NO. 03-15-00007-CV

__________________________________ 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

_________________________________ 

JOHN DOE 

Appellant 

V.

BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, 

COMMISSION FOR LAWYER DISCIPLINE; AND LINDA ACEVEDO, IN 

HER OFFICIAL CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL 

OF THE STATE BAR OF TEXAS 

Appellees 

______________________________ 

On Appeal from the 126th Judicial District Court of Travis County, Texas 

Cause No. D-1-GN-14-001635 

______________________________

APPELLANT’S BRIEF 

______________________________ 

WEST, WEBB, ALLBRITTON & GENTRY, 

P.C.

1515 Emerald Plaza

College Station, Texas 77845

Telephone ~ (979) 694-7000

Facsimile ~ (979) 694-8000

GAINES WEST

State Bar No. 21197500

gaines.west@westwebblaw.com

JENNIFER D. JASPER

State Bar No. 24027026

jennifer.jasper@westwebblaw.com

ROB GEORGE

State Bar No. 24067623

rob.george@westwebblaw.com

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-15-00007-CV

4825837

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 12:57:03 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 12:57:03 PM JEFFREY D. KYLE Clerk
APPELLANT’S BRIEF ii

IDENTITY OF PARTIES AND COUNSEL

1. Appellee (Plaintiff below):

John Doe

Counsel for Appellant:

GAINES WEST

State Bar No. 21197500

gaines.west@westwebblaw.com

JENNIFER D. JASPER

State Bar No. 24027026

jennifer.jasper@westwebblaw.com

ROB GEORGE

State Bar No. 24067623

rob.george@westwebblaw.com

WEST, WEBB, ALLBRITTON, & GENTRY, P.C.

1515 Emerald Plaza

College Station, Texas 77845

(979)694-7000 – Telephone

(979)694-8000 – Facsimile

Appellate and Trial Court Counsel

2. Appellees (Defendant below):

Board of Directors of the State Bar of Texas, Commission For Lawyer 

Discipline; and Linda Acevedo, in her official capacity as the Chief 

Disciplinary Counsel of the State Bar of Texas 

Counsel for Appellant:

PAUL HOMBURG, III

Disciplinary Counsel

State Bar No. 09934050

phomburg@texasbar.com

Office of the Chief Disciplinary Counsel

State Bar of Texas
APPELLANT’S BRIEF iii

711 Navarro, Suite 750

San Antonio, Texas 78205

(210) 208-6600 – Telephone

(210) 208-6625 – Facsimile

Trial Court Counsel

Rebecca Stevens

Disciplinary Counsel

State Bar No. 24065381

bstevens@texasbar.com

Office of the Chief Disciplinary Counsel

State Bar of Texas

P. O. Box 12487

Austin, Texas 78711-2487

(512) 427-1350 – Telephone

(512) 2427-4167 – Facsimile

Trial Court Counsel
APPELLANT’S BRIEF iv

TABLE OF CONTENTS

Identities of Parties and Counsel............................................................................... ii

Index of Authorities...................................................................................................v

Issues Presented ........................................................................................................vi

Statement of Facts......................................................................................................2

Summary of Argument ..............................................................................................4

Arguments and Authorities........................................................................................5

A. Standard of Review.....................................................................................5

B. The State Bar Defendants do not enjoy sovereign immunity

 from the lawsuit..........................................................................................5

C. Doe has standing to bring this suit, which is not moot...............................8

1. Injury ......................................................................................................8

2. Mootness.................................................................................................9

D. This case does not seek to enjoin a grievance proceeding......................11

Conclusion ...............................................................................................................13

Prayer .......................................................................................................................13

Certificate of Compliance ........................................................................................14

Certificate of Service ...............................................................................................14
APPELLANT’S BRIEF v

INDEX OF AUTHORITIES

CASES

Estate of Terrell v. Sisk,

111 S.W.3d 274 (Tex. App.—Texarkana 2003, no pet.)........................................6

Favaloro v. Commission for Lawyer Discipline,

13 S.W.3d 831 (Tex. App.—Dallas 2000, no pet.). .............................................12

In re Doe, 

19 S.W.3d 249, 253 (Tex. 2000) ............................................................................5

Save Our Springs Alliance, Inc. v. City of Dripping Springs,

304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied). ......................................8

State v. Holland,

221 S.W.3d 639 (Tex. 2007). ................................................................................5

Sheth v. Dearen,

225 S.W.3d 828 (Tex. App.—Houston [14th Dist.] 2007, no pet.) .......................5

State Bar of Texas v. Gomez,

891 S.W2d 243 (Tex. 1994). ......................................................................... 11, 12

Tex. Dep’t of Pub. Safety v. Salazar, 

304 S.W.3d 896 (Tex. App.—Austin 2009, no pet.)..........................................8, 9

Tex. Dep’t of Transp. v. Sefzik, 

355 S.W.3d 618 (Tex. 2011). ........................................................................ 4, 7, 8

Univ. Scholastic League v. Buchanan, 

848 S.W.2d 298 (Tex. App.—Austin 1993, no writ). ..........................................10
APPELLANT’S BRIEF vi

Valley Baptist Med. Ctr. v. Stradley, 

210 S.W.3d 770 (Tex. App.—Corpus Christi 2006, no pet.).................................5

RULES AND CODES

TEX. R. DISC. P. 2.10..................................................................................................9

TEX. R. DISC. P. 2.16............................................................................. 2, 3, 7, 10, 12

TEX. R. DISC. P. 15.09................................................................................... 4, 5, 6, 7

TEX. DISCIPLINARY R. PROFF’L CONDUCT Preamble .................................................1

OTHER

MERRIAM-WEBSTER ONLINE DICTIONARY.................................................................6
APPELLANT’S BRIEF vii

ISSUES PRESENTED

This appeal presents the following issues:

Whether the trial court erred in dismissing Plaintiff’s claims for lack of 

jurisdiction, based on sovereign immunity.

Whether the trial court erred in dismissing Plaintiff’s claims for lack of 

jurisdiction, based on a lack of standing or mootness.

Whether the trial court erred in dismissing Plaintiff’s claims for lack of 

jurisdiction over Plaintiff’s request related to the Texas Rules of 

Disciplinary Procedure
APPELLANT’S BRIEF 1

TO THE HONORABLE THIRD COURT OF APPEALS:

The Preamble to the Texas Disciplinary Rules of Professional Conduct 

states:

The Legal profession has taken a responsibility to assure that its 

regulation is undertaken in the public interest rather than in 

furtherance of parochial or self-interested concerns of the bar, and to 

insist that every lawyer both comply with its minimum disciplinary 

standards and aid in securing their observance by other lawyers. 

Neglect of these responsibilities compromises the independence of the 

profession and the public interest which it serves.

TEX. DISCIPLINARY R. PROFF’L CONDUCT Preamble, reprinted in TEX. GOV’T CODE 

ANN., title 2, subtit. G, app. A. (Vernon 2013).

To support this goal of assuring that self-regulation is undertaken “in the 

public interest” (rather than in self-interest), the system must always strive to be 

transparent. Yet, that is exactly the opposite of what the State Bar Defendants 

seek in this case. They have insisted that the very rules put into place to implement 

self-regulation “in the public interest” actually prohibit a complaining member of 

the public from learning why his grievance against a Texas attorney was 

summarily dismissed with no explanation. There are no rules or laws, however, 

which prohibit the complaining party himself, from learning about his own 

grievance and why it was dismissed.
APPELLANT’S BRIEF 2

STATEMENT OF FACTS

The procedural facts of this case are not in dispute. John Doe filed a 

sixteen-page grievance against a Texas-licensed attorney. The Chief Disciplinary 

Counsel (“CDC”) sent its recommendation regarding the grievance ex parte to the 

Summary Disposition Panel (“SDP”). The CDC then informed Complainant that 

his grievance had been dismissed. 

When Doe requested the CDC’s recommendation to the SDP (to understand 

why the CDC believed the allegations in his complaint did not surpass the lowthreshold of “just cause”), the CDC claimed that such a disclosure would violate 

Texas Rules of Disciplinary Procedure 2.16, which generally makes the grievance 

process confidential. Thus, the CDC has interpreted 2.16 as making the grievance 

process confidential, from the complainant himself.

This misinterpretation of 2.16 provided the basis for Doe’s declaratory 

judgment action, filed on May 30, 2014, against the State Bar of Texas, 

Commission for Lawyer Discipline, the State Bar of Texas, and Linda Acevedo in 

her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas 

(collectively, “The State Bar Defendants”). C.R. 4-20.1In his declaratory 

judgment action below, Doe sought to have the trial court declare that Texas Rules

 

1 Appellant will cite to the Clerk’s Record as “CR [Page No.]” and to the Reporter’s Record as 

“RR [Page No.]/[Line No.].”
APPELLANT’S BRIEF 3

of Disciplinary Procedure 2.16 does not apply to complainants, and the CDC 

cannot hide its recommendation to the SDP from the Complainant (Appellant).

2

 

C.R. 8 at ¶ 22. Doe also requested a declaration that Defendant Linda Acevedo, in 

her official capacity as the Chief Disciplinary Counsel of the CFLD, by and 

through her employee agents, acted without legal authority in denying Doe a copy 

of the CDC’s recommendation to the SDP on Doe’s grievance, and that as a result, 

he is entitled to receive a copy of the recommendation. C.R. 9 at ¶ 23.

 To avoid such a declaration, the State Bar Defendants filed a Motion to 

Dismiss, which raised 5 separate arguments, and requested dismissal of the suit. 

C.R. 21-29. On July 23, 2014, a hearing on the Motion to Dismiss was held before 

the Honorable Scott Jenkins. R.R. 1-40. 

On October 8, 2014, an Order granting dismissal was signed. C.R. 88. 

However, the parties were not notified that the Order was granted, and did not 

discover the Order until December 5, 2014. Doe then filed an Unopposed Motion 

to Establish Notice of Judgment under Texas Rules of Civil Procedure 306a (C.R. 

89-106), which the trial court signed on January 6, 2015 (C.R. 107), thus 

 

2 Along with his original declaratory judgment petition, Appellant filed below a Motion to Seal 

Records, out of an abundance of caution, to maintain the confidentiality of the entire grievance 

proceeding. Oddly, the State Bar Defendants opposed the Motion to Seal, a position contrary to 

their underlying confidentiality arguments. Despite this opposition, the Trial Court granted the 

Motion to Seal (CR 31-32) ordering eleven separate documents sealed, including the original 16-

page grievance. Thus, while not included in the Clerk’s Record, those sealed records are 

available to this appellate court. 
APPELLANT’S BRIEF 4

establishing that Doe first had notice of the October 8, 2014 Order on December 5, 

2014, and appellate deadlines would run from December 5, 2014. While the 

Motion to Establish Notice of Judgment was pending, out of an abundance of 

caution, Doe filed his Notice of Appeal on December 31, 2014. Pursuant to the 

signed Order granting the Motion to Establish Notice, Doe’s notice of appeal was 

timely filed.

SUMMARY OF ARGUMENT

The trial court had jurisdiction over Does’s claims because the State Bar 

Defendants were not immune from suit under Texas Rules of Disciplinary 

Procedure 15.09 or under Sefzik. Furthermore, the trial court had jurisdiction 

because Does’s claims are justiciable, and because Does’s lawsuit does not seek to 

enjoin the grievance process.
APPELLANT’S BRIEF 5

ARGUMENTS AND AUTHORITIES

A. Standard of Review

The Motion to Dismiss is properly characterized as a motion to dismiss for 

want of jurisdiction. RR 6 at 9-10. Under Texas caselaw, the proper standard of 

review is dictated by the substance of the issue to be reviewed as opposed to the 

procedural vehicle through which that issue is developed. See Sheth v. Dearen, 

225 S.W.3d 828, 831 n. 2 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing 

In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Valley Baptist Med. Ctr. v. Stradley, 

210 S.W.3d 770, 773 (Tex. App.—Corpus Christi 2006, no pet.)). Each argument 

Appellees raised below as a basis for dismissal implicates jurisdiction. Thus, the 

standard of review is de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007).

B. The State Bar Defendants do not enjoy sovereign immunity from this 

lawsuit.

The Motion to Dismiss argues that the trial court lacked jurisdiction because 

Texas Rules of Disciplinary Procedure 15.09 provides the State Bar Defendants

with complete immunity. C.R. 24 ¶6. But 15.09 applies to individuals, not entities, 

and thus the trial court should have rejected this argument. TEX. R. DISC. P. 15.09, 

reprinted in TEX. GOV’T CODE ANN., title 2, subtit. G, app. A-1 (Vernon 2013).
APPELLANT’S BRIEF 6

Texas Rules of Disciplinary Procedure 15.09 states, in relevant part, that all 

“members of the Commission, the Chief Disciplinary Counsel . . . all members of 

Committees, all members of the Board of Disciplinary Appeals . . . are immune 

from suit for any conduct in the course of their official duties. Id. (emphases 

added). “Member” means “one of the individuals composing a group.” MERRIAMWEBSTER ONLINE DICTIONARY, Definition 2, available at www.merriamwebster.com/dictionary/member (last visited July 17, 2014). The use of the term 

“their” also confirms that 15.09 applies to individuals, not entities. Thus, by its 

own terms, Rule 15.09 applies only to suits against individuals. 

In the case at bar, Doe named as Defendants the Board of Directors of the 

State Bar and the Commission for Lawyer Discipline, neither of which is an 

individual (or “member”), as contemplated by Rule 15.09. See C.R. 79; TEX. R.

DISC. P. 15.09. Doe also named the Chief Disciplinary Counsel in her official 

capacity, but a suit against her in her official capacity is not a suit against her as an 

individual. See, e.g., Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex. App.—

Texarkana 2003, no pet.) (noting that an official-capacity suit against a 

governmental employee is not a suit against the employee but against his

employer). Accordingly, none of the named Defendants are “members,” or 
APPELLANT’S BRIEF 7

individuals, as Rule 15.09 contemplates; therefore, Rule 15.09 does not apply, and 

the trial court should have rejected this argument.3

At the hearing on the Motion to Dismiss (for the first time), the State Bar 

Defendants asserted that they were entitled to sovereign immunity as state 

agencies, citing Sefzik. See RR 15/20 (citing Tex. Dep’t of Transp. v. Sefzik, 355

S.W.3d 618 (Tex. 2011). According to the State Bar Defendants, Sefzik confirmed 

that the declaratory judgment act does not waive immunity, i.e. there must be a 

legislatively-provided waiver for the claims at issue. See id. This general 

statement of Sefzik’s holding is correct. However, Sefzik also made clear that 

declaratory judgment actions may be brought against the state or its officers in two 

instances: (1) in actions against the state, and its agencies, which challenge the 

validity of a statute; and (2) in ultra vires claims against a state officer. Id. at 621–

22.

Doe’s pleadings comply with Sefzik’s directives. In the present case, Doe 

prayed for (1) an interpretation that Rule 2.16 does not bar Doe from receiving a 

copy of the CDC’s recommendation to the SDP, and (2) a declaration that 

Defendant Acevedo, in her official capacity as the Chief Disciplinary Counsel, 

acted ultra vires in denying Doe’s request for a copy of the CDC’s 

 

3 Even if the Chief Disciplinary Counsel, who was sued in her official capacity, is considered an 

individual to whom TRDP may apply, Complainant alleged that she acted ultra vires—without 

authority—which means she could not have been acting “in the course of [her] official duties” as 

required for Rule 15.09 to apply. See TEX. R. DISCIPLINARY. P 15.09; see, e.g., C.R. 82 ¶18.
APPELLANT’S BRIEF 8

recommendation to the SDP. CR 83. Because both requests are allowed by Sefzik, 

the trial court should have disregarded the State Bar Defendants’ argument. See id. 

 

C. Doe has standing to bring this suit, which is not moot.

In their Motion to Dismiss, the State Bar Defendants asserted that (1) Doe 

failed to plead an injury-in-fact; and (2) the issues are moot. Both points are 

incorrect. Because Doe properly alleged his specific and legally cognizable 

interest affected by the State Bar Defendants’ actions, and because those actions 

will be repeated time and again without being reviewed, the issues are justiciable, 

and the trial court has jurisdiction to decide them.

1. Injury

The State Bar Defendants argue that Doe alleged “no actual harm from any 

act of any of the Defendants.” C.R. 25 ¶8. In a declaratory judgment action, to 

establish standing, a plaintiff must show actual or imminent harm to his own 

particular interests. See Tex. Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 

(Tex. App.—Austin 2009, no pet.) (citing Save Our Springs Alliance, Inc. v. City 

of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.—Austin 2010, pet. denied)).

In his Second Amended Petition, Doe states that the State Bar Defendants’ 

unauthorized action—denying his request for a copy of the CDC’s ex parte
APPELLANT’S BRIEF 9

recommendation to the SDP—prevents him from reviewing the CDC’s finding of 

“no just cause.” C.R. 82 ¶18. Thus, Doe cannot evaluate how his grievance failed, 

in Defendants’ estimation, to satisfy the very low “just cause” standard. Id. 

Further, the “TRDP authorizes Plaintiff to file another grievance in this matter, but 

the CDC’s unauthorized decision to hide its ex parte recommendation to the SDP 

renders futile any effort to correct Plaintiff’s grievance in a new filing.”4 Id.; see 

TEX. R. DISC. P. 2.10. Thus, Doe’s interest in filing a new grievance is actually 

harmed by the State Bar Defendants’ unauthorized actions relating to their ex parte 

recommendation. See Salazar, 304 S.W.3d at 906 (citation omitted).

2. Mootness

The Motion to Dismiss asserts that there is no live controversy because once 

the SDP dismissed Doe’s grievance, the process ended and cannot be revisited. 

C.R. 25-26 ¶9. But because this case meets the “public interest” exception to the 

mootness doctrine—the questions involved in this case are of considerable public 

importance, are capable of arising again between the same parties or other 

 

4 To the extent the State Bar Defendants argue that Doe cannot assert a new grievance against 

this attorney, and thus there is no need for Doe to review the ex parte recommendation, this

argument fails under the language of TRDP 2.10. TRDP 2.10 does not limit the number of 

grievances a complainant may file, so long as the grievance is classified as a “complaint.” TRDP 

2.10. The limitations of TRDP 2.10 apply only when the CDC classifies grievances as 

“inquiries,” and then circumscribe the number of attempts a complainant may make to have his 

grievance classified as a complaint and not an inquiry. Id. TRDP 2.10’s restrictions simply do 

not apply once the CDC classifies a grievance as a “complaint.” Id.
APPELLANT’S BRIEF 10

members of the public, and will continue to evade judicial review—this case is not 

moot. See Univ. Scholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. 

App.—Austin 1993, no writ).

Specifically, under the State Bar Defendants’ interpretation of Texas Rules

of Disciplinary Procedure 2.16, a person complaining of attorney conduct—

normally a member of the public—will never have access to the CDC’s ex parte 

recommendation to the SDP. Thus, the question in this case will arise again and 

again, each time a grieving complaint’s grievance is summarily dismissed with no 

explanation. Each time Defendants determine that the “just cause” standard has 

not been met (in any grievance proceeding against any attorney), Defendants will 

again refuse to provide a copy of their ex parte recommendation to the 

complaining party (who began the whole complaint process).

Moreover, following this pattern ensures that Defendants’ “no just cause” 

determination is never scrutinized, and the complaining member of the public 

never knows why his grievance against the attorney did not meet that low standard. 

In addition, whether the State Bar Defendants are permitted to hide their ex 

parte recommendation to the decision-maker from the complaining member of the 

public—the very person who initiated the grievance process—is a question of 

considerable public importance. The State Bar Defendants will continue 

unjustifiably using Rule 2.16 to keep their ex parte recommendation from the 
APPELLANT’S BRIEF 11

parties to a grievance proceeding and again, more importantly, keep their reasons 

to recommend dismissal from the very person making the complaint. Furthermore, 

as in this case, the SDP will continue to rule on the recommendations from the 

CDC before a court can intervene, thereby prohibiting review of the CDC’s ex 

parte recommendation and “no just cause” finding. For those reasons, this case 

satisfies the “public interest exception” to the mootness doctrine, and the trial court 

had jurisdiction to hear the pending declaratory judgment action.

D. This case does not seek to enjoin a grievance proceeding.

The State Bar Defendants argue generally that trial courts cannot enjoin 

grievance proceedings, and claim this general proposition of law prevents this 

Court from hearing this Declaratory Judgment action. But because Doe does not 

seek (and has never sought) to enjoin any grievance proceeding, this argument is 

misplaced.

Defendants rely on State Bar of Texas v. Gomez, in which the plaintiffs 

asked a state district court to create a mandatory duty for attorneys to undertake 

pro bono representations. 891 S.W2d 243, 246 (Tex. 1994). The supreme court 

narrowly held that creating duties for attorneys is the sole province of the supreme 

court, and any attempt by a lower court to so regulate the legal profession is an 

impermissible usurpation of the supreme court’s authority. Id. In other words, a 

trial court cannot “promulgat[e] policies and regulations governing Texas 
APPELLANT’S BRIEF 12

lawyers.” Id. For that reason, in Gomez, the district court could not grant the relief 

requested by the plaintiff—an injunction creating a mandatory pro bono program. 

Id. Thus, because the district court could not grant the relief request, the case 

before it was not justiciable, and that court lacked jurisdiction. Id.

Gomez is inapposite to this case. Doe is not asking the trial court to create a 

new rule, institute a new program, insert a new requirement, or promulgate a new 

policy or regulation. All the trial court is asked to do is declare that disclosure to a 

complainant is not prohibited by Rule 2.16.

The State Bar Defendants also cite Favaloro v. Commission for Lawyer 

Discipline, in which the plaintiff sought a court order enjoining the State Bar of 

Texas, the grievance committee, and others from enforcing the grievance rules 

against him. 13 S.W.3d 831, 836–37 (Tex. App.—Dallas 2000, no pet.). The 

Dallas Court of Appeals rejected the plaintiff’s argument, holding that a district 

court does not have jurisdiction to enjoin the “grievance procedures authorized by 

the State Bar Act.” Id. (citations omitted). 

Favaloro is likewise inapposite to this case. In this case, Doe is merely 

asking the Court to declare rights under a rule of disciplinary procedure. Unlike 

the plaintiff in Favaloro, Doe is not seeking an order from the Court halting or 

forbidding the State Bar Defendants from enforcing the disciplinary rules against 

him. 
APPELLANT’S BRIEF 13

Defendants cite no cases which have held that a district court may not 

interpret a rule of disciplinary procedure, and the trial court is well-within its 

power to make such a declaration.

CONCLUSION

The trial erred when it dismissed Doe’s claims for lack of jurisdiction, and 

this Court should reverse and remand to the trial court for further proceedings. 

PRAYER

Appellant John Doe prays that this Court reverse the trial court’s dismissal 

and remand this case for further proceedings. 

Respectfully submitted,

WEST, WEBB, ALLBRITTON & GENTRY, P.C.

1515 Emerald Plaza

College Station, Texas 77845-1515

Telephone: (979) 694-7000

Facsimile: (979) 694-8000

By:________________________

GAINES WEST

State Bar No. 21197500

gaines.west@westwebblaw.com

JENNIFER D. JASPER

State Bar No. 24027026

jennifer.jasper@westwebblaw.com

ROB GEORGE

State Bar No. 24067623

rob.george@westwebblaw.com
APPELLANT’S BRIEF 14

CERTIFICATE OF COMPLIANCE

I certify that this BRIEF OF APPELLANTS complies with the typeface and 

word-count requirement set forth in the Rules of Appellate Procedure. This motion 

has been prepared, using Microsoft Word, in 14-point Times New Roman font for 

the text and 12-point Times New Roman font for any footnotes. This motion 

contains 2,862 words, as determined by the word count feature of the word 

processing program used to prepare this document, excluding those portions of the 

notice exempted by TEX. R. APP. P. 9.4(i)(1). 

/s Gaines West

Gaines West

CERTIFICATE OF SERVICE

On April 9, 2015, the undersigned certifies that he served a copy of this 

Brief of Appellee on the following in the manner listed below, in compliance with 

Texas Rules of Appellate Procedure 9.5 and 25.1(e):

PAUL HOMBURG, III Via email: phomburg@texasbar.com

Disciplinary Counsel and Certified Mail, RRR

Office of the Chief Disciplinary Counsel

State Bar of Texas

711 Navarro, Suite 750

San Antonio, Texas 78205

Rebecca Stevens Via email: bstevens@texasbar.com

Disciplinary Counsel and Certified Mail, RRR

Office of the Chief Disciplinary Counsel

State Bar of Texas

P. O. Box 12487

Austin, Texas 78711-2487

/s Gaines West

Gaines West
HYPERLINKED

CASE LAW
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

111 S.W.3d 274

Court of Appeals of Texas,

Texarkana.

Odell TERRELL, on Behalf of the ESTATE

OF J.R. TERRELL, Jr., and on Behalf of

the Estate of Virginia Terrell, David Elkins,

and Jimmy Wayne Terrell, Appellants,

v.

Robert M. SISK and Rains County, Texas, Appellees.

No. 06–02–00174–CV. | Submitted

June 19, 2003. | Decided July 16, 2003.

Survivors of motorists killed in collision with county

employee brought action against county and county judge

alleging failure to supervise, failure to train, failure to control,

negligent implementation of policy, and negligent hiring. The

402nd Judicial District Court, Wood County, G. Timothy

Boswell, J., dismissed for lack of subject matter jurisdiction.

Survivors appealed. The Court of Appeals, Ross, J., held

that: (1) county employee driving her own car to doctor's

appointment was not acting within scope of her employment;

(2) joint enterprise did not exist between employee, judge,

and county; (3) judge did not act in bad faith by failing

to request drug test of employee; and (4) official immunity

barred negligence claims against judge.

Affirmed.

Attorneys and Law Firms

*276 Christopher A. Kalis, Law Offices of Christopher A.

Kalis, Dallas, for appellants.

Robert T. Bass, Allison, Bass & Associates, LLP, Austin, for

appellees.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Odell Terrell, on behalf of the estates of J.R. Terrell, Jr., and

Virginia Terrell, David Elkins, and Jimmy Wayne Terrell (the

Terrell family) 1 appeal from an order granting a plea to the

jurisdiction filed by Rains County and Robert M. Sisk, the

county judge of Rains County, and dismissing the Terrell

family's lawsuit. We affirm.

The lawsuit stemmed from an automobile accident resulting

in serious personal injuries to, and ultimately the deaths of,

J.R. Terrell, Jr., and his wife, Virginia. The accident was

caused by June Goble, Judge Sisk's secretary, while on her

way to a doctor's appointment. The Terrell family alleged that

Goble was in a drug-induced stupor, that Judge Sisk knew

she had been misusing prescription drugs but made no effort

to control the situation through her employment, and that her

medical visit on the date of the accident was “in furtherance of

County business.” The lawsuit was filed against Rains County

and Judge Sisk. 2 The County and Judge Sisk raised sovereign

immunity and official immunity as defenses.

In the sole issue presented for review, the Terrell family

challenges the trial court's order granting the plea to the

jurisdiction. The Terrell family has presented a number of

arguments in an effort to support that contention. We will

address those as necessary, but recognize that the main thrust

of their contentions is that, as to the County and Judge

Sisk, sovereign immunity has been waived by the Texas Tort

Claims Act. 3 They contend there is a cause of action for

failure to supervise, for failure to train, for failure to control,

for negligent implementation of policy, negligent hiring (or

retention), and that “joint enterprise” applies.

[1] As to the claims against Rains County, the only question

is whether sovereign immunity has been waived. If not, then

no claim against the County can prevail. Under the doctrine of

sovereign immunity, a governmental unit is not liable for the

torts of its officers or agents in the absence of a constitutional

or statutory provision creating such liability. Dallas County

Mental Health & Mental Retardation v. Bossley, 968 S.W.2d

339, 341 (Tex.1998). In the absence of the state's consent to

suit, a trial court lacks subject matter jurisdiction and must

dismiss. The Tort Claims Act creates that limited waiver of

sovereign immunity. See TEX. CIV. PRAC. & REM.CODE

ANN. § 101.021 (Vernon 1997).

As a governmental unit, Rains County is immune from both

suit and liability unless the Tort Claims Act has waived

that immunity. *277 Section 101.021 of the Tort Claims

Act has been interpreted as waiving sovereign immunity in

three general areas: “use of publicly owned automobiles,

premises defects, and injuries arising out of conditions or

use of property.” Tex. Dep't of Transp. v. Able, 35 S.W.3d
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

608, 611 (Tex.2000), quoting Lowe v. Tex. Tech Univ., 540

S.W.2d 297, 298 (Tex.1976). Pursuant to Section 101.021, a

governmental unit in the state is liable for:

(1) property damage, personal injury, and death

proximately caused by the wrongful act or omission or

the negligence of an employee acting within his scope of

employment if:

(A) the property damage, personal injury, or death arises

from the operation or use of a motor-driven vehicle or

motor-driven equipment; and

(B) the employee would be personally liable to the

claimant according to Texas law; and

(2) personal injury and death so caused by a condition

or use of tangible personal or real property if the

governmental unit would, were it a private person, be liable

to the claimant according to Texas law.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021.

The lack of subject matter jurisdiction is properly raised by

a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones,

8 S.W.3d 636, 638 (Tex.1999) (correcting a number of

misunderstandings on that point). 4 The plaintiff has the

burden to show that jurisdiction exists by alleging facts that

affirmatively demonstrate that the trial court has subject

matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Midland v.

Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd

w.o.j.). In the context of suit against a governmental unit,

the plaintiff must allege consent to suit either by reference to

statute or express legislative permission. Jones, 8 S.W.3d at

638; Sullivan, 33 S.W.3d at 6.

In our analysis, the question of subject matter jurisdiction is a

legal question which we review de novo. Sullivan, 33 S.W.3d

at 6. We examine the pleadings, taking as true the facts pled,

and we determine whether those allegations of fact support

jurisdiction in the trial court. Tex. Ass'n of Bus., 852 S.W.2d

at 446. In so doing, we construe the pleadings in favor of

the pleader. Id. If necessary, we may review the entire record

to determine if there is jurisdiction. Id. If the petition does

not allege jurisdictional facts, the plaintiff's suit is subject to

dismissal only when it is impossible to amend the pleadings

to confer jurisdiction. See id. In this case, special exceptions

directed at this matter were raised, and the Terrell family had

the opportunity to amend their pleadings.

The facts alleged by the Terrell family are that the damage

was caused by the private vehicle of the driver (Judge Sisk's

secretary) while that driver was on her way to a doctor's

appointment. There is no allegation of an express waiver of

immunity. Thus, in order to fall under the Tort Claims Act

exception, the Terrell family must show that the use of the

vehicle was part of the scope of the driver's employment

by the County. “Scope of employment” is defined as “the

performance for a governmental unit of the duties of an

employee's office or employment *278 and includes being

in or about the performance of a task lawfully assigned to

an employee by competent authority.” TEX. CIV. PRAC. &

REM.CODE ANN. § 101.001(5) (Vernon Supp.2003).

There are no allegations in the Terrell family's pleadings that

can reasonably be interpreted as showing that the driver was

acting within the scope of her employment at the time of

the accident. She was not traveling at the direction of her

employer. There is nothing to suggest this trip to the doctor

was any part of the performance of her duties as an employee;

rather, the pleadings show conclusively it was a personal

activity away from the workplace.

The Terrell family also alleged, however, that Goble's trip to

the doctor was a part of her employment—and thus her use

of her car was actionable under the vehicle exception to the

Tort Claims Act. They argue that this theory applies because

Judge Sisk had, on an earlier occasion, directed Goble to go

home, and because he permitted her to leave on this occasion.

The underlying principle is that an employee is generally

not in the course and scope of employment while driving

his or her own vehicle to or from his or her place of

employment. Mata v. Andrews Transp., Inc., 900 S.W.2d

363, 366 (Tex.App.-Houston [14th Dist.] 1995, no writ).

This rule is based on the premise that an injury occurring

while traveling to or from work has nothing to do with the

risks associated with a place of employment. Smith v. Tex.

Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193

(1937).

There is an exception to this rule that applies when an

employee undertakes a special mission for his or her

employer. Direkly v. ARA Devcon, Inc., 866 S.W.2d 652,

654 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.).

A special mission is a specific errand that an employee

undertakes at the specific request of the employer. Wilie

v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

(Tex.App.-Houston [14th Dist.] 2001, pet. denied); Upton v.

Gensco, Inc., 962 S.W.2d 620, 621–22 (Tex.App.-Fort Worth

1997, pet. denied). However, the Terrell family's counsel has

explicitly stated in a post-submission letter to this Court that

the “special mission” concept does not apply to the facts of

this case. We will therefore not further address that theory.

There is no allegation of fact to show that, on the occasion of

this accident, the employee went to the doctor at the specific

request of Judge Sisk. There is also no allegation of fact to

support the Terrell family's theory that Rains County had a

duty to keep Goble from leaving her workplace. There is

nothing in the Terrell family's pleadings that can be read to

support the application of the Tort Claims Act to allow them

to pursue a cause of action against Rains County. The plea to

the jurisdiction was therefore properly granted.

[2] The Terrell family also contends the County has waived

its sovereign immunity because it was in a joint enterprise

with Goble. They so contend because Judge Sisk allowed

Goble to use her personal vehicle to occasionally run errands

for the County and because the County's health insurance

plan provided the drugs Goble was taking, and Judge Sisk

allowed her to go to the doctor to obtain those drugs and did

not attempt to stop her.

In Able, the Texas Supreme Court held that “a governmental

unit that enters into a joint enterprise can be liable under the

waiver of sovereign immunity found in the Tort Claims Act.”

Able, 35 S.W.3d at 610. In that case, the plaintiffs alleged a

premises defect involving a state highway. See id. at 612. The

plaintiffs also alleged that a joint enterprise existed between

the Texas *279 Department of Transportation (TxDOT)

and the Houston Metropolitan Transit Authority (Metro) with

respect to the highway. See id. at 610. As a party to a joint

enterprise with Metro, the plaintiffs contended TxDOT was

equally responsible for the premises defect. See id. at 613.

[3] A plaintiff must show four elements to prove the

existence of a joint enterprise: (1) an agreement, express or

implied, among the members of the group; (2) a common

purpose to be carried out by the group; (3) a community of

pecuniary interest in that purpose, among the members; and

(4) an equal right to a voice in the direction of the enterprise,

which gives an equal right of control. Id.; Tex. Dep't of

Transp. v. City of Floresville Elec. Power & Light Sys., 53

S.W.3d 447, 456 (Tex.App.-San Antonio 2001, no pet.).

Arguably, there was an agreement, and a common purpose,

between Goble and the County, as the Terrell family alleges.

However, neither the “pecuniary interest” nor the “equal right

to control” elements make any sense in the context of a

benefit provided for an employee by an employer. There is no

real pecuniary interest involved as a profit-making business

arrangement between the parties. The County provided health

insurance as a benefit. That was arguably a pecuniary benefit

to Goble. The health benefits are provided by doctors, who

presumably receive a pecuniary benefit from their use. In

return, the County receives—not money—but a worker who

is more satisfied with his or her employment and is thus more

likely to remain employed by the County.

Further, the mere fact that an employee has the ability to

choose the doctor whom he or she will visit does not indicate

such employee has “control” over a joint enterprise. It simply

shows that the employee has the ability under the provided

insurance contract to choose which doctor he or she will visit.

In light of the fact the Texas Supreme Court has held that

even business relationships such as a franchisor, wholesaler,

or supplier do not have a “community of pecuniary interest”

adequate to show the existence of a joint enterprise, neither

can we find any indication a joint enterprise exists in this

situation. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 528

(Tex.2002).

[4] The Terrell family then takes a different direction in

their pleadings concerning Judge Sisk. They allege that Judge

Sisk was the negligent party and that his negligence was the

proximate cause of the deaths because of his failure to enforce

the County's drug-testing policy. The policy, as stated in the

Terrell family's brief, provided that an “employee suspected

of drug/alcohol abuse may be requested to take a test. If an

employee refuses to take this test or fails a test, they are

subject to immediate dismissal.”

The initial question is whether this alters the analysis set

out above for Judge Sisk in his official capacity as the

county judge. Article IX, Section 1 of the Texas Constitution

provides that counties are legal subdivisions of the state. TEX.

CONST. art. IX, § 1. A suit against a government official in

his or her official capacity seeks to impose liability only on the

governmental entity the official represents, and any judgment

in this type of suit is collectible only against the governmental

entity, not against the official's personal assets. Kentucky v.

Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d

114 (1985); Herring v. Houston Nat'l Exch. Bank, 113 Tex.
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

264, 253 S.W. 813 (1923); Harris County v. Walsweer, 930

S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ

denied); Winograd v. Clear Lake City Water *280 Auth.,

811 S.W.2d 147, 162 (Tex.App.-Houston [1st Dist.] 1991,

writ denied); see also Bowles v. Reed, 913 S.W.2d 652,

655 (Tex.App.-Waco 1995, writ denied) (suit against county

official is a suit solely against the county); Bowles v. Wade,

913 S.W.2d 644, 649, 649 n. 13 (Tex.App.-Dallas 1995, writ

denied) (suits against public officials are suits against the

entities for whom they work and official-capacity judgments

impose liability on the entity).

[5] As a public official sued in his official capacity, Judge

Sisk is protected by the same sovereign immunity enjoyed

by the state agency he represents. Tex. Dep't of Health

v. Rocha, 102 S.W.3d 348, 353 (Tex.App.-Corpus Christi,

2003, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454,

460 (Tex.App.-Tyler 1999, pet. denied); Morris v. Copeland,

944 S.W.2d 696, 698–99 (Tex.App.-Corpus Christi 1997,

no writ). Because a suit against a state officer in his or

her official capacity is equivalent to a suit against the

state, employees acting in their official capacity share their

employer's sovereign immunity. Rocha, 102 S.W.3d at 353;

Denson, 63 S.W.3d at 460; Morris, 944 S.W.2d at 698–

99; see also Sykes v. Harris County, 89 S.W.3d 661, 669

(Tex.App.-Houston [1st Dist.] 2002, pet. filed); Univ. of

Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d

767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd

w.o.j.) (holding employee sued in her official capacity was

shielded by sovereign immunity). Accordingly, a plea to the

jurisdiction is procedurally the proper method of contesting

the propriety of the lawsuit against him or her as a public

official.

The Terrell family alleges Judge Sisk is liable to them for

two main reasons: 1) the judge knew his secretary at least

occasionally had problems (i.e., sleeping on the job) caused

by her use of prescription medications, but had negligently

failed to exercise the County's policy to require her to undergo

drug testing; and 2) the judge knew on that particular occasion

that his secretary was in no condition to drive her automobile

and was thus negligent in allowing her to drive to her

doctor's appointment. We will first analyze these allegations

as viewed through the window of sovereign/official immunity

of a public servant.

[6] In determining whether a waiver of the application

of sovereign immunity is shown in this context, a critical

question is whether the employee of a governmental unit

would be personally liable under Texas law. A government

employee is entitled to official immunity for (1) the

performance of discretionary duties (2) that are within the

scope of the employee's authority, (3) provided the employee

acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d

650, 653 (Tex.1994); see also DeWitt v. Harris County, 904

S.W.2d 650, 652 (Tex.1995).

In deciding whether the facts alleged fall outside the scope

of official immunity, we recognize that the basis for alleged

liability is the County's policy, which explicitly provides

that requiring a drug test of an employee is absolutely

discretionary, and that the Terrell family has alleged the

accident was caused by Judge Sisk while acting within the

scope of his official duties. The sole disputed question then

becomes whether he acted in good faith.

If Judge Sisk was performing a discretionary function, then

he is protected by official immunity, regardless of whether he

was negligent in the exercise of his public duties. See City of

Wichita Falls v. Norman, 963 S.W.2d 211, 215 (Tex.App.-

Fort Worth 1998, pet. dism'd w.o.j.). The Terrell family

cannot breach the immunity wall merely because Judge Sisk

was negligent—they can only do so if Judge Sisk exercised

his discretionary authority in *281 bad faith. See Harless v.

Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.).

The Terrell family must do more than show that a reasonably

prudent supervisor could have acted differently; they must

show that no reasonable person in Judge Sisk's position could

have thought the facts were such that they justified his acts.

See Chambers, 883 S.W.2d at 657. Good faith is not defeated

simply by a showing of negligence. Wadewitz v. Montgomery,

951 S.W.2d 464, 467 n. 1 (Tex.1997).

Good faith is established when it is proved that a reasonably

prudent government official, under the same or similar

circumstances, could have believed that his actions were

justified. Chambers, 883 S.W.2d at 656. A government

employee acts in bad faith only if that employee could not

have reasonably reached the decision in question. Univ. of

Houston v. Clark, 38 S.W.3d 578, 581 (Tex.2000). Good

faith can be established as a matter of law when the factual

recitation by the governmental unit's employee is otherwise

supported by the evidence. Dovalina v. Nuno, 48 S.W.3d 279,

283 (Tex.App.-San Antonio 2001, no pet.); Alamo Workforce

Dev., Inc. v. Vann, 21 S.W.3d 428, 434–35 (Tex.App.-San

Antonio 2000, no pet.). The Terrell family alleged negligence.

Although they also used the term “good faith” throughout
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

their pleadings, the allegations involving that language are the

same ones used in their allegations of negligence. 5

The facts concerning the accident alleged by the Terrell

family do not support a finding that Judge Sisk acted in bad

faith, either for failing to require Goble to undergo a drug

test, or in connection with her driving to her doctor's office

in her own vehicle. Requiring a drug test was discretionary

on the part of the county judge, and there are no facts alleged

showing any directive by Judge Sisk to Goble to drive her

automobile. Taking the allegations at their most extreme

possible meaning, with maximal inferences applied, they at

most show questionable judgment, and thus possibly show

negligence. They do not show the absence of good faith,

which is necessary to avoid the sovereign immunity bar.

Accordingly, the trial court did not err by concluding Judge

Sisk, riding on the coattails of sovereign immunity of his

county, is not amenable to suit in his official capacity.

[7] [8] We next consider whether claims were raised

against Judge Sisk in his individual capacity. State employees

sued in their individual capacities may be liable for their

negligence if they do not have official immunity. Sykes, 89

S.W.3d at 669; Denson, 63 S.W.3d at 460.

We have reviewed the pleadings in detail. Although there

are places where the Terrell family referred to claims against

Judge Sisk in his personal capacity, there were no claims

raised involving any act by the judge outside of his public

servant persona. This is not a situation where there is a

mixture of allegations, some of which are directed at actions

taken outside a public capacity. In this case, all allegations

were of claimed wrongdoing or negligence by Judge Sisk in

actions he was able to take only because of his position as a

public servant. Under these circumstances, we conclude that

a fair reading of the Terrell family's pleadings is that there

*282 was no effective pleading against Judge Sisk in his

individual capacity.

[9] [10] The Terrell family has also raised a federal Section

1983 claim against Judge Sisk. A suit against a state official

in his or her official capacity is not a suit against the official,

but against the official's office and the state for which the

official is an agent. Will v. Mich. Dep't of State Police, 491

U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); City

of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-

Houston [1st Dist.] 1995, no writ). The suit is therefore the

same as one brought directly against the state. Will, 491 U.S.

at 71, 109 S.Ct. 2304; Kmiec, 902 S.W.2d at 122. The United

States Supreme Court has held that “neither a State nor its

officials acting in their official capacities are ‘persons' under

§ 1983.” Will, 491 U.S. at 71, 109 S.Ct. 2304; see Harrison v.

Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d

882, 889–90 (Tex.App.-Houston [1st Dist.] 1995, no writ).

The Court went on to explain that, “As such, it is no different

from a suit against the State itself.” Will, 491 U.S. at 71, 109

S.Ct. 2304.

Therefore, as a government official in his official capacity,

Judge Sisk is not a “person” under Section 1983. Section 1983

of the Civil Rights Act provides as follows:

Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Columbia,

subjects, or causes to be subjected,

any citizen of the United States or

other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an action

at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C.A. § 1983 (West Supp.2003).

Section 1983 was not designed to override sovereign

immunity. Will, 491 U.S. at 66, 109 S.Ct. 2304. Accordingly,

the Section 1983 claim made against Judge Sisk in his official

capacity could not serve to avoid the application of sovereign

immunity and the claim was properly the subject of the plea

to the jurisdiction.

We affirm the judgment.

Footnotes

1 Odell Terrell is a surviving brother of J.R. Terrell, Jr. David Elkins is the surviving son of Virginia Terrell, and Jimmy Wayne Terrell

is the surviving son of J.R. Terrell, Jr.
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

2 The style of the lawsuit in the Terrell family's pleadings does not specify whether Judge Sisk was sued in his personal capacity or

in his capacity as county judge (and the supervisor of his secretary). We will therefore review the pleadings to determine the nature

of the Terrell family's claims.

3 TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(1)(A), (B) (Vernon 1997).

4 Since as early as 1847, the law in Texas has been that, absent the state's consent to suit, a trial court lacks subject matter jurisdiction.

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A party may contest a trial court's subject matter jurisdiction by filing

a plea to the jurisdiction. Id.

5 “When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings' to determine

the nature of the liability the plaintiff seeks to impose.” Harless v. Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.),

quoting Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

13 S.W.3d 831

Court of Appeals of Texas,

Dallas.

Richard W. FAVALORO, Appellant,

v.

COMMISSION FOR LAWYER DISCIPLINE,

Appellee.

No. 05–96–01627–CV. | Feb. 28, 2000.

Attorney disciplinary action was brought. Following jury

trial, the 95th District Court, Dallas County, Tony Lindsay,

J., entered judgment on jury verdict that attorney committed

misconduct and suspended him from practice of law, probated

for three years. Attorney appealed, and Commission for

Lawyer Discipline cross-appealed. The Court of Appeals,

Bridges, J., held that: (1) trial court had jurisdiction over

proceedings; (2) investigatory committee was not required

to make an express finding of “just cause” for bringing

complaint; (3) attorney had fair notice of charges against him;

(4) scheduling order entered by first assigned judge became

a nullity once attorney objected to judge and replacement

judge was appointed; and (5) of stay judgment of suspension

pending appeal was not warranted.

Affirmed.

Attorneys and Law Firms

*834 Richard W. Favaloro, Attorney at Law, Dallas, for

Appellant.

David M. Pruessner, Pruessner & Shilling, Dallas, for

Appellee.

Before Justices KINKEADE, BRIDGES, and ROACH.

OPINION

Opinion By Justice BRIDGES.

