                                                                                        ACCEPTED
                                                                                   07-14-00199-cv
                                                                       SEVENTH COURT OF APPEALS
                                                                                AMARILLO, TEXAS
                                                                              4/10/2015 5:06:53 PM
                                                                                 Vivian Long, Clerk


                          No. 07-14-00199-CV
           ________________________________________________
                                                           FILED IN
                                                    7th COURT OF APPEALS
                         IN THE COURT OF APPEALS      AMARILLO, TEXAS
                                                    4/10/2015 5:06:53 PM
                  FOR   THE SEVENTH JUDICIAL DISTRICT VIVIAN LONG
                                                            CLERK
                          AMARILLO, TEXAS
          _________________________________________________

                  BRIAN RUSSELL AND RONALD RUMPF,
                              Appellants,

                                       v.

             TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                Appellee.
          _________________________________________________
               On Appeal From the 47th Judicial District Court
                         Of Potter County, Texas
          _________________________________________________

                   Trial Court Cause No. V-101657-00-A
          _________________________________________________

                      APPELLEE TDCJ’S BRIEF
          _________________________________________________

KEN PAXTON                                            KAREN MATLOCK
Attorney General of Texas                        Assistant Attorney General
                                   Chief, Law Enforcement Defense Division

CHARLES E. ROY                                    MARCUS T. SANDERS*
First Assistant Attorney General                  Assistant Attorney General
                                             P.O. Box 12548, Capitol Station
JAMES E. DAVIS                                          Austin, Texas 78711
Deputy Attorney General for Civil Litigation             Tel (512) 463-2080
                                                         Fax (512) 936-2109
                    ATTORNEYS FOR DEFENDANT
                             *Attorney-in-charge
                                        TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................ii

INDEX OF AUTHORITIES........................................................................................iii

I.       STATEMENT OF THE CASE………………………………………............ 2

II.      STATEMENT ON ORAL ARGUMENT ......................................................... 4

III.     ISSUES PRESENTED ......................................................................................5

IV.      STATEMENT OF FACTS ................................................................................ 6

V.       SUMMARY OF THE ARGUMENT ................................................................ 7

ARGUMENT ...............................................................................................................8

         Reply to Issue 1: The trial court did not have subject matter jurisdiction over
         the present suit so the error, if any, is harmless ................................................ 8

         Reply to Issue 2: The trial court did not error in granting Appellee’s Second
         Plea to the Jurisdiction .......................................................................................9

              A. Appellant failed to allege facts sufficient to support a claim under
              Article 1, Section 17 ....................................................................................10

              B. Appellant failed to allege facts sufficient to support a claim under
              Article 1, Section 19 ....................................................................................12

         Reply to Issue 3: The trial court did not err in not allowing Appellants to re-
         amend their petition ...........................................................................................16

VI.      PRAYER............................................................................................................19

RULE 9.4(i) CERTIFICATION .................................................................................. 20

NOTICE OF FILING ..................................................................................................20

CERTIFICATE OF SERVICE ....................................................................................20

                                                           ii
                                INDEX OF AUTHORITIES
Cases

Aguilar v. Chastain, 923 S.W.2d 740 (Tex. App.—Tyler 1996, writ denied) ........16

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ....................................8

Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910 (Tex. 1960)............................10

City of DeSoto v. White, 288 S.W.3d 389 (Tex. 2009) ..............................................8

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ............................... 13, 14

City of Houston v. Boyle, 148 S.W.3d 171
            (Tex. App.—Houston [1st Dist.] 2004, no pet.) ..................................11

City of Houston v. Rhule, 417 S.W.3d 440 (Tex. 2013) ............................................8

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) .........................................14

Fernandez v. T.D.C.J., 341 S.W.3d 6 (Tex. App.—Waco 2010, no pet.) ...............12

Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013) ...............................8

