Texas Southern University, Texas Southern University President Lesia Crumpton-Young and General Counsel Hao Le v. Mary Young

Supreme Court of Texas

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No. 23-0391

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Texas Southern University, Texas Southern University President

Lesia Crumpton-Young and General Counsel Hao Le,

Petitioners,

v.

Mary Young,

Respondent

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On Petition for Review from the

Court of Appeals for the First District of Texas

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No. 23-0392

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In re Texas Southern University, Texas Southern University

President Lesia Crumpton-Young and General Counsel Hao Le,

Relators

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On Petition for Writ of Mandamus

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JUSTICE YOUNG, concurring in the denial of the petition for review

and the petition for writ of mandamus.

The State contends that the trial court in this case improperly

ordered merits discovery before ruling on the State’s sovereign-immunity-

based plea to the jurisdiction. The Court today denies the State’s

petition for review and petition for writ of mandamus. I concur and write

separately to explain why.

Specifically, I do not disagree with the State that a trial court

must resolve a challenge to its subject-matter jurisdiction before reaching

any merits issues. To the contrary, I fully endorse that principle, which

applies to all courts and to litigation involving any parties, not just the

State. But when the State is the defendant, these principles may play out

differently. The State possesses vastly more jurisdictional defenses than

typical defendants do, so the no-merits-before-jurisdiction rule usually

gives the State extraordinary benefits. The State’s ability to insulate

itself from suit unless a plaintiff can hurdle a bevy of jurisdictional

obstacles, however, entails a consequence that the State finds less

desirable—that jurisdictional discovery will often burden the State more

than a typical defendant. The State must take the bitter with the sweet.

If the waiver of immunity is tethered to specific factual prerequisites,

the only way to know if immunity has been waived is to determine if the

necessary facts exist. The path to that destination often passes through

jurisdictional discovery. The State finds itself in that situation here.

My votes to deny the petitions for review and for writ of mandamus

reflect disagreement not with the State’s asserted legal principle,

therefore, but only with the State’s assertion that the lower courts in this

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case (or more generally) are flouting that principle.

* * *

Mary Young began serving as the Chief of Police for Texas

Southern University in 2017. In 2022, she learned that an allegedly

anonymous complaint had been filed against her. Soon thereafter, TSU

President Lesia Crumpton-Young falsely told Young that TSU’s board of

trustees wanted to fire her. Young also learned that TSU had been

investigating her actions to determine whether there was merit to the

complaint and whether her actions warranted termination. Despite

Young’s requests, TSU did not provide her a copy of the complaint.

In response, Young filed suit against TSU. She sought court orders

prohibiting TSU from firing or otherwise disciplining her without first

giving her a copy of the signed complaint. Young also sought a

declaratory judgment that TSU’s investigation and attempted discipline

violated § 614 of the Texas Government Code. TSU filed a plea to the

jurisdiction on the basis of sovereign immunity.

Before ruling on TSU’s plea to the jurisdiction, the trial court

ordered expedited discovery. The discovery order required TSU to turn

over documents “related to the investigation” into Young’s conduct and to

produce for deposition Crumpton-Young and Darlene Brown, the auditor

who led TSU’s investigation into Young.

In this Court, the State’s petition for review (in No. 23-0391)

argues that the trial court improperly ordered merits discovery before

ruling on the plea to the jurisdiction. The State contends that such an

action implicitly denied the plea to the jurisdiction, which authorizes the

State to bring an interlocutory appeal. It urges the Court to grant the

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petition “[t]o clarify that a trial court may not subject a governmental

defendant to non-jurisdictional discovery before ruling on a plea to the

jurisdiction.” (Emphasis added.) As an alternative, if we were to conclude

that we lack appellate jurisdiction, the State has filed a petition for writ

of mandamus (in No. 23-0392), which asks us to direct the district court

to withdraw its discovery order and rule on the plea to the jurisdiction,

thus preventing unlawful merits discovery. The underlying theory of

both petitions is that merits discovery may not be ordered when there is

a pending challenge to a trial court’s subject-matter jurisdiction.

I do not see how anyone could disagree with that proposition.

