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

NO. 03
- 21
- 00305
- CV

Dianne Hensley , Appellant

v. State Commission on Judicial Conduct ; David Schenck, in his official capacity a s Chair of the State Commission on Judicial Conduct; Janis Hold, in her official capacity as Vice
- Chair of the State Commiss ion on Judicial Conduct; Frederick C. Tate, in his official capacity as Secre tary of the S tate Commission on Judicial Co nduct; and D avid C. Hall, David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunc h, Valerie Ertz, M. Patrick Magu ire, Clif

ton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in th e ir offic ial capacities as Members of the State Commission on Judicial Conduct , Appellee s 1

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 20
- 003926 , THE HONORABLE JAN SOIFER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Dianne Hensley appeals from the t r ial court ’ s order dismissing her suit against the State Commission on Judicial Conduct (the Commission) and David Schenck, in his official capacity a s Chair of the State Commission on Judicial Conduct; Janis Ho ld, in her official capacity as Vice

- Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall, David M. Petronella, Sujeeth B. Draksharam, Ron ald E. Bunch, Valerie Ertz, M. Patrick Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their official

1 Purs uan t to Rule 7.2 of the Texas Rule s of Appel lat e Procedure, the curren t officers and members of the S tate Commission on Judicial Conduct have be en automatically substitute d for its form er officers and m embers.2

capacities as Members of the State C ommission on Judicial Conduct (collectiv ely “ the Officials ” ). Hensley brought cl aims against the Commission and the Officials alleging that they violat ed the Texas Religious Freedom Rest orat ion Act , see Tex. Civ. Prac. & Rem

. Code § 110.005 ( the TRFRA), a nd a cted ult ra vires regarding the Commission ’ s discipl inary action against her. Hensley also sought declaratory relief unde r the Texas Uniform Declaratory Judg ments Act. See id. §§ 3 7 .001

- .011 (th e UDJA). On the Com mission ’ s and the Official s ’ plea to the jurisdiction and, in the alternative, plea in estoppel, the trial court dismissed Hensley ’ s claims , concluding that (1) He ns l ey fail ed to exercise her exclu sive statutory remedy for issue s related to t he d iscip lin ary proceeding ; ( 2) Hensley failed to c omply with jurisdictional statutory notice requirements governing her claims unde r the T RFRA ; (3) sovereign immunity barred her claims; (4) her claims were barred by statu tory immunit y under Texas G overnment Code section
33.0 06, see Tex. Gov ’ t Code § 33.00 6 ; (5) her claims were not ripe; ( 6) her claims sought impe rmissible advisory opinions; and (6) her claims were barred by the doctrin e of res judicat a. We will affirm.

B ACKG ROUND

Hensley is a ju stice of the peace in Waco, Texas. After a Waco newspaper publis hed an article about Hen sley, which included an interview w ith her, the Commission sent
Hens ley a letter of in quiry asking her to respond to written que stions. The Com mission ’ s questions inq uired into Hensley ’ s p olicy, fr om the time she assumed the bench until the date of the inquiry, regarding performing wedding ce remonies for same

- sex coup les. The Commission also asked Hensley to confirm whether the Waco newspape r ar ticl e, which w as titled “ No courthouse weddings in Waco for same

- sex couples, 2 y e ars after Supr eme Court ruli ng ” and3

included quote s attributed to Hensley regarding the issue of performing same

- sex marriages, accurately and fairly r epresented her stat emen t s to t he media on th at issue. The Com mission also asked Hensley to d iscuss whet h er, in her opinion, refusing requests to perform same

- sex marriages but continuing to perform marriage ceremonies for heterosex ual couples vi olated Canons 2( A), 3B(5), or 3 B( 6) of th e Tex a s Code of Judicial Conduct. In her Ju ne 20, 2018
respon se, Hensley included contentions that her conduct was p rotected by the T RF RA.

