      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00205-CV



          Brad Livingston, in his Official Capacity as the Executive Director of the
                     Texas Department of Criminal Justice, Appellant

                                                   v.

                            Laura Beeman and Janet Lock, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
     NO. D-1-GN-10-000515, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                                            OPINION


               Chapter 121 of the Texas Human Resources Code requires that “[p]ersons with

disabilities have the same right as the able-bodied to the full use and enjoyment of any public facility

in the state,” including the right to use an “assistance animal . . . or other device of assistance,”

to “reasonable accommodations in policies, practices, and procedures,” and to have “auxiliary

aids and services necessary to allow the full use and enjoyment of the public facility.” Tex. Hum.

Res. Code § 121.003(a), (c), (d)(2), (3); see generally id. §§ 121.001–.011. The pivotal issue in

this appeal—one of first impression in this state—is whether prison facilities operated by the

Texas Department of Criminal Justice (TDCJ) are among the “public facilities” to which

chapter 121’s requirements apply. We conclude they are not.
                                         BACKGROUND

               Appellees Laura Beeman and Janet Lock are inmates in a TDCJ prison facility.1

Both are deaf. While both can read or write in English to some degree, their preferred method of

communication is American Sign Language, “a visual, three-dimensional, non-linear language”

whose “grammar and syntax differ from the grammar and syntax of English and other

spoken languages.”2

               Complaining that TDCJ had failed to provide assistive devices necessary for them

to use a new phone system at their prison, or competent sign-language interpreters to assist

them during various prison procedures and activities, appellees sued the TDCJ’s executive director,

Brad Livingston, in his official capacity (Livingston), seeking declarations that TDCJ was violating

their rights under chapter 121 of the human resources code and injunctive relief compelling TDCJ

to remedy the asserted violations. See Tex. Hum. Res. Code §§ 121.001–.011; Uniform Declaratory

Judgments Act (UDJA), Tex. Civ. Prac. & Rem. Code §§ 37.001–.011.3 Appellees alleged that they


       1
          Lock is serving a ten-year sentence for aggravated sexual assault of a child, while Beeman
is serving a 25-year sentence for causing serious bodily injury to a child—her own infant son—with
a deadly weapon.
       2
          Equal Emp’t Opportunity Comm’n v. UPS Supply Chain Solutions, 620 F.3d 1103, 1105
(9th Cir. 2010).
       3
           The plaintiffs originally included two other deaf TDCJ inmates, Leslie Arrington and
Kathy Williams, who have since been released from prison, rendering their claims moot. See
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Accordingly, while Arrington and Williams
were originally named as appellees, we dismissed this cause as to them on the appellees’
unopposed motion. See Livingston v. Arrington, No. 03-12-00205-CV, 2012 WL 6764069, at *1
(Tex. App.—Austin Dec. 28, 2012, order) (per curiam). Similarly, while the plaintiffs originally
purported to sue on behalf of a putative class of similarly situated deaf TDCJ inmates, the
district court ultimately denied class certification, and appellees have not challenged that ruling on
appeal. Consequently, only appellees’ individual claims remain at issue.

                                                  2
were “persons with disabilities” protected by chapter 121, that the TDCJ prison where they were

housed was a “public facility” to which chapter 121 applies, and that TDCJ had failed to make

“reasonable accommodations in policies, practices, and procedures” or to “provide auxiliary aids and

services necessary to allow [them] the full use and enjoyment of the public facility” as chapter 121

required. See id. §§ 121.002(4), (5), .003(d)(2), (3). Appellees also prayed for attorney’s fees and

costs as the UDJA permitted. See Tex. Civ. Prac. & Rem. Code § 37.009. Appellees relied solely

on claims under Texas state law and did not attempt to seek relief under federal disability

discrimination prohibitions, such as the Americans with Disabilities Act (ADA).4

               Livingston interposed a plea to the jurisdiction, asserting that appellees’ official-

capacity claims against him were barred by sovereign immunity and that nothing in chapter 121

waived that immunity. Following a hearing, the district court denied the plea.

               Meanwhile, appellees had sought a temporary restraining order, and then a temporary

injunction, that would compel Livingston to provide them assistive devices enabling them to use

the inmate phone system in a manner they deemed equivalent to inmates who could hear. The

contract for installation of TDCJ’s new inmate phone system had called for the provision of

telecommunications devices for the deaf (TDDs), also known as teletypewriters or text telephones

(TTYs), devices that enables users to transmit typed messages in some language capable of


       4
         See generally 42 U.S.C.A §§ 12101–12213 (West 2013). However, the plaintiffs did assert
some additional claims under Texas law. They asserted claims predicated on alleged violations
of chapter 121 against two other defendants—the Texas Board of Pardons and Paroles and the
contractor that had allegedly installed the prison phone system—plus claims against all
three defendants predicated on alleged violations of the Texas Architectural Barriers Act, see
Tex. Gov’t Code §§ 469.001–.208, and a breach-of-contract claim solely against the contractor. The
final judgment, as indicated below, ultimately awarded relief based exclusively on violations of
chapter 121, and appellees do not complain of this on appeal.

                                                 3
written expression (e.g., English) in lieu of voice communications.5 At the inception of their suit,

appellees had complained that the TDDs required under the contract had not been made available

to them yet, and pled that either these devices or video phones—a technologically more advanced

substitute for telephone voice communications that, unlike TTYs, permitted conversations in

sign language6—would suffice as “reasonable accommodations” under chapter 121. The TTYs had

eventually been made available to appellees, but thereafter further controversy had arisen after

appellees had demanded and been refused the right to use those devices in conjunction with a relay

service, a process that would enable them to communicate via TTY with persons who did not have

a TTY at their end of the line.7 But appellees’ primary focus in litigating access to the prison phone

system became the championing of video phones, as opposed to the “obsolete” TTY technology, as

the sole means by which TDCJ could satisfy chapter 121.

