### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00723
- CV

Benedict C. Ogbodiegwu , Appellant

v. Bryan Daniel, in his Official Capacity; Edward Serna, in his Official Capacity; Isabel Camarilla, in her Official Capacity; J. Tucker, in his Official Capacity; C. Gloria, in his Official Capacity; Texas Workforce Commission; Julian Alvarez, in his Official Capacity; Aaron Demerson, in his Official Capacity; and B. Grayson, in his Official Capacity , Appellee s

FROM THE 425TH JUDICIAL DISTRICT CO U RT OF WILLIAMSON COUNTY NO. 22-0929-C425, THE HONORABLE BETSY F. LAMBETH , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is a dispute over the Texas Work force Commission ’ s denial of Benedict C. Ogbodiegwu’ s application for unemployment be nef it s. Ogbodiegwu appeals from the trial court ’ s judgment gran ting the Commission ’ s Ru le 91a motion to dismiss and sustaining its plea to the jurisdiction

. We affirm.

BACKGROUND Ogbodiegwu filed his first claim fo r unemployment benefits on November 29, 202 0. The Commission approve d his claim, and he received $535 per month in benefits from November 28, 2020, to November 26, 202 1. Ogbodiegwu filed a second claim on November 28, 2021. The Commission denied his claim because Ogbodiegwu ’s wages in the2 previo us year di d not meet the statutory threshold. See Tex. Lab. Code § 207.021 (a)(7) ( requiring applicant to have made at least “ not less than six times the individual ’ s benefit
amount ” in pre vious benefit year)

. Ogbodieg wu challenged the denial using the Co mm ission ’s internal processes. During those proce edings, Ogbodiegwu requested , pursuant to the P ublic Information Act (P IA) , see generally Tex. Gov ’ t Code § § 552.001

– .37 6 , that the Commission supply him with aud io recording s of his phone calls with Commis si on staff and the record of a hear ing

. According to Ogbodiegwu ’ s pleadings , each request was refused

. The Commission ultimately issued a final decision denying Ogbodiegwu ’ s s econd application

. Ogbodiegw u sued the Commission, the commissioners, and sever al staff me mbers (collectively, “ the Commission ” )

. H e so ught judicial review of the Commission ’ s decision ,

s ee Tex. Lab. Code § 212.201 (authorizing aggrieved party to file suit for judicial review of Commission ’s decision ) , and mone y damages for purporte d violations o f the PIA

. The Commission filed a R ule 91a motion to dismiss the judici al

- review claim and a plea to the jurisdiction on the PIA c laim. Following a h earing, the trial court granted the motion to dismiss and sustained the plea. Ogbodiegwu tim ely appeal ed.

DISCUSSI ON Ogbodiegwu argues in two issues that the trial court erred by dismissing his claims. 1

1 A s he did in the trial court, Ogbodiegwu appears here pro se. Although we construe pro se pleadings liberally , we hold pro se appellants to the same standards as those represented by couns el. See Crenshaw v. Thomas , No. 03

- 21

- 00064

- CV , 2022 WL 2162933, at *1 n.1 (Tex. App.

— Austin June 16, 2022, pet. denied) (mem. op.); Housing Auth. of City of A ustin v. Elbendary , 581 S.W.3d 488, 491 n. 1 (Tex. App.

— Austin 2019, no pet.)

.3 Rule 91a
F irst, Ogbodiegwu argues that the trial court erred by granting the Commission ’ s Rule 91a motion to dismiss his suit for judicial re view of the de nial of his second benefits application

. Rule 91a allows a party to “ move to dismiss a cause of action on the grounds that it has no basis in law or fact. ” Tex. R. Civ. P. 91a

. 1

. “ A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. ” Id. When ruling on a Rule 91a motion, a trial court

“ may not consider evidence but ‘ must decide the motion based solely on the pleading of th e

cause of action, together with any [permitted] pleading exhibits. ’ ” In re Farmers Tex. Cnty. Mu t. Ins. , 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceedin g) (quot ing Tex. R. Civ. P. 91 a.1). We review a trial court ’s ruling on a Ru le 91a motion de n ovo be caus e “ w hether a defendant is entitled to dismissal under the facts alleged is a legal question

