Opinion filed May 31, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00325-CV
                                  __________

                 THE UNIVERSITY OF TEXAS OF
               THE PERMIAN BASIN ET AL., Appellants
                                          V.
                     MICHAEL BANZHOFF, Appellee


                    On Appeal from the 358th District Court
                             Ector County, Texas
                    Trial Court Cause No. D-17-07-0777-CV


                     MEMORANDUM OPINION
      In two issues, Appellants—The University of Texas of the Permian Basin,
Steven Aicinena, and Andy Newman—appeal the trial court’s denial of their plea to
the jurisdiction as to Appellee Michael Banzhoff’s abuse of process and ultra vires
claims. Because governmental immunity deprives the trial court of jurisdiction over
these claims, we sustain Appellants’ two issues, reverse the trial court’s order to the
extent it denied Appellants’ plea to the jurisdiction as to Banzhoff’s abuse of process
and ultra vires claims, and render judgment dismissing those claims for lack of
jurisdiction. In all other respects, we affirm.
                                        Background Facts
      The University of Texas of the Permian Basin (UTPB) hired Banzhoff in 2015
to be its men’s and women’s head golf coach. UTPB terminated Banzhoff’s
employment in 2016, and “university police officers” issued a criminal trespass
notice warning Banzhoff against trespassing on university property or attending
sporting events on or off campus.
      Shortly after his termination, Banzhoff was arrested at the Odessa Country
Club for criminal trespass. Banzhoff alleges that Appellants were responsible for
having him arrested. Appellants assert that a UTPB golf event with student athletes
was being held at the club when Banzhoff was arrested.
      Banzhoff sued UTPB, Aicinena,1 and Newman, 2 alleging the following
causes of action: (1) breach of contract; (2) tortious interference with existing
contract; (3) fraud; (4) intentional infliction of emotional distress; (5) misuse of
process; 3 (6) declaratory and equitable relief; and (7) ultra vires. Appellants filed a
plea to the jurisdiction contending that Banzhoff’s claims were barred by
governmental immunity. Both parties use the terms “sovereign immunity” and
“governmental immunity” interchangeably in their briefs. Although both terms
embody the same concepts of law, because UTPB is a subdivision of the State, we
use the term “governmental immunity” in our discussion. See Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).




      1
       Aicinena served as UTPB’s Athletic Director and was Banzhoff’s supervisor.
      2
       Newman served as UTPB’s interim golf coach following Banzhoff’s termination.
      3
       The parties also refer to this claim as “abuse of process.”

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      Appellants also filed a motion to dismiss all tort claims against Aicinena and
Newman pursuant to Section 101.106(e) of the Texas Civil Practice and Remedies
Code. Section 101.106(e) provides: “If a suit is filed under this chapter against both
a governmental unit and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(e) (West 2019).
      After holding a hearing, the trial court granted Appellants’ motion to dismiss.
In its written order, the trial court specifically dismissed with prejudice “[a]ll tort
claims and causes of action” alleged by Banzhoff against Aicinena and Newman “in
their official and individual capacities.” The trial court also partially granted
Appellants’ plea to the jurisdiction and dismissed with prejudice Banzhoff’s claims
for breach of contract, tortious interference with existing contract, fraud, intentional
infliction of emotional distress, and declaratory judgment and equitable relief. The
trial court denied Appellants’ plea to the jurisdiction regarding Banzhoff’s abuse of
process and ultra vires claims.
                                       Analysis
      In two issues, Appellants argue that the trial court erred in denying their plea
to the jurisdiction.    “Sovereign immunity and its counterpart, governmental
immunity, exist to protect the State and its political subdivisions from lawsuits and
liability for money damages.” Mission Consol., 253 S.W.3d at 655; see also Tarrant
Reg’l Water Dist. v. Johnson, No. 17-0095, 2019 WL 1575591, at *3 (Tex. Apr. 12,
2019).   Sovereign immunity shields the State from suit unless the legislature
consents to being sued. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Governmental immunity affords similar protection to subdivisions of the State,
including state universities. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 583
(Tex. 2005); Sykes, 136 S.W.3d at 638.


