      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00373-CV



                            David Lightfoot Hernández, Appellant

                                                 v.

              Texas Department of Criminal Justice, Parole Division, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-12-000960, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant David Lightfoot Hernández, an inmate in the Texas Department of

Criminal Justice (TDCJ), appeals a final judgment dismissing, on a plea to the jurisdiction, a claim

he asserted against TDCJ. In a single issue, Hernández complains that the district court erred in

granting TDCJ’s plea. We will affirm the district court’s judgment.


                                        BACKGROUND

               Hernández is currently serving three forty-year sentences for the offenses of

aggravated sexual assault, aggravated sexual assault with a deadly weapon, and burglary of a

habitation with a deadly weapon.1 He was convicted in 1987 and, in 2002, was initially released on




       1
          We derive our factual summary from Hernández’s live petition and evidence he attached.
See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The relevant evidence consists chiefly of copies
or partial copies of the two “Certificates of Mandatory Supervision” we will discuss shortly.
mandatory supervision. Among the parole conditions TDCJ imposed was one known as “Special

Condition X,” essentially an intensive regime of sex-offender treatment and counseling. Hernández

attributes legal significance to the fact that Special Condition X appears in two “Certificates of

Mandatory Supervision” he received from TDCJ, the first of which was issued upon his release,

which occurred on January 7, 2002, and the second in January 2003.2

               In 2007, Hernández’s parole was revoked and he was returned to TDCJ custody,

where he remains today. Hernández alleges, and TDCJ does not dispute, that his parole was revoked

on the ground that he had failed to comply with Special Condition X. In April 2012—roughly

five years after his parole was revoked—Hernández filed the underlying suit against TDCJ

challenging the validity of Special Condition X as a basis for his parole revocation. Specifically, he

complains that, at least as of the time TDCJ issued its two Certificates of Mandatory Supervision to

him, which he views as the moments in time at which Special Condition X was “imposed” upon or

“applied” to him, Special Condition X was “not law” because TDCJ had not yet “promulgated” it.

Hernández’s factual premise is apparently derived from a federal court decision, addressing a

different and unrelated challenge to Special Condition X, in which the court, surveying the historical

origins of the condition, noted that TDCJ “first promulgated a Parole Division Policy and Operation

Procedure (PD/POP) that included special condition X in July 2003.”3




       2
          Although the record is not entirely clear, it suggests that TDCJ issued the second
“Certificate of Mandatory Supervision” in the course of implementing a new electronic record-
keeping system known as the Offender Information Management System (OIMS).
       3
           Jennings v. Owens, 585 F. Supp. 2d 881, 885 (W.D. Tex. 2008), rev’d, 602 F.3d 652
(5th Cir. 2010).

                                                  2
                From this factual premise, Hernández extrapolates that his claim falls within the

cause of action created by section 2001.038 of the Administrative Procedure Act (APA)4 and

purports to seek a declaration that Special Condition X is an invalid “rule” as it has been applied

to him.5 However, Hernández acknowledges in his petition that TDCJ ultimately “promulgated”

Special Condition X in July 2003, as the federal court observed, and that his parole was not revoked

until 2007. Nonetheless, Hernández reasons that because Special Condition X had not been

“promulgated” and was not yet “law” at the time TDCJ “imposed” it on him—i.e., when it issued

him the Certificate of Mandatory Supervision in January 2002 or, at the latest, when it issued the

second certificate in January 2003—Special Condition X had remained invalid or void as to him

through the time of his revocation.6

                TDCJ interposed a plea to the jurisdiction, asserting that, in substance, sovereign

immunity barred Hernández’s suit because he could not assert any viable claim under APA

section 2001.038. Following a hearing at which only argument was presented, the district court

granted TDCJ’s plea in full and dismissed Hernández’s suit for want of subject-matter jurisdiction.

It is from this judgment that Hernández appeals, insisting that he properly invoked the district court’s

subject-matter jurisdiction via section 2001.038.


