### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00538- CV

Sus an Com bs, Texas Com ptroller of P ubl ic Acc ounts, and th e Off

ice of the Com ptroller of P ubl ic Acc ounts, App ellants

v. The Texas Civil Righ ts P roje ct and Sarah Canrigh t, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0122 8, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

O P I N I O N

This is an appea l from an order g ran t i n g t h e Texas Civil Rights Project and Sarah Canrig ht’s (collec tively , the P laintiffs) petiti on to take pre-suit deposi tions and deny ing the appellants Susan Combs, Texas Comptroller of Public Acc ounts, and the Offic e of the Comptroller of Public Ac counts’s (collec tively , the State Def endants) plea to the jurisdiction. See Tex. R. Civ.
P. 202 (providing that person may peti t i o n court for order authorizing pre- suit deposition under

cer tain circ umstances)

. Be cause we conclude that the trial court did not have jur isdiction over the Plaintiffs’ petition and pre-suit proce eding s, we wi l l v ac ate the trial court’s order and dismiss the

cause for wa

nt of jurisdiction.

BACK GR OUND This dispute ultimately arises from an incident in which the Offic e of the Comptroller

o f Pu b li c A c c o u

n ts ( th e Co mp tr o ll e r ’ s O f

f ic e ) a ll e g e d ly c o mp r o mi s e d th e s e c u r it y o f p r iv a te e le c tr o n icinformation in its possession. I n 2010, the Employ ees Retirement Sy stem, Tea cher Retirement

Sy stem, and the T ex as Workforce Commi ssion transfe rre d to the Comptroller’s Offic e persona l information, including the addre sses, social secur ity numbers, an d b i rth dates, of approximately
3.5 milli on Texans. Upon rec eiving the elec tronic information, the Comptroller’s Of fi ce l ef t the information on a computer serve r acc essible to the public. The err or was discovere d on Marc h 31, 2011, and the da ta was r emoved f rom the publicly

acc essible serve r. On April 2 6 , 2 0 1 1, the Plaintiffs filed a sworn petition for an order authorizing the t aking of pre-suit depositions pursuant to rule 202 of the Texas Rules of Civil Procedur e. See
Tex

. R

. C i v. P. 202. Specifica lly , the Plaintiffs reque sted authorization to take the videotaped depositions of both Combs and a repr esenta tive from the Comptroller’s Offic e in order to investiga te potential claims conc erning the data- secur ity incident. See id . R. 202.1(b).
I n response , the State Def endants filed a plea to the jurisdiction, contending that the
reque sted pre- suit depositions are barr ed by sovere ign immunity . The State De fenda nts also filed

an answe r to the ru l e 202 petition, arg uing that (1) the reque sted pre- suit depositions are not
appropr iate in this case and, alterna tively , (2) the deposition of Combs, pre- suit or otherwise, is not
appropr iate beca

use the Plaintiffs have failed to d em o n strate that they meet the require d standard for taking an apex de position. After holding a hear ing, the trial court enter ed an order deny ing the
State Def endants’ plea to the j urisdiction. I n the s ame order, upo n fi n ding that the l ikely benef its of allowing the depositions outweigh the burden or expense of the proce dure, the trial court also
g rante d the Plaintiffs’ petition for pre- suit depositions. See id

. R. 202.4(a) (2). This appea l followed.

2DISCUSSIO N

Stand ard of review an d app licable law

Rule 202 permits pre- suit depositions in cer tain limit ed circ umstances. Specifica lly , rule 202.1 provid es that a person may petition the court for an order authorizing “the taking of a deposition on oral examination or written questions” for one of two r easons: (a) to perpe tuate or obtain the person’ s own testimony or that of any other person for use in an anticipate d suit; or (b) to investiga te a potential c laim or suit. Id . R. 202.1(a), ( b).

When, as in this case , the petition for pre- suit depositions is broug ht pursuant to subsection (b), the trial co u rt m u s t g rant the petition if, but only if, it finds that the likely benef it of allowing the reque sted depositions outw ei gh s the burden and expense of the proce dure. Id

. R. 202.4(a) (2). I n addition, the trial court’s order g ranting the reque st must contain any protec tions it finds nece ssary or appropr iate to protec t the wi t n es s or any person who may be aff ecte d by the
proce dure. Id . R. 202.4(b).

