Affirmed and Memorandum Opinion filed February 27, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00673-CV

          IN THE INTEREST OF K.G.S. AND T.W.S., CHILDREN.


                   On Appeal from the 312th District Court
                            Harris County, Texas
                     Trial Court Cause No. 2009-01569A

                 MEMORANDUM                     OPINION


      This case arises out of a suit to modify a parent-child relationship. The
mother of the children affected by the suit appeals the trial court’s dismissal of
counterclaims she filed against the Texas Department of Family and Protective
Services (TDFPS) after TDFPS intervened in the suit. Concluding that each of the
mother’s counterclaims is either barred by sovereign immunity or unripe, we
affirm.
                                  BACKGROUND
      The children’s parents divorced in 2009. The final divorce decree appointed
both parents as joint managing conservators of the two children, with the mother
receiving the exclusive right to designate the children’s primary residence. The
final divorce decree also contained a provision enjoining the parents from
consuming alcohol within twenty-four hours of having possession or access to the
children.

      In October of 2011, TDFPS received a referral alleging that the mother was
negligently supervising her children as a result of her reported alcohol abuse. A
division of TDFPS, Child Protective Services (CPS), investigated the allegations.
A caseworker conducted a family assessment on February 1, 2012. During the
assessment, the mother admitted drinking wine every night and having used
cocaine two months prior.

      The father filed a petition to modify the parent-child relationship on
February 6. His petition alleged a material and substantial change in circumstances
since the final divorce decree, including an allegation that the mother had a history
or pattern of child neglect. The father requested temporary orders appointing him
as sole managing conservator and limiting the mother to supervised visitation.

      Two days after the father filed his petition, the mother began receiving
services from TDFPS’s Family Based Safety Services. The mother voluntarily
placed the children with their maternal grandmother while services were provided.
The mother underwent a “drug/alcohol assessment” in which she confirmed recent
cocaine use; the assessment “indicated she needed treatment.”              She also
participated in a single therapy session, but refused recommended random drug
testing and substance abuse treatment.          The therapist from the session
recommended that the mother’s visitations remain supervised.

                                         2
      The mother removed the two children from their grandmother’s home on
March 31. Three days later, TDFPS intervened in the parents’ custody dispute and
requested immediate appointment as temporary sole managing conservator of the
children.     TDFPS’s petition was accompanied by the affidavit of a CPS
caseworker.

      TDFPS requested that the trial court conduct a full adversary hearing and
make certain temporary orders. Among other things, TDFPS asked the court to
order both parents (1) to make payments for the temporary support of the children,
(2) to submit to a family assessment and psychological examination, (3) to attend
counseling sessions to address the specific issues that led to the children’s removal,
(4) to attend parenting classes as required by TDFPS, (5) to submit to a drug and
alcohol assessment followed by a substance abuse treatment program if needed,
and (6) to comply with each requirement set out in TDFPS’s service plan during
the pendency of the suit.

      The mother filed counterclaims against TDFPS, as well as a motion to strike
TDFPS’s intervention. The original counterclaim asserted two causes of action
against TDFPS.      The mother sought her “actual damages” and reasonable
attorney’s fees under federal racketeering and civil rights statutes, as well as
certain declaratory and injunctive relief. See 18 U.S.C. § 1964(c) (2012); 42
U.S.C. §§ 1983, 1988 (2012).

      In her first cause of action, the mother sought a declaration that Rule
204.4(a) of the Texas Rules of Civil Procedure, which permits the court to order
psychological examinations of the parties, violates the Fifth Amendment privilege
against self-incrimination. See U.S. Const. amend. V. The mother further sought
to enjoin CPS from compelling psychological evaluations of parents it alleges are
neglecting, injuring, abusing, or sexually abusing the children who are the subject

                                          3
of the suit.     The mother argued she was being forced to choose between
cooperating with the evaluation at the risk of incriminating herself in child abuse,
or not cooperating with the evaluation at the risk of losing her children. 1

       The mother also sought declaratory and injunctive relief regarding the
constitutionality of an alleged CPS policy of “demanding” that parents submit to
drug testing. The mother alleged that the requests for drug testing are warrantless
searches in violation of the Fourth Amendment. See U.S. Const. amend. IV. The
mother further alleged that she was subjected to such a warrantless search.