        4
           See Tex. Gov’t Code § 2001.038 (authorizing “an action for declaratory judgment” against
a state agency to determine “[t]he validity or applicability of a rule . . . if it is alleged that the rule
or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal
right or privilege of the plaintiff.”).
        5
         Cf. id. §§ 2001.003(6) (APA’s definition of a “rule”), .021-.034 (APA’s rule-making
procedures), .035 (providing that a “rule” is voidable if not adopted in substantial compliance with
APA’s rule-making procedures).
        6
           Hernández has not alleged or presented proof that his parole was revoked based on
violations of Special Condition X that occurred prior to July 2003.

                                                    3
                                    STANDARD OF REVIEW

                  A plea to the jurisdiction is among the appropriate procedural mechanisms for

challenging a trial court’s authority to decide the subject matter of a specific cause of action.7

Whether this authority exists turns in the first instance on the content of the claimant’s live

pleadings,8 but evidence relevant to the jurisdictional issue may also be considered.9 Our ultimate

inquiry is whether a claimant has presented facts that affirmatively demonstrate the trial court’s

subject-matter jurisdiction, and that is a question of law that we review de novo.10 If the claimant

fails to allege or present evidence of sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction but also fails to affirmatively demonstrate incurable defects in jurisdiction, the claimant

should be afforded the opportunity to amend.11 If, on the other hand, the pleadings or evidence

affirmatively negate the existence of jurisdiction, the suit should be dismissed without affording the

claimant an opportunity to amend.12




        7
             See Miranda, 133 S.W.3d at 225-26.
       8
          Id. at 226. The claimant has the initial burden of alleging facts that would affirmatively
demonstrate the trial court’s jurisdiction to hear the cause. Id. (citing Texas Ass’n of Bus. v. Texas
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). 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.). We construe the pleadings liberally,
taking them as true, and look to the pleader’s intent. Miranda, 133 S.W.3d at 226.
       9
          See id. at 223-24; 226-27; Bland Indep. Sch. Dist., 34 S.W.3d at 555; see also Bacon
v. Texas Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.).
       10
             See Miranda, 133 S.W.3d at 226; Creedmoor–Maha, 307 S.W.3d at 513, 516 & n.8.
        11
             See Miranda, 133 S.W.3d at 226-27.
        12
             See id. at 227.

                                                   4
                 Having asserted a claim against TDCJ, as Hernández seems to recognize, sovereign

immunity is a key hurdle he must overcome in order to establish the district court’s subject-matter

jurisdiction. Absent legislative waiver, sovereign immunity deprives Texas courts of subject-matter

jurisdiction to adjudicate any suit against the State or its agencies or subdivisions.13 Accordingly,

Hernández purports to rely on APA section 2001.038, which waives or overcomes sovereign

immunity to the extent of authorizing “an action for declaratory judgment” against a state agency to

determine “[t]he validity or applicability of a rule . . . if it is alleged that the rule or its threatened

application interferes with or impairs, or threatens to interfere with or impair, a legal right or

privilege of the plaintiff.”14 Consequently, the key jurisdictional question we must resolve is whether

Hernández has presented facts that would invoke the district court’s subject-matter jurisdiction under

section 2001.038 to issue a declaration regarding the “validity or applicability of a rule,” which

include: (1) a “rule” (as defined under the APA), (2) that is alleged to “interfere[] with or impair[],

or threaten[] to interfere with or impair,” (3) “a legal right or privilege” of Hernández.15

                 Because jurisdiction cannot be waived, and may be challenged for the first time on

appeal, or even sua sponte, we are not confined to the specific grounds or arguments that TDCJ

presented in its plea to the jurisdiction or appellate briefing.16


        13
           See, e.g., Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620-21 (Tex. 2011)
(per curiam); Bacon, 411 S.W.3d at 172.
        14
             Tex. Gov’t Code § 2001.038(a), (c); see Bacon, 411 S.W.3d at 178.
        15
         See Tex. Gov’t Code § 2001.038(a); Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d
532, 543-48 (Tex. App.—Austin 2011, pet. denied).
        16
           See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95-96 (Tex. 2012); Texas State Bd. of
Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 707 n.18 (Tex. App.—Austin 2013,
no pet.) (citing Texas Ass’n of Bus., 852 S.W.2d at 446).