On the Court's own motion, we VACATE our September 10,

1999 opinion. We also VACATE our September 10, 1999

judgment. This is now the opinion of this Court.

The State Bar of Texas filed a disciplinary petition in the name

of the Commission for Lawyer Discipline against attorney

Richard W. Favaloro, alleging professional misconduct. The

trial court found that Favaloro committed misconduct in

violation of rules 3.03(a)(1), 8.02(a), and 8.04(a)(3) of the

e Texas Disciplinary Rules of Professional Conduct and

suspended Favaloro form the practice of law, probated for

three years. In twenty-four points of error, Favaloro argues

generally that the trial court (1) lacked jurisdiction, (2) erred

in charging the jury and entering judgment because he had no

fair notice of the charges against him, (3) erred in overruling

his evidentiary objections, (4) erred in entering judgment

on the jury's verdict, (5) erred in charging the jury, (6)

erred in refusing his jury issues and definitions, (7) erred in

overruling his motion for continuance, (8) erred in failing

to file findings of fact and conclusions of law, (9) erred in

overruling his objections to opposing counsel, (10) erred in

sustaining the Commission's objections to his exhibits, (11)

erred in disregarding the jury's finding on attorney's fees,

and (12) erred in failing to stay judgment pending appeal.

In a single cross-point, the Commission argues that the trial

court erred in fully probating Favalor's suspension. We affirm

the trial court's judgment. We publish this opinion pursuant

to Texas Rules of Disciplinary Procedure 6.06. See Tex. R.

Disciplinary P. 6.06, reprinted in TEX. GOV'T CODE ANN.,

tit. 2, subtit. G app. A-1 (Vernon 1998).

BACKGROUND

The underlying disciplinary proceeding arose out of

Favaloro's representation of a client in a wrongful termination

of employment case. Opposing counsel filed a grievance

against Favaloro. A district grievance committee determined

that there was just cause to believe that Favaloro had violated

the Texas Disciplinary Rules. However, before the committee

notified Favaloro of its determination, Favaloro filed suit in

the 191 st District Court of Dallas County against the State

Bar of Texas, the grievance committee, and the committee

chairperson. Favaloro gave the following notice in the final

paragraph of his petition against the State Bar: “Under Rule

2.14, Plaintiff [Favaloro] refuses any further proceedings

before the District 6A grievance committee or any other

grievance committee regarding the Grievance.”

The Commission subsequently filed a disciplinary petition

against Favaloro in the 95 th District Court of Dallas County.

A jury found, among other things, that Favaloro had made

certain false statements in the course of the underlying suit,

*835 and the trial court entered judgment that Favaloro had
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

committed professional misconduct. Favaloro now brings this

appeal.

JURISDICTION

We first address Favaloro's arguments that the trial court

lacked jurisdiction over this case. In his first point of error,

Favaloro argues the trial court lacked jurisdiction because

the Commission did not plead all “statutory conditions

precedent.” In his second point of error, Favaloro argues

the trial court erred in entering judgment because it failed

to find these same “conditions precedent.” The “conditions

precedent” to which Favaloro refers are the Texas Rules

of Disciplinary Procedure pertaining to the composition

and operation of district grievance committees. See TEX.R.

DISCIPLINARY P. 2.01, 2.02, 2.03, 2.05, 2.06, 2.07, 2.09,

2.10, 2.11, 2.12, 2.13, 2.14, 2.15. Among other things,

Favaloro argues that the disciplinary petition against him

did not allege that the grievance against him was assigned

to a properly-appointed district grievance committee or

that the committee classified the grievance as a complaint

and assigned a properly-constituted panel that reviewed the

complaint as provided in the Texas Rules of Disciplinary

Procedure.

Section 3.01 of the Texas Rules of Disciplinary Procedure

sets out the contents of a disciplinary petition as follows:

A. Notice that the action is brought by the Commission for

Lawyer Discipline, a committee of the State Bar.

B. The name of the Respondent and the fact that he or she

is an attorney licensed to practice law in the State of Texas.

C. The residence and principal place of practice of the

Respondent, or other allegations necessary to fix venue.

D. A description of the acts and conduct that gave rise to

the alleged Professional Misconduct in detail sufficient to

give fair notice to Respondent of the claims made, which

factual allegations may be grouped in one or more counts.

E. The specific rules of the Disciplinary Rules of

Professional Conduct allegedly violated by the acts or

conduct, or other grounds for seeking Sanctions.

F. A demand for judgment that the Respondent be

disciplined as warranted by the facts and for any other

appropriate relief.

G. Any other matter that is required or may be permitted

by law or by these rules.

TEX.R. DISCIPLINARY P. 3.01.

[1] [2] Favaloro argues that rule 3.01(G), in providing

that the disciplinary petition contain “any other matter,”

requires that the petition allege every requirement under the

rules governing district grievance committees. See TEX.R.

DISCIPLINARY P. 3.01(G). We disagree. The disciplinary

petition in this case met the requirements of rule 3.01

which prescribes the contents of the petition. See TEX.R.

DISCIPLINARY P. 3.01. We do not read rule 3.01(G) to

require that a disciplinary petition allege that every aspect of

every rule pertaining to the administration and organization of

district grievance committees has been satisfied. We overrule

Favaloro's first point of error. Similarly, nothing required

the trial court to expressly find in its judgment that the

requirements concerning district grievance committees had

been met. We overrule Favaloro's second point of error.

[3] [4] In his seventeenth and nineteenth points of error,

Favaloro argues the trial court erred when it acted outside its

judicial and “temporal” jurisdiction. In particular, Favaloro

complains that the Supreme Court of Texas did not appoint a

replacement judge within thirty days of Favaloro's February

14, 1995 “Respondent's Objection to Visiting Judges.”

Therefore, Favaloro argues, the supreme court's appointment

of a replacement judge on October 10, 1995, was void

because it came outside the statutory thirty-day limitations

period. See TEX.R. DISCIPLINARY *836 P. 3.02. With

respect to “temporal” jurisdiction, Favaloro argues that the

trial court was prohibited from resetting the April 1995

trial date because the trial court was required to begin trial

no later than 180 days after the disciplinary petition was

filed with the district clerk. See TEX.R. DISCIPLINARY P.

3.07. However, Texas Rule of Disciplinary Procedure 15.07,

regarding the effect of time limitations, does not include rules

3.02 or 3.07 among those rules with mandatory time periods.

See TEX.R. DISCIPLINARY P. 15.07. Instead, rules 3.02

and 3.07 fall within the provision that “all other time periods

herein provided are directory only and the failure to comply

with them does not result in the invalidation of an act or

event by reason of the noncompliance with those time limits.”

Id. Thus, even though the appointment of a replacement

judge was somewhat delayed, this delay did not result in the

invalidation of the trial court's jurisdiction. See id. Likewise,

although trial in this case was reset on a date outside the 180–

day period, this delay did not result in the invalidation of
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

the trial court's jurisdiction. See id. We overrule Favaloro's

seventeenth and nineteenth points of error.

[5] In Favaloro's eighteenth point of error, he argues that

the court acted outside of its geographic jurisdiction when

it conducted judicial appointments in Travis County and

hearings in Harris County, not Dallas County. To support

this argument, Favaloro cites rule 3.03's provision that all

proceedings incident to the trial de novo must take place

in the county of respondent's principal place of practice.

See TEX.R. DISCIPLINARY P. 3.03. Although Favaloro

complains of appointments and hearings conducted outside

Dallas County, he fails to provide any citations to the record

in support of this point of error. The rules of disciplinary

procedure require that the supreme court, which sits in

Travis County, appoint an active district judge who does

not reside in the Administrative Judicial Region in which

the Respondent resides to preside over a disciplinary case.

TEX.R. DISCIPLINARY. P. 3.02. ppellant cites no authority,

nor have we found any, to support the proposition that rule

3.02 prohibits the supreme court from conducting judicial

appointments in Travis County. In this case, Judge John

Montgomery resided in Harris County and Favaloro resided

in Dallas County. Thus, Judge Montgomery's appointment

complied with rule 3.02. Additionally, we note that Favaloro

filed an objection to Judge Montgomery who then removed

himself from the case and referred the matter to the Supreme

Court for appointment of a replacement judge. Thus, we

conclude Favaloro's challenge to the trial court's jurisdiction

on this basis is without merit. We overrule Favaloro's

eighteenth point of error.

[6] [7] In his twentieth point of error, Favaloro argues the

trial court erred when it interfered with the 191 st District

Court's jurisdiction. On April 14, 1994, Favaloro filed in

the 191 st District Court an original petition against the

State Bar of Texas, the grievance committee, and Eleanora

Duncan, chairperson of the grievance committee. In his

petition, Favaloro sought temporary relief enjoining the State

Bar, the grievance committee, and Duncan from (1) enforcing

against Favaloro the rules of disciplinary procedure relating

to the confidentiality of the investigatory panel's proceedings,

see TEX.R. DISCIPLINARY P. 2.07, 2.11, 2.15, 15.10,

15.11, and (2) proceeding further with the grievance against

him. On December 16, 1994, the Commission for Lawyer

Discipline filed a disciplinary petition against Favaloro in the

95 th District Court of Dallas County. Favaloro contends

that the 191 st District Court had dominant jurisdiction

because of his prior suit against the State Bar, the grievance

committee, and Duncan. We disagree. A district court

does not have jurisdiction to interfere with the grievance

procedures authorized by the State Bar Act. See Board

of Disciplinary Appeals v. McFall, 888 S.W.2d 471, 472

(Tex.1994); *837 State Bar of Tex. v. McGee, 897 S.W.2d

437, 438–39 (Tex.App.-Corpus Christi 1995, writ dism'd

w.o.j.). Thus, Favaloro's suit in the 191 st District Court did

not impact the jurisdiction of the 95 th District Court over

the disciplinary petition filed therein. We overrule Favaloro's

twentieth point of error.

THE JUDGMENT

[8] Having resolved Favaloro's jurisdictional points of

error against him, we turn now to consider his points of

error complaining about the judgment against him. In his

third point of error, Favaloro argues the trial court erred in

entering judgment because the court did not find that any

of the steps in Texas Rules of Disciplinary Procedure 3.01

through 3.14, pertaining to trial de novo in the district court,

were followed. See TEX.R. DISCIPLINARY P. 3.01–3.14.

Favaloro does not argue that any violation of the rules

pertaining to trial occurred, merely that the trial court erred

in refusing Favaloro's request for findings on each of the

steps in rules 3.01 through 3.14. While the trial court was

required to follow the rules concerning the conduct of trial,

along with pretrial and post-trial matters, we find no support

for Favaloro's argument that the trial court was also required

to find that it had followed the rules, nor does Favaloro cite

us to any authority imposing such a requirement. We overrule

Favaloro's third point of error.

[9] [10] In his fourth point of error, Favaloro first argues

the trial court erred in entering judgment and charging the

jury because the grievance committee never found just cause

on the charges. Favaloro's “just cause” argument refers to the

requirement under the Texas Rules of Disciplinary Procedure

that the grievance committee appoint an investigatory

committee to determine whether “just cause” exists for a

complaint against an attorney. See TEX.R. DISCIPLINARY

P. 2.11. However, nothing in the Texas Rules of Disciplinary

Procedure specifically requires the Commission to plead and

prove a finding of just cause. Wade v. Commission for Lawyer

Discipline, 961 S.W.2d 366, 371 (Tex.App.-Houston [1 st

Dist.] 1997, no pet.). In fact, by the time a complaint reaches

the district court, other rules, such as 2.11 and 2.13, have
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

ensured that the finding of just cause has already been made.

Id.; see TEX.R. DISCIPLINARY P. 2.11, 2.13. Moreover,

the record in this case contains letters from the Office of the

General Counsel of the State Bar of Texas indicating that the

grievance committee believed Favaloro violated rules 3.01,

3.02, 3.03(a)(1), 3.04(c)(1), 3.04(c)(2), 8.02(a), 8.04(a)(1),

8.04(a)(2), and 8.04(a)(3) of the Texas Disciplinary Rules

of Professional Conduct and that the Grievance Committee

Panel's decision in the matter was unanimous. While the

letters do not use the words “just cause,” they constitute

sufficient evidence to show the investigatory committee made

such a finding. See Wade, 961 S.W.2d at 372. We overrule

Favaloro's fourth point of error to the extent it complains

about a finding of “just cause.”

NOTICE

[11] [12] In the second part of his fourth point of

error, Favaloro argues he did not have fair notice of the

charges against him until the court read the charges to the

jury. Similarly, in his thirteenth point of error, Favaloro

complains that the trial court erred in charging the jury

because no pleadings supported the charge. We liberally

construe pleadings in favor of the pleader, particularly when

the complaining party has not filed any special exceptions.

Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on

reh'g); Spiers v. Maples, 970 S.W.2d 166, 168 (Tex.App.-

Fort Worth 1998, no pet.); Bank One, Tex., N.A. v. Stewart,

967 S.W.2d 419, 431 (Tex.App.-Houston [14 th Dist.] 1998,

no pet.) (op. on reh'g). Pleadings shall give fair notice of the

claim or defense asserted to provide the opposing party with

enough information to enable him to prepare a defense or

answer to the defense asserted. TEX.R. CIV. P. 45(b), 47(a);

Bank One, 967 S.W.2d at 430. A petition is sufficient if a

*838 cause of action or defense may be reasonably inferred

from what is specifically stated. Bank One, 967 S.W.2d at

430.

[13] The original disciplinary petition filed against Favaloro

specified that he had violated rules 3.01, 3.02, 3.03(a)(1),

3.04(c)(1), 3.04(c)(2), 8.02(a), 8.04(a)(1), 8.04(a)(2), and

8.04(a)(3) of the Texas Disciplinary Rules of Professional

Conduct. The trial court charged the jury on the issues of

whether Favaloro had violated these rules by, among other

things, making false statements to the tribunal, engaging

in conduct involving deceit or misrepresentation, making

statements concerning the qualifications or integrity of a

judge with reckless disregard as to their truth or falsity,

and filing frivolous motions. See TEX. DISCIPLINARY R.

PROF'L CONDUCT 3.01, 3.03(a)(1), 8.02(a), 8.04(a)(3),

reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app.

A (Vernon 1998) (TEX. STATE BAR R. art. X, § 9). Under

these circumstances, we conclude Favaloro had fair notice of

the charges against him, and the pleadings supported the jury

charge. We overrule Favaloro's fourth point of error to the

extent it argues Favaloro did not receive fair notice of the

charges against him and Favaloro's thirteenth point of error.

THE SCHEDULING ORDER

[14] In his fifth point of error, Favaloro complains that the

trial judge who ultimately presided over this case erred in

setting aside a January 27, 1995 scheduling order entered

by the first judge appointed to hear this case and overruling

Favaloro's objections to witnesses and other matters regarding

the order. Favaloro appears to complain that the Commission

should not have been allowed to call witnesses at trial in

April 1996 because it did not comply with the disclosure

requirements imposed by the January 27, 1995 scheduling

order. We disagree.

[15] [16] [17] The record contains a January 27, 1995

scheduling order entered by Judge Montgomery setting an

April 3, 1995 deadline for the Commission to disclose its

fact and expert witnesses. However, on February 14, 1995,

Favaloro objected to Judge Montgomery under section 74

of the Texas Government Code. See TEX. GOV'T.CODE

ANN. § 74.053 (Vernon 1998). Once a party makes a

timely objection to an assigned judge, the assigned judge's

disqualification is mandatory. Amateur Athletic Found. v.

Hoffman, 893 S.W.2d 602, 602–03 (Tex.App.-Dallas 1994,

no writ). An objection to an assigned judge is timely if made

before the assigned judge, sitting on the bench in open court,

calls the case to hearing or to trial. Id. at 603 Any order

entered by the assigned judge then becomes a nullity. Id.

Judge Montgomery entered an order referring this case back

to the supreme court for appointment of a replacement judge.

The supreme court appointed a replacement judge on October

10, 1995. Thus, by Favaloro's request, there was no judge

assigned to try the case in April 1995. At trial on April 15,

1996, Favaloro argued that the Commission did not comply

with the January 27, 1995 scheduling order. However, the

scheduling order was a nullity once Favaloro objected to

Judge Montgomery and the supreme court appointed a

replacement. See id. Accordingly, we overrule Favaloro's

fifth point of error.
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

[18] [19] In his fifteenth point of error, Favaloro argues

the trial court erred in denying his motion for continuance

after refusing to enforce the January 27, 1995 scheduling

order. The record contains Favaloro's oral request for a

continuance in order to designate witnesses. This oral motion

does not satisfy the provisions of rule 251 of the Texas

Rules of Civil Procedure. See TEX.R. CIV. P. 251. When

the provisions of rule 251 have not been satisfied, it will

be presumed that the trial court did not abuse its discretion

in denying a continuance. Metro Aviation, Inc. v. Bristow

Offshore Helicopters, Inc., 740 S.W.2d 873, 874 (Tex.App.-

Beaumont 1987, no writ); *839 Ohlhausen v. Thompson,

704 S.W.2d 434, 436 (Tex.App.-Houston [14 th Dist.] 1986,

no writ). We overrule Favaloro's fifteenth point of error.

THE VERDICT

[20] In his sixth point of error, Favaloro argues the trial

court erred in entering judgment on the verdict and charging

the jury because the judgment references the verdict, the

verdict does not conform to the pleadings, and the judgment

therefore does not conform to the pleadings. Favaloro does

not direct us to any place in the record where he objected to

the jury charge and obtained a ruling. Instead, Favaloro cites

generally to the jury charge, the judgment, the first and second

amended disciplinary petitions, and the trial amendment to

the disciplinary petition. A comparison of these documents

shows that the judgment stated Favaloro had violated rules

3.03(a)(1), 8.02(a), and 8.04(a)(3) of the Texas Disciplinary

Rules of Professional Conduct, the jury found that Favaloro

had violated these rules, and the disciplinary petition alleged

that Favaloro had violated these rules, among others. We

overrule Favaloro's sixth point of error.

MATTERS NOT PRESERVED FOR REVIEW

[21] In his seventh, eighth, and ninth points of error,

Favaloro complains that the trial court erred in entering

judgment on the verdict because the verdict was never

rendered, the judge erroneously created a hung jury, and

the judge discharged the jury without returning them for

further deliberation on an incomplete verdict. In raising these

arguments, Favaloro does not cite to the clerk's record or the

reporter's record. In his tenth, eleventh, and twelfth points

of error, Favaloro complains that the trial court erred in

entering judgment on the verdict and charging the jury under

rule 8.02 1 of the Texas Disciplinary Rules of Professional

Conduct. Favaloro discusses the jury's findings and quotes

excerpts from the jury charge but does not support his

arguments with any authority. In his fourteenth point of error,

Favaloro complains that the trial court erred in refusing his

jury issues and definitions. He does not explain, nor does he

provide any support for, the proposition that his submitted

issues and definitions were “proper.” In his twenty-first point

of error, Favaloro complains that the trial court erred in

overruling his objections to the Commission's counsel. In his

twenty-second point of error, Favaloro complains that the trial

court erred in sustaining the Commission's objections to his

exhibits. Favaloro does not explain or support his contention

that the trial court erred in overruling his objections to the

Commission's counsel, and he does not set forth with any

particularity the reasons why the trial court erred in sustaining

the Commission's objections to Favaloro's exhibits. We are

not responsible for making Favaloro's argument for him.

[22] Former rule of appellate procedure 74(f) 2 required that

a brief to this Court contain, among other things, a statement

of the facts of the case, supported by record references,

and a clear and concise argument for the contention made

with appropriate citations to authorities and the *840

record. See TEX.R.APP. P. 74(f) (former rules). Because,

in these points of error, Favaloro does nothing more than

summarily state his point of error, without citation to legal

authority or substantive analysis, we conclude he has failed to

preserve these arguments for review. See Trenholm v. Ratcliff,

646 S.W.2d 927, 934 (Tex.1983); Bowles v. Clipp, 920

S.W.2d 752, 756 (Tex.App.-Dallas 1996, writ denied); Tacon

Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc., 889

S.W.2d 666, 671 (Tex.App.-Houston [14 th Dist.] 1994, writ

denied). Accordingly, we overrule Favaloro's seventh, eighth,

ninth, tenth, eleventh, twelfth, fourteenth, twenty-first, and

twenty-second points of error.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

[23] In his sixteenth point of error, Favaloro complains of

the trial court's failure to file findings of fact and conclusions

of law. Rule 296 of the Texas Rules of Civil Procedure

provides for requests for findings of fact and conclusions

of law. See TEX.R. CIV. P. 296. By its terms, it is only

applicable in a case tried without a jury. Id. Thus, the rule does

not apply in this case which was, as previously discussed, a

jury trial. We overrule Favaloro's sixteenth point of error.
Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

ATTORNEY'S FEES

[24] [25] [26] In his twenty-third point of error, Favaloro

complains that the trial court erred in disregarding the jury

finding on attorney's fees. Favaloro's complaint addresses the

trial court's decision, reflected in the final judgment, that “the

uncontroverted evidence established that a reasonable fee for

preparation and prosecution of this suit was $25,000.” We

note that Favaloro has only provided this Court with a partial

reporter's record, and his only citation to the record under

this point of error is to the trial court's final judgment. Points

of error dependent on the state of the evidence cannot be

reviewed without a complete record. Dob's Tire & Auto Ctr.

v. Safeway Ins. Agency, 923 S.W.2d 715, 720 (Tex.App.-

Houston [1 st Dist.] 1996, writ dism'd w.o.j.). If the appellant

fails to bring forward a complete record, the points of error

dependent on the state of the evidence will be deemed to have

been waived. See id. Because Favaloro has not provided this

Court with a complete reporter's record with which to review

the trial court's award of attorney's fees, he has waived review.

We overrule Favaloro's twenty-third point of error.

STAY OF JUDGMENT

[27] Although the trial court fully probated his suspension,

Favaloro raises the argument in his twenty-fourth point of

error that the trial court erred in failing to stay judgment

pending appeal, citing rule 3.14 of the Texas Rules of

Disciplinary Procedure. Rule 3.14 provides that a judgment

of suspension may be stayed during the pendency of appeals

therefrom if the district court finds, upon competent evidence,

that “the Respondent's continued practice of law does not

pose a continuing threat to the welfare of Respondent's clients

or to the public.” TEX.R. DISCIPLINARY P. 3.14. After

judgment was entered against him, Favaloro had the burden to

prove his continued practice of law did not pose a threat. See

id.; Wade, 961 S.W.2d at 373. Favaloro has failed to direct us

to any place in the record where he filed a motion or requested

that his suspension be stayed. Under these circumstances, we

conclude that Favaloro failed to carry his burden of proving

that his continued practice of law did not pose a threat. See

Wade, 961 S.W.2d at 373. We overrule Favaloro's twentyfourth point of error.

PROBATED SENTENCE

[28] In a single cross-point, the Commission argues that

the trial court erred in fully probating Favaloro's suspension

from the practice of law. The trial court has broad discretion

to determine whether an attorney guilty of professional

misconduct should be reprimanded, suspended, or disbarred.

Butler v. Commission for Lawyer *841 Discipline, 928

S.W.2d 659, 666 (Tex.App.-Corpus Christi 1996, no writ).

After reviewing the record, we cannot conclude that the

trial court's decision to probate Favaloro's suspension was an

abuse of discretion. We overrule the Commission's sole cross

point.

We affirm the trial court's judgment.

Footnotes

1 Although Favaloro's eleventh point of error refers to rule 8.03(a), which imposes a duty on lawyers to report the misconduct of other

lawyers, we conclude Favaloro's eleventh point of error actually relates to rule 8.02(a) prohibiting false statements concerning the

qualifications or integrity of a judge. We note that violation of rule 8.03(a) was not alleged in the disciplinary petition and was not

submitted to the jury.

2 Effective September 1, 1997, the Texas Supreme Court repealed the then-existing rules of appellate procedure and replaced them

with the current rules of appellate procedure. In civil cases, the current rules of appellate procedure apply to cases in which the notice

of appeal or the brief (depending on the circumstances) was filed after September 1, 1997. In all other civil cases, the repealed rules

apply. In this case, the appeal was perfected on April 17, 1996, and Favaloro's brief was filed on February 7, 1997. Therefore, the

former rules of appellate procedure apply to this case.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
In re Doe, 19 S.W.3d 249 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

19 S.W.3d 249

Supreme Court of Texas.

In re Jane DOE.

No. 00–0140. | Feb. 25, 2000.

Pregnant minor filed application for a court order authorizing

her to consent to abortion without notifying her parents. The

trial court denied application, finding that minor was not

sufficiently well informed to make decision without notifying

her parents. Minor appealed. The Court of Appeals affirmed.

Granting minor's petition for review, the Supreme Court,

Phillips, C.J., held, as matters of first impression, that: (1)

Family Code did not prohibit Supreme Court from releasing

opinion to public; (2) review of denial of order was subject

to legal and factual sufficiency standards; (3) requirements

to be mature and sufficiently well informed would be met if

minor was capable of reasoned decision making and decision

was not based on impulse; and (4) trial court must consider

totality of circumstances in making decisions as to whether

minor was mature and sufficiently well informed.

Reversed and remanded to the trial court.

Enoch, J., concurred in part and filed a separate opinion, in

which Baker, Hankinson, and O'Neill JJ., joined.

Owen, J., concurred in part and filed a separate opinion, in

which Phillips, C.J., joined in part.

Hecht, J., filed a dissenting opinion, in which Abbott, J.,

joined.

*250 OPINION

Chief Justice PHILLIPS delivered the opinion of the Court

as to Parts I–VI and a concurring opinion as to Part VII, all

of which Justice GONZALES joins. Justice ENOCH, Justice

BAKER, Justice HANKINSON, and Justice O'NEILL join

in Parts I, II, and IV–VI of the Court's opinion and in the

judgment. Justice OWEN joins in Parts I, II, and III of the

Court's opinion and in the judgment. Justice HECHT and

Justice ABBOTT join in Parts II and III of the Court's opinion.

This is a confidential appeal from a court of appeals' decision

affirming a trial court's *251 denial of a minor's application

for a court order authorizing her to consent to an abortion

without notifying her parents. Our Court is called upon to

determine what the Legislature intended in Texas's parental

notification statute when it wrote that a court “shall enter

an order” that a minor is “authorize[d] ... to consent to

the performance of [an] abortion” if she demonstrates “by

a preponderance of the evidence [that she] is mature and

sufficiently well informed to make the decision to have

an abortion performed without notification to either of her

parents....” TEX. FAM.CODE § 33.003(i). We are not called

upon to decide the constitutionality or wisdom of abortion.

Arguments for or against abortion do not advance the issue

of statutory construction presented by this case. Instead, our

sole function in this case is to interpret and apply the statute

enacted by our Legislature.

The trial court in this case concluded that although the minor

“shows signs of being mature, she has not demonstrated that

she is sufficiently well informed about the medical procedures

and the emotional impact of the procedure.” The court of

appeals affirmed, and the minor has appealed to this Court.

We conclude that in this case, the minor has not met the

statutory standard. Because this Court has not previously

provided guidance to trial and appellate courts about what a

minor must show under section 33.003 of the Texas Family

Code to demonstrate that she is mature and sufficiently well

informed, we remand this case to the trial court in the interest

of justice. In so doing, we direct that upon remand, the

proceedings in the trial court must be concluded as if Doe's

application had been filed the day after our opinion issues.

See TEX. FAM.CODE § 33.003(h). In the event that the

minor requires additional time after issuance of this opinion to

prepare for a hearing, she may, of course, request an extension

of time. See id.

I

Jane Doe is a pregnant, unmarried minor. Her eighteenth

birthday will occur within a few months. She lives at home

with her parents, and she has not been emancipated. Pursuant

to Family Code section 33.003, she sought an order from

the trial court allowing her to consent to an abortion without

having to notify either of her parents. See TEX. FAM.CODE

§ 33.003.

Jane Doe was represented by counsel of her choice, and

as the Family Code requires, the trial court appointed a

guardian ad litem. See id. § 33.003(e). At the conclusion of
In re Doe, 19 S.W.3d 249 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

a hearing, the trial court denied Jane Doe's application and

issued written findings and conclusions in accordance with

Texas Family Code section 33.003(h). Jane Doe appealed to

the court of appeals, which affirmed the trial court's judgment

without an opinion. She now appeals to this Court. See id. §

33.004(f). She contends that she has conclusively established

that she is mature and is sufficiently well informed to make

a decision about terminating her pregnancy without notifying

her parents. She also has presented a limited argument that the

trial court erred in failing to conclude that notification would

not be in her best interest. See id. § 33.003((i). Because she

did not present this latter issue to the court of appeals, we will

not consider it.

Before we turn to the merits of the issues before us, however,

there are two significant procedural matters that we must

resolve. The first is whether the Family Code prohibits us

from releasing our opinions to the public in these types of

matters. The second is what standard of appellate review

applies in cases arising under sections 33.003 and 33.004 of

the Family Code.

II

[1] Family Code sections 33.003 and 33.004 contain many

provisions designed to ensure the minor's anonymity and

the confidentiality of the judicial bypass proceeding. *252

Among these are provisions that, in effect, direct the trial

court and the court of appeals not to publicly disseminate their

rulings. See TEX. FAM.CODE §§ 33.003(k),(l ); 33.004(c).

Family Code section 33.003 directs that a minor's application

to the trial court, all other documents pertaining to the

proceedings, and the trial court's ruling are confidential and

privileged. See TEX. FAM.CODE §§ 33.003(k), (l ). The

statute is explicit about those who may receive notice of the

trial court's ruling:

(l ) An order of the court issued

under this section is confidential

and privileged and is not subject

to disclosure under Chapter 552,

Government Code, or discovery,

subpoena, or other legal process. The

order may not be released to any

person but the pregnant minor, the

pregnant minor's guardian ad litem,

the pregnant minor's attorney, another

person designated to receive the order

by the minor, or a governmental

agency or attorney in a criminal or

administrative action seeking to assert

or protect the interest of the minor.

TEX. FAM.CODE § 33.003(l ).

Similarly, Family Code section 33.004(c) prohibits the court

of appeals from publishing its ruling:

(c) A ruling of the court of

appeals issued under this section is

confidential and privileged and is not

subject to disclosure under Chapter

552, Government Code, or discovery,

subpoena, or other legal process. The

ruling may not be released to any

person but the pregnant minor, the

pregnant minor's guardian ad litem,

the pregnant minor's attorney, another

person designated to receive the ruling

by the minor, or a governmental

agency or attorney in a criminal or

administrative action seeking to assert

or protect the interest of the minor.

TEX. FAM.CODE § 33.004(c).

The Code's judicial bypass provisions concerning appeals

in this Court do not, however, contain directives regarding

dissemination of opinions or rulings. The Family Code

requires only that a “confidential appeal” shall be available

to any pregnant minor to whom a court of appeals denies

consent:

(f) An expedited confidential appeal

shall be available to any pregnant

minor to whom a court of appeals

denies an order authorizing the minor

to consent to the performance of

an abortion without notification to

either of her parents or a managing

conservator or guardian.

TEX. FAM.CODE § 33.004(f). The requirement of a

“confidential appeal” is not an impediment to publishing our

opinions. We can do so without disclosing the identity of the

minor, the court of appeals, or the trial court.
In re Doe, 19 S.W.3d 249 (2000)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

As the head of the third branch of government with regard

to civil matters, this Court has an obligation to provide

guidance to lower courts through its published opinions.

There would be no means of insuring consistency, uniformity,

and predictability of the law if the court of last resort could

not commit its analyses, reasoning, and decisions to writing

in opinions and disseminate those opinions to the public.

Without some explication from this Court of the meaning

of “mature and sufficiently well informed,” different courts

around the state at both the trial and appellate level would

surely arrive at very different constructions of what the statute

requires. This result would undermine the rule of law that

undergirds our whole system of justice.

By publicly announcing our construction of this statute, the

Legislature and the public will know the meaning that we

have ascribed to it, and can order their behavior accordingly.

In particular, the people, through their elected representatives,

will have full opportunity to change the law, if they so desire,

in light of the way the judiciary is interpreting and applying it.

We note that we are not called upon to express an opinion

about the constitutionality of the provisions of the Family

Code *253 that prohibit the lower courts from making their

rulings publicly available. Those questions must be decided

another day.

III

The second important procedural issue involves the standard

of review that appellate courts are to apply in reviewing trial

court rulings. Because section 33.004 is silent on this issue,

we look to the standards of review we apply to other trial court

decisions.

[2] First, we must determine whether the “mature and

sufficiently well informed” requirement is a question of

fact or of law. Section 33.003 provides that the trial judge

should determine these questions by “a preponderance of the

evidence.” TEX. FAM.CODE § 33.003(i). This requirement

implies that the trial judge is to weigh the evidence and

determine the credibility of the minor or any other witnesses.

These are typical fact-finding functions, performed by a

trial court only after hearing the minor's live testimony and

viewing her demeanor.

[3] Next, we determine whether the trial court's factual

findings on these issues are subject to an abuse of discretion

review standard or a legal and factual sufficiency review

standard. The abuse of discretion standard applies when a

trial court has discretion either to grant or deny relief based

on its factual determinations. See Bocquet v. Herring, 972

S.W.2d 19, 20–21 (Tex.1998). This standard is especially

appropriate when the trial court must weigh competing

policy considerations and balance interests in determining

whether to grant relief. See General Tire, Inc. v. Kepple,

970 S.W.2d 520, 526 (Tex.1998). Thus, the abuse of

discretion standard is typically applied to procedural or

other trial management determinations. See, e.g., National

Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 128

(Tex.1996)(attorney disqualification); City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753–54 (Tex.1995)(admission of

evidence); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852

(Tex.1992)(discovery sanctions).

By contrast, in this case the trial court has no discretion

over the order. The statute provides that if the court

finds that the minor is “mature and sufficiently well

informed,” it “shall enter an order authorizing the minor

to consent to the performance of the abortion without

notification to either of her parents....” TEX. FAM.CODE

§ 33.004(i)(emphasis added). Furthermore, in determining

whether a minor is “mature and sufficiently well informed,”

the trial court is not to weigh policy considerations; it simply

makes a factual determination. When the trial court acts

primarily as a factfinder, appellate courts normally review

its determinations under the legal and factual sufficiency

standards. See Bocquet, 972 S.W.2d at 21; Catalina v.

Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We therefore apply

that standard of review to this appeal. 1

Unlike the courts of appeals, our Court may only engage

in legal sufficiency review. See TEX. CONST. art. V, §

6. In reviewing legal sufficiency, however, we may set

forth factors and principles for lower courts to follow in

determining and reviewing whether a minor is “mature

and sufficiently well informed” to make this decision

without parental notification. See Bocquet, 972 S.W.2d

at 21 (reasonableness and necessity of attorney's fees);

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30–31

(Tex.1994)(gross negligence).

*254 IV

We turn next to the standard of proof the Legislature intended

to require in the parental notification statute. The Texas
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parental notification statute was enacted against a backdrop

of over two decades of decisions from the United States

Supreme Court. One of the seminal opinions regarding

minors and abortion is Bellotti v. Baird, 443 U.S. 622, 99

S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). In Bellotti

a state had enacted a statute that required parental consent

before a physician could perform an abortion on a minor, with

certain limited exceptions. A plurality of the Court reiterated

in Bellotti II what a majority of the Court had previously

held in Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976): “

‘[T]he State may not impose a blanket provision ... requiring

the consent of a parent ... as a condition for abortion of an

unmarried minor,’ ” and that it would be “inappropriate ‘to

give a third party an absolute, and possibly arbitrary, veto over

the decision of the physician and his patient to terminate the

patient's pregnancy, regardless of the reason for withholding

the consent.’ ” Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035

(plurality opinion) (quoting Danforth, 428 U.S. at 74, 96 S.Ct.

2831). The Bellotti II plurality further concluded that parental

consent statutes would not pass constitutional muster unless

the state provided an alternative procedure in which a minor

could receive authorization for an abortion. Id. (plurality

opinion).

Thus, the plurality concluded that a minor must be permitted

an opportunity to show “either: (1) that she is mature enough

and well enough informed to make her abortion decision, in

consultation with her physician, independently of her parents'

wishes; or (2) that even if she is not able to make this decision

independently, the desired abortion would be in her best

interests.” Id. at 643–44, 99 S.Ct. 3035 (plurality opinion).

With regard to the determination of maturity, “the peculiar

nature of the abortion decision requires the opportunity for

case-by-case evaluations of the maturity of pregnant minors.”

Id. at 643 n. 23, 99 S.Ct. 3035 (plurality opinion). The Bellotti

II plurality also concluded that a parental bypass proceeding

must maintain the anonymity of the minor and must be

completed with “sufficient expedition to provide an effective

opportunity for an abortion to be obtained.” Id. at 644, 99

S.Ct. 3035 (plurality opinion). A majority of the United States

Supreme Court has subsequently approved the Bellotti II

parental bypass requirements. See City of Akron v. Akron

Center for Reproductive Health, Inc., 462 U.S. 416, 439–442,

103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ) (holding

parental consent statute unconstitutional in light of Bellotti

II ); Ohio v. Akron Center for Reproductive Health, 497

U.S. 502, 511–13, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990)

(Akron II ) (declining to decide whether parental bypass was

constitutionally required in a notification rather than a consent

statute, but applying Bellotti II requirements). Our Legislature

was obviously aware of this jurisprudence when it drafted the

statute before us.

V

Against this backdrop our Legislature, like the legislatures of

a number of other states, has chosen to require only parental

notification, not parental consent. And like the other states

that require only parental notification, our Legislature did not

specify the particular information a minor must have before

she can be considered “sufficiently well informed” to make

the decision independently. 2

*255 [4] The parental notification statute forbids a

physician from performing an abortion on a pregnant,

unemancipated minor without giving notice to the minor's

parents at least 48 hours before the procedure. See TEX.

FAM.CODE § 33.002(a). But the act allows a pregnant minor

who wants to have an abortion without notifying one of her

parents to “file an application for a court order authorizing the

minor to consent to the performance of an abortion without

notification to either of her parents....” TEX. FAM.CODE

§ 33.003(a). When a minor files such an application, the

court “shall determine by a preponderance of the evidence”

whether:

1. The minor is “mature and sufficiently well informed to

make the decision to have an abortion performed without

notification to either of her parents;” or

2. Notification would not be in the best interest of the

minor; or

3. Notification may lead to physical, sexual, or emotional

abuse of the minor.

TEX. FAM.CODE § 33.003(i). If the court makes any of these

determinations, the court “shall enter an order authorizing

the minor to consent to the performance of the abortion

without notification to either of her parents....” Id. Because

the Legislature used the imperative word “shall,” we conclude

that when a minor meets the statutory threshold, the trial

court must grant the application. See TEX. GOV'T CODE §

311.016(2).

[5] Our focus in construing this statute is to determine the

Legislature's intent; this we discern primarily from the plain
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meaning of the words chosen. See, e.g., Surgitek, Bristol–

Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex.1999);

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d

864, 865 (Tex.1999); Liberty Mutual Ins. Co. v. Garrison

Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). In

section 33.003(i), the Legislature has succinctly stated that

the minor must be “mature and sufficiently well informed

to make the decision to have an abortion performed without

notification to either of her parents....” TEX. FAM.CODE §

33.003(i). The brevity of the requirement does not, however,

mean that it is insubstantial. The Legislature undoubtedly

intended the bypass procedure to be a meaningful one. In

requiring that a minor demonstrate that she is mature and

sufficiently well informed, the Legislature took into account

the gravity and potential consequences of the irreversible

decision to terminate a pregnancy, and sought to assure that

the minor's decision was thoughtful and informed.

[6] Thus, we conclude that a minor is “mature and

sufficiently well informed to make the decision to have

an abortion without notification to either of her parents”

when the evidence demonstrates that the minor is capable

of reasoned decision-making and that her decision is not the

product of impulse, but is based upon careful consideration

of the various options available to her and the benefits, risks,

and consequences of those options. See In re Anonymous,

711 So.2d 475, 477 (Ala.Civ.App.1998); In re Petition of

Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 788 (1997);

In re Petition of Anonymous 2, 253 Neb. 485, 570 N.W.2d

836, 838–39 (1997); In re Jane Doe, 126 N.C.App. 401, 485

S.E.2d 354, 356 (1997). The decisions of a number of other

state courts construing similar statutes, which were available

to the Legislature at the time they enacted section 33.003(i),

inform our interpretation. See Ex Parte Anonymous, 618

So.2d 722, 725 (Ala.1993); In re Petition of Jane Doe for

Waiver of Notice, 19 Kan.App.2d 204, 866 P.2d 1069, 1074–

75 (1994); *256 In re Mary Moe, 18 Mass.App.Ct. 727, 469

N.E.2d 1312, 1315 (1984); Cf. In re Anonymous, 674 So.2d

1317, 1318 (Ala.Civ.App.1995); In re Anonymous, 655 So.2d

1052, 1054 (Ala.Civ.App.1995).

Obviously, whether a minor is mature and sufficiently well

informed is a highly individualized decision that must take

into account the diverse background and circumstances

of each applicant for waiver of parental notification. An

examination of decisions from other states' courts reveals

consistent themes. All of the decisions wrestle with “mature”

and “informed,” two concepts that overlap to some extent,

but which are also distinct. States make a distinction between

the information, and the minor's ability to understand that

information and deal with it responsibly.

The states that have written on this issue, including Alabama,

Kansas, Massachusetts, Nebraska, North Carolina, and Ohio

require that the minor has been informed as to the alternatives

to abortion, to the nature of the abortion procedure and its

risks, and the physical, emotional, and social consequences

of either abortion or bringing the pregnancy to term. The

Alabama Court of Civil Appeals has suggested that the

information about the risks and options should be targeted to

an individual's specific circumstances. See In re Anonymous,

650 So.2d 923, 925 (Ala.Civ.App.1994). But the courts

are also careful to ensure that the minor understands that

information, and has assimilated it in a mature way. To this

end, they have inquired into how a minor might respond

to certain contingencies, particularly assessing whether the

minor will seek counseling in the event of physical or

emotional complications. Many courts have assessed the

minor's school performance and activities, as well as the

minor's future and present life plans. A few courts have

explicitly assessed the minor's character and judgment

directly. Most of the decisions have also considered the

minor's job experience and experience handling finances,

particularly assessing whether the minor is aware of the

financial obligations inherent in raising a child. Almost

all courts conduct the maturity inquiry, either explicitly

or implicitly, against the background circumstances of the

minor's experience. These include the minor's relationship

with her parents, whether she has social and emotional

support, particularly from the male who would be a father,

and other relevant life experiences.

VI

[7] [8] We conclude that a trial court should take into

account the totality of circumstances the minor presents in

determining whether she is mature and sufficiently well

informed. In order to establish that she is sufficiently well

informed, the minor must make, at a minimum, three

showings.

First, she must show that she has obtained information from

a health-care provider about the health risks associated with

an abortion and that she understands those risks. That would

include an understanding of the risks associated with the

particular stage of the minor's pregnancy.
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Second, she must show that she understands the alternatives

to abortion and their implications. As with any medical

procedure, part of making an informed decision is knowing

the available alternatives. A minor should be able to

demonstrate that she has given thoughtful consideration to her

alternatives, including adoption and keeping the child. She

should also understand that the law requires the father to assist

in the financial support of the child. See TEX. FAM.CODE §

154.001; see also TEX. CONST. art. XVI, § 28 (garnishment

of wages for court-ordered child support payments). She

should not be required to justify why she prefers abortion

above other options, only that she is fully apprised of her

options.

Third, she must show that she is also aware of the emotional

and psychological aspects of undergoing an abortion, which

can be significant if not severe for some women. She

must also show that she has *257 considered how this

decision might affect her family relations. Although the minor

need not obtain this information from licensed, professional

counselors, she must show that she has received information

about these risks from reliable and informed sources, so

that she is aware of and has considered these aspects of the

abortion procedure.

[9] While a minor must demonstrate a knowledge and

appreciation of the various considerations involved in her

decision, she should not be required to obtain information or

other services from any particular provider. Nor should she

be required to meet with or review materials that advocacy

or religious groups provide. The inquiry is whether she has

obtained information on the relevant considerations from

reliable sources of her choosing that enable her to make a

thoughtful and informed decision.

[10] [11] A determination of maturity necessarily involves

more trial court discretion. However, if a court determines

that a minor has not demonstrated that she is mature enough

to make a decision to undergo an abortion, then the court

should make specific findings concerning its determination so

that there can be meaningful review on appeal. Similarly, if a

court concludes that a minor is not credible in some respect

that directly relates to its determination of maturity, the court

should make specific findings in that regard as well.

[12] A minor who can show that she is sufficiently well

informed may also establish in the process that she is mature.

In making a determination of maturity, there are, however,

some criteria that should not be relied upon as conclusively

showing immaturity. The United States Supreme Court has

said that one of those is the fact, standing alone, that the

pregnant female is a minor. That Court has also admonished

that states and courts “may not make a blanket determination

that all minors ... are too immature to make this decision or

that an abortion never may be in the minor's best interests

without parental approval.” Akron I, 462 U.S. at 440, 103

S.Ct. 2481. A child's age, educational background or grades

in school, while indicative of some level of maturity, are not

conclusive on the issue of maturity. Nor is participation in

extra-curricular activities. It should also go without saying

that a minor's socio-economic status should not bear on the

decision.

VII

As discussed earlier in this opinion, the standard of review is

legal sufficiency. Thus, unless Jane Doe has shown as a matter

of law that she is mature and sufficiently well informed, we

would ordinarily affirm the judgment of the court of appeals.

After reviewing this record, we conclude that she has not

established as a matter of law that she is sufficiently well

informed to make the decision to have an abortion performed

without notifying her parents. But because this is a matter of

first impression, in the interests of justice, we remand to the

trial court for further hearing and consideration. 3

CONCLUSION

For the reasons we have discussed, we reverse the judgment of

the court of appeals and remand this case to the trial court for

further hearing and consideration. We have already indicated

the time stricture within which further proceedings in the

trial court must be concluded. Importantly, the court should

schedule its proceedings with the additional consideration

that it must maintain the minor's confidentiality. Section

33.003 allows the trial court to give proceedings of this

type “precedence over other pending matters to the extent

necessary to assure that the *258 court reaches a decision

promptly.” TEX. FAM.CODE § 33.003(h).

Justice ENOCH filed a concurring opinion, in which Justice

BAKER, Justice HANKINSON, and Justice O'NEILL join.
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Justice OWEN filed a concurring opinion, in which Chief

Justice PHILLIPS joined as to Parts I and III.