               Although the district court denied appellees’ request for a TRO, it granted them a

temporary injunction compelling Livingston to immediately provide access to a relay service in



       5
          A TTY contains a QWERTY keyboard and a small screen that displays messages that are
typed or received. The device converts typed characters into electronic tones that can be sent across
standard telephone lines to another TTY, which converts the sound back into digital type.
       6
          A video phone is a telephone with an integrated camera and video monitor. The camera
captures a video signal of the caller, which is carried over high-speed broadband internet lines and
is then displayed on the recipient’s video monitor, and vice versa.
       7
           In a typical relay service, a deaf individual contacts a live relay operator, either via TTY
or video phone. The relay operator then uses a separate telephone to contact the deaf person’s
intended hearing recipient. Once connected to both parties, the deaf individual sends a message to
the relay operator via TTY or videophone. The operator then “relays” communications between
the two parties. See Sorenson Commc’ns, Inc. v. Federal Commc’ns Comm’n, 659 F.3d 1035, 1039
(10th Cir. 2011) (discussing videophone relay services); id. at 1039 n.1 (discussing text relay
services).

                                                  4
conjunction with TTYs, subject to certain security precautions.8 The district court further ordered

Livingston “to continue to explore ways to provide reasonable accommodations for inmates with

hearing disabilities” and, specifically, “to investigate ways to implement the use of videophone

technology . . . .”

                Livingston perfected an interlocutory appeal from the temporary injunction,

but the suit proceeded to a bench trial on the merits of appellees’ claims. During trial, Livingston

unsuccessfully reurged his jurisdictional challenge. At the conclusion of evidence, the district court

rendered a final judgment awarding appellees declaratory and injunctive relief, plus approximately

$225,000 in attorney’s fees and costs under the UDJA. The judgment declared that Livingston had

“unlawfully discriminated against [appellees] in violation of Chapter 121 of the Texas Human

Resources Code by failing to make reasonable accommodations for [appellees] in TDCJ’s policies,

practices, and procedures and failing to provide auxiliary aids and services.” See Tex. Hum. Res.

Code § 121.003(d)(2) (“The discrimination prohibited by this section includes . . . a failure to . . .

make reasonable accommodations in policies, practices, and procedures”), (3) (. . . or “provide

auxiliary aids and services necessary to allow the full use and enjoyment of the public facility”). It

enjoined Livingston to “provide [appellees] access to a videophone and relay service on the same

basis that hearing prisoners have access to telephones,” plus “access to a TTY and the relay service

so they may place calls to people in the free world who use videophones.” The district court further

enjoined Livingston to provide “qualified sign language interpreters” for appellees, whether in


        8
          Although the order denying appellees’ TRO request was signed by the same judge who
ultimately signed the final judgment, the Hon. Stephen Yelenosky, the temporary injunction was
signed by a different Travis County district judge, the Hon. Lora Livingston (who is not to be
confused with appellant Livingston).

                                                  5
person or remotely by video connection, at “all disciplinary hearings;” “all grievance proceedings,

including interviews, investigations, and communications regarding grievances;” “job training;” “any

prison orientation the prisoner is required to or permitted to attend;”9 “all educational classes,

religious services, and rehabilitation programs offered at the prison (such as Alcoholics Anonymous

and Narcotics Anonymous);” and also “upon the request of [appellees] to facilitate communication

with prison staff.”

               The district court subsequently made findings of fact and conclusions of law

in support of its judgment. They reflect that the district court based its judgment on findings or

conclusions that: (i) appellees “are people with hearing disabilities,” specifically deafness, which

brought them within the definition of “persons with disabilities” who are protected by chapter 121,

see id. § 121.002(4); (ii) “TDCJ prisons are ‘public facilities’ as defined by Chapter 121,” and thus

subject to that statute’s prohibitions against disability discrimination, see id. §§ 121.002(5),

.003(d)(2), (3); and (iii) Livingston had, as the court had previously declared, “unlawfully

discriminated” against appellees within the meaning of section 121.003 of the human resources code

by “failing to make reasonable accommodations for prisoners with hearing disabilities in TDCJ’s

policies, practices, and procedures” and by “failing to provide auxiliary aids and services necessary

to allow the full use and enjoyment of TDCJ facilities.” Id. § 121.003(d)(2), (3). Livingston

had committed these violations, the district court found, by “fail[ing] to provide videophones to

[appellees];” and “den[ying] [appellees] access to prison programs, activities, and services by relying



       9
         However, in the case of orientation programs, the district court made an exception to its
requirement that Livingston provide appellees live sign-language interpretation either in person or
by remote video connection: it permitted the alternative of pre-recorded video interpretation.

                                                  6
on inmates and volunteers to provide inadequate interpreting services or refusing to provide

appropriate auxiliary aids or other accommodations for [appellees’] hearing disabilities.”

               Livingston perfected this appeal from the district court’s final judgment. On agreed

motion, we dismissed Livingston’s earlier appeal from the temporary injunction as moot.10


                                            ANALYSIS

               Livingston brings four issues on appeal. His central contention, raised through

his first three issues, is that sovereign immunity bars appellees’ claims against him. Assuming we

sustain at least one of these issues, Livingston urges in his fourth issue that we vacate the judgment

award of attorney’s fees and costs under the UDJA.


