### 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. 03-10-00019- CV

Appellan ts, Dr. D on Brantley, Belin da Castillo, Dr. Corinne Alvarez -Sand ers and P atric ia Logterm an// Cross-Appellan ts, Texas Youth Com m ission ; Cher rie Town send

in h er official capacity as Executive Dire ctor

v. Appellees, Texas Youth Com m ission ; Cher rie Town send in her off icial capacity as Executive Dir ect or// Cross-A ppellees, Dr. Don Brantley, Belinda Castillo,

Dr. Cor inn e Alvare z-Sanders and Patr icia Logterm an

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0181 2, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

O P I N I O N

After alleg ations surfa ced that employ ees of the Texas Youth Commi ssion (TYC) had sexuall y abused y ouths housed in that ag ency ’s fac iliti es, the Eig htieth Texas L eg islature

enac ted Senate B ill 103, which amende d a number of statutory provisions gove rning that ag ency . 1 I n section 37 o f S .B. 103, the L eg islature chang ed the basis of employ ment at TYC, which prior
statutes had previously made for- cause , to at-will. This appea l conce rns at t em p t s b y a g roup of 2
prese nt and forme r TYC employ ees to c halleng e the c onstitut ionality of that cha

ng e.

Act of May 25, 2007, 80th L eg ., R.S., ch. 263, §§ 1-78, 2007 Tex. Gen. L aws 421, 421-57 1 (cur rent version at Tex. Hum. Res. Code Ann. §§ 61.001-.130 (West 2 0 0 1 & S u p p . 2010)); see Senate Resear ch Center, Bill Analy sis, Tex. S.B. 103, 80th L eg ., R.S. (2007) (discus s in g backg round of the a mendments). Act o f M ay 2 5, 2007, 80th L eg ., R.S., ch. 263, § 37, 2007 Tex. Gen. L aws 421, 439 2 (cur rent ve rsion at Tex. Hum. Res. Code Ann. § 61.035(b))

.Four cu rr en t or former TYC employ ees who had beg un working at the ag ency

befor e sec tion 37 took effec t—two of whom alleg edly resig ned under

threa t of termination bef ore section 37 took e ffe ct, one of whom was ter minated af

ter sec tion 37 took ef

fec t, a nd one of whom continues to work for the ag ency (collec tively , Plaintiffs)—sued T YC an d its executive direc tor seeking decla

ratory , injunctive, and monetary relief based principally on the alleg ation that section 37 unconstitutionally depr i ved them of proper ty rig hts in their employ

ment. TYC and its executive direc tor (collec tively , the TYC Def endants) interposed a plea to the jurisdiction, which the district court g rante d in part and denied in part. Both Plaintiffs and the TYC Def endants appea l the district court’s orde r. We will affirm the district c ourt’s orde r in part a nd reve rse in par

t.

STANDARD OF REVIEW A plea to the jurisdiction challeng es a trial court’s authority to decide the subject matter of a spec i fi c ca u s e o f action. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 225-26 (Tex. 2004). Analy sis of whether this authority ex i s t s b egins with the plaintiff’s live pleading s. Id. at 226. The plaintiff has the initial burden of allegi n g fa ct s t h at aff irmatively demonstrate the trial court’s jurisdiction to hear the cause . Id. (citing Texas Ass’n of Bus. v. T exas A i r C o n t r o l B d

. , 852 S.W .2d 440, 446 (Tex. 1993)). Whether t he plainti ff met this burden is a question of law that we revie w de novo. Id. We construe the pleading s liberally , taking them as true, and look to the pleade r’s intent. Id. ; Texas Logos, L.P. v. Brinkmey er , 254 S.W .3d 644, 659 (Tex. App.—Austin 2008, no pet.). Mere unsupported leg al conclusions are insufficient. See Creedmoor-M

aha W ater 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.). I f the pleading s fail to allege s u ff i ci en t fac ts to
2aff

irmatively demonstrate the trial court’s jurisdiction bu t al s o fail to aff irmatively demonstrate incura ble defe cts in jurisdiction, the issue is one of pleading s u fficiency , and the plaintiff should be af forde d the opportunity

to amend. Miranda , 133 S.W .3d at 226-27. I f, on the other hand, the pleading s aff

irmatively neg ate the exis tence of juris d i cti on, then a plea to the jurisdiction may be
g rante d without allowing the pla intiff an opportunity to amend. Id. at 227. W e m u s t al so consider evidenc e the parties prese nted below that is rele vant to the jurisdictional issues, Bland Indep. Sch. Dist. v. B l u e , 3 4 S.W .3d 547, 555 (Tex. 2000), including evidenc e that a party has prese nted to neg ate the exis tence of fac ts alleg ed in the plaintiff’s pleading

. See M iranda , 133 S.W .3d at 227; see also Combs v. Ente rtainment Publ’n, Inc. , 292 S.W .3d 712, 719 (Tex. App.—Austi n 2009, no pet.) (summarizing differ ent standards g overning evidentiar y challeng es to the exis tence of pleade d jurisdictional fac ts w h e r e s u c h f a c ts im plicate both jurisdiction and the merits versus wher e they implicate only jur i s d i ct i o n). Our ultimate inquiry is whether the plaintiff’s pleade d and un-neg ated fac ts, taken as true and l i b er al ly construed with an ey e to
t h e p l ea d er’s intent, would aff irmatively demonstrate a claim or claims within the trial court’s subject-matter jurisdiction. See Miranda , 13 3 S. W.3d at 226; Creedmoor-M aha , 307 S.W .3d at 513, 516 n.8. This is a q u es t i o n o f law that we revie w de novo. See Miranda , 133 S.W .3d at 226; Creedmoor-M

aha , 307 S.W .3d at 513, 516 n.8.

STATUT ORY AND P ROCEDURAL CONTEXT Be fore turning to the rec ord in this appea l, it i s h el p fu l fi rst to briefly revie w the cha n ges t o t h e statute and TYC proce dures that provide the context for Plaintiffs’ claims and the parties’ appellate issues. Prior to being amended by section 37 of S .B. 103, section 61.035 of

3the human resour ces code provided that t h e TYC “may remove any employ ee for cause .” The

United S t at es Supreme Court has held that state laws confe rring to public employ ees more than

a unilatera l e x pecta tion of continued employ ment cre ate a proper

ty rig ht in tha t e mploy

ment, such that an employ ee must be aff orded proce dural due proce ss befor e b ei n g i n v oluntarily terminated, including rec eiving notice of the g round s for termination and an opportunity to respond. See,
e.g. , Cleveland Bd. of Educ. v. Loudermill , 470 U. S

. 5 3 2 , 5 3 8-46 (1985). To implement these require ments, TYC had promulg ated policies and proce dures requiring the ag enc y , w h e n te r mi n a ti n g

an employ ee, to first provide the employ ee a written rec ommendation-to-ter minate letter
g iving n o t i ce o f the basis for the proposed discharg e and of the opportunity to be hear d by the decision-make r prior to a final decision. I f the rec ommendation was adopted and the employ ee was terminated, the employ ee then had acc ess to a g rieva nce proce ss that entailed an evidentiar y hear ing in which TYC had the bur den of pr oof as to the basis for termination. After hear ing e vidence , the hear ing office r would then prepa re a proposal for decision, including proposed finding s of fac t and conclusions of law, and transmit it to TYC’s executive direc tor. The executive direc tor then made the final decision on the g rieva nce, and could either aff

irm the termination or reinstate the employ ee with or without backpa

y and with or without discipline or other c onditions. Section 37 of S.B. 103 amende d the human resour ces code to repla ce the “for cause ” requir em en t wi t h a provision stating that “an employ ee of the commission is employ ed on an atwill basis.” The L eg islature also mandated that TYC “esta blish proce dures and p r a c ti c e s g overning : 3

