Opinion issued April 16, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-19-00444-CV
                            ———————————
                         BRYAN COLLIER, Appellant
                                         V.
                           BRYAN SUHRE, Appellee



                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                        Trial Court Case No. 92053-1



                                 OPINION

      Appellant, Bryan Collier, Executive Director of Texas Department of

Criminal Justice (“TDCJ”), challenges the trial court’s order denying his plea to the

jurisdiction in the suit brought against him by appellee, Bryan Suhre, a TDCJ inmate.
In one issue, Collier contends that the trial court erred in denying his plea because

Suhre failed to plead that Collier acted without legal authority or failed to perform a

purely ministerial act. We affirm the trial court’s order.

                                    Background

      Suhre is currently housed at the Ramsey 1 Unit. On June 5, 2017, Suhre sued

Collier and several other TDCJ officials1 seeking declaratory and injunctive relief

pursuant to the Uniform Declaratory Judgment Act.2

      In his suit, Suhre alleged that the Ramsey 1 Unit consists of approximately

eight wings and that each wing has an average population of 140 offenders. He

alleged that the offenders are housed in seventy cells, with two offenders to a cell,

and contain two metal beds, two lockers, a toilet, and a sink in a forty-five square

foot area. Suhre sought a declaration that

      the defendants are currently causing the overcrowding conditions on
      the Ramsey 1 Unit: (1) by stopping the continuous ingress and egress
      by locking the doors during waking hours forcing offenders to stand in
      an area offering approximately 7.5 square feet each; (2) by not building
      the dayroom space required onto each wing of the unit to provide the
      additional square footage required for each offender; (3) or in an
      alternate issue a Declaration that the conditions detailed and outlined in



1
      In addition to Collier, Suhre named Leonard Echessa, Regional III Director,
      Michael Butcher, Senior Warden of the Ramsey I Unit, and Richard Babcock,
      Assistant Warden of the Ramsey 1 Unit, as defendants. None of these individuals
      is a party to this appeal.
2
      See TEX. CIV. PRAC. & REM. CODE §§ 37.001–37.011.
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      the David Ruiz Memorandum agreement are binding upon the
      defendants.3

To his pleading, Suhre attached a copy of a memorandum agreement from a previous

prison litigation lawsuit and his Step 1 and Step 2 grievance forms.4

      On October 18, 2017, Collier and Michael Butcher, then Senior Warden of

the Ramsey 1 Unit, filed a plea to the jurisdiction seeking dismissal of Suhre’s

petition on the basis of sovereign immunity. In their plea, they alleged

      Suhre claims that the Defendants are not in compliance with
      stipulations entered in Ruiz v. Johnson, Civil Action No. H-78-987,
      United States District Court for the Southern District of Texas, Houston
      Division. However, a final judgment dismissing Ruiz was entered on
      June 17, 2002 (Exhibit 1). Therefore, the Defendants do not have a
      ministerial duty based upon Ruiz. Suhre has failed to delineate any
      ministerial duty to which the Defendants are noncompliant.
      Consequently, they are not acting ultra vires and are therefore entitled
      to sovereign immunity and the dismissal of Suhre’s petition.

      Regardless, the offenders at the Ramsey 1 Unit are not being subject to
      overcrowding. Recently, an electronic locking system was installed on
      the cell doors and offenders’ ingress and egress to and from their cells
      changed to hourly, which is in compliance with TDCJ policy. The

3
      In his petition, Suhre alleged that, as a result of federal rulings in Ruiz v. Procunier,
      Civil Action No. H-78-987-CA, TDCJ officials and a class of inmates entered into
      a memorandum agreement in 1985 (the “Ruiz memorandum”), which provided, in
      relevant part: “[T]he parties have reached the following agreement with respect to
      the provision of dayroom space in certain cellblocks at the . . . Ramsey I Unit. . . .
      In lieu of constructing additional dayroom space at the Ramsey I Unit, defendants
      shall effect the following procedures and improvements with respect to all general
      population cellblocks: . . . 3. All prisoners shall have continuous ingress and egress
      from their cells, and shall be permitted to lock and unlock their own cells, except
      during the hours all cells are locked for sleeping.”
4
      Collier does not contend that Suhre failed to exhaust his administrative remedies
      prior to filing suit. See TEX. CIV. PRAC. & REM. CODE §14.005.
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      common areas contain benches and tables for offenders to use. If none
      are available, they can walk around the common area, sit on the floor
      or go back to their cells when allowed, cells which contain[] televisions
      for use during daylight hours. During high traffic time, such as meals,
      offenders such as Suhre are moved as efficiently as possible, with
      security and safety as a first concern [Exhibit 2].