Standard of review

               A plea to the jurisdiction challenges a trial court’s authority to decide the subject

matter of a specific cause of action. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225–26 (Tex. 2004). Analysis of whether this authority exists ordinarily begins with the

plaintiff’s live pleadings,11 but we must also consider evidence the parties presented below that is



       10
          See Livingston v. Arrington, No. 03-11-00266-CV, 2012 WL 1499490, at *1
(Tex. App.—Austin Apr. 25, 2012, no pet.) (mem. op.).
       11
          When reviewing the pleadings, we consider whether the plaintiff has met an initial burden
of alleging facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004) (citing
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We take the
pleaded facts as true in the first instance and liberally construe them with an eye to the pleader’s
intent. See id. However, mere unsupported legal conclusions do not suffice. See Creedmoor–Maha
Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 515–16 & nn.7–8
(Tex. App.—Austin 2010, no pet.).

                                                  7
relevant to the jurisdictional issue. See id. at 226–27; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). In this case, the jurisdictional issue comes to us following trial on the merits,

so the evidence potentially relevant to jurisdiction includes that presented at trial. See Texas Ass’n

of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Moreover, as indicated below,

the facts upon which jurisdiction depends in this case overlap to some extent with the elements of

the claims tried at trial, so the district court’s explicit fact findings on the merits, and any challenges

thereto, are also relevant to our jurisdictional inquiry.12 The ultimate question of whether particular

facts affirmatively demonstrate a claim within the trial court’s jurisdiction is one of law that

we review de novo. See Miranda, 133 S.W.3d at 226; Creedmoor–Maha Water Supply Corp.

v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 513, 516 & n.8 (Tex. App.—Austin 2010,

no pet.).


Sovereign immunity and the ultra vires exception

                Absent Legislative waiver, sovereign immunity deprives Texas state courts of subject-

matter jurisdiction over any suit against the State or its agencies or subdivisions. See, e.g.,

Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620–21 (Tex. 2011) (per curiam). That same



        12
              In this respect, the procedural posture of this appeal is similar to cases in which a
trial court has deferred until trial an evidence-based challenge to a jurisdictional fact that overlaps
the merits. See Miranda, 133 S.W.3d at 226 (recognizing that where jurisdictional issues overlap
the merits, trial courts have some discretion to defer evidence-based challenges to jurisdictional facts
until trial); see also Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 394 (Tex. 2011)
(quoting State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961) (describing one example of a type of case
in which such deferral may be appropriate, trespass-to-try-title suits brought against state officials));
cf. Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 719 (Tex. App.—Austin 2009, no pet.)
(contrasting appellate review of pretrial challenges to the existence of jurisdictional facts where
those facts implicate the merits versus review when they do not).

                                                    8
immunity generally extends to Texas state officials who, like Livingston, are sued in their official

capacities because that “is merely ‘another way of pleading an action against the entity of which

[the official] is an agent.’” City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009) (quoting

Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham,

473 U.S. 159, 165 (1985))). The Texas Supreme Court’s contemporary rationale for its continued

adherence to this ancient common-law doctrine is that the Legislature, not the Judiciary, is best

suited to make the policy-laden judgments as to if and how governmental resources should be

expended. See, e.g., Sefzik, 355 S.W.3d at 621 (citing Tex. Natural Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)); Tooke v. City of Mexia, 197 S.W.3d 325, 331–32

(Tex. 2006). This principle of deference embodied in sovereign immunity extends not only to the

Legislature’s choices regarding specific state expenditures, but equally to the policy judgments

embodied in the constitutional or statutory delegations that define the parameters of an

officer’s discretionary authority and the decisions the officer makes within the scope of that

authority. See, e.g., Sefzik, 355 S.W.3d at 621 (citing W.D. Haden Co. v. Dodgen, 308 S.W.2d 838,

839 (Tex. 1958)); Heinrich, 284 S.W.3d at 372; Director of Dep’t of Agric. & Env’t v. Printing

Indus. Ass’n of Tex., 600 S.W.2d 264, 265 (Tex. 1980).13

               Appellees have not asserted that chapter 121 of the human resources code, or any

other statute, waives sovereign immunity with respect to their injunctive and declaratory claims


       13
           See also Tex. Const. art. II, § 1 (“The powers of the Government of the State of Texas
shall be divided into three distinct departments, each of which shall be confided to a separate body
of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and
those which are Judicial to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others, except in the
instances herein expressly permitted.”).

                                                 9
against Livingston. Instead, they seek to rely on the “ultra vires” exception to sovereign immunity.14

Under the ultra vires exception to sovereign immunity, a plaintiff may sue a state officer in his

official capacity (thereby binding the State through its agent) for prospective injunctive or

declaratory relief to compel compliance with statutory or constitutional provisions. See Heinrich,

284 S.W.3d at 372–80. Sovereign immunity is held not to bar such claims because, in concept,

acts of state officials that are not lawfully authorized are not considered to be acts of the State, and

the remedy of compelling such officials to comply with the law, while binding on the State, “do[es]

not attempt to exert control over the state [but] attempt[s] to reassert the control of the state.” Id.

at 372. “Stated another way, these suits do not seek to alter government policy but rather to enforce

existing policy.” Id.


