# John Doe v. Board of Directors of the State Bar of Texas Commission for Lawyer Discipline And Linda Acevedo, in Her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas > Texas Court of Appeals, 3rd District (Austin) · October 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4074620 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** October 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4074620 ## Opinion text 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 City of El Paso v. Heinrich, 284 S.W.3d 366 (2009) 52 Tex. Sup. Ct. J. 689 Williams, dichotomy between declaratory and injunctive Id. at 667–68, 94 S.Ct. 1347 (footnote omitted). The claims regarding past statutory violations and those seeking retroactive portion of the Edelman district court's decree only to compel the city to follow the law in the future; was different, however, as “[i]t require[d] payment of state the government was immune from the former but not the funds, not as a necessary consequence of compliance in latter); Bell v. City of Grand Prairie, 221 S.W.3d 317, the future with a substantive federal-question determination, 325 (Tex.App.-Dallas 2007, no pet.) (holding that, under but as a form of compensation to those whose applications Williams, firefighters' requested declaration regarding past were processed on the slower time schedule at a time when statutory violation was barred, but to the extent the requested petitioner was under no court-imposed obligation to conform declaration concerned future violations, the claim was not to a different standard.” Id. at 668, 94 S.Ct. 1347. barred, providing the firefighters did not seek an award of money damages). And finally, it ensures that statutes While “[t]he line between prospective and retrospective specifically directing payment, like any other statute, can be remedies is neither self-evident nor self-executing,” judicially enforced going forward. LAYCOCK, MODERN AMERICAN REMEDIES at 483, the Supreme Court shed further light on the issue in Milliken [12] This approach is inconsistent with Epperson, however, v. Bradley, 433 U.S. 267, 269, 97 S.Ct. 2749, 53 L.Ed.2d in which we held that, if successful, Epperson would be 745 (1977), a case involving desegregation of the Detroit entitled to “the sum of $93,000 which belonged to him school system. The Supreme Court upheld a trial court's order as his commission for services rendered.” Epperson, 42 requiring state officials to spend $6 million on education to S.W.2d at 229. In that respect, Epperson conflicts with remedy effects of segregation. Milliken, 433 U.S. at 290, 97 Williams, in which we implied that prospective remedies S.Ct. 2749. The Court held that this relief was permissible might not be barred even though retrospective monetary ones under Edelman: “That the programs are also ‘compensatory’ were. Williams, 216 S.W.3d at 829 (noting that “[t]he only in nature does not change the fact that they are part of a plan injury the retired firefighters allege has already occurred, that operates prospectively to bring about the delayed benefits leaving them with only one plausible remedy—an award of of a unitary school system.” Id.; see also 13 CHARLES money damages” and that “they assert no right to payments ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL from the City in the future”). The best way to resolve this PRACTICE & PROCEDURE § 3524.3 (noting that, under conflict is to follow the rule, outlined above, that a claimant Edelman, “[i]njunctions requiring expenditure of state funds who successfully proves an ultra vires claim is entitled to are acceptable, so long as the order is prospective” but prospective injunctive relief, as measured from the date of “[r]etroactive relief, including compensatory damages from injunction. Cf. Edelman, 415 U.S. at 669, 94 S.Ct. 1347 state funds are barred”). (using entry of injunction to distinguish retrospective from prospective relief). Thus, while the ultra vires rule remains This compromise between prospective and retroactive relief, the law, see Federal Sign, 951 S.W.2d at 404, Epperson's while imperfect, best balances the government's immunity retrospective remedy does not. with the public's right to redress in cases involving ultra vires actions, and this distinction “appear[s] in the immunity of the [13] But this rule is not absolute. For example, a claimant United States, and in the law of most states' immunity from who successfully proves a takings claim would be entitled state-law claims.” LAYCOCK, MODERN AMERICAN to compensation, and the claim would not be barred by REMEDIES at 482. It also comports with the modern immunity even though the judgment would require the justification for immunity: protecting the public fisc. *376 government to pay money for property previously taken. Gen. Tooke v. City of Mexia, 197 S.W.3d 325, 331–32 (Tex.2006) Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591, (observing that immunity “shield[s] the public from the 598 (Tex.2001) (noting that governmental immunity “does costs and consequences of improvident actions of their not shield the State from an action for compensation under governments”); Federal Sign, 951 S.W.2d at 417 (Enoch, J., the takings clause”); cf. WRIGHT & MILLER, FEDERAL dissenting) (noting that suits against the state would deplete PRACTICE & PROCEDURE § 3524.3 (“If the state cannot treasury resources and tax funds necessary to operate the invoke its immunity, retroactive relief against it is allowed.”). government). Moreover, it is generally consistent with the way our courts of appeals have interpreted Williams. See, [14] Heinrich has not alleged a takings claim. In the trial e.g., City of Round Rock v. Whiteaker, 241 S.W.3d 609, 633– court, Heinrich alleged only that “a suit for equitable relief 34 (Tex.App.