Dianne Hensley v. State Commission on Judicial Conduct

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00305-CV

Dianne Hensley, Appellant

v.

State Commission on Judicial Conduct; David Schenck, in his official capacity as Chair of

the State Commission on Judicial Conduct; Janis Hold, in her official capacity as

Vice-Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official

capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,

David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick

Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their

official capacities as Members of the State Commission on Judicial Conduct, Appellees1

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-003926, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

MEMORANDUM OPINION

Dianne Hensley appeals from the trial court’s order dismissing her suit against the

State Commission on Judicial Conduct (the Commission) and David Schenck, in his official

capacity as Chair of the State Commission on Judicial Conduct; Janis Hold, in her official

capacity as Vice-Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his

official capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,

David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick

Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their official

1

Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, the current officers

and members of the State Commission on Judicial Conduct have been automatically substituted

for its former officers and members.

capacities as Members of the State Commission on Judicial Conduct (collectively “the

Officials”). Hensley brought claims against the Commission and the Officials alleging that

they violated the Texas Religious Freedom Restoration Act, see Tex. Civ. Prac. & Rem. Code

§ 110.005 (the TRFRA), and acted ultra vires regarding the Commission’s disciplinary action

against her. Hensley also sought declaratory relief under the Texas Uniform Declaratory

Judgments Act. See id. §§ 37.001-.011 (the UDJA). On the Commission’s and the Officials’

plea to the jurisdiction and, in the alternative, plea in estoppel, the trial court dismissed Hensley’s

claims, concluding that (1) Hensley failed to exercise her exclusive statutory remedy for issues

related to the disciplinary proceeding; (2) Hensley failed to comply with jurisdictional statutory

notice requirements governing her claims under the TRFRA; (3) sovereign immunity barred her

claims; (4) her claims were barred by statutory immunity under Texas Government Code section

33.006, see Tex. Gov’t Code § 33.006; (5) her claims were not ripe; (6) her claims sought

impermissible advisory opinions; and (6) her claims were barred by the doctrine of res judicata.

We will affirm.

BACKGROUND

Hensley is a justice of the peace in Waco, Texas. After a Waco newspaper

published an article about Hensley, which included an interview with her, the Commission sent

Hensley a letter of inquiry asking her to respond to written questions. The Commission’s

questions inquired into Hensley’s policy, from the time she assumed the bench until the date of

the inquiry, regarding performing wedding ceremonies for same-sex couples. The Commission

also asked Hensley to confirm whether the Waco newspaper article, which was titled “No

courthouse weddings in Waco for same-sex couples, 2 years after Supreme Court ruling” and

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included quotes attributed to Hensley regarding the issue of performing same-sex marriages,

accurately and fairly represented her statements to the media on that issue. The Commission also

asked Hensley to discuss whether, in her opinion, refusing requests to perform same-sex

marriages but continuing to perform marriage ceremonies for heterosexual couples violated

Canons 2(A), 3B(5), or 3B(6) of the Texas Code of Judicial Conduct. In her June 20, 2018

response, Hensley included contentions that her conduct was protected by the TRFRA.

In January 2019, the Commission wrote Hensley and identified two alleged

violations of the Texas Code of Judicial Conduct and one alleged violation of the Texas

Constitution’s restrictions on judicial conduct. An attached unsigned “tentative Public Warning”

identified (1) an alleged violation of Canon 3B(6), which prohibits bias and prejudice in

the performance of judicial duties; (2) an alleged violation of Canon 4A(1), which prohibits

conduct in extra-judicial activities that would cast reasonable doubt on the judge’s capacity

to act impartially; and (3) an alleged violation of Article V, Section 1-a(6)(A) of the Texas

Constitution, which prohibits “willful or persistent conduct that is clearly inconsistent with the

proper performance of [the judge’s] duties or casts public discredit upon the judiciary or

administration of justice.” The Commission gave Hensley the option of either accepting the

tentative Public Warning or appearing before the Commission for a hearing. Hensley elected to

appear for a hearing, and the tentative Public Warning never became effective and remained

confidential by statute.2

At an August 2019 hearing before the Commission, Hensley appeared and was

represented by three attorneys. Hensley testified under oath to the Commission’s questions.

