
IN THE SUPREME COURT OF TEXAS
 
════════════
No. 06-0778
════════════
 
The City of El Paso, et al., 
Petitioners,
 
v.
 
Lilli M. Heinrich, 
Respondent
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eighth District of 
Texas
════════════════════════════════════════════════════
 
 
Argued November 
13, 2007
 
 
            
Chief Justice Jefferson 
delivered the opinion of the Court.
 
            
“Sovereign immunity protects the State from lawsuits for money 
damages.” Tex. Nat. Res. 
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 
(Tex. 
2002). But “an action to determine or protect a private party’s rights 
against a state official who has acted without legal or statutory authority is 
not a suit against the State that sovereign immunity bars.” Fed. Sign v. Tex. 
S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Today we examine the intersection 
of these two rules. We conclude that while governmental immunity generally bars 
suits for retrospective monetary relief, it does not preclude prospective 
injunctive remedies in official-capacity suits against government actors who 
violate statutory or constitutional provisions. We affirm in part and reverse in 
part the court of appeals’ judgment and remand this case to the trial court for 
further proceedings.
I
Background
 
            
Lilli M. Heinrich is the widow of Charles D. 
Heinrich, a member of the El Paso Police Department who died in August 1985 from 
wounds received in the line of duty. Shortly after Charles died, the El Paso 
Firemen & Policemen’s Pension Fund began paying Heinrich monthly survivor 
benefits equal to 100% of the monthly pension her husband had earned.[1] The parties contest how those payments 
were apportioned. The City of El Paso, the El Paso Firemen & Policemen’s 
Pension Fund (“the Fund”), the Fund’s Board of Trustees (“the Board”), and the 
individual board members contend that the Fund’s bylaws assigned only two-thirds 
of this payment to Heinrich, the other third being paid to her on behalf of her 
then-minor child. Heinrich, on the other hand, contends that, notwithstanding 
the bylaws, the Board voted to award her 100% of Charles’ pension benefits in 
her own right, as more fully explained below.
            
Accordingly, when in 2002 the Board reduced the monthly payments to 
Heinrich by one-third after Heinrich’s son turned 23, Heinrich filed this 
lawsuit, alleging that petitioners violated the statute governing the Fund by 
reducing her benefits retroactively. Heinrich sought both declaratory relief and 
an injunction restoring Heinrich to the “status quo from [the] date of the 
illegal act.” Petitioners filed pleas to the jurisdiction asserting that 
governmental immunity shielded the governmental entities from suit and that the 
individual board members enjoyed official immunity. The trial court denied the 
pleas, and petitioners filed an interlocutory appeal.
            
The court of appeals affirmed, holding that “a party may bring a suit 
seeking declaratory relief against state officials who allegedly act without 
legal or statutory authority and such suit is not a ‘suit against the state.’” 
198 S.W.3d 400, 406. The court acknowledged that, if 
successful, Heinrich would be entitled to past and future benefits, but held 
that Heinrich’s suit made a valid claim for her vested right to pension benefits 
rather than money damages. Id.
at 407. We granted the petition for review in order to clarify the 
types of relief that may be sought without legislative consent.[2] 50 Tex. Sup. Ct. J. 
910 (June 22, 2007).
II
Discussion
 
A
Ultra Vires Claims
 
            
Petitioners contend that although Heinrich requests declaratory and 
equitable relief, her claim is essentially for past and future money damages, 
and that governmental immunity therefore bars her suit. As we said in Reata Construction Corp. v. City of Dallas, 
“‘[s]overeign immunity protects the State from 
lawsuits for money damages.’ Political subdivisions of the state . . . are 
entitled to such immunity—referred to as governmental immunity—unless it has 
been waived.” Reata, 197 S.W.3d 371, 374 
(Tex. 2006) (citations omitted); see also 
Wichita FallsState Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). We have said 
repeatedly that the Legislature is in the best position to waive or abrogate 
immunity, “because this allows the Legislature to protect its policymaking 
function.” IT-Davy, 74 S.W.3d at 854 (citations omitted) (collecting 
cases).
            
Heinrich concedes that the City, Fund, and Board enjoy governmental 
immunity from suit, but argues that because her claim alleges a reduction in her 
benefits that was unauthorized by law, it is not barred. This is so, she says, 
because “[p]rivate parties may seek declaratory relief 
against state officials who allegedly act without legal or statutory authority.” 
Id. at 855 (citing Tex. Educ. Agency v. Leeper, 893 
S.W.2d 432 (Tex. 1994) (suit challenging state officials’ 
construction of compulsory school-attendance law)); see also Fed. Sign., 951 S.W.2d 
at 404 (“A private litigant does not need legislative permission to sue the 
State for a state official’s violations of state law.”) (citations omitted)). We explained the rationale behind this 
exception to governmental immunity in Federal Sign:
 
A state 
official’s illegal or unauthorized actions are not acts of the State. 
Accordingly, an action to determine or protect a private party’s rights against 
a state official who has acted without legal or statutory authority is not a 
suit against the State that sovereign immunity bars. In other words, we 
distinguish suits to determine a party’s rights against the State from suits 
seeking damages. A party can maintain a suit to determine its rights without 
legislative permission.
 
