      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00678-CV



                                     Darnell Delk, Appellant

                                                 v.

                 The Honorable Rosemary Lehmberg, District Attorney and
                     The Honorable Robert Perkins, Judge , Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
        NO. D-1-GN-11-003632, HONORABLE GUS STRAUSS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Darnell Delk, an inmate in the Texas Department of Criminal Justice, appeals the trial

court’s dismissal of his lawsuit against the Honorable Robert Perkins, retired District Judge for the

331st Judicial District of Travis County, Texas, and Rosemary Lehmberg, the current Travis County

District Attorney (collectively, the Appellees). Delk contends that the trial court erred in granting

the Appellees’ plea to the jurisdiction and in denying his request for discovery. We will affirm.


                                         BACKGROUND

               In 1985, following a trial over which Judge Perkins presided, Delk was convicted

of robbery. In 2011, Delk filed a pro se lawsuit against Judge Perkins. Delk also sued Lehmberg,

who as a former assistant district attorney prosecuted Delk. In his suit, Delk alleges that in the

course of his criminal trial, Judge Perkins and Lehmberg violated his constitutional right to due
course of law. See Tex. Const. art. I, § 19. According to his petition, Delk was deprived of a fair

trial when Judge Perkins permitted Delk to be tried in his jail clothes and seen by the jury in

handcuffs. Delk also complains that Judge Perkins allowed the prosecution to make improper

comments concerning past conduct and appointed an attorney who did not properly present his

defense. In addition, Delk asserts that Lehmberg violated his constitutional rights by failing to select

a jury representing “a cross-section of the community,” unfairly offering one of his co-defendants

a plea offer, and making comments on a charge for which Delk was not convicted in order to “paint

a picture to the jury that Mr. Delk was a monster.”

                In response, the Appellees filed a plea to the jurisdiction arguing that Delk’s claims

were barred by sovereign immunity, judicial immunity, and prosecutorial immunity. Following a

hearing, at which Delk appeared by telephone, the trial court granted the Appellees’ plea to the

jurisdiction and dismissed the case. This appeal followed.


                                     STANDARD OF REVIEW

                Because subject-matter jurisdiction is question of law, we review a trial court’s ruling

on a plea to the jurisdiction de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). The plaintiff must affirmatively establish the trial court’s subject-matter jurisdiction.

Id. To determine whether a plaintiff has satisfied this burden, we begin our analysis with the live

pleadings. Id. We consider the facts alleged in the plaintiff’s petition along with any evidence

submitted by the parties, to the extent such evidence is relevant to the jurisdictional issue. Texas

Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). We construe the

plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s intent.

Miranda, 133 S.W.3d at 226.

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                                             ANALYSIS


Immunity

               It is well established that a judge is entitled to judicial immunity from liability for

acts performed within the scope of his jurisdiction. Dallas Cnty. v. Halsey, 87 S.W.3d 552, 554

(Tex. 2002) (citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Judicial immunity is absolute

immunity, extending to acts performed by the judge in error, maliciously, and even in excess of his

authority. Stump, 435 U.S. at 356-57. Judicial immunity is overcome only when it is shown that the

actions are nonjudicial or undertaken in the “clear absence of all jurisdiction.” Id.; see Twilligear v.

Carrell, 148 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Judicial acts

include those performed by judges in adjudicating or otherwise exercising their judicial authority

over proceedings pending in their court. Twilligear, 148 S.W.3d at 504-05. Upon reviewing Delk’s

pleadings, we conclude that Delk complains only of actions taken by Judge Perkins in his judicial

capacity. Delk does not specifically allege, nor does anything in the record suggest, that Judge

Perkins acted in the clear absence of all jurisdiction. Accordingly, we conclude that Delk’s suit

against Perkins implicates judicial immunity.

               Similarly, we conclude Delk’s civil suit against Lehmberg implicates derived

judicial immunity. In Texas, judicial immunity extends to officers of the court who are integral

parts of the judicial process. Hawkins v. Walvoord, 25 S.W.3d 882, 891 (Tex. App.—El Paso 2000,

pet. denied). As a result, prosecutors generally have immunity from liability arising from their

activities ?intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman,

424 U.S. 409, 430 (1976) (prosecutor acting within scope of duties in initiating and pursuing

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criminal prosecution was absolutely immune from suit under 42 U.S.C. § 1983); Charleston v. Allen,

420 S.W.3d 134, 136-37 (Tex. App.—Texarkana 2012, no pet.). Here, all of Delk’s allegations

against Lehmberg concern matters that occurred in Delk’s criminal trial and could have been

objected to in the normal course of that trial. Based on Delk’s pleadings, we conclude that his

allegations against Lehmberg concern acts of advocacy that are “intimately associated with the

judicial phase of the criminal process.” See Imbler, 424 U.S. at 430.