Gen. Servs. Comm'n v. Little–Tex Insulation Co.,
            39 S.W.3d 591 (Tex. 2001) .......................................................... 10, 11

Hammonds v. Camp, No. 07–03–0496–CV,
          2004 WL 769373 (Tex. App.—Amarillo 2004, no pet.) .....................16

In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010) ..................................8

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).......................... 10, 11



                                                  iii
McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304
          (Tex. App.—Amarillo, 2014, no pet.) .................................................11

Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857
             (Tex. App.—Amarillo 1993, writ denied) ...........................................13

Retzlaff v. Tex. Dep't of Criminal Justice, 135 S.W.3d 731
              (Tex. App.—Houston [1st Dist.] 2003, no pet.) ........................... 11, 12

Save Our Springs Alliance v. City of Austin,
           149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.) ...........................18

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422 (2007) ..............8

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546 (Tex. 2004) .........................11

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ...............13

Tex. Dep’t of Criminal Justice v. Jackson, No. 01-07-00477-CV, 2008
            WL 2209350 (Tex. App.—Houston [1st Dist.] 2008, no pet.)............12

Tex. Dep't of Parks & Wildlife v. Miranda,
              133 S.W.3d 217 (Tex. 2004) ................................................... 9, 10, 18

Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) .................. 13, 15

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (1993) ....................9

Texas Dep't of Trans. v. Jones, 8 S.W.3d 636 (Tex. 1999) .......................................9

Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011) ........13

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............................................................15



                                                   iv
Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser,
            140 S.W.3d 351 (Tex. 2004) ...........................................................8, 10

Villarreal v. Harris County, 226 S.W.3d 537
              (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..................................11

Ware v. Miller, 82 S.W.3d 795 (Tex. App.—Amarillo 2002, pet. denied) .............13




                                                  v
                               No. 07-14-00199-CV

             ________________________________________________

                         IN THE COURT OF APPEALS

                   FOR THE SEVENTH JUDICIAL DISTRICT

                             AMARILLO, TEXAS
             _________________________________________________

                   BRIAN RUSSELL AND RONALD RUMPF,
                               Appellants,

                                         v.

                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                   Appellee.
             _________________________________________________
                  On Appeal From the 47th Judicial District Court
                            Of Potter County, Texas
             _________________________________________________

                      Trial Court Cause No. V-101657-00-A
             _________________________________________________

                         APPELLEE TDCJ’S BRIEF
             _________________________________________________

TO THE HONORABLE JUSTICES OF THE SEVENTH COURT OF
APPEALS:

      Appellee Texas Department of Criminal Justice, through the Attorney

General for the State of Texas, files this brief in response to the brief filed by

Appellants. In support of the trial court’s ruling, Appellee respectfully offers the

following:
                      I.      STATEMENT OF THE CASE

      Appellants Brian Russell and Ronald Rumpf are inmates of the Texas

Department of Criminal Justice (“TDCJ”) and were incarcerated at the Clements

Unit at all times relevant to his lawsuit. Appellants, pro se, initially brought suit on

August 8, 2013, pursuant to the Texas Tort Claims Act, the Administrative

Procedure Act, and the Uniform Declaratory Judgment Act (“UDJA”) seeking

declaratory relief and monetary damages. CR at 10-14. On October 16, 2013,

Appellee TDCJ filed its first plea to the jurisdiction asserting its entitlement to

sovereign immunity. CR at 31-39. On December 10, 2013, Appellants filed a

response to Appellee’s plea to the jurisdiction. CR at 53-85. On January 27, 2014,

Appellants filed their first amended petition pursuant to the Uniform Declaratory

Judgment Acts and Article 1, Sections 17 and 19 of the Texas Constitution for

declaratory, injunctive and monetary relief. CR at 91-160. On February 18, 2014,

the trial court issued an order stating that it did not intend to further consider or

rule on the pending plea to the jurisdiction unless it was re-urged in the context of

the allegations of the amended petition. CR at 161. On March 20, 2014, Appellee

TDCJ filed its second plea to the jurisdiction again asserting sovereign immunity.