To their plea, they attached a copy of a 2002 final judgment in Ruiz v. Johnson and

Butcher’s affidavit, which included a copy of a TDCJ security memorandum

regarding new policies and procedures related to offender cell ingress and egress

effective June 15, 2017.

      On December 1, 2017, Suhre filed a response to the plea to the jurisdiction.

Suhre asserted that, even if the trial court found that it had no jurisdiction due to the

2002 judgment in Ruiz, it had jurisdiction under the ultra vires exception to the

general bar of sovereign immunity. Specifically, he alleged that the defendants were

in violation of Texas Administrative Code sections 259.430 and 261.330, which state

in part, “All single cells, multiple occupancy cells, and dormitories shall be provided

with day rooms.” Suhre asserted that there is no policy in place for day rooms at the

Ramsey 1 Unit, the “run” is not a day room but rather a common area that is crowded

when the doors are locked, and, contrary to defendants’ allegations, inmates are not

allowed to sit on the floor and are subject to disciplinary action if they do so.

      On January 5, 2018, Suhre filed a motion to dismiss Butcher, Babcock, and

Echessa and substitute the current TDCJ officials in those positions. On May 7,

2018, the trial court granted Suhre’s motion.
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      On October 4, 2018, Suhre filed a supplemental petition for declaratory

judgment alleging, among other things, that the defendants failed to provide a day

room and adequate cell space as required by sections 261.134 and 261.136 of the

Texas Administrative Code. Suhre alleged that the defendants’ actions fall within

the ultra vires exception to governmental immunity.

      On May 29, 2019, the trial court entered an order denying Collier’s plea to the

jurisdiction. This interlocutory appeal followed.

                                     Discussion

      In his sole issue, Collier contends that the trial court erred in denying his plea

to the jurisdiction because Suhre’s claims for declaratory and injunctive relief are

barred by governmental immunity. Specifically, Collier argues that Suhre failed to

plead that Collier, as Executive Director of TDCJ, acted without legal authority or

failed to perform a purely ministerial act and, therefore, Suhre’s allegations do not

come within the ultra vires exception to governmental immunity.

   A. Plea to the Jurisdiction

      A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction

to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

A government actor’s claim of immunity from suit is a challenge to the district

court’s subject matter jurisdiction. See Hous. Belt & Terminal Ry. Co. v. City of

Houston, 487 S.W.3d 154, 160 (Tex. 2016); Tex. Dep’t of Parks & Wildlife v.

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Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). The existence of subject matter

jurisdiction is a question of law that we review de novo. Hous. Belt, 487 S.W.3d at

160.

       In support of a plea to the jurisdiction asserting governmental immunity, a

defendant may challenge the plaintiff’s pleadings or it may challenge the existence

of jurisdictional facts. See City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 (Tex.

2009). “When a plea to the jurisdiction challenges the pleadings,” as here, “we

determine if the pleader has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause.” City of El Paso v. Heinrich, 284 S.W.3d 366, 378

(Tex. 2009) (quoting Miranda, 133 S.W.3d at 226). The plaintiff bears the burden

to allege facts affirmatively demonstrating that the trial court has subject matter

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

1993).

       In reviewing a plea to the jurisdiction, we construe the pleadings liberally in

favor of the pleader, take all factual assertions as true, and look to the pleader’s

intent. See City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex.

2015) (per curiam).      “If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and

the fact issue will be resolved by the fact finder.” Miranda, 133 S.W.3d at 227–28.

If the pleadings are not sufficient to demonstrate jurisdiction, an opportunity to re-

                                           6
plead should be given unless the pleadings affirmatively negate jurisdiction. See

Hous. Belt, 487 S.W.3d at 160 (citing Miranda, 133 S.W.3d at 226–27).

   B. Sovereign Immunity and the Ultra Vires Exception

      Sovereign immunity protects the State from being sued, and from liability for

money damages, unless the immunity has been waived. See Heinrich, 284 S.W.3d

at 369–70 (citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006)). Absent waiver, political subdivisions of the state are also entitled to

immunity, which is referred to as governmental immunity. See Reata Constr. Corp.,

197 S.W.3d at 374. Government officials sued in their official capacities generally

have the same immunity as their employer. See Franka v. Velasquez, 332 S.W.3d

367, 382–83 (Tex. 2011).