Fed. Sign, 951 S.W.2d 
at 404 (citations omitted).
            
On this basis, Heinrich argues that rather than money damages, she seeks 
only equitable and injunctive relief under the Uniform Declaratory Judgment Act. 
That Act is a remedial statute designed “to settle and to afford relief from 
uncertainty and insecurity with respect to rights, status, and other legal 
relations.” Tex. Civ. Prac. & Rem. Code § 
37.002(b). It provides: “A person . . . whose rights, 
status, or other legal relations are affected by a statute, municipal ordinance, 
contract, or franchise may have determined any question of construction or 
validity arising under the . . . statute, ordinance, contract, or franchise and 
obtain a declaration of rights, status, or other legal relations thereunder.” Id. § 
37.004(a). The Act, however, does not enlarge a trial court’s 
jurisdiction, and a litigant’s request for declaratory relief does not alter a 
suit’s underlying nature.[3] IT-Davy, 74 
S.W.3d at 855; State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). It is 
well settled that “private parties cannot circumvent the State’s sovereign 
immunity from suit by characterizing a suit for money damages . . . as a 
declaratory-judgment claim.” IT-Davy, 74 S.W.3d at 856 (citing W. D. 
Haden Co. v. Dodgen, 308 S.W.2d 838, 842 
(Tex. 
1958)).
            
Heinrich relies on State v. Epperson, 42 S.W.2d 228, 231 
(Tex. 1931), 
in which we held that a suit against a tax collector for the recovery of money 
(alleged to be due under a contract and withheld unlawfully) was not barred by 
immunity. There, we noted that the tax collector had no discretion under the 
governing law to deny payment on Epperson’s contract:
 
By 
legislative act the state has constituted the tax collector of the county its 
agent to receive delinquent taxes collected under such contract, and it is the 
duty of such officer to pay all fees and commissions lawfully incurred in the 
collection thereof to the various parties who may be entitled thereto. Under 
such circumstances, the tax collector’s duty with reference to money belonging 
to persons who are entitled under valid contracts to receive the same from him 
is purely ministerial. If he withholds the payment of such funds when a person 
is lawfully entitled to receive same, he has failed to discharge a duty imposed 
upon him by law and his act is a wrongful one.
 
Epperson, 42 S.W.2d at 231. We therefore concluded that although the 
trial court would “not possess jurisdiction to enforce the specific performance 
of the contract relied upon by Epperson or to award damages for any breach of 
said contract,” Epperson’s suit was “simply an action to compel an officer, as 
agent of the state, to pay over funds to a party who claims to be lawfully 
entitled thereto.” Id.
            
Thus, the rule arising out of Epperson is that while suits for 
contract damages against the state are generally barred by immunity, where a 
statute or the constitution requires that government contracts be made or 
performed in a certain way, leaving no room for discretion, a suit alleging a 
government official’s violation of that law is not barred, even though it 
necessarily involves a contract. We explained this distinction in W. D. Haden 
Co. v. Dodgen:
 
[A]lthough [Epperson] ar[ose] out of [a] contract transaction . . .[it] appears to 
fall into the class of cases projected by United States v. Lee, [106 U.S. 
196 (1882)].[4] In that class of cases it is held that 
suits for property alleged to be unlawfully or wrongfully withheld from the 
rightful owner by officers of the state are not suits against the sovereign 
itself and may be maintained without permission of the sovereign.
 
308 S.W.2d 838, 841 (Tex. 1958). In other words, where 
statutory or constitutional provisions create an entitlement to payment, suits 
seeking to require state officers to comply with the law are not barred by 
immunity merely because they compel the state to make those payments. This rule 
is generally consistent with the letter and spirit of our later caselaw. In IT-Davy, we distinguished permissible 
declaratory-judgment suits against state officials “allegedly act[ing] without legal or statutory authority” from those barred 
by immunity: “In contrast [to suits not implicating sovereign immunity], 
declaratory-judgment suits against state officials seeking to establish a 
contract’s validity, to enforce performance under a contract, or to impose 
contractual liabilities are suits against the State. That is because such 
suits attempt to control state action by imposing liability on the State.” 
74 S.W.3d at 855–56 (citations omitted) (emphasis added).
            
