Galveston County Judge Mark HENRY and County Commissioners Ryan Dennard, Joe Guisti, Stephen Holmes and Ken Clark, in their Official Capacity as the Galveston County Commissioners Court, Appellants v. Kimberly SULLIVAN, Judge, Probate Court of Galveston County, Appellee
NO. 14-15-00161-CV
Court of Appeals of Texas, Houston (14th Dist.).
Substitute Opinion filed July 12, 2016.
Rehearing En Banc Overruled August 11, 2016
499 S.W.3d 545
James P. Allison, Jason Eric Magee, Phillip Lile Ledbetter, Austin, TX, for appellant.
Alton C. Todd, Fiendswood, TX, Mark W. Stevens, Galveston, TX, for appellee.
Panel consists of Justices Boyce, Christopher, and Busby.
SUBSTITUTE OPINION
Tracy Christopher, Justice
We deny the parties’ motions for rehearing; withdraw our opinion of April 5, 2016; and issue this substitute opinion in its place.
When Judge Kimberly Sullivan submit
In this interlocutory appeal, the members of the commissioners court contend that the trial court erred in denying their plea to the jurisdiction because Sullivan failed to allege sufficient facts to establish the district court‘s jurisdiction over her claims against them. They additionally argue that they are entitled to legislative and governmental immunity from suit. We conclude that Sullivan invoked the trial court‘s jurisdiction over her claims by alleging that the members of the commissioners court acted arbitrarily and capriciously. We also conclude that when Sullivan filed her pleadings, the relief she sought was within the trial court‘s jurisdiction because she sought only mandamus, declaratory relief, and prospective monetary relief. By the time this case was submitted, however, some of the relief she requested had become retrospective monetary relief barred by governmental immunity. We therefore modify the trial court‘s ruling to grant the plea to the jurisdiction only as to Sullivan‘s requests for retrospective monetary relief; affirm the ruling as modified; and remand the case for further proceedings.
I. MOTION TO STRIKE
The appellants are the members of the Galveston County Commissioners Court—Galveston County Judge Mark Henry and Galveston County Commissioners Ryan Dennard, Joe Guisti, Stephen Holmes, and Ken Clark—in their collective official capacity as the Galveston County Commissioners Court. See
Before reaching the merits of the appeal, we must address Henry‘s motion to strike certain material from the appellate record or from Sullivan‘s brief and its accompanying appendix.
A. Sullivan‘s Response to the Jurisdictional Plea
Henry first asks that we strike Sullivan‘s timely filed response to the plea to the jurisdiction from the record. He states a number of reasons, none of which are valid.
1. Reason One: Henry did not ask for the response to be included in the record.
Although Henry is appealing the trial court‘s denial of his plea to the jurisdiction, he did not ask the clerk of the trial court to include Sullivan‘s response to his plea. The clerk nevertheless included the response and its exhibits in the record. While Henry acknowledges that Sullivan cites this material in her appellate brief, he nevertheless characterizes the documents as “unnecessary.” Citing
There is no support for granting such relief. Rule 34.5 provides that a party requesting unnecessary items can be required to pay for them, but it does not authorize material to be struck from the clerk‘s record. See
2. Reason Two: Henry did not receive Sullivan‘s response before the hearing.
Henry next contends that Sullivan failed to timely deliver a copy of her response to him. The record reflects that Sullivan‘s response was timely filed four days before the hearing, and according to the certificate of service, it was served the same day. See
Because the appellate record shows that Henry neither objected to the allegedly late service nor asked the court to strike Sullivan‘s response, he has waived any complaint as to untimely service. See
3. Reason Three: The trial judge did not read the response.
Although Henry admits that Sullivan handed the trial court a copy of her response at the hearing on the plea to the jurisdiction, he asserts that the trial judge did not read it, and thus, the response should be struck from the record. He cites no authority for this unwarranted proposition. But see Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) (“[W]e consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” (emphasis added)); Desai v. Chambers Cnty. Appraisal Dist., 376 S.W.3d 295, 300 (Tex. App. — Houston [14th Dist.] 2012, no pet.) (“[T]his court may review[] the evidence attached in response to the pleas to the jurisdiction . . . .“).
We deny the portion of Henry‘s motion in which he asks us to strike Sullivan‘s response from the appellate record and to strike the portions of her brief relying on that response.
