      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00685-CV



 Jason Spence, Individually and as Heir and Representative of the Estate of David Spence,
    Deceased; Joel Spence, Individually and as Heir and Representative of the Estate of
          David Spence, Deceased; and Estate of Anthony Melendez, Appellants

                                                  v.

                                      State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. D-1-GN-17-001735, HONORABLE KARIN CRUMP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants Jason Spence and Joel Spence, Individually and as Heirs and

Representatives of the Estate of David Spence, Deceased, and the Estate of Anthony Melendez

sought damages against the State and declaratory, injunctive, and equitable relief stemming from the

alleged wrongful conviction, imprisonment, and deaths of David Spence and Anthony Melendez.

Appellants raise five issues on appeal from the trial court’s order granting a motion to dismiss by the

State of Texas based on sovereign immunity pursuant to Rule 91a. See Tex R. Civ. P. 91a. For the

following reasons, we affirm the trial court’s order.
                                           Background

Compensation for Wrongful Imprisonment in Texas

               To give context to appellants’ asserted claims against the State, we begin with a brief

discussion of Chapter 103 of the Texas Civil Practice and Remedies Code, which prescribes an

administrative procedure for a claimant to obtain compensation for wrongful imprisonment in Texas.

See Tex. Civ. Prac. & Rem. Code §§ 103.001–.154; Ex parte Springsteen, 506 S.W.3d 789, 790–94

(Tex. App.—Austin 2016, pet. denied) (providing discussion of application process and

requirements to obtain compensation under Chapter 103 for wrongful imprisonment). In general,

the claimant files an application for compensation with the Comptroller. See Tex. Civ. Prac. & Rem.

Code § 103.051. If the Comptroller denies the application, “the claimant may bring an application

for mandamus relief.” See id. § 103.051(d). The application for mandamus relief “must be filed in

the Texas Supreme Court, as only that court has jurisdiction to issue the writ against the

Comptroller.” Ex parte Springsteen, 506 S.W.3d at 794 (citing, among other authority, Tex. Gov’t

Code § 22.002(c)).

               As a threshold matter, a complaint must satisfy one of the alternatives set forth in

Section 103.001(a) to be entitled to compensation for wrongful imprisonment in Texas. That

section provides:


       (a)     A person is entitled to compensation if:

               (1)    the person has served in whole or in part a sentence in prison under
                      the laws of this state; and

               (2)    the person:



                                                 2
               (A)     has received a full pardon on the basis of innocence for the crime for
                       which the person was sentenced;

               (B)     has been granted relief in accordance with a writ of habeas corpus
                       that is based on a court finding or determination that the person is
                       actually innocent of the crime for which the person was sentenced; or

               (C)     has been granted relief in accordance with a writ of habeas corpus
                       and:

                       (i)     the state district court in which the charge against the person
                               was pending has entered an order dismissing the charge; and

                       (ii)    the district court’s dismissal order is based on a motion to
                               dismiss in which the state’s attorney states that no credible
                               evidence exists that inculpates the defendant and, either in the
                               motion or in an affidavit, the state’s attorney states that the
                               state’s attorney believes that the defendant is actually
                               innocent of the crime for which the person was sentenced.


Tex. Civ. Prac. & Rem. Code § 103.001(a). Relevant to this appeal, a claimant’s entitlement to

compensation under this section requires a determination of innocence. See id. Also relevant here,

section 103.001(c) allows recovery for a person’s heirs, legal representative, and estate as follows:


       (c)     If a deceased person would be entitled to compensation under Subsection
               (a)(2) if living, including a person who received a posthumous pardon, the
               person’s heirs, legal representative, and estate are entitled to lump-sum
               compensation under Section 103.052.


Id. § 103.001(c). With this statutorily prescribed administrative procedure in mind, we turn to

appellants’ asserted claims against the State that stem from their allegations of the wrongful

conviction, imprisonment, and deaths of David Spence and Anthony Melendez.