       14
          Citing language in the 1997 Federal Sign case, appellees seem to argue that the “ultra vires
requirements” apply only to their declaratory claims and that their injunctive claims are governed
by distinct or more lenient concepts that permit suits against state officials to “determine or protect”
a private party’s rights against alleged violations of state law. See Federal Sign v. Texas S. Univ.,
951 S.W.2d 401, 404 (Tex. 1997). To the contrary, as more recent Texas Supreme Court decisions
have made clear, the cited language from Federal Sign merely refers to the ultra vires exception, not
some other concept, see City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009), although the
high court has since construed the exception more narrowly than portions of Federal Sign might
have suggested it is. It is thus only by meeting the requirements of the ultra vires exception, as
summarized above, that appellees’ official-capacity claims against Livingston can avoid sovereign
immunity’s bar, whether they seek declaratory or injunctive relief. See Heinrich, 284 S.W.3d at 380
(“With the limited ultra vires exception . . . governmental [or sovereign] immunity protects
government officers sued in their official capacities to the extent that it protects their employers.”).

            But regardless how appellees might have labeled their injunctive claims, it remains that
they seek the type of relief that distinguishes claims that can only be brought under the ultra vires
exception. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 n.2 (Tex. 2011) (per curiam)
(similarly ignoring plaintiff’s “refus[al] to apply the ultra vires label” and holding that underlying
nature of claims —which sought “to compel a government official . . . to perform some act that [the
plaintiff] considers to be nondiscretionary”—placed the claims “within the ultra vires rationale”).
We will thus construe appellees’ arguments as seeking to invoke the ultra vires exception with
respect to both their declaratory and injunctive claims.

                                                  10
               To come within the ultra vires exception, 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.” Id. Otherwise,

the suit implicates sovereign immunity because it seeks to “control state action,” to dictate the

manner in which officers exercise their delegated authority. See id.; Creedmoor–Maha, 307 S.W.3d

at 515–16. Moreover, even if the plaintiff alleges or proves conduct that is, in fact, ultra vires, the

injunctive or declaratory remedy cannot have the effect of granting relief that sovereign immunity

independently bars. See Heinrich, 284 S.W.3d at 369–76 (money damages or other retrospective

monetary relief); IT-Davy, 74 S.W.3d at 855–56 (enforcing contract rights against the State);

Creedmoor–Maha, 307 S.W.3d at 515 (review of administrative order in absence of statutory right

of judicial review). On the other hand, sovereign immunity does not bar a remedy for ultra vires

conduct merely because it has the effect of requiring some sort of expenditure prospectively—if the

officer’s delegated legal authority leaves him no discretion but to make the expenditure, the court

can compel him to comply with the law going forward. See Heinrich, 284 S.W.3d at 371–76.

               The distinction between a valid ultra vires claim and one seeking to control state

action turns on (1) the particular acts or omissions that the official is committing, as determined

under the standard of review we have previously described; and (2) construction of the relevant

statutory or constitutional provisions to determine whether those acts are within, or beyond,

the official’s discretionary authority. See Director of Dep’t of Agric., 600 S.W.2d at 265–70; Cobb

v. Harrington, 190 S.W.2d 709, 710–12 (Tex. 1945); Creedmoor–Maha, 307 S.W.3d at 515–16.

Statutory construction presents a question of law that we review de novo. See Texas W. Oaks Hosp.,

LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). When construing a statute, our primary objective

                                                  11
is to ascertain and give effect to the Legislature’s intent. TGS-NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432, 439 (Tex. 2011). To discern that intent, we begin with the statute’s words. Id.

“Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers,

282 S.W.3d 433, 437 (Tex. 2009) (op. on reh’g). The words cannot be examined in isolation, but

must be informed by the context in which they are used. TGS-NOPEC Geophysical, 340 S.W.3d

at 441. We rely on the plain meaning of the words, unless a different meaning is supplied by

legislative definition or is apparent from context, or unless such a construction leads to “absurd

results.” See City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008); see also Tex. Gov’t

Code § 311.011 (“Words and phrases shall be read in context and construed according to the rules

of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”).

We further presume that the Legislature chooses a statute’s language with care, including each word

chosen for a purpose, while purposefully omitting words not chosen. In re M.N., 262 S.W.3d 799,

802 (Tex. 2008). We likewise attempt to give effect to all of a statute’s words and avoid treating

any language as surplusage if reasonable and possible. See Marks v. St. Luke’s Episcopal Hosp.,

319 S.W.3d 658, 663 (Tex. 2010); see also Tex. Gov’t Code § 311.021(2) (presumption that entire

statute is intended to be effective); Texas Lottery Comm’n v. First State Bank of DeQueen,

325 S.W.3d 628, 637 (Tex. 2010) (“[c]ourts ‘do not lightly presume that the Legislature may have

done a useless act’” (quoting Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482,

485 (Tex. 1998))). Our analysis of the statutory text may also be informed by such matters as “the

object sought to be attained,” “circumstances under which the statute was enacted,” legislative

history, and “common law or former statutory provisions, including laws on the same or similar

                                                 12
subjects,” and the title of the provision. Tex. Gov’t Code § 311.023(1)–(4), (7). Similarly, we

assume that when enacting a statute, the Legislature was aware of the background law and acted with

reference to it. See In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (quoting Acker v. Texas Water

Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)). However, only when the statutory text is ambiguous

“do we ‘resort to rules of construction or extrinsic aids.’” Entergy Gulf States, Inc., 282 S.W.3d

at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)).

