      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00538-CV



                    Susan Combs, Texas Comptroller of Public Accounts,
               and the Office of the Comptroller of Public Accounts, Appellants

                                                  v.

                 The Texas Civil Rights Project and Susan Canright, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
       NO. D-1-GN-11-001228, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                                DISSENTING OPINION


                I agree with and join the portion of Justice Field’s opinion in which he concludes that

a Rule 202 petition is not in itself a “suit,” that not all Rule 202 proceedings involving governmental

entities are “suits” that seek to control state action, and that pre-suit depositions of governmental

entities under Rule 202 are not, in wholesale, barred by sovereign immunity. I also agree with and

join the portion of the opinion in which Justice Field concludes that Rule 202 depositions may not

be used solely to investigate potential claims that are otherwise barred by sovereign immunity. I also

agree with and join the portion of the opinion in which Justice Field concludes that the pleading

requirements of Rule 202 are necessarily less stringent than those normally required to demonstrate

a trial court’s jurisdiction.

                However, I disagree with the conclusion that the trial court did not have

subject-matter jurisdiction over the Plaintiffs’ Rule 202 petition requesting a pre-suit deposition of
Comptroller Combs and a representative of the Comptroller’s Office. Accordingly, I respectfully

dissent from the majority’s judgment.

                When sovereign immunity is clearly implicated, it is reasonable to require that a

petitioner’s Rule 202 pleadings demonstrate that he is potentially entitled to some type of relief that

would not be barred by sovereign immunity. But I do not agree that the Plaintiffs have not met that

standard here. First, the Plaintiffs’ petition contains allegations that they are seeking, at least in part,

to discover “what measures must be implemented to prevent Comptroller Combs and her Office

from similarly violating the rights of millions of Texans in the future.” Such a request for

forward-looking relief sufficiently demonstrates, in my opinion, that the Plaintiffs may ultimately

seek prospective relief, injunctive or otherwise, if in fact they later file a lawsuit. Sovereign

immunity would not be a bar to such relief.

                Justice Field concludes that, as a matter of law, no such prospective relief could be

available, relying on “the undisputed evidence submitted by the State Defendants.” It appears that,

by considering evidence relevant to a jurisdictional issue (i.e., whether prospective relief could be

available), Justice Field is attempting to employ the type of analysis described in Texas Department

of Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004) (when plea to jurisdiction challenges

existence of jurisdictional facts, court considers relevant evidence submitted by parties when

necessary to resolve jurisdictional issue raised; if jurisdictional inquiry implicates merits of suit,

summary-judgment type standard is applied). But this type of analysis is incompatible with a court’s

decision on a Rule 202 petition. Unlike the plaintiff in a pending lawsuit, a Rule 202 petitioner has

not had the opportunity to conduct discovery that might uncover evidence to refute any evidence



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submitted by the potential deponent. Thus, applying what is essentially a “summary-judgment

standard” in the context of determining whether a Rule 202 petitioner might be entitled to a certain

type of relief gives a patently unfair advantage to the party resisting the deposition. I do not believe

that a Rule 202 petitioner should be denied an opportunity to take discovery merely because he is

presently unable to submit to the court the very type of evidence he seeks to discover.

                Moreover, I believe that even if Justice Field’s analysis were appropriate in this

context, the State Defendants have done nothing more than raise a fact issue with regard to whether

Comptroller Combs’s remedial actions are sufficient to preclude any possible prospective relief to

the Plaintiffs. Summary judgment may be based on the uncontroverted evidence of an interested

witness only if it is clear, positive, direct, otherwise credible, free from contradictions and

inconsistencies, and could have been readily controverted. See Tex. R. Civ. P. 166a(c). Here, the

State Defendants’ evidence could never be readily controverted by the Plaintiffs for the simple

reason that, if such evidence exists, the Plaintiffs have not had the opportunity to discover it. I would

therefore decline to characterize the State Defendants’ evidence as “undisputed” as that word is

generally understood in the summary-judgment context.

