      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00220-CV



                                 Trent Alvon Smith, Appellant

                                                 v.

                    District Attorney Office for Wood County, Texas and
                 The 402-G District Court of Wood County, Texas, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. D-1-GN-12-003552, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Trent Alvon Smith, an inmate in the Texas Department of Criminal Justice, Ellis

Unit, appeals the trial court’s dismissal of his lawsuit against the 402nd Judicial District Court of

Wood County, Texas, and the Wood County District Attorney’s Office (collectively, the Appellees).

Smith contends that the trial court erred in granting the Appellees’ pleas to the jurisdiction and in

failing to rule on several pending motions. We will affirm.


                                         BACKGROUND

               In November 2012, Smith filed a pro se lawsuit against the Appellees “to redress

the deprivation under color of state law of rights secured by the due course of law of the land in

conjunction with the Constitution of the United States.” More specifically, Smith complains of

alleged errors committed by the Appellees in the handling of his 1993 criminal trial and of his
subsequent application for writ of habeas corpus. According to Smith, he was threatened by the

district attorney “to make an involuntary plea to the charged offenses and he never plead[ed] true

to the enhancement paragraph” and that “the [Appellees engaged] in a conspiracy to deprive [him]

of Due Course of Law, [and] the district attorney’s office failed in its duty to disclose material

evidence and to correct false evidence.”

               In response, the Appellees filed pleas to the jurisdiction arguing that Smith’s claims

are barred by sovereign immunity, judicial immunity, and prosecutorial immunity. Following hearings

on the pleas, the trial court granted the Appellees’ pleas to the jurisdiction and dismissed the case.

This appeal followed.

               In two related issues, Smith argues that the trial court erred in granting the Appellees’

pleas to the jurisdiction. In his third issue, Smith contends that the trial court abused its discretion

in failing to rule on several motions.


                                    STANDARD OF REVIEW

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

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

217, 226 (Tex. 2004). The plaintiff must affirmatively establish the trial court’s subject-matter

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

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

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

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




                                                   2
the plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s

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


                                             ANALYSIS


Immunity

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

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

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

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

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

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

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

Smith’s pleadings, we conclude that Smith complains only of actions taken by the judge of the

402nd District Court in his judicial capacity. Smith does not specifically allege, nor does anything

in the record suggest, that the judge acted in the clear absence of all jurisdiction. Accordingly, we

conclude that Smith’s suit against the district judge of Wood County implicates judicial immunity.

                Similarly, to the extent Smith is attempting to sue certain unnamed prosecutors in

the Wood County District Attorney’s Office, we conclude such claims implicate derived judicial

immunity.1 In Texas, judicial immunity extends to officers of the court who are integral parts of the


       1
           While Smith’s pleadings list governmental entities as parties, his request for relief is
targeted toward certain individuals acting on behalf of those governmental entities. As a result, it
is unclear whether Smith is attempting to sue the district court and the district attorney’s office as

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judicial process. Hawkins v. Walvoord, 25 S.W.3d 882, 891 (Tex. App.—El Paso 2000, pet. denied).

As a result, prosecutors generally have immunity from liability arising from their “activities intimately

associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 427

(1976) (prosecutor acting within scope of duties in initiating and pursuing criminal prosecution was

absolutely immune from suit under 42 U.S.C. § 1983); Charleston v. Allen, 420 S.W.3d 134, 136-37

(Tex. App.—Texarkana 2012, no pet.). Here, all of Smith’s allegations concern matters that occurred

in Smith’s underlying 1993 criminal proceedings. Based on Smith’s pleadings, we conclude that his

allegations against the prosecutors in the District Attorney’s Office concern acts of advocacy that are

“intimately associated with the judicial phase of the criminal process.” See Imbler, 424 U.S. at 427.


Ultra Vires

                Smith argues that his claims are not barred by immunity because he is seeking only

declaratory and injunctive relief based on the Appellees’ constitutional violations. Although Smith

has not specifically characterized his suit as an ultra vires action, his constitutional claims concern

action and inaction by government officials. Liberally construing Smith’s pleadings, we interpret

Smith’s suit as an attempt to bring an ultra vires action. Cf. Texas Lottery Comm’n v. First State

Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (concluding that plaintiff’s claim was not

ultra vires claim because claim did not involve any government officer’s action or inaction).




governmental entities or is attempting to sue individuals in these offices in their official capacities.
For purposes of analyzing immunity, we assume that Smith has brought suit against the individuals
as government officials. However, to the extent Smith is attempting to sue the governmental entities
directly, we note that such claims implicate sovereign immunity and governmental immunity. See
Witchita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

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

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

El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).2 However, relief is limited in an ultra vires

suit to prospective declaratory or injunctive relief restraining ultra vires conduct, as opposed to

retroactive relief. Id. at 374-77.