Justice HECHT filed a dissenting opinion, in which Justice

ABBOTT joins.

Justice ENOCH, joined by Justice BAKER, Justice

HANKINSON, and Justice O'NEILL, concurring.

I join parts I, II, IV, V, and VI of the Court's opinion,

and I join the Court's judgment remanding this appeal in

the interests of justice. I disagree with parts III and VII

for two reasons. One, I believe the standard of review on

appeal in a proceeding under the parental notification act

should be abuse of discretion, not factual or legal sufficiency.

And two, I emphasize that in a proceeding under the

parental notification act, our disposition today, remand, is

inappropriate except in extraordinary circumstances. Because

today we are construing the parental notification act for the

first time, and because I agree it is in the interests of justice to

give Jane Doe an opportunity to meet the statutory standard

as the Court has construed it, I conclude this case presents

exceptional circumstances warranting a remand.

I join the Court's construction of the statutory phrase “mature

and sufficiently well-informed to make the decision to have

an abortion performed without notification to either of her

parents.” 1 But I do not agree that the standard of review

for appellate review of a trial court's decision that a minor is

not mature or sufficiently well informed is factual and legal

sufficiency. Because of the nature of the unusual proceedings

contemplated under sections 33.003 and 33.004 of the Family

Code, I would conclude that the appropriate standard of

review is abuse of discretion.

Unlike virtually any other judicial proceeding I am aware

of, this proceeding is not only “non-adversarial,” but notice

to the very persons (besides the minor) likely to have the

most interest in the outcome of the hearing—the parents who

stand not to be notified of their minor child's decision—is

prohibited. And the secrecy of the proceeding assures that the

hearing will be entirely one-sided.

Because of the nature of this proceeding, then, all the

evidence in the record will be undisputed. But the standard

the Legislature chose for trial courts to apply in determining

whether a minor is “mature and sufficiently well informed”—

preponderance of the evidence—is typically associated

with weighing conflicting evidence after an adversarial

proceeding. Thus, we have an anomalous situation—the

Legislature directs that the minor must demonstrate by a

preponderance of the evidence (which generally means more

likely than not) that she is mature and sufficiently wellinformed, yet because the minor is the only party presenting

evidence on these elements, there is no other evidence against

which to weigh it to see if it is more likely than not.

A preponderance standard for trial court hearings cannot

establish the standard of review on appeal, precisely because

of the unique, unopposed nature of the proceedings. Since the

hearing in the trial court is not adversarial and no weighing

of disputed evidence can occur, there is no basis for appellate

courts to defer to the trial courts' fact-finding function, as we

would in any other ordinary appeal. In other words, unless

the evidence in the record raises a question about the minor's

credibility, the trial court is not free to simply disregard

the undisputed facts provided by the minor. Whether those

undisputed facts demonstrate that the minor is “mature and

sufficiently well informed to make *259 the decision to have

an abortion” is a legal question. And as we have said before,

trial courts have no discretion in determining what the law is

or in applying the law to the facts. 2

Thus, in these unique, non-adversarial, parental notification

proceedings, I would hold that Texas appellate courts must

review a trial court's decision under an abuse of discretion

standard. That is, did the trial court correctly apply the law to

the undisputed facts in the record?

Moreover, again because of the unusual nature of the

proceedings, I believe this Court should review the trial

court's decision, rather than the court of appeals' ruling,

for abuse of discretion because a case under the parental

notification statute reaches us only when the court of appeals

has affirmed the trial court's denial of a minor's application

for waiver of parental notice. Thus, the focus in this Court

should remain on whether the trial court misapplied the law

to the undisputed facts. 3

An abuse of discretion standard would not diminish the trial

court's role under the statute. It remains the trial court's role

to determine the witness's credibility, as the trial court hears

the minor's testimony in person and is in the best position to

assess the minor's credibility. But the trial court's discretion to

make credibility determinations should not be unfettered. The

trial court cannot simply disregard the minor's uncontested

testimony. To decide otherwise—that a trial court is free

to disregard the undisputed evidence despite no question of

veracity—would put the trial court's legal decision beyond
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review. Consequently, whether the trial court can disregard

the undisputed evidence should depend on whether the record

before the court raises a significant, legitimate question about

the minor's veracity.

As mentioned, the parental notification statute prohibits not

only general notice of the proceeding, but specific notice to

the very people who likely would have the greatest interest

in the minor's application—her parents. 4 It appears to me,

therefore, that the Legislature intended for these proceedings

to be unopposed in all circumstances. That means that the

Legislature did not intend for the trial courts to assume

the role of an opposing party and reject the undisputed

evidence in the absence of a reasonable, factual basis to

question the minor's credibility. Under similar circumstances,

other courts have also concluded that the trial court may

not simply choose to discredit the evidence offered by the

minor unless it is “improbable or unreasonable or is shown

to be untrustworthy.” 5 In the case before us, for example,

if the record revealed that, despite her testimony that she

had conducted Internet research, Doe did not have access

to a computer, the record itself would raise a significant,

legitimate question about her veracity. (Of course, no such

questions appear in this record.)

Furthermore, I note that throughout the Family Code a trial

court makes decisions bearing on the best interests of a child.

And appellate courts review those decisions under an abuse

of discretion standard. 6 This fact strengthens my conviction

that an abuse of discretion standard should apply here. In this

case, the best interests of the child is the subject of two of the

three inquiries that the statute sets forth. The same level of

review should apply to the trial court's decisions regardless

of the provision under review. But the Court would apply a

different level of review to the trial court's decision relating

*260 to maturity and adequacy of information. This cannot

but lead to confusion and inconsistency.

Nonetheless, having concluded that the standard of review

should be abuse of discretion, I cannot say that the trial

court in this case demonstrably acted “without regard to

guiding legal principles.” 7 The primary reason for this is that

we have not before had the opportunity to provide guiding

legal principles. That this trial court may not have properly

comprehended what the Legislature meant by the phrase

“mature and sufficiently well informed” does not equate to

an abuse of discretion in this instance, where no published

appellate decision existed to guide the trial court. Thus, this

case presents just such an exceptional circumstance and a

remand in the interest of justice is warranted. 8

But now that this Court has announced the guiding legal

principles, trial courts are not free to disregard those

principles and substitute their own for determining whether

a minor demonstrates that she is mature and sufficiently well

informed to make this most difficult of decisions. And while

the possibility exists that other exceptional circumstances

in some future situation might also warrant a remand, I

emphasize that such a result is contemplated neither by the

statute 9 nor by our rules. 10 The time-sensitive nature of the

proceedings and the constitutional implications of the specter

of protracted hearings and appeals counsel very strongly

against remand as an appellate disposition. And our rules

expressly preclude a court of appeals from remanding. 11

But here, where the minor has presented a record that

demonstrates a high level of maturity, and where neither the

minor nor the trial court had the benefit of guidance from

this (or any other appellate decision) on the meaning of the

phrase “mature and sufficiently well informed,” I believe that

it is in the best interest of justice to allow the minor the

opportunity to meet the test the Court elaborates today for

waiver under the act of notification to her parents to consent

to the procedure. Thus, I join the Court's judgment.

Justice OWEN, joined by Chief Justice PHILLIPS as to Parts

I and III, concurring.

I join in the Court's judgment reversing the court of appeals

and remanding this matter to the trial court for further

proceedings, but I cannot join the opinion of the Court in parts

IV–VII. The Court refuses to give full effect to the statutory

mandate that before a minor can obtain authorization to

proceed with an abortion without notifying one of her parents,

she must be “mature and sufficiently well informed to make

the decision.” TEX. FAM.CODE § 33.003(i). The Court's

interpretation of “sufficiently well informed” falls short of

what the Legislature had in mind. Most minors will, with

the assistance of counsel, be able to meet the requirements

set by the Court, which are minimal. The plain language of

the Family Code and its historical backdrop require a more

substantive showing.

I
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The history of how and why the bypass procedure in section

33.003 of the Family Code came to be sheds light on how it

should be construed. Over twenty years ago, the United States

Supreme Court *261 handed down two landmark decisions

dealing with minors and abortion. See Planned Parenthood

of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49

L.Ed.2d 788 (1976); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct.

2857, 49 L.Ed.2d 844 (1976) (Bellotti I ) (issued the same day

as Danforth ). In Danforth, the Supreme Court held for the

first time that a parent does not have an absolute “veto” over

the decision of a minor to terminate her pregnancy:

[T]he State may not impose a blanket

provision ... requiring the consent of

a parent ... as a condition for abortion

of an unmarried minor.... [T]he State

does not have the constitutional

authority to give a third party an

absolute, and possibly arbitrary, veto

over the decision of the physician and

his patient to terminate the patient's

pregnancy, regardless of the reason for

withholding consent.

Danforth, 428 U.S. at 74, 96 S.Ct. 2831. The Court further

concluded that “[a]ny independent interest the parent may

have in the termination of the minor daughter's pregnancy is

no more weighty than the right of privacy of the competent

minor mature enough to have become pregnant.” Id. at 75, 96

S.Ct. 2831.

In so holding, the Supreme Court said that it did not mean to

suggest that “every minor, regardless of age or maturity, may

give effective consent for termination of her pregnancy.” Id.

at 75, 96 S.Ct. 2831. Consistent with that statement, the Court

registered its concern that there are “unquestionably greater

risks of inability to give an informed consent” for a minor. See

Bellotti I, 428 U.S. at 147, 96 S.Ct. 2857. The Court suggested

that a statute requiring parental consent before a minor could

obtain an abortion might be constitutional if there were also

a provision that allowed the minor to go to court to obtain

consent. Id.

In Bellotti II, a plurality of the Supreme Court adopted what

the Court had previously suggested in Bellotti I by holding

that parental consent statutes would not pass constitutional

muster unless the State provided an alternative procedure in

which a minor could receive authorization for an abortion.

See Bellotti v. Baird, 443 U.S. 622, 646–47, 99 S.Ct. 3035,

61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti II ). The

Bellotti II plurality concluded that a minor must be permitted

an opportunity to show “either: (1) that she is mature enough

and well enough informed to make her abortion decision, in

consultation with her physician, independently of her parents'

wishes; or (2) that even if she is not able to make this decision

independently, the desired abortion would be in her best

interests.” Id. at 643–44, 99 S.Ct. 3035. With regard to the

determination of maturity, Bellotti II stated that “the peculiar

nature of the abortion decision requires the opportunity for

case-by-case evaluations of the maturity of pregnant minors.”

Id. at 643 n. 23, 99 S.Ct. 3035. The Bellotti II plurality also

concluded that a parental bypass proceeding must maintain

the anonymity of the minor and must be completed with

“sufficient expedition to provide an effective opportunity for

an abortion to be obtained.” Id. at 644, 99 S.Ct. 3035.

A majority of the United States Supreme Court has

subsequently approved the Bellotti II parental bypass

requirements. See City of Akron v. Akron Ctr. for Reprod.

Health, Inc., 462 U.S. 416, 439–42, 103 S.Ct. 2481, 76

L.Ed.2d 687 (1983) (Akron I ) (holding parental consent

statute unconstitutional in light of Bellotti II ); Ohio v. Akron

Ctr. for Reprod. Health, 497 U.S. 502, 510–13, 110 S.Ct.

2972, 111 L.Ed.2d 405 (1990) (Akron II ) (declining to decide

whether parental bypass was constitutionally required in a

notification rather than a consent statute, but applying Bellotti

II requirements).

A question specifically left open in United States Supreme

Court decisions is whether the parental bypass procedure

set forth above is constitutionally mandated when a statute

requires only that a parent be notified that the minor is about

to undergo an abortion as opposed to a statute *262 that

requires parental consent. See, e.g., Lambert v. Wicklund,

520 U.S. 292, 295, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997)

(per curiam); Akron II, 497 U.S. at 510, 110 S.Ct. 2972.

Nevertheless, there is reasoning in Bellotti II that would

suggest that the United States Supreme Court might hold

that bypass procedures are necessary in notification statutes.

The statute under consideration in Bellotti II required that a

parent be notified when a minor brought judicial proceedings

to obtain consent. See 443 U.S. at 646, 99 S.Ct. 3035.

The Supreme Court struck down this provision, observing “

‘there are parents who would obstruct, and perhaps altogether

prevent, the minor's right to go to court.’ ” Id. at 647, 99 S.Ct.

3035 (quoting the district court). The Court continued, stating

that every minor must have the opportunity to go to court

without first notifying a parent:
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[M]any parents hold strong views on the subject of

abortion, and young pregnant minors, especially those

living at home, are particularly vulnerable to their parents'

efforts to obstruct both an abortion and their access to court.

It would be unrealistic, therefore, to assume that the mere

existence of a legal right to seek relief in superior court

provides an effective avenue of relief for some of those who

need it the most.

* * *

[E]very minor must have the opportunity—if she so desires

—to go directly to a court without first consulting or

notifying her parents. If she satisfies the court that she is

mature and well enough informed to make intelligently the

abortion decision on her own, the court must authorize her

to act without parental consultation or consent.

Id. (plurality opinion) (emphasis added).

Undoubtedly cognizant of these holdings and admonitions

of the United States Supreme Court, the Texas Legislature

enacted amendments to the Family Code that require parental

notification before a minor may obtain an abortion, but

the Legislature also included a bypass provision. See TEX.

FAM.CODE §§ 33.002, 33.003. The bypass procedures

substantially track those set forth in Bellotti II. See id. §

33.003. A minor may apply to a court for an order authorizing

her to consent to an abortion without notification of a parent

or guardian. See id. The trial court may not authorize a

minor to consent to an abortion unless it determines by a

preponderance of the evidence

whether the minor is mature and

sufficiently well informed to make the

decision to have an abortion performed

without notification to either of her

parents or a managing conservator or

guardian, whether notification would

not be in the best interest of the minor,

or whether notification may lead to

physical, sexual, or emotional abuse of

the minor.

Id. § 33.003(i).

II

The bypass procedure in section 33.003 does not mean,

however, that the Legislature intended for a minor to

proceed with an abortion based on a minimal showing.

The Legislature has required that the minor be mature

and sufficiently well informed to make the decision. In

determining what the Legislature meant by those terms, it

again must be borne in mind that decisions of the United

States Supreme Court have dominated abortion law. There

is a substantial body of law from that Court regarding what

a state may and may not require to demonstrate a woman's

informed consent to an abortion. That law should guide

interpretation of section 33.003.

Given the context in which section 33.003 of the Family Code

was enacted, I can only conclude that the Legislature intended

to require minors to be informed about the decision to have

an abortion to the full extent that the law, as interpreted by the

United States Supreme Court, will allow. Accordingly, I turn

to what the United States Supreme Court has said regarding

*263 informed consent and what states may require.

III

The United States Supreme Court has made it clear that when

a woman is making a decision about abortion, particularly

when she is a minor, a state can require consideration of

factors in addition to the physical risks of the procedure.

Those include recognition that there are profound philosophic

arguments surrounding abortion, consideration of the impact

that the procedure will have on the fetus, an understanding

that there may be an emotional and psychological impact

following an abortion and later in life, and consideration of

how the decision to obtain an abortion may impact present

and future familial relationships.

With regard to the philosophic aspects of the abortion

decision, a majority of the Court observed in Akron II that:

A free and enlightened society

may decide that each of its

members should attain a clearer, more

tolerant understanding of the profound

philosophic choices confronted by a

woman who is considering whether

to seek an abortion. Her decision will

embrace her own destiny and personal

dignity, and the origins of the other

human life that lie within the embryo.
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Akron II, 497 U.S. at 520, 110 S.Ct. 2972.

Other members of the Supreme Court again acknowledged

the philosophic and social aspects of the abortion decision

in Planned Parenthood v. Casey, 505 U.S. 833, 872, 112

S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).

They further acknowledged that when an adult woman is

considering whether to have an abortion, a state may take

steps to ensure that the decision is thoughtful and informed:

Though the woman has a right to choose to terminate or

continue her pregnancy before viability, it does not at all

follow that the State is prohibited from taking steps to

ensure that this choice is thoughtful and informed. Even

in the earliest stages of pregnancy, the State may enact

rules and regulations designed to encourage her to know

that there are philosophic and social arguments of great

weight that can be brought to bear in favor of continuing

the pregnancy to full term and that there are procedures and

institutions to allow adoption of unwanted children as well

as a certain degree of state assistance if the mother chooses

to raise the child herself. “ ‘[T]he Constitution does not

forbid a State or city, pursuant to democratic processes,

from expressing a preference for normal childbirth.’ ” It

follows that States are free to enact laws to provide a

reasonable framework for a woman to make a decision

that has such profound and lasting meaning. This, too, we

find consistent with Roe 's central premises, and indeed the

inevitable consequence of our holding that the State has an

interest in protecting the life of the unborn.

Id. at 872–73, 112 S.Ct. 2791 (citation omitted) (emphasis

added).

In Casey, the Chief Justice, joined by three other Justices,

agreed with the plurality that the informed consent provisions

at issue did not unduly burden the abortion decision. See id.

at 969, 112 S.Ct. 2791 (Rehnquist, C.J., concurring in the

judgment in part and dissenting in part). In the Chief Justice's

separate opinion, the concurring Justices observed that a state

“has an interest in preserving unborn life,” and that it may take

steps to ensure “that a woman's decision to abort is a wellconsidered one, and reasonably furthers the State's legitimate

interest in maternal health and in the unborn life of the fetus.”

Id. The Chief Justice's opinion further concluded that a 24–

hour waiting period designed to give a woman time to reflect

on her decision “ ‘is surely a small cost to impose to ensure

that the woman's decision is well considered in light of its

certain and irreparable consequences on fetal life, and the

possible effects on her own.’ ” *264 Id. at 969–70, 112

S.Ct. 2791 (quoting Akron I, 462 U.S. at 474, 103 S.Ct. 2481

(O'Connor, J., dissenting)).

Initially, the Supreme Court had struck down as

unconstitutional statutes that were fairly specific in their

requirements for informed consent to an abortion. See

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747, 759–65, 106 S.Ct. 2169, 90

L.Ed.2d 779 (1986); Akron I, 462 U.S. at 442–45, 103 S.Ct.

2481. However, in Casey, a majority of the Justices overruled

Thornburgh and Akron I, at least in part. See Casey, 505 U.S.

at 881–87, 112 S.Ct. 2791 (plurality opinion); id. at 966–69,

112 S.Ct. 2791 (Rehnquist, C.J., concurring in the judgment

in part and dissenting in part). Although the constitutional

limits on what a state may require for informed consent are

not entirely clear after the Supreme Court's decision in Casey,

it is clear that a state may require a “thoughtful and informed”

decision that encourages a woman to consider that there are

“philosophic and social arguments of great weight that can

be brought to bear.” Casey, 505 U.S. at 872, 112 S.Ct. 2791

(plurality opinion); see also Akron II, 497 U.S. at 520, 110

S.Ct. 2972. With regard to the emotional and psychological

consequences of an abortion for a minor, a majority of the

Supreme Court in Akron II said: “ ‘The medical, emotional,

and psychological consequences of an abortion are serious

and can be lasting; this is particularly so when the patient

is immature.’ ” Akron II, 497 U.S. at 519, 110 S.Ct. 2972

(quoting H.L. v. Matheson, 450 U.S. 398, 411, 101 S.Ct. 1164,

67 L.Ed.2d 388 (1981)).

IV

Today, this Court refuses to acknowledge the foregoing body

of law or the likelihood that our Legislature relied on it when it

said that a minor must be “sufficiently well informed to make

the decision to have an abortion.” The Court chooses to ignore

that the Legislature intended section 33.003 to encompass

factors other than physical risk to the pregnant minor and

alternatives to abortion. The Legislature did not intend for

the “mature and sufficiently well informed requirement” of

section 33.003 to have as limited a focus as the Court ascribes

to it. I would hold that a minor must demonstrate more.

The Court properly requires a minor to consult a health-care

provider about the general risks of an abortion. But that is

insufficient. There may be risks that are heightened for or

unique to an individual. A minor cannot make a sufficiently
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well-informed decision about an abortion if she does not

know the risks to her of that procedure. In this regard, the

Family Code expressly allows a pregnant, unmarried minor

to consent to medical treatment by a physician, short of an

abortion itself. See TEX. FAM.CODE § 32.003(a)(4).

The Court recognizes that just as there are physical

risks associated with an abortion, there are emotional and

psychological consequences, which can be significant for

some women. But the Court's treatment of this aspect of the

abortion decision—one of the most important considerations

—is superficial. I would require a minor to demonstrate that

she has sought and obtained meaningful counseling from

a qualified source about the emotional and psychological

impact she may experience now and later in her life as a result

of having an abortion. She should be able to demonstrate to a

court that she understands that some women have experienced

severe remorse and regret. She should also indicate to the

court that she is aware of and has considered that there are

philosophic, social, moral, and religious arguments that can

be brought to bear when considering abortion. See generally

Casey, 505 U.S. at 872, 112 S.Ct. 2791 (plurality opinion). A

court cannot, of course, require a minor to adopt or adhere to

any particular philosophy or to profess any religious beliefs.

But requiring a minor to exhibit an awareness that there

are issues, including religious ones, surrounding the abortion

decision is not prohibited by the *265 Establishment Clause.

Cf. Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S.Ct. 2105,

29 L.Ed.2d 745 (1971) (holding that a statute must have a

secular legislative purpose, that its principal or primary effect

must be one that neither advances nor inhibits religion, and

that it must not foster an excessive government entanglement

with religion). The State's statutorily expressed interest in

section 33.003 is to ensure a well-informed decision, which

includes a mature understanding of all issues surrounding the

decision to have an abortion.

An informed appreciation of the emotional and psychological

aspects of terminating a pregnancy includes an understanding

of the impact the procedure will have on the fetus. As Justices

O'Connor, Kennedy, and Souter observed in Casey, failure to

obtain a full understanding of this aspect of the procedure can

lead to “devastating psychological consequences” afterwards:

Nor can it be doubted that most women

considering a abortion would deem

the impact on the fetus relevant, if

not dispositive, to the decision. In

attempting to ensure that a woman

apprehend the full consequences of

her decision, the State furthers the

legitimate purpose of reducing the risk

that a woman may elect an abortion,

only to discover later, with devastating

psychological consequences, that her

decision was not fully informed.

Casey, 505 U.S. at 882, 112 S.Ct. 2791.

In this same vein, these Justices explained, “[I]n order for

there to be informed consent to a kidney transplant operation

the recipient must be supplied with information about risks to

the donor as well as risks to himself or herself.” Id. at 883,

112 S.Ct. 2791. No less should be required for an abortion.

The Court today gives a nod to the fact that a decision

to have an abortion may impact relationships with family

members. I would require a minor to demonstrate that she

has thoughtfully considered the potential impact on her

relationships with her parents and other family members if

they learn now or sometime in the future that she has had

an abortion. She should also exhibit some consideration of

how this decision may impact her future relationships, such

as those she may have with a husband or future children. A

minor should also have considered the impact that continuing

her pregnancy would or might have on these relationships.

While a minor must demonstrate a knowledge and

appreciation of the various considerations involved in her

decision, I agree with the Court that she should not be required

to obtain counseling or other services from a particular

provider. The internet should not, however, suffice. Nor

should advice from laypersons who are not specifically

trained and experienced in counseling pregnant minors

suffice. The “State's interest is in ensuring that the woman's

consent is informed and unpressured; the critical factor is

whether she obtains the necessary information and counseling

from a qualified person, not the identity of the person from

whom she obtains it.” Akron II, 497 U.S. at 518, 110 S.Ct.

2972. I note, however, that a majority of the Supreme Court

has observed that “ ‘[i]t seems unlikely that [a minor] will

obtain adequate counsel and support from the attending

physician at an abortion clinic, where abortions for pregnant

minors frequently take place.’ ” H.L. v. Matheson, 450 U.S.

398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) (quoting

Planned Parenthood v. Danforth, 428 U.S. 52, 91, 96 S.Ct.

2831, 49 L.Ed.2d 788 (1976) (concurring opinion)). By the

same token, it seems unlikely that a minor would obtain all

the information necessary for a well-informed decision about
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proceeding with an abortion, such as medical information,

solely from a religious organization or an advocacy group.

V

I agree with the Court that Jane Doe has not established

as a matter of law that *266 she is sufficiently well

informed to make the decision to have an abortion performed

without notification of one of her parents. With regard to the

emotional and psychological consequences of an abortion,

Jane Doe testified that she understood that there “is some

emotional factor that can distress you and there is a slight

risk of infection, not much.” When asked if she anticipated

seeking additional counseling if she were authorized by the

Court to consent to an abortion, she said, “I haven't thought

about it, but I think I do not need further counseling. I feel that

my decision, and [sic] once it is followed through, would be

fine. I am aware of it.” She also testified that she had talked

with an adult relative who had an abortion as a minor. That

relative told Jane Doe that she has not regretted her decision.

Jane Doe had also talked to two of her friends who had

become pregnant as minors and were raising their respective

children. One was of college age and told Jane Doe that “she

really wishes that she hasn't [sic] had her child.” This friend

is currently unable to attend college or to support herself and

her child, and she intends to move back in with her parents.

Jane Doe's other friend is fifteen and has married the father

of her child. Jane Doe perceives that they are having “a very

hard life,” and her friend told her that “they wish they could

take it back.” Jane Doe also talked to a friend who has had an

abortion. That friend told her that her own decision to have

an abortion was “a good thing” and that she does not regret it.

The fact that Jane Doe has sought advice from friends and

family indicates that she is seeking information as a mature

person would do. Minors in Jane Doe's position should

not be discouraged from asking for counsel and support

from people who know and care about them. But talking to

friends and family and obtaining anecdotal information is not

equivalent to receiving in-depth counseling and information

from sources qualified by training and experience. She

expressed no appreciation that many women experience

emotional and psychological problems as a consequence of

their decision or why that is so.

With regard to alternatives to abortion, Jane Doe exhibited

only the most superficial consideration. Finally, she did not

demonstrate that she has considered the impact a decision to

have an abortion might have on her relationships with her

parents or others or her future relationships.

Because Jane Doe's proof was deficient, the trial court did

not err in denying her application. I agree with the Court,

however, that because no court has ever construed section

33.003, this matter should be remanded in the interest of

justice.

Accordingly, I join only in parts I, II, and III of the Court's

opinion, and I join the judgment.

Justice HECHT, joined by Justice ABBOTT, dissenting.

The Court today deals a heavy blow to parents' fundamental,

constitutional rights to raise their children, rights the

Legislature had absolutely every intention of protecting by

passing the Parental Notification Act in 1999. 1 Described by

one of its sponsors, Senator Florence Shapiro, as a “parental

rights bill”, the Act was plainly meant to encourage minors

to seek their parents' advice and counsel in making what

the United States Supreme Court has sympathetically called

the “grave and indelible” 2 decision whether to have an

abortion. The Act permits a judge to authorize a minor to

make the decision herself if she is “mature and sufficiently

well informed”. But, explains the Court, all that really

means is that a minor must know something of the health

risks of the abortion procedure (which is not too hard,

*267 since for most women the physical risks are easily

assessed), the alternatives to abortion (although she need not

explain her choice among them), and, from “reliable and

informed sources”, 3 whatever that means, the emotional and

psychological aspects of having an abortion. To think that a

minor should choose abortion based merely on such antiseptic

considerations trivializes the decision. As the Court reads the

statute, no one need counsel a minor, as her parents should

if they were told of her situation, that the family, social,

moral, and religious aspects of her decision may radically

affect her life, her family, and her future. Of such things—the

really important part of the calculus of the abortion decision

—a minor can be largely unappreciative and still be, in the

Court's view, well informed. She need not have the benefit of

differing viewpoints; she may obtain all her information from

abortion proponents. “Well informed”, for the Court, means

only that a minor has thought about what she knows, not that

she knows what to think about.

The Court does not base its statutory interpretation of

“mature” and “well informed” on the ordinary meanings of
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those words, or on the purposes the Legislature intended

them to achieve, or on the United States Supreme Court

cases from which they were undoubtedly drawn, but on its

own predilections. Other states' laws cited by the Court vary

widely, some specifying the information a woman must be

given, others prescribing only a general standard, and none

shedding more than a faint light on the proper construction of

Texas' statute. The result of today's decision is that it is not

much harder now for a minor to obtain an abortion without

telling her parents than it was before the Parental Notification

Act was passed. Mostly, the Legislature has wasted a lot of

time and energy. Before the statute a minor needed a willing

clinic; now she just needs a lawyer, whose fees will be paid

by the State.

The essential intent of the Parental Notification Act, as I read

it, is that if the State is going to cut off a parent's right to advise

a minor about her pregnancy, and to authorize the minor to

choose abortion without the benefit of parental involvement,

then the State must ensure that the minor has had the same

kind of assistance in making her decision that a parent should

provide. The last thing the State should want to hear is a

minor's belated cry: “Why didn't someone tell me?” It is

precisely that kind of assistance that the Legislature intended

to ensure but the Court ignores.

Because I believe the Court's construction of the Act conflicts

with its language, purposes, and sources, I dissent.

I

Jane Doe will be eighteen years old in a few months. She is a

high school senior with a high-“B” or low-“A” grade average,

is involved in some extracurricular activities, and has a parttime job. She has never been married and lives at home with

both her parents. She has a boy friend, a recent high school

graduate, who is attending college. Doe and her boy friend

have been, in her words, “sexually active”, and Doe thinks

her mother is aware of that fact, although they do not discuss

it. Doe is not sure whether her father is aware that she has

had sex.

Doe has used birth control pills for years, but about ten

weeks ago she discovered she was pregnant. About a month

ago she went to a Planned Parenthood office where she

received some information about abortion and, in her words,

“partial counseling”. A week later she applied to the trial court

for authorization to have an abortion without notifying her

parents.

At the hearing, Doe was asked what kind of information she

had obtained and how she had made her decision. Her entire

testimony on this subject is as follows:

*268 Q And what kind of information did you look at to

evaluate your options?

A I got information on abortion and that procedure and

what goes on with it and process of adoption and what

it would actually be to have the child and I looked them

over and I decided the abortion would be the best for me

personally.

Q Briefly describe for the Court, I mean briefly, your

understanding of what the abortion procedure entails.

A Okay. Well, I know I would have to get up and go to

Planned Parenthood early and take a slight sedative, so

be less painful, and they would flush it out and suck out,

remove it, and I would have to go out—to go back in a

month to a checkup, make sure there is no infection, no

hemorrhaging, and that's pretty much how they remove it.

Q Did the information that you examined include

information about medical risks associated with abortion?

A Well, there is a slim chance of death, a very, very rare.

It is a pretty safe procedure, safer than actually having a

child. There is some emotional factor that can distress you

and there is a slight risk of infection, not much. It is a pretty

safe procedure.

Q Did you also attempt to find any information on

alternatives to abortion?

A Yes, I looked at other information such as adoption and

actually having the child.

Q And what information did you look at, what information

did you evaluate in deciding to get an abortion as opposed

to pursuing one of those other options?

A Well, I just thought about my options and what would be

best for me and actually the child and abortion in the long

run I see as being most positive and best one there is.

Q Could you explain to the Court why you made that

decision?
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A Well, for me I feel if I were to have the child, my parents,

they would be slightly upset to actually know that I became

pregnant and they are very against abortion. So, first of

all, they wouldn't even give me that chance to have an

abortion. And I am planning after I graduate this year to go

off [from home] to college. And I would like to pursue my

own career. And I feel if I had the child I couldn't do any

of that now and be a major setback. And I don't favor the

adoption. I know it could be done, but if I were to go nine

months having this child, I would feel to keep it. But that

is—I already decided that would be, would be holding me

back from my future, what I want to become. So, I decided

abortion would be overall the best solution.

Doe has not consulted a physician. She testified that she had

talked with a close relative who had had an abortion when

she was 17. Doe's entire account of the conversation was

that “she told me how she felt about it and what went on.”

Doe's guardian told the trial court that Doe's conversations

with her relative “were pretty limited in terms of having the

real advice”. Doe also testified that she had spoken with three

friends. One, a high school graduate, had a child and could not

go to college but had to move in with her parents. Another,

age 15, was, in Doe's words, “trying to go to school and have

her baby, you know,” and her parents had forced her to marry.

In Doe's words: “[T]hey both have a very hard life right now

and they say they wish they could take it back.” A third had

had an abortion and felt strongly that it was, according to Doe,

“a good thing that she had it done so she can look into the

future and say she's glad she had this done”. Doe did not talk

with anyone else about her decision. No one she spoke with

expressed any reservations about her having an abortion or

about abortion in general.

Doe's guardian asked her to get counseling at a crisis

pregnancy center, and she *269 made an appointment to

do so, but she was unable to locate the office. She testified

that she “did further research over the internet, different sites,

different places, for how they feel about it, you know, what

their procedures were about. So, I looked up on my own.” Doe

did not give further specifics about her internet research. Doe

has not spoken with a member of the clergy. Asked whether

she thought she needed any further counseling on the abortion

procedure or alternatives to it, she said: “I haven't thought

about it, but I do not think I need further counseling. I feel

that my decision, and once it is followed through, would be

fine. I am aware of it.”

Asked why she did not want to involve her parents in her

decision, Doe testified as follows:

Q Could you briefly describe for the Court, you have talked

a little bit, but maybe a little bit more information, as to

why it is you don't believe you can tell your parents about

your decision to have an abortion?

A Okay. Both of my parents are active members at our

church.... And they strongly believe that it's not a wise thing

to do. It is something they do not believe in. They much

rather me have a child. And they wouldn't even give me the

opportunity to have this done. They have it set in their mind

what would go on. It is something they strongly disapprove

of.

* * *

Q You say that your parents, you seem pretty sure that they

would not be in favor of abortion. Have you ... had some

general discussion with them about how they would feel

if someone in their family got an abortion, or what is your

basis for that?

A Well, when my [relative] had her abortion ... my mom

felt very strongly since then that it is something that

she doesn't believe in, something that she doesn't want

anyone else in the family to have done. She feels that

the child would be a part of her and she would not give

me that option. She's told me before that is not a thing

that she does believe in. She doesn't want her daughter to

go through that. It would be wrong. So, she just strongly

disagrees with it.

* * *

Q And can you tell me if there is any reason that you

wouldn't want to have your mother there when you wake

up [from the sedative after the abortion procedure]?

A She wouldn't let me do it. I know for a fact she

wouldn't. She is very against this and she would be

disappointed in me. She wouldn't be there to support

me with it. I know she wouldn't go along with it. She

wouldn't be there in the first place. She totally detests the

fact of people that actually do that.

Having heard this evidence, and after argument by the

guardian and by Doe's attorney, the trial court made the

following findings:
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5. The applicant has not shown by a preponderance of

the evidence that: Applicant is mature and sufficiently

well informed to make the decision to have an abortion

without notification to either of her parents, her managing

conservator, or guardian.

6. The court finds that although applicant shows sign

of being mature, she has not demonstrated that she is

sufficiently well informed about the medical procedures

and the emotional impact of the procedure.

7. The applicant has not shown by a preponderance of the

evidence that: Notifying either of the applicant's parents,

managing conservator or guardian would not be in her best

interest.

II

Texas' Parental Notification Act was enacted in the context

of a developing body *270 of federal constitutional law that

attempts to determine the extent of a woman's right to choose

abortion and the kinds of limitations that can be placed on it.

Understanding this context is necessary to construe and apply

the Texas statute.

A woman's right to choose abortion that the United States

Supreme Court has recognized is not absolute. 4 The Supreme

Court explained in Planned Parenthood v. Casey:

At the heart of liberty is the right to define one's own

concept of existence, of meaning, of the universe, and of

the mystery of human life....

These considerations begin our analysis of the woman's

interest in terminating her pregnancy but cannot end

it, for this reason: though the abortion decision may

originate within the zone of conscience and belief, it is

more than a philosophic exercise. Abortion is a unique

act. It is an act fraught with consequences for others:

for the woman who must live with the implications of

her decision; for the persons who perform and assist in

the procedure; for the spouse, family, and society which

must confront the knowledge that these procedures

exist, procedures some deem nothing short of an act of

violence against innocent human life; and, depending on

one's beliefs, for the life or potential life that is aborted. 5

When the woman is a minor, her right is subject to two

important limitations: the State's interest in protecting the

welfare of all its citizens and the life of the unborn, 6 and the

interest of parents and families in living their lives free from

undue state interference. 7 I examine each of these limitations

in turn.

A

The State has a legitimate interest in protecting its citizens'

welfare, and it may constitutionally favor normal childbirth

and encourage a woman to make that choice. In Casey, the

Supreme Court explained:

Though the woman has a right to choose to terminate or

continue her pregnancy before viability, it does not at all

follow that the State is prohibited from taking steps to

ensure that this choice is thoughtful and informed. Even

in the earliest stages of pregnancy, the State may enact

rules and regulations designed to encourage her to know

that there are philosophic and social arguments of great

weight that can be brought to bear in favor of continuing

the pregnancy to full term and that there are procedures and

institutions to allow adoption of unwanted children as well

as a certain degree of state assistance if the mother chooses

to raise the child herself. “ ‘[T]he Constitution does not

forbid a State or city, pursuant to democratic processes,

from expressing a preference for normal childbirth.’ ” It

follows that States are free to enact laws to provide a

reasonable framework for a woman to make a decision that

has such profound and lasting meaning.

* * *

What is at stake is the woman's right to make the ultimate

decision, not a right to be insulated from all others in doing

so. Regulations which do no more than create a structural

mechanism by which the State, or the parent or guardian of

a minor, may express profound respect for the life of the

unborn are permitted, if they are not a substantial obstacle

to the woman's exercise of the right to choose.

*271 * * *

It cannot be questioned that psychological well-being is a

facet of health. Nor can it be doubted that most women
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considering an abortion would deem the impact on the fetus

relevant, if not dispositive, to the decision. In attempting

to ensure that a woman apprehend the full consequences

of her decision, the State furthers the legitimate purpose

of reducing the risk that a woman may elect an abortion,

only to discover later, with devastating psychological

consequences, that her decision was not fully informed. If

the information the State requires to be made available to

the woman is truthful and not misleading, the requirement

may be permissible.

* * *

[W]e permit a State to further its legitimate goal of

protecting the life of the unborn by enacting legislation

aimed at ensuring a decision that is mature and informed,

even when in so doing the State expresses a preference for

childbirth over abortion. In short, requiring that the woman

be informed of the availability of information relating to

fetal development and the assistance available should she

decide to carry the pregnancy to full term is a reasonable

measure to ensure an informed choice, one which might

cause the woman to choose childbirth over abortion. 8

To sum up, the Supreme Court stated: “[t]he woman's liberty

[to choose abortion] is not so unlimited ... that from the

outset the State cannot show its concern for the life of the

unborn....” 9 “Only where state regulation imposes an undue

burden on a woman's ability to make this decision does the

power of the State reach into the heart of the liberty protected

by the Due Process Clause.” 10

The State's interest is particularly acute when the woman is a

minor. The Supreme Court

has held that the States validly may

limit the freedom of children to

choose for themselves in the making

of important, affirmative choices

with potentially serious consequences.

These rulings have been grounded

in the recognition that, during the

formative years of childhood and

adolescence, minors often lack the

experience, perspective, and judgment

to recognize and avoid choices that

could be detrimental to them. 11

Among those choices, the Supreme Court has insisted, is

abortion:

The State has a strong and legitimate

interest in the welfare of its

young citizens, whose immaturity,

inexperience, and lack of judgment

may sometimes impair their ability

to exercise their rights wisely. That

interest, which justifies state-imposed

requirements that a minor obtain his or

her parent's consent before undergoing

an operation, marrying, or entering

military service, extends also to the

minor's decision to terminate her

pregnancy. 12

B

A minor's right to choose to have an abortion can be restricted

not only by the State's interest in her welfare but by the interest

of her parents and the interest of the family unit. 13 These

interests are subject to constitutional protection. The Supreme

Court has stated:

[T]he demonstration of commitment to the child through

the assumption of personal, financial, or custodial

responsibility *272 may give the natural parent a stake in

the relationship with the child rising to the level of a liberty

interest.

* * *

[T]he family has a privacy interest in the upbringing and

education of children and the intimacies of the marital

relationship which is protected by the Constitution against

undue state interference. 14

This Court has also recognized the constitutional rights of

parents in the relationship with their children. 15

Specifically with respect to parental involvement in a minor's

decision whether to have an abortion, the Supreme Court has

explained:

[T]he guiding role of parents in the upbringing of their

children justifies limitations on the freedoms of minors....

“The child is not the mere creature of the State; those
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who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare him

for additional obligations.” “The duty to prepare the child

for ‘additional obligations' ... must be read to include

the inculcation of moral standards, religious beliefs, and

elements of good citizenship.” This affirmative process of

teaching, guiding, and inspiring by precept and example

is essential to the growth of young people into mature,

socially responsible citizens.

We have believed in this country that this process, in large

part, is beyond the competence of impersonal political

institutions. Indeed, affirmative sponsorship of particular

ethical, religious, or political beliefs is something we

expect the State not to attempt in a society constitutionally

committed to the ideal of individual liberty and freedom

of choice. Thus, “[i]t is cardinal with us that the custody,

care and nurture of the child reside first in the parents,

whose primary function and freedom include preparation

for obligations the state can neither supply nor hinder.”

* * *

[T]he parental role implies a substantial measure of

authority over one's children. Indeed, “constitutional

interpretation has consistently recognized that the parents'

claim to authority in their own household to direct the

rearing of their children is basic in the structure of our

society.”

Properly understood, then, the tradition of parental

authority is not inconsistent with our tradition of

individual liberty; rather, the former is one of the

basic presuppositions of the latter. Legal restrictions on

minors, especially those supportive of the parental role,

may be important to the child's chances for the full

growth and maturity that make eventual participation

in a free society meaningful and rewarding. Under

the Constitution, the State can “properly conclude that

parents and others, teachers for example, who have

[the] primary responsibility for children's well-being are

entitled to the support of laws designed to aid discharge

of that responsibility.”

* * *

[P]arental notice and consent are qualifications that

typically may be imposed by the State on a minor's right

to make important decisions. As immature minors often

lack the ability to make fully informed choices that take

account of both immediate and long-range consequences, a

State reasonably may determine that parental consultation

often is desirable and in the best interest of the minor. It

may further determine, as a general proposition, that such

consultation *273 is particularly desirable with respect

to the abortion decision—one that for some people raises

profound moral and religious concerns. 16

The Supreme Court has held that a parent cannot have

an absolute and arbitrary veto over a child's choice of an

abortion. 17 But by the same token, a parent's right to be

involved in a child's decisions cannot be abrogated without

sufficient reason.

III

In the context of this developing federal constitutional

law, Texas' Parental Notification Act was passed, as

its abundant history repeatedly emphasizes, to encourage

parental participation in a minor's decision to have an

abortion, to discourage abortion generally, and to discourage

teen pregnancy with the warning that an abortion without

parental involvement would not be readily available. The

Act prohibits a physician, with certain exceptions, from

performing an abortion on an unemancipated minor without

giving a parent, managing conservator, or guardian at least 48

hours' actual notice. 18 One exception to this prohibition is

that a court may grant a minor's application to consent to an

abortion without the prescribed notice if the court determines,

by a preponderance of the evidence, that either (1) “the minor

is mature and sufficiently well informed to make the decision

to have an abortion performed without notification to either

of her parents or a managing conservator or guardian,” (2)

“notification would not be in the best interest of the minor,”

or (3) “notification may lead to physical, sexual, or emotional

abuse of the minor.” 19 As I have already noted, petitioner

bases her application on the first two of these grounds. I

consider each ground separately.

A

The Legislature has not defined the phrase “mature and

sufficiently well informed” in section 33.033(i). Accordingly,

we are obliged to give the words their ordinary meaning, 20
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a requirement acknowledged by the Court and then wholly

ignored.

According to the Oxford English Dictionary, the word

“mature”, used in describing a person, means “having the

powers of body and mind fully developed.” With reference

to thought and deliberation, the word means “duly prolonged

and careful.” And as applied to “plans, conclusions, etc.,”

the word means “formed after adequate deliberation.” The

Oxford English Dictionary defines the word “well-informed”

as: “Well equipped with information; fully furnished with

knowledge, whether of a special subject or of things in

general; having a well-stored mind.” Thus defined, the

statutory phrase, “mature and sufficiently well informed”,

refers to the basis for a decision—full information and

knowledge of the subject—as well as the manner in which it

is made—as by a person of ample years and experience.

A decision cannot be well informed if the person making it

does not have a full knowledge of the relevant considerations.

In the present context, this does not mean that a minor

must know all there is to know about abortion as a medical

procedure or the alternatives to it and the factors involved

in a choice. Some of the relevant factors are not hard to

assess, such as the health risks of the procedure to the woman.

But many of the relevant factors involve more unknowns:

the consequences to the fetus, the risks of psychological

and emotional problems, the woman's ability to mother the

child if it is born, *274 the availability of alternatives

including adoption, the availability of financial assistance if

the child is carried to term, the impact of the decision on

the woman's present and future family, and the “philosophic

and social” 21—including religious—concerns that favor

continuing the pregnancy to term. Mastery of these issues

is not necessary for a person to be well-informed, but an

appreciation of them is. A minor worried about the financial

burdens of parenthood, for example, should know what

support is available to her; that information could affect her

decision. While people disagree about the more subjective

factors, a minor should nevertheless have some awareness

of the issues in the disagreement in making her decision.

As the United States Supreme Court has observed, the State

has a legitimate purpose in “reducing the risk that a woman

may elect an abortion, only to discover later, with devastating

psychological consequences, that her decision was not fully

informed.” 22

The abortion decision does not turn merely, or mostly, on

simple facts, such as that in most instances abortion is a

very safe medical procedure. The risks in a particular case

may be greater and may determine the decision, but that is

not true in most situations. Far more important are concerns

about the family, social, psychological, emotional, moral, and

religious implications of the abortion decision. Ordinarily,

some of these issues are none of the State's business. A

person's religious views, for example, are entirely a private

and individual matter. But minors who have not yet thought

seriously about such matters should be aware that their views

may someday change. It is critical that a minor appreciate that

decisions made today can have consequences decades into the

future. The essential approach taken by the Legislature in the

Parental Notification Act is that if a minor is to be allowed

to choose abortion without the guidance parents should

give a child in such circumstances, then she must have an

appreciation of that guidance from somewhere else. Because

there is deep disagreement over the subjective elements of a

choice of abortion, a minor should be aware of and appreciate

the differing views. She is free to credit some and discount

others, of course, but she ought not to make a decision without

knowing what others believe to be at stake. As the United

States Supreme Court has observed, “It seems unlikely that

[a woman] will obtain adequate counsel and support from the

attending physician at an abortion clinic, where abortions for

pregnant minors frequently take place.” 23 The landscape is

not revealed in any single setting.

