HOUSTON BELT & TERMINAL RAILWAY CO., BNSF Railway Co., and Union Pacific Railroad Co., Petitioners, v. CITY OF HOUSTON, Texas and Daniel Krueger, in his Official Capacity as Director of Public Works and Engineering, Respondents
NO. 14-0459
Supreme Court of Texas.
Argued October 13, 2015 OPINION DELIVERED: April 1, 2016
487 S.W.3d 154
Here, the purpose of the suit was to prevent the District Clerk from billing costs to indigent litigants. To the extent that the District Clerk has already billed costs and must now take some action to rescind the bills, mandamus would be proper. But the true relief lies in enjoining the District Clerk from continuing his policy of collecting these costs from these Petitioners or others similarly situated.44 The temporary injunction is proper.
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We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Justice Lehrmann did not participate in the decision.
David M. Feldman, City of Houston Legal Department, Donna Lynn Edmundson, Houston City Attorney, Judith Lee Ramsey, Chief, General Litigation Section, City of Houston Legal, Lynette Fons, City of Houston Legal Department, Robert W. Higgason, Senior Assistant City Attorney, Houston TX, for Respondents.
Justice Brown delivered the opinion of the Court.
Governmental immunity protects political subdivisions of the state, such as cities and their officers, from liability. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). An important justification for this immunity is pragmatic: it shields “the public from the costs and consequences of improvident actions of their governments.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Yet the pragmatic rationale supporting this immunity also helps to delineate its limits—“extending immunity to officials using state resources in violation of the law would not be an efficient way of ensuring those resources are spent as intended.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Thus, this Court has long recognized that governmental immunity does not bar claims alleging that a government officer acted ultra vires, or
This case concerns the breadth of this ultra vires doctrine.1 Specifically, it presents the question of whether a suit complaining “of a government officer‘s exercise of [limited] discretion” by alleging “that the officer acted without legal authority” is a viable ultra vires claim. See Heinrich, 284 S.W.3d at 372. We conclude that it is. Although governmental immunity justifiably provides broad protection to the government and its agents, it does not protect every act by a government officer that requires some exercise of judgment—a government officer with some discretion to interpret and apply a law may nonetheless act “without legal authority,” and thus ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict with the law itself. To the extent that the court of appeals held differently, we reverse that part of its judgment and remand this case to the trial court for further proceedings consistent with this opinion.
I
In 2011, the City of Houston enacted a drainage-fee ordinance, which was proposed as a “pay-as-you-go” system to improve the city‘s drainage. See
The ordinance gives the city‘s Director of Public Works and Engineering—in this case, Daniel Krueger—authority to administer its provisions, subject to the terms of the ordinance itself.
Benefitted property means a lot or tract to which drainage service is made available under this article and which discharges into a street, creek, river, slough, bayou, culvert, conduit, inlet, or other channel that forms part of the city drainage utility system.
. . .
Impervious surface means any area that has been compacted or covered such that it does not readily absorb water or does not allow water to percolate through to undisturbed underlying soil strata. Surface materials considered impervious shall include, but not be limited to, bricks, pavers, concrete, asphalt, compacted oil-dirt, compacted or decomposed shale, oyster shell, gravel, or granite, and other similar materials. Surface features utilizing such materials and considered impervious shall include, but not be limited to, decks, foundations . . ., building roofs, parking and driveway areas, sidewalks, compacted or rolled areas, paved recreation areas, swimming pools, and other features or surfaces that are built or laid on the surface of the land and have the effect of increasing, concentrating, or otherwise altering water runoff so that flows are not readily absorbed.
Shortly after the ordinance was enacted, petitioners Houston Belt & Terminal Railway, BNSF Railway, and Union Pacific Railway (collectively, the “railroads“) received notices of proposed charges for their properties in Houston. The charges, proposed by Krueger, were about $3 million annually based on Krueger‘s determination that all of the railroads’ properties within Houston were “benefitted” and that the surfaces of nearly all of those properties were also “impervious.” As to “impervious surface,” Krueger made his determination based upon aerial images—looking to see if the properties appeared green or brown—rather than digital map data. Generally, under this method, if the property appeared brown, Krueger determined it was impervious; if it appeared green, he determined it was pervious. Using this brown-or-green method, Krueger determined that about 93 million square feet of the railroads’ properties were impervious. On the other hand, the railroads’ have pointed out that Houston‘s digital map data shows that only 72,364 square feet of the railroads’ properties were impervious. It follows that the use of digital map data would have yielded significantly lower charges on the railroads’ properties.