                                                  3
Appellants’ Claims Against the State

                Jason Spence and Joel Spence are the sons of David Spence.1 In 1990, the Texas

Court of Criminal Appeals affirmed Spence’s 1984 capital murder conviction and death sentence for

his involvement in the murder of Jill Montgomery. See generally Spence v. State, 795 S.W.2d 743

(Tex. Crim. App. 1990), cert. denied, 499 U.S. 932 (1991). On the same day, the Texas Court of

Criminal Appeals in an unpublished opinion affirmed Spence’s capital murder conviction and death

sentence for his involvement in the murder of Kenneth Franks. See id. at 746 n.1. Spence thereafter

unsuccessfully filed applications for state and federal writs of habeas corpus regarding the

convictions and death sentences. See generally Spence v. Johnson, 80 F.3d 989 (5th Cir. 1996), cert.

denied, 519 U.S. 1012 (1996) (detailing factual background of murders, Spence’s convictions, and

his various applications for habeas corpus relief that were filed in state and federal courts, which

were all denied). Spence was executed by lethal injection in 1997.

                Anthony Melendez pleaded guilty to two counts of murder and received two life

sentences for his involvement in the murders of Montgomery and Franks. He remained in prison

until he died in January 2017.

                Appellants filed suit against the State on April 19, 2017, seeking declaratory relief

under the Uniform Declaratory Judgments Act (UDJA) based on the alleged wrongful convictions,

imprisonment, and deaths of Spence and Melendez.             See Tex. Civ. Prac. & Rem. Code

§§ 37.001–.011. Appellants asserted that Spence and Melendez were innocent and did not commit

the murders, and they sought declaratory relief that they “were entitled to Writ of Habeas Corpus


       1
           In this opinion, we refer to David Spence by his last name.

                                                  4
relief and compensation under Chapter 103 for the time that [Spence and Melendez] were wrongfully

imprisoned.” See id. § 103.001 (generally entitling claimant to compensation based on determination

that claimant was “actually innocent” of crime for which he was sentenced). They requested that the

trial court “utilize the powers granted it under the Declaratory Judgment[s] Act and determine the

facts underlying this cause” and “declare that David Spence and Anthony Melendez were actually

innocent, that no reasonable jury would or could have found them guilty, and that they were

wrongfully imprisoned, and in David Spence’s case, wrongfully executed.”2

               On June 26, 2017, the State filed a motion to dismiss appellants’ lawsuit with

prejudice pursuant to Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P. 91a. The State

contended that appellants’ lawsuit was baseless in law because appellants did not identify a waiver

of sovereign immunity in their pleadings that would permit them to seek declaratory relief against

the State and that no such waiver could be reasonably inferred.

               Appellants filed a response to the State’s motion to dismiss and a second amended

petition on July 27, 2017. In their second amended petition, appellants pleaded that the State had

waived immunity as to all of their claims and that the trial court had jurisdiction over their lawsuit.

They added claims under the Texas Tort Claims Act’s [TTCA] waiver of immunity for personal

injury and death “caused by the condition or use of tangible personal or real property including but

not limited to a syringe filled with lethal chemicals.” See Tex. Civ. Prac. & Rem. Code § 101.021(2)

(providing limited waiver of governmental immunity arising from the “condition or use of tangible


       2
          Appellants filed an amended petition in May 2017, continuing to assert their claims
pursuant to the UDJA and substantively seeking the same declarations that they sought in their
original petition for declaratory judgment.

                                                  5
personal or real property”). Appellants also sought monetary damages,3 expanded their requests for

declaratory relief, and sought injunctive and equitable relief challenging the constitutionality of

statutes. They contended that section 103.001(c) of the Texas Civil Practice and Remedies Code,

“that contemplates compensation for a deceased individual,” and article 11.01 of the Texas Code of

Criminal Procedure, that “contemplates a living complainant,” are in conflict and violate substantive

due process and associated equal protection guaranteed by the Texas Constitution. See Tex. Const.

art. I, §§ 3 (equal rights), 19 (due course of law); Tex. Civ. Prac. & Rem. Code § 103.001(c); Tex.

Code Crim. Proc. art. 11.01 (providing that “[t]he writ of habeas corpus is the remedy to be used

when any person is restrained in his liberty”). Alternatively, they contended that article 11.01

violates article I, section 19 of the Texas Constitution. See Tex. Const. art. I, § 19.