I n th re e issues, the State Def endants contend that the trial court’s order g ranting
pre- suit depositions should b e re v er s ed and the Plaintiffs’ rule 202 petition dismiss ed, or in the alterna tive, the trial court’s order should be vacated and rema nded. First, the State Def

endants arg ue that the P laintiffs’ petiti o n fo r p re -s u it depositions under rule 202 is itself an independent s uit for which sovere ign immunit y has not be en waived, and thus the trial court err ed in deny ing their plea to the jurisdiction. Second, the State Def endants arg ue that, even if the trial cour t had jurisdiction

3to enter the rule 202 order , it abused its discretion in g ranting the Pla i ntiffs’ petition beca use the Plaintiffs already had ample information about the data- secur ity incident. Finally , the State Def endants contend that the Plaintif fs fa i l ed to satisfy the standard for taking an apex deposition of the Comptroller beca

use they had not attempted to obtain the information first thr o u gh l es s intrusive means.

I n response , the Plaintiffs arg ue that proce eding s u n d er ru l e 202 are not barr ed by

sovere ign immunit y and that the trial court did not abuse its discretion in order ing the depositions.
Acc ording to the Plaintiffs, the trial court proper ly conclude d that the likely benef its of allowing the Plaintiffs to take the depositions outweig h any burden or expense of the proce dure, and there fore it

was require d to g rant their petition. I n addition, the Plaintiffs arg ue that, in any event, as a threshold matter thi s Court lacks jurisdi ct i o n t o ev en review at this time the m erits of the t rial court’s order
g ranting their rule 202 pe tition because it is not a final, a ppeala ble judg ment or orde r. Subject-matter jurisdiction is essential to the authority of a court to decide a case . J a c k J o n e s H e a r in g Ct r s
. v
. S ta te Co m m
. o

f E x a m ’ r s in F it ti n g & D is

p e n s in g o f H e a r in g I n s tr u m e n ts , 363 S. W

. 3 d 9 1 1 , 914 (Tex. App.—Austin 2012, no pet.) (citing Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 444-45 (Tex. 1993)). Subject-matter jurisdiction is implicated in this

case in two respe cts: (1) whether so v ere ign immunit y deprive d the trial court of subject-matter jurisdiction over the Plaintiffs’ rule 202 petition and the re sulting proc eeding s, see Texas De p’t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 224 (Tex. 2004) (“ [S ]overeig n immunit y deprive s

a trial court of subject matt er j urisdiction for lawsuits in which the state or cer tain g overnme ntal units have been sued

. . . .”), and (2) whether this Court has ju ri s d i ct i o n on appea l over the trial

4court’s rule 202 o rd er , i.e., whether the trial court’s order is final and appea lable, see Ogletree v.

Matthews , 262 S.W .3d 316, 319 n.1 (Tex. 2007) (explaining that unless statute permits interlocutory
appea l, “Te x as appellate courts have jurisdiction only over final order s or judgme nts”); Bahar v. Lyon Fin. Servs. , 3 3 0 S.W .3d 379, 384 (Tex. App.—Austin 2010, pet. denied) (“G ener ally , appellate
courts have jurisdiction only over appea ls f r o m ‘ f in a l ju d g me n ts ’ a

n d c e r ta in a p peala ble interlocutory order s.”). Be cause it potentially require s dismiss al of this entire case , we fi rs t consider the State Def endants’ arg ument that the trial court err ed in deny ing its plea to the jurisdiction b ec au s e t h e court lac ked subjec t-matter jurisdiction over the rule 202 pr ocee dings. 1

The trial court’ s jurisdiction over t he rule 202 proce edings

A party may ch al l en ge a trial court’s subject-matter jurisdiction by asser ting a plea to the jurisdiction. See Miranda , 133 S.W .3d at 225-26. To deter mine whether a plaintiff has aff irmatively demonstrated the trial court’s subject-matter jur i sdiction to hear a case, we consider the fac ts alleg ed in the petition along with any evidenc e submitt ed by the parties, to the extent such evidenc e is rele vant to the j u ri s d i ctional issue. See Texas Natural Res. Conservation Comm’n v. W hite , 46 S.W .3d 864, 868 (Tex. 2001). We c onstrue the pleading s in the plaintiff’s favor , taking

