                                                                                            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


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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;

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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.




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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.

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



For all the foregoing reasons, we focus only on the type of relief Sefzik seeks—declaratory relief—and hold that a suit
seeking to determine his rights under the UDJA or the APA does not invoke the doctrine of sovereign immunity.
Accordingly, the trial court erred in granting TxDot’s plea to the jurisdiction as to his claims for declaratory relief.




                     IV. SOVEREIGN IMMUNITY AND SEFZIK’S CONSTITUTIONAL CLAIMS

Sefzik brought claims against TxDot for violations of his rights under the Fifth and Fourteenth Amendments to the United
States Constitution and under Article I, section 19 of the Texas Constitution. U.S. CONST. amends. V, XIV; TEX. CONST.
art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disenfranchised, except by the due course of the law of the land.”). He alleged that TxDot failed to afford him due process
and due course of law by refusing to grant him a hearing in his appeal of TxDot’s denial of his permit application. TxDot
argues that Sefzik failed to allege the existence of a right protected by these constitutional provisions; therefore, sovereign
immunity bars Sefzik’s claim.16 Sefzik argues that it *136 is not necessary to demonstrate a waiver of immunity when a party
seeks relief for constitutional violations. We agree with TxDot.

16
       The Texas Supreme Court has held that the Texas Constitution’s due course of law provision, Article I section 19, protects
       essentially the same interests as the due process provisions in the United States Constitution. NCAA v. Yeo, 171 S.W.3d 863,
       867–68 & n. 14 (Tex.2005).



Sefzik’s claim for constitutional violations sought damages from TxDot. TxDot’s argument against this claim was raised in a
jurisdictional plea based solely on sovereign immunity—TxDot did not argue, and we do not decide, whether any cause of
action for damages actually exists for the alleged constitutional violations. Perry v. Texas A & I Univ., 737 S.W.2d 106, 108
(Tex.App.–Corpus Christi 1987, writ ref’d n.r.e.) (“[T]he issues before us are restricted to the question of the application of
the principles of governmental immunity to these defendants and not whether any cause of action for damages arises from the
allegations of constitutional violations.”).
[14]
    As we have previously stated, “[i]n addressing the issue of immunity from suit, it is critical to recognize that the action is
one for damages and not one seeking injunctive relief.” Id. As such, Sefzik’s claim for damages for constitutional violations
is a “suit against the State” that invokes the doctrine of sovereign immunity. Id. This Court’s prior holdings treat the
constitutional provisions as waivers of immunity and require that the plaintiff plead a valid cause of action thereunder in
order to establish immunity. Id. at 109; see also State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex.2001) (holding
that suit against department of public safety under 42 U.S.C. § 1983 was suit against the State, and plaintiff’s failure to
properly plead claim under that provision meant that claim was barred by sovereign immunity); Univ. of Tex. Sys. v.
Courtney, 946 S.W.2d 464, 469 (Tex.App.–Fort Worth 1997, writ denied) (on reh’g) (holding that university had sovereign
immunity from suit for federal due process claims because plaintiff did not properly plead a 42 U.S.C. § 1983 claim).

For example, in Perry v. Texas A & I University, a counselor at Texas A & I University sued the university alleging the
deprivation of property in violation of the Fourteenth Amendment to the United States Constitution and Article I, section 19
of the Texas Constitution. 737 S.W.2d at 107. The counselor sought damages from the University. Id. We referenced the
general rule that a suit that seeks to impose liability on the State invokes the doctrine of sovereign immunity. Id. at 109. The
counselor argued that “when a violation of constitutional or property rights is alleged, the courts have a right to review the
acts of legislative and administrative bodies.” Id. We rejected this argument, noting that the counselor was not seeking review
of administrative or legislative acts but, rather, was seeking monetary damages. Id. We then held that the counselor had not
alleged that she had a vested property right that was denied. Id. We held that “because there was no pleading by the plaintiff
to take her out of the general rule that the courts of the State of Texas have no jurisdiction to impose liability on the State
without legislative consent, we sustain the judgment [dismissing her claims for lack of jurisdiction].” Id.17

17
       In dicta in Nueces County v. Ferguson, we stated that “[a]lthough a request for money damages does not affect the jurisdiction of
       the trial court over a claim of a violation of article I, section 19, even when the State is a defendant, there is no right to a money
       judgment for such a violation.” 97 S.W.3d 205, 221–22 (Tex.App.–Corpus Christi 2002, no pet.). In a footnote, we stated that “[a]

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



            suit brought for a violation of article I, section 19 of the constitution that seeks money damages would not be barred by sovereign
            immunity as the constitution itself provides a waiver of sovereign immunity for violations of this provision.” Id. at 222 n. 23.
            However, we noted that nowhere in Ferguson’s pleading had she alleged a violation of Article I, section 19. Id. at 221. These
            statements were dicta. In fact, two of the cases cited therein demonstrate that a waiver of immunity is, in fact, necessary when a
            plaintiff seeks damages for alleged violations of Article I, section 19. See Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 469
            (Tex.App.–Fort Worth 1997, writ denied) (op. on reh’g) (court lacked jurisdiction over plaintiff’s claim for damages under Article
            I, section 19); Alcorn v. Vaksman, 877 S.W.2d 390, 404 (Tex.App.–Houston [1st Dist.] 1994, writ denied) (“However, consent is
            not needed when, as here, the breach of contract (or other government action) constitutes a state constitutional violation and the
            plaintiff seeks a remedy other than money damages.... We conclude that consent is required to bring suit for a money judgment that
            would be paid from the state treasury.”). The rest of the cases cited either did not address immunity or are factually distinguishable.
            Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (takings clause of Texas Constitution expressly authorizes award of
            damages for violation; therefore, the clause provides a waiver of immunity for claims for damages); Tex. A. & M. Sys. v.
            Luxemburg, 93 S.W.3d 410, 425 (Tex.App.–Houston [14th Dist.] 2002, pet. denied) (holding that violation of Article I, section 19
            does not give rise to an action for damages without addressing sovereign immunity); Tex. State Employees’ Union/CWA Local
            6184 v. Tex. Workforce Comm’n, 16 S.W.3d 61, 67 (Tex.App.–Austin 2000, no pet.) (holding that plaintiff’s claim was not subject
            to sovereign immunity doctrine because plaintiff sought only equitable relief as opposed to monetary damages). To the extent that
            Ferguson can be read to imply that a suit for damages under Article I, section 19 is not subject to a sovereign immunity defense,
            we disapprove of that implication.



*137 The Perry decision correctly held that constitutional provisions operate as a waiver of immunity that is coextensive with
the cause of action provided, if any. Id.; see also Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149
(Tex.App.–Austin 1998, no writ) (“When the state or its agency takes, damages, or destroys public property for public use,
‘the Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental
immunity ...’ Thus, if Callaway alleged a valid claim for inverse condemnation ..., sovereign immunity does not bar the
claim.”). In other words, to demonstrate a waiver of immunity and to recover on such a claim, Sefzik must allege facts that, if
proven, would satisfy the elements of the claim. Here, as we explain next, Sefzik has not alleged a recognized property right
that is deserving of due process protections. Accordingly, he has not demonstrated a waiver of immunity for his claim for due
process violations. Perry, 737 S.W.2d at 109; cf. Callaway, 971 S.W.2d at 151 (“Callaway has a property interest that is
entitled to due-process protection.... The trial court therefore did not err in denying the Department’s plea to the jurisdiction
as to Callaway’s due-process claim.”).
[15] [16]
       To state a valid due process or due course of law claim, a plaintiff must first allege the existence of a protected right.
NCAA v. Yeo, 171 S.W.3d 863, 867–68 (Tex.2005). If the plaintiff has a protected right, the court must determine what
amount of process is due. Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930–31 (Tex.1995). To have a property interest
in a governmental benefit, a person must have more than a unilateral expectation of that benefit. Bd. of Regents v. Roth, 408
U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Smith v. Travis County Bail Bond Bd., 559 S.W.2d 693, 694
(Tex.Civ.App.–Austin 1977, no writ) (holding plaintiff had no property interest in expired license); see also *138 Shrieve v.
Tex. Parks & Wildlife Dep’t, No. 03–04–00640–CV, 2005 WL 1034086, at *5–6 (Tex.App.–Austin May 5, 2005, no pet.)
(mem. op.) (holding that Shrieve’s expectation of a permit was not a protected property interest). Rather, the plaintiff must
have a legitimate claim of entitlement to the benefit. Smith, 559 S.W.2d at 694.
[17]
    Sefzik’s permit application merely sought a governmental benefit to which he was not already entitled. As such, Sefzik
merely had an expectation of the governmental benefit—his expectation is not a protected property right. Smith, 559 S.W.2d
at 694; Shrieve, 2005 WL 1034086, at *5–6. This is not a case where a permit has been granted but has later been taken away
by the State without cause. See, e.g., House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657–58 (Tex.1965); Richardson v.
Alsup, 380 S.W.2d 923, 923 (Tex.App.–Eastland 1964, writ ref’d). Accordingly, we hold that Sefzik has failed to
demonstrate that sovereign immunity is waived for his due process and due course of law claims. Thus, the trial court did not
err in sustaining TxDot’s plea to the jurisdiction as to these claims.




                                                               V. CONCLUSION

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

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



under the Uniform Declaratory Judgments Act and under the Administrative Procedure Act. We reverse and remand those
requests for further proceedings. Finding that Sefzik’s due process and due course of law claims are barred by sovereign
immunity, we affirm the trial court’s order sustaining TxDot’s plea to the jurisdiction as to these claims.




Dissenting Opinion by Justice VELA.




VELA, Justice, dissenting.

I agree with the majority’s opinion with respect to its holding that the trial court did not err in sustaining TxDOT’s plea to the
jurisdiction as to Sefzik’s due process and due course of law claims. I, too, would hold that the trial court did not err in
sustaining TxDOT’s plea to the jurisdiction as to these claims. I would also hold that the trial court did not err in granting
TxDOT’s plea to the jurisdiction with respect to Sefzik’s claims under the UJDA and the APA.



I. The Texas Administrative Procedure Act

First, Sefzik urges that the trial court has jurisdiction pursuant to the Texas Administrative Procedure Act. TEX. GOV’T
CODE ANN. § 2001.038 (Vernon 2000). The statute provides that the validity or applicability of a rule ... may be determined
in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or
threatens to interfere with or impair, a legal right or privilege of the plaintiff. Id. While Sefzik urges that he is seeking to
determine the “applicability” of a rule, in fact, the entire APA is the “rule” he seeks to be “applied” to TxDOT’s
permit-application process.

By its plain language, section 2001.038 allows a plaintiff to challenge either the validity or applicability of agency rules. Star
Houston, Inc. v. Tex. Dep’t of Transp., 957 S.W.2d 102, 111 (Tex.App.–Austin 1997, writ denied). To qualify for a
declaratory judgment, one must seek validation or application of a rule. That same rule must interfere with or impair a legal
right or privilege before it can be applied. Sefzik’s claim is that it is the permit application process, as addressed in the
administrative code, that interferes with or impairs his legal right or privilege. The APA does not. Rather, the APA, if
applied, would expand rather than interfere or impair Sefzik’s right to judicial review. *139 Because Sefzik seeks to apply
the APA to his claim even though he claims that it is the administrative code that impairs his purported legal right or
privilege, he misapplies the explicit language of section 2001.038. I would hold that Sefzik is not entitled to relief under
section 2001.038.



II. Uniform Declaratory Judgments Act (UDJA)

The UDJA enables a person whose “rights, status, or other legal relations are affected by a statute, municipal ordinance,
contract, or franchise may have determined any question of construction or validity arising under the instrument, statute,
ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” TEX. CIV.
PRAC. & REM.CODE ANN. § 37.004(a) (Vernon 1997) (UDJA). At the very least, it is Sefzik’s burden to establish his right
to declaratory relief in order to establish jurisdiction. In other words, Sefzik must show that his rights, status or legal relations
have been affected.

Section 21.159 of the Texas Administrative Code (TAC) explicitly denies a permit or license holder contractual or property
rights from the issuance of a permit or license. It states, “Issuance of a permit or license shall not be deemed to create a
contract or property right in the permit holder or license holder.” 43 TEX. ADMIN. CODE § 21.159 (2008) (Tex. Dep’t of
Transp., Property Right Not Created). Thus, to conclude that Sefzik, as an applicant for a permit, has a property or
contractual right when the statute denies those rights to an actual permit holder is not logical. Because section 21.159 of the
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Sefzik v. Texas Dept. of Transp., 267 S.W.3d 127 (2008)



administrative code precludes Sefzik from claiming any contractual right, he has no right, status or “legal relation” as defined
by case law. See 43 TEX. ADMIN. CODE § 21.159. Thus, Sefzik does not have a status or legal relation as required by
section 37.004 of the UDJA sufficient to bring his complaint within the court’s power to declare rights, status, and other legal
relations. TEX. CIV. PRAC. & REM.CODE ANN. § 37.003(a) (Vernon 1999).

If the UDJA were construed as Sefzik insists it should be, any suit brought affecting a governmental entity would require its
participation as a party and would effectively waive the State’s immunity. This would defeat the legislative intent that
statutes be construed as written and would destroy “the legislature’s interest in managing state fiscal matters through the
appropriations process.” TEX. GOV’T CODE ANN. § 311.034 (Vernon Supp.2007).

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



All Citations

267 S.W.3d 127
End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               10
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140


                                                                   Opinion
    Original Image of 891 S.W.2d 243 (PDF)
                     891 S.W.2d 243                                CORNYN, Justice, delivered the opinion of the Court, in
                 Supreme Court of Texas.                           which PHILLIPS, Chief Justice, and HECHT and ENOCH,
                                                                   Justices, join.
  THE STATE BAR OF TEXAS, James Parsons, III,
                                                                   The sole question presented for our determination is whether
 in his capacity as President of the State Bar of Texas
                                                                   the district court below has jurisdiction of this suit, which
   and Karen Johnson, in her capacity as Executive
                                                                   complains of the failure of the State Bar of Texas to compel
    Director of the State Bar of Texas, Petitioners,
                                                                   member lawyers to provide free legal services to Texans who
                           v.                                      cannot pay for those services. We conclude that the district
     Maria GOMEZ, Alicia Naveja, and Leonardo                      court correctly dismissed the case for lack of jurisdiction.
         Chavez, on Behalf of Themselves and                       Thus, we reverse the judgment of the court of appeals and
        Others Similarly Situated, Respondents.                    remand this case to the district court with instructions to
                                                                   dismiss. 1
            No. D–4218. | Argued Jan. 20,
           1994. | Decided Dec. 22, 1994.
                                                                   After being refused free legal services, Maria Gomez, Alicia
Indigents brought action for declaratory and injunctive            Naveja, and Leonardo Chaves, on behalf of themselves
relief to require State Bar or Supreme Court to implement          and others similarly situated (collectively, Gomez), filed
mandatory pro bono program for state lawyers. The 353rd            suit in a Travis County district court against the State
Judicial District Court, Travis County, Joseph H. Hart, J.,        Bar of Texas and two of its officials at that time, James
dismissed for lack of subject matter jurisdiction, and indigents   Parsons III, President, and Karen Johnson, Executive Director
appealed. The Court of Appeals, J. Woodfin Jones, J., 856          (collectively, State Bar). Gomez contends that the State Bar,
S.W.2d 804, reversed and remanded. On application for writ         by not effectively encouraging attorneys to volunteer free
of error, the Supreme Court, Cornyn, J., held that indigents'      legal services, has illegally failed to meet the legal needs of
action to compel State Bar or Supreme Court to implement           indigent Texans. Specifically, Gomez alleges violations of the
mandatory pro bono program did not present justiciable             following provisions of the Texas Constitution: (1) Article
controversy and, therefore, district court lacked jurisdiction     I, Section 13 (open courts); (2) Article I, Section 3 (equal
over action.                                                       protection); (3) Article I, Section 3a (equal rights); (4) Article
                                                                   I, Section 19 (due course of law); and (5) Article I, Section 29
Reversed and remanded.                                             (inviolate nature of the Bill of Rights). Gomez further asserts
                                                                   violations of the Texas antidiscrimination statute, 2 the Texas
Gonzalez, J., concurred and filed opinion.                         Disciplinary Rules of Professional Conduct, 3 and the Texas
                                                                   Lawyer's Creed. 4
Hightower, J., dissented and filed opinion in which Gammage
and Spector, JJ., joined.
                                                                   The district court dismissed the case, concluding it lacked
                                                                   jurisdiction under Article V, Section 8, of the Texas
Doggett, J., noted his dissent.
                                                                   Constitution. 5 The court of appeals reversed, holding that the
                                                                   district court had jurisdiction to decide the merits of Gomez's
Attorneys and Law Firms                                            claims, but because of this Court's exclusive authority to
                                                                   regulate the legal profession in Texas, it held that the district
 *244 Lynn Liberato, Houston, Linda A. Acevedo, Austin,            court could levy only a prohibitory, and not a mandatory
Alene Ross Levy, Jeffrey T. Nobles, Houston, Broadus A.            injunction against the State Bar. 856 S.W.2d 804 (Tex.1993).
Spivey, Eric R. Galton, James M. McCormack, Austin, for            The court of appeals explained:
petitioners.

Virginia Agnew, Charles Herring, Jr., James C. Harrington,           We conclude that a district court does not have authority
Austin, for respondents.                                             to grant relief that would *245 unreasonably usurp the



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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

   supervisory control vested exclusively in the supreme          of powers dictated by Article II, Section 1 of the Texas
   court. By vesting the supreme court with supervisory           Constitution). Those duties include our obligation, as the head
   control of the practice of law, the constitution and the       of the judicial department, to regulate judicial affairs. Because
   State Bar Act grant the supreme court discretion to decide     the admission and practice of Texas attorneys is inextricably
   issues concerning the State Bar and the practice of law.       intertwined with the administration of justice, the Court must
   Whether a district court has authority to grant a particular   have the power to regulate these activities in order to fulfill
   form of injunctive relief depends, we believe, on whether      its constitutional role. See generally JIM R. CARRIGAN,
   granting such relief would effectively exercise the kind       INHERENT POWERS OF THE COURTS 2 (1973) (defining
   of supervisory discretion that is vested exclusively in the    inherent powers as those “reasonably required to enable a
   supreme court.                                                 court to perform efficiently its judicial functions, to protect
   856 S.W.2d at 815. We agree with the court of appeals'         its dignity, independence and integrity, and to make its lawful
   identification of the issue but not its conclusion.            actions effective”). The Court's inherent powers, such as the
 [1] [2] The jurisdictional question presented is complex         power to regulate the practice of law, are not jurisdictional
and in some ways unique. As a general proposition, before         powers. See Eichelberger, 582 S.W.2d at 399. These powers
a court may address the merits of any case, the court must        are administrative powers, necessary to the preservation of
have jurisdiction over the party or the property subject to       the judiciary's independence and integrity.
the suit, jurisdiction over the subject matter, jurisdiction to
enter the particular judgment, and capacity to act as a court.  [5] [6] Because the Court's power to regulate the practice
See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d        of law is an administrative one, the exercise of that power
878, 881 (Tex.1973). Subject matter jurisdiction requires that does not in and of itself deprive lower courts of general
the party bringing the suit have standing, that there be a     subject matter jurisdiction over challenges to that governance.
live controversy between the parties, and that the case be     They do not, however, have jurisdiction over all such
justiciable. See Texas Ass'n of Business v. Texas Air Control  challenges because in every individual case, jurisdiction
Bd., 852 S.W.2d 440, 443–46 (Tex.1993). If the district court  also depends on justiciability. And, as the court of appeals
lacks jurisdiction, in any of these senses, then its decision  acknowledged, for a controversy to be justiciable, there must
would not bind the parties. See Austin Indep. Sch. Dist., 495  be a real controversy between the parties that will be actually
S.W.2d at 881 (noting that collateral attacks on a judgment    resolved by the judicial relief sought. 856 S.W.2d 804, 811
are allowed when the district court lacked jurisdiction). And, (citing Texas Ass'n of Business, 852 S.W.2d at 446 and *246
a decision that does not bind the parties is, by definition, anBoard of Water Eng'rs v. City of San Antonio, 155 Tex.
advisory opinion prohibited by Texas law. See Texas Ass'n of   111, 283 S.W.2d 722, 724 (1955)). While we do not find it
Business, 852 S.W.2d at 444 (citing Article II, Section 1, of  necessary to set the precise boundaries of the district court's
the Texas Constitution as prohibiting advisory opinions).      jurisdiction under these circumstances, we hold that these
                                                               facts do not present a justiciable controversy and that the
 [3]     [4] The unique aspect of this jurisdictional inquiry, district court therefore has no jurisdiction.
as the court of appeals recognized, arises out of this Court's
power to regulate the practice of law in the State of Texas.    [7] Gomez seeks to compel either the State Bar or this
This power is derived from both statutory and inherent         Court to implement a mandatory pro bono program for Texas
powers. The primary statutory grant of power is found in       lawyers. To the extent a remedy is sought against the State
the State Bar Act, which gives the Court administrative        Bar, Gomez seeks relief from an entity that is powerless,
control over the State Bar and provides a statutory mechanism  acting alone, to implement that remedy. The State Bar's
for promulgating regulations governing the practice of law.    authority is limited to proposing regulations to this Court,
See TEX.GOV'T CODE § 81.011(c). The other source of            which may accept or reject any recommendation, in whole or
this court's power to regulate the practice of law in this     in part. See TEX.GOV'T CODE § 81.024(a). For example,
state, its inherent power, is not secured by any legislative   when the latest amendment to the rules governing lawyer
grant or specific constitutional provision, but is necessarily advertising was recommended by the State Bar, we modified
implied to enable the Court to discharge its constitutionally  the proposed amendment before promulgation. See Amended
imposed duties. See Eichelberger v. Eichelberger, 582          Order of Promulgation and Adoption of Disciplinary Rules,
S.W.2d 395, 398–99 (Tex.1979) (noting that doctrine of         West's Texas Cases Advance Sheet 884–885 issue 49, pp.
inherent power is derived, in part, from the separation        LXIX–LXXXI. Thus, the relief sought against the State Bar,



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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

even if granted by the trial court, could not resolve the dispute   a justiciable controversy. Once again, acknowledging the
between these litigants.                                            limitations on the district court's authority in this area,
                                                                    the dissenting justices nevertheless contend, “The district
 [8] Moreover, to the extent the remedies are sought against        court does, however, have jurisdiction to issue a mandatory
the Supreme Court, they would clearly impinge on the                injunction which requires the State Bar to implement a more
Court's exclusive authority to regulate the practice of law.        effective voluntary pro bono program calculated to meet
The Legislature itself implicitly acknowledged the Court's          constitutional and statutory demands which may exist.” Infra,
fundamental authority in this area when it enacted the State        891 S.W.2d at 252 (emphasis added). We are at a loss to
Bar Act as an aid to the Court in carrying out this function.       understand, and the dissenting justices do not explain, how a
See TEX.GOV'T CODE § 81.011(b). No subordinate court in             mandatory injunction to enforce a voluntary program could
Texas has the power to usurp our authority or responsibility in     ever be enforced by any court. By limiting the district court's
this area. The dissenting justices acknowledge this limitation      jurisdiction to such illusory relief, the dissenting justices
when they say, “An injunction mandating this court or the           have, in effect, conceded that the *247 trial court cannot
State Bar to implement a mandatory pro bono program would           grant plaintiffs the real relief they seek.
be improper. It would inappropriately involve the district
court in the regulation of the practice of law.” Infra, 891         Our decision that the district court lacks jurisdiction does not,
S.W.2d at 252 (citations omitted).                                  however, leave the parties without a forum in which to seek
                                                                    redress of their grievances. This Court, in the exercise of its
This is not to say that all remedies bearing upon the regulation    constitutional responsibilities, wants and needs input from
of the legal profession would be unacceptable infringements         interested persons concerning its supervisory responsibility
on the inherent powers of the Court. Had this Court actually        over Texas lawyers. Ordinarily, interested parties would be
promulgated rules establishing a pro bono program and had           free to informally petition this Court in its administrative
Gomez challenged the constitutionality of such rules, the           capacity, to urge reconsideration of the proper constitutional
district court would have jurisdiction to decide, in the first      mandates for this Court's regulation of attorney conduct.
instance, whether such rules met constitutional standards. See      However, given the potentially far-reaching effects of this
O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding          particular challenge to our scheme of regulation, we direct
the trial court's decision on a constitutional challenge to the     that this matter be placed on the Court's administrative
rules of disciplinary conduct promulgated by the Court).            agenda for further consideration. All interested parties have
In due course, we would review any adverse determination            until April 14, 1995, to submit their written arguments on
in our adjudicative capacity. See Cameron v. Greenhill,             the merits of the underlying claims. Cf. Barger v. Brock,
582 S.W.2d 775, 777 & n. 3 (Tex.1979) (holding that                 535 S.W.2d 337, 342 (Tenn.1976) (ordering a lower court
the Court could both promulgate a rule and determine its            to dismiss a challenge to the Supreme Court's rules but
constitutionality). The important distinction between such a        directing the lower court to forward the petitions for further
case and the one at hand is that in the former case, the            consideration as a direct motion in the Supreme Court).
district court would not be cast in the impermissible role of
effectively promulgating policies and regulations governing         Accordingly, we reverse the judgment of the court of appeals
Texas lawyers. Such a case would be justiciable because             and remand to the district court with instructions to dismiss
the district court would be capable of rendering a judgment         for want of jurisdiction.
that accords the parties complete relief, subject of course to
appellate review.

