.

Sefzik argued in response that sovereign immunity is not implicated by actions for declaratory relief or for violations of

constitutional rights; therefore, he was not required to establish a waiver of immunity. The trial court agreed with TxDot and

granted its plea to the jurisdiction, and this appeal ensued.14

14

The case was transferred to the Thirteenth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court

of Texas. TEX. GOV’T CODE ANN. § 73.001 (Vernon 1998).

*132 II. STANDARD OF REVIEW

[1] [2]

We review a trial court’s ruling on subject-matter jurisdiction de novo. Tex. Natural Resource Comm’n v. IT–Davy, 74

S.W.3d 849, 855 (Tex.2002). When reviewing a trial court’s order on a plea to the jurisdiction, a court of appeals should

consider only the “pleadings and evidence pertinent to the jurisdictional question.” Jenkins v. Entergy Corp., 187 S.W.3d

785, 795 (Tex.App.–Corpus Christi 2006, pet. denied) (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002)).

[3] [4] [5] [6]

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to

whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Although the

claims form the context of the jurisdictional inquiry, the plea should be decided “without delving into the merits of the case.”

Id. In some circumstances, a court will be unable to determine the jurisdictional question without some development of the

evidence in the case; in those circumstances, the trial court has discretion to refuse to decide the jurisdictional question until

after the case has progressed past the preliminary hearing stages. Id. But a party should not be required to put on their entire

case in order to establish that they are entitled to be in court in the first place. Id. (“The purpose of a dilatory plea is not to

force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs’ claims should

never be reached.”).

III. SOVEREIGN IMMUNITY AND ACTIONS FOR DECLARATORY RELIEF

In this appeal, we must examine the effect of sovereign immunity on a claim for declaratory relief. The principal

disagreement between the parties involves the logical construct of the sovereign immunity doctrine. TxDot argues that

sovereign immunity, as a general rule, bars claims for declaratory relief and that a plaintiff must therefore establish a waiver

of sovereign immunity to proceed with a claim for declaratory relief. We believe, however, that TxDot’s analysis ignores the

theoretical underpinnings of the doctrine of sovereign immunity and the substantial precedent holding that suits for

declaratory relief are not suits against the State, and it requires a plaintiff to establish his or her right to declaratory relief in

order to establish jurisdiction. Accordingly, we refuse to require Sefzik to establish that he is entitled to declaratory relief

before the trial court can even consider his request for that relief. Rather, we hold, as many other courts have held, that a

claim for declaratory relief generally does not implicate the doctrine of sovereign immunity in the first place.

A. Suits for declaratory relief do not implicate sovereign immunity

[7] [8]

“Sovereign immunity, unless waived, protects the State from lawsuits for damages.” Gen. Serv. Comm’n v. Little–Tex

Insulation Co., 39 S.W.3d 591, 594 (Tex.2001) (emphasis added); see also IT–Davy, 74 S.W.3d at 853;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

First Health Plans, Inc., 214 S.W.3d 709, 716–18 (Tex.App.–Austin 2007, pet. filed) (holding that suit for declaratory relief

was not a suit against the State because it did not seek to impose liability or seek money damages). The doctrine is based on

the premise that the legislature’s policy-making function deserves protection. IT–Davy, 74 S.W.3d at 854. As the Texas

Supreme Court has explained,

[s]ubjecting the government to liability may hamper governmental functions by shifting tax resources

away from their intended purposes toward defending *133 lawsuits and paying judgments.

Accordingly, the Legislature is better suited than the courts to weigh the conflicting public policies

associated with waiving immunity and exposing the government to increased liability, the burden of

which the general public must ultimately bear.

Id. (citations omitted).

For example, sovereign immunity bars a claim for damages arising out of a breach of contract unless a waiver of sovereign

immunity can be established or consent is obtained from the legislature. Id. This ensures that current policymakers are not

bound by their predecessors’ long-term contracts and can respond to changing conditions in the public’s best interest. Id.

[9]

Certain types of actions, however, do not implicate these concerns and, therefore, do not implicate the sovereign immunity

doctrine. Nueces County v. Ferguson, 97 S.W.3d 205, 217 (Tex.App.–Corpus Christi 2002, no pet.). For example, Texas

courts have consistently distinguished suits against the State for money damages from suits for declaratory relief-the latter

does not implicate the sovereign immunity doctrine. See IT–Davy, 74 S.W.3d at 855; Hawkins, 214 S.W.3d at 716; City of

Dallas v. Blanton, 200 S.W.3d 266, 279 (Tex.App.–Dallas 2006, no pet.); Ferguson, 97 S.W.3d at 218. “[N]o consent is

required when suit is filed seeking only a declaration or enforcement of rights.” Ferguson, 97 S.W.3d at 217.15 In fact, just

recently, this Court specifically held as much. See Powell v. Tex. Dep’t of Criminal Justice, 251 S.W.3d 783, 790–91

(Tex.App.–Corpus Christi 2008, pet. filed).

15

This is not to say that a party can escape the doctrine of sovereign immunity by artfully pleading a claim for damages as an action

for declaratory relief. Tex. Natural Resource Comm’n v. IT–Davy, 74 S.W.3d 849, 855–56 (Tex.2002). For example, declaratory

judgment actions against State officials seeking to declare a contract’s validity, enforce a contract, or impose contractual liabilities

implicate the doctrine of sovereign immunity because they seek to impose liability on the State. Id.

The reason for this distinction is that “suits to compel state officers to act within their official capacity do not attempt to

subject the State to liability.” IT–Davy, 74 S.W.3d at 855; Hawkins, 214 S.W.3d at 716–18; Blanton, 200 S.W.3d at 279 (“A

party generally can maintain a suit to determine its rights without legislative permission because such suits are not considered

‘suits against the State’ for purposes of sovereign immunity.”). In other words, suits for declaratory relief do not hamper

current policymakers’ ability to perform their job in the public interest by binding them to outdated or expired policies. If a

statute sought to be construed through a declaratory judgment is outdated, and thus a declaration of rights under that statute

causes problems for the general public, it is the policymakers’ job to change the statute, not to ignore it or violate it with

impunity.

