Stanley BACON, Jr., Appellant v. TEXAS HISTORICAL COMMISSION, Appellee
No. 03-12-00306-CV
Court of Appeals of Texas, Austin
Sept. 12, 2013
Joe H. Thrash, Assistant Attorney General Administrative Law Division, Austin, TX, for Appellee.
Before Justices PURYEAR, PEMBERTON, and ROSE.
OPINION
BOB PEMBERTON, Justice.
Although the heroism and sacrifice of forebears are never far from the minds of her citizenry, Texas has nonetheless accorded special emphasis to certain of these persons and their deeds through the placement of thousands of state government-approved historical markers, known today as “Official Texas Historical Markers.” While these markers can vary somewhat in appearance, they uniformly convey to the reader an often-fascinating array of historical facts that can range from the merely colorful to the inspiring, and in either case provide a good excuse to pause whatever one is doing long enough to stop and read them. But what if, upon absorbing the content of one of these Official Texas Historical Markers, a reader is struck by a factual assertion that, according to his or her own personal knowledge, experience, or expertise, is dubious or just flat-out wrong?
This appeal arises from such a disagreement about the accuracy of facts presented in an Official Texas Historical Marker. However, this Court is called upon not to decide whose version of history is correct, but the extent to which the Texas judiciary has jurisdiction to intervene in that debate in the first place. Under the circumstances presented here, at least, we conclude that the dispute must instead be resolved—if it even can be resolved by any instrumentality of our state government—within the Legislative or Executive branches.
BACKGROUND
The “Official Texas Historical Marker” program
Although our 1876 Texas Constitution has specifically empowered the Legislature to “make appropriations for preserving and perpetuating memorials of the history of Texas,”1 and there have been other subsequent Texas state-government-sanc-
At the agency‘s inception, the Legislature emphasized that its delegated “purpose [is] to give leadership, coordination and service where it is needed and where it is desired,” “not ... to duplicate or replace existing historical heritage organizations and activities,” and that it “shall exercise no authority over any organization, agency, or institution of the state.”7 However, in 1963, the Legislature made an exception to these limitations by amending the Committee‘s enabling statute to authorize and direct the agency, “in order to assure a degree of uniformity and quality of historical markers, monuments, and medallions within the State of Texas,” to “review, pass upon or reject the final form, dimensions, substance of and inscriptions or illustrations on any historical marker, monument, or medallion before its erection by any county, incorporated city, or the State Building Commission, within this state.”8
A decade later, the Legislature repealed and reenacted the agency‘s enabling statute, changing the agency‘s name to the current “Texas Historical Commission,”9 and not only directed it to “give direction and coordination to the state historical marker program,” but specifically charged it with “the responsibility for marking districts, sites, individuals, events, structures, and objects significant in Texas and American history, architecture, archaeology, and culture, and keep[ing] a register thereof.”10 And, similar to the prior statute, THC was specifically empowered to “review, pass upon, or reject the final form, dimensions, text or illustrations on any marker, monument, or medallion before its fabrication by the state, or any county, county historical survey committee, incorporated city, individual, or organization within this state.”11 “The markers so approved,” the act added, “shall be designated by [THC] as Official Texas Historical Markers.”12 Substantively identical language has remained a component of THC‘s enabling statute—now chapter 442 of the Government Code—to this day. See
The Mount Bonnell historical marker
In 1969, the agency, still known then as the Texas State Historical Survey Committee, approved a new historical marker that was placed upon the Austin landmark long known as Mount Bonnell, where it still stands today near the base of the stairway that leads from the parking area to the summit. The Mount Bonnell historical marker is titled, simply, “Mount Bonnell,” and, like many other such markers, consists of a metal plate or tablet in a shield-like shape, with silver lettering against a black or dark gray background, and has the agency‘s seal at the top. In addition to confirming that Mount Bonnell rises to 775 feet above sea level, the silver letters advise the reader that, inter alia, the legendary Texas Ranger “Bigfoot” Wallace once killed an “Indian” nearby, that a Mormon-built mill was once located on the Colorado River shoreline that bounds the mountain‘s western base, and that, in 1898, a Miss Hazel Keyes “slid down a cable” (perhaps an early-day version of a zip line) that stretched from the summit to the river‘s opposite shore.