Pursuant to the ordinance, after receiving the notice of proposed charges, the railroads submitted requests for verification and correction of Krueger‘s proposed charges, contending Krueger had improperly proposed charges on properties that were not benefitted and on surfaces that were not impervious. After a hearing panel upheld Krueger‘s decision, the railroads filed suit against the city and Krueger in his official capacity,3 alleging ultra vires
The railroads filed an interlocutory appeal. The court of appeals examined the two ultra vires questions: whether Krueger acted outside his authority by (1) determining that certain properties were benefitted and thus subject to drainage charges and (2) determining that the railroads should pay roughly $3 million based on their benefitted properties’ impervious surface area. Houston Belt & Terminal Ry. v. City of Houston, 424 S.W.3d 663, 667-68 (Tex. App.—Houston [14th Dist.] 2014). The court of appeals affirmed in part and reversed in part, concluding that the railroads pleaded a viable ultra vires claim challenging Krueger‘s determination that their properties were benefitted, but that they had not pleaded a viable ultra vires claim contesting Krueger‘s determination that the railroads’ properties were impervious. Id. at 673. As to its second holding, the court reasoned that because “the enacting body intended to grant [Krueger] the ability to exercise his discretion,” the railroads’ allegations regarding imperviousness did not fall within the ultra vires exception and were barred. Id. at 672. The parties cross-appealed, and we granted review to determine whether Krueger‘s actions were ultra vires under Heinrich and its progeny.5
II
Generally, “immunity from suit implicates courts’ subject-matter jurisdiction.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012). Thus, it “is properly asserted in a plea to the jurisdiction.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). As subject-matter jurisdiction is a question of law, we review a trial court‘s ruling on a plea to the jurisdiction de novo. Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015). “When a plea to the jurisdiction challenges the pleadings,” as here, “we determine if the pleader has alleged facts that affirmatively demonstrate the court‘s jurisdiction to hear the cause.” Heinrich, 284 S.W.3d at 378 (internal quotation marks omitted). In doing so, we construe the pleadings liberally in the pleaders’ favor and look to their intent. Id. Only if the pleadings affirmatively negate jurisdiction should the plea to the jurisdiction be granted without affording the plaintiffs an opportunity to replead. Miranda, 133 S.W.3d at 227.
III
The city contends that governmental immunity bars the railroads’ claims because Krueger acted pursuant to the authority granted to him under the ordinance, and so the trial court properly granted the city‘s plea to the jurisdiction. The rail-
As already noted, while governmental immunity provides broad protection to the state and its officers, it does not bar a suit against a government officer for acting outside his authority—i.e., an ultra vires suit. See Tex. Parks & Wildlife Dep‘t v. Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011). “To fall within this ultra vires exception,” however, “a suit 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.” Heinrich, 284 S.W.3d at 372; see also Fed. Sign, 951 S.W.2d at 404 (“[A]n action to determine or protect a private party‘s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars.“).
The parties dispute the meaning of “exercise of discretion” and “without legal authority” as used in Heinrich. The city contends that under Heinrich, Krueger‘s determinations cannot be ultra vires if he had some discretion to make them under the ordinance. To the city, “exercise of discretion” means any decision made in which the officer has the authority to use his personal judgment, and “a mistake in exercising his judgment is not an ultra vires act.” Thus, because the ordinance granted Krueger authority to make “benefitted property” and “impervious surface” determinations, his determinations are discretionary and, as a matter of law, cannot be the subject of an ultra vires suit. Of course, the railroads urge a different understanding of Heinrich. The type of discretion that immunity protects, they argue, is absolute discretion—discretion where no specific, substantive, or objective standards govern the exercise of judgment. Therefore, regardless of whether Krueger had some authority or discretion, his determinations are still ultra vires because he acted beyond his granted discretion in making them. Ultimately, we conclude that our caselaw, along with the purposes underlying governmental immunity and the ultra vires exception, favors the railroads’ interpretation.