       The mother also noted that TDFPS sought to remove her children from her
care, custody, and control, and to have CPS appointed temporary and permanent
managing conservator of the children, which the mother alleged would have a
“substantial adverse effect on [her] First Amendment right of association with her
children.” See U.S. Const. amend. I.

       In a second cause of action, the mother alleged CPS was committing “Mail
Fraud,” see 18 U.S.C. § 1341 (2012), by sending pleadings and other documents
soliciting child support payments in a scheme to defraud parents. The mother
argued this conduct constituted a “pattern of racketeering activity” as defined in
the federal Racketeer Influenced and Corrupt Organizations Act (RICO) statutes.
See 18 U.S.C. § 1961.          The mother asked the trial court to declare CPS a
continuing criminal enterprise and issue appropriate orders.

       On May 2, 2012, TDFPS filed an original answer to the mother’s
counterclaims as well as a plea to the jurisdiction. In its plea to the jurisdiction,

       1
          During the hearings in the trial court, the mother also asserted the Fifth Amendment
privilege against self-incrimination to avoid answering questions regarding whether she violated
the divorce decree’s provisions enjoining her from consuming alcohol within twenty-four hours
of her access to the children. The trial court allowed the mother to invoke the privilege and
refuse to answer those questions while on the witness stand.

                                               4
TDFPS argued that the mother lacked standing to assert her RICO claims as well
as her constitutional challenges brought under section 1983, and that it was entitled
to sovereign immunity from suit. TDFPS also argued that the lack of jurisdiction
over the section 1983 and RICO claims meant the court also lacked jurisdiction to
issue a declaratory judgment.

      On May 8, the trial court ordered the parents to report immediately to a
screening center and provide hair, urine, and blood samples for drug and alcohol
screening. The trial court also referred the mother to an assessment center for a
forensic evaluation for alcohol abuse and cocaine and marijuana use.

      The mother responded to the plea to the jurisdiction on May 12, arguing that
sovereign immunity was expressly waived by statute and conduct and that state
courts have concurrent jurisdiction over RICO and civil rights claims. The mother
asserted that TDFPS’s intervention in the suit affecting the parent-child
relationship sufficed to waive sovereign immunity. She also argued that section
105.002 of the Texas Civil Practice and Remedies Code waived sovereign
immunity.

      Both parties filed supplemental briefing on the availability of declaratory
relief. TDFPS argued that declaratory judgments are unavailable if the court does
not have jurisdiction over the underlying claim. TDFPS asserted that the trial court
did not have jurisdiction over the mother’s underlying claims because the claims
were not ripe and because it retained sovereign immunity.

      TDFPS argued a Fifth Amendment claim would only be ripe if the mother,
faced with “a realistic threat of self-incrimination,” was required to meet with a
psychologist and take drug and alcohol tests despite having invoked the privilege
against self-incrimination. TDFPS argued that the mother had not identified any
criminal activity in which she might incriminate herself.       Thus, according to
                                         5
TDFPS, the mother has not demonstrated that any actual injury is likely to occur.

      TDFPS also argued that the mother’s claims did not fit within the waiver of
immunity contained in the Uniform Declaratory Judgment Act (“UDJA”), Tex.
Civ. Prac. & Rem. Code §§ 37.001–.011 (West 2008), because she did not plead a
viable constitutional claim.    TDFPS argued that the privilege against self-
incrimination does not convey a right to “wholly refuse to submit to a
psychological evaluation or drug and alcohol tests.” Furthermore, according to
TDFPS, the privilege against self-incrimination would only preclude it from
obtaining termination of parental rights solely because of the refusal to submit to
the evaluations.