From this rationale, it is clear that suits 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. 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. 
Compare Epperson, 42 S.W.2d at 231 (“the tax collector's duty . . . is 
purely ministerial”) with Catalina Dev., Inc. v. County of El 
Paso, 121 S.W.3d 704, 706 (Tex. 2003) (newly elected commissioners court 
immune from suit where it “acted within its discretion to protect the perceived 
interests of the public” in rejecting contract approved by predecessor), and 
Dodgen, 308 S.W.2d at 842 (suit seeking 
“enforcement of contract rights” barred by immunity in the absence of any 
“statutory provision governing or limiting the manner of sale”). Thus, ultra 
vires suits do not attempt to exert control over 
the state—they attempt to reassert the control of the state.[5] Stated another way, these suits do not 
seek to alter government policy but rather to enforce existing policy.
            
Further, while “[a] lack of immunity may hamper governmental functions by 
requiring tax resources to be used for defending lawsuits . . . rather than 
using those resources for their intended purposes,” Reata Constr. Corp., 
197 S.W.3d at 375, this reasoning has not been extended to ultra vires suits, see Fed. Sign, 951 S.W.2d at 404 
(citing Dir. of the Dep’t of Agric. & Env’t v. 
Printing Indus. Ass’n of Tex., 600 S.W.2d 264, 
265-66 (Tex. 1980) (legislative consent not required for suit for injunctive 
relief against state agency to halt unauthorized printing equipment and printing 
activities), Tex. Highway Comm’n v. Tex. Ass’n of Steel Imps., Inc., 372 S.W.2d 525, 530 (Tex. 
1963) (legislative consent not required for declaratory judgment suit against 
Highway Commission to determine the parties’ rights), and Cobb v. 
Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (legislative consent not 
required for declaratory judgment suit against State Comptroller to determine 
parties’ rights under tax statute)). Further, extending immunity to officials 
using state resources in violation of the law would not be an efficient way of 
ensuring those resources are spent as intended. This is particularly true since, 
as discussed below, suits that lack merit may be speedily disposed of by a plea 
to the jurisdiction. See Tex. Dep’t of Parks 
& Wildlife v. Miranda, 133 S.W.3d 217, 226 
(Tex. 
2004).
B
Proper 
Parties
 
            
Nonetheless, as a technical matter, the governmental entities 
themselves—as opposed to their officers in their official capacity—remain immune 
from suit. We have been less than clear regarding the permissible use of a 
declaratory remedy in this type of ultra vires 
suit.[6] Must it be brought directly against the 
state or its subdivisions? Or must it be brought against the relevant government 
actors in their official capacity? Compare Fed. Sign, 951 S.W.2d 
at 404 (“A private litigant does not need legislative permission to sue the 
State for a state official’s violations of state law.”) (citations omitted), with IT-Davy, 74 S.W.3d at 
855 (“Private parties may seek declaratory relief against state officials who 
allegedly act without legal or statutory authority.”) (citations omitted). It seems to us, however, that because the 
rule that ultra vires suits are not “suit[s] 
against the State within the rule of immunity of the State from suit” derives 
from the premise that the “acts of officials which are not lawfully authorized 
are not acts of the State,” Cobb, 190 S.W.2d at 712, it follows that 
these suits cannot be brought against the state, which retains immunity, but 
must be brought against the state actors in their official capacity.[7] This is true even though the suit is, for 
all practical purposes, against the state. See Brandon v. Holt, 469 U.S. 
464, 471-72 (1985) (“[A] judgment against a public servant ‘in his 
official capacity’ imposes liability on the entity that he represents provided, 
of course, the public entity received notice and an opportunity to respond.”); 
Tex. A&M Univ. Sys. 
v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“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.’”) 
(quoting Kentucky v. Graham, 473 U.S. 
159, 165 (1985)).
C
Permissible 
Relief
 
            
But the ultra vires rule is subject to 
important qualifications. Even if such a claim may be brought, the remedy may 
implicate immunity. Cf. 13 Charles Alan Wright & Arthur R. Miller, 
Federal Practice & Procedure § 3524.3 (under federal immunity law, an 
ultra vires suit may be brought but “if the 
defendant is a state officer, sovereign immunity bars the recovery of damages 
from the state treasury in a private suit”). This is a curious situation: the 
basis for the ultra vires rule is that a 
government official is not following the law, so that immunity is not 
implicated, but because the suit is, for all practical purposes, against the 
state, its remedies must be limited. Cf. Fla. Dep’t of State v. Treasure 
Salvors, Inc., 458 U.S. 670, 685 (1982) (“There is 
a well-recognized irony in Ex parte Young; 
unconstitutional conduct by a state officer may be ‘state action’ for purposes 
of the Fourteenth Amendment yet not attributable to the State for purposes of 
the Eleventh.”). We recently held that retired firefighters could not pursue a 
declaratory judgment action against the City to recover amounts allegedly 
previously withheld from lump-sum termination payments in violation of the Local 
Government Code. City of Houston v. Williams, 216 S.W.3d 827, 828 
(Tex 2007). Without discussing Epperson, we applied the rule from 
IT-Davy and Dodgen that the 
declaratory judgment act cannot be used to circumvent immunity, noting that 
“[t]he only injury the retired firefighters allege has already occurred, leaving 
them with only one plausible remedy—an award of money damages.” Id. at 
829. Williams stands for the proposition, then, that retrospective 
monetary claims are generally barred by immunity.
            