Act of May 25, 2007, 80th L eg ., R.S., ch. 26 3 , § 3 7 , 2007 Tex. Gen. L aws 421, 439 3 (cur rent ve rsion at Tex. Hum. Res. Code Ann. § 61.035(b))

. 4(1) employ ment-re lated gri evanc es submitt ed by commission employ ees; and (2) disciplinary actions within the commission, including a proce dure allowing a commission employ ee to e lect to participa te in an independe nt dismiss al mediation if the employ ee is rec ommended for dismiss al.” 4 Section 37, along with the other provisions of S.B. 103, took e ffe ct on J une 8, 2007. 5

Aft er s ec t i on 37 took eff ect, TYC, althoug h reta ining a g rieva nce proce ss for employ ees who are involuntarily terminated, amende d its policies and proce dures to emphasize that the proce ss “does not cre ate a proper ty interest in ag ency employ ment, n o r i s it a promise or g uara ntee of any particula

r procedure .” The ag ency also cha ng ed its g rieva

nce pr ocess to provide th a t a te r mi n ation decision made direc tly by the executive direc tor—i.e., the same officia l who would

serve as the ultimate dec isionmaker on any employ ee gr ievanc e concer ning the termination—was “fina l and not appea lable” via that administrative proc ess.

THE RE CORD The rec ord in this case consists of Plaintiffs’ live petition at the time of the hear ing

on the TYC Def

endants’ plea to the jurisdiction, evidenc e that the TYC Def endants attache d to their 6 plea, a nd evidenc e that Plaintiffs attac hed to their re sponse.

Id. 4 Act of Ma

y 25, 2007, 80th L eg ., R.S., ch. 263, § 78, 2007 Tex. Gen. L aws 421, 457. 5 Plaintiffs’ live pleading was their first amende d petition. The TYC Def endants have 6 at t ac h ed t o their appellate briefing what purports to be a copy of a second amende d petitio n that Plaintiffs filed afte r the district court’s ruling

. The TYC Def endants cite this pleading to support arg uments that Plaintiffs cannot cure , via reple ading , the jurisdictional defe cts that wer e identified in the district court’s order

. Strictly speaking , howeve r, this pleading is not part of the rec ord in this case , nor wa s it before the district court a t the time of the ruling on appea l. 5P laintif

fs’ p etition Two of the four Plaintiffs—Patricia L og terman and Dr. Corinne Alvare zSanders—a lleg e that on April 19, 2007 (which, it is undisputed, is the day on which S.B. 103 passed the Texas Senat e), they wer e eac h summoned to the office of TYC’s then-a cting chief of staff, Dimitria Pope, and g iven the choice of either resig ning from their jobs with the ag enc y or being fired. “W hen asked why ,” the two alleg e, “Pope replied that Plaintiffs would be tol d if and when they chose t o be terminated.” “Thre atene d with possible investiga tion by the Texas Rang ers and the Offic e of the I nspector Gene ral,” L og terman and Alvare z -S an d er s further asser t, they “chose
to be constructively discharg ed rathe r than fac e the possibili ty of being vilified in the media.” They add that althoug h they “subseque ntly reque sted to withdraw their resig nations, Pope denied their
reque sts” and similarly

denied g rieva

nces e ach subse quently

attempted to file. A third Plaintiff, Dr. Don Br antley , alleges that “Pope also reque sted [t hat he] quit or be fired on April 19, 2007.” I n contr as t to Alvare z-Sanders and L og terman, Br antley demande d “due proce ss and a hear ing.” I n response , Br antley complains, TYC did not proce ed with terminating him but instead sus pended him unt i l af t er section 37 took eff

ect. Then, in J uly 2007, TYC and its acting executive direc tor at the time, Ed Owen s , “i n fo rm ed Dr. Br antley that beca use Senate Bill 103 took awa y his status as a for- cause employ ee, h e was not entitled to due p ro ce s s o r a termination hear ing,” and “then terminated Dr. Br antley without aff ording him due proc ess or a

hear ing.” The fourth Plaintiff, Castillo, alleg es t hat s he has “bee n continuously employ ed by the TYC from 1994 to the dat e o f the filing of this action.” Castillo asser ts that, S.B. 103

6notwithstanding, she “wa s and rema ins at all times a fo r cause employ ee” but that “[t] he TYC,

howeve r, curr ently considers [her] to be an at will employ ee, despite the fac t that she was employ ed by the TYC bef

ore the eff

ective da te of Sena te B ill 103.” 7 Ba sed on these fac tual alleg ations, Plaintiffs collectively purport to asser t three basic
sets of liability theories. First, Alvare z-Sanders and L og terman alleg e that (1) they wer e for- cause employ ees as of the date of their resig nations in April 2007; (2) they wer e constructively discharg ed; and (3) TYC discharg ed them without comply ing with its proce dures g overning i n voluntary termination of for-ca

use emp l o y ee s . Consequently , Alvare z-Sanders and L og terman reason, they

wer e “wr ong fully terminated” by being dispossessed of their “veste d proper ty interest” in their jobs without due proce ss.

Second, all four Plaintiffs pled that section 37 is invalid and unenfor cea ble beca use it violates constitutional prohibitions ag ainst retroa ctive legi s l at i o n , ex post fac to laws, and bills of attainder

. I t thus follows, Plaintiffs further as s ert, that section 37 was ineffe ctive to chang e

8 their respe ctive employ

ment statuses from for- cause to at-will. Also, predic ated on these asser tions, Br antley further alleg es that he continued to be a for- cause employ ee even afte r section 37’s eff ective

Castillo also purports to sue on behalf of a putative class of curr ent TYC employ ees. The 7 rec ord does not re flec t that a class- cer tification motion has either be en filed or ruled upon be low. See U.S. Const. art. I , § 9, cl. 2 (“N o Bill of Attainder or ex p o s t fa cto L aw shall be 8 passed.” ); U.S. Const. amend. XI V, § 1 (“nor shall any State deprive any

person of life, liberty , or proper ty , without due proce ss of law”) ; Tex. Const. art. I , §§ 16 (“N o bill of attainder , ex post fac to law, retroa ctive law, or any law impairing the obli g ation of contra cts, shall be made.” ), 19 (“N o citizen of this State shall be de prived of . . . pr operty , privileg es or immunities . . . ex cept by the due c ourse of

the law of

the land.”)

. 7date and that he was “wr ong fully terminated” without adher ence to the proce dural protec tions to

which for -ca

use TYC employ ees w ere entitled. Third, Alvare z-Sanders, L og terman, and Br antley alleg e that in connec tion with the complained- of personne l actions, Pope and Owens “made sever al p u b l ic and private defa matory

s tatements” reg arding them. I n particula r, the former employ ees complain, their TYC pers o nn e l f il e s

wer e “code d” to r efle ct that Alvare z-Sanders and L og terman had “re signe d in lieu of termination” and that all three wer e “inelig ible for rehire wi t h o u t rea son.” They pled that these “def amatory statements” have cause d them to “be subject to public ridicule and hatre d and

. . . suffe r sever e damag e to their business and pe rsonal re putations.”

