                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
 KAREN SPEASE AND                                                No. 08-14-00065-CV
 CRAIG SPEASE,                                   §
                                                                      Appeal from
                        Appellants,              §
                                                                  327th District Court
 v.                                              §
                                                               of El Paso County, Texas
 THE HONORABLE KATHLEEN                          §
 OLIVARES, JUDGE OF THE 205TH                                   (TC # 2014DCV0050)
 DISTRICT COURT OF EL PASO                       §
 COUNTY, TEXAS,
                                                 §
                        Appellee.


                                          OPINION
       Karen Spease and Craig Spease, Appellants, filed suit against several defendants,

including the Honorable Kathleen Olivares, Judge of the 205th District Court of El Paso County,

Texas. This civil suit arises out of Appellants’ detention at the Sierra Blanca checkpoint by

federal agents, their later indictment on State charges for possession of marijuana, and the

eventual dismissal of those charges in a case or cases pending before Judge Olivares. In this

appeal, we review the trial court’s decision to grant a plea to the jurisdiction with regard to Judge

Olivares and dismissal of the claims against her. For the reasons noted below, we affirm.
                                    FACTUAL SUMMARY

        The trial court granted Judge Olivares’s motion to dismiss while Appellants’ “Second

Amended Verified Petition for Declaratory Judgment, Injunctive Relief and Damages” (the

Petition) was on file. We summarize the factual allegations as relevant to this appeal from that

pleading. Appellants generally allege that on July 9, 2010, while traveling from California to

Houston, they were detained at the Customs and Border Protection checkpoint located just

outside Sierra Blanca, Texas. They were informed that a drug sniffing dog had alerted on their

vehicle. They were apparently detained, but contend the federal authorities declined to prosecute

them. Instead, they were held by the federal authorities until the Hudspeth County Sheriff’s

Office imprisoned them.

        Appellants were in jail for two days until they contend that bail was set by the Hudspeth

County Judge. Craig Spease bonded out of jail on July 13, 2010, and Karen Spease sometime

shortly thereafter. Much of their pleading details grievances against the officers who detained,

transported, and jailed them, as well as the bail bonding companies that were involved with their

bonds. Those particular allegations are not germane to the legal issue before us and we therefore

do not recount them here. They also allege that in November 2010, the District Attorney’s office

obtained indictments, which necessitated Craig appearing before Judge Olivares on January 20,

2011.      Appellants then contend that some five months later the District Attorney’s office

obtained the dismissal of the charges after it admitted that it had no “lab report” supporting the

charges.

        The Petition asserts claims against a number of parties, including Hudspeth County

Sheriff’s officers, the Hudspeth County Judge, the District Attorney, a bail bondsman, the court

reporter for the 205th District Court, and Judge Olivares, in her individual and official capacity.



                                                2
With regard to Judge Olivares, the Petition appears to make four factual allegations that serve as

the basis for the various theories asserted:

        1. Judge Olivares did not hold an arraignment so that Appellants’ not guilty pleas
        could be taken;

        2. There was no examining trial or determination of probable cause for the search
        and seizure or arrest;

        3. The Appellants filed several motions which were either not set or heard.
        Somewhat related to this claim, they contend Judge Olivares did not appear in court
        on July 21, 2011 when some matter had been set;

        4. At one point, Judge Olivares ordered the release of Appellants on a personal
        bond, but Appellants claim the judge did not order the release of their previously
        obtained bail bond. Once on out on bond, the Appellants complain of being
        compelled to check in weekly with court staff.1

These factual allegations are wound into eleven claims, which allege various federal

constitutional and common law theories. The last claim requests declaratory and injunctive relief

under 42 U.S.C. § 1983, seeking “protection from Hudspeth County’s official customs, policies

or practices of detaining and prosecuting citizens coming from western states, in violation of

their constitutional rights, which also caused Plaintiffs’ property to be taken, and marijuana to be

‘planted’ in Plaintiffs’ vehicle.” They allege no specific fact as to Judge Olivares other than

guilty pleas are often taken in the 205th District Court for possession of small amounts of

marijuana.

