       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00439-CV



   Appellant, Marsha McLane, in her Official Capacity as Director of the Texas Civil
Commitment Office // Cross-Appellants, Eric Thomas, John Williams, and Albert Mailhot

                                                v.

       Appellees, Eric Thomas, John Williams, and Albert Mailhot // Cross-Appellee,
                Marsha McLane, in her Official Capacity as Director of the
                            Texas Civil Commitment Office


              FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-16-000239, THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                               MEMORANDUM OPINION


               These cross-appeals challenge a district court’s order sustaining in part and

overruling in part a plea to the jurisdiction filed by the Director of the Texas Civil Commitment

Office. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing interlocutory appeal). The

district court overruled the plea with respect to the claims brought pursuant to the Administrative

Procedures Act (APA), Tex. Gov’t Code §§ 2001.038, .171, but sustained the plea with respect

to “all other” claims. We will affirm in part, reverse in part, and render judgment dismissing the

claims against the Director.
                                         BACKGROUND

               In a series of otherwise unrelated proceedings in 2013 and 2014, a district court

ordered Eric Thomas, John Williams, and Albert Mailhot (collectively, Appellees) to civil

commitment in the custody of the Texas Civil Commitment Office and/or its predecessor.1

Following those proceedings, Appellees were allegedly ordered to undergo outpatient treatment

in what they describe as a “halfway house” near Houston, Texas. They allege that during this

period of confinement they were allowed to leave the premises, use public transportation,

entertain visitors, accept certain federal benefits, receive gifts, pursue gainful employment, etc.

               In 2015, the Texas Legislature amended chapter 841 to revise the procedures by

which the State classifies individuals as sexually violent predators and the conditions of any

resulting court-ordered confinement.      See generally Act of May 21, 2015, 84th Leg. R.S.,

ch. 845, § 4, 2015 Tex. Gen. Laws 2701–712 (now codified as further amended in scattered

sections of chapter 841 of the Health and Safety Code). This statute imbues the Office with

exclusive authority to determine where committed individuals will live and to develop a “tiered

program for the supervision and treatment of a committed person.” See Tex. Health & Safety

Code §§ 841.082, .0831(a).      The statute also holds committed individuals, if not indigent,

responsible for the cost of housing and treatment. See id. § 841.084. The Legislature’s intent,

Appellees allege, was to allow individuals in civil custody to graduate from more restrictive to

less restrictive tiers of confinement until fully rehabilitated. Cf. id § 841.0834 (governing

“movement between programming tiers”). The amended statute applies to any civil commitment

proceeding initiated on or after June 17, 2015.

       1  See Tex. Health & Safety Code §§ 841.001–.153 (setting forth commitment procedures
for allegedly sexually violent predators); Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 1,
sec. 4, 2015 Tex. Gen. Laws 2701, 2701 (renaming the Office).
                                                  2
                In September and October of 2015, the Director obtained amended commitment

orders placing Appellees in the tiered-treatment program. At some point thereafter, the Office

moved Appellees—along with nearly 200 others similarly classified—to a facility known as the

Texas Civil Commitment Center, which is located near Littlefield, Texas. The Center, a former

state penitentiary, is now operated by Correct Care, LLC, and is used exclusively for the

treatment of individuals confined under Chapter 841 of the Health and Safety Code.

                Unhappy with the change from outpatient to inpatient treatment, Appellees sued

the Director to challenge various procedures used to introduce the new tiered-treatment program

and subsequently named the Office and Correct Care as co-defendants. Appellees complain that

they cannot leave the Center, cannot receive guests, have been rendered ineligible for certain

federal benefits, and have no means of obtaining gainful employment. They also allege that the

Office garnishes or otherwise recovers one-third (33⅓ % ) of the value of any income, gifts, or

supplies they receive. Essentially, Appellees contend that while the name of this facility has

changed, it still functions as a penitentiary.

                After amending their petition for relief eight times, Appellees now primarily rely

upon the APA, see Tex. Gov’t Code § 2001.038, and ultra vires theories, see City of El Paso v.

Heinrich, 284 S.W.3d 366, 373–80 (Tex. 2009), as the bases for their claims. Specifically, they

allege the Director violated the APA by promulgating existing rules improperly, by adopting

“unwritten rules” that she should have promulgated, and by promulgating rules that interfere

with existing legal rights. See Tex. Gov’t Code § 2001.171(a). They also plead ultra vires

claims arising from the Director’s adoption of regulations that they allege violate constitutional

and statutory rights. As redress for these alleged infractions, Appellees seek declaratory and

injunctive relief, a writ of mandamus, and damages.

