### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00724- CV

University of Texas at Austin an d Will iam P owers, Jr., in hi s Of fi cial Capacity as P resident of the University of Texas at Austin, App ellants

v. Bam bi L owman, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0243 6, H ONO RAB LE SUZ ANNE COVI NGTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Ba mbi L owman filed suit ag ain s t th e University of Texas at Austin (the “Univer sity ”) and Wil liam Powers, J r., in his officia l capa city as President of the University

. I n her suit, L owman alleg ed that she was improperly denied acce ss to the University d u e to her disabilit y . I n response to the suit, the University and Powers filed a plea to the jurisdiction asser ting that the suit was barr ed by sovere ign immunit y . The district court denied the plea, and the University and Powers filed this interlocutory appea l. We will reve rse the district court’s order and rema nd the case for further proce eding s.

BACK GR OUND

Acc ording to L owman’s unchalleng ed fac tual alleg ations, she was admitted to the University as a g raduat e s t u dent in the g eolog y depar tment in 1983. At some point in the past,L owman was diag nosed wi th autism, and she contends that her condition imposes signific ant

obstacles in her life. Fur

ther, L owman aver s that her condition substantially delay ed the completion of her deg ree require ments. I n fac t, L owman never finished all of the require ments neede d for her Ph.D. and is no longe r enrolled as a s t u d en t in the prog ram. Although L owman was no longe r a student during the time rele vant to this appea l, she asser ts that she continued to visit the campus to meet with her

former profe ssors and to per form re sear ch in the g eolog y library

. I n 2009, while in the g eolog y library , L owman was inv o l v ed i n an incident with

a student that ultimately re s u l t ed in L owman being informed that she was not authorized to be in the libr ar y an d being arr ested for criminal trespass. Some time afte r her arr est, L owman filed suit ag ainst the University and Powers, in his officia l capa city as President of the University

. I n her petition, she alleg ed that beca use she wa s essentially

banned f rom the library , she has been denied “admittance to a public fa cility beca use of he r disability ” in c ontrave ntion of the human re source s code. See Tex. Hum. Res. Code Ann. § 121.003 (W es t Supp. 2011); see also id. § 121.002(5) (West 2001) (def

ining “public fac ility ”). Fur ther , L owman arg ued that the leg islature waived

sovere ign immunit y for the ty pes of claims that s h e i s p u rs uing. L owman also alleg ed that the Un iversity and Powers discriminated ag ainst her, “a person with a disability , by failing t o m ak e

rea sonable acco m m o dations in policies, prac tices, and proce dures.” Acc ording ly , she soug ht a perma nent injunction, actua l damag es, statutory damag es, prejudg ment and postjudgment interest, court c osts, and any

other re lief that she wa s entitled to. I n response to her suit, the University and Powers filed a plea to the jurisdiction. I n their pl ea, the University and P ower s contende d that L o wm an ’s suit should be dis missed beca use

2the State has not waived sovere ign immunit y for the claims prese nted by L owman. I n addition, the

University

and Power s arg ued that L owman’s c laim for injunctive re lief should be dismissed. After considering the arg uments in the pl ea, the district court denie d the plea. The University and Powers appea l the district court’s ruling

. See T ex . Civ. Prac. & Rem. Code Ann. § 51.014(a) (8) ( West S upp. 2011) (a uthorizi ng interlocutory

appea l challeng ing de nial of plea ).

DISCUSSIO N On appea l, the University and Powers re- urg e the jurisdictional arg uments that they made in their plea to the jurisdiction. I n particula r, they contend that nothing in the human resour ces code reve als an intent by the leg islature to waive sovere i gn i m munity for claims alleg ing that an individual was improperly denied admittance to a public fac ility due to a disability

. I n addition, they

asser t tha t L owman’s injunctive claims are barr ed. I n particula r, the University and Powers alleg e that L owman’s petition demonstrates that no violation occur red and, there fore , arg ue that the in ju n c ti v e c la im s a

r e b a r r e d b y s o v e r e ig

n im mu n it y . S e e Ci ty o f E l P a s o v . H

e in r ic h , 2 8 4 S. W. 3 d 3 6 6 , 3 7 2

- 7 3 ( T e x. 2 0 0 9 ) ; s e e a ls o W ic h it a F a ll s S ta te H o s p . v . Ta y lo r , 1 0 6 S. W. 3 d 6 9 2 , 6 9 4 n . 3 ( T e x. 2 0 0 3 ) (stating that “[i] n addition to protec ting the State from liability ,” sovere ign immunit y “also protec ts the various divisions of state g overnme nt, including

. . . universities”). Acc ording ly , the University and Power s insist that L owman’s c laim for injunctive re lief should be dismissed. 1

When a plea to the jurisdiction is filed challeng ing the authority of a trial court over

a case , the jurisdictional inquiry “beg ins with the p l ai n t iff’s live pleading s.” Creedmoor-M aha