        Judge Olivares filed a motion to dismiss for lack of subject matter jurisdiction. A

heading in the body of the motion states that the “Judge is Entitled to Judicial and Sovereign

Immunity.” A careful reading of the text of the motion and the cases cited, however, shows the

real basis for the dismissal was absolute judicial immunity, as distinct from sovereign immunity.

With respect to the declaratory and injunctive relief sought, the motion to dismiss challenged

1
  We emphasize that these are the allegations as made in the Petition. Because the case was dismissed on an attack
on this pleading, there was never any factual determination made of the truth of the allegations made.

                                                        3
Appellants’ standing by contending there is no justiciable controversy when the declaration

sought will not resolve the parties’ dispute. The trial court granted the motion to dismiss and

later severed the claims against Judge Olivares into a separate action. We begin with our

standard of review and the law regarding judicial immunity.

                           REVIEW OF JUDICIAL IMMUNITY CLAIMS

       When a defendant raises an absolute immunity claim, such as judicial immunity, she is

challenging the trial court’s subject matter jurisdiction to hear the case against the immune

defendant. James v. Underwood, 438 S.W.3d 704, 709 (Tex.App.--Houston [1st Dist.] 2014, no

pet.), citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The

burden is on the plaintiff to allege facts which affirmatively demonstrate that the trial court has

subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587

(Tex. 2001); City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13, 18 (Tex.App.--El Paso 2012, pet.

denied). Whether a party has alleged sufficient facts is a question of law which we review de

novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);

Mazie’s, 408 S.W.3d at 18. As in this case, when a plea to the jurisdiction challenges the

pleadings, we look to the pleader’s intent, construe the pleadings liberally in favor of

jurisdiction, and accept the allegations in the pleadings as true to determine if the pleader has

alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the case.

Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012).                  But if the pleading

affirmatively negates the existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend their pleading. Miranda, 133 S.W.3d at

226-27.




                                                  4
           Texas has adopted absolute judicial immunity as recognized in Stump v. Sparkman, 435

U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(“A judge will not be deprived of immunity

because the action he took was in error, was done maliciously, or was in excess of his authority,

but rather he will be subject to liability only when he has acted in the clear absence of all

jurisdiction.”)(internal quotations omitted); Dallas County. v. Halsey, 87 S.W.3d 552, 554 (Tex.

2002); James, 438 S.W.3d at 709; Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex.App.--

Houston [14th Dist.] 2004, pet. denied); Hawkins v. Walvoord, 25 S.W.3d 882 (Tex. App.--El

Paso 2000, pet. denied).             “Absolute privilege is founded on the theory that the good it

accomplishes in protecting the rights of the general public outweighs any wrong or injury” that

may result as a result of improper government actions. Hawkins, 25 S.W.3d at 889-90; see also

Bradley v. Fisher, 80 U.S.(13 Wall.) 335, 350 (1871). The immunity applies unless the plaintiff

can show: (1) the claim is based on some act not taken in the judge’s judicial capacity; or (2) the

judge’s actions were taken in the “complete absence of all jurisdiction.” Mireles v. Waco, 502

U.S. 9, 10-12, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991); James, 438 S.W.3d at 709; Twilligear,

148 S.W.3d at 504.

           With these standards in mind, we turn to the six issues which Appellants raise on appeal.

While some of their arguments overlap, we discuss each separately.

                             Lack of Jurisdiction as a Bar to Judicial Immunity.