Because Heinrich is the major point of contention between the parties, we start there. In Heinrich, a police officer‘s widow—Heinrich—brought an action against El Paso‘s Firemen & Policemen‘s Pension Fund Board officers, among other defendants, alleging that the officers acted outside their statutory authority by retroactively reducing her pension benefits. 284 S.W.3d at 369. The relevant statute provided the officers authority to “make from time to time” certain modifications, including “modify[ing] or chang[ing] prospectively or retroactively in any manner whatsoever any of the benefits provided by this Act, except that any retroactive change or modification shall only increase pensions or benefits.” Id. at 378. Importantly, therefore, the officers being sued had authority—and at least some discretion—to modify benefits.
However, under that statute, “while benefits [could] be increased if certain procedures [were] followed, the Board [had] no discretion to retroactively lower pensions.” Id. at 379. And so, because she had alleged a retroactive reduction in her pension, Heinrich argued that her suit pleaded ultra vires acts and was not barred by immunity. We agreed. Recognizing our
Because Heinrich had “allege[d] that petitioners violated [the law] when they reduced her benefits,” we found that her claims against the pension board members were not barred. Id. at 371-78. To be sure, Heinrich‘s claim was against the officers for acting pursuant to, yet outside the limits of, a statutory grant of authority. In other words, Heinrich alleged that the officers, making the type of determination which they had authority to make, made that determination in a way the law did not allow. Thus, Heinrich cannot reasonably be read to limit ultra vires claims to those challenging ministerial acts, nor can it be read to shield every act undertaken by an officer who has some limited authority. See id.
Indeed, in the seven years since Heinrich, we have spoken a number of times on the intersection of the ultra vires exception and governmental immunity. In doing so, we have confirmed that Heinrich did not expand governmental immunity‘s reach or diminish the ultra vires exception by providing an absolute shield to limited as well as absolute discretion. See, e.g., Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588-89 (Tex. 2015); Klumb, 458 S.W.3d at 9-11; Sawyer Trust, 354 S.W.3d at 393-94. In Sawyer Trust, for example, we were asked whether a navigability determination by an officer of the Parks and Wildlife Department—a department with “authority to make determinations on behalf of the State as to navigability of streams and to exercise the State‘s rights over navigable streambeds“—could be challenged via an ultra vires suit. 354 S.W.3d at 394. Noting the “untenable position” in which a landowner would find himself if the officer‘s navigability finding could not be challenged by an ultra vires suit, we held that it could. See id.6 Similarly, in Emmett, we asked “whether [an officer‘s] anticipatory refusal to comply with the statute qualifies as a ministerial act or was undertaken without legal authority,” thus reinforcing that Heinrich did not foreclose ultra vires suits alleging acts that were not ministerial yet were done without legal authority. See 459 S.W.3d at 588 (emphasis added). Emmett, however, did not require us to address the “without legal authority” question—because the authority granted in Emmett was a “purely ministerial duty,” we found the plaintiff‘s allegations that the officer violated that duty were sufficient to plead an ultra vires claim. Id. at 589.
Of our recent cases, Klumb is most helpful to our inquiry here. See 458 S.W.3d at 9-11. There, we evaluated a pension board‘s interpretation and application of Article 6243h of the Texas Revised Civil Statutes. Id. The issue was “whether the
Our holding in Klumb, however, was not that government officers charged with administration can perform their duties “in conflict with the plain language of [their enabling] statute” whenever they might please with no threat of judicial review. See id. at 9. Rather, we only concluded that no ultra vires claim had been pleaded after noting that “[t]he breadth of the pension board‘s authority under Article 6243h [was] inescapable” and after recognizing the express authorization for the pension board to “construe the statute, add language it deems necessary for the administration of the pension fund, and determine all eligibility questions and all other legal and factual matters pertaining to the fund‘s administration.” Id. at 10. Moreover, the statute barred judicial review “absent a manifest conflict with express statutory terms.” Id. As there was no manifest conflict, we noted that “any further consideration of the matter would impermissibly encroach on the unreviewable, discretionary authority afforded to the board under Article 6243h.” Id. at 11.
And, as is especially relevant here, we were sure to emphasize that our holding did not diminish the ultra vires exception: “[a]lthough the pension board ha[d] unquestionably broad discretionary authority under [the statute], we caution[ed] that the board [could] not violate the statute.” Id. Even under the board‘s “unquestionably broad discretionary authority,” we acknowledged “the possibility that, in appropriate circumstances, a particular interpretation of the statute could be ultra vires.” Id.