We also stated that “in every suit against a governmental entity for 
money damages, a court must first determine the parties’ contract or statutory 
rights; if the sole purpose of such a declaration is to obtain a money judgment, 
immunity is not waived.” Id. This does not mean, however, that a 
judgment that involves the payment of money necessarily implicates immunity. 
Drawing the line at monetary relief is itself problematic, as “[i]t does not take much lawyerly inventiveness to convert a 
claim for payment of a past due sum (damages) into a prayer for an injunction 
against refusing to pay the sum, or for a declaration that the sum must be paid, 
or for an order reversing the agency’s decision not to pay.” Bowen v. 
Massachusetts, 487 U.S. 879, 915-16 (1988) (Scalia, J., dissenting) (discussing section 702 of the 
Administrative Procedure Act, which waives sovereign immunity in actions against 
federal agencies as long as the plaintiff seeks “relief other than money 
damages”) (quoting 5 U.S.C. 702 (2000)).
            
Parsing categories of permissible relief in cases implicating immunity 
inevitably involves compromise. See, e.g., Douglas Laycock, Modern American Remedies 
482 (3d ed. 2002) (“The law of remedies against governments and 
government officials is a vast and complex body of doctrine, full of technical 
distinctions, fictional explanations, and contested compromises.”). The United 
States Supreme Court has held that, under federal immunity law, claims for 
prospective injunctive relief are permissible, while claims for retroactive 
relief are not, as such an award is “in practical effect indistinguishable in 
many aspects from an award of damages against the State.” Edelman v. Jordan, 415 U.S. 651, 668 
(1974). This rule originated in Ex parte 
Young, 209 U.S. 123 (1908), in which the Court held that an action to 
restrain a government official from unconstitutional conduct was not barred by 
immunity. Later, in Edelman, the Court recognized that the distinction 
between prospective and retrospective relief “will not in many instances be that 
between day and night” and cautioned that a fiscal impact on the State did not 
necessarily implicate immunity:
 
            
The injunction issued in Ex parte Young 
was not totally without effect on the State’s revenues, since the state law 
which the Attorney General was enjoined from enforcing provided substantial 
monetary penalties against railroads which did not conform to its provisions. 
Later cases from this Court have authorized equitable relief which has probably 
had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 
365 (1971), Arizona and Pennsylvania welfare 
officials were prohibited from denying welfare benefits to otherwise qualified 
recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 (1970), 
New York City welfare officials were enjoined from following New York State 
procedures which authorized the termination of benefits paid to welfare 
recipients without prior hearing. But the fiscal consequences to state 
treasuries in these cases were the necessary result of compliance with decrees 
which by their terms were prospective in nature. State officials, in order to 
shape their official conduct to the mandate of the Court's decrees, would more 
likely have to spend money from the state treasury than if they had been left 
free to pursue their previous course of conduct. Such an ancillary effect on the 
state treasury is a permissible and often an inevitable consequence of the 
principle announced in Ex parte Young, 
supra.
 
Id. at 
667-68 (footnote omitted). The retroactive portion of the Edelman 
district court’s decree was different, however, as “[i]t require[d] payment of state funds, not as a necessary 
consequence of compliance in the future with a substantive federal-question 
determination, but as a form of compensation to those whose applications were 
processed on the slower time schedule at a time when petitioner was under no 
court-imposed obligation to conform to a different standard.” Id. at 
668.
            
While “[t]he line between prospective and retrospective remedies is 
neither self-evident nor self-executing,” Laycock, Modern American Remedies at 
483, the Supreme Court shed further light on the issue in Milliken v. 
Bradley, 433 U.S. 267, 269 (1977), a case involving desegregation of the 
Detroit school system. The Supreme Court upheld a trial court’s order requiring 
state officials to spend $6 million on education to remedy effects of 
segregation. Milliken, 433 U.S. at 290. The Court held that this 
relief was permissible under Edelman: “That the programs are also 
‘compensatory’ in nature does not change the fact that they are part of a plan 
that operates prospectively to bring about the delayed benefits of a 
unitary school system.” Id.; see also 13 Charles Alan Wright & Arthur R. Miller, 
Federal Practice & Procedure § 3524.3 (noting that, under 
Edelman, “[i]njunctions requiring expenditure of state funds are 
acceptable, so long as the order is prospective” but “[r]etroactive relief, including compensatory damages from state 
funds are barred”).
            