      In her supplemental brief, the mother argued that because she sought a
declaratory judgment that Rule 204.4(a) is unconstitutional, the UDJA waived
immunity for her claim for declaratory relief.

      The trial court granted TDFPS’s plea to the jurisdiction and dismissed the
mother’s claims against TDFPS with prejudice on July 5. The mother filed a
notice of accelerated appeal on July 12. On August 17, this Court issued an order,
upon TDFPS’s motion, abating the interlocutory appeal in order for the trial court
to conduct a status hearing no later than August 24. TDFPS also filed a motion for
severance in the trial court, which the court granted on October 30, making its
order granting the plea to the jurisdiction a final judgment. The mother filed an
amended notice of appeal, and this appeal followed.

      On August 20, 2012, after the trial court granted the plea to the jurisdiction
but before the severance order, the mother filed a self-styled “First Amended
Counterclaim.”     In it, she added as counter-defendants two caseworkers for
TDFPS, both individually and in their official capacities. The mother also added a
request for declaratory relief regarding the constitutionality under the First
                                         6
Amendment of a provision of the Family Code giving CPS the “right to direct the
religious and moral training of her children.” See Tex. Fam. Code Ann. § 153.371
(West 2008) (listing rights and duties of nonparents appointed temporary managing
conservators). 2

                                        ANALYSIS
       On appeal, the mother challenges the trial court’s order granting TDFPS’s
plea to the jurisdiction and dismissing her counterclaims. The mother raises three
issues: (1) whether sovereign immunity precludes declaratory and injunctive relief
against the State; (2) whether the state waives sovereign immunity by intervening
in a pending lawsuit and seeking affirmative relief; and (3) whether the state
litigates like any other party, such that a counterclaim may be asserted against it
without being barred by sovereign immunity. We consolidate her issues into one:
whether the trial court erred in granting the plea to the jurisdiction.

       The mother argues that the trial court erred in granting the plea to the
jurisdiction because (1) sovereign immunity was waived for any counterclaims
when TDFPS intervened in the suit; (2) even if sovereign immunity otherwise
applied, it did not preclude her from seeking declaratory or injunctive relief against
TDFPS; and (3) she was not afforded an opportunity to amend her pleadings before
the plea to the jurisdiction was sustained. We consider each argument below.

I.     Standard of review
       We review de novo a trial court’s order granting a plea to the jurisdiction.
Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004);
Moore v. Univ. of Houston—Clear Lake, 165 S.W.3d 97, 101 (Tex. App.—
       2
          The mother previously petitioned this Court for a writ of mandamus, challenging the
trial court’s June 25, 2012 order granting TDFPS the right “to direct the moral and religious
training of the child.” In re Solley, No. 14-12-00680-CV, 2012 WL 3135549, at *1 (Tex. App.—
Houston [14th Dist.] Aug. 2, 2012, orig. proceeding) (mem. op.). We denied the petition. Id.

                                             7
Houston [14th Dist.] 2005, no pet.). Where the jurisdictional challenge is based on
the pleadings, we “construe the pleadings liberally in favor of the plaintiff[] and
look to the pleader[’s] intent.” Miranda, 133 S.W.3d at 226; see also Garcia v.
Kubosh, 377 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Unless the pleadings “affirmatively negate the existence of jurisdiction,” the plea
to the jurisdiction should not be granted without allowing the plaintiffs an
opportunity to amend. Miranda, 133 S.W.3d at 227; City of Houston v. Ranjel,
407 S.W.3d 880, 893 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We cannot
alter even an erroneous ruling if the appellant does not assign error to it, however.
Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—
Houston [1st Dist.] 2002, no pet.).