                                                 3
               The Director filed a plea to the jurisdiction in response to each of the nine

petitions for relief. In her live plea, she argues that Appellees have not identified any rules

subject to review under the APA and have not alleged any ultra vires act. The district court

accepted the latter argument but rejected the former, sustaining in part and overruling in part

the plea:


       It is ordered, adjudged, and decreed, that McLane’s Plea to the Jurisdiction is
       DENIED as to Plaintiff’s claims under the Texas Administrative Procedure Act.

       It is further ordered, adjudged, and decreed, that McLane’s Plea to the Jurisdiction
       is GRANTED in all other respects.


The Director timely perfected this appeal,2 and Appellees filed timely cross-appeal. See Tex.

Civ. Prac. & Rem. Code § 51.014(a)(8); Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

846 (Tex. 2007). Appellees filed a request for findings of fact and conclusion of law, which the

district court denied. The parties executed an agreement under which Appellees will undergo

“treatment in the same manner as was provided to them prior to September 15, 2015,” until this

appeal is resolved.


                                   STANDARDS OF REVIEW

               As an administrative agency of the State, the Office benefits from sovereign

immunity from suit, which deprives the courts of jurisdiction unless the State expressly consents

to the suit. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A

waiver of sovereign immunity must be clear and unambiguous. See Tex. Gov’t Code § 311.034;


       2   Although Correct Care filed a plea to the jurisdiction adopting the arguments made in
the Director’s plea to the jurisdiction, the district court did not address the claims against Correct
Care in its order disposing of the Director’s plea. Neither Correct Care nor the Office is party to
this appeal.
                                                  4
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). “It is fundamental that a

suit against a state official is merely ‘another way of pleading an action against the entity of

which [the official] is an agent.’” Miranda, 133 S.W.3d at 224 (quoting Kentucky v. Graham,

473 U.S. 159, 165 (1985)). Thus, when a state official files a plea to the jurisdiction, the official

may invoke the sovereign immunity held by the government itself. Koseoglu, 233 S.W.3d

at 844.

               “[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do.” Miranda, 133 S.W.3d at 227 (citing Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).              “[I]n a case in which the

jurisdictional challenge implicates the merits of the plaintiffs’ cause of action”—as is the case

here—“and the plea to the jurisdiction includes evidence, the trial court reviews the relevant

evidence to determine if a fact issue exists.” Id. “If the evidence creates a fact question

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

the fact issue will be resolved by the fact finder.” Id. at 227–28.

               “When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the

cause.” Id. at 226 (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993)). In making this determination, “[w]e construe the pleadings liberally in favor of the

plaintiffs and look to the pleaders’ intent.” Id. (citing Texas Ass’n of Bus., 852 S.W.2d at 446).

“If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one

of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.” Id. at

                                                  5
226–27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)).                 “If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend.” Id. at 227. As with other

jurisdictional issues, we review a defense of sovereign immunity de novo. Id. at 226, 228.


                                          DISCUSSION

               We begin by emphasizing the relatively narrow basis of Appellees’ challenge to

their commitment. Appellees stipulate that they “do not challenge the authority of the 435th

District Court . . . to enter the orders entered [sic] in 2015 placing them on the tiered treatment

program.” Nor do they raise an as-applied or facial challenge to the statute itself. Instead,

Appelles challenge certain rules promulgated pursuant to the statute and other informal policies

allegedly used to execute that statute, which requires the Office and its director to promulgate

rules “consistent with the purposes of th[e] chapter.” See Tex. Health & Safety Code § 841.141.

               In the five briefs filed in these cross-appeals, the parties have articulated the

issues before the Court in various ways. For convenience and brevity, we will consolidate and

summarize these points for discussion. See Tex. R. App. P. 47.1 (requiring courts of appeals to

render opinions “as brief as practicable”). First, Appellees contend the district court erred by

declining to file findings and conclusions. Second, the Director contends the district court erred

by denying her plea to the jurisdiction with respect to Appellees’ claims under the APA. Third,

Appellees challenge the district court’s dismissal of their ultra vires claims that the Director

failed to promulgate additional rules and that existing rules and polices violate their

constitutional and statutory rights.




                                                 6
Findings and Conclusions

                Appellees first challenge the trial court’s order denying their motion requesting

findings of fact and conclusions of law. Texas Rule of Civil Procedure 296 provides, “In any

case tried in the district or county court without a jury, any party may request the court to state in

writing its findings of fact and conclusions of law.” See Tex. R. Civ. P. 296. A trial court must

file its findings and conclusions in such cases. See id. R. 297. The present matter, however, is

before this Court on interlocutory review of the district court’s disposition of a plea to the

jurisdiction. Trial courts may, but need not, grant a motion for findings and conclusions in

support of an interlocutory order. See Humble Expl. Co. v. Fairway Land Co., 641 S.W.2d 934,

937 (Tex. App.—Dallas 1982, writ ref’d n.r.e); Bailey Empl’t Serv., Inc. v. Moore, 638 S.W.2d 641,

642 (Tex. App.—Waco 1982, no writ). In their argument on this issue, which consists of a

single paragraph, Appellees have not identified any authority supporting the contention that the

district court “should have” rendered findings of fact and conclusions of law. We therefore

overrule the issue.