                                                                    DOGGETT, J., dissents.
But when, as here, the essence of a complaint is that
this Court has failed to establish rules governing some             GONZALEZ, Justice, concurring.
aspect of lawyer conduct, a district court has no authority         This case presents significant issues of public policy.
to assume this Court's authority to regulate the legal              Respondents seek a court declaration that indigent citizens
profession. This prohibition includes the rendition of orders       of our State are entitled to free legal services in civil cases.
that would, as a practical matter, preempt this Court's             They also seek an injunction that would require the State Bar
authority. Because the district court cannot effect a remedy        of Texas to implement a program mandating pro bono legal
that would resolve this dispute, this case does not present
                                                                    services from all attorneys licensed to practice law in Texas. 1


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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

For the reasons stated in the majority opinion, I agree with         1988, we signed an order that made the IOLTA program
the trial court and this Court that this case does not present       mandatory. Id. (amended December 13, 1988). We took this
a justiciable controversy within the trial court's jurisdiction. I   action under our authority to regulate the practice of law.
thus concur in the judgment.
                                                                     Realistically, the Court has progressed as far as it can to
I write separately because I disagree with the Court                 extend legal services to the poor. A mandatory pro bono
prolonging resolution of the mandatory pro bono issue by             program is quite different from the IOLTA program. This
placing the matter “on the Court's administrative agenda for         Court lacks the resources and/or the political will to attempt
further consideration.” 891 S.W.2d at 247. This procedure            further resolution of the profound problem of providing
is unnecessary, and it gives Respondents false hope that a           legal services for indigent citizens. I would tell Respondents
majority of the Court is seriously considering implementing          frankly that we are not going to order mandatory pro bono.
such a sweeping change in the practice of law in Texas. As           The Legislature is better suited to tackle this social problem.
for the invitation for interested parties to submit more briefs
to the Court, I think that any information which anyone gives
the Court will merely duplicate what we already have for             HIGHTOWER, Justice, joined by GAMMAGE and
determining the merits of Respondents' request. The issue of         SPECTOR, Justices, dissenting.
how to provide legal services for the indigent is a problem in       Because I believe that the district court has jurisdiction of this
our society that has been widely debated and studied. More           suit and that the Court would effectively deny the Plaintiffs'
hearings, briefs, or argument before us will be of little utility.   access to a meaningful forum in which to seek redress of their
                                                                     grievances, I respectfully dissent.
Mandating any program for legal services to the poor
is a political question, over which this Court in its
administrative capacity and the Legislature would have                                               I.
jurisdiction. However, in my opinion, any attempt to draft
and implement such a program would unnecessarily divert              The jurisdictional inquiry begins with Article V, Section 8 of
the Court from its primary business of adjudicating disputes.        the Texas Constitution which provides in part:
The Legislature is better suited to undertake the activities
                                                                                  District Court jurisdiction consists
necessary for drafting and implementing a program to provide
                                                                                  of exclusive, appellate, and original
indigents legal services. Different program options, as well
                                                                                  jurisdiction of all actions, proceedings
as their legal and constitutional ramifications, will need to be
                                                                                  and remedies, except in cases where
considered. Since the problem of access to legal services faces
                                                                                  exclusive, appellate, or original
society as a whole, the burden of resolving it does not solely
                                                                                  jurisdiction may be conferred by this
rest on the legal profession.
                                                                                  Constitution or other law on some
                                                                                  other court, tribunal or administrative
I acknowledge that a very real problem exists for individuals
                                                                                  body.
who seek legal representation but lack the financial resources
to retain counsel. Studies clearly document that our poor            Tex. Const. art. V, § 8 (emphasis added). The district
citizens need greater access to legal services. See, e.g.,           court held that it lacked jurisdiction because the legislature
COMMITTEE ON LEGAL SERVICES TO THE POOR IN                           had conferred jurisdiction over matters concerning the
CIVIL MATTERS, STATE BAR OF TEXAS, REPORT                            administration of the State Bar upon this Court in the State
ON MANDATORY PRO BONO (1991); STATE BAR                              Bar Act. See Tex.Gov't Code Ann. § 81.011(c) (West 1988).
OF TEXAS ET AL., LEGAL NEEDS OF THE POOR                             I disagree.
ASSESSMENT PROJECT (1991). This need led the Court
to create the Texas Equal Access to Justice foundation in            What the legislature conferred upon this Court was
1984 to administer the voluntary *248 IOLTA (Interest on             “administrative control over the state bar.” Tex.Gov't
Lawyers' Trust Accounts) program. 2 See TEXAS EQUAL                  Code Ann. § 81.011(c) (West 1988) (emphasis added).
ACCESS TO JUSTICE PROGRAM §§ 1–9 (effective May                      “Jurisdiction” within the meaning of Article V, Section 8
19, 1994), reprinted in TEX.GOV'T CODE, tit. 2, subtit. G            includes only the judicial powers of the courts. These judicial
app. (STATE BAR RULESS art. XI, §§ 1–9). In December,                powers are typically the only ones at issue when the Court



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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

makes statements such as: “[J]udicial power is divided among         to regulate the practice of law.” Tex.Gov't Code Ann. §
the various named courts by means of express grants of               81.011(b) (West 1988).
‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d
395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex.               The State Bar's actual power in this regard is limited to
553, 62 S.W.2d 641 (1933)). But Texas courts have duties in          proposing regulations to this Court, which could reject or
addition to their judicial responsibilities.                         amend any such recommendation. Under a strict concept
                                                                     of justiciability, one could argue that there is no justiciable
I do not disagree that this Court's inherent power to regulate       controversy between the State Bar and the Plaintiffs. See
the practice of law is more expansive than the administrative        Board of Water Eng'rs v. City of San Antonio, 155 Tex.
authority that the legislature has “granted” to us. See Daves v.     111, 283 S.W.2d 722, 724 (1955) (defining “justiciable
State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ              controversy” as the requirement that there shall be a
ref'd n.r.e.) (noting the Court's inherent power to adopt rules      real controversy between the parties that will actually be
governing the practice of law by extra-statutory means); see         determined by the judicial declaration sought). On the
also Tex.Gov't Code Ann. § 81.011(b) (West 1988) (stating            other hand, more modern notions of justiciability would
that the State Bar was a legislative creation passed to aid          acknowledge that the State Bar is an acceptable “surrogate
the Court in exercising its judicial power). See State Bar v.        defendant” for the Court in this matter. In fact, the State Bar
Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does              has served as such a surrogate in several recent cases. See,
not necessarily follow that this inherent power is so great          e.g., O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State
that it deprives the state's courts of general jurisdiction of the   Bar v. Tinning, 875 S.W.2d 403 (Tex.App.—Corpus Christi
authority to hear a challenge pertaining to the governance of        1994, writ denied); Musslewhite v. State Bar, 786 S.W.2d 437
the legal profession.                                                (Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves
                                                                     v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985,
The proper question to determine whether the district court          writ ref'd n.r.e.). 2 For these reasons, I conclude that the
has jurisdiction over this case is not whether this Court, in        district court's jurisdiction is not suspect on this basis.
its administrative capacity, could act in a manner that would
decide or moot the issues raised. Rather, three questions must
be asked: (1) *249 whether the State Bar and its officers
are the proper parties in this case; (2) if so, whether the                                         II.
district court is an appropriate forum to hear a matter over
                                                                     Next we must decide whether the district court has subject
which this Court exercises such extensive authority; and (3)
                                                                     matter jurisdiction over a challenge to an administrative
whether the failure to act, as opposed to an affirmative action,
                                                                     decision of this Court. I believe the answer is yes.
nevertheless presents an issue over which the district court
                                                                     Promulgating court rules in our administrative capacity does
may exercise authority. I would answer all three questions in
                                                                     not and cannot imply a concomitant determination by this
the affirmative.
                                                                     Court in its judicial capacity that such rules are constitutional
                                                                     in every respect. Hopefully, this Court does not abandon its
However couched, the Plaintiffs' claims are actually directed
                                                                     collective knowledge of the Constitution when it exercises
not so much at the State Bar 1 as at an alleged deficiency           its rulemaking authority, and surely it would not knowingly
in the current system of lawyer regulation established by            promulgate any rule it regarded as violating the United States
this Court and the legislature. This Court, both by legislative      or Texas Constitutions. However, we are not omniscient. It is
grant and its inherent powers, possesses authority to regulate       simply beyond the capacity of this or *250 any other court to
the practice of law and exercises control over the State             envision every possible constitutional ramification or factual
Bar. See Tex.Gov't Code Ann. §§ 81.011, 81.024(a) (West              application of its orders or rules, particularly before it has
1988) (clarifying this Court's supervisory role over the State       the benefit of a case and controversy that vigorously explores
Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State              both sides of the issues. See Order of the Supreme Court of
Bar Act was passed in aid of this court's exercise of its            February 28, 1966, Transmitting Amendments to Rules of
inherent power to regulate the practice of law.”) (footnotes         Civil Procedure, 383 U.S. 1029, 1032 (Black, J., dissenting)
omitted). The legislature recognized the Court's fundamental         (stating that “the Court's transmittal does not carry with it a
responsibility in this area when it passed the State Bar Act “in     decision that the amended rules are all constitutional” because
aid of the judicial department's powers under the constitution       “such a decision would be the equivalent of an advisory


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

opinion which, I assume the Court would unanimously                  is doubtful that the Legislature has the power to impose a
agree, we are without constitutional power to give.”); Grand         mandatory pro bono system upon the State Bar.
Bahama Petroleum Co. v. Canadian Transp. Agencies, 450
F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district          Some state supreme courts have expressly provided for the
court had jurisdiction to consider a constitutional challenge        filing of petitions challenging their orders and rules directly
to a federal rule of civil procedure, noting that “[w]hile           with that court. See, e.g., Aldridge v. Watling Ladder Co.,
the [United States Supreme] Court certainly considers the            275 Ark. 225, 628 S.W.2d 322, 323 (1982) (holding that
constitutionality of a rule recommended by a committee, it is        a case involving construction of supreme court rule should
not possible for its members to anticipate every constitutional      have been certified to supreme court under Supreme Court
objection.”). This is especially true when, as here, it is the       Rule 29(1)(c)); *251 Goetz v. Harrison, 153 Mont. 403, 457
failure to provide for some constitutionally mandated system         P.2d 911, 912 (1969) (stating that questions involving the
that is alleged.                                                     constitutionality of a supreme court rule should be presented
                                                                     to the supreme court in an “appropriate original proceeding.”)
Nor would the mere determination by the district court that
the current system is constitutionally deficient invade this         This Court has, with narrow exceptions, never provided such
Court's inherent power to regulate the practice of law. We           a procedure. 4 Because supreme court rules must comport
have no inherent power to create a system that violates the          with the Constitution and because the judicial branch is
Constitution, just as the legislature has no power to pass           entrusted with interpreting the Constitution, jurisdiction to
unconstitutional statutes. See Reese v. State, 772 S.W.2d 288,       consider challenges to rules must exist at the district court
290 (Tex.App.—Waco 1989, pet. ref'd) (reasoning that a               level. This view comports with the general understanding of
court may not enact a procedural rule that conflicts with a          Texas law, and with what is probably the majority rule in most
provision of the constitution); Picard v. State, 631 S.W.2d          of the states that have been confronted with the issue. See,
761, 763 (Tex.App.—Beaumont 1981, no writ) (holding that             e.g., Beard v. North Carolina State Bar, 320 N.C. 126, 357
the rule-making authority of any court may not conflict with         S.E.2d 694, 695 (1987) (holding that a “direct challenge of the
constitutional provisions and that any unconstitutional rule         constitutionality of an order of this Court ... must be litigated
is inoperative). For example, the Constitution provides that         as an original action in the General Court of Justice.”);
this Court may not appoint to the State Commission on                Berberian v. Kane, 425 A.2d 527, 528 n. 2 (R.I.1981)
Judicial Conduct more than one judge from the same Supreme           (holding that a rule may be challenged in a case seeking
Judicial District. Tex. Const. art. V, § 1–a(2). If the Court        declaratory judgment that the rule was unconstitutional).
breached this restriction, surely it would be answerable to
the legal system. If this be conceded, there can be only two
possible mechanisms to enforce constitutional restrictions on
the Court acting in its administrative capacity: a suit against                                    III.
the Court in a lower court or an original proceeding in the
                                                                     The question remains whether this case is nonjusticiable
Court itself. Either of these courses is permissible, but at least
                                                                     because the district court does not have jurisdiction to grant
one is necessary. Under the Court's analysis, however, there
                                                                     the relief sought. Plaintiffs seek a declaratory judgment
is no mechanism to enforce constitutional restrictions on the
                                                                     that the State Bar is violating their constitutional and
Court acting in its administrative capacity. In this case, the
                                                                     statutory rights. Among other things, Plaintiffs requested
Plaintiffs are left without a meaningful forum in which to
                                                                     that the district court “[d]eclare that the official policies,
seek redress of their grievances. The Court has directed “that
                                                                     actions, and failure to act alleged herein, which involve the
this matter be placed on the Court's administrative agenda
                                                                     refusal to Defendants to adequately provide for the legal
for further consideration.” In essence, the Court suggests that
                                                                     services needed by Plaintiffs and the class, violate the Texas
the Plaintiffs directly petition the Court for redress of their
                                                                     Constitution and Tex.Civ.Prac. & Rem.Code § 106.001.”
“complaint.” However, the Court is not required to consider
                                                                     Plaintiffs also seek an injunction prohibiting the State Bar
or take any action on the “petition”—ever! Obviously this
                                                                     from continuing to violate the rights of indigent citizens
does not constitute a meaningful forum. 3 It is also unclear         and an injunction mandating the State Bar to implement
whether the Plaintiffs could seek redress of their grievances in     an adequate and more effective pro bono program. First,
the Legislature. Based upon the Court's expansive description        declaratory relief is proper whether or not further relief is
of its inherent powers to regulate the practice of law, it           or could be claimed. See Tex.Civ.Prac. & Rem.Code Ann.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

§ 37.003(a). The district court has the authority to render a      do not now instruct the legislature as to the specifics of the
judgment declaring the constitutional and statutory rights of      legislation it should enact....”
Plaintiffs and, also, to declare whether such rights have been
violated. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003. I fail       Moreover, a court should not overstep the line between
to see the distinction between the district court's jurisdiction   adjudication and regulation. Regulation of the practice of
to determine the constitutionality of the official policies,       law is within the exclusive control of this Court. Tex.Gov't
actions, and failure to act caused by the refusal of the State     Code Ann. § 81.011(c) (Vernon 1986); Daves v. State Bar,
Bar to adequately provide for the legal services needed by         691 S.W.2d 784, 788–89 (Tex.App.—Amarillo 1985, writ
Plaintiffs and the district court's jurisdiction to determine      ref'd n.r.e.). An injunction mandating this Court or the State
the constitutionality of rules proposed by the State Bar           Bar to implement a mandatory pro bono program would be
and promulgated by this Court. In both cases, the district         improper. It would inappropriately involve the district court
court's determination could be reviewed by this Court in its       in the regulation of the practice of law. See Edgewood Indep.
adjudicative capacity. Contrary to the Court's assertion, the      Sch. Dist. v. Kirby, 777 S.W.2d at 399; Edgewood Indep. Sch.
determination of the constitutionality of the refusal to the       Dist. v. Kirby, 804 S.W.2d at 493–94. The district court does,
State Bar to adequately provide for the legal services needed      however, have jurisdiction to issue a mandatory injunction
by Plaintiffs would not cast the district court in the role of     which requires the State Bar to propose and implement a
effectively promulgating policies and regulations governing        more effective voluntary pro bono program calculated to meet
Texas lawyers.                                                     constitutional and statutory demands which may exist. Id. In
                                                                   addition, the district court would have jurisdiction to issue a
Concerning injunctive relief, a prohibitory injunction, one        mandatory injunction which requires the State Bar to propose
prohibiting the State Bar from continuing to violate Plaintiffs'   regulations creating a mandatory pro bono program to this
rights, would be proper in the event the district court holds      Court.
such rights are being violated. It is axiomatic that a court
has the power to enforce its orders determining the legal          Finally the question remains whether this case is
rights of the parties. Morrow v. Corbin, 122 Tex. 553, 62          nonjusticiable because it alleges constitutional sins of
S.W.2d 641, 644–45 (1933). “Reason and experience argue            omission. I believe that the Plaintiffs' complaint that
that courts empowered ... [to decide] constitutional mandates      the State Bar has failed to act as required by various
cannot be left without the means to order appropriate relief.”     constitutional and statutory provisions does not affect the
Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991).               justiciability of their claims. Distinctions between an act and
Furthermore, a mandatory injunction could also be proper.          an omission in this context are not helpful. See generally
See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,           Lisa E. Heinzerling, Note, Actionable Inaction: Section
399 (Tex.1989); Edgewood Indep. Sch. Dist. v. Kirby, 804           1983 Liability for Failure to Act, 53 U.CHI.L.REV. 1048,
S.W.2d 491, 494 (Tex.1991); Terrazas, 829 S.W.2d at 717–           1057–63 (1986) (criticizing the entire act/omission analysis
20. However, courts should tread lightly when dealing with         in the context of governmental responsibilities under the
powers traditionally reserved to other areas of government.        Constitution, primarily because its tort-based reasoning is ill-
For example, in Terrazas, although we held that the courts         suited to explain existing doctrine). If this Court concluded
could order apportionment, we were careful to state,               that the district court lacked jurisdiction over the Plaintiffs'
                                                                   claims because they allege an omission rather than an act,
              *252 [T]hat power ought to be used                   the Plaintiffs could simply recast their allegations. Thus,
             only after investigation and careful                  the difference between acts and omissions in this highly
             consideration of the many, diverse                    unusual context seems semantic. See David A. Fischer,
             interests affected, after due deference               Causation in Fact in Omission Cases, 1992 UTAH L.REV.
             to the Legislature to rectify its own                 1335, 1339 (“[A]s a matter of semantics, any omission
             statutes, and after due regard for the                can be characterized as part of a larger encompassing
             effect of the court's order on the                    act.”). The mere fact that the Plaintiffs have alleged an
             election process.                                     unconstitutional omission cannot deprive the district court of
                                                                   jurisdiction when it clearly would have jurisdiction to review
829 S.W.2d at 718. Likewise, in Edgewood Indep. Sch. Dist.
                                                                   an unconstitutional act.
v. Kirby, 777 S.W.2d at 399, we stated, “Although we have
ruled the school financing system to be unconstitutional, we


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

For the foregoing reasons, I respectfully dissent.
                                                                     Parallel Citations

                                                                     38 Tex. Sup. Ct. J. 140


Footnotes
1      This disposition of the limited issue before us means that we do not, as Justice Gonzalez's concurring opinion does,
       comment on the merits of the underlying claims.
2      TEX.CIV.PRAC. & REM.CODE § 106.001. This statute generally prohibits the state or its agents from discriminating
       against persons because of race, religion, color, sex, or national origin. Remedies available to a successful litigant include
       injunctive relief, attorney's fees, and court costs. Id. § 106.002. A person who knowingly violates this statute is subject
       to a fine and confinement in the county jail. Id. § 106.003.
3      TEX.DISCIPLINARY R.PROF.CONDUCT, pmbl. ¶ 6, reprinted in TEX.GOV'T CODE, tit. 2, subtit. G app. (West
       Supp.1992) (STATE BAR RULES art. X, § 9) (“The provision of free legal services to those unable to pay reasonable
       fees is a moral obligation of each lawyer as well as the profession generally.”).
4      Texas Lawyer's Creed—A Mandate for Professionalism (adopted by the Supreme Court of Texas and the Court of
       Criminal Appeals of Texas, Nov. 7, 1989), reprinted in TEXAS RULES OF COURT 487 (West 1994). In the Creed, lawyers
       are urged to commit themselves “to an adequate and effective pro bono program.” Id.
5      Section 8 defines the district courts' jurisdiction, but excepts those cases where jurisdiction has been conferred on some
       other court. See TEX. CONST. art. V, § 8. The district court held that this Court's power to regulate the practice of law
       was sufficient to bring this case within Section 8's exception.
1      Respondents deny that they are seeking a mandatory pro bono program, but they do not suggest any other method of
       providing legal services to the indigent.
2      The IOLTA foundation administers a program wherein lawyers convert their non-interest bearing trust accounts to interest
       bearing accounts. Financial institutions remit all interest earned on IOLTA accounts to the IOLTA foundation. The
       foundation in turn channels money to organizations that deliver civil legal services to the poor. Since inception of the
       mandatory IOLTA program, the foundation has distributed approximately $42 million to assist people unable to afford
       an attorney in civil actions.
1      The current pro bono policy was adopted by the State Bar of Texas Board of Directors in May 1992. The policy includes
       an aspirational goal of fifty (50) hours per year and an annual voluntary pro bono reporting system.
2      We need not decide in this case whether Plaintiffs could have proceeded against this Court itself. Like other state courts
       of last resort, we have been named defendants in district court at least once before. Cameron v. Greenhill, 582 S.W.2d
       775 (Tex.1979); see also CWA Local 1044 v. Chief Justice of the Sup. Ct., 118 N.J. 495, 572 A.2d 613 (1990) (challenging
       a New Jersey Supreme Court decision made in the course of labor negotiations with its judicial employees); American
       Trial Lawyers Ass'n v. New Jersey Sup. Ct., 66 N.J. 258, 330 A.2d 350 (1974) (challenging a New Jersey Supreme
       Court order limiting contingent attorney's fees in certain tort cases); Vermont Sup. Ct. Admin. Directive No. 17 v. Vermont
       Sup. Ct., 154 Vt. 217, 576 A.2d 127 (1990) (challenging a Vermont Supreme Court order postponing civil jury trials due
       to budgetary shortfalls). But some jurisdictions expressly proscribe suing the state's highest court. See, e.g., Goetz v.
       Harrison, 153 Mont. 403, 457 P.2d 911 (1969) (holding that a lower court has no supervisory control over the Supreme
       Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions).
3      It is unclear whether the Court is creating a “parallel administrative docket” in which interested persons could petition the
       Court for various forms of relief. Are these “petitioners” entitled to timely consideration of their petition and oral argument?
       See Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976) (“[I]n order that the parties may have their insistences considered,
       we direct that all pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat
       the pleadings as constituting a motion to vacate or modify Rule 42. This matter will be docketed for oral argument, in
       Knoxville, at the heel of the calendar on 7 May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The
       sole issue before the Court is the constitutionality of Rule 42.”).
4      Our lack of an original proceeding may actually be salutary. This Court's resolution of complex questions concerning
       the constitutionality of our rules would most likely be enhanced by the fuller development of issues and arguments that
       usually attend the appellate process.


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.                                                  8
Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390




   KeyCite Yellow Flag - Negative Treatment
Called into Doubt by City of McKinney v. Hank’s Restaurant Group, L.P., Tex.App.-Dallas, September 18, 2013
                                                        893 S.W.2d 432
                                                     Supreme Court of Texas.

                                      TEXAS EDUCATION AGENCY et al., Petitioners,
                                                          v.
                                        Gary W. LEEPER et ux. et al., Respondents.

No. D–2022. | June 15, 1994. | Rehearing Overruled March 16, 1995. | Opinion by Justice Gonzalez Concurring in
                         Part and Dissenting in Part on Rehearing filed March 16, 1995.


Home school parents and home school curriculum providers brought class action suit against state officials, challenging
construction of compulsory attendance law. The District Court No. 17, Tarrant County, Charles J. Murray, J., awarded
declaratory and injunctive relief, and state appealed. The Fort Worth Court of Appeals, Hal M. Lattimore, J., 843 S.W.2d 41,
affirmed, and writ of error was sought. The Supreme Court, Hecht, J., held that home school can be private school within
meaning of statutory exemption to compulsory attendance law, so long as children are taught in bona fide manner from
curriculum designed to meet basic education goals.

Affirmed in part and reversed in part.

Gonzalez, J., concurred in part, dissented in part, and filed opinion.


Attorneys and Law Firms

*433 Janet Little Horton, Houston, S. Anthony Safi, El Paso, John Owens, Dan Morales and James C. Todd, Austin, for
petitioners.

Chester G. Ball, Arlington, J. Shelby Sharpe, Fort Worth, Morris Harrell, Dallas, John W. Whitehead, Charlottesville, VA,
for respondents.

Opinion

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, DOGGETT,
CORNYN, GAMMAGE, ENOCH and SPECTOR, Justices, join, and in Parts I, II and III of which GONZALEZ, Justice,
joins.


All school-age children in Texas are required to attend public schools a minimum number of days each year unless exempted
by law. TEX.EDUC.CODE § 21.032. Among those exempt from this requirement is “any child in attendance upon a private
or parochial school which shall include in its course a study of good citizenship”. Id. § 21.033(a)(1). The dispute in this class
action centers on whether the private school exemption includes children who are taught at home, in a bona fide manner, a
curriculum designed to meet certain basic education goals, including a study of good citizenship. The district court construed
the exemption to include such children and permanently enjoined all school districts and their attendance officers from
enforcing the compulsory attendance law based upon any other reading of § 21.033(a)(1). The district court also awarded
attorney fees. The court of appeals affirmed. 843 S.W.2d 41.

The relative merits of home schooling and public education are currently the subject of a vigorous and sometimes emotional
debate in which the legal issues we address here do not require us to take part. We agree that Texas law does not require
children who are taught in legitimate home schools to attend public schools. We therefore affirm the lower courts’
construction of § 21.033(a)(1) and the award of attorney fees. The State has charged a number of parents who educate their
children at home with criminal violations of the compulsory attendance law. The district court enjoined all further such
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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

prosecutions not based upon a proper construction of the private school exemption. We conclude, however, that a permanent
injunction against school districts and their agents is unwarranted, as there is no showing that school officials will refuse to
abide by our decision in this case. Accordingly, we reverse the injunctive portion of the lower courts’ judgments.




                                                                     I



                                                                     A

The important features of the historical backdrop to this litigation are not among the issues in dispute and may be described
as follows.

At the beginning of this century the public school system of Texas was not well developed. No more than ten percent of
school-age children attended public schools, according *434 to the uncontradicted evidence at trial, and as there were few
private and parochial schools in the State, many children were taught at home.

Public school attendance was not mandatory in Texas until 1916. The first compulsory attendance law, enacted the prior year,
required children between eight and fourteen years of age to attend public school for 60 days during the 1916–1917 school
year, 80 days the following year, and 100 days each year afterward. Act of March 8, 1915, 34th Leg., R.S., ch. 49, § 1, 1915
Tex.Gen.Laws 92, 93. Parents (and persons acting as parents) were responsible for assuring that children complied. Id. § 9, at
96–97. Failure to discharge this responsibility was a misdemeanor punishable by a fine, unless the person in the parental role
could not control the child. Id. A child who refused to attend school could be disciplined by the juvenile court as a habitual
truant. Id. The statute authorized appointment of attendance officers to enforce its provisions. Id. §§ 6–7, at 94–95.