Whether a minor is well informed is more of an objective

determination than whether she is mature. As noted above, the

latter quality is an ability to act as an experienced adult would.

The United States Supreme Court has observed that “the fact

that a minor may be very much an adult in some respects

does not mean that his or her need and opportunity for growth

under parental guidance and discipline have ended.” 24 The

Court fails to take this obvious fact into account. Maturity is

not so much a matter of what a person knows as it is of how

she thinks and acts. A trial judge who can watch a minor's

demeanor and hear the inflections in her voice is in a far better

position to determine her maturity than an appellate judge

confined to the typed transcript of her testimony.

From the meanings of the words themselves and the purposes

of the Parental *275 Notification Act, informed by the

United States Supreme Court's reference to the same ideas

in numerous opinions, I conclude that by “mature and

sufficiently well informed” the Legislature means a minor

who has obtained for herself the kind of complete and

balanced information relevant to her decision and evaluate it

as a person who no longer needed parental guidance on so
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grave a matter. For reasons that I am about to explain, the

Court reads the statutory standard to mean something far less.

B

Although petitioner in this case has not focused her arguments

on appeal on the alternative ground on which she based her

application—that notifying her parents of her intent to have

an abortion would not be in her best interest—I address that

ground briefly.

In essence, petitioner does not want to notify her parents

because she fears they will not approve. This concern,

standing alone, should not justify excluding her parents

from her decision, as the trial court found. For one thing,

petitioner may have judged wrongly. But assuming her fears

are well founded, petitioner must choose between parental

disapproval and the burden of knowing that she has kept

something very important from them. The latter does not

simply trump the former. A minor's concealment from her

parents of so profound a decision, like the decision itself, may

have lifelong, and unforeseen, consequences. The trial judge

must ensure that the minor appreciates those consequences

and must attempt to determine whether it would not be in

a minor's interest to attempt to involve her parents in her

decision despite their disappointment and disapproval.

IV

The Court's opinion minimizes what a minor must prove to

show that she is “mature and sufficiently well informed” to

choose abortion without involving her parents. This is not

immediately apparent from all its language. For instance, at

one point the Court states that a minor must demonstrate

that her decision “is based upon careful consideration of the

various options available to her and the benefits, risks, and

consequences of those options.” 25 But this broad statement

is belied by the specific requirements set out in Part V. There

are only three, and while they are what the Court would

require “at a minimum”, 26 they are nevertheless sufficient as

a matter of law for a minor to obtain judicial authorization for

an abortion.

This point is crucial: as the Court reads the statute, once a

minor has proved what she must by a preponderance of the

evidence, then she is entitled as a matter of law to an abortion

without parental notification. The trial court has no discretion

in the matter. Thus, if a minor offers evidence to satisfy the

Court's three requirements, her application must be granted.

This standard is, of course, foreign to the language, intent, and

purposes of the Act.

The Court's first requirement is that a minor must obtain

information about the health risks of the procedure. While

such information is certainly essential to the minor's decision,

it will not be significant in most instances. Abortion is, for

the most part, a physically safe procedure. There are instances

when this is not true, and a minor should be advised of the

risks to her, but in most instances it will not be difficult for a

minor to meet this requirement.

The Court's second requirement is that a minor should

“have an understanding of the alternatives to abortion

and their implications” and have given them “thoughtful

consideration”, although she need not “justify why she prefers

abortion above *276 other options”. 27 In the Court's view,

thisrequirement can be satisfied by a simple declaration by the

minor that she has thought long and hard about her decision.

But in fact, a minor is not well informed merely because she

knows that she can carry her pregnancy to term and then either

keep the child or offer it for adoption. She should have an

appreciation of what her options entail.

The Court's third requirement is that a minor should have

received information “from reliable and informed sources”

concerning the “emotional and psychological aspects of

undergoing an abortion”. 28 Just who such sources might be

the Court does not say, but nothing prohibits them from all

being promoters of abortion. A minor is not well informed

simply because she has heard one side of a matter.

The Court acts as if these three requirements are significant,

but they plainly are not. Any competent attorney representing

a minor in a case like this can easily script testimony that

will meet all three requirements. All a minor need tell the

trial court is: that she has consulted with a clinician who told

her that abortion presented insignificant physical risks to her,

that some people regret having an abortion but not very often,

and that she could always have the child and keep it or put

it up for adoption; and that she carefully considered all the

clinician said. Once the minor has covered these bases, she is

entitled to an order authorizing her to consent to an abortion.

A trial court that is convinced that a minor is not entitled to

an abortion without parental notification must therefore base

the decision on the minor's overall credibility and evidence of
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her immaturity that cannot be fully reflected in the appellate

record.

The Court refuses even to acknowledge that a minor's

decision can profoundly affect her future and present family

relationships. In the Court's mind, the most significant issues

involved in the abortion decision do not even exist. According

to the Court, a minor is well informed if she knows a little

about a few things which may matter and nothing about the

very profound consequences of her decision.

The Court completely ignores the fundamental, constitutional

rights of petitioner's parents which must, as the United

States Supreme Court has stated, 29 be balanced against

petitioner's right to choose an abortion. The Legislature's

express intent in passing the Parental Notification Act was to

protect parents' rights to provide children guidance in making

difficult decisions. In essence, the Court holds that minors can

get by without the help.

V

I have set out above in complete detail petitioner's testimony,

omitting only those facts that tend to identify her. It is fair to

say that she based her decision to have an abortion on what

she called “partial counseling” one Saturday at a Planned

Parenthood clinic; the unsurprising encouragement of her 19–

year–old boy friend, who is the father of the child and now

wants no part of the responsibility; a brief conversation with

a relative who had an abortion when she was petitioner's age;

conversations with three teenage friends, one of whom was

glad she had had an abortion, and two of whom, one age

15, said they wished they had; and unspecified information

obtained on the internet. I agree with the Court that this does

not prove as a matter of law that petitioner is mature and

sufficiently well informed to have an abortion without telling

her parents.

Incredibly, the Court never hints at the specific deficiency

in petitioner's proof. In this “matter of first impression” the

Court hides any reasoning it has. Why has petitioner's proof

failed? What was missing? *277 How much more, or how

little, was required? Ordinarily, the Court would answer these

questions, would apply its construction of the statute to the

facts of the case and explain the consequences. But the

JUSTICES in the majority cannot agree on enough issues,

even after days of compromise among themselves, to come

up with a single ecumenical justification for their result. The

Court says that it writes to give the lower courts guidance,

and then in Part VII of its opinion, on the issue dispositive

of the case, offers no explanation. None, except “Sorry, you

lose, try again.” To undertake an opinion in this case and then

give no explanation for the result is a blatant abnegation of the

Court's responsibility to the lower courts and the petitioner,

and an affront to the Legislature.

I would hold that the trial court's decision to deny petitioner's

application was based on some evidence, and I would deny

her appeal. I do not agree that she should simply have a second

try, especially since she will have no trouble improving her

case. While the court's decision should be given res judicata

effect, it would not bar petitioner from reapplying if her

circumstances changed materially.

VI

I agree with the conclusion in Part II of the Court's opinion

that this Court must publicly explain its decisions, even in

cases like this one in which there is a special need for

confidentiality. 30 Neither our duty to the rule of law, nor our

constitutional role in the government, nor our obligations to

the people whose government it is, permit this Court to rule

in secret. It may well be that the lower courts' rulings in cases

like this cannot be secret either, but petitioner has not raised

the issue, and no one else can raise it in this case, since no

one besides her attorney and guardian will have known before

today that the case was before us. So the issue must be left

for another day. 31

I also agree with the conclusion in Part III of the Court's

opinion that the trial court's decision in this case should

be affirmed on appeal if it finds sufficient support in the

evidence. 32 Because our jurisdiction to review evidentiary

sufficiency is limited, we must affirm the trial court's decision

if there is any evidence to support it. We can reverse only

if petitioner demonstrates that she has proven her right to

an abortion without parental involvement as a matter of

law, which I agree she has not done, for the reasons I have

explained and the Court has not.

* * * * *

The people of Texas, like the American people, are deeply

divided over abortion. That division will almost certainly
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affect the present and future life of every minor who has

an abortion. If the Legislature's mandate that a minor be

well informed before choosing abortion without involving her

parents does not mean that she be given the same guidance

a child should have from her parents, then it offers her

little protection. If the Legislature's mandate means that

parents can be deprived of their fundamental right to guide

their child's decisions when she has no more appreciation

of her circumstances than the Court requires, then the

statute is almost meaningless. I would not deny the Parental

Notification Act its intended purposes. I dissent.

Footnotes

1 Justice Enoch's concurrence argues that the proper standard of review is abuse of discretion. Much of his argument is based on

the premise that the facts will be undisputed. Although the hearing is unopposed, the testimony presented by the minor may be

inconsistent, either on direct or after the trial court has posed questions. Therefore, rather than simply applying the law to undisputed

facts, the trial court must weigh all the evidence before it, including demeanor and credibility, to determine if the minor, by a

preponderance of the evidence, has demonstrated that she is mature and sufficiently well informed.

2 See ARK.CODE ANN. § 20–16–804(1)(A)(Michie 1999); COLO.REV.STAT. ANN . § 12–37.5–107(2)(a)(1999); FLA. STAT.

§§ 390.01115(3)(a) & (4)(c)(1999); GA.CODE ANN. § 15–11–114(c)(1999); 750 ILL. COMP. STAT.. 70/25–25(d) (West 1999);

KAN. STAT. ANN.. §§ 65–6705(a) & (d) (1998); MD.CODE ANN., HEALTH §§ 20–103(a) & (c) (1991); MINN.STAT. §

144.343(6) (1998); MONT.CODE ANN. §§ 50–20–212(4) & (5) (1999); NEB.REV.STAT. § 71–6903(1) (1999); NEV.REV.STAT.

§ 442.255(2) (1997); N.J. STAT. ANN.. § 9:17A–1.7(d) (West 1999); OHIO REV.CODE ANN. §§ 2151.85(A)(4) & (C)(1) (Banks–

Baldwin 1999); S.D. CODIFIED LAWS §§ 34–23A–7(3) & 34–23A–7.1 (Michie 1999); VA.CODE ANN. § 16.1–241(V) (Michie

1999); W. VA.CODE § 16–2F–4(f) (1999); WYO. STAT. ANN. § 35–6–118(b)(v)(B) (Michie 1999).

3 Although Texas Parental Notification Rule 3.3(b) does not allow a court of appeals to remand, the rules are silent regarding this

Court. Consequently, we are not prohibited from remanding.

1 TEX. FAM.CODE § 33.003(i).

2 Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

3 See, e.g., Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985).

4 See TEX. FAM.CODE § 33.003(k).

5 In the Matter of the Petition of Jane Doe, 19 Kan.App.2d 204, 866 P.2d 1069, 1074 (1994).

6 See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Green v. Remling, 608 S.W.2d 905, 908 (Tex.1980).

7 Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

8 See TEX.R.APP. P. 60.3.

9 See TEX. FAM.CODE § 33.004(b).

10 See TEX. PARENTAL NOTIFICATION RULES & FORMS 3.3(b).

11 See id. (“The court of appeals ... must issue a judgment affirming or reversing the trial court's order denying the application. If the

court of appeals reverses the trial court order, it must also state in its judgment that the application is granted.”).

1 TEX. FAM.CODE §§ 33.001–.011. All statutory references are to the Family Code unless otherwise noted.

2 Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ).

3 Ante at 256–57.

4 Planned Parenthood v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).

5 Id. at 851–852, 112 S.Ct. 2791.

6 Id. at 872–873, 112 S.Ct. 2791.

7 Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion).

8 Casey, 505 U.S. at 872–883, 112 S.Ct. 2791 (citations omitted).

9 Id. at 869, 112 S.Ct. 2791.

10 Id. at 874, 112 S.Ct. 2791.

11 Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ).

12 Hodgson, 497 U.S. at 444–445, 110 S.Ct. 2926 (plurality opinion) (citations omitted).

13 Id. at 444, 110 S.Ct. 2926.

14 Id. at 446, 110 S.Ct. 2926.

15 E.g., Patterson v. Planned Parenthood, 971 S.W.2d 439, 447 (Tex.1998) (Gonzalez, J., concurring); In the Interest of J.W.T., 872

S.W.2d 189, 194–195 (Tex.1994); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976).
In re Doe, 19 S.W.3d 249 (2000)

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16 Bellotti II, 443 U.S. at 637–640, 99 S.Ct. 3035 (emphasis in original, citations omitted).

17 Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).

18 TEX. FAM.CODE § 33.002.

19 Id. § 33.003(i).

20 TEX. GOV'T CODE § 312.002(a); Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex.1999).

21 Planned Parenthood v. Casey, 505 U.S. 833, 872, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).

22 Id. at 882, 112 S.Ct. 2791.

23 H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).

24 Bellotti v. Baird, 443 U.S. 622, 644 n. 23, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ) (plurality opinion).

25 Ante at 255.

26 Ante at 256.

27 Ante at 256.

28 Ante at 256.

29 Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion).

30 Ante at 251–52.

31 See also TEX. PARENTAL NOTIFICATION RULES & FORMS, Explanatory Stmt. (“such issues should not be resolved outside

an adversarial proceeding with full briefing and argument”).

32 Ante at 253.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

304 S.W.3d 871

Court of Appeals of Texas,

Austin.

SAVE OUR SPRINGS ALLIANCE, INC., Appellant,

v.

CITY OF DRIPPING SPRINGS; Todd Purcell, in his

Official Capacity as Mayor of the City of Dripping

Springs; and Mak Foster Ranch, L.P., Appellees.

No. 03–04–00683–CV. | Feb.

11, 2010. | Order Denying

Reconsideration En Banc Feb. 12, 2010.

Synopsis

Background: Non-profit public interest group, dedicated

to protecting a segment of an aquifer, filed suit against

city and landowners, challenging city's authority to enter

into agreements with landowners to develop portions of

their property for residential, commercial, and recreational

use. Group also sought declaration that agreements violated

Texas Constitution, and alleged that public notices regarding

city council's approval of agreements violated Texas Open

Meetings Act. The 207th Judicial District Court, Hays

County, Jack H. Robison, J., granted summary judgment

to defendants on the Open Meetings Act claim, granted

defendants' pleas to the jurisdiction on remaining claims,

and awarded defendants attorney fees. Public interest group

appealed.

Holdings: On motion for rehearing, the Court of Appeals, G.

Alan Waldrop, J., held that:

[1] group lacked associational standing to bring its claims,

other than the Open Meetings Act claim;

[2] notice of city council meeting to approve agreements did

not violate Open Meetings Act; and

[3] trial court did not abuse its discretion in awarding attorney

fees.

Affirmed; motion for reconsideration en banc denied.

Jan P. Patterson, J., dissented from the denial of

reconsideration en banc and filed opinion in which Henson,

J., joined.

Attorneys and Law Firms

*875 Brad Rockwell, Scanlon, Buckle & Young, Sarah

Baker, Austin, for appellant.

Thomas W. Robertson, Baker & Associates, Dripping

Springs, E. Lee Parsley, E. Lee Parsley, P.C., Howard S.

Slobodin, Hazen & Terrell, P.C., Paul M. Terrill, III, The

Terrill Law Firm, P.C., J. Bruce Scrafford, Jeffrey J. Hobbs,

Armbrust & Brown, L.L.P., Austin, for appellee.

Before Chief Justice LAW, Justices PEMBERTON and

WALDROP.

OPINION

G. ALAN WALDROP, Justice.

We withdraw the opinion and judgment issued July 3, 2009,

and substitute the following opinion and judgment in their

place. We deny appellant's motion for rehearing.

The City of Dripping Springs entered into agreements with

two landowners in the City's extraterritorial jurisdiction,

Cypress–Hays, L.P. and Mak Foster Ranch, L.P. The

agreements contemplated the landowners' development of

portions of their property for residential, commercial, and

recreational use. The agreements were approved by the city

council in public meetings during April 2001. Appellant

Save Our Springs Alliance, Inc. (“SOS Alliance”) filed

suit alleging that the agreements would result in added

pollution to the environmentally sensitive Edwards Aquifer.

In its petition, SOS Alliance sought a declaration that the

agreements violated the Texas Constitution, and alleged that

the public notices regarding the *876 city council's approval

of the agreements did not sufficiently communicate the

subject matter of the meetings as required by the Texas Open

Meetings Act. The district court granted summary judgment

to the defendants on SOS Alliance's Open Meetings Act

claim, granted the defendants' pleas to the jurisdiction on the

remaining claims based on SOS Alliance's lack of standing,

and awarded the defendants attorneys' fees. We affirm the

judgment of the district court.
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Factual and Procedural Background

After notice and a public hearing on April 10, 2001, the

City of Dripping Springs entered into a “Development

Agreement” with Cypress–Hays, L.P. This agreement

authorized development on approximately 2,724 acres of

land owned by Cypress–Hays in the City's extraterritorial

jurisdiction in Hays County. After notice and a public

hearing on April 19, 2001, the City entered into a similar

“Development Agreement” with Mak Foster Ranch, L.P.

This agreement authorized development on approximately

1,611 acres of land owned by Mak Foster in the

City's extraterritorial jurisdiction in Hays County. Both

Development Agreements contemplated development of

the land as master-planned, mixed-use communities with

commercial and residential uses, as well as park and

recreational facilities. Under the Agreements, Cypress–Hays

and Mak Foster could develop the land according to agreedupon standards, in exchange for the City's pledge that the

standards would remain consistent for a period of 15 years

(with up to two 5–year extensions). 1

SOS Alliance is a nonprofit corporation dedicated to

protecting the Barton Springs segment of the Edwards

Aquifer, which is located almost entirely in Hays and

Travis Counties. According to SOS Alliance, water from

the aquifer's “contributing zone.” in which the City of

Dripping Springs is located, flows eastward on creeks into

the “recharge zone,” where the water moves underground

through caves, sinkholes, and other openings to fill or

“recharge” the aquifer. Most of the water from this segment

of the aquifer emerges at Barton Springs in Austin, Texas,

which is on the northeast corner of the two zones.

In November 2002, SOS Alliance filed suit against the City

of Dripping Springs and Todd Purcell in his official capacity

as mayor of the City of Dripping Springs (collectively, the

“City”), challenging the municipality's authority to enter into

the Development Agreements and the sufficiency of the

information in the public notices for the meetings at which the

Agreements were considered and approved. 2 Four months

later, SOS Alliance *877 added Cypress–Hays and appellee

Mak Foster as defendants in the lawsuit.

Although some authority existed for cities to enter into

certain types of development agreements for land in their

extraterritorial jurisdiction, see Tex. Loc. Gov't Code Ann. §

42.044 (West 2008), the legislature expanded cities' authority

to enter into such agreements during the 2003 legislative

session. See Act of May 24, 2003, 78th Leg., R.S., ch. 522, §

1, 2003 Tex. Gen. Laws 1788, 1788–89 (codified at Tex. Loc.

Gov't Code Ann. §§ 212.171–.174 (West 2008)). The 2003

legislation included a provision that resulted in the retroactive

validation of the Development Agreements. See Tex. Loc.

Gov't Code Ann. § 212.172(h).

After this legislation was enacted, on May 11, 2004, SOS

Alliance filed its second amended petition—the live pleading

in this case when judgment was entered—seeking declaratory

and injunctive relief and attorneys' fees. In its petition, SOS

Alliance alleged that the Development Agreements violate

the Texas Constitution by impinging on the right of local selfgovernment, impairing the preservation of a republican form

of government, and contracting away legislative powers. SOS

Alliance further alleged that the City violated the Texas Open

Meetings Act by issuing public notices that insufficiently

stated the subject of the Development Agreements.

The parties filed cross-motions for partial summary

judgment, and the defendants also filed pleas to the

jurisdiction challenging SOS Alliance's standing to pursue

its claims. On July 26, 2004, the district court granted the

defendants' pleas to the jurisdiction as to all of SOS Alliance's

claims except the alleged violations of the Open Meetings Act

and, after a hearing, granted summary judgment in favor of

appellees as to the Open Meetings Act claim. The parties and

the court agreed to try the remaining issue of attorneys' fees

on written submission, and the court subsequently granted the

defendants' requested fees. The district court entered a final

judgment on November 29, 2004, incorporating all of its prior

orders. SOS Alliance appeals. 3

Standing

[1] [2] [3] In its first and second points on appeal,

SOS Alliance asserts that the district court's granting of

appellees' pleas to the jurisdiction as to SOS Alliance's

claims that do not relate to the Open Meetings Act was in

error. A plea to the jurisdiction challenges the trial court's

authority to determine the subject matter of a specific cause

of action. See Texas Dep't of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex.2004). We review de novo

whether a court has subject-matter jurisdiction and whether

the plaintiff has alleged facts that affirmatively demonstrate

subject-matter jurisdiction. Id. at 226. In deciding a plea to the

jurisdiction, we are not to consider the merits of the plaintiff's

claims beyond the extent necessary to resolve the jurisdiction

issue, but consider the plaintiff's pleadings, construed in the
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plaintiff's favor, and evidence pertinent to the jurisdictional

inquiry. Id. at 227–28; County of Cameron v. Brown, 80

S.W.3d 549, 555 (Tex.2002). SOS Alliance contends that its

pleadings and jurisdictional *878 evidence are sufficient to

establish jurisdiction.

[4] [5] [6] [7] Subject-matter jurisdiction is essential

to the authority of a court to decide a case, and standing is

a component of subject-matter jurisdiction. See Texas Ass'n

of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443–45

(Tex.1993). A plaintiff must have standing for the court to

have subject-matter jurisdiction to decide the merits of the

plaintiff's claims. See id.; Farmers Tex. County Mut. Ins.

Co. v. Romo, 250 S.W.3d 527, 532 (Tex.App.-Austin 2008,

no pet.). The plaintiff must allege facts that affirmatively

demonstrate the court's jurisdiction to hear the cause. Texas

Ass'n of Bus., 852 S.W.2d at 446. The general test for standing

is whether there is a real controversy between the parties that

will actually be determined by the judicial declaration sought.

Id. Standing focuses on the question of who may bring a

lawsuit. Patterson v. Planned Parenthood, 971 S.W.2d 439,

442 (Tex.1998).

[8] [9] SOS Alliance sues on behalf of its members. An

association has standing to sue on behalf of its members when

(1) its members would otherwise have standing to sue in their

own right, (2) the interests it seeks to protect are germane to

the organization's purpose, and (3) neither the claim asserted

nor the relief requested requires the participation of individual

members in the lawsuit. Texas Ass'n of Bus., 852 S.W.2d

at 447 (quoting Hunt v. Washington State Apple Adver.

Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383

(1977)). The first prong of associational standing may be

satisfied if at least one of the organization's members would

have standing individually. See Hays County v. Hays County

Water Planning P'ship, 106 S.W.3d 349, 357 (Tex.App.-

Austin 2003, no pet.). The Supreme Court has observed

that the “irreducible constitutional minimum” of individual

standing contains three elements: (1) the plaintiff must have

suffered an “injury in fact,” an invasion of a legally protected

interest that is concrete and particularized, and that is actual

or imminent rather than conjectural or hypothetical, (2) the

injury is fairly traceable to the challenged action of the

defendant and not the independent action of a third party not

before the court, and (3) it must be likely that the injury will

be redressed by a favorable decision. Lujan v. Defenders of

Wildlife, U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992); see Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001)

(“[W]e may look to the similar federal standing requirements

for guidance.”).

SOS Alliance alleges several distinct injuries to its members

by which it asserts to have standing in this lawsuit: (1)

members who enjoy Barton Springs pool and its surroundings

for its recreational, scenic, or scientific value allege injury

from increased pollution in the aquifer; (2) members who

live near the land subject to the Development Agreements

and who use well water express concern of pollution to the

water; (3) members who are residents of Dripping Springs

allege that the Agreements injured their procedural interests

in using democratic means to prevent development activities

that would further pollute Barton Springs; (4) members who

pay property taxes to the City allege injury from the City's

expenditure of public funds under the Agreements; and (5)

members who live near the land subject to the Agreements

express concern about increased lights during the nighttime,

increased road traffic, and decreased property values.

Injury to Environmental, Scientific, and Recreational

Interests in Barton Springs

SOS Alliance argues that it has standing due to environmental

injury related to the Barton Springs pool in Austin.

SOS Alliance *879 alleges that many of its members

regularly swim in the Barton Springs pool, and many of

them enjoy Barton Springs and Barton Creek for other

recreational activities and for purposes of observing and

contemplating nature. One member claimed that, as a

scientist, he has a professional and educational interest in

the Barton Springs salamander. SOS Alliance alleges that

the Development Agreements will result in an increase

in pollution in the aquifer, which will contribute to the

declining health of Barton Springs—including the reduction

of water quality, plant life, numbers of fish, and population

of the Barton Springs salamander—which will in turn injure

SOS Alliance's members' “environmental, scientific, and

recreational interests.” SOS Alliance contends that injury

to these types of interests has been “widely recognized” to

confer standing.

The Texas cases cited by SOS Alliance to support standing

based on environmental harm involve plaintiffs who own

property affected by the defendant's actions. In Lake

Medina Conservation Society v. Texas Natural Resource

Conservation Commission, an organization sued for review

of a state commission's order authorizing a water control and

improvement district's diversion of water from a lake. 980
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S.W.2d 511, 513–15 (Tex.App.-Austin 1998, pet. denied).

This Court held that the organization's members would have

standing in their own right because they owned waterfront

property, waterfront businesses, and private wells in the area.

See id. at 515–16. In Heat Energy Advanced Technology,

Inc. v. West Dallas Coalition for Environmental Justice, an

application for a renewal permit for a hazardous and industrial

waste storage and processing facility was challenged by a

coalition of nearby residents, but the administrative agency

determined the coalition did not have standing to participate

in the hearing. 962 S.W.2d 288, 289–90 (Tex.App.-Austin

1998, pet. denied). This Court held that the agency erred in its

determination, concluding that the proximity of a member's

home to the facility, combined with that member's allegation

of odors affecting his breathing, was sufficient to confer

standing. See id. at 295.

SOS Alliance also relies on this Court's opinion in

Texas Rivers Protection Ass'n v. Texas Natural Resource

Conservation Commission, 910 S.W.2d 147 (Tex.App.-

Austin 1995, writ denied). In that case, a state commission

granted a permit for the diversion of water from the

Guadalupe River, despite a challenge by the Texas Rivers

Protection Association (TRPA) to the application. See 910

S.W.2d at 150–51. On appeal, the party to whom the permit

was issued challenged the TRPA's standing to seek judicial

review of the permit. See id. at 151–52. A member of the

TRPA owned property fronting the affected area of the

river and testified that the diversion of water would injure

his “aesthetic and recreational interests in the river.” Id. at

151. This Court stated, “An injury need not affect ‘vested’

property rights to confer standing; the harm may be economic,

recreational, or environmental.” Id. at 151–52. SOS Alliance

contends that because its members have alleged recreational

and environmental harm, it has shown a sufficient injury in

fact for purposes of standing. However, this Court's view

of the type of harm that can constitute an injury in fact for

purposes of standing in Texas Rivers was coupled with the

determination that the TRPA member's “riparian ownership

alone sufficiently distinguishes [his] injury from that of the

public at large.” Id. at 151. The plaintiff in Texas Rivers had

no vested right in the river itself, but had property rights

affected by the defendant's actions upstream.

The Texas Rivers case, therefore, does not stand for

the proposition that an allegation *880 of any type of

recreational or environmental impact, by itself, constitutes

an injury in fact sufficient to confer standing. Instead, this

Court in Texas Rivers concluded that while environmental

harm may be a cognizable injury for purposes of standing,

it was the harm to the plaintiff's riparian interests that made

the injury sufficiently particularized so as to distinguish the

harm from that experienced by the general public. See id.

at 151–52; Brown, 53 S.W.3d at 302 (“Our decisions have

always required a plaintiff to allege some injury distinct from

that sustained by the public at large.”). In sum, we do not

find any Texas case in which an alleged injury to a plaintiff's

environmental, scientific, or recreational interests conferred

standing in the absence of allegations that the plaintiff has an

interest in property affected by the defendants' actions.

Lacking a member with a property interest in Barton

Springs (the land alleged to be polluted as a result of

the Development Agreements contrary to SOS Alliance

members' environmental, scientific, or recreational interests)

or with property rights otherwise affected by Baron Springs's

alleged pollution, SOS Alliance turns to federal case law

to support its assertion of environmental standing. SOS

Alliance is correct that federal courts have recognized that

environmental harm can constitute a cognizable injury for

purposes of constitutional standing. See Sierra Club v.

Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d

636 (1972) (“We do not question that this type of harm

[to scenery, natural and historic objects, and wildlife of a

national park] may amount to an ‘injury in fact’ sufficient

to lay the basis for standing....”). Moreover, federal courts

have found standing for this type of harm in the absence of

the plaintiff possessing a property right where harm occurs.

Under federal case law, environmental plaintiffs adequately

allege a particularized injury in fact when they aver that they

use the affected area and are persons for whom the aesthetic

and recreational values of the area will be lessened by the

challenged activity. See Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145

L.Ed.2d 610 (2000). SOS Alliance contends that we should

follow the federal courts' lead on this issue by determining

that SOS Alliance's members' environmental interests are

particularized, legally protected interests, even in the absence

of ownership of property impacted by the environmental

harm. See Texas Ass'n of Bus., 852 S.W.2d at 444 (“Because

standing is a constitutional prerequisite to maintaining a suit

under both federal and Texas law, we look to the more

extensive jurisprudential experience of the federal courts on

this subject for any guidance it may yield.”).

However, the federal cases cited by SOS Alliance, in which

environmental harm is held to constitute an injury in fact

for purposes of standing, involve the application of federal
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environmental-protection statutes that prohibited the types

of conduct alleged by the plaintiffs in those cases to have

occurred. The majority of the federal cases cited by SOS

Alliance to demonstrate that an injury in fact for purposes

of standing may be environmental involve claims under the

federal Clean Water Act (CWA). 4See 33 U.S.C. § 1251 et

*881 seq. (2001). The CWA itself provides for a private

right of action. A suit to enforce an effluent standard or

limitation under the CWA may be brought by any “citizen,”

which is defined as “a person or persons having an interest

which is or may be adversely affected.” Id. § 1365(a),

(g). This provision “confers standing to enforce the Clean

Water Act to the full extent allowed by the Constitution.”

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,

204 F.3d 149, 152 (4th Cir.2000). In these cases, then, the

plaintiffs possessed a legally protected interest for purposes

of standing by virtue of a federal statute. See id. at 156–57

(“injury required by Article HI may exist solely by virtue of

statutes creating legal rights, the invasion of which creates

standing” (quoting Warth v. Seldin, 422 U.S. 490, 500, 95

S.Ct. 2197, 45 L.Ed.2d 343 (1975))). 5

The few federal cases cited by SOS Alliance not involving

the CWA—which has a citizen-enforcement provision—

also involved environmental-protection statutes. In Cantrell

v. City of Long Beach, 241 F.3d 674 (9th Cir.2001), for

example, the federal law sought to be enforced—the National

Environmental Policy Act—included a federal policy to

“preserve important historic, cultural, and natural aspects of

our national heritage.” 241 F.3d at 679 (quoting 42 U.S.C.

§ 4331(b)(4) (2003)). Thus, the Ninth Circuit concluded

that the plaintiffs sufficiently alleged an injury in fact for

constitutional standing purposes in that they “observed and

enjoyed” endangered birds that could be evicted by the

defendants' actions. Id. at 679–82. In short, each of the

federal cases cited by SOS Alliance that found the existence

of standing where the alleged harm was to environmental,

scientific, or recreational interests involved a federal statute

protecting those same interests. 6

*882 Based on this state and federal case law, we must

address whether SOS Alliance has established standing under

Texas law to pursue its claims under the Uniform Declaratory

Judgments Act (UDJA). See Tex. Civ. Prac. & Rem.Code

Ann. §§ 37.001–.011 (West 2008). Under the UDJA, SOS

Alliance must establish standing by alleging an injury in

fact to a “legally protected interest which is ... concrete

and particularized.” Defenders of Wildlife, 504 U.S. at 560,

112 S.Ct. 2130; see Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 555–56 (Tex.2000) (as general rule, standing

requires interest distinct from general public, unless standing

conferred by statute); Texas Ass'n of Bus., 852 S.W.2d at

444 (UDJA “merely a procedural device for deciding cases

already within a court's jurisdiction rather than a legislative

enlargement of a court's power”); Frasier v. Yanes, 9 S.W.3d

422, 427 (Tex.App.-Austin 1999, no pet.) (“A declaratory

judgment declares the rights and duties or the status of parties

in a justiciable controversy.”).

[10] There is no Texas authority for the proposition

that the type of injury alleged by SOS Alliance in this

case—injury to its members' environmental, scientific, and

recreational interests generally and without any interest in

or connection to the real property involved—is the type of

interference with a legally protected interest or injury that

confers standing as a matter of state law. SOS Alliance

must show a particularized, legally protected interest that

is actually or imminently affected by the alleged harm.

See Defenders of Wildlife, 504 U.S. at 560–61, 112 S.Ct.

2130. SOS Alliance has alleged neither an environmental

interest provided for or protected by statute (as is present

in the federal cases cited by SOS Alliance) nor a property

interest subject to the recreational or environmental harm

(as is present in the state cases cited by SOS Alliance).

Absent such allegations, there is no particularized, legally

protected interest at stake in this context, as there is nothing

to distinguish the environmental, scientific, or recreational

concerns of SOS Alliance's members from the same concerns

experienced by the public in general. See id. at 560, 112 S.Ct.

2130; Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976).

Based on the existing state and federal case law, to find

standing under the circumstances here would, we think, be

to expand Texas's standing jurisprudence, and it is not our

proper role as an intermediate appellate court to do so. See

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565

(Tex.App.-Austin 2004, no pet.). Therefore, we decline to

conclude that the environmental, scientific, and recreational

interests asserted by SOS Alliance result in a “concrete and

particularized” injury in fact, as is necessary to establish

standing under Texas law. 7

*883 Injury to Landowners' Well Water

[11] SOS Alliance also bases its assertion of standing on

its members' concern about pollution to their residential

water use. SOS Alliance relies on the affidavits of two

members who use well water for residential use. One member

alleges that he lives “about one-quarter mile” west of the
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Cypress Hays land and is “concerned” about “pollution from

Cypress' proposed golf courses and other development,”

and the other member alleges that she lives “within the

extraterritorial jurisdiction of the City of Dripping Springs,”

owns an undeveloped residential lot “within 200 feet” of the

Cypress Hays development, and is “concerned” about “how

pollution from a large development in the recharge zone of the

Aquifer would [a]ffect the quality of the Aquifer water.” We

need not determine whether the members' “concern” about

pollution to well water on their property is a sufficiently

particularized injury in fact for purposes of standing, because

we conclude that SOS Alliance has failed to demonstrate

that the alleged harm is actual or imminent, rather than

hypothetical or conjectural.

[12] To have standing, SOS Alliance must allege an

injury that is “actual or imminent, not hypothetical.” See

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05

(Tex.2008). The two members concerned about pollution to

their water supply do not allege any connection between

the Development Agreements and their well water. Neither

member makes any reference to the property subject to the

Mak Foster Development Agreement, and the only reference

to the Cypress Hays Development Agreement property is one

of proximity. According to SOS Alliance's experts' affidavits,

the Mak Foster development is located in the contributing

zone, the Rutherford Ranch development is located within the

“uniquely sensitive” recharge zone, and both will “contribute

to the pollution load within wells in the Barton Springs

Edwards Aquifer.” It is not enough, however, to allege that

the Development Agreements will pollute some well water in

the area and that an SOS Alliance member uses well water in

the area. The potential harm to the members' well water must

be more than speculative. There must be some allegation or

evidence that would tend to show that the well water of the

members in question will be affected by the action of which

they complain.

According to SOS Alliance's experts' affidavits, rainfall on

the contributing zone flows east to the recharge zone, where

it enters the underground aquifer, and then flows north and

mostly resurfaces at the Barton Springs pool. The experts

further aver that pollutants from the developments would

be added to this run-off into the aquifer, and that there

is already evidence of increased pollutants at the Barton

Springs pool. Given the specific description contained in SOS

Alliance's jurisdictional evidence of the flow direction toward

and within the aquifer, there must be evidence in the record to

show that the properties of the members who express concern

about pollution to their water supply are in a location that

is at least potentially “downflow” from the developments.

SOS Alliance did not present any allegations or evidence on

this point. 8 The fact that the *884 Mak Foster property is

somewhere in the contributing zone and an SOS member's

well is somewhere in the recharge zone is not, by itself,

sufficient to show harm that is imminent and not merely

conjectural or speculative. SOS Alliance has failed to allege

or provide evidence of any actual or imminent impact from

the approvals of the Development Agreements on the amount

of pollution to SOS Alliance's members' residential water

supply.

Procedural Injury

SOS Alliance next points to its claims in its pleadings that

the Development Agreements violate the Texas Constitution

in that they impinge on the right of local self-government

(citing Tex. Const. art. I, § 1), impair the preservation of a

republican form of government (citing Tex. Const art. I, §

2), and contract away legislative and police powers (citing

Tex. Const. art. I, § 17). According to SOS Alliance, some of

its members reside within the city limits of Dripping Springs

or its extraterritorial jurisdiction and are opposed to the

developments, and their ability to act on their opposition has

been eliminated as a result of the Development Agreements'

“immediate and certain effect of closing off the democratic

process and democratic controls over the development of that

tract of property for at least 15 years.”

To establish standing to assert these alleged constitutional

violations, SOS Alliance must show an injury in fact

See Neeley v. West Orange–Cove Consol. Indep. Sch.

Dist., 176 S.W.3d 746, 774 (Tex.2005) (“Standing to

assert a constitutional violation depends on whether the

claimant asserts a particularized, concrete injury.”). While

SOS Alliance contends that the Development Agreements

“adversely and immediately impinge” on its members'

constitutional rights, the only injury identified by SOS

Alliance is “procedural injury” suffered by those members

who reside within the city limits of Dripping Springs or

its extraterritorial jurisdiction. SOS Alliance relies on two

federal cases for the proposition that injury to its members'

procedural interests can be an injury in fact sufficient to show

standing—Sierra Club v. Marita, 46 F.3d 606 (7th Cir.1995),

and Natural Resources Defense Council v. Abraham, 223

F.Supp.2d 162 (D.D.C.2002).
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In Marita, the Seventh Circuit considered a “forest

management plan” created by the defendant, a plan with

which subsequent natural resource management activities in

the covered area had to comply. See 46 F.3d at 610–11. The

court concluded that, for purposes of standing, there was

actual or imminent injury underlying the alleged procedural

default even if the plan was not implemented immediately.

*885 See id. at 612. The court was able to reach this

conclusion because, as the Supreme Court has recognized, a

plaintiff in federal court does not need to meet the normal

standing requirement of imminence when he seeks to assert a

procedural right. See Defenders of Wildlife, 504 U.S. at 572

n. 7, 112 S.Ct. 2130. However, for this to apply, the plaintiff

must first be accorded the procedural right. See id. The

National Environmental Policy Act, which the court in Marita

was construing, see 46 F.3d at 612–13, is “essentially a

procedural statute,” such that “injury alleged to have occurred

as a result of violating this procedural right confers standing.”

Idaho Conservation League v. Mumma, 956 F.2d 1508, 1514

(9th Cir.1992). Thus, the court in Marita, in concluding that

the plaintiff had standing based on its procedural interests,

was construing a statute that specifically provided for the

procedural rights at issue, the violation of which could confer

standing.

Likewise, in Natural Resources Defense Council, the

court's conclusion that the plaintiffs had standing based on

procedural injury was in the context of a statute that accorded

the plaintiffs specific procedural rights. 223 F.Supp.2d

at 178–79. In that case, the plaintiffs alleged violations

of the Federal Advisory Committee Act. See id. at 167.

According to the court, this federal law established procedural

requirements, the requirements were “designed to protect

some threatened concrete interest” of the plaintiffs, and

the plaintiffs sufficiently alleged harm from the defendant's

failure to comply with those procedural requirements. Id. at

178–80.

[13] Unlike in Marita and Natural Resources Defense

Council, SOS Alliance does not sue based on a statute that

accords SOS Alliance or its members specified procedural

rights. SOS Alliance does not provide any argument

or authority for the proposition that the constitutional

provisions, under which SOS Alliance asserts its claims,

provide procedural protections akin to the federal statutes at

issue in the two federal cases cited, or that any such procedural

protections exist in the absence of a statute that would accrue

to the benefit of SOS Alliance or its members. Therefore,

we decline to hold that SOS Alliance has standing based on

harm to its members' non-specified procedural interests. See

Tex.R.App. P. 38.1(i); Valadez v. Avitia, 238 S.W.3d 843,

845 (Tex.App.-El Paso 2007, no pet.) (“Failure to cite legal

authority or provide substantive analysis of the legal issue

presented results in waiver of the complaint.”).

Taxpayer Standing

[14] [15] Next, SOS Alliance asserts standing based on

the taxpayer status of its members. Taxpayer standing is an

exception to the general rule that the plaintiff must show a

particularized injury distinct from that suffered by the public.

See Bland Indep. Sch. Dist., 34 S.W.3d at 555–56; Hendee v.

Dewhurst, 228 S.W.3d 354, 373–74 (Tex.App.-Austin 2007,

pet. denied). A plaintiff relying on taxpayer standing can

seek to enjoin prospective expenditures of public funds, but

cannot recover funds already expended. Williams v. Huff, 52

S.W.3d 171, 180 (Tex.2001). To establish taxpayer standing,

the plaintiff must show that (1) he is a taxpayer, and (2) public

funds are to be expended on the allegedly illegal activity. Id.

at 179. SOS Alliance alleges that it has at least one member

who resides within the City of Dripping Springs and who

pays property taxes on her homestead. SOS Alliance further

alleges that the Development Agreements obligate the City to

spend money on attorneys' fees defending the Development

Agreements from challenges such as this lawsuit.

*886 [16] To show that the City will expend public funds

on attorneys' fees, SOS Alliance refers to the Development

Agreements' provision that in the event of a third-party

lawsuit relating to a Development Agreement, the City and

the developer “agree to cooperate in the defense of such

suit or claim, and to use their respective best efforts to

resolve the suit or claim.” This provision, by its plain terms,

does not require the expenditure of public funds. It does not

address expenditures at all. Rather, a separate provision of

the Development Agreements addresses expenditures. That

provision requires the developer to pay the City a deposit

“intended to cover all City legal ... fees and administrative

expenses” associated with the Agreement. In the event

fees and expenses incurred exceed the initial deposit, the

developer is obligated to “pay the additional fees and

expenses upon the City's request.”

We decline to grant taxpayer standing based on expenses that

taxpayers will never bear, given the developers' obligation

to reimburse the City. SOS Alliance has not shown that any

public funds have been or will be expended by the City as

a result of the allegedly illegal Development Agreements.
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

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Therefore, SOS Alliance has failed to establish taxpayer

standing.

Landowners' Non–Water–Related Concerns

[17] SOS Alliance also points to its members' concerns

about injuries that are distinct from increased pollution to the

water entering the aquifer, specifically: (1) increased traffic

congestion caused by the new residents of the developments,

which in turn might increase traffic safety hazards, (2)

increased light interfering with appreciation of nighttime

skies, and (3) decreased property value due to the prospect of

nearby high-density development SOS Alliance asserts that it

has standing because of these concerns of its members who

live near the developments.

[18] Even assuming these members may have standing to

sue in their own right, to have associational standing SOS

Alliance must show that the interests it seeks to protect are

germane to the organization's purpose (the second prong

of associational standing). See Texas Ass'n of Bus., 852

S.W.2d at 447. We note that, in this lawsuit, SOS Alliance

seeks to protect its members' environmental interests, which

are germane to its purpose. However, to have associational

standing, we conclude that the interest that is “germane to the

organization's purpose”—thereby satisfying the second prong

—must also relate to the interest by which its members would

“have standing to sue in their own right”—thereby satisfying

the first prong. See Hays County v. Hays County Water

Planning P'ship, 106 S.W.3d 349, 357 (Tex.App.-Austin

2003, no pet.) (association was created to address “these kinds

of community issues” by which its members showed standing

to sue on their own behalf). We do not think the associational

standing factors are intended to permit an association that has

an interest against a challenged activity to obtain standing

by adding a member who has individual standing to sue

based on his own unrelated interest against the same activity.

Therefore, SOS Alliance cannot satisfy the second prong of

associational standing based on its members' environmental

concerns, while satisfying the first prong solely based on

certain members' unrelated concerns regarding their property

values.

To establish standing based on its members' non-waterrelated concerns, then, SOS Alliance must show that those

interests are germane to its purpose. According to its petition,

SOS Alliance is “formed for the purpose of protecting the

Edwards Aquifer with particular emphasis on preventing

*887 further pollution of Barton Springs and reversing

the water quality degradation of Barton Springs that has

already occurred.” We are unpersuaded that increased time

and danger for automobile travel, impaired viewing of the

night sky, and decreased property value for landowners in the

Barton Springs contributing and recharge zones is “germane

to” SOS Alliance's purpose of reducing water pollution

in Barton Springs. We recognize that SOS Alliance's

mission to protect the water that feeds Barton Springs

would generally result in opposition to developments in the

contributing and recharge zones. According to the affidavit

of SOS Alliance's communications director, “[a] significant

amount of the activities of SOS Alliance are devoted to

preventing or stopping governments from granting special

favors to landowners and developers that facilitate destructive

development in the recharge and contributing zones.” It is

equally apparent that a successful opposition to development

can, in turn, benefit such interests as low traffic and low light

levels for residents in the area. However, the fact that SOS

Alliance's mission would benefit a member's interest does not

mean that particular interest is included in—or germane to—

SOS Alliance's purpose. 9

SOS Alliance refers to two federal cases in which members

of an environmental organization had standing based on

diminished property value resulting from the defendant's

conduct. See Laidlaw Envtl. Servs., 528 U.S. at 182–83,

120 S.Ct. 693; Gaston Copper Recycling, 204 F.3d at

156. Although neither case addresses the second prong of

associational standing, we note that in both cases, the alleged

decrease in property value was attributable to pollution

by the defendant. See Laidlaw Envtl. Servs., 528 U.S. at

182–83, 120 S.Ct. 693 (member “believed the pollutant

discharges accounted for some of the discrepancy” in home

value); Gaston Copper Recycling, 204 F.3d at 156 (member

claimed “the pollution or threat of pollution has diminished

the value of his property”). Therefore, in those cases, the

interest of the members who had standing individually

(combating the pollution that was lowering their property

values) was germane to the purpose of the organization

(combating pollution in general). Unlike in those cases, the

SOS Alliance member who alleged a decrease in property

value attributed the decrease solely to the fact that it was

a “high-density development.” SOS Alliance's members'

concerns that neighboring high-density developments will

cause artificial light sources to increase, road traffic to

increase, and property values to decrease are not germane to

SOS Alliance's mission to protect the Edwards Aquifer water.