               As to the declarations that they sought in their second amended petition, appellants

continued to request that the court “utilize the powers granted it under the [UDJA] and determine

the facts underlying this cause including the actual innocence of Spence and Melendez.” But they

also requested a declaration that “[t]aken together, Chapter 103 and Article 11.01 are invalid

statutes” because “[e]nforcement of Chapter 103 with its reliance on Habeas Corpus relief is




       3
           Appellants sought “[a]ctual damages for pain and suffering, mental anguish, lost income,
lost liberty, punitive damages, and loss of consortium.”

                                                  6
unconstitutional and violative of Sections 3 and 19 of Article I of the Texas Constitution.”4 See

id. §§ 3, 19.

                In their response to the State’s motion to dismiss, appellants asserted that the State

waived immunity under section 101.021(2) of the TTCA, see Tex. Civ. Prac. & Rem. Code

§ 101.021(2), and under the UDJA because the “constitutionality of a statute [was] the issue and

equitable relief [was] sought.” They also asserted that Texas Rule of Civil Procedure 91a was an

improper method for the State to raise sovereign immunity.

                The State filed a reply to appellants’ response on July 31, 2017, addressing

appellants’ TTCA and UDJA claims asserted in their second amended petition and arguing that

appellants had not cured the jurisdictional defects in their pleadings. Among its arguments, the State

argued that “any tort claim asserted by Plaintiffs as a jurisdictional basis for their suit [was] barred




        4
          In the prayer section of their second amended petition, appellants state their requested
declarations as follows:

        •       “Texas Code of Criminal Procedure Article 11.01 as it pertains to Plaintiffs
                is invalid and violates the Texas Constitution.”

        •       “[T]here is no rational basis for the complained of portions of Article 11.01
                as same relates to Plaintiffs.”

        •       “Chapter 103 of the Texas Civil Practice and Remedies Code as it pertains
                to Plaintiffs is invalid and violates the Texas Constitution.”

        •       “[T]here is no rational basis for the complained of portions of Chapter 103
                as same relates to Plaintiffs.”

        •       “Habeas Corpus relief is available when the individuals who were wrongfully
                imprisoned are now deceased.”


                                                   7
by the applicable statute of limitations.” The State also continued to assert its immunity from

appellants’ claims and argued that appellants had been given an opportunity to cure their pleadings

but had failed to do so.

                  Following a hearing on August 3, 2017, the trial court signed an order granting the

State’s motion to dismiss and dismissing appellants’ suit with prejudice. Appellants filed a motion

for new trial and to set aside the dismissal, which was overruled by operation of law. This

appeal followed.


                                                 Analysis

                  Appellants raise five issues on appeal. In their first and second issues, they argue that

the trial court erred in granting the State’s 91a motion to dismiss their TTCA claims on sovereign

immunity or limitations grounds. In their third issue, they argue that the trial court erred in granting

the States’s 91a motion to dismiss their UDJA claims on sovereign immunity grounds, and, in their

fourth and fifth issues, they argue that the trial court erred by failing to restart the notice and response

deadlines according to Rule 91a.5(d) and that the trial court erred by dismissing appellants’ claims

with prejudice.


Standard of Review

                  Relevant to this appeal, dismissal is appropriate under Rule 91a on the ground that

the plaintiff’s “cause of action has no basis in law if the allegations, taken as true, together with

inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Tex. R.

Civ. P. 91a.1. “Whether the dismissal standard is satisfied depends ‘solely on the pleading of the



                                                     8
cause of action.’” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (quoting

Tex. R. Civ. P. 91a.6). We review a trial court’s ruling on a Rule 91a motion de novo “because the

availability of a remedy under the facts alleged is a question of law and the rule’s factual-plausibility

standard is akin to a legal-sufficiency review.” Id.; see Koenig v. Blaylock, 497 S.W.3d 595, 598

(Tex. App.—Austin 2016, pet. denied) (reviewing ruling on Rule 91a motion to dismiss de novo);

Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(analogizing dismissal grounds under Rule 91a to “pleas to the jurisdiction, which require a court

to determine whether the pleader has alleged facts demonstrating jurisdiction”).