This compromise between prospective and retroactive relief, while 
imperfect, best balances the government’s immunity with the public’s right to 
redress in cases involving ultra vires actions, 
and this distinction “appear[s] in the immunity of the United States, and in the 
law of most states’ immunity from state-law claims.” Laycock, Modern American Remedies at 
482. It also comports with the modern justification for immunity: protecting the 
public fisc. Tooke 
v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 
2006) (observing that immunity “shield[s] the public from the costs and 
consequences of improvident actions of their governments”); Federal Sign, 
951 S.W.2d at 417 (Enoch, J., dissenting) (noting that suits against the state 
would deplete treasury resources and tax funds necessary to operate the 
government). Moreover, it is generally consistent with the way our courts of 
appeals have interpreted Williams. See, e.g., City of Round Rock
v. Whiteaker, 241 S.W.3d 609, 633-34 (Tex. 
App.—Austin 2007, pet. denied) (approving, under Williams, dichotomy 
between declaratory and injunctive claims regarding past statutory violations 
and those seeking only to compel the city to follow the law in the future; the 
government was immune from the former but not the latter); Bell v. City of 
Grand Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, no pet.) (holding that, under Williams, firefighters’ requested 
declaration regarding past statutory violation was barred, but to the extent the 
requested declaration concerned future violations, the claim was not barred, 
providing the firefighters did not seek an award of money damages). 
And finally, it ensures that statutes specifically directing payment, like any 
other statute, can be judicially enforced going forward.
            
This approach is inconsistent with Epperson, however, in which we 
held that, if successful, Epperson would be entitled to “the sum of $93,000 
which belonged to him as his commission for services rendered.” Epperson, 
42 S.W.2d at 229. In that respect, Epperson 
conflicts with Williams, in which we implied that prospective remedies 
might not be barred even though retrospective monetary ones were. 
Williams, 216 S.W.3d at 829 (noting that “[t]he only injury the retired 
firefighters allege has already occurred, leaving them with only one plausible 
remedy—an award of money damages” and that “they assert no right to payments 
from the City in the future”). The best way to resolve this conflict is to 
follow the rule, outlined above, that a claimant who successfully proves an 
ultra vires claim is entitled to prospective 
injunctive relief, as measured from the date of injunction. Cf. Edelman, 
415 U.S. at 669 (using entry of 
injunction to distinguish retrospective from prospective relief). Thus, while 
the ultra vires rule remains the law, see 
Federal Sign, 951 S.W.2d at 404, Epperson’s retrospective remedy does 
not.
            
But this rule is not absolute. For example, a claimant who successfully 
proves a takings claim would be entitled to compensation, and the claim would 
not be barred by immunity even though the judgment would require the government 
to pay money for property previously taken. Gen. Servs. Comm'n v. Little-Tex 
Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (noting that governmental immunity 
“does not shield the State from an action for compensation under the takings 
clause”); cf. Wright & 
Miller, Federal Practice & Procedure § 3524.3 (“If the state cannot 
invoke its immunity, retroactive relief against it is allowed.”).
            
Heinrich has not alleged a takings claim. In the trial court, Heinrich 
alleged only that “a suit for equitable relief against a governmental entity for 
violation of a provision of the Texas Bill of Rights is excepted from . . . 
sovereign immunity under Texas Constitution article [I], section 29" without 
specifying which provision of the Bill of Rights had been violated. In the court 
of appeals, however, she clarified that her constitutional complaint was a 
“violation of Article 1, section 16.” Tex. Const. art. I, § 16 (“No bill of 
attainder, ex post facto law, retroactive law, or any law impairing the 
obligation of contracts, shall be made.”). Petitioners contend that she waived 
this argument by failing to raise it in the trial court. See Tex. Dep't of Protective 
& Regulatory Servs. v. Sherry, 46 S.W.3d 857, 
861 (Tex. 
2001) (“‘[A]s a rule, a claim, including a constitutional claim, must have been 
asserted in the trial court in order to be raised on appeal.’") (citations omitted). Even if Heinrich’s constitutional 
argument was properly presented, however, it has no merit. Heinrich does not 
challenge the governing statute or bylaws, but rather the Board’s actions under 
those provisions. Indeed, Heinrich argues that “[t]he Pension Board and its 
individual members acted outside their authority and in violation of the Texas 
Constitution when they reduced [Heinrich’s] benefits.” Because Heinrich does not 
allege that any law sanctioned the retroactive reduction in her benefits, her 
constitutional argument fails.[8]
            
As we have repeatedly noted, the Legislature is best positioned to waive 
immunity, and it can authorize retrospective relief if appropriate. See, e.g., Tex. Local Gov’t Code § 180.006 (enacted 
after Williams and waiving immunity for firefighter and police officer 
claims for back pay and civil penalties). There are cases in which prospective 
relief is inadequate to make the plaintiff whole, but the contours of the 
appropriate remedy must be determined by the Legislature.
            