B. Authorities Included in the Appendix to Sullivan‘s Brief
In the second portion of the motion to strike, Henry asks that we strike from
Because there are no grounds to strike any of this material, we deny the motion.
II. PLEA TO THE JURISDICTION
A defendant seeking dismissal of a case for want of jurisdiction may file a plea to the jurisdiction challenging the plaintiff‘s pleadings or challenging the existence of jurisdictional facts. See City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009). Where, as here, a plea to the jurisdiction challenges the plaintiff‘s pleadings, we determine whether the plaintiff has alleged facts that affirmatively demonstrate the court‘s jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 226. This is a question of law which we review de novo. Id. To determine whether the plaintiff has met this burden, we liberally construe the pleadings, taking all factual assertions as true and looking to the pleader‘s intent. City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam).
Sullivan asserted in her pleadings that the district court has jurisdiction over her suit pursuant to Article V, Section 8 of the Texas Constitution, which provides that “[t]he District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.”
To decide whether the trial court erred in denying Henry‘s plea to the jurisdiction, we will begin by identifying Sullivan‘s allegations. We will then address the parties’ arguments about whether, under the relevant case law, these allegations are sufficient to invoke the district court‘s jurisdiction over the suit as pleaded.
A. Sullivan‘s Pleadings
As context for her claims, Sullivan states in her pleadings that fifteen years ago, the presiding judge over all of the state‘s statutory probate courts issued Administrative Order 2001-11, under which Sullivan is required to act as the county‘s local administrative statutory probate court judge. She represents that the local administrative judge for each of three types of courts in the county historically has been paid an annual “judicial administrative fee” or “administrative salary” of $5,000. She states
Despite the history of paying a $5,000 administrative fee to all three local administrative judges, Sullivan alleges that Henry voted in September 2014 to continue paying the fee from the county‘s general fund to the local administrative judges for the district and county courts at law, but to eliminate the payment to Sullivan—even though her fee was paid from the county‘s “contributions fund,” which can be used only “for court-related purposes for the support of the statutory probate courts in the county.”3 She characterizes this vote both as “arbitrary and capricious” and as an impermissible effort to exercise authority regarding the contributions fund, over which Henry has no jurisdiction. She contends that she was damaged in the fiscal year beginning October 1, 2014 and ending September 30, 2015 by losing $5,000 of earnings and related benefits, and that for as long as she remains in office, she will be similarly damaged in each fiscal year that payment is denied.
She seeks declaratory judgment (1) construing the statutory rights and obligations of the parties under Section 51.704 of the Texas Government Code, which provides in part that “the clerk of a statutory probate court shall collect a $40 filing fee in each probate, guardianship, mental health, or civil case filed in the court to be used for court-related purposes for the support of the judiciary“;4 (2) determining whether the commissioners court has jurisdiction over the contributions fund created from those filing fees;5 and (3) ruling that she is entitled to payment of the administrative fee from the contributions fund in accordance with the budget she submitted. She also asks the district court to issue a writ of mandamus directing Henry to reinstate the administrative fee. Finally, she asks for judgment against Henry for her actual damages, and recovery of her costs and attorney‘s fees under the Uniform Declaratory Judgments Act.6
In sum, Sullivan alleges both that Henry exercised control regarding a fund over which he had no jurisdiction, and that he acted arbitrarily and capriciously in voting to eliminate the $5,000 administrative fee paid to one local administrative judge from that fund while continuing to pay administrative fees to two other local administrative judges from the county‘s general fund. She seeks declaratory relief, recovery of damages sustained in the past, and the
To determine whether these allegations are sufficient to invoke the district court‘s jurisdiction, we turn to the governing case law.
B. The District Court‘s Jurisdiction Over the Commissioners Court
The district court may exercise general supervisory control when the commissioners court (1) fails to perform a mandatory act; (2) performs an unauthorized act; or (3) abuses its discretion while undertaking an act it is authorized to perform.
First, if the commissioners court fails to perform a clear statutory duty, the district court may mandate that it do so. See Vondy v. Comm‘rs Court, 620 S.W.2d 104, 108-09 (Tex. 1981) (“Vondy I“) (holding that where the commissioners court failed to comply with a state constitutional provision mandating that it compensate constables on a salary basis, the district court should have exercised its general supervisory jurisdiction to grant the constable‘s request for mandamus relief).