                The State’s Rule 91a motion challenged the trial court’s subject matter jurisdiction

over appellants’ claims based on sovereign immunity. See Patel v. Texas Dep’t of Licensing

& Regulation, 469 S.W.3d 69, 75 (Tex. 2015) (“Sovereign immunity implicates a trial court’s

jurisdiction, and, when it applies, precludes suit against a governmental entity.”). “Whether a

pleader has alleged facts affirmatively demonstrating the existence of subject-matter jurisdiction is

a question of law reviewed de novo.” Sanchez, 494 S.W.3d at 725 (citing Texas Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004)). Thus, in conducting our analysis as

to whether the trial court erred in dismissing appellants’ claims under Rule 91a, we consider whether

their pleadings, liberally construed, allege sufficient facts to affirmatively demonstrate the State’s

waiver of sovereign immunity or that sovereign immunity does not apply to appellants’ claims. See

id. Although appellants address their UDJA claims in their third issue on appeal, we begin our

analysis with those claims.




                                                   9
UDJA Claims

                In their third issue, appellants argue that the trial court erred by dismissing their

UDJA claims on the ground of sovereign immunity because the State was a necessary party to their

challenge to the constitutionality of statutes. They also argue that they provided fair notice of their

claims in their pleadings, including their claims for declaratory relief, and that they were not required

“to set out their evidence” or to “address in their petitions every single defense that the State of

Texas might have asserted if it had filed an answer.” See Tex. R. Civ. P. 45 (requiring “fair notice”

of cause of action and grounds of defense), 47 (requiring pleading setting forth claim for relief “to

give fair notice of the claim involved”).

                We agree with appellants that sovereign immunity generally is inapplicable when a

suit challenges the constitutionality of a statute and seeks equitable relief. See Patel, 469 S.W.3d

at 75–76. If the plaintiff fails to plead a viable claim, however, the governmental defendant remains

immune from suit. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering

substance of constitutional claim when reviewing plea to jurisdiction and noting that immunity was

retained unless viable claim pleaded). “And a litigant’s couching its requested relief in terms of

declaratory relief does not alter the underlying nature of the suit.” See Texas Parks & Wildlife Dep’t

v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); see also Texas Dep’t of Transp. v. Sefzik,

355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam) (stating that “UDJA does not enlarge the trial

court’s jurisdiction but is merely a procedural device for deciding cases already within a court’s

jurisdiction” (internal quotations and citation omitted)). As such, “sovereign immunity will bar an

otherwise proper [U]DJA claim that has the effect of establishing a right of relief against the State



                                                   10
for which the Legislature has not waived sovereign immunity.” Sawyer Trust, 354 S.W.3d at 388

(citing City of Hous. v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007) (per curiam)).

               Applying these principles of law, the question before us is whether appellants pleaded

a viable UDJA claim challenging the constitutionality of a statute, and we look to the underlying

nature of their claims in resolving this question. In their pleadings, appellants asserted that “taken

together, Chapter 103 and Article 11.01 are invalid statutes” because they violate “Sections 3 and

19 of Article I of the Texas Constitution,” they sought declarations to that effect, and they sought

injunctive relief that would allow them to pursue habeas relief. See Tex. Const. art. I, §§ 3, 19;

Tex. Civ. Prac. & Rem. Code § 103.001; Tex. Code Crim. Proc. art. 11.01. They asserted that they

were “entitled to Writ of Habeas Corpus relief and award of compensation under Chapter 103 for

the time [Spence and Melendez] were wrongfully imprisoned, but are prevented by unconstitutional

statutes.” Appellants’ challenge to the constitutionality of the statutes “[t]aken together” is based

on their assertion that they are precluded from compensation in section 103.001(c) because habeas

corpus relief, as defined in article 11.01, is only available to a “living complainant.” See Tex. Civ.

Prac. & Rem. Code § 103.001; Tex. Code Crim Proc. art. 11.01.