Ba sed on these alleg ations, Plaintiffs so u gh t relief from the TYC Def endants that

9
cente red on two r equeste d decla rations under

the Uniform De clar atory J udg ments Act (UD J A): 1 0

• a d eclaration that section 37, which “attempted to remove the ‘for cause ’ status o f T YC employ ees em p l o y ed befor e that [J une 8, 2007] date,” violates constitutional prohibitions ag ainst retroa ctive leg islation, ex post facto law s, and bills of attainder; a nd

I n addition to naming the TYC and its c urre nt executive direc tor, in her officia l capa city , 9 as defe ndants, Plaintiffs also sued Owens and Pope individually

. Additionally , Plaintiffs purported to sue Owens and Pope in their officia l capa cities even though neither is curr ently employ ed by the ag ency . Be cause none of the individual defe ndants are (or can be) parties to this appea l, and beca use any formal distinctions betwee n the TYC Def endants and the former office rs in their officia l capa cities are not materi a l to o u r a naly sis (the ag ency -ver sus-offic ers- in-offic ial-ca pacity distinction become s rele vant chief

ly to prospec tive relief that would lie ag ainst the curr ent executive direc tor, see City of El Paso v. Heinrich , 284 S.W .3d 366, 372-73 (Tex. 2009) (explaining that suits seeking to restra in ultra vires acts of state officia ls “must be broug ht ag ainst the state actor s in their officia l capa c it y ”)) , we identify the defe ndants simply as the “TYC Def endants” for clar ity and convenie nce. We have s i m i l arly corr ecte d our caption, which orig inally bore, in err or, the names of additional parties be fore the district court.

See Tex. Ci v. Prac. & Rem. Code Ann. § 37.004(a ) (West 2008). 1 0 8• a decla ration “that as a matter of law Plaintiffs wer e ‘for cause ’ employ ees . . . afte r J une 8, 2007, the ef

fec tive date[] of S enate Bill 103.”
Additionally , Alvare z-Sanders and L og terman soug ht “a decla ratory judgme nt as to their ‘for cause ’
status as TYC employ ees at the time of their termination, April 19, 2007.” Wit h these decla rations, Plaintiffs pray ed for

attorney ’s fe es as the U DJ A per mits. 1 1 Plaintiffs further reque sted “prospe ctive inj unctive and/or equitable relief ” b arring “TYC and its officia ls from enfor cing Section 37 of Senate Bill 103” and “the TYC administrative
reg ulations that [are] derive d from Section 37.” Finally , the three former employ ee Plaintiffs pray ed for money damag es, including compensa tion for injury to reputa tion, lost ear ni n gs and ear

ning
capa city , and past and future mental ang uish, based on theories of wrong ful discharg e, defa mation, and the “ taking ” of the ir “prope rty interests” in their T YC employ ment.

“P lea to the j urisdi ction and mot ion f or sum m ary judgm ent” The TYC Def

endants responde d wi th a single filing sty led as a “Plea to the J urisdiction and Motion for Summary J udg ment.” I n a section of the document titled “Plea to the 1 2 J urisdiction,” t h e T YC Defendants asserted the following g rounds challeng ing the district court’s subject-matter

jurisdiction over the c laims ag ainst them:

• Plaintiffs’ claims for money d am age s from the TYC Def endants implicate sovere ign immunit y and they have failed to ple ad a valid waiver of such immunit y . I n particula r, the UD J A d o es n ot waive immunit y to the extent of decla ring a rig ht to money damag es,

See id. § 37.009 (West 2008). 1 1 The individual defe ndants also joined in the motion for summary judgme nt. Be cause only 1 2 the g rounds asser

ted by the TYC Def

endants a re pe rtinent to this appeal, we discuss only those. 9Plaintiffs have not alleg ed any valid taking s claim, and the Tort Claims Act does not waive

immunit y as to intentional torts like defama tion.

• Whil e the Texas Constit ution authoriz es “dire ct claims for equitable relief ag ainst g overnme n t al age n ci es for violations of

. . . the Texas Bill of Rights,” Plaintiffs have not asser ted a reque st for eq u i table relief to reme dy their alleg ed wrong ful-termination/dueproce ss violation concer

ning A lvare z-Sanders, L og terman, a nd Br antley

.

• Although “TYC conce des that it is a proper party to this suit and that the [UDJ A] waives its immunit y ” to the ex tent “Plaintiffs’ declara tory judgme nt action challeng es t he validit y of [section 37],” sovere ign immunit y bars any decla ratory claims ag ainst T YC co n cer ning alleg ed ultra vires conduct, which must instead be asser ted ag ainst the executive direc tor in his official c apac ity

.

• I n any event, none of the four plaintiffs possess a justiciable interest that could support their claims cha lleng ing the constitutionalit y of sec tion 37:

• Alvare z-Sanders and L og terman lack standing beca use they resig ned prior to section 37’s eff

ective date and “have simply not alleg ed any future harm” that could g ive rise to a live justiciable interest on their pa rt.

• Castillo pos sesses no ripe justiciable interest.

• Br antley ’s constitutional challeng es are moot beca use he rec eived all of the proce ss to which he would have bee n entitled as a f or-c ause TY C employ ee.

• The d e c la

r a to r y c la ims asser

ted by Alvare z-Sanders, L og terman, and Br antley are also barr ed beca use they seek decla

rations as to i s s u es that are alre ady prese nted by their wrong fultermination claims. Additionally , beca use the district court lacks subject-matter jurisdiction over these plai n t i ffs’ wrong ful-ter mination claims, there is no justiciable controve rsy that could support their de clar atory claims.

I n the “summary judgme nt” portion of the filing, the TYC Def endants asser

ted that “Plaintiffs’ decla

ratory judgme nt claim ag ains t T YC [and its executive direc tor], in her officia l
capa city

. . . fails as a matter of law beca use [section 37] is not an ex post fac to or retroa ctive law.” I n support of these g rounds, the TYC Def endants asser

ted that the ex post fac to law prohibition applies only

to penal statutes, Rogers v. Tenne ssee , 532 U.S. 451, 456 (2001); Barshop v. Me dina

10County Underground W ater Dist. , 925 S.W .2d 618, 633-34 (Tex. 1996), and that Plaintiffs possessed no vested proper ty rig ht in the L eg islature’s conti n u i n g to g rant them for- cause employ ment status, only a mere ex pecta ncy based on the anticipated continuation of current la w. See, e.g. , McM

urtray v. Holladay , 11 F.3d 499, 504 (5th Cir. 1 993) (“The Supreme Court long
ag o established that, when a leg islature ex tinguishes a proper ty interest via leg islation that aff ects

a gen er al cl ass of people, the leg islative proce ss provides all of the proce ss that is due.”) (citin g Logan v. Z i mm er ma n Brush Co. , 455 U.S. 422, 433 (1982); Bi-Me tallic Inv. Co. v. State Bd. of Equalization , 239 U.S. 441, 445-46 (1915))

.

I n support of their plea to the jurisdiction, the TYC Def endants attache d evidenc e that included, of rele vance here , an aff idavit from Dewe y Poteet, a TYC in-house attorney who advises the ag ency on personne l matters. Attache d to Poteet’s aff idavit wer e copies of TYC’s policies 1 3 and proc edure s g overning g rieva nces by involuntarily terminated employ ees both be fore and af ter section 37’s implementation, previously descr ibed. Also attache d was corr espondenc e to and from the ag ency rela ting to Br antley ’s termination and a g rieva nce that he subsequently attempted to file with the ag ency . The doc uments and Poteet’s testimony ref lect that:

• On April 19, 2007, Pope provided Br antley a two-pag e rec ommendation-to-ter minate letter advising him of what Pope perc eived as sever al failure s by Br antley to perf orm four “esse ntial job functions” and her conclusion that his “continued employ ment is not in the best interest of the ag ency as it moves toward r efor m.” The letter further notified Br antley that he had the rig ht to raise with Owens “any fac ts reg arding why y o u b el i ev e y our

The TYC Def

endants also attache d documents ref lect i n g an abortive attempt by 1 3 L og terman and Alvare z-Sanders to liti g ate in fe dera l court some of the same claims that Plaintiffs asser t in this proce eding

. 11employ ment should not be t er m i n at ed under these circ umstances” befor e “any decision is made r eg arding y our termination.”