CR at 165-71. On March 24, 2014, Appellee TDCJ filed a motion to dismiss

pursuant to Texas Rule of Civil Procedure 91a asserting that Plaintiff’s claims had

no basis in law. CR at 175-83. On April 16, 2014, Appellants filed its responses to


                                           2
both the plea to the jurisdiction and the Rule 91a motion to dismiss. CR at 187-

200, 202-11. On May 6, 2014, the trial court signed two separate final judgment

dismissing the cause of action with prejudice in response to both the plea to the

jurisdiction and the Rule 91a motion to dismiss. CR at 212, 213.




                                         3
                 II.    STATEMENT ON ORAL ARGUMENT

      Appellee TDCJ contends that the facts and legal arguments are adequately

presented within the briefs and record and that the dispositive issue has already

been authoritatively decided. As such, oral argument would not significantly aid

the decisional process in this case. Tex. R. App. P. 39.1.




                                          4
                       III.   ISSUES PRESENTED

1. Whether the trial court erred in entering two final judgments?

2. Whether the trial court erred in granting Appellee TDCJ’s Second Plea to

   the Jurisdiction?

3. Whether the trial court erred in dismissing Appellants’ claims without

   allowing them an opportunity to re-amend?




                                      5
                        IV.    STATEMENT OF FACTS

      Appellants claim that on May 19, 2011, Warden Baker of the Clements Unit

initiated a sham Safe Prisons investigations against Appellants and three other

offenders. Pending the investigation, the offenders were temporarily housed in

solitary confinement. Additionally, as a result of the housing transfer the offenders’

property was searched and inventoried. Appellants alleged that some of their

personal property was confiscated as contraband and they received disciplinary

cases due to the contraband. Hearings were held on June 6, 2011, where both

Appellants were found guilty of possessing contraband. Appellants claimed that

although they attempted to reacquire their property in accordance with TDCJ

policy, the confiscated items were eventually disposed of without their input.

      Appellants claim that they were denied due process in regards to their

placement in solitary confinement on May 19th and the disciplinary hearing that

was held on June 11th. Furthermore, they claim the disposition of the confiscated

property amounted to a violation of their property rights under the Texas

Constitution.




                                          6
                   V.     SUMMARY OF THE ARGUMENT

      In regards to the first issue, Appellee contends that the error, if any,

committed by the trial court in entering two final judgments was harmless.

Whether the order of dismissal granting the plea to the jurisdiction was signed first

or second is immaterial because without subject matter jurisdiction, the court did

not have the power to address the merits of the case as presented in the Rule 91a

motion.

      As to issues two and three, Appellee contends that Appellants failed to, and

are unable to, allege facts sufficient to overcome Appellee’s sovereign immunity.

Except in limited circumstances, the Texas Constitution does not create a private

cause of action and the UDJA does not waive the state's sovereign immunity.

Additionally, Appellants’ have had ample time and opportunities to amend their

petition yet it still affirmatively negates the existence of jurisdiction. No amount of

amended pleading would bring Appellants’ suit within the court’s jurisdiction.




                                          7
                                VI.   ARGUMENT

Reply to Issue 1: The trial court did not have subject matter jurisdiction over
the present suit so the error, if any, is harmless.

      While it is correct that Texas Rule of Civil Procedure 301 mandates that

there be only one final judgment in a particular cause, Appellee contends that

because one of the judgments addressed subject matter jurisdiction, it is immaterial

at this point whether it was the first or second judgment.

      “Subject matter jurisdiction is ‘essential to a court's power to decide a case.’

” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (quoting

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)). “Without

jurisdiction the court cannot proceed at all in any cause; it may not assume

jurisdiction for the purpose of deciding the merits of the case.” Fin. Comm'n of

Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int'l Co. v.

Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)). “The failure of a

jurisdictional requirement deprives the court of the power to act (other than to

determine that it has no jurisdiction), and ever to have acted, as a matter of law.”

City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (quoting Univ. of Tex.

Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004)). Thus, “[a]

judgment is void if rendered by a court without subject matter jurisdiction.” In re

United Servs. Auto. Ass'n, 307 S.W.3d 299, 309 (Tex. 2010). Furthermore, because

subject matter jurisdiction is an issue that may be raised for the first time on

                                          8
appeal; it may not be waived by the parties. Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 445 (1993).

      If the trial court correctly determined that it did not have jurisdiction to hear

the case, then any decision on the merits would be void, regardless of whether the

judgment was signed first or second. Furthermore, because subject matter

jurisdiction may be raised for the first time on appeal, this Court has jurisdiction to

determine whether Appellants have plead facts sufficient to establish subject

matter jurisdiction to overcome Appellee’s sovereign immunity, regardless of

which judgment was signed first.

Reply to Issue 2: The trial court did not error in granting Appellee’s Second

Plea to the Jurisdiction.

      Subject-matter jurisdiction is essential for a court to have the authority to

resolve a case. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999).

To invoke the subject-matter jurisdiction of a court, the one bringing the claim

must allege facts that affirmatively demonstrate that the court has jurisdiction to

hear it. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). In considering the jurisdictional allegations contained in a petition, they are

to be construed liberally in the plaintiff's favor. Texas Ass'n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). To prevail on a plea to the

jurisdiction, a defendant must show an incurable jurisdictional defect apparent


                                          9
from the face of the pleadings that makes it impossible for the plaintiff's petition to

confer jurisdiction on the district court. Bybee v. Fireman's Fund Ins. Co., 331

S.W.2d 910, 914 (Tex. 1960). Courts must consider evidence when necessary to

decide jurisdictional issues. Miranda, 133 S.W.3d at 221. If the relevant evidence

is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law. Id. at 228. “Not only

may an issue of subject matter jurisdiction be raised for the first time on appeal by

the parties or by the court, a court is obliged to ascertain that subject matter

jurisdiction exists regardless of whether the parties have questioned it.”

Loutzenhiser, 140 S.W.3d at 358. Because subject matter jurisdiction presents a

question of law, the trial court's decision to grant a plea to the jurisdiction is

reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998).

A. Appellant failed to allege facts sufficient to support a claim under Article 1,

Section 17.

      The Texas Constitution provides that “[n]o person's property shall be taken,

damaged or destroyed for or applied to public use without adequate compensation

being made, unless by the consent of such person.” Tex. Const. art. I, § 17. Article

I, section 17 waives governmental immunity for actions seeking compensation

under that provision. Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d


                                          10
591, 598 (Tex. 2001).

      To establish a takings claim, a claimant must prove that (1) a governmental

entity intentionally performed certain acts, (2) that resulted in a “taking” of

property, (3) for public use. Gen. Servs. Comm'n, 39 S.W.3d at 598. When a

plaintiff fails to allege facts that would support a valid takings claim, governmental

immunity applies, and the trial court should grant a plea to the jurisdiction. Id. at

600. Whether particular facts are enough to constitute a taking is a question of law.

See Mayhew, 964 S.W.2d at 936.

      One whose property has been “taken, damaged, destroyed for, or applied to,

public use without adequate compensation” may bring an inverse condemnation

claim pursuant to Article I, section 17 to recover compensation for loss of the

property. See McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304, 312 (Tex. App.—

Amarillo, 2014, no pet.), Villarreal v. Harris County, 226 S.W.3d 537, 542 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (quoting City of Houston v. Boyle, 148

S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2004, no pet.)). The protection

applies to both real and personal property. See Retzlaff v. Tex. Dep't of Criminal

Justice, 135 S.W.3d 731 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(addressing application of protection to claim of theft of inmate's money). The key

consideration in assessing whether a particular taking was for a public use is

whether the public is bearing a cost for which it received a benefit. See Tarrant


                                         11
Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).