-Austin 2007, pet. denied) (approving, under © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 City of El Paso v. Heinrich, 284 S.W.3d 366 (2009) 52 Tex. Sup. Ct. J. 689 against a governmental entity for violation of a provision Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099 (citations of the Texas Bill of Rights is excepted from ... sovereign omitted). Here, the injunctive relief Heinrich seeks would immunity under Texas Constitution article [I], section 29” necessarily come from the Board, rather than the individual without specifying which provision of the Bill of Rights members. Considering “the nature of the liability sought to be had been violated. In the court of appeals, however, she imposed,” id., and construing Heinrich's pleadings liberally, clarified that her constitutional complaint was a “violation Miranda, 133 S.W.3d at 226, we conclude that she has sued of Article 1, section 16.” TEX. CONST. art. I, § 16 (“No the Board members in their official capacities, and her claims bill of attainder, ex post facto law, retroactive law, or any are therefore not automatically barred by immunity. 10 To the law impairing the obligation of contracts, shall be made.”). extent that the court of appeals held that the suit is against the Petitioners contend that she waived this argument by failing to Board members in their individual capacities, we reverse that *377 raise it in the trial court. See Tex. Dep't of Protective & portion of its judgment. Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001) (“ ‘[A]s a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.’ ”') (citations omitted). Even if Heinrich's D constitutional argument was properly presented, however, it has no merit. Heinrich does not challenge the governing Evidence That Petitioners Acted Ultra Vires statute or bylaws, but rather the Board's actions under those provisions. Indeed, Heinrich argues that “[t]he Pension Board [15] In their second issue, petitioners argue that and its individual members acted outside their authority and governmental immunity prohibits *378 Heinrich's suit in violation of the Texas Constitution when they reduced because Heinrich has offered no evidence that the reduction [Heinrich's] benefits.” Because Heinrich does not allege that in her benefits was illegal or unauthorized. We conclude, any law sanctioned the retroactive reduction in her benefits, however, that Heinrich has presented evidence raising a fact her constitutional argument fails. 8 question on this issue. As we have repeatedly noted, the Legislature is best [16] “When a plea to the jurisdiction challenges the positioned to waive immunity, and it can authorize pleadings, we determine if the pleader has alleged facts that retrospective relief if appropriate. See, e.g., TEX. LOCAL affirmatively demonstrate the court's jurisdiction to hear the GOV'T CODE § 180.006 (enacted after Williams and waiving cause. We construe the pleadings liberally in favor of the immunity for firefighter and police officer claims for back plaintiffs and look to the pleaders' intent.” Miranda, 133 pay and civil penalties). There are cases in which prospective S.W.3d at 226 (citations omitted). Here, Heinrich alleges that relief is inadequate to make the plaintiff whole, but the petitioners violated article 6243b, section 10A(b) of the Texas contours of the appropriate remedy must be determined by Revised Civil Statutes when they reduced her benefits. Thus, the Legislature. if Heinrich's allegations are true, her suit would fall within the ultra vires exception to governmental immunity as described Thus, Heinrich's claims for prospective relief may be brought above. only against the appropriate officials in their official capacity, and her statutory claims for future benefits against the City, [17] [18] This is not the end of our analysis, however: “if a plea to the jurisdiction challenges the existence of Fund, and Board must be dismissed. 9 Heinrich's pleadings jurisdictional facts, we consider relevant evidence submitted are unclear as to the capacity or capacities in which she by the parties when necessary to resolve the jurisdictional has sued the individual Board members. The United States issues raised, as the trial court is required to do.” Id. at 227. Supreme Court has observed that, “[i]n many cases, the If there is no question of fact as to the jurisdictional issue, the complaint will not clearly specify whether officials are sued trial court must rule on the plea to the jurisdiction as a matter personally, in their official capacity, or both.” Kentucky v. of law. Id. at 228. If, however, the jurisdictional evidence Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d creates a fact question, then the trial court cannot grant the 114 (1985); see also United States ex rel. Adrian v. Regents plea to the jurisdiction, and the issue must be resolved by the of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004). In these fact finder. Id. at 227–28. This standard mirrors our review cases, “ ‘[t]he course of proceedings' in such cases typically of summary judgments, and we therefore take as true all will indicate the nature of the liability sought to be imposed.” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 City of El Paso v. Heinrich, 284 S.W.3d 366 (2009) 52 Tex. Sup. Ct. J. 689 evidence favorable to Heinrich, indulging every reasonable place in every station or substation of a department to inference and resolving any doubts in her favor. Id. at 228. which the change would directly apply and in the city hall; Petitioners argue that, in accordance with the governing TEX.REV.CIV. STAT. art. 6243b, § 10A (emphasis added). bylaws, the payments to Heinrich were reduced when her son Under this statute, while benefits may be increased if certain ceased to be eligible to receive them, and asserts that the procedures are followed, the Board has no discretion to statutory provisions Heinrich relies upon are “inapplicable.” retroactively lower pensions. Petitioners, however, cite the Conversely, Heinrich alleges that she was awarded 100% of provisions of the 1980 bylaws, under which the reduction her husband's pension in accordance with these provisions, would be proper due to Heinrich's son's age. They therefore and that petitioners' subsequent retroactive reduction of her suggest that Heinrich erroneously relies on 1985 changes to benefits violated, among others, article 6243b, section 10A(a) the bylaws that increased the surviving spouse's share but (1) of the Texas Revised Civil Statutes. The relevant portions were prospective only in nature and do not apply to Heinrich. of article 6243b, section 10A provide: Heinrich submitted an affidavit from John Batoon, former (a) Notwithstanding anything to the contrary in other parts Assistant City Attorney for El Paso. 11 Batoon's affidavit of this Act and subject to Subsections (b) and (c) of this provided: section, the Board of Trustees may, by majority vote of the whole board, make from time to time one or more of the following changes, or modifications: I was serving as an Assistant City Attorney for the City of El Paso in 1985. I reviewed and approved the (1) modify or change prospectively or retroactively in any award to Ms. Lilli M. Heinrich of 100% of her deceased manner whatsoever any of the benefits provided by this husband's, Charles D. Heinrich, benefits from The El Paso Act, except that any retroactive change or modification Firemen & Policemen's Pension Fund. All procedures were shall only increase pensions or benefits; followed according to the Plan and according to law. The membership voted and approved of the benefits awarded *** Ms. Heinrich as was required by the Plan. Because Mr. (b) None of the changes made under Subsection (a) of this Heinrich had been an outstanding police officer for the City section may be made unless all of the following conditions of El Paso and because he was killed in the line of duty, the are sequentially complied with: Board of Trustees and the membership voted to award Ms. Heinrich 100% of Mr. Heinrich's benefits. (1) the change must be approved by a qualified actuary selected by a four-fifths vote of the Board; the actuary's Consideration of the amount of benefits awarded Ms. approval must be based on an actuarial finding that Heinrich was not based, in any way, on the fact that she the change is supported by the existing funding status had a minor child at that time. Ms. Heinrich was awarded of the fund; the actuary, if an individual, must be a 100% of the benefits because Mr. Heinrich had been a Fellow of the Society of Actuaries or a Fellow of the well-loved officer and his death was a terrible loss for the Conference of Actuaries in Public Practice or a Member police department. It was the Board of Trustees and the of the American Academy of Actuaries; the actuary, membership's way of paying tribute to a fallen officer. if an actuarial consulting firm, must be established in Along with this sworn testimony, the evidence included a the business of providing actuarial consulting services pair of October 16, 1985 letters from the chief of police, to pension plans and have experienced personnel able one signed by the then-Board members, stating that “Mrs. to provide the requested *379 services; the findings Heinrich will receive 100% of her husband's final pension upon which the properly selected and qualified actuary's amount,” and one unsigned, stating that 100% would go to approval are based are not subject to judicial review; “Mrs. Heinrich and her dependent children.” The minutes of the November 20, 1985 Board meeting also indicate that (2) the change must be approved by a majority of the membership had previously voted to change benefits so all persons then making contributions to the fund as that surviving spouses' benefits would increase from 66 2/3 employees of a department to which the change would to 100% of the pension amount. The Board contends that directly apply, voting by secret ballot at an election held these bylaw changes do not apply to Heinrich, but even if after ten (10) days' notice given by posting at a prominent they do not, Batoon's affidavit and the letters raise a fact © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 City of El Paso v. Heinrich, 284 S.W.3d 366 (2009) 52 Tex. Sup. Ct. J. 689 hold that Heinrich has not sued the Board members in question as to whether Heinrich's individual benefits were their individual capacities, official immunity is inapplicable increased to 100% of her husband's pension payments under the provisions of article 6243b and subsequently reduced in here. 12 violation thereof. We conclude that the trial court correctly denied that portion of the plea to the jurisdiction *380 challenging Heinrich's claims against the individuals in their III official capacities. Miranda, 133 S.W.3d at 227–28. Conclusion E In sum, because there is a question of fact as to whether Heinrich's pension payments have been reduced in violation of state law, her claims for prospective declaratory and The Individuals' Immunity injunctive relief against the Board members and the mayor In their final issue, petitioners assert that the trial court in their official capacities may go forward, but we dismiss erred in denying the individual board members' plea to the her retrospective claims against them. All of her claims jurisdiction based on governmental and official immunity. against the City, Fund, and Board, however, are barred by With the limited ultra vires exception discussed above, governmental immunity, and we dismiss them. Finally, we governmental immunity protects government officers sued hold that the Board members have not been sued in their in their official capacities to the extent that it protects their individual capacities, and to the extent the court of appeals employers. See Univ. of Tex. Med. Branch v. Hohman, held otherwise, we reverse its judgment. We affirm in part and 6 S.W.3d 767, 776 (Tex.App.