Over the years the details of these statutory provisions have changed, but the basic structure remains in place.1 Now children
from about six to seventeen years of age must attend public school at least 170 days each school term. TEX.EDUC.CODE §
21.032(a).2 A parent or person in that role who has been warned in writing to require a child to comply with the compulsory
attendance law, and who fails to do so, may be fined, and a child’s refusal to attend school may be sanctioned by the juvenile
court. Id. § 4.25(a)-(b);3 *435 TEX.FAM.CODE § 51.03(b)(2).4 Each day a child is absent after warning is given or
attendance is ordered is a separate offense. TEX.EDUC.CODE § 4.25(a). Also, a parent’s rights in a child may be terminated
if the parent fails to enroll a child in public school as required by law. TEX.FAM.CODE § 15.02(a)(1)(J)(i).5

1
       Present statutes omit one significant provision of the 1915 law: “Any child within the compulsory school attendance ages who
       shall be insubodinate [sic], disorderly, vicious or immoral in conduct, or who persistently violates the reasonable rules and
       regulations of the school which he attends, or who otherwise persistently misbehaves therein so as to render himself an
       incorrigible, shall be reported to the person exercising the duties of attendance officer of said school, who shall proceed against
       such child in the juvenile court as herein provided.” Act of March 8, 1915, 34th Leg., R.S., ch. 49, § 9, 1915 Tex.Gen.Laws 92, 97.



2
       “Unless specifically exempted by Section 21.033 of this code or under other laws or unless a child is at least 17 years of age and
       has been issued a high school equivalency certificate, every child in the state who is as much as six years of age, or who is less than
       seven years of age and has previously been enrolled in first grade, and who has not completed the academic year in which his 17th
       birthday occurred shall be required to attend the public schools in the district of his residence or in some other district to which he
       may be transferred as provided or authorized by law a minimum of 170 days of the regular school term of the district in which the
       child resides or to which he has been transferred.”



3
       Until 1993, § 4.25 provided as follows:
            (a) If any parent or person standing in parental relation to a child, within the compulsory school attendance ages and not
            lawfully exempt or properly excused from school attendance, fails to require such child to attend school for such periods as
            required by law, it shall be the duty of the proper attendance officer to warn, in writing, the parent or person standing in

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390


            parental relation that attendance must be immediately required. If after this warning the parent or person standing in parental
            relation intentionally, knowingly, recklessly, or with criminal negligence fails to require the child to attend school as required
            by law, the parent or person standing in parental relation commits an offense. The attendance officer shall file a complaint
            against him in the county court, in the justice court of his resident precinct, or in the municipal court of the municipality in
            which he resides or in the municipality or justice of the peace precinct in which the school is located. In addition, if the child
            has been voluntarily absent from school for 10 or more days or parts of days within a six-month period or three or more days
            or parts of days within a four-week period without the consent of his parents, the attendance officer shall refer the child to the
            county juvenile probation department for action as conduct indicating a need for supervision under Section 51.03(b), Family
            Code. A court in which a complaint is filed under this subsection shall give preference to a hearing on the complaint over
            other cases before the court. An offense under this section is punishable by a fine of not less than $5 nor more than $25 for the
            first offense, not less than $10 nor more than $50 for the second offense, and not less than $25 nor more than $100 for a
            subsequent offense. Each day the child remains out of school after the warning has been given or the child ordered to school
            by the juvenile court may constitute a separate offense. If the court probates the sentence, the court may require the defendant
            to render personal services to a charitable or educational institution as a condition of probation.
            (b) It is a defense to prosecution under Subsection (a) of this section that the parent or person standing in parental relation to
            the child is unable to compel the child to attend school.
         In 1993, there were three amendments, each without reference to the others, to this version of § 4.25. See Act of May 18, 1993,
         73rd Leg., R.S., ch. 358, § 2, 1993 Tex.Gen.Laws 1528, 1629–30; Act of May 28, 1993, 73rd Leg., R.S., ch. 347, § 6.01, 1993
         Tex.Gen.Laws 1479, 1527–28; Act of May 29, 1993, 73rd Leg., R.S., ch. 930, § 1, 1993 Tex.Gen.Laws 3949, 3950. None of
         these amendments are important to the issues in this case.



4
       “Conduct indicating a need for supervision is ... the unexcused voluntary absence of a child on 10 or more days or parts of days
       within a six-month period or three or more days or parts of days within a four-week period from school without the consent of his
       parents....”



5
       “[A] petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be
       granted if the court finds that ... the parent has ... been the major cause of ... the failure of the child to be enrolled in school as
       required by the Texas Education Code....”



The first compulsory attendance statute exempted several classes of children from compliance, including “[a]ny child in
attendance upon a private or parochial school or who is being properly instructed by a private tutor.” Act of March 8, 1915,
34th Leg., R.S., ch. 49, § 2(a), 1915 Tex.Gen.Laws 92, 93. This provision was amended in 1923 to add two requirements for
private and parochial schools and to remove the reference to private tutors, so that the statute was changed to exempt:

            Any child in attendance upon a private or parochial school which shall include in its course a study of
            good citizenship, and shall make the English language the basis of instruction in all subjects....

Act approved March 23, 1923, 38th Leg., R.S., ch. 121, § 2, 1923 Tex.Gen.Laws 255, 255. At the time, according to all the
evidence presented in this case, a child pursuing a bona fide course of study at home designed to meet the basic education
goals of reading, spelling, grammar, mathematics and good citizenship was considered to be attending a private school. Thus,
the 1923 amendment to the exemption, omitting the reference to private tutors, did not affect children schooled at home. The
only other times the exemption was amended was in 1969 and 1971, when the English language restriction was first moved
and then dropped. See Act of May 7, 1969, 61st Leg., R.S., ch. 289, § 1–3, 1969 Tex.Gen.Laws 871, 871; Act of May 20,
1971, 62nd Leg., R.S., ch. 405, § 40, 1971 Tex.Gen.Laws 1449, 1513. The exemption, as we noted at the outset, is now
codified as § 21.033(a)(1), TEX.EDUC.CODE.

Enactment of the compulsory attendance law in 1915 did not end home schooling; some children continued to be educated at
home just as they had before. The important fact, for purposes of analysis of the legal issues before us, is that some
school-age children have been educated at home since before the compulsory attendance law was passed in 1915, and the
State never attempted to prohibit or even restrict home schooling, or to allege a violation of the compulsory attendance law
based solely on a child’s being taught at home, until 1981.


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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

That year, a staff attorney for the Texas Education Agency advised an assistant superintendent for one school district that
“home instruction is not one of the enumerated exemptions” to the compulsory attendance law.6 He added:

6
        The Texas Education Agency is actually the Central Education Agency, which is composed of the State Board of Education, the
        State Board for Vocational Education, the commissioner of education, and the State Department of Education. TEX.EDUC.CODE
        § 11.01. The State Board of Education and the State Board for Vocational Education are identical. Id. § 11.24. The SBOE, which
        has fifteen members elected from districts in the state, is responsible for implementing legislative policy for the public school
        system. Id. §§ 11.2101, 11.24. The commissioner of education is the executive officer of the TEA and the SBOE. Id. §§ 11.25,
        11.52. The State Department of Education is the professional, technical and clerical staff of the TEA. Id. § 11.61.




    In order to avoid the sanctions of compulsory attendance, home instruction would, *436 most likely, have to be qualified
    as a private school. Unfortunately, there are no provisions in the law which define a private school for these purposes.

      ... [A]s a result of the present status of the law and as a result of the general absence of legislative guidance in this area,
      school districts and parents alike would be well advised to proceed with caution in this area. In light of all this
      confusion, it would appear that the courts would be the proper forms [sic] in which to evaluate any particular home
      study situation as a prospective exemption from compulsory attendance.

    The following year the TEA’s assistant general counsel expressed an even stronger position in response to an inquiry by
    parents considering home schooling:

      The compulsory student attendance laws of the State of Texas do not permit students to be taught at home.... The
      exemption statute provides that a child in attendance upon a private or parochial school which shall include in its course
      a study of good citizenship is exempt from the requirements of compulsory attendance. There is no exemption for home
      tutorial programs.

      ... A school, whether private, public, or parochial, must include retained and qualified teachers; a collection of students
      from different families; a curriculum that includes the basic academics as are taught in public schools; and some
      organizational structure that assures that instruction does, in fact, occur.

       The continuous policy of this office is based upon much more than a cursory review of the statutes. All of our legal
       research concludes that a person may not teach their children at home simply by calling their home a private school. If
       educational programs conducted in a home environment are to be allowed as exemption to the compulsory attendance
       law, action of the Legislature will be required.
The Legislature took no action, although a number of bills were introduced in 1985.7 That same year, the Texas Education
Agency issued a publication entitled HOUSE BILL 72 AND SUBSEQUENT EDUCATIONAL LEGISLATION:
COMPREHENSIVE REFERENCES AND EXPLANATIONS, which included a section devoted to the compulsory
attendance law, even though that law was not affected by House Bill 72 or any subsequent educational legislation. For the
first time, the TEA published its interpretation of the private school exemption:

7
        Tex.H.B. 29, 69th Leg., R.S. (1985) (requiring home educators to register, provide at least 170 days of instruction, and maintain
        attendance and immunization records, and requiring students not to score below the district average on annual tests); Tex.H.B. 431,
        69th Leg., R.S. (1985) (exempting persons from compulsory attendance law based upon sincerely held religious belief); Tex.H.B.
        673, 69th Leg., R.S. (1985) (exempting children schooled by parents from compulsory attendance law). None of these bills were
        reported out of committee. House Bill 317, which attempted to amend § 4.25(a) of the Education Code by removing parents and
        guardians of home schooled students from the class of individuals subject to criminal sanctions for violating the compulsory
        attendance law, was reported out of committee but defeated on the House floor, apparently for fear that the provision would
        establish a precedent for regulation of home schools. Tex.H.B. 317, 69th Leg., R.S. (1985).




    It is the agency’s interpretation that under this compulsory attendance law, private school attendance is an acceptable
    substitute for public school attendance. However, educating a child at home is not the same as private school instruction

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

    and, therefore, not an acceptable substitute.

      If a school district knows of a situation in which a school age student is not being educated in compliance with
      compulsory attendance statutes, the district should file charges against the parent under the compulsory attendance law.

      *437 Correspondence courses are not a legal substitute for attendance at a public or private school.

   TEX.EDUC.AGENCY, House Bill 72 and Subsequent Educational Legislation: COMPREHENSIVE REFERENCES
   AND EXPLANATIONS 213 (1985).
Although the Commissioner of Education testified that the TEA never changed its policy refusing to exempt home schooled
students from the compulsory attendance law, the fact remains that there is no evidence of such policy prior to 1981. Nor
were the policy statements from 1981–1985 made after hearings or other proceedings before the TEA. Most importantly, the
TEA itself now concedes in its briefs and oral argument before this Court that its interpretation of the private school
exemption, beginning in 1981 and restated in its 1985 publication, was “anomalous”.




                                                                   B

Based upon the TEA’s policy statements from 1981–1985, school districts and their attendance officers began prosecuting
violations of the compulsory attendance law based upon nothing other than the fact that a child was being schooled at home.
In all, some 150 prosecutions were initiated, and about 80 of them were actually tried. The State’s position in those
prosecutions was that a home school was never a private school within the meaning of the statutory exemption, §
21.033(a)(1), and never exempt from the compulsory attendance law.

To halt the State’s enforcement of this policy, this class action was filed in March 1985. The district court certified three
plaintiff classes: one comprised of parents, another of private schools who furnish curricula for home schools, and the third of
other providers of home school curricula. Specifically, the district court defined the first class as those parents—

              who either [a] have enrolled their school-age children in private or parochial schools outside their
              homes receiving the curricula and instruction of these schools in their homes which includes in the
              course a study of good citizenship or [b] have established a private school in their homes which
              involves in its course a study of good citizenship.

Nine married couples with school-age children were named as representatives of the class.8 Two of the couples had been
prosecuted for violating the compulsory attendance law, based upon the TEA’s 1981 policy, and two others had been
threatened with prosecution.9 The second class included the Calvert School, Inc., the First Baptist Academy of Dallas,
Christian Liberty Academy Satellite Schools, and others “who have established private or parochial schools where the
students receive their curricula including a study of good citizenship and instruction in their homes.” The third class consisted
of Reform Publications, Inc. d/b/a Basic Education, American Christian Schools, Inc., and others “who provide curricula
including in their courses a study of good citizenship and instruction for private schools in homes.” The Home School Legal
Defense Association was named as an individual plaintiff.

8
         The class representatives were Gary W. and Cheryl Leeper, Bruce and Patricia Smythe, Calvin E. and Wanda Minkler, Quinten T.
         and Sandra Parten Jr., Tony and Suzanne Martinez, Charles and Corlee Kent, John W. and Helen Jackson Jr., Michael R. and Sally
         K. Galbraith, and Richard and Kay Wells.



9
         The Galbraiths and Wells were actually prosecuted; the Leepers and Minklers received letters from school officials threatening
         prosecution.



The district court also certified a defendant class comprised of all “public school districts and their school attendance

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

officers”, represented by three such districts and officers.10 Besides this class, there were *438 four named defendants: the
TEA; the Texas Commissioner of Education; the Assistant General Council of the TEA; and the Attorney General of Texas.

10
         Named as representatives of the defendant class were the Arlington Independent School District and its attendance officer, Max
         Kidd; the Katy Independent School District and its attendance officer, Helena Blackstock; and the El Paso Independent School
         District and its attendance officer, Charles F. Hart.



Plaintiffs contended that defendants had misinterpreted the private school exemption and sought a declaration to that effect
under the Declaratory Judgments Act, TEX.CIV.PRAC. & REM.CODE §§ 37.001–.011. Plaintiffs also claimed that
defendants’ enforcement of the compulsory attendance law infringed upon their constitutional rights, in violation of the
federal Civil Rights Act, 42 U.S.C. § 1983. Plaintiffs sought an injunction prohibiting all school districts and attendance
officers from enforcing the compulsory attendance law against bona fide home schools. Plaintiffs also claimed attorney fees.

Consistent with the TEA’s 1985 statement of policy, the Attorney General in his original answer in this suit specifically
denied that a home school could be a private school within the meaning of § 21.033(a)(1). No other defendant adopted this
position, however, and the Attorney General himself abandoned it in later pleadings. About a year after the suit was filed, on
April 12, 1986, the State Board of Education issued a resolution calling upon the Legislature to define the private and
parochial school exemption and recommending that school districts follow new standards in applying the exemption pending
legislative action.11 That resolution stated:

11
         As noted above, supra n. 6, the SBOE is the component of the TEA charged with implementing legislative policy.




     WHEREAS the State Board of Education has been requested by various parties to define the terms “private or parochial
     school” as contained in Article 21.033 of the Texas Education Code; and

       WHEREAS the legal authority of the State Board of Education to make such definition has been questioned by various
       entities, including, we are advised, the Texas Legislative Council;

       NOW, THEREFORE, the State Board of Education urges the Texas Legislature either to define such terms or
       specifically to authorize the State Board of Education to do so at its regular session in 1987.

       The State Board of Education further recommends to the various school districts of Texas that the following guidelines
       may be utilized in determining whether an entity is a private or parochial school for the purposes of Article 21.033
       pending the action of the Texas legislature:

         (1) An entity that is accredited by an accrediting organization recognized by the Commissioner of Education, or

         (2) An entity that meets the following criteria:

            a. It instructs students in facilities that comply with applicable local fire and sanitation codes;

            b. It has a written regular plan of instruction sufficient to meet basic student educational goals;

            c. Its students shall annually be administered a recognized nationally norm-referenced standard achievement test.
            Evidence of such administration and the results thereof shall be furnished upon request to the attendance officer for
            the public school district in which the private or parochial school is located. The local school district may require
            that the next administration of such achievement test be by qualified test administrator, or

         (3) An entity that furnishes evidence satisfactory to the attendance officer of the school district in which the private or
         parochial school is located, that it meets the criteria required by the Commissioner of Education for an entity to be
         accredited by a recognized accrediting organization under (1) of this section.

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

     The above guidelines will not be interpreted in such a manner as to interfere with the exercise of religious freedom
     guaranteed by the United States and Texas Constitutions.

   *439 Defendants contended that the 1986 resolution—to which the Legislature chose not to respond—mooted plaintiffs’
   complaints, for reasons we consider in detail below. The district court rejected this contention.
Shortly after the SBOE issued the 1986 resolution, the parties to this action notified the members of the various classes that
they had reached agreement concerning the proper construction of § 21.033(a)(1). That construction was to be effectuated by
an agreed interlocutory judgment of the district court which provided in part as follows:

            Accordingly, the Court declares that a school-aged child residing in the State of Texas who is regularly
            and diligently pursuing in the child’s home a written curriculum of either a private or parochial school
            in which the child is enrolled which exists apart from the child’s home or which has been obtained
            from other sources, said curriculum following a regular plan of instruction designed to meet basic
            educational goals of reading, language arts, mathematics and a study of good citizenship, is considered
            to be in attendance upon a private or parochial school within the meaning of [§ 21.033(a)(1) ]. The
            Court further finds that the current curricula of [the named representatives of the second and third
            plaintiff classes] are written curricula following a regular plan of instruction designed to meet basic
            educational goals of reading, language arts, mathematics and a study of good citizenship. This finding
            is made so that the school attendance officers of the public school districts in the State of Texas will be
            able to identify a curriculum for a school-aged child at home who is considered to be in attendance
            upon a private or parochial school. The Court also finds that if parents or those standing in the parental
            relationship to such a child furnish to any public school attendance officer upon his written request the
            results of a nationally normed standard achievement test which was given in accordance with the
            instructions accompanying the test and was taken within the preceding twelve (12) months of the
            written request showing that the child is making reasonable academic progress for that child, then this
            furnishing shall establish that the child is regularly and diligently pursuing the curriculum being taken.

The agreement did not encompass plaintiffs’ claims for injunctive relief, damages and attorney fees. In response to the notice
to the classes, a number of members of the first class of plaintiffs appeared before the district court and objected to the
proposed agreed judgment. Consequently, the named plaintiffs withdrew from the agreement, and the proposed judgment was
never presented to the district court.

Following trial before the bench, the district court rendered judgment in favor of plaintiffs. One portion of that judgment
declared the proper construction of the private school exemption in § 21.033(a)(1). We quote the district court’s declaration,
inserting divisions among its components:

a school-age child

     • residing in the State of Texas who is pursuing under the direction of a parent or parents or one standing in parental
     authority in or through the child’s home

     • in a bona fide (good faith, not a sham or subterfuge) manner

     • a curriculum consisting of books, workbooks, other written materials, including that which appears on an electronic
     screen of either a computer or video tape monitor, or any combination of the preceding from either (1) of a private or
     parochial school which exists apart from the child’s home or (2) which has been developed or obtained from any source,

     • said curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics and a study of
     good citizenship,

  is in attendance upon a private or parochial school within the meaning of Section 21.033(a)(1) of the Texas Education
  Code and exempt from the requirements of compulsory attendance at a public school.

The court’s judgment further provided:


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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

            *440 This judgment does not preclude the Texas Education Agency, the Commissioner of Education
            or the State Board of Education from suggesting to the public school attendance officers lawful
            methods, including but not limited to inquiry concerning curricula and standardized test scores, in
            order to ascertain if there is compliance with the declaration contained in this judgment. However, this
            judgment is not to be interpreted as requiring standardized tests in order for there to be compliance
            with the interpretation made by the court of [§ 21.033(a)(1) ]. The lawful powers of investigation by
            public school attendance officers and the constitutional rights of persons subject to such investigations
            are not affected by this judgment.

This construction of § 21.033(a)(1), and the use of standardized tests as one indicia of compliance, are essentially the same
provisions to which the parties agreed prior to trial before plaintiffs withdrew their consent.

The district court also held that children of the named representatives of the parent class and children studying materials
provided by the named plaintiff institutions at home in a bona fide manner were exempt from the compulsory attendance law.
The district court determined that any enforcement of the policy in the 1985 publication or the recommendation in the 1986
resolution would violate plaintiffs’ due process and equal protection rights under the United States and Texas Constitutions.
The court permanently enjoined all school districts and attendance officers from initiating charges of violations of the
compulsory attendance law based upon any construction of § 21.033(a)(1) other than that contained in the court’s declaratory
judgment. Finally, the court awarded plaintiffs attorney fees against the school districts, but not against any of the other
defendants.

The court of appeals concluded that plaintiffs were not entitled to relief under the state declaratory judgments act because the
compulsory attendance law is penal. 843 S.W.2d at 48. The court based this conclusion on the rule that the constitutionality
of a criminal statute cannot be determined, and its enforcement enjoined, in a civil proceeding absent a showing of irreparable
injury to plaintiffs’ property rights, which has not been attempted in this case. Id.; see State v. Morales, 869 S.W.2d 941
(Tex.1994). The court did not explain why this rule should apply to the private school exemption in § 21.033(a)(1), which is
a civil statute distinct from the enforcement provisions of § 4.25, or why the rule should preclude a construction of §
21.033(a)(1) without reference to its constitutionality. The court of appeals did hold, however, that plaintiffs had
demonstrated a violation of their constitutional rights to equal protection, and were therefore entitled to all the relief awarded
by the district court under the federal Civil Rights Act. 843 S.W.2d at 48–51. In the course of its analysis the court concluded
that the district court properly construed the private school exemption. Id. at 51–52.

We granted writ of error to review the correctness of the district court’s construction of the private school exemption, the
propriety of injunctive relief, and the award of attorney fees to plaintiffs.




                                                               II

Before we turn to the central issues in the case, we must address three jurisdictional issues raised by defendants: whether
plaintiffs’ action was mooted by the SBOE’s 1986 resolution; whether plaintiffs seek to construe and enjoin enforcement of a
criminal statute over which a civil district court lacked jurisdiction; and whether the TEA’s 1986 resolution regarding the
private school exemption is an administrative rulemaking.




                                                                A
[1]
  Defendants contend that plaintiffs’ complaints are directed against the TEA’s 1985 policy statement which defendants now
admit was “anomalous” and which the TEA has abandoned. Defendants argue that plaintiffs meet the standard the SBOE
adopted in its 1986 resolution and thus can no longer complain of the TEA’s enforcement of the compulsory attendance law.

*441 Although there is language in the court of appeals’ opinion to suggest that the named individual plaintiffs in the action

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

would meet the standard adopted in the 1986 resolution, 843 S.W.2d at 51–52, the evidence does not bear this out. The first
requirement of the 1986 resolution is that the facilities where students are instructed—i.e., plaintiffs’ homes—comply with
applicable local fire and sanitation codes. There is no evidence that the nine couples named in the action instruct their
children in homes that comply with applicable local fire and sanitation codes (or, for that matter, of what those codes require
of homes). The third requirement of the 1986 resolution is that students be given nationally norm-referenced standard
achievement tests annually. According to the evidence at trial, only one of the nine plaintiff couples met this requirement.
Eight of the plaintiff parents testified that they had tested their children at least once, but two testified that they would not do
so again because they know without tests how their children are progressing. There is no evidence whether one of the nine
couples did or did not give their children achievement tests. Plaintiffs oppose making either of these factors—compliance
with building codes or administration of achievement tests—essential to qualification for the private school exemption. With
respect to the second requirement of the 1986 resolution—a written plan of instruction sufficient to meet basic student
educational goals—plaintiffs agreed that some plan was important but that it did not always need to be written. Moreover, it
is not clear whether plaintiffs and the TEA would agree on what are basic student educational goals.

In sum, plaintiffs and defendants do not agree on when home schooled children should be exempt from the compulsory
attendance law. Plaintiffs contend that the 1986 resolution does not correctly construe § 21.033(a)(1); defendants disagree. A
case is moot when there is no actual controversy between the parties. City of West University Place v. Martin, 132 Tex. 354,
123 S.W.2d 638, 639 (1939). The disagreement among the parties in this case is not academic or abstract; it is real and affects
the rights and interests of all parties. The case is clearly not moot.




                                                                 B
[2] [3]
     Defendants argue, and the court of appeals concluded, that the district court had no jurisdiction to construe and enjoin
enforcement of § 21.033(a)(1) in a civil proceeding because it is a criminal statute. Defendants and the appeals court are
correct that, as a rule, a party cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding without
a showing of irreparable injury to the party’s vested property rights, which showing is absent here. See State v. Morales, 869
S.W.2d 941 (Tex.1994). However, the rule does not apply in this case because § 21.033(a)(1) is not a criminal statute.

It clearly is not a criminal statute on its face, and defendants do not argue that it is; rather, they argue that it is in effect a
defense to prosecution under § 4.25, which clearly is a criminal statute, and that the general compulsory attendance provision,
§ 21.032(a), the exemptions, § 21.033, and the enforcement provision, § 4.25, should all be read together as parts of a penal
provision. That the three statutes must be read together cannot be denied: it is impossible to determine whether a fine should
be imposed under § 4.25 without determining whether the subject child is exempt from attending public schools under §
21.033. That fact alone, however, does not dictate that a statute which is not criminal on its face must be considered part of
one that is, and therefore beyond the jurisdiction of civil courts to construe.

If the sole function of § 21.033 were to define the elements of the offense proscribed by § 4.25, or the elements of a defense
to prosecution, the question whether § 21.033 is penal would be much closer. As it is, § 21.033 serves a function unrelated to
prosecution under § 4.25. It is part of the basis for determining whether a child who is not in attendance in public school is
subject to supervision under § 51.03 of the Family Code, *442 and whether a parent of the child may have his or her parental
rights terminated for failing to enroll the child in school under § 15.02 of the Family Code. Not only is § 21.033 on its face a
civil statute, it also has civil consequences. Defendants cite no authority for treating a statute like § 21.033 as a criminal
statute.
[4]
   Defendants argue that plaintiffs have foregone any claim to relief under the declaratory judgment statutes because they did
not perfect an appeal to this Court from the court of appeals’ adverse ruling on this issue. Such an appeal, however, was
unnecessary. The appellate court’s judgment upheld plaintiffs’ claims for declaratory and injunctive relief, albeit on the basis
of § 1983 and not state law. Since plaintiffs prevailed in the court of appeals, they are entitled to support that court’s
judgment by any argument, including those that the appellate court rejected. They need not perfect a separate application for
writ of error unless they wish to obtain from this Court a different and more favorable judgment. See Donwerth v. Preston II
Chrysler–Dodge, 775 S.W.2d 634, 639 n. 5 (Tex.1989); see also id. at 643 (Ray, J., concurring) (explaining cross-points and
separate appeals in intermediate courts and supreme court).
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390



Accordingly, we conclude that the district court had jurisdiction to construe § 21.033(a)(1).