2

The tentative Public Warning was not made public before the conclusion of the

Commission’s disciplinary proceedings and only became public when Hensley attached a copy

of it as an exhibit to her pleadings in the underlying trial court proceedings.

3

Hensley argued that her conduct was protected by the TRFRA and disputed that her conduct

constituted a violation of the Texas Constitution or of Canons 3B(6) or 4A(1). She also asserted

that she was protected from discipline by Article 1, Section 8 of the Texas Constitution. See

Tex. Const. art 1, § 8 (providing that “[e]very person shall be at liberty to speak, write or publish

his opinions on any subject” and that “no law shall ever be passed curtailing the liberty of speech

or of the press”). After the hearing, the Commission issued a Public Warning on November 12,

2019. The Public Warning included the following findings of fact:

1. At all times relevant hereto, the Honorable Dianne Hensley was Justice of the

Peace for Precinct 1, Place 1, in Waco, McLennan County, Texas.

2. On June 24, 2017, the Waco Tribune newspaper published an article on their

website entitled No Courthouse Weddings in Waco for Same-sex Couples, 2 Years

After Supreme Court Ruling which reported that Justice of the Peace Dianne

Hensley “would only do a wedding between a man and a woman.”

3. From August 1, 2016, to the present, Judge Hensley has performed opposite-

sex weddings for couples, but has declined to perform same-sex wedding

ceremonies.

4. Beginning on about August 1, 2016, Judge Hensley and her court staff began

giving all same-sex couples wishing to be married by Judge Hensley a document

which stated “I’m sorry, but Judge Hensley has a sincerely held religious belief

as a Christian, and will not be able to perform any same sex weddings.” The

document contained a list of local persons who would officiate a same-sex

wedding.

5. Judge Hensley told the Waco-Tribune, the public and the Commission that her

conscience and religion prohibited her from officiating same-sex weddings.

6. At her appearance before the Commission, Judge Hensley testified that she

would recuse herself from a case in which a party doubted her impartiality on the

basis that she publicly refuses to perform same-sex weddings.

Based on the record before it and these findings, the Commission determined that Hensley should

“be publicly warned for casting doubt on her capacity to act impartially to persons appearing

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before her as a judge due to the person’s sexual orientation in violation of Canon 4A(1) of the

Texas Code of Judicial Conduct.”

The Public Warning was sent to Hensley’s counsel on November 14, 2019, after

which Hensley had 30 days to file an appeal. See Tex. Gov’t Code § 33.034(a) (judge who

receives sanction or censure by Commission entitled to review of Commission’s decision);

(b) (judge must file written request for appointment of special court of review with chief justice

of supreme court not later than 30th day after date on which Commission issues its decision);

(e) (providing for review by trial de novo as that term is used in appeal of cases from justice

to county court). Hensley did not file an appeal. Instead, she filed the underlying suit in

December 2019.3

In her petition, Hensley asserted that the Commission violated her rights under

the TRFRA by punishing her for “recusing herself from officiating at same-sex weddings, in

accordance with the commands of her Christian faith.” Hensley asserted that “the Commission’s

investigation and punishment” of her for “acting in accordance with the commands of her

Christian faith” substantially burdened her free exercise of religion. Hensley also asserted that

“the Commission’s threat to impose further discipline on Judge Hensley if she persists in

recusing herself from officiating at same-sex weddings” also substantially burdens her free

exercise of religion. Hensley alleged that “the Commission’s investigation and punishment” of

her and “its threat to impose further discipline” on her “if she persists in recusing herself from

officiating at same-sex weddings” further no compelling governmental interest. Hensley

asserted that the Commission’s determination that her actions violated Canon 4A(1) because they

3

The underlying suit was originally filed in McLennan County but, after a contested

hearing, venue was transferred to Travis County District Court.