      The Uniform Declaratory Judgment Act (“UDJA”) is a remedial statute

designed “to settle and to afford relief from uncertainty and insecurity with respect

to rights, status, and other legal relations.”      TEX. CIV. PRAC. & REM. CODE

§ 37.002(b). It provides that “[a] person . . . whose rights, status, or other legal

relations are affected by a statute, municipal ordinance, contract, or franchise may

have determined any question of construction or validity arising under the . . . statute,

ordinance, contract, or franchise and obtain a declaration of rights, status, or other

legal relations thereunder.” Id. § 37.004(a). The UDJA, however, “does not enlarge




                                           7
a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not alter

a suit’s underlying nature.” Heinrich, 284 S.W.3d at 370.

       Although the UDJA is not a general waiver of immunity, it does waive

immunity for certain claims. See id. § 37.006(b); Texas Parks & Wildlife Dep’t v.

Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). In particular, claims brought under

the UDJA for declaratory or injunctive relief against actions taken by a governmental

official beyond his discretion or without legal authority, known as ultra vires actions,

do not implicate governmental immunity. See Hous. Belt, 487 S.W.3d at 158. In

other words, if an act is ultra vires, it is done outside of the powers and

responsibilities of the State, and a challenge to the act is not a challenge to the State

and its officers in the performance of their duty. See Heinrich, 284 S.W.3d at 372.

An official who commits an ultra vires act is not immune from suit because “[a] state

official’s illegal or unauthorized actions are not acts of the State.” Id. at 370 (quoting

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997)).

       To fall within the ultra vires exception, “a suit must not complain of a

government officer’s exercise of discretion, but rather must allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely

ministerial act.” Hous. Belt, 487 S.W.3d at 161 (quoting Heinrich, 284 S.W.3d at

372). “Ministerial acts are those ‘where the law prescribes and defines the duties to

be performed with such precision and certainty as to leave nothing to the exercise of

                                             8
discretion or judgment.’” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex.

2015) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).

Discretionary acts, on the other hand, require the exercise of judgment and personal

deliberation. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex.

2004). “[U]ltra vires suits do not attempt to exert control over the state—they

attempt to reassert the control of the state.” Heinrich, 284 S.W.3d at 372. Stated

differently, these suits do not seek to alter government policy but rather to enforce

existing policy. Id. “[I]t is clear that suits to require state officials to comply with

statutory or constitutional provisions are not prohibited by sovereign immunity[.]”

Id.

      C. Analysis

        Collier contends that Suhre has failed to articulate a ministerial duty with

which Collier is noncompliant. In support of his contention, Collier asserts that

Suhre’s claim that Collier is not in compliance with stipulations entered in Ruiz v.

Johnson fails because the district court entered a final judgment dismissing Ruiz and,

therefore, Collier does not have a ministerial duty based upon Ruiz. Suhre contends

that Collier mischaracterizes his claim. Suhre states that his claim is not that Collier

has a ministerial duty based on Ruiz but, rather, based on the memorandum

agreement that emanated from the Ruiz decision. In the alternative, Suhre argues

that Collier acted ultra vires because he violated his statutory duty to build a day

                                           9
room at the Ramsey 1 Unit as mandated by Texas Administrative Code sections

259.430 and 261.330. We address Suhre’s alternative argument below.

      Section 259.430, entitled “Day Rooms,” sets forth new minimum security

design, construction, and furnishing requirements and provides as follows:

      All single cells, multiple occupancy cells, and dormitories shall be
      provided with day rooms. Separation cells, violent cells, holding cells,
      and medical cells are exempt from this requirement. Day rooms shall
      accommodate no more than 48 inmates. Based on the design capacity
      of the cells served, the day rooms shall contain: not less than 40 square
      feet of clear floor space for the first inmate plus 18 square feet of clear
      floor space for each additional inmate; a sufficient number of toilets,
      lavatories, and showers as approved by the [Texas Commission on Jail
      Standards], mirrors, seating, and tables. A utility sink should be
      provided. Day rooms may be contiguous with inmate living areas
      provided that space requirements for living areas and day rooms are
      met. Convenient electrical receptacles circuited with ground fault
      protection shall be provided.