                Under the foregoing principles, as Livingston emphasizes, sovereign immunity would

bar appellees’ claims unless chapter 121, as a matter of statutory construction, left him no discretion

but to provide appellees the videophones or sign-language interpreters they demanded. Livingston

disputes that chapter 121 limits his discretion in this manner, and urges that appellees and the

district court have instead commandeered fiscal, administrative, and policy decisions that are within

his delegated authority or are the Legislature’s prerogative. In his first issue, Livingston argues that

the district court erred in holding that TDCJ prison facilities are “public facilities” and thus subject

to chapter 121’s requirements.15 Additionally, within that same issue, Livingston disputes that either

of the chapter 121 anti-discrimination provisions that he was held to have violated actually limit

his discretion in regard to video phones or sign-language interpreters. To the contrary, Livingston

insists, the requirements that he “make reasonable accommodations in policies, practices, and


       15
            Appellees accuse Livingston of raising this argument for the first time on appeal. Even
if appellees are correct, Livingston would be free to do so—and so could we. See Rusk State Hosp.
v. Black, 392 S.W.3d 88, 95–96 (Tex. 2012) (holding that sovereign immunity deprives courts
of subject-matter jurisdiction and is thus an issue that may be raised for the first time on appeal);
Texas Ass’n of Bus., 852 S.W.2d at 446 (holding that subject-matter jurisdiction may be raised
for the first time on appeal by the parties or by the court). In fact, while they decry this supposed
innovation by the Office of Solicitor General on appeal, appellees do not go as far as to assert that
Livingston’s trial counsel waived the contention by failing to raise it below.

                                                  13
procedures” and “provide auxiliary aids and services necessary to allow the full use and enjoyment

of the public facility” affirmatively grant him discretion to determine the accommodations that are

“reasonable” or “necessary” under the circumstances. Alternatively, in his second and third issues,

Livingston argues that his decisions not to provide appellees video phones or additional sign-

language interpreters did not constitute failures to make “reasonable accommodations” or to provide

“necessary” auxiliary aids and services under a proper construction of these requirements.

               We need only address Livingston’s first argument—his assertion that TDCJ

prison facilities are not “public facilities” under chapter 121’s definition of that term—because that

question is dispositive of whether appellants have asserted claims within the ultra vires exception

to sovereign immunity.


Prisons and “public facilities”

               When concluding that “TDCJ prisons are ‘public facilities’ as defined by Chapter 121

of Texas Human Resources Code,” the district court cited as support, “Tex. Hum. Res. Code

§ 121.002(5),” which is chapter 121’s definition of “public facilities.”16 That definition states:


       “[p]ublic facilities” includes

       •       a street, highway, sidewalk, walkway, common carrier, airplane, motor
               vehicle, railroad train, motor bus, streetcar, boat, or any other public
               conveyance or mode of transportation;


       16
           Although this legal conclusion was styled as a fact finding, it rests substantively on
construction of the above definition, a question of law, as will become apparent in the
discussion that follows. See, e.g., Cities of Allen v. Railroad Comm’n of Tex., 309 S.W.3d 563, 570
(Tex. App.—Austin 2010) (trial court’s characterizations of factual findings versus legal conclusions
“is not controlling on appeal”), aff’d sub nom. Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d
156 (Tex. 2011).

                                                 14
       •       a hotel, motel, or other place of lodging;

       •       a public building maintained by any unit or subdivision of government;

       •       a building to which the general public is invited;

       •       a college dormitory or other educational facility;

       •       a restaurant or other place where food is offered for sale to the public;

       •       and any other place of public accommodation, amusement, convenience, or
               resort to which the general public or any classification of persons from the
               general public is regularly, normally, or customarily invited.


Tex. Hum. Res. Code § 121.002(5) (bullet points and formatting added for clarity).

               Livingston asserts that the sole component of this definition having conceivable

application to TDCJ prisons would be the third one in the list—“a public building maintained by any

unit or subdivision of government.” And while he does not appear to question that a TDCJ prison

unit would be “a . . . building,” and likewise one that is “maintained by [a] unit or subdivision of

government,” namely TDCJ, Livingston disputes that it would be “a public building maintained by

[a] unit or subdivision of government.” Livingston reasons that the Legislature intended “public”

or “public building” to denote a building that is open and accessible to “the public.” The TDCJ

prisons at issue do not meet that requirement as a matter of law, Livingston insists, because the

evidence is undisputed that the facilities are not open or accessible to the public—to the contrary,

their fundamental nature and purpose is to separate offenders from the public, as reflected in

everything from visitation areas to the cells and walls.17



       17
         See also Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (“The very object of imprisonment
is confinement.”); Retzlaff v. Texas Dep’t of Criminal Justice, 135 S.W.3d 731, 742

                                                 15
                  In their briefing, appellees have appeared to agree with Livingston’s assessment that

“public building maintained by any unit or subdivision of government” is the sole component of the

“public facilities” definition that could be relevant here. However, during oral argument, appellees

posited that a TDCJ prison might also amount to an “other place of public accommodation . . . to

which . . . any classification of persons from the general public is regularly, normally, or customarily

invited” under the final component of the “public facilities” definition. But appellees have not

offered further argument or authorities in support of that view, and Livingston points out authority

suggesting the contrary: federal courts have construed the term “public accommodations”—the

focus of Title III of the ADA—to refer to places that are open or accessible to the public, and that

prisons are not included in that category.18 We are similarly unpersuaded by appellees’ suggestion

that TDCJ prisons might be “places of public accommodation” under chapter 121’s definition of

“public facilities,” let alone that inmates can be said to be “regularly, normally, or customarily

invited” there.