               As acknowledged in appellants’ pleadings, however, the underlying nature of their

ultimate claim for relief is compensation under Chapter 103.5 Entitlement to compensation under

Chapter 103 is contingent as a threshold matter on a court’s determination that Spence and Melendez




       5
          Consistent with their pleadings, appellants state in their briefing to this Court that they
“sought a declaratory judgment and injunctive relief so that they can, upon receiving the requested
relief from the trial court, pursue their claims for wrongful imprisonment under Tex. Civ. Prac.
& Rem. Code § 103.001.”

                                                 11
were actually innocent of the murders and thus wrongfully imprisoned. See Tex. Civ. Prac. & Rem.

Code § 103.001(a)(2)(B) (requiring “relief in accordance with a writ of habeas corpus that is based

on a court finding or determination that the person is actually innocent”). The Court of Criminal

Appeals and the convicting trial courts have exclusive jurisdiction over questions regarding the

actual innocence of Spence and Melendez. See Ex parte Springsteen, 506 S.W.3d at 801–02

(concluding, in context of reversed conviction on direct appeal, that district court did not have

jurisdiction “for purposes of litigating, through the UDJA, an underlying ‘actual innocence’ claim”

in order to establish eligibility for compensation under chapter 103 and observing that declaration

of actual innocence by civil court would amount to “abstract proposition of law having no impact

on [claimant’s] asserted eligibility for compensation under [section 103.001(a)(2)(B)]—the

distinguishing characteristic of an advisory opinion”); see also Tex. Code Crim. Proc. arts. 11.07

(establishing procedures for application of writ of habeas corpus seeking relief from felony judgment

imposing penalty other than death), .071 (establishing procedures for application of writ of habeas

corpus seeking relief from judgment imposing death penalty). Further, civil courts generally do not

have jurisdiction to make declarations of rights and status under criminal laws, such as Article 11.01

of the Texas Code of Criminal Procedure. See Ex parte Springsteen, 506 S.W.3d at 801–02

(observing “jurisdictional prohibitions against civil courts issuing UDJA declarations of rights and

status under the criminal law” (citing State v. Morales, 869 S.W.2d 941, 946–48 (Tex. 1994))).

               We also observe that “[t]he right to compensation under Chapter 103 is purely a

creature of statute” with “a specific procedural mechanism for obtaining that remedy—application

to the Comptroller, with judicial review solely by mandamus to the Texas Supreme Court.” See id.



                                                 12
at 799–80 (observing that chapter 103 was “enacted pursuant to a constitutional authorization that

also explicitly permits the Legislature to impose ‘such regulations and limitations’ on the

compensation right ‘as the Legislature may deem expedient’” (citing and quoting Tex. Const. art.

III, § 51-c)); see also State v. Young, 265 S.W.3d 697, 708 (Tex. App.—Austin 2008, pet. denied)

(observing that it “remains the legislature’s prerogative to balance the competing interests and decide

the extent of the waiver” in Chapter 103). Under Chapter 103’s administrative procedure, the

Comptroller—not a court—has exclusive jurisdiction to make an initial determination under Chapter

103, displacing “any jurisdiction that [a court] might otherwise possess over the subject matter,” and

judicial review of the Comptroller’s determination would be with the Texas Supreme Court. See

Ex parte Springsteen, 506 S.W.3d at 799–800 (citing Thomas v. Long, 207 S.W.3d 334, 342 (Tex.

2006)); see also Tex. Const. art. V, § 8 (“District Court jurisdiction consists of exclusive, appellate,

and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,

appellate, or original jurisdiction may be conferred by this Constitution or other law on some other

court, tribunal, or administrative body.”).

                Because the convicting trial courts, the Texas Court of Criminal Appeals, and the

Comptroller have exclusive jurisdiction over the substance of the various aspects of appellants’

ultimate claim for relief—compensation under Chapter 103, which is contingent on a criminal

court’s determination of actual innocence—we conclude that appellants did not plead a viable UDJA

claim to establish the trial court’s subject matter jurisdiction over those claims. See Sefzik,

355 S.W.3d at 621–22; Sawyer Trust, 354 S.W.3d at 388; Andrade, 345 S.W.3d at 11; Ex parte

Springsteen, 506 S.W.3d at 799–801 (recognizing exclusive jurisdiction that conferred on criminal



                                                  13
courts or Comptroller to determine underlying substance of claims seeking compensation under

Chapter 103 and concluding that appellant “had not pleaded any viable Due-Process-based claim,”

explaining that “asserted ‘property right’ on which he predicates his arguments amounts merely to

whatever compensation the Comptroller, subject to Texas Supreme Court review, determines he is

owed under Chapter 103”); see also Tex. Const. art. V, § 8.