In January 2019, the Commission wrote Hensley and identified two alleged violations of the Texas Code of J udicial Conduct an d one alleged violation of the Tex as Cons titution ’ s restric t ion s on judicial condu ct. An attached unsigned “ tenta tive Public Warning ” identified (1) a n alleged violation of Canon 3B(6) , which pro hibits bias and prejudice in the perf o rman ce of judicial du ties; ( 2) a n alleged violation of C an on 4 A(1), which prohibits

c o ndu ct in extra

-

judicial activities that would cast reasonable doubt on the j udg e ’ s capacity
to act imp artially ; and (3) an alleged violation of Article V, Section 1

- a(6) ( A) o f th e Texas Constitutio n , which pr ohibits “ willful or persistent conduct that is c le arly inconsistent with the proper performance of [the judge ’ s] du ties or casts public discredit upon the judiciary or administration of just ice. ” The Commission gave H ens ley the o ption of either accepting the tentative Publi c Warning or appearing befor e the Commission for a hearing. Hensley elected to appear for a hearing , and the tentative Pub lic Warning never became effective and remained confidential by statute. 2

A t a n August 2019 hearing b efore the Commission, Hensley appeared and was represented by three attorneys. Hensl ey testified under oath to the Commission ’ s questions.

2 The tentative Public Wa rn ing was n ot made publi c before the conclusion of the Commission ’ s discipli nary proc eedings an d only beca me public when Hen sley attached a copy of it as an ex hibit to her pleadings in the unde rlying trial court proceeding s.4

Hensl ey argued that her conduct w as protected by the TRF RA and d isputed tha t her conduct constituted a violation of the Texas Constitution or of Canon s 3B(6) or 4A (1) . She al so asserted that she was protected from discipline by Artic le 1, Section 8 of th e Texas Cons titution. See Tex. Const. art 1, § 8 (pro viding th at “ [e] very p erson shall be at liberty to speak, writ e or publish his opinions on any subject ” and that “ no law s hall ever be passed curt ailing the liberty of speech or of the press ” ). After the hearing, the Commission issued a Public Warning on Novemb er 12, 2019. Th e Public Warning included the following findin g s of fact:

1. At al l ti me s relevant hereto, the Ho no rable Dianne Hensley was Justice of the Peace for Pr ecinct 1, Place 1, in Waco, M cLennan County, Texas. 2. On June 24, 2017, the Waco Tribu ne newspaper pub lished an artic le on their website entit led No Courthouse We d dings in Waco fo r Same

- sex C ouples, 2 Y ears After Supreme Court Ruling which reported that Ju stice of the Peace Dianne Hensley “ would only do a wedding between a man and a woman. ” 3. From August 1 , 2016, to the present, Judge Hensley has performed opposite

sex weddings for couples, but has d ec lined to perform same

- sex wedding ceremonies. 4. Beginn ing on about August 1, 2016 , Judge Hens ley and her court sta ff began giving all same

- sex couples wis hi ng to be married by Judge Hens ley a do cume nt which stated “ I ’ m sorry, but Judg e Hensley has a si nc erely held religious belief as a Christian , and will not be able to perform any same sex wedding s. ” The do cument contained a list of local persons wh o woul d officiate a same

- sex wedding. 5. Judg e Hensley told the Waco

- T ribune , the public and the Com mis si on that her conscience and religion prohibited her f rom officiat ing sa me - sex weddings. 6. At her appearance before the Commission, Judge He nsley testified that she would recuse herself from a cas e in which a party doubted her impartiality on the basis t ha t she publicly refuses to perf orm same - sex weddings.

Bas ed on the record be fore it and th ese fi ndings, the Commission determined that He nsle y should

“ be pub licly warned for casting doubt on her ca pacity to act impartially to persons appearing5

before her as a judge due to the p erson ’ s sexual orientation in violation of Canon 4A(1) of the Texas Code of Judicial Conduct. ”

The Public Warning was sent to H ensley ’ s counse l on November 14, 2019, after

w hich Hen sley had 30 day s to file an appeal. See Tex. Gov ’ t Code § 33.034 (a) ( judge who receives sanc tion or cens ure by Commission entitled to review of Commission ’ s decision); (b) ( j udg e must file written request for appoint ment of special court of review with chief justice of s upreme cou rt not late r than 30t h d ay after date on which Commission issues its decision ) ; (e) (providing for review by trial de novo as that term is used in appeal of cases fro m justice
to cou nty court). Hen sley did not file an app eal. Instead, she filed the under lying s uit in December 2 01 9. 3