Second, the district court also has jurisdiction over claims in which it is alleged that the commissioners court acted illegally or exceeded its authority, or that the challenged act is otherwise invalid. See, e.g., J.R. Phillips Inv. Co. v. Ref. Dist. No. 18, 172 S.W.2d 707, 712 (Tex. Civ. App. — Waco 1943, writ ref‘d) (explaining that the district court had jurisdiction under Article V Section 8 over taxpayers’ suit for declaratory and injunctive relief to prevent the commissioners court from illegally paying funds under a contract alleged to be void); Stovall v. Shivers, 129 Tex. 256, 260-61, 103 S.W.2d 363, 365-66 (1937) (“If the order of the commissioners court . . . be invalid, then there can be no question of the right of the district court under section 8 of article 5 of the Constitution . . . to review same and prevent its enforcement.“); Mobil Oil Corp. v. Matagorda Cnty. Drainage Dist. No. 3, 580 S.W.2d 634, 639 (Tex. Civ. App. — Corpus Christi 1979) (“Mobil I“) (holding that the district court had jurisdiction under Article V Section 8 over a complaint that the commissioners court‘s annexation of offshore property “was void because it lacked jurisdiction, because its action was arbitrary and because it was not supported by substantial evidence“), rev‘d on other grounds, 597 S.W.2d 910 (Tex. 1980) (“Mobil II“) (rendering judgment that the annexation “was in excess of the commissioners’ statutory powers“).
Third, when the commissioners court performs an act that is entrusted to its discretion, the district court has jurisdiction to determine whether the commissioners court abused that discretion. See Vondy I, 620 S.W.2d at 109.7 This basis for jurisdiction can be invoked by allegations that the commissioners court‘s decision is arbitrary, capricious, or unsupported by substantial evidence. See Vondy v. Comm‘rs Court, 714 S.W.2d 417, 420 (Tex. App. — San Antonio 1986, writ ref‘d n.r.e.) (“Vondy II“), quoted with approval in Ector County v. Stringer, 843 S.W.2d 477, 479 n. 2 (Tex. 1992).
C. Sullivan Invoked the District Court‘s Supervisory Jurisdiction
Sullivan alleges that Henry (1) has neither jurisdiction nor discretion to ap
We turn now to Henry‘s arguments to the contrary.
1. Henry‘s Statutory Arguments
In arguing that the trial court erred in denying his plea to the jurisdiction, Henry first points out that no statute requires payment of an administrative fee to the local administrative statutory probate court judge. He acknowledges, however, that Sullivan does not allege that a statute requires that she be paid an administrative fee from the contributions fund. And, as we have seen, the district court‘s supervisory jurisdiction is not limited to those claims in which it is alleged that the commissioners court failed to perform a constitutional or statutory duty. Thus, this argument does not defeat jurisdiction.
Henry similarly contends that under Texas Government Code section 25.00213(b), the only personnel who are statutorily authorized to receive compensation from the contributions fund are certain associate probate court judges. See
2. Henry‘s Semantic Argument
Although Sullivan alleges that Henry “arbitrarily and capriciously” voted to reduce her annual compensation by $5,000, Henry contends that she failed to invoke the district court‘s supervisory jurisdiction because she did not allege that Henry‘s action was (a) “so clearly arbitrary or unreasonable, or based upon so gross and prejudicial an error of law, as to constitute a flagrant abuse of discretion“; (b) a “clear” or “gross” abuse of discretion; or (c) “clearly or grossly arbitrary.”
This argument is not persuasive. Sullivan was not required to use specific modifiers when alleging that Henry abused his discretion. See Vondy II, 714 S.W.2d at 420 (“[T]his supervisory jurisdiction can
3. Henry‘s Immunity Arguments
Henry additionally argues that the trial court erred in denying his plea to the jurisdiction because he is entitled to governmental and legislative immunity. We conclude that each type of immunity was waived. Because our reason for this conclusion is the same for both governmental and legislative immunity, we will briefly describe each type of immunity before addressing them together.