               Based on our conclusion that the trial court does not have subject matter jurisdiction

over appellants’ UDJA claims, we conclude the trial court did not err in dismissing those claims

pursuant to Rule 91a on the ground that they were baseless in law. See Tex. R. Civ. P. 91a. We

overrule appellants’ third issue.6


Claims based on TTCA

               In their first issue, appellants argue that there is a basis in law for their TTCA claims

and that the State may not rely on sovereign immunity as support for its Rule 91a motion as to those

claims because it did not file an answer asserting sovereign immunity and that “the proper means to

assert immunity from suit” would have been a plea to the jurisdiction or special exceptions.

Appellants further argue that “the proper remedy for a sovereign immunity jurisdictional issue is to

allow [them] the opportunity to re-plead to cure the defect, if any” and, as they argued as to their




       6
         We also observe that appellants’ position that heirs are precluded from compensation under
section 103.001 is contrary to the plain language of subsection (a)(2)(A), that authorizes
compensation to a person’s heirs, legal representatives, and estate after a person dies if the person
receives a posthumous pardon on the basis of innocence. See Tex. Civ. Prac. & Rem. Code
§ 103.001(a)(2)(A).

                                                  14
UDJA claims, they argue that they provided fair notice of their TTCA claims in their pleadings. See

Tex. R. Civ. P. 45, 47.

                Sovereign immunity from suit, however, is not an affirmative defense that the State

must plead or raise in special exceptions or a plea to the jurisdiction in order to raise it in a Rule 91a

motion. See Sanchez, 494 S.W.3d at 724–25 (rendering judgment dismissing claims against city

pursuant to Rule 91a based on pleader’s failure to invoke waiver of immunity); Hegar v. CHZP,

LLC, No. 03-17-00214-CV, 2018 Tex. App. LEXIS 4803, at *3 (Tex. App.—Austin June 28, 2018,

no pet.) (mem. op.) (“A state agency may assert sovereign immunity ‘through a plea to the

jurisdiction or other procedural vehicle, such as a motion for summary judgment’ or a Rule 91

motion.” (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018))); see

also Miranda, 133 S.W.3d at 224 (explaining that immunity from liability is affirmative defense but

immunity from suit deprives court of subject matter jurisdiction). Thus, the State properly raised

sovereign immunity as a basis for dismissing appellants’ claims pursuant to Rule 91a. See Sanchez,

494 S.W.3d at 724–25; CHZP, LLC, 2018 Tex. App. LEXIS 4803, at *3; see, e.g., Rusk State Hosp.

v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (explaining that sovereign immunity deprives courts of

subject matter jurisdiction and that governmental entity may raise it for first time on appeal).

                Further, although the TTCA is a limited waiver of sovereign immunity, the State

retains its immunity against intentional torts. See Tex. Civ. Prac. & Rem. Code § 101.057(2) (stating

that “chapter does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any

other intentional tort”); City of Watauga v. Gordon, 434 S.W.3d 586, 587 (Tex. 2014) (stating that

TTCA “does not waive immunity when the claim arises out of an intentional tort”); Rusk State



                                                   15
Hosp., 392 S.W.3d at 99–100 (concluding claim based on murder or assisted suicide barred by

intentional tort exception because either offense “require[d] actions taken with intent to cause

harm”); see also Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001) (stating

that, when sovereign immunity is at issue, “mere reference” to TTCA does not demonstrate State’s

consent to be sued and “is not enough to confer jurisdiction on the trial court”).

