No. 07-14-00199-CV 

________________________________________________

IN THE COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICT

AMARILLO, TEXAS

_________________________________________________

BRIAN RUSSELL AND RONALD RUMPF, 

Appellants, 

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

Appellee.

_________________________________________________

On Appeal From the 47th Judicial District Court

Of Potter County, Texas

_________________________________________________

Trial Court Cause No. V-101657-00-A 

_________________________________________________

APPELLEE TDCJ’S BRIEF

_________________________________________________

KEN PAXTON KAREN MATLOCK

Attorney General of Texas Assistant Attorney General

 Chief, Law Enforcement Defense Division

CHARLES E. ROY MARCUS T. SANDERS* 

First Assistant Attorney General Assistant Attorney General

 P.O. Box 12548, Capitol Station 

JAMES E. DAVIS Austin, Texas 78711

Deputy Attorney General for Civil Litigation Tel (512) 463-2080

 Fax (512) 936-2109 

ATTORNEYS FOR DEFENDANT

*Attorney-in-charge 

ACCEPTED

07-14-00199-cv

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

4/10/2015 5:06:53 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 4/10/2015 5:06:53 PM VIVIAN LONG CLERK
TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................ii

INDEX OF AUTHORITIES........................................................................................iii

I. STATEMENT OF THE CASE......................................................... 2

II. STATEMENT ON ORAL ARGUMENT.........................................................4

III. ISSUES PRESENTED ......................................................................................5

IV. STATEMENT OF FACTS................................................................................6 

V. SUMMARY OF THE ARGUMENT................................................................7

ARGUMENT...............................................................................................................8

Reply to Issue 1: The trial court did not have subject matter jurisdiction over 

the present suit so the error, if any, is harmless ................................................8

Reply to Issue 2: The trial court did not error in granting Appellee’s Second 

Plea to the Jurisdiction.......................................................................................9

A. Appellant failed to allege facts sufficient to support a claim under 

Article 1, Section 17....................................................................................10

B. Appellant failed to allege facts sufficient to support a claim under 

Article 1, Section 19....................................................................................12

Reply to Issue 3: The trial court did not err in not allowing Appellants to reamend their petition ...........................................................................................16

VI. PRAYER............................................................................................................19

RULE 9.4(i) CERTIFICATION..................................................................................20

NOTICE OF FILING ..................................................................................................20

CERTIFICATE OF SERVICE ....................................................................................20

ii
INDEX OF AUTHORITIES

Cases

Aguilar v. Chastain, 923 S.W.2d 740 (Tex. App.—Tyler 1996, writ denied)........16

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)....................................8

Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910 (Tex. 1960)............................10

City of DeSoto v. White, 288 S.W.3d 389 (Tex. 2009)..............................................8

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)............................... 13, 14

City of Houston v. Boyle, 148 S.W.3d 171

 (Tex. App.—Houston [1st Dist.] 2004, no pet.)..................................11

City of Houston v. Rhule, 417 S.W.3d 440 (Tex. 2013)............................................8

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997).........................................14

Fernandez v. T.D.C.J., 341 S.W.3d 6 (Tex. App.—Waco 2010, no pet.)...............12

Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013)...............................8

Gen. Servs. Comm'n v. Little–Tex Insulation Co.,

 39 S.W.3d 591 (Tex. 2001) .......................................................... 10, 11

Hammonds v. Camp, No. 07–03–0496–CV, 

 2004 WL 769373 (Tex. App.—Amarillo 2004, no pet.).....................16

In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010)..................................8

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).......................... 10, 11

iii
McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304

 (Tex. App.—Amarillo, 2014, no pet.).................................................11

Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857

 (Tex. App.—Amarillo 1993, writ denied)...........................................13

Retzlaff v. Tex. Dep't of Criminal Justice, 135 S.W.3d 731 

 (Tex. App.—Houston [1st Dist.] 2003, no pet.)........................... 11, 12

Save Our Springs Alliance v. City of Austin, 

 149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.)...........................18