Therefore, SOS Alliance has not met the second prong of

associational standing by alleging its members' concerns as

landowners not related to Edwards Aquifer water.
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We affirm the district court's granting of appellees' pleas to

the jurisdiction as to SOS Alliance's claims that are not related

to the Open Meetings Act. 10

*888 Sufficiency of City's Public Notices

In its third point on appeal, SOS Alliance contends that

the district court erred in granting summary judgment to

appellees on SOS Alliance's cause of action under the

Texas Open Meetings Act (the “Act”). In its petition, SOS

Alliance alleged that the City's public notices regarding the

Development Agreements failed to comply with the Act's

requirement that the subject of a meeting be sufficiently set

forth. Section 551.041 of the Act requires that a governmental

body “give written notice of the date, hour, place, and subject

of each meeting held by the governmental body.” Tex. Gov't

Code Ann. § 551.041 (West 2004) (emphasis added).

We review summary judgments de novo. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

Under the standard applicable to a traditional motion for

summary judgment, the motion should be granted only when

the movant establishes that there is no genuine issue as to any

material fact and that it is entitled to judgment as a matter of

law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548 (Tex.1985). When both parties

move for summary judgment and the trial court grants one

party's motion and denies the other party's, as occurred in this

case, the reviewing court should review both sides' summary

judgment evidence and determine all questions presented. FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex.2000). Thus, if the district court erred, we will reverse

and render the judgment the court should have rendered. Id.

In the event that the City's notices were insufficient under the

Act, the City's actions taken in connection with the defective

portions of the notices are voidable. See Tex. Gov't Code

Ann. § 551.141 (West 2004); Point Isabel Indep. Sch. Dist. v.

Hinojosa, 797 S.W.2d 176, 182–83 (Tex.App.-Corpus Christi

1990, writ denied).

The public notice concerning the Cypress–Hays

Development Agreement stated as follows:

Consider Approving a Development

Agreement with Cypress–Hays, L.P.,

including adopting Ordinance No.

1280.1 Designating a District under

Section 42.044 of the Texas Local

Government Code.

The public notice concerning the Mak Foster Development

Agreement, posted ten days later, contained identical

language, except that “Cypress–Hays, L.P.” was replaced

with “Mak Foster Ranch. L.P.,” and “Ordinance No. 1280.1”

was replaced with “Ordinance No. 1280.2.” SOS Alliance

complains that these notices insufficiently communicate the

subject of the Development Agreements because they do not

alert a member of the public to the Agreements' substantial

impact—including thousands of homes, central water and

wastewater systems, commercial development, and golf

courses. Moreover, the notices do not refer to the property

locations, the multiple variances from City ordinances, 11

or the time periods for which the Agreements could not be

altered.

*889 The Texas Supreme Court has noted that, under the

notice requirements of the Act, “less than full disclosure

is not substantial compliance.” Cox Enters., Inc. v. Board

of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960

(Tex.1986). However, the supreme court has also held that it

is not necessary to “state all of the consequences which may

necessarily flow from the consideration of the subject stated.”

Texas Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675,

676 (Tex.1977).

We are guided by this Court's analysis in Friends of Canyon

Lake, Inc. v. Guadalupe–Blanco River Authority, 96 S.W.3d

519 (Tex.App.-Austin 2002, pet. denied). In that case,

this Court concluded that the following notice sufficiently

described the applicable subject matter of the meeting:

Water Purchase Contract among

GBRA, CRWA, City of Cibolo, City

of Marion, City of Schertz, ECWSC,

GVSUD, SHWSC, & BMWD;

Outline of Preliminary Agreement

concerning joint participation in a

treated water supply for portions of

Comal, Kendall, & Bexar Counties.

96 S.W.3d at 530. The plaintiff complained that the notice

was insufficient to inform the public that the river authority

would seek to double the amount of water to which it was

entitled on an annual basis, sell a portion of the water

outside its ten-county area, and require the construction of

$75 million in improvements. See id. This Court recognized

that the notice “might not inform the casual reader of the
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precise consequences” of the agreements at issue, but held

nonetheless that the notice was sufficiently descriptive to

satisfy the Act See id. at 531 (citing Texas Turnpike Auth.,

554 S.W.2d at 676).

[19] In this case, like the notice at issue in Friends of Canyon

Lake, the City's notices identified the applicable parties to

the agreements and stated the type of agreement at issue—

a development agreement. Moreover, just as the notice in

Friends of Canyon Lake set out the counties affected without

specifying the precise area, the notices here referenced

section 42.044 of the local government code, which governs

the creation of “industrial districts” within a municipality's

extraterritorial jurisdiction. See Tex. Loc. Gov't Code Ann.

§ 42.044(b) (West 2008). Section 42.044 also provides

that the municipality's contract with a landowner in the

industrial district can guarantee the district's immunity from

annexation by the municipality “for a period not to exceed 15

years.” Id. § 42.044(c)(1). Therefore, a reader of the notices

would be informed that the subject of the meetings would

include the potential approval of agreements with Mak Foster

and Cypress Hays that involved development, on property

in the City's extraterritorial jurisdiction, and potentially

with restrictions lasting up to 15 years. The City was not

obligated to state all the consequences that would flow

from these Development Agreements. See Texas Turnpike

Auth., 554 S.W.2d at 676. Indeed, had the notices listed all

the consequences that would follow from the Development

Agreements, including the variances to be provided and the

other issues highlighted by SOS Alliance, the result may

have been to overwhelm, rather than inform, the reader. See

City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d

762, 766 (Tex.1991) (“Far from serving the purposes of the

Act, this degree of specificity would so overwhelm readers

that it would prove even less informative than the current

notice.”); see also Texas Turnpike Auth., 554 S.W.2d at 676

(not necessary to “post copies of proposed resolutions”).

SOS Alliance argues that the notices' omission of the

location or size of the property subject to the proposed

Development *890 Agreements is at variance from the

City's standard notice practice. SOS Alliance relies on River

Road Neighborhood Ass'n v. South Texas Sports, which

found a notice insufficient under the Act based on “the

well established custom and practice” of the governmental

body. 720 S.W.2d 551, 557 (Tex.App.-San Antonio 1986,

writ dism'd w.o.j.). In that case, four public meetings had

involved a similar subject matter, with the notices identifying

the purpose as “discussion/action.” Because the notice for

the fifth meeting stated only “discussion,” the court held

that the public was not properly alerted to the possibility

that action would be taken. See id. Here, however, SOS

Alliance does not identify a “well established custom and

practice” applicable to development agreements. Instead,

SOS Alliance refers to notice postings that involved zoning

decisions. The Development Agreements do not involve

zoning. Cf. Tex. Loc. Gov't Code Ann. § 212.003(a) (West

2008) (restricting municipality's ability to regulate in its

extraterritorial jurisdiction). With no other public notice

posting related to development agreements with the City in

the record, SOS Alliance has not shown any well-established

custom and practice that would be relevant to the notices'

sufficiency. 12

SOS Alliance also argues that a more detailed description of

the subject matter was required because of the “high level of

public interest in these developments.” To show a heightened

public interest, SOS Alliance relies on affidavits of residents

in the extraterritorial jurisdiction who assert that they were

among many citizens who attended subsequent city council

meetings to raise their concerns regarding the Development

Agreements.

Even assuming SOS Alliance has demonstrated a heightened

public interest, we are not convinced that the notices'

description of subject matter should be deemed insufficient

as a result In Cox Enterprises, the Texas Supreme Court

held that, taking into account an increased level of public

interest, the bare description “personnel” was insufficient to

describe the selection of a new school superintendent and the

description “litigation” was insufficient to describe “a major

desegregation lawsuit which has occupied the Board's time

for a number of years, and whose effect will be felt for years to

come.” 706 S.W.2d at 959. The City's notices in this case are

much more detailed than those in Cox Enterprises. The City's

notices state the parties involved, the type of agreement at

issue, that the extraterritorial jurisdiction would be impacted

(based on the statute included in the notice), and that the

agreements might be approved as a result of the meeting. A

reader interested in development in the City's extraterritorial

jurisdiction would have had sufficient notice that the City

was considering action relevant thereto. See Fourth Court

of Appeals, 820 S.W.2d at 766; Rettberg v. Texas Dep't of

Health, 873 S.W.2d 408, 411 (Tex.App.-Austin 1994, no

writ) (“notice is sufficient under the Act when it alerts a reader

that some action will be taken relative to a topic”).
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

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Having concluded that the notices were sufficiently

descriptive so as to state the subjects of the meetings in

accordance with section 551.041 of the Open Meetings Act,

we overrule SOS Alliance's third point *891 on appeal. 13

Attorneys' Fees

[20] [21] In its remaining points on appeal, SOS Alliance

asserts that, even if we affirm the trial court's granting of

appellees' pleas to the jurisdiction and motions for summary

judgment, the district court erred in awarding attorneys'

fees to Mak Foster. 14 In a proceeding under the Uniform

Declaratory Judgments Act, a court may award “reasonable

and necessary attorney's fees as are equitable and just” Tex.

Civ. Prac. & Rem.Code Ann. § 37.009. A trial court's award

of attorneys' fees under the UDJA is reviewed for an abuse

of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20–

21 (Tex.1998). A trial court abuses its discretion by awarding

fees when there is insufficient evidence that the fees were

reasonable and necessary, or when the award is inequitable or

unjust Id. at 21.

[22] As an initial matter, SOS Alliance argues that Mak

Foster failed to segregate between its defense of claims

for which recovery of attorneys' fees was proper and those

for which such recovery was not proper. See West Beach

Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 267 (Tex.App.-

Austin 2002, no pet.). However, SOS Alliance fails to provide

a reason for which any of its particular claims independently

would not provide a valid basis for Mak Foster's recovery

of attorneys' fees. Regarding its Open Meetings Act claim,

SOS Alliance refers to section 551.142 of the Act, which

permits a court to award the defendant reasonable attorneys'

fees in an action by mandamus or injunction regarding a

potential violation of the Act, provided that the court consider

whether the action was brought in good faith. See Tex.

Gov't Code Ann. § 551.142 (West 2004). According to its

petition, however, SOS Alliance brought its Open Meetings

Act claim as an action under the UDJA, not as an action

by mandamus or injunction under section 551.142. See Tex.

Civ. Prac. & Rem.Code Ann. § 37.004(a). Regarding its other

claims, SOS Alliance questions whether the district court had

jurisdiction to award attorneys' fees that were incurred in

connection with claims over which the court determined it

had no subject-matter jurisdiction. The district court did have

this authority. 15 See id. § 37.009 (court may award attorneys'

fees in any proceeding under the UDJA); Galveston County

Comm'rs' Court v. Lohec, 814 S.W.2d 751, 755 (Tex.App.-

Houston [14th Dist.] 1991) (op. on reh'g) (court may award

attorneys' fees incurred in defense *892 of UDJA claims

brought by party without standing), rev'd on other grounds,

841 S.W.2d 361 (Tex.1992).

[23] [24] SOS Alliance also argues that Mak Foster

failed to segregate between its defense of claims asserted

by SOS Alliance and those asserted by Friendship Alliance,

the co-plaintiff that settled with appellees. “A party seeking

attorney fees has a duty ... to segregate the fees owed by

different parties.” See French v. Moore, 169 S.W.3d 1, 17

(Tex.App.-Houston [1st Dist.] 2004, no pet.). There is no

duty to segregate, however, when the causes of action are

dependent upon the same set of facts or circumstances and

are intertwined to the point of being inseparable. Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex.1991).

Mak Foster relies on SOS Alliance's motion to consolidate

to show that the claims asserted by the co-plaintiffs were

intertwined, 16 but that motion is not in the appellate record.

Similarly, Friendship Alliance's petition is not in the record

for our review. We are limited to the appellate record

provided. See Tex.R.App. P. 34.1; Merchandise Ctr., Inc.

v. WNS, Inc., 85 S.W.3d 389, 394 (Tex.App.-Texarkana

2002, no pet.) (“Materials outside the record ... that are

improperly included in or attached to a party's brief ... may

not be considered by an appellate court in its review of

the appeal on its merits.”). However, our review of what

the record does contain gives us no reason to conclude that

Friendship Alliance's lawsuit did not involve the same set

of facts and circumstances. See Enterprise Leasing Co. v.

Barrios, 156 S.W.3d 547, 550 (Tex.2004) (“If the pertinent

summary judgment evidence considered by the trial court is

not included in the appellate record, an appellate court must

presume that the omitted evidence supports the trial court's

judgment.”). We conclude that Mak Foster had no duty to

segregate the fees owed by the co-plaintiffs.

[25] [26] [27] Next, SOS Alliance asserts that the

evidence is insufficient to support an award of attorneys'

fees in the amount requested by Mak Foster. As a general

rule, the party seeking to recover attorneys' fees carries

the burden of proof. Stewart Title Guar. Co., 822 S.W.2d

at 10. Whether an award of attorneys' fees is reasonable

and necessary is a fact question. Bocquet, 972 S.W.2d at

21. SOS Alliance contends that Mak Foster's evidence of

attorneys' fees “consists entirely of the conclusory, selfserving, affidavit[ ] of lead counsel[ ].” However, contrary to

SOS Alliance's contention, that affidavit sets out the attorneys

who performed the work, the number of hours billed by

each, their hourly rates, and a description of the tasks for
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which legal services were performed. The affiant stated his

qualifications and experience, and averred that:

I am familiar with usual and customary

rates charged by attorneys in the area

for cases with comparable complexity

and amounts in controversy, and

the fees described above are those

customarily charged in this area for

the same or similar services by those

with similar experience, reputation,

and ability, considering the type

of controversy, the time limitations

imposed, the work involved, the

results obtained and length of the

firm's relationship with Mak Foster.

SOS Alliance suggests that only fee bills with unredacted

entries would be sufficient evidence of attorneys' fee

amounts, but *893 does not base its position on any legal

authority. We conclude that the evidence was sufficient

to show Mak Foster's attorneys' fees were reasonable and

necessary. See Texas Commerce Bank v. New, 3 S.W.3d

515, 517–18 (Tex.1999) (affidavit testimony in support of

attorneys' fees legally sufficient where attorney detailed the

services rendered and testified he was duly licensed attorney,

he was familiar with usual and customary attorneys' fees in

locality, and the fees sought were reasonable); Brockie v.

Webb, 244 S.W.3d 905, 909–10 (Tex.App.-Dallas 2008, pet.

denied) (“Generally, the nature and extent of the attorney's

services are expressed by the number of hours and the hourly

rate.”).

[28] [29] [30] [31] [32] SOS Alliance also contends

that the attorneys' fees amount awarded to Mak Foster—

$86,200—is “inequitable and unjust under the circumstances

of this case for a nonprofit organization dedicated to the

public good.” Similar arguments were stated by amicus

curiae, who expressed concern that “full fee awards for

bringing environmental and open government claims” are

a “threat of financial intimidation” that “can only have a

chilling effect on the ability of community organizations

to bring citizen suits on behalf of their members.” We

review whether attorneys' fees awarded under the UDJA are

equitable and just under an abuse of discretion standard. See

Bocquet, 972 S.W.2d at 21. An award can be inequitable

or unjust even when the fees are reasonable and necessary.

See id. However, when reviewing matters committed to the

trial court's discretion, an appellate court may not substitute

its judgment for that of the trial judge, and a trial court

does not abuse its discretion merely because it decides a

discretionary matter differently than the appellate court would

under similar circumstances. Baylor Univ. Med. Ctr. v. Rosa,

240 S.W.3d 565, 569 (Tex.App.-Dallas 2007, pet. denied).

The test for an abuse of discretion is whether the court acted

without reference to guiding rules and principles. See Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex.2004).

To show that the attorneys' fees award was not just and

equitable, SOS Alliance relies on its being a “nonprofit

organization dedicated to the public good” and the

“significance of the matters at stake in this lawsuit and that

SOS Alliance was at least somewhat successfully addressed.”

We do not consider this, standing alone, to make the award

of attorneys' fees to Mak Foster inequitable or unjust. It may

very well have been equitable and just for the district court

not to have awarded fees or to award some other amount,

but that does not make this award inequitable or unjust. See

Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist.,

198 S.W.3d 300, 318–19 (Tex.App.-Texarkana 2006, pet.

denied) (holding that trial court did not abuse its discretion in

awarding attorneys' fees to defendant in UDJA action, even

though SOS Alliance was “a local nonprofit organization,”

because “reasonable minds can differ concerning whether the

attorney's fees are just and equitable”). The award was a

matter of the district court's discretion, and we do not consider

the court to have abused its discretion in reaching the decision

it did.

Having concluded that the district court did not err in

awarding attorneys' fees to Mak Foster, we overrule SOS

Alliance's remaining points on appeal.

Conclusion

The judgment of the district court is affirmed.

Chief Justice LAW Not Participating.

Before Chief Justice JONES, Justices PATTERSON,

PURYEAR, PEMBERTON, WALDROP and HENSON.

*894 ORDER

PER CURIAM.

Save Our Springs Alliance, Inc. has filed a motion for

reconsideration en banc. The motion is denied.
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It is ordered February 12, 2010.

Dissenting Opinion by Justice PATTERSON, Joined by

Justice HENSON.

JAN P. PATTERSON, Justice, dissenting.

Review en banc is warranted to “secure or maintain

uniformity” of this Court's decisions. See Tex.R.App.

P. 41.2(c). Because the two-justice panel's decision is

inconsistent with this Court's jurisprudence in an important

and recurring area of law—an association's standing to pursue

its member's claims of environmental harm—I respectfully

dissent from the denial of appellant's motion for en banc

reconsideration.

The panel holds that, in the absence of a statute conferring

standing, appellant Save Our Springs Alliance, Inc. (“SOS

Alliance”) was required to show that one of its members had

a property interest affected by appellees' actions. The panel's

holding, narrowing the class of claimants with common law

standing to assert recreational, scientific, and environmental

harm, conflicts with other opinions of this Court. See Texas

Rivers Prot. Ass'n v. Texas Natural Res. Conservation

Comm'n, 910 S.W.2d 147, 151–52 (Tex.App.-Austin 1995,

writ denied).

In Texas Rivers Protection Association, this Court held that

“[a]n injury need not affect ‘vested’ property rights to confer

standing” and that “the harm [for purposes of standing]

may be economic, recreational, or environmental.” See id.;

see also Coastal Habitat Alliance v. Public Util. Comm'n,

294 S.W.3d 276, 287 (Tex.App.-Austin 2009, no pet.)

(recognizing this Court's holding in Texas Rivers Protection

Association that “[a]n injury need not affect Vested' property

rights to confer standing” and, thus, “the harm [for

purposes of standing] may be economic, recreational, or

environmental”) 1; Walker v. City of Georgetown, 86 S.W.3d

249, 253 (Tex.App.-Austin 2002, pet. denied) (common

law rule for standing to enjoin actions of governmental

body satisfied if “the challenged action has caused the

plaintiff some injury in fact, either economic, recreational,

environmental, or otherwise”); Lindig v. City of Johnson City,

No. 03–08–00574–CV, 2009 WL 3400982, at *6–7, 2009

Tex.App. LEXIS 8188, at *19–20 (Tex.App.-Austin Oct. 21,

2009, no pet.) (op. on reh'g) (citing common law rule for

standing in Walker ).

The panel cites Lujan v. Defenders of Wildlife, 504 U.S. 555,

560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and Nobles

v. Marcus, 533 S.W.2d 923, 927 (Tex.1976), to support its

holding that SOS Alliance was required to show that one

of its members had an affected property interest to have

standing. Neither case, however, supports curtailing common

law standing here. That a party does not have standing to

assert a fraud claim when he was not the defrauded party is

not analogous to SOS *895 Alliance's alleged injury to its

members' environmental, recreational, and scientific interests

in public land. See Nobles, 533 S.W.2d at 927.

As to Lujan, the panel cites the Supreme Court's definition

of “injury in fact.” See 504 U.S. at 560, 112 S.Ct. 2130.

In the context of standing under Article III of the United

States Constitution, the Supreme Court defined “injury in

fact” as “an invasion of a legally protected interest which

is ... concrete and particularized” and “ ‘actual or imminent.’

” Id. (citation omitted); see also U.S. Const. art. III. The

panel focuses on the Supreme Court's requirement that the

interest be “legally protected,” but the Supreme Court did not

purport to restrict standing to property owners affected by the

challenged action there.

In that case, environmental associations on behalf of their

members challenged a rule promulgated by the Secretary of

the Interior concerning certain funded activities abroad that

allegedly increased the rate of extinction of endangered and

threatened species. Lujan, 504 U.S. at 562, 112 S.Ct. 2130.

Although the Supreme Court concluded that the associations

failed to show injury in fact to have standing to seek judicial

review of the rule, the Supreme Court recognized that, “[o]f

course, the desire to use or observe an animal species, even for

purely esthetic purposes, is undeniably a cognizable interest

for purpose of standing.” Id. at 562–63, 112 S.Ct. 2130. The

Supreme Court denied associational standing, not because

a member did not have a property interest, but because the

associations failed to demonstrate redressability and “actual

or imminent” injury—i.e., that a member had “concrete

plans” to visit an area affected by the rule. Id. at 564, 568,

112 S.Ct. 2130.

The Supreme Court more recently addressed injury in fact

in the context of allegations of environmental harm to the

national forests:

It is common ground that the

respondent organizations can assert

the standing of their members.

To establish the concrete and
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

particularized injury that standing

requires, respondents point to their

members' recreational interests in the

National Forests. While generalized

harm to the forest or the environment

will not alone support standing, if that

harm in fact affects the recreational or

even the mere esthetic interests of the

plaintiff, that will suffice.

See Summers v. Earth Island Inst., 555 U.S. 488, ––––, 129

S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009); see also Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting

Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361,

31 L.Ed.2d 636 (1972)) (“We have held that environmental

plaintiffs adequately allege injury in fact when they aver that

they use the affected area and are persons ‘for whom the

aesthetic and recreational values of the area will be lessened’

by the challenged activity.”); Bennett v. Spear, 520 U.S. 154,

167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (defining injury

in fact as “an invasion of a judicially cognizable interest”).

Consistent with its decision in Lujan, the Supreme Court

denied standing to challenge the regulations at issue because

there was no live dispute over a concrete application of the

regulations, not because the organizations failed to show a

property interest by their members to confer standing. 129

S.Ct. at 1152–53. 2

This Court's holding in Texas Rivers Protection Association

that “an injury need not affect Vested' property rights to

*896 confer standing” conforms with federal case law

concerning standing under Article III. See Summers, 129 S.Ct.

at 1149; Lujan, 504 U.S. at 562–63, 112 S.Ct. 2130; Texas

Rivers Prot. Ass'n, 910 S.W.2d at 151–52. The panel's holding

to the contrary here should not be sustained in the absence of

review en banc. See Tex.R.App. P. 41.2(c).

Because the panel's decision is inconsistent with this

Court's jurisprudence in an important and recurring area, I

would grant appellant SOS Alliance's motion for en banc

reconsideration. 3

Joined by Justice Henson.

Footnotes

1 Given that SOS Alliance's interests against the Development Agreements spring from environmental concerns, we note that the

Agreements contain several environmental-protection provisions, requiring the developers to (1) comply with applicable state

rules “designed to protect the quality of the Edwards Aquifer,” (2) obtain and comply with any required “no-discharge” permits

regarding treated sewage effluent, (3) comply with any U.S. Army Corps of Engineers authorizations under section 404 of the

federal Clean Water Act, (4) prepare and implement a “storm water pollution prevention plan,” (5) ensure no adverse effect on

listed endangered species or their critical habitat in accordance with the federal Endangered Species Act, and (6) implement certain

voluntary environmental protection measures, including an integrated pest management program at any golf course, education of

property owners, and buffering of sensitive drainage areas.

2 During the same time period, another organization, Friendship Alliance, filed suit against the City challenging the legality of the

Development Agreements. The two lawsuits were consolidated in early 2003. Friendship Alliance settled its lawsuit in 2004 after

certain amendments to the Agreements had been negotiated.

3 SOS Alliance has dismissed its claims against Cypress–Hays, which is no longer a party to this case. See Save Our Springs Alliance

v. City of Dripping Springs, No. 03–04–00683–CV (Tex.App.-Austin Dec. 7, 2007) (per curiam) (order). Also, on April 27, 2007,

this Court issued an order staying the appeal due to SOS Alliance's declaration of bankruptcy. On September 15, 2008, on the motion

of appellee Mak Foster, we reinstated the appeal.

4 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 173, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); American

Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 509 (4th Cir.2003); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,

204 F.3d 149, 153 (4th Cir.2000); Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 553 (5th Cir.1996), cert. denied, 519 U.S. 811, 117

S.Ct. 57, 136 L.Ed.2d 20 (1996); Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1111–12 (4th Cir.1988), cert. denied, 491 U.S.

904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989); Friends of the Earth, Inc. v. Chevron Chem. Co., 900 F.Supp. 67, 70 (E.D.Tex.1995).

5 SOS Alliance asserts that section 26.177 of the Texas Water Code “articulates standing rights at least as broad as the standing granted

under the federal Clean Water Act.” Section 26.177 authorizes “[a]ny person affected by any ruling, order, decision, ordinance,

program, resolution, or other act of a city relating to water pollution control and abatement outside the corporate limits of such city”

adopted pursuant to statute to appeal such action to district court. Tex. Water Code Ann. § 26.177(d) (West 2008). However, such a

lawsuit must be filed within 60 days of the challenged act of the city. See id. Regardless of whether section 26.177 could apply to SOS
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

Alliance and would provide standing as broad as the CWA, SOS Alliance does not allege that it satisfied the 60–day requirement. The

Development Agreements were approved in April 2001. This lawsuit was filed in November 2002. SOS Alliance has not asserted

any claims under section 26.177, nor could it have. Moreover, SOS Alliance does not allege any other statute on which its standing

to assert its claims not related to the Open Meetings Act might be based.

6 We note that this Court's holding in Texas Rivers that harm for purposes of standing may be “economic, recreational, or

environmental” appears to be connected to federal case law in which a federal statute protected such interests. The Texas case from

which the “economic, recreational, or environmental” language originates is Housing Authority of Harlingen v. State in its general

statement of the test for standing. 539 S.W.2d 911, 913–14 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). As authority for

the language, the court in Housing Authority of Harlingen cited several United States Supreme Court opinions, and appears to have

taken its description of the scope of an injury in fact from Association of Data Processing Service Organizations, Inc. v. Camp, 397

U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In that case, the Supreme Court observed that the legal interest required for purposes

of standing “may reflect ‘aesthetic, conservational, and recreational’ as well as economic values,” provided that “the interest sought

to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional

guarantee in question.” 397 U.S. at 153–54, 90 S.Ct. 827.

7 SOS Alliance contends that this conclusion ignores SOS Alliance's “long and proud history” of obtaining standing to challenge

government actions. SOS Alliance relies on Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161 (Tex.App.-Austin 1996, orig.

proceeding), as indicative of such standing. However, that case involved standing based on a statute—the Texas Open Meetings Act.

See 934 S.W.2d at 162. That Act authorizes an “interested person” to file suit. See Tex. Gov't Code Ann. § 551.142(a) (West 2004).

According to Lowry, this statutory provision dispenses with the standing requirement of an injury distinct from that of the general

public. Lowry, 934 S.W.2d at 163.

Similarly, the San Marcos River Foundation (SMRF) filed a letter brief as amicus curiae, expressing its concern that a determination

in this case that SOS Alliance does not have standing based on environmental harm would impair SMRF's future ability to litigate.

We note that in City of San Marcos v. Texas Commission on Environmental Quality—by which, SMRF asserts, it was successful in

protecting the San Marcos River—a statute specifically authorized judicial review. 128 S.W.3d 264, 266 (Tex.App.-Austin 2004,

pet. denied) (citing Tex. Water Code Ann. § 5.351 (West 2008)). Thus, our adjudication of SOS Alliance's standing in the absence

of such statutory provision will not likely affect SMRF's future ability to again file suit under the same statute.

8 SOS Alliance argues that it should not be required to “hire experts to map and calculate local hydrogeological flows to engage in

debates about gradients of flows” at this stage. Whether or not this is the case, SOS Alliance must at least provide evidence that

a member “used an area subject to contamination from the discharge.” American Canoe Ass'n, 326 F.3d at 520. In the cases SOS

Alliance cites on this issue, unlike here, there was evidence from which the court could find that the consequences of the challenged

action of the defendant would in fact extend to the plaintiff. See id. (members' use of river was downstream from polluting defendant);

Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 624, 627 (Tex.1996) (landowner over Edwards

Aquifer challenges constitutionality of statute governing entire aquifer); City of Canyon v. McBroom, 121 S.W.3d 410, 415 (Tex.App.-

Amarillo 2003, no pet.) (landowner in flood plain complaining of increased risk of flooding); Lake Medina Conservation Soc'y

v. Texas Natural Res. Conservation Comm'n, 980 S.W.2d 511, 515–16 (Tex.App.-Austin 1998, pet. denied) (owners of lakefront

property challenging removal of water from lake); Texas Rivers Prot. Ass'n v. Texas Natural Res. Conservation Comm'n, 910 S.W.2d

147, 151 (Tex.App.-Austin 1995, writ denied) (property owners “fronting the affected area of the river” challenging diversion of

water from river).

9 In fact, it appears more feasible that many of these members' interests as landowners might even be contrary to SOS Alliance's

purpose. SOS Alliance would likely welcome declining property values if they would enable SOS Alliance to place more watershed

land into long-term conservation easements, and would likely welcome inconveniences such as increased traffic and light if the result

was surrounding areas becoming less desirable for home buyers and future real estate developers. Moreover, in the event that Mak

Foster and Cypress Hays successfully develop their properties in accordance with the Development Agreements, we question whether

SOS Alliance would subsequently seek to protect those developments' interests in increasing property values as well.

10 In its second point on appeal, SOS Alliance contends that the district court erred in granting appellees' pleas to the jurisdiction based

on the case not being ripe for adjudication as to any land that had not become subject to a finally approved plat, and based on the

case being moot as to land that was subject to a finally approved plat that SOS Alliance neither appealed nor challenged. Given that

we have determined that the court does not have subject-matter jurisdiction based on standing, we need not consider the issues of

ripeness or mootness.

11 SOS Alliance alleges that the Cypress–Hays Development Agreement contains more than 32 variances, including reduction of

minimum lot size, reduction of minimum setbacks, and reduction of plat review and approval time.

12 In fact, given that the Development Agreements were apparently without precedent as to the City (SOS Alliance itself describes

the developments as “unprecedented in size and density for Dripping Springs”), it appears that the City actually followed its usual
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16

custom and practice. The second notice—for the Mak Foster Development Agreement—was essentially identical to the first notice

—for the Cypress Hays Development Agreement.

13 Appellees argue that any potential violations of the Act were validated by the legislature in 2003. See Tex. Loc. Gov't Code Ann.

§ 212.172(h) (West 2008) (“An agreement between a municipality and a landowner entered into prior to the effective date of this

section and that complies with this section is validated.”). Because we conclude that SOS Alliance has not shown a violation of the

Act, we need not address this argument

14 Due to a partial settlement between SOS Alliance and the City, SOS Alliance does not seek appellate review of the attorneys' fees

awarded to the City.

15 Neither of the cases cited by SOS Alliance suggests otherwise. In Gregg County Appraisal District v. Laidlaw Waste Systems, Inc.,

the statute at issue allowed attorneys' fees for a property owner who prevailed in his tax appeal. 907 S.W.2d 12, 21 (Tex.App.-Tyler

1995, writ denied). To the extent the trial court did not have jurisdiction over the owner's claims, he did not “prevail” and, therefore,

by statute was not entitled to attorneys' fees. Id. In Lipshy Motorcars, Inc. v. Sovereign Associates, Inc., 944 S.W.2d 68 (Tex.App.-

Dallas 1997, no writ), an appellate court determined it had no jurisdiction to consider a motion for sanctions and attorneys' fees

against an appellant who attempted to appeal a non-appealable interlocutory order. 944 S.W.2d at 70–72.

16 According to Mak Foster, SOS Alliance represented in its motion to consolidate that the plaintiffs' lawsuits were “based on identical

facts and circumstances,” asked for “identical declaratory and nearly identical injunctive relief,” and were based on “identical legal

grounds.”

1 In Coastal Habitat Alliance, this Court also cites Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir.2001) (“That the litigant's

interest [for purposes of standing] must be greater than that of the public at large does not imply that the interest must be a substantive

right sounding in property or contract.”), to support its conclusion that “[w]hether a plaintiff has standing in federal courts to assert

a cause of action is not indicative of the deprivation of a vested property right.” Coastal Habitat Alliance v. Public Util. Comm'n,

294 S.W.3d 276, 287 (Tex.App.-Austin 2009, no pet.).

2 In Summers, the government conceded that affidavits that a member had “repeatedly visited” a particular public site, that he had

“imminent plans to do so again,” and that “his interests in viewing the flora and fauna of the area” would be harmed were sufficient to

establish standing under Article III. Summers v. Earth Island Inst., 555U.S. 488, ––––, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009).

3 Because I believe review en banc is warranted based upon the standing issue, I limit my review to this ground.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
State v. Holland, 221 S.W.3d 639 (2007)

50 Tex. Sup. Ct. J. 642

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

221 S.W.3d 639

Supreme Court of Texas.

STATE of Texas, Texas General Land Office,

and Texas Land Commissioner, Petitioners,

v.

Herbert W. HOLLAND, Respondent.

No. 05–0292. | Argued Sept. 27,

2006. | Decided April 20, 2007.

Synopsis

Background: Holder of patent for polymer-based filters

brought action against State, alleging State's refusal to

pay for use of his patented process for cleaning oilcontaminated bilge water constituted a taking under the Texas

Constitution. The 23rd District Court, Matagorda County,

Craig Estlinbaum, J., denied State's plea to the jurisdiction,

and State appealed. The Court of Appeals, 161 S.W.3d 227,

affirmed. State appealed.

Holdings: The Supreme Court, O'Neill, J., held that:

[1] Supreme Court had jurisdiction because Court of Appeals'

decision conflicted with prior Supreme Court holding, and

[2] State did not have requisite intent for takings claim

because it acted under color of contract with patent holder's

companies.

Reversed and dismissed.

Attorneys and Law Firms

*641 Greg Abbott, Attorney General of Texas, Barry Ross

McBee, Edward D. Burbach, Rafael Edward Cruz, Office

of the Attorney General, Kristofer S. Monson, Assistant

Solicitor General, Austin, for Petitioners.

Thomas W. Sankey, Greg M. Luck, Godwin Gruber, LLP,

Michael T. McLemore, Danny L. Williams, Williams Morgan

& Amerson, Houston, Eric G. Walraven, Godwin, Pappas &

Ronquillo, LLP, Dallas, for Respondent.

Opinion

Justice O'NEILL delivered the opinion of the Court.

Herbert Holland developed a cost-effective process to clean

oil-contaminated bilge water. The State of Texas, seeking

to abate oil pollution in its coastal waters, contracted with,

and paid more than $160,000 to, Holland's companies for

assistance in designing and constructing filtration units along

the Texas Gulf Coast. Holland later received a patent on

the decontamination process and began demanding additional

payments as patent royalties. When the State refused to pay,

Holland filed this suit claiming the State's unauthorized use of

his patented technology constituted a taking under Article I,

section 17 of the Texas Constitution. We must decide whether

a takings claim is the proper avenue for a patentholder who

performs services under contract with the State to assert

patent rights. We hold that it is not when, as here, the State's

use is pursuant to colorable contract rights. Because Holland

cannot state a takings claim for the State's alleged unlawful

use of his patent, the State is entitled to immunity from suit.

Accordingly, we reverse the court of appeals' judgment and

dismiss Holland's claim for want of jurisdiction.

I. Background

In the late 1990s, the General Land Office (GLO) began

working on a project to abate pollution resulting from

commercial fishing boats illegally discharging oily bilge

water into coastal waters. The GLO contracted with two

companies, Spill Removal Products, Inc. (SRP) and Pollution

Prevention Products (PPP), to provide design services,

components, installation and consulting services for the

construction of three bilge water processing facilities located

in Port Isabel, Port Lavaca, and Palacios. Herbert Holland

developed the polymer-based pollution filters used in the

facilities and the process for their installation. According

to Holland, he was the “managing member” of PPP and

the president of SRP, and it is undisputed that all of the

GLO's contacts on the project were with him. The three

processing facilities were completed by 2001, and all three

used Holland's polymer-based filtration system to extract oil

from contaminated bilge water. The GLO paid more than

$160,000 to PPP and SRP pursuant to their agreement.

Holland applied for a patent on his filtration process in 1998,

and in 2000 received Patent No. 6,027,653 for a “Method

of Removing Organic Compounds from Air and Water
State v. Holland, 221 S.W.3d 639 (2007)

50 Tex. Sup. Ct. J. 642

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Columns,” referred to as the “#653 patent.” Claim 13 of the

patent describes a method of removing and collecting *642

contaminants, first by pretreating the water and then directing

it through a series of separation and filtration media. 1 Claim

19 describes the apparatuses used in the separation and

filtration processes. The GLO facilities use the method and

apparatuses described in Claims 13 and 19 of the patent.

In 2002, Holland contacted the GLO and began demanding

payment of patent royalties for the three facilities' use of his

patented process. The GLO's contracts with PPP and SRP did

not provide for the payment of patent royalties.

When the GLO refused to make any additional payments,

Holland sued the State of Texas, the GLO, and the Texas Land

Commissioner (collectively “the State”) alleging that use of

his patented process at the Palacios reclamation facilities

infringed the 

′

653 patent.

2

 He further alleged that the State's

use of his patented process constituted a taking of his property

for public use without compensation in violation of Article I,

section 17 of the Texas Constitution. After entering a general

denial, the State filed a plea to the jurisdiction which the

trial court denied. The court of appeals affirmed, holding that

Holland had adequately pled a takings claim against the State

for which immunity was waived. 221 S.W.3d at 643. We

granted the State's petition for review to examine the State's

sovereign immunity under the circumstances presented.

II. Jurisdiction

[1] Because this is an interlocutory appeal from the trial

court's denial of a jurisdictional plea, and there was no dissent

in the court of appeals, we have jurisdiction only if the court

of appeals' decision conflicts with a prior decision of this

Court or of another court of appeals. TEX. GOV'T CODE

§§ 22.001(a)(1), (2). Decisions conflict for jurisdictional

purposes “when there is inconsistency in their respective

decisions that should be clarified to remove unnecessary

uncertainty in the law and unfairness to litigants.” Id. §

22.001(e). As we explain below, the trial court erred in

denying the State's plea to the jurisdiction because the State

was acting under color of contract in utilizing the treatment

process that the 

′

653 patent covers. Because Holland's claim

does not arise as a taking under the constitution but sounds

in contract, the court of appeals' decision conflicts with

our decision in General Services Commission v. Little–Tex

Insulation Co., 39 S.W.3d 591 (Tex.2001), and we have

jurisdiction to resolve the conflict.

III. Standard and Scope of Review

[2] [3] [4] [5] [6] A plea to the jurisdiction based

on sovereign immunity challenges a trial court's jurisdiction.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225–26 (Tex.2004). A plea questioning the trial

court's jurisdiction raises a question of law that we review

de novo. Id. at 226. We focus first on the plaintiff's

petition to determine whether the facts pled affirmatively

demonstrate that jurisdiction exists. *643 Id. We construe

the pleadings liberally, looking to the pleader's intent. Id.

If the pleadings are insufficient to establish jurisdiction but

do not affirmatively demonstrate an incurable defect, the

plaintiff should be afforded the opportunity to replead. Id. at

226–27. In some instances, however, a plea to the jurisdiction

may require the court to consider evidence pertaining to

jurisdictional facts. Id. at 227; Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 555 (Tex.2000). A plea should not be granted

if a fact issue is presented as to the court's jurisdiction, but

if the relevant undisputed evidence negates jurisdiction, then

the plea to the jurisdiction must be granted. Miranda, 133

S.W.3d at 227–28.

IV. Analysis

The State contends Holland's petition does not present

a viable takings claim because the State designed and

constructed the bilge water reclamation facilities, which

utilized the process described in Holland's patent, under color

of contract. According to the State, it is of no moment that its

contract was with Holland's companies rather than Holland

himself; rather, the proper focus is whether the State had the

requisite intent to take property for public use and thus was

invoking its eminent-domain powers. Holland responds, and

the court of appeals agreed, that the State did not establish as

a matter of law that it was acting under color of contract with

Holland rather than with PPP and SRP. 161 S.W.3d at 233.

Holland contends the State's contract with his companies is

immaterial because he holds the ′635 patent individually, and

whether or not the State was acting pursuant to an implied

contract with him is a disputed fact question that the factfinder

must resolve. We agree with the State.

[7] [8] [9] [10] [11] Absent an express waiver of

its sovereign immunity, the State is generally immune from

suit. State v. Shumake, 199 S.W.3d 279, 283 (Tex.2006).

But sovereign immunity does not shield the State from
State v. Holland, 221 S.W.3d 639 (2007)

50 Tex. Sup. Ct. J. 642

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

a claim based upon a taking under Article I, section 17

of the Texas Constitution, known as the “takings clause.”

Little–Tex Insulation Co., 39 S.W.3d at 598. The takings

clause mandates 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. To establish a

takings claim under Article I, section 17, the claimant must

show that a governmental actor acted intentionally to take

or damage property for a public use. Little–Tex Insulation

Co., 39 S.W.3d at 598. When the government acts pursuant

to colorable contract rights, it lacks the necessary intent to

take under its eminent-domain powers and thus retains its

immunity from suit. Id. at 598–99. This is because the State

may “wear [ ] two hats: the State as a party to the contract and

the State as sovereign. The State, in acting within a color of

right to take or withhold property in a contractual situation,

is acting akin to a private citizen and not under any sovereign

powers.” Id. at 599 (citations omitted).

Holland contends he had no contract with the State and

therefore the State's use of his patent was unauthorized. But

absence of an express contract between Holland and the State,

or uncertainties about the existence of an implied contract

between them, are immaterial to determining the capacity in

which the State is acting. When we articulated the principle

distinguishing the State's eminent-domain capacity from its

contractual capacity in Little–Tex, we relied on State v.

Steck Co., 236 S.W.2d 866, 869 (Tex.Civ.App.-Austin 1951,

writ ref'd). In that case, Steck, a printer, sought to recover

from the State *644 the value of 39,603,690 cigarette tax

stamps it had manufactured and delivered to the State. Id.

at 867. The year before those stamps were delivered, Steck

had manufactured, delivered, and been paid for 300,000,000

cigarette stamps under a competitively bid, one-year contract.

Id. Pursuant to an oral agreement with the chief of the

printing division of the Cigarette Tax Stamp Board, Steck

continued to manufacture and deliver the stamps after the

first year's contract had expired. Id. When the State refused

payment, Steck sued. Id. The trial court determined that Steck

was entitled to compensation under Article I, section 17.

Id. at 867–68. We disagreed. First, we held there was no

enforceable contract because the State had failed to abide by

the legally required bidding procedures. Id. at 868. We also

held that Steck could not assert a takings claim under Article

I, section 17. Id. at 869. We reasoned that because Steck had

delivered and the State had accepted the stamps under the

purported, but nonexistent, contract, Steck could not contend

that the stamps had been taken under the State's eminentdomain power. Id.

Similarly, in A.C. Aukerman Co. v. State of Texas, 902 S.W.2d

576 (Tex.App.-Houston [1st Dist.] 1995, writ denied), the

State paid independent highway-construction contractors

who had used concrete roadway barriers manufactured

according to a process over which Aukerman asserted patent

rights. Id. at 577. Claiming the State had obtained the benefits

of his patents without paying compensation, Aukerman sued

the State for inverse condemnation. Id. The court of appeals

affirmed the trial court's summary judgment in the State's

favor, determining that any cause of action Aukerman might

have was for patent infringement against the independent

contractors. Id. at 578. Even if the contractors had infringed

Aukerman's patent, the court held, the State was merely a

party to contracts with them and, without more, could not be

liable for patent infringement. Id. (citing Am. Graphophone

Co. v. Gimbel Bros., 234 F. 361, 368 (S.D.N.Y.1916) (holding

that a purchaser of a product which has been made in

infringement of a patented process cannot be liable as an

infringer)). Having acquired the concrete barriers through its

third-party contract, the court concluded the State lacked the

intent necessary to establish a takings claim. Id. at 578–79.

In this case, the State presented uncontroverted evidence that

Holland voluntarily provided, and the State accepted, his

filtration process along with his design assistance pursuant to

contractual agreements with SRP and PPP. Whether or not

a contract may be implied between the State and Holland

individually, the State accepted Holland's product and his

services under color of its contracts with SRP and PPP, and

not pursuant to its powers of eminent domain. Any claim

for patent infringement Holland might have would be against

SRP and PPP, not the State as a mere party to a contract with

them. Lacking the requisite intent to take Holland's patented

process under its eminent-domain powers, the State is not

subject to liability under article I, section 17 of the Texas

Constitution. Accordingly, the trial court erred in denying the

State's plea to the jurisdiction.

V. Conclusion

We reverse the court of appeals' judgment and dismiss the

case for lack of jurisdiction.
State v. Holland, 221 S.W.3d 639 (2007)

50 Tex. Sup. Ct. J. 642

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Parallel Citations

50 Tex. Sup. Ct. J. 642

Footnotes

1 A patent “claim” sets forth an invention's parameters and describes in some detail “the subject matter which the [patent] applicant

regards as his invention.” 35 U.S.C. § 112; see 3 DONALD S. CHISUM, CHISUM ON PATENTS § 8.01 (2005).

2 The State submitted an affidavit attesting that the three facilities were completed in 1998. In response, Holland submitted an affidavit

disputing the State's affidavit to the extent it asserted that the Palacios facility “currently in use and operating was completed in 1998.”