                I disagree that the trial court lacked subject-matter jurisdiction over the Plaintiffs’

Rule 202 petition for the additional reason that the Plaintiffs might ultimately decide to file an ultra

vires claim against Comptroller Combs or some other State officer or employee in their individual

capacity.1 It is not clear from the Plaintiffs’ Rule 202 petition whether they contemplate suing


       1
         The term “ultra vires,” which simply means “unauthorized” or “beyond one’s power,”
Bryan A. Garner, A Dictionary of Modern Legal Usage 895 (2nd ed. 1995), is broad enough to
encompass claims against officials and employees of the State in their individual capacities as well

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Comptroller Combs in her official or individual capacity, or both. When a petition in a pending

lawsuit does not clearly specify whether the government official is sued in her official or individual

capacity, courts look to the “course of proceedings” for an indication of the nature of the liability

sought to be imposed. See City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 2009) (quoting

Kentucky v. Graham, 473 U.S. 159, 167 (1985)). But in a Rule 202 petition, there is no existing

“course of proceedings” to consider, and at this stage of the present case it is impossible to know

whether the Plaintiffs will decide to sue Comptroller Combs or others in their individual capacity.

See id. at 373 n.7 (quoting 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.”)). In that instance, sovereign immunity would not be

implicated at all.2

                Moreover, even if I agreed that the Plaintiffs have failed to sufficiently allege facts

demonstrating their possible entitlement to some relief not barred by sovereign immunity, I believe

that this cause should be remanded to the trial court to give the Plaintiffs an opportunity to amend

their petition in order to plead additional jurisdictional facts. See Texas A & M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (“[A] plaintiff deserves ‘a reasonable opportunity to

amend’ unless the pleadings affirmatively negate the existence of jurisdiction.”) (quoting Harris


as their official capacities.
        2
           While government employees may, under certain circumstances, be entitled to “official
immunity,” such immunity is an affirmative defense, and the burden is on the government employee
to establish all elements of the defense. See, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650,
653 (Tex. 1994).

                                                   4
Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004)). First, there is nothing in the Plaintiffs’ Rule 202

petition itself that “affirmatively negates” the possibility of obtaining prospective relief or the

possibility that the Plaintiffs may ultimately decide to sue Comptroller Combs in her individual

capacity. Justice Field concludes, however, that the “allegations presented by the Plaintiffs in their

rule 202 petition, together with the evidence presented by the State Defendants,” affirmatively

negates the possibility of potential prospective relief. Slip op. at 15 (emphasis added).3 I have found

no case in which the decision whether to allow a plaintiff the opportunity to amend his petition to

allege sufficient jurisdictional facts has been based on evidence, much less evidence submitted by

the defendant. Rather, courts look to the plaintiff’s pleadings, construed in the light most favorable

to the plaintiff, to determine if a pleading defect is “incurable”:4


        If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
        court’s jurisdiction but do not affirmatively demonstrate incurable defects in
        jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be
        afforded the opportunity to amend. 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.


Miranda, 133 S.W.3d at 226-27 (citation omitted). Because the Plaintiffs’ Rule 202 petition itself

does not allege facts that demonstrate incurable jurisdictional defects, they should be given an

opportunity to amend their pleadings to try to cure any pleading insufficiency.

       3
        Justice Field’s opinion does not address the possibility of a suit against Comptroller Combs
or some other State officer in his or her individual capacity.
       4
          I acknowledge that if the plaintiff himself submits evidence relevant to the jurisdictional
inquiry, it might be appropriate to consider that evidence in deciding the opportunity-to-amend
question, but the evidence submitted by the Plaintiffs here does not in any way show that prospective
relief would be unobtainable.

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               Thus, I would hold that the trial court had subject-matter jurisdiction over the Rule

202 proceedings, and, in any event, that the Plaintiffs should be given an opportunity to amend.



                                             _____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: August 29, 2013




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