Thus, Heinrich’s claims for prospective relief may be brought only 
against the appropriate officials in their official capacity, and her statutory 
claims for future benefits against the City, Fund, and Board must be 
dismissed.[9] Heinrich’s pleadings are unclear as to 
the capacity or capacities in which she has sued the individual Board members. 
The United States Supreme Court has observed that, “[i]n many cases, the complaint will not clearly specify 
whether officials are sued personally, in their official capacity, or both.” 
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); see also 
United States ex rel. Adrian v. Regents of 
Univ. of 
Cal., 363 F.3d 398, 403 
(5th Cir. 2004). In these cases, “‘[t]he course of 
proceedings’ in such cases typically will indicate the nature of the liability 
sought to be imposed.” Graham, 473 U.S.at 167 n.14 (citations omitted). Here, the injunctive 
relief Heinrich seeks would necessarily come from the Board, rather than the 
individual members. Considering “the nature of the liability sought to be 
imposed,” id., and construing Heinrich’s pleadings liberally, 
Miranda, 133 S.W.3d at 226, we conclude that she has sued the Board 
members in their official capacities, and her claims are therefore not 
automatically barred by immunity.[10] To the extent that the court of appeals 
held that the suit is against the Board members in their individual capacities, 
we reverse that portion of its judgment.
D
Evidence That 
Petitioners Acted Ultra Vires
 
            
In their second issue, petitioners argue that governmental immunity 
prohibits Heinrich’s suit because Heinrich has offered no evidence that the 
reduction in her benefits was illegal or unauthorized. We conclude, however, 
that Heinrich has presented evidence raising a fact question on this issue.
            
“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. We construe the pleadings liberally in favor of 
the plaintiffs and look to the pleaders’ intent.” Miranda, 133 S.W.3d at 226 (citations omitted). Here, 
Heinrich alleges that petitioners violated article 6243b, section 10A(b) of the Texas Revised Civil Statutes when they reduced 
her benefits. Thus, if Heinrich’s allegations are true, her suit would fall 
within the ultra vires exception to 
governmental immunity as described above.
            
This is not the end of our analysis, however: “if 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.” Id.
at 227. If there is no question of fact as to the jurisdictional 
issue, the trial court must rule on the plea to the jurisdiction as a matter of 
law. Id. at 
228. If, however, the jurisdictional evidence creates a fact question, 
then the trial court cannot grant the plea to the jurisdiction, and the issue 
must be resolved by the fact finder. Id. at 227–28. This standard mirrors our review of 
summary judgments, and we therefore take as true all evidence favorable to 
Heinrich, indulging every reasonable inference and resolving any doubts in her 
favor. Id. at 
228.
            
Petitioners argue that, in accordance with the governing bylaws, the 
payments to Heinrich were reduced when her son ceased to be eligible to receive 
them, and asserts that the statutory provisions Heinrich relies upon are 
“inapplicable.” Conversely, Heinrich alleges that she was awarded 100% of her 
husband’s pension in accordance with these provisions, and that petitioners’ 
subsequent retroactive reduction of her benefits violated, among others, article 
6243b, section 10A(a)(1) of the Texas Revised Civil Statutes. The relevant 
portions of article 6243b, section 10A provide:
 
(a) 
Notwithstanding anything to the contrary in other parts of this Act and subject 
to Subsections (b) and (c) of this section, the Board of Trustees may, by 
majority vote of the whole board, make from time to time one or more of the 
following changes, or modifications:
 
(1) modify or change prospectively or retroactively in any manner 
whatsoever any of the benefits provided by this Act, except that any 
retroactive change or modification shall only increase pensions or 
benefits;
***
 
(b) None 
of the changes made under Subsection (a) of this section may be made unless all 
of the following conditions are sequentially complied with:
 
(1) the 
change must be approved by a qualified actuary selected by a four-fifths vote of 
the Board; the actuary’s approval must be based on an actuarial finding that the 
change is supported by the existing funding status of the fund; the actuary, if 
an individual, must be a Fellow of the Society of Actuaries or a Fellow of the 
Conference of Actuaries in Public Practice or a Member of the American Academy 
of Actuaries; the actuary, if an actuarial consulting firm, must be established 
in the business of providing actuarial consulting services to pension plans and 
have experienced personnel able to provide the requested services; the findings 
upon which the properly selected and qualified actuary's approval are based are 
not subject to judicial review;
 