APA Claims

                The Director contends the district court erred by overruling the plea to the

jurisdiction with respect to Appellees’ APA claims, arguing that these claims fail as a matter of

law.3 The APA waives sovereign immunity for parties seeking determination of “[t]he validity

or applicability of a rule . . . 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.”

        3The Director also argues that a rule challenger may only bring an APA claim against
the agency—and not an official. See Tex. Gov’t Code § 2001.038(c). (“The state agency must
be made a party to the action.”). Because these claims fail as a matter of law, we will assume
without deciding that the Director is a proper defendant to a claim brought under the APA.
                                                   7
See Tex. Gov’t Code § 2001.038(a), .171. The APA requires notice-and-comment promulgation

of any agency rule. See id. § 2001.004. Rule is defined as:


   (A) a state agency statement of general applicability that:

           (i) implements, interprets, or prescribes law or policy; or

                (ii) describes the procedure or practice requirements of a state agency;

   (B) includes the amendment or repeal of a prior rule; and

   (C) does not include a statement regarding only the internal management or
       organization of a state agency and not affecting private rights or procedures.


See id. § 2001.003(6). This definition is drafted “in a way that will exclude a considerable range

of unofficial, individually directed, tentative, or other non-proscriptive agency or staff issuances

concerning law or policy.” Teladoc, Inc. v. Texas Med. Bd., 453 S.W.3d 606, 622 (Tex. App.—

Austin 2014, pet. denied).

                Appellees challenge a variety of rules and policies that we will group into three

categories for discussion. First, Appellees challenge certain “unwritten rules” that the Office

allegedly uses to operate the Center, arguing that the Office or its Director must promulgate these

policies under the APA. See Tex. Gov’t Code §§ 2001.021–.041 (setting forth promulgation

requirements). Second, Appellees contest promulgated rules that allegedly “merely restate[] a

provision” of the statute itself, arguing that those rules are invalid. See id. § 2001.038(a). Third,

they challenge promulgated rules that they allege violate or impair existing legal rights.4 We will

address these challenges in turn.



       4  See Tex. Gov’t Code § 2001.038(a). Appellees challenge all rules promulgated under
the statute, arguing that the Director impermissibly allowed the Office’s board of directors,
rather than the Office itself, to promulgate the rules. But the Legislature vested governance of
                                                  8
               “Unwritten Rules”

               Appellees first complain of certain policies and procedures, which they refer to as

“unwritten rules,” that they allege the Office, its Director, and Correct Care use as part of the

tiered-treatment program and that they maintain must be promulgated pursuant to the APA’s

notice-and-comment requirements. The challenged policies and procedures include:


           •   that the Office has “surrender[ed]” to Correct Care “unbridled authority
               over all aspects of the [Appellees’] existence,” including the “unbridled
               authority to adopt, enforce, and change, without notice, rules for which
               [Appellees] can be disciplined”;

           •   that the Office includes “all money and property (except hand-me-down
               clothing or used books) that a[n Appellee] receives” as income when
               calculating the required contribution to the cost of treatment; and

           •   that the Office allows Correct Care “to deprive [Appellees] of medical
               care.”


None of these allegations gives rise to a viable APA claim.

               With respect to the first complaint, Appellees allege that this “unwritten rule” was

not validly promulgated. But the Office in fact promulgated a rule regarding the outsourcing of

treatment, see 37 Tex. Admin. Code § 810.153(3) (2018) (Tex. Civil Commitment Office5)

(Tiered Treatment and Supervision Program) (“The [O]ffice shall enter into appropriate contracts

or memoranda of understanding for the provision of any necessary supervised housing and other

related services.”), and Appellees have not alleged any anomalies in that promulgation.


the Office in “a board composed of five members,” see Tex. Gov’t Code § 420A.002(b), and
Appellees have waived this argument on appeal by failing to provide any supporting law or
otherwise explain how the board of directors lacks the statutory authority to promulgate rules on
behalf of the Office, see Tex. R. App. P. 38.1; 38.2.
       5 Unless otherwise indicated, all cited rules were proposed and promulgated by the Texas
Civil Commitment Office.
                                                9
               The second challenged “unwritten rule” is the Office’s alleged policy of including

the value of any gifts or new merchandise received by an Appellee as “income” when calculating

the amount of money he must contribute toward the cost of housing and treatment.               As

evidence, Appellees produced the following email sent from a civil commitment manager to

case managers:


       Subject: Enforcement of policy concerning packages and cost recovery

       It has come to our attention that SVP Clients[6] are utilizing their package
       allowances and family packages to circumvent cost recovery requirements and are
       receiving hundreds of dollars of goods from vendors through their family. Going
       forward, all packages require the approval of the case manager prior to their
       release to the SVP Client. Clients seeking a vendor package to be ordered for
       them by family members must provide a cost list to the case manager prior to the
       package being ordered. Upon receipt of the gift package, the packing slip must be
       provided to the Case Manager to verify that the items in the package are those that
       were approved and that the client is current on cost recovery to include 33% of
       the value of the gift being received. The 33% does not include items such as hand
       me down clothing or books sent directly from an approved contact within
       property allowances and tiered housing policy. Packages being ordered by a SVP
       client, current on his cost recovery, using his resident account funds from a
       vendor will continue to be handled in the same manner as they have been.


Appellees contend this cost-recovery policy constitutes an ad hoc rule, but “an informal agency

statement that merely restates formally promulgated rules” does not give rise to an APA claim.

LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 121 (Tex.

App.—Austin 2017, pet. denied) (quoting Texas Dep’t of Transp. v. Sunset Transp., Inc.,

357 S.W.3d 691, 703 (Tex. App.—Austin 2011, no pet.)); see also Teladoc, 453 S.W.3d at 614–

22; Texas State Bd. of Pharmacy v. Witcher, 447 S.W.3d 520, 533–34 (Tex. App.—Austin 2014,

pet. denied); Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764, 769–71 (Tex. App.—Austin


       6   The Office and Correct Care refer to individuals undergoing treatment at the Center as
their “clients” or “residents.” All spelling, grammar, and punctuation reflect those in the email.
                                               10
1999, no pet.). The announcement in the manager’s email does not give rise to an APA claim

because it merely reflects a policy the Director promulgated through notice-and-comment

rulemaking. See 42 Tex. Reg. 7565, 7566 (2017) (codified at 37 Tex. Admin. Code § 810.122)

(proposed Dec. 29, 2017) (definitions); Texas Dep’t of Transp. v. Texas Weekly Advocate,

No. 03-09-00159-CV, 2010 WL 323075, at *2 (Tex. App.—Austin Jan. 29, 2010, no pet.) (mem.

op.) (rejecting an ad-hoc-rulemaking challenge to agency policy where agency had adopted that

policy pursuant to APA’s promulgation procedures); LMV-AL, 520 S.W.3d at 122.

               The statute requires that all individuals adjudicated as sexually violent predators

initially undergo inpatient treatment and provides, “[A] civilly committed person who is not

indigent is responsible for the cost of housing and treatment.” See Tex. Health & Safety Code

§ 841.084 (punctuation revised).    In accordance with that statutory requirement, the Office

promulgated a rule indicating that it would “set forth the method of payment for the cost

recovery” but would not require “payment in an amount that exceeds 50% of the income of the

committed person or the actual cost of the service.” See 37 Tex. Admin. Code § 810.273. The

Office promulgated a separate rule providing, “For the purpose of recovery of costs . . . a

sexually violent predator is considered to be indigent if the sexually violent predator does not

have any income” and then defined income to include “wages, salaries, tips, and other taxable

employee pay, disability benefits, net earnings from self-employment, funds received from the

sale of property, funds received as an inheritance, interest or dividend income, retirement

income, social security income, unemployment benefits, and gifts.” See id. § 810.122 (emphasis

added). Thus, the email simply reflects the Office’s decision to interpret the statutory reference

to “income” as including the value of any gifts received—whether directly from family or from

an online vendor—in the calculation of monthly income. Because the statements in the email

                                               11
summarize the substance of the rule promulgated, they do not generate a fact issue sufficient to

establish jurisdiction under the APA. See Texas Food Indus. Ass’n v. U.S. Dep’t of Agric., 81

F.3d 578, 579 (5th Cir. 1996); Texas Parks & Wildlife Dep’t v. Texas Ass’n of Bass Clubs, 622

S.W.2d 594, 596 (Tex. App.—Austin 1981, writ ref’d n.r.e.).

               With respect to the third complaint—that the Office uses an unpromulgated rule

to systematically deprive Appellees of medical care—Appellees have not produced any evidence

the alleged “rule” exists. To the contrary, the statute requires the Office to provide medical care,

see Tex. Health & Safety Code § 841.083(d), and the Director’s affidavit indicates that

Appellees “have access to medical care at the facility and [will] be referred outside the facility

for any specialist or emergency care that cannot be handled at the facility.” Appellees have not

alleged any incidents or otherwise identified any “unwritten rule” to the contrary. Without an

alleged rule to challenge, Appellees cannot establish the district court’s jurisdiction under

Section 2001.038 the APA. See Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 905

(Tex. App.—Austin 2009, no pet.).