                  Appellees have otherwise relied entirely on the assertion that a TDCJ prison unit

comes within “a public building maintained by any unit or subdivision of government,” thereby


(Tex. App.—Houston [1st Dist.] 2003, no pet.) (“The fundamental purpose of a prison is to isolate
its inhabitants from society and insure that they remain isolated until they are eligible for release.”).
        18
           See 42 U.S.C.A. § 12182(a) (West 2013) (listing public accommodations to which Title III
applies); see also Johnson v. Federal Bureau of Prisons, No. 08-6017-HA, 2011 WL 198184, at *3
(D. Or. Jan. 18, 2011) (holding Title III of ADA inapplicable to Federal Bureau of Prisons); White
v. Secor, Inc., No. 7:10-cv-00428, 2010 WL 4630320, at *2 (W.D. Va. Nov. 5, 2010) (mem. op.)
(holding plaintiff failed to establish private correctional facility was a place of public
accommodation under Title III of the ADA); Edison v. Douberley, No. 2:05-CV-307-FtM-29SPC,
2008 WL 4194813, at *4 (M.D. Fla. Sept. 9, 2008) (holding Title III of ADA inapplicable to
prisons); Morgan v. Mississippi, No. 2:07cv-15-MTP, 2008 WL 449861, at *5 (S.D. Miss. Feb. 14,
2008) (same).

                                                   16
joining issue with Livingston regarding the proper construction of “public” or “public building”

as used within that provision. Contrary to Livingston’s view that “public” refers to accessibility or

openness, appellees insist that the Legislature meant “public” instead to denote the nature of

ownership over the “building maintained by any unit or subdivision of government”—belonging

to the people of Texas or the “larger community,” as opposed to private interests. Because TDCJ

prisons are owned by the people of Texas through their state government, appellees reason, such a

facility is “a public building maintained by any unit or subdivision of government,” and thus is a

“public facility” subject to chapter 121.

                Although the Legislature defined “public facilities” in section 121.002(5), and that

definition repeatedly utilizes “public” in both its noun and adverbial forms to describe them, see id.,

the Legislature did not provide an explicit definition of “public” itself. In the absence of an explicit

definition, the parties seek support in the “ordinary meaning” of that word, as reflected in dictionary

definitions. These resources do little more than demonstrate that the terms “public” or “public

building,” if read in isolation, are susceptible to either of the competing constructions the parties

advocate.19 To determine which meaning the Legislature intended, we must delve more broadly into

the text of the “public facilities” definition, and that of chapter 121 as a whole. See Texans Uniting

for Reform & Freedom v. Saenz, 319 S.W.3d 914, 922–28 (Tex. App.—Austin 2010, pet. denied)

(applying similar analysis to determine legislative intent as between multiple alternative meanings

to which “political” under Tex. Gov’t Code § 556.004 was susceptible); see also TGS-NOPEC


       19
           Cf. Black’s Law Dictionary 1348 (9th ed. 2009) (defining “public” to mean “[o]pen or
available for all to use, share, or enjoy”), 1349 (defining “public building” as “[a] building that is
accessible to the public; esp., one owned by the government”) with id. at 1348 (also defining
“public” as “[r]elating or belonging to an entire community, state, or nation”).

                                                  17
Geophysical, 340 S.W.3d at 441 (statutory language cannot be examined in isolation, but must be

informed by the context in which it is used).

                Livingston urges that the Legislature’s intent that “public building” denote

accessibility and openness rather than public ownership becomes apparent when considering several

features of the statute that define the context in which the term appears. The first, in Livingston’s

view, is found by considering the effect of adopting appellees’ construction of “public” within “public

building maintained by any unit or subdivision of government.” Livingston suggests that if “public”

refers to public ownership (i.e., by government), this component of the definition would

mean “[government-owned] building maintained by any unit or subdivision of government.” In

Livingston’s view, this is a redundancy, rendering either “public” or “maintained by any unit or

subdivision of government” mere surplusage, and it is established that we should avoid such

constructions if possible. See Marks, 319 S.W.3d at 663; see also Tex. Gov’t Code § 311.021(2)

(presumption that entire statute is intended to be effective).

                Livingston next asserts that only his proposed construction of “public” is consistent

with the Legislature’s use of “public” elsewhere in the definition of “public facilities.” He urges that

each of the references to “public” in other components of the definition—“other public conveyance

or mode of transportation,” “a building to which the general public is invited,” “a restaurant

or other place where food is offered for sale to the public,” and “any other place of public

accommodation . . . to which the general public or any classification of persons from the general

public is . . . invited,” see Tex. Hum. Res. Code § 121.002(5)—refer to accessibility or openness

to the public, not to public or governmental ownership. See Tex. Dep’t of Transp. v. Needham,

82 S.W.3d 314, 318 (Tex. 2002) (statutory terms should be interpreted consistently in every part of

                                                  18
an act). To similar effect, Livingston invokes the rule of ejusdem generis, which holds that “when

words of a general nature are used in connection with the designation of particular objects or things,

[courts] generally presume that the legislature intended to limit the general words to the same class

or kinds as the specific examples.” Texans Uniting for Reform & Freedom, 319 S.W.3d at 925;

see, e.g., Hilco Elec. Co-op, Inc. v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81 (Tex. 2003)

(holding that “any lawful purpose” was limited to purposes similar in kind or class to specifically

identified categories listed within statutory section). He observes that each of the other components

of the “public facilities” definition refers to a place whose distinguishing characteristic is that it is

open to or serves the public or some subset of it—“a . . . common carrier . . . or any other public

conveyance or mode of transportation;” “a hotel, motel, or other place of lodging;” “a building to

which the general public is invited;” “a college dormitory or other educational facility;” “a restaurant

or other place where food is offered for sale to the public;” or “any other place of public

accommodation, amusement, convenience, or resort to which the general public or any classification

of persons from the general public is regularly, normally, or customarily invited.” Considering this

context, Livingston reasons, the Legislature was plainly using “public” to denote openness and

accessibility to outsiders, not governmental ownership, and that we must presume that it intended

the same in “a public building maintained by any unit or subdivision of government.”