      Where the trial court does not state the grounds upon which it grants a plea
to the jurisdiction, an appellant must attack each asserted ground that could fully
support the adverse ruling. Sw. Bell Tel., L.P. v. Harris Cnty., 267 S.W.3d 490,
494 (Tex. App.—Houston [14th Dist.] 2008, no pet.).             Otherwise, we must
presume that any assigned error would be harmless in light of the unchallenged
alternative justifications for the ruling. See id.; Britton, 95 S.W.2d at 681–82.

      Here, in granting TDFPS’s plea to the jurisdiction, the trial court did not
specify which of the three asserted grounds—sovereign immunity, standing, and
ripeness—were the basis of its decision. Therefore, the mother must show that
none of the asserted grounds constituted an incurable jurisdictional defect to her
claims. See Miranda, 133 S.W.3d at 227.

II.   The trial court properly dismissed the mother’s section 1983 and RICO
      claims for damages because sovereign immunity bars them.
      The mother argues that TDFPS voluntarily submitted to the trial court’s
jurisdiction by intervening in this suit, thereby waiving its sovereign immunity

                                          8
from her claims seeking damages under section 1983 and RICO. She contends that
Texas Rule of Civil Procedure 97(a) and (b), governing compulsory and
permissive counterclaims, expressly authorizes her claims. We disagree and hold
that TDFPS’s immunity from her section 1983 and RICO claims has not been
waived.

      A.       Neither Congress nor the Legislature has statutorily waived
               Texas’s sovereign immunity from section 1983 or RICO claims.
      “The Eleventh Amendment to the United States Constitution protects the
State of Texas from suit in its own courts for an alleged violation of federal law.”
Hidalgo Cnty. v. Dyer, 358 S.W.3d 698, 709 (Tex. App.—Corpus Christi 2011, no
pet.) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989)). This
immunity extends to state agencies such as TDFPS. See San Antonio Indep. Sch.
Dist. v. McKinney, 936 S.W.2d 279, 281–82 (Tex. 1996) (“Under federal law,
some state agencies exercising state power are permitted to invoke the Amendment
to protect the state treasury from liability that would have had essentially the same
practical consequences as a judgment against the state itself.”); see also Fed. Sign
v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (“This Court has long
recognized that sovereign immunity, unless waived, protects the State of Texas, its
agencies and its officials from lawsuits for damages, absent legislative consent to
sue the State.”). Although Congress has the power to abrogate state sovereign
immunity under section five of the Fourteenth Amendment, it must do so with “an
unequivocal expression of congressional intent.”        Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 240 (1985) (internal quotation marks omitted).
Alternatively, the State of Texas may waive its immunity and consent to suit. Id.
The Texas Legislature also must use “clear and unambiguous language” to waive
immunity. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177
(Tex. 1994).
                                         9
       Texas’s sovereign immunity has not been waived legislatively for claims
brought under either of the statutes on which the mother relies. The enactment of
section 1983 did not “disregard the well-established immunity of a State from
being sued without its consent.” Will, 491 U.S. at 67; see also Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). The mother has not re-urged
the appropriateness of her RICO claims on appeal, and consequently her brief does
not provide any argument or authority suggesting that the RICO statutes dispensed
with state sovereign immunity. 3

       Nor does Rule 97 concerning counterclaims provide a waiver. Its general
language allowing a pleading to state “any claim” against “any opposing party”
does not clearly and unambiguously waive sovereign immunity. See Univ. of Tex.
Med. Branch at Galveston, 871 S.W.2d at 177.

       B.     TDFPS did not waive its sovereign immunity by intervening in the
              underlying custody dispute.
       The mother also argues that TDFPS waived its sovereign immunity to any
counterclaim by intervening in this suit affecting the parent-child relationship.
We disagree. Because the damages sought by the mother could not offset any
affirmative monetary relief sought by TDFPS, we hold that TDFPS’s intervention
did not waive sovereign immunity.