Of more direct significance to this appeal, the marker also states that Mount Bonnell was named for a George W. Bonnell, who, the reader is further informed, “came to Texas with others to fight for Texas independence, 1836.” The marker adds that this Mr. Bonnell eventually moved to Austin in 1839 (which many readers might remember as the year in which Texas‘s capitol city came into exis-
One might deduce from such factual assertions that the naming of the peak for George W. Bonnell, as represented in the Mount Bonnell historical marker, might have been a product of his presence in town during Austin‘s infancy, or of some prominence he acquired there as a newspaper publisher, or perhaps was some sort of recognition or honor for service or sacrifice for Texas. But as with the marker‘s placement near the first of the one-hundred-or-so steps leading upward to the Mount Bonnell summit‘s renowned views, its contents signal only the beginnings of a debate as to how that peak acquired its name.
The dispute
Appellant Stanley Bacon is a retired United States Army officer who lives in Austin. He is a graduate of the United States Military Academy at West Point and serves on the board of directors of an organization known as the West Point Society of Central Texas, which professes to represent hundreds of his fellow West Point graduates who now reside in the Austin area. For at least the past decade, Bacon and other Society members have devoted considerable efforts to drawing public attention to the life story of a fellow U.S. Army officer and West Point graduate, Class of 1825, whom they maintain played a critical though often-unsung role in winning Texas‘s independence from Santa Anna‘s Mexico. It happens that this U.S. Army officer from long ago had the surname of Bonnell—Joseph Bonnell.15 And it was this Joseph Bonnell of early Texas—not the George W. Bonnell credited on the Official Texas Historical Marker—whom Society members believe was most likely the true namesake of Mount Bonnell.16
Compounding this slight to a true Texas military hero, in the eyes of Society members, is the marker‘s accompanying assertion that George W. Bonnell “came to Texas with others to fight for Texas independence, 1836.” That statement, they insist, is at odds with an inconvenient historical truth—George, according to them, did not arrive in Texas until mid-August 1836, about four months after Texas had already won her independence at San Jacinto. Consequently, they urge, the marker appears to falsely credit George with fighting in the Texas Revolution, and that the only way it could be considered even technically or literally true (albeit still misleading) is if one construes it to mean that George traveled to Texas with the motive to fight in a revolution that he was somehow unaware had already ended four months earlier. Such an inference, they suggest, would be both dubious and—in purporting to recount George‘s subjective state of mind over a century earlier—founded on empty speculation.
Proceedings before THC
Starting not later than 2004, Society members, including Bacon, undertook efforts to persuade THC to approve a replacement or modification of the 1969 Mount Bonnell historical marker—at the Society‘s expense—to correct what they view as its erroneous attribution of the peak‘s name to George rather than Joseph Bonnell. The precise course of these proceedings before the agency is somewhat murky, however, because the complete administrative record was never brought forth from THC to the district court so as to be part of our record on appeal. On the other hand, Bacon did file, without objection from THC, certain excerpts from the administrative record as evidence in the district court. Consistent with our standard of review,17 we have based the following summary of material events at the agency on the facts alleged in Bacon‘s live pleadings and the portions of the administrative record he filed in district court.
Roughly a year later, on October 6, 2005, THC‘s executive director wrote Graham advising him of a decision not to change the Mount Bonnell marker. A copy of this letter is in the record. The letter states that after reviewing “your background information related to Mount Bonnell in Austin” (not in the appellate record), and after having “also consulted with a number of colleagues and historical organizations” and “weighing all the information,” the agency staff “have decided not to replace our marker.” Bacon alleges, and THC acknowledges, that the agency did not conduct any sort of formal evidentiary hearing prior to this determination. The letter concludes by thanking Graham for his “enthusiasm for the life of Joseph Bonnell” and assuring him that “should we uncover any conclusive evidence in the future that the Austin landmark was named for him, we will certainly let you know.”
The next administrative activity regarding the Mount Bonnell marker that is reflected in Bacon‘s pleadings or evidence occurred in August 2011. On August 22, 2011, Bacon submitted to THC a 25-page research paper prepared by another Society member, Frederick C. Bothwell, III, and titled, Reconsidering the Historical Marker on Mount Bonnell. This paper is included in the appellate record, along with affidavits from Bacon and Bothwell attesting to various facts relating to the paper‘s creation and use.19 Bacon further pleads that Bothwell‘s Reconsidering the Historical Marker on Mount Bonnell contained “substantial new evidence” beyond the application and materials that Society members had previously submitted to the agency (and that are not in the record).