(a) Governmental Immunity
Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Sovereign immunity encompasses both immunity from suit and immunity from liability. Miranda, 133 S.W.3d at 224. Absent waiver, political subdivisions of the state are entitled to the same immunity, which is then referred to as governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (op. on reh‘g). When sued in his official capacity for conduct within his scope of authority, an official generally has the same governmental immunity as his employer. See Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011). Thus, unless waived, an official sued in his official capacity usually has governmental immunity from suit and from liability. Henry contends that the trial court erred in denying his plea to the jurisdiction because Sullivan did not and cannot allege a valid waiver of governmental immunity.10
(b) Legislative Immunity
Under the doctrine of legislative immunity, “individuals acting in a legislative capacity are immune from liability for those actions.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). The commissioners court‘s “powers and duties ‘include aspects of legislative, executive, administrative, and judicial functions.‘” Harris County v. Nagel, 349 S.W.3d 769, 794 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (quoting Agan, 940 S.W.2d. at 79). In creating the county budget, the members of the commissioners court perform a legislative function. Id. Because Sullivan‘s claims arise from Henry‘s actions in eliminating part of Sullivan‘s compensation from the budget, Henry argues that he is entitled to legislative immunity from suit. Courts have offered varying opinions about the scope of legislative immunity,11 but for the purpose of this suit, we may assume, without deciding, that legislative immunity can provide immunity from suit to an individual sued in his official capacity for legislative activities within the scope of his authority.
(c) Waiver
Although governmental and legislative immunity are different, each is rooted in the same separation-of-powers tenets. See, e.g., Brown & Gay Eng‘g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (governmental immunity); In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (orig. proceeding) (legislative immunity). The Texas Constitution expressly provides for exceptions to the general rule that no member of one branch of government shall exercise a power properly attached to another branch of government. See
We therefore disagree with Henry‘s contention that Sullivan failed to allege facts affirmatively showing waiver of immunity from suit. Sullivan sufficiently invoked the district court‘s supervisory jurisdiction under Article V Section 8 of the Texas
(d) Immunity from Liability for Monetary Damages
In a single sentence in his brief, Henry also states that Sullivan‘s “pleadings further contain no allegations that her actions for monetary damages are the subject of any waiver of sovereign or governmental immunity.” Henry did not distinguish between past and future damages, but in her response brief, Sullivan did.
Sullivan points out that governmental immunity generally bars claims for monetary relief, but that governmental immunity does not apply to an “official who has acted without legal or statutory authority.” City of El Paso v. Heinrich, 284 S.W.3d 366, 368-69 (Tex. 2009). And as previously discussed, Sullivan has alleged that Henry acted without legal authority. She acknowledges that under Heinrich, a plaintiff who proves such an ultra vires claim is entitled to prospective relief — which may entail payment of money — but is not entitled to retrospective monetary relief. See id. at 376-77.12 Although she seeks monetary relief for each fiscal year in which Henry denies payment of the administrative fee, she argues that this is a request only for prospective relief, because the first fiscal year in which payment was denied has not yet ended.
When Sullivan made that argument in her opening brief, it was true that Galveston County‘s 2014-2015 fiscal year had not yet ended; however, that fiscal year ended on September 30, 2015 — the day before this case was argued and submitted. Thus, some of the prospective monetary relief she requested in the trial court is now retrospective monetary relief that is barred by governmental immunity.13 We therefore modify the trial court‘s ruling to grant Henry‘s plea to the jurisdiction only as to Sullivan‘s claims for monetary relief for a fiscal year that has ended.
III. CONCLUSION
When the trial court denied Henry‘s plea to the jurisdiction, the ruling was
Notes
Other courts have interpreted the doctrine of legislative immunity more broadly. The United States Supreme Court has held that, at least in some contexts, legislative immunity can confer immunity from suit. See Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 970, 140 L.Ed.2d 79 (1998) (“[W]e now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities.“); see also Hays County v. Hays Cnty. Water Planning P‘ship, 106 S.W.3d 349, 359 (Tex. App.—Austin 2003, no pet.) (“The purpose of legislative immunity is to prevent lawsuits from interfering with the legislative process.“). Further, the Court has applied the doctrine not only when the defendant is sued in an individual capacity, but also when the defendant is sued in an official capacity. See Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 737-38, 100 S.Ct. 1967, 1977-78, 64 L.Ed.2d 641 (1980) (holding that, although a federal statute authorized the recovery of attorney‘s fees “from state officials sued in their official capacities,” the trial court erred in assessing attorney‘s fees against the state supreme court and its chief justice based on acts for which they enjoyed legislative immunity).