       3
         To the extent that courts have addressed this question, they have answered it in the
negative. See, e.g., Concho Residential Servs., Inc. v. MHMR Servs. for Concho Valley, No. 03-
9800022-CV, 1999 WL 644727, at *6 (Tex. App.—Austin 1999, pet. denied) (mem. op., not
designated for publication) (RICO claims failed because appellees were “entitled to sovereign
immunity from these claims”); see also Chaz Constr., LLC v. Codell, 137 Fed. Appx. 735, 743
(6th Cir. 2005) (not designated for publication) (“RICO does not arise under § 5 of the
Fourteenth Amendment,” and thus does not fall within Congress’s power to waive sovereign
immunity); Weaver v. United States, 98 F.3d 518, 521 n.2 (10th Cir. 1996) (RICO statutes did
not provide an express waiver of sovereign immunity).

                                             10
      As the supreme court has noted, a lack of immunity from suit could “hamper
governmental functions” if tax resources must be diverted from their intended
purposes to be used for defending lawsuits and paying judgments. Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006). Thus, courts generally
defer to the Legislature to waive sovereign immunity because it is “better suited to
address the conflicting policy issues involved.” Id.

      But in situations where “the opposing party’s claims can operate only as an
offset to reduce the government’s recovery,” the potential of an adverse judgment
would not pose the same threat to the governmental entity’s fiscal planning. See
id. Furthermore, a governmental entity has presumably made the decision to
expend resources on litigation prior to “inject[ing] itself into or choos[ing] to
engage in litigation to assert affirmative claims for money damages.” Id. Thus,
where the governmental entity files suit for damages, either in the first instance or
as an intervenor, such suits “encompass[] a decision to leave its sphere of
immunity from suit for claims against it which are germane to, connected with, and
properly defensive to claims the [entity] asserts.” Id. at 377.

      Here, the mother’s counterclaims could not offset any monetary relief sought
by TDFPS. TDFPS requested orders requiring the parents to make payments for
the temporary support of the children. See Tex. Fam. Code Ann. § 154.001(b)
(West Supp. 2013).        The only counterclaims or offsets allowed against child
support arrearages are those provided for by Title 5 of the Family Code. See Tex.
Fam. Code Ann. § 157.263(b-1) (West Supp. 2013) (“[T]he court may not reduce
or modify the amount of child support arrearages but, in confirming the amount of
arrearages, may allow a counterclaim or offset as provided by this title.” (emphasis
added)). In a case construing section 157.263’s predecessor, section 157.262, 4 our

      4
          Act of Apr. 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184,
                                             11
sister court noted that although the subchapter “contains no description of any
applicable counterclaims or offsets,” a court “may not go outside the bounds of the
subchapter to fashion counterclaims and offsets.” Att’y Gen. of Tex. v. Stevens, 84
S.W.3d 720, 723 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (emphasis
removed). Thus, any money damages the mother might otherwise recover under
section 1983 or the RICO statutes could not be offset against the child support
payments sought by TDFPS.

       Because a judgment in favor of the mother would not offset the relief sought
by TDFPS, such a judgment could jeopardize TDFPS’s fiscal planning, which
indicates that the Legislature should decide whether sovereign immunity should be
waived. See Reata Constr. Corp., 197 S.W.3d at 375.                Because there is no
legislative waiver, we affirm the trial court’s dismissal of the mother’s RICO and
section 1983 claims.

III.   The mother’s self-incrimination claim was properly dismissed because it
       was not ripe.
       The trial court also properly granted the plea to the jurisdiction as to the
mother’s Fifth Amendment challenge to TDFPS’s request that she undergo a
psychological evaluation under Rule 204.4(a). The mother was not entitled to a
declaration regarding whether such an evaluation would violate her privilege
against self-incrimination because that claim was not ripe at the time of filing.
Moreover, to the extent the claim has since matured, the mother has not shown an
injury.