• On May 1, 2007, an attorney for Br antley wrote Owens assert i n g t h at the April 19, 2007 letter was insufficiently clea r and specifi c re garding the fac tual bases for Br antley ’s termination, and re questing clar ification.

• On May 15, 2007, Pope responde d with a four- pag e amende d rec ommendation-to-ter minate letter that cited s p ec i fi c examples of what Pope reg arde d as Br antley ’s resistanc e to the ref orm initiatives of his superiors, failure s to promptly respond to repor ts of phy sical abuse of y outh in TYC fac iliti es, and poor judgme nt in promoting a TYC employ ee who was later 1 4 disciplined for fa ilure to “de tect and a ddress [a] pattern of sexual abuse a t his facility .”

• On May 25, 2007, Br antley persona lly wrote Owens a sevente en-pa g e letter taking issue with Pope’s asser

tions.

• On the same day , Br antley and his attorney met with Owens. During this meeting , acc ording to Poteet, “both Dr. Br antley and Mr. Durst [hi s attorney ] addre ssed the rec ommendation to terminate a

nd the re asons why

they urg ed re jection of the r ecommendation.”

• There afte r, as previously noted, S.B. 103 took effe ct on J une 8, 2007. Subsequently , TYC amende d its g rieva

nce policies, eff

ective J une 20, 2007, to eliminate the rig ht to a g rieva nce for e mploy ees w ho are terminated by the executive dire ctor.

• On J une 22, 2007—two day s afte r TYC am ended its g rieva nce policies to eliminate t h e ri gh t to a g rieva

nce for employ ees who (like Br antley ) wer e terminated by t h e executive direc tor—Owe ns wrote Br an t ley advising him that he was upholding Pope’s rec ommendation to t er m i n at e his employ ment, and terminated Owens on that day

. Acc ording t o P o teet, “Dr

. Br antley ’s response to the rec ommendation, both verba l and written, and the verba l and written response of Dr. Br antley ’s at t o rney , wer e considere d by Mr. Owens befor e he acte d on and acc epted Ms. Pope’s rec ommendation to terminate Dr. B rantley ’s employ

ment.”
Following his termination, the TYC Def endants’ evidenc e ref

lects, Br antley attempted to file a g rieva nce reg arding his termination, as had been p er m itted under the ag ency ’s

Pope sp ec i fi cally cited Br antley ’s failure to act on “some serious incident revie ws 1 4 reg arding the superintende nt at a fac ility having repor tedly spray ed water onto two y ouths who had climbed a tre e” a

nd “complaints about a

prac tice by

which y outh w ere kept at para de rest” for 55-minute intervals. 12prior policies. Howeve r, TYC, Poteet explained, dismiss ed the g rieva nce “on J ul y 1 3 , 2 0 07, pursuant to the ag ency ’s g rieva nce policy

. . . beca

use under the ag ency ’s g rieva nce policy in eff

ect
at the time of Dr. Br antley ’s discharg e . . . a decision to terminate employ ment made by the ag ency ’s executive direc tor is not subject to the full gr ievanc e proc ess.”

Finally , i n addition to his testimony reg arding Br antley , Poteet further aver red that Castillo had been continuously employ ed by

TYC since 1994, “re mains a TYC employ ee in g ood standing ,” and tha

t the ag ency “has not r ecommende d that [her] employ ment be terminated, nor is she under a thre at of ter

mination.”

P laintif fs’ response Plaintiffs filed a response in which they joined issue with both the TYC Def endants’ “plea to the jurisdiction” and “summary judgme nt” g rounds. I n support, they attache d evidenc e that included aff

idavits from eac h Plaintiff

. M at eria l to our analy sis, Alvare z-Sanders testified that, 1 5 consistent with her pleading alleg ations, Pope had g iven her the choice of either resig ning or being fired, g ave her “15 minutes to make my decision,” and that she had opted to resig n out of fea r of being “thra shed and humiliated in the press by the TYC and its officia ls.” Alvare z-Sanders added that when she inquired as to the rea son why Pope had taken this actio n , P o p e “abr uptly informed

me that if I chose to not resig n, the rea sons would be prese nted at my termination hear ing.” Plaintiffs also attache d aff idavits from a former TYC g ener al counsel, Neil Nichols, and a former

The aff idavits contain numerous unsupported leg al conclusion s t o t he eff ect that the 1 5 Plaintiffs’ for- cause status constitutes a “veste d proper ty rig ht.” See City of San Antonio v. Pollock , 284 S.W .3d 809, 816 (Tex. 2009) (obser ving that unsupported leg al conclusions are not competent evidenc e and ma

y not support a judg ment even in the a bsence of an obje ction). 13TYC human resour ces manag er, Kar en Gi l es , who purported to opine that the ag ency had not

followed it s proce dures for i nvoluntary termination of for-ca use employ ees in connec tion with its “ter mination” of Alvarez-Sanders and L og terman. Fur thermore , Alvare z-Sanders and L og terman

aver red that under TYC’s personne l po l i ci es , t he ag ency ’s coding of their personne l files to ref lect that they

resig ned in lieu of termination and wer e ineligible for rehire implied that they had committed misconduct.

Also of rele vance , Bran t ley aver red that, g ener ally consistent with the TYC Def endants’ evidenc e, the ag ency had taken the position that he was not entitled to the gri ev an ce p roce ss and evidentiary hear ing beca use, as of t he date of hi s termination, the age ncy ’s
g rieva nce policies had been chang ed to make Owens’ s decision final. As for Castillo, she aver red that, consistent with her pleading alleg ations, “since the eff ective date of Senate Bill 103, the TYC has classified me as an at-will employ ee” and “informe d me that I no longe r am a for cause employ ee

as it rela tes to my employ ment with the TYC and the State of Texas.” Howeve r, Castillo did not
controve rt Poteet’s testimony that she had rema in ed an employ ee in g ood standing and fac ed no threa t of termination.

Rulin g A hear ing was held at which no further evidenc e was prese nted. The rec ord ref lects that the parties and the district court addre ssed only the g rounds desig nated within the “plea to the jurisdiction” portion of the TYC Def endants’ filing and did not rea ch those raised wi t h in the “motion for summary judgme nt.” Following the hear ing, the district court partially g rante d the plea and dismiss ed all of the claims asser ted by Br antley and Castillo, as well as Alvare z-Sanders’s and

14L og terman’ s “cla ims for defa mation, constitutional taking s, and decla ratory judgme nt.” The court did not elabora te as to the spec ific g rounds on which it re lied.

T h e d istrict court’s ruling s left pending only Alvare z-Sanders’s and L og terman ’s “cla im for wrong ful discharg e.” The court g rante d the plea and dismiss ed this “cla im” “to the extent they seek to re co v er m o ney damag es” but denied it “to the extent they seek to rec over equitable relief ” under that theory

. The court aff orded Al v ar ez -S anders and L og terman the opportunity “to reple ad their wr o n gful discharg e claim to asser t a claim for equitable relief ag ainst a proper state off icial, in his/her offic ial capa city ” within fiftee n day s there afte r. The district c ourt did not, howeve r, purport to immediately dismiss Alvare z-Sanders an d L o gt erman’s “cla im for wrong ful discharg e to the extent they seek to rec over equitable relief ” from TYC, althoug h compliance with the cour t’s order would result in Plaintiffs non-suiting the a g ency by omission. Both Plaintiffs and the TYC Def endants filed notices of appea l from the district court’s order

. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (8) (West 2008); see also id. § 51.014(b) (West 2008) (automatic stay of trial court proce eding upon filing of notice of appea l under subse ction (a) (8))

.