                                                    5
                                            ANALYSIS

                Hernández’s own pleadings affirmatively negate the district court’s jurisdiction.

Leaving aside other potential jurisdictional flaws in his attempted use of APA section 2001.038,17

it is immediately apparent that Hernández has not, and cannot, allege the facts that constitute a cause

of action under that statute. Even if Special Condition X would otherwise constitute a “rule” within

the APA,18 the Legislature has exempted from the APA’s requirements “a rule or internal procedure

of [TDCJ] . . . that applies to an inmate or any other person under the custody or control of the

department or to an action taken under that rule or procedure.”19 Moreover, as TDCJ emphasizes,

section 2001.223 of the APA makes section 2001.038 inapplicable “to . . . a hearing or interview

conducted by the Board of Pardon and Paroles or [TDCJ] relating to the grant, rescission, or

revocation of parole or other form of administrative release.”20 Although he attempts to suggest

otherwise, Hernández’s sole allegation of current or ongoing interference with or impairment of a

“legal right or privilege” of his by Special Condition X, as required to invoke jurisdiction under

section 2001.038, is the revocation of his parole based on Special Condition X in 2007. In sum, as

a matter of law, there is not, and cannot be, any “rule,” as defined in the APA, that allegedly


       17
          E.g., whether Hernández can use section 2001.038 as an alternative to the review process
provided by the Board of Pardons and Paroles, see 37 Tex. Admin. Code § 146.11 (2013) (Tex. Bd.
of Pardons & Paroles, Releasee’s Motion to Reopen Hearing or Reinstate Supervision), .12
(Procedure after Motion to Reopen Is Granted; Time; Rights of the Releasee, Final Disposition), and,
more generally, whether section 2001.038 can be applied retroactively to effectively “undo” a prior
administrative decision. Cf. Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 123-24
(Tex. App.—Austin 2007, no pet.).
       18
            See, e.g., Slay, 351 S.W.3d at 543-48.
       19
            Tex. Gov’t Code § 2001.226.
       20
            Id. § 2001.223(3).

                                                     6
“interferes with or impairs, or threatens to interfere with or impair” any “legal right or privilege” of

Hernández, and even if there could be, no action would lie under section 2001.038. Either way,

Hernández has pled facts affirmatively demonstrating that his claim falls outside section 2001.038

and that sovereign immunity, accordingly, bars it.21

                Additionally, Hernández’s own pleadings affirmatively demonstrate that his claim is

moot. As noted, Hernández acknowledges that TDCJ “promulgated” Special Condition X effective

July 2003. This effectively cured, from that point forward, the alleged procedural defect made the

basis of Hernández’s claim. Hernández’s parole was not revoked until 2007. At that juncture, any

complaints about alleged procedural flaws in Special Condition X were long since moot.22 For a

court to have subject-matter jurisdiction, there must be a live controversy between the parties.23




       21
            See Foster v. Texas Dep’t of Criminal Justice, 344 S.W.3d 543, 547-48
(Tex. App.—Austin 2011, pet. denied) (holding sovereign immunity barred purported claim against
TDCJ under APA section 2001.038 because section 2001.226 exempted challenged execution
procedures from Act’s coverage); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 117
(Tex. App.—Austin 1997, writ denied) (regarding section 2001.226, observing that “[t]his provision
effectively precludes [inmate’s] challenge to the substance of the rule under section 2001.038 and
whatever procedural defects may have occurred under the APA.”).
       22
          See Texas Dep’t of Transp. v. Texas Weekly Advocate, No. 03-09-00159-CV, 2010 WL
323075, at *2 (Tex. App.—Austin Jan. 29, 2010, no pet.) (mem. op.) (holding claims under
section 2001.038 of APA premised on agency’s failure to follow APA’s rulemaking procedure were
mooted when agency completed rulemaking process during pendency of appeal).
        23
           See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)
(citing Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993));
see also Tex. Const. art. II, § 1.

                                                   7
                                       CONCLUSION

              Having concluded that the district court lacked subject-matter jurisdiction over

Hernández’s suit, we affirm the district court’s judgment granting TDCJ’s plea and dismissing

the suit.



                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: February 19, 2014




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