In her petition, Hen sley a sserted that the Commission violated her rights under the T RF RA by punis hing her for “ recusing herself from officiat i ng at s ame - sex w eddings , in accordance with the commands of her Christian faith. ” Hen sley asserted that “ t he Commission ’ s investigation and punishment ” of her for “ acting in ac cordance with th e commands of her Christian faith ” substantially burdened her free exercise of religion. Hen sley also asserte d tha t

“ the Commission ’ s threat to impose further discipli ne on Judge Hensley if she persists in

recu sing herse lf f

r o m officiating at same

- sex weddings ” also substa ntial ly burden s her free

ex e rcise of reli gion. Hensley alleged th at “ the Commission ’ s inves tigation an d punish ment ” of he r and “ its threat to impose fu rther discipline ” on her “ if she persists in recusing hers e lf from offic iating at same

- sex weddings ” further no compelling governme n tal interest . Hensley

ass ert ed tha t the Commission ’ s determinat ion that her actions violate d C anon 4 A(1) bec ause they

3 The unde rly in g suit was origin all y fi le d in McLenna n County but, after a contested hearing, ve nue w as transf erred to Travis Co unty District Court.6

cas t rea sonable doubt on her capacity to act impartially as a ju dge wa s erroneous because , she contends, “ disapproval of an indi vidual ’ s b ehav ior does not evince bias to w ard th at individual as

a person when they appear in court. ” Hen s l ey described th e Commis si on ’ s determination as

“ absurd ” because, according to her, the Commission “ equate [d] a judge ’ s p ublicly stated opposition to an indi v i dual ’ s behav ior as castin g doubt on the judge ’ s impartiality to ward litiga nts who engage in that conduct. ” She asserted th at under this reasoning, “ no judge who publicly opposes murder or rape could be regard ed as impartial wh en an accu se d murde re r or

ra p ist appears in his court. ” Hensley alleged that , pursuant to t he T RFRA, she was entitled to declaratory an d injunctive r el ief, compensatory damages, and attorneys ’ fees. See Tex. Civ.
Prac. & Rem. Code § 110.005 ( person who successfully asserts claim or defens e under TRFRA
ent itled to declaratory relief under UDJA, in junctive rel ief, compensatory damages, and

rea s on a ble at to r ney s ’ fees).

Hensley sought additional declaratory relief under the UD J A . Specific ally,
Hen sley sought declaration s tha t (1) a judg e does not violate Canon 4A by merely expressing disapp roval of homosexual be havior o r same - sex marriag e or by belongin g to or supporting a church or chari table organization th at opposes homosexual behav ior or same

- sex marriage (Declaration 1); (2) the off i ciating of weddings is not a “ judicial duty ” under Canon 3B( 6) (Decl aration 2) ; (3) Hensley ’ s decision to recuse herse lf from officiating at same

- sex weddings does not constitute “ willf ul or persiste nt conduct clearly inconsistent with the pro per performa n ce of [a judge ’ s] duties or casts public discred it upon the judiciar y or administration of justice ” such that it viola te s article V, section 1

- a(6)(A) of the T e xas Constitution (Declaration 3); and (4) the Commission ’ s interpretation of Canon 4A violates a rtic le I, section 8 of the Texas7

Constitution (Declaration 4 )

. Hensley also sought this declaratory relief against th e Officials b ased on her assertion that they had acted ultra vires.

The Commission and the Officials filed a plea to th e ju risdiction a n d, in the alternat ive, a plea in estoppel. The y a rgued that Hensley ’ s c la ims should be dismissed for lack of jurisdic ti on bec ause sh e failed to util ize the exc lusive statutory rev iew process provided by the Legislature to c hallenge the Commis sion ’ s deter m ination to issue the Pu blic Warning. T hey also asserted tha t sovereign immunity bars Hensl ey ’ s claims brought under t he TRFRA because she failed to comply with the TRFRA ’ s statu tory notice requirements. The Commission and the Officials argue d further t h a t sover eign immunity bars Hensley ’ s UDJA claims and that sh e failed to plead an y ultra vire s conduct by the Officials

. They also maintained that, to the extent
Hen sley s ee k s declaration s about her potential future conduct, the court lacks ju risdictio n because th ose issues are not ripe for adjudication and Hens ley is se e king impermissible advisory opin ion s. In the altern at ive, the Commission and the Officials a sserted that Hen sley ’ s claims should be dism issed because th ey are barred by the do ctrine s o f res judicata and collateral esto ppel.