-Houston [1st Dist.] 1999, reverse in part the court of appeals' judgment and remand this pet. dism'd w.o.j.). Because of this exception, however, case to the trial court for further proceedings. TEX.R.APP. governmental immunity does not bar Heinrich's claims P. 60.2(a),(d). against the individuals in their official capacities. Official immunity, by contrast, is an affirmative defense protecting Parallel Citations public officials from individual liability. See Telthorster v. Tennell, 92 S.W.3d 457, 459–60 (Tex.2002). Because we 52 Tex. Sup. Ct. J. 689 Footnotes 1 The City withheld a percentage of Charles's compensation (and that of other officers) to fund the plan. 2 The State of Texas and the Texas State Association of Fire Fighters submitted amicus curiae briefs. 3 We recently dismissed a claim for declaratory and injunctive relief against the Houston Municipal Employees Pension System in which the “plaintiffs ... requested that the trial court issue an injunction directing the pension board to comply with the trial court's interpretation of Article 6243h,” the governing statute. Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158–59 (Tex.2007). Under Article 6243h, the Houston board's “interpretation of [the] Act [is] final and binding on any interested party,” TEX.REV.CIV. STAT. art. 6243h § 2(y), and we held that this language precluded judicial review. Ferrell, 248 S.W.3d at 158 (“There is no right to judicial review of an administrative order unless a statute explicitly provides that right or the order violates a constitutional right.”) (citations omitted). Here, however, Article 6243b contains no language similar to that in 6243h granting the Board exclusive authority to interpret the act, see TEX.REV.CIV. STAT. art. 6243b, and, in any case, Heinrich does not challenge petitioners' interpretation of 6243b, but rather alleges that they have violated that statute under an undisputed reading thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J., concurring) (“A different case might be presented if the plaintiffs alleged the board was clearly violating some provision of the statute. Article 6243h gives the pension board complete discretion to interpret the statute, but not to violate it.”). 4 The Dodgen Court expressly declined to limit Epperson based on changes in federal immunity jurisprudence. Dodgen, 308 S.W.2d at 843. 5 Because the policy embodied in the law extends only as far the amount wrongfully withheld, claims for amounts beyond those alleged to be due under the relevant law, such as consequential damages, remain barred by immunity. 6 For claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act requires that the relevant governmental entities be made parties, and thereby waives immunity. TEX. CIV. PRAC. & REM.CODE § © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 City of El Paso v. Heinrich, 284 S.W.3d 366 (2009) 52 Tex. Sup. Ct. J. 689 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.”); see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697–698 (Tex.2003) (“[I]f the Legislature requires that the State be joined in a lawsuit for which immunity would otherwise attach, the Legislature has intentionally waived the State's sovereign immunity.”); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (“The DJA expressly provides that persons may challenge ordinances or statutes, and that governmental entities must be joined or notified. Governmental entities joined as parties may be bound by a court's declaration on their ordinances or statutes. The Act thus contemplates that governmental entities may be—indeed, must be—joined in suits to construe their legislative pronouncements.”). Here, Heinrich is not challenging the validity of the bylaws or the governing statute, but rather petitioners' actions under them. 7 State officials may, of course, be sued in both their official and individual capacities. Judgments against state officials in their individual capacities will not bind the state. See Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (“Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.”). 8 Further, although the parties do not address it, we note that the reduction in Heinrich's survivor payments occurred before the effective date of article XVI, section 66 of the Texas Constitution (“Protected Benefits Under Certain Public Retirement Systems”), and we do not consider whether it would otherwise apply in this case. 9 While this case was pending on interlocutory appeal, the Legislature enacted 271.151–.160 of the Local Government Code, waiving immunity from suit for certain claims against cities and other governmental entities. Heinrich does not argue that her claims fall within these provisions, and we express no opinion on that subject. 10 Because the mayor of El Paso, who is also a Board member, was named as a defendant in his official capacity, Heinrich may seek liability from the City through that officer, although her claims against the City itself must be dismissed. 11 The Fund, the Board, and the Board members objected to this evidence. The trial court did not explicitly rule on the objections, and the petitioners do not raise any evidentiary issues on appeal. 12 The court of appeals failed to draw this distinction, instead discussing the protections available to officials from governmental immunity. 198 S.W.3d at 407. This conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T CODE § 22.225(c), (e). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 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] © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4074620. Public record. Not legal advice.