On more than one occasion, this Court has rejected the idea that the State is immune from declaratory judgment actions

seeking to determine a party’s rights under a statute. See Ferguson, 97 S.W.3d at 218; Dewhurst v. Gulf Marine Inst. of

Tech., 55 S.W.3d 91, 97 (Tex.App.–Corpus Christi 2001, pet. denied) (“[W]e distinguish suits to determine a party’s rights

against the State from suits seeking damages. A party can maintain a suit to determine its rights without legislative

permission.”); see also Nueces County v. Hoff, 105 S.W.3d 208, 211 (Tex.App.–Corpus Christi 2003) (noting that sovereign

immunity is not implicated when the suit “does not seek to impose liability on the State, seek money damages against the

*134 State, or seek to control state action, as in a declaratory judgment suit”), rev’d on other grounds, 153 S.W.3d 45

(Tex.2004). It is, therefore, well established that when a private plaintiff merely seeks a declaration of his or her rights under

a statute, such an action is not subject to a sovereign immunity defense, and a waiver or consent to suit is unnecessary.

Hawkins, 214 S.W.3d at 716–17; Blanton, 200 S.W.3d at 279; Ferguson, 97 S.W.3d at 217.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

B. By characterizing the APA’s declaratory relief provision as a “waiver” of immunity, TxDot asks this Court to

improperly reach the merits of Sefzik’s claims

TxDot argues that because Sefzik has not demonstrated compliance with the requirements of the APA’s declaratory relief

provisions, he has not demonstrated a waiver of immunity. The dissent extends this reasoning to TxDot’s UDJA claim,

asserting that Sefzik has to demonstrate he is entitled to declaratory relief in order to establish jurisdiction. TxDot’s and the

dissent’s view of sovereign immunity would skew the Court’s jurisdictional analysis because it would require the Court to

decide the merits of Sefzik’s declaratory judgment action.

[10] [11]

When a statutory waiver of immunity is involved, it is axiomatic that the plaintiff’s failure to plead the statutory

elements means that sovereign immunity bars the suit. For example, the Texas Tort Claims Act provides a waiver of

sovereign immunity in limited circumstances. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). If a

plaintiff suing under the Texas Tort Claims Act does not satisfy the specific requirements of the statute, sovereign immunity

is not waived. Id. Because the Tort Claims Act also provides the cause of action for recovery against the State, a plaintiff

suing under the Tort Claims Act must also satisfy the Tort Claims Act’s requirements in order to recover. Such is not the case

here, where sovereign immunity is not implicated.

By characterizing the APA’s declaratory relief provision as a waiver of immunity, TxDot sets up additional hurdles for a

plaintiff to cross before ever reaching the merits of his or her claim. For example, TxDot argues that the legislature has

imposed strict limits on the scope of a trial court’s ability to review agency decisions, and for that reason, a party seeking a

declaratory judgment under Texas Government Code section 2001.038 is limited to challenging a rule as invalid or

inapplicable. TEX. GOV’T CODE ANN. § 2001.038 (Vernon 2000). TxDot argues that Sefzik merely challenges whether

TxDot correctly applied a rule and, in turn, whether TxDot’s actions comply with the APA’s provisions governing its

operation. It argues that under these circumstances, Sefzik is not entitled to a declaratory judgment under section 2001.038.

Additionally, TxDot argues that Sefzik does not have a legal right or privilege within the meaning of section 2001.038. Id.

(“The validity or applicability of a rule, including an emergency rule adopted under Section 2001.034, may be determined in

an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or

threatens to interfere with or impair, a legal right or privilege of the plaintiff.”) (emphasis added). Finally, TxDot argues that

permit denial appeals are not contested cases under the APA. For all these reasons, TxDot asserts that the trial court lacks

jurisdiction. The dissent goes a step further and applies this logic to the UDJA claim: it asserts that because Sefzik cannot

establish that *135 his rights, status, or legal relations have been affected, there is no jurisdiction.

These arguments go to the merits of Sefzik’s claims for declaratory relief, not to jurisdiction. It may be that Sefzik’s claims

for declaratory relief are not contemplated by the UDJA or the APA. But that is for the trial court to decide on the merits. By

characterizing the APA as a waiver of sovereign immunity, TxDot asks this Court to delve into the merits of Sefzik’s claim,

which is improper at this stage of the proceedings. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

C. Exercising jurisdiction does not violate separation of powers

[12] [13]

TxDot further argues that by exercising jurisdiction over a UDJA claim based on the interpretation of a constitutional

or statutory provision, the trial court would violate separation of powers concerns. Specifically, TxDot argues that “if the

courts could review any and all statutes and constitutional provisions without reliance on a separate basis of jurisdiction, the

courts would in essence exercise unmitigated control over the other branches of government.” Br. of Appellee at 9, Sefzik v.

Tex. Dep’t of Transp., No. 13–06–550–CV (Tex.App.–Corpus Christi Feb. 12, 2007). We do not perceive any violation of the

separation of powers doctrine by our holding that a suit for declaratory relief does not invoke the doctrine of sovereign

immunity. TxDot fails to recognize that sovereign immunity is a common-law doctrine, and it is the courts’ province to

define the scope of that doctrine and whether it exists in the first place. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d

371, 375 (Tex.2006).