I f we wer e to deter

mine that the trial court’s order is not final and appea lable, we could still 1 consider, as a separ ate matter, the State Def endants’ interlocutory appea l of the trial court’s denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8) (per mitti ng appea l of interlocutory order that g rants or denies plea t o t h e jurisdiction by g overnme ntal unit). On the other ha nd, if we w ere to de termine that the trial court err ed in de ny ing the State Def endants’ ple a to the jurisdiction, we could not consider the merits of the trial court’s order g ranting the Plaintiffs’ petition under rule 202, even if the order wer e otherwise final and appea lable. See Rusk State Hosp. v. Black , 392 S.W .3d 88, 95 (Tex. 2012) (explaining that if g overnme ntal entity validly asser ts that i t i s i m m une from pending claim then “any court decision reg arding that claim is advisory to the extent it addre sses issues other than immunity ”). 5all fac tual asser tions as true and looking to the plaintiff’s intent . Miranda , 133 S.W .3d at 226-27.
I f the pleading s do not alleg e fac ts sufficie nt to aff irmatively d emons trate jurisdiction, but do not aff irmatively neg ate jurisdiction, the issue is one of pleading sufficie ncy , and the plaintiff should be aff orded an opportunity to amend. Id

. On t h e other hand, if the pleading s aff irmatively neg ate jurisdiction, then the plea to the jurisdiction should be g rante d. Id

.

Under the common-l aw doctrine of sovere ign immuni ty , the S tate and its ag encie s
cannot be sued, absent an express waiver

. Id. at 224. Texas courts defe r to the leg islature to waive immunit y from suit beca

use this allows the leg islature to protec t its policy making function. Texas Natural Res. Conservation C omm’n v. IT-Davy , 74 S.W .3d 849, 854 (Tex. 2002). Any waiver of immunit y m ust be expressed by clea r and unambig uous lang uag e. Tex. Gov’t Code § 311.034. Sovereig n immunit y deprive s a trial court of subject-matter jurisdiction and is proper ly asser ted in

a plea to the jurisdiction. Miranda , 133 S.W .3d at 225-27. Whether a trial court has subject-matter jurisdiction is a matter of lawthat we r eview de novo. Id . at 226.

I n this case , the State Def

endants asser

t that the trial court err ed in deny ing their plea
t o t h e j urisdiction and g ranting the Plaintiffs’ rule 202 petition beca use petitions to investiga t e potential claims under subsection (b) of rule 202.1 are suits that are barr ed by sovere ign immunit y . Specifica lly , the State Def endants arg

ue that depositions of g overnme ntal officia ls under subsection (b) are “suits” ag ainst the State for which immunit y from suit has not been waived and there fore are barr ed, reg ardle ss of what the potential substantive claim is or aga inst whom it might be asser ted.
Fur ther, the State Def

endants asser

t that a petition under rule 202 is a “s u i t ” beca use it is an action that seeks to compel the State to take some action it would otherwise not take—the giving

6of dep o s i t i on testimony —and there fore sovere ign immunit y nece ssarily applies to all rule 202
proce eding s ag ainst the State.

I n response , the Plaintiffs do not contend that rule 202 itself or any other leg islation
opera tes as a waiver of sovere ign immunit y with re s p ec t t o rule 202 proce eding s. Rather, the Plaintiffs asser

t that rule 202 does not implicate sovere ign immunit y beca use it is mere ly a pre- suit discovery tool. Acc ording to the Plaintiffs, the purpose of the reque sted pre- suit depositions in this

case is to investiga te potential claims that would not be barr ed by sovere ign immunit y , and there fore , the rule 202 pr ocee dings a re not ba rre d by sovere ign immunity

. To deter mine whether the State Def endants have immunit y from suit with reg ard to the rule 202 proce eding s in this case , we first consider whether rule 202 proc eeding s g ener ally are “suits.” An o rd er under rule 202, at l east in cer tain circ umstances, operate s as a final, appealable order , immediately subject to appellate revie w. See In re Jorden , 249 S.W .3d 416, 419 (Tex. 2008) (o rig