After an evidentiary h earing, the trial c our t granted the plea to the jurisdictio n , concluding that the court lacked jurisdiction over Hens l e y ’ s claims concerning issues perti nent to her di sciplinary proce eding bec a use she failed to exercise her exc lusive statutory remedy . The trial court concluded that it lacked jurisdiction over Hen sl ey ’ s claims under the TRFRA because she failed to strictly comply with juris dictional statutory notice requ irements

. T he trial cou r t also concluded that Hen sley ’ s claims were barred by sovereign immunity and s tatutory immunity

un der section 33. 0 06 of th e Texas G overnment Code , were not ripe for adjudication and sought8

imp ermissible advisory opinions , and were b a rred by the d octrine of res judicata. Hensley then perfected this appeal.

DISCUSSION Standard of Review

A plea to the jurisdic tion is a proce du ral mechanism “ through which a party
may challen ge a trial court ’ s a uthority to decide the subject matter ” o f a claim. Te xa s Dep ’ t of State Health Servs. v. Balquinta , 429 S.W.3d 726, 737 (Tex. App.

— Austin 2014, pet. d ism ’ d ). Because whether a court ha s s ubject

- matter jurisdiction is a question of l aw, we review de novo

a trial court ’ s ruling on a plea to the j urisdiction

. Texas Dep ’ t of Parks & Wildli fe v. Miranda , 133 S.W.3d 217, 225 (Tex. 20 04).

A plea to the jurisdiction may challenge whet her the pl aintiff has alleged facts that affirmatively demonstrate a court ’ s ju risdi ction to hear the case, the exist e nce of those jurisdictional facts, or both. Texas Dep ’ t of Transp. v. Lara , 625 S.W.3 d 46, 52 (Tex. 2021). When t he jurisdictional ple a challen ges the ple adings, we determine whether the plaintiff ’ s pleadings allege facts affirmat ively demonstrating sub j ect

- matter ju risdiction. Miranda , 133 S.W. 3d at 226. In makin g this assessment, we c onstrue the plaintiff ’ s pleadings libe rally,
ta king all ass erti ons as true, and look to the pleader ’ s inte nt. Texas Dep ’ t of Crim. Justice v. Rangel , 595 S.W.3d 198, 20 5 (Tex. 2020 ). Allegati ons found in plea dings may affirmative ly demonstrate or negat e the court ’ s ju ri sdiction. City of Waco v. Kirwan , 298 S.W. 3d 6 18, 622 (Tex. 2009). If the pleadings affirmatively negat e the exi stence of jurisdiction, the plea m a y be
gr a nted witho ut affo rding the plaintiff an opportunity to replead. Miranda , 133 S.W.3 d at 226.9 When the plea challenges the existence of juris dict ional facts, we must move beyond the pleadings and consider evidence when necessary to re solve the jurisdicti o nal issues

. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S. W .3d 755, 770 (Tex. 2 0 18); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554

- 55 (Tex . 2000). When those challenged jurisdictional facts also implic ate the meri ts of the plaintiff ’ s claim, as i n this cas e, the plaintiff ’ s burden mirror s that of a tra ditional motion fo r summar y judgment. Lara , 625 S.W.3d at 46 (quoting Mi ssion Consol

. Ind ep. Sch. Dist. v. Garcia , 372 S.W.3d 6 29, 634 (Tex. 2012)). Consequently, we re view the relevant evidence i n th e light most favorab le to the plaintiff to determine whether a genuine issue of material fact exists. Town of Shady Shores v. Swanson , 590 S.W. 3d 544, 550 (Tex. 2019) ( citin g Miranda , 133 S.W.3d at 226). If the evidence creates a fact issue regarding the jurisd ictional issue, then the trial court cannot grant the plea to the jurisdi ction , and the fact issue will be resolved by the f

act find er. Miranda , 133 S.W.3d at 227

- 28. B ut if the relevant ev idence is undisputed or does not raise a fact question on juris di c tion, we rule on the plea as a mat ter of law. See id. at 228.