On the same date that Bacon alleges and avers that he filed Reconsidering the Historical Marker on Mount Bonnell with
Although the evidence [submitted by Bacon and other Society members] is persuasive, we believe that it is at least equally possible that the mountain was named for George Bonnell, a local resident who had some standing in the community at that time.
The letter further elaborated that the TCHC, in what would have been a departure from its 2004 position, “continue to maintain that they want to keep the current marker in place.” This was potentially significant because, during the intervening years, THC had amended its rules governing historical marker applications to impose new limitations that included requiring applicants to first obtain approval from the local county historical commission before proceeding to THC.20 Accordingly, THC maintained that since the TCHC had not “request[ed] changes to the marker, or the placement of an additional marker,” but instead “is satisfied,” “this matter is concluded.” THC added that “[t]here are more than 15,000 markers across Texas, and while we appreciate your enthusiasm for this single marker, our agency cannot dedicate more staff or commission time to this issue.” Bacon alleges, and THC acknowledges, that the agency did not afford him a formal evidentiary hearing prior to this “final decision” (which, again, was issued on the same day that he had submitted Reconsidering the Historical Marker on Mount Bonnell).
On appeal, THC presents what purport to be copies of agendas and minutes from several years’ worth of meetings of its commissioners and of a “History Committee” and urges that these documents are proof of intervening agency proceedings in which Society members advocated their position regarding the Mount Bonnell marker. Even if we were to consider these documents from outside the record,21 they would, without more, be competent evidence only that the “Mount Bonnell Official Texas Historical Marker” was posted as a topic of discussion at a single meeting of the THC‘s History Committee on July 28, 2011, not necessarily that this had any thing to do with Society members or their efforts to get the marker changed. In either event, these documents presented by THC on appeal are not material to our analysis.
Proceedings in the district court
On September 20, 2011, Bacon sued THC in the district court. His principal claim for relief was based on section 2001.171 of the Administrative Procedure Act (APA),22 which waives sovereign immunity to the extent of permitting a party
THC interposed a plea to the jurisdiction, arguing that Bacon‘s claims were barred by sovereign immunity and that he had no standing to assert them. As previously noted, Bacon filed, without objection from THC, certain excerpts from the administrative proceedings and other evidence of those events. Following a hearing at which no further evidence was presented, the district court granted THC‘s plea and rendered judgment dismissing the case for want of subject-matter jurisdiction.
Bacon appeals that judgment.
ANALYSIS
Bacon brings four issues on appeal, contending that the district court erred in concluding that it lacked subject-matter jurisdiction because, he urges, sovereign immunity did not bar his claims and he has standing to assert them. Alternatively, Bacon insists that the district court erred in dismissing the case without affording him an opportunity to replead.
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). Whether this authority exists turns in the first instance on the content of the claimant‘s live pleadings. Id. at 226. The plaintiff 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., 852 S.W.2d at 446). 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. If the pleadings fail to allege sufficient facts to affirmatively demonstrate the trial court‘s jurisdiction but also fail to affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If, on the other hand, the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.
Our ultimate inquiry is whether the particular facts presented, as determined by the foregoing review of the pleadings and any evidence, affirmatively demonstrate a claim within the trial court‘s subject-matter jurisdiction. See Miranda, 133 S.W.3d at 226; Creedmoor-Maha, 307 S.W.3d at 513, 516 & n. 8. That is a question of law that we review de novo. See Miranda, 133 S.W.3d at 226.
Resolution of this ultimate question frequently entails construction of statutes, which in itself presents a question of law.
Jurisdictional limitations on suits challenging governmental action
As THC emphasizes, Bacon‘s claims against THC could have invoked the district court‘s subject-matter jurisdiction only if he somehow overcame or avoided two fundamental limitations on the subject-matter jurisdiction of Texas state courts to entertain suits challenging governmental action: (1) sovereign immunity; and (2) constitutional standing requirements.