               Regulations that “Merely Restate the Provisions” of the Statute

               Appellees contend that Rules 810.151 and 810.153 “do[] not meet the definition

of a rule[,] as [they] merely restate[] a provision of Health and Safety Code Chapter 841,” and

that the Director therefore violated the APA in promulgating and enforcing those rules. See,

respectively, 37 Tex. Admin. Code §§ 810.151 (Administration of the Act), .153 (Tiered

Treatment and Supervision Program). Rule 810.151 requires the Office to “provid[e] appropriate

and necessary treatment” and to “hire or contract for the services of” appropriate professionals.

See 37 Tex. Admin. Code § 810.151. This language is similar to that found in Section 841.007 of


                                                12
the statute. See Tex. Health & Safety Code § 841.007(1). Rule 810.153 requires the Office to

“develop a tiered program policy for the supervision and treatment of a committed person” and

to “provide for the seamless transition of a committed person from a total confinement facility to

less restrictive housing and supervision . . . .” See 37 Tex. Admin. Code § 810.153(1). These

provisions track language found in Section 841.0831 of the statute. See Tex. Health & Safety

Code § 841.0831(b).

               Appellees provide no authority for their assertion that a regulation that tracks

statutory language cannot satisfy the requirements of the APA.        Nor could they cite such

authority. As this Court has explained, where a rule “merely restates the unambiguous meaning

of a preexisting rule or statute,” any “claims under Section 2001.038 are barred by sovereign

immunity.”    Texas Alcoholic Beverage Comm’n v. D. Hous., Inc., No. 03-13-00327-CV,

2017 WL 2333272, at *3 (Tex. App.— May 25, 2017, pet. denied) (mem. op.) (citing LMV-AL,

520 S.W.3d at 125; Sunset Transp., 357 S.W.3d at 704); see also Texas Dep’t of Transp.

v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011) (holding that “section 2001.038 does not carry

[plaintiff’s] claim over the hurdle of sovereign immunity” when plaintiff challenges procedures

established by statute). Because these arguments fail as a matter of law, the Director retains

immunity from suit with respect to this claim. See Transformative Learning Sys. v. Texas Educ.

Agency, 572 S.W.3d 281, 293 (Tex. App.—Austin 2018, no pet.).


              Regulations that Violate Existing Legal Rights

               Appellees contend the district court has jurisdiction under the APA because the

tiered-treatment regulations interfere with existing legal rights.       See Tex. Gov’t Code

§ 2001.038. Specifically, Appellees allege that Rules 810.153 and 810.273 violate their alleged


                                               13
right to outpatient treatment, their First Amendment rights to freedom of assembly and

expression, and their constitutional rights to due process and due course of law. See 37 Tex.

Admin. Code § 810.153 (Tiered Treatment and Supervision Program), .273 (Cost of Housing

Treatment, and Tracking Services). Although Appellees’ briefing on these claims does not

comply with appellate briefing standards, see Tex. R. App. P. 38.1, 38.2(a)(1), we will address

the arguments preserved at the district court and presented on appeal to the extent we can

construe them.

                 Appellees contend that by requiring “total confinement” via inpatient treatment at

the Center, rather than outpatient treatment at a “halfway house,” Rule 810.153 infringes on an

allegedly vested right to outpatient treatment. That rule requires “the seamless transition of a

committed person from a total confinement facility to less restrictive housing and

supervision . . . . ” See 37 Tex. Admin. Code. § 810.153(1). The source of the alleged right to

outpatient treatment is not clear from Appellees’ briefing. Appellees have already stipulated that

they no longer challenge the 2015 orders recommitting them under the amended version of the

statute. Specifically, they aver, “Plaintiffs do not challenge the judgment ordering them into

Chapter 841 commitment, the Orders of Commitment or the orders placing them in the tiered

treatment [sic] program.” Moreover, federal and state courts have already rejected the notion of

a general constitutional, statutory, or common law right to outpatient civil commitment. See Hitt

v. McLane, No. A-17-CV-289-SS, 2018 WL 773992, at *14 (W.D. Tex. Feb. 7, 2018) (gathering

authorities from the Supreme Court of the United States before rejecting challenge to 2015

amendments to this statute); Richards v. Taylor, No. CIV.A. H-13-1394, 2015 WL 5310853, at

*2 (S.D. Tex. Sept. 11, 2015) (rejecting challenge to transition to tiered treatment by explaining,

“[M]odification of the terms of an SVP’s commitment order is consistent with the proviso

                                                 14
already a part of the [pre-amendment] statute that authorized modifications as part of the

biennial review process.” (citing Tex. Health & Safety Code § 841.102(c)(1))); In re Brown,

No. 09-18-00428-CV, 2018 WL 6369713, at *1 (Tex. App.—Beaumont Dec. 6, 2018, no pet.)

(mem. op.) (rejecting similar argument before denying mandamus relief).