TEX. ADMIN. CODE § 259.430. Section 261.330, also entitled “Day Rooms,” sets

forth existing minimum security design, construction, and furnishing requirements

and provides as follows:

      All single cells, multiple occupancy cells, and dormitories shall be
      provided with day rooms. Separation cells, violent cells, holding cells,
      and medical cells are exempt from this requirement. Day rooms shall
      be designed for no more than 24 inmates, except direct supervision day
      rooms may be designed for up to 48 inmates. Based on the design
      capacity of the cells served, the day rooms shall contain not less than
      40 square feet of floor space for the first inmate plus 18 square feet of
      floor space for each additional inmate; adequate toilets, lavatories,
      mirrors, showers, seating, and tables. A utility sink should be provided.
      Day rooms may be contiguous with inmate living areas provided that
      space requirements for living areas and day rooms are met. Convenient

                                          10
      electrical receptacles circuited with ground fault protection should be
      provided.

Id. § 261.330. Section 253.1 defines “day room” as “[a] space within or adjacent to

single cells, multiple occupancy cells, and dormitories specifically for inmate day

time activities.” Id. § 253.1(9).

      Suhre alleges that there are no day rooms in the Ramsey 1 Unit and that the

“run” is not a day room but rather a common area. Collier does not dispute Suhre’s

assertion that the Ramsey 1 Unit lacks day rooms. Indeed, Collier completely fails

to address Suhre’s claims based on the Texas Administrative Code and the words

“day room” do not appear in his briefing. Rather, Collier contends that the inmates

are not subject to overcrowding and that they may use the common areas.

      The first sentence of sections 259.430 and 261.330 states: “All single cells,

multiple occupancy cells, and dormitories shall be provided with day rooms.” TEX.

ADMIN. CODE §§ 259.430, 261.330. “Use of the word ‘shall’ in a statute evidences

the mandatory nature of a duty imposed.” City of Hous. v. Hous. Mun. Employees

Pension Sys., 549 S.W.3d 566, 582 (Tex. 2018); Sw. Bell Tel., L.P. v. Emmett, 459

S.W.3d 578, 588 (Tex. 2015); Akhtar v. Leawood HOA, Inc., 508 S.W.3d 758, 764

(Tex. App.—Houston [1st Dist.] 2016, no pet.). Moreover, the statute itself defines

“shall” as “[m]andatory and required for compliance.”         TEX. ADMIN. CODE

§ 253.1(28); cf. § 253.1(21) (defining “may” as [p]ermissive or optional”),

§ 253.1(30) (defining “should” as “[r]ecommended but not required for
                                        11
compliance”). Sections 259.430 and 261.330 impose a purely ministerial duty to

provide day rooms and Collier, as TDCJ Executive Director, has no discretion in

determining whether to provide them. See Sw. Bell Tel., 459 S.W.3d at 588–89

(concluding that county commissioners acted ultra vires in refusing to comply with

statute requiring county flood control district to be responsible for costs of relocating

telecommunications utility’s facilities during flood control project and, thus,

commissioners did not have governmental immunity to utility’s action seeking

declaratory judgment and prospective relief); see also Tex. Racing Comm’n v.

Marquez, No. 03-09-00635-CV, 2011 WL 3659092, at *5 (Tex. App.—Austin Aug.

19, 2011, no pet.) (mem. op.) (concluding director did not have discretion to not

docket administrative appeal where relevant administrative code stated: “If after a

reasonable time the proceeding cannot be settled through agreement, the executive

secretary shall refer the matter to SOAH.”).

      We emphasize that we do not determine the merits of Suhre’s claims at this

stage—only that the pleadings and the evidence raise a fact issue as to whether the

actions of Collier, as TDCJ’s Executive Director, were ultra vires in contravention

of his ministerial duty under Texas Administrative Code sections 259.430 and

261.330. We conclude that the trial court has subject matter jurisdiction over Suhre’s

suit against Collier, and that it properly denied Collier’s plea to the jurisdiction. See

Hous. Belt, 487 S.W.3d at 169 (stating plaintiff need only allege government official

                                           12
acted outside his discretion by using unreliable or dissimilar method in property

classification to demonstrate court’s jurisdiction; court need not conclusively decide

method was dissimilar or unreliable on plea to jurisdiction); Heinrich, 284 S.W.3d

at 378 (noting that if jurisdictional evidence creates a fact question, trial court cannot

grant plea to jurisdiction and issue must be resolved by factfinder). Accordingly, we

overrule Collier’s issue.

                                      Conclusion

      We affirm the trial court’s May 29, 2019 order denying Collier’s plea to the

jurisdiction.




                                                Russell Lloyd
                                                Justice

Panel consists of Justices Keyes, Lloyd, and Hightower.




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