Sovereign immunity
Absent Legislative waiver, sovereign immunity deprives Texas 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 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 (1985))). Simply described, sovereign immunity generally shields our state government‘s “improvident acts“—however improvident, harsh, unjust, or infuriatingly boneheaded these acts may seem—against the litigation and judicial remedies that would be available if the same acts were committed by private persons. See Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006).
Perhaps somewhat ironically here, the doctrine of sovereign immunity has its roots in the English common-law notion that no wrong could be done by royalty from whom the American military long ago liberated our People. See id. at 331 (noting that sovereign immunity has evolved over the centuries from the fiction that “the king can do no wrong” (citing William Blackstone, 3 Commentaries on the Laws of England 254 (1768)). Nonetheless, it was not long after the Texas Revolution that the Texas Supreme Court recognized the doctrine of sovereign immunity to be part of Texas‘s common law,23 and the high court has continued to adhere to the doctrine to this day. However, its contemporary rationale derives not from the prerogative of royalty but from the tripartite form our democratic self-government has taken—namely, a view that the Legislature, not the Judiciary, is best suited to make the policy-laden judgments as to if and how state government resources should be expended. See, e.g., Sefzik, 355 S.W.3d at 621 (citing Texas Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)); Tooke, 197 S.W.3d at 331-32.24 This principle of judi-
Consequently, sovereign immunity compels Texas courts to defer to the Legislature as the gatekeeper controlling when and how citizens can sue their state government or its officers for their official acts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003) (noting that “the Legislature is better suited to balance the conflicting policy issues associated with waiving immunity“) (citing, among other cases, IT-Davy, 74 S.W.3d at 854). The Legislature may consent to suits against the State by statute or resolution. IT-Davy, 74 S.W.3d at 853-54 (citing General Servs. Comm‘n v. Little-Tex. Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001)). “Legislative consent to sue the State must be expressed in ‘clear and unambiguous language.‘” Id. at 854 (quoting
However, under what is termed the “ultra-vires exception” to sovereign immunity, such immunity is not considered to be implicated by a suit against 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. But 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.
One implication of these principles is that there is no general right to challenge or seek review of a state agency order or decision in Texas state court; to the contrary, state agency decisions generally cannot be challenged in court unless the Legislature has enacted a statute expressly authorizing such review. See Mega Child Care, Inc., 145 S.W.3d at 198; Creedmoor-Maha, 307 S.W.3d at 514.25
Standing
Even if sovereign immunity has been waived or would otherwise not be a bar to a suit to challenge governmental action, additional limitations on the subject-matter jurisdiction of courts are imposed by the Texas Constitution. These include the constitutional requirement of standing, which imposes certain threshold standards regarding the stake a plaintiff must possess in a dispute before a court can exercise subject-matter jurisdiction to resolve it. See Texas Ass‘n of Bus., 852 S.W.2d at 443-45. The general test for constitutional standing in Texas courts is whether there is a “real” (i.e., justiciable) controversy between the parties that will actually be determined by the judicial declaration sought. See id. at 446. Constitutional standing is thus concerned not only with whether a justiciable controversy exists, but whether the particular plaintiff has a sufficient personal stake in the controversy to assure the presence of an actual controversy that the judicial declaration sought would resolve. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). The requirement thereby serves to safeguard the separation of powers by ensuring that the judiciary does not encroach upon the executive branch by rendering advisory opinions, decisions on abstract questions of law that do not bind the parties. See Texas Ass‘n of Bus., 852 S.W.2d at 444.