                More broadly, Livingston questions whether construing “public buildings” and

thus “public facilities” to include prisons, as appellees advocate, would be compatible with

the Legislature’s overarching policy objectives reflected in chapter 121. See Cash Am. Int’l, Inc.

v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (when construing statutes, courts “consider the statute’s

language, history, and purposes and the consequences of alternate constructions”). He observes that

                                                   19
the Legislature’s explicit purpose in enacting chapter 121 was to foster economic and social

empowerment, independence, and opportunity for the disabled—specifically:


        to encourage and enable persons with disabilities to participate fully in the social and
        economic life of the state, to achieve maximum personal independence, to become
        gainfully employed, and to otherwise fully enjoy and use all public facilities available
        within the state.


Tex. Hum. Res. Code § 121.001. Livingston disputes whether or how this vision of empowerment

and opportunity would translate to prisons, where, as he notes, prisoners have essentially no personal

independence, cannot become gainfully employed, and are, by definition, prevented from using

“all public facilities available within the state.” He also points out some practical implications

of applying section 121.003 anti-discrimination prohibitions to TDCJ facilities. For example, he

observes that the statute would seem to require that TDCJ allow inmates to bring their assistance

animals and their trainers into the prison facilities. See id. § 121.003(c) (“No person with a

disability may be denied the use of a[n] . . . assistance animal . . . .”), (i) (“An assistance animal in

training shall not be denied admittance to any public facility when accompanied by an approved

trainer . . . .”). This, Livingston suggests, would be an “absurd result” the Legislature could not

possibly have intended. See Texans Uniting for Reform & Freedom, 319 S.W.3d at 924 (rejecting

construction of “political” that would yield absurd results).

                In response, appellees defend their view that “public building maintained by any

unit or subdivision of government” denotes governmental ownership by asserting that Livingston’s

contrary construction would render superfluous another component of the “public facilities”

definition, “a building to which the general public is invited.” They additionally dispute that


                                                   20
construing “public facilities” to include TDCJ prisons is inconsistent or incompatible with

the overarching policy goals of chapter 121. Appellees urge that the accommodations they seek

are necessary for them to have equal access to the educational, social, and economic opportunities,

albeit limited, that are available to them while incarcerated, as well as the opportunities for self-

improvement TDCJ provides to “promote positive change in offender behavior [and] reintegrate

offenders into society . . . .” Tex. Gov’t Code § 493.001.

               Livingston counters that a “public building maintained by any unit or subdivision of

government” would only be redundant of a “building to which the general public is invited” if one

treats as surplusage the phrase “. . . maintained by any unit or subdivision of government” in the

former. Under his proposed construction, Livingston insists, the two components of the definition

are easily reconciled by recognizing that “a public [in the sense of openness or accessibility to

the public] building maintained by any unit or subdivision of government” would be limited

to government-maintained buildings, while “building to which the general public is invited”

would extend to private ones. And if there is a redundancy or surplusage created by either of the

two competing constructions of “public,” Livingston adds, it is the “[government-owned] building

maintained by any unit or subdivision of government” tautology yielded by appellees’ view.

               As with the parties’ reliance on dictionary definitions, their arguments attributing

asserted redundancies or surplusage to the rival construction of “public” ultimately do not resolve

the issue. But appellees offer no good response to Livingston’s observations that the Legislature

used “public” consistently throughout its “public facilities” definition to refer to openness or

accessibility to the public, not to public or governmental ownership, and that it made such openness

and accessibility the defining characteristic of each category of “public facilities.” We agree with

                                                 21
Livingston that, absent contrary indications in the statutory text—and there are none—we must

presume the Legislature intended to use “public” in the same sense throughout its definition of

“public facilities” to refer to accessability and openness to the public, not to government ownership.

See Needham, 82 S.W.3d at 318 (statutory terms should be interpreted consistently in every part of

an act); see also Hilco Elec. Co-op., Inc., 111 S.W.3d at 81 (applying ejusdem generis); Texans

Uniting for Reform & Freedom, 319 S.W.3d at 925 (same).

                Even if we conclude that the Legislature intended “public buildings” to mean

buildings that are open and accessible to the public in some sense, appellees alternatively maintain

that TDCJ prisons would still qualify as “public facilities” because inmates remain members of “the

public” despite their incarceration, just not members of the general public. In support, appellees cite

provisions of chapter 12120 and a dictionary definition21 acknowledging that “public” in some

contexts can include subsets of the “general public” and need not mean the entirety of it. Appellees

likewise argue that “accessible to the public” does not always mean open and available for

all members of the general public. They liken prisons to public elementary schools in that both,



        20
           See Tex. Hum. Res. Code § 121.003(e) (“Regulations relating to the use of public facilities
by any designated class of persons from the general public may not prohibit the use of particular
public facilities by persons with disabilities who, except for their disabilities . . . , would fall within
the designated class.”). We would add “any other place of public accommodation, amusement,
convenience, or resort to which the general public or any classification of persons from the general
public is regularly, normally, or customarily invited,” within the “public facilities” definition. See
id. § 121.002(5) (emphasis added).
        21
          See Black’s Law Dictionary 1227 (6th ed. 1990) (“public” “does not mean all the people,
nor most of the people, nor very many of the people of a place, but so many of them as
contradistinguishes them from a few. Accordingly, it has been defined or employed as meaning the
inhabitants of a particular place . . . .”). Incidentally, this definition of “public” is not found in the
most current edition of Black’s Law Dictionary upon which appellees previously relied.