ANALYSIS

Plaintiffs bring nine issues on appea l, while the TYC Defenda nts bring two. The

1 6 issues are most productively explained and analy zed acc ording to the particula r Plaintiff or Plaintiffs to whom they

perta in.

Severa l of the arg uments asser ted in the TYC Def

endants’ briefing in support of th ei r 1 6 cross-a ppeal are in substance re s p o n s es to Plaintiffs’ appellate arg uments rathe r than g rounds for altering the j udg ment i n t h ei r favor or cross-points asser ting alternative gr ounds for affirming the district court’s judg ment. We have a naly zed them acc ording ly

. 15Castillo Castillo, the sole Plaintiff curr ently empl oy ed at TYC, seeks only decla ratory and injunctive relief predic ated on a challeng e to section 37’s constitutionalit y . I n their third issue, Plaintiffs urg e that the district cour t erre d in dismi ssing Castillo’s claims for la ck of r ipeness. Ri p eness is in part an aspec t of the justiciable controve rsy that is require d befor e the judicial b ra n ch is constitutionally empower ed to resolve a dispute. See Patterson

v. Planned Parenthood , 971 S.W .2d 439, 442-43 (Tex. 1998) (obser ving that ripene ss and other justiciabilit y doctrines deri v e i n part from separ ation-of- power s principles and the constitutional prohibition ag ainst advisory opinions). “To constitute a justicia b l e controve rsy , there must exis t

a rea l and substantial controve rsy involv i n g g enuine conflict of tang ible interests and not mere ly

a theore tical dispute.” Bonham State Bank v. Beadle , 907 S.W .2d 465, 467 (Tex. 1995) (quoting Bex ar-Me dina-Atascosa Counties W ater Control & Improve ment Dist. No. 1 v. Medina Lake Prot. Ass’n , 640 S.W .2d 778, 779-80 (Tex. App.—San An t o n i o 1982, writ ref ’d n.r.e.) ). Ripeness is “pec uliarly

a question of tim ing” —specific ally , whether the fa cts have develope d sufficie ntly that

a plaintiff has incurre d or is likely to incur a concr ete injury

. Perry v. Del Rio , 66 S.W .3d 239, 249- 51 (Tex. 2001) (quoting Regional Ra i l Reorganization Act Cases , 419 U.S. 102, 140 (1974))

. Ripeness is thus said to be lacking wher e the case involves “unce rtain or conting ent future events that may not occur as anti ci p ated, or indeed may not occur at all.” Patterson , 971 S.W .2d at 442 (quoting 13A Charles A. Wright et al., Fede ral Practice & Procedure § 3532, at 112 (2d ed. 1984)).

As the basis for her claimed justiciable interest in ob ta in in g d e c la r a to r y a n d injunctive relief reg arding section 37, Castillo pled that the agency “cur rently considers [her] to be an at

16will employ ee, despite the fac t that she was emplo y ed b y t h e T YC befor e the eff ective date of Senate Bill 103.” Simi larly , as evidenc e of her justiciable interest, Castillo ave rre d that “since the eff ective date of Senate Bill 103, the TYC has classified me as an at will employ ee” and that ag ency officia ls had advised her that they no longe r considere d her a for- cause employ ee. Howeve r, Castillo has neither alleg ed nor prese nted evidenc e that section 37 has had or is threa tening t o h av e any tang ible impact on her. I n fac t, the TYC Def endan t s p re s en ted unconver ted evidenc e neg ating that fac t. See Miranda , 133 S.W .3d at 22 7

. Na m el y , Poteet testified that Castillo “re mains a TYC employ ee in g ood standing ” and that the ag ency “has not rec ommended that [her] employ ment be ter minated, nor is she unde r a thre at of ter mination.” I n urg ing that she nonetheless possesses a ripe, justiciable interest in her claims, Castillo emphasizes that one’s status as a for -c au s e p u blic employ ee is considere d to cre ate a proper ty rig ht in continued employ ment that is protected by proce dural due proce ss require ments. See, e.g. , Loudermill , 470 U.S. at 5 3 8

- 3 9

. Co nsequently , Castillo rea sons, she incurre d an immediate

concr ete injury

at the moment sec tion 37 took eff ect and “divested” her of that proper ty rig ht. As Castillo explains her view on appea l, “whe re once [she] was clothed in the protec tion of a ves t ed rig ht a nd due proce ss before termination, she has been stripped of her protec tion a nd stands naked befor e TYC without the rig hts she previously enjoy ed.” (Emphasis in orig inal.) But this is mere ly

a restate ment of the fac t that C ast illo comes within the class of individuals whose terms of employ ment wer e altere d by section 37—and that fac t alone does not establish that she prese ntly has

a ripe, justiciable interest in challeng ing that enac tment. A justiciable interest in reg ard to a statute require s more, “some ac tual or threa tened restric tion under that statute.” Texas W orkers’ Comp.

17Comm’n v. Garcia , 893 S.W .2d 504, 517-18 (Tex. 1995) (d iscussing the rela ted conce pt of

standing ). And whether section 37 will ever have any thing more than mere ly a theore tical eff ect on Castillo turns on at l east two sets of contingenc ies: (1) whether her termination will ever occur or be threa tened, and (2) TYC’s specific actions in that event. Consequentl y , Ca s ti llo’ s asser ted interest in the decla

ratory and injunctive relief rests upon the sorts of “unce rtain or conting ent future events that may not occur as anticipated, or i ndeed may no t o cc u r at al l ” that char acte rize unripe claims. Patterson , 971 S.W .3d at 442; see also To ilet Goods Ass’n v. Gardner , 387 U.S. 158, 162 (1967) (holding that claims wer e n ot ripe wher e new reg ulations might never aff ect plaintiffs and wher e the impact of the reg ulation was no t “f el t i m m ed i ately by those subject to it in conducting their day -to-day aff

airs”) ; Garcia , 893 S.W .2d at 33-34 (plaintiff lacke d standing to asser t constitutional challeng e to new workers’ compensa tion act where he “ha s submitt ed no claim for benefits under the Act, may never do so,” and, if he ev er d id, “ther e is no way to predic t what action the Commi ssion may take on that claim”)

. Be cause the unconver ted jurisdictional evidenc e neg ates the ripene ss of Castillo’s cla ims, the district court prope rly dismiss ed them for

want of subjec t-matter jurisdiction. W e over

rule Plaintiffs’ third issue.