. proce eding ); cf. Ross Stores, Inc. v. Redk en Labs., Inc. , 810 S.W .2d 741, 742 (Tex

. 1 9 9 1 ) (noting that under prede cessor rule to 202(b), order was final and appea lable when “ag ainst third parties ag ainst whom suits are no t co n t emplated

. . . acting as mandatory injunctions ag ainst the discovery defe ndant”)

. T h u s , i n at l ea st those limit ed cases, a rule 202 proce eding seems to have char acte ristics o f a “s u i t,” i n that its result i s subject t o appellate revie w. Neve rtheless, a petition under rule 202 is ultimately a petition that asser ts no substa ntive claim or cause of action upon which relief can be g rante d. A succe ssful rule 202 petitioner simply acquir es the rig ht to obtain discovery —discovery that may or may not lead to a claim or cause of action. I n addition, rule 202, like all the rules of civil proce dure, was fashioned by the T ex as Supreme Court as a means of

“ o b ta in [i n g ] a ju s t, f

a ir , e q u it a b le a n d im p a r ti a l a d ju d ic a ti o n o f th e r ig

h ts o f li ti g a

n ts u n d e r e s ta b li s h e d

7principles of substantive law.” City of Dallas v. Dallas Black Fire Fighters Ass’n , 353 S.W .3d 547,
554 (Tex. App.—Dallas 2011, no pet.) (citing Tex. R. Civ. P. 1). Consequently , a proce eding under rule 202 “is not a separ ate independe nt lawsuit, but is in aid of and incident to an anticipated suit.”
See Lee v. GST Transp. Sys., LP , 334 S.W .3d 16, 19 (Tex. App.—Dallas 2008, pet. denied) ; see also
Patton Boggs LLP v. Moseley , 394 S.W .3d 565, 571 (Tex. App.—Dallas 2011, no pet.) (conc luding that trial court had no jurisdiction to g rant motion to compel arbitra tion filed in rule 202 proce eding ).
W e cannot ag ree that a rule 202 petition is itself a “suit,” nor can we ag ree that all ru l e 2 0 2
proce eding s involving g overnme ntal entities are “suits” that seek to control state action, as the State Def endants contend. Consequently , we conclude that pre- suit depositions of g overnme ntal entities under r ule 202 ar e not, in wholesale , barr ed by immunit y . 2
Howeve r, this c onclusion does not me an that sovere ign immunit y does not aff ord a
g overnme ntal entity any protec tion from rule 202 depositions. Rule 202 was not intended as a means
Although the State Def

endants do not cite any case s holding that all rule 202 proce eding s 2 are , in a nd of themselves, “suits” to which sovere ign immunit y applies, they cite two fede ral case s for the proposition that proce eding s under rule 202 are “civil actions” for purposes of remova l under 28 U.S.C. § 1441. See I

n re Texas , 110 F. Supp. 2d 514, 521-22 (E .D. Tex. 2000), rev’ d on other grounds sub nom. Texas v. Real Part ies in Interest , 259 F.3d 387 (5th Cir. 2001); Page v . Liberty Life Assuran ce C o
. , No. 4:06-CV-572-A, 2006 WL 2828820, at *3 (N.D. Tex. Oct. 3, 2006). Although we ex press no opini on on whether rule 202 proc eeding s are “civil ac tions” for purpose s o f removal, we note that the majority of Texas fede ral courts have, in fac t, held that rule 2 0 2 proce eding s are not remova ble. See, e.g. , McCrary v. Kansas City S.R.R. , 121 F. Supp. 2d 566, 569 (E.D. Tex. 2000) (conc luding that a rule 202 proce eding is not a civil action bec ause “ it a sserts no claim or cause of ac t i o n u p on which relief can be g rante d) ; Mayfield-G eorge v. Texas Rehab. Comm’n , 197 F.R.D. 280, 283-84 (N.D. Tex. 2000) (concluding that rule 202 proc eeding was not a “civil action” beca

use “it asser

ts no claim or cause of action upon which relief may be g rante d” and that “[i] t is mere ly a petition for an order authorizing the taking of a deposition”) ; Sawyer v. E.I. du Pont de Nemours & Co. , No. 06-1420, 2006 WL 1804614, at *2 (S.D. Tex. J une 28, 2006) (noting that “a T exas Rule 202 procee ding or dinarily is not a remova

ble ‘civil action’” and that a rule 202 petition “ is simply a reque st f or discovery that may or may not e ventually lead to fede ral claims”); Davidson v. Southern Farm Bureau Cas. Ins. C o. , No. H-05-03607, 2006 WL 1716075, at *2, *4 (S.D. Tex. J une 19, 2006) (holding that rule 202 petition i s n o t “civil action”)

. Our decision is consistent with these cour ts’ char acte rizations of rule 202 proc eeding s.