      Appellants claimed that Appellee, through its employees, confiscated and

disposed of their property in accordance with Administrative Directive-03.72, but

without their consent. Appellants have failed to allege, and are unable to establish

facts sufficient to state a claim that under Article I, section 17 that the confiscation

of their property was for public use. See Tex. Dep’t of Criminal Justice v. Jackson,

No. 01-07-00477-CV, 2008 WL 2209350 (Tex. App.—Houston [1st Dist.] 2008,

no pet.) (holding that a “disposition” is not a “taking” and that the plaintiff’s

allegation of subterfuge does not convert TDCJ's confiscating the items to

determine ownership into an allegation that TDCJ took them for public use), see

Retzlaff, 135 S.W.3d at 731 (holding that the plaintiff failed to state a legally

cognizable illegal takings claim when he made no claim and there was nothing in

the record to indicate that TDCJ was attempting to obtain a benefit for the public at

large.); Fernandez v. T.D.C.J., 341 S.W.3d 6 (Tex. App.—Waco 2010, no pet.)

Because the pleadings affirmatively negate the existence of jurisdiction, the court

did not dismiss for failure to state a cause of action under Article 1, section 17.

B. Appellant failed to allege facts sufficient to support a claim under Article 1,

Section 19.

      Similarly, Appellants have failed to allege facts sufficient to establish the

trial court had jurisdiction to hear the case. As stated above, Appellants brought


                                          12
their due process claims pursuant to the UDJA and Article 1, Section 19 of the

Texas Constitution for declaratory, injunctive and monetary relief. There is no

private cause of action under the state constitutional due process provision.

Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, 872-73 (Tex. App.—Amarillo

1993, writ denied); see also Ware v. Miller, 82 S.W.3d 795 (Tex. App.—Amarillo

2002, pet. denied).

      Similarly, there is no general right to sue a state agency for a declaration of

rights. Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.

2011). Appellant attempts to bring their claims under the UDJA in an attempt to

circumvent sovereign immunity. While it is true that the UDJA waives sovereign

immunity for certain claims, it is not a general waiver of sovereign immunity. City

of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009). It is “merely a

procedural device for deciding cases already within a court's jurisdiction.” Tex.

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

Furthermore, a litigant's couching its requested relief in terms of declaratory relief

does not alter the underlying nature of the suit. Heinrich, 284 S.W.3d at 370–71.

       Texas law provides “sovereign immunity bars UDJA actions against the

state and its political subdivisions absent a legislative waiver.” Tex. Dep't of

Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). However, Texas courts have

recognized the ultra vires exception that allows claims to be brought against a state


                                         13
official for nondiscretionary acts unauthorized by law. See Fed. Sign v. Tex. S.

Univ., 951 S.W.2d 401, 404 (Tex. 1997). These lawsuits are not against the state

and thus are not barred by sovereign immunity. Id. Furthermore, to assert a valid

ultra vires claim, the plaintiff “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.”

Heinrich, 284 S.W.3d at 372. Conversely, if the plaintiff alleges only facts

demonstrating acts within the officer's legal authority and discretion, the claim

seeks to control state action, and is barred by sovereign immunity. See id.

      In City of El Paso v. Heinrich, the plaintiff sued the City of El Paso and

various government officials alleging that the defendants had violated her statutory

rights when they altered her pension benefits. Heinrich, 284 S.W.3d at 369-70. She

sought to have the courts to declare that the defendants acted without authority in

taking such action. Id. In holding that the plaintiff could pursue her claims for

prospective relief against the state officials but not against the city and the other

governmental entities, the Supreme Court stated that suits to require state officials

to comply with statutory or constitutional provisions cannot be brought against the

state, which retains immunity, but must be brought against the state actors in their

official capacity. Id. at 372-73.