Alvarez -Sand ers and Logterm an “Wrongful

term inati on”/du e proce

ss Alvare z-Sanders and L ogt erma n asser ted theories of “wr ong ful termination” predic ated on alleg ations that they wer e deprive d of their proce dural due proce ss ri gh t s i n their employ ment by being constructively discharg ed. Whil e dism issing their claims under this theory
to the extent they soug ht money damag es, the district court denied the plea to the jurisdiction to the

18extent of permitting Alvare z-Sanders an d L og terman to reple ad, if possible, a viable claim for

eq u i t ab l e relief ag ainst a state officia l. I n their first issue on appea l, the TYC Def endants urge that this ruling was err or beca use the rec ord demonstrates an incura ble jurisdictional defe ct such that reple ading would be futile. S ee Texas A&

M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 846 (Tex. 2007) (re manding to the trial court to dismiss claims with prejudice wher e pleading s

wer e incura

bly defe ctive). Specifica lly , the TYC Def endants contend that Plaintiffs’ pleading s and the jurisdictional evidenc e neg ate an essential element of a viable due-pr oces s claim predic ated

on constructive discharg e, that the employ er forc ed the em p l o y ee s ’ resig nations with the intent
to deprive them of the proce dural due proce ss that would ac co m p an y involuntary termination. See Fowler v. Car r o l l t on Pub. Library , 799 F.2d 976, 981 (5th Cir. 1986); see University of Tex. Med. Sch. at Houston v. T h a n , 9 0 1 S.W .2d 926, 929 (Tex. 1995) (holding that althoug h Texas Con s t itution ref

ers to “due course ” rathe r than the U.S. Constit ution’s “due proce ss,” the ph rases are not meaning fully distinct and fede ral interpre tations of proce dural due proce ss are persua sive authority

when inter

preting Texas’s “due c ourse” g uara ntee)

. As a threshold matter, we question whether we have jurisdiction to consider this
g round for dismiss al in the context of this interlocutory appea l wher e, as here , there is no indication in the rec ord that the TYC Def endants ever raised it befor e the district court. See Austin Indep. Sch. Dist. v. Lowery , 212 S.W .3d 827, 834 (Tex. App.—Austin 2006, pet. denied) (we consider plea that

was filed an d d o n o t ad dress whether the district court err ed in deny ing the plea on a g round that

was not arg ued below); but see Texas State Bd. of Pub. Acc ountancy v. Bass , No. 03-09-00251- CV, 2011 Tex. App. L EXI S 294 , at * 1 4-15 n.2 (Tex. App.—Austin J an. 14, 2011, no pet.) (noting

19appar ent exception wher e plaintiff p u rported to asser t an ultra vires claim direc tly ag ainst a state ag ency

); Rusk State Hosp. v. Black , No. 12-09-00206- CV, 2010 Tex. App. L EXI S 4687, at *12 (Tex. App.—Ty ler J une 23, 2010, pet. g rante d) (dec lining to consider on interl o cutory appea l jurisdictional challeng es not prese nted to or ruled on by the trial court). I n any event, we would not sustain the TYC Def

endants’ issue beca

use we find no err or in the district court’s ruling as to these claims. We ag ree wit h t h e TYC Def endants that Alvare z-Sanders and L og terman failed to alleg e

or prese nt evidenc e that the TYC Def endants constructively discharg ed t h em wi t h t he intent to de prive them of proce dural due proce ss. Howeve r, we disag ree that the pleading s and evidenc e aff irmatively negate that element, as opposed to mere ly omitti ng it. Although Alvare z-Sanders and L og terman d i d n o t asser t that the TYC Def

endants intended to deprive them of due proce ss, Plaintiffs asser

ted that they wer e g iven a choice to quit or be fired under “h igh- pressure ” circ umstances, and that when they asked why , “Pope replied that Plaintiffs would be told if and when they chose to be terminated.” They further asser ted that their reque sts to withdraw their resig nations

wer e denied, and they wer e not permitted to file g rieva nces. Rather than demonstrating an incura ble defe ct, the rec ord ref

lects that Alvare z-Sanders and L og terman purported to asser t a claim predic ated

on due-pr ocess violations throug h constructive discharg e, but failed to include sufficie n t facts

or alleg ations to support an element of that claim. Where, as here , the rec ord fails to a ffirma tively demonstrate incura

ble defe cts in jurisdiction, the appropr iate reme dy is to g rant l ea v e t o amend rathe r than to dismiss. See M iranda , 133 S.W .3d at 226-27. The TYC Def

endants further object that allowing Alvare z-Sanders and L og terman
to reple ad to seek equitable relief under their wrong fu l -t er m i n ation/due-proc ess theory is futile

20beca

use they cannot seek reinstateme nt and would still lack standing to challeng e section 37 in any event. Although we ultimately ag ree that Alvare z-Sanders and L og terman’ s claims for equit able relief do not cre ate a justiciable interest on their part in the constitutional challeng es, as we explain below, that conclusion alone does not rende r futile their opportunity to reple ad claims for equitable relief based on their wrong ful-ter mination/due-proce ss theory

. As the TYC Def endants emphasize, these claims of Alvare z-Sanders and L og terman are b as ed on fac ts that occur red months befor e section 37 t o o k ef

fe ct

. Fur thermore , they could conce ivably seek equitable reme dies other than reinstateme nt. See Than , 901 S.W .2d at 933 (“I n g ener al,

. . . the reme dy for a denial of due proce ss is due proce ss.”).

I n short, the district court did not err in deny ing the TYC Def endants’ plea to the jurisdiction to the extent of permitting Alvare z-Sanders and L og terman the opport u nity to reple ad their wrong ful-ter mination/due-proce ss claims to seek equitable relief from an appropr iate state official (i.e., TYC’s executive di rec tor). Having so held, however, the district court e rred in failing to dismiss Alvare z-Sanders and L og terman’ s w r o n g f u l- te r mi nation/due-proc ess claims to the
extent they soug ht equitable relief from TYC itself. As the Texas Supreme Court has rec ently made clea r, a suit for equitable relief to restra in officia l conduct that is ultra vires of an ag ency ’s statutory

or constitutional powe rs m u s t be asser ted ag ainst a state officia l, in his or her officia l capa city , and sovere ign immunit y bars such a claim if asser ted ag ainst the ag ency itself. City of El Paso v. Heinri ch , 2 8 4 S

. W .3d 366, 372-73 (Tex

. 2009) (ex plaining that suits seeking to restra in illega l
acts of stat e o ff

i cials “ca nnot be broug ht ag ainst the state, which reta ins immunit y , but must be broug ht ag ainst the s tate actors i n their off i cial capa city ” because “‘a cts of officials which are not

21lawfully authorized are not acts of the State’” (citation omitted)); see Creedmoor-M aha , 307 S.W .3d
at 513, 516 n.8 (re cog nizi ng that a suit to restra in a state offic i al’s unconstitutional conduct is a ty pe of ultra vi res suit ). Acc ording ly , we will reve rse this portion of t he dis t ri ct court’s judgme nt and render judgment dism issing the wr ong ful-ter mination/due-proce ss claims of Alvar ez-Sanders and L og terman to the extent they are asser ted ag ainst TYC. See Bass , 2011 Tex. App. L EXI S 294,
at *14-15 n.2 (noting that Texas Supreme Court has appar ently conclude d that this g round for dismiss al can be raised on appea l even in the context of a section 51.014(a) (8) interlocutory appea l).
“Def am ation” I n their fifth issue, Plaintiffs urg e that the d istrict court err ed in dismiss ing the d ef am at i on claims of Alvare z-Sanders and L og terman. Plaintiffs do not appea r to dispute t h at 1 7

sovere ign imm u n i t y wo u ld bar a common-law tort claim for defa mation, particula

rly one seeking
money damag es. Seeming ly rec og nizi ng this, Plaintiffs have a ttempted to rec ast the def amation 1 8 claims they plead as instead seeking equitable relief to reme dy constitutional violations. Be fore the district court, P laintiffs attempted to re cast these claims as see king injunctive or decla ratory relief
to reme dy “a lifelong scar let letter/stigma ” that amounted to a bill of attainder