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cast reasonable doubt on her capacity to act impartially as a judge was erroneous because, she

contends, “disapproval of an individual’s behavior does not evince bias toward that individual as

a person when they appear in court.” Hensley described the Commission’s determination as

“absurd” because, according to her, the Commission “equate[d] a judge’s publicly stated

opposition to an individual’s behavior as casting doubt on the judge’s impartiality toward

litigants who engage in that conduct.” She asserted that under this reasoning, “no judge who

publicly opposes murder or rape could be regarded as impartial when an accused murderer or

rapist appears in his court.” Hensley alleged that, pursuant to the TRFRA, she was entitled to

declaratory and injunctive relief, compensatory damages, and attorneys’ fees. See Tex. Civ.

Prac. & Rem. Code § 110.005 (person who successfully asserts claim or defense under TRFRA

entitled to declaratory relief under UDJA, injunctive relief, compensatory damages, and

reasonable attorneys’ fees).

Hensley sought additional declaratory relief under the UDJA. Specifically,

Hensley sought declarations that (1) a judge does not violate Canon 4A by merely expressing

disapproval of homosexual behavior or same-sex marriage or by belonging to or supporting a

church or charitable organization that opposes homosexual behavior or same-sex marriage

(Declaration 1); (2) the officiating of weddings is not a “judicial duty” under Canon 3B(6)

(Declaration 2); (3) Hensley’s decision to recuse herself from officiating at same-sex weddings

does not constitute “willful or persistent conduct clearly inconsistent with the proper

performance of [a judge’s] duties or casts public discredit upon the judiciary or administration of

justice” such that it violates article V, section 1-a(6)(A) of the Texas Constitution (Declaration

3); and (4) the Commission’s interpretation of Canon 4A violates article I, section 8 of the Texas

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Constitution (Declaration 4). Hensley also sought this declaratory relief against the Officials

based on her assertion that they had acted ultra vires.

The Commission and the Officials filed a plea to the jurisdiction and, in the

alternative, a plea in estoppel. They argued that Hensley’s claims should be dismissed for lack

of jurisdiction because she failed to utilize the exclusive statutory review process provided by the

Legislature to challenge the Commission’s determination to issue the Public Warning. They also

asserted that sovereign immunity bars Hensley’s claims brought under the TRFRA because she

failed to comply with the TRFRA’s statutory notice requirements. The Commission and the

Officials argued further that sovereign immunity bars Hensley’s UDJA claims and that she failed

to plead any ultra vires conduct by the Officials. They also maintained that, to the extent

Hensley seeks declarations about her potential future conduct, the court lacks jurisdiction

because those issues are not ripe for adjudication and Hensley is seeking impermissible

advisory opinions. In the alternative, the Commission and the Officials asserted that Hensley’s

claims should be dismissed because they are barred by the doctrines of res judicata and

collateral estoppel.

After an evidentiary hearing, the trial court granted the plea to the jurisdiction,

concluding that the court lacked jurisdiction over Hensley’s claims concerning issues pertinent to

her disciplinary proceeding because she failed to exercise her exclusive statutory remedy. The

trial court concluded that it lacked jurisdiction over Hensley’s claims under the TRFRA because

she failed to strictly comply with jurisdictional statutory notice requirements. The trial court also

concluded that Hensley’s claims were barred by sovereign immunity and statutory immunity

under section 33.006 of the Texas Government Code, were not ripe for adjudication and sought

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impermissible advisory opinions, and were barred by the doctrine of res judicata. Hensley then

perfected this appeal.

DISCUSSION

Standard of Review

A plea to the jurisdiction is a procedural mechanism “through which a party

may challenge a trial court’s authority to decide the subject matter” of a claim. Texas Dep’t of

State Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d).

Because whether a court has subject-matter jurisdiction is a question of law, we review de novo

a trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225 (Tex. 2004).

A plea to the jurisdiction may challenge whether the plaintiff has alleged facts

that affirmatively demonstrate a court’s jurisdiction to hear the case, the existence of those

jurisdictional facts, or both. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021).

When the jurisdictional plea challenges the pleadings, we determine whether the plaintiff’s

pleadings allege facts affirmatively demonstrating subject-matter jurisdiction. Miranda,

133 S.W.3d at 226. In making this assessment, we construe the plaintiff’s pleadings liberally,

taking all assertions as true, and look to the pleader’s intent. Texas Dep’t of Crim. Justice v.