                                                    22
according to appellees, “enforce separation through physical barriers, strictly limit the freedom of

their inhabitants, regulate visitors, and limit visitors to certain areas.”

                We note that while the Legislature explicitly included “a college dormitory

or other educational facility” within its definition of “public facilities,” see Tex. Hum. Res. Code

§ 121.002(5), there is no similar express indication in chapter 121 that it considered prisons to

be “public facilities.” Nor, Livingston adds, is there any indication that the Legislature considered

prison inmates to be part of “the public” in any material sense. To the contrary, Livingston observes,

the Legislature has sharply distinguished between prison inmates and the “public.” See, e.g.,

Tex. Gov’t Code § 492.007 (requiring Texas Board of Criminal Justice to “provide the public with

a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction

of the board”); id. § 498.004(c)(4) (requiring TDCJ to “consider whether any impact to public safety

is likely to result from inmate’s release on parole or to mandatory supervision” if it reinstates an

inmate’s good-conduct time that was previously suspended); id. § 508.141(d) (authorizing parole

panel to release inmates on parole “if the panel determines that the inmate’s release will not increase

the likelihood of harm to the public”). We are persuaded that the Legislature did not consider TDCJ

prisons to be open or accessible to the public in any sense that would make them “public facilities”

under chapter 121.

                Finally, appellees, joined by amicus Disability Rights Texas, draw our attention to

the ADA and emphasize that federal courts have held that Title II of that act, which concerns

“public entities,” applies to prisons. See 42 U.S.C.A. § 12131 (West 2013) (defining “public entity”

as, among other things, “any department, agency, special purpose district, or other instrumentality

of a State or States or local government”); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206,

                                                   23
210 (1998) (holding state prisons fall within the statutory definition of “public entity” under Title II

of the ADA). Title II, they urge, should inform our construction of “public,” “public buildings,”

and “public facilities” under chapter 121. See In re Allen, 366 S.W.3d at 706 (we presume

the Legislature is aware of the background law and acts with reference to it). They additionally

emphasize anecdotal legislative history from amendments to chapter 121 which, they assert,

demonstrates “legislative intent” that chapter 121 should be construed and applied the same

way the ADA is.

                As an initial observation, the Legislature enacted the statute that would eventually be

codified as chapter 121—including its definition of “public facilities”—approximately twenty years

before the federal government enacted the ADA, and the “public facilities” definition has remained

essentially unchanged since that time.22 Our search for the Texas Legislature’s intent enacting this

language is not somehow informed by language the U.S. Congress used in the ADA two decades

later. But more importantly, it is the text of chapter 121, not that of the ADA, that ultimately

controls our analysis of what chapter 121 means. Cf. Prairie View A & M Univ. v. Chatha,

381 S.W.3d 500, 507–09 (Tex. 2012) (we “look to federal law for guidance only when the relevant

provisions [of the federal law] are analogous”). Based on the text of chapter 121, we have concluded

that there is no counterpart to ADA Title II in chapter 121 that purports to define or extend the scope

of “public facilities” covered by the statute on the basis of public or governmental ownership, as

opposed to public accessibility. That same analysis further suggests that if there is an aspect of the




       22
            See Act of May 20, 1969, 61st Leg., R.S., ch. 416, § 2, 1969 Tex. Gen. Laws 1374, 1375.

                                                  24
ADA that is instructive here, it is instead Title III, which, as noted, applies to “places of public

accommodation”—and has been held not to include prisons.23

                We hold that, as a matter of law, TDCJ prison facilities are not “public facilities”

within the meaning of chapter 121 of the human resources code. It follows that appellees have failed

to prove any conduct by Livingston that is ultra vires of his delegated authority and discretion.

Consequently, sovereign immunity deprived the district court of subject-matter jurisdiction. See

Heinrich, 284 S.W.3d at 372. This includes not only jurisdiction to grant appellees the injunctive

and declaratory relief they sought and ultimately obtained, but also to award attorney’s fees and

costs under the UDJA, as “the UDJA does not enlarge the trial court’s jurisdiction, but is ‘merely

a procedural device for deciding cases already within a court’s jurisdiction.’” Sefzik, 355 S.W.3d

at 621–22 (quoting Texas Ass’n of Bus., 852 S.W.2d at 444); see Texas Dep’t of Pub. Safety

v. Alexander, 300 S.W.3d 62, 80 (Tex. App.—Austin 2009, pet. denied). Accordingly, we sustain

Livingston’s first and fourth issues, reverse the district court’s judgment, and render judgment

dismissing appellees’ claims for want of subject-matter jurisdiction. See Koseoglu, 233 S.W.3d

at 840; Creedmoor–Maha, 307 S.W.3d at 526; see also Good Shepherd Med. Ctr. v. State,

306 S.W.3d 825, 837 (Tex. App.—Austin 2010, no pet.) (no opportunity to replead to cure

jurisdictional defect once claims have been tried).       We need not reach Livingston’s other

two contentions, and express no opinion regarding them. See Tex. R. App. P. 47.1.




       23
            See supra note 18.

                                                 25
                                         CONCLUSION

               We reverse the district court’s judgment and render judgment dismissing appellees’

claims for want of subject-matter jurisdiction.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Rose

Reversed and Rendered

Filed: July 17, 2013




                                                  26