Moreover, under TxDot’s analysis, a suit to test the construction of the statute that applies to an administrative agency could

not be entertained. The net effect of such an analysis is that administrative agencies can ignore the APA with impunity,

leaving a party entitled to procedures under the APA without any method of enforcing those procedures. In short, an agency

can deny that the APA applies and claim sovereign immunity from an action seeking to test that determination. Because

TxDot’s analysis makes the APA a meaningless exercise of legislative power, we decline to adopt it.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

For all the foregoing reasons, we focus only on the type of relief Sefzik seeks—declaratory relief—and hold that a suit

seeking to determine his rights under the UDJA or the APA does not invoke the doctrine of sovereign immunity.

Accordingly, the trial court erred in granting TxDot’s plea to the jurisdiction as to his claims for declaratory relief.

IV. SOVEREIGN IMMUNITY AND SEFZIK’S CONSTITUTIONAL CLAIMS

Sefzik brought claims against TxDot for violations of his rights under the Fifth and Fourteenth Amendments to the United

States Constitution and under Article I, section 19 of the Texas Constitution. U.S. CONST. amends. V, XIV; TEX. CONST.

art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner

disenfranchised, except by the due course of the law of the land.”). He alleged that TxDot failed to afford him due process

and due course of law by refusing to grant him a hearing in his appeal of TxDot’s denial of his permit application. TxDot

argues that Sefzik failed to allege the existence of a right protected by these constitutional provisions; therefore, sovereign

immunity bars Sefzik’s claim.16 Sefzik argues that it *136 is not necessary to demonstrate a waiver of immunity when a party

seeks relief for constitutional violations. We agree with TxDot.

16

The Texas Supreme Court has held that the Texas Constitution’s due course of law provision, Article I section 19, protects

essentially the same interests as the due process provisions in the United States Constitution. NCAA v. Yeo, 171 S.W.3d 863,

867–68 & n. 14 (Tex.2005).

Sefzik’s claim for constitutional violations sought damages from TxDot. TxDot’s argument against this claim was raised in a

jurisdictional plea based solely on sovereign immunity—TxDot did not argue, and we do not decide, whether any cause of

action for damages actually exists for the alleged constitutional violations. Perry v. Texas A & I Univ., 737 S.W.2d 106, 108

(Tex.App.–Corpus Christi 1987, writ ref’d n.r.e.) (“[T]he issues before us are restricted to the question of the application of

the principles of governmental immunity to these defendants and not whether any cause of action for damages arises from the

allegations of constitutional violations.”).

[14]

As we have previously stated, “[i]n addressing the issue of immunity from suit, it is critical to recognize that the action is

one for damages and not one seeking injunctive relief.” Id. As such, Sefzik’s claim for damages for constitutional violations

is a “suit against the State” that invokes the doctrine of sovereign immunity. Id. This Court’s prior holdings treat the

constitutional provisions as waivers of immunity and require that the plaintiff plead a valid cause of action thereunder in

order to establish immunity. Id. at 109; see also State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex.2001) (holding

that suit against department of public safety under 42 U.S.C. § 1983 was suit against the State, and plaintiff’s failure to

properly plead claim under that provision meant that claim was barred by sovereign immunity); Univ. of Tex. Sys. v.

Courtney, 946 S.W.2d 464, 469 (Tex.App.–Fort Worth 1997, writ denied) (on reh’g) (holding that university had sovereign

immunity from suit for federal due process claims because plaintiff did not properly plead a 42 U.S.C. § 1983 claim).

For example, in Perry v. Texas A & I University, a counselor at Texas A & I University sued the university alleging the

deprivation of property in violation of the Fourteenth Amendment to the United States Constitution and Article I, section 19

of the Texas Constitution. 737 S.W.2d at 107. The counselor sought damages from the University. Id. We referenced the

general rule that a suit that seeks to impose liability on the State invokes the doctrine of sovereign immunity. Id. at 109. The

counselor argued that “when a violation of constitutional or property rights is alleged, the courts have a right to review the

acts of legislative and administrative bodies.” Id. We rejected this argument, noting that the counselor was not seeking review

of administrative or legislative acts but, rather, was seeking monetary damages. Id. We then held that the counselor had not

alleged that she had a vested property right that was denied. Id. We held that “because there was no pleading by the plaintiff

to take her out of the general rule that the courts of the State of Texas have no jurisdiction to impose liability on the State

without legislative consent, we sustain the judgment [dismissing her claims for lack of jurisdiction].” Id.17

17

In dicta in Nueces County v. Ferguson, we stated that “[a]lthough a request for money damages does not affect the jurisdiction of

the trial court over a claim of a violation of article I, section 19, even when the State is a defendant, there is no right to a money

judgment for such a violation.” 97 S.W.3d 205, 221–22 (Tex.App.–Corpus Christi 2002, no pet.). In a footnote, we stated that “[a]

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Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

suit brought for a violation of article I, section 19 of the constitution that seeks money damages would not be barred by sovereign

immunity as the constitution itself provides a waiver of sovereign immunity for violations of this provision.” Id. at 222 n. 23.

However, we noted that nowhere in Ferguson’s pleading had she alleged a violation of Article I, section 19. Id. at 221. These

statements were dicta. In fact, two of the cases cited therein demonstrate that a waiver of immunity is, in fact, necessary when a

plaintiff seeks damages for alleged violations of Article I, section 19. See Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 469

(Tex.App.–Fort Worth 1997, writ denied) (op. on reh’g) (court lacked jurisdiction over plaintiff’s claim for damages under Article

I, section 19); Alcorn v. Vaksman, 877 S.W.2d 390, 404 (Tex.App.–Houston [1st Dist.] 1994, writ denied) (“However, consent is

not needed when, as here, the breach of contract (or other government action) constitutes a state constitutional violation and the

plaintiff seeks a remedy other than money damages.... We conclude that consent is required to bring suit for a money judgment that

would be paid from the state treasury.”). The rest of the cases cited either did not address immunity or are factually distinguishable.

Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (takings clause of Texas Constitution expressly authorizes award of

damages for violation; therefore, the clause provides a waiver of immunity for claims for damages); Tex. A. & M. Sys. v.