           In their first issue, Appellants contend that because Judge Olivares lacked jurisdiction

over the underlying criminal proceeding, her actions were not cloaked in judicial immunity. The

argument, as we understand it, is that because Appellants were stopped by federal authorities,

any criminal proceeding would necessarily be a federal claim. 2 According to Appellants, the


2
    This is the explanation of the argument as made at the hearing on the motion to dismiss:


                                                           5
Hudspeth County officials did not have the authority to take them into custody, nor did the El

Paso County District Attorney’s office have the right to initiate proceedings against them, and

accordingly the case, which found its way to the 205th District Court, landed there without the

requisite subject matter jurisdiction.         Consequently, Appellants posit that Judge Olivares’

handling of suit was without jurisdiction.

        This argument misses the mark because Appellants misapprehend the meaning of

jurisdiction in this context.       “In determining whether an act was clearly outside a judge’s

jurisdiction for judicial immunity purposes, the focus is not on whether the judge’s specific act

was proper or improper, but on whether the judge had the jurisdiction necessary to perform an

act of that kind in the case.” Bradt v. West, 892 S.W.2d 56, 68 (Tex.App.--Houston [1st Dist.]

1994, writ denied). In other words, the question is not whether the underlying criminal charge

was brought in the correct court, but whether the judge had the authority to take the particular

actions that she did. James, 438 S.W.3d at 713 (question was whether probate judge had

authority to rule on motion); Mireles, 502 U.S. at 13, 112 S.Ct. at 288 (concluding that judge

had jurisdiction to secure attorneys’ presence before him); Malina v. Gonzales, 994 F.2d 1121,

1124 (5th Cir. 1993)(holding that judge had power to cite for contempt and to sentence).

        Judge Olivares undoubtedly had the authority to take all of the actions that she did in a

criminal proceeding that found its way to her court. The 205th District Court has jurisdiction for


THE COURT: Okay. So why do you think that the judge of that county has no jurisdiction?

MS. SPEASE: Why do we think? Because if you’re seized and detained by federal officers, then it’s a federal case;
not a -- MR. SPEASE: State.

MS. SPEASE: -- state or county case.

MR. SPEASE: How does it get to be a state case?

MS. SPEASE: Because we do say in our petition here that the only authority a State Judge has in acting on behalf
of the federal government is in determining whether to hold or release a suspect based upon whether they were
seized lawfully or not.

                                                       6
matters arising in Culberson, El Paso, and Hudspeth Counties. TEX.GOV’T CODE ANN. § 24.384

(West 2004). Its jurisdiction includes criminal matters. Id. With regard to the particular actions

of which the Appellants complain, a trial court is empowered to set the amount of bail, and

reduce it if appropriate. TEX.CODE CRIM.PROC.ANN. art. 17.15 (West 2015); id. at art. 17.09. A

trial court has the authority to set an arraignment of the defendant “if such be necessary” and to

hear and resolve motions pertaining to the case. TEX.CODE CRIM.PROC.ANN. art 28.01 (West

2006). The court is specifically empowered to resolve speedy trial issues. Id. at art. 28.061. The

trial court is also empowered to oversee, and when appropriate, to appoint counsel to indigent

defendants. TEX.CODE CRIM.PROC.ANN. art. 1.051 (West 2005) and TEX.CODE CRIM.PROC.ANN.

art. 26.04 (West 2009).

       Appellants criticize Judge Olivares for actions she took, or did not take, but all of those

actions were within the scope of her authority as a judge. Whether she did or did not hear a

motion, did or did not rule on Appellants’ bail, did or did not set an arraignment, she was

authorized to act as a sitting judge. Accordingly, they are within her jurisdiction for the purposes

of judicial immunity.

       We pause to note that Appellants’ claim that they could not be prosecuted for drug

charges in a state district court when they were initially apprehended by federal authorities,

overlooks that the State of Texas and Federal Government have overlapping jurisdiction for

certain drug crimes. Both the Texas Legislature and United States Congress have criminalized

possession of even small amounts of marijuana. TEX.HEALTH&SAFETY CODE ANN. § 481.121

(West 2010)(possession of less than two ounces is a Class B misdemeanor); 21 U.S.C. § 844

(2013)(possession of controlled substance illegal). Under the dual-sovereignty doctrine, either,

and possibly both, jurisdictions may seek to prosecute a violation of its own laws. See Bartkus v.