       Ripeness “is a threshold issue that implicates subject matter jurisdiction.”
Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439,


repealed by Act of Sept. 1, 2011, 82d Leg., R.S., ch. 508, § 24, 2011 Tex. Gen. Laws 1264,
1269.

                                           12
442 (Tex. 1998). Stemming in part from the prohibition on advisory opinions, “the
ripeness doctrine serves to avoid premature adjudication.” Id. at 442–43.

      Assessing a claim’s ripeness requires courts to evaluate (1) “the fitness of
the issues for judicial decision,” and (2) “the hardship to the parties of withholding
court consideration.” Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001) (quoting
Abbot Labs. v. Gardner, 387 U.S. 136, 149 (1967)). When ripeness is premised on
the threat of harm, the harm must be imminent, rather than “conjectural,
hypothetical, or remote.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852
(Tex. 2000). The facts must be sufficiently developed at the time of filing to
demonstrate that the claimed imminent injury does not remain contingent on some
future uncertainty. Id. at 851–53; but see Del Rio, 66 S.W.3d at 252 (“[A] claim’s
lack of ripeness when filed is not a jurisdictional infirmity requiring dismissal if
the case has matured.”). A plea to the jurisdiction is properly granted if the
plaintiff “cannot demonstrate a reasonable likelihood that the claim will soon
ripen.” See Drexel Corp. v. Edgewood Dev., Ltd., 14-13-00353-CV, 2013 WL
5947007, at *3 (Tex. App.—Houston [14th Dist.] Nov. 7 2013, no pet.) (internal
quotations omitted).

      Here, the mother complains of the threat of harm posed by her “Hobson’s
choice” of submitting to a psychological evaluation or potentially losing her
children if she appears uncooperative. This alleged dilemma did not present a ripe
claim under the Fifth Amendment when the mother filed her counterclaim.

      The Fifth Amendment privileges the mother “not to answer official
questions put to [her] in any . . . proceeding, civil or criminal, formal or informal,
where the answers might incriminate [her] in future criminal proceedings.”
Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003) (quoting Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973)). However, the mother “may not employ the

                                         13
privilege to avoid giving testimony that [she] simply would prefer not to give.”
Roberts v. United States, 445 U.S. 552, 560 n. 7 (1980).

       In civil suits, 5 the court, and not the witness, is the arbiter of whether the
privilege applies. In re Speer, 965 S.W.2d 41, 46 (Tex. App.—Fort Worth 1998,
no pet.). That determination is made as to each individual question for which the
privilege is asserted. Burton v. West, 749 S.W.2d 41, 46 (Tex. App.—Houston [1st
Dist.] 1998, no writ); see also In re Commitment of Browning, 113 S.W.3d 851,
862 n.10 (Tex. App.—Austin 2003, pet. denied) (“[B]lanket assertions of the
privilege are impermissible in civil cases.”).

       Without knowing what questions the psychologist might ask during the
evaluation, it would have been impossible for the trial court to assess on a
question-by-question basis whether the mother’s assertion of the privilege would
be permissible. As such, the mother’s assertion of privilege was not fit for judicial
resolution at the time she filed her counterclaims, because any injury would be
contingent upon the content of unknown questions which might be asked in the
evaluation, the answers to which might later be introduced to incriminate the
mother. 6


       5
          We note that some “civil” proceedings are treated as criminal for purposes of the self-
incrimination clause where “the primary purpose of the proceeding is punishment.” See Murray
v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360, 367 (Tex. App.—Austin 2009, no
pet.) (citing Allen v. Illinois, 478 U.S. 364 (1986)). However, “the purpose of the State’s
intervention in the parent-child relationship is to protect the best interests of the children, not to
punish parents for their conduct.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). This does not
mean that we ignore the potential that the mother will eventually lose possession of her children,
as the ripeness inquiry includes reference to the hardship of withholding court consideration. See
Del Rio, 66 S.W.3d at 250.
       6
          Although the mother participated in a substance abuse assessment prior to TDFPS’s
intervention, it was not as the result of a court order. Thus, that assessment cannot serve as a
predicate for declaratory or injunctive relief regarding a rule authorizing court-ordered
assessments.