This dispute is irrelevant to our analysis, which focuses on the assistance Holland provided in designing the three facilities. Holland's

petition in the trial court acknowledges that all three facilities use the same process and apparatus to process bilge water.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Sheth v. Dearen, 225 S.W.3d 828 (2007)

221 Ed. Law Rep. 967

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

225 S.W.3d 828

Court of Appeals of Texas,

Houston (14th Dist.).

Dhiren S. SHETH, M.D., Appellant,

v.

Donald C. DEAREN, Appellee.

No. 14–07–00004–CV. | May 24, 2007.

Synopsis

Background: Patient brought medical malpractice action

against surgeon, who performed surgery to repair hip fracture

and, during the surgery, implanted orthopedic hardware

device. The 334th District Court, Harris County, Sharon

McCally, J., denied surgeon's motion to dismiss, and he

appealed.

[Holding:] The Court of Appeals, Adele Hedges, C.J., held

that patient alleged a misuse of tangible property causing

his injuries, and these claims were within the scope of the

Tort Claims Act waiver provisions, and as such, patient's

malpractice suit could have been brought against state

university medical center, which employed surgeon.

Reversed and remanded.

Attorneys and Law Firms

*829 Nancy Bolin Broaddus, Houston, for appellant.

John A. Davis, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices

HUDSON and GUZMAN.

OPINION

ADELE HEDGES, Chief Justice.

Appellant, Dhiren S. Sheth, M.D. (“Dr.Sheth”) brings this

appeal following the trial court's denial of his motion to

dismiss pursuant to Section 101.106(f) of the Texas Tort

Claims Act. In his sole issue, Dr. Sheth argues that the trial

court erred in denying his motion to dismiss. We reverse and

remand.

I. BACKGROUND

In September of 2003, appellee, Donald C. Dearen, sustained

a hip fracture and was taken into surgery at Memorial

Hermann Hospital. Dearen was treated by Dr. Sheth, an

orthopedic surgeon practicing at the University of Texas

Health Science Center at Houston (“UTHSCH”). As part of

Dr. Sheth's appointment at UTHSCH, he provided medical

treatment to patients at Memorial Hermann Hospital.

In treating Dearen's hip fracture, Dr. Sheth performed surgery

which involved the implantation of an orthopedic hardware

device, known as a “short Gamma nail,” into Dearen's body. 1

As a result of this surgery, Dearen brought suit alleging

personal injuries caused by Dr. Sheth's negligence. Dr. Sheth

filed a motion to dismiss, which the trial court denied.

II. ANALYSIS

In Dr. Sheth's sole issue, he contends that the trial court

erred in denying his motion to dismiss pursuant to Section

101.106(f) of the Texas Tort Claims Act. Section 101.106(f)

provides that:

If a suit is filed against an

employee of a governmental unit

based on conduct within the

general scope of that employee's

employment and if it could have

been brought under this chapter

against the governmental unit, the

suit is considered to be against the

employee in the employee's official

capacity only. On the employee's

motion, *830 the suit against

the employee shall be dismissed

unless the plaintiff files amended

pleadings dismissing the employee

and naming the governmental unit

as defendant on or before the 30th

day after the date the motion is filed.

TEX. CIV. PRAC. & REM.CODE § 101.106(f). In this

case, Dearen does not dispute that his suit was based on

conduct within the general scope of Dr. Sheth's employment

with UTHSCH. The parties disagree, however, as to whether
Sheth v. Dearen, 225 S.W.3d 828 (2007)

221 Ed. Law Rep. 967

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Dearen's suit could have been brought under the Tort Claims

Act (TCA) against UTHSCH.

[1] [2] In Texas, a governmental agency is not liable for

the torts of its officers or agents unless there is a specific

legislative waiver of immunity. Lowe v. Texas Tech Univ.,

540 S.W.2d 297, 298 (Tex.1976). Sovereign immunity can

only be waived by clear and unambiguous language. Univ. of

Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177

(Tex.1994). The Texas Legislature enacted the TCA to waive

sovereign immunity in limited circumstances. See Kerrville

State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996).

[3] [4] [5] As the movant on the motion to dismiss, it

is Dr. Sheth's burden to point to the facts evidencing that

Dearen's suit could have been brought against UTHSCH.

See Phillips v. Dafonte, 187 S.W.3d 669, 677 (Tex.App.-

Houston [14th Dist.] 2006, no pet.) (“We find that the

doctors failed to establish that Dafonte's suit is one that

could have been brought against UTMB.”); Tejada v. Rowe,

207 S.W.3d 920, 923 (Tex.App.-Beaumont 2006, pet. filed)

(“We find that [the movants] met their burden of proof

under section 101.106(f).”); Williams v. Nealon, 199 S.W.3d

462, 466 (Tex.App.-Houston [1st Dist.] 2006, pet. filed)

(“[T]he doctors have not shown that Williams's claims could

have been brought against UTHSCH under the Texas Tort

Claims Act.”). The primary source of those facts are the

plaintiff's pleadings, however, other evidence is proper if

relevant to the issue of waiver of sovereign immunity. See

Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d

864, 868 (Tex.2001) (“We must examine the plaintiff's

pleadings and, to the extent relevant to the jurisdictional

issue, the evidence submitted by the parties in order to

determine if the government waived sovereign immunity.”);

see also Phillips, 187 S.W.3d at 676–77 (analyzing plaintiff's

petition as part of its 101.106(f) analysis); Tejada, 207

S.W.3d at 922–23 (reviewing, as part of its 101.106(f)

analysis, plaintiff's petition and two expert reports attached

to that petition in deciding whether plaintiff's suit could

have been brought under the TCA); Franka v. Velasquez,

216 S.W.3d 409, 412 (Tex.App.-San Antonio 2006, pet.

filed) (reviewing “the petition and the evidence presented”

in disposing of appellant's 101.106(f) issue). In determining

whether the plaintiff alleges facts supporting a finding of

waiver of sovereign immunity, we look at the substance of

the plaintiff's pleadings rather than his characterizations of

them. See Phillips, 187 S.W.3d at 676–77 (looking at “the real

substance of [plaintiff's] petition” in determining, as part of

its 101.106(f) analysis, whether plaintiff's claim could have

been brought under the TCA); see also Dallas County Mental

Health & Mental Retardation v. Bossley, 968 S.W.2d 339,

343 (Tex.1998) (“The real substance of plaintiffs' complaint

is that Roger's death was caused, not by the condition or use

of property, but by the failure of Hillside's staff to restrain

him once they learned he was still suicidal.”); Kerrville, 923

S.W.2d at 585 (“The gravamen of their complaint is that

KSH's non-use of an injectionable drug was the cause of

their daughter's death.”); Univ. of Tex. Health Sci. Ctr. v.

*831 Schroeder, 190 S.W.3d 102, 106 (Tex.App.-Houston

[1st Dist.] 2005, no pet.) (“Here, the gravamen of Schroeder's

complaints amount to negligent supervision.”). Where the

facts taken from the plaintiff's pleadings are undisputed, the

question of whether those pleadings support a jurisdictional

finding of waiver of sovereign immunity is one of law and

is thus reviewed de novo. See Tex. Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) (“[W]hether

undisputed evidence of jurisdictional facts establishes a trial

court's jurisdiction is also a question of law.”); see also Tex.

Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d

849, 855 (Tex.2002) (holding that the issue of whether a party

has properly alleged a valid waiver of sovereign immunity

is jurisdictional and is reviewed de novo); Waxahachie

Independent School District v. Johnson, 181 S.W.3d 781, 787

(Tex.App.-Waco 2005, pet. filed) (same); Kelso v. Gonzales

Healthcare Sys., 136 S.W.3d 377, 381 (Tex.App.-Corpus

Christi 2004, no pet.) (same). In this case, Dr. Sheth does not

dispute the facts presented in Dearen's pleadings; rather, he

disputes Dearen's characterization of those facts. As a result,

we apply the de novo standard. See Miranda, 133 S.W.3d at

226. 2

Dr. Sheth argues that Dearen's suit could have been brought

against UTHSCH pursuant to Section 101.021(2) of the TCA,

which waives governmental immunity for “personal injury

and death so caused by a condition or use of tangible personal

or real property if the governmental unit would, were it a

private person, be liable to the claimant according to Texas

law.” TEX. CIV. PRAC. & REM.CODE § 101.021(2). In

his motion to dismiss, Dr. Sheth relied on Dearen's original

petition, a report by Dearen's expert, and Dearen's responses

to various discovery to support his contentions. Dr. Sheth

contends that Dearen's pleadings allege the misuse of a device

implanted into his body, which caused Dearen's injuries. We

note that the plaintiff's pleadings should be the primary focus

of our inquiry regarding this jurisdictional issue of waiver of

sovereign immunity. See White, 46 S.W.3d at 868.
Sheth v. Dearen, 225 S.W.3d 828 (2007)

221 Ed. Law Rep. 967

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Dearen's expert wrote a report describing the procedure Dr.

Sheth performed on Dearen. The report states that Dr. Sheth

chose to stabilize Dearen's fracture by implanting a device,

dubbed the “short Gamma Nail,” into Dearen's body. The

report further states that because the Gamma nail is short,

it requires a distal interlocking screw for stability. Dearen's

original petition summarized his negligence claims arising

out of that surgery as:

(1) failing to initially align the nail hole and the hole in the

jig in order to permit the placement of the intramedullary

hip screw 3 to permit distal interlocking,

*832 (2) failing to correct the misalignment of the

nail hole and the hole in the jig in order to permit the

placement of the intramedullary hip screw to permit distal

interlocking,

(3) failing to engage the distal interlock of the

intramedullary hip screw in order to ensure proper leg

alignment, and

(4) failing to properly follow the patient to provide early

intervention that would have limited the scope and need

for subsequent surgeries and would have limited his

recovery time.

Such breaches of the standard of care were, among

others, individually and collectively proximate causes of

Plaintiff's injuries as claimed herein.

When Dearen's petition is viewed in conjunction with his

expert's report, which provides the necessary background

to understand the procedure, it becomes clear that Dearen

is complaining that Dr. Sheth's failure to stabilize the short

Gamma nail with the use of a distal interlocking screw

caused his injuries.

[6] The dispositive controversy in this jurisdictional

challenge is the characterization of Dr. Sheth's failure to

stabilize the Gamma nail with the distal interlocking screw.

A suit can only be brought under Section 101.102(2) when

there is a use of property. See Texas A & M Univ. v.

Bishop, 156 S.W.3d 580, 583 (Tex.2005) (finding that,

because the governmental officials did not use the property,

sovereign immunity was not waived thereby allowing suit to

be brought against the university); San Antonio State Hosp.

v. Cowan, 128 S.W.3d 244, 246 (Tex.2004) (finding that the

governmental entity did not use the property as required to

invoke waiver of immunity); Kerrville, 923 S.W.2d at 584

(holding that “mere non-use of property” [cannot] support a

claim under the Texas Tort Claims Act). Dr. Sheth frames

Dearen's petition as alleging a misuse of property—the short

Gamma nail was misused in that it was improperly secured

thereby causing Dearen's injuries. Dearen characterizes his

claims as a non-use of property—Dr. Sheth's failure to use the

distal interlocking screw caused his injuries.

We find the characterization of Dearen's pleadings as alleging

a misuse of the short Gamma nail to be a more accurate

representation of the substance of Dearen's claims. See

Bossley, 968 S.W.2d at 343 (looking at “the real substance

of plaintiff's complaint” to determine whether a sufficient

use was alleged as required by 101.021(2)); Kerrville, 923

S.W.2d at 585 (“The gravamen of their complaint is that

KSH's non-use of an injectionable drug was the cause of their

daughter's death.”); Phillips, 187 S.W.3d at 676–77 (looking

at “the real substance of [plaintiff's] petition” in determining,

as part of its 101.106(f) analysis, whether plaintiff's claim

could have been brought under the TCA).

The distal interlocking device is relevant only as a necessary 4

part of the larger device, the short Gamma nail. It is the

proper use of the entire device (the short Gamma nail), which

implicates the proper use of all the individual parts that

aggregate to make the whole device effective, *833 that is

crucial in stabilizing the hip thereby avoiding further injury.

The use or misuse of the screw is of no consequence in and

of itself: it is merely a piece of a larger, multi-part device and

is not designed to function alone.

[7] The line of cases in which courts have found a non-use,

and therefore non-waiver of immunity, is distinguishable.

For instance, in Texas Natural Resource Conservation

Commission v. White, White argued that TNRCC's failure to

continue use of a pump which was installed on his property to

dissipate gasoline vapors caused a fire which destroyed that

property. 546 S.W.3d at 870. The supreme court held that

such a claim involves a non-use of property outside the scope

of the sovereign immunity waiver statute. Id. Importantly,

the unused device (the pump) was alleged to be the direct

cause of damages. Id. In this case, however, the device that

Dearen claims was not used (the distal interlocking screw)

is only a piece of a larger device (the Gamma nail) that is

alleged to be the direct cause of his injuries. In Kassen v.

Hatley, the supreme court held that “the non-use of available

drugs during emergency medical treatment is not a use of

tangible personal property that triggers waiver of sovereign

immunity.” 887 S.W.2d 4, 14 (Tex.1994). Similarly, in

Kerrville State Hospital v. Clark, the supreme court found that
Sheth v. Dearen, 225 S.W.3d 828 (2007)

221 Ed. Law Rep. 967

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

the failure of the hospital to administer an injectionable drug

to the plaintiff was a non-use of tangible personal property.

923 S.W.2d at 586. As a result, the court found that the

plaintiff failed to plead facts sufficient to support a finding of

waiver of sovereign immunity. Id. In reaching its conclusion,

the court stated:

There cannot be waiver of sovereign immunity in every

case in which medical treatment is provided by a public

facility. Doctors in state medical facilities use some form

of tangible personal property nearly every time they treat a

patient. Because of this fact, a patient suing for negligence

could always complain that a different form of treatment

than the one employed would have been more effective and

still claim waiver under the Act. If such a complaint were

enough to constitute the use of tangible personal property

under the Act, the doctrine of sovereign immunity would

be rendered a nullity.

Id. at 585–86. Dearen does not complain that a

different “form of treatment” should have been used.

Instead, Dearen complains that the treatment he received,

implantation of the Gamma nail device, was improperly

performed. As such, we find these cases to be inapplicable

to the facts at hand. See also Bishop, 156 S.W.3d at 583

(finding that the knife alleged to be the cause of plaintiff's

injuries was not used as required under Section 101.021(2)

because the governmental officials merely allowed the

students to use it as opposed to putting it in use themselves);

Cowan, 128 S.W.3d at 246 (holding that allowing the

patient to keep his suspenders and walker, which he later

used to kill himself, was not a use of property).

Dearen argues that his amended petition, filed after Dr. Sheth

filed his motion to dismiss, more clearly reflects his claim that

Dr. Sheth's failure to use a distal interlocking screw, rather

than the misuse of property, caused his injuries. Assuming

without deciding that we can consider his amended petition, 6

we do not find it to be *834 additionally persuasive.

Dearen's amended petition offers essentially the same facts

and claims as his original petition; however, in the amended

petition, he explicitly uses phrases such as “non-use” and

“did not use.” Despite these pointed characterizations, the

gravamen of his petitions remains unchanged in pleading that

Dr. Sheth's misuse of the nail device (in failing to secure it

with the screw) led to his injuries. See Kerrville, 923 S.W.2d

at 585 (“The gravamen of their complaint is that KSH's nonuse of an injectionable drug was the cause of their daughter's

death.”); Phillips, 187 S.W.3d at 676–77 (looking at “the real

substance of [plaintiff's] petition” in determining, as part of

its 101.106(f) analysis, whether plaintiff's claim could have

been brought under the TCA).

[8] Dearen also seems to contend that because some of

his claims involved general negligence, his suit could not

have been brought against UTHSCH under the TCA because

such claims are outside the scope of the sovereign immunity

waiver provisions. A suit can be brought under the TCA,

however, when there are both claims within and outside the

scope of the TCA's sovereign immunity waiver provisions.

See, e.g., Salcedo v. El Paso Hosp. District, 659 S.W.2d

30, 33 (Tex.1983) (finding that plaintiff's allegations stated

a claim within the scope of the TCA where plaintiff alleged

non-use of property and misuse of property); Tejada, 207

S.W.3d at 922–23 (finding that plaintiff's claims could have

been brought under the TCA where plaintiff pleaded claims of

general negligence and negligence resulting from the use of

tangible property). Because we find that Dearen's pleadings

allege a misuse of tangible property causing his injuries,

claims that are within the scope of the TCA waiver provisions,

the fact that he also alleged general negligence is irrelevant.

We sustain Dr. Sheth's sole issue.

III. CONCLUSION

Because we find that Dearen's suit could have been brought

against UTHSCH, we reverse the order of the trial court

denying Dr. Sheth's motion to dismiss. This cause is

remanded to the trial court with instructions to enter an

order of dismissal of Dearen's claims against Dr. Sheth, with

prejudice, and for such further proceedings and orders as

the parties may show themselves justly entitled to receive in

accordance with this opinion.

Parallel Citations

221 Ed. Law Rep. 967

Footnotes

1 It is not clear from the record where exactly the Gamma nail was placed.
Sheth v. Dearen, 225 S.W.3d 828 (2007)

221 Ed. Law Rep. 967

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

2 In Williams v. Nealon, our sister court, in analyzing the appellee's 101.106(f) motion to dismiss, stated that “the proper standard of

review for a motion to dismiss is abuse of discretion.” 199 S.W.3d at 465. To the extent the court was holding that all motions to

dismiss are reviewed for abuse of discretion, we disagree. The proper standard of review to be employed is dictated by the substance

of the issue to be reviewed as opposed to the procedural vehicle through which that issue is developed. See In re Doe, 19 S.W.3d

249, 253 (Tex.2000) (stating that, in order to determine the proper standard of review, “we must determine whether the [issue] is

a question of law or fact”); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 773 (Tex.App.-Corpus Christi 2006, pet. filed)

(finding that, while motions to dismiss are generally reviewed for abuse of discretion, the issue of whether plaintiff's claim is a health

care liability claim in accordance with the statute at issue is a question of law and is thus reviewed de novo ). Because the issue in

this case—waiver of sovereign immunity—is legal in nature, we apply the de novo standard.

3 To the extent there is a distinction, Dearen apparently intended to allege that Dr. Sheth failed to align the nail hole and the jig to

permit the placement of the distal interlocking screw. As the expert's report states, the procedure itself was called an “intramedullary

nailing” and involved the placement of a short Gamma nail which requires a distal interlocking screw to “lock” the nail in place.

Dearen's amended petition further clarifies this by alleging the same facts, but substituting the term “distal interlocking screw” for

“intramedullary hip screw.”

4 Both Dearen, in his amended petition, and Dearen's expert, in his report, stated that the nail “requires the distal interlocking screw

for stability (emphasis added).”

5 White also argued that the pump's use on his property caused the damages, however, this claim was not considered by the court

because it involved factual allegations first raised on appeal. White, 46 S.W.3d at 870.

6 Dr. Sheth argues that once he filed his motion to dismiss pursuant to 101.016(f), his right to dismissal was perfected and any

subsequent pleadings by Dearen could not effect that right. See Villasan v. O'Rourke, 166 S.W.3d 752, 758 (Tex.App.-Beaumont

2005, pet. filed) (finding that the defendant's right to dismissal under 101.106(e) was perfected upon the filing of his motion to dismiss

and any subsequent pleadings “do not moot the right created by the filing of the motion under section 101.106”). Because we find

that the amended petition provides no additional value, we need not address this argument.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

891 S.W.2d 243

Supreme Court of Texas.

THE STATE BAR OF TEXAS, James Parsons, III,

in his capacity as President of the State Bar of Texas

and Karen Johnson, in her capacity as Executive

Director of the State Bar of Texas, Petitioners,

v.

Maria GOMEZ, Alicia Naveja, and Leonardo

Chavez, on Behalf of Themselves and

Others Similarly Situated, Respondents.

No. D–4218. | Argued Jan. 20,

1994. | Decided Dec. 22, 1994.

Indigents brought action for declaratory and injunctive

relief to require State Bar or Supreme Court to implement

mandatory pro bono program for state lawyers. The 353rd

Judicial District Court, Travis County, Joseph H. Hart, J.,

dismissed for lack of subject matter jurisdiction, and indigents

appealed. The Court of Appeals, J. Woodfin Jones, J., 856

S.W.2d 804, reversed and remanded. On application for writ

of error, the Supreme Court, Cornyn, J., held that indigents'

action to compel State Bar or Supreme Court to implement

mandatory pro bono program did not present justiciable

controversy and, therefore, district court lacked jurisdiction

over action.

Reversed and remanded.

Gonzalez, J., concurred and filed opinion.

Hightower, J., dissented and filed opinion in which Gammage

and Spector, JJ., joined.

Doggett, J., noted his dissent.

Attorneys and Law Firms

*244 Lynn Liberato, Houston, Linda A. Acevedo, Austin,

Alene Ross Levy, Jeffrey T. Nobles, Houston, Broadus A.

Spivey, Eric R. Galton, James M. McCormack, Austin, for

petitioners.

Virginia Agnew, Charles Herring, Jr., James C. Harrington,

Austin, for respondents.

Opinion

CORNYN, Justice, delivered the opinion of the Court, in

which PHILLIPS, Chief Justice, and HECHT and ENOCH,

Justices, join.

The sole question presented for our determination is whether

the district court below has jurisdiction of this suit, which

complains of the failure of the State Bar of Texas to compel

member lawyers to provide free legal services to Texans who

cannot pay for those services. We conclude that the district

court correctly dismissed the case for lack of jurisdiction.

Thus, we reverse the judgment of the court of appeals and

remand this case to the district court with instructions to

dismiss. 1

After being refused free legal services, Maria Gomez, Alicia

Naveja, and Leonardo Chaves, on behalf of themselves

and others similarly situated (collectively, Gomez), filed

suit in a Travis County district court against the State

Bar of Texas and two of its officials at that time, James

Parsons III, President, and Karen Johnson, Executive Director

(collectively, State Bar). Gomez contends that the State Bar,

by not effectively encouraging attorneys to volunteer free

legal services, has illegally failed to meet the legal needs of

indigent Texans. Specifically, Gomez alleges violations of the

following provisions of the Texas Constitution: (1) Article

I, Section 13 (open courts); (2) Article I, Section 3 (equal

protection); (3) Article I, Section 3a (equal rights); (4) Article

I, Section 19 (due course of law); and (5) Article I, Section 29

(inviolate nature of the Bill of Rights). Gomez further asserts

violations of the Texas antidiscrimination statute, 2 the Texas

Disciplinary Rules of Professional Conduct, 3 and the Texas

Lawyer's Creed. 4

The district court dismissed the case, concluding it lacked

jurisdiction under Article V, Section 8, of the Texas

Constitution.

5

 The court of appeals reversed, holding that the

district court had jurisdiction to decide the merits of Gomez's

claims, but because of this Court's exclusive authority to

regulate the legal profession in Texas, it held that the district

court could levy only a prohibitory, and not a mandatory

injunction against the State Bar. 856 S.W.2d 804 (Tex.1993).

The court of appeals explained:

We conclude that a district court does not have authority

to grant relief that would *245 unreasonably usurp the
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)

38 Tex. Sup. Ct. J. 140

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

supervisory control vested exclusively in the supreme

court. By vesting the supreme court with supervisory

control of the practice of law, the constitution and the

State Bar Act grant the supreme court discretion to decide

issues concerning the State Bar and the practice of law.

Whether a district court has authority to grant a particular

form of injunctive relief depends, we believe, on whether

granting such relief would effectively exercise the kind

of supervisory discretion that is vested exclusively in the

supreme court.

856 S.W.2d at 815. We agree with the court of appeals'

identification of the issue but not its conclusion.

[1] [2] The jurisdictional question presented is complex

and in some ways unique. As a general proposition, before

a court may address the merits of any case, the court must

have jurisdiction over the party or the property subject to

the suit, jurisdiction over the subject matter, jurisdiction to

enter the particular judgment, and capacity to act as a court.

See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d

878, 881 (Tex.1973). Subject matter jurisdiction requires that

the party bringing the suit have standing, that there be a

live controversy between the parties, and that the case be

justiciable. See Texas Ass'n of Business v. Texas Air Control

Bd., 852 S.W.2d 440, 443–46 (Tex.1993). If the district court

lacks jurisdiction, in any of these senses, then its decision

would not bind the parties. See Austin Indep. Sch. Dist., 495

S.W.2d at 881 (noting that collateral attacks on a judgment

are allowed when the district court lacked jurisdiction). And,

a decision that does not bind the parties is, by definition, an

advisory opinion prohibited by Texas law. See Texas Ass'n of

Business, 852 S.W.2d at 444 (citing Article II, Section 1, of

the Texas Constitution as prohibiting advisory opinions).

[3] [4] The unique aspect of this jurisdictional inquiry,

as the court of appeals recognized, arises out of this Court's

power to regulate the practice of law in the State of Texas.

This power is derived from both statutory and inherent

powers. The primary statutory grant of power is found in

the State Bar Act, which gives the Court administrative

control over the State Bar and provides a statutory mechanism

for promulgating regulations governing the practice of law.

See TEX.GOV'T CODE § 81.011(c). The other source of

this court's power to regulate the practice of law in this

state, its inherent power, is not secured by any legislative

grant or specific constitutional provision, but is necessarily

implied to enable the Court to discharge its constitutionally

imposed duties. See Eichelberger v. Eichelberger, 582

S.W.2d 395, 398–99 (Tex.1979) (noting that doctrine of

inherent power is derived, in part, from the separation

of powers dictated by Article II, Section 1 of the Texas

Constitution). Those duties include our obligation, as the head

of the judicial department, to regulate judicial affairs. Because

the admission and practice of Texas attorneys is inextricably

intertwined with the administration of justice, the Court must

have the power to regulate these activities in order to fulfill

its constitutional role. See generally JIM R. CARRIGAN,

INHERENT POWERS OF THE COURTS 2 (1973) (defining

inherent powers as those “reasonably required to enable a

court to perform efficiently its judicial functions, to protect

its dignity, independence and integrity, and to make its lawful

actions effective”). The Court's inherent powers, such as the

power to regulate the practice of law, are not jurisdictional

powers. See Eichelberger, 582 S.W.2d at 399. These powers

are administrative powers, necessary to the preservation of

the judiciary's independence and integrity.

[5] [6] Because the Court's power to regulate the practice

of law is an administrative one, the exercise of that power

does not in and of itself deprive lower courts of general

subject matter jurisdiction over challenges to that governance.

They do not, however, have jurisdiction over all such

challenges because in every individual case, jurisdiction

also depends on justiciability. And, as the court of appeals

acknowledged, for a controversy to be justiciable, there must

be a real controversy between the parties that will be actually

resolved by the judicial relief sought. 856 S.W.2d 804, 811

(citing Texas Ass'n of Business, 852 S.W.2d at 446 and *246

Board of Water Eng'rs v. City of San Antonio, 155 Tex.

111, 283 S.W.2d 722, 724 (1955)). While we do not find it

necessary to set the precise boundaries of the district court's

jurisdiction under these circumstances, we hold that these

facts do not present a justiciable controversy and that the

district court therefore has no jurisdiction.

[7] Gomez seeks to compel either the State Bar or this

Court to implement a mandatory pro bono program for Texas

lawyers. To the extent a remedy is sought against the State

Bar, Gomez seeks relief from an entity that is powerless,

acting alone, to implement that remedy. The State Bar's

authority is limited to proposing regulations to this Court,

which may accept or reject any recommendation, in whole or

in part. See TEX.GOV'T CODE § 81.024(a). For example,

when the latest amendment to the rules governing lawyer

advertising was recommended by the State Bar, we modified

the proposed amendment before promulgation. See Amended

Order of Promulgation and Adoption of Disciplinary Rules,

West's Texas Cases Advance Sheet 884–885 issue 49, pp.

LXIX–LXXXI. Thus, the relief sought against the State Bar,
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even if granted by the trial court, could not resolve the dispute

between these litigants.

[8] Moreover, to the extent the remedies are sought against

the Supreme Court, they would clearly impinge on the

Court's exclusive authority to regulate the practice of law.

The Legislature itself implicitly acknowledged the Court's

fundamental authority in this area when it enacted the State

Bar Act as an aid to the Court in carrying out this function.

See TEX.GOV'T CODE § 81.011(b). No subordinate court in

Texas has the power to usurp our authority or responsibility in

this area. The dissenting justices acknowledge this limitation

when they say, “An injunction mandating this court or the

State Bar to implement a mandatory pro bono program would

be improper. It would inappropriately involve the district

court in the regulation of the practice of law.” Infra, 891

S.W.2d at 252 (citations omitted).

This is not to say that all remedies bearing upon the regulation

of the legal profession would be unacceptable infringements

on the inherent powers of the Court. Had this Court actually

promulgated rules establishing a pro bono program and had

Gomez challenged the constitutionality of such rules, the

district court would have jurisdiction to decide, in the first

instance, whether such rules met constitutional standards. See

O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding

the trial court's decision on a constitutional challenge to the

rules of disciplinary conduct promulgated by the Court).

In due course, we would review any adverse determination

in our adjudicative capacity. See Cameron v. Greenhill,

582 S.W.2d 775, 777 & n. 3 (Tex.1979) (holding that

the Court could both promulgate a rule and determine its

constitutionality). The important distinction between such a

case and the one at hand is that in the former case, the

district court would not be cast in the impermissible role of

effectively promulgating policies and regulations governing

Texas lawyers. Such a case would be justiciable because

the district court would be capable of rendering a judgment

that accords the parties complete relief, subject of course to

appellate review.

But when, as here, the essence of a complaint is that

this Court has failed to establish rules governing some

aspect of lawyer conduct, a district court has no authority

to assume this Court's authority to regulate the legal

profession. This prohibition includes the rendition of orders

that would, as a practical matter, preempt this Court's

authority. Because the district court cannot effect a remedy

that would resolve this dispute, this case does not present

a justiciable controversy. Once again, acknowledging the

limitations on the district court's authority in this area,

the dissenting justices nevertheless contend, “The district

court does, however, have jurisdiction to issue a mandatory

injunction which requires the State Bar to implement a more

effective voluntary pro bono program calculated to meet

constitutional and statutory demands which may exist.” Infra,

891 S.W.2d at 252 (emphasis added). We are at a loss to

understand, and the dissenting justices do not explain, how a

mandatory injunction to enforce a voluntary program could

ever be enforced by any court. By limiting the district court's

jurisdiction to such illusory relief, the dissenting justices

have, in effect, conceded that the *247 trial court cannot

grant plaintiffs the real relief they seek.

Our decision that the district court lacks jurisdiction does not,

however, leave the parties without a forum in which to seek

redress of their grievances. This Court, in the exercise of its

constitutional responsibilities, wants and needs input from

interested persons concerning its supervisory responsibility

over Texas lawyers. Ordinarily, interested parties would be

free to informally petition this Court in its administrative

capacity, to urge reconsideration of the proper constitutional

mandates for this Court's regulation of attorney conduct.

However, given the potentially far-reaching effects of this

particular challenge to our scheme of regulation, we direct

that this matter be placed on the Court's administrative

agenda for further consideration. All interested parties have

until April 14, 1995, to submit their written arguments on

the merits of the underlying claims. Cf. Barger v. Brock,

535 S.W.2d 337, 342 (Tenn.1976) (ordering a lower court

to dismiss a challenge to the Supreme Court's rules but

directing the lower court to forward the petitions for further

consideration as a direct motion in the Supreme Court).

Accordingly, we reverse the judgment of the court of appeals

and remand to the district court with instructions to dismiss

for want of jurisdiction.

DOGGETT, J., dissents.

GONZALEZ, Justice, concurring.

This case presents significant issues of public policy.

Respondents seek a court declaration that indigent citizens

of our State are entitled to free legal services in civil cases.

They also seek an injunction that would require the State Bar

of Texas to implement a program mandating pro bono legal

services from all attorneys licensed to practice law in Texas. 1
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For the reasons stated in the majority opinion, I agree with

the trial court and this Court that this case does not present

a justiciable controversy within the trial court's jurisdiction. I

thus concur in the judgment.

I write separately because I disagree with the Court

prolonging resolution of the mandatory pro bono issue by

placing the matter “on the Court's administrative agenda for

further consideration.” 891 S.W.2d at 247. This procedure

is unnecessary, and it gives Respondents false hope that a

majority of the Court is seriously considering implementing

such a sweeping change in the practice of law in Texas. As

for the invitation for interested parties to submit more briefs

to the Court, I think that any information which anyone gives

the Court will merely duplicate what we already have for

determining the merits of Respondents' request. The issue of

how to provide legal services for the indigent is a problem in

our society that has been widely debated and studied. More

hearings, briefs, or argument before us will be of little utility.

Mandating any program for legal services to the poor

is a political question, over which this Court in its

administrative capacity and the Legislature would have

jurisdiction. However, in my opinion, any attempt to draft

and implement such a program would unnecessarily divert

the Court from its primary business of adjudicating disputes.

The Legislature is better suited to undertake the activities

necessary for drafting and implementing a program to provide

indigents legal services. Different program options, as well

as their legal and constitutional ramifications, will need to be

considered. Since the problem of access to legal services faces

society as a whole, the burden of resolving it does not solely

rest on the legal profession.

I acknowledge that a very real problem exists for individuals

who seek legal representation but lack the financial resources

to retain counsel. Studies clearly document that our poor

citizens need greater access to legal services. See, e.g.,

COMMITTEE ON LEGAL SERVICES TO THE POOR IN

CIVIL MATTERS, STATE BAR OF TEXAS, REPORT

ON MANDATORY PRO BONO (1991); STATE BAR

OF TEXAS ET AL., LEGAL NEEDS OF THE POOR

ASSESSMENT PROJECT (1991). This need led the Court

to create the Texas Equal Access to Justice foundation in

1984 to administer the voluntary *248 IOLTA (Interest on

Lawyers' Trust Accounts) program. 2See TEXAS EQUAL

ACCESS TO JUSTICE PROGRAM §§ 1–9 (effective May

19, 1994), reprinted in TEX.GOV'T CODE, tit. 2, subtit. G

app. (STATE BAR RULESS art. XI, §§ 1–9). In December,

1988, we signed an order that made the IOLTA program

mandatory. Id. (amended December 13, 1988). We took this

action under our authority to regulate the practice of law.

Realistically, the Court has progressed as far as it can to

extend legal services to the poor. A mandatory pro bono

program is quite different from the IOLTA program. This

Court lacks the resources and/or the political will to attempt

further resolution of the profound problem of providing

legal services for indigent citizens. I would tell Respondents

frankly that we are not going to order mandatory pro bono.

The Legislature is better suited to tackle this social problem.

HIGHTOWER, Justice, joined by GAMMAGE and

SPECTOR, Justices, dissenting.

Because I believe that the district court has jurisdiction of this

suit and that the Court would effectively deny the Plaintiffs'

access to a meaningful forum in which to seek redress of their

grievances, I respectfully dissent.

I.

The jurisdictional inquiry begins with Article V, Section 8 of

the Texas Constitution which provides in part:

District Court jurisdiction consists

of exclusive, appellate, and original

jurisdiction of all actions, proceedings

and remedies, except in cases where

exclusive, appellate, or original

jurisdiction may be conferred by this

Constitution or other law on some

other court, tribunal or administrative

body.

Tex. Const. art. V, § 8 (emphasis added). The district

court held that it lacked jurisdiction because the legislature

had conferred jurisdiction over matters concerning the

administration of the State Bar upon this Court in the State

Bar Act. See Tex.Gov't Code Ann. § 81.011(c) (West 1988).

I disagree.

What the legislature conferred upon this Court was

“administrative control over the state bar.” Tex.Gov't

Code Ann. § 81.011(c) (West 1988) (emphasis added).

“Jurisdiction” within the meaning of Article V, Section 8

includes only the judicial powers of the courts. These judicial

powers are typically the only ones at issue when the Court
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makes statements such as: “[J]udicial power is divided among

the various named courts by means of express grants of

‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d

395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex.

553, 62 S.W.2d 641 (1933)). But Texas courts have duties in

addition to their judicial responsibilities.

I do not disagree that this Court's inherent power to regulate

the practice of law is more expansive than the administrative

authority that the legislature has “granted” to us. See Daves v.

State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ

ref'd n.r.e.) (noting the Court's inherent power to adopt rules

governing the practice of law by extra-statutory means); see

also Tex.Gov't Code Ann. § 81.011(b) (West 1988) (stating

that the State Bar was a legislative creation passed to aid

the Court in exercising its judicial power). See State Bar v.

Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does

not necessarily follow that this inherent power is so great

that it deprives the state's courts of general jurisdiction of the

authority to hear a challenge pertaining to the governance of

the legal profession.

The proper question to determine whether the district court

has jurisdiction over this case is not whether this Court, in

its administrative capacity, could act in a manner that would

decide or moot the issues raised. Rather, three questions must

be asked: (1) *249 whether the State Bar and its officers

are the proper parties in this case; (2) if so, whether the

district court is an appropriate forum to hear a matter over

which this Court exercises such extensive authority; and (3)

whether the failure to act, as opposed to an affirmative action,

nevertheless presents an issue over which the district court

may exercise authority. I would answer all three questions in

the affirmative.

However couched, the Plaintiffs' claims are actually directed

not so much at the State Bar 1 as at an alleged deficiency

in the current system of lawyer regulation established by

this Court and the legislature. This Court, both by legislative

grant and its inherent powers, possesses authority to regulate

the practice of law and exercises control over the State

Bar. See Tex.Gov't Code Ann. §§ 81.011, 81.024(a) (West

1988) (clarifying this Court's supervisory role over the State

Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State

Bar Act was passed in aid of this court's exercise of its

inherent power to regulate the practice of law.”) (footnotes

omitted). The legislature recognized the Court's fundamental

responsibility in this area when it passed the State Bar Act “in

aid of the judicial department's powers under the constitution

to regulate the practice of law.” Tex.Gov't Code Ann. §

81.011(b) (West 1988).

The State Bar's actual power in this regard is limited to

proposing regulations to this Court, which could reject or

amend any such recommendation. Under a strict concept

of justiciability, one could argue that there is no justiciable

controversy between the State Bar and the Plaintiffs. See

Board of Water Eng'rs v. City of San Antonio, 155 Tex.

111, 283 S.W.2d 722, 724 (1955) (defining “justiciable

controversy” as the requirement that there shall be a

real controversy between the parties that will actually be

determined by the judicial declaration sought). On the

other hand, more modern notions of justiciability would

acknowledge that the State Bar is an acceptable “surrogate

defendant” for the Court in this matter. In fact, the State Bar

has served as such a surrogate in several recent cases. See,

e.g., O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State

Bar v. Tinning, 875 S.W.2d 403 (Tex.App.—Corpus Christi

1994, writ denied); Musslewhite v. State Bar, 786 S.W.2d 437

(Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves

v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985,

writ ref'd n.r.e.).

2

 For these reasons, I conclude that the

district court's jurisdiction is not suspect on this basis.

II.

Next we must decide whether the district court has subject

matter jurisdiction over a challenge to an administrative

decision of this Court. I believe the answer is yes.

Promulgating court rules in our administrative capacity does

not and cannot imply a concomitant determination by this

Court in its judicial capacity that such rules are constitutional

in every respect. Hopefully, this Court does not abandon its

collective knowledge of the Constitution when it exercises

its rulemaking authority, and surely it would not knowingly

promulgate any rule it regarded as violating the United States

or Texas Constitutions. However, we are not omniscient. It is

simply beyond the capacity of this or *250 any other court to

envision every possible constitutional ramification or factual

application of its orders or rules, particularly before it has

the benefit of a case and controversy that vigorously explores

both sides of the issues. See Order of the Supreme Court of

February 28, 1966, Transmitting Amendments to Rules of

Civil Procedure, 383 U.S. 1029, 1032 (Black, J., dissenting)

(stating that “the Court's transmittal does not carry with it a

decision that the amended rules are all constitutional” because

“such a decision would be the equivalent of an advisory
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opinion which, I assume the Court would unanimously

agree, we are without constitutional power to give.”); Grand

Bahama Petroleum Co. v. Canadian Transp. Agencies, 450

F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district

court had jurisdiction to consider a constitutional challenge

to a federal rule of civil procedure, noting that “[w]hile

the [United States Supreme] Court certainly considers the

constitutionality of a rule recommended by a committee, it is

not possible for its members to anticipate every constitutional

objection.”). This is especially true when, as here, it is the

failure to provide for some constitutionally mandated system

that is alleged.

Nor would the mere determination by the district court that

the current system is constitutionally deficient invade this

Court's inherent power to regulate the practice of law. We

have no inherent power to create a system that violates the

Constitution, just as the legislature has no power to pass

unconstitutional statutes. See Reese v. State, 772 S.W.2d 288,

290 (Tex.App.—Waco 1989, pet. ref'd) (reasoning that a

court may not enact a procedural rule that conflicts with a

provision of the constitution); Picard v. State, 631 S.W.2d

761, 763 (Tex.App.—Beaumont 1981, no writ) (holding that

the rule-making authority of any court may not conflict with

constitutional provisions and that any unconstitutional rule

is inoperative). For example, the Constitution provides that

this Court may not appoint to the State Commission on

Judicial Conduct more than one judge from the same Supreme

Judicial District. Tex. Const. art. V, § 1–a(2). If the Court

breached this restriction, surely it would be answerable to

the legal system. If this be conceded, there can be only two

possible mechanisms to enforce constitutional restrictions on

the Court acting in its administrative capacity: a suit against

the Court in a lower court or an original proceeding in the

Court itself. Either of these courses is permissible, but at least

one is necessary. Under the Court's analysis, however, there

is no mechanism to enforce constitutional restrictions on the

Court acting in its administrative capacity. In this case, the

Plaintiffs are left without a meaningful forum in which to

seek redress of their grievances. The Court has directed “that

this matter be placed on the Court's administrative agenda

for further consideration.” In essence, the Court suggests that

the Plaintiffs directly petition the Court for redress of their

“complaint.” However, the Court is not required to consider

or take any action on the “petition”—ever! Obviously this

does not constitute a meaningful forum. 3 It is also unclear

whether the Plaintiffs could seek redress of their grievances in

the Legislature. Based upon the Court's expansive description

of its inherent powers to regulate the practice of law, it

is doubtful that the Legislature has the power to impose a

mandatory pro bono system upon the State Bar.

Some state supreme courts have expressly provided for the

filing of petitions challenging their orders and rules directly

with that court. See, e.g., Aldridge v. Watling Ladder Co.,

275 Ark. 225, 628 S.W.2d 322, 323 (1982) (holding that

a case involving construction of supreme court rule should

have been certified to supreme court under Supreme Court

Rule 29(1)(c)); *251 Goetz v. Harrison, 153 Mont. 403, 457

P.2d 911, 912 (1969) (stating that questions involving the

constitutionality of a supreme court rule should be presented

to the supreme court in an “appropriate original proceeding.”)

This Court has, with narrow exceptions, never provided such

a procedure. 4 Because supreme court rules must comport

with the Constitution and because the judicial branch is

entrusted with interpreting the Constitution, jurisdiction to

consider challenges to rules must exist at the district court

level. This view comports with the general understanding of

Texas law, and with what is probably the majority rule in most

of the states that have been confronted with the issue. See,

e.g., Beard v. North Carolina State Bar, 320 N.C. 126, 357

S.E.2d 694, 695 (1987) (holding that a “direct challenge of the

constitutionality of an order of this Court ... must be litigated

as an original action in the General Court of Justice.”);

Berberian v. Kane, 425 A.2d 527, 528 n. 2 (R.I.1981)

(holding that a rule may be challenged in a case seeking

declaratory judgment that the rule was unconstitutional).

III.

The question remains whether this case is nonjusticiable

because the district court does not have jurisdiction to grant

the relief sought. Plaintiffs seek a declaratory judgment

that the State Bar is violating their constitutional and

statutory rights. Among other things, Plaintiffs requested

that the district court “[d]eclare that the official policies,

actions, and failure to act alleged herein, which involve the

refusal to Defendants to adequately provide for the legal

services needed by Plaintiffs and the class, violate the Texas

Constitution and Tex.Civ.Prac. & Rem.Code § 106.001.”

Plaintiffs also seek an injunction prohibiting the State Bar

from continuing to violate the rights of indigent citizens

and an injunction mandating the State Bar to implement

an adequate and more effective pro bono program. First,

declaratory relief is proper whether or not further relief is

or could be claimed. See Tex.Civ.Prac. & Rem.Code Ann.
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§ 37.003(a). The district court has the authority to render a

judgment declaring the constitutional and statutory rights of

Plaintiffs and, also, to declare whether such rights have been

violated. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003. I fail

to see the distinction between the district court's jurisdiction

to determine the constitutionality of the official policies,

actions, and failure to act caused by the refusal of the State

Bar to adequately provide for the legal services needed by

Plaintiffs and the district court's jurisdiction to determine

the constitutionality of rules proposed by the State Bar

and promulgated by this Court. In both cases, the district

court's determination could be reviewed by this Court in its

adjudicative capacity. Contrary to the Court's assertion, the

determination of the constitutionality of the refusal to the

State Bar to adequately provide for the legal services needed

by Plaintiffs would not cast the district court in the role of

effectively promulgating policies and regulations governing

Texas lawyers.

Concerning injunctive relief, a prohibitory injunction, one

prohibiting the State Bar from continuing to violate Plaintiffs'

rights, would be proper in the event the district court holds

such rights are being violated. It is axiomatic that a court

has the power to enforce its orders determining the legal

rights of the parties. Morrow v. Corbin, 122 Tex. 553, 62

S.W.2d 641, 644–45 (1933). “Reason and experience argue

that courts empowered ... [to decide] constitutional mandates

cannot be left without the means to order appropriate relief.”

Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991).

Furthermore, a mandatory injunction could also be proper.

See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,

399 (Tex.1989); Edgewood Indep. Sch. Dist. v. Kirby, 804

S.W.2d 491, 494 (Tex.1991); Terrazas, 829 S.W.2d at 717–

20. However, courts should tread lightly when dealing with

powers traditionally reserved to other areas of government.

For example, in Terrazas, although we held that the courts

could order apportionment, we were careful to state,

*252 [T]hat power ought to be used

only after investigation and careful

consideration of the many, diverse

interests affected, after due deference

to the Legislature to rectify its own

statutes, and after due regard for the

effect of the court's order on the

election process.