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422 (2007)..............8

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546 (Tex. 2004).........................11

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ...............13

Tex. Dep’t of Criminal Justice v. Jackson, No. 01-07-00477-CV, 2008 

 WL 2209350 (Tex. App.—Houston [1st Dist.] 2008, no pet.)............12

Tex. Dep't of Parks & Wildlife v. Miranda,

 133 S.W.3d 217 (Tex. 2004) ................................................... 9, 10, 18

Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) .................. 13, 15

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (1993)....................9

Texas Dep't of Trans. v. Jones, 8 S.W.3d 636 (Tex. 1999).......................................9

Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011)........13

Thornburgh v. Abbott, 490 U.S. 401 (1989)............................................................15

iv
Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser,

 140 S.W.3d 351 (Tex. 2004) ...........................................................8, 10

Villarreal v. Harris County, 226 S.W.3d 537

 (Tex. App.—Houston [1st Dist.] 2006, no pet.)..................................11

Ware v. Miller, 82 S.W.3d 795 (Tex. App.—Amarillo 2002, pet. denied).............13

v
No. 07-14-00199-CV

________________________________________________

IN THE COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICT

AMARILLO, TEXAS

_________________________________________________

BRIAN RUSSELL AND RONALD RUMPF,

Appellants,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

Appellee.

_________________________________________________

On Appeal From the 47th Judicial District Court

Of Potter County, Texas

_________________________________________________

Trial Court Cause No. V-101657-00-A

_________________________________________________

APPELLEE TDCJ’S BRIEF

_________________________________________________

TO THE HONORABLE JUSTICES OF THE SEVENTH COURT OF 

APPEALS:

Appellee Texas Department of Criminal Justice, through the Attorney 

General for the State of Texas, files this brief in response to the brief filed by 

Appellants. In support of the trial court’s ruling, Appellee respectfully offers the 

following:
I. STATEMENT OF THE CASE

Appellants Brian Russell and Ronald Rumpf are inmates of the Texas 

Department of Criminal Justice (“TDCJ”) and were incarcerated at the Clements

Unit at all times relevant to his lawsuit. Appellants, pro se, initially brought suit on 

August 8, 2013, pursuant to the Texas Tort Claims Act, the Administrative 

Procedure Act, and the Uniform Declaratory Judgment Act (“UDJA”) seeking 

declaratory relief and monetary damages. CR at 10-14. On October 16, 2013, 

Appellee TDCJ filed its first plea to the jurisdiction asserting its entitlement to

sovereign immunity. CR at 31-39. On December 10, 2013, Appellants filed a 

response to Appellee’s plea to the jurisdiction. CR at 53-85. On January 27, 2014, 

Appellants filed their first amended petition pursuant to the Uniform Declaratory

Judgment Acts and Article 1, Sections 17 and 19 of the Texas Constitution for 

declaratory, injunctive and monetary relief. CR at 91-160. On February 18, 2014, 

the trial court issued an order stating that it did not intend to further consider or 

rule on the pending plea to the jurisdiction unless it was re-urged in the context of 

the allegations of the amended petition. CR at 161. On March 20, 2014, Appellee

TDCJ filed its second plea to the jurisdiction again asserting sovereign immunity.

CR at 165-71. On March 24, 2014, Appellee TDCJ filed a motion to dismiss 

pursuant to Texas Rule of Civil Procedure 91a asserting that Plaintiff’s claims had 

no basis in law. CR at 175-83. On April 16, 2014, Appellants filed its responses to 

2
both the plea to the jurisdiction and the Rule 91a motion to dismiss. CR at 187-

200, 202-11. On May 6, 2014, the trial court signed two separate final judgment

dismissing the cause of action with prejudice in response to both the plea to the 

jurisdiction and the Rule 91a motion to dismiss. CR at 212, 213.