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      The legislature may waive governmental immunity by statute. PHI, Inc. v.
Tex. Juvenile Justice Dept., No. 18-0099, 2019 WL 1873431, at *3 (Tex. Apr. 26,
2019). The Texas Tort Claims Act (TTCA) creates a limited waiver of immunity
for certain tort claims.     Id.; see also CIV. PRAC. & REM. §§ 101.001–.109.
Specifically, the legislature has waived governmental immunity in three general
areas: (1) property damage, personal injury, and death caused by the use of a vehicle;
(2) personal injury and death caused by a condition or use of tangible personal or
real property; and (3) personal injury and death caused by premises defects. CIV.
PRAC. & REM. §§ 101.021, .025; see also Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 224–25 (Tex. 2004).
      Governmental immunity implicates the trial court’s subject-matter
jurisdiction and is properly asserted in a plea to the jurisdiction. PHI, Inc., 2019
WL 1873431, at *3; Miranda, 133 S.W.3d at 225–26. Whether a trial court has
subject-matter jurisdiction is a question of law, Miranda, 133 S.W.3d at 226, and we
review the trial court’s ruling on a plea to the jurisdiction de novo, PHI, Inc., 2019
WL 1873431, at *3.
      “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). A plea to the jurisdiction
may challenge either the sufficiency of jurisdictional allegations in the pleadings or
the existence of jurisdictional facts. Miranda, 133 S.W.3d at 226–27; see also
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
When, as in this case, a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts that affirmatively demonstrate the trial
court’s jurisdiction to hear the claim. Miranda, 133 S.W.3d at 226. We construe
the pleadings liberally in favor of the pleader and look to the pleader’s intent. Id. at
226. If the pleadings do not contain sufficient facts to affirmatively show the trial
                                           4
court’s jurisdiction, but do not affirmatively demonstrate an incurable defect in
jurisdiction, the issue is one of pleading sufficiency, and the pleader should be
allowed an opportunity to amend. Id. at 226–27. However, if the pleadings
affirmatively negate the existence of jurisdiction, the plea to the jurisdiction may be
granted without allowing the plaintiff to amend. Id. at 227.
        In their first issue, Appellants contend that the trial court erred in denying their
plea to the jurisdiction regarding Banzhoff’s claim for abuse of process because
governmental immunity was not waived. Specifically, Appellants argue that abuse
of process is an intentional tort that falls outside the TTCA’s limited waiver and is
therefore barred by governmental immunity. 4 Conversely, Banzhoff argues that the
trial court correctly concluded that the abuse of process claim was essentially a
constitutional claim for due course of law over which it has jurisdiction.
        In his second amended petition, Banzhoff pleaded:
                                 FIFTH CAUSE OF ACTION
                                     (Misuse of Process)
                ....

               62. Defendants did commit the abuse of process and that one or
        more of the Defendants’ agents, representatives or employees
        performed or participated in the act or practice on behalf of and under
        the authority or direction of Defendants.
              63. Defendants used the legal process for, illegal, improper, or
        perversion, neither warranted nor authorized by the legal process.
              64. The ulterior motive or purpose in exercising this perversion
        of the legal process, being personal harm to Plaintiff. There was
        damage as a result of the illegal act.



        4
        Although the trial court dismissed with prejudice “[a]ll tort claims and causes of action” alleged
by Banzhoff against Aicinena and Newman, “in an abundance of caution,” Aicinena and Newman joined
UTPB in “this argument.”