Rangel, 595 S.W.3d 198, 205 (Tex. 2020). Allegations found in pleadings may affirmatively

demonstrate or negate the court’s jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622

(Tex. 2009). If the pleadings affirmatively negate the existence of jurisdiction, the plea may be

granted without affording the plaintiff an opportunity to replead. Miranda, 133 S.W.3d at 226.

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When the plea challenges the existence of jurisdictional facts, we must move

beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues.

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). When those challenged jurisdictional facts

also implicate the merits of the plaintiff’s claim, as in this case, the plaintiff’s burden mirrors that

of a traditional motion for summary judgment. Lara, 625 S.W.3d at 46 (quoting Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). Consequently, we review the

relevant evidence in the light most favorable to the plaintiff to determine whether a genuine issue

of material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019)

(citing Miranda, 133 S.W.3d at 226). If the evidence creates a fact issue regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue

will be resolved by the fact finder. Miranda, 133 S.W.3d at 227-28. But if the relevant evidence

is undisputed or does not raise a fact question on jurisdiction, we rule on the plea as a matter of

law. See id. at 228.

The State Commission on Judicial Conduct is a constitutionally created agency

composed of judges, attorneys, and citizens from the State of Texas. See Tex. Const. art. V,

§ 1-a(2); Tex. Gov’t Code § 33.002(a-1) (“The commission is an agency of the judicial branch of

state government and administers judicial discipline.”). As a state agency, the Commission is

entitled to sovereign immunity. See Miranda, 133 S.W.3d at 224; Hagstette v. State Comm’n on

Jud. Conduct, No. 01-19-00208-CV, 2020 WL 7349502, at *4 (Tex. App.—Houston [1st Dist.]

Dec. 15, 2020, no pet.) (mem. op.); see also Tex. Gov’t Code § 33.006 (providing that

commission and its members are immune from liability for acts or omissions committed by

person within scope of person’s official duties). When a governmental entity challenges

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jurisdiction on immunity grounds, the plaintiff’s burden of affirmatively demonstrating

jurisdiction includes establishing a waiver of immunity. Swanson, 590 S.W.3d at 550.

TRFRA Claims

We first consider whether the trial court erred by dismissing Hensley’s TRFRA

claims that relate to the Commission’s investigation and determination, after conducting a

hearing, to issue a Public Reprimand. Hensley’s claims reduce to two complaints. First, she

contends that the Commission’s investigating and issuing a Public Reprimand were improper

because they violated her rights under the TRFRA. Second, she takes issue with the

Commission’s determination that her conduct did in fact violate Canon 4A. Both these

complaints challenge an agency’s determination after a hearing. With regard to Hensley’s

complaint that the Commission’s investigation and decision to issue a Public Warning violated

her rights under the TRFRA, we note that Hensley could have, and did, raise this as a defense to

the Commission’s action. See Tex. Civ. Prac. & Rem. Code § 110.004 (“A person whose free

exercise of religion has been substantially burdened in violation of Section 110.003 or 110.0031

may assert that violation as a defense in a judicial or administrative proceeding without regard

to whether the proceeding is brought in the name of the state or by another person.”). By

issuing the Public Warning in the face of this asserted defense, the Commission implicitly found

that its investigation and subsequent Public Warning did not substantially burden Hensley’s

free exercise of religion. Similarly, regarding whether her conduct violated Canon 4A, the

Commission determined that it did. Rather than pursue an appeal of the Commission’s

determination—the avenue established by the Legislature to obtain review of Commission

decisions and set forth in Texas Government Code section 33.034—Hensley filed a proceeding

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in district court asserting the same argument she presented to the Commission and requesting

that the district court declare that the Commission was incorrect in its determinations that

(1) Hensley’s conduct violated the Code of Judicial Conduct and (2) that its investigation and

public reprimand did not substantially burden her free exercise of religion so as to violate the

TRFRA. The trial court correctly dismissed this impermissible collateral attack on the

Commission’s order. See Chocolate Bayou Water Co. & Sand Supply v. Texas Nat. Res.

Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (“Collateral

attacks upon an agency order may be maintained successfully on one ground alone—that the

order is void.”); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A collateral

attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the

purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific

relief which the judgment stands as a bar against.”).