Luxemburg, 93 S.W.3d 410, 425 (Tex.App.–Houston [14th Dist.] 2002, pet. denied) (holding that violation of Article I, section 19

does not give rise to an action for damages without addressing sovereign immunity); Tex. State Employees’ Union/CWA Local

6184 v. Tex. Workforce Comm’n, 16 S.W.3d 61, 67 (Tex.App.–Austin 2000, no pet.) (holding that plaintiff’s claim was not subject

to sovereign immunity doctrine because plaintiff sought only equitable relief as opposed to monetary damages). To the extent that

Ferguson can be read to imply that a suit for damages under Article I, section 19 is not subject to a sovereign immunity defense,

we disapprove of that implication.

*137 The Perry decision correctly held that constitutional provisions operate as a waiver of immunity that is coextensive with

the cause of action provided, if any. Id.; see also Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149

(Tex.App.–Austin 1998, no writ) (“When the state or its agency takes, damages, or destroys public property for public use,

‘the Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental

immunity ...’ Thus, if Callaway alleged a valid claim for inverse condemnation ..., sovereign immunity does not bar the

claim.”). In other words, to demonstrate a waiver of immunity and to recover on such a claim, Sefzik must allege facts that, if

proven, would satisfy the elements of the claim. Here, as we explain next, Sefzik has not alleged a recognized property right

that is deserving of due process protections. Accordingly, he has not demonstrated a waiver of immunity for his claim for due

process violations. Perry, 737 S.W.2d at 109; cf. Callaway, 971 S.W.2d at 151 (“Callaway has a property interest that is

entitled to due-process protection.... The trial court therefore did not err in denying the Department’s plea to the jurisdiction

as to Callaway’s due-process claim.”).

[15] [16]

To state a valid due process or due course of law claim, a plaintiff must first allege the existence of a protected right.

NCAA v. Yeo, 171 S.W.3d 863, 867–68 (Tex.2005). If the plaintiff has a protected right, the court must determine what

amount of process is due. Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930–31 (Tex.1995). To have a property interest

in a governmental benefit, a person must have more than a unilateral expectation of that benefit. Bd. of Regents v. Roth, 408

U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Smith v. Travis County Bail Bond Bd., 559 S.W.2d 693, 694

(Tex.Civ.App.–Austin 1977, no writ) (holding plaintiff had no property interest in expired license); see also *138 Shrieve v.

Tex. Parks & Wildlife Dep’t, No. 03–04–00640–CV, 2005 WL 1034086, at *5–6 (Tex.App.–Austin May 5, 2005, no pet.)

(mem. op.) (holding that Shrieve’s expectation of a permit was not a protected property interest). Rather, the plaintiff must

have a legitimate claim of entitlement to the benefit. Smith, 559 S.W.2d at 694.

[17]

Sefzik’s permit application merely sought a governmental benefit to which he was not already entitled. As such, Sefzik

merely had an expectation of the governmental benefit—his expectation is not a protected property right. Smith, 559 S.W.2d

at 694; Shrieve, 2005 WL 1034086, at *5–6. This is not a case where a permit has been granted but has later been taken away

by the State without cause. See, e.g., House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657–58 (Tex.1965); Richardson v.

Alsup, 380 S.W.2d 923, 923 (Tex.App.–Eastland 1964, writ ref’d). Accordingly, we hold that Sefzik has failed to

demonstrate that sovereign immunity is waived for his due process and due course of law claims. Thus, the trial court did not

err in sustaining TxDot’s plea to the jurisdiction as to these claims.

V. CONCLUSION

We hold that the trial court erred in sustaining TxDot’s plea to the jurisdiction as to Sefzik’s requests for declaratory relief

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

under the Uniform Declaratory Judgments Act and under the Administrative Procedure Act. We reverse and remand those

requests for further proceedings. Finding that Sefzik’s due process and due course of law claims are barred by sovereign

immunity, we affirm the trial court’s order sustaining TxDot’s plea to the jurisdiction as to these claims.

Dissenting Opinion by Justice VELA.

VELA, Justice, dissenting.

I agree with the majority’s opinion with respect to its holding that the trial court did not err in sustaining TxDOT’s plea to the

jurisdiction as to Sefzik’s due process and due course of law claims. I, too, would hold that the trial court did not err in

sustaining TxDOT’s plea to the jurisdiction as to these claims. I would also hold that the trial court did not err in granting

TxDOT’s plea to the jurisdiction with respect to Sefzik’s claims under the UJDA and the APA.

I. The Texas Administrative Procedure Act

First, Sefzik urges that the trial court has jurisdiction pursuant to the Texas Administrative Procedure Act. TEX. GOV’T

CODE ANN. § 2001.038 (Vernon 2000). The statute provides that the validity or applicability of a rule ... may be determined

in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or

threatens to interfere with or impair, a legal right or privilege of the plaintiff. Id. While Sefzik urges that he is seeking to

determine the “applicability” of a rule, in fact, the entire APA is the “rule” he seeks to be “applied” to TxDOT’s

permit-application process.

By its plain language, section 2001.038 allows a plaintiff to challenge either the validity or applicability of agency rules. Star

Houston, Inc. v. Tex. Dep’t of Transp., 957 S.W.2d 102, 111 (Tex.App.–Austin 1997, writ denied). To qualify for a

declaratory judgment, one must seek validation or application of a rule. That same rule must interfere with or impair a legal

right or privilege before it can be applied. Sefzik’s claim is that it is the permit application process, as addressed in the

administrative code, that interferes with or impairs his legal right or privilege. The APA does not. Rather, the APA, if

applied, would expand rather than interfere or impair Sefzik’s right to judicial review. *139 Because Sefzik seeks to apply

the APA to his claim even though he claims that it is the administrative code that impairs his purported legal right or

privilege, he misapplies the explicit language of section 2001.038. I would hold that Sefzik is not entitled to relief under

section 2001.038.