3
II. STATEMENT ON ORAL ARGUMENT

Appellee TDCJ contends that the facts and legal arguments are adequately 

presented within the briefs and record and that the dispositive issue has already 

been authoritatively decided. As such, oral argument would not significantly aid 

the decisional process in this case. Tex. R. App. P. 39.1.

4
III. ISSUES PRESENTED

1. Whether the trial court erred in entering two final judgments?

2. Whether the trial court erred in granting Appellee TDCJ’s Second Plea to 

the Jurisdiction?

3. Whether the trial court erred in dismissing Appellants’ claims without 

allowing them an opportunity to re-amend?

5
IV. STATEMENT OF FACTS

Appellants claim that on May 19, 2011, Warden Baker of the Clements Unit 

initiated a sham Safe Prisons investigations against Appellants and three other 

offenders. Pending the investigation, the offenders were temporarily housed in 

solitary confinement. Additionally, as a result of the housing transfer the offenders’ 

property was searched and inventoried. Appellants alleged that some of their 

personal property was confiscated as contraband and they received disciplinary 

cases due to the contraband. Hearings were held on June 6, 2011, where both

Appellants were found guilty of possessing contraband. Appellants claimed that 

although they attempted to reacquire their property in accordance with TDCJ 

policy, the confiscated items were eventually disposed of without their input.

Appellants claim that they were denied due process in regards to their

placement in solitary confinement on May 19th and the disciplinary hearing that 

was held on June 11th. Furthermore, they claim the disposition of the confiscated 

property amounted to a violation of their property rights under the Texas 

Constitution.

6
V. SUMMARY OF THE ARGUMENT

In regards to the first issue, Appellee contends that the error, if any, 

committed by the trial court in entering two final judgments was harmless. 

Whether the order of dismissal granting the plea to the jurisdiction was signed first 

or second is immaterial because without subject matter jurisdiction, the court did 

not have the power to address the merits of the case as presented in the Rule 91a 

motion.

As to issues two and three, Appellee contends that Appellants failed to, and 

are unable to, allege facts sufficient to overcome Appellee’s sovereign immunity. 

Except in limited circumstances, the Texas Constitution does not create a private 

cause of action and the UDJA does not waive the state's sovereign immunity.

Additionally, Appellants’ have had ample time and opportunities to amend their

petition yet it still affirmatively negates the existence of jurisdiction. No amount of 

amended pleading would bring Appellants’ suit within the court’s jurisdiction.

7
VI. ARGUMENT

Reply to Issue 1: The trial court did not have subject matter jurisdiction over 

the present suit so the error, if any, is harmless.

While it is correct that Texas Rule of Civil Procedure 301 mandates that 

there be only one final judgment in a particular cause, Appellee contends that 

because one of the judgments addressed subject matter jurisdiction, it is immaterial 

at this point whether it was the first or second judgment.

“Subject matter jurisdiction is ‘essential to a court's power to decide a case.’ 

” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (quoting 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)). “Without 

jurisdiction the court cannot proceed at all in any cause; it may not assume 

jurisdiction for the purpose of deciding the merits of the case.” Fin. Comm'n of 

Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int'l Co. v. 

Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)). “The failure of a 

jurisdictional requirement deprives the court of the power to act (other than to 

determine that it has no jurisdiction), and ever to have acted, as a matter of law.” 

City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (quoting Univ. of Tex. 

Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004)). Thus, “[a] 

judgment is void if rendered by a court without subject matter jurisdiction.” In re 

United Servs. Auto. Ass'n, 307 S.W.3d 299, 309 (Tex. 2010). Furthermore, because 

subject matter jurisdiction is an issue that may be raised for the first time on 

8
appeal; it may not be waived by the parties. Texas Ass’n of Bus. v. Texas Air 

Control Bd., 852 S.W.2d 440, 445 (1993).