                                                                      C
[5]
   Defendants argue that the SBOE’s 1986 resolution is an administrative rulemaking which, under the Administrative
Procedure Act [“the APA”], can be challenged only by appeal to a district court in Travis County. TEX.GOV’T CODE §
2001.038.12 The recommendation contained in the resolution, defendants argue, fits squarely within the statutory definition of
an administrative rule: “a state agency statement of general applicability that ... implements, interprets, or prescribes law or
policy....” Id. § 2001.003(6)(A)(i). Plaintiffs respond that the Legislature has not authorized the SBOE to make rules
construing private schools generally or § 21.033(a)(1) in particular. Alternatively, plaintiffs argue that the 1986 resolution
cannot be a rule because it does not say it is a rule and the SBOE made no attempt in issuing it to comply with the notice and
hearing requirements for rulemaking proceedings. Defendants answer that plaintiffs’ arguments are precisely the sort of
complaints that § 2001.038 of the APA requires to be raised in a district court in Travis County. Defendants also argue that
plaintiffs were required to raise their complaints within two years of the issuance of the 1986 resolution under § 2001.035 of
the APA.13

12
       The law governing administrative rulemaking in 1986, TEX.REV.CIV.STAt.Ann. ART. 6252–13A, HAS SINCE BEEN
       RECODIFIED AS CHAPTER 2001 OF THE GOVERNMENT CODE. FOR PURPOSES OF THIS CASE THE REPEALED
       PROVISIONS ARE IDENTICAL TO THE RECODIFIED PROVISIONS, AND WE REFER TO THE LATTER.
         Section 2001.038 provides in pertinent part:
         “(a) 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.
         “(b) The action may be brought only in a Travis County district court.”



13
       “(a) A rule adopted after January 1, 1976, is not valid unless a state agency adopts it in substantial compliance with Sections
       2001.023 through 2001.034 [prescribing notice, hearing, and other requirements].
                    “(b) A person must initiate a proceeding to contest a rule on the ground of noncompliance with the
                    procedural requirements of Sections 2001.023 through 2001.034 not later than the second anniversary of
                    the effective date of the rule.”



In effect, defendants argue that although the SBOE did not treat the 1986 resolution as a rule at the time, and did not follow
any of the procedures prescribed by statute for adopting rules, the resolution is a rule which can be challenged only in a
Travis County District Court, and the time for complaining about the total lack of any rulemaking procedures has passed. At
best, this argument is disingenuous. On its face, the resolution is little more than an urging to the Legislature to further define
the private and parochial *443 school exemption in § 21.033(a)(1). It goes no further than to “recommend[ ] to the various
school districts ... guidelines ... pending the action of the Texas legislature”. It even recites that the SBOE’s authority to
define “private or parochial school” has been challenged by various entities, among them the Texas Legislative Council. As
the SBOE is charged with implementing legislative policy, an opinion of the Legislative Council that the SBOE lacked
authority to clarify § 21.033(a)(1) would appear to be entitled to considerable weight.14 The SBOE offers no explanation why,
if it thought the resolution was an agency rule in 1986, it made no effort to comply with the requirements of the APA before
the resolution issued.

14
       The Texas Legislative Council is a legislative agency composed of the Lieutenant Governor, the Speaker of the House of
       Representatives, the chairs of the Senate and House administration committees, four other senators, and nine other representatives.
       TEX.GOV’T CODE § 323.001(a)-(b). Among the powers of the Council are to “study and investigate the functions and problems
       of state departments, agencies, and officers”. Id. § 323.006(a)(1).


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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390



Not every statement by an administrative agency is a rule for which the APA prescribes procedures for adoption and for
judicial review. As noted above, the APA applies only to statements of general applicability that implement, interpret or
prescribe law or policy. The 1986 resolution was not such a statement. It urged action by the Legislature and recommended
guidelines to school districts. The guidelines were only recommended, not prescriptive, and they did not purport to
implement or interpret § 21.033(a)(1) or agency policy, but only to provide direction pending action by the Legislature. In
these circumstances, defendants’ argument that the 1986 resolution constitutes a rule is plainly incorrect.15

15
       Cf. 1 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.2 (3d ed. 1994)
       (distinguishing statements to which federal Administrative Procedure Act, 5 U.S.C. § 553, does and does not apply); 3 BASIL J.
       MEZINES, JACOB A. STEIN & JULES GRUFF, ADMINISTRATIVE LAW § 15.07[4] (1990, Supp.1991) (distinguishing
       statements to which federal Administrative Procedure Act, 5 U.S.C. § 553, does and does not apply).



Since plaintiffs’ challenge to the 1986 resolution is not governed by the APA, the district court had jurisdiction of this case.
Having reached this conclusion, we need not address plaintiffs’ contention that the SBOE has no authority to make rules
construing § 21.033(a)(1).




                                                                III
[6]
   We come now to the central issue in the case. Defendants acknowledge, contrary to their position from 1981–1986, that a
home school can be a private school within the meaning of § 21.033(a)(1). Plaintiffs do not contend that every home school
falls within the exemption, but only, as the district court held, homes in which children are taught in a bona fide manner from
a curriculum designed to meet basic education goals. Plaintiffs also do not contend that the use of standard achievement tests
cannot be considered in ascertaining whether a home school is being taught in a bona fide manner; they argue only, again as
the district court held, that the use of such tests cannot be the determining factor.

The evidence in support of the district court’s construction of § 21.033(a)(1) is virtually undisputed. Defendants do not deny
that from 1916 to 1981 students in bona fide home schools were not prosecuted for violation of the compulsory attendance
law. Defendants also concede that the TEA’s policy from 1981–1986, that no home school could be a private school within
the meaning of § 21.033(a)(1), was wrong. Defendants acknowledge the right of parents to teach their children at home and
the efficacy of that means of education when it is conducted in a bona fide manner. Defendants were willing to agree before
trial to essentially the same construction of § 21.033(a)(1) as the district court eventually reached. Defendants argue even
now that the nine plaintiff couples come within the “private school” exemption from the compulsory attendance law, even
though there is no evidence that they have met two of the elements prescribed by the 1986 resolution. From the record before
us, we conclude that the district court’s declaration of the meaning of “private school” in *444 § 21.033(a)(1), as it relates to
home schools, is clearly correct.

Defendants argue that the district court’s judgment deprives the SBOE of its proper role in developing policies for the public
schools. We do not believe that it does. The SBOE has the power and duty to “take actions necessary to implement legislative
policy for the public school system of the state.” TEX.EDUC.CODE § 11.24(a). Legislative policy regarding the exemption
of students in private schools from attendance in public schools is expressed in § 21.033(a)(1). The district court has
construed that provision as it has been understood and applied for most of this century. The SBOE continues to have
responsibility for implementing the statutory policy. The SBOE is not authorized, however, to change legislative policy; that
is the sole province of the Legislature. The Legislature has not accepted the SBOE’s invitation in its 1986 resolution to
clarify the private school exemption. The Legislature has indicated, however, that it considers home schools to fall within the
exemption. In amending § 4.25 and other provisions of the Education Code in 1989, the Legislature stated:

            Nothing in this Act applies to students in attendance upon a private or parochial school, which includes
            home schools, in accordance with Section 21.033, Education Code.


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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

Act of May 28, 1989, 71st Leg., R.S., ch. 658, § 11, 1989 Tex.Gen.Laws 2165, 2168 (emphasis added).

As we have noted above, plaintiffs argue that the TEA has no authority to promulgate rules construing § 21.033(a)(1). The
decision we reach does not require that we address this argument today. On the other hand, nothing in our opinion precludes
the TEA from setting such guidelines for enforcement of the compulsory attendance law as are within its authority.
Specifically, the TEA is not precluded from requesting evidence of achievement test results in determining whether children
are being taught in a bona fide manner. While administration of such tests cannot be a prerequisite to exemption from the
compulsory attendance law, we do not preclude the TEA from giving this factor heavy weight. Should the SBOE choose to
promulgate additional rules under the Administrative Procedure Act, its authority to do so and the propriety of such rules will
be subject to judicial review.




                                                                    IV

The district court awarded plaintiffs costs and attorney fees to be paid by the defendant school districts, but not by any of the
other defendants.16 The court based its award on a provision of the Texas Uniform Declaratory Judgments Act [“the DJA”],
TEX.CIV.PRAC. & REM.CODE § 37.009, which authorizes the award of such reasonable and necessary attorney fees as are
just and equitable, and 42 U.S.C. § 1988. The court of appeals affirmed, but only on the basis of § 1988. We conclude that
the award of attorney fees was proper under the DJA and do not address § 1988.

16
       The trial court also concluded that the representative school district fees should not have to bear their attorney fees and expenses
       alone, and awarded these districts fees from the other districts in the defendant class. The representative districts do not argue that
       governmental immunity would bar their awards from the other districts.



The school districts argue that as a rule they have governmental immunity from liability for attorney fees, and that this
immunity is not waived by the DJA. A number of decisions from the courts of appeals have concluded that the DJA does not
waive governmental immunity for attorneys fees.17 At *445 least one appellate court has concluded that the Act does waive
governmental immunity from an award of attorney fees and costs for a municipality, insofar as the Act defines “person” as
including municipalities, requires municipalities to be joined in actions involving the validity of an ordinance, and allows
awards of attorney fees and costs without any indication of an intent to exempt municipalities.18 Several other cases affirm
attorney fee awards against governmental entities without any discussion of sovereign immunity.19

17
       See Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870 (Tex.App.—Dallas 1992, writ denied); Waugh v. City of Dallas, 814
       S.W.2d 492 (Tex.App.—Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S.W.2d 790 (Tex.App.—Houston [14th Dist.]
       1991, writ denied); Texas Dep’t of Human Serv. v. Methodist Retirement Serv., Inc., 763 S.W.2d 613 (Tex.App.—Austin 1989, no
       writ); City of Houston v. Lee, 762 S.W.2d 180 (Tex.App.—Houston [1st Dist.] 1988), rev’d on other grounds, Lee v. City of
       Houston, 807 S.W.2d 290 (Tex.1991); Texas Employment Comm’n v. Camarena, 710 S.W.2d 665 (Tex.App.—Austin 1986), rev’d
       on other grounds, 754 S.W.2d 149 (Tex.1988). See also City of Houston v. De Trapani, 771 S.W.2d 703 (Tex.App.—Houston
       [14th Dist.] 1989, writ denied) (affirming award of fees under federal civil rights act, but noting that such award would not be
       available under state declaratory judgments act).



18
       City of El Paso v. Croom Const. Co., 864 S.W.2d 153 (Tex.App.—El Paso 1993, writ denied) (construing contract to build
       stadium).



19
       See, e.g., District Judges v. Commissioners Court, 677 S.W.2d 743 (Tex.App.—Dallas 1984, writ ref’d n.r.e.). See also
       International Ass’n of Firefighters Local 624 v. City of San Antonio, 822 S.W.2d 122, 132 (Tex.App.—San Antonio 1991, writ
       denied) (reversing on other grounds and remanding for possible award of attorney fees under § 37.009); Lubbock Prof. Firefighters
       v. City of Lubbock, 742 S.W.2d 413, 418–19 (Tex.App.—Amarillo 1987, writ ref’d n.r.e.) (reversing on other grounds and
       remanding for possible award of attorney fees).

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390




We have touched on the issue in several cases without ever expressly deciding it. In Oake v. Collin County, 692 S.W.2d 454
(Tex.1985), a declaratory judgment action involving a property tax dispute, we considered whether the trial court had abused
its discretion in refusing to award attorney fees against various governmental entities and concluded that it had not. We did
not suggest that the taxing units and counties in that case were immune from liability for attorney fees under the DJA. In
Duncan v. Pogue, 759 S.W.2d 435 (Tex.1988), rev’g 753 S.W.2d 255 (Tex.App.—Tyler 1988), without mentioning
governmental immunity, we concluded that the trial court acted within its discretion in awarding attorney fees against the
county commissioners’ court. The court of appeals had held that the DJA does not authorize an award of attorney fees against
a county.

In other cases we have awarded attorney fees against governmental entities based upon other statutes. In Texas State
Employees Union v. Texas Dep’t of Mental Health and Mental Retardation, 746 S.W.2d 203 (Tex.1987), the award of fees
was based on provisions covering damages, costs, and fees adjudged in a cause of action for the deprivation of a right,
privilege or immunity secured by the constitution or laws of this State or the United States, against state employees, officers
or governing board members who acted in the course or scope of their employment. TEX.CIV.PRAC. & REM.CODE §§
104.001–.003 (now providing for indemnification up to specified amounts).20 In Camarena v. Texas Employment Comm’n,
754 S.W.2d 149 (Tex.1988), the award of fees was based on provisions prohibiting state officials from discriminating on the
basis of a person’s race, religion, color, sex, or national origin. TEX.CIV.PRAC. & REM.CODE § 106.001–.002. In Lee v.
City of Houston, 807 S.W.2d 290 (Tex.1991), the district court granted declaratory relief and attorney fees, and the court of
appeals reversed. We reversed the appellate court’s holding on the merits and remanded the case to the trial court for entry of
judgment consistent with our opinion, without addressing the availability of attorney fees. In a subsequent original
proceeding to enforce the Court’s judgment, Lee v. Downey, 842 S.W.2d 646, 649 (Tex.1992), the Court directed the trial
court to award attorney fees and indicated that the award was authorized by TEX.LOCAL GOV’T CODE § 143.015, which
allows attorney fees in appeals from decisions of the Fire Fighters’ and Police Officers’ Civil Service Commission.21

20
       We note that although the trial court found that the TEA had acted in bad faith, it did not find that any individual acted in bad faith,
       and concluded that no attorney fees, expenses or costs shall be borne by any school attendance officer or individual defendant.



21
       A dissenting opinion on rehearing, in which the author of this opinion joined, expressed the view that the DJA does not waive
       governmental immunity for an award of attorney fees. 842 S.W.2d at 654 n. 4 (Gonzalez, J., dissenting on rehearing).



The DJA is a remedial enactment which allows courts to declare relief, whether or not further relief is or could be claimed, to
“settle and afford relief with respects to rights, status, and other legal relations”. Id. §§ 37.002, .003(a). A person “whose
rights, *446 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 statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a). All persons who have or claim any interest
that would be affected by the declaration must be made parties; those not made a party are not prejudiced by any declaration.
Id. § 37.006(a). If the validity of a municipal ordinance or franchise is involved, a municipality must be made a party, and if a
statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general must be served with a copy of the
proceeding and is entitled to be heard. Id. § 37.006(b). The Act specifically authorizes an award of “costs and reasonable and
necessary attorney’s fees as are equitable and just.” Id. § 37.009.
[7]
   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. These provisions provide the context for the Act’s authorization, in § 37.009, of attorney fee
awards. We conclude that by authorizing declaratory judgment actions to construe the legislative enactments of governmental
entities and authorizing awards of attorney fees, the DJA necessarily waives governmental immunity for such awards.

The school districts complain that the award of fees was not properly adjudicated against them, in that plaintiffs’ claims were
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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

primarily directed against the state defendants. We note, however, that the district court directed the award to be paid by the
TEA from funds designated for public school districts. The school districts also complain about the inclusion of various items
in the district court’s award. They argue that plaintiffs were required to segregate time spent on temporary injunctive relief
and the non-federal claims on which plaintiffs did not prevail. The record reflects that all plaintiffs’ attorneys’ time was spent
on issues related to the declaratory relief which was granted. The school districts also argue that some items of expenses and
costs were not recoverable. We conclude, however, that the districts have failed to show reversible error.

Accordingly, we hold that the district court’s award of attorney fees was authorized by the DJA and was not an abuse of
discretion.




                                                                 V
[8]
   The district court enjoined defendants from enforcing the compulsory attendance law contrary to the construction set out in
the court’s judgment. There is no indication, however, that defendants will attempt to contravene the district court’s
judgment, or ours. On the contrary, we are confident that defendants will abide by our decision in carrying out their duties.
Accordingly, we conclude that issuance of a permanent injunction was unnecessary and should be reversed.22

22
       The school district defendants argue that the classes of plaintiffs and defendants were improperly certified for an award of
       injunctive relief. Defendants do not make the same argument with respect to the award of declaratory relief. As we have reversed
       the district court’s injunction, we need not consider whether the classes were properly certified.



The lower courts held that defendants had violated plaintiffs’ constitutional rights and § 1983 of the federal Civil Rights Act.
As we have accorded plaintiffs all the relief to which they are entitled under the Declaratory Judgments Act, we do not reach
their constitutional arguments under § 1983. The 1986 resolution acknowledged that home schooling may involve
constitutional claims of religious freedom. Our decision today need not, and does not, address such claims.

******

The judgment of the court of appeals is reversed insofar as it affirms the district court’s permanent injunction. In all other
respects the judgment of the court of appeals is affirmed.


*447 GONZALEZ, Justice, concurring in part and dissenting in part on motion for rehearing.

My opinion of June 15, 1994 is withdrawn and this one is substituted in its place. With the exception of the discussion of
attorneys’ fees and court costs, I join the Court’s opinion and judgment. I dissent, however, from Part IV of the Court’s
opinion, from the order denying a motion for rehearing, and from that part of the judgment which orders that the plaintiffs
recover attorneys’ fees and court costs from the defendants. In this case, the doctrine of sovereign immunity precludes an
award of attorneys’ fees against the defendants in the absence of an express waiver of immunity by the Legislature. The
Court errs in ruling that the Uniform Declaratory Judgments Act (DJA), TEX.CIV.PRAC. & REM.CODE §§ 37.001–.011,
implicitly waives sovereign immunity so that defendants may be held liable for attorneys’ fees. 893 S.W.2d 432, 445–46
(Tex.1994). The Court gives the DJA a curious construction that is not supported by logic or well-established precedent and a
construction which has the potential for disastrous effects on school districts and other governmental agencies. I would grant
the motion for rehearing and hold that the school districts are not liable for attorneys’ fees under the DJA, but would consider
whether they are available under 42 U.S.C. § 1983.

I continue to adhere to the principles expressed in my opinion in Lee v. Downey, 842 S.W.2d 646, 655 n. 4 (Tex.1992)
(Gonzalez, J., dissenting on motion for rehearing). To recover attorneys’ fees in this case, the plaintiffs must show that their
suit is an exception to two broad rules. The first rule is that subdivisions of the sovereign are immune from suit. See W.D.
Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 839 (1958) (approving the court of appeals’ statement that a suit against

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Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

the state should be abated “because of the State’s immunity from suits brought without its consent,” 303 S.W.2d 443, 445
(Tex.Civ.App.—Fort Worth 1957)). Only the Legislature may waive sovereign immunity. Guillory v. Port of Houston Auth.,
845 S.W.2d 812, 813 (Tex.1993); see Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978) (citing Lowe v. Texas Tech Univ.,
540 S.W.2d 297, 298 (Tex.1976)) (stating, “any waiver of governmental immunity is a matter to be addressed by the
Legislature.”); Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (holding “No State can be sued in her own Courts without her
consent and then only in a manner indicated by that consent.”). Furthermore, the Legislature must use clear and unambiguous
language to waive immunity. See Guillory, 845 S.W.2d at 813–14 (explaining that waiver exposes the government to
increased liability that ultimately the state’s taxpayers bear); Texas Prison Bd. v. Cabeen, 159 S.W.2d 523, 525–28
(Tex.Civ.App.—Beaumont 1942, writ ref’d) (examining a statute to determine if the Legislature had expressly waived
sovereign immunity). The second rule is that attorneys’ fees may not be awarded unless prescribed by statute for the
particular kind of case. First City Bank v. Guex, 677 S.W.2d 25, 30 (Tex.1984); see Texas Employment Comm’n v.
Camarena, 710 S.W.2d 665, 670 (Tex.App.—Austin 1986), rev’d on other grounds, 754 S.W.2d 149 (Tex.1988). These rules
prohibit a court from awarding attorneys’ fees merely because it deems them appropriate. Camarena, 710 S.W.2d at 670.
Thus, in this case, an award of attorneys’ fees would be permissible only if a statute expressly waived sovereign immunity
and authorized the recovery of attorneys’ fees from the defendant governmental agencies.

The DJA does not. The DJA waives sovereign immunity insofar as it permits plaintiffs to bring actions in order to construe
legislative enactments of governmental entities; it also requires that interested parties, including governmental agencies, be
joined in these suits. See TEX.CIV.PRAC. & REM.CODE §§ 37.004(a), 37.006. However, the Court confuses this waiver of
the government’s immunity from suit with waiver of immunity from liability. See Missouri Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); accord Couch v. Ector County, 860 S.W.2d 659, 661 (Tex.App.—El
Paso 1993, no writ); Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 164–65 (Tex.App.—Fort Worth 1992, appeal
dism’d as moot); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.—Austin 1991, writ denied). Nowhere
does the DJA expressly *448 authorize this Court to hold a governmental entity liable for attorneys’ fees in a declaratory
judgment action. See Lee, 842 S.W.2d at 655 n. 4 (Gonzalez, J., dissenting on motion for rehearing); Dallas Area Rapid
Transit v. Plummer, 841 S.W.2d 870, 875 (Tex.App.—Dallas 1992, writ denied); Waugh v. City of Dallas, 814 S.W.2d 492,
496–97 (Tex.App.—Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S.W.2d 790, 793 (Tex.App.—Houston [14th
Dist.] 1991, writ denied), cert. denied, 502 U.S. 1093, 112 S.Ct. 1167, 117 L.Ed.2d 414 (1992); City of Houston v. De
Trapani, 771 S.W.2d 703, 708 (Tex.App.—Houston [14th Dist.] 1989, writ denied); Texas Dep’t of Human Servs. v.
Methodist Retirement Servs., Inc., 763 S.W.2d 613, 614 (Tex.App.—Austin 1989, no writ); City of Houston v. Lee, 762
S.W.2d 180, 188 (Tex.App.—Houston [1st Dist.] 1988), rev’d on other grounds, 807 S.W.2d 290 (Tex.1991); Camarena,
710 S.W.2d at 670. For this reason alone, the order that the defendants pay attorneys’ fees is erroneous.

The Court compounds its error by determining that the DJA implicitly authorizes the plaintiffs’ recovery of attorneys’ fees in
this declaratory judgment suit. 893 S.W.2d at 445–46. This holding conflicts with the legislative admonishment that a
“resolution granting permission to sue does not waive to any extent immunity from liability.” TEX.CIV.PRAC. &
REM.CODE § 107.002(b) (Supp.1995) (emphasis added). When the Legislature was considering the House Bill it later
enacted as the attorney fee provision of the DJA, the director of the Legislative Budget Board sent a fiscal note to the
Committee on Judiciary of the House of Representatives which stated:

            No fiscal implication or additional cost to the State or units of local government attributable to the bill,
            should it be enacted, is anticipated.

FISCAL NOTE, Tex.H.B. 375, 67th Leg., R.S., ch. 190, § 1, 1981 Tex.Gen.Laws 455, 455 (amending TEX.REV.CIV.STAT.
art. 2524–1 § 10, now codified at TEX.CIV.PRAC. & REM.CODE § 37.009). The Legislature did not intend or foresee that
it was authorizing the award of attorneys’ fees and court costs against state entities when it amended the DJA.

Only through a feat of statutory sleight of hand does the Court achieve its holding that attorneys’ fees can be awarded under
the DJA. The result is a disappearing act for the rule requiring a clear and unambiguous waiver of sovereign immunity. As
stated, the DJA simply does not contain a clear and unambiguous statement that a governmental entity may be held liable for
attorneys’ fees. See TEX.CIV.PRAC. & REM.CODE § 37.009. The Legislature certainly has the power to place this burden
on taxpayers. However, in my opinion, it has not done so in the clear and unambiguous language that this Court has
previously required.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         15
Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

I would retain the rule that the Legislature must expressly waive sovereign immunity. By finding an implied waiver of
sovereign immunity in this case, the Court disturbs an important principle in the law of sovereign immunity. Presumably a
plaintiff may now recover whatever costs, fees, or damages which he or she can persuade a trial court that a statute impliedly
allows. By its ruling today, the Court turns the law of sovereign immunity on its head. Now a governmental entity will have
to identify statutes that expressly bar recovery of costs, fees, or damages before it will be excused from such liability. Thus,
the Court’s implied waiver ruling introduces a grave threat to the state’s financial resources.

Furthermore, the Legislature is perfectly capable of drafting statutes which expressly waive sovereign immunity, without
assistance from us or any other court. For example, the Texas Tort Claims Act has a clear and unambiguous waiver of
sovereign immunity, thereby allowing a plaintiff to bring suit against a governmental entity in certain circumstances. See
TEX.CIV.PRAC. & REM.CODE § 101.025(a) (“Sovereign immunity to suit is waived and abolished to the extent of liability
created by this chapter.”). However, the Texas Tort Claims Act does not expressly provide for the recovery of fees and costs,
and no court has awarded them to a plaintiff under the Act. See id. § 101.021(1) (allowing a governmental unit to be liable
solely for “property damage, personal injury, and *449 death”); id. § 101.023 (capping liability for bodily injury or death).
Similarly, the Open Government Act expressly authorizes actions against otherwise immune governmental entities in order to
prevent violations of the Act. TEX.GOV’T CODE § 551.142. In contrast to the Texas Tort Claims Act, the Open
Government Act unambiguously states that a court “may assess costs of litigation and reasonable attorney fees incurred by a
plaintiff ... who substantially prevails in an action” against members of “a governmental body.” Id. Finally, the
Whistleblower Act expressly provides for waiver of immunity and for recovery of attorneys’ fees. See id. §§ 554.001–.009. If
a state agency or local government suspends, terminates, or discriminates against a public employee who has reported a law
violation, the employee is entitled to sue for injunctive relief, actual and exemplary damages, court costs, and “reasonable
attorneys’ fees.”1 Id. §§ 554.002, 554.003(a). There are other examples in which the Legislature has expressly authorized the
recovery of attorneys’ fees or costs from a governmental entity. See, e.g., TEX.CIV.PRAC. & REM.CODE § 105.002; id. §
106.002(b). The Legislature’s specificity of language in the Open Government Act and the Whistleblower Act sharply
contrasts with the general provisions the Court relies on in this case for awarding attorneys’ fees under the DJA.