8of obtaining otherwise unobtainable discovery

. See In re W olfe , 341 S.W .3d 932, 933 (Tex. 2011) (orig

. proce eding ) (noting that petitioner “ca nnot obtain by Rule 202 what it would be denied in the anticipated action”)

. I n fac t, rule 202 expressly limit s the scope of discovery in depositions “the

same as if the anticipated suit or potential claim had been filed.” Id. (citing Tex. R. Civ. P. 202.5). Recog nizi ng this li mitation, the Tex as S upreme Court in In re W olfe held that a trial c ourt abused its discretion in allowing a plaintiff to take the p re-suit deposition of a county officia l in order to investigat e p o t en tial remova l claims when the plaintiff ultimately would have no standing to

asser t the claims. Id . Simi larly here , we rec og nize that, while pr e-suit depositions under rule 202

are n o t n ec essarily barr ed by sovere ign immunit y , g overnme ntal entities are protec ted from
pre- suit depositions to the same extent they would be protec ted from the s am e depositions in the co n t em p l at ed s uit underly ing the proce eding s. See City of Dallas , 353 S.W .3d at 554 (“[I ]n deter mining jurisdiction [over rule 202 proce eding s], we look to the substantive law respe cting the anticipated suit.”); see also City of W illow Park v. Squaw Creek Downs, L.P. , 166 S.W .3d 336, 340-
4 1 (Tex

. App.—For

t Worth 2005, no pet.) (conc luding trial court had jurisdiction over rule 202 petition to investiga te billing dispute and validity of lien beca use trial court would have jurisdiction

over any trespass to try title suit arising fr o m l i en ). Ac cording ly , we conclude that rule 202 d ep o s i t i o ns may not be used solely to investiga te potential claims that are otherwise barr ed b y

sovere ign immunit y . See City of Houston v. U.S. Filter W

astewater Grp., Inc. , 190 S.W .3d 242, 245 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (conc luding that “a portion of the cl ai m under investiga tion

. . . [ wa s ] under the jurisdiction of the state district court” when rule 202 petitioner potentially

soug ht deposition testim ony from C ity to investiga te conspira cy claims ag ainst private

9party , and thus trial court did not err in deny ing Cit y ’s pl ea to the j urisdiction); cf. C ity o f Da llas , 353 S.W .3d at 553 (holding that rule 202 petition failed to sufficie ntly demonstrate potential claim under loc al g overnme nt code se ction 147.007, which oper ates a s waiver of immunity ).
I n this case , the Pla intiffs arg ue that the reque sted pre- suit depositions are not b arr ed beca

use the Plaintiffs are seeking to depose the State Def endants in order to i n v es t i gat e potential claims that are n o t barr ed by sovere ign immunit y . Specifica lly , the Plaintiffs arg ue that the purpose of the depositions is primarily to investiga te (1) ultra vires claims ag ainst Combs in her officia l capa city and (2) claims they may have ag ainst third parties. To deter mine the purpose of the Plaintiffs’ reque st for depositions in this case , we look to the rea sons stated in the Plaintiffs’ rule 202 petition. See Tex. R. Civ. P. 202.2(g ) (re quiring that petitioner state “re asons for desiring to obtain the t estimony of each [ deponent]”). Simi larly , to deter mine if the t ri al court has j urisdiction over the rule 202 proce eding s, we start by revie wing the Plaintiffs’ petition. See Creedmoor-M aha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 512 (Tex. App.—Austin 2010,

no pet.) (“The plaintiff has the initial burden of alleg ing fac ts that aff irmatively demonstrate the trial court’s jurisdiction to hea r the c ause.” ). Strict application of g ener al jurisdictional pleading require ments in deter mining whether a plaintiff has aff

irmatively demonstrated a trial court’s jurisdiction over a rule 202 petition, howeve r, is problematic. First, “[r]ul e 202 does not require a petitioner to plead a specific cause of action; instead, it require s only that the petitioner ‘state the subject matter of the anticipated action,
if any , and the petitioner’s interest there in[ .]’” U.S. Filter W astewater Grp. , 190 S.W .3d at 245 n.2 (quoting Tex. R. Civ. P