(2) the 
change must be approved by a majority of all persons then making contributions 
to the fund as employees of a department to which the change would directly 
apply, voting by secret ballot at an election held after ten (10) days’ notice 
given by posting at a prominent place in every station or substation of a 
department to which the change would directly apply and in the city hall;
 
Tex. Rev. Civ. Stat. art. 6243b, § 10A (emphasis 
added). Under this statute, while benefits may be increased if certain 
procedures are followed, the Board has no discretion to retroactively lower 
pensions. Petitioners, however, cite the provisions of the 1980 bylaws, under 
which the reduction would be proper due to Heinrich’s son’s age. They therefore 
suggest that Heinrich erroneously relies on 1985 changes to the bylaws that 
increased the surviving spouse’s share but were prospective only in nature and 
do not apply to Heinrich.
            
Heinrich submitted an affidavit from John Batoon, former Assistant City Attorney for El Paso.[11] Batoon’s 
affidavit provided:
 
I was 
serving as an Assistant City Attorney for the City of El Paso in 1985. I reviewed 
and approved the award to Ms. Lilli M. Heinrich of 
100% of her deceased husband’s, Charles D. Heinrich, benefits from The El Paso 
Firemen & Policemen’s Pension Fund. All procedures were followed according 
to the Plan and according to law. The membership voted and approved of the 
benefits awarded Ms. Heinrich as was required by the Plan. Because Mr. Heinrich 
had been an outstanding police officer for the City of El Paso and because he was 
killed in the line of duty, the Board of Trustees and the membership voted to 
award Ms. Heinrich 100% of Mr. Heinrich’s benefits.
 
Consideration of the amount 
of benefits awarded Ms. Heinrich was not based, in any way, on the fact that she 
had a minor child at that time. Ms. Heinrich was awarded 100% of the benefits 
because Mr. Heinrich had been a well-loved officer and his death was a terrible 
loss for the police department. It was the Board of Trustees and the 
membership’s way of paying tribute to a fallen officer.
 
            
Along with this sworn testimony, the evidence included a pair of October 
16, 1985 letters from the chief of police, one signed by the then-Board members, 
stating that “Mrs. Heinrich will receive 100% of her husband’s final pension 
amount,” and one unsigned, stating that 100% would go to “Mrs. Heinrich and her 
dependent children.” The minutes of the November 20, 1985 Board meeting also 
indicate that the membership had previously voted to change benefits so that 
surviving spouses’ benefits would increase from 66 2/3 to 100% of the pension 
amount. The Board contends that these bylaw changes do not apply to Heinrich, 
but even if they do not, Batoon’s affidavit and the 
letters raise a fact question as to whether Heinrich’s individual benefits were 
increased to 100% of her husband’s pension payments under the provisions of 
article 6243b and subsequently reduced in violation thereof. We conclude that 
the trial court correctly denied that portion of the plea to the jurisdiction 
challenging Heinrich’s claims against the individuals in their official 
capacities. Miranda, 133 S.W.3d at 227–28.
 E
The Individuals’ 
Immunity
 
            
In their final issue, petitioners assert that the trial court erred 
in denying the individual board members’ plea to the jurisdiction based on 
governmental and official immunity. With the limited ultra vires exception discussed above, governmental immunity 
protects government officers sued in their official capacities to the extent 
that it protects their employers. See Univ. of Tex. Med. 
Branch v. Hohman, 6 S.W.3d 767, 776 (Tex. 
App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Because of this exception, however, 
governmental immunity does not bar Heinrich’s claims against the individuals in 
their official capacities. Official immunity, by contrast, is an affirmative 
defense protecting public officials from individual liability. See Telthorster v. Tennell, 92 S.W.3d 457, 459-60 (Tex. 2002). Because we hold that Heinrich has 
not sued the Board members in their individual capacities, official immunity is 
inapplicable here.[12]
III
Conclusion
 
            
In sum, because there is a question of fact as to whether Heinrich’s 
pension payments have been reduced in violation of state law, her claims for 
prospective declaratory and injunctive relief against the Board members and the 
mayor in their official capacities may go forward, but we dismiss her 
retrospective claims against them. All of her claims against the City, Fund, and 
Board, however, are barred by governmental immunity, and we dismiss them. 
Finally, we hold that the Board members have not been sued in their individual 
capacities, and to the extent the court of appeals held otherwise, we reverse 
its judgment. We affirm in part and reverse in part the court of appeals’ 
judgment and remand this case to the trial court for further proceedings. Tex. R. App. P. 60.2(a), (d).
 
            
_________________________
            
Wallace B. Jefferson
            
Chief Justice
 
OPINION 
DELIVERED:     May 
1, 2009









[1] 
The City withheld a percentage of Charles’s compensation (and that of other 
officers) to fund the plan.