1
       Even then, it may take a legislative appropriation to collect a judgment from the state. See Green v. Sharp, 37 Tex.Sup.Ct.J. 1227
       (Sept. 29, 1994) (orig. proceeding) (overruling motion for leave to file a petition for writ of mandamus to compel the Comptroller
       of Public Accounts to issue a check from the state treasury to satisfy a judgment against the Texas Department of Human
       Services); Texas Dep’t of Human Servs. v. Green, 855 S.W.2d 136, 145 (Tex.App.—Austin 1993, writ denied) (stating that the
       prevailing plaintiff must request a legislative appropriation to collect damages awarded him under the Whistleblower Act).



Another flaw with the Court’s reasoning regarding attorneys’ fees is the possible result: the imposition of a $400,000 burden
on Texas taxpayers which the Legislature never envisioned when it passed the DJA. Holding that the DJA waives sovereign
immunity to the extent of allowing an award of attorneys’ fees in this case could “divert money from the schools and would
thereby impair the quality and availability of public education.” Duson v. Midland County Indep. Sch. Dist., 627 S.W.2d 428,
429 (Tex.Civ.App.—El Paso 1981, no writ) (affirming the nonapplicability of the Texas Tort Claims Act to public school
districts). Unless the plaintiffs are required to obtain a legislative appropriation to collect the $400,000 judgment, the
potential drain of tax dollars to pay attorneys’ fees from funds earmarked for education cannot be minimized.2 In today’s
litigious society, suits against school districts over dress codes, school prayer, sex education, cheerleader selections, and the
like are not uncommon. Such litigation drains scarce funds and diverts the energies of school officials from the task of
education. Because of the tremendous costs associated with litigating these issues, some school districts will decide to
compromise on matters of principle rather than go to court and defend them. Unless the Legislature revisits the issue of
governmental immunity from attorneys’ fees and court costs, to correct the Court’s holding in this case, there is the potential
of a further drain on scarce educational dollars.

2
       For example, besides the $400,000 award for attorneys’ fees and court costs from public school funds in this case, a trial court in
       another case recently awarded $48,000 to the attorneys of an elementary school student who challenged the hair grooming
       regulations of the school district he was attending. See Gamboa, Judge Rules in Favor of Bastrop Student and His Ponytail,
       AUSTIN AM. STATESMAN, Feb. 11, 1995, at B1.



The Court’s opinion (although not its judgment) approves the trial court’s order that the Texas Education Agency exclusively

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  16
Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (1994)
98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390

pay the plaintiffs’ attorneys’ fees, in theory to relieve the defendant school districts from the burden of paying them. The
effect is the same. Whether the trial court orders the TEA or each district to pay the award of attorneys’ fees, school districts
will be deprived of money intended for education.

For these reasons, I would withdraw the opinion of the Court and grant the motion for rehearing. A new opinion addressing
the issue of the award of attorneys’ fees and court costs under 42 U.S.C. § 1983 is preferable *450 to the current opinion,
which stands the law of sovereign immunity on its head.




All Citations

893 S.W.2d 432, 98 Ed. Law Rep. 491, 38 Tex. Sup. Ct. J. 390
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.                                              17
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)
55 Tex. Sup. Ct. J. 42


                                                              Opinion
                     355 S.W.3d 618
                 Supreme Court of Texas.                      PER CURIAM.

              TEXAS DEPARTMENT OF                              [1] At issue in this case is whether sovereign immunity
            TRANSPORTATION, Petitioner,                       bars Roger Sefzik's lawsuit seeking declaratory relief under
                        v.                                    the Uniform Declaratory Judgments Act (UDJA) against the
             Roger SEFZIK, Respondent.                        Texas Department of Transportation (TxDOT). In City of
                                                              El Paso v. Heinrich, we dismissed claims *620 seeking
             No. 08–0943.       |   Oct. 21, 2011.            declaratory and injunctive relief against governmental entities
                                                              as barred by sovereign immunity. 284 S.W.3d 366, 380
Synopsis                                                      (Tex.2009). The court of appeals relied on our pre-Heinrich
Background: Applicant for permit to erect outdoor-            ultra vires precedent to conclude that declaratory judgment
advertising sign brought suit against Texas Department        actions do not implicate sovereign immunity. We reverse
of Transportation (TxDot), seeking declaration that           and hold that state agencies, like TxDOT here, are immune
Administrative Procedure Act's (APA's) provisions             from suits under the UDJA unless the Legislature has waived
governing “contested cases” applied to TxDot's denial of      immunity for the particular claims at issue. However, because
his application and alleging that denial of contested-case    Sefzik's claim was filed pre-Heinrich, we remand the case to
proceeding violated due process. The 53rd District Court,     the trial court so that Sefzik has a reasonable opportunity to
Travis County, Suzanne Covington, J., granted TxDot's         assert an ultra vires claim against state officials.
plea to jurisdiction based on sovereign immunity. Applicant
appealed. The Corpus Christi - Edinburg Court of Appeals,     In March 2005, Sefzik filed a permit application with
267 S.W.3d 127, affirmed in part and reversed and remanded    TxDOT to erect an outdoor advertising sign along Interstate
in part. Review was granted.                                  30. A few weeks later, another company filed a similar
                                                              application, seeking to create a sign in the same area. After
                                                              reviewing the conflicting applications, TxDOT found that
[Holding:] The Supreme Court held that the sovereign          Sefzik's permit was invalid. Under former section 21.142 of
immunity of the Texas Department of Transportation was not    the Texas Administrative Code, applicants for sign permits
waived.                                                       were required to verify that a sign would be near adjacent
                                                              commercial or industrial activities that had been open for at
                                                              least ninety days. See 43 TEX. ADMIN. CODE § 21.142(2)
Court of Appeals reversed in part; remanded to trial court.   (K), (30) (2008) (Tex. Dep't of Transp., Definitions) repealed
                                                              36 Tex. Reg. 2418 (2011) (proposed Dec. 2, 2010). When
                                                              TxDOT received Sefzik's application, one of the businesses
Attorneys and Law Firms                                       he listed was only open for seventy-eight days. TxDOT
                                                              denied Sefzik's application and approved the competing bid.
 *619 Beth Ellen Klusmann, Assistant Solicitor General,
Betsy Jane Johnson, Office of the Attorney General, Austin,
                                                              Sefzik appealed to TxDOT's Executive Director, Michael
James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, David
                                                              Behrens, and requested an oral hearing. Behrens denied
S. Morales, Office of the Attorney General of Texas, Deputy
                                                              Sefzik's appeal without holding a hearing, and explained
First Assistant Attorney General, Kent C. Sullivan, 14th
                                                              that TxDOT had discretion to deny Sefzik's invalid permit
Court of Appeals, Greg W. Abbott, Attorney General and
                                                              application. Sefzik filed a motion for rehearing, arguing, inter
Clarence Andrew Weber, Kelly Hart & Hallman LLP, Austin,
                                                              alia, that he was entitled to a hearing under the Administrative
for Texas Department of Transportation.
                                                              Procedure Act's (APA) “contested case” procedures. See
J. Allen Smith, Scott J. Conrad, Bradley E. McLain, Settle    TEX. GOV'T CODE § 2001.051. TxDOT did not respond,
Pou, Dallas and Clyde Russell Woody, Hartzog Conger           and the motion was eventually overruled by operation of law.
Cason & Neville, Oklahoma City, OK, for Roger Sefzik.
                                                              Sefzik then filed suit against TxDOT but did not join Behrens
                                                              or any other TxDOT official. Sefzik sought relief under the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)
55 Tex. Sup. Ct. J. 42

UDJA, requesting that the district court declare the APA's          asked the courts to declare that the defendants acted without
                                                               1    authority in taking such action. Id. Our precedent made clear
“contested case” procedures entitled him to a hearing.
TxDOT filed a plea to the jurisdiction, arguing that sovereign      that “suits to require state officials to comply with statutory
immunity barred Sefzik's suit. The district court granted the       or constitutional provisions are not prohibited by sovereign
plea to the jurisdiction and denied Sefzik's motion for a new       immunity.” Id. at 372. While we recognized that these suits
trial. Sefzik appealed.                                             are against the state for all practical purposes, we held that
                                                                    they “cannot be brought against the state, which retains
A divided court of appeals reversed, holding that declaratory       immunity, but must be brought against the state actors in their
judgment claims do not implicate sovereign immunity and             official capacity.” Id. at 373. Thus, we allowed Heinrich to
thus TxDOT was a proper party to the UDJA action. 267               pursue claims for prospective relief against the state officials,
S.W.3d 127, 132–34 (“[W]hen a private plaintiff merely              but we dismissed the claims against the city and the other
seeks a declaration of his or her rights under a statute, such an   governmental entities. Id. at 379–80.
action is not subject to a sovereign immunity defense, and a
waiver or consent to suit is unnecessary.”). Having concluded        [6] [7] [8] Two points from Heinrich are relevant here.
that the UDJA does not implicate sovereign immunity, the            First, Heinrich held that the proper defendant in an ultra
court of appeals did not decide whether the UDJA or the APA         vires action is the state official whose acts or omissions
waives immunity.                                                    allegedly trampled on the plaintiff's rights, not the state
                                                                    agency itself. Id. at 372–373. Sefzik did not sue any state
 [2] [3] [4] Reviewing the immunity question de novo,               official. 2 Instead, he argues that the court of appeals correctly
see Harris County Hosp. Dist. v. Tomball Reg'l Hosp.,               exempted UDJA actions seeking a declaration of rights from
283 S.W.3d 838, 842 (Tex.2009), we conclude that, under             the application of the sovereign immunity doctrine. The
Heinrich, sovereign immunity bars UDJA actions against              second point from Heinrich dictates otherwise. As noted,
the state and its political subdivisions absent a legislative       we dismissed Heinrich's claims seeking declaratory and
waiver. Heinrich clarified an area of the law that had been         injunctive relief against governmental entities, brought under
unclear, namely, the intersection between the doctrine of           the UDJA, because the entities were immune. In so doing,
sovereign immunity and the ultra vires exception to it. While       we necessarily concluded that the UDJA does not waive
the doctrine of sovereign immunity originated to protect the        the state's sovereign immunity when the plaintiff seeks a
public fisc from unforeseen expenditures that could hamper          declaration of his or her rights under a statute or other law.
governmental functions, see Tex. Natural Res. Conservation          Very likely, the same claim could be brought against the
Comm'n v. IT–Davy, 74 S.W.3d 849, 854 (Tex.2002), it has            appropriate state official under the ultra vires exception, but
been used to shield the state from lawsuits seeking other           the state agency remains immune. See id. at 372–73. As we
forms of relief, see, e.g., W.D. Haden Co. v. Dodgen, 158           have consistently stated, the UDJA does not enlarge the trial
Tex. 74, 308 S.W.2d 838, 839 (1958) (“[T]he rule of state           court's jurisdiction *622 but is “merely a procedural device
immunity from suit without its consent applies to suits under       for deciding cases already within a court's jurisdiction.” Tex.
the Uniform Declaratory Judgments Act....”). Concomitant            Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388
to this rule, however, is the ultra vires exception, under          (2011) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
which claims may be brought against a state official for            S.W.2d 440, 444 (Tex.1993)). Accordingly, the underlying
nondiscretionary acts unauthorized by law. See, e.g., Fed.          action, if against the state or its political subdivisions, must
Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997). Such         be one for which immunity has expressly been waived.
lawsuits are not against the state and thus are not barred by
sovereign immunity. Id.                                              [9]    [10]     [11] Although the UDJA waives sovereign
                                                                    immunity in particular cases, Sefzik's claim does not fall
 [5] In Heinrich, we addressed which governmental entities          within the scope of those express waivers. For example, the
—the state, its subdivisions, or the relevant government actors     state may be a proper party to a declaratory judgment action
in their official capacities—are proper parties to a suit seeking   that challenges the validity of a statute. Heinrich, 284 S.W.3d
declaratory relief for an ultra vires action. 284 S.W.3d at 371–    at 373 n. 6 (citing TEX. CIV. PRAC. & REM.CODE §
73. Heinrich sued the City of El Paso and various government        37.006(b)); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
officials, claiming the defendants violated her statutory rights    692, 697–98 (Tex.2003); Tex. Educ. Agency v. Leeper, 893
when they altered her pension benefits. Id. at 369–70. She          S.W.2d 432, 446 (Tex.1994). 3 But Sefzik is not challenging


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)
55 Tex. Sup. Ct. J. 42

                                                                         went on to provide that “[p]ermits will be considered on
the validity of a statute; instead, he is challenging TxDOT's
                                                                         a first-come, first-serve basis.” Id. § 21.150 (2008) (Tex.
actions under it, and he does not direct us to any provision of
                                                                         Dep't of Transp., Permits) repealed 36 Tex. Reg. 2418
the UDJA that expressly waives immunity for his claim. 4
                                                                         (proposed Dec. 2, 2010). If the first application was denied,
                                                                         the Administrative Code specified that other applications
 [12] Sefzik also suggests that the APA provides a guide
                                                                         would be considered “between the time a denied application
for analyzing the application of sovereign immunity to his
                                                                         is returned to the applicant and the time it is resubmitted.” Id.
case. The APA's declaratory judgment provision allows a
                                                                         Sefzik contends that his application was the only one on file
plaintiff to challenge the validity or applicability of a rule.
                                                                         on the 90th day; thus, in denying his permit, TxDOT officials
See TEX. GOV'T CODE § 2001.038(a), (c) (“The validity
                                                                         failed to perform a purely ministerial duty.
or applicability of a rule ... may be determined in an action
for declaratory judgment if it is alleged that the rule or its
                                                                          [13] When this Court upholds a plea to the jurisdiction
threatened application interferes with or impairs ... a legal
                                                                         on sovereign immunity grounds, we allow the plaintiff the
right or privilege of the plaintiff.... The state agency must
                                                                         opportunity to replead if the defect can be cured. See, e.g.,
be made a party to the action.”). While the APA may waive
                                                                         Sawyer Trust, 354 S.W.3d. at 392 (citing Tex. A & M Univ.
sovereign immunity, an issue we do not decide here, Sefzik
                                                                         Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007)). As
does not challenge the validity or applicability of any agency
                                                                         mentioned, Sefzik did not sue any state officials; however,
rule. Instead, he challenges the application of the APA's
                                                                         Sefzik brought his claim pre-Heinrich. As we have observed,
contested case procedures, which are established by statute.
                                                                         our decisions prior to Heinrich were “less than clear” as to
As noted in his brief, Sefzik's claim is broader than the
                                                                         who the proper party was in a suit for declaratory remedy,
APA's scope. Moreover, the APA's mechanism for seeking
                                                                         as well as the parameters of the ultra vires exception to the
a declaration of rights does not trump Heinrich's conclusion
                                                                         doctrine of sovereign immunity. See Heinrich, 284 S.W.3d
that the state is generally immune from declaratory actions
                                                                         at 373. In light of our clarifications to this area of the law in
brought under the UDJA. Accordingly, section 2001.038
                                                                         Heinrich, Sefzik should have an opportunity to replead in an
does not carry Sefzik's claim over the hurdle of sovereign
                                                                         attempt to cure the jurisdictional defects in his petition. We
immunity.
                                                                         thus remand the case to allow Sefzik this opportunity without
                                                                         expressing any opinion on the merits of such a claim. See
In the event that we reverse the court of appeals' judgment,
                                                                         Sawyer Trust, 354 S.W.3d at 393.
Sefzik urges this Court to remand the case so that he
can replead an ultra vires claim within the trial court's
                                                                         Accordingly, without hearing oral argument, TEX. R. APP.
jurisdiction. If given that opportunity, Sefzik asserts he
                                                                         P. 59. 1, we reverse in part the court of appeals' judgment,
would plead a claim against TxDOT officials for improperly
                                                                         and remand the case to the trial court in accordance with this
denying his permit. As mentioned previously, under the
                                                                         opinion.
former Administrative Code provisions governing this case,
applicants for sign permits were required to verify that a sign
would be near adjacent commercial or industrial activities
which had *623 been open for at least ninety days. See                   Justice JOHNSON did not participate in the decision.
43 TEX. ADMIN. CODE § 21.142(2)(K), (30) (2008) (Tex.
                                                                         Parallel Citations
Dep't of Transp., Definitions) repealed 36 Tex. Reg. 2418
(2011) (proposed Dec. 2, 2010). The Administrative Code                  55 Tex. Sup. Ct. J. 42


Footnotes
1      Sefzik also alleged that TxDOT's actions violated his due process and equal protection rights under the United States and Texas
       Constitutions. The court of appeals ultimately affirmed the district court's dismissal on those issues, 267 S.W.3d at 135–38, and
       Sefzik did not petition this Court to review that decision.
2      Although Sefzik refused to apply the ultra vires label to his suit below, that is the underlying nature of his claim. The relief he seeks
       —a declaration that he is entitled to a hearing—is directly related to whether Behrens acted outside the scope of his authority in
       denying a hearing. That is, Sefzik ultimately wishes to compel a government official (Behrens) to perform some act that he considers
       to be nondiscretionary (holding a hearing). That relief falls within the ultra vires rationale.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          3
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)
55 Tex. Sup. Ct. J. 42

3      We have recognized this waiver because the UDJA expressly requires joinder of the governmental unit. See TEX. CIV. PRAC. &
       REM.CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must
       be made a party ... 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.”); Leeper, 893 S.W.2d at 446 (“The DJA expressly provides
       that ... governmental entities must be joined or notified.”). This reasoning is consistent with the requirement that the Legislature
       expressly waive immunity with “clear and unambiguous” language. TEX. GOV'T CODE § 311.034; Taylor, 106 S.W.3d at 696.
4      On “rare occasions,” we may recognize a waiver absent explicit language. Taylor, 106 S.W.3d at 697. Sefzik has not argued that we
       should infer a waiver of immunity under the UDJA, so we do not consider that possibility.


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.                                                          4
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263


                                                                 Opinion
                    848 S.W.2d 298
                Court of Appeals of Texas,                       KIDD, Justice.
                         Austin.
                                                                 The University Interscholastic League and its Executive
         UNIVERSITY INTERSCHOLASTIC                              Director, Bailey Marshall, *300 (collectively hereinafter
      LEAGUE and Bailey Marshall, Appellants,                    the “UIL”) appeal the judgment of the trial court granting a
                         v.                                      permanent injunction against the enforcement of the UIL's
    Bruce LaFeyette BUCHANAN, et al., Appellees.                 over–19 rule. 1 We will affirm the judgment of the district
     UNIVERSITY INTERSCHOLASTIC LEAGUE                           court.
         and Dr. Bailey Marshall, Appellants,
                         v.
      Phillip Earl BOMAR, Jr., et al., Appellees.                               FACTUAL BACKGROUND

    Nos. 3–92–108–CV, 3–92–161–CV. | Feb. 3,                     Composed of representatives of Texas school districts, the
   1993. | Rehearing Overruled March 31, 1993.                   UIL is a voluntary organization that regulates, among other
                                                                 things, the competitive athletics of the junior and senior
Learning disabled high school athletes sought to permanently     high school student athletes in Texas. This case involves
enjoin organization regulating high school athletics from        a challenge to section 400(a) of the UIL Constitution and
enforcing rule precluding participation by athletes over 19      Contest Rules (the “over–19 rule”) which states: “Subject to
years old. The 331st and 53rd Judicial District Courts,          the other sections of this subchapter, an individual is eligible
Travis County, B.B. Schraub, J., granted the injunction, and     to participate in a League varsity contest as a representative of
organization appealed. The Court of Appeals, Kidd, J., held      a participant school if that individual ... is less than 19 years
that: (1) athletes were “disabled” under Rehabilitation Act;     old on September 1 preceding the contest....”
(2) organization failed to reasonably accommodate athletes
by not allowing exceptions to rule; (3) students' failure        The UIL states that the underlying purpose of the over–
to exhaust remedies under Individuals with Disabilities          19 rule is to ensure the safety of the participating student
Education Act did not deprive trial court of jurisdiction; and   athletes and the equality of competitors. It argues that one
(4) “public interest exception” to mootness doctrine permitted   policy justification for the over–19 rule is the avoidance of
review.                                                          potential injury which might result if younger, less developed
                                                                 high school students are required to compete against older
Affirmed.                                                        students. Furthermore, the UIL argues that the over–19 rule
                                                                 discourages the practice of “redshirting,” i.e., having students
                                                                 repeat grades so that they will be more mature and better
Attorneys and Law Firms
                                                                 athletes during their high school years. The UIL permits no
*299 William C. Bednar, Jr., Eskew, Muir & Bednar,               exception to or waiver of the over–19 rule based on special
Austin, for University Interscholastic League.                   circumstances of individual students.

James R. Raup, McGinnis, Lochridge & Kilgore, Austin, for        Appellees, Bruce Buchanan and Phillip Bomar (the
Austin Independent School Dist. and Dr. Jim Hensley.             “Students”), obtained permanent injunctions allowing them
                                                                 to participate in the 1991 football season. The final judgments
Diane M. Henson, Graves, Dougherty, Hearon & Moody,              rendered in these causes stated that the over–19 rule violated
Austin, for Bruce LaFeyette Buchanan and Phillip Earl            Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A.
Bomar, Jr.                                                       § 794 (West Supp.1992) (“Section 504”), as applied to the
                                                                 Students. Section 504 provides in pertinent part:
Leonard J. Schwartz, Schwartz & Eichelbaum, P.C., Austin,
for Dallas Independent School Dist. and Dr. Marvin E.                         No otherwise qualified individual
Edwards.                                                                      with handicaps in the United States,
                                                                              as defined in section 706(8) of
Before CARROLL, C.J., and JONES and KIDD, JJ.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

             this title, shall, solely by reason of
             her or his handicap, be excluded
             from the participation in, be denied
                                                                      CROSS–CLAIMS OF THE SCHOOL DISTRICTS
             the benefits of, or be subjected to
             discrimination under any program or                   Both school districts filed cross-claims against the UIL,
             activity receiving Federal financial                  stating that the UIL's mandatory forfeiture rule caused them
             assistance....                                        to violate the rights of the Students. Section 700(a)(2)(C)
                                                                   (ii) of the UIL Constitution and Contest Rules (the UIL's
29 U.S.C.A. § 794.
                                                                   “mandatory forfeiture rule”) provides that if a school allows
                                                                   a student who is finally determined ineligible to participate
The factual bases for the permanent injunctions involving the
                                                                   in a UIL contest under a court order, the school must forfeit
Students are as follows.
                                                                   all contests in which the student participated. In the past, the
                                                                   UIL has enforced the mandatory forfeiture rule to require
Bruce Buchanan                                                     that a school forfeit all of its contests in which the litigating
Buchanan turned nineteen years old before he entered the           student participated even though the student's participation
twelfth grade at Travis High School of the Austin Independent      was pursuant to a lawful court-ordered injunction. 3
School District (“Austin ISD”). Because he had learning
disabilities, he had repeated the first and seventh grades.        In October 1991, the trial court issued temporary orders
During ninth grade, Buchanan began participating in his            enjoining the enforcement of the over–19 rule against the
school's football program. Although he was nineteen at the         Students and the mandatory forfeiture rule against Austin ISD
start of his senior year, Buchanan was below the average           and Dallas ISD. These two causes were then consolidated
weight and height of his team members, and he never was a          for purposes of trial and appeal. After a trial on the merits,
starter on the team.                                               the district court rendered a final judgment in favor of the
                                                                   Students and the school districts, enjoining the enforcement
Both Buchanan's mother and his Admission, Review and               of the two rules.
Dismissal (ARD) Committee 2 requested a waiver from the
over–19 rule. The UIL responded that there were “no rules          From this judgment, the UIL appeals bringing forth four
which allow for a waiver of the 19–year–old rule.” Buchanan        points of error.
instituted this lawsuit against the UIL and its director, and
later joined Austin ISD and Dr. *301 Jim Hensley, the
Superintendent of Austin ISD, as defendants in the suit to                  IMPACT OF THE REHABILITATION
enjoin the enforcement of the rule.                                            ACT ON THE OVER–19 RULE