                                                    5
At the hearing on Appellants’ plea to the jurisdiction, the trial court commented that
it thought Banzhoff’s misuse of process claim was “essentially a due course of law
challenge.” However, the trial court did not rule on the issue at that time. Instead,
in a later written order, the trial court dismissed the due course of law claim, which
had been asserted in Banzhoff’s sixth cause of action for declaratory and equitable
relief. While Banzhoff points to the trial court’s comment as proof that his misuse
of process claim is actually a due course of law claim, a written order controls over
an oral pronouncement when there is an inconsistency. See In re A.S.G., 345 S.W.3d
443, 448 (Tex. App.—San Antonio 2011, no pet.); In re K.M.B., 148 S.W.3d 618,
622 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
      The elements of the tort of abuse of process are (1) the defendant made an
illegal, improper, or perverted use of the process, a use neither warranted nor
authorized by the process; (2) the defendant had an ulterior motive or purpose in
exercising such illegal, perverted, or improper use of the process; and (3) damage to
the plaintiff as a result of such illegal act. Moore v. Bushman, 559 S.W.3d 645, 652–
53 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Abuse of process is an
intentional tort. The TTCA does not waive immunity for intentional torts. See CIV.
PRAC. & REM. § 101.057.
      Banzhoff’s fifth cause of action explicitly tracks the elements of an abuse of
process tort. See Moore, 559 S.W.3d at 652–53. We conclude that Banzhoff’s fifth
cause of action entitled “Misuse of Process” is, in fact, an abuse-of-process tort
claim. Because the claim does not arise out of the use of a motor vehicle or motor-
driven equipment, or a condition or use of tangible personal or real property, it does
not fall within the limited waiver of immunity in the TTCA. CIV. PRAC. & REM.
§ 101.021; see Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 790–91 (Tex.
App.—Dallas 2012, pet. denied). Thus, Banzhoff’s abuse of process claim is barred
by governmental immunity, see Ollie, 383 S.W.3d at 790–91, and the trial court
                                          6
erred in denying Appellants’ plea to the jurisdiction regarding the claim. We sustain
Appellants’ first issue.
      In their second issue, Appellants contend that the trial court erred in denying
their plea to the jurisdiction regarding Banzhoff’s ultra vires claim because UTPB
is not a proper party to the claim and Banzhoff failed to plead conduct by Aicinena
or Newman that would constitute either a violation of Banzhoff’s constitutional
rights or an ultra vires act. In certain narrow instances, a suit against a state official
can proceed even in the absence of a waiver of immunity if the state official’s actions
are ultra vires. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). To fall within
the 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.” City of
El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); see also Chambers–Liberty
Counties Navigation Dist. v State, No. 17-0404, 2019 WL 2063575, at *8 (Tex. May
10, 2019). An official with “some discretion to interpret and apply a law may
nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the
bounds of his granted authority or if his acts conflict with the law itself.” Hall, 508
S.W.3d at 238 (quoting Houston Belt & Terminal Ry. Co. v. City of Houston, 487
S.W.3d 154, 158 (Tex. 2016)).
      An official’s ministerial acts are those “where the law prescribes and defines
the duties to be performed with such precision and certainty as to leave nothing to
the exercise of discretion or judgment.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d
578, 587 (Tex. 2015) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654
(Tex. 1994)); see also Hall, 508 S.W.3d at 238. A discretionary act, on the other
hand, requires the exercise of judgment and personal deliberation. Emmett, 459
S.W.3d at 587. A government official acts “beyond his granted discretion” if he
“exercises judgment or limited discretion ‘without reference to or in conflict with
                                            7
the constraints of the law authorizing the official to act,’ because ‘a public officer
has no discretion or authority to misinterpret the law.’” Chambers–Liberty Counties
Navigation Dist., 2019 WL 2063575, at *8 (quoting Houston Belt & Terminal Ry.
Co., 487 S.W.3d at 163). However, it is not an ultra vires act for a government
official to make an erroneous decision while staying within his authority. Hall, 508
S.W.3d at 242–43.
      Suits complaining of ultra vires actions must be brought against government
officials in their official capacity and may seek only prospective injunctive remedies.
Chambers–Liberty Counties Navigation Dist., 2019 WL 2063575, at *7. The
underlying governmental entity remains immune from suit. Id. If an ultra vires
claim is filed against both the governmental entity and the “appropriate officials in
their official capacity,” the court must dismiss the claims against the governmental
entity for lack of jurisdiction but allow the claims against the official in his or her
official capacity to go forward. Heinrich, 284 S.W.3d at 372–73, 377.
      In this case, UTPB—a governmental entity—is not a proper defendant to
Banzhoff’s ultra vires claim.     See id. at 372–73; see also Chambers–Liberty
Counties Navigation Dist., 2019 WL 2063575, at *7. Accordingly, the trial court
erred in denying UTPB’s plea to the jurisdiction as to the ultra vires claim.
      We next consider whether Banzhoff sufficiently alleged facts that
affirmatively demonstrate an ultra vires cause of action against Aicinena or
Newman. See Creedmoor-Maha Water Supply Corp. v. Texas Comn’n on Envtl.
Quality, 307 S.W.3d 505, 516–18 (Tex. App.—Austin 2010, no pet.). Merely
asserting legal conclusions or labeling a defendant’s actions as “ultra vires,”
“illegal,” or “unconstitutional” does not suffice to plead an ultra vires claim. Tex.
Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin
2011, no pet.). Instead, “what matters is whether the facts alleged constitute actions
beyond the governmental actor’s statutory authority, properly construed.” Id. If the
                                          8
plaintiff alleges only facts demonstrating acts within the officer’s legal authority and
discretion, the claim seeks to control state action and is barred by governmental
immunity. Creedmoor-Maha Water Supply Corp., 307 S.W.3d at 515–16. “In the
same way, if the claimant is attempting to restrain a state officer’s conduct on the
grounds that it is unconstitutional, it must allege facts that actually constitute a
constitutional violation.” Id. at 516. That a state official reaches an incorrect or
wrong result when exercising his delegated authority does not necessarily
demonstrate that he has exceeded his authority. See id. at 517–18.
      In his second amended petition, Banzhoff pleaded:
                         SEVENTH CAUSE OF ACTION
                                (Ultra Vires)
             ....