. 202.2(e) ). Thus, the pleading require ments of rule 202, on their fac e,

10are less stringe nt than those normally require d to demonstrate a trial court’s jurisdiction. More

importantly , as a prac tical matter, a party filing a rule 202 petition will often not know enoug h fac ts

or have enoug h information to alleg e fac ts that, if true, would establish the trial court’s jurisdiction.
I f a party could sufficie ntly plead these fac tual alleg ations without violating rule 13, it is likely that the party could not demonstrate a need for the rule 202 deposition at all. See In re Emerge ncy Consultant

s, Inc. , 292 S.W .3d 78, 79 (Tex. App.—Ho u s t o n [ 1 4th Dist.] 2007, orig

. proce eding ) (noting that requiring rule 202 plaintiff to plead viable claim “would evisce rate the inv estig atory
purpose of Rule 202 and essentially require one to file s u i t b ef o re d etermining whether a claim exis ts” and would place “counse l in a quandar y , considering counsel’s ethical duty of candor to the
court and the require ments of [rule 13]”); see also Tex. R. Civ. P. 13 (authorizing sanction ag ainst attorney or party who files pleading that is g roundless and broug ht in bad faith o r groundless and broug ht for purpose of har assment).

Considering g ener al jurisdictional pleading require ments and their purpose toge ther with the investiga tive purpose of pre- suit de positions under rule 202, we deter mine that a rule 202 petition may often have to plead more than the mini m u m re q u i re d by rule 202 in order to aff irmatively demonstrate the trial court’s subject-matter jurisdiction ove r the proce eding s. When discovery from a g overnme ntal entity is soug ht under rule 202, the petition must also set forth specific fac ts demonstrating that, at least potentially , the petitioner has been injured by actions that would amount to a claim which would not be barr ed by sovere ign immunit y . Cf. City of Dallas , 353
S.W .3d at 55 7 -5 8 (c oncluding that rule 202 petition must “be sufficiently specific to demonstrate the [petit ioners] wer e potentially ‘ag g rieve d’ under the Ag ree ment” in order to demonstrate waiver of immunity

under loc al g overnme nt code)

. 11Her e, th e P l aintiffs asser t in their rule 202 petition that they need to take the depositions of the State Def endants i n o rd er “to investiga te potential claims for violations of the
T ex as Constit ution, Texas statutes, and Texas state ag ency rules and reg ulations.” The Plain t i ff

s have ple aded tha t Combs and the Compt roller’ s Offic e have violate d Texas law. Specific ally , the Plaintiffs have pleade d that Combs and her Offic e have potentially violated the Texas Gover nment Code, sections 821.010 and 552.352, and article I , section 9 of the Texas Constit ution. Tex. Const.
art. I , § 9 (sea

rche s and seizures); Tex. Gov’t Code § 821.010 (providing that information provided b y te a c h e r r e ti r e me n t s y s te m to c o mp tr o ll e r r e g a r d in g r e ti r e e s is “ c o n f

id e n ti a l a n d ma y n o t b e d is c lo s e d
to the public”), § 552.352 (providing that distribution of information considere d confide ntial under public information act “constitutes officia l misconduct”). Fur ther, they asser

t that the Comptroller’s Offic e “made publicly available the persona l information of approximately 3.5 milli on Texans” and that “Combs ha s failed and ref used to take responsibility by resig ning from office .” The Plaintiffs have also pleade d fac ts conce rning the secur ity -bre ach inci d en t t h at they seek to investiga te. For instance, the Plaintiffs alleg e that in 2010 sever al state ag encie s, including the Tea cher Retirement Sy stem of Texas a

nd the Texas Workfor ce Commi ssion, tra nsfer red elec tronic rec ords of milli ons of employ ees and retire es into the Comptroller’s sy stem and that, for rea sons not entirely clea r, the information was unsecur ed and acc essible by the publ ic for more t han a y ear . The P laintiffs state that they seek to uncover “the truth con ce rn i ng how this illega l and unconstitutional invasion

occur red; who was responsible; what laws, rules, and reg ulations wer e violated; what the resulting costs, expenses, and damag es will be for our State and for the individual victims, and who will pay those amounts; and what measure s must be implemented t o preve nt Comptroller Combs and her Offic e fr om simi larly

violating the r ights of millions of Texans in the future.”