                                                                    [1] [2] In order to obtain injunctive relief, an applicant
Phillip Bomar                                                      must establish the existence of a wrongful act, imminent
Bomar was also nineteen years of age at the start of his senior    harm, and irreparable injury, and the absence of an adequate
year. He had repeated his fourth and seventh grades, and was       remedy at law. Hues v. Warren Petroleum Co., 814
classified by his school district, Dallas Independent School       S.W.2d 526, 529 (Tex.App.—Houston [14th Dist.] 1991, writ
District (“Dallas ISD”), as learning disabled. Like Buchanan,      denied); Priest v. Texas Animal Health Comm'n, 780 S.W.2d
Bomar began playing football for his high school, Justin F.        874, 875 (Tex.App.—Dallas 1989, no writ). The decision
Kimball High School. Bomar was average in size compared            to grant or deny a permanent injunction lies within the trial
to the other members of his football team and was a starting       court's sound discretion, and appellate review is restricted to
linebacker during his junior year of high school.                  whether the action involved a clear abuse of discretion. Hues,
                                                                   814 S.W.2d at 529; Priest, 780 S.W.2d at 875.
Bomar's mother and high school principal applied for a waiver
of the over–19 rule for Bomar, which the UIL refused. In            [3] [4] The UIL argues in its first two points of error that
response, Bomar filed this action against the UIL, its director,   the trial court erred in granting the permanent injunctions
Dallas ISD, and Dr. Marvin Edwards, the Superintendent of
                                                                   against the over–19 rule and in awarding attorneys' fees. 4 In
Dallas ISD.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

its first point of error, the UIL alleges that the rule does not    Although the UIL provides a waiver procedure for some
discriminate solely on the basis of the Students' handicaps;        eligibility rules, e.g., the four-year eligibility rule, it fails
the UIL maintains that the Students are ineligible due to their     to furnish such a process for the over–19 rule. Since the
ages which are determined by their birth dates. The rule and        UIL already utilizes a waiver procedure for some rules, the
its purposes, it contends, apply equally to both handicapped        evidence indicates that instituting such a procedure for the
and non-handicapped students.                                       over–19 rule might be a reasonable accommodation in the
                                                                    UIL program to ensure that handicapped persons achieve
 *302 We agree that the UIL's enforcement of its over–19            meaningful access to the competitions regulated by the UIL.
rule as to these Students was not on the basis of a current         We find the U.S. District Court's reasoning on this issue in
handicap or because of a history of being handicapped.              Booth v. University Interscholastic League, No. A–90–CA–
However, the record clearly demonstrates that both Students         764 (W.D.Tex. Oct. 4, 1990) (case dismissed as moot Jan. 14,
repeated grades in school because of learning disabilities.         1991), particularly persuasive:
Had they not experienced difficulties in the classroom and
progressed through school at a pace slower than most                             [T]o uphold the [UIL's] blanket policy
students, they would have turned nineteen after September 1                      against consideration of the Plaintiff's
of their senior year and thus would have been age-eligible to                    circumstances in this case would be
participate in interscholastic athletics.                                        to undermine the objectives of the
                                                                                 Rehabilitation Act without advancing
The United States District Court, in Doe v. Marshall, 459                        the policies behind the 19 year-old
F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on                             eligibility rule. There is no evidence
other grounds, 622 F.2d 118 (5th Cir.1980), cert. denied,                        before the Court to suggest that the
                                                                                 [UIL] bases its decision to bar the
451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981), 5
                                                                                 Plaintiff from playing high school
invoked a balancing test of the harms inflicted upon the
                                                                                 football on any particular harm that
various parties in its determination of whether to grant a
                                                                                 might result if he is allowed to
preliminary injunction of a UIL rule. Id. at 1192. In the
                                                                                 play, or on anything other than a
present cases, evidence demonstrated that the Students would
                                                                                 policy of strictly enforcing its rules.
benefit emotionally by participating in competitive athletics.
                                                                                 But the Rehabilitation Act requires
The evidence did not show that these Students had been
                                                                                 that federally assisted programs do
involved in redshirting or that they presented a danger to other
                                                                                 more for those who fall within its
student athletes; the concerns that made the rule necessary
                                                                                 ambit. For these reasons, requiring the
are not present in these causes and the UIL is not harmed.
                                                                                 [UIL] to give special consideration
Thus, the equities before the trial court weighed in favor of
                                                                                 to the Plaintiff based on his history
enjoining the enforcement of the rule.
                                                                                 of being handicapped is a reasonable
                                                                                 accommodation.
The United States Supreme Court has stated that “an
otherwise qualified handicapped individual must be provided         Booth, at 11–12. The Students in these causes are entitled
with meaningful access to the benefit that the grantee offers....   to special consideration by the UIL to guarantee that
[T]o assure meaningful access, reasonable accommodations            the objectives of Section 504 are effectuated. A waiver
in the grantee's program or benefit may have to be made.”           mechanism for the over–19 rule would permit the UIL to
Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720,         consider the facts of particular situations in order to make
83 L.Ed.2d 661 (1985) (discussing Southeastern Community            individualized determinations as to the enforcement of the
College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d           rule. Such determinations are reasonable accommodations
980 (1979)) (emphasis added). Furthermore, the United States        which would advance both the purposes of Section 504
Court of Appeals in Brennan v. Stewart, 834 F.2d 1248, 1262         and the policies behind the over–19 rule. Under *303
(5th Cir.1988), concluded that “our precedent requires that the     these factual circumstances, the “no-exception” policy to
‘reasonable accommodation’ question be decided as an issue          the over–19 rule must yield to Section 504's reasonable
of fact....”                                                        accommodation requirement established by the United States
                                                                    Supreme Court in Alexander.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

Accordingly, we hold that the trial court did not abuse its
discretion in enjoining the enforcement of the over–19 rule.
Points of error one and two are overruled.
                                                                             MANDATORY FORFEITURE RULE

                                                                   In its fourth and final point of error, the UIL contends that
             EXHAUSTION OF REMEDIES                                the trial court erred in enjoining the mandatory forfeiture rule
                                                                   and in awarding attorneys' fees. It insists that “the rule is
 [5] In its third point of error, the UIL alleges that, because    reasonably related to a legitimate state purpose and is not
the Students did not exhaust the administrative remedies           arbitrary, capricious, or fundamentally unfair.”
under the Individuals with Disabilities Education Act (the
“IDEA”), 20 U.S.C.A. §§ 1400–1484 (West Supp.1992), 6
                                                                   Issue of Mootness
the district court lacked jurisdiction over the causes.
                                                                   The Students reurge this Court to dismiss the appeal as
Specifically, it complains that the Students did not comply
with section 1415(f) of the IDEA which states, “before the         moot. 8 They argue that since the 1991 football season has
filing of a civil action under [the Rehabilitation Act and]        ended and they have graduated, an active controversy *304
such laws seeking relief that is also available under this         no longer exists. The school districts respond by urging that
subchapter, the procedures under subsections (b)(2) and (c) of     such action on our part would vacate the trial court's judgment
this section shall be exhausted to the same extent as would be     and would permit the UIL to invoke the sanctions contained
required had the action been brought under this subchapter.”       in the mandatory forfeiture rule.
20 U.S.C.A. § 1415(f). The applicable remedy under this
statute consists of a due process hearing and subsequent            [6]    [7]    [8] The mootness doctrine is well established.
review for any complaint raised by a handicapped child or          Appellate courts only determine cases in which an actual
its parents regarding the child's education. 20 U.S.C.A. §         controversy exists. Camarena v. Texas Employment Comm'n,
1415(b)(2), (c). The UIL maintains that the Students did not       754 S.W.2d 149, 151 (Tex.1988); Texas Educ. Agency, 797
comply with this prerequisite for civil suits because they did     S.W.2d at 369. The issue of whether an injunction is valid
not request a due process hearing to contest the exclusion of      becomes moot when the injunction does not continue to
                                                                   have effect. See Parr v. Stockwell, 322 S.W.2d 615, 616
interscholastic athletics from their IEPs. 7
                                                                   (Tex.1959); Texas Educ. Agency, 797 S.W.2d at 369; Spring
                                                                   Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.App.—
The Students respond that the IDEA and Section 504
                                                                   Houston [1st Dist.] 1988, no writ). An appellate court must
are different statutes with different purposes. They urge
                                                                   set aside the judgment and dismiss the cause when an appeal
that while the IDEA strives to assure that handicapped
                                                                   is moot. Texas Educ. Agency, 797 S.W.2d at 369; Texas Parks
children receive appropriate free public education, Section
                                                                   & Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d
504 prohibits discrimination against handicapped persons.
                                                                   594, 596 (Tex.App.—Austin 1981, writ ref'd n.r.e.).
See Smith v. Robinson, 468 U.S. 992, 1016, 104 S.Ct. 3457,
3470, 82 L.Ed.2d 746 (1984). The Students argue that their
                                                                    [9] Two exceptions to the mootness doctrine currently
complaint is against the UIL for discrimination on the basis
                                                                   exist: (1) the “capable of repetition exception” and (2) the
of their handicaps, not against the school districts for denial
                                                                   “collateral consequences exception.” General Land Office v.
of a free appropriate public education; hence, relief was only
                                                                   OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990). However,
available under Section 504. They argue that, because the UIL
                                                                   neither exception applies to these causes. See Spring Branch
is not vested with the duty to provide a free appropriate public
                                                                   I.S.D., 764 S.W.2d at 18–19.
education under the IDEA, the Students could not assert their
action against the UIL under the IDEA. The record reflects
                                                                   The UIL urges this Court to avoid dismissal by adopting
that the school districts applied to the UIL for waivers to the
                                                                   a new exception to the mootness doctrine, the “public
rule which the UIL denied. Therefore, the Students and their
                                                                   interest exception.” According to the UIL, thirty-six states
school districts acted in accordance with the UIL rules, and
                                                                   have recognized the “public interest exception,” which
the cause of action was governed by Section 504 and not the
                                                                   allows appellate review of a question of considerable public
IDEA. We agree with the Students regarding this exhaustion
                                                                   importance if that question is capable of repetition between
of remedies point, and thus we overrule the UIL's third point
                                                                   either the same parties or other members of the public but for
of error.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

                                                                    exception” to the mootness doctrine, and adhere to our earlier
some reason evades appellate review. The UIL points out that
                                                                    ruling overruling the Students' motion to dismiss the appeal
other states have applied this doctrine in high school athletic
                                                                    as moot.
controversies such as this one.

                                                                    Because we elect to review these causes under the “public
In Texas Education Agency, 797 S.W.2d at 369, under
                                                                    interest exception” to the mootness doctrine, and because we
similar facts as these, we determined that the appeal was
                                                                    affirm the lower court's final judgment that the over–19 rule
moot because the football eligibility of the litigating students
                                                                    violates Section 504 of the Rehabilitation Act, we affirm the
had expired. See also Spring Branch I.S.D., 764 S.W.2d
                                                                    district court's ruling that the Students were eligible to play
at 18. However, these cases are distinguishable from the
                                                                    football during the 1991 season. Therefore, since there is no
instant cause. In neither of those cases was the question of
                                                                    basis for the UIL to invoke the mandatory forfeiture rule, we
attorneys' fees involved. 9 Furthermore, in the instant cause,
                                                                    have no need to address its fourth point of error.
the school districts, which are parties to this appeal, have a
direct interest in the continued viability of the district court
judgment to prevent the UIL from enforcing the mandatory
forfeiture rule. See Mahavongsanan v. Hall, 529 F.2d 448                                   CONCLUSION
(5th Cir.1976) (Student brought action to compel university to
                                                                    Finding no error, the judgment of the district court is affirmed.
grant a degree. After injunctive relief was granted, university
awarded degree and appealed the judgment. The Fifth Circuit
Court of Appeals held that the case was not moot because            Parallel Citations
the legal interests of the parties continued to be adverse.).
Therefore, because of these distinguishing facts, we have           81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263
decided to review the case pursuant to a “public interest


Footnotes
1      As a preliminary matter, we address the Students' motion to dismiss this appeal as moot. For reasons discussed later
       in this opinion, we decline to dismiss the appeal as moot.
2      The ARD Committee is composed of, at a minimum, a school administrator, a special education teacher, a regular
       education teacher, and the child's parent. Other persons may be included in the ARD Committee if determined to be
       necessary. One of the functions of the ARD Committee is to develop an individualized educational plan (IEP) for the
       student. Buchanan's IEP did not include interscholastic football as part of his program. Buchanan never petitioned for an
       administrative appeal of the decision of the ARD Committee to the Texas Education Agency. Buchanan's mother testified
       that because the ARD Committee recommended a waiver from the over–19 rule, she agreed with its decision, and thus
       did not feel it was necessary to appeal the decision.
3      See Texas Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex.App.—Austin 1990, no writ). (This Court
       held that the appeal in that case was moot, and therefore the underlying order was vacated. Accordingly, the UIL's
       determination of ineligibility became final and triggered the enforcement of the mandatory forfeiture rule).
4      As a preliminary matter, the UIL contends in its second point of error that the Students do not meet the definition of
       “qualified handicapped persons” under section 504 of the Rehabilitation Act. After reviewing the Act and its attendant
       regulations, we reject this argument and conclude that both students meet the definition of “qualified handicapped
       persons.”
5      Although not controlling, this Court looks to federal precedent for its persuasive value.
6      Among the stated purposes of IDEA are
           to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2)
           (B) of this title, a free appropriate public education which emphasizes special education and related services designed
           to meet their unique needs [and] to assure that the rights of children with disabilities and their parents or guardians
           are protected....
         20 U.S.C.A. § 1400(c).
7      The UIL admitted in oral argument that had the school districts declared the Students eligible under the IDEA, the UIL
       would not have abided by such determination. We also note that the school districts requested waivers from the UIL of




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)
81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

      the over–19 rule, and therefore the Students had no need to invoke an administrative procedure designed to request
      affirmative action from the school authorities.
8     We overruled the Students' original motion to dismiss as moot.
9     If we moot this appeal and the judgment of the district court is vacated, the judgment for attorneys' fees is vacated as well.


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.                                                6
§ 37.006. Parties, TX CIV PRAC & REM § 37.006




  Vernon’s Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 2. Trial, Judgment, and Appeal
         Subtitle C. Judgments
           Chapter 37. Declaratory Judgments (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 37.006

                                                          § 37.006. Parties

                                                              Currentness




(a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration
must be made parties. A declaration does not prejudice the rights of a person not a party to the proceeding.



(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.



Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.


Notes of Decisions (190)




V. T. C. A., Civil Practice & Remedies Code § 37.006, TX CIV PRAC & REM § 37.006
Current through the end of the 2015 Regular Session of the 84th Legislature
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.                                                   1
1.06. Definitions, TX ST RULES DISC P 1.06




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part I. General Rules

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06

                                                       1.06. Definitions

                                                          Currentness


A. “Address” means the registered address provided by the attorney who is the subject of the Grievance, as that address is
shown on the membership rolls maintained by the State Bar on behalf of the Clerk of the Supreme Court at the time of receipt
of the Grievance by the Chief Disciplinary Counsel.


B. “Board” means the Board of Directors of the State Bar of Texas.


C. “Chief Disciplinary Counsel” means the person serving as Chief Disciplinary Counsel and any and all of his or her assistants.


D. “Commission” means the Commission for Lawyer Discipline, a permanent committee of the State Bar of Texas.


E. “Committee” means any of the grievance committees within a single District.


F. “Complainant” means the person, firm, corporation, or other entity, including the Chief Disciplinary Counsel, initiating a
Complaint or Inquiry.


G. “Complaint” means those written matters received by the Office of the Chief Disciplinary Counsel that, either on the
face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both,
cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct.


H. “Director” means a member of the Board of Directors of the State Bar of Texas.


I. “Disability” means any physical, mental, or emotional condition that, with or without a substantive rule violation, results in
the attorney's inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or
her professional responsibilities to clients, courts, the profession, or the public.


J. “Disciplinary Action” means a proceeding brought by or against an attorney in a district court or any judicial proceeding
covered by these rules other than an Evidentiary Hearing.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
1.06. Definitions, TX ST RULES DISC P 1.06




K. “Disciplinary Petition” means a pleading that satisfies the requirements of Rule 3.01.


L. “Disciplinary Proceedings” includes the processing of a Grievance, the investigation and processing of an Inquiry or
Complaint, presentation of a Complaint before a Summary Disposition Panel, and the proceeding before an Evidentiary Panel.


M. “District” means disciplinary district.


N. “Evidentiary Hearing” means an adjudicatory proceeding before a panel of a grievance committee.


O. “Evidentiary Panel” means a panel of the District Grievance Committee performing an adjudicatory function other than that
of a Summary Disposition Panel with regard to a Disciplinary Proceeding pending before the District Grievance Committee
of which the Evidentiary Panel is a subcommittee.


P. “Evidentiary Petition” means a pleading that satisfies the requirements of Rule 2.17.


Q. “General Counsel” means the General Counsel of the State Bar of Texas and any and all of his or her assistants.


R. “Grievance” means a written statement, from whatever source, apparently intended to allege Professional Misconduct by a
lawyer, or lawyer Disability, or both, received by the Office of the Chief Disciplinary Counsel.


S. “Inquiry” means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel
that, even if true, does not allege Professional Misconduct or Disability.


T. “Intentional Crime” means (1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2)
any crime involving misapplication of money or other property held as a fiduciary.


U. “Just Cause” means 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.


V. “Penal Institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.


W. “Professional Misconduct” includes:


  1. Acts or omissions by an attorney, individually or in concert with another person or persons, that violate one or more of
  the Texas Disciplinary Rules of Professional Conduct.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
1.06. Definitions, TX ST RULES DISC P 1.06




  2. Attorney conduct that occurs in another state or in the District of Columbia and results in the disciplining of an attorney in
  that other jurisdiction, if the conduct is Professional Misconduct under the Texas Disciplinary Rules of Professional Conduct.


  3. Violation of any disciplinary or disability order or judgment.


  4. Engaging in conduct that constitutes barratry as defined by the law of this state.


  5. Failure to comply with Rule 13.01 of these rules relating to notification of an attorney's cessation of practice.


  6. Engaging in the practice of law either during a period of suspension or when on inactive status.


  7. Conviction of a Serious Crime, or being placed on probation for a Serious Crime with or without an adjudication of guilt.


  8. Conviction of an Intentional Crime, or being placed on probation for an Intentional Crime with or without an adjudication
  of guilt.


X. “Reasonable Attorneys' Fees,” for purposes of these rules only, means a reasonable fee for a competent private attorney,
under the circumstances. Relevant factors that may be considered in determining the reasonableness of a fee include but are
not limited to the following:


  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the
  legal service properly;


  2. The fee customarily charged in the locality for similar legal services;


  3. The amount involved and the results obtained;


  4. The time limitations imposed by the circumstances; and


  5. The experience, reputation, and ability of the lawyer or lawyers performing the services.


Y. “Respondent” means any attorney who is the subject of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary
Action.


Z. “Sanction” means any of the following:


  1. Disbarment.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
1.06. Definitions, TX ST RULES DISC P 1.06




  2. Resignation in lieu of discipline.


  3. Indefinite Disability Suspension.


  4. Suspension for a term certain.


  5. Probation of suspension, which probation may be concurrent with the period of suspension, upon such reasonable terms
  as are appropriate under the circumstances.


  6. Interim suspension.


  7. Public reprimand.


  8. Private reprimand.

The term “Sanction” may include the following additional ancillary requirements.


  a. Restitution (which may include repayment to the Client Security Fund of the State Bar of any payments made by reason
  of Respondent's Professional Misconduct); and


  b. Payment of Reasonable Attorneys' Fees and all direct expenses associated with the proceedings.


AA. “Serious Crime” means barratry; and felony involving moral turpitude; any misdemeanor involving theft, embezzlement,
or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another
to commit any of the foregoing crimes.


BB. “State Bar” means the State Bar of Texas.


CC. “Summary Disposition Panel” means a panel of the Committee that determines whether a Complaint should proceed or
should be dismissed based upon the absence of evidence to support a finding of Just Cause after a reasonable investigation by
the Chief Disciplinary Counsel of the allegations in the Grievance.


DD. “Wrongfully Imprisoned Person” has the meaning assigned by Section 501.101, Government Code.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004;
May 14, 2008, Aug. 20, 2008, eff. Sept. 1, 2008; Oct. 14, 2013, eff. Nov. 1, 2013.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
1.06. Definitions, TX ST RULES DISC P 1.06


               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>



Notes of Decisions (26)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06, TX ST RULES DISC P 1.06
Current with amendments received through 3/15/2015

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.                                                5
2.12. Investigation and Determination of Just Cause, TX ST RULES DISC P 2.12




  Vernon’s Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                             V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.12

                                 2.12. Investigation and Determination of Just Cause

                                                         Currentness




No more than sixty days after the date by which the Respondent must file a written response to the Complaint as set forth in
Rule 2.10, the Chief Disciplinary Counsel shall investigate the Complaint and determine whether there is Just Cause.



Credits

Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1,
1994. Renumbered from Rule 2.11 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.


      <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme Court dated Oct. 9,
                        1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>


Notes of Decisions (17)




V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.12, TX ST RULES DISC P 2.12
Current with amendments received through June 1, 2015
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.                                              1
2.13. Summary Disposition Setting, TX ST RULES DISC P 2.13




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.13

                                            2.13. Summary Disposition Setting

                                                         Currentness


Upon investigation, if the Chief Disciplinary Counsel determines that Just Cause does not exist to proceed on the Complaint,
the Chief Disciplinary Counsel shall place the Complaint on a Summary Disposition Panel docket. At the Summary Disposition
Panel docket, the Chief Disciplinary Counsel will present the Complaint together with any information, documents, evidence,
and argument deemed necessary and appropriate by the Chief Disciplinary Counsel, without the presence of the Complainant or
Respondent. The Summary Disposition Panel shall determine whether the Complaint should be dismissed or should proceed. If
the Summary Disposition Panel dismisses the Complaint, both the Complainant and Respondent will be so notified. There is no
appeal from a determination by the Summary Disposition Panel that the Complaint should be dismissed or should proceed. All
Complaints presented to the Summary Disposition Panel and not dismissed shall be placed on the Hearing Docket. The fact that
a Complaint was placed on the Summary Disposition Panel Docket and not dismissed is wholly inadmissible for any purpose
in the instant or any subsequent Disciplinary Proceeding or Disciplinary Action. Files of dismissed Disciplinary Proceedings
will be retained for one hundred eighty days, after which time the files may be destroyed. No permanent record will be kept
of Complaints dismissed except to the extent necessary for statistical reporting purposes. In all instances where a Complaint is
dismissed by a Summary Disposition Panel other than where the attorney is deceased or is not licensed to practice law in the
State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution procedure.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.12 and amended by order
of Dec. 29, 2003, eff. Jan. 1, 2004.

               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>


V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.13, TX ST RULES DISC P 2.13
Current with amendments received through 3/15/2015

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.                                                  1
2.14. Proceeding Upon a Determination of Just Cause, TX ST RULES DISC P 2.14




  Vernon’s Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                             V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.14

                                 2.14. Proceeding Upon a Determination of Just Cause

                                                          Currentness




All rights characteristically reposed in a client by the common law of this State as to every Complaint not dismissed by the
Summary Disposition Panel are vested in the Commission.



  A. Client of Chief Disciplinary Counsel: The Commission is the client of the Chief Disciplinary Counsel for every
  Complaint not dismissed by the Summary Disposition Panel.



  B. Interim Suspension: In any instance in which the Chief Disciplinary Counsel reasonably believes based upon
  investigation of the Complaint that the Respondent poses a substantial threat of irreparable harm to clients or prospective
  clients, the Chief Disciplinary Counsel may seek and obtain authority from the Commission to pursue interim suspension
  of the Respondent’s license in accordance with Part XIV of these rules.



  C. Disability: In any instance in which the Chief Disciplinary Counsel reasonably believes based upon investigation of the
  Complaint that the Respondent is suffering from a Disability to such an extent that either (a) the Respondent’s continued
  practice of law poses a substantial threat of irreparable harm to client or prospective clients; or (b) the Respondent is so
  impaired as to be unable to meaningfully participate in the preparation of a defense, the Chief Disciplinary Counsel shall
  seek and obtain client authority to refer the Complaint to the Board of Disciplinary Appeals pursuant to Part XII of these
  rules.



  D. Notification of Complaint: For each Complaint not dismissed by a Summary Disposition Panel, the Chief Disciplinary
  Counsel shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and of the
  Texas Disciplinary Rules of Professional Conduct that the Chief Disciplinary Counsel contends are violated by the alleged
  acts and/or omissions. Such notice shall be given by certified mail, return receipt requested, sent to the Respondent at the
  Address.



Credits

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
2.14. Proceeding Upon a Determination of Just Cause, TX ST RULES DISC P 2.14



Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of Dec. 23, 1992. Renumbered
from Rule 2.13 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.


      <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme Court dated Oct. 9,
                        1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>


Notes of Decisions (4)




V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.14, TX ST RULES DISC P 2.14
Current with amendments received through June 1, 2015
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.                                           2
2.16. Confidentiality, TX ST RULES DISC P 2.16




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16

                                                    2.16. Confidentiality

                                                         Currentness


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:


  1. the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the Office of
  Chief Disciplinary Counsel or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary
  Proceeding is based on conviction of a serious crime, or disclosure is ordered by a court of competent jurisdiction;


  2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private
  reprimand.


     a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and


     b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall,
     upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came
     to the attention of the Evidentiary Panel during the Disciplinary Proceeding;


  3. the record in any appeal to the Board of Disciplinary Appeals from an Evidentiary Panel's final judgment, other than an
  appeal from a judgment of private reprimand, is a public record; and


  4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or
  introduced in the course of a Disciplinary Proceeding.


B. The deliberations and voting of an Evidentiary Panel are strictly confidential and not subject to discovery. No person is
competent to testify as to such deliberations and voting.


C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission
to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
2.16. Confidentiality, TX ST RULES DISC P 2.16


Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and
the Commission on Judicial Conduct.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders
of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by order of Dec. 7, 2009, eff. Jan. 1, 2010.

               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>



Notes of Decisions (1)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16, TX ST RULES DISC P 2.16
Current with amendments received through 3/15/2015

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.                                                2
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032




                                V.T.C.A., Education Code § 21.032
                       VERNON’S TEXAS STATUTES AND CODES ANNOTATED
                                       EDUCATION CODE
                                 TITLE 2. PUBLIC SCHOOLS
           CHAPTER 21. PROVISIONS GENERALLY APPLICABLE TO SCHOOL DISTRICTS
                         SUBCHAPTER B. ADMISSION AND ATTENDANCE


               (Information regarding effective dates, repeals, etc. is provided subsequently in this document.)


  § 21.032. Compulsory Attendance

(a) Unless specifically exempted by Section 21.033 of this code or under other laws or unless a child is at least 17 years of
age and has been issued a high school equivalency certificate, every child in the state who is as much as six years of age, or
who is less than seven years of age and has previously been enrolled in first grade, and who has not completed the academic
year in which his 17th birthday occurred shall be required to attend the public schools in the district of his residence or in
some other district to which he may be transferred as provided or authorized by law a minimum of 170 days of the regular
school term of the district in which the child resides or to which he has been transferred.
(b) A child enrolled in prekindergarten or kindergarten must attend class or have an excused absence for a minimum of 85
days during each semester for which the child is enrolled.

                          <Text of subsec. (c) as amended by Acts 1993, 73rd Leg., ch. 347, § 3.01>

(c) Unless specifically exempted by Section 21.033 of this code, a student enrolled in a public school district must attend an
extended year program provided by a school district for which the student is eligible or tutorial classes required by the district
under Section 21.103(b) of this code. A district shall provide transportation services to students required to attend an
extended year program provided by a school district in the same manner as during the regular school year. A school district is
not required to provide transportation services to accommodate students required to attend tutorial classes under Section
21.103(b).

                            <Text of subsec. (c) as amended by Acts 1993, 73rd Leg., ch. 557, § 3>

(c) Unless specifically exempted by Section 21.033 of this code, a student enrolled in a public school district must attend an
extended year program for which the student is eligible that is provided by the district for students identified as likely not to
be promoted to the next grade level or tutorial classes required by the district under Section 21.103(b) of this code. A district
shall provide transportation services to each student required under this section to attend an extended year program who
would be eligible for transportation services during a regular school term. A school district is not required to provide
transportation services to accommodate students required under this section to attend tutorial classes.

                                                 1987 Main Volume Credit(s)


Acts 1969, 61st Leg., p. 2735, ch. 889, § 1, eff. Sept. 1, 1969. Amended by Acts 1981, 67th Leg., p. 2226, ch. 525, § 1, eff.
Sept. 1, 1981; Acts 1983, 68th Leg., p. 4908, ch. 871, § 1, eff. Sept. 1, 1983; Acts 1984, 68th Leg., 2nd C.S., ch. 28, art. IV,
part E, § 1, eff. Sept. 1, 1984.