               Appellees further allege that Rule 810.153 and other regulations infringe on their

rights to assembly and expression as set forth in the United States and Texas constitutions.7 The

First Amendment to the United States Constitution guarantees that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.” U.S. Const. amend. I. The prohibition on

any interference with these rights was extended to state governments via incorporation through

the Fourteenth Amendment, and the Texas Constitution independently affords similar protections

to all Texans. See id. amend. XIV; Tex. Const. art. I, §§ 8, 27. Appellees allege that the Rule’s

requirement of “total confinement” interferes with these rights by preventing them from

interacting with friends and family, restricting certain speech, and precluding free movement

within the community. But as the Fifth Circuit has explained, in the context of involuntary civil

commitment, First Amendment restrictions “are permissible so long as they advance the state’s


       7  Appellees’ live petition also alleges that this rule interferes with their right to vote, see
U.S. Const. amends. XIV, XXIV; Tex. Const. art. VI, §§ 1–2, and Tex. Elec. Code
§ 11.002(a)(4), but Appellees have not briefed this Court on the allegation. We therefore do not
reach that issue. Tex. R. App. P. 38.1, 38.2; see also Texas Med. Ass’n v. Texas Workers Comp.
Comm’n, 137 S.W.3d 342, 351 (Tex. App.—Austin 2004, no pet.) (“All waivable errors not
included in the original appellate brief are waived and present nothing for review.” (referring to
constitutional arguments raised below but not included in appellate briefing)); cf. Matzen
v. McLane, 764 F. App’x 402, 402–03 (5th Cir. 2019) (observing, before affirming Rule 12(b)(6)
dismissal of First Amendment challenge to inpatient treatment, that individual confined at Texas
Civil Commitment Center had voted in 2016 general election).
                                                  15
interest in security, order, or rehabilitation.” Bohannan v. Doe, 527 F. App’x 283, 294 (5th Cir.

2013); see also Matzen v. McLane, 764 F. App’x 402, 402–03 (5th Cir. 2019) (rejecting First

Amendment challenge to the same statutory scheme at issue here); Hitt, 2018 WL 773992, at *17

(rejecting First Amendment challenge to earlier version of statute). Any rational relation to the

state’s interest suffices to justify the challenged regulation. See Bohannan, 527 F. App’x at 294.

Here, Appellees do not explain how the Center’s inpatient treatment and associated restrictions

are unrelated to the state’s interest in security, order, and rehabilitation. Because conclusory

allegations are not sufficient to overcome sovereign immunity, see City of El Paso v. Collins,

440 S.W.3d 879, 886 (Tex. App.—El Paso 2013, no pet.); Wise Reg’l Health Sys. v. Brittain,

268 S.W.3d 799, 808 (Tex. App.—Fort Worth 2008, no pet.), on this record Appellees cannot

establish the district court’s jurisdiction over a claim that the tiered-treatment regulations impair

First Amendment rights.

               For similar reasons, Appellees’ claim that Rules 810.153 and 810.273 interfere

with their rights to due process and due course of law also fails. The United States Constitution

provides that no state shall “deprive any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV. The Texas Constitution guarantees that “[n]o citizen of this

State shall be deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.” Tex. Const. art. 1, § 19.

“Though textually different, Texas courts generally construe the due course of law provision in

the same manner as its federal counterpart, the Due Process Clause.”              Lakey v. Taylor,

435 S.W.3d 309, 317 (Tex. App.—Austin 2014, no pet.) (citing Texas Workers’ Comp. Comm’n

v. Patient Advocates, 136 S.W.3d 643, 658 (Tex. 2004)). “Where, as here, the parties have not

argued that differences in state and federal constitutional guarantees are material to the case, and

                                                 16
none is apparent, we limit our analysis to the United States Constitution and assume that its

concerns are congruent with those of the Texas Constitution.” In re Commitment of Fisher,

164 S.W.3d 637, 645 (Tex. 2005) (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 150

(Tex. 2004)).

                The right to due process includes both procedural and substantive components.

“Procedural due process involves the preservation of both the appearance and reality of fairness

so that ‘no person will be deprived of his interests in the absence of a proceeding in which he

may present his case with assurance that the arbiter is not predisposed against him.’” Pickell

v. Brooks, 846 S.W.2d 421, 426 (Tex. App.—Austin 1992, writ denied) (quoting Marshall

v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). “Procedural due process expresses the fundamental

idea that people, as opposed to things, at least are entitled to be consulted about what is done to

them.” Id. (citing Laurence H. Tribe, American Constitutional Law § 10–7, at 666 (2d ed.

