                            NUMBER 13-13-00396-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

TEXAS DEPARTMENT OF                                                         Appellant,
PUBLIC SAFETY,

                                           v.

MICHAEL L. BERNOUDY JR.,                                                    Appellee.


                   On appeal from the 201st District Court
                         of Travis County, Texas.


                         MEMORANDUM OPINION
                Before Justices Garza, Perkes and Longoria
                  Memorandum Opinion by Justice Garza
      Appellee, Michael L. Bernoudy Jr., filed suit seeking a declaration that he is not

required to register as a sex offender under chapter 62 of the code of criminal procedure.

See TEX. CODE CRIM. PROC. ANN. ch. 62 (West, Westlaw through 2013 3d C.S.). The trial

court denied a motion to dismiss for lack of jurisdiction filed by appellant, the Texas
Department of Public Safety (“DPS”), and it later granted summary judgment in favor of

Bernoudy.      DPS argues on appeal1 that the trial court (1) lacked subject matter

jurisdiction, and (2) erred by rendering summary judgment in favor of Bernoudy. We

reverse and render a judgment of dismissal.

                                          I. BACKGROUND

       On May 26, 1998, Bernoudy was convicted in Louisiana of the felony offense of

carnal knowledge of a juvenile. At the time, Louisiana law defined the offense as follows:

       Carnal knowledge of a juvenile is committed when: . . . [a] person over the
       age of seventeen has sexual intercourse, with consent, with any person of
       the age of twelve years or more, but under the age of seventeen years,
       when there is an age difference of greater than two years between the two
       persons and the victim is not the spouse of the offender . . . .

1995 La. Sess. Law Serv. Act 241 (West) (current version at LA. REV. STAT. ANN. § 14:80

(West, Westlaw through 2013 R.S.)).                Bernoudy was sentenced to two years’

imprisonment.2

       After completing his sentence in May of 2000, Bernoudy received a “first offender

pardon” pursuant to Louisiana law. See LA. REV. STAT. ANN. § 15:572(B)(1) (West,

Westlaw through 2013 R.S.) (“A first offender never previously convicted of a felony shall

be pardoned automatically upon completion of his sentence without a recommendation

of the Board of Pardons and without action by the governor.”).

       Bernoudy then sought expunction of his arrest and conviction records.                       On



       1  This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).

         2 Bernoudy states in his petition that he was sentenced to one year of community supervision.

However, a letter from the Louisiana Department of Public Safety and Corrections, which was attached to
Bernoudy’s summary judgment motion, states that he was sentenced to two years’ imprisonment. In any
event, it is undisputed that Bernoudy completed his sentence in May of 2000.

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December 4, 2000, the First Judicial District Court of Caddo Parish, Louisiana, rendered

an order expunging the records of Bernoudy’s 2008 arrest and conviction. See LA. REV.

STAT. ANN. § 44:9(B)(1) (West, Westlaw through 2013 R.S.).3 On September 27, 2007,

the same court rendered an order denying a petition for writ of mandamus brought by

Bernoudy4 and instead declaring that the December 4, 2000 expunction order was “an

absolute nullity under Louisiana law and has no legal effect.”5

        After he completed his sentence, Bernoudy moved to Harrison County, Texas. He

filed the instant suit in 2009, seeking a “judgment exempting him from having to register

as a sex offender and relieving him of all registration requirements.”6 DPS filed a “Motion




        3   The Louisiana statute governing expunction of records states:

        Any person who has been arrested for the violation of a felony offense . . . may make a
        written motion to the district court for the parish in which he was arrested for the
        expungement of the arrest record if:

        (a)       The district attorney declines to prosecute, or the prosecution has been instituted,
                  and such proceedings have been finally disposed of by acquittal, dismissal, or
                  sustaining a motion to quash; and

        (b)       The record of arrest and prosecution for the offense is without substantial probative
                  value as a prior act for any subsequent prosecution.

LA. REV. STAT. ANN. § 44:9(B)(1) (West, Westlaw through 2013 R.S.). It is unclear whether or how
Bernoudy’s first offender pardon allowed him to seek expunction under this statute. See id. § 44.9(b)(1)(a).

        4
       The record does not indicate what specific relief Bernoudy requested in his petition for writ of
mandamus in the Louisiana trial court.

          5 We note that, under Louisiana law, a “first offender pardon” does not relieve a person of the duty

to register as a sex offender in that state. See LA. REV. STAT. ANN. § 15:572(B)(2) (West, Westlaw through
2013 R.S.) (“No person convicted of a sex offense as defined in R.S. 15:541 . . . shall be exempt from the
registration requirements of R.S. 15:542.1 et seq., as a result of a pardon under the provisions of this
Subsection.”); id. § 15:541(24)(a) (West, Westlaw through 2013 R.S.) (defining “sex offense” as including
“deferred adjudication, adjudication withheld, or conviction for the perpetration or attempted perpetration
of[, inter alia,] R.S. 14:80 (felony carnal knowledge of a juvenile)”).