                In this case, Smith seeks a declaration that certain acts and omissions committed

during his criminal trial “violated [his] rights under due course of law and the Constitution and

laws of the United States.” In addition, Smith seeks a permanent injunction against the judge of the

402nd District Court of Wood County and the current District Attorney of Wood County ordering

them to admit that Smith’s constitutional rights were violated in the past and that, as a result, the

judgment of conviction against him is void. Construing Smith’s allegations liberally in his favor

and accepting all of his allegations as true, we conclude that Smith’s claims for declaratory and

injunctive relief are retrospective claims and do not support the existence of any potential ultra vires

claim. See Roy v. Shannon, No. 02-13-00238-CV, 2014 Tex. App. LEXIS 9305, at *7-8 (Tex.

App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op.) (upholding dismissal of inmate’s suit against


        2
            Suits alleging ultra vires or unconstitutional conduct by a government official are not
considered to be suits against the state and therefore must be brought against state actors in their
official capacities. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). But see City of
Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007) (per curiam) (“[S]uits for injunctive relief may be
maintained against governmental entities to remedy violations of the Texas Constitution.”). As
previously explained, it is unclear whether Smith seeks to bring suit against individual state actors
or against the governmental entities themselves. To the extent Smith is attempting to bring an ultra
vires suit against governmental entities, as opposed to officers in their official capacities, such action
is improper. Heinrich, 284 S.W.3d at 373. However, for purposes of deciding whether Smith has
asserted a valid ultra vires action, we assume that Smith has brought suit against the government
officials in their official capacities.


                                                    5
judge and district attorney and explaining that requested declaration and injunction for admission

regarding past acts did not implicate ultra vires claim); Delk v. Lehmberg, No. 03-12-00678-CV,

2014 Tex. App. LEXIS 5033, at *7-8 (Tex. App.—Austin May 9, 2014, no pet.) (mem. op.) (same);

Hailey v. Glaser, No. 06-12-00065-CV, 2012 WL 5872869, at *11 (Tex. App.—Texarkana Nov. 21,

2012, no pet.) (mem. op.) (same); see also Higgins v. Blount, No. 07-12-00093-CV, 2013 WL

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

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

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

vires exception does not apply to the facts of this case”). Because Smith’s claims are otherwise

barred by immunity, the trial court did not err in granting the Appellees’ pleas to the jurisdiction.3

We overrule Smith’s first and second issues on appeal.

                In his third issue, Smith argues that the trial court abused its discretion by failing to

rule on several pending motions. First, Smith complains that the trial court failed to rule on his

“objections” to the Appellees’ pleas to the jurisdiction. However, what Smith refers to as “objections”

are, in fact, legal arguments presented by Smith in pleadings filed in response to the Appellees’ pleas

to the jurisdiction. It is clear from the record before us that the trial court, in determining that it

lacked jurisdiction, considered and rejected the jurisdictional arguments raised by Smith in his

written pleadings and “objections,” and no separate ruling was required. Second, Smith complains

that the trial court failed to issue findings of fact and conclusions of law following the jurisdictional



        3
          Smith also appears to argue that his 1993 judgment of conviction for felony forgery is
invalid and should be set aside. This relief may be obtained only by writ of habeas corpus from the
court of criminal appeals. See Tex. Code Crim. Proc. art. 11.07.

                                                    6
rulings, despite Smith’s request to do so and his notice of past due findings of fact and conclusions

of law. See Tex. R. Civ. P. 296, 297. Because the trial court’s dismissal was based solely on the

allegations presented in Smith’s pleadings, findings of fact and conclusions of law would have

served no purpose and thus would have been inappropriate in this case. See IKB Indus. v. Pro-Line

Corp., 938 S.W.2d 440, 443 (Tex. 1997) (summarizing when request for findings of fact and

conclusions of law is inappropriate, including “dismissal based on pleadings”). We overrule Smith’s

third issue on appeal.


                                         CONCLUSION

               Having overruled Smith’s issues on appeal, we affirm the dismissal orders of the

trial court.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: October 24, 2014




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