829 S.W.2d at 718. Likewise, in Edgewood Indep. Sch. Dist.

v. Kirby, 777 S.W.2d at 399, we stated, “Although we have

ruled the school financing system to be unconstitutional, we

do not now instruct the legislature as to the specifics of the

legislation it should enact....”

Moreover, a court should not overstep the line between

adjudication and regulation. Regulation of the practice of

law is within the exclusive control of this Court. Tex.Gov't

Code Ann. § 81.011(c) (Vernon 1986); Daves v. State Bar,

691 S.W.2d 784, 788–89 (Tex.App.—Amarillo 1985, writ

ref'd n.r.e.). An injunction mandating this Court or the State

Bar to implement a mandatory pro bono program would be

improper. It would inappropriately involve the district court

in the regulation of the practice of law. See Edgewood Indep.

Sch. Dist. v. Kirby, 777 S.W.2d at 399; Edgewood Indep. Sch.

Dist. v. Kirby, 804 S.W.2d at 493–94. The district court does,

however, have jurisdiction to issue a mandatory injunction

which requires the State Bar to propose and implement a

more effective voluntary pro bono program calculated to meet

constitutional and statutory demands which may exist. Id. In

addition, the district court would have jurisdiction to issue a

mandatory injunction which requires the State Bar to propose

regulations creating a mandatory pro bono program to this

Court.

Finally the question remains whether this case is

nonjusticiable because it alleges constitutional sins of

omission. I believe that the Plaintiffs' complaint that

the State Bar has failed to act as required by various

constitutional and statutory provisions does not affect the

justiciability of their claims. Distinctions between an act and

an omission in this context are not helpful. See generally

Lisa E. Heinzerling, Note, Actionable Inaction: Section

1983 Liability for Failure to Act, 53 U.CHI.L.REV. 1048,

1057–63 (1986) (criticizing the entire act/omission analysis

in the context of governmental responsibilities under the

Constitution, primarily because its tort-based reasoning is illsuited to explain existing doctrine). If this Court concluded

that the district court lacked jurisdiction over the Plaintiffs'

claims because they allege an omission rather than an act,

the Plaintiffs could simply recast their allegations. Thus,

the difference between acts and omissions in this highly

unusual context seems semantic. See David A. Fischer,

Causation in Fact in Omission Cases, 1992 UTAH L.REV.

1335, 1339 (“[A]s a matter of semantics, any omission

can be characterized as part of a larger encompassing

act.”). The mere fact that the Plaintiffs have alleged an

unconstitutional omission cannot deprive the district court of

jurisdiction when it clearly would have jurisdiction to review

an unconstitutional act.
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For the foregoing reasons, I respectfully dissent. Parallel Citations

38 Tex. Sup. Ct. J. 140

Footnotes

1 This disposition of the limited issue before us means that we do not, as Justice Gonzalez's concurring opinion does, comment on

the merits of the underlying claims.

2 TEX.CIV.PRAC. & REM.CODE § 106.001. This statute generally prohibits the state or its agents from discriminating against persons

because of race, religion, color, sex, or national origin. Remedies available to a successful litigant include injunctive relief, attorney's

fees, and court costs. Id. § 106.002. A person who knowingly violates this statute is subject to a fine and confinement in the county

jail. Id. § 106.003.

3 TEX.DISCIPLINARY R.PROF.CONDUCT, pmbl. ¶ 6, reprinted in TEX.GOV'T CODE, tit. 2, subtit. G app. (West Supp.1992)

(STATE BAR RULES art. X, § 9) (“The provision of free legal services to those unable to pay reasonable fees is a moral obligation

of each lawyer as well as the profession generally.”).

4 Texas Lawyer's Creed—A Mandate for Professionalism (adopted by the Supreme Court of Texas and the Court of Criminal Appeals

of Texas, Nov. 7, 1989), reprinted in TEXAS RULES OF COURT 487 (West 1994). In the Creed, lawyers are urged to commit

themselves “to an adequate and effective pro bono program.” Id.

5 Section 8 defines the district courts' jurisdiction, but excepts those cases where jurisdiction has been conferred on some other court.

See TEX. CONST. art. V, § 8. The district court held that this Court's power to regulate the practice of law was sufficient to bring

this case within Section 8's exception.

1 Respondents deny that they are seeking a mandatory pro bono program, but they do not suggest any other method of providing legal

services to the indigent.

2 The IOLTA foundation administers a program wherein lawyers convert their non-interest bearing trust accounts to interest bearing

accounts. Financial institutions remit all interest earned on IOLTA accounts to the IOLTA foundation. The foundation in turn channels

money to organizations that deliver civil legal services to the poor. Since inception of the mandatory IOLTA program, the foundation

has distributed approximately $42 million to assist people unable to afford an attorney in civil actions.

1 The current pro bono policy was adopted by the State Bar of Texas Board of Directors in May 1992. The policy includes an aspirational

goal of fifty (50) hours per year and an annual voluntary pro bono reporting system.

2 We need not decide in this case whether Plaintiffs could have proceeded against this Court itself. Like other state courts of last resort,

we have been named defendants in district court at least once before. Cameron v. Greenhill, 582 S.W.2d 775 (Tex.1979); see also

CWA Local 1044 v. Chief Justice of the Sup. Ct., 118 N.J. 495, 572 A.2d 613 (1990) (challenging a New Jersey Supreme Court

decision made in the course of labor negotiations with its judicial employees); American Trial Lawyers Ass'n v. New Jersey Sup. Ct.,

66 N.J. 258, 330 A.2d 350 (1974) (challenging a New Jersey Supreme Court order limiting contingent attorney's fees in certain tort

cases); Vermont Sup. Ct. Admin. Directive No. 17 v. Vermont Sup. Ct., 154 Vt. 217, 576 A.2d 127 (1990) (challenging a Vermont

Supreme Court order postponing civil jury trials due to budgetary shortfalls). But some jurisdictions expressly proscribe suing the

state's highest court. See, e.g., Goetz v. Harrison, 153 Mont. 403, 457 P.2d 911 (1969) (holding that a lower court has no supervisory

control over the Supreme Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions).

3 It is unclear whether the Court is creating a “parallel administrative docket” in which interested persons could petition the Court

for various forms of relief. Are these “petitioners” entitled to timely consideration of their petition and oral argument? See Barger

v. Brock, 535 S.W.2d 337, 342 (Tenn.1976) (“[I]n order that the parties may have their insistences considered, we direct that all

pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat the pleadings as constituting

a motion to vacate or modify Rule 42. This matter will be docketed for oral argument, in Knoxville, at the heel of the calendar on 7

May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The sole issue before the Court is the constitutionality

of Rule 42.”).

4 Our lack of an original proceeding may actually be salutary. This Court's resolution of complex questions concerning the

constitutionality of our rules would most likely be enhanced by the fuller development of issues and arguments that usually attend

the appellate process.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

304 S.W.3d 896

Court of Appeals of Texas,

Austin.

TEXAS DEPARTMENT OF PUBLIC SAFETY;

Lt. Col. Lamar Beckworth, in his official

capacity as Interim Director of the Texas

Department of Public Safety; and Allan B.

Polunsky, in his official capacity as Chairman

of the Public Safety Commission, Appellants,

v.

Miguel SALAZAR; Edgar Soria; Francisco Avila

Trejo; Green Meadows Landscaping, Inc.;

Eustolio Galvan; and Jose Gomez, Appellees.

No. 03–09–00222–CV. | Dec. 31,

2009. | Rehearing Overruled Feb. 25, 2010.

Synopsis

Background: Non-citizens and an employer relying on

foreign temporary employees brought action challenging

Department of Public Safety rules governing the issuance

of driver's licenses to non-citizen drivers. The 345th

Judicial District Court, Travis County, Orlinda Naranjo, J.,

temporarily enjoined Department from implementing and

enforcing the rules. Department appealed.

Holdings: The Court of Appeals, Diane M. Henson, J., held

that:

[1] where valid rule challenges were raised under the

Administrative Procedure Act (APA), the trial court had

subject-matter jurisdiction to consider claims for both

declaratory and injunctive relief;

[2] APA waives agency's immunity with respect to challenges

to the validity of an agency rule;

[3] internal memorandum providing that non-citizen driver's

licenses were to be produced in a non-standard vertical format

was not a “rule” subject to challenge under APA;

[4] plaintiffs did not have standing to challenge internal

memorandum under Uniform Declaratory Judgments Act

(UDJA);

[5] employer and non-citizens whose visas were issued for a

period of less than one year had standing to challenge new

rules under APA; and

[6] plaintiffs failed to establish entitlement to temporary

injunction.

Reversed.

Attorneys and Law Firms

*900 Erika M. Kane, Assistant Attorney General, Austin,

TX, for Appellants.

David G. Hinojosa, Mexican American Legal Defense &

Educational Fund, Inc., San Antonio, for Appellees.

Before Chief Justice JONES, Justices WALDROP and

HENSON.

OPINION

DIANE M. HENSON, Justice.

The Texas Department of Public Safety, the Interim Director

of the Texas Department of Public Safety, 1 and the

Chairman of the Public Safety Commission (collectively, the

“Department”), appeal from the trial court's order granting

a temporary injunction sought by appellees Miguel Salazar,

Edgar Soria, Francisco Avila Trejo, Eustolio Galvan, Jose

Gomez, and Green Meadows Landscaping (collectively, the

“Appellees”). The trial court's order temporarily enjoined

the Department from implementing and enforcing Rule

15.24, as amended, and Rule 15.171 of chapter 37 of the

Texas Administrative Code. See 37 Tex. Admin. Code §

15.24 (2009) (Tex. Dep't of Pub. Safety, Identification of

Applicants) (hereinafter, “Rule 15.24”); id. § 15.171 (2009)

(Tex. Dep't of Pub. Safety, Issuance of Driver Licenses &

Identification Certificates to Non-citizens) (hereinafter, “Rule

15.171”). The trial court further enjoined the Department

from issuing driver's licenses that are temporary or different

in appearance from standard driver's licenses to individuals

on the basis that they are not citizens or legal permanent

residents of the United States or on the basis that they are

legal permanent residents with an expiration date on their

permanent resident card.
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

*901 We hold that the Appellees' claims, with the exception

of the challenges to Rules 15.24 and 15.171 brought by Green

Meadows, Salazar, Soria, and Trejo, are barred by sovereign

immunity. With respect to those claims that are not barred

by sovereign immunity, we hold that the trial court abused

its discretion in granting injunctive relief. Accordingly, we

reverse the trial court's order issuing the temporary injunction.

BACKGROUND

The Department is authorized to adopt rules necessary to

administer chapter 521 of the transportation code, governing

the issuance of driver's licenses. See Tex. Transp. Code

Ann. §§ 521.005, .291 (West 2007) (delegating rulemaking

authority to the Department). Transportation code section

521.142 provides that an application for a driver's license

must include any “information the [D]epartment requires

to determine the applicant's identity, competency, and

eligibility.” Id. § 521.142(e) (West Supp. 2009); see also

id. § 521.142(a) (requiring “presentation of proof of identity

satisfactory to the [D]epartment”). Rule 15.24 describes

the types of documents considered satisfactory proof of

identity. In 2008, the Department amended the type of

primary identification document described in subsection

(1)(D) of Rule 15.24 from an “unexpired United States

Bureau of Citizenship and Immigration Services document”

to an “unexpired United States Bureau of Citizenship and

Immigration Services document issued for a period of at least

one year and must be valid for not less than six (6) months

from the date presented to the [D]epartment with a completed

application.” 2

Also in 2008, the Department adopted Rule 15.171, titled

“Issuance of Driver Licenses and Identification Certificates to

Non-citizens.” Rule 15.171 provides that if an applicant has

less than six months remaining on his lawful admission period

in the United States, no driver's license may be issued. Rule

15.171(a)(2). The rule further provides that if the applicant's

lawful admission period is more than six months but less than

the full term of a driver's license, the applicant will be issued

a driver's license “with a status date displayed that coincides

with the expiration of the applicant's lawful admission period

in the United States.” Id. at (a)(1). If the applicant's lawful

admission period has an indefinite expiration date, the driver's

license will be issued with a status date of one year from the

date of the application. Id. at (a)(3). If the applicant cannot

show valid documentation of a change or extension within 45

days from the status date, his driver's license will be cancelled.

Id. at (c).

In September 2008, the Department issued an internal

memorandum stating that licenses issued to certain noncitizen drivers would differ in appearance from standard

driver's licenses by being vertically oriented and bearing

a stamp stating, “Temporary Visitor.” The memorandum

further provided that such licenses would display the license

holder's status date as required by Rule 15.171. This

memorandum was never memorialized in a Department rule.

In response to the Department's amendment of Rule 15.24,

adoption of Rule 15.171, and September 2008 internal

memorandum, the Appellees filed suit seeking declaratory

and injunctive relief under the *902 Uniform Declaratory

Judgments Act (UDJA), see Tex. Civ. Prac. & Rem.Code

Ann. §§ 37.001–.011 (West 2008), and section 2001.038

of the Administrative Procedure Act (APA), see Tex. Gov't

Code Ann. § 2001.038 (West 2008).

The Appellees alleged that the enforcement of Rules 15.24

and 15.171 and the Department's policies as outlined

in the memorandum would cause them probable injury.

Specifically, Appellees Salazar, Soria, and Trejo assert that

they are authorized workers under the federal H–2B work

visa program, but cannot obtain driver's licenses under the

new rules because their visas are only valid for ten months at

a time. 3 Appellee Green Meadows, a landscaping business

that relies on temporary employees working in the U.S. on

H–2B work visas, alleges that the Department's new rules

have prevented its H–2B workers from obtaining Texas

driver's licenses, and therefore precluded Green Meadows

from employing them as foremen, as that position requires

the ability to drive work crews from one job site to

another. Because of the resulting shortage of foremen,

Green Meadows contends that it has been forced to forego

obligations owed to its landscaping customers. Appellee

Gomez, who holds a Class B commercial driver's license and

resides in the United States with temporary protected status,

alleges that he has been denied a Class A driver's permit

as a result of the Department's new rules, despite having

taken and passed the required written examination. 4 Finally,

Appellee Galvan, a legal permanent resident of the United

States, alleges that he was harmed by the Department's new

rules and policies when he was mistakenly issued a nonstandard driver's license indicating that he is a temporary

visitor to the United States.
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

After a hearing, the trial court granted the Appellees' request

for a temporary injunction, and this appeal followed. On

appeal, the Department argues that the trial court did not have

subject-matter jurisdiction to grant the temporary injunction

because the Appellees' claims are barred by sovereign

immunity. The Department further argues even if the trial

court did have subject-matter jurisdiction, it abused its

discretion in granting the temporary injunction.

STANDARD OF REVIEW

[1] [2] We review the grant or denial of a temporary

injunction for an abuse of discretion. See Walling v. Metcalfe,

863 S.W.2d 56, 58 (Tex.1993) (“The decision to grant or deny

a temporary writ of injunction lies in the sound discretion

of the trial court, and the court's grant or denial is subject

to reversal only for a clear abuse of that discretion.”). A

trial court abuses its discretion when it acts arbitrarily,

unreasonably, and without reference to guiding rules or

principles, or misapplies the law to the established facts of the

case. See Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003);

Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.

proceeding).

[3] [4] Sovereign immunity from suit defeats a trial

court's subject-matter jurisdiction. *903 State v. Gonzalez,

82 S.W.3d 322, 327 (Tex.2002). Whether a trial court has

subject-matter jurisdiction is a question of law we review de

novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.2007).

DISCUSSION

Jurisdiction

1. Subject–Matter Jurisdiction Under the APA

In its first issue on appeal, the Department contends that

the Appellees' claims are barred by sovereign immunity.

Specifically, the Department argues that the Appellees have

failed to assert a valid ultra vires claim sufficient to waive

sovereign immunity. See City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex.2009) (describing “ultra vires

exception” to sovereign immunity for suits alleging that state

official acted without legal authority or failed to perform

purely ministerial act).

[5] However, if the Appellees have raised valid challenges

to the Department's rules under the APA, then we need

not determine whether the Appellees have properly alleged

ultra vires claims because the trial court's subject-matter

jurisdiction is established by section 2001.038 of the APA.

See Tex. Gov't Code Ann. § 2001.038. Section 2001.038

allows a party to bring a declaratory-judgment action

challenging the validity or applicability of an agency rule if it

is alleged that the rule or its threatened application interferes

with or impairs a legal right or privilege of the plaintiff. See id.

Section 2001.038 is considered a legislative grant of subjectmatter jurisdiction, so that valid claims raised pursuant to that

provision are not barred by sovereign immunity. See Combs v.

Entertainment Publ'ns, Inc., 292 S.W.3d 712, 720 (Tex.App.-

Austin 2009, no pet.) (collecting cases).

[6] The Department argues that because the APA only

expressly authorizes declaratory actions challenging agency

rules, it does not establish subject-matter jurisdiction with

respect to requests for injunctive relief. While section

2001.038 does not expressly mention injunctive relief, this

Court has held that injunctive relief against a state agency is

available under the APA, stating:

The Commission's final point on

appeal is that the trial court's order

is void for attempting to enjoin a

state agency. Ordinarily, a plaintiff

must sue an individual in authority

to enjoin the activities of a state

agency. However, as discussed above,

the trial court's jurisdiction over this

matter was founded on the APA. It

was therefore empowered to issue an

injunctive order.

Texas Alcoholic Beverage Comm'n v. Amusement & Music

Operators of Tex., Inc., 997 S.W.2d 651, 659 (Tex.App.-

Austin 1999, pet. dism'd w.o.j.) (internal citations omitted);

see also Watson v. North Tex. Higher Educ. Auth., Inc.,

No. 03–00–00139–CV, 2000 WL 1534905, at *9–10, 2000

Tex.App. LEXIS 7017, at *30–31 (Tex.App.-Austin Oct. 19,

2000, pet. dism'd by agr.) (mem. op.) (affirming trial court's

denial of plea to jurisdiction on sovereign-immunity grounds

in suit challenging agency rule under section 2001.038 and

further affirming trial court's order temporarily enjoining

agency from enforcing rule). Allowing plaintiffs to challenge

the validity of an agency rule but barring injunctive relief

preventing application of the challenged rule would defeat

the purpose of section 2001.038, which “is to obtain a final

declaration of a rule's validity before the rule is applied.”

Rutherford Oil Corp. v. General Land Office, 776 S.W.2d
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

232, 235 (Tex.App.-Austin 1989, no writ). Therefore, we

hold that if the Appellees raised valid rule challenges under

the APA, the trial court had subject-matter jurisdiction

to consider their claims for *904 both declaratory and

injunctive relief. To hold otherwise would nullify the relief

afforded by section 2001.038 of the APA. See id. at 236

(stating that to hold that state agency could not be enjoined

from applying rule subject to validity challenge would

“wholly nullify” predecessor to section 2001.038 of APA).

[7] The Department further contends that in order to seek

injunctive relief against the State, the Appellees must bring a

valid ultra vires claim against a state official, as opposed to the

agency itself. See Heinrich, 284 S.W.3d at 373. We disagree.

While the supreme court held in Heinrich that certain types of

ultra vires suits must be brought against a state official, rather

than the State or its subdivisions, the court noted that this rule

did not apply to “claims challenging the validity of ordinances

or statutes,” because the UDJA “requires that the relevant

government entities be made parties, and thereby waives

immunity” for such validity claims. Id. at 373 n. 6 (citing

Tex. Civ. Prac. & Rem.Code Ann. § 37.006(b)). Similarly, the

APA requires that the relevant state agency be made a party

to any action challenging the validity of an agency rule, and

thereby waives the agency's immunity with respect to such

rule challenges. Tex. Gov't Code Ann. § 2001.038(c) (“The

state agency must be made a party to the action.”).

2. Does the APA Apply?

[8] Having determined that subject-matter jurisdiction is

established by the APA for agency rule challenges, we must

now determine whether the Appellees actually raised valid

rule challenges under the APA in this case. As a preliminary

matter, section 2001.038 requires that the challenged action

be “a rule.” See Tex. Gov't Code Ann. § 2001.038(a). While

there is no doubt that Rules 15.24 and 15.171 are agency

rules, a closer examination is required to determine whether

the Department's September 2008 internal memorandum

qualifies as a “rule” that may be challenged under the APA.

Section 2001.003 of the APA defines a rule as a state

agency statement of general applicability that “implements,

interprets, or prescribes law or policy” or “describes the

procedure or practice requirements of a state agency.” Tex.

Gov't Code Ann. § 2001.003(6) (West 2008). The definition

of a rule “does not include a statement regarding only the

internal management or organization of a state agency and not

affecting private rights or procedures.” Id. The Department's

September 2008 memorandum describes internal procedures

to be taken by Department staff in order to comply with

Rule 15.171 and outlines the methods by which non-citizens

are to be issued driver's licenses indicating “status dates”

as required by that rule. See Rule 15.171. The complainedof portion of the memorandum is a statement that noncitizen driver's licenses will be produced “in a vertical card

format with a red box around the photograph, a statement at

the top of the card (‘Temporary Visitor’), and a secondary

statement near the photograph which will include the [ ]

status expiration date.” Because the inclusion of a status

date is required by Rule 15.171, the memorandum does

not reflect rulemaking in connection with that issue, but

merely reiterates what is already contained in Rule 15.171.

The question then becomes whether the “Temporary Visitor”

designation and the vertical format of the licenses described

in the memorandum constitute improper agency rulemaking.

[9] [10] [11] Not every administrative pronouncement

is a rule within the meaning of the APA. See Texas Educ.

Agency v. Leeper, 893 S.W.2d 432, 443 (Tex.1994). In

order to be considered statements of “general applicability”

as described in *905 section 2001.003(6), agency

pronouncements must “affect the interest of the public at large

such that they cannot be given the effect of law without public

input.” Railroad Comm'n v. WBD Oil & Gas Co., 104 S.W.3d

69, 79 (Tex.2003). Agency statements that “have no legal

effect on private persons” are not considered rules. Brinkley

v. Texas Lottery Comm'n, 986 S.W.2d 764, 770 (Tex.App.-

Austin 1999, no pet.).

The Appellees have not identified any public interest in

ensuring that all qualified applicants receive a horizontally

oriented driver's license or a driver's license free from any

“Temporary Visitor” designation. 5 The Appellees have also

failed to identify any legal effect on private persons as a result

of the Department's policy. It is undisputed that the vertically

oriented driver's licenses, including the “Temporary Visitor”

designation, remain valid Texas driver's licenses, despite their

non-standard appearance. The Department's internal policy

regarding the appearance of driver's licenses as outlined in the

memorandum does not affect the interest of the public such

that it cannot be altered without public input, nor does it have

any legal effect on private persons. On that basis, we hold

that the Department's September 2008 memorandum does not

qualify as a rule under the APA. See WBD Oil & Gas Co.,

104 S.W.3d at 79; Brinkley, 986 S.W.2d at 770; see also Tex.

Gov't Code Ann. § 2001.003(6).
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Because the Department's internal memorandum does not

qualify as a rule under the APA, section 2001.038 does

not confer subject-matter jurisdiction on the trial court to

consider the Appellees' request for declaratory and injunctive

relief with respect to the memorandum. See generally

Entertainment Publ'ns, 292 S.W.3d at 723 (first resolving

issue of whether agency action constituted rule under APA

in the affirmative before concluding that trial court had

jurisdiction to consider validity challenge).

3. Subject–Matter Jurisdiction Under the UDJA: The

September 2008 Memorandum

[12] [13] [14] While the Appellees also seek relief under

the UDJA, the UDJA is not a general waiver of sovereign

immunity and does not enlarge a trial court's jurisdiction. See

Heinrich, 284 S.W.3d at 370; State of Texas v. BP Am. Prod.

Co., 290 S.W.3d 345, 360 (Tex.App.-Austin 2009, pet. filed).

Therefore, if the memorandum represents an act within the

legal authority and discretion of the Director, any challenge

to the memorandum represents an attempt to control state

action and is barred by sovereign immunity. See Heinrich,

284 S.W.3d at 372. On the other hand, if a party alleges, and

can ultimately prove, that a state official has acted outside his

legal authority, that party's ultra vires claims are considered

attempts to reassert the control of the State and are not barred

by sovereign immunity. 6See id.

*906 [15] [16] However, because the Appellees lack

standing under the UDJA, we need not reach the issue of

whether they have raised a valid ultra vires claim alleging

acts beyond the Director's authority. While private parties

may seek declaratory relief in connection with an alleged

ultra vires act, “[a] declaratory judgment requires a justiciable

controversy as to the rights and status of parties actually

before the court for adjudication, and the declaration sought

must actually resolve the controversy.” Brooks v. Northglen

Ass'n, 141 S.W.3d 158, 163–64 (Tex.2004). To establish

standing under the UDJA, the Appellees must show “a

particularized, legally protected interest that is actually or

imminently affected by the alleged harm.” Save Our Springs

Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871,

882 (Tex.App.-Austin 2010, no pet. h.). As discussed above,

the Appellees have not alleged any cognizable legal effect

on private persons as a result of the Department's September

2008 memorandum, as it merely alters the appearance of

certain driver's licenses. The Appellees have not shown

that receipt of a Texas driver's license that is standard in

appearance, as opposed to vertically oriented and stamped

with a “Temporary Visitor” designation, is a recognizable

legally protected interest. On that basis, we hold that

the Appellees have not established standing to challenge

the Department's September 2008 memorandum under the

UDJA, and therefore that the trial court lacked subject-matter

jurisdiction to resolve the issue.

4. Standing Under the APA: Rules 15.24 and 15.171

[17] We now turn to the question of whether the Appellees

have standing to challenge Rules 15.24 and 15.171 under the

APA. 7 In order to have standing under section 2001.038,

the Appellees must have alleged that the challenged rules or

their threatened application “interfere[ ] with or impair [ ], or

threaten[ ] to interfere with or impair, a legal right or privilege

of the plaintiff.” Tex. Gov't Code Ann. § 2001.038.

[18] While a driver's license is not a legal right, it is

considered a privilege. See Texas Dep't of Pub. Safety

v. Schaejbe, 687 S.W.2d 727, 728 (Tex.1985). Appellees

Salazar, Soria, and Trejo have all alleged that due to their

immigration status, they are not eligible to obtain Texas

driver's licenses under Rules 15.24 and 15.171. Under these

rules, a non-citizen's immigration documentation from the

federal government must have been originally issued for a

period of at least one year. Salazar, Soria, and Trejo work in

the United States through the federal H–2B program on visas

issued for a period of approximately ten months. While they

generally receive extensions from the federal government, the

fact that their visas are originally issued for a period of less

than a year prevents them from obtaining a Texas driver's

license under the new rules. As a result, Salazar, Soria, and

Trejo have demonstrated that the new rules interfere with

their privilege to obtain a Texas driver's license, giving them

standing to challenge *907 the rules under section 2001.038

of the APA.

[19] Green Meadows alleges that it relies on H–2B workers

in conducting its landscaping business, and that due to the

seasonal nature of its business, the H–2B visas it requests

for its workers are valid for a period of ten months. Because

the visas held by the H–2B workers employed by Green

Meadows are valid for less than one year, these workers are

precluded from obtaining a Texas driver's license under the

new rules. According to Green Meadows, it cannot employ

workers without driver's licenses as foremen, because the

foremen must be able to drive work crews from one job

site to another. Green Meadows further contends that the
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

resulting shortage of foremen has prevented it from fulfilling

obligations to its landscaping customers.

The ability of an employer to participate in federal guestworker programs, such as the H–2B program, is a privilege

created by federal law. See 8 U.S.C.A. § 1101(a)(15)(H)(ii)

(a) (West Supp. 2009). Green Meadows has alleged that the

Department's new rules threaten to impair this privilege by

preventing its H–2B employees from obtaining Texas driver's

licenses, thus limiting Green Meadows's ability to utilize

these employees in its business. Therefore, we hold that Green

Meadows has sufficiently established standing to challenge

the new rules under the APA.

[20] Appellee Gomez, who holds a Texas Class B

commercial driver's license, alleges that he was denied a

Class A driver's permit in March 2009 as a result of the

Department's new rules, despite having taken and passed

the required written examination. The record reflects that

Gomez's immigration documentation is valid from March

10, 2009, to September 9, 2010. Gomez testified at the

temporary-injunction hearing that he applied for the Class

A permit sometime in March 2009. When asked whether

he applied for a Class A permit before or after March 10,

2009, Gomez responded, “I think before.” However, the trial

court later asked Gomez whether he provided the immigration

document entered into evidence—the document reflecting

that his valid immigration status extends from March 10,

2009, to September 9, 2010—when applying for the license,

and Gomez answered, “Correct.” It is unclear why Gomez

was denied the Class A permit, as his immigration document

was valid for more than one year at the time it was issued

and remained valid for more than six months at the time

he applied for the license. If the problem stemmed from

his applying for the license prior to the March 10, 2009

effective date of his immigration document, it would have

been remedied on that date, and in fact, Gomez's immigration

document remains sufficient to obtain a license under the new

rules until March 2010, at which time it will no longer have

six months of validity remaining. Because Gomez has not

established that Rules 15.24 and 15.171 have interfered with

or impaired his ability to obtain a Class A license, we hold that

he lacks standing to challenge Rule 15.24 and 15.171 under

the APA. 8

[21] Similarly, appellee Galvan has not established that

the Department's new rules have impaired or interfered with

a legal right or privilege. The Department concedes that

Galvan, as a legal permanent resident of the United States,

was entitled to a standard license reflecting an expiration

*908 date six years from the date it was issued, but that he

was issued a vertically oriented license stamped “Temporary

Visitor” by mistake. While this turn of events is unfortunate,

it is not an indication Rule 15.24 or Rule 15.171 impairs

or interferes with or threatens to impair or interfere with

Galvan's legal privilege to obtain a Texas driver's license.

Therefore, Galvan has not established standing to challenge

these rules. 9

In light of the foregoing, we hold that the trial court properly

exercised subject-matter jurisdiction over the challenges to

Rules 15.24 and 15.171 brought by Green Meadows, Salazar,

Soria, and Trejo under section 2001.038 of the APA. The

Appellees' challenge to the Department's September 2008

memorandum, Gomez and Galvan's rule challenges, and all

claims raised pursuant to the UDJA, are dismissed for want

of jurisdiction.

Temporary Injunction

[22] We now turn to the Department's second issue on

appeal, in which it argues that the trial court abused its

discretion in determining that the Appellees established

the elements necessary to entitle them to a temporary

injunction. 10 See Walling v. Metcalfe, 863 S.W.2d 56, 58

(Tex.1993) (stating that trial court's decision to grant or deny

temporary injunction is reviewed for abuse of discretion). “To

obtain a temporary injunction, the applicant must plead and

prove three specific elements: (1) a cause of action against the

defendant; (2) a probable right to the relief sought; and (3)

a probable, imminent, and irreparable injury in the interim.”

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002).

In support of the argument that they would suffer a

probable, imminent, and irreparable injury in the absence of

a temporary injunction, Salazar, Soria, and Trejo contend

that the Department's new rules prevent them from obtaining

Texas driver's licenses, which in turn prevents them from

receiving promotions at work and forces them to rely on

others for transportation to work or to obtain medical care

if needed. Green Meadows argues that application of the

Department's rules would disrupt its business by restricting

the number of employees that can act as foremen and drive

work crews to various job sites.

The Department asserts, however, that even viewing the

evidence in the light most favorable to the trial court's order,

as we must to do in reviewing a temporary injunction, see
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

CRC–Evans Pipeline Int'l, Inc. v. Myers, 927 S.W.2d 259, 262

(Tex.App.-Houston [1st Dist.] 1996, no writ), the Appellees

have failed to establish a probable, imminent, and irreparable

injury that they would suffer in the absence of a temporary

injunction.

[23] [24] [25] [26] Establishing probable, imminent,

and irreparable injury requires proof of an actual threatened

injury, as opposed to a speculative or purely conjectural

one. Dallas General Drivers, Warehousemen & Helpers v.

Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (1956).

Fear or apprehension of possible injury is insufficient to

support a finding of imminent injury. Frey v. DeCordova

Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex.1983).

The question of whether a probable, imminent, *909 and

irreparable injury exists to warrant injunctive relief is a legal

question for the court. Operation Rescue–National v. Planned

Parenthood, 975 S.W.2d 546, 554 (Tex.1998). Furthermore,

a temporary injunction will not be granted “where there is a

plain and adequate remedy at law.” McGlothlin v. Kliebert,

672 S.W.2d 231, 232 (Tex.1984).

[27] [28] To the extent Salazar, Soria, and Trejo cite their

inability to drive in Texas for purposes of driving to work,

obtaining food and other necessities, or seeking medical care

if necessary, there are alternatives to a standard Texas driver's

license that create an adequate remedy to this potential harm.

Section 521.030 of the transportation code provides that a

non-resident from an approved country of residence who

holds a license in his or her country of residence may rely

on that reciprocal license to legally drive in Texas without

obtaining a Texas driver's license. Tex. Transp. Code Ann.

§ 521.030 (West 2007). Mexico, the country of residence

for Salazar, Soria, and Trejo, is on the list of approved

countries for the use of reciprocal licenses. See 37 Tex.

Admin. Code § 15.91(b)(6) (2009) (Tex. Dep't of Pub. Safety,

Int'l Reciprocity). Rule 15.91 also provides that “[r]eciprocal

privileges are limited to private vehicles. Carriage of ...

goods other than personal baggage of the occupants of the

vehicles is not authorized.” Id. § 15.91(d)(2). This would

appear to exclude any transporting of landscaping work

crews and their equipment. However, for everyday driving

purposes, the statute and regulation authorizing reciprocal

licenses foreclose Salazar, Soria, and Trejo from arguing that

in the absence of a temporary injunction, they would suffer

imminent, irreparable injury for which there is no adequate

remedy. 11

[29] Salazar, Soria, and Trejo further argue that because

they are unable to obtain Texas driver's licenses, they are

unable to seek promotions at work, as the position of foreman

requires a driver's license. Salazar, Soria, and Trejo have

presented no evidence that they are otherwise qualified or

eligible for a promotion to the position of foreman. As a

result, their inability to seek a possible promotion without a

Texas driver's license does not represent an imminent injury,

but a speculative or merely conjectural one. See Butnaru, 84

S.W.3d at 204 (stating that applicant for temporary injunction

has burden of pleading and proving probable, imminent, and

irreparable injury). Therefore, we hold that Salazar, Soria,

and Trejo do not meet the required elements of temporary

injunctive relief.

[30] Similarly, Green Meadows's assertion that it will

eventually run out of employees eligible to work as foremen

is merely conjectural, and does not represent the type of

imminent, irreparable injury required to qualify for temporary

injunctive relief. Furthermore, while Green Meadows argues

that it is harmed by its inability to promote from within the

company, there is no indication that Green Meadows is in

any way precluded from hiring additional employees who

possess valid Texas driver's licenses to serve as foremen.

As a result, Green Meadows has *910 not shown that

its inability to promote from within creates a probable,

imminent, and irreparable injury for which there is no other

adequate remedy.

Based on our conclusion that the Appellees have failed to

establish the existence of a probable, imminent, irreparable

injury for which there is no adequate remedy, we hold that the

trial court abused its discretion in temporarily enjoining the

Department from enforcing Rules 15.171 and 15.24.

CONCLUSION

We hold that the challenges to Rules 15.24 and 15.171

brought by Green Meadows, Salazar, Soria, and Trejo are

not barred by sovereign immunity. However, because the

necessary elements for temporary injunctive relief were not

met, we reverse the trial court's order issuing injunctive relief

with respect to those claims. All of Appellees' remaining

claims are dismissed for lack of subject-matter jurisdiction on

the basis of sovereign immunity.
Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Footnotes

1 We substitute Lt. Col. Lamar Beckworth, in his official capacity, as successor to Stanley E. Clark, former director of the Texas

Department of Public Safety. See Tex.R.App. P. 7.2.

2 Since 2006, subsection (1)(F) of Rule 15.24 has provided that a federally issued Form I–94 could only be used to establish identity

if it was originally issued for at least one year and has at least six months of validity remaining at the time of the license application.

Subsection (1)(F) is not at issue in this appeal.

3 The federal H–2B program allows employers in non-agricultural businesses to petition the federal government for permission to hire

temporary labor and service workers from other countries if those positions cannot be filled by persons in the United States. See 8

U.S.C.A. § 1101(a)(15)(H)(ii)(a) (West Supp.2009).

4 Temporary protected status (TPS) is granted to eligible nationals of designated countries who are temporarily unable to safely return

to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary condition.

See id. § 1254a (West 2005).

5 Licenses issued to individuals under the age of 21 are vertically oriented as required by statute. See Tex. Transp. Code Ann. § 521.123

(West 2007) (requiring Department to “orient the information on the license to clearly distinguish the [under 21] license from a

license that is issued to a person who is 21 years of age or older”).

6 As the supreme court explained in Heinrich, ultra vires suits may only be brought against the relevant government actors in their

official capacity, rather than the state agency itself. See 284 S.W.3d at 373. Therefore, even if we determine that the Appellees have

raised a valid ultra vires claim with respect to the September 2008 memorandum, that claim remains barred by sovereign immunity

to the extent it is brought against any party other than the Director of the Department.

7 To the extent the Appellees also seek relief under the UDJA in connection with these rule challenges, we dismiss those claims for

want of jurisdiction on the ground that a party may not seek relief under the UDJA when such relief would be redundant to relief

under the APA. See Texas State Bd. of Plumbing Exam'rs v. Associated Plumbing–Heating–Cooling Contractors of Tex., Inc., 31

S.W.3d 750, 753 (Tex.App.-Austin 2000, pet. dism'd by agr.) (“When a plaintiff files a proceeding that only challenges the validity

of an administrative rule, the parties are bound by the APA and may not seek relief under the UDJA because such relief would be

redundant.”).

8 For the same reason, even if we considered Gomez's rule challenge to be a valid ultra vires claim under the UDJA, he has failed to

establish a justiciable controversy and therefore lacks standing under the UDJA as well.

9 Like Gomez, Galvan has also failed to establish a justiciable controversy that would give him standing under the UDJA in the event

of a valid ultra vires claim regarding the Department's rules.

10 In light of our holding on the jurisdictional question, we need only determine whether Green Meadows, Salazar, Soria, and Trejo

established the elements necessary to entitle them to a temporary injunction, as the remaining appellees have been dismissed.

11 Based on the testimony provided at the temporary-injunction hearing, it appears that Salazar holds a license from Mexico, but that

Soria and Trejo do not. However, the question at issue here is whether an adequate remedy is available, not whether the parties have

actually availed themselves of that remedy. Furthermore, “[t]he lack of an adequate remedy is not shown by the mere fact that the

remedy provided would involve more expense or delay.” Kendall Appraisal Dist. v. Cordillera Ranch, Ltd., No. 04–03–00150–CV,

2003 WL 21696901, at *3, 2003 Tex.App. LEXIS 6293, at *10 (Tex.App.-San Antonio July 23, 2003, no pet.) (citing Canadian

Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994)).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)

55 Tex. Sup. Ct. J. 42

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

355 S.W.3d 618

Supreme Court of Texas.

TEXAS DEPARTMENT OF

TRANSPORTATION, Petitioner,

v.

Roger SEFZIK, Respondent.

No. 08–0943. | Oct. 21, 2011.

Synopsis

Background: Applicant for permit to erect outdooradvertising sign brought suit against Texas Department

of Transportation (TxDot), seeking declaration that

Administrative Procedure Act's (APA's) provisions

governing “contested cases” applied to TxDot's denial of

his application and alleging that denial of contested-case

proceeding violated due process. The 53rd District Court,

Travis County, Suzanne Covington, J., granted TxDot's

plea to jurisdiction based on sovereign immunity. Applicant

appealed. The Corpus Christi - Edinburg Court of Appeals,

267 S.W.3d 127, affirmed in part and reversed and remanded

in part. Review was granted.

[Holding:] The Supreme Court held that the sovereign

immunity of the Texas Department of Transportation was not

waived.

Court of Appeals reversed in part; remanded to trial court.

Attorneys and Law Firms

*619 Beth Ellen Klusmann, Assistant Solicitor General,

Betsy Jane Johnson, Office of the Attorney General, Austin,

James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, David

S. Morales, Office of the Attorney General of Texas, Deputy

First Assistant Attorney General, Kent C. Sullivan, 14th

Court of Appeals, Greg W. Abbott, Attorney General and

Clarence Andrew Weber, Kelly Hart & Hallman LLP, Austin,

for Texas Department of Transportation.

J. Allen Smith, Scott J. Conrad, Bradley E. McLain, Settle

Pou, Dallas and Clyde Russell Woody, Hartzog Conger

Cason & Neville, Oklahoma City, OK, for Roger Sefzik.

Opinion

PER CURIAM.

[1] At issue in this case is whether sovereign immunity

bars Roger Sefzik's lawsuit seeking declaratory relief under

the Uniform Declaratory Judgments Act (UDJA) against the

Texas Department of Transportation (TxDOT). In City of

El Paso v. Heinrich, we dismissed claims *620 seeking

declaratory and injunctive relief against governmental entities

as barred by sovereign immunity. 284 S.W.3d 366, 380

(Tex.2009). The court of appeals relied on our pre-Heinrich

ultra vires precedent to conclude that declaratory judgment

actions do not implicate sovereign immunity. We reverse

and hold that state agencies, like TxDOT here, are immune

from suits under the UDJA unless the Legislature has waived

immunity for the particular claims at issue. However, because

Sefzik's claim was filed pre-Heinrich, we remand the case to

the trial court so that Sefzik has a reasonable opportunity to

assert an ultra vires claim against state officials.

In March 2005, Sefzik filed a permit application with

TxDOT to erect an outdoor advertising sign along Interstate

30. A few weeks later, another company filed a similar

application, seeking to create a sign in the same area. After

reviewing the conflicting applications, TxDOT found that

Sefzik's permit was invalid. Under former section 21.142 of

the Texas Administrative Code, applicants for sign permits

were required to verify that a sign would be near adjacent

commercial or industrial activities that had been open for at

least ninety days. See 43 TEX. ADMIN. CODE § 21.142(2)

(K), (30) (2008) (Tex. Dep't of Transp., Definitions) repealed

36 Tex. Reg. 2418 (2011) (proposed Dec. 2, 2010). When

TxDOT received Sefzik's application, one of the businesses

he listed was only open for seventy-eight days. TxDOT

denied Sefzik's application and approved the competing bid.

Sefzik appealed to TxDOT's Executive Director, Michael

Behrens, and requested an oral hearing. Behrens denied

Sefzik's appeal without holding a hearing, and explained

that TxDOT had discretion to deny Sefzik's invalid permit

application. Sefzik filed a motion for rehearing, arguing, inter

alia, that he was entitled to a hearing under the Administrative

Procedure Act's (APA) “contested case” procedures. See

TEX. GOV'T CODE § 2001.051. TxDOT did not respond,

and the motion was eventually overruled by operation of law.

Sefzik then filed suit against TxDOT but did not join Behrens

or any other TxDOT official. Sefzik sought relief under the
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)

55 Tex. Sup. Ct. J. 42

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

UDJA, requesting that the district court declare the APA's

“contested case” procedures entitled him to a hearing. 1

TxDOT filed a plea to the jurisdiction, arguing that sovereign

immunity barred Sefzik's suit. The district court granted the

plea to the jurisdiction and denied Sefzik's motion for a new

trial. Sefzik appealed.

A divided court of appeals reversed, holding that declaratory

judgment claims do not implicate sovereign immunity and

thus TxDOT was a proper party to the UDJA action. 267

S.W.3d 127, 132–34 (“[W]hen a private plaintiff merely

seeks a declaration of his or her rights under a statute, such an

action is not subject to a sovereign immunity defense, and a

waiver or consent to suit is unnecessary.”). Having concluded

that the UDJA does not implicate sovereign immunity, the

court of appeals did not decide whether the UDJA or the APA

waives immunity.

[2] [3] [4] Reviewing the immunity question de novo,

see Harris County Hosp. Dist. v. Tomball Reg'l Hosp.,

283 S.W.3d 838, 842 (Tex.2009), we conclude that, under

Heinrich, sovereign immunity bars UDJA actions against

the state and its political subdivisions absent a legislative

waiver. Heinrich clarified an area of the law that had been

unclear, namely, the intersection between the doctrine of

sovereign immunity and the ultra vires exception to it. While

the doctrine of sovereign immunity originated to protect the

public fisc from unforeseen expenditures that could hamper

governmental functions, see Tex. Natural Res. Conservation

Comm'n v. IT–Davy, 74 S.W.3d 849, 854 (Tex.2002), it has

been used to shield the state from lawsuits seeking other

forms of relief, see, e.g., W.D. Haden Co. v. Dodgen, 158

Tex. 74, 308 S.W.2d 838, 839 (1958) (“[T]he rule of state

immunity from suit without its consent applies to suits under

the Uniform Declaratory Judgments Act....”). Concomitant

to this rule, however, is the ultra vires exception, under

which claims may be brought against a state official for

nondiscretionary acts unauthorized by law. See, e.g., Fed.

Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997). Such

lawsuits are not against the state and thus are not barred by

sovereign immunity. Id.

[5] In Heinrich, we addressed which governmental entities

—the state, its subdivisions, or the relevant government actors

in their official capacities—are proper parties to a suit seeking

declaratory relief for an ultra vires action. 284 S.W.3d at 371–

73. Heinrich sued the City of El Paso and various government

officials, claiming the defendants violated her statutory rights

when they altered her pension benefits. Id. at 369–70. She

asked the courts to declare that the defendants acted without

authority in taking such action. Id. Our precedent made clear

that “suits to require state officials to comply with statutory

or constitutional provisions are not prohibited by sovereign

immunity.” Id. at 372. While we recognized that these suits

are against the state for all practical purposes, we held that

they “cannot be brought against the state, which retains

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

official capacity.” Id. at 373. Thus, we allowed Heinrich to

pursue claims for prospective relief against the state officials,

but we dismissed the claims against the city and the other

governmental entities. Id. at 379–80.

[6] [7] [8] Two points from Heinrich are relevant here.

First, Heinrich held that the proper defendant in an ultra

vires action is the state official whose acts or omissions

allegedly trampled on the plaintiff's rights, not the state

agency itself. Id. at 372–373. Sefzik did not sue any state

official. 2 Instead, he argues that the court of appeals correctly

exempted UDJA actions seeking a declaration of rights from

the application of the sovereign immunity doctrine. The

second point from Heinrich dictates otherwise. As noted,

we dismissed Heinrich's claims seeking declaratory and

injunctive relief against governmental entities, brought under

the UDJA, because the entities were immune. In 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.