12A s u i t seeking to compel a g overnme ntal officia l “to comply with statutory o r

constitutional provisions” is an ultra v i re s s u it and there fore is not protec ted by sovere ign immunit y
. City of

E l P a s o v
. H

e in r ic h , 2 8 4 S. W. 3 d 3 6 6 , 3 7 2 ( T e x. 2 0 0 9 )

. Su it s a ll e g in g “ u lt r a v ir e s ”

o r u n c o n s ti tu ti o n a l conduct by a g overnme ntal officia l are not barr ed by sovere ign immunit y beca use they “do not seek to alter g overnme nt policy but rath er t o en fo rc e exis ting policy .” Id

. Fur ther, beca use these suits are not considere d to be suits ag ainst the state, they must be broug ht ag ainst the
state actor s in their officia l capa city

. Id

. at 373. To asser t a valid ultra vires claim, the plaintiff must alleg e, and ultimately prove, that th e o ff i ci al acte d without leg al authority or failed to perf orm a purely mi n is te r ia l a c t. Cr e e d m o o r - M a h a W a ter Supply Cor

p
. , 3 0 7 S. W. 3 d a

t 5 1 5

. T h e u lt

r a v ir e s

e xc e p ti o n to sovere ign immunit y permits only prospec tive decla ratory or injunctive relief restra ining ultra vires c onduct, as opposed to r etroa ctive re lief. Heinrich , 284 S.W .3d at 374-77.

Up o n review of the Plaintiffs’ petition, we deter mine that it (1) complies with t h e pleading require ments of subsection (e) of rule 202, and (2) sufficie ntly alleg es actions that, if true,
at least potentially demonstrate ultra vires conduct committed by Combs in her officia l capa city

. See Creedmoor-M

aha W ater Supply Corp. , 307 S.W .3d at 516 (explaining that in revie wing jurisdiction based on ultra vires claims, revie wing court should deter mine whether fac ts pled and not neg ated would constitute violations of rele vant constitutional provisions or exceed authority under rele vant statutory provisions). Specifica lly , the Plaintiffs’ rule 202 petition sufficie ntly alleg es that Combs, in he r officia l c apac ity , disclosed persona l information without statutory authority and in violation of the Te x as Constitut ion.

Neve rtheless, beca

use the Plaintiffs have failed to sufficie ntly alleg e fac ts demonstrating that any relief soug ht would not be barr ed by sovere ign im mu n it y , w e cannot conclude

13that the purpose of the depositions of the State Def endants, even in part, is to investiga te a potential ultra vires claim over which the trial court would have jurisdiction. The alleg ed ultra vires conduct 3

at i s s u e i n this case is the disclosure of persona l information without leg al authority , and t h e P l aintiffs’ rule 202 petition focuse s on the Plaintiffs’ purported need to investiga t e ac t i o n s committed in the past in or der to pr event a nother incide nt from occ urring in the future. H oweve r,
any decla ration as to whether Combs’s past co n d u ct ex cee ded her leg al authority is purely

r e tr o s p e c ti v e in n a

tu r e a n d th e r e f o r e c o u ld n o t c o n s ti tu

te v a li d u lt

r a v ir e s r e li e f

. S e e Ci ty o f A r li n g to n

v. Randall , 301 S.W .3d 896, 907 (Tex. App.—For t Worth 2009, pet. denied) (conc luding that injunction seeking to impose aff irmative duty based on past alleg ed actionable wr o n g wa s insufficient to g ive rise to ultra v i re s claim based on constitutional violation); see also Hailey v. Glaser , No. 06-12-00065-CV, 2012 WL 5872869, at *11 (Tex. App.—Tex arka na Nov. 21, 2012,

no pet.) (mem. op.) (conc luding that complaints abou t p as t acts wer e not claims for prospec tive decla ratory relief ). Simi larly , the Plaintiffs’ alleg ations do not support the exi s t ence of any potential claim for pr ospective injunctive relief