The Sta te Commission o n Judicial Conduct is a constituti onally cre ated ag ency composed of judges, attorneys, an d citizens from the S t ate of Texas. See Tex. Const. art. V, § 1

- a(2) ; Tex. Gov ’ t Code § 33.002(a

- 1) ( “ The commission is an agency o f the judicial br anch of
state government and a dministers judicial discipline. ” ). A s a state agency, the Commission is entitled to sovereign immunity. See Miranda , 133 S.W.3d at 224; Hag s tette v. S tate Comm ’ n on Ju d

. Conduct , No. 01

- 19

- 00208

- CV, 2020 W L 73 49502, at * 4 ( Tex. App.

— Houston [1st Dist.] Dec. 15, 202 0, no pet

. ) (mem. op. ) ; se e also Tex. Gov ’ t C ode § 33.006 (providing that commission and its members are immune from liability for acts or o missions c ommitted by person within s cope of person ’ s of ficial duties)

. When a gov ernmental entity challenges10

jurisdiction on immunity g round s, the plaintiff ’ s burden of affirmat ively demonst rating jurisdiction includes establishing a waiver of immunity. Swanson , 590 S.W.3d at 550.

TRFRA Claims

We first co nsider whether the trial co urt erred by dismissing Hen sley ’ s TRF RA claim s that re late to the Commission ’ s investigation and determination , after conduc t ing a hearing, to issue a Publi c Repr imand . Hensley ’ s claims reduce to t wo compl aints. First, she contends that the Commission ’ s inv estigating and issu ing a Public Repr imand were impr oper becau se they violated her rights under the TRFRA. Sec ond, she takes issue with the
C o mmission ’ s d etermination that her conduct did in fact violate Can on 4A. B oth these

co mplai n ts challenge an agency ’ s determination af ter a h earin g. With reg ard to Hensle y ’ s complaint that the Com mis s i on ’ s investigation and decisi o n to issue a Public Warning violated her right s under the TRFRA, we note tha t Hensley could have, and did, ra is e this as a defense to the Commis sion ’ s action. See T ex. C iv. Prac. & R em. Code § 1 10.004 ( “ A person whose free exercise of religion has been s ubstantially burdened in violation of Section 110.00 3 or 110.0031 may assert that violation as a defense in a ju dicial or administrative proceeding without rega rd
to wh eth er the proceeding is brou gh t in the name of the state or by another person. ” ). By iss uing the Public Warning in the face of th is asserted defense, the Commission implicit ly found that its investig ation and subsequent Public War ning did not substantia lly b urden Hensley ’ s free exer cise of religion. Similarly, regarding wheth e r her cond uct viola t ed Cano n 4A, the Commission determined that it did. Rather tha n pursue an appeal of the Commission ’ s determination

— the avenue established by the L egislature to obtain review of Commission d ecisions and s et fo r th in Te xa s Government Code section 33.034

— Hensley filed a proceeding11

in d istri ct court asserting the same argument she presen ted to the Commission and request ing that the district court d eclar e th at the Comm is sion was incorrect in its determinatio ns that ( 1) Hensle y ’ s conduct violated the Co de of Judicial Conduct and (2) that it s inve stigation and public repr imand did not substa ntially b urden her free exerci se of religion so as to violate the
T RFRA

. The trial court correctly dismissed this impermissible collateral attack o n the Commission ’ s order. Se e Chocolate Bayou Water Co. & Sand Supply v. T e xas Nat. Res.
Conservation Comm ’ n , 124 S.W.3d 844, 853 (Tex. App.

— Austin 2003, pet. denied) ( “ Colla teral attacks upon an agency order may be m aintained successfully on on e ground alone

— that the order is void. ” ) ; see also Browning v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005) ( “ A collateral attack is an attempt to avoid the bindin g force of a judgment in a pro ceeding not inst ituted for the
purpose of correcting , modifying, or vacating the judgment, but in order to obt ain some specific relief which the ju d gment stands as a bar against. ” ).