Very likely, the same claim could be brought against the

appropriate state official under the ultra vires exception, but

the state agency remains immune. See id. at 372–73. As we

have consistently stated, the UDJA does not enlarge the trial

court's jurisdiction *622 but is “merely a procedural device

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

Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388

(2011) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444 (Tex.1993)). Accordingly, the underlying

action, if against the state or its political subdivisions, must

be one for which immunity has expressly been waived.

[9] [10] [11] Although the UDJA waives sovereign

immunity in particular cases, Sefzik's claim does not fall

within the scope of those express waivers. For example, the

state may be a proper party to a declaratory judgment action

that challenges the validity of a statute. Heinrich, 284 S.W.3d

at 373 n. 6 (citing TEX. CIV. PRAC. & REM.CODE §

37.006(b)); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 697–98 (Tex.2003); Tex. Educ. Agency v. Leeper, 893

S.W.2d 432, 446 (Tex.1994).

3

 But Sefzik is not challenging
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)

55 Tex. Sup. Ct. J. 42

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

the validity of a statute; instead, he is challenging TxDOT's

actions under it, and he does not direct us to any provision of

the UDJA that expressly waives immunity for his claim. 4

[12] Sefzik also suggests that the APA provides a guide

for analyzing the application of sovereign immunity to his

case. The APA's declaratory judgment provision allows a

plaintiff to challenge the validity or applicability of a rule.

See TEX. GOV'T CODE § 2001.038(a), (c) (“The validity

or applicability of a rule ... may be determined in an action

for declaratory judgment if it is alleged that the rule or its

threatened application interferes with or impairs ... a legal

right or privilege of the plaintiff.... The state agency must

be made a party to the action.”). While the APA may waive

sovereign immunity, an issue we do not decide here, Sefzik

does not challenge the validity or applicability of any agency

rule. Instead, he challenges the application of the APA's

contested case procedures, which are established by statute.

As noted in his brief, Sefzik's claim is broader than the

APA's scope. Moreover, the APA's mechanism for seeking

a declaration of rights does not trump Heinrich's conclusion

that the state is generally immune from declaratory actions

brought under the UDJA. Accordingly, section 2001.038

does not carry Sefzik's claim over the hurdle of sovereign

immunity.

In the event that we reverse the court of appeals' judgment,

Sefzik urges this Court to remand the case so that he

can replead an ultra vires claim within the trial court's

jurisdiction. If given that opportunity, Sefzik asserts he

would plead a claim against TxDOT officials for improperly

denying his permit. As mentioned previously, under the

former Administrative Code provisions governing this case,

applicants for sign permits were required to verify that a sign

would be near adjacent commercial or industrial activities

which had *623 been open for at least ninety days. See

43 TEX. ADMIN. CODE § 21.142(2)(K), (30) (2008) (Tex.

Dep't of Transp., Definitions) repealed 36 Tex. Reg. 2418

(2011) (proposed Dec. 2, 2010). The Administrative Code

went on to provide that “[p]ermits will be considered on

a first-come, first-serve basis.” Id. § 21.150 (2008) (Tex.

Dep't of Transp., Permits) repealed 36 Tex. Reg. 2418

(proposed Dec. 2, 2010). If the first application was denied,

the Administrative Code specified that other applications

would be considered “between the time a denied application

is returned to the applicant and the time it is resubmitted.” Id.

Sefzik contends that his application was the only one on file

on the 90th day; thus, in denying his permit, TxDOT officials

failed to perform a purely ministerial duty.

[13] When this Court upholds a plea to the jurisdiction

on sovereign immunity grounds, we allow the plaintiff the

opportunity to replead if the defect can be cured. See, e.g.,

Sawyer Trust, 354 S.W.3d. at 392 (citing Tex. A & M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007)). As

mentioned, Sefzik did not sue any state officials; however,

Sefzik brought his claim pre-Heinrich. As we have observed,

our decisions prior to Heinrich were “less than clear” as to

who the proper party was in a suit for declaratory remedy,

as well as the parameters of the ultra vires exception to the

doctrine of sovereign immunity. See Heinrich, 284 S.W.3d

at 373. In light of our clarifications to this area of the law in

Heinrich, Sefzik should have an opportunity to replead in an

attempt to cure the jurisdictional defects in his petition. We

thus remand the case to allow Sefzik this opportunity without

expressing any opinion on the merits of such a claim. See

Sawyer Trust, 354 S.W.3d at 393.

Accordingly, without hearing oral argument, TEX. R. APP.

P. 59. 1, we reverse in part the court of appeals' judgment,

and remand the case to the trial court in accordance with this

opinion.

Justice JOHNSON did not participate in the decision.

Parallel Citations

55 Tex. Sup. Ct. J. 42

Footnotes

1 Sefzik also alleged that TxDOT's actions violated his due process and equal protection rights under the United States and Texas

Constitutions. The court of appeals ultimately affirmed the district court's dismissal on those issues, 267 S.W.3d at 135–38, and

Sefzik did not petition this Court to review that decision.

2 Although Sefzik refused to apply the ultra vires label to his suit below, that is the underlying nature of his claim. The relief he seeks

—a declaration that he is entitled to a hearing—is directly related to whether Behrens acted outside the scope of his authority in

denying a hearing. That is, Sefzik ultimately wishes to compel a government official (Behrens) to perform some act that he considers

to be nondiscretionary (holding a hearing). That relief falls within the ultra vires rationale.
Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011)

55 Tex. Sup. Ct. J. 42

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

3 We have recognized this waiver because the UDJA expressly requires joinder of the governmental unit. See TEX. CIV. PRAC. &

REM.CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must

be made a party ... and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must

also be served with a copy of the proceeding and is entitled to be heard.”); Leeper, 893 S.W.2d at 446 (“The DJA expressly provides

that ... governmental entities must be joined or notified.”). This reasoning is consistent with the requirement that the Legislature

expressly waive immunity with “clear and unambiguous” language. TEX. GOV'T CODE § 311.034; Taylor, 106 S.W.3d at 696.

4 On “rare occasions,” we may recognize a waiver absent explicit language. Taylor, 106 S.W.3d at 697. Sefzik has not argued that we

should infer a waiver of immunity under the UDJA, so we do not consider that possibility.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

848 S.W.2d 298

Court of Appeals of Texas,

Austin.

UNIVERSITY INTERSCHOLASTIC

LEAGUE and Bailey Marshall, Appellants,

v.

Bruce LaFeyette BUCHANAN, et al., Appellees.

UNIVERSITY INTERSCHOLASTIC LEAGUE

and Dr. Bailey Marshall, Appellants,

v.

Phillip Earl BOMAR, Jr., et al., Appellees.

Nos. 3–92–108–CV, 3–92–161–CV. | Feb. 3,

1993. | Rehearing Overruled March 31, 1993.

Learning disabled high school athletes sought to permanently

enjoin organization regulating high school athletics from

enforcing rule precluding participation by athletes over 19

years old. The 331st and 53rd Judicial District Courts,

Travis County, B.B. Schraub, J., granted the injunction, and

organization appealed. The Court of Appeals, Kidd, J., held

that: (1) athletes were “disabled” under Rehabilitation Act;

(2) organization failed to reasonably accommodate athletes

by not allowing exceptions to rule; (3) students' failure

to exhaust remedies under Individuals with Disabilities

Education Act did not deprive trial court of jurisdiction; and

(4) “public interest exception” to mootness doctrine permitted

review.

Affirmed.

Attorneys and Law Firms

*299 William C. Bednar, Jr., Eskew, Muir & Bednar,

Austin, for University Interscholastic League.

James R. Raup, McGinnis, Lochridge & Kilgore, Austin, for

Austin Independent School Dist. and Dr. Jim Hensley.

Diane M. Henson, Graves, Dougherty, Hearon & Moody,

Austin, for Bruce LaFeyette Buchanan and Phillip Earl

Bomar, Jr.

Leonard J. Schwartz, Schwartz & Eichelbaum, P.C., Austin,

for Dallas Independent School Dist. and Dr. Marvin E.

Edwards.

Before CARROLL, C.J., and JONES and KIDD, JJ.

Opinion

KIDD, Justice.

The University Interscholastic League and its Executive

Director, Bailey Marshall, *300 (collectively hereinafter

the “UIL”) appeal the judgment of the trial court granting a

permanent injunction against the enforcement of the UIL's

over–19 rule. 1 We will affirm the judgment of the district

court.

FACTUAL BACKGROUND

Composed of representatives of Texas school districts, the

UIL is a voluntary organization that regulates, among other

things, the competitive athletics of the junior and senior

high school student athletes in Texas. This case involves

a challenge to section 400(a) of the UIL Constitution and

Contest Rules (the “over–19 rule”) which states: “Subject to

the other sections of this subchapter, an individual is eligible

to participate in a League varsity contest as a representative of

a participant school if that individual ... is less than 19 years

old on September 1 preceding the contest....”

The UIL states that the underlying purpose of the over–

19 rule is to ensure the safety of the participating student

athletes and the equality of competitors. It argues that one

policy justification for the over–19 rule is the avoidance of

potential injury which might result if younger, less developed

high school students are required to compete against older

students. Furthermore, the UIL argues that the over–19 rule

discourages the practice of “redshirting,” i.e., having students

repeat grades so that they will be more mature and better

athletes during their high school years. The UIL permits no

exception to or waiver of the over–19 rule based on special

circumstances of individual students.

Appellees, Bruce Buchanan and Phillip Bomar (the

“Students”), obtained permanent injunctions allowing them

to participate in the 1991 football season. The final judgments

rendered in these causes stated that the over–19 rule violated

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A.

§ 794 (West Supp.1992) (“Section 504”), as applied to the

Students. Section 504 provides in pertinent part:

No otherwise qualified individual

with handicaps in the United States,

as defined in section 706(8) of
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

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this title, shall, solely by reason of

her or his handicap, be excluded

from the participation in, be denied

the benefits of, or be subjected to

discrimination under any program or

activity receiving Federal financial

assistance....

29 U.S.C.A. § 794.

The factual bases for the permanent injunctions involving the

Students are as follows.

Bruce Buchanan

Buchanan turned nineteen years old before he entered the

twelfth grade at Travis High School of the Austin Independent

School District (“Austin ISD”). Because he had learning

disabilities, he had repeated the first and seventh grades.

During ninth grade, Buchanan began participating in his

school's football program. Although he was nineteen at the

start of his senior year, Buchanan was below the average

weight and height of his team members, and he never was a

starter on the team.

Both Buchanan's mother and his Admission, Review and

Dismissal (ARD) Committee 2 requested a waiver from the

over–19 rule. The UIL responded that there were “no rules

which allow for a waiver of the 19–year–old rule.” Buchanan

instituted this lawsuit against the UIL and its director, and

later joined Austin ISD and Dr. *301 Jim Hensley, the

Superintendent of Austin ISD, as defendants in the suit to

enjoin the enforcement of the rule.

Phillip Bomar

Bomar was also nineteen years of age at the start of his senior

year. He had repeated his fourth and seventh grades, and was

classified by his school district, Dallas Independent School

District (“Dallas ISD”), as learning disabled. Like Buchanan,

Bomar began playing football for his high school, Justin F.

Kimball High School. Bomar was average in size compared

to the other members of his football team and was a starting

linebacker during his junior year of high school.

Bomar's mother and high school principal applied for a waiver

of the over–19 rule for Bomar, which the UIL refused. In

response, Bomar filed this action against the UIL, its director,

Dallas ISD, and Dr. Marvin Edwards, the Superintendent of

Dallas ISD.

CROSS–CLAIMS OF THE SCHOOL DISTRICTS

Both school districts filed cross-claims against the UIL,

stating that the UIL's mandatory forfeiture rule caused them

to violate the rights of the Students. Section 700(a)(2)(C)

(ii) of the UIL Constitution and Contest Rules (the UIL's

“mandatory forfeiture rule”) provides that if a school allows

a student who is finally determined ineligible to participate

in a UIL contest under a court order, the school must forfeit

all contests in which the student participated. In the past, the

UIL has enforced the mandatory forfeiture rule to require

that a school forfeit all of its contests in which the litigating

student participated even though the student's participation

was pursuant to a lawful court-ordered injunction. 3

In October 1991, the trial court issued temporary orders

enjoining the enforcement of the over–19 rule against the

Students and the mandatory forfeiture rule against Austin ISD

and Dallas ISD. These two causes were then consolidated

for purposes of trial and appeal. After a trial on the merits,

the district court rendered a final judgment in favor of the

Students and the school districts, enjoining the enforcement

of the two rules.

From this judgment, the UIL appeals bringing forth four

points of error.

IMPACT OF THE REHABILITATION

ACT ON THE OVER–19 RULE

[1] [2] In order to obtain injunctive relief, an applicant

must establish the existence of a wrongful act, imminent

harm, and irreparable injury, and the absence of an adequate

remedy at law. Hues v. Warren Petroleum Co., 814

S.W.2d 526, 529 (Tex.App.—Houston [14th Dist.] 1991, writ

denied); Priest v. Texas Animal Health Comm'n, 780 S.W.2d

874, 875 (Tex.App.—Dallas 1989, no writ). The decision

to grant or deny a permanent injunction lies within the trial

court's sound discretion, and appellate review is restricted to

whether the action involved a clear abuse of discretion. Hues,

814 S.W.2d at 529; Priest, 780 S.W.2d at 875.

[3] [4] The UIL argues in its first two points of error that

the trial court erred in granting the permanent injunctions

against the over–19 rule and in awarding attorneys' fees. 4 In
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

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its first point of error, the UIL alleges that the rule does not

discriminate solely on the basis of the Students' handicaps;

the UIL maintains that the Students are ineligible due to their

ages which are determined by their birth dates. The rule and

its purposes, it contends, apply equally to both handicapped

and non-handicapped students.

*302 We agree that the UIL's enforcement of its over–19

rule as to these Students was not on the basis of a current

handicap or because of a history of being handicapped.

However, the record clearly demonstrates that both Students

repeated grades in school because of learning disabilities.

Had they not experienced difficulties in the classroom and

progressed through school at a pace slower than most

students, they would have turned nineteen after September 1

of their senior year and thus would have been age-eligible to

participate in interscholastic athletics.

The United States District Court, in Doe v. Marshall, 459

F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on

other grounds, 622 F.2d 118 (5th Cir.1980), cert. denied,

451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981),

5

invoked a balancing test of the harms inflicted upon the

various parties in its determination of whether to grant a

preliminary injunction of a UIL rule. Id. at 1192. In the

present cases, evidence demonstrated that the Students would

benefit emotionally by participating in competitive athletics.

The evidence did not show that these Students had been

involved in redshirting or that they presented a danger to other

student athletes; the concerns that made the rule necessary

are not present in these causes and the UIL is not harmed.

Thus, the equities before the trial court weighed in favor of

enjoining the enforcement of the rule.

The United States Supreme Court has stated that “an

otherwise qualified handicapped individual must be provided

with meaningful access to the benefit that the grantee offers....

[T]o assure meaningful access, reasonable accommodations

in the grantee's program or benefit may have to be made.”

Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720,

83 L.Ed.2d 661 (1985) (discussing Southeastern Community

College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d

980 (1979)) (emphasis added). Furthermore, the United States

Court of Appeals in Brennan v. Stewart, 834 F.2d 1248, 1262

(5th Cir.1988), concluded that “our precedent requires that the

‘reasonable accommodation’ question be decided as an issue

of fact....”

Although the UIL provides a waiver procedure for some

eligibility rules, e.g., the four-year eligibility rule, it fails

to furnish such a process for the over–19 rule. Since the

UIL already utilizes a waiver procedure for some rules, the

evidence indicates that instituting such a procedure for the

over–19 rule might be a reasonable accommodation in the

UIL program to ensure that handicapped persons achieve

meaningful access to the competitions regulated by the UIL.

We find the U.S. District Court's reasoning on this issue in

Booth v. University Interscholastic League, No. A–90–CA–

764 (W.D.Tex. Oct. 4, 1990) (case dismissed as moot Jan. 14,

1991), particularly persuasive:

[T]o uphold the [UIL's] blanket policy

against consideration of the Plaintiff's

circumstances in this case would be

to undermine the objectives of the

Rehabilitation Act without advancing

the policies behind the 19 year-old

eligibility rule. There is no evidence

before the Court to suggest that the

[UIL] bases its decision to bar the

Plaintiff from playing high school

football on any particular harm that

might result if he is allowed to

play, or on anything other than a

policy of strictly enforcing its rules.

But the Rehabilitation Act requires

that federally assisted programs do

more for those who fall within its

ambit. For these reasons, requiring the

[UIL] to give special consideration

to the Plaintiff based on his history

of being handicapped is a reasonable

accommodation.

Booth, at 11–12. The Students in these causes are entitled

to special consideration by the UIL to guarantee that

the objectives of Section 504 are effectuated. A waiver

mechanism for the over–19 rule would permit the UIL to

consider the facts of particular situations in order to make

individualized determinations as to the enforcement of the

rule. Such determinations are reasonable accommodations

which would advance both the purposes of Section 504

and the policies behind the over–19 rule. Under *303

these factual circumstances, the “no-exception” policy to

the over–19 rule must yield to Section 504's reasonable

accommodation requirement established by the United States

Supreme Court in Alexander.
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

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Accordingly, we hold that the trial court did not abuse its

discretion in enjoining the enforcement of the over–19 rule.

Points of error one and two are overruled.

EXHAUSTION OF REMEDIES

[5] In its third point of error, the UIL alleges that, because

the Students did not exhaust the administrative remedies

under the Individuals with Disabilities Education Act (the

“IDEA”), 20 U.S.C.A. §§ 1400–1484 (West Supp.1992),

6

the district court lacked jurisdiction over the causes.

Specifically, it complains that the Students did not comply

with section 1415(f) of the IDEA which states, “before the

filing of a civil action under [the Rehabilitation Act and]

such laws seeking relief that is also available under this

subchapter, the procedures under subsections (b)(2) and (c) of

this section shall be exhausted to the same extent as would be

required had the action been brought under this subchapter.”

20 U.S.C.A. § 1415(f). The applicable remedy under this

statute consists of a due process hearing and subsequent

review for any complaint raised by a handicapped child or

its parents regarding the child's education. 20 U.S.C.A. §

1415(b)(2), (c). The UIL maintains that the Students did not

comply with this prerequisite for civil suits because they did

not request a due process hearing to contest the exclusion of

interscholastic athletics from their IEPs. 7

The Students respond that the IDEA and Section 504

are different statutes with different purposes. They urge

that while the IDEA strives to assure that handicapped

children receive appropriate free public education, Section

504 prohibits discrimination against handicapped persons.

See Smith v. Robinson, 468 U.S. 992, 1016, 104 S.Ct. 3457,

3470, 82 L.Ed.2d 746 (1984). The Students argue that their

complaint is against the UIL for discrimination on the basis

of their handicaps, not against the school districts for denial

of a free appropriate public education; hence, relief was only

available under Section 504. They argue that, because the UIL

is not vested with the duty to provide a free appropriate public

education under the IDEA, the Students could not assert their

action against the UIL under the IDEA. The record reflects

that the school districts applied to the UIL for waivers to the

rule which the UIL denied. Therefore, the Students and their

school districts acted in accordance with the UIL rules, and

the cause of action was governed by Section 504 and not the

IDEA. We agree with the Students regarding this exhaustion

of remedies point, and thus we overrule the UIL's third point

of error.

MANDATORY FORFEITURE RULE

In its fourth and final point of error, the UIL contends that

the trial court erred in enjoining the mandatory forfeiture rule

and in awarding attorneys' fees. It insists that “the rule is

reasonably related to a legitimate state purpose and is not

arbitrary, capricious, or fundamentally unfair.”

Issue of Mootness

The Students reurge this Court to dismiss the appeal as

moot. 8 They argue that since the 1991 football season has

ended and they have graduated, an active controversy *304

no longer exists. The school districts respond by urging that

such action on our part would vacate the trial court's judgment

and would permit the UIL to invoke the sanctions contained

in the mandatory forfeiture rule.

[6] [7] [8] The mootness doctrine is well established.

Appellate courts only determine cases in which an actual

controversy exists. Camarena v. Texas Employment Comm'n,

754 S.W.2d 149, 151 (Tex.1988); Texas Educ. Agency, 797

S.W.2d at 369. The issue of whether an injunction is valid

becomes moot when the injunction does not continue to

have effect. See Parr v. Stockwell, 322 S.W.2d 615, 616

(Tex.1959); Texas Educ. Agency, 797 S.W.2d at 369; Spring

Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.App.—

Houston [1st Dist.] 1988, no writ). An appellate court must

set aside the judgment and dismiss the cause when an appeal

is moot. Texas Educ. Agency, 797 S.W.2d at 369;Texas Parks

& Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d

594, 596 (Tex.App.—Austin 1981, writ ref'd n.r.e.).

[9] Two exceptions to the mootness doctrine currently

exist: (1) the “capable of repetition exception” and (2) the

“collateral consequences exception.” General Land Office v.

OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990). However,

neither exception applies to these causes. See Spring Branch

I.S.D., 764 S.W.2d at 18–19.

The UIL urges this Court to avoid dismissal by adopting

a new exception to the mootness doctrine, the “public

interest exception.” According to the UIL, thirty-six states

have recognized the “public interest exception,” which

allows appellate review of a question of considerable public

importance if that question is capable of repetition between

either the same parties or other members of the public but for
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

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some reason evades appellate review. The UIL points out that

other states have applied this doctrine in high school athletic

controversies such as this one.

In Texas Education Agency, 797 S.W.2d at 369, under

similar facts as these, we determined that the appeal was

moot because the football eligibility of the litigating students

had expired. See also Spring Branch I.S.D., 764 S.W.2d

at 18. However, these cases are distinguishable from the

instant cause. In neither of those cases was the question of

attorneys' fees involved. 9 Furthermore, in the instant cause,

the school districts, which are parties to this appeal, have a

direct interest in the continued viability of the district court

judgment to prevent the UIL from enforcing the mandatory

forfeiture rule. See Mahavongsanan v. Hall, 529 F.2d 448

(5th Cir.1976) (Student brought action to compel university to

grant a degree. After injunctive relief was granted, university

awarded degree and appealed the judgment. The Fifth Circuit

Court of Appeals held that the case was not moot because

the legal interests of the parties continued to be adverse.).

Therefore, because of these distinguishing facts, we have

decided to review the case pursuant to a “public interest

exception” to the mootness doctrine, and adhere to our earlier

ruling overruling the Students' motion to dismiss the appeal

as moot.

Because we elect to review these causes under the “public

interest exception” to the mootness doctrine, and because we

affirm the lower court's final judgment that the over–19 rule

violates Section 504 of the Rehabilitation Act, we affirm the

district court's ruling that the Students were eligible to play

football during the 1991 season. Therefore, since there is no

basis for the UIL to invoke the mandatory forfeiture rule, we

have no need to address its fourth point of error.

CONCLUSION

Finding no error, the judgment of the district court is affirmed.

Parallel Citations

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

Footnotes

1 As a preliminary matter, we address the Students' motion to dismiss this appeal as moot. For reasons discussed later in this opinion,

we decline to dismiss the appeal as moot.

2 The ARD Committee is composed of, at a minimum, a school administrator, a special education teacher, a regular education teacher,

and the child's parent. Other persons may be included in the ARD Committee if determined to be necessary. One of the functions of the

ARD Committee is to develop an individualized educational plan (IEP) for the student. Buchanan's IEP did not include interscholastic

football as part of his program. Buchanan never petitioned for an administrative appeal of the decision of the ARD Committee to the

Texas Education Agency. Buchanan's mother testified that because the ARD Committee recommended a waiver from the over–19

rule, she agreed with its decision, and thus did not feel it was necessary to appeal the decision.

3 See Texas Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex.App.—Austin 1990, no writ). (This Court held that the

appeal in that case was moot, and therefore the underlying order was vacated. Accordingly, the UIL's determination of ineligibility

became final and triggered the enforcement of the mandatory forfeiture rule).

4 As a preliminary matter, the UIL contends in its second point of error that the Students do not meet the definition of “qualified

handicapped persons” under section 504 of the Rehabilitation Act. After reviewing the Act and its attendant regulations, we reject

this argument and conclude that both students meet the definition of “qualified handicapped persons.”

5 Although not controlling, this Court looks to federal precedent for its persuasive value.

6 Among the stated purposes of IDEA are

to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2)(B) of this

title, a free appropriate public education which emphasizes special education and related services designed to meet their unique

needs [and] to assure that the rights of children with disabilities and their parents or guardians are protected....

20 U.S.C.A. § 1400(c).

7 The UIL admitted in oral argument that had the school districts declared the Students eligible under the IDEA, the UIL would not have

abided by such determination. We also note that the school districts requested waivers from the UIL of the over–19 rule, and therefore

the Students had no need to invoke an administrative procedure designed to request affirmative action from the school authorities.

8 We overruled the Students' original motion to dismiss as moot.

9 If we moot this appeal and the judgment of the district court is vacated, the judgment for attorneys' fees is vacated as well.
University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993)

81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

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End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

210 S.W.3d 770

Court of Appeals of Texas,

Corpus Christi–Edinburg.

VALLEY BAPTIST MEDICAL CENTER, Appellant,

v.

Margaret STRADLEY, Appellee.

No. 13–06–191–CV. | Nov. 30, 2006.

Synopsis

Background: Patient whose doctor recommended exercise

routine and referred her to medical center's fitness center

brought premises liability and negligence claims against

medical center after she fell from treadmill at fitness center

and sustained injuries. The 107th District Court, Cameron

County, Benjamin Euresti, Jr., J., denied medical center's

motion to dismiss. Medical center appealed.

[Holding:] The Court of Appeals, Valdez, C.J., held that

patient's claims were not health care liability claims that

required her to submit an expert report in support of her

claims.

Affirmed.

Attorneys and Law Firms

*771 Scott T. Clark, Adams & Graham, Harlingen, for

appellant.

Don Stecker, Putman & Putman, Inc., San Antonio, for

appellee.

Before Chief Justice VALDEZ and Justices RODRIGUEZ

and GARZA.

OPINION

Opinion by Chief Justice VALDEZ.

Valley Baptist Medical Center (“VBMC”), appellant, brings

an interlocutory appeal from the trial court's denial of its

motion to dismiss the underlying cause of action. Tex. Civ.

Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2006).

Margaret Stradley, appellee, has filed a motion asking this

Court to dismiss the appeal for lack of jurisdiction. By four

issues, VBMC asks us to determine whether: (1) Stradley's

allegation that VBMC was negligent in its safety practices

alleges a departure from “accepted standards of safety”

such that she is making a health care liability claim and

is required to provide an expert report; (2) in light of the

current definition of “health care liability claim” and the

Texas Supreme Court's Diversicare opinion, claims based

on the safety practices of health care providers must *772

involve conduct that is “directly related to health care” or “an

inseparable part of the rendition of health care services” in

order to be subject to the medical liability chapter of the Texas

Civil Practice and Remedies Code; (3) dismissal for lack of an

expert report is an affirmative defense; and (4) VBMC waived

its right to seek dismissal for lack of an expert report. We

affirm the trial court's denial of VBMC's motion to dismiss.

I. BACKGROUND

A. Factual Background

The underlying cause of action stems from a fall Stradley had

on a treadmill at VBMC's Wellness Center, a fitness center

located on the campus of Valley Baptist Medical Center. At

the time of the incident, Stradley was a 78 year-old retiree

who was having weight, hypertension, and mobility issues.

Her primary care physician “prescribed” exercise and referred

Stradley to the Wellness Center. During one of her visits to

the center, Stradley attempted to use a treadmill. It is alleged

that the treadmill unexpectedly accelerated and when Stradley

pulled the emergency stop cord, the treadmill did not stop.

Stradley was allegedly thrown to the floor by the treadmill

and injured her arm and shoulder.

B. Procedural Background

Stradley brought a premises liability claim and negligence

causes of action against VBMC. 1 VBMC answered with a

general denial of the allegations. It later filed a motion to

dismiss. VBMC's motion to dismiss claimed Stradley's cause

of action was really a health care liability claim, which is

governed by the Texas Civil Practice and Remedies Code

requirement that an expert medical report be filed within

120 days of when the claim was filed. Tex. Civ. Prac. &

Rem.Code Ann. § 74.351(a)(Vernon Supp.2006). The trial

court denied VBMC's motion to dismiss, stating in its order

that “the underlying nature of this case is not a ‘health

care liability claim’ [sic] as defined in Section 74.001 et.

seq. Texas Civil Practice and Remedies Code and therefore,
Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Defendant's Motion to Dismiss should be denied.” VBMC

brings this appeal under the interlocutory appeal statute.

Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9)(Vernon

Supp.2006) (providing that a person may appeal from an

interlocutory order of a district court, county court at law, or

county court that denies all or part of the relief sought by a

motion under Section 74.351(b)). 2

II. DISCUSSION

A. Stradley's Motion to Dismiss the Appeal

[1] The characterization of a claim as a health care

liability claim is a threshold question in section 51.014

appeals. See, e.g., Valley Baptist Med. Ctr. v. Azua,

No. 13–05–00488–CV, 2006 WL 2076756, at *2, 2006

Tex.App. LEXIS 6659, *5, 198 S.W.3d 810, 814 (Tex.App.-

Corpus Christi July 27, 2004, no pet.) (not designated

for publication) (“Although section 51.014(a)(9) *773

specifically authorizes an interlocutory appeal of the denial

of relief sought under section 74.351(b), section 74.351

applies only to ‘health care liability claims.’ Therefore, we

must first determine if appellant's claim constitutes a health

care liability claim.”); see also Oak Park, Inc. v. Harrison,

No. 11–05–00298–CV, 2006 Tex.App. LEXIS 8096, *7

(Tex.App.-Eastland July 27, 2004, no pet.) (not designated

for publication). Therefore, Stradley's motion to dismiss for

lack of jurisdiction is denied.

B. Standard of Review

[2] Generally, we review a trial court's order on a motion

to dismiss under an abuse of discretion standard. Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 877 (Tex.2001). However, whether a claim is a health

care liability claim pursuant to section 74.351 is a question of

law and is reviewed de novo. Buck v. Blum, 130 S.W.3d 285,

290 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Ponce v.

El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.-

El Paso 2001, pet. denied); Gomez v. Matey, 55 S.W.3d

732, 735 & n. 2 (Tex.App.-Corpus Christi 2001, no pet.).

The dismissal order states that “the underlying nature of this

case is not a ‘health care liability claim’ [sic] as defined in

Section 74.001 et. seq. Texas Civil Practice and Remedies

Code and therefore, Defendant's Motion to Dismiss should be

denied.” We shall review the statutory interpretation question

presented by VBMC's motion to dismiss de novo.

C. The Categorization of Safety Claims

The first two issues are so interrelated and dispositive to

this appeal that they will be dealt with together. Through

its second issue, VBMC contends that the trial court erred

in denying its motion to dismiss because all claims based

on safety practices (“safety claims”) against a health care

provider should be categorized as health care liability claims

under chapter 74's definition of a health care liability

claim. VBMC contends every safety claim against a health

care provider or physician would be a health care liability

claim if the safety claim asserts departures from “accepted

standards of safety.” In essence, VBMC urges us to read

the definition of a health care liability claims as “a cause

of action against a health care provider or physician for

treatment, lack of treatment, or other claimed departure

from accepted standards of medical care, or health care,

or safety or professional or administrative services directly

related to health care....” Tex. Civ. Prac. & Rem.Code Ann.

§ 74.001(13)(Vernon 2005) (emphasis added). It primarily

relies upon the holding in Diversicare to support its reading

of chapter 74. See Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 855 (Tex.2005).

1. Safety Claims Under the MLIIA: The Diversicare Case

The Texas Supreme Court recently dealt with how safety

violation allegations could be categorized as health care

liability claims under the Medical Liability and Insurance

Improvement Act (“MLIIA”), chapter 74's precursor. Id. at

842. In Diversicare, Maria Rubio, through her daughter as

next friend, sued her nursing home for injuries that occurred

from two alleged falls and for alleged sexual assault against

her by another nursing home patient. Id. at 845. The sexual

assaults allegedly took place nearly five and a half years

before suit was filed. Id. Diversicare moved for summary

judgment on all of Rubio's claims arising from the alleged

sexual assaults, arguing that the MLIIA's two-year statute of

limitations barred recovery on the claims. Id. Rubio argued

that because her claims were not health *774 care liability

claims under the MLIIA, they were governed by the general

statute of limitations for personal injury claims, which tolls

the statute of limitations for mental incapacity. Tex. Civ. Prac.

& Rem.Code Ann. §§ 16.001(b), 16.003 (Vernon).

A majority of the Supreme Court held that Rubio's causes

of action were health care liability claims because the

legislature meant to include all safety claims against health

care providers or physicians within the scope of the MLIIA.
Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Diversicare Gen. Partner, Inc., 185 S.W.3d at 853. The

relevant statute at the time read:

a cause of action against a health care provider or

physician for treatment, lack of treatment, or other claimed

departure from accepted standards of medical care or health

care or safety which proximately results in injury to or

death of the patient, whether the patient's claim or cause of

action sounds in tort or contract.

Former Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4) (emphasis

added). 3 The Supreme Court noted that, “[t]he Legislature's

inclusion within the scope of the [MLIIA] of claims based

on breaches of accepted standards of ‘safety’ expands the

scope of the statute beyond what it would be if it only covered

medical and health care.” Diversicare Gen. Partner, Inc.,

185 S.W.3d at 855. The majority reasoned that a nursing

home's provision of professional supervision, monitoring, and

protection of the patient population necessarily implicated

the standards of safety under the MLIIA. Id. at 850–51.

However, the majority's opinion conceded that, “[t]here may

be circumstances that give rise to premise liability claims in a

healthcare setting that may not be properly classified as health

care liability claims....” Id. at 854.

2. Safety Claims Under Chapter 74

The instant case is governed by chapter 74 of the Civil

Practice and Remedies Code, which contains different

language than that used in the Diversicare case. A health care

liability claim under the current statute is defined as:

[A] cause of action against a health care provider or

physician for treatment, lack of treatment, or other claimed

departure from accepted standards of medical care, or

health care, or safety or professional or administrative

services directly related to health care, which proximately

results in injury to or death of a claimant, whether the

claimant's claim or cause of action sounds in tort or

contract.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(13) (Vernon

2005) (emphasis added). According to the Code Construction

Act, “[w]ords and phrases shall be read in context and

construed according to the rules of grammar and common

usage.” Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005).

The instant case is legally distinguishable from Diversicare

because the statute in question has been revised. The MLIIA

broadly defined health care liability claims because it not

only included claims for treatment or lack of treatment, but

it also included claims for “other claimed departure from

accepted standards of medical care or health care or safety ....”

former Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4). For, “the

Legislature's inclusion within the scope of the MLIIA of

claims based on breaches of accepted standards of ‘safety’

expands the scope of the statute beyond what it would be if

it only covered medical and health care.” Diversicare Gen.

Partner, *775 Inc., 185 S.W.3d at 854. We note that there

was no comma separating the phrases medical care, health

care, or safety and that a cause of action under the MLIIA

must be one “which proximately results in injury to or death

of the patient.” Id.

The current statute covers three types of claims: treatment,

care, and peripheral claims. Tex. Civ. Prac. & Rem.Code

Ann. § 74.001(13). Claims involving treatment, lack of

treatment, medical care, or health care against a health

care provider or physician that proximately cause injury

or death to a claimant are automatically categorized as

health care liability claims. Id. Claims involving “safety or

professional or administrative services” constitute the final

type of possible health care liability claims contemplated by

the statute. Id. These peripheral claims are not separated by

commas, they are only separated by the disjunctive term “or,”

and therefore fall into the same class of claims. The phrase

appearing right after the peripheral claims is “directly related

to health care.” Both the peripheral claims and the latter

phrase are confined with each other by commas. Because we

are mindful of the rules of grammar when reading a statute, we

find the peripheral claims are tempered by the phrase “directly

related to health care” because it appears immediately after

that class of claims.

[3] Based upon a grammatically correct reading of the

statute, we hold that a safety claim can be categorized as a

health care liability claim only when it is against a health

care provider or physician for a claimed departure from

accepted standards of safety directly related to health care.

But see Diversicare Gen. Partner, Inc., 185 S.W.3d at 861

n. 4 (Jefferson, C.J., concurring in part, dissenting in part,

and concurring in judgment) (in dicta the Chief Justice noted

that, “[i]t is clear under the revised statute that claims for

‘professional or administrative services' must be ‘directly

related to health care’; however, there is no indication that

claims involving ‘safety’ must also relate to health care.”).

Holding otherwise and finding all safety claims against health

care providers or physicians to be health care liability claims

regardless of whether they directly relate to health care, would
Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

be an arbitrary and legislatively unauthorized expansion of

the health care liability statute.

3. Stradley's Claims

[4] [5] [6] Our final step in resolving VBMC's first

two issues is to determine whether the underlying nature of

Stradley's claims are safety claims that directly relate to health

care. Artful pleading cannot avoid the requirements of section

74.351 when the essence of the suit is a health care liability

claim. Diversicare Gen. Partner, Inc., 185 S.W.3d at 849 (“It

is well settled that a health care liability claim cannot be recast

as another cause of action to avoid the requirements of the

MLIIA”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543

(Tex.2004); MacGregor Med. Ass'n v. Campbell, 985 S.W.2d

38, 40 (Tex.1998). To determine whether a cause of action

falls under chapter 74's definition of a health care liability

claim, we examine the claim's underlying nature. Id. (citing

Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994)). One

consideration in that determination may be whether proving

the claim would require the specialized knowledge of a

medical expert. Garland Cmty. Hosp., 156 S.W.3d at 544

(citing Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d

417, 419 (Tex.App.-Corpus Christi 1999, no pet.)).

Stradley's premises liability claim and negligence causes of

action stem from an accident she had while using a treadmill.

They are personal injury claims of the most pedestrian

nature. A jury could understand *776 the evidentiary

issues and negligence standards posed by Stradley's claims

without the aid of a medical expert's report. See Rogers,

13 S.W.3d at 419. Much has been made about Stradley's

physician recommending an exercise routine and how such

a recommendation might recast Stradley's claims into health

care liability claims. The analogy is absurd. While exercise

has a salutary effect on one's health, in most situations

a doctor's recommendation of regular exercise is no more

related to the rendition of health care than the automobile

ride one makes for a doctor's appointment. See, e.g., Shults

v. Baptist St. Anthony's Hosp. Corp., 166 S.W.3d 502,

505 (Tex.App.-Amarillo 2005, pet. denied) (holding that

the presence of a sharp paint chip in the shower of the

plaintiff's hospital room could not be considered in any way

an inseparable part of the medical services rendered to the

plaintiff.).

Based upon the underlying nature of Stradley's claims, we

hold that they do not constitute health care liability claims

under the statute. We overrule VBMC's first and second

issues.

III. CONCLUSION

We affirm the trial court's order denying VBMC's motion to

dismiss and remand the cause to the trial court for further

proceedings. Because of our disposition of the VBMC's first

and second issues, we need not address VBMC's third or

fourth issues. See Tex.R.App. P. 47.1.

Footnotes

1 Stradley alleged that VBMC failed to (1) to adequately hire, train, and instruct its employees in the safe operation of exercise machines,

(2) adequately inspect, repair, or maintain the machines, (3) supervise her use of the treadmill, and (4) warn her of the risks posed

by the treadmill.

2 Section 74.351(b) of the Texas Civil Practice & Remedies Code reads, “If, as to a defendant physician or health care provider, an

expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or

health care provider, shall subject to Subsection (c), enter an order that....”

3 The legislature repealed the MLIIA, amended parts of the previous article 4590i, and recodified it in 2003 as chapter 74 of the Texas

Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
2.10. Classification of Inquiries and Complaints, TX ST RULES DISC P 2.10

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys

Title 2, Subtitle G--Appendix

a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part II. The District Grievance Committees

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.10

2.10. Classification of Inquiries and Complaints

Currentness

The Chief Disciplinary Counsel shall within thirty days examine each Grievance received to determine whether it constitutes

an Inquiry or a Complaint. If the Grievance is determined to constitute an Inquiry, the Chief Disciplinary Counsel shall notify

the Complaint and Respondent of the dismissal. The Complainant may, within thirty days from notification of the dismissal,

appeal the determination to the Board of Disciplinary Appeals. If the Board of Disciplinary Appeals affirms the classification

as an Inquiry, the Complainant will be so notified and may within twenty days amend the Grievance one time only by providing

new or additional evidence. The Complainant may appeal a decision by the Chief Disciplinary Counsel to dismiss the amended

Complaint as an Inquiry to the Board of Disciplinary Appeals. No further amendments or appeals will be accepted. In all

instances where a Grievance is dismissed as an Inquiry other than where the attorney is deceased or is not licensed to practice

law in the State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution

procedure. If the Grievance is determined to constitute a Complaint, the Respondent shall be provided a copy of the Complaint

with notice to respond, in writing, to the allegations of the Complaint. The notice shall advise the Respondent that the Chief

Disciplinary Counsel may provide appropriate information, including the Respondent's response, to law enforcement agencies

as permitted by Rule 6.08. The Respondent shall deliver the response to both the Office of the Chief Disciplinary Counsel and

the Complainant within thirty days after receipt of the notice.

Credits

Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994.

Renumbered from Rule 2.09 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme

Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

Notes of Decisions (6)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.10, TX ST RULES DISC P 2.10

Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
2.16. Confidentiality, TX ST RULES DISC P 2.16

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys

Title 2, Subtitle G--Appendix

a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part II. The District Grievance Committees

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16

2.16. Confidentiality

Currentness

A. All members and staff of the Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals. Committees, and

Commission shall maintain as confidential all Disciplinary Proceedings and associated records, except that:

1. the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the Office of

Chief Disciplinary Counsel or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary

Proceeding is based on conviction of a serious crime, or disclosure is ordered by a court of competent jurisdiction;

2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private

reprimand.

a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and

b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall,

upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came

to the attention of the Evidentiary Panel during the Disciplinary Proceeding;

3. the record in any appeal to the Board of Disciplinary Appeals from an Evidentiary Panel's final judgment, other than an

appeal from a judgment of private reprimand, is a public record; and

4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or

introduced in the course of a Disciplinary Proceeding.

B. The deliberations and voting of an Evidentiary Panel are strictly confidential and not subject to discovery. No person is

competent to testify as to such deliberations and voting.

C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission

to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State
2.16. Confidentiality, TX ST RULES DISC P 2.16

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and

the Commission on Judicial Conduct.

Credits

Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders

of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by order of Dec. 7, 2009, eff. Jan. 1, 2010.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme

Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

Notes of Decisions (1)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16, TX ST RULES DISC P 2.16

Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
15.09. Immunity, TX ST RULES DISC P 15.09

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys

Title 2, Subtitle G--Appendix

a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part XV. Miscellaneous Provisions

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09

15.09. Immunity

Currentness

No lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation

in the attorney disciplinary and disability system. All members of the Commission, the Chief Disciplinary Counsel (including

Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief

Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the

District Disability Committees, all officers and Directors of the State Bar, and the staff members of the aforementioned entities

are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends

to all actions at law or in equity.

Credits

Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, as corrected by

order of Sept. 12, 1994, eff. Oct. 1, 1994. Renumbered from Rule 15.11 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme

Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09, TX ST RULES DISC P 15.09

Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys

Title 2, Subtitle G--Appendix

A. State Bar Rules

Article X. Discipline and Suspension of Members

Section 9. Texas Disciplinary Rules of Professional Conduct (Refs & Annos)

Preamble: A Lawyer's Responsibilities

V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Preamble

Preamble: A Lawyer's Responsibilities

Currentness

1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for

the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this

role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation

of lawyers is to maintain the highest standards of ethical conduct.

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed

understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer

zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous

to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks

to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as

evaluator by examining a client's affairs and reporting about them to the client or to others.

3. In all professional functions, a lawyer should zealously pursue clients' interests within the bounds of the law. In doing so,

a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the

representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure

is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law.

4. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's

business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or

intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other

lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also

a lawyer's duty to uphold legal process.

5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service

rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond

its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be

mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor,

cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A

lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

6. A lawyer should render public interest legal service. The basic responsibility for providing legal services for those unable

to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional

workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The

provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the

profession generally. A lawyer may discharge this basic responsibility by providing public interest legal services without fee, or

at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable

organization representation, the administration of justice, and by financial support for organizations that provide legal services

to persons of limited means.

7. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from

apparent conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interests. The

Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum

standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these

Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles

upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral

judgment. In applying these rules, lawyers may find interpretive guidance in the principles developed in the Comments.

8. The legal profession has a responsibility to assure that its regulation is undertaken in the public interest rather than in

furtherance of parochial or self-interested concerns of the bar, and to insist that every lawyer both comply with its minimum

disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the

independence of the profession and the public interest which it serves.

9. Each lawyer's own conscience is the touchstone against which to test the extent to which his actions may rise above the

disciplinary standards prescribed by these rules. The desire for the respect and confidence of the members of the profession

and of the society which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct. The

possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles,

the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

Credits

Adopted by order of Oct. 17, 1989, eff. Jan. 1, 1990.

<The original Rules Governing the State Bar of Texas, consisting of former

articles 1 to 13, were approved by the Supreme Court February 22, 1940.>

<Articles 1 through 9 of the State Bar Rules were adopted and former articles 1 through 11 of the Rules

Governing the State Bar of Texas were repealed by Order of the Texas Supreme Court dated March 14, 1983.>

<Article 10 of the State Bar Rules was adopted and article 12, §§ 1 to 7 and 9 to 36, as well as

article 13, of the Rules Governing the State Bar were repealed by Order of the Texas Supreme

Court dated February 29, 1984, effective March 1, 1984. That same order also restated and

continued article 12, § 8, of the Rules Governing the State Bar (the Texas Code of Professional

Responsibility) and promulgated such art. 12, § 8 as article 10, § 9, of the State Bar Rules.>

<Article 11 of the State Bar Rules was adopted by order of the Texas Supreme Court dated May 9, 1984.>

<Article 12 of the State Bar Rules, effective June 1, 1986, was adopted

by order of the Texas Supreme Court dated December 19, 1985.>

<Article 13 of the State Bar Rules, effective May 15, 1988, was

adopted by order of the Texas Supreme Court dated March 14, 1988.>
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

V. T. C. A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9 Preamble, TX ST RPC Preamble

Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.