If the trial court correctly determined that it did not have jurisdiction to hear 

the case, then any decision on the merits would be void, regardless of whether the 

judgment was signed first or second. Furthermore, because subject matter 

jurisdiction may be raised for the first time on appeal, this Court has jurisdiction to

determine whether Appellants have plead facts sufficient to establish subject 

matter jurisdiction to overcome Appellee’s sovereign immunity, regardless of 

which judgment was signed first.

Reply to Issue 2: The trial court did not error in granting Appellee’s Second 

Plea to the Jurisdiction.

Subject-matter jurisdiction is essential for a court to have the authority to 

resolve a case. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). 

To invoke the subject-matter jurisdiction of a court, the one bringing the claim 

must allege facts that affirmatively demonstrate that the court has jurisdiction to 

hear it. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 

2004). In considering the jurisdictional allegations contained in a petition, they are 

to be construed liberally in the plaintiff's favor. Texas Ass'n of Bus. v. Texas Air 

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). To prevail on a plea to the 

jurisdiction, a defendant must show an incurable jurisdictional defect apparent 

9
from the face of the pleadings that makes it impossible for the plaintiff's petition to 

confer jurisdiction on the district court. Bybee v. Fireman's Fund Ins. Co., 331 

S.W.2d 910, 914 (Tex. 1960). Courts must consider evidence when necessary to 

decide jurisdictional issues. Miranda, 133 S.W.3d at 221. If the relevant evidence 

is undisputed or fails to raise a fact question on the jurisdictional issue, the trial 

court rules on the plea to the jurisdiction as a matter of law. Id. at 228. “Not only 

may an issue of subject matter jurisdiction be raised for the first time on appeal by 

the parties or by the court, a court is obliged to ascertain that subject matter 

jurisdiction exists regardless of whether the parties have questioned it.” 

Loutzenhiser, 140 S.W.3d at 358. Because subject matter jurisdiction presents a 

question of law, the trial court's decision to grant a plea to the jurisdiction is 

reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998).

A. Appellant failed to allege facts sufficient to support a claim under Article 1, 

Section 17.

The Texas Constitution provides that “[n]o person's property shall be taken, 

damaged or destroyed for or applied to public use without adequate compensation 

being made, unless by the consent of such person.” Tex. Const. art. I, § 17. Article 

I, section 17 waives governmental immunity for actions seeking compensation 

under that provision. Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 

10
591, 598 (Tex. 2001). 

To establish a takings claim, a claimant must prove that (1) a governmental 

entity intentionally performed certain acts, (2) that resulted in a “taking” of 

property, (3) for public use. Gen. Servs. Comm'n, 39 S.W.3d at 598. When a 

plaintiff fails to allege facts that would support a valid takings claim, governmental 

immunity applies, and the trial court should grant a plea to the jurisdiction. Id. at 

600. Whether particular facts are enough to constitute a taking is a question of law. 

See Mayhew, 964 S.W.2d at 936.

One whose property has been “taken, damaged, destroyed for, or applied to, 

public use without adequate compensation” may bring an inverse condemnation 

claim pursuant to Article I, section 17 to recover compensation for loss of the 

property. See McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304, 312 (Tex. App.—

Amarillo, 2014, no pet.), Villarreal v. Harris County, 226 S.W.3d 537, 542 (Tex. 

App.—Houston [1st Dist.] 2006, no pet.) (quoting City of Houston v. Boyle, 148 

S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2004, no pet.)). The protection 

applies to both real and personal property. See Retzlaff v. Tex. Dep't of Criminal 

Justice, 135 S.W.3d 731 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(addressing application of protection to claim of theft of inmate's money). The key 

consideration in assessing whether a particular taking was for a public use is 

whether the public is bearing a cost for which it received a benefit. See Tarrant 

11
Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).