                                                   1995 Pocket Part Credit(s)


Amended by Acts 1989, 71st Leg., ch. 813, § 6.05, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 391, § 25, eff. Aug. 26,
1991; Acts 1993, 73rd Leg., ch. 347, § 3.01, eff. May 31, 1993; Acts 1993, 73rd Leg., ch. 557, § 3, eff. Aug. 30, 1993.

                                                     EDUCATION CODE

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032



                                                    AUXILIARY LAWS


                                              1995 Pocket Part Auxiliary Laws


  <For table of special laws classified to Title 49, Education—Public, of the Civil Statutes, that were neither repealed by, nor
  incorporated into, the Education Code, see V.A.T.S. Education Auxiliary Laws.>


               CHAPTER 21. PROVISIONS GENERALLY APPLICABLE TO SCHOOL DISTRICTS


                                                           REPEAL


  <Section 8.33(2) of Acts 1993, 73rd Leg., ch. 347, provides for the repeal of Title 2 of the Education Code, except
  Chapters 16, 20, and 36, effective September 1, 1995>


                                                   HISTORICAL NOTES


                                        HISTORICAL AND STATUTORY NOTES


                                       1995 Pocket Part Historical and Statutory Notes

1993 Legislation


Section 3.06 of Acts 1993, 73rd Leg., ch. 347 provides:


“This article takes effect immediately and applies beginning with the 1993-1994 school year.”


Section 5 of Acts 1993, 73rd Leg., ch. 557 provides:


“This Act applies beginning with the 1993-1994 school year.”


                                      1987 Main Volume Historical and Statutory Notes


The 1981 amendment inserted “, or who is less than seven years of age and has previously been enrolled in first grade,”.


Section 2 of the 1981 amendatory act provided that it took effect beginning with the 1981-1982 school year which, under the
provisions of § 21.001, began on September 1, 1981.


The 1983 amendment added subsec. (b).


The 1984 amendment in subsec. (a) substituted “who has not completed the academic year in which his 16th birthday
occurred” for “not more than 17 years of age” and “170” for “165”; and in subsec. (b) inserted “prekindergarten or” and
substituted “85” for “82”.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032



Prior Law:
  Acts 1915, 34th Leg., pp. 93, 94, ch. 49, § 1.
  Acts 1923, 38th Leg., p. 255, ch. 121, § 1.
  Acts 1935, 44th Leg., p. 409, ch. 160, §§ 1, 2.
  Acts 1939, 46th Leg., p. 692, § 1.
  Acts 1963, 58th Leg., p. 937, ch. 367, §§ 1, 2.
  Acts 1965, 59th Leg., p. 183, ch. 75, §§ 1, 2.
  Acts 1971, 62nd Leg., p. 3024, ch. 994, § 17(2).
  Vernon’s Ann.P.C. (1925) art. 297.
  Vernon’s Ann.Civ.St. art. 2892.

                                                        REFERENCES


                                                     CROSS REFERENCES


                                               1995 Pocket Part Cross References

   Failure to attend school, see § 4.251.

                                              1987 Main Volume Cross References

   Adult education for those over compulsory attendance age, see § 11.18.
   Conduct under this law indicating need for supervision, see V.T.C.A. Family Code, § 51.03(b)(2), (4).
   Report of child abuse, violation of this section, see V.T.C.A. Family Code, § 34.02.
   Teachers’ attendance reports, see § 21.251.
   Termination of parent & child relationship, violation of this law, see V.T.C.A. Family Code, § 15.02(1)(H)(i).
   Thwarting compulsory attendance law, penalty, see § 4.25.

                                            ADMINISTRATIVE CODE REFERENCES


                                     1987 Main Volume Administrative Code References

   Compulsory student attendance, general provisions, see 19 TAC § 129.21.
   Department of Human Services, eligibility for child protective services, harm other than abuse or neglect, see 40 TAC §
   49.307.
   Department of Labor and Standards, child labor, actors, see 16 TAC § 71.6.
   School districts, compulsory attendance, see 19 TAC § 61.62.
   Texas Education Agency, adaptations for special populations, special education, clarification of provisions in federal
   regulations and state law,
   Handicapped students, see 19 TAC § 89.211.
   Parent participation in Admission, Review and Dismissal Committee meetings, see 19 TAC § 89.222.

                                              LAW REVIEW COMMENTARIES


                                       1987 Main Volume Law Review Commentaries

Married and pregnant students. 50 Texas L.Rev. 1196 (1972).

Married pupils. 19 Baylor L.Rev. 442 (1967).


                                                  LIBRARY REFERENCES


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032



                                                    1987 Main Volume Library References

  Schools    160.
  C.J.S. Schools and School Districts §§ 463 to 470.

                                                                  ANNOTATIONS


                                                             NOTES OF DECISIONS

 Age 1 ......................................................... enter p
 Attorney fees 6.5 ............................................. enter p
 Criminal proceedings 6 ........................................ enter p
 Married students 4 ............................................ enter p
 Residence 2 ................................................... enter p
 Transportation of students 3 .................................. enter p
 Tuition 5 ..................................................... enter p
 Validity 1/2 .................................................. enter p

 ½. Validity

Parents who did not enroll their children in public school as required under compulsory attendance law [V.T.C.A. Education
Code § 21.032] failed to establish that law substantially burdened their exercise of their religious beliefs in violation of free
exercise clauses [U.S.C.A. Const.Amend. 1; Vernon’s Anno. Const. Art. 1, § 26], thus exempting them from compliance,
where parents failed to show that their violation of attendance law was based on anything except their subjective views and
where parents did not make any showing of religious or cultural tradition, notwithstanding parents’ claim that word of God
constituted law that exempted them from compliance with this section. Howell v. State (App. 6 Dist.1986) 723 S.W.2d 755.

Under Texas law, trial court lacked jurisdiction to grant equitable relief or enter declaratory judgment construing or
interpreting criminal compulsory school attendance statute, where parties challenging statute did not plead or prove that it
was unconstitutional or otherwise void, or show that enforcement of statute had or would result in irreparable injury to their
vested property rights. Texas Educ. Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.

Texas Education Agency (TEA) guidelines under which parents of children being educated in private or parochial home
schools were subject to prosecution under compulsory attendance statute, while parents of children being educated in private
or parochial campus schools were not, was not rationally related to state objective of compelling education of school-aged
children in private or parochial schools if they did not attend public schools, in violation of equal protection. Texas Educ.
Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.


 1. Age

The board of trustees of a school district could not legally refuse to accept a student who was within the scholastic age even
though he had graduated from high school. Op.Atty.Gen.1939, No. 0-1388.

A child who attained age of 16 or over before beginning of public free schools in his district was not subject to provisions of
compulsory attendance law whether or not child had completed work of 9th grade, but child who attained age of 16 after
beginning of public free schools was subject to compulsory attendance law for that school year unless child was exempt from
law. Op.Atty.Gen.1949, No. V-954.

A child under 16 years of age who had completed the 9th grade was subject to the provisions of Vernon’s Ann.Civ.St. art.
2892 (repealed; now, this section) and Vernon’s Ann.P.C. (1925) art. 297 (repealed; now, this section). Op.Atty.Gen.1961,
No. WW-1216.


 2. Residence

                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        4
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032



Parents cannot be compelled to send their children to the school district of their residence if they do not desire to do so,
especially where they send children to another proper school. Palmer v. District Trustees of Dist. No. 21 (Civ.App.1956) 289
S.W.2d 344, ref. n.r.e.


 3. Transportation of students

It is legal duty of parents to require their children of 16 years of age or under to attend school, and the way and manner such
children are to be conveyed to school is a business problem to be solved by the parents. Cotterly v. Nuirhead (Civ.App.1952)
244 S.W.2d 920, ref. n.r.e.

Where second school district voluntarily taught students in question, although students were nonresidents and had not been
lawfully transferred to this district, their attendance was not unlawful, and district of student’s residence could not prevent
private persons from transporting the students to the schools. Palmer v. District Trustees of Dist. No. 21 (Civ.App.1956) 289
S.W.2d 344, ref. n.r.e.


 4. Married students

School board was without authority to adopt rule that students who marry during school term must withdraw from school for
remainder of school year and board could not deny admission to student, because of fact she was married. Anderson v.
Canyon Independent School Dist. (Civ.App.1967) 412 S.W.2d 387.

A girl attending school who attained the age of sixteen years and subsequently married in accordance with State laws was not
subject to compulsory school attendance law. Op.Atty.Gen.1956, S-20.


 5. Tuition

Independent school district may charge tuition for pupils within compulsory school ages transferred from other districts.
Muse v. McKinney Independent School Dist. (Civ.App.1931) 35 S.W.2d 780.


 6. Criminal proceedings

The compulsory education law required school attendance for a minimum of 120 days a year and the failure to file a
complaint within the first 120 days of the school year would not preclude a criminal action against the parent or the person
standing in parental relation to the child. Op.Atty.Gen.1960, No. WW-862.


 6.5. Attorney fees

School districts could be held liable for attorneys’ fees under federal civil rights attorney fees statute in action in which
parents who taught their children at home successfully challenged Texas Education Agency (TEA) guidelines subjecting
them to prosecution under compulsory attendance statute, where school districts implemented TEA’s unconstitutional policy
by requesting criminal prosecution of parents. Texas Educ. Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing
denied, writ granted.

Requiring school districts to pay home school parents’ attorneys’ fees and costs in action in which parents successfully
challenged Texas Education Association (TEA) guidelines subjecting them to criminal prosecution under compulsory
attendance statutes was equitable and just, as required by attorney fee statute, although TEA was not required to pay fees.
Texas Educ. Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.

Attorneys’ failure to segregate their fees and expenses as to claims and parties in class action challenging state guidelines for
application of compulsory school attendance statute did not preclude award of attorneys’ fees, where all claims arose out of
same fact situation and were all interrelated. Texas Educ. Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing
denied, writ granted.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
§ 21.032. Compulsory Attendance, V.T.C.A., Education Code § 21.032



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.                                       6
§ 21.033. Exemptions, V.T.C.A., Education Code § 21.033




                                   V.T.C.A., Education Code § 21.033
                          VERNON’S TEXAS STATUTES AND CODES ANNOTATED
                                          EDUCATION CODE
                                    TITLE 2. PUBLIC SCHOOLS
              CHAPTER 21. PROVISIONS GENERALLY APPLICABLE TO SCHOOL DISTRICTS
                            SUBCHAPTER B. ADMISSION AND ATTENDANCE


                 (Information regarding effective dates, repeals, etc. is provided subsequently in this document.)


  § 21.033. Exemptions

(a) The following classes of children are exempt from the requirements of compulsory attendance:
 (1) any child in attendance upon a private or parochial school which shall include in its course a study of good citizenship;
 (2) any child who is handicapped as defined in Section 21.503 of this code and who cannot be appropriately served by the
 resident district in accordance with the requirements of Section 21.032 of this code;
 (3) any child who has a physical or mental condition of a temporary and remediable nature which renders such child’s
 attendance infeasible and who holds a certificate from a qualified physician specifying the temporary condition, indicating
 the treatment prescribed to remedy the temporary condition, and covering the anticipated period of the child’s absence from
 school for the purpose of receiving and recuperating from such remedial treatment;
 (4) any child expelled in accordance with the requirements of law;
 (5) any child who is at least 17 years old and in attendance upon a course of instruction to prepare for the high school
 equivalency examinations;
 (6) any child who is at least 16 years old and in attendance upon a course of instruction to prepare for the high school
 equivalency examinations provided that the person is recommended to the course of instruction by a public agency which
 has supervision or custody of the person under a court order; and
 (7) any child who is enrolled in the Texas Academy of Leadership in the Humanities.
(b) This section does not relieve a resident district as defined by Section 21.502 of this code of its fiscal and administrative
responsibilities under Subchapter N of this chapter1 or of its responsibility to provide a handicapped child with a free
appropriate public education.

                                                  1987 Main Volume Credit(s)


Acts 1969, 61st Leg., p. 2735, ch. 889, § 1, eff. Sept. 1, 1969. Amended by Acts 1971, 62nd Leg., p. 1513, ch. 405, § 40, eff.
May 26, 1971; Acts 1973, 63rd Leg., p. 769, ch. 342, § 1, eff. June 12, 1973; Acts 1975, 64th Leg., p. 2378, ch. 734, § 2, eff.
June 21, 1975; Acts 1979, 66th Leg., p. 1321, ch. 602, § 21, eff. Aug. 27, 1979; Acts 1984, 68th Leg., 2nd C.S., ch. 28, art.
IV, part E, § 2, eff. Sept. 1, 1984; Acts 1985, 69th Leg., ch. 383, § 1, eff. Aug. 26, 1985.

                                                   1995 Pocket Part Credit(s)


Amended by Acts 1990, 71st Leg., 6th C.S., ch. 1, § 3.12, eff. Sept. 1, 1990; Acts 1991, 72nd Leg., ch. 461, § 2, eff. June 11,
1991.
  1
      Section 21.501 et seq.


                                                      EDUCATION CODE


                                                      AUXILIARY LAWS



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
§ 21.033. Exemptions, V.T.C.A., Education Code § 21.033



                                                1995 Pocket Part Auxiliary Laws


  <For table of special laws classified to Title 49, Education—Public, of the Civil Statutes, that were neither repealed by, nor
  incorporated into, the Education Code, see V.A.T.S. Education Auxiliary Laws.>


               CHAPTER 21. PROVISIONS GENERALLY APPLICABLE TO SCHOOL DISTRICTS


                                                           REPEAL


  <Section 8.33(2) of Acts 1993, 73rd Leg., ch. 347, provides for the repeal of Title 2 of the Education Code, except
  Chapters 16, 20, and 36, effective September 1, 1995>


                                                    HISTORICAL NOTES


                                        HISTORICAL AND STATUTORY NOTES


                                       1995 Pocket Part Historical and Statutory Notes

1989 Legislation


Acts 1989, 71st Leg., ch. 658, § 11 provides:


“Nothing in this Act applies to students in attendance upon a private or parochial school, which includes home schools, in
accordance with Section 21.033, Education Code.”


                                      1987 Main Volume Historical and Statutory Notes


Vernon’s Ann.Civ.St. art. 2893 was amended by Acts 1969, 61st Leg., p. 871, ch. 289, § 3; Acts 1969, 61st Leg., p. 1669, ch.
532, § 1; and by Acts 1969, 61st Leg., p. 1964, ch. 664, § 1. Such amendatory acts were repealed by Acts 1971, 62nd Leg., p.
1533, ch. 405, § 54(2), which by §§ 40, 41 thereof incorporated the provisions of the 1969 Acts into the Education Code by
amending this section and adding section 21.0331.


The 1971 amendment deleted the requirement that the school make the English language the basis of instruction in all
subjects in subd. (1); rewrote subd. (2) which read:


“any child whose bodily or mental condition is such as to render attendance inadvisable and who holds a definite certificate
of a reputable physician specifying the condition and covering the period of absence;”;


deleted former subd. (3) which related to any child who was blind, deaf, dumb, or feebleminded; deleted subd. (4) which
related to children living more than 2½ miles from school and having no fee transportation; and renumbered former subd. (5)
as subd. (3).

The 1973 amendment in subd. (3), deleted “county” before “superintendent” and added subd. (4).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
§ 21.033. Exemptions, V.T.C.A., Education Code § 21.033



The 1975 amendment rewrote subd. (2); inserted new subd. (3); renumbered former subd. (3) as (4) and therein substituted
“chief administrator of the school which such child would otherwise attend” for “superintendent”; deleted former subd. (4);
added subd. (5). Prior to deletion, former subd. (4) read:

 “any child more than 15 years of age who is enrolled in a technical-vocational training program, a work-study program, or
 an apprenticeship program approved by the superintendent, parent or guardian of the public school he would otherwise
 attend.”

The 1979 amendment inserted subsection designation “(a)”; in subsec. (a), rewrote subd. (2) which previously read:

 “(2) any child who has a physical or mental handicap that:
  “(A) is not of a temporary and readily remediable nature, and
  “(B) according to the great weight and preponderance of adequate diagnostic and evaluative information of a current
  nature, consisting of both specialty medical examinations and pertinent specialty assessments by qualified personnel
  regularly engaged in the provision of special education and related services to handicapped individuals, renders the child’s
  attendance in regular classrooms or in special educational facilities supported with tax funds useless or inconsistent with
  the child’s best interests;”;

and in subd. (3) substituted “infeasible” for “unfeasible”; added subsec. (b).

The 1984 amendment in subsec. (a) in subd. (2) substituted “21.503” for “16.104” in subd. (3) added “and” at the end;
deleted former subd. (4) which related to children more than 17 years old who had satisfactorily completed ninth grade and
who showed that their services were needed by parents or those in a parental relation and renumbered formed subd. (5) as
subd. (4).


The 1985 amendment in subsec. (b) substituted “21.502” for “16.104” and substituted “Subchapter N of this chapter” for
“that section”.


Prior Law:
  Acts 1915, 34th Leg., pp. 93, 94, ch. 49, § 2.
  Acts 1921, 37th Leg., p. 235, ch. 125, § 1.
  Acts 1923, 38th Leg., p. 255, ch. 121, § 2.
  Acts 1945, 49th Leg., p. 185, ch. 142, §§ 1, 2.
  Acts 1965, 59th Leg., p. 1020, ch. 504, § 1.
  Acts 1969, 61st Leg., p. 871, ch. 289, §§ 3, 4.
  Acts 1969, 61st Leg., p. 1669, ch. 532, § 1.
  Acts 1969, 61st Leg., p. 1964, ch. 664, § 1.
  Acts 1971, 62nd Leg., p. 1533, ch. 405, § 54(2).
  Vernon’s Ann.P.C. (1925) art. 298.
  Vernon’s Ann.Civ.St. art. 2893.

                                                        REFERENCES


                                         ADMINISTRATIVE CODE REFERENCES


                                     1987 Main Volume Administrative Code References

   Nonpublic and elementary schools, recognition for compulsory attendance, see 19 TAC § 65.2.
   Texas Education Agency, adaptations for special populations, special education, clarification of provisions in federal
   regulations and state law, parent participation in Admission, Review and Dismissal Committee meetings, see 19 TAC §
   89.222.

                                                  LIBRARY REFERENCES
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
§ 21.033. Exemptions, V.T.C.A., Education Code § 21.033



                                                    1987 Main Volume Library References

  Schools    160.
  C.J.S. Schools and School Districts §§ 463 to 470.

                                                                  ANNOTATIONS


                                                             NOTES OF DECISIONS

 Private or parochial school 1 ................................. enter p

 1. Private or parochial school

Class of parents teaching their children at home met commonality, numerosity and typicality requirements required for class
certification in action challenging guidelines for application of compulsory attendance statute; all class members were at risk
of prosecution under existing policy which declared that their children could not be considered in attendance at private or
parochial school. Texas Educ. Agency v. Leeper (App. 2 Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.

Award of classwide injunctive relief was appropriate in action brought by class of parents who taught their children at home
against defendant class of public school districts and their school attendance officers, challenging state guidelines under
which parents were subject to prosecution under compulsory attendance statute. Texas Educ. Agency v. Leeper (App. 2
Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.

Evidence concerning history of public education was sufficient to support finding that child receiving home education using
curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics and civics was attending a
“private or parochial school” within meaning of compulsory education statutes. Texas Educ. Agency v. Leeper (App. 2
Dist.1991) 843 S.W.2d 41, rehearing denied, writ granted.

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.                                                     4
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Chapter 81. State Bar (Refs & Annos)
              Subchapter E. Discipline (Refs & Annos)

                                            V.T.C.A., Government Code § 81.072

                                § 81.072. General Disciplinary and Disability Procedures

                                                 Effective: September 1, 2013
                                                         Currentness


(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;


  (3) periodic preparation of abstracts of inquiries and complaints filed that, even if true, do or do not constitute misconduct;


  (4) an information file for each grievance filed;


  (5) a grievance tracking system to monitor processing of grievances by category, method of resolution, and length of time
  required for resolution;


  (6) notice by the state bar to the parties of a written grievance filed with the state bar that the state bar has the authority
  to resolve of the status of the grievance, at least quarterly and until final disposition, unless the notice would jeopardize an
  undercover investigation;


  (7) an option for a trial in a district court on a complaint and an administrative system for attorney disciplinary and disability
  findings in lieu of trials in district court, including an appeal procedure to the Board of Disciplinary Appeals and the supreme
  court under the substantial evidence rule;


  (8) an administrative system for reciprocal and compulsory discipline;




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




  (9) interim suspension of an attorney posing a threat of immediate irreparable harm to a client;


  (10) authorizing all parties to an attorney disciplinary hearing, including the complainant, to be present at all hearings at
  which testimony is taken and requiring notice of those hearings to be given to the complainant not later than the seventh
  day before the date of the hearing;


  (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a
  committee:


     (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary
     rule; or


     (B) giving a private reprimand for a violation:


       (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or


       (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to
       the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas
       Disciplinary Rules of Professional Conduct; and


  (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.


(b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection
(b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges
a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from
a penal institution.


(b-2) For purposes of Subsection (b-1):


  (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or
  information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule
  3.09(d), Texas Disciplinary Rules of Professional Conduct.


  (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.


  (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




(c) In addition to the minimum standards and procedures provided by this chapter, the supreme court, under Section 81.024 shall
prepare, propose, and adopt rules it considers necessary for disciplining, suspending, disbarring, and accepting resignations
of attorneys.


(d) Each attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional
Conduct.


(e) The state bar shall establish a voluntary mediation and dispute resolution procedure to:


  (1) attempt to resolve each allegation of attorney misconduct that is:


     (A) classified as an inquiry under Section 81.073(a)(2)(A) because it does not constitute an offense cognizable under the
     Texas Disciplinary Rules of Professional Conduct; or


     (B) classified as a complaint and subsequently dismissed; and


  (2) facilitate coordination with other programs administered by the state bar to address and attempt to resolve inquiries and
  complaints referred to the voluntary mediation and dispute resolution procedure.


(e-1) All types of information, proceedings, hearing transcripts, and statements presented during the voluntary mediation and
dispute resolution procedure established under Subsection (e) are confidential to the same extent the information, proceedings,
transcripts, or statements would be confidential if presented to a panel of a district grievance committee.


(f) Responses to the survey provided for in Subsection (b)(12) may not identify either the complainant or attorney and shall
be open to the public. The topics must include:


  (1) treatment by the grievance system staff and volunteers;


  (2) the fairness of grievance procedures;


  (3) the length of time for grievance processing;


  (4) disposition of the grievance; and


  (5) suggestions for improvement of the grievance system.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




(g) A person may not maintain an action against a complainant or witness in a disciplinary proceeding based on a communication
made by the complainant or witness to the commission, a grievance committee, or the chief disciplinary counsel. The immunity
granted by this subsection is absolute and unqualified.


(h) The state bar or a court may not require an attorney against whom a disciplinary action has been brought to disclose
information protected by the attorney-client privilege if the client did not initiate the grievance that is the subject of the action.


(i) A panel of a district grievance committee of the state bar that votes on a grievance matter shall disclose to the complainant
and the respondent in the matter the number of members of the panel:


  (1) voting for a finding of just cause;


  (2) voting against a finding of just cause; and


  (3) abstaining from voting on the matter.


(j) A quorum of a panel of a district grievance committee of the state bar must include one public member for each two attorney
members.


(k) A member of a panel of a district grievance committee of the state bar may vote on a grievance matter to which the panel
was assigned only if the member is present at the hearing at which the vote takes place.


(l) A person may be appointed to serve on a panel of a district grievance committee of the state bar only if the person is a
member of the district grievance committee from which the panel was assigned and the person was appointed to serve on the
committee in strict accordance with the Texas Rules of Disciplinary Procedure.


(m) A panel of a district grievance committee of the state bar may not be changed in size for the purpose of obtaining a quorum
on the panel without the approval of the complainant and the respondent in the grievance matter to which the panel was assigned.


(n) A member of a panel of a district grievance committee of the state bar may not be substituted with another member of the
district grievance committee on the day of the hearing for which the panel was assigned without the approval of the complainant
and the respondent in the grievance matter.


(o) Whenever a grievance is either dismissed as an inquiry or dismissed as a complaint in accordance with the Texas Rules
of Disciplinary Procedure and that dismissal has become final, the respondent attorney may thereafter deny that a grievance
was pursued and may file a motion with the tribunal seeking expunction of all records on the matter, other than statistical or
identifying information maintained by the chief disciplinary counsel pertaining to the grievance.




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§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




Credits
Added by Acts 1987, 70th Leg., ch. 148, § 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, § 20, eff. Sept.
1, 1991; Acts 2001, 77th Leg., ch. 1436, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 227, §§ 15, 16, eff. Sept. 1, 2003;
Acts 2013, 83rd Leg., ch. 450 (S.B. 825), § 1, eff. Sept. 1, 2013.



Notes of Decisions (20)

V. T. C. A., Government Code § 81.072, TX GOVT § 81.072
Current through the end of the 2013 Third Called Session of the 83rd Legislature

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.                                                 5
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494




   KeyCite Yellow Flag - Negative Treatment
Judgment Withdrawn and Reissued May 13, 2003
                                                      106 S.W.3d 692
                                                  Supreme Court of Texas.

                                WICHITA FALLS STATE HOSPITAL, Petitioner,
                                                       v.
            Deborah D. TAYLOR, Individually and as Heir of the Estate of Terry Lynn Taylor, Respondent.

                            No. 01–0491. | Argued April 3, 2002. | Decided March 6, 2003.


After state hospital patient committed suicide following his discharge, patient’s wife brought wrongful death and survival
action against hospital and one of its doctors, alleging that patient was discharged in a manner contrary to the “patient’s bill
of rights” adopted by Department of Mental Health and Mental Retardation (MHMR). Hospital filed plea to the jurisdiction.
The 249th District Court, Johnson County, denied plea. Hospital appealed. The Court of Appeals, 48 S.W.3d 782, affirmed.
Hospital petitioned for review. In a case of first impression, the Supreme Court, Wallace B. Jefferson, J., held that the
legislature did not waive the State’s sovereign immunity by enacting the patient’s bill of rights.

Reversed.


