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

NO. 03
- 18
- 00740
- CV

Appellant, Gerard Matzen//Cross
- Appellants, Marsha McLane, in Her Official Capacity as Director of Texas Civil Commitment Office, and The Texas Civil Commitment Office

v. Appellee s, Marsha McLane, in Her Official Capacity as Director of Texas Civil Commitment Office, and The Texas Civil Commitment Office//

Cross
- Appellee, Gerard Matzen

FROM THE 261ST DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 004319 , THE HONORABLE JAN SOIFER, JUDGE PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

I concur with the Court to the extent that it affirms the dismiss al of
Ge rard Matzen ’ s claims against appell ees for lack of sub ject matter ju r isdiction and concur in th at portion of the judgment . I resp e ctfully dissent , ho wever, to the Court ’ s holding that the trial court has jurisdiction over Mat zen ’ s proced ural due process and takings claims against appellees

. Because Matzen ’ s factual allegations i n his ple ad ings fai l t o show that sover eign immunity has been waived or that it does not apply to his claims , I would dismiss all of Matzen ’ s claims

.

To invoke the trial court ’ s jurisdiction , it was Matzen ’ s burden to alle ge fa cts that affirmatively demonstrate that sovereig n i mmunity 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 and2

“ ul tra vires ” exception); Klu mb v. Houston Mun. E m p s . Pensi on Sys ., 458 S.W.3d 1, 13 (Tex. 2015 ) (expl aining th at 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 El
Pas o v. Heinrich , 284 S.W.3d 366, 372 (T ex. 2009) ( explaining that ultr a vires a ct ion 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 ministerial act ” ) ; Texas Parks & Wildlife v. Miranda , 133 S.W.3d 21 7, 226 (Tex. 2004) (describing plaintiff ’ s burden to a llege facts to demonstrate that jurisdiction exi sts)

.

To the extent that Matze n ’ s proc edural due process and taking s c laims against appellees are based on the same alleged con d uct underlying his APA and ultra v ires claims

— the alleged “ failur e to enact rules ” and “ enforceme nt of rules (related to Plaintiff ’ s inc ome,
p urported ob ligation to pay for hous ing, treatment and GPS monitoring, an d finances) not enacted in conformity ” with rel evant statutes

— I conclude th at his plea ded factual allegati ons do not i nvoke the tri al court ’ s jur isdiction over those claims

. See Heinrich , 284 S.W.3d
at 372 ; Pharmserv, Inc. v. Texas Health & Human Serv s . Comm ’ n , No. 03

- 13

- 00526

- CV, 2015 WL 1612006 , at *7 (Tex. App.

— Austin Apr. 9, 2015, no pet.) (mem. o p. ) (explaining th at

“ APA does not authorize j udi cial review of an agency ’ s decision not to promul gate a rule ” (citing Texas Comm ’ n on Envtl. Quality v. Bonser

- Lain , 438 S.W.3d 887, 895 (Tex. App.

— Austin 201 4, no pet.) )) ; see also Tex. Gov ’ t Code § 2001.038 ( provi ding limited waiver of

so ver eign immunity to challenge validity or applicability of rule)

.

In his third amen ded petition , Matz en ass e rts additional conduct by Correct C are ,

a party in the trial court proceeding b ut not to this appeal , to allege pro cedural due proces s and takings claims . Mat zen alleges : “ Correct Care unconst itutionally misappropriates Plaintiff ’ s Work Program Pay without affording Plaintiff procedural due process and/ or du e course of law3

pursu ant to bo th Un ited States and Texas Cons t itution s ” and “ Co r r ect Care also viol at es Tex. Const. Art. I , § 19 by unconst itutionally taking Plaintiff ’ s property without due process. ” The
Court concludes that these allegations against Correct Care also are being alleg ed against appellees . As to his takings claim, t h e Court then con cludes th at the record contains a “ factual defi ci ency ” a nd that, “ [w]ithout that information , a conclusion that M atzen ’ s pleadings co u ld never allege a viable takings claim is premature. ” In reaching these conclus ions , t he Court explains t h at the “ development of a proper factual record ” is required to determine “ whether Appellees ’ costs for Mat zen ’ s housing, monitoring, and treatment a re so great , and Matzen ’ s monthly contrib ution so sma ll , that there is no net pecuniary loss an d no co mp ens a tion due. ”

