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.
No. 03-12-00205-CV.
Court of Appeals of Texas, Austin.
July 17, 2013.
408 S.W.3d 566
Abigail Frank, James C. Harrington, Scott Medlock, Texas Civil Rights Project, Austin, TX, Brandon M. Tuck, Conor P. McEvily, Vinson & Elkins, L.L.P., Houston, TX, Thomas S. Leatherbury, Vinson & Elkins, L.L.P., Dallas, TX, for Appellees.
Before Justices PURYEAR, PEMBERTON, and ROSE.
BOB PEMBERTON, Justice.
Chapter 121 of the
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
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 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 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
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
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
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 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 & n. 8 (Tex.App.-Austin 2010, no pet.).
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 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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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, 158 Tex. 74, 308 S.W.2d 838, 839 (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 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.
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 (mon-
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. & Env‘t v. Printing Indus. Ass‘n of Tex., 600 S.W.2d 264, 265-70; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 710-12 (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 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). The words cannot be examined in isolation, but must be informed by the context in which they are used. TGS-NOPEC Geophysical Co., 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
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 govern-
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.16 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 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.”17 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;
- 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.
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.19 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 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
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
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
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 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.
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 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
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 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 accessibility 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 12121 and a dictionary definition22 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, according to appellees, “enforce separation through physical barriers, strictly limit the freedom of their inhabitants, regulate visitors, and limit visitors to certain areas.”
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
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.23 Our search for the Texas Legislature‘s intent enacting this language is not some-
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
CONCLUSION
We reverse the district court‘s judgment and render judgment dismissing appellees’ claims for want of subject-matter jurisdiction.
BOB PEMBERTON, Justice