Appellants claimed that Appellee, through its employees, confiscated and 

disposed of their property in accordance with Administrative Directive-03.72, but 

without their consent. Appellants have failed to allege, and are unable to establish 

facts sufficient to state a claim that under Article I, section 17 that the confiscation 

of their property was for public use. See Tex. Dep’t of Criminal Justice v. Jackson, 

No. 01-07-00477-CV, 2008 WL 2209350 (Tex. App.—Houston [1st Dist.] 2008, 

no pet.) (holding that a “disposition” is not a “taking” and that the plaintiff’s 

allegation of subterfuge does not convert TDCJ's confiscating the items to 

determine ownership into an allegation that TDCJ took them for public use), see 

Retzlaff, 135 S.W.3d at 731 (holding that the plaintiff failed to state a legally 

cognizable illegal takings claim when he made no claim and there was nothing in 

the record to indicate that TDCJ was attempting to obtain a benefit for the public at 

large.); Fernandez v. T.D.C.J., 341 S.W.3d 6 (Tex. App.—Waco 2010, no pet.)

Because the pleadings affirmatively negate the existence of jurisdiction, the court 

did not dismiss for failure to state a cause of action under Article 1, section 17.

B. Appellant failed to allege facts sufficient to support a claim under Article 1, 

Section 19.

Similarly, Appellants have failed to allege facts sufficient to establish the 

trial court had jurisdiction to hear the case. As stated above, Appellants brought 

12
their due process claims pursuant to the UDJA and Article 1, Section 19 of the 

Texas Constitution for declaratory, injunctive and monetary relief. There is no 

private cause of action under the state constitutional due process provision. 

Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, 872-73 (Tex. App.—Amarillo 

1993, writ denied); see also Ware v. Miller, 82 S.W.3d 795 (Tex. App.—Amarillo 

2002, pet. denied).

Similarly, there is no general right to sue a state agency for a declaration of 

rights. Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 

2011). Appellant attempts to bring their claims under the UDJA in an attempt to 

circumvent sovereign immunity. While it is true that the UDJA waives sovereign 

immunity for certain claims, it is not a general waiver of sovereign immunity. City 

of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009). It is “merely a 

procedural device for deciding cases already within a court's jurisdiction.” Tex. 

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). 

Furthermore, a litigant's couching its requested relief in terms of declaratory relief 

does not alter the underlying nature of the suit. Heinrich, 284 S.W.3d at 370–71.

Texas law provides “sovereign immunity bars UDJA actions against the 

state and its political subdivisions absent a legislative waiver.” Tex. Dep't of 

Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). However, Texas courts have 

recognized the ultra vires exception that allows claims to be brought against a state 

13
official for nondiscretionary acts unauthorized by law. See Fed. Sign v. Tex. S. 

Univ., 951 S.W.2d 401, 404 (Tex. 1997). These lawsuits are not against the state 

and thus are not barred by sovereign immunity. Id. Furthermore, to assert a valid 

ultra vires claim, the plaintiff “must not complain of a government officer's 

exercise of discretion, but rather must allege, and ultimately prove, that the officer 

acted without legal authority or failed to perform a purely ministerial act.” 

Heinrich, 284 S.W.3d at 372. Conversely, if the plaintiff alleges only facts 

demonstrating acts within the officer's legal authority and discretion, the claim 

seeks to control state action, and is barred by sovereign immunity. See id.

In City of El Paso v. Heinrich, the plaintiff sued the City of El Paso and 

various government officials alleging that the defendants had violated her statutory 

rights when they altered her pension benefits. Heinrich, 284 S.W.3d at 369-70. She 

sought to have the courts to declare that the defendants acted without authority in 

taking such action. Id. In holding that the plaintiff could pursue her claims for 

prospective relief against the state officials but not against the city and the other 

governmental entities, the Supreme Court stated that suits to require state officials 

to comply with statutory or constitutional provisions cannot be brought against the 

state, which retains immunity, but must be brought against the state actors in their 

official capacity. Id. at 372-73.

