Stanley Bacon, Jr. v. Texas Historical Commission
2013 Tex. App. LEXIS 11559
| Tex. App. | 2013Background
- Mount Bonnell marker (1969) was approved by THC, describing Bonnell and other historical notes; marker naming is contentious but remains in place.
- Bacon, a West Point alumnus in Austin, led efforts with the West Point Society to recast Mount Bonnell’s namesake as Joseph Bonnell rather than George Bonnell.
- THC repeatedly declined to replace the marker; 2004: local panel recommended including both names, 2005: THC declined to replace following communications.
- Bacon filed suit in 2011 in district court seeking judicial review under APA § 2001.171 and asserted related constitutional claims; THC moved to dismiss for sovereign immunity and standing.
- District court granted the plea to the jurisdiction, and Bacon appeals; court ultimately affirmed dismissal, holding agency had broad discretion and no judicial review right for marker content.
- The court emphasizes the separation of powers and that the Legislature and Executive Branch—not the judiciary—control markering content and review mechanisms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bacon’s suit is barred by sovereign immunity. | Bacon argues waiver via APA and private-attorney-general provision. | THC contends immunity is not waived; no standing; no valid private-right claim. | Sovereign immunity bars the claims; no waiver or viable ultra-vires basis. |
| Whether Bacon had constitutional standing to sue. | Bacon has a vested interest as marker applicant and rights to challenge content. | Standing requires a real, particularized injury; marker content does not confer standing. | No standing; applicant status does not create justiciable injury. |
| Whether THC’s actions exceeded statutory authority (ultra-vires) or violated APA procedures. | THC’s handling of the 2005/2011 proceedings and the “conclusive evidence” standard exceeded authority. | THC had broad discretion over marker content; no required contested-case procedure. | Ultra-vires and APA-based challenges fail; no enforceable judicial review of marker decisions. |
| Whether Bacon’s constitutional claims (due process, speech) have merit. | THC deprived Bacon of property-like rights and First/Texas speech protections. | Marker content decisions do not implicate protected property rights or speech guarantees in this context. | No due-process or free-speech violation; claims rejected. |
Key Cases Cited
- Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for pleading and jurisdictional analysis in pleas to the jurisdiction)
- Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) (limits on reviewing agency actions; jurisdictional analysis)
- Texas Rivers Prot. Ass’n v. Texas Nat. Res. Conservation Comm’n, 910 S.W.2d 147 (Tex. App.—Austin 1995) (standing and public-interest challenges to agency actions)