. ” Id. The Labor Code provides that a n unemployed individual is eligible t o receive benefits if, relevant here , “ after the beginning date of the individua l ’ s mo st r ecent prior benefi t y ear, ” the individual “ earned wages in an amount equal to not less than six times the individual ’ s benefit amount

. ” Tex. Lab. Code § 207.021 (a)(7)

. To be eligible for additional benefits, Ogbodiegwu ’ s wages in the previous b enefit yea r mu st have be en “ not less ” than six
t imes $ 535 , which is $3,210

. The Commission asse rted i n its motion that nothing in Ogbodiegwu ’ s pleadings or exhibits allege that h is wag es for the previous year met that threshold

. Ogbodiegwu does not addre ss thi s is sue but argues , w ithout citation to authority , that the Commission coul d no t deny his second application after granting his first

.4 We agree with the Commission

. Nothing in Ogbodiegwu ’s pleadin g s allege that he earned any wa ges in the previous benefit y ear . In fact, Ogbodiegwu challenged the Commission ’ s initial findings that he earned $2,646 in the previous year working for a

con struction company , argu ing that this payment was “ a refund for [his] medical insu rance ” from

a pre vious employer

. The Co mmi ssion ultimately agr eed , stating in its final decision that he earned no wages during the previous benefit year. W e conclu de the trial court did not err in granting the motion to dismiss because Ogbodiegw u ’s al l egations, take n a s true, do not entitle
h im to the relief sought

. See Tex. R. Civ. P. 91a

. 1

. We overrule Ogbodiegw u ’s first issue.

Plea to the Jurisdiction Ogbodiegw u next argues that the trial court erred by sustaining the Commission ’ s plea to the jurisdiction asse r ting that soverei gn immunit y b arred his claim s for violat ion of the PIA.
T he State of Texas and its agencies , including the Commission , “ retain sovereign immunity from suit unless the Legislature clearly and unambiguously waives it. ” See Christ

v. Tex as Dep ’ t of Transp. , 664 S.W.3d 82 , 86 (Tex. 2023), reh ’ g denied (May 5, 2023)

. 2 Because sovereign immunity “ implicates a trial court ’ s subject

- matter jurisdiction, it is properly asserted in a plea to the ju risdiction. ” Id. When a gover nme nt entity challenges jurisdic tion on

2 Ogbodiegw u also sued the c ommissioners and employees of the Com mission in their off icial capacities

. The Commission’s immunity as a state agency “extends to its officials who act consistently with the law but not to those who act ultra vi res

— that is, ‘without legal authority or [by] fail[ing ] to perform a purely mini sterial act.’” V an Boven v. Freshour , 659 S.W.3d 396, 401

– 02 (Tex. 2022) (quoting City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009) (f

ootnotes omitted))

. An ultra vires claim “must be brought against government offic ials in their official capa city and may seek on ly prospective injunctive remedies.” Chambers

- Liberty C n tys. Navigation Dist. v. State , 575 S.W.3d 339, 348 (Tex. 2019). Alt hough Ogbodiegwu sued the indi vidual defendants in their official capacities, he did not assert an y ultra vires claim s
.5 immunit y g rounds, the plaintiff has the burden to “affirmatively demonstrate ” a valid waiver of immunity. Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019)

. In determin ing whether the plaintiff has m et that burden, a court construe s the pleadi ngs li berally, tak e s all factual assertions as true, and look s to the pleader ’s intent. Heck man v. Williamson C ounty , 369 S.W.3d 137, 150 (Tex. 2012 ). We review the disposition of a plea t o the jurisdiction de

nov o
. Matzen v. McLane , 659 S.W.3d 3 81, 388 (T ex. 2021)

. The PIA “guarantees access to public information, subject to certain exceptions.” Boeing Co. v. Paxton , 466 S.W.3d 831, 833 (Tex. 2015) (citing Tex as Dep ’ t of Pub. Sa fe ty

v. Cox Tex. Newspapers, L.P. , 343 S.W.3d 112, 114 (Tex. 2011) ). To enfor c e this right of access, the PIA waives immunity and permits a requestor to “ file suit for a writ of mandamus compelling a governmental body to make information available for pub li c inspection ” when a governmenta l body : (1) refuses to request a d ecisio n o f t he Attorney General on whether information is public or (2) refu ses to supply information that is public or that the Attorney General has determined is public and not within on e of the exceptions to disclosure. See Tex.
Gov ’ t Code § 552.321 (a) ; Empower Te xans, Inc. v. Dallas C ounty , 648 S.W.3d 664, 671 (Tex. App.