Similarly, in Texas Dept. of Transp. V. Sefzik, the plaintiff brought suit 

14
against Texas Department of Transportation seeking declaration that certain 

statutory provisions of the Administrative Procedure Act violated due process. 

Sefzik, 355 S.W.3d at 618. In holding that the plaintiff failed to sue the correct 

party, the Supreme Court pointed to its decision in Heinrich dismissing the 

plaintiff’s claims seeking declaratory and injunctive relief against governmental 

entities. Id. at 621. The Court stated that “[i]n so doing, we necessarily concluded 

that the UDJA does not waive the state's sovereign immunity when the plaintiff 

seeks a declaration of his or her rights under a statute or other law.” Id. It went on 

to say that “the same claim could be brought against the appropriate state official 

under the ultra vires exception, but the state agency remains immune.” Id. 

Appellants failed to sue the correct parties in the present suit. Appellants 

filed suit against TDCJ, the state agency, and not the state officials whom they 

claim are responsible for the ultra vires act. Furthermore, Appellants failed to 

allege facts sufficient to bring a valid ultra vires claim. Courts generally accord 

great deference to prison officials' adoption and execution of policies, regulations, 

and practices relating to the preservation of internal order, discipline, and security 

within the prison environment. Thornburgh v. Abbott, 490 U.S. 401, 407-08 

(1989). Appellants do not complain of acts that are purely ministerial act, but 

instead complain of a government officer’s exercise of discretion. The way that 

searches are conducted and the determination of what is contraband and how it 

15
should be disposed of are decisions that are within the discretion of prison 

officials. Moreover, courts have held that that a prison official's unauthorized 

deprivation of an inmate's property is not a constitutional violation since the Texas 

Legislature has provided an administrative remedy to pay a claim for lost or 

damaged property. Hammonds v. Camp, No. 07–03–0496–CV, 2004 WL 

769373*1 (Tex. App.—Amarillo 2004, no pet.); Aguilar v. Chastain, 923 S.W.2d 

740, 743–44 (Tex. App.—Tyler 1996, writ denied). Accordingly, Appellants have 

failed to overcome Appellee’s entitlement to sovereign immunity and have failed 

to plead facts to bring this suit within the Court’s jurisdiction.

Reply to Issue 3: The trial court did not err in not allowing Appellants to reamend their petition.

Appellants argue that the district court should have allowed them an 

opportunity to amend their petition prior to granting Defendant’s Second Plea to 

the Jurisdiction. As mentioned above, Appellant’s initially brought suit pursuant to 

the Texas Tort Claims Act, the Administrative Procedure Act, and the Uniform 

Declaratory Judgment Act (“UDJA”) seeking declaratory relief and monetary 

damages. After Appellee filed its first plea to the jurisdiction on October 16, 2013, 

Appellants moved for and were granted an extension of time to file a response with 

a hearing by submission date of January 31, 2014. Appellants filed a response on 

December 10, 2013 and moved for leave to amend their petition on January 27, 

16
2014. In the amended petition, Appellants brought dropped their Texas Tort 

Claims Act and Administrative Procedure Act claims and instead brought the same 

claims under the Uniform Declaratory Judgment Acts and Article 1, Sections 17 

and 19 of the Texas Constitution seeking declaratory, injunctive and monetary 

relief. Additionally, Appellants filed a supplemental response to Appellee’s first 

plea to the jurisdiction on the same day pointing out their amended petition. 

On February 18, 2014, the trial court issued an order granting leave to 

amend and stating that it did not intend to further consider or rule on the pending 

plea to the jurisdiction unless it was re-urged in the context of the allegations of the 

amended pleading. Appellee then filed its second plea to the jurisdiction on March 

20, 2014. The trial court set the motion for a hearing by submission scheduled on 

April 24, 2014. Appellants filed their response to Appellee’s second plea to the 

jurisdiction and a motion for additional argument on April 16, 2014. They did not 

file a second amended petition. The trial court signed the order dismissing the case 

based on Appellee’s second plea to jurisdiction on May 6, 2014.