“Subject matter jurisdiction is ‘essential to a court’s power to decide a

case.’” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (quoting

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)). It

does not mean that anything short of a final decision is fair game despite

the absence of jurisdiction, of course, because the principle “stems from

the doctrine of separation of powers, and aims to keep the judiciary from

encroaching on subjects properly belonging to another branch of

government.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379

(Tex. 2006) (Brister, J., concurring). A court that exercises unauthorized

judicial power is necessarily exercising power that belongs to someone

else, either to others within the government or to the citizens of our State.

The State’s premise is therefore correct: subject-matter jurisdiction

is a condition precedent to reaching the merits of a dispute. See In re Lazy

W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016) (“A trial court ‘must

determine at its earliest opportunity whether it has the constitutional or

statutory authority to decide the case before allowing the litigation to

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proceed.’” (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004))); see also Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94 (1998) (describing “the first and fundamental question

[as] that of jurisdiction” (quoting Great S. Fire Proof Hotel Co. v. Jones,

177 U.S. 449, 453 (1900))). Because “[s]overeign immunity from suit

deprives a trial court of subject-matter jurisdiction,” the trial court here

has no authority to proceed to the merits until it determines whether

TSU’s plea to the jurisdiction should be sustained. Shamrock Psychiatric

Clinic, P.A. v. DHHS, 540 S.W.3d 553, 559 (Tex. 2018). Discovery that

implicates only the merits is wholly improper until it is clear that the

court has authority to reach the merits.

But because discovery is not invariably tethered only to the merits,

discovery is not categorically unavailable upon a challenge to a trial

court’s subject-matter jurisdiction. “Courts always have jurisdiction to

determine their own jurisdiction,” Harrell v. State, 286 S.W.3d 315, 317

(Tex. 2009) (quoting Hous. Mun. Employees Pension Sys. v. Ferrell, 248

S.W.3d 151, 158 (Tex. 2007)), so if discovery is needed to reach that

determination, “trial courts considering a plea to the jurisdiction have

broad discretion to allow ‘reasonable opportunity for targeted discovery’

and to grant parties more time to gather evidence and prepare for such

hearings.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,

642–43 (Tex. 2012) (quoting Miranda, 133 S.W.3d at 233). After all,

especially when the State is a party, jurisdiction can turn on contested

facts. A trial court lacking sufficient evidence to resolve a jurisdictional

fact question and thus to rule on the plea to the jurisdiction may order

targeted discovery. Miranda, 133 S.W.3d at 229. Discovery of this kind

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is not a transgression of a court’s subject-matter jurisdiction—it is how

a court ensures that no such transgression occurs.

Relevant to this case, where the facts are insufficient for a court

to determine its jurisdiction in an ultra vires claim, a court may order

targeted discovery into the key factual issues related to the claim. True,

there will sometimes—often—be some overlap with the merits, especially

in ultra vires cases where the waiver of immunity, which implicates

jurisdiction, is closely linked to the merits. That truism hardly means

that broad discovery into the merits is permissible, though. Targeted

discovery cannot be allowed unless—and only to the extent that—it is

essential to the resolution of a jurisdictional question. It would be worse

than improper for a court to keep anything but a firm tether on discovery

during the pendency of a jurisdictional challenge.

The scope of jurisdictional discovery, therefore, will vary based on

the scope of an ultra vires allegation, which “is dependent upon the grant

of authority at issue in any particular case.” Hous. Belt & Terminal Ry.

Co. v. City of Houston, 487 S.W.3d 154, 164 (Tex. 2016). The grant of

authority at issue here is in the Texas Government Code. The statute

requires an agency to give a law enforcement officer “[a] copy of a signed

complaint [filed against her] . . . within a reasonable time after the

complaint is filed.” Tex. Gov’t Code § 614.023(a). And “[d]isciplinary

action may not be taken against the officer . . . unless a copy of the signed

complaint is given to” her. Id. § 614.023(b). The statute also provides

that a complaint may not be “considered by the head of a state agency”

unless the complaint is first “in writing” and second “signed by the person

making the complaint.” Id. § 614.022.