      Similarly, in Texas Dept. of Transp. V. Sefzik, the plaintiff brought suit


                                         14
against Texas Department of Transportation seeking declaration that certain

statutory provisions of the Administrative Procedure Act violated due process.

Sefzik, 355 S.W.3d at 618. In holding that the plaintiff failed to sue the correct

party, the Supreme Court pointed to its decision in Heinrich dismissing the

plaintiff’s claims seeking declaratory and injunctive relief against governmental

entities. Id. at 621. The Court stated that “[i]n so doing, we necessarily concluded

that the 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.” Id. It went on

to say that “the same claim could be brought against the appropriate state official

under the ultra vires exception, but the state agency remains immune.” Id.

      Appellants failed to sue the correct parties in the present suit. Appellants

filed suit against TDCJ, the state agency, and not the state officials whom they

claim are responsible for the ultra vires act. Furthermore, Appellants failed to

allege facts sufficient to bring a valid ultra vires claim. Courts generally accord

great deference to prison officials' adoption and execution of policies, regulations,

and practices relating to the preservation of internal order, discipline, and security

within the prison environment. Thornburgh v. Abbott, 490 U.S. 401, 407-08

(1989). Appellants do not complain of acts that are purely ministerial act, but

instead complain of a government officer’s exercise of discretion. The way that

searches are conducted and the determination of what is contraband and how it


                                         15
should be disposed of are decisions that are within the discretion of prison

officials. Moreover, courts have held that that a prison official's unauthorized

deprivation of an inmate's property is not a constitutional violation since the Texas

Legislature has provided an administrative remedy to pay a claim for lost or

damaged property. Hammonds v. Camp, No. 07–03–0496–CV, 2004 WL

769373*1 (Tex. App.—Amarillo 2004, no pet.); Aguilar v. Chastain, 923 S.W.2d

740, 743–44 (Tex. App.—Tyler 1996, writ denied). Accordingly, Appellants have

failed to overcome Appellee’s entitlement to sovereign immunity and have failed

to plead facts to bring this suit within the Court’s jurisdiction.

Reply to Issue 3: The trial court did not err in not allowing Appellants to re-

amend their petition.

      Appellants argue that the district court should have allowed them an

opportunity to amend their petition prior to granting Defendant’s Second Plea to

the Jurisdiction. As mentioned above, Appellant’s initially brought suit pursuant to

the Texas Tort Claims Act, the Administrative Procedure Act, and the Uniform

Declaratory Judgment Act (“UDJA”) seeking declaratory relief and monetary

damages. After Appellee filed its first plea to the jurisdiction on October 16, 2013,

Appellants moved for and were granted an extension of time to file a response with

a hearing by submission date of January 31, 2014. Appellants filed a response on

December 10, 2013 and moved for leave to amend their petition on January 27,


                                           16
2014. In the amended petition, Appellants brought dropped their Texas Tort

Claims Act and Administrative Procedure Act claims and instead brought the same

claims under the Uniform Declaratory Judgment Acts and Article 1, Sections 17

and 19 of the Texas Constitution seeking declaratory, injunctive and monetary

relief. Additionally, Appellants filed a supplemental response to Appellee’s first

plea to the jurisdiction on the same day pointing out their amended petition.

      On February 18, 2014, the trial court issued an order granting leave to

amend and stating that it did not intend to further consider or rule on the pending

plea to the jurisdiction unless it was re-urged in the context of the allegations of the

amended pleading. Appellee then filed its second plea to the jurisdiction on March

20, 2014. The trial court set the motion for a hearing by submission scheduled on

April 24, 2014. Appellants filed their response to Appellee’s second plea to the

jurisdiction and a motion for additional argument on April 16, 2014. They did not

file a second amended petition. The trial court signed the order dismissing the case

based on Appellee’s second plea to jurisdiction on May 6, 2014.