               In their second amended petition, appellants’ TTCA claims alleged that they “suffered

personal injury and death by and through the Defendant and its agents and employees’ wrongful acts

and omissions and said personal injury and death were caused by the condition or use of tangible

personal or real property including but not limited to a syringe filled with lethal chemicals.” See

Tex. Civ. Prac. & Rem. Code § 101.021(2) (providing that governmental unit is liable for “personal

injury and death so caused by a condition or use of tangible personal or real property if the

governmental unit would, were it a private person, be liable to the claimant according to Texas

law”). Appellants, however, did not allege facts in regard to Spence that would support that use of

the syringe was done negligently or without intent. See Tex. Code Crim. Proc. arts. 43.14(a)

(addressing execution of convict “by intravenous injection of a substance or substances in a lethal

quantity sufficient to cause death”), 43.15 (addressing warrant of execution). We further observe

that the underlying basis for appellants’ TTCA claims concerning Spence, as was the case with their

UDJA claims, is that he was wrongfully imprisoned and executed because he was innocent, which

we have determined that the trial court did not have jurisdiction to determine.7 See Sawyer Trust,


       7
          Appellants’ briefing conforms with our observation of the underlying nature of their claims.
They argue that their “second amended petition articulates the [TTCA] claims that were implicit in
the earlier petitions.”

                                                 16
354 S.W.3d at 388; Ex parte Springsteen, 506 S.W.3d at 801–02. Based on our review of

appellants’ pleadings, we conclude that the State retained its immunity from appellants’ TTCA

claims concerning Spence.

                Based on our review of appellants’ pleadings, we also conclude that the State retained

its immunity from appellants’ TTCA claims concerning Melendez. Appellants asserted in their

pleadings that Melendez “was denied proper medical care during his incarceration and died as a

result.”8 Under section 101.021(2) of the TTCA, however, the “non-use” of property does not waive

sovereign immunity. See Sanchez, 494 S.W.3d at 724 (holding that governmental immunity was not

waived and that dismissal was required “because the requisite causal nexus between the alleged

condition and [claimant]’s injury [was] lacking”); Miller, 51 S.W.3d at 587–88 (distinguishing

between “claims involving the failure to use, or the non-use of property, which do not waive

sovereign immunity, from claims involving a ‘condition or use” of tangible personal property that

causes injury, which do effect a waiver”).

                As part of this issue, appellants also contend that the proper remedy for a sovereign

immunity jurisdictional issue is to allow them the opportunity to amend their pleadings, but they

have already had that opportunity and have not suggested a cure that would establish the trial court’s

jurisdiction over any of their claims. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840

(Tex. 2007) (explaining that “pleader must be given an opportunity to amend in response to a plea




       8
         In their briefing on appeal, appellants argue that they sued the state “for lack of proper care
for Melendez which, upon information and belief, contributed to his death (lack of use of tangible
personal property, i.e., medical equipment; or use of real property, i.e., a state prison, which
prevented Melendez from seeking his own medical treatment).”

                                                  17
to the jurisdiction only if it is possible to cure the pleading defect,” observing that pleader had “made

no suggestion as to how to cure the jurisdictional defect,” and denying remand to allow opportunity

to amend pleadings); see also Miranda, 133 S.W.3d at 227 (“If the pleadings affirmatively negate

the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiffs an opportunity to amend.”). Thus, we deny their request to remand the case back to the

trial court to allow them another opportunity to amend their pleadings. See Koseoglu, 233 S.W.3d

at 840.

                Based on our review of appellants’ pleadings, we conclude that appellants did not

allege sufficient facts to affirmatively establish a waiver of the State’s sovereign immunity as to their

TTCA claims and, therefore, that the trial court did not err in granting the State’s Rule 91a motion

to dismiss those claims. See Tex. R. Civ. P. 91a. We overrule their first issue.9


Restarting of Deadlines

                In their fourth issue, appellants argue that the trial court erred by failing to restart the

notice and response deadlines according to Rule 91a.5(d). See id. R. 91a.5(d). That provision of the

rule provides that “an amended motion [to dismiss] filed in accordance with (b) restarts the time

periods in this rule.” See id. Relevant to this appeal, Rule 91a.5(b) provides that the movant may

file “an amended motion directed to the amended cause of action” when “the respondent amends the

challenged cause of action at least 3 days before the date of the hearing.” Id. R. 91a.5(b); see id.