         6 Bernoudy initially filed suit against the Harrison County District Attorney and the Texas State

University Police Department in the 71st District Court in Harrison County. He later non-suited those
defendants, named the DPS as a defendant, and obtained a transfer of the case to the 201st District Court
in Travis County.

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to Dismiss for Lack of Jurisdiction” asserting that Bernoudy’s suit was barred by the

doctrine of sovereign immunity.        Bernoudy filed a motion for summary judgment

contending that he was entitled to judgment as a matter of law. The trial court denied

both motions.

       Meanwhile, Bernoudy continued to litigate the validity of his expunction in

Louisiana. Eventually, on January 9, 2013, the Louisiana trial court reversed itself again,

rendering an order declaring the 2000 expunction order to be valid and stating that “the

September 27, 2007 order denying [Bernoudy]’s writ of mandamus had no effect on the

validity of the aforementioned expungement.”

       On January 17, 2013, Bernoudy filed a second motion for summary judgment in

the instant case, this time including the newly-issued order from the Louisiana court

declaring his expunction valid. DPS responded by arguing that Bernoudy is not exempt

from registration because his pardon was automatic and was not based on a finding of

innocence. See TEX. CODE CRIM. PROC. ANN. art. 62.002 (providing that a duty to register

as a sex offender is not affected by a pardon unless the pardon is based on “subsequent

proof of innocence”). The trial court granted Bernoudy’s motion and rendered summary

judgment declaring that he is not required to register as a sex offender under article 62.

This appeal followed.

                                       II. JURISDICTION

       By its first issue, DPS argues that it is immune to Bernoudy’s suit and, therefore,

the trial court erred in denying its motion to dismiss for lack of jurisdiction.




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A.      Standard of Review

        Whether a trial court has subject matter jurisdiction and whether the pleader has

alleged facts that affirmatively demonstrate the trial court’s subject matter jurisdiction are

questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74

S.W.3d 849, 855 (Tex. 2002).

        The plaintiff has the initial burden to plead facts affirmatively showing that the trial

court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth

2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the

pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda,

133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.—

Fort Worth 2004, pet. denied).7

B.      Applicable Law

        The doctrine of sovereign immunity provides that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.” Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,

769 (1847)). The doctrine is applicable to agencies of state government such as the DPS.

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

        In Texas, sovereign immunity has two components: (1) immunity from liability,


        7  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, even when the evidence implicates the merits of the cause of action. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 555 (Tex. 2000); see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). Here, DPS’s motion
to dismiss for lack of jurisdiction challenges the sufficiency of Bernoudy’s pleadings, not the existence of
jurisdictional facts. Therefore, we consider only the pleadings in determining the jurisdiction issue.

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which bars enforcement of a judgment against a sovereign entity, and (2) immunity from

suit, which bars suit against the entity altogether. Tooke, 197 S.W.3d at 332. Immunity

from liability is an affirmative defense that must be pleaded or else is waived. Kinnear v.

Tex. Comm’n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000). Immunity from suit, on

the other hand, deprives a court of subject matter jurisdiction. Miranda, 133 S.W.3d at

224. Sovereign immunity from suit may be waived only by “clear and unambiguous”

statutory language. Id. at 332–33; see TEX. GOV’T CODE ANN. § 311.034 (West, Westlaw

through 2013 3d C.S.) (“In order to preserve the legislature’s interest in managing state

fiscal matters through the appropriations process, a statute shall not be construed as a

waiver of sovereign immunity unless the waiver is effected by clear and unambiguous

language.”).

       The Uniform Declaratory Judgments Act (“UDJA”) provides that:

       A person interested under a deed, will, written contract, or other writings
       constituting a contract or 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
       instrument, statute, ordinance, contract, or franchise and obtain a
       declaration of rights, status, or other legal relations thereunder.

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West, Westlaw through 2013 3d C.S.).

Certain claims brought under the UDJA, such as those alleging that a state official acted

without legal or statutory authority, are not barred by immunity because they merely seek

to compel state officers to act within their official capacity and do not attempt to subject

the State to liability. See IT–Davy, 74 S.W.3d at 855. However, the UDJA is not a general

waiver of sovereign immunity and generally does not alter a trial court’s jurisdiction. Tex.

Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Rather, the

UDJA is “merely a procedural device for deciding cases already within a court's

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jurisdiction.” Id. (citing Tex. Ass’n of Bus., 852 S.W.2d at 444).

C.      Analysis

        In its motion to dismiss for lack of jurisdiction, DPS argued that (1) Bernoudy has

not alleged facts that would support a declaratory judgment action against DPS, and (2)

he did not otherwise establish that DPS’s immunity had been waived. We agree.