II. Uniform Declaratory Judgments Act (UDJA)

The UDJA enables a person whose “rights, status, or other legal relations are affected by a statute, municipal ordinance,

contract, or franchise may have determined any question of construction or validity arising under the instrument, statute,

ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” TEX. CIV.

PRAC. & REM.CODE ANN. § 37.004(a) (Vernon 1997) (UDJA). At the very least, it is Sefzik’s burden to establish his right

to declaratory relief in order to establish jurisdiction. In other words, Sefzik must show that his rights, status or legal relations

have been affected.

Section 21.159 of the Texas Administrative Code (TAC) explicitly denies a permit or license holder contractual or property

rights from the issuance of a permit or license. It states, “Issuance of a permit or license shall not be deemed to create a

contract or property right in the permit holder or license holder.” 43 TEX. ADMIN. CODE § 21.159 (2008) (Tex. Dep’t of

Transp., Property Right Not Created). Thus, to conclude that Sefzik, as an applicant for a permit, has a property or

contractual right when the statute denies those rights to an actual permit holder is not logical. Because section 21.159 of the

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Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)

administrative code precludes Sefzik from claiming any contractual right, he has no right, status or “legal relation” as defined

by case law. See 43 TEX. ADMIN. CODE § 21.159. Thus, Sefzik does not have a status or legal relation as required by

section 37.004 of the UDJA sufficient to bring his complaint within the court’s power to declare rights, status, and other legal

relations. TEX. CIV. PRAC. & REM.CODE ANN. § 37.003(a) (Vernon 1999).

If the UDJA were construed as Sefzik insists it should be, any suit brought affecting a governmental entity would require its

participation as a party and would effectively waive the State’s immunity. This would defeat the legislative intent that

statutes be construed as written and would destroy “the legislature’s interest in managing state fiscal matters through the

appropriations process.” TEX. GOV’T CODE ANN. § 311.034 (Vernon Supp.2007).

For the reasons set forth above, I would hold that the trial court is without subject matter jurisdiction.

All Citations

267 S.W.3d 127

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

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

Opinion

Original Image of 891 S.W.2d 243 (PDF)

891 S.W.2d 243 CORNYN, Justice, delivered the opinion of the Court, in

Supreme Court of Texas. which PHILLIPS, Chief Justice, and HECHT and ENOCH,

Justices, join.

THE STATE BAR OF TEXAS, James Parsons, III,

The sole question presented for our determination is whether

in his capacity as President of the State Bar of Texas

the district court below has jurisdiction of this suit, which

and Karen Johnson, in her capacity as Executive

complains of the failure of the State Bar of Texas to compel

Director of the State Bar of Texas, Petitioners,

member lawyers to provide free legal services to Texans who

v. cannot pay for those services. We conclude that the district

Maria GOMEZ, Alicia Naveja, and Leonardo court correctly dismissed the case for lack of jurisdiction.

Chavez, on Behalf of Themselves and Thus, we reverse the judgment of the court of appeals and

Others Similarly Situated, Respondents. remand this case to the district court with instructions to

dismiss. 1

No. D–4218. | Argued Jan. 20,

1994. | Decided Dec. 22, 1994.

After being refused free legal services, Maria Gomez, Alicia

Indigents brought action for declaratory and injunctive Naveja, and Leonardo Chaves, on behalf of themselves

relief to require State Bar or Supreme Court to implement and others similarly situated (collectively, Gomez), filed

mandatory pro bono program for state lawyers. The 353rd suit in a Travis County district court against the State

Judicial District Court, Travis County, Joseph H. Hart, J., Bar of Texas and two of its officials at that time, James

dismissed for lack of subject matter jurisdiction, and indigents Parsons III, President, and Karen Johnson, Executive Director

appealed. The Court of Appeals, J. Woodfin Jones, J., 856 (collectively, State Bar). Gomez contends that the State Bar,

S.W.2d 804, reversed and remanded. On application for writ by not effectively encouraging attorneys to volunteer free

of error, the Supreme Court, Cornyn, J., held that indigents' legal services, has illegally failed to meet the legal needs of

action to compel State Bar or Supreme Court to implement indigent Texans. Specifically, Gomez alleges violations of the

mandatory pro bono program did not present justiciable following provisions of the Texas Constitution: (1) Article

controversy and, therefore, district court lacked jurisdiction I, Section 13 (open courts); (2) Article I, Section 3 (equal

over action. protection); (3) Article I, Section 3a (equal rights); (4) Article

I, Section 19 (due course of law); and (5) Article I, Section 29

Reversed and remanded. (inviolate nature of the Bill of Rights). Gomez further asserts

violations of the Texas antidiscrimination statute, 2 the Texas

Gonzalez, J., concurred and filed opinion. Disciplinary Rules of Professional Conduct, 3 and the Texas

Lawyer's Creed. 4

Hightower, J., dissented and filed opinion in which Gammage

and Spector, JJ., joined.

The district court dismissed the case, concluding it lacked

jurisdiction under Article V, Section 8, of the Texas

Doggett, J., noted his dissent.

Constitution. 5 The court of appeals reversed, holding that the

district court had jurisdiction to decide the merits of Gomez's

Attorneys and Law Firms claims, but because of this Court's exclusive authority to

regulate the legal profession in Texas, it held that the district

*244 Lynn Liberato, Houston, Linda A. Acevedo, Austin, court could levy only a prohibitory, and not a mandatory

Alene Ross Levy, Jeffrey T. Nobles, Houston, Broadus A. injunction against the State Bar. 856 S.W.2d 804 (Tex.1993).

Spivey, Eric R. Galton, James M. McCormack, Austin, for The court of appeals explained:

petitioners.

