IN THE

TENTH COURT OF APPEALS

No. 10-22-00009-CV

WALKER COUNTY ESD NO. 3; 

THE BOARD OF ESD NO. 3; AND 

THE OFFICERS & COMMISSIONERS OF ESD NO. 3,

IN THEIR OFFICIAL CAPACITIES, 

Appellants 

v.

CITY OF HUNTSVILLE, TEXAS, 

 Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 2130313

DISSENTING OPINION

 A claim made against an individual in their official capacity for an ultra vires act is 

very different than a claim against a governmental entity. When a claim is made against 

a governmental entity, as such, the nature of the claim as pled will determine if immunity 

has been waived by the legislature. Thus, the pled claim must be examined to determine 

if immunity has been waived. If immunity has not been waived, the trial court does not 
Walker County ESD No. 3, et al. v. City of Huntsville Page 2

have jurisdiction of the claim. But when a claim is against a person for an ultra vires act 

in their official capacity, the trial court will have jurisdiction to evaluate the merits of the 

claim. The claim pled may be a frivolous claim, and it may even be a claim that should 

be dismissed. But the dismissal is not because the trial court lacks jurisdiction based on 

the absence of a legislative waiver. The individual is not immune from suit.

Ultra Vires Claims and Jurisdiction

What the Court does here is a bit odd. In the guise of a plea to the jurisdiction, the 

Court determines that the claim made by the City of Huntsville lacks any basis in law. 

But the Court asserts it is not making a merits-based ruling. The Court holds that based 

on an analysis of the pleadings, because the claim lacks merit, the trial court has no 

jurisdiction. Ultimately, this odd procedural vehicle is not about the jurisdiction of the 

trial court; rather, it is about the viability of the claim. Normally, a claim that lacks merit 

is summarily disposed of by any number of other procedural tools such as a Rule 91a 

motion, a no-evidence motion for summary judgment, or a traditional motion for 

summary judgment. But the claim filed here, against an individual in their official 

capacity for committing ultra vires acts as a member of a governmental board, is an 

exception to sovereign or governmental immunity because it is not a claim against the 

governmental unit as such. 

Looking at the pleadings and determining jurisdictional facts is part and parcel of 

what we routinely do to determine if a suit against a governmental entity is the proper 

subject of a legislative waiver of sovereign/governmental immunity. But when there is 

no question that the suit is against an individual in their official capacity for prospective 
Walker County ESD No. 3, et al. v. City of Huntsville Page 3

non-monetary relief, is the trial court actually deprived of jurisdiction to determine the 

merits of the proceeding using one of the appropriate tools as mentioned above? If the 

claim for prospective non-monetary relief is wholly frivolous, either based on applicable 

law or the facts, is the trial court deprived of jurisdiction? It seems to me that in the 

judicial branch’s zeal to keep the government protected from suit, we have created a 

hybrid procedure that hides behind the label of a plea to the jurisdiction but is not actually 

about jurisdiction. As applied to this proceeding, I believe the proper procedure for the 

only remaining claim being asserted by Huntsville, which is against the Walker County 

ESD No. 3 board members in their individual capacities for ultra vires acts, is to recognize 

that the trial court has jurisdiction of that claim, without regard to the merits, and leave 

the disposition of the case on the merits to another procedural tool on another day.1 

Accordingly, I would affirm the trial court’s denial of the plea to the jurisdiction. 

Because the Court reverses the trial court’s determination that it has jurisdiction to 

address the merits of the City of Huntsville’s claim in the first instance and dismisses the 

case, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed December 7, 2022

1 To the extent the City of Huntsville has abandoned its claims against Walker County ESD No. 3 or its 

board as an entity, anything we say in this proceeding as to them is dicta. The claims as to these parties 

should be dismissed as moot and could, if necessary, then be severed from this appeal.