Also pursuant to the TRFRA, Hensley sought injunctive relief “that will prevent

the Commission and its members from investigating or sanctioning judges or justices of the

peace who recuse themselves from officiating at same-sex weddings on account of their sincere

religious beliefs.” This injunctive relief is not available to Hensley under the TRFRA. The

statute provides that a person who successfully asserts a claim or defense under the TRFRA is

entitled to injunctive relief to prevent the threatened or continued violation. See Tex. Civ. Prac.

& Rem. Code § 110.005(a)(2). In this case, the trial court properly dismissed Hensley’s claims

brought under the TRFRA and, consequently, she has not successfully asserted a claim under

that statute that would entitle her to injunctive relief.

The trial court also properly dismissed Hensley’s claims for relief under the

TRFRA that were based on her allegations that the Commission violated her right to religious

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freedom by “threatening to impose further discipline if she persists in recusing herself from

officiating at same-sex weddings.” The undisputed evidence, presented at the evidentiary

hearing through the testimony of the Commission’s Executive Director, was that, since issuing

the Public Warning, the Commission has not initiated any new investigation of Hensley, has not

initiated any new disciplinary proceeding involving Hensley, and has not communicated to

Hensley any threat that any new investigation or disciplinary proceeding is planned or imminent.

Because the evidence establishes that the Commission has in fact not threatened further

disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the

TRFRA waives the Commission’s immunity for her claim that threats of further discipline

by the Commission have burdened her free exercise of religion. See id. §§ 111.005 (person

who successfully asserts claim under TRFRA entitled to declaratory and injunctive relief),

.008(a) (providing that sovereign immunity to suit is waived to extent of liability created by

section 110.005).

UDJA Claims

In addition to the declarations she requested pursuant to the TRFRA, Hensley also

sought Declarations 1, 2, 3, and 4 under the UDJA. The trial court dismissed these claims for

lack of jurisdiction on several grounds, including that they were barred by sovereign immunity.

Because it is dispositive, we first consider whether the trial court correctly concluded that

Hensley’s UDJA claims were barred by sovereign immunity. The UDJA provides that “[a]

person . . . whose rights, status, or other legal relations are affected by a statute . . . may have

determined any question of construction or validity arising under the . . . statute . . . and may

obtain a declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a). The

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Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction

but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’”

Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam) (quoting

Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011)). Accordingly,

the UDJA “is not a general waiver of sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.

Instead, the UDJA only “waives sovereign immunity in particular cases.” Sefzik, 355 S.W.3d

at 622. “For example, the state may be a proper party to a declaratory judgment action that

challenges the validity of a statute.” Id. However, “the UDJA does not waive the state’s

sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or

other law.” Id. at 621. On appeal, Hensley does not challenge the trial court’s dismissal of her

request for Declarations 1, 2, or 3. Instead, she asserts only that the UDJA waives sovereign

immunity for her request for Declaration 4 that “the Commission’s interpretation of Canon 4A

violates article 1, section 8 of the Texas Constitution.” Hensley maintains that this constitutes a

challenge to the validity of Canon 4A for which the UDJA provides a waiver of immunity. See

Town of Shady Shores, 590 S.W.3d at 552 (holding that UDJA provides “only limited waiver for

challenges to the validity of an ordinance or statute”). Hensley asserts that, although Canon 4A

is not a statute, supreme court precedent in Patel v. Texas Department of Licensing &

Regulation, 469 S.W.3d 69 (Tex. 2015), supports the conclusion that the UDJA waives sovereign

immunity for a claim challenging a Canon of the Code of Judicial Conduct. Hensley asserts that

“Patel holds that the UDJA allows litigants to sue government entities when challenging the

validity of agency regulations, even though agency rules are not mentioned in section 37.006(b)”

and that “there is no basis for excluding claims that challenge the validity of a judicial canon

from the UDJA’s waiver of immunity.”