Virginia Agnew, Charles Herring, Jr., James C. Harrington, We conclude that a district court does not have authority

Austin, for respondents. to grant relief that would *245 unreasonably usurp the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

supervisory control vested exclusively in the supreme of powers dictated by Article II, Section 1 of the Texas

court. By vesting the supreme court with supervisory Constitution). Those duties include our obligation, as the head

control of the practice of law, the constitution and the of the judicial department, to regulate judicial affairs. Because

State Bar Act grant the supreme court discretion to decide the admission and practice of Texas attorneys is inextricably

issues concerning the State Bar and the practice of law. intertwined with the administration of justice, the Court must

Whether a district court has authority to grant a particular have the power to regulate these activities in order to fulfill

form of injunctive relief depends, we believe, on whether its constitutional role. See generally JIM R. CARRIGAN,

granting such relief would effectively exercise the kind INHERENT POWERS OF THE COURTS 2 (1973) (defining

of supervisory discretion that is vested exclusively in the inherent powers as those “reasonably required to enable a

supreme court. court to perform efficiently its judicial functions, to protect

856 S.W.2d at 815. We agree with the court of appeals' its dignity, independence and integrity, and to make its lawful

identification of the issue but not its conclusion. actions effective”). The Court's inherent powers, such as the

[1] [2] The jurisdictional question presented is complex power to regulate the practice of law, are not jurisdictional

and in some ways unique. As a general proposition, before powers. See Eichelberger, 582 S.W.2d at 399. These powers

a court may address the merits of any case, the court must are administrative powers, necessary to the preservation of

have jurisdiction over the party or the property subject to the judiciary's independence and integrity.

the suit, jurisdiction over the subject matter, jurisdiction to

enter the particular judgment, and capacity to act as a court. [5] [6] Because the Court's power to regulate the practice

See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d of law is an administrative one, the exercise of that power

878, 881 (Tex.1973). Subject matter jurisdiction requires that does not in and of itself deprive lower courts of general

the party bringing the suit have standing, that there be a subject matter jurisdiction over challenges to that governance.

live controversy between the parties, and that the case be They do not, however, have jurisdiction over all such

justiciable. See Texas Ass'n of Business v. Texas Air Control challenges because in every individual case, jurisdiction

Bd., 852 S.W.2d 440, 443–46 (Tex.1993). If the district court also depends on justiciability. And, as the court of appeals

lacks jurisdiction, in any of these senses, then its decision acknowledged, for a controversy to be justiciable, there must

would not bind the parties. See Austin Indep. Sch. Dist., 495 be a real controversy between the parties that will be actually

S.W.2d at 881 (noting that collateral attacks on a judgment resolved by the judicial relief sought. 856 S.W.2d 804, 811

are allowed when the district court lacked jurisdiction). And, (citing Texas Ass'n of Business, 852 S.W.2d at 446 and *246

a decision that does not bind the parties is, by definition, anBoard of Water Eng'rs v. City of San Antonio, 155 Tex.

advisory opinion prohibited by Texas law. See Texas Ass'n of 111, 283 S.W.2d 722, 724 (1955)). While we do not find it

Business, 852 S.W.2d at 444 (citing Article II, Section 1, of necessary to set the precise boundaries of the district court's

the Texas Constitution as prohibiting advisory opinions). jurisdiction under these circumstances, we hold that these

facts do not present a justiciable controversy and that the

[3] [4] The unique aspect of this jurisdictional inquiry, district court therefore has no jurisdiction.

as the court of appeals recognized, arises out of this Court's

power to regulate the practice of law in the State of Texas. [7] Gomez seeks to compel either the State Bar or this

This power is derived from both statutory and inherent Court to implement a mandatory pro bono program for Texas

powers. The primary statutory grant of power is found in lawyers. To the extent a remedy is sought against the State

the State Bar Act, which gives the Court administrative Bar, Gomez seeks relief from an entity that is powerless,

control over the State Bar and provides a statutory mechanism acting alone, to implement that remedy. The State Bar's

for promulgating regulations governing the practice of law. authority is limited to proposing regulations to this Court,

See TEX.GOV'T CODE § 81.011(c). The other source of which may accept or reject any recommendation, in whole or

this court's power to regulate the practice of law in this in part. See TEX.GOV'T CODE § 81.024(a). For example,

state, its inherent power, is not secured by any legislative when the latest amendment to the rules governing lawyer

grant or specific constitutional provision, but is necessarily advertising was recommended by the State Bar, we modified

implied to enable the Court to discharge its constitutionally the proposed amendment before promulgation. See Amended

imposed duties. See Eichelberger v. Eichelberger, 582 Order of Promulgation and Adoption of Disciplinary Rules,

S.W.2d 395, 398–99 (Tex.1979) (noting that doctrine of West's Texas Cases Advance Sheet 884–885 issue 49, pp.

inherent power is derived, in part, from the separation LXIX–LXXXI. Thus, the relief sought against the State Bar,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

even if granted by the trial court, could not resolve the dispute a justiciable controversy. Once again, acknowledging the

between these litigants. limitations on the district court's authority in this area,

the dissenting justices nevertheless contend, “The district

[8] Moreover, to the extent the remedies are sought against court does, however, have jurisdiction to issue a mandatory

the Supreme Court, they would clearly impinge on the injunction which requires the State Bar to implement a more

Court's exclusive authority to regulate the practice of law. effective voluntary pro bono program calculated to meet

The Legislature itself implicitly acknowledged the Court's constitutional and statutory demands which may exist.” Infra,

fundamental authority in this area when it enacted the State 891 S.W.2d at 252 (emphasis added). We are at a loss to

Bar Act as an aid to the Court in carrying out this function. understand, and the dissenting justices do not explain, how a

See TEX.GOV'T CODE § 81.011(b). No subordinate court in mandatory injunction to enforce a voluntary program could