                                                 14
      Furthermore, withholding court consideration did not pose a significant
hardship as the mother would have an additional opportunity to assert the privilege
not to answer individual questions in the actual evaluation. See In re Verbois, 10
S.W.3d 825, 828 (Tex. App.—Waco 2000, orig. proceeding) (“Upon submitting to
such an evaluation . . . [i]f an inquiry calls for an answer that might reasonably
present a hazard of self-incrimination . . . he may refuse to answer . . . .” (internal
citations and quotations omitted)).          The mother’s contention that appearing
uncooperative would result in the loss of her parental rights is too conjectural and
remote to serve as the basis for a ripe claim at this stage. The trial court is the
arbiter of the mother’s parental rights, and there is nothing in the record to indicate
that the court would hold a successful assertion of the privilege against the mother
in determining whether to modify the parent-child relationship.

      To the extent that the claim “matured” as a result of the trial court’s May 8
order of a forensic evaluation, see Del Rio, 66 S.W.3d at 252, the record
affirmatively negates that an injury has since occurred. See Ranjel, 407 S.W.3d at
893 (holding that the “evidence does not support further amendments that would
cure [the] jurisdictional deficiency”). Although a licensed chemical dependence
counselor appeared during the full adversary hearing on the parent-child
relationship, the counselor did not testify as to whether the mother had consumed
alcohol within twenty-four hours of her possession of the children (and thus
violated a court order), or whether the mother had sexually or physically abused
her children. Thus, any statements the mother may have made to the counselor
that would tend to incriminate her were not introduced into evidence.

      Because the record affirmatively negates the existence of a ripe declaratory
judgment claim under the Fifth Amendment, we affirm the trial court’s grant of the
plea to the jurisdiction as to that claim.

                                             15
IV.   Texas has not waived immunity to sue TDFPS for unreasonable
      searches under the Fourth Amendment.
      The mother next argues that sovereign immunity does not bar her claim for
declaratory and injunctive relief alleging a Fourth Amendment violation. The
mother’s Fourth Amendment challenge does not fall within the limited waiver of
immunity contained in the UDJA, however. Nor does her claim fall within the
ultra vires exception to sovereign immunity. Accordingly, the trial court lacked
jurisdiction over this claim.

      The mother’s Fourth Amendment challenge does not fall within the scope of
the express waiver in the UDJA. Although TDFPS might “be a proper party to a
declaratory judgment action that challenges the validity of a statute,” Tex. Dep’t of
Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011), the mother has not challenged
the validity of a statute. Instead, the mother sought a declaration that TDFPS’s
“practice of requiring parents to submit to random drug testing is
unconstitutional.” (emphasis added). Because she is challenging the agency’s
actions rather than a statute, she cannot rely on the waiver contained in the UDJA.
See id.

      Nor can the mother rely on the ultra vires exception to sovereign immunity.
Under the ultra vires exception, suits that seek to “require state officials to comply
with statutory or constitutional provisions are not prohibited by sovereign
immunity.”    City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
However, as the supreme court clarified in City of El Paso v. Heinrich, the proper
party in an ultra vires claim is the state actor in his or her official capacity, even
though for all practical purposes, the suit is against the state. Id. at 373. “[A]s a
technical matter, the governmental entities themselves—as opposed to their
officers in their official capacity—remain immune from suit.” Id. at 372–73.


                                         16
      The trial court’s order granting TDFPS’s plea to the jurisdiction does not
address any parties who fit within this exception. TDFPS is an agency, and thus
remains immune from ultra vires claims under Heinrich. Id. Although the mother
purported to add two TDFPS caseworkers as defendants in her “First Amended
Counterclaim,” the trial court severed only the mother’s counterclaim against
TDFPS, which made its order granting TDFPS’s plea to the jurisdiction final.
Accordingly, any counterclaims by the mother against other parties are not before
us.