. The Plaintiffs’ own alleg ations sug g est that any disclosure

o f in f o r ma ti o n b y Co mb s , w h il e u

n a u th o r iz e d , w a s a ls o u

n in te n ti o n a l. T h e Pl a in

ti f f s h a v e n o t a ll e g e d
any fac ts sug g esting that Combs has taken the position that the disclosure was l ega lly authorized

or that she is likely to take that position in the future. To the contra ry , the undisputed evidenc e submitt ed by the State Def endants establishes that Combs has rec og nized that the disclosure should

The Plaintiffs have also asser ted on appea l that they are investiga ting “cla ims they may 3 have ag ainst third-par

ties.” Howeve r, none of the fac tual alleg ations prese nted in the Plaintiffs’ rule 202 petition support the conclusion that this is t he purpose of the de positions, i n whole or in pa rt. 14not have occur red and that her Offic e has underta ken eff orts both to reme diate the eff ec t s of the disclosure incident and to ensure that no simil ar secur ity brea ch wi l l o cc u r in the future. These 4
eff orts included secur ing t h e d at a, making employ ment decisions with reg ard to responsible employ ees, a

nd providing information to the news me dia and the g ener al public.
I njunctive relief is “ not a

vailable to pr event commission of wrong s not imminently threa tened” or to r equire g ener al compliance with the law. Hailey , 2012 WL 5872869, at *11. To
t h e extent there is any future conduct to restra in, any prospec tive relief soug ht by the P l ai n t i ff s would nece ssarily

be aimed at direc ting the Comptroller’ s future a ctions and policies with re spect
to the manner in which she car ries out her s t atut ory authority and ensure s compliance with any obliga t i o n to ref

rain from disclosing personal information. Such relief is bey ond the s cope of the ultra vires exception to sovere ign immunit y . See Texas Logos, L.P. v. Texas Dep’ t of Transp. , 241
S.W .3d 105, 118 (Tex. App.—Austin 2007, no pet.) (“A suit seeks to control state action when the ju d g me n t w o u ld e f

f e c ti v e ly d ir e c t o r c o n tr o l a g o v e r n me n ta l o f ficial in the e xe r c is e o f h is o r h e r discretionar

y statutory authority .”). The alleg ations prese nted by the Plaintiffs in their rule 202 petition, to get h er with the evidenc e prese nted by the State Def endants, aff

irmatively neg ate th e p o s sibili ty of any potential prospec tive relief for ultra vires acts in this case . As a result, we cannot conclude that the

For example, the State Def endants submitt ed evidenc e to the trial court of e-ma il and 4 corr espondenc e among employ ees from the C o m p t rol ler’s Offic e reg arding new information technolog y standards, g uidelines for data storag e, and secur ity measure s to be taken fo l lowing the disclosur e i n cident. The State Def endants also submitt ed evidenc e of press rele ases, news article s, and other public statements made by Combs in which she acknow ledg es responsibility for the disc losure. 15Plaintiffs are seeking the pre- suit depositions of the State Def endants for purposes of investiga ting

a potential claim over which the trial court would have jurisdiction, and we see no way in which the Plaintiffs could cure this defe ct in jurisdiction throug h reple ading

. See Miranda , 133 S.W .3d at 226.
Acc ording ly , we hold that the tria l court did not ha ve subjec t-matter jurisdiction over the rule 202
proce eding s and sustain the State De fenda nts’ first issue on appe al.

CONCLUSION
Be cause the trial court err ed in deny ing the State Def endants’ plea to the jurisdiction,

we vaca te the trial court’s order and rende r judgme nt dismiss ing the cause for wa n t o f s u bjectmatter jurisdiction.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustices J ones, Jus tices Goodwin a nd Field Concurring Opinion by J ustice Goodwin Dissenting O pinion by

Chief J ustice Jones
Vac ated a nd Dismissed for Want of J urisdiction Filed: Aug ust 29, 2013

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