Also pur suant to the TRFRA, Hensl ey sought inj unctive rel ief “ t hat w ill preven t the Commission a nd its member s from investigating or sanctioning judges or justices of the peace who r ecuse themsel ves from officiating at s ame - sex weddings o n account of their sincere religious beliefs. ” This injunct ive relief is not ava ilabl e to Hensley under the TRFRA. The
statute provides that a person who succe ssfully asse rts a claim or defense unde r the TRFRA is entitled to injunctive reli ef to prevent the threatened or continued violation. See Tex. Civ. Prac. & Rem. Code § 110.005 (a)(2 ). In this cas e, the trial court prop erly dismissed Hensl ey ’ s claims brought under the TRFRA and, con sequently, s he has not successfully asserted a cl a im under that s tatute tha t would entitle her to injunc tiv e relief.

The trial court also properly dismi ssed Hensley ’ s claims for relief under the TRFRA that were based on her allegations that the Commission violated h er right to religious12

fre ed om by “ th r e atening to impose further dis cipli ne if she persist s in recusing hers elf f r om officiating at same

- s e x we ddings. ” The undis puted evidence , presente d at the evidentiary hearing through the testi mony of the Commission ’ s Executi ve Director, was that , since is s uing the Public Warning , the Commission has not initiated any new investigati on of Hensle y, has no t ini tiated any ne w disci plinary proceeding invo lving Hens l e y, and has not communicated t o Hens ley any threat that any new investigation or di sciplinary proce e ding is planned or imm inen t.
B ecause the evidence est ablishes that the Comm ission has in fact no t thre aten ed further disci plinary action against Hens l e y , she has failed to carry her burden of demonstrating that the
TR FRA waives the Commission ’ s immunit y f or her claim that threats of further discipline by the Commission have burde ned her free exercise of re ligion

. See id. § § 111 .005 ( person who suc cessfully asserts claim under TRFRA entitled to dec laratory and inju nct iv e relief) , .008 (a) ( providing tha t sovereign immunity to suit is waived to extent of liability create d by sectio n 110.005)

.
UDJA Cla i ms I n addition t o the declarations she requ este d pursuant to the TRFRA, Hensley also sought Declarations 1, 2, 3, a nd 4 under the UDJA. The trial court d i smisse d these claims for lack of juris diction on several grounds, including th at they were barred b y sove reign immunity. Because it is dispositive, we first con sider whether th e trial court correctly conclu ded that Hensley ’ s UDJA claims were barred by so v ereign immu nity. The UDJA provides tha t “ [a] person . . . whose rights , st atu s, or other legal rel ations are affected by a statute

. . . m ay have de termined any qu estion of construction or validity arising und er the . . . statute . . . and may obtain a d e claration of righ ts, status, or other legal re lati ons thereunder. ” Id. § 3 7.004(a). The13

Texas Sup reme Co urt has explained that “ the UDJA does not e nlarg e the trial court ’ s jurisdiction bu t is ‘ merely a procedural devi ce for deci di n g cases already within a court ’ s jurisdiction. ’ ” Texas Dep ’ t of Transp. v. Se fzik , 355 S.W.3d 618, 621

- 22 (Tex. 2011) (pe r curiam ) (quo ting
Tex as Parks & Wildlife Dep ’ t v. Sawyer Tr

. , 354 S.W.3d 384, 388 (Tex. 201 1)). Accordingly, the UDJA “ is not a g e neral waiver of sovereign immunity. ” Sawyer Tr

. , 354 S.W.3d at 388.
Instea d, the UDJA only “ waives sovereign immunity in p articu lar cases. ” Sefzik , 355 S.W.3d
at 622. “ For example, the state may be a proper par ty to a declaratory judgment action tha t challenges the v a lidity of a statute. ” Id. How ever, “ the UDJA does not wa iv e the state ’ s