                                                 7
People of the State of Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959);

United States v. Lanza, 260 U.S. 377, 382 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). This has been

the rule in the United States for over 150 years. Fox v. State of Ohio, 46 U.S. 410, 5 How. 410,

419-20, 12 L.Ed. 213 (1847).

       We also note that each action by Judge Olivares of which Appellants complain are clearly

judicial actions. We consider four factors in determining whether a judge’s acts are judicial: (1)

whether the act complained of is one normally performed by a judge; (2) whether the act

occurred in a judicial setting, such as a courtroom; (3) whether the controversy arises out of a

case pending before the judge; and (4) whether the act arose out of an interaction with the judge

in her judicial capacity. Bradt, 892 S.W.2d at 67; Hawkins, 25 S.W.3d at 889-90. In this case,

all of the actions of Judge Olivares were clearly judicial. Appellants complain of her actions in

regard to a case pending in her court. They complain of hearings held, or not held, in her

courtroom. They complain of actions taken, or not taken, which are customarily done by sitting

judges, such as hearing and ruling on motions. Because Appellants’ pleading below complains

only of judicial actions of Judge Olivares, and for activities which are within the jurisdiction of a

sitting judge, we overrule Issue One.

                                     Relief for Ministerial Acts

       In Issue Two, Appellants contend that the actions of Judge Olivares were “ministerial.”

As such, they claim this is only a suit against a governmental official for declaratory relief which

seeks to compel a ministerial act. They direct us to cases dealing with official immunity and the

ultra vires exception to official immunity. E.g. Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex.

2011); City of El Paso v. Heinrich, 284 S.W.3d 366, 372, 373 (Tex. 2009)(“To fall within this

ultra vires exception, a suit must not complain of a government officer’s exercise of discretion,



                                                 8
but rather must allege, and ultimately prove, that the officer acted without legal authority or

failed to perform a purely ministerial act. . . . But the ultra vires rule is subject to important

qualifications. Even if such a claim may be brought, the remedy may implicate immunity.”).

       But the suit against Judge Olivares was dismissed based on judicial immunity, not official

immunity. Moreover, if there was some ministerial act that she should have performed, the

remedy was to pursue a mandamus during the pendency of the underlying criminal proceeding.

See e.g. State ex rel. Young v. Sixth Judicial District Court of Appeals at Texarkana, 236 S.W.3d

207, 210 (Tex.Crim.App. 2007)(setting forth elements for mandamus to compel performance of

ministerial acts in criminal proceedings).

       Finally, Appellants’ arguments only bolster the conclusion that everything they complain

of is protected by judicial immunity. They point to the following “ministerial” acts which Judge

Olivares should have performed: “failed to perform her duty to arraign Craig Spease and Karen

Spease”; “failed to determine whether the Speases needed counsel”; “failed to read the

indictment or to provide the Speases with a copy of the indictment”; “failed to hear or enter the

Speases’ not guilty pleas upon the minutes of the court”; and “failed to hear or to rule upon the

Speases’ motions to suppress, which acted to deprive the Speases’ right to review.” Each of

these complaints are clearly directed at judicial actions which a trial judge is empowered to

perform. We overrule Issue Two.

                              Error in Ruling only on the Pleadings.

       In Issue Three, Appellants complain that the motion to dismiss should not have been

granted until there was a “fact-based jurisdictional inquiry.” Citing Trinsey v. Pagliaro, 229 F.

Supp. 647 (E.D. Pa. 1964), they contend counsel’s statements or arguments are not sufficient to

sustain a motion to dismiss. They further contend the trial court “failed to instruct pro se



                                                9
litigants about how their pleadings are deficient or how to repair their pleadings.” We reject both

contentions.