Attorneys and Law Firms

*693 Lisa Royce Eskow, Atty. General’s Office, Austin, John Cornyn, United States Senate, Washington, DC, Howard G.
Baldwin, First Asst. Atty. Gen. of Tex., Jeffrey S. Boyd, Office of Atty. Gen., Julie Caruthers Parsley, Office of Sol. Gen., S.
Ronald Keister, Office of Atty. Gen., William Rich Thompson, II, Office of Atty. Gen., Austin, for Petitioner.

Michael D. Moore, Weatherford, James B. Barlow and Eugene J. Dozier, Barlow & Garsek, Fort Worth, for Respondent.

Opinion

Justice JEFFERSON delivered the opinion of the Court.


This is an interlocutory appeal in a wrongful-death lawsuit against Wichita Falls State Hospital for violations of the “patient’s
bill of rights,” which is codified at chapter 321 of the Texas Health and Safety Code. We must determine whether *694 the
Legislature intended to waive the State’s sovereign immunity by enacting section 321.003 of the Code. We conclude that it
did not. Accordingly, we reverse the court of appeals’ judgment and dismiss Taylor’s claims for want of jurisdiction.




                                                                I



                                                          Background

Terry Lynn Taylor was involuntarily committed to Wichita Falls State Hospital for severe mental illness. Taylor was
discharged four days later, after being treated by Dr. Peter Fadow, a psychiatrist at the Hospital. Taylor returned home and
committed suicide that same day. Taylor’s wife, Deborah Taylor, sued the Hospital and Dr. Fadow under Texas Health and
Safety Code section 321.003, asserting claims for wrongful death and survival. TEX. CIV. PRAC. & REM.CODE §§ 71.002,
.021. She alleged that Taylor’s death was proximately caused by the negligence of the doctor and Hospital in failing to
properly diagnose and treat his mental illness, and that the defendants’ acts and omissions violated the patient’s bill of rights.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

See 25 TEX. ADMIN. CODEE §§ 133.42, 404.154–.159.

The Hospital moved to dismiss for want of jurisdiction based on sovereign immunity.1 In her response, Deborah Taylor
argued that the Legislature unambiguously waived the Hospital’s immunity by enacting Texas Health and Safety Code
section 321.003, which provides that a person who has been harmed by a violation of the patient’s bill of rights “may sue” for
damages. The trial court denied the Hospital’s jurisdictional plea and the Hospital appealed. A divided court of appeals
affirmed, holding that the Legislature clearly and unambiguously waived immunity from suit against state mental health
facilities for violations of the patient’s bill of rights. 48 S.W.3d 782. We granted the Hospital’s petition for review to consider
this issue of first impression.2

1
              Wichita Falls State Hospital was part of the Texas Department of Mental Health and Mental Retardation when the alleged injury
              occurred and is therefore entitled to assert sovereign immunity. See TEX. HEALTH & SAFETY CODE § 532.001(b)(8) (1997),
              amended by Acts 1999, 76th Leg., ch. 543, § 1 eff. June 18, 1999 (Wichita Falls State Hospital and Vernon State Hospital have
              since merged to create the North Texas State Hospital).



2
              45 Tex. Sup.Ct. J. 352 (Feb. 2, 2002).




                                                                          II



                                                                     Discussion


A. Sovereign Immunity3
3
              Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct
              concepts. Sovereign immunity refers to the State’s immunity from suit and liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,
              405 (Tex.1997). In addition to protecting the State from liability, it also protects the various divisions of state government,
              including agencies, boards, hospitals, and universities. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). Governmental
              immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts. City of
              LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex.1993); see
              also Renna Rhodes, Principles of Governmental Immunity in Texas: The Texas Government Waives Sovereign Immunity When it
              Contracts—Or Does It?, 27 ST. MARY’S L.J. 679, 693–96 (1996).


[1] [2] [3]
         In 1847, this Court held that “no State can be sued in her own courts without her consent, and then only in the manner
indicated by that consent.” Hosner v. De Young, 1 Tex. 764, 769 (1847). The Court did not cite the origin of that declaration,
but it appears to be rooted in an early understanding of sovereignty:

                   *695 It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without
                   its consent. This is the general sense and the general practice of mankind; and the exemption, as one of
                   the attributes of sovereignty, is now enjoyed by the government of every State in the Union.

THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (dismissing fears that adopting the
new Constitution would abrogate states’ sovereign immunity). Although sometimes associated in the United States with the
feudal fiction that “the King can do no wrong,” sovereign immunity “is an established principle of jurisprudence in all
civilized nations.” Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857).

Most sovereigns have long since abandoned the fiction that governments and their officials can “do no wrong.” To varying

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Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

degrees, states and the federal government have voluntarily relinquished the privilege of absolute immunity by waiving
immunity in certain contexts. See, e.g., 28 U.S.C. § 1346(b); TEX. CIV. PRAC. & REM.CODE § 101.021. Invariably,
however, they have retained a significant measure of immunity to protect the public treasury. See Fed. Sign v. Tex. S. Univ.,
951 S.W.2d 401, 417 (Tex.1997) (Enoch, J., dissenting); Elizabeth K. Hocking, Federal Facility Violations of the Resource
Conservation and Recovery Act and the Questionable Role of Sovereign Immunity, 5 ADMIN. L.J. 203, 211 (1991); Louis L.
Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L.REV.. 1, 1 (1963); Glen A. Majure et al.,
The Governmental Immunity Doctrine in Texas—An Analysis and Some Proposed Changes, 23 SW. L.J. 341, 341 (1969).



B. Waiver of Immunity
[4]
   Because consent is pivotal to a waiver of sovereign immunity, it is important to consider the manner in which a sovereign
conveys its consent to be sued. Under our form of government, the state derives its authority from “the people.” E.g., TEX.
CONST. art. I, § 2 (stating that “[a]ll political power is inherent in the people, and all free governments are founded on their
authority, and instituted for their benefit”); see also Alden v. Maine, 527 U.S. 706, 759, 119 S.Ct. 2240, 144 L.Ed.2d 636
(1999) (noting that the federal Constitution began “with the principle that sovereignty rests with the people”). In Texas, the
people’s will is expressed in the Constitution and laws of the State. See Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147,
153–54 (1943); Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465–66 (Tex.1997). Consequently,
to waive immunity, consent to suit must ordinarily be found in a constitutional provision or legislative enactment.

Courts in other jurisdictions have occasionally abrogated sovereign immunity by judicial decree.4 We have held, however,
that the Legislature is better suited to balance the conflicting policy issues associated with waiving immunity. See Tex.
Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 854 (Tex.2002); Guillory v. Port of Houston Auth., 845
S.W.2d 812, 813 (Tex.1993); Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); *696 Lowe v. Tex. Tech Univ., 540 S.W.2d
297, 298 (Tex.1976). But see Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 593 (Tex.2001), (Hecht, J.,
concurring) (noting that judicial abolition of immunity may be necessary to prompt Legislature to enact reasoned system for
determining government’s responsibility for its torts). Although we have not absolutely foreclosed the possibility that the
judiciary may abrogate immunity by modifying the common law, we have no occasion to consider that possibility today.

4
           See, e.g., Evans v. Bd. of County Comm’rs, 174 Colo. 97, 482 P.2d 968, 972 (1971); Molitor v. Kaneland Cmty. Unit Dist. No. 302,
           18 Ill.2d 11, 163 N.E.2d 89, 95 (1959); Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597, 603 (1975); Pruett v. City of
           Rosedale, 421 So.2d 1046, 1052 (Miss.1982); Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 639–40 (N.D.1994); Mayle v.
           Pa. Dep’t of Highways, 479 Pa. 384, 388 A.2d 709, 709–10 (1978); McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741, 742–43
           (1985).


[5] [6] [7] [8] [9] [10]
                  When considering immunity in Texas, we address not only whether the State has consented to suit, but also
whether the State has accepted liability. Fed. Sign, 951 S.W.2d at 405. Immunity from suit prohibits suits against the State
unless the State expressly consents to the suit. Id. Thus, even if the State acknowledges liability on a claim, immunity from
suit bars a remedy until the Legislature consents to suit. Id. Immunity from liability protects the State from judgments even
after the State has consented to suit. Id. Accordingly, even if the Legislature has authorized a claimant to sue, the State’s
immunity is retained until it acknowledges liability. Id. Unlike immunity from suit, immunity from liability does not affect a
court’s jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction. See Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638–39 (Tex.1999).
[11]
    It is settled in Texas that for the Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a
clear and unambiguous expression of the Legislature’s waiver of immunity. Fed. Sign, 951 S.W.2d at 405; Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994); Duhart, 610 S.W.2d at 742. In 2001, the Legislature ratified
this approach by adding section 311.034 to the Code Construction Act. That section provides: “In order to preserve the
legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a
waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” TEX. GOV’T CODE §
311.034.

Some statutes leave no doubt about the Legislature’s intent to waive immunity. When the Legislature pronounces, for

                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

example, that “[s]overeign immunity to ... liability is waived and abolished to the extent of liability created by this chapter,”
we have had little difficulty recognizing a waiver of immunity from liability.5 But this case presents no such explicit language
waiving immunity from liability. And because the State cannot properly assert immunity from liability in a plea to the
jurisdiction, we have no occasion to decide the extent to which immunity from liability is implicated here. Jones, 8 S.W.3d at
638.

5
            See, e.g., TEX. GOV’T CODE § 554.0035 (“Sovereign immunity is waived and abolished to the extent of liability for the relief
            allowed under this chapter for a violation of this chapter.”); Id. § 2007.004(a) ( “Sovereign immunity to ... liability is waived and
            abolished to the extent of liability created by this chapter.”); Id. § 2007.024(c) ( “Sovereign immunity to liability is waived to the
            extent the governmental entity elects to pay compensation under this subsection.”); TEX. NAT. RES.CODE § 52.035(c) (“The
            state waives its right to claim sovereign immunity in any action commenced against the state....”); TEX. CIV. PRAC. &
            REM.CODE § 110.008 (“Subject to Section 110.006, sovereign immunity ... from liability is waived and abolished to the extent of
            liability created by Section 110.005....”); Id. § 101.021 (expressly imposing liability on a governmental unit for property damage
            and personal injury).



Similarly, we have little difficulty recognizing the Legislature’s intent to waive *697 immunity from suit when a statute
provides that a state entity may be sued or that “sovereign immunity to suit is waived.”6 This case, however, does not contain
the sort of language the Legislature generally uses to confirm its intent to waive immunity from suit. Accordingly, we
examine factors we have employed to determine whether a statute that is less explicit may nevertheless waive the State’s
immunity from suit.

6
            See, e.g., TEX. CIV. PRAC. & REM.CODE § 101.025(a) ( “Sovereign immunity to suit is waived and abolished to the extent of
            liability created by this chapter.”); Id. § 63.007(b) (“The state’s sovereign immunity to suit is waived only to the extent necessary
            to authorize a garnishment action in accordance with this section.”); Id. § 81.010(d) (“Governmental immunity to suit is waived
            and abolished only to the extent of the liability created by Subsection (b).”); Id. § 101.025(b) (“A person having a claim under this
            chapter may sue a governmental unit for damages allowed by this chapter.”); Id. § 103.002(a) (“A person may bring a suit against
            the state under this chapter, and the state’s immunity from suit is waived.”); TEX. GOV’T CODE § 2007.004(a) (“Sovereign
            immunity to suit ... is waived and abolished to the extent of liability created by this chapter.”); Id. § 554.0035 (“A public employee
            who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this
            chapter.”); TEX. PROP.CODE § 74.506(c) (“The state’s immunity from suit without consent is abolished with respect to suits
            brought under this section.”); see also TEX. GOV’T CODE § 554.0035 (“A public employee whose employment is suspended or
            terminated or who is discriminated against in violation of Section 554.002 is entitled to sue ....”) amended by Acts 1995, 74th Leg.,
            ch. 721, § 3, eff. June 15, 1995.


[12]
    We have on rare occasions found waiver of sovereign immunity absent “magic words,” such as the State’s “sovereign
immunity to suit and liability is waived.” Although it is more difficult to discern legislative consent under those
circumstances, we have employed several aids to help guide our analysis in determining whether the Legislature has clearly
and unambiguously waived sovereign immunity. First, a statute that waives the State’s immunity must do so beyond doubt,
even though we do not insist that the statute be a model of “perfect clarity.” City of LaPorte v. Barfield, 898 S.W.2d 288,
291–92 (Tex.1995). For example, we have found waiver when the provision in question would be meaningless unless
immunity were waived. Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex.2000) (holding that the anti-retaliation
statute had no meaning absent waiver of sovereign immunity).
[13] [14]
        Second, when construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by
retaining immunity. See, e.g., Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 249–50 (Tex.2002); IT–Davy, 74
S.W.3d at 853–54; Guillory, 845 S.W.2d at 813–14; Duhart, 610 S.W.2d at 742–43; see also Magnolia Petroleum Co. v.
Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935) (ambiguities in the terms of a legislative grant of a right or a privilege
must be construed in favor of the State). In this respect, our methodology resembles that of the United States Supreme Court
when it considers a purported waiver of the federal government’s sovereign immunity. See United States v. Williams, 514
U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (when confronted with purported waiver of federal government’s
sovereign immunity, Court will “constru[e] ambiguities in favor of immunity”). If the text and history of the statute leave
room to doubt whether the Legislature intended to waive sovereign immunity, we are less likely to find a waiver.


                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       4
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

[15]
   Third, if the Legislature requires that the State be joined in a lawsuit for *698 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) (holding that, “by authorizing declaratory judgment actions to construe the legislative enactments of
governmental entities and authorizing awards of attorneys fees, the [Declaratory Judgments Act] necessarily waives
governmental immunity for such awards”).
[16]
    Finally, we are cognizant that, when waiving immunity by explicit language, the Legislature often enacts simultaneous
measures to insulate public resources from the reach of judgment creditors. See, e.g., TEX. CIV. PRAC. & REM.CODE §§
101.023–.024; TEX. GOV’T CODE §§ 554.003, 2007.023. Therefore, when deciding whether the Legislature intended to
waive sovereign immunity and permit monetary damages against the State, one factor to consider is whether the statute also
provides an objective limitation on the State’s potential liability. See IT–Davy, 74 S.W.3d at 854 (noting that “[s]ubjecting
the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes
toward defending lawsuits and paying judgments”); Fed. Sign, 951 S.W.2d at 413–16 (Hecht, J., concurring) (noting that
“even if the Court were to abolish governmental immunity from contract suits, successful plaintiffs still could not be paid
without legislative appropriation”); see also Barfield, 898 S.W.2d at 297 (stating that the rules for waiver of sovereign
immunity apply to both the existence and extent of the waiver).

With these principles in mind, we will examine the statute to determine whether the Legislature waived immunity by
adopting section 321 of the patient’s bill of rights.



C. The Patient’s Bill of Rights
In 1993, Texas enacted a patient’s bill of rights. TEX. HEALTH & SAFETY CODE § 321.002. Section 321.002 requires that
the Texas Department of Mental Health and Mental Retardation and the Texas Commission on Alcohol and Drug Abuse
“protect the health, safety, and rights of a patient receiving voluntary or involuntary mental health, chemical dependency, or
comprehensive medical rehabilitation services in an inpatient facility.” Id. § 321.002. Section 321.003 permits a person
harmed by a mental health facility’s violation of the patient’s bill of rights to sue for injunctive relief, damages, or both. Id. §
321.003(b). A plaintiff who prevails under section 321.003 may recover actual damages, exemplary damages, and attorney’s
fees. Id. § 321.003(c), (d)

Taylor contends that the Legislature expressly waived the Hospital’s sovereign immunity by providing that a patient “may
sue” a “mental health facility” for damages and other relief caused by those violations. Section 321.003 provides in part:

       (a) A treatment facility or mental health facility that violates a provision of, or a rule adopted under, this chapter ... is
       liable to a person receiving care or treatment in or from the facility who is harmed as a result of the violation.

       (b) A person who has been harmed by a violation may sue for injunctive relief, damages, or both.

Id. § 321.003(a), (b) (emphasis added). Nowhere does this section expressly authorize suit against the State of Texas.
Therefore, we must examine whether the statute waives the State’s immunity by necessary implication.
[17]
    Taylor argues that immunity is waived because the term “mental health facility” includes the Texas Department of *699
Mental Health and Mental Retardation. Taylor acknowledges that the term “mental health facility” is not expressly defined in
the statute. She observes, however, that section 321.001—the definitional section of chapter 321—provides that “mental
health facility” has the meaning assigned by section 571.003. See id. § 321.001(4). Accordingly, we turn to section 571.003
to determine if it contains an unambiguous waiver of sovereign immunity.

Section 571.003, enacted as part of the Texas Mental Health Code two years before chapter 321’s enactment, refers expressly
to governmental agencies or facilities. Specifically, section 571.003(12) defines “mental health facility” as:

       (A) an inpatient or outpatient mental health facility operated by the department, a federal agency, a political
       subdivision, or any person;

       (B) a community center or a facility operated by a community center; or

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

     (C) that identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is
     provided.

Id. § 571.003(12)(a)-(c) (emphasis added). “Department” is defined as the Texas Department of Mental Health and Mental
Retardation. Id. § 571.003(5). Taylor argues that, by incorporating the prior definition of mental health facility into the
liability-creating provision of section 321, the Legislature clearly and unambiguously meant to waive the State’s immunity
from suit.

While the definition of “mental health facility” includes state-operated facilities, it does not contain the sort of explicit
language the Legislature generally uses to confirm its intent to waive sovereign immunity.7 Thus, we must determine whether
this incorporated definition is the functional equivalent of an explicit legislative directive waiving the State’s immunity.

7
       See statutes cited supra notes 5 and 6.



Lower courts have split on whether section 571.003(12)’s definition, read in conjunction with section 321.003(b), is a “clear
and unambiguous” statement of the Legislature’s intent to waive sovereign immunity.8 In refusing to find a waiver of
sovereign immunity, one court of appeals noted that, although the statute authorizes actions against private facilities licensed
by state health care regulatory agencies, it does not “clearly express an intent to waive immunity by authorizing actions
against governmental entities.” Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 871
(Tex.App.-Fort Worth 2001, pet. filed). The court applied our decisions in City of LaPorte v. Barfield and Duhart v. State to
hold that mere incorporation of section 571.003’s definition of “mental health facility,” which includes public facilities, into
the patient’s bill of rights does not by itself manifest a clear legislative intent to waive immunity. Lee, 38 S.W.3d at 870–71;
accord Barfield, 898 S.W.2d at 295; Duhart, 610 S.W.2d at 742.

8
       See, e.g., Beaumont State Ctr. v. Kozlowski, 70 S.W.3d 345, 349 (Tex.App.-Beaumont 2002, pet. filed) (holding that section
       321.003(b) is a waiver of sovereign immunity); Cent. Counties Ctr. for Mental Health & Mental Retardation Servs. v. Rodriguez,
       45 S.W.3d 707, 713 (Tex.App.-Austin 2001, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity);
       Spindletop MHMR v. Doe, 54 S.W.3d 893, 897 (Tex.App.-Beaumont 2001, pet. filed) (holding that section 321.003(b) is a waiver
       of sovereign immunity); Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 871 (Tex.App.-Fort Worth
       2001, pet. filed) (holding that section 321.003(b) is not a clear and unambiguous waiver of immunity).



The court of appeals here, however, followed another court of appeals, which held that “ ‘[b]ecause the [State-operated care
*700 facilities] are mental health facilities as defined in section 571.003, the legislature has consented in section 321.003(b)
to their being sued for alleged violations of section 321.003(a).’ ” 48 S.W.3d at 785 (quoting Cent. Counties Ctr. for Mental
Health & Mental Retardation Servs. v. Rodriguez, 45 S.W.3d 707, 711 (Tex.App.-Austin 2001, pet. filed)). The court of
appeals reasoned that the statutory scheme at issue in Barfield was not comparable to chapter 321 because it dealt with
incorporation of subsequently enacted legislation, while chapter 321’s incorporation of “mental health facility” occurred
simultaneously with passage of that statute. Rodriguez, 45 S.W.3d at 712. Concluding that Barfield did not control, the court
of appeals held that the Legislature waived sovereign immunity and that any other interpretation would render the statute’s
language meaningless. Id. at 711–12.

The interpretation adopted by the court of appeals in this case, however, overlooks the fact that section 321.003 creates a
meaningful cause of action against private mental health care facilities, a claim that remains viable even if suit against the
government is barred. As noted above, the fact that the Act remains viable despite the retention of immunity is one indication
that the Legislature did not intend to waive immunity by implication. None of the authorities cited by the court of appeals
persuades us otherwise.

In Barfield, we found a clear and unambiguous waiver of immunity for claims of wrongful discharge against municipalities
because the statute had no purpose if immunity had not been waived. 898 S.W.2d at 296–97. Unlike the statute in Barfield,
the patient’s bill of rights undoubtedly applies to private mental health facilities, so it is neither without meaning nor purpose
if it is construed against waiver. Indeed, the Act’s legislative history indicates that it was designed to curb abuse in private
mental health facilities. See SENATE COMM. ON HEALTH & HUMAN SERVS., BILL ANALYSIS, Tex. S.B. 205, 73rd
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

Leg., R.S. (1993) (noting that a study of private psychiatric and substance abuse facilities “revealed surprising and somewhat
shocking activities taking place in certain private treatment facilities ”) (emphasis added); see also TEX. GOV’T CODE §
311.023(1),(3) (in construing statutes, courts may consider the legislative history and the object sought to be obtained). As
one court of appeals noted, “[t]here is nothing in the statute’s history to suggest that the legislature was even aware of the
existence of similar abuse in public facilities.” Lee, 38 S.W.3d at 871. Thus, the patient’s bill of rights achieves its stated
objective of regulating private treatment facilities even if suit against the State is barred by sovereign immunity. Cf. Kerrville,
28 S.W.3d at 6 (holding that the anti-retaliation statute had no meaning absent waiver of sovereign immunity). Accordingly,
the patient’s bill of rights does not waive the State’s immunity beyond doubt.

Carried to its logical conclusion, Taylor’s argument would require us to hold that the Legislature intended to waive immunity
not only for the State of Texas, but also for the United States. Section 571.003 includes in its definition of “mental health
facilities” hospitals or clinics operated by a federal agency. TEX. HEALTH & SAFETY CODE § 571.003(12). Because a
state legislature has no authority to waive federal immunity, the Legislature could not have intended a wholesale
incorporation of section 571.003 into section 321.001(1). See U.S. CONST. art. VI; United States v. Sherwood, 312 U.S. 584,
587–88, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (holding that only Congress can consent to suit against the United States); see
also TEX. GOV’T CODE § 311.021 (“In enacting a statute, it is presumed that: (1) compliance with the *701 constitution of
this state and the United States is intended....”). Instead, had the Legislature intended state agencies to be included, it would
have either stated that intention expressly or incorporated only that part of section 571.003 applicable to state agencies.

At best, the incorporation of section 571.003 into section 321.001 sewed ambiguity into the statute. But in cases like this, we
require the Legislature to express its intent beyond doubt and will construe ambiguities in a manner that retains the State’s
immunity. See Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935) (“Legislative grants of
property, rights, or privileges must be construed strictly in favor of the State ... and whatever is not unequivocally granted in
clear and explicit terms is withheld. Any ambiguity or obscurity in the terms of the statute must operate in favor of the
state.”). The statute’s ambiguity precludes our finding an unmistakable Legislative intent to waive sovereign immunity.

Another factor we have examined is whether the statute requires the State to be joined in litigation involving the patient’s bill
of rights. Unlike the statute at issue in Texas Education Agency v. Leeper, 893 S.W.2d at 446, which required that the State
be sued, nothing in the patient’s bill of rights requires joinder of the State or its agencies. Compare TEX. CIV. PRAC. &
REM.CODE § 37.006, with TEX. HEALTH & SAFETY CODE § 321.002. This is yet another indication that the Legislature
did not intend to waive immunity simply by incorporating section 571.003’s pre-existing definition of “mental health
facility” into the patient’s bill of rights.
[18]
    Finally, by examining attributes of waiver that exist when the Legislature expressly waives immunity, we have a reliable
guidepost to determine if the Legislature intended to waive immunity when its intent is less clear. In particular, we note that
in many statutes waiving sovereign immunity explicitly, the Legislature appends a measure designed to protect the public
treasury from the consequences of that waiver.9 Our decisions recognizing a waiver of immunity have generally left
undisturbed the Legislature’s interest in protecting the State’s financial resources. See, e.g., Barfield, 898 S.W.2d at 299
(limiting damages to those authorized by the Texas Tort Claims Act); Kerrville, 28 S.W.3d at 9–10 (limiting damages to
those authorized by the Texas Tort Claims Act); Leeper, 893 S.W.2d at 446 (waiving governmental liability for attorney’s
fees only).

9
       See, e.g., TEX. CIV. PRAC. & REM.CODE § 101.023(a) ( “Liability of the state government under this chapter is limited to
       money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or
       death and $100,000 for each single occurrence for injury to or destruction of property.”); Id. § 81.010(b) (patient may only obtain
       an order requiring the governmental unit to discharge the mental health services provider who committed the conduct, court costs,
       and reasonable attorney’s fees, as determined by the court); TEX. GOV’T CODE § 2007.023 (“The governmental entity is only
       liable for, invalidation of the governmental action or the part of the governmental action resulting in the taking.”); Id. § 554.003
       (“A public employee may not recover compensatory damages for future pecuniary losses, emotional pain, suffering,
       inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses in an amount that exceeds....”).



Unlike the statutes in Barfield, Kerrville, and Leeper, the patient’s bill of rights would, under Taylor’s construction, subject
the State to indeterminate damage awards. The Act expressly permits recovery of actual damages for mental anguish, as well
as for exemplary damages and attorneys fees. TEX. HEALTH & SAFETY CODE § 321.003(c), (d). No Texas statute
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Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (2003)
46 Tex. Sup. Ct. J. 494

expressly *702 permits suit against the State for exemplary damages. Although not dispositive, the fact that Taylor’s
construction of the Act would subject the State to exemplary damage awards reinforces our skepticism that the Legislature
intended to waive sovereign immunity by mere implication.




                                                             III



                                                         Conclusion

For the foregoing reasons, we reverse the court of appeals’ judgment and dismiss Taylor’s claims for want of jurisdiction.



All Citations

106 S.W.3d 692, 46 Tex. Sup. Ct. J. 494
End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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