— Dallas 2022, pet. denied)

. In his pleadings, Ogbodiegw u does not seek ma ndamus relief to compel the Commission to d isclose public info rmation

. Ins te ad, he seeks $ 100 ,000 for the tim e spent
att emp ting to obtain the record ing he sought and to compensate him for the “ mental pains and
f inancial diffic ulties ” caused by the Commission ’ s actions. A lthough a plaintiff who

“ s ubstant ially prevai ls ” in a suit for writ of mandamus m ay re cov er “ costs of li tig ation and reasonable attorney fees , ” Tex. Gov ’ t Code § 552.323 (a ) , money damag es are not available in a mandamus suit seeking documents under Section 552.321 , see City of Hous ton v. Kallinen ,6 51 6 S.W.3d 617, 625 ( Tex. App.

— Houston [1st Di st.] 2017, no p et. ) ; Moore v. Collins , 897 S.W.2d 496, 500 ( Tex. App.

— Houston [1st Dist.] 1995, no writ) ( reaching same conclusion under PIA ’ s predecessor statute). W e conclude that Ogbodiegw u has not alleged a valid wai ver of imm unity for his claims for dama ges for vio lat ions of the PIA

. 3
Gener ally, we allow parties the opportunity to amend “ unless their pleadings demonstrate incurable defects. ” Dohlen v. City of San Antonio , 643 S.W.3d 387, 397 (Tex. 2022)

. The right to amend “ typically arises when the ple adings fail to allege enough jurisdic tional facts to demonstrate the trial court ’ s ju risdiction. ” Clint Indep. Sch. Dist.

v. Marquez , 487 S.W.3d 538, 559 (Tex. 2016) . T he jurisdictional bar here d oes not arise from the lack o f factual allegations but fro m the natur e o f Ogbodiegw u ’ s claim

. To cure the defect here would not entail adding new jurisdictional facts but would essentially require Ogbodiegw u
to plead a new claim. “ Generally, remand is a mechanism for parti es, over w hose claims the trial
court m ay have jur isd iction, to plead facts tending to establish that jurisdiction, not for parties, over whose claims the trial court does not have jurisdiction, to plead new claims over which the trial c ourt does have juri sdiction. ” Id

. We conclude that Ogbod iegw u is no t e ntitl ed to a n opportunity to replead. See id. ( refusing opportunity to amend because e ven if plaintiffs amended their petition, “ the true natur e of their complain t would no t change ” ) ; BCCC Soc. Members Ass ’ n v. Barton Creek Resort LLC , No. 0 3

- 18

- 00708

- CV, 2020 WL 2990577, at *6 (Tex. App.

— Austin June 3, 2020, pet. denied) (mem. op.) ( “ Remanding the case would serve no

3 Ogbo die gw u states in his live pleading that his claim for da mages is “based on ” Section 552.353 of the PIA . That statute makes it a m isdemeanor offense not to comply with the PIA, providing that “ [a] n o fficer for public information, or the offi cer ’ s agent, co mmi ts an offense if, with criminal negligence, the offi cer or the officer ’ s agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter. ” Tex. Gov ’ t Code § 552. 353 (a ). Nothin g i n Section 552 .353 addresses money damages for a viol ation of the PIA. See generall y id. § 552.353.7 legitimate purpose because t he Association ’ s pleading defe cts as to its money damag es claim for breach of bylaws cannot be cur ed and it h as not suggested how the jurisdictional defect may be cured for this claim. ” ).
We overrule Ogbodiegw u ’ s second issue.

CONCLUSION
We affirm the dis trict court ’ s judgment

.

____ _________ _____________________________ Rosa Lopez Theofanis , Ju stice Before Chief Justice Byrne , Justices Triana a nd Theofanis Affirmed Filed: May 31, 2023