Further, with regard to complaints about governmental action in particular, standing doctrines serve to prevent judicial incursions into abstract or generalized public policy disputes that are properly resolved in the other branches. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 576-78 (1992) (discussing role of standing requirements in preventing judicial incursions into legislative and executive spheres); Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“[W]e may look to the similar federal standing requirements for guidance.“). They also “reflect in many ways the rule that neither citizens nor taxpayers can appear in court simply to insist that the government and its officials adhere to the requirements of law.” Andrade v. Venable, 372 S.W.3d 134, 136-37 (Tex. 2012) (quoting Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011) (quoting Charles Alan Wright et. al., 13A Federal Practice and Procedure § 3531.10 (3d ed. 2008))). “Generally, ‘a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts.‘” Id. at
“Unless standing is conferred by statute, a plaintiff must show that he has suffered a particularized injury distinct from the general public.” Id. (citing Bland, 34 S.W.3d at 555-56); see Brown, 53 S.W.3d at 302 (“Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.“); Tri County Citizens Rights Org. v. Johnson, 498 S.W.2d 227, 228-29 (Tex. Civ. App.—Austin 1973, writ ref‘d n.r.e.) (“It is an established rule ... that ... sufficiency of a plaintiff‘s interest (to maintain a lawsuit) comes into question when he intervenes in public affairs. When the plaintiff, as a private citizen, asserts a public, as distinguished from a private, right, and his complaint fails to show that the matters in dispute affect him differently from other citizens, he does not establish a justiciable interest.“) (quoting 1 Roy W. McDonald, Texas Civil Practice § 3.03, at 229 (rev. vol. 1965)). That is, “a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical.” DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008). More specifically, the “irreducible constitutional minimum” of standing consists of three elements:
- “the plaintiff must have suffered an ‘injury in fact‘—an invasion of a ‘legally protected’ [or cognizable] interest which is (a) concrete and particularized and (b) ‘actual or imminent, not conjectural or hypothetical’ “;
- “there must be a causal connection between the injury and the conduct complained of“—the injury must be “fairly traceable” to the challenged action of the defendant and not the independent action of a third party not before the court; and
- it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61; see Brown, 53 S.W.3d at 305; Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, pet. denied).
Jurisdiction over Bacon‘s claims
With these limitations in mind, we now turn to Bacon‘s specific arguments as to why or how he invoked the district court‘s subject-matter jurisdiction nonetheless. In his first issue, Bacon argues that he invoked the district court‘s jurisdiction by asserting claims under a “private attorney general” provision of THC‘s enabling statute, section 442.012(a) of the Government Code. In his second issue, Bacon urges that he asserted claims within the ultra-vires exception to sovereign immunity by alleging conduct by THC that exceeded its authority. In his third issue, somewhat related to his second, Bacon maintains that THC violated his rights and exceeded its authority in various ways through the procedures it followed in denying his request or requests to change the Mount Bonnell historical marker. In his fourth and final issue, Bacon insists that he invoked the district court‘s jurisdiction through his constitutional claims.
Before further exploring each of Bacon‘s contentions, we should make three threshold observations suggested by THC. First, Bacon—who is aided by new additional counsel on appeal—purports to have asserted several claims that he did not actu-
Second, we observe that Bacon purports to have asserted claims solely against THC. Sovereign immunity would categorically bar those claims unless and only to the extent that the Legislature has waived THC‘s sovereign immunity against them. See Sefzik, 355 S.W.3d at 620-21. Likewise, so long as Bacon sues only THC, he has not and cannot invoke the district court‘s jurisdiction through the ultra-vires exception to sovereign immunity, which requires that he instead name an agency officer, in his or her official capacity, as the defendant. See id. at 621-22; Heinrich, 284 S.W.3d at 372-73. This is true not only of Bacon‘s current or potential claims predicated on THC actions that allegedly exceed its statutory authority, but also Bacon‘s constitutional claims, which are merely a species of ultra-vires claims. See Heinrich, 284 S.W.3d at 371-72; Creedmoor-Maha, 307 S.W.3d at 514-15. However, to the extent that any such jurisdictional defect in an ultra-vires claim is considered to be curable by repleading, see Sefzik, 355 S.W.3d at 623, we will proceed to address whether Bacon has otherwise invoked (or could invoke) the district court‘s jurisdiction over these claims.
Our third and final threshold observation is that Bacon cannot claim any legally protected interest in the content of the Mount Bonnell historical marker, per se, that would be considered distinct from that of the general public. THC approves Official Texas Historical Markers on behalf of all the people of Texas, who share a common stake in the accuracy and professionalism with which the agency (or any agency) performs its delegated duties on their behalf, and even a complaint that THC was somehow acting illegally or abusing its discretion in regard to the Mount Bonnell marker would not, in itself, confer standing upon Bacon to challenge the agency‘s actions in court. See Venable, 372 S.W.3d at 136-37. Nor can Bacon make any claim of a property right in the marker itself. Likewise, the content of the marker does not refer to Bacon, but to third parties and events occurring almost two centuries ago. And while Bacon, like other Society members, emphasizes a deep commitment and sense of duty to defend what he views as the recognition and honor properly owed to a fellow soldier, West Point graduate, and military hero, such subjective interests or concerns, however admirable, are not in themselves considered to rise to the level of a justiciable interest that can support standing in court. See Save Our Springs, 304 S.W.3d at 894 (holding that members of advocacy group who claimed “environmental,” “scientific,” and “recreational” interests in preventing alleged pollution of a public spring-feed pool, without more, had not established interest distinct from that of general public); see also Lujan, 504 U.S. at 575-77. To the contrary, they merely signal an impetus for the democratic political participation in which Society members, like other members of the public, are free to engage through the Legislative and Executive branches. See Lujan, 504 U.S. at 576,
Within his four issues, however, Bacon insists that he has asserted (or could assert) four sets of claims that are not barred by sovereign immunity and in which he has an interest going beyond his subjective concerns with the content of the Mount Bonnell historical marker.