. On appea l, Plaintiffs have shifted focus to sug g est that “[d] efa mation may be likened to a claim ag ainst an employ er for

an unconstitutional depriva tion of a liberty interest,” and cite case s rec og nizi ng that due proce ss may

Wit hin this issue, Plaintiffs also advanc e the same arg uments with respe ct to the dismiss al 1 7 of B rantley ’s def

amation claims. See Tex. Ci v. Prac. & Rem. Code Ann. § 101.057 (2) (West 2011) (tort claims act does 1 8 not waive immunit y as to claims arising out of an intentional tort); City o f He mp s t ea d v. Kmiec , 902 S.W .2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ) (ac knowledg ing that the tort claims ac t does not waive immunity for intentional torts, including defa mation). 22be violated by a public employ er’ s d i s ch arg e of an employ ee under “stig matizi ng ” circ umstances

without g iving the employ ee the opportunity to clea r hi s or her name. See A rrington v. C ounty of Dallas , 970 F.2d 1441, 1447 (5th Cir. 1 9 9 2 ) (“A public employ er may unconstitutionally deprive its employ ee of a liberty interest if it discharg es him under stigmatizing circ umstances witho u t g iv ing the employ ee an opportunity to clea r his name.” ). We c annot conclude that the district c ourt err ed in dismi ssing these claims.

As a thre shold matter, any claim for e quitable re lief fr om a constitutional violation would, ag ain, be barr ed by sovere ign immunit y to the extent that Plaintiffs w ould pur port to a ssert it ag ainst TYC. See Heinrich , 284 S

. W

. 3 d at 3 7 2 -7 3. I f any such claim wer e viable, it would lie instead ag ainst TYC’s executive direc tor. See id. And , as demonstrated by our detailed revie w of Plaintiffs’ pleadings , an d howeve r liberally we might construe those pleading s, Plaintiffs did
not plead any claim for equitable relief predic ated on defa mation or some rela ted notion of stigmatization, much less one predic ated on d u e proce ss, the theory on which Plaintiffs
appar ently now rely

. I n this re g ard, we observe that, “[t] o asser t a claim for the depriva tion of this constitutional rig ht to a name- clea ring hear ing, a plaintiff must alleg e that he was a public employ ee, that h e was discharg ed, that stigmatizing char g es wer e made ag ainst him in connec tion with his discharg e, that the char g es wer e false, that the cha rge s we re m ade public, that he reque sted a

name- clea

rin g hear ing, and t hat t he hearing was denied.” Id. at 1447 (citing Rosenstein v. City of Dallas , 876 F.2d 392, 395-96 (5th Cir. 1989). Fur thermore , as Plaintiffs rec og nize, the public char g es must be so stigmatizing that they cre ate a “badg e of infa

my ” that destroy s the employ ee’ s ability to obtain other employ ment. Evans v. City of Da l l a s , 8 6 1 F.2d 846, 851 (5th Cir. 1988).

23Additionally , injury to a plaintiff’s reputa tion does not, in itself, amount to a depriva tion of

t h i s l i b erty interest. See Siegert v. Gilley , 500 U.S. 226, 233 (1991) (“D efa mation, by itself, i s

a tort actionable under the laws of m o s t States, but not a constitutional depriva tion.”). The live pleading s fall far short of alleg ing the fac ts require d to asser t a viable due-pr ocess claim based on stigmatization. Nor can we find any indication in the rec ord th at P l ai ntiffs advanc ed such a theory , or soug ht leave t o reple ad it, befor e the district court. I n short, we find no err or in the 1 9 district court’s dismissal of Plaintiffs’ defa mation claims, and over

rule their f

ifth issue.
“Takings” I n their six th i s s u e, Plaintiffs urg e that the district court err ed in dismiss ing any of their claims predic ated on the alleg ed “taking ” of their proper ty rig hts in continued employ ment. 2 0 Howeve r, as the TYC Def endants have pointed out, none of the Plaintiffs have asser ted, or could

asser t, a viable taking s claim predic ated on the “taking ” of a public employ ee’ s proper ty rig ht in continued employ

ment

. See Bates v. Texas State Technical Coll. , 983 S.W .2d 821, 826 n.8 (Tex. App.—Waco 1998, pet. denied) (re jecting taking s claim by employ ee whose teac hing contra ct

was not r enew ed and stating that the court could “find no c ases that hold that ‘pr operty ’ applies to

an individual’s proper

ty interest in continued employ ment.”); see a l

s o Seals v. City of Dallas , 249 S.W .3d 750, 759 (Tex. App.—Dallas 2008, no pe t.) (re ly ing on Bates for the pr oposition t hat
courts have ref

used to interpre t the taking s clause to protect an em p l o y ee’ s interest in public

We further observe that the second am en d ed p etition that is attache d to the TYC 1 9 Def endants’ br iefing does not purport to asse rt such a the ory . As with their fifth issue, within their si x th issue Plaintif fs ad v an ce the s ame arg uments 2 0 with respec t to the district court’s dismissal of Br antley ’s taking s claim. 24employ

ment); De Mino v. Sheridan , 176 S.W .3d 359, 368-69 (Tex. App.—Houston [1st Dist.] 2004,

no pet.) (rely ing on Bates to conclude that non-re newa l of t eac hing contrac t could not g ive rise to taking s claim; stating that “[plaintiff] direc ts us to no authority supporting hi s co n t en t ion that his
persona l interest in employ ment at UH or elsewhe re constitutes a ‘prope rty ’ rig ht for p u rp o s es of the ‘taking s’ clause ”). Among other problems, the State cannot, as a matter of law, “take ” a public employ ee’ s proper ty rig ht in continued employ ment “for public use” in the manner contemplated by the taking s clause

. See Steele v. City of Houston , 603 S.W .2d 786, 789 (Tex. 1980) (“The Constit ution limit s compensa tion to damag es ‘for or applied to public use,’ and jud i ci al
restra ints have narr owed that phrase to damag es which arise out of or as an incident to some kind of public works.”)

. Be cause these jurisdictional de fec ts are inc urable , the district court did not err in dismiss ing the taking s claims. See Miranda , 133 S.W .3d at 227. We overr ule Plaintiffs’ six th issue.

UDJA Alvare z-Sanders and L ogt er man asser t two sets of claims for decla ratory relief under the UDJA. First , they seek decla rations that they had the status of for- cause employ ees in April 2007, as of the time of their alleg ed constructive dis ch ar ges . T h e district court proper ly dismiss ed these claims beca use the reque sted decla

rations overla

p elements of their wrong fultermination/due-pr ocess claims and “[a]n action for decla ratory judgme nt will not be enter tained if there is pending , at t he ti me i t is filed, another action or proceeding b et ween the s ame parties and in which may be adjudicate d the issues involved in the decla ratory judgme nt action.” Texas Liquor Control Bd. v. C

anyon C reek Land Corp. , 456 S.W .2d 891, 895 (Tex. 1970); see BHP Petroleum Co. v. Millard , 800 S.W .2d 838, 841 (Tex. 1990) (“The Dec lara tory J udg ments Act is ‘not available

25to settle disputes alre ady pending befor e a court.’” (citations omitted)). Although Plaintiffs appea r to question this rule in their seventh and eig hth issues, those contentions are without merit, and we

overr ule them. Second, Plaintiffs urg e in their fourth issue t h at even though Alvare z-Sanders and L og terman w ere no longe r TYC employ ees at the t ime section 37 took eff ect, their claims for equitable relief g ive rise to sta n d i n g o n t h eir part to obtain decla ratory and injunctive relief challeng ing that st at u t e. C o n sequently , they rea son, the district court err ed in dismiss ing these claims. These arg uments fail for r easons similar to their a rg uments reg arding