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In Patel, in the context of evaluating whether the plaintiffs had alleged an ultra

vires claim, the court held that “because the [plaintiffs] challenge the validity of the cosmetology

statutes and regulations, rather than complaining that officials illegally acted or failed to act, the

ultra vires exception does not apply.” Id. at 77. We do not believe that this constitutes a holding

that the UDJA waives immunity for challenges to agency regulations. In fact, challenges to

agency rules and regulations are properly brought as a rule challenge under Texas Government

Code section 2001.038, and courts routinely dismiss challenges to agency rules brought under

the UDJA instead of under section 2001.038. See Tex. Gov’t Code § 2001.038 (validity or

applicability of rule may be determined in action for declaratory judgment under Administrative

Procedure Act); see also Patel, 469 S.W.3d at 78 (stating that “[u]nder the redundant remedies

doctrine, courts will not entertain an action brought under the UDJA when the same claim could

be pursued through different channels” and that focus of doctrine is “whether the Legislature

created a statutory waiver of sovereign immunity that permits the parties to raise their claims

through some avenue other than the UDJA”); id. at 79 (“When a plaintiff files a proceeding that

only challenges the validity of an administrative rule, the parties are bound by the APA and may

not seek relief under the UDJA because such relief would be redundant.”). In Patel, the supreme

court concluded that the trial court had jurisdiction over the plaintiffs’ claims under the UDJA

because they challenged the constitutionality of a statute, along with rules promulgated pursuant

to that statute. Id. at 80. Here, Hensley’s UDJA claim does not purport to challenge any statute;

she challenges only the validity of Canon 4A. Moreover, even if Patel could be read to stand

for the proposition that the UDJA waives immunity for a challenge to an agency regulation, as an

intermediate appellate court we will not expand any such waiver to include challenges to Canons

of the Texas Code of Judicial Conduct. See Anderson v. Archer, 490 S.W.3d 175, 177 (Tex.

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App.—Austin 2016) (declining to recognize cause of action for tortious interference with

inheritance and observing that “[w]e must, in short, follow the existing law rather than change it,

and we have adhered to that basic limiting principle in a variety of contexts”), aff’d, Archer v.

Anderson, 556 S.W.3d 228, 229 (Tex. 2018) (holding that there is no cause of action in Texas for

intentional interference with inheritance); Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers,

L.P., 287 S.W.3d 390, 394-95, 398 (Tex. App.—Austin 2009) (declining to recognize proposed

judicial expansion of common-law or constitutional privacy exceptions to mandatory disclosure

under Public Information Act), rev’d on other grounds, 343 S.W.3d 112, 120 (Tex. 2011) (Texas

Supreme Court ultimately adopting proposed expansion).4

Because sovereign immunity bars Hensley’s claims for declaratory relief under

the UDJA, the trial court properly dismissed them.

Ultra Vires Claims

Sovereign immunity does not bar claims alleging that state officials acted ultra

vires, or without legal authority, in carrying out their duties. See Houston Belt & Terminal Ry.

Co. v. City of Houston, 487 S.W.3d 154, 158 n.1 (Tex. 2016) (“[W]hen a governmental officer

is sued for allegedly ultra vires acts, governmental immunity does not apply from the outset.”).

An ultra vires action requires a plaintiff to “allege, and ultimately prove, that the officer acted

without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009). The Texas Supreme Court clarified what it means for an

4

We also note that, rather than challenging the validity of Canon 4A, Hensley is actually

challenging the Commission’s actions under its own interpretation of the Canon. The UDJA

does not provide a waiver for challenges to an agency’s interpretation of rules it is charged with

enforcing or applying. Complaints that the Commission misinterpreted or misapplied the

Canons are properly brought through the available appeal process that Hensley declined to

pursue.

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official to act “without legal authority.” See Houston Belt & Terminal Ry. Co., 487 S.W.3d at

158. The court said that “a government officer with some discretion to interpret and apply a law

may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of

his granted authority or if his acts conflict with the law itself.” Id. “[U]ltra vires suits do not

attempt to exert control over the state—they attempt to reassert the control of the state.”

Heinrich, 284 S.W.3d at 372. To reassert such control, an ultra vires suit must lie against the

“allegedly responsible government actor in his official capacity.” Patel, 469 S.W.3d at 76.