         While argument of counsel cannot support a plea to the jurisdiction, a plaintiff can plead

themselves out of court if their pleadings affirmatively negate the existence of jurisdiction.

Miranda, 133 S.W.3d at 226–27. In that situation, the plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend the pleadings. Id. Appellants’ pleading,

as outlined above, only complains of actions by Judge Olivares in her role as a District Court

Judge.

         Moreover, at the hearing on the motion to dismiss, the trial judge gave Appellants another

opportunity to clarify the nature of their complaints against Judge Olivares:

         THE COURT: Okay. I understand that that’s your position. I don’t agree that
         that’s the law. What I want to hear is, is there anything in your petition that you
         contend is something she did outside her judicial capacity? Even if it was a
         mistake, even if she didn’t show up to court, those are all judicial acts.

         MR. SPEASE: I don’t know that we’ve had any dealings with her other than
         judicial.

         MS. SPEASE: Well, there’s the -- you know, the ministerial, or is it just -- she’s
         responsible for --completely responsible for employing a court reporter, and she
         holds all responsibility there.

                                           .      .      .

         MS. SPEASE: -- you know, that’s the one I can think of. But, you know, the
         most important thing is that we don’t believe she had any authority or jurisdiction.

Nothing in this these statements remotely suggests that further pleading or discovery would

avoid the bar of judicial immunity.

         Nor can we fault the trial court for not instructing Appellants on how to plead their case.

First, a judge cannot be both a neutral referee and an advocate in a dispute. See United States v.

Saenz, 134 F.3d 697, 702 (5th Cir. 1998); Ex parte Miller, 696 S.W.2d 908 (Tex.Crim.App.


                                                 10
1985). Nor does this rule change merely because Appellants represent themselves. Pro se

litigants are held to the same standards as licensed attorneys and must comply with all applicable

rules of procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.--El Paso 2006, no

pet.). If this were not the rule, pro se litigants would gain an unfair advantage over parties who

are represented by counsel. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield

State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). We overrule Issue Three.

                                           Takings Claim

         In Issue Four, Appellants contend that Judge Olivares is liable under Article I, section 17

of the Texas Constitution. That provision states that “[n]o person’s property shall be taken,

damaged, or destroyed for or applied to public use without adequate compensation . . . . “ TEX.

CONST. art. 1 § 17(a)(West Supp. 2015). As a general proposition, a takings claim is an

exception to sovereign immunity.         General Services Commission v. Little-Tex Insulation

Company Inc., 39 S.W.3d 591, 598 (Tex. 2001). Appellants contend that Judge Olivares’ actions

caused them to lose property, including bonding fees, and from this they seek to make a takings

claim.

         We reject this theory because Judge Olivares was dismissed from the lawsuit because of

judicial immunity and not sovereign immunity. Thus an exception to sovereign immunity, even

were it properly pled, would not apply. And were it otherwise, every judge who ever entered an

adverse judgment against a party would be subject to a takings claim, because most judgments

divest a person of either property or liberty. Accordingly, we overrule Issue Four.

                                       Use of an Automobile

         In Issue Five, Appellants maintain that immunity was waived because Judge Olivares

traveled to hearings in Hudspeth County in a motor vehicle and the Texas Tort Claims Act



                                                 11
waives immunity for property damage which “arises from the operation or use of a motor-driven

vehicle.” TEX.CIV.PRAC.&REM.CODE ANN. § 101.021 (West 2011). We reject this theory for a

number of reasons. First, it was never raised in Appellants’ Petition, and our sole focus is on

whether the last active pleading asserts a claim which is not barred by judicial immunity.

Second, Judge Olivares was dismissed on judicial immunity and not sovereign immunity

grounds. We are aware of no authority that the Texas Tort Claims Act operates as an exception

to judicial immunity. Finally, even if the Tort Claims Act was applicable, the mere fact Judge

Olivares drove to court in a motor vehicle does not operate as a general waiver of immunity.