        Bernoudy’s amended petition, filed on May 18, 2010, generally sets forth the facts

as recited above. However, the petition does not explicitly allege that the trial court has

subject matter jurisdiction with respect to his claims against DPS, nor does it refer to any

statute which purports to waive DPS’s sovereign immunity, such as the UDJA.8

        Even if we were to construe Bernoudy’s claims as a request for declaratory relief

under the UDJA, the facts he has alleged, taken as true, see Miranda, 133 S.W.3d at 228,

do not establish the trial court’s subject matter jurisdiction. “[T]he UDJA does not waive

the state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights

under a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex.

2011); see City of McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 112 (Tex. App.—

Dallas 2013, no pet.); Boll v. Cameron Appraisal Dist., No. 13-11-00750-CV, 2013 WL

4187756, at *2 (Tex. App.—Corpus Christi Aug. 15, 2013, no pet.). In Sefzik, the Texas

Supreme Court noted that “the state may be a proper party to a declaratory judgment

action that challenges the validity of a statute.” 355 S.W.3d at 622. The Legislature

“clear[ly] and unambiguous[ly]” waived immunity for such suits “because the UDJA




        8 In its motion to dismiss for lack of jurisdiction, DPS states that Bernoudy “add[ed], in his second

supplemental petition, a claim for declaratory relief.” However, no “second supplemental petition” appears
in the record before this Court. Accordingly, we consider Bernoudy’s amended petition to be his live
pleading.


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expressly requires joinder of the governmental unit” in those cases. Id. at 622 n.3 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (“In any proceeding that involves the

validity of a municipal ordinance or franchise, the municipality must be made a

party . . . .”)). The plaintiff in Sefzik, however, did not challenge the validity of a statute;

rather, he challenged the state’s actions under it. See id. at 622. Therefore, there was

no express waiver of immunity with respect to his claim. See id. Similarly, to the extent

Bernoudy asserts a viable declaratory judgment claim, he is challenging DPS’s actions

under chapter 62, not the validity of the statute itself. And, while the UDJA does waive

immunity for suits alleging that state officials acted without legal or statutory authority, see

IT–Davy, 74 S.W.3d at 855, Bernoudy makes no such allegations in this case. Cf. Tex.

Dep’t of Pub. Safety v. Anonymous Adult Tex. Resident, 382 S.W.3d 531, 532 (Tex.

App.—Austin 2012, no pet.) (affirming trial court’s determination that appellee did not

have a “reportable conviction” for purposes of sex offender registration).9

        Moreover, even if Bernoudy’s petition did challenge the validity of chapter 62 or

allege that a DPS official acted without legal authority, his suit would only be viable against

the state official in his or her official capacity, not against the agency itself. See Sefzik,

355 S.W.3d at 621 (concluding that “sovereign immunity bars UDJA actions against the

state and its political subdivisions absent a legislative waiver”); City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009) (holding that suits alleging ultra vires actions by




        9  In DPS v. Anonymous Adult Texas Resident, the Austin court of appeals did not discuss the
jurisdiction issue. See 382 S.W.3d 531, 533–39 (Tex. App.—Austin 2012, no pet.). However, the plaintiff
in that case, unlike Bernoudy, specifically alleged that DPS had acted contrary to law in determining that
he was required to register under chapter 62. See id. at 532 (noting that the plaintiff “complied with the
registration requirement, but also appealed the DPS’s determination to the district court in Travis County”).
Here, Bernoudy did not allege that DPS took any action or made any determination with respect to his duty
to register as a sex offender.

                                                     8
government officials “cannot be brought against the state, which retains immunity, but

must be brought against the state actors in their official capacity”).

       For the foregoing reasons, we conclude that Bernoudy did not satisfy his initial

burden to plead facts affirmatively showing that the trial court has jurisdiction. See Tex.

Ass’n of Bus., 852 S.W.2d at 446. We further find, given the fact that no state actors were

sued, that the defects in Bernoudy’s pleadings are incurable and so he need not be given

the opportunity to replead.       See 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.”); Boll, 2013 WL 4187756,

at *2 (declining to give opportunity to replead because “[a]ppellants did not sue any state

officials”). DPS’s first issue is sustained.

                                       III. CONCLUSION

       In light of our finding that the trial court lacked subject matter jurisdiction, we do

not consider DPS’s second issue, arguing that the trial court erred in granting summary

judgment to Bernoudy on the merits of his claim. See TEX. R. APP. P. 47.1. We reverse

the trial court’s judgment and render judgment dismissing Bernoudy’s suit for lack of

jurisdiction.


                                                   DORI CONTRERAS GARZA,
                                                   Justice

Delivered and filed the
17th day of July, 2014.




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