Section 442.012(a)
In his first issue, Bacon argues that he asserted (or could assert) a claim under Government Code section 442.012(a), a “private attorney general” provision of THC‘s enabling statute that permits “any resident of this state [to] file suit in district court to restrain and enjoin a violation or threatened violation of this chapter ..., to recover on behalf of the state a civil penalty provided by this chapter, ... or for both injunctive relief and a civil penalty.” See
In order for a statute to be construed by the courts as allowing a claim against the government, it must clearly and unambiguously waive sovereign immunity. See id.
Applicant status
Bacon‘s second and third issues are premised on an assertion that he acquired standing to assert several of his claims (or potential claims) by virtue of his status as an applicant for THC approval of a new Mount Bonnell historical marker.27 In his
Relatedly, Bacon urges that THC exceeded its authority by requiring him to present “conclusive evidence” that Mount Bonnell was named for Joseph Bonnell in order to obtain THC approval of a replacement marker. This assertion is based on his interpretation of the October 2005 letter from THC‘s executive director advising that the agency staff had declined to approve a replacement marker and that “should we uncover any conclusive evidence in the future that the Austin landmark was named for him, we will certainly let you know.” Further, in his third issue, Bacon argues that this purported “conclusive evidence” standard amounted to a “rule” under the APA. He emphasizes that the Legislature explicitly made THC “subject to ... the administrative procedures
Also within his third issue, Bacon advances what amounts to a more nuanced version of his trial-level argument that THC‘s proceedings had constituted a “contested case,” such that he could seek judicial review from the agency‘s “final decision” under APA 2001.171.28 Again emphasizing THC‘s reference to “conclusive evidence” in its 2005 letter, Bacon insists that the agency required him to prove conclusively that Mount Bonnell was named for Joseph Bonnell, and that this imposition of a standard contemplating proof and evidence entitled him to a contested-case hearing (and, in turn, to seek judicial review via APA section 2001.171).
None of these claims (or potential claims) invoke the district court‘s subject-matter jurisdiction. The reasons why begin with the fundamental distinction between “standing” before an administrative agency (i.e., the right to participate in some fashion, formally or informally, in an administrative proceeding) and the constitutional standing required to invoke a court‘s subject-matter jurisdiction. “Standing” to participate in an agency proceeding does not in itself confer, and is not the same as, the constitutional standing required to litigate in court. See Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 386 (Tex. 1967) (citing Brazosport, 342 S.W.2d at 747); see also Fort Bend Cnty. v. Texas Parks & Wildlife Comm‘n, 818 S.W.2d 898, 899-900 (Tex. App.—Austin 1991, no writ) (discussing prior version of APA and noting that standing to participate in an agency proceeding does not necessarily confer standing to appeal agency‘s decision); City of Houston v. Public Util. Comm‘n, 599 S.W.2d 687, 690 (Tex. Civ. App.—Austin 1980, no writ) (noting that fact that party is allowed to participate in administrative hearing is not conclusive of the issue of a “justiciable interest” for purposes of judicial review of agency action). Rather, Bacon must meet the constitutional standing requirements to seek judicial relief regarding the THC proceedings—and the bare fact that he could be said to have “standing” before the agency is not enough. See, e.g., Texas Rivers Prot. Ass‘n v. Texas Natural Res. Conservation Comm‘n, 910 S.W.2d 147, 151 (Tex. App.—Austin 1995, writ denied); Fort Bend Cnty., 818 S.W.2d at 899. In short, Bacon‘s status as an applicant for a new Mount Bonnell historical marker does not in itself resolve his standing problems that we noted at the beginning of this section.