      Furthermore, even considering the “First Amended Counterclaim” as a
proposed amendment to cure jurisdictional defects, see Ranjel, 407 S.W.3d at 886,
the ability to amend to cure such defects on remand does not extend to suing new
parties. Compare id. at 893 (“Generally, an appellate court allows a litigant to
amend his pleadings to cure defects when the pleadings do not allege sufficient
jurisdictional facts but do not affirmatively negate jurisdiction.” (emphasis added)).
Remand is only called for where the pleadings do not affirmatively negate
jurisdiction. Id. at 892. Here, the pleadings affirmatively negated jurisdiction
because the only named defendant was immune.

      Although the supreme court has previously remanded to allow a plaintiff to
add state actors, the remand was “in light of its clarifications” in Heinrich. See
Sefzik, 355 S.W.3d at 623 (citing Tex. Parks and Wildlife Dep’t v. Sawyer Trust,
354 S.W.384, 394 (Tex. 2011)). In doing so, the court noted that the case was filed
prior to Heinrich, when its case law was “less than clear” regarding the proper
defendant in an ultra vires suit. Sefzik, 355 S.W.3d at 623.

      Here, because the mother filed her original counterclaim in 2012, nearly
three full years after Heinrich was decided, remand is not warranted. See Boll v.
Cameron Appraisal Dist., No. 13-11-00750, 2013 WL 4187756, at *2 (Tex.

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App.—Corpus Christi, Aug. 15, 2013). The law was sufficiently clear for the
mother to be required to name the proper party. We therefore affirm the grant of
TDFPS’s plea to the jurisdiction as to the mother’s Fourth Amendment challenge.

V.    The mother’s First Amendment challenge to the Family Code is barred
      by the law-of-the-case doctrine.
      Finally, the mother argues on appeal that section 153.371 of the Family
Code violates the First Amendment by giving a nonparent managing conservator
the right to direct the moral and religious training of her children. It is not clear
that the trial court considered this declaratory judgment claim, however. The
mother included this claim for the first time in her First Amended Counterclaim,
which was not filed until after the trial court’s order granting the plea to the
jurisdiction. Her original petition did not request declaratory relief regarding any
First Amendment violation, but merely noted a different First Amendment issue
regarding the “adverse effect on [her] First Amendment right of association with
her children” if CPS were appointed managing conservator.

      In any event, a remand for the trial court to consider the mother’s First
Amendment claim properly would be futile because we have rejected it in a related
mandamus proceeding. Under the law-of-the-case doctrine, decisions rendered in
former appeals are generally binding in a later appeal of the same case. Paradigm
Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012). Although
denial of a mandamus petition “does not necessarily establish law of the case,”
denials containing a comment on the merits may be treated as binding in a
subsequent appeal. In re L.R., 416 S.W.3d 675, 677 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (citing Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex.
2007)).



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       This Court has already commented on the merits of the mother’s challenge
to section 153.371 of the Family Code. See In re Solley, 2012 WL 3135549, at *1.
In denying the mother’s petition for writ of mandamus, we rejected her challenge
to the trial court’s order giving TDFPS the right to direct the moral and religious
training of the children, pointing out that the mother was granted the “‘right to
direct the moral and religious training of the child[ren]’ during her periods of
possession of the child[ren].” See id. Accordingly, the mother’s First Amendment
complaint is barred by the law-of-the-case doctrine. See In re L.R., 416 S.W.3d at
677.

                                      CONCLUSION

       Having concluded that the trial court did not err in granting TDFPS’s plea to
the jurisdiction on each of the claims before it, we overrule the mother’s sole issue
and affirm the trial court’s judgment granting the plea and dismissing the mother’s
claims.


                                /s/            J. Brett Busby
                                               Justice

Panel consists of Justices Boyce, McCally, and Busby.




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