Castillo’s claims. As of the date section 37 took eff ect, Alvare z-Sanders and L og terman wer e no longe r employ ees of

TYC, and had not be en for approximately

two months. At that juncture, it w as thus impossibl e for them to suffe r the require d “ac tual or threa ten ed re s t ri cti on under that statute”

n ec es s ar y for standing

. Garcia , 893 S.W .2d at 517-18. That condition would continue to exis t unless and until they could, in light of the fore g oing holdings, (1) plead a viable claim for equitable relief based on wrong ful termination, (2) preva il, and (3) the equitable relief they ultimately obtained would include reinstateme nt, such that section 37 would apply to them. These conting encie s, to say the l east, are far too remote and specula tive at t he pre sent time to give rise to a just iciable interest

on the part of Alvare z-Sanders and L og terman. Patterson , 971 S.W .2d at 4 4 2 (c l aim is unripe wher e the case involves “unce rtain or conting ent future events that may not occur as anticipated, or indeed may not oc cur at all”); see also Pe rry , 66 S.W .3d at 249-51 (eve n in instances wher e claim might eventua lly ripen based on subsequent events, trial court must dismiss claim if, at time of adjudication, it is not ripe). We overr ule Plaintiffs’ fourth issue.

26Brantley Unlike t he other Plaintiffs, Br antley was (1) formally terminated and (2) this eve nt

occur red afte r section 37 took eff ect. L ike Alvare z-Sanders and L og terman, Bran t l ey asser ted “def amation” and “taking s” claims and Plaintiffs challeng e the dismiss al of those claims on the same g rounds they asser

t reg arding the other two former employ ee Plaintiffs. We have alre ady disposed of these c ontentions above.

Br antley also asser

ted a theory of wrong ful termination predic ated on the alleg ations that TYC discharg ed him without “due proce ss,” that is, witho u t af fo rd i ng him the proce dural protec tions to which for- cause TYC employ ees had been entitled. Additionally , l i k e t h e other th r e e Pl a in ti f f s , B r a n tl e y a s serted claims for decla ratory and injunctive relief challeng ing section 37’ s constitutionalit y . The TYC Def endants attacked the district court’s jurisdiction over the se cla ims in part on the basis that the uncontrove rted jurisdictional evidenc e establishes that Br antley

was terminated only afte r rec eiving the same proce ss that a for- cause employ ee would have rec eived, rende ring his claims moot. Consequently , they reasoned, there was no justiciable controve rsy

re gar d i ng Br antley ’s claims. I n his first issue, Br antley asser ts that the district court err ed i n dismiss ing his claims for decla ratory and injunctive relief challeng ing section 37’s constitutionalit y . I n his second issue, Br antley contends in the alterna tive that the district court err ed in dismiss ing his
wrong ful-ter

mination claim and that he sho uld have been permitted to reple ad that claim to seek equitable r elief, in the same manner that Alvare z-Sanders and L og terman wer e. We ag ree in part. Although the jurisdictional evidenc e established that Br antley rec eived pretermination notice and an opportunity to respond consistent with TYC’s former policies g overning

27involuntary terminations, it rema in s t h at Br an tley did not rec eive all of the proce ss to which

he claims due proce ss woul d have entitled him as a for- cause employ ee. Namely , Br antley was denied an evidentiar

y hear ing on the g rounds for his termi nation. The TYC Def endants tacitly acknow ledg e this fac t in emphasizing that Br antley was not entitled to an evidentiar y hear ing under the g rieva

nce proce dures i n effect after the agency amende d them effective June 20, 2007 to eliminate the rig ht to an evidentiar y hear ing wher e, as h er e, the executive direc tor terminates the employ ee. Consequently , whateve r interest Br antl ey p o s sessed in obtaining the judicial relief he
soug ht was not entirely exti ng uished by the proce ss he rec eived. The district court, there fore , would have e rre d in dismi ssing B rantley ’s claims base d on a conc lusion that they wer e moot. On appea l, the TYC Def endants, in a supplemental brief, sug g est that Br antley ’s claims should nonetheless be dismiss ed beca use he did not, as a matter of l aw , al leg e fac ts that constitute a constitutional violation. See Creedmoor-M aha , 307 S.W .3d at 513, 516 n.8. The TYC De fe ndants essentially reur g e their arg uments—sty led as “summary judgme nt” g rounds in the district c ourt—that the ex post fac to la w prohibition a

pplies only to penal statutes, see Rogers , 532 U.S. at 456; Barshop , 925 S.W .2d at 633-34, and t hat Plaintiffs possessed no vested
p roper ty rig ht in the L eg islature’s continuing to g rant them for- cause employ ment status, o n l y a

mere expectancy based on the anticipated continuation of curr ent law. See, e.g. , McM urtray , 11 F.3d
at 504. The mere fac t that the TYC Def endants labeled this jurisdictional challeng e as a “summary

judgme nt” g round, as opposed to a g round in their plea to the jurisdiction, is not in itself dispositi ve of the TYC Def

endants’ contention. See A u s t i n S t a t e Hosp. v. Graham , No. 10-0674, 2011 Tex. L EXI S 611at *4-6 (Tex. Aug

. 26, 2011) (explaining that an interlocutory appea l may be taken from a

28ref

usal to dismiss for want of jurisdiction whether the jurisdictional arg ument is prese nted by plea to the jurisdiction or some other proce dural vehicle)

. But, as Plai n tiffs emphasize, the district court did not rea ch this g round for dismiss al, howeve r labeled. Under the prec ed en t s of this Court, as p re v iously noted, we do not have jurisdiction in the context of this interlocutory appea l to rea ch this g round for dismiss al, whateve r its merits. Lowery , 212 S.W .3d at 834 (“w e . . . do not addre ss whether the district court e rre d in deny ing the plea on a g round that wa s not arg ued below.” ). L ike Alvare z-Sand er s an d L og terman, Br antley should be permitted to reple ad his
wrong ful-ter

mination/due-proce ss c laim to seek equitable relief ag ainst a proper state off icial. To this extent, the district court err ed in dismiss ing Br antley ’s wrong f u l-termination/due-pr ocess claim. Howeve r, the dist ri ct court proper ly dismiss ed this claim to the extent he seeks monetary relief

or seeks any relief from TYC. Heinrich , 284 S.W .3d at 372-74. L ikewise, beca use Br antley ’s constitutional challeng es under the UDJA seek decla rations reg arding issues that are al re ad y elements of his wrong ful-ter mination/due-proce ss claim, the district court did not err in dismiss ing his UDJ A claims. See Tex as Liquor C ontrol Bd. , 456 S.W .2d at 895.

CONCLUSION We aff irm the district court’s order exc ep t i n t wo respe cts. First, we reve rse the district court’s order to the extent it fails to dismiss the wrong ful-ter mination/due-proce ss claims of Alvare z-Sanders and L og terman ag ainst TYC. We rende r judgme nt dismiss ing those claims for want of subject-matter ju ri sdiction. Second, we reve rse the district court’s order dismiss ing Br antley ’s wrong ful-ter

mination / d u e- p ro cess claim to the extent it would seek equitable relief

29aga inst an appropr iate state officia l. We rende r judgme nt that Br antley is to reple ad s ai d cl ai m

ag ainst a prope r state of

ficial within fiftee n day s of the date of this Court’s judgment.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pember ton and Henson; J ustice Patterson not par ticipating Affir med in part; Rever sed and Rende red in pa rt Filed: Oc tober 12, 2011

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