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These cases affirm that while the protections of governmental immunity remain robust, they are not absolute. As we said in Heinrich, governmental immunity protects exercises of discretion, but when an officer acts beyond his granted discretion—in other words, when he acts without legal authority—his acts are not protected. Thus, “discretion,” as we have used the term in this context, cannot mean limited discretion that is otherwise constrained by the principles of law. See, e.g., BLACK‘S LAW DICTIONARY 565 (10th ed. 2014) (defining “judicial discretion” as “[t]he exercise of judgment . . . guided by the rules and principles of law“). Rather, our ultra vires caselaw uses the term in its broad sense. See, e.g., id. (defining “discretion” as “the power of free decision-making“). Accordingly, the principle arising out of Heinrich and its progeny is that governmental immunity bars suits complaining of an exercise of absolute discretion but not suits complaining of either an officer‘s failure to perform a ministerial act or an officer‘s exercise of judgment or limited discretion without reference to or in conflict with the constraints of the law authorizing the official to act. Only when such absolute discretion—free decision-making without any constraints—is granted are ultra vires suits absolutely barred. And, as a general rule, “a public officer has no discretion or authority to misinterpret the law.” Cf. In re Smith, 333 S.W.3d 582, 585 (Tex. 2011) (orig. proceeding).
To be sure, absolute protection would go against the rationale for governmental immunity in the first place. Governmental immunity is premised in part on preventing suits that attempt to control state action by imposing liability upon the
Because the ultra vires standard we clarify today hems closely to the purposes underlying governmental immunity and the ultra vires exception generally, it does not create a new vehicle for suits against the state to masquerade as ultra vires claims—indeed, our opinion merely reinforces the narrow ultra vires principles we have repeatedly announced and endorsed. See Heinrich, 284 S.W.3d at 372; Fed. Sign, 951 S.W.2d at 404; Dodgen, 308 S.W.2d at 842. Although only exercises of absolute discretion are absolutely protected, whether a suit attacking an exercise of limited discretion will be barred is dependent upon the grant of authority at issue in any particular case. And so many legislative grants of authority, although not absolute, will be broad enough to bar most, if not all, allegedly ultra vires claims. See, e.g., Klumb, 458 S.W.3d at 11.
IV
In light of this clarification, we look to the ordinance‘s language to determine whether the railroads have properly alleged that Krueger acted ultra vires. As noted above, the court of appeals held that the railroads properly alleged an ultra vires claim as to Krueger‘s “benefitted property” determination but not as to his “impervious surface” determination. Construing the pleadings liberally in the railroads’ favor, we hold that they have alleged viable ultra vires claims as to both of Krueger‘s determinations. Accordingly, we affirm in part and reverse in part.
A
We apply rules of statutory construction to construe municipal ordinances. Bd. of Adjustment v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). Our primary objective in construing the ordinance is to ascertain and give effect to the enacting body‘s intent. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). To discern that intent, we start with the plain and ordinary meaning of the ordinance‘s words, using any definitions provided by the enacting body. See Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). We read the ordinance as a whole, presuming the enacting body purposefully included each word, In re M.N., 262 S.W.3d 799, 802 (Tex. 2008), and construing the ordinance to avoid rendering any word or provision meaningless. Kallinen v. City of Houston, 462 S.W.3d 25, 28 (Tex. 2015) (per curiam). When
B
The railroads pleaded that a number of their properties do not make use of the city‘s drainage system but instead discharge directly into natural bayous not owned or controlled in whole or in part by the city. They therefore argue that Krueger acted ultra vires in identifying such properties as benefitted. The court of appeals agreed. Relying on its holding in a companion case, City of Houston v. Little Nell Apartments, it held that “if, as the Railroads have pleaded, their properties do not fit within the definition of ‘benefitted property’ because they do not make use of the City‘s drainage system,” then Krueger does not have authority and discretion to impose drainage charges on the railroads’ properties. Houston Belt, 424 S.W.3d at 669 (citing City of Houston v. Little Nell Apartments, L.P., 424 S.W.3d 640 (Tex. App.—Houston [14th Dist.] 2014)). Construing the pleadings in favor of the railroads, the court of appeals then found that the railroads had pleaded a viable ultra vires claim. See id. We agree.
