### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00439
- CV

Appellant, Marsha McLane, in her Official Capacity as Director of the Texas Civil Commitment Office // Cross
- Appellants, Eric Thomas, John Williams, and Albert Mailhot

v. Appellee s, Eric Thomas, John Williams, and Albert Mailhot // Cross
- Appellee,

Marsha McLane, in her Official Capacity as Dire ctor of the

Texas Civil Commitment Office

FROM THE 419TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 16
- 000239 , THE HONORABLE ORLI NDA NARAN JO, JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

I concur in th is C ourt ’ s judgment affirming the dismiss al of appellees ’ claims against Marsha Mc Lane , in her official capa city as t he Director of the Texas Civ il Commitment
Office , for lack of su b

ject matter ju r isdiction b ecause appel lees ’ factual allegations in their eight h amended petition do not invoke th e trial co urt ’ s jurisdiction over those claims

.

To invoke the tri al court ’ s jurisdic tion , it was appellees ’ burden to alle ge fa cts that
affirm a tively demonstrate that sovereign immunity from suit has been waived or does not apply

. See Hall v. McRaven , 508 S.W.3d 232, 238 (Tex. 2017) (discussing sove reign immunity and

“ ul tra vires ” except ion); Klu mb v. Houston Mun. E m p s
. Pensi on Sys ., 458 S.W.3d 1, 13 (Tex.
2015 ) (expl aining that sover eign immunity does not bar suit to vindicate constitutional rights but
that immunity from suit is not waived if constitutional claims are facially inv alid) ; City of El2

Pas o v. Heinrich , 284 S.W.3d 366, 372 (T ex. 200 9 ) ( explaining that ultr a vires action requires plaintiff to “ allege , and ultimately pro ve, that the official acted wit hout lega l author ity or failed to perform a p urel y minister ial act ” ) ; Texas Pa rks & Wildlife v. Miranda , 133 S.W.3d 21 7, 226 (Tex. 2004) ( describing plaintiff ’ s burden to allege facts to demonstrate that jurisdiction exi sts)

.

I disagree, ho wever, with the Court ’ s analysis of appellees ’ claims brought under
secti on 2001.0 38 of the A dministrative P rocedure A ct

. Be cause t he Legislature gr a n ted the
Tex as Civil Commitme nt Office the autho rity to adopt rules , s ee Tex. He alth & Saf e ty Code § 841 .141 (stat ing that Texas Civil Commitment O ffice by rule shal l admi ni ster chapter ) , I would
hold that t he Tex as Civil Commitment Office

— not McLane

— is th e proper party for appellees ’ purported rule challenges

. See Tex. Gov ’ t Code § 2001.038 ( provi ding limited waiver of

so ver eign immuni ty to challenge validity or applicability of rule and requiring “ state agency ” to be made party to action); see also id. § 2001.003(7) (definin g “ state agency ” to mean “ state
officer , board, commission, or department with statewide jurisdi ction that makes ru les or
determines conte sted cases ” ) ; Texas De p ’ t of Transp

. v. Sefzik , 355 S.W.3d 618 , 622

– 23 ( Tex. 2011) (dis tingui shin g between state agency and official in context of sover eign immunity and
ultra vires claims ) ; Texas Dep ’ t of P ub. Safety v. Salaz ar , 304 S .W.3d 896, 904 (Tex. App.

— Austin 2009, no pet.) (expla ining that s ta te agency, as compared with state official, must b e made party to acti on chall enging va lidity of agency rule)

.

The C o urt ’ s opinion assumes without dec iding that McLane is a proper defendant
for appellees ’ claim s brought und er section 2001 .038 “ [b]ecause these claims fail as a matter of
law. ” As describ ed, I would decide the issue and not reach the analysis performed under the assumption. Even under this assumption, however, I cannot join the Court ’ s a na lysis. For example , t he Court addresses appellees ’ argument that rule 810.273 of Title 37 of the Tex as3

Admini strative Code constitut es “ the uncons t itutional deprivation of property ” by concluding that appellees ’ plea di n gs are “ conclusory allegations [that ] are insufficient to overcome

sove r eign immunity

. ” See 37 Tex. Admin. Code § 810

. 273 ( Texas Civil C omm itment Office, Cost of Housing, Treatmen t, and Tracking Ser vices ) ( requiring civilly commit ted person who is
not ind i gent to be res po nsible for cost of housing , treatment , and tracking services ) ; see also id. § 810.122 (5), (6) ( Texas C ivil Comm itment O f fic e, Definitions) ( stating that sexually viol ent predator is indi gent for purp os es of statutorily required cost recovery “ if the sex ually viol ent predator does not have any income ” and def ining “ income ” broadly )

. The essen ce of appellees ’ takings claim , how ever, is that McLane may not recover from them any amount of the costs of
h ou sing, treatment, and tracking ser vices provided to them , and I woul d addres s the substance of
this claim

. S ee Andrade v. NAACP of Austin , 345 S.W.3d 1, 11 (Tex. 2011) (conside rin g substance of constitutional claim in reviewing plea to jurisdiction and noting that i mmunity i s retained unless viab le claim ple ade d) ; see also U.S. C onst. amend. V (providing that “ private property [shall not] be taken for public use, without just co mpe nsation ” ); Te x. Const. art. I, § 17 ( providing that “ [n]o pe r son ’ s property shall be taken, damaged , or destroyed for or applied to public use without j ust compensation being made, unless b y the consent of such person ” ).

Address ing the substance of t his cl aim , I question whether fun ds collected from civilly committed indi viduals to recover the costs for their housin g , treatment , and tracking

se r v ices are being taken for a “ pu blic purp ose
. ” C ompare Tex . Health & Safety C ode § 841.146 (c) (requiring S ta t e to “ pay the reasonable costs of the person ’ s treatment and supervision ” ) , with id. § 841 .084(a) ( re quiring civilly comm itted person who is not in digent to be

res ponsible for cost of housing , treatment , and tracki ng service “ [n]otwiths tanding Section
841. 146(c) ” )

. But even if the State ’ s cost recovery is for a “ public p urpose, ” appellees ha ve4

failed to plead a viable tak ings claim because they hav e not alleged facts that would support the
conclusion that they d id not re ceive “ just compensation ”

— they have not al leged that they have paid or are r equired to pay amounts that exceed the actual cos ts of hous ing, treat ment, and tracking services that have been provided to them

. See 37 Tex. Admin. Code § 810

. 273 (prohibiting Texas Office of Civil Commitment from requir ing payment in amount that exce eds actual cost of service) ; see also Klu mb , 458 S.W.3d at 13 ; Andrade , 345 S.W.3d at 11 ; Miranda , 1 33 S.W.3d at 226

. 1

For these reasons , I c oncur in the Court ’ s judgment that di smiss es all of appellees ’
claims again st McLane for lack of subject matter jurisdiction.

______________ ____________________________ Melissa Goodwin, Justice
Before Justices G oodwin, Ba ker, and Smith
Filed: March 6, 2020

1 Because the relevant statu tes and rules re quire the Texas Civ il Commitment Office to seek cost re covery from civilly committed individua ls , McLane is not acting ultra vires by seekin g such cost recovery in accordance with these stat utes and ru les

. See Hall v. McRaven , 508 S.W.3d 232, 238 (Tex. 2017) (discussing sove reign immunity and “ ul tra vires ” exception)

.