I n their plea, the University and Powers also alleg ed that L owman does not have standing 1 to pursue the c laims in her petition, but they did not include this basis in t heir a ppellate br iefs. 3W

ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 512 (Tex. App.—Austin 2010, no pet.); see State v. Holland , 221 S.W .3d 639, 642 (Tex. 2007) (stating that when revie wing plea, courts look to “plaintiff’ s petition to d e te r mi n e w h e th e r the fac ts pled aff irmatively demonstrate that jurisdiction exis ts”); see also Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554 (Tex. 2000) (explaining that “[a] plea to the jurisdict i o n i s a dilatory plea, the purpose of which is to defe at a

cause of action without reg ard to whether the claims asser ted have merit”). Whether the plaintiff has met his burden of ple ading fac ts that invoke t he trial court’s jurisdiction “is a que stion of law that

we revie w de novo.” Creedmoor , 307 S.W .3d at 513; see Holland , 221 S.W .3d at 642 (stating that subject-matter jurisdiction is question of law that courts revie w de novo). I n perf orming this revie w, “[w]e construe the pleading s liberally , taking them as t ru e, and look to the pleade r’s intent.” Creedmoor , 307 S.W .3d at 513; see also Brantley v

. Texas Y outh Comm ’n , No. 03-10-00019- CV, 2011 Tex. App. L EXI S 8220, at *4 (Tex

. Ap p . — Au s t i n Oct. 12, 2011, no pet.) (explaining that inquiry is whether “p l ai n t i ff ’s pleade d and un-neg ated fac ts, taken as true and liberally construed with an ey e to the pleade r’s intent, would aff irmatively demonstrate a claim or claims within the trial court’s subject-matter jurisdiction”); Creedmoor , 307 S.W .3d at 516 (stating that when deter mining if trial court’s inhere nt jur isdiction has been invoked, courts construe rele vant statutory provisions and apply them to fac ts pleade d and not neg ated by evidenc e to see if plaintiff has alleg ed violations). “I f the pleading s do not contain sufficie nt fac ts” to establish the trial court’s jurisdiction but also “do not aff

irmatively demonstrate incura ble defe cts in jurisdiction,” the plaintiff should be g iven an oppor

tunity to amend. Creedmoor , 307 S.W .3d at 513; see Holland , 221 S.W .3d at 643. Howeve r, if “the pleading s aff irmatively neg ate the ex i s t en ce of jurisdiction, then a plea to the

4jurisdiction may be g rante d without allowing the plaintiffs an opportunity to amend.” Texas Dep’ t

of Parks & W

ildlif e v. M iranda , 133 S.W .3d 217, 227 (Tex. 2004). G e n e r a ll y s p e a

k in g , th e St a

te “ r e ta in s s o v e r e ig

n im mu n it y f r o m s u it ” a

n d , a c c o r d in g ly , can only be sued if the leg islature has ag ree d to waive that immunit y . University of Tex. at Austin v. Haye s , 327 S.W .3d 113, 115 (Tex. 2010) (per curia m). Howeve r, sovere ign immunit y does not bar suits for injunctive relief ag ainst g overnme nt officia ls in their officia l capa cities if the suit is broug ht to c ompel “off

icials to c omply with sta tutory or constitutional provisions.” Heinrich , 284 S.W .3d at 372, 376. “To fall within this ultra vires exception, a s u i t m u s t n ot complain of a g overnme nt office r’s ex erc ise of di scre tion, but rathe r m ust alleg e, and ultimat el y p rove, that the officer acted without leg al authority or failed to perf orm a purely minist eria l act. ” Id

. at 372. I f a plaintiff

succe ssfully proves an ultra vires claim, then he “is entitled to prospec tive injunctive relief .” Id. at 376. I n her peti t i on, L owman stated that she has been diag nosed with autism and then descr ibed various sy

mptoms that she experience s. I n particula r, she rela ted that “var ious major life activities, including communication” are “substantially limit ed,” that her speec h is delay ed, that she has to “invest signific ant amounts of time prepa ring to have conver sations,” and that she has difficulty “ac cessing information if she is not comfor table and r elaxed.” I n addition, L owman also rec ounted the incident that occur red in the g eolog y library