Texas has the power to usurp our authority or responsibility in ever be enforced by any court. By limiting the district court's

this area. The dissenting justices acknowledge this limitation jurisdiction to such illusory relief, the dissenting justices

when they say, “An injunction mandating this court or the have, in effect, conceded that the *247 trial court cannot

State Bar to implement a mandatory pro bono program would grant plaintiffs the real relief they seek.

be improper. It would inappropriately involve the district

court in the regulation of the practice of law.” Infra, 891 Our decision that the district court lacks jurisdiction does not,

S.W.2d at 252 (citations omitted). however, leave the parties without a forum in which to seek

redress of their grievances. This Court, in the exercise of its

This is not to say that all remedies bearing upon the regulation constitutional responsibilities, wants and needs input from

of the legal profession would be unacceptable infringements interested persons concerning its supervisory responsibility

on the inherent powers of the Court. Had this Court actually over Texas lawyers. Ordinarily, interested parties would be

promulgated rules establishing a pro bono program and had free to informally petition this Court in its administrative

Gomez challenged the constitutionality of such rules, the capacity, to urge reconsideration of the proper constitutional

district court would have jurisdiction to decide, in the first mandates for this Court's regulation of attorney conduct.

instance, whether such rules met constitutional standards. See However, given the potentially far-reaching effects of this

O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding particular challenge to our scheme of regulation, we direct

the trial court's decision on a constitutional challenge to the that this matter be placed on the Court's administrative

rules of disciplinary conduct promulgated by the Court). agenda for further consideration. All interested parties have

In due course, we would review any adverse determination until April 14, 1995, to submit their written arguments on

in our adjudicative capacity. See Cameron v. Greenhill, the merits of the underlying claims. Cf. Barger v. Brock,

582 S.W.2d 775, 777 & n. 3 (Tex.1979) (holding that 535 S.W.2d 337, 342 (Tenn.1976) (ordering a lower court

the Court could both promulgate a rule and determine its to dismiss a challenge to the Supreme Court's rules but

constitutionality). The important distinction between such a directing the lower court to forward the petitions for further

case and the one at hand is that in the former case, the consideration as a direct motion in the Supreme Court).

district court would not be cast in the impermissible role of

effectively promulgating policies and regulations governing Accordingly, we reverse the judgment of the court of appeals

Texas lawyers. Such a case would be justiciable because and remand to the district court with instructions to dismiss

the district court would be capable of rendering a judgment for want of jurisdiction.

that accords the parties complete relief, subject of course to

appellate review.

DOGGETT, J., dissents.

But when, as here, the essence of a complaint is that

this Court has failed to establish rules governing some GONZALEZ, Justice, concurring.

aspect of lawyer conduct, a district court has no authority This case presents significant issues of public policy.

to assume this Court's authority to regulate the legal Respondents seek a court declaration that indigent citizens

profession. This prohibition includes the rendition of orders of our State are entitled to free legal services in civil cases.

that would, as a practical matter, preempt this Court's They also seek an injunction that would require the State Bar

authority. Because the district court cannot effect a remedy of Texas to implement a program mandating pro bono legal

that would resolve this dispute, this case does not present

services from all attorneys licensed to practice law in Texas. 1

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

For the reasons stated in the majority opinion, I agree with 1988, we signed an order that made the IOLTA program

the trial court and this Court that this case does not present mandatory. Id. (amended December 13, 1988). We took this

a justiciable controversy within the trial court's jurisdiction. I action under our authority to regulate the practice of law.

thus concur in the judgment.

Realistically, the Court has progressed as far as it can to

I write separately because I disagree with the Court extend legal services to the poor. A mandatory pro bono

prolonging resolution of the mandatory pro bono issue by program is quite different from the IOLTA program. This

placing the matter “on the Court's administrative agenda for Court lacks the resources and/or the political will to attempt

further consideration.” 891 S.W.2d at 247. This procedure further resolution of the profound problem of providing

is unnecessary, and it gives Respondents false hope that a legal services for indigent citizens. I would tell Respondents

majority of the Court is seriously considering implementing frankly that we are not going to order mandatory pro bono.

such a sweeping change in the practice of law in Texas. As The Legislature is better suited to tackle this social problem.

for the invitation for interested parties to submit more briefs

to the Court, I think that any information which anyone gives

the Court will merely duplicate what we already have for HIGHTOWER, Justice, joined by GAMMAGE and

determining the merits of Respondents' request. The issue of SPECTOR, Justices, dissenting.

how to provide legal services for the indigent is a problem in Because I believe that the district court has jurisdiction of this

our society that has been widely debated and studied. More suit and that the Court would effectively deny the Plaintiffs'

hearings, briefs, or argument before us will be of little utility. access to a meaningful forum in which to seek redress of their

grievances, I respectfully dissent.

Mandating any program for legal services to the poor

is a political question, over which this Court in its

administrative capacity and the Legislature would have I.

jurisdiction. However, in my opinion, any attempt to draft

and implement such a program would unnecessarily divert The jurisdictional inquiry begins with Article V, Section 8 of

the Court from its primary business of adjudicating disputes. the Texas Constitution which provides in part:

The Legislature is better suited to undertake the activities

District Court jurisdiction consists

necessary for drafting and implementing a program to provide

of exclusive, appellate, and original

indigents legal services. Different program options, as well

jurisdiction of all actions, proceedings

as their legal and constitutional ramifications, will need to be

and remedies, except in cases where

considered. Since the problem of access to legal services faces

exclusive, appellate, or original

society as a whole, the burden of resolving it does not solely

jurisdiction may be conferred by this

rest on the legal profession.