In any event, even if Bacon could be said to possess some sort of legally protected interest by virtue of his applicant status, analysis of the statutory scheme defining THC authority over Official Texas Historical Markers demonstrates that sovereign immunity would bar the claims addressed in his second and third issues. Contrary to Bacon‘s view, the Legislature has delegated THC broad authority to control the content of historical markers. See
Likewise, while delegating this broad authority to THC to control historical content and other features of Official Texas Historical Markers, the Legislature did not prescribe or require any particular fact-finding procedure that the agency must follow in regard to historical content. The Legislature required only that THC establish guidelines for marker applications and THC‘s review of such applications, but left the material features of
Finally, the Legislature did not authorize any form of judicial review of a THC decision to “award” or not “award” a marker, approve or reject text or historical content, or any of the incidental decisions the agency makes during that process. It did not create any such right in THC‘s enabling statute. See
The absence of judicial review, together with the other features of the statutory scheme governing THC approval of Official Texas Historical Markers, confirms the Legislature‘s intent to delegate broad discretion to THC to decide the content of such markers and how it decides it. See Creedmoor-Maha, 307 S.W.3d at 514-15; Merritt v. Cannon, No. 03-10-00125-CV, 2010 WL 3377778, at *2 (Tex. App.—Austin Aug. 27, 2010, pet. denied) (mem. op.) (citing id.). These statutory features also demonstrate that Bacon can avail himself of neither the waiver of sovereign immunity in APA section 2001.171 (again, no contested case), nor the ultra-vires exception—he has not complained of any THC conduct that would exceed its statutory authority, see Heinrich, 284 S.W.3d at 372 (to come within ultra-vires exception, plaintiff “must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act“). They likewise demonstrate that the “right” or “interest” that a marker applicant possesses is ultimately little more than the opportunity to petition
Property interest
Bacon‘s remaining jurisdictional theories, asserted in his fourth and final issue, relate to his constitutional claims. In an attempt to bring this case under the “inherent right of judicial review” rubric, Bacon insists that he has complained of conduct by THC that deprived him of “vested rights,” i.e., property, in a manner violating the due-process guarantees of the Texas and U.S. constitutions. See Chemical Bank, 369 S.W.2d at 433 (“When a vested property right ... has been affected by the action of an administrative agency, thereby invoking the protection of due process of law, there is an inherent right of appeal.“) (citing Brazosport, 342 S.W.2d at 750; Hancock, 239 S.W.2d at 790). As the source of the property right on which such a claim must be based, see id., Bacon points to “valuable copyrighted intellectual property“—the paper that he filed with THC in 2011, Reconsidering the Historical Marker on Mount Bonnell. As an initial observation, this paper was not authored by Bacon, but by another Society member, Bothwell, and it is Bacon, not the Society or its other members, who is the plaintiff here and must possess the property right and, in turn, standing. But more fundamentally, even if Bacon could claim some sort of ownership interest in Bothwell‘s paper, he has not alleged or presented evidence of facts that would constitute a deprivation of such rights in a manner violating due-process protections.
In contending otherwise on appeal, Bacon seems to presume that it is enough for him to plead legal conclusions to the effect that THC “violated due process” by “depriving” him of property rights in the paper. To the contrary, Bacon‘s burden is to present facts that would constitute due-process violations. See Creedmoor-Maha, 307 S.W.3d at 517. The only due-process “deprivations” of which Bacon seems to complain, even implicitly, is that THC disagreed with or simply ignored the historical content of the paper without holding a trial-like hearing to determine its historical merits. We have already rejected the notion that the Legislature required THC to conduct any such procedure before rejecting Bacon‘s request, and Bacon refers us to no authority suggesting that the state or federal constitutions do. Nor does Bacon explain why or how his asserted “property right” in the paper was somehow infringed by THC‘s exercise of its discretion not to change the Mount Bonnell marker to conform to those views. Ba-
Speech guarantees
Bacon‘s remaining constitutional claims purport to be rooted in the free-speech guarantees contained in the First Amendment to the U.S. Constitution30 and article I, section 8 of the Texas Constitution. He places particular emphasis on the portion of the Texas protection that is emphasized below:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
We overrule Bacon‘s fourth issue.