The ordinance charges Krueger with “administration of [the ordinance] including, but not limited to, enacting any procedures or policies necessary for the administration of the drainage system and the drainage charges . . . in accordance with and subject to the provisions of [the ordinance].” See
The ordinance was enacted “to enhance, improve and renew the City‘s drainage systems and streets.” See
“Benefitted property” is defined as “a lot or tract to which drainage service is made available under this article and
Reading “benefitted property” to mean “all properties within Houston” also renders a large part of that definition meaningless. Indeed, under the city‘s construction, the definition of “benefitted property” is mostly unnecessary: to construe “benefitted property” as the city does—to mean all properties within Houston—would render “and which discharges into a street, creek, river, slough, bayou, culvert, conduit, inlet, or other channel that forms part of the city drainage utility system” meaningless. See
The Little Nell court of appeals also found that the ordinance “does not contain any language indicating—even if the director has the authority to make [benefitted property] determinations—that he personally decides which properties are ‘benefitted.’ ” 424 S.W.3d at 654. We agree. Unlike Klumb, where the breadth of the pension board‘s authority and discretion was “inescapable,” Krueger‘s authority here is explicitly limited. See
The railroads’ pleadings allege that their properties are not “benefitted” because they do not make use of the city‘s drainage system but rather discharge into natural bayous not owned or controlled by the city. And they allege that Krueger thus acted ultra vires in classifying the railroads’ properties as benefitted without reference to the definition of “benefitted property” provided by the ordinance. Under the ordinance, natural bayous are not, as a matter of law, within the definition of “drainage system,” and the city did not bring forth any jurisdictional evidence to rebut the railroads’ allegations. Therefore, construing the pleadings liberally in the railroads’ favor, we find that the pleadings affirmatively allege an ultra vires claim. See Heinrich, 284 S.W.3d at 378. Accordingly, we affirm the court of appeals on this issue.
C
The railroads next contend they have properly pleaded that Krueger acted ultra vires in determining the “impervious surface” of their properly identified benefitted properties. The court of appeals, citing Krueger‘s authority to determine, adjust, review, and correct the amount of impervious surface on any given property, determined that the ordinance “grants [Krueger] authority with regard to the determination of ‘the area of impervious surface on each benefitted property.’ ” Houston Belt, 424 S.W.3d at 671. Then, finding that “[t]he plain language of the definition of ‘impervious surface’ . . . does not preclude all ‘room for judgment’ or ‘room for discretion’ in determining what additional ‘similar’ surface materials and ‘other’ surface features would meet the definition,” the court of appeals concluded that “the enacting body intended to grant [Krueger] the ability to exercise his discretion” in making “impervious surface” determinations. Id. at 672. Therefore, the court of appeals held that “because the Railroads only have alleged facts demonstrating acts within Krueger‘s legal authority and discretion under the ordinance, their claim seeks to control state action, and thus it is barred by sovereign immunity.” Id. at 673. We disagree.
The question is not, as the court of appeals framed it, whether Krueger was granted “the ability to exercise his discretion.” Rather, the question we must ask is
As discussed above, the ordinance provides that drainage charges are to be calculated by multiplying an applicable rate “by the area in square feet of impervious surface on each benefitted property.”
As the court of appeals properly noted, these sections—especially the “as shall be determined by [Krueger]” language—make clear that Krueger had authority to determine “impervious surface,” and specifically to decide what constitutes “other similar reliable data” and when he shall utilize such data in determining “impervious surface.” Houston Belt, 424 S.W.3d at 672. And indeed, the court of appeals properly found that the ordinance did not preclude all “room for judgment” or “room for discretion.” Id. But while Krueger clearly had authority, and while he clearly had to use some judgment in determining “impervious surface,” the court of appeals stopped short of asking whether his authority might nonetheless have some limits. If the court of appeals was correct to stop there, the ordinance must be read to give Krueger unbridled discretion to determine the types of data he relies upon in determining “impervious surface.” But that reading is hard to square with the ordinance, which lays out the specific types of data Krueger may use in his determination: “digital map data” or “other similar reliable data.” See
Indeed, the more natural reading of section 47-822(d)—and the reading that gives effect to each word—is that it imposes specific restraints upon the type of data that can be used in determining “impervious surface.” Here, it is undisputed that Krueger did not use digital map data. Thus, we must determine how “similar reliable data” restrains Krueger‘s choice of
In their pleadings before the trial court, the railroads argued that Krueger‘s aerial photography approach—which they now characterize as, “if it is green, it must be pervious“—is necessarily unreliable: under it, anything green, even artificial turf, will be found to be pervious; anything brown, even sandy areas with no vegetation, will be found to be impervious. Thus, the railroads contended that Krueger‘s chosen method failed to produce results consistent with the ordinance‘s definition of “impervious surface.” Their properties, they argued, contained significantly less impervious surface than Krueger had determined—indeed, they were “designed, engineered, and built so that [they] readily absorb[] water and allow[] water to percolate to the undisturbed underlying soil strata.”