1988)). In several of the nine iterations of their petition for relief, Appellees challenged the 2015

hearings that resulted in their transfer to tiered treatment under the amended version of the

statute, arguing that they had not been afforded due process in those proceedings. Cf. In re

Commitment of May, 500 S.W.3d 515, 526 (Tex. App.—Beaumont 2016, pet. denied) (rejecting

procedural challenge to similar recommitment hearing). As noted above, Appellees have now

expressly abandoned any challenge to those 2015 commitment orders, and Appellees have not

articulated any other procedural due process argument. Thus, looking to the allegations, the

record, and the pleaders’ intent, see Miranda, 133 S.W.3d at 226–28, we conclude the district

court did not err in sustaining the plea with respect to any procedural due process claim.

                Appellees’ substantive due process theory is not entirely clear. They complain of

the statutory and regulatory requirement that sexually violent predators contribute to the cost of

                                                 17
housing and treatment, see 37 Tex. Admin. Code § 810.273; the agency’s definition of

indigency, see id. § 810.122(6); and an alleged disciplinary policy providing that individuals who

refuse to comply with cost-recovery requirements will not progress to less restrictive tiers of

confinement. Appellees fear that the Director might use these rules and policies to unlawfully

“extort payment” from indigent individuals or to transfer someone from less restrictive to more

restrictive supervision if he refuses to allow this “extortion.” Yet this kind of speculation is not

sufficient to establish the district court’s jurisdiction over the claim, as Texas courts have no

“jurisdiction to pass upon hypothetical or contingent situations, or to determine questions not

then essential to the decision of an actual controversy.” See Trinity Settlement Servs., LLC

v. Texas State Sec. Bd., 417 S.W.3d 494, 505 (Tex. App.—Austin 2013, pet. denied) (affirming

district court’s dismissal of APA challenge to agency’s possible rule interpretation based on

“hypothetical facts” (citing Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 130–

31 (Tex. App.—Austin 2007, no pet.))).

               Appellees further allege that by adopting a rule requiring them to remit part of

their monthly income toward the cost of housing and treatment, Rule 810.273—when paired

with the definitions set forth in Rule 810.122 and Office policy—might result in the

unconstitutional deprivation of property. But the Director acknowledges that unless Appellees

receive money or gifts, they are defined as indigent and her case workers may not enforce the

cost-recovery policy against them, and Appellees do not allege that they have or expect to

receive any income or other property that might render them non-indigent and therefore subject

to this policy.8 Thus, because conclusory allegations are insufficient to overcome sovereign


       8   We express no opinion on cases in which a sexually violent predator has alleged an
actual or imminent deprivation of property.
                                                18
immunity, and because we must assume administrative agencies intend their rules to be

interpreted and applied constitutionally, see Creedmoor Maha Water Supply Corp. v. Barton

Springs-Edwards Aquifer Conservation Dist., 784 S.W.2d 79, 85 (Tex. App.—Austin 1989, writ

denied), we hold that Appellees did not satisfy their burden to establish the district court’s

jurisdiction over this APA claim.

               Having concluded that the district court lacked jurisdiction over Appellees’ APA

claims, we sustain the Director’s sole issue on appeal. We reverse the part of the district court’s

order overruling the plea to the jurisdiction with respect to those claims.


Ultra Vires Claims

               Appellees challenge the district court’s dismissal of their ultra vires claims. A

government official’s conduct is ultra vires when “he exceeds the bounds of his granted authority

or if his acts conflict with the law itself.” See Houston Belt & Terminal Ry. v. City of Houston,

487 S.W.3d 154, 158 (Tex. 2016). “[S]uits to require state officials to comply with statutory or

constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that

effect compels the payment of money.” Heinrich, 284 S.W.3d at 372. “To fall within this 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.” See id. A court has no jurisdiction over an ultra vires claim

that fails as a matter of law. Hall v. McRaven, 504 S.W.3d 414, 419–20 (Tex. App.—Austin

2016), aff’d, 508 S.W.3d 232 (Tex. 2017).

               Appellees’ live petition includes ten enumerated paragraphs outlining dozens of

ostensibly ultra vires acts by the Director. Many of these allegations involve breaches of the


                                                 19
same alleged ministerial duties. Generally speaking, Appellees allege that the Director engaged

in ultra vires conduct by:


       •      failing to promulgate rules on certain subjects;

       •      allowing the Office’s board of directors to promulgate the rules necessary to
              administer the statute;

       •      denying Appellees adequate medical treatment;

       •      requiring Appellees to undergo inpatient treatment instead of outpatient
              treatment;

       •      threatening to recover certain sums or property from Appellees to defray the
              cost of treatment and housing; and

       •      interfering with their First Amendment rights to public assembly and personal
              expression.


To the extent Appellees intended to raise other allegations in support of an ultra vires theory, we

hold those arguments waived as unpreserved or inadequately briefed. See Tex. R. App. P. 33.1,

38.1, 38.2.

                 With respect to the allegation that the statute requires the promulgation of certain

rules that were never promulgated, Appellees have not identified any subject that should have

been addressed by rule but was not. See Pharmserv, Inc. v. Texas Health & Human Servs.