[2] 
The State of Texas and the Texas State Association of Fire 
Fighters submitted amicus curiae briefs.

[3] 
We recently dismissed a claim for declaratory and injunctive relief against the 
Houston Municipal Employees Pension System in which the “plaintiffs . . . 
requested that the trial court issue an injunction directing the pension board 
to comply with the trial court’s interpretation of Article 6243h,” the governing 
statute. Houston Mun. Employees Pension Sys. 
v. Ferrell, 248 S.W.3d 151, 158-59 (Tex. 2007). Under Article 
6243h, the Houston board’s “interpretation of [the] Act 
[is] final and binding on any interested party,” Tex. Rev. Civ. Stat. art. 6243h § 2(y), and we 
held that this language precluded judicial review. Ferrell, 248 S.W.3d at 
158 (“There is no right to judicial review of an administrative order unless a 
statute explicitly provides that right or the order violates a constitutional 
right.”) (citations omitted). Here, however, Article 
6243b contains no language similar to that in 6243h granting the Board exclusive 
authority to interpret the act, see Tex. Rev. Civ. Stat. art. 6243b, and, in any case, 
Heinrich does not challenge petitioners’ interpretation of 6243b, but rather 
alleges that they have violated that statute under an undisputed reading 
thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J., concurring) (“A 
different case might be presented if the plaintiffs alleged the board was 
clearly violating some provision of the statute. Article 6243h gives the pension 
board complete discretion to interpret the statute, but not to violate 
it.”).

[4] 
The Dodgen Court expressly 
declined to limit Epperson based on changes in federal immunity 
jurisprudence. Dodgen, 308 
S.W.2d at 843.

[5] 
Because the policy embodied in the law extends only as far the amount wrongfully 
withheld, claims for amounts beyond those alleged to be due under the relevant 
law, such as consequential damages, remain barred by immunity.

[6] 
For claims challenging the validity of ordinances or statutes, however, the 
Declaratory Judgment Act requires that the relevant governmental entities be 
made parties, and thereby waives immunity. Tex. Civ. Prac. & Rem. Code § 
37.006(b) (“In any proceeding that involves the validity of a municipal 
ordinance or franchise, the municipality must be made a party and is entitled to 
be heard, and if the statute, ordinance, or franchise is alleged to be 
unconstitutional, the attorney general of the state must also be served with a 
copy of the proceeding and is entitled to be heard.”); see Wichita Falls 
State Hosp. v. Taylor, 106 S.W.3d 692, 697-698 (Tex. 2003) (“[I]f the 
Legislature requires that the State be joined in a lawsuit for which immunity 
would otherwise attach, the Legislature has intentionally waived the State’s 
sovereign immunity.”); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (“The DJA 
expressly provides that persons may challenge ordinances or statutes, and that 
governmental entities must be joined or notified. Governmental entities joined 
as parties may be bound by a court’s declaration on their ordinances or 
statutes. The Act thus contemplates that governmental entities may be—indeed, 
must be—joined in suits to construe their legislative pronouncements.”). Here, 
Heinrich is not challenging the validity of the bylaws or the governing statute, 
but rather petitioners’ actions under them.

[7] 
State officials may, of course, be sued in both their official and individual 
capacities. Judgments against state officials in their individual capacities 
will not bind the state. See Alden v. Maine, 527 U.S. 706, 757 (1999) 
(“Even a suit for money damages may be prosecuted against a state officer in his 
individual capacity for unconstitutional or wrongful conduct fairly attributable 
to the officer himself, so long as the relief is sought not from the state 
treasury but from the officer personally.”).

[8] 
Further, although the parties do not address it, we note that the reduction in 
Heinrich’s survivor payments occurred before the effective date of article XVI, 
section 66 of the Texas Constitution (“Protected Benefits Under Certain Public Retirement Systems”), and we do not 
consider whether it would otherwise apply in this case.

[9] 
While this case was pending on interlocutory appeal, the Legislature enacted 
271.151-.160 of the Local Government Code, waiving immunity from suit for 
certain claims against cities and other governmental entities. Heinrich does not 
argue that her claims fall within these provisions, and we express no opinion on 
that subject.

[10] Because the mayor of El Paso, who is also a 
Board member, was named as a defendant in his official capacity, Heinrich may 
seek liability from the City through that officer, although her claims against 
the City itself must be dismissed.

[11] The Fund, the Board, and the Board members 
objected to this evidence. The trial court did not explicitly rule on the 
objections, and the petitioners do not raise any evidentiary issues on 
appeal.

[12] The court of appeals failed to draw this 
distinction, instead discussing the protections available to officials from 
governmental immunity. 198 S.W.3d at 407. This conflict 
gives us jurisdiction over this interlocutory appeal. Tex. Gov’t Code § 22.225(c), 
(e).