I respectfully di sagree with the Court ’ s analysis

. Even if Matzen ’ s proced ural due process and takin g s claims against Corr e ct Care are asserted a gain st appellees , t he es s en c e of
Matzen ’ s claims concerning his work program pay or property is t h at he should not have to pay
any amount towar d the c ost s of the housing , treatment, or tracking serv ices provided to him

. The
Court r e ject s Matzen ’ s challenge to the ap plicable ru le s ’ validity, and h e has not alleged that the
amount that he has paid or i s re s ponsible to pay exceed s the actual cos ts of the hous ing,
treat ment, and tracking services provided to him

. See Tex. Health & Saf ety Code § 841. 08 4 ; 37 Tex. Admin. Code § § 810. 122(5 ) (Texas C ivil Com mitment Off ice, Definitions) (defining

“ income ” ), . 2 7 3 ( Cost of Housing, Treatmen t, and Tracking S er vices ) ( stati ng that civilly committed person who is not ind igent is respon sible for cost s of housing, treatment, and tra cking service s)

. The rule s themselves require the T exas Civil C ommitment Office to “ cr e ate a nd administer a policy regarding cost re covery ” that “ set[s] forth the method of payment ” and prohibit appellees from recovering more than the actual cost of the services. See 37 Tex. Admin Code § 810.273 ( requirin g creation of policy regarding cost recovery and prohibitin g recovery4

that exce ed s “ the actual cost of the services ” ). Further, t he evid e nce before the trial court included : (i) a c ost rec overy worksheet from Ma y 201 8 show i n g ca l c ulat ion s in conformity wi th the regu l ati o ns , and (ii) Matzen ’ s order of ci vil com mitment in conf ormity wit h the amended civil c om mitment scheme t hat i nclud ed the mandatory requirement to defray costs of housing and treatment. See Miranda , 13 3 S.W.3d at 227

– 28 (desc ribing ana lysis when eviden c e is submitted that im plicates merits of case) ; see also Andrade v. NAACP of Austin , 345 S.W.3d 1, 11 (Tex. 2011) (considering substance of constitutional claim in reviewing plea to jurisdiction and notin g that i mmunity i s retained unless viab le claim ple ade d)

.

Ma tzen already h as had the oppor tunity to amend his petition multiple times aft er appellees filed the ir plea to the ju risdiction

. See Harris County v. Sykes , 136 S.W.3d 635, 639 (Tex. 2004 ) ( “ If a plaintiff has been provided a reasonable opportunity to amend after a
gove rnmental entity files its plea to the jurisdiction, and the pla intiff ’ s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial c ourt should dismiss the plaintiff ’ s action. ” ) ; Miranda , 133 S.W.3d at 226 (pla c ing burden on plain tiff to allege facts to demonstrate that jur isdiction exists)

. Despite having t his opp or tunity , Ma tzen has
not asserted facts in his pet iti on , p rovided evidence , or made a suggestion to this Court that would cur e the jurisdictional defe ct s in his pleadings. See Sykes , 136 S.W.3d at 639 ; Spen c e

v . State , No. 03

- 17

- 00685

- CV, 2019 Tex. App. LEXIS 3359, at * 24

– 25 (Tex. App.

— A ustin Apr. 26, 2019, pet. denied) (mem. op.) (concluding that dismissal with prejudice was proper where appellants f

i led amen ded petition “ but they [had] not al leged facts that wo uld const itute a

wa ive r of so ver eign imm unity or made a suggestion that would cure the jurisdictional defe ct in their pleadings ” ).5 Based on Matzen ’ s pleadings and the evidence before the trial c o urt , I conclude that Matzen has failed to plead a viable proced ural due process or tak ings claim to invoke th e trial court ’ s jurisdict ion

. S ee Klu mb , 458 S.W.3d at 13 ; Mira nda , 1 33 S.W.3d at 226

. Therefore, I would di smiss all of his claims for lack of subject matter jurisdiction.

______________ ____________________________ Melissa Goodwin, Justice Before Justices Goodwin, Baker, and Tr ian a Filed: March 6, 2020