The city countered that Krueger acted within his discretion in choosing to use aerial data, even if it ultimately resulted in improperly classifying pervious surfaces as impervious. Thus, the city argues that even if Krueger had determined brown grass was impervious, his determination would be protected by governmental immunity. However, the city assumes an incorrect view of the standard for alleging an ultra vires claim under Heinrich. Under the proper standard, the railroads need only to allege that Krueger acted outside his discretion by using an unreliable or dissimilar method to classify their properties as impervious. Here, we need not conclusively decide that aerial photography is dissimilar to digital map data or otherwise unreliable. In light of the railroads’ allegations that use of digital map data would in fact yield a significantly lower area of impervious surface on their properties than Krueger‘s aerial-photography method, and that Krueger‘s chosen method led to an improper classification of areas not meeting the “impervious surface” definition as impervious, our standard of review leads us to infer unreliability and dissimilarity in this case. See Heinrich, 284 S.W.3d at 378; Miranda, 133 S.W.3d at 226-27. Accordingly, construing the pleadings liberally in favor of the railroads, we find that the railroads’ pleadings are sufficient to confer the trial court with jurisdiction over their claim that Krueger acted ultra vires in determining the impervious surface of their properties.
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The railroads’ pleadings affirmatively allege that Krueger acted “without legal authority” in both his “benefitted property” and “impervious surface” determinations, and thus they have alleged viable ultra vires claims as to each. See Heinrich, 284 S.W.3d at 372, 378. Accordingly, we reverse the court of appeals’ judgment in part and remand this case to the trial court for further proceedings consistent with this opinion.
Justice Lehrmann filed a concurring opinion.
Justice Lehrmann, concurring.
I agree that the railroads have alleged viable ultra vires claims that are not barred by governmental immunity, and I join the Court‘s judgment and opinion in full. I write separately to elaborate on the Court‘s characterization of a governmental
Quoting our opinion in Rusk State Hospital v. Black, 392 S.W.3d 88, 91 (Tex. 2012), the Court notes that “immunity from suit implicates courts’ subject-matter jurisdiction.” Id. at 91. Notably, when we made that statement in Rusk, we stopped short of saying that “immunity equates to a lack of subject-matter jurisdiction for all purposes.” Rusk State Hosp., 392 S.W.3d at 95; see also id. at 102 (Hecht, J., concurring) (noting that “the Court does not equate immunity to a lack of subject-matter jurisdiction“). Our use of the word “implicates” was no accident.
That immunity from suit implicates aspects of subject-matter jurisdiction has led us to hold that certain rules associated with the subject-matter jurisdiction label apply to such immunity, including that it may be raised for the first time on interlocutory appeal. Id. at 94; see also Tex. Dep‘t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (holding that immunity from suit is properly raised in a plea to the jurisdiction). We have not yet had occasion to address whether certain other aspects of subject-matter jurisdiction apply to immunity from suit. See, e.g., Rusk State Hosp., 392 S.W.3d at 102 (Hecht, J., concurring) (“[W]hile a court is obliged to examine its subject-matter jurisdiction on its own in every case, we have never suggested that a court should raise immunity on its own whenever the government is sued.“). Most notably, we have not examined whether a governmental entity‘s immunity from suit renders a final judgment against the entity void and thus “forever . . . open to reconsideration.” In re United Servs. Auto Ass‘n, 307 S.W.3d 299, 309 (Tex. 2010) (“A judgment is void if rendered by a court without subject matter jurisdiction.“).
This case does not present these questions, making it unnecessary to further examine here the nature of the government‘s immunity from suit. I mention these issues only to clarify that they remain unresolved and suitable for further analysis in the proper case.
IN RE Stacey BENT and Mark Bent, Relators
NO. 14-1006
Supreme Court of Texas.
Argued November 4, 2015 OPINION DELIVERED: April 1, 2016