Comm’n, No. 03-13-00526-CV, 2015 WL 1612006, at *7 (Tex. App.—Austin Apr. 9, 2015, no

pet.) (mem. op.) (holding, inter alia, that the plaintiffs had not alleged the violation of any

ministerial duty that might give rise to an ultra vires claim arising from Health and Human

Service Commissioner’s decision not to promulgate certain rules). The Legislature set forth the

Office’s rulemaking authority and obligations in the Office’s organic statute:




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        The office shall adopt rules to:

        (1) develop standards of care and case management for persons committed under
            this chapter;

        (2) determine the conditions of supervision and treatment of a committed person;
            and

        (3) develop and implement the tiered program described by Section 841.0831,
            including rules regarding a committed person’s transition between
            programming tiers.


See Tex. Health & Safety Code § 841.141(b) (West 2016), repealed by Act of May 18, 2017,

85th Leg., R.S., ch. 34, § 40, 2017 Tex. Gen. Laws 72, 86. And more generally, all agencies

must promulgate any “statement of general applicability” that “implements, interprets, or

prescribes law or policy” affecting private rights or interests.              See Tex. Gov’t Code

§ 2001.003(6). The Director and the Office began promulgating the rules required by Section

841.141 of the Health and Safety Code shortly after the amended statute took effect and adopted

those regulations in 2018. See 42 Tex. Reg. 7565, 7566 (2017) (codified at 37 Tex. Admin.

Code § 810.122) (proposed Dec. 29, 2017). Because Appellees have not explained how the

Director failed to perform a ministerial act in the promulgation of the agency’s rules, Appellees

cannot establish the district court’s jurisdiction over their ultra vires claim.

                We need not address Appellees’ remaining ultra vires theories, as we rejected

each of these arguments in our foregoing analysis of Appellees’ claims under the APA. In

absence of a viable ultra vires theory, Appellees have not met their burden to establish the

district court’s jurisdiction over the ultra vires claims, and the district court did not err in

sustaining the Director’s plea to the jurisdiction with respect to these claims. See Heinrich,

284 S.W.3d at 372; McRaven, 504 S.W.3d at 419–20. We overrule the issue.



                                                  21
Repleading

               Having concluded that Appellees failed to establish the district court’s jurisdiction

over the claims against the Director, we turn to the only remaining question before this Court:

whether the district court should afford Appellees an opportunity to amend their petition to plead

new claims against the director. “[A] plaintiff must be given ‘“a reasonable opportunity to

amend” his pleadings to attempt to cure the jurisdictional defects found’ unless the pleadings are

incurably defective.” Koseoglu, 233 S.W.3d at 839 (quoting Texas A&M Univ. Sys. v. Koseoglu,

167 S.W.3d 374, 383 (Tex. App.—Waco 2005, pet. granted), and citing Harris County v. Sykes,

136 S.W.3d 635, 639 (Tex. 2004), and Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867–

68 (Tex. 2002)). This opportunity is afforded “only if it is possible to cure the pleading defect.”

Id. at 840. “[T]he right to amend typically arises when the pleadings fail to allege enough

jurisdictional facts to demonstrate the trial court’s jurisdiction.” Ramirez, 74 S.W.3d at 867; see

also Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (dismissing rather than

remanding for repleading where party failed to establish jurisdiction after pleading all

jurisdictional facts but asked for remand “to plead new claims” in an attempt to establish the

district court’s jurisdiction over the dispute). In this case, Appellees have amended their petition

eight times to include myriad factual allegations. Even after eight amendments, the alleged facts,

when viewed in light of relevant precedent, give rise to no viable claim against the Director.

Thus, in this case, as in Marquez, “the jurisdictional bar arises not from a lack of factual

allegations but from the nature of the [plaintiffs’] claims.” Marquez, 487 S.W.3d at 559.

Because the record and governing law negate the existence of the district court’s jurisdiction

over the dispute, “remanding the cause to the trial court will serve no legitimate purpose,”



                                                22
Koseoglu, 233 S.W.3d at 846, and we must render judgment dismissing Appellees’ claims

against McLane, see id.; Marquez, 487 S.W.3d at 559–60.


                                        CONCLUSION

                  Even reviewing this record in the light most favorable to Appellees, Miranda,

133 S.W.3d at 226, we conclude they have not established the district court’s jurisdiction over

their claims against the Director. Thus, and for the reasons stated herein, we reverse the district

court’s order to the extent it overrules the Director’s plea to the jurisdiction as to Appellees’

APA claim against her and affirm the district’s court order in all other respects. We render

judgment dismissing the claims against McLane.



                                             __________________________________________
                                             Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith
 Concurring Opinion by Justice Goodwin

Affirmed in Part; Reversed and Rendered in Part

Filed: March 6, 2020




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