             70. Defendants did commit the abuse of process and that one or
      more of the Defendants’ agents, representatives or employees
      performed or participated in the act or practice on behalf of and under
      the authority or direction of Defendants.
            71. Defendants used the legal process for, illegal, improper, or
      perversion, neither warranted nor authorized by the legal process.
            72. The ulterior motive or purpose in exercising this perversion
      of the legal process, being personal harm to Plaintiff. There was
      damage as a result of the illegal act.
             73. Doctrine of ultra vires applies.
             74. The Doctrine of Judicial Review applies.
             75. Defendant has infringed upon Plaintiff’s right to property and
      liberty under Article I, Section 19 of the Texas Constitution as
      positioned by the facts stated above.
             76. Plaintiff asserts the Doctrine of ultra vires as well as interest
      in the property of the ultra vires exception.




                                           9
             77. There has been a denial of property which is in opposition of
      the Constitutional Rights of the Plaintiff and has deprived him of the
      use of certain properties.
Banzhoff’s seventh cause of action (1) simply restates his claim for the tort of abuse
of process, (2) alleges that the doctrines of ultra vires and judicial review apply, and
(3) contends Aicinena’s and Newman’s conduct deprived him of his constitutional
rights. These general allegations are insufficient to plead an ultra vires claim against
Aicinena or Newman. See Sunset Transp., Inc., 357 S.W.3d at 702. Further,
Banzhoff failed to plead any facts that support a finding that Aicinena or Newman
exceeded any delegated authority, did not perform a ministerial duty, or violated
Banzhoff’s constitutional rights. See Heinrich, 284 S.W.3d at 372; Creedmoor-
Maha Water Supply Corp., 307 S.W.3d at 516–18.
      Banzhoff argued at both the hearing on Appellants’ plea to the jurisdiction
and in his brief on appeal that Aicinena and Newman acted ultra vires by
(1) instructing Banzhoff not to trespass on property that was not owned by UTPB
and (2) calling the police to have him arrested at the Odessa Country Club. We note
that the “Statement of Criminal Trespass” in the record was not issued by either
Aicinena or Newman and that there is no specific allegation either man called the
police regarding Banzhoff’s presence at the Odessa Country Club. However, even
if we take Banzhoff’s allegations as true, he fails to explain how issuing a criminal
trespass notice or calling the police—even if done erroneously—are anything but
discretionary actions by Aicinena or Newman. See Creedmoor-Maha Water Supply
Corp., 307 S.W.3d at 516–18; see also Hall, 508 S.W.3d at 242–43.
      Banzhoff has failed to allege sufficient facts to support an ultra vires action
against Aicinena or Newman, and the record affirmatively reflects the defect is not
curable. See Miranda, 133 S.W.3d at 226–27. Accordingly, Banzhoff’s ultra vires
claim against Aicinena and Newman is barred by governmental immunity, see

                                          10
Chambers–Liberty Counties Navigation Dist., 2019 WL 2063575, at *8 (noticing
governmental immunity protects acts of discretion by government official), and the
trial court erred in denying Aicinena and Newman’s plea to the jurisdiction regarding
that claim. We sustain Appellants’ second issue.
                                         This Court’s Ruling
        We reverse the trial court’s order to the extent the trial court denied
Appellants’ plea to the jurisdiction as to Banzhoff’s abuse of process and ultra vires
claims, and we render judgment dismissing those claims for lack of jurisdiction. In
all other respects, the trial court’s order is affirmed.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE

May 31, 2019
Panel consists of: Bailey, C.J.,
Willson, J., and Wright, S.C.J.5

Willson, J., not participating.




        5
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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