Ultra Vires

                On appeal, Delk argues that his claims are not barred by immunity because he is

seeking only declaratory and injunctive relief and not monetary damages based on the Appellees’

constitutional violations. Although Delk has not specifically characterized his suit as an ultra vires

action, he has sued the Appellees in their official capacities for constitutional violations and does not

seek monetary relief. Liberally construing his pleadings, we interpret Delk’s suit as an attempt to

bring an ultra vires action.

                A suit seeking to compel a government official “to comply with statutory or

constitutional provisions” is an ultra vires suit and is not protected by sovereign immunity. City of

El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Suits alleging ultra vires or unconstitutional

conduct by a government official are not considered to be suits against the state and therefore

must be brought against state actors in their official capacity. Id. at 373. However, the ultra vires

exception to immunity permits only prospective declaratory or injunctive relief restraining ultra vires

conduct, as opposed to retroactive relief. Id. at 374-77.




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               The alleged conduct that forms the basis of Delk’s complaint solely concerns past

actions, and in his petition, Delk requests the following relief:


       (1) A declaration that the acts and omissions described herein violated complainant’s
       rights under Due Course of Law and Constitution and laws of the United States.

       (2) A permanent injunction ordering Respondents . . . to comply with Due Course of
       Law and 2.01 [of the Code of Criminal Procedure] by admitting the following:
       Mr. Delk went to trial in jail clothes and had an all white jury to convict him and
       sentence him.


               While a request for declaratory relief may support an ultra vires action, the

Uniform Declaratory Judgments Act does not extend a trial court’s jurisdiction, and therefore any

injunctive relief invoking the ultra vires doctrine must be prospective in nature. See Texas Natural

Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Here, Delk’s request

for a declaration that the Appellees violated the constitution in the past, even if true, is purely

retrospective in nature and does not support an ultra vires claim. See Etan Indus. v. Lehmann,

359 S.W.3d 620, 624 (Tex. 2011) (explaining that UDJA is “intended as a means of determining

the parties’ rights when a controversy has arisen but before a wrong has been committed”);

Hailey v. Glaser, No. 06-12-00065-CV, 2012 WL 5872869, at *3 (Tex. App.—Texarkana Nov. 21,

2012, no pet.) (mem. op.) (upholding dismissal of inmate’s suit against judge, county attorney, and

district clerk for actions taken in course of criminal trial, concluding that inmate’s request for

declaration that past acts violated law is not claim for prospective declaratory relief). Similarly,

Delk’s requested injunctive relief, requiring the Appellees to admit to past conduct, is not an attempt

to restrain any future unconstitutional conduct. See City of Arlington v. Randall, 301 S.W.3d 896,



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907 (Tex. App.—Fort Worth 2009, pet. denied) (concluding that injunction imposing duty on

City to redeem plaintiff’s reputation was not proper). Consequently, Delk’s requested injunctive is

also retrospective.

                Construing Delk’s allegations liberally in his favor and accepting all of his allegations

as true, we conclude that Delk’s allegations concerning past conduct do not support the existence

of any potential claim for prospective relief. See Higgins v. Blount, No. 07-12-00093-CV, 2013 WL

2244118, at *4 (Tex. App.—Amarillo May 17, 2013, pet. denied) (mem. op.) (upholding dismissal

of inmate’s suit against judge and assistant district attorney for errors in criminal trial and explaining

that because inmate “ultimately seeks relief for acts he believes were already committed, the ultra

vires exception does not apply to the facts of this case”). Accordingly, we conclude that the trial

court did not err in granting the Appellees’ plea to the jurisdiction.

                Delk also asserts in this appeal that the trial court did not allow him to fully

participate at the hearing on the plea to the jurisdiction. Upon reviewing the record of the hearing,

we conclude that the trial court allowed Delk adequate opportunity to participate in the hearing, and

in fact, Delk asked several questions and presented a lengthy argument in support of his claims.

Further, Delk complains that the trial court failed to allow him to conduct discovery before

dismissing his claims. Delk’s pleadings affirmatively demonstrate that the court lacked subject-

matter jurisdiction over Delk’s suit, and the trial court was not required to allow discovery before

ruling on the Appellees’ plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000) (“Whether a determination of subject-matter jurisdiction can be made in a

preliminary hearing or should await fuller development of the merits of the case must be left largely

to the trial court’s sound exercise of discretion.”).

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                                         CONCLUSION

               Having concluded that Delk’s claims against the Appellees are barred by immunity

and that his procedural complaints concerning the hearing on the plea to the jurisdiction have no

merit, we overrule all of Delk’s issues on appeal and affirm the order of the trial court.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: May 9, 2014




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