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The State argues that the “only potential [jurisdictional] factual

dispute concerns when Young received a copy of the complaint against

her and what the contents of that complaint were.” I cannot agree. The

statute raises several jurisdictional factual issues: (1) when Crumpton-

Young was alerted to the complaint and what action she took, if any,

between that time and when Young was provided a copy of the complaint;

(2) whether TSU took any disciplinary actions against Young before

giving her a copy of the complaint; and (3) whether Young was provided

the complaint within a reasonable time. From what I can see, the trial

court did not have the evidence it needed to properly address these

jurisdictional issues.

Young pleaded that Crumpton-Young told her that she was going

to be fired because of an anonymous complaint. She also pleaded that

TSU was investigating her to determine whether there was merit to the

complaint’s allegations. Why Crumpton-Young made her false statement

to Young, and what decisions were being made during TSU’s

investigation, implicate a fact issue as to whether TSU had decided to

discipline Young before she was given the allegedly anonymous

complaint. In fact, the trial court noted in its discovery order that the

reason Crumpton-Young made her false statement to Young was “directly

probative on the issue that an adverse employment decision had been

made without complying with [the statute].”

The trial court required TSU to turn over documents related to

Brown’s investigation. It also required the depositions of Brown and

Crumpton-Young. True, if understood apart from its context, this

discovery order could be viewed as overbroad and beyond what is needed

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to determine the court’s jurisdiction to hear the suit. In a vacuum, it

might appear to authorize discovery into the merits. But the order was

not issued in a vacuum. Everyone knows its jurisdictional purpose.

Given that context, we cannot assume that any apparent imprecision or

breadth reflects a trial court’s intent to ignore jurisdiction and address

the merits. Ordering jurisdictional discovery would be a clear abuse of

discretion only if it necessarily trespasses so far into the merits that any

tether to pending jurisdictional questions was illusory or pretextual. And

such an order would warrant appellate relief only if a trial court refused

to correct it.

I acknowledge, of course, that parties might seek improper discovery

from an order that does not inherently or inevitably require transgressing

the no-merits-before-jurisdiction rule. If they do, the State (or any party

in such a situation) could readily take protective action far short of

immediately noticing an appeal or seeking mandamus relief. For one

thing, if an adverse party (in this case, Young) seeks to leverage

permissible jurisdictional discovery into clearly impermissible merits

discovery, the other side (in this case, the State) may seek a protective

order, resist a motion to compel, or take similar steps. A trial court who

issued an order in good faith only to determine its own jurisdiction would

not permit that order to be abused. If it does, the appellate courts can

and should appropriately limit discovery. The State, in fact, has

identified two cases in which a lower court has acted in disregard of the

jurisdictional principles that the State advances, and in both cases the

appellate courts stepped forward to vindicate those principles. See In re

Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062 (Tex. App.—

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Beaumont Aug. 16, 2018, orig. proceeding); City of Galveston v. Gray, 93

S.W.3d 587, 591 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

By contrast, the State thus far has not identified cases where the

courts of appeals have failed to act appropriately. If there is an epidemic

of unconstitutional orders allowing merits discovery without a

jurisdictional foundation, I am unaware of it. If the State, or any party,

finds itself in such a position, that party should present concrete evidence

that the trial court has exceeded its jurisdiction (and, especially in this

Court, any available evidence that other courts are frequently doing so).

At present, however, this Court’s review does not appear to be needed.

Again, I emphasize that “the court may not reach the merits if it

finds a single valid basis to defeat jurisdiction.” Rattray v. City of

Brownsville, 662 S.W.3d 860, 868 (Tex. 2023). Trial courts must

determine whether they have jurisdiction before proceeding to the merits.

Based on the information before us, the lower courts appreciate this

fundamental principle. Nothing that I see in this case reflects a clear

violation of the very rules the State properly defends. The district court

neither implicitly denied the plea to the jurisdiction nor clearly abused its

discretion by allowing discovery in derogation of its jurisdiction. I

therefore concur in the denial of the petitions for review and for writ of

mandamus.

Evan A. Young

Justice

OPINION FILED: October 13, 2023

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