Therefore, an ultra vires claim against the Officials must complain of conduct taken pursuant to

their authority: their duty to determine whether Hensley’s conduct contravened judicial canons

and whether that conduct was, as she asserted, nevertheless protected by the TRFRA.

An ultra vires claim against the Officials in the present case, therefore, must be

based on the assertion that the Officials acted without legal authority when they rejected her

defense under the TRFRA that publicly reprimanding her for her conduct would substantially

burden her free exercise of religion. See Tex. Gov’t Code § 110.004 (person whose free exercise

of religion has been substantially burdened in violation of Section 110.003 or 110.031 may assert

that violation as defense in administrative proceeding). The dispositive issue, then, is whether

the Commission’s alleged mistake of law constituted an ultra vires act. The Texas Supreme

Court has explained that, when considering whether a legal mistake is an ultra vires act, “it is the

mistake’s impact on the official’s authority that carries dispositive weight.” Hall v. McRaven,

508 S.W.3d 232, 241 (Tex. 2017). The court explained that an official’s mistake in interpreting

his enabling authority can give rise to an ultra vires claim because it results in a misinterpretation

of the bounds of his own authority. Id. at 241-42. In Hall, the court concluded that the official’s

alleged misinterpretation of federal privacy law, a law “collateral to [the official’s] authority,”

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did not give rise to an ultra vires claim because that federal privacy law did not “suppl[y] the

parameters of [his] authority.” Id. at 242. The court held that “[i]n order to act without legal

authority in carrying out a duty to interpret and apply the law, [an official] must have exercised

discretion “without reference to or in conflict with the constraints of the law authorizing [him] to

act.” Id. (emphasis added).

Informed by the court’s explanation in Hall, Hensley must have alleged, and

ultimately prove, that the Officials exercised their discretion in conflict with the constraints of

the law authorizing them to act. Without that showing, Hensley “would simply have no basis

for ‘reassert[ing] control of the state.’” Id. (quoting Heinrich, 284 S.W.3d at 372). Here, the

Officials carried out their duty to determine whether Hensley’s conduct violated Canon 4A

and whether punishing that conduct with a Public Reprimand would substantially burden her

free exercise of religion. Their discretion in making those determinations was otherwise

unconstrained. Cf. Houston Belt & Terminal Ry. Co., 487 S.W.3d at 159 (official’s neglecting

what he was required to consider in making permeability determination rendered it—right or

wrong—ultra vires). As the supreme court explained in Hall:

When the ultimate and unrestrained objective of an official’s duty is to interpret

collateral law, a misinterpretation is not overstepping such authority; it is a

compliant action even if ultimately erroneous. Our intermediate courts of appeals

have repeatedly stated that it is not an ultra vires act for an official or agency to

make an erroneous decision while staying within its authority. Indeed, an ultra

vires doctrine that requires nothing more than an identifiable mistake would not

be a narrow exception to immunity: it would swallow immunity. [] As important

as a mistake may be, sovereign immunity comes with a price; it often allows the

“improvident actions” of the government to go unredressed. Only when these

improvident actions are unauthorized does an official shed the cloak of the

sovereign and act ultra vires.

Hall, 508 S.W.3d at 242 (citations omitted).

17

The Officials—whether right or wrong—were not acting without legal authority

in making their determinations regarding Hensley’s conduct.5 Moreover, the Commissioner’s

determinations did not constitute violations of “a purely ministerial duty.” See id. at 243

(“Perhaps it goes without saying, but if an official’s duty is discretionary, it is not also

nondiscretionary.”). Because Hensley failed to meet either of the bases for establishing an ultra

vires claim against the Officials, the trial court properly dismissed her ultra vires claims for

lack of jurisdiction.

CONCLUSION

Because the trial court lacked jurisdiction to consider Hensley’s claims under the

TRFRA and the UDJA, and because Hensley failed to establish ultra vires claims against the

Officials, the court did not err in granting the plea to the jurisdiction and dismissing the case.

Accordingly, we affirm the trial court’s judgment.

__________________________________________

Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Smith

Concurring Opinion by Justice Goodwin

Affirmed

Filed: November 3, 2022

5

We need not, and do not, express any opinion on the correctness of the Commission’s

determinations.

18