In Appellants’ response to the second plea to the jurisdiction, they state that 

Appellee’s ultimate success on the declaratory judgment argument is contingent on 

Appellant’s success on the taking claims. As stated above, Appellants have failed 

to state a valid claim under Article 1, Section 17 and have failed to allege how the 

jurisdictional defects may be cured. This is because the defects are incurable. As 

17
the Supreme Court in Miranda stated “if the pleadings affirmatively negate the 

existence of jurisdiction, then a plea to the jurisdiction may be granted without 

allowing the plaintiff an opportunity to amend.” See Save Our Springs Alliance v. 

City of Austin, 149 S.W.3d 674, 686 (Tex. App.—Austin 2004, no pet.).

Additionally, if a party has repleaded in an attempt to cure disputed jurisdictional 

issues and if a court can ascertain the nature and issues of the controversy and the 

evidence that probably would be relevant, that party is not entitled to an 

opportunity to replead. See id. (citing Miranda, 133 S.W.3d at 231).

Appellants previously amended their petition asserting new causes of actions 

after Appellee’s first plea to the jurisdiction asserting sovereign immunity. 

Appellants were put on notice again of the jurisdictional defects and Appellee’s 

entitlement to sovereign immunity when Appellee filed its second plea to the 

jurisdiction. Appellants still failed to cure the defects or even allege how they 

could be cured. Appellants were given ample time and opportunities to attempt to 

bring this suit within the court’s jurisdiction but have failed to do so. More 

importantly, in accordance with Texas Rule of Procedure 63, Appellants could 

have amended their petition at any time but they did not. As such, the court did not 

err in dismissing the case for lack of jurisdiction.

18
VII. PRAYER

ACCORDINGLY, Appellant has not presented this Court with any legally 

sound argument to support his argument that trial court erred in dismissing the case 

for lack of subject matter jurisdiction. Appellee respectfully recommends that the 

judgment of the court below be affirmed.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil 

Litigation

KAREN D. MATLOCK

Assistant Attorney General

Chief, Law Enforcement Defense Division

/s/ Marcus T. Sanders 

MARCUS T. SANDERS

Assistant Attorney General

Texas State Bar No. 24089483

P.O. Box 12548, Capitol Station

Austin TX 78711-2548

(512) 463-2080 / (512) 936-2109 Fax

Marcus.Sanders@texasattorneygeneral.gov

ATTORNEYS FOR APPELLEE TDCJ

19
Rule 9.4 (i) Certification

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify 

that the number of words in this brief, excluding those matters listed in Rule 

94.(i)(1), is 3,046.

/s/ Marcus T. Sanders

MARCUS T. SANDERS

Assistant Attorney General

NOTICE OF ELECTRONIC FILING

I, MARCUS T. SANDERS, Assistant Attorney General of Texas, certify 

that Appellee TDCJ’s Brief was filed in accordance with the File & Serve Xpress 

System on April 10, 2015. 

/s/ Marcus T. Sanders

MARCUS T. SANDERS

Assistant Attorney General

20
CERTIFICATE OF SERVICE

I, MARCUS T. SANDERS, certify that a true copy of the above and 

foregoing Appellee TDCJ’s Brief has been served by placing the same in the 

United States Postal Service, postage prepaid, on April 10, 2015, addressed to:

Brian V. Russell

TDCJ-CID #00524618

William P. Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

Plaintiff Pro-Se

Ronald E. Rumpf, Jr.

TDCJ-CID #00695566

William P. Clements Unit

9601 Spur 591

Amarillo, TX 79107-9606

Plaintiff Pro-Se

/s/ Marcus T. Sanders

MARCUS T. SANDERS

Assistant Attorney General

21