          9
          Because our resolution of appellants’ first issue is dispositive of the trial court’s subject
matter jurisdiction over appellants’ TTCA claims, we do not address appellants’ second issue that
challenges an alternative ground for dismissing those claims—that they were barred by the
applicable statute of limitations. See Tex. R. App. P. 47.1, 47.4.

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R. 91a.3(b) (stating that “motion to dismiss must be . . . filed at least 21 days before the motion is

heard”), R. 91a.6 (entitling each party “to at least 14 days’ notice of the hearing on the motion

to dismiss”).

                Appellants filed their response to the State’s motion to dismiss and their second

amended petition on July 27, 2017; the State filed a reply to the response on July 31, 2017; and the

trial court held the hearing on the State’s motion on August 3, 2017. Appellants argue that the

State’s reply in effect amended its motion to dismiss because the reply addressed appellants’ claims

in their second amended petition and “brought in a host of new, tangentially-related issues” and thus

the reply restarted the time periods in Rule 91a. Appellants argue that they “were deprived of proper

notice and the opportunity to respond to the State’s newly-asserted issues.”

                Even if we assume without deciding that the trial court erred by proceeding with the

hearing on August 3, 2017, appellants have not addressed how the trial court’s failure to restart the

notice and response deadlines resulted in an improper judgment or their inability to properly present

their case on appeal. See Tex. R. App. P. 44.1(a) (“No judgment may be reversed on appeal on the

ground that the trial court made an error of law unless the court of appeals concludes that the error

complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented

the appellant from properly presenting the case to the court of appeals.”). The State raised sovereign

immunity in its motion to dismiss; thus, appellants were aware of this asserted ground for dismissal

when they amended their petition and filed their response.




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               On this record, we conclude that any error by the trial court in proceeding with the

hearing on the State’s motion to dismiss was harmless, and, on this basis, we overrule appellants’

fourth issue. See id.


Dismissal with Prejudice

               In their fifth issue, appellants argue that the trial court erred by dismissing their claims

with prejudice.   They argue that nothing in the plain language of Rule 91a “contemplates

the dismissal of a case with prejudice” and that as “a matter of equity” dismissal should be

without prejudice.

               When a trial court lacks subject matter jurisdiction because of sovereign immunity

and a plaintiff has been provided a reasonable opportunity to amend its pleadings but has not alleged

facts that would constitute a waiver, dismissal with prejudice is appropriate. See Harris County

v. Sykes, 136 S.W.3d 635, 639–40 (Tex. 2004) (citing “line of decisions stating that dismissal with

prejudice is appropriate when a trial court lacks subject matter jurisdiction because of the sovereign

immunity bar” and stating, in context of plaintiff who was subject to plea to jurisdiction and

provided reasonable opportunity to amend, that “[s]uch a dismissal is with prejudice because

a plaintiff should not be permitted to relitigate jurisdiction once the issue has been

finally determined”); Stallworth v. Ayers, 510 S.W.3d 187, 188–89, 194 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (affirming order dismissing claims with prejudice under Rule 91a because

claims were barred as matter of law); Odam v. Texans Credit Union, No. 05-16-00077-CV,

2017 Tex. App. LEXIS 8189, at *20 (Tex. App.—Dallas Aug. 24, 2017, no pet.) (mem. op.)

(affirming order dismissing case with prejudice under Rule 91a); cf. Tex. R. Civ. P. 91a.5(a)

                                                   20
(prohibiting court from ruling on Rule 91a motion to dismiss “if, at least 3 days before the date of

the hearing, the respondent files a nonsuit of the challenged cause of action”).

               After the State filed its Rule 91a motion to dismiss on the ground of sovereign

immunity, appellants filed an amended petition, but they have not alleged facts that would constitute

a waiver of sovereign immunity or made a suggestion that would cure the jurisdictional defect in

their pleadings. See Koseoglu, 233 S.W.3d at 840; Sykes, 136 S.W.3d at 639–40. Thus, we conclude

that dismissal with prejudice was proper and overrule appellants’ fifth issue.


                                            Conclusion

               For these reasons, we affirm the trial court’s order granting the State’s motion to

dismiss and dismissing appellants’ suit against the State with prejudice.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Kelly

Affirmed

Filed: April 26, 2019




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