      In Appellants’ response to the second plea to the jurisdiction, they state that

Appellee’s ultimate success on the declaratory judgment argument is contingent on

Appellant’s success on the taking claims. As stated above, Appellants have failed

to state a valid claim under Article 1, Section 17 and have failed to allege how the

jurisdictional defects may be cured. This is because the defects are incurable. As


                                          17
the Supreme Court in Miranda stated “if the pleadings affirmatively negate the

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

allowing the plaintiff an opportunity to amend.” See Save Our Springs Alliance v.

City of Austin, 149 S.W.3d 674, 686 (Tex. App.—Austin 2004, no pet.).

Additionally, if a party has repleaded in an attempt to cure disputed jurisdictional

issues and if a court can ascertain the nature and issues of the controversy and the

evidence that probably would be relevant, that party is not entitled to an

opportunity to replead. See id. (citing Miranda, 133 S.W.3d at 231).

      Appellants previously amended their petition asserting new causes of actions

after Appellee’s first plea to the jurisdiction asserting sovereign immunity.

Appellants were put on notice again of the jurisdictional defects and Appellee’s

entitlement to sovereign immunity when Appellee filed its second plea to the

jurisdiction. Appellants still failed to cure the defects or even allege how they

could be cured. Appellants were given ample time and opportunities to attempt to

bring this suit within the court’s jurisdiction but have failed to do so. More

importantly, in accordance with Texas Rule of Procedure 63, Appellants could

have amended their petition at any time but they did not. As such, the court did not

err in dismissing the case for lack of jurisdiction.




                                           18
                                 VII. PRAYER

      ACCORDINGLY, Appellant has not presented this Court with any legally

sound argument to support his argument that trial court erred in dismissing the case

for lack of subject matter jurisdiction. Appellee respectfully recommends that the

judgment of the court below be affirmed.

                                      Respectfully submitted,

                                      KEN PAXTON
                                      Attorney General of Texas

                                      CHARLES E. ROY
                                      First Assistant Attorney General

                                      JAMES E. DAVIS
                                      Deputy Attorney General for Civil
                                      Litigation

                                      KAREN D. MATLOCK
                                      Assistant Attorney General
                                      Chief, Law Enforcement Defense Division

                                      /s/ Marcus T. Sanders
                                      MARCUS T. SANDERS
                                      Assistant Attorney General
                                      Texas State Bar No. 24089483

                                      P.O. Box 12548, Capitol Station
                                      Austin TX 78711-2548
                                      (512) 463-2080 / (512) 936-2109 Fax
                                      Marcus.Sanders@texasattorneygeneral.gov

                                      ATTORNEYS FOR APPELLEE TDCJ




                                        19
                            Rule 9.4 (i) Certification

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this brief, excluding those matters listed in Rule

94.(i)(1), is 3,046.

                                     /s/ Marcus T. Sanders
                                     MARCUS T. SANDERS
                                     Assistant Attorney General



                       NOTICE OF ELECTRONIC FILING

       I, MARCUS T. SANDERS, Assistant Attorney General of Texas, certify

that Appellee TDCJ’s Brief was filed in accordance with the File & Serve Xpress

System on April 10, 2015.

                                     /s/ Marcus T. Sanders
                                     MARCUS T. SANDERS
                                     Assistant Attorney General




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                         CERTIFICATE OF SERVICE

      I, MARCUS T. SANDERS, certify that a true copy of the above and

foregoing Appellee TDCJ’s Brief has been served by placing the same in the

United States Postal Service, postage prepaid, on April 10, 2015, addressed to:


Brian V. Russell
TDCJ-CID #00524618
William P. Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
Plaintiff Pro-Se

Ronald E. Rumpf, Jr.
TDCJ-CID #00695566
William P. Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
Plaintiff Pro-Se
                                      /s/ Marcus T. Sanders
                                      MARCUS T. SANDERS
                                      Assistant Attorney General




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