       Section 101.021 has been extensively construed and at a minimum, the government

employee must have been actively operating the vehicle at the time of the incident. See LeLeaux

v. Hamshire-Fannett Independent School District, 835 S.W.2d 49, 52 (Tex. 1992)(no waiver

when government employee was not present when student sustained injury in school bus).

Moreover, the tortious act must relate to the defendant’s operation of the vehicle rather than to

some other aspect of the defendant’s conduct.       Ryder Integrated Logistics, Inc. v. Fayette

County, 2015 WL 496303, at *3 (Tex. Feb. 6, 2015). It follows that even if this theory had been

pled below, the trial judge would have been compelled to reject it because there was no nexus

between the use of a vehicle and the actions of which Appellants complain. We therefore

overrule Issue Five.

                                  Request for Equitable Relief

       In Issue Six, to the extent we understand it, Appellants claim they are seeking

“declaratory and/or injunctive relief” to stop the Sierra Blanca checkpoint from being used to

impede travel along Interstate 10 or harass those with “prescription medication . . . being




                                               12
subjected to unlawful searches and seizure.”3 In 1984, the United States Supreme Court held

that judicial immunity does not shield a judge from prospective relief sought under 42 U.S.C. §

1983. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984).

Congress later amended that statute to add language that “injunctive relief shall not be granted”

in any action brought against “a judicial officer for an act or omission taken in such officer’s

judicial capacity,” “unless a declaratory decree was violated or declaratory relief was

unavailable.”    See Federal Courts Improvement Act, Pub.L. No. 104-317, 110 Stat. 3847

(1996)(amending 42 U.S.C. § 1983). Several courts have viewed this statutory amendment as

effectively overruling Pulliam. Guerin v. Higgins, 8 F.App’x 31, 32 (2d Cir. 2001)(“We also

reject plaintiff’s contention that he is entitled to declaratory relief based on Pulliam v. Allen,

given that the Pulliam holding with respect to such relief has been effectively overruled by

Congress.” (internal citation omitted)); Kircher v. Ypsilanti, 458 F.Supp.2d 439, 447-48

(E.D.Mich. 2006)(“This argument [that Pulliam allows injunctive relief against judicial officers]

would be a good deal more persuasive if not for a 1996 amendment to 42 U.S.C. § 1983 that

abrogated the portion of Pulliam upon which Plaintiff seeks to rely.”).

        Even were declaratory or injunctive relief still available, we think it was properly

dismissed by the court below. Our first concern is standing, which touches upon our subject-

matter jurisdiction.     Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999); see also

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)(“A court has no jurisdiction

over a claim made by a plaintiff without standing to assert it.”)(footnote omitted); SCI Texas

Funeral Services, Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex.App.--El Paso 2007, pet. denied).

Thus, a court may examine standing issues sua sponte if necessary. Texas Ass’n of Business v.


3
  We assume Appellants are contending that any marijuana found in their vehicle was legally prescribed in
California.

                                                   13
Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)(noting that standing “may be raised

for the first time on appeal by the parties or by the court”); Martin v. Clinical Pathology

Laboratories, Inc., 343 S.W.3d 885, 888 (Tex.App.--Dallas 2011, pet. denied); OAIC

Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 735 (Tex.App.--Dallas

2007; pet. denied).

       The motion to dismiss the Appellant’s injunctive relief claim asserted that “[t]here is no

controversy that could be resolved.” This argument mirrors the general test for standing which is

whether there is a real controversy between the parties that will actually be determined by the

judgment sought. Texas Ass’n of Business, 852 S.W.2d at 446; SCI, 214 S.W.3d at 153.

       Appellants lack standing for the injunctive relief they seek. First, their criminal case is

now dismissed. This makes their position indistinguishable from the plaintiffs in Williams v.