“Fact issues” and right to replead
In addition to advocating the foregoing jurisdictional theories, Bacon complains that the district court committed two types of procedural errors in rendering its judgment of dismissal. First, Bacon insists that the district court pretermitted numerous “fact issues,” citing Miranda. The principle that Bacon attempts to invoke, as previously explained, holds that where a plea to the jurisdiction challenging the existence of a jurisdictional fact that overlaps the merits of a claim, the plea cannot be sustained unless the challenger overcomes a summary-judgment-like burden of conclusively negating the fact‘s existence as a matter of law; otherwise, the fact‘s existence must be determined at trial. See Miranda, 133 S.W.3d at 228. In contrast, to the extent Bacon complains of “fact issues” regarding jurisdictional facts that do not overlap the merits of his claims—e.g., facts that went solely to his standing31—we would presume that the district court implicitly found (or failed to find) them in a manner that supported its judgment. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no pet.); Combs, 292 S.W.3d at 719. But even leaving this distinction aside, the district court would not have erred in proceeding to grant THC‘s plea.
Bacon‘s second asserted procedural error is that the district court did not afford him an opportunity to replead before dismissing his suit. As previously noted, a claimant is entitled to an opportunity to replead if the jurisdictional defects in his pleadings are not considered to be incurable. See Sefzik, 355 S.W.3d at 623; Koseoglu, 233 S.W.3d at 840; Miranda, 133 S.W.3d at 226-27. Because Bacon has relied on numerous jurisdictional theories that he raises for the first time on appeal, our analysis rejecting those theories has, in essence, also confirmed that those jurisdictional defects are incapable of being cured. Accordingly, the district court was not required to afford him an additional opportunity to invoke its subject-matter jurisdiction.
CONCLUSION
Were we called upon to decide, at least on this record, whether the current Official Texas Historical Marker at Mount Bonnell is entirely accurate, or if the factual assertions within it are supported by legally or factually sufficient evidence of the sort that a fact-finder could properly rely upon in court, we might well conclude that these are close and difficult questions. For that matter, we might well conclude the same thing about Bacon‘s competing version of history, which rests upon a succession of inferences derived from circumstantial evidence that is now almost two centuries old. But this is not a dispute into which the Texas Judiciary has the subject-matter jurisdiction to intervene, and that is what controls our disposition of this appeal.
In this respect, at least, the outcome of this appeal would be the same even if the Mount Bonnell historical marker had stated that Bigfoot Wallace had encountered not only the “Indian” he killed nearby, but also Christopher Columbus and dinosaurs. The prospect that THC would actually approve such text in an Official Texas Historical Marker is presumably unlikely (one hopes), but if the agency were ever so inclined, the checks and balances found elsewhere in the Executive Branch and in the Legislature might well give it some pause. Likewise, it would remain the Legislature‘s prerogative, within constitutional constraints, to alter these checks and balances, including and not limited to providing the additional check of a judicial remedy. It is in such mechanisms of the Legislative and Executive Branches, not in the Judicial Branch, where Bacon‘s remedy, if any, would currently lie.
Accordingly, we affirm the district court‘s judgment of dismissal.
Notes
The Society has presented its research and advocacy regarding Joseph Bonnell to the public through a variety of means, including a website, see West Point Society of Central Texas, http://www.west-point.org/society/ wps-centx/ (last visited Aug. 19, 2013), on which can be found a more complete presentation of its historical analysis. For authority espousing a more favorable view of George W. Bonnell and his contributions to Texas history, see L.W. Kemp, “BONNELL, GEORGE WILLIAM” Handbook of Texas Online, http://www.tshaonline.org/handbook/online/articles/rjm28 (last visited Aug. 22, 2013); see also The Texas Republic, A Social and Economic History 271 (Univ. of Tex. ed. 1969) (1946) (noting, among examples of “respected citizens” of the Republic who “were involved in altercations” reflected in its court records, that “Jefferson Wright and George W. Bonnell had two fistic encounters following Bonnell‘s insinuations that Wright was a coward and had ‘resigned his Indian agency from fear,‘” and adding that Wright had “dared Bonnell to a 3d contest before more than 300 people & abused him in the strongest manner.“) (quoting Letter from James Reily to Henry Raguet (Nov. 20, 1838)).