. Specifica lly , L owman alleg ed that she “made ey e contac t w ith a g radua te student and then quickly turned” around and that the student foun d this encounte r “suspicious” and called the University Police Depa

rtment. Fur

ther, L owman pleade d that two police office rs responde d to the call, came

5to the library , and questioned her. Acc ording to the petition, the polic e as k ed h er i f s he was “a

student, a staff member, or a fac ulty member.” I n addition, L owman alleg ed that afte r she informed the police that she was not c urre ntly a student, the police told he r that the library may only be used by “students, staff members, and fac ulty m em b er s ” an d t hat “if she ever set foot on . . . campus ag ain, she would be arr ested.” Fur ther, L owman contende d that afte r she tried to ask the office rs a question, they

arr ested he r for

criminal trespa ss. I n her petition, when descr ibing the events occur ring afte r her arr est, L owman

asser ted t hat s he contacted the University ’s vi ce president of leg al af fa irs, explained the nature of her disability , and asked him to withdraw the criminal trespass war ning; howeve r, she alleg ed that he “re fused to withdraw the war ning” and informed her that she should not be on the campus. After listi ng the alleg ations above, L owman asser ted t h at she was improperly denied “admittance to a public fac ility

beca use of he r disability .” See Tex. Hum. Res. Code Ann. § 121.003(c). Even under a liberal rea ding, none of the alleg ed fac ts in her pet i t i o n s u p p o rt a cl ai m that Powers committed ultra vires acts by failing to comply with the require ments of the human resour ces code. The human resour ces code states that “[n] o person with a disability may be denied admittance to a

ny public fac ility in the state beca use of the person’ s disability .” Id. ; see id. § 121.002(5) (def

ining “[p] ublic fac iliti es”)

. The main focus of L owman’s petition is on the events leading up to her arr est. Howeve r, on appea l, L owman reve als that she is not alleg ing that her arr est violated the human resour ces code; rathe r, she contends on appea l that the violation occur red when she wa s subsequently

excluded from ca

mpus. To the extent that L owman bases he r cla ims on her

remova l from the library , none of her alleg ations support an infere nce that she was denied admittance

6to the library due to her

disability

. See H

ill v. Burnet C ounty Sheriff’s Dep’ t , 96 S.W .3d 436, 440 (Tex. App.—Austin 2002, pet. denied) (stating that petitions are sufficie nt when “the cause of action may be rea sonably inferr ed from what is specific ally stated”)

. Although L owman descr ibed herse lf

as autistic and listed various sy mptoms that she suffe rs from, her fac tual alleg ations about the library incident asser

ted that the police office rs order ed her to leave the library and ultimately arr ested her beca use she was not a curr ent student or a member of the fac ulty or staff. Fur ther, althoug h L owman alleg ed that the police informed her that she would be arr ested if she came back to campus, nothing in her petition stated that the police issued the warn i n g fo r an y reason other than the fac t that L owman was not a curr ent student or member of the fac ulty or staff. Ex clusion from a public fac ility

on the basis of st udent or employ ment st at u s d o es not support a claim under the provisions of t he human resour ces code at issue in this case . Reg arding the events that occur red after her arr est, L owman asser

ted that she had a conver sation with a University employ ee in which she descr ibed her disability and asked for the criminal trespass war ning to be withdrawn, but the employ ee stated that “she should not be on our campus.” Howeve r, no alleg ations wer e made in the petition that would sup p o rt a deter

mination that the employ ee was improperly deny ing L owman acc ess due to her disability

. Moreove r, L owman’s unsupport ed l egal conclusion that the University denied her “admittance to a public fac ility beca use of her disability ,” without more , cannot sa tisfy L owman’s burden of alleg ing fac ts that demonstrate that P o we rs committed ultra vires acts. See Brantley , 2011 Tex. App. L EXI S 8220, at *3 (stating that plaintiff must show that trial court has jurisdiction to decide issues a

nd that “[m] ere unsupported leg al conc lusions are insuffic ient”).

7Be cause L owman’s petition failed to alleg e a valid ultra vires claim, we conclude that

the district court err ed by deny ing the portion of the plea addre ssing L owman’s claim for injunctive relief

. Howeve r, L owman’s petition d o es n o t af firmatively neg ate jurisdiction, and she should there fore be g iven an oppor tunity to amend her

petition. As explained previously , in addition to seeking i n j u n ct i v e relief

, L owman also

asser ted that the human resour ces code waives sovere ign immunit y for claims falling under section 121.003 of the human resour ces code. For that rea son, L owman reque sted monetary relief available und er the human resour ces code. See Tex. Hum. Res. Code Ann. § 121.004(a) , (b) (West 2001) (stating that violation of section 121.003 is punishable by “a fine of not less than $300 or more than $1,000” and that if someone is denied acc ess to public fac ility due to his disability , he “may maintain

a cause of action for damag es in a court of competent jurisdi ct i o n ”)

. I n their first issue, the University and Powers asser t that the provisions of the human resour ces code at issue do not waive

sovere ign immunity . Be cause the factual allega tions underpinning L owman’s ultra vires cause of action are identical to those for her claim for monetary damag es and beca use L owman will be g iven

an o p p o rtunity to amend her fac tual alleg ations, we decline to addre ss the issue reg arding wai v er pending reple ading

.
CONCLUSION

Having deter

mined that the dist ri ct court err ed by deny ing the portion of the University and Powers’s plea addre ssing injunctive relief , we reve rse the district c ourt’s order and

rema nd the ca se for

proce eding s consistent with this opi nion.

8__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Reverse d and Remande d Filed: May

18, 2012

9