Lara, 52 S.W.3d 171 (Tex. 2001). That case involved a challenge to a jail religious service on

Establishment Clause grounds. Two of the plaintiffs had been incarcerated in the jail, and thus

arguably were exposed to the religious services, but they had been released by the time the case

was filed. Id. at 175. The Texas Supreme Court held once they were released from the jail, their

claim became moot, which necessarily denied them standing. Id. at 184 (“Because Lara and

Huff have been released from jail, they lack a legally cognizable interest in obtaining injunctive

or declaratory relief. They no longer face the unconstitutional conduct about which they

complain, and thus any prospective relief we might grant cannot help them.”). The Lara court

also rejected the argument that because the two plaintiffs might be arrested and incarcerated in

the future, they had standing under the “capable of repetition, yet evading review” exception to

the mootness doctrine. Id. One element of that exception is that the plaintiff must have a

reasonable expectation that he or she will be subjected to the same action again. Blum v. Lanier,



                                               14
997 S.W.2d 259, 264 (Tex. 1999); General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569,

571 (Tex. 1990). But the court was unwilling to assume that the Lara plaintiffs had a reasonable

expectation of being recidivists such that they would again be jailed. 52 S.W.3d at 185.

       For the same reason, Appellants claim is moot and denies them standing. Their criminal

proceeding has ended, just as the Lara plaintiffs’ jail term ended. Appellants do not allege,

perhaps wisely so, that they intend to transport marijuana through the Sierra Blanca checkpoint

in the future, and nor could we indulge the presumption that they would do so.

       Another component of standing is whether the injury alleged can be redressed with a

favorable decision. Heckman v. Williamson County, 369 S.W.3d 137, 155 n.78 (Tex. 2012),

citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917,

1924, 1926, 48 L.Ed.2d 450 (1976).       Lujan is particularly instructive.   The plaintiff there

challenged the U.S Interior Department’s funding of overseas construction projects. Id. 504 U.S.

at 563, 112 S.Ct. at 2138. But the plaintiffs lacked standing on redressability grounds because

some of the necessary parties were absent from the suit. Id. at 568, 112 S.Ct. at 2140. As

presently postured, nothing that the Appellant’s seek here can be obtained via a suit against

Judge Olivares.

       First, much of their complaint is directed at the Sierra Blanca checkpoint, which they

recognize is run by an agency of the Federal Government, which is not a party below. And even

if it were a party, it has been known for almost two centuries that a state court cannot issue

equitable relief directing a federal officer in the performance of a federal duty. McClung v.

Silliman, 19 U.S. 598, 5 L.Ed. 340 (1821)(state court could not issue mandamus against federal

officer); Ex parte Tarble, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1871)(state cannot issue habeas



                                               15
corpus relief compelling federal government to release conscripted solider); cf. Donovan v. City

of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964)(state court was completely

without power to issue injunction prohibiting plaintiff in Federal Court action from pursuing in

personam action); 17A Charles Alan Wright et al., Federal Practice and Procedure § 4213 (3d

ed.2007)(“On the other hand, it has been clear since 1821 that a state court cannot issue a writ of

mandamus against a federal officer.). As a practical matter, a state court could not issue the kind

of injunctive relief that Appellants seek with respect to the checkpoint itself.

       As alluded to at the hearing on Judge Olivares’s severance motion, she is no longer the

sitting judge of the 205th District Court. Her term expired in 2014. There is no injunctive relief

that could be granted against her in an individual or official capacity that would affect the border

checkpoint, or any actions of the Hudspeth County Sheriff’s Department, or the District Attorney

who prosecutes criminal cases. Even if she were still in office, no decree against the 205th Court

could be crafted which would affect the detention, arrest, or indictment of persons transporting

marijuana through the check-point. A judge only hears a case that is brought before her; she

does not decide whom to arrest and whom to prosecute. For these reasons, we overrule Issue Six

and affirm the judgment below.


May 31, 2016
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




                                                 16