Constitution or other law on some

other court, tribunal or administrative

I acknowledge that a very real problem exists for individuals

body.

who seek legal representation but lack the financial resources

to retain counsel. Studies clearly document that our poor Tex. Const. art. V, § 8 (emphasis added). The district

citizens need greater access to legal services. See, e.g., court held that it lacked jurisdiction because the legislature

COMMITTEE ON LEGAL SERVICES TO THE POOR IN had conferred jurisdiction over matters concerning the

CIVIL MATTERS, STATE BAR OF TEXAS, REPORT administration of the State Bar upon this Court in the State

ON MANDATORY PRO BONO (1991); STATE BAR Bar Act. See Tex.Gov't Code Ann. § 81.011(c) (West 1988).

OF TEXAS ET AL., LEGAL NEEDS OF THE POOR I disagree.

ASSESSMENT PROJECT (1991). This need led the Court

to create the Texas Equal Access to Justice foundation in What the legislature conferred upon this Court was

1984 to administer the voluntary *248 IOLTA (Interest on “administrative control over the state bar.” Tex.Gov't

Lawyers' Trust Accounts) program. 2 See TEXAS EQUAL Code Ann. § 81.011(c) (West 1988) (emphasis added).

ACCESS TO JUSTICE PROGRAM §§ 1–9 (effective May “Jurisdiction” within the meaning of Article V, Section 8

19, 1994), reprinted in TEX.GOV'T CODE, tit. 2, subtit. G includes only the judicial powers of the courts. These judicial

app. (STATE BAR RULESS art. XI, §§ 1–9). In December, powers are typically the only ones at issue when the Court

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

makes statements such as: “[J]udicial power is divided among to regulate the practice of law.” Tex.Gov't Code Ann. §

the various named courts by means of express grants of 81.011(b) (West 1988).

‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d

395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex. The State Bar's actual power in this regard is limited to

553, 62 S.W.2d 641 (1933)). But Texas courts have duties in proposing regulations to this Court, which could reject or

addition to their judicial responsibilities. amend any such recommendation. Under a strict concept

of justiciability, one could argue that there is no justiciable

I do not disagree that this Court's inherent power to regulate controversy between the State Bar and the Plaintiffs. See

the practice of law is more expansive than the administrative Board of Water Eng'rs v. City of San Antonio, 155 Tex.

authority that the legislature has “granted” to us. See Daves v. 111, 283 S.W.2d 722, 724 (1955) (defining “justiciable

State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ controversy” as the requirement that there shall be a

ref'd n.r.e.) (noting the Court's inherent power to adopt rules real controversy between the parties that will actually be

governing the practice of law by extra-statutory means); see determined by the judicial declaration sought). On the

also Tex.Gov't Code Ann. § 81.011(b) (West 1988) (stating other hand, more modern notions of justiciability would

that the State Bar was a legislative creation passed to aid acknowledge that the State Bar is an acceptable “surrogate

the Court in exercising its judicial power). See State Bar v. defendant” for the Court in this matter. In fact, the State Bar

Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does has served as such a surrogate in several recent cases. See,

not necessarily follow that this inherent power is so great e.g., O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State

that it deprives the state's courts of general jurisdiction of the Bar v. Tinning, 875 S.W.2d 403 (Tex.App.—Corpus Christi

authority to hear a challenge pertaining to the governance of 1994, writ denied); Musslewhite v. State Bar, 786 S.W.2d 437

the legal profession. (Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves

v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985,

The proper question to determine whether the district court writ ref'd n.r.e.). 2 For these reasons, I conclude that the

has jurisdiction over this case is not whether this Court, in district court's jurisdiction is not suspect on this basis.

its administrative capacity, could act in a manner that would

decide or moot the issues raised. Rather, three questions must

be asked: (1) *249 whether the State Bar and its officers

are the proper parties in this case; (2) if so, whether the II.

district court is an appropriate forum to hear a matter over

Next we must decide whether the district court has subject

which this Court exercises such extensive authority; and (3)

matter jurisdiction over a challenge to an administrative

whether the failure to act, as opposed to an affirmative action,

decision of this Court. I believe the answer is yes.

nevertheless presents an issue over which the district court

Promulgating court rules in our administrative capacity does

may exercise authority. I would answer all three questions in

not and cannot imply a concomitant determination by this

the affirmative.

Court in its judicial capacity that such rules are constitutional

in every respect. Hopefully, this Court does not abandon its

However couched, the Plaintiffs' claims are actually directed

collective knowledge of the Constitution when it exercises

not so much at the State Bar 1 as at an alleged deficiency its rulemaking authority, and surely it would not knowingly

in the current system of lawyer regulation established by promulgate any rule it regarded as violating the United States

this Court and the legislature. This Court, both by legislative or Texas Constitutions. However, we are not omniscient. It is

grant and its inherent powers, possesses authority to regulate simply beyond the capacity of this or *250 any other court to

the practice of law and exercises control over the State envision every possible constitutional ramification or factual

Bar. See Tex.Gov't Code Ann. §§ 81.011, 81.024(a) (West application of its orders or rules, particularly before it has

1988) (clarifying this Court's supervisory role over the State the benefit of a case and controversy that vigorously explores

Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State both sides of the issues. See Order of the Supreme Court of

Bar Act was passed in aid of this court's exercise of its February 28, 1966, Transmitting Amendments to Rules of

inherent power to regulate the practice of law.”) (footnotes Civil Procedure, 383 U.S. 1029, 1032 (Black, J., dissenting)

omitted). The legislature recognized the Court's fundamental (stating that “the Court's transmittal does not carry with it a

responsibility in this area when it passed the State Bar Act “in decision that the amended rules are all constitutional” because

aid of the judicial department's powers under the constitution “such a decision would be the equivalent of an advisory

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

opinion which, I assume the Court would unanimously is doubtful that the Legislature has the power to impose a

agree, we are without constitutional power to give.”); Grand mandatory pro bono system upon the State Bar.

Bahama Petroleum Co. v. Canadian Transp. Agencies, 450

F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district Some state supreme courts have expressly provided for the

court had jurisdiction to consider a constitutiona

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