sovere ign immunity when the plaint iff seeks a declaration of h is or her righ ts under a statute or other law. ” Id . at 621. On appeal, Hensley does not challenge t h e t r ial court ’ s dismiss al of h er
requ est for Declarations 1, 2, or 3. Ins tead , she asserts only that the UDJA waives sovereig n immunit y for her requ es t for Declaration 4 that “ t he Commission ’ s interpre tation of Cano n 4A vi olates article 1, section 8 of the Texas Constit uti on. ” Hen sley m aintains that this constitute s a cha l lenge to the validity of Canon 4A for which the UDJA pro vides a w aiver of immunity. See Town of Shady Sh ore s , 590 S.W.3d at 552 (holding that UDJA provides “ only limited waiver for challenges to the validity of an ordin ance or statute ” ). Hensley asserts that, although Canon 4A is not a st atute, supreme court precedent in Patel v. Texas De p artment of L icensing &
R egulation , 469 S.W.3d 69 (Tex. 2015) , support s the concl u sion that the UD JA waives sovereign immunity for a claim challenging a Canon of the Code of Judi cial Conduct. Hensley asserts that

“ Patel holds that the UDJA all ows li tiga nts to sue government en tities when challe ng ing the validity of agency regulations , even tho ugh agency rules are not mentioned in section 37.006(b) ” and that “ t here is no basis for exc luding claims that challenge the validity of a judici al canon f ro m the UDJA ’ s waiver of immunity

. ”14 I n Patel , in the context o f evaluati ng whether the plai n tiff s had alleged an ultr a vires cl aim , the court held that “ because the [p laintiffs] challenge the validity of the cosmetology statutes and re gulations , rather than compla ining that officials il legally acted or f ailed to act, the ultra vire s exception do e s not apply

. ” Id. a t 77. We do n ot believe t hat this constitute s a holdin g
t hat the UDJA waives i mmunity for challenges to agency regul ations

. In fac t, challenge s to
agency ru les and regulatio ns are properly br ought as a rule challenge under Texas Gove r nment Code section 200 1.038 , and courts routinely dismiss chal lenges to age ncy rules brought under the UDJA instead of under section 2001.03 8. See Tex. Gov ’ t Code § 2001.0 38 (validity or applica bility of rule ma y be determined in action for declaratory j udgment under Administrative Procedure Act) ; see also Pat e l , 469 S. W.3d at 78 ( stat ing that “ [ u] nder the redundant remedies doctrine, courts wil l not ent ertain an action brought under the UDJA whe n the same claim could be pursu ed through different cha nnels ” and t h at focus of doctrine is “ whether the Legislature created a statutory waiver of sovereign immunity that permits the parties to r aise the i r claims through some avenue other than the UDJA ” ) ; id

. at 79 ( “ When a plaintiff fi les a proceeding that only challe nges the v alidity of an administr ative rule, the parties are bound by the APA and may not seek relief under the U DJA because such relief woul d be red undant

. ” )

. In Patel , the supreme
court con cluded that the trial court ha d jurisdiction over the plaintiffs ’ claims under the UDJA because they challenged the constitutionality of a statute , along with rules promulgated pursuant to that statute. I

d. a t 80

. H er e, Hensley ’ s UDJA claim does no t purp ort to challenge any statute ; she challenges only the validi ty of Canon 4A

. Moreover, even if Patel could be read to stand for the proposition that the UDJA waives immunity for a challenge to an agency r e gula tio n, as a n intermediate appellate court we wi ll not expand any su ch waiver t o include challenges to Canons of the Texas Code of Judicial Conduc t. See Anderson v. Archer , 490 S.W.3d 175, 177 (Te x.15

App.

— Austin 2016) ( declining to recognize cause of ac tion for tortious interferen ce with
in her itance and o bservi ng that “ [w] e must, in short, follow the existing law rather than c ha nge it, and we have adhe r ed to that basic limiting principle in a v ariet y of contexts ” ) , aff ’ d , Archer v. Anderson , 556 S.W.3d 2 28, 2 29 (Tex. 2018) (holding that ther e is no cause of action in Texas for intentional interference with inheritance) ; Texas Dep ’ t of Pub. Safety v. Cox Tex. Newspapers,
L.P. , 287 S.W.3d 390, 3 94

- 95, 398 (Tex. App.

— Austin 2009) (declining to recognize prop osed jud icial expan sion of common

- law or constituti onal privacy excep tions to manda tory disclosure under Pu blic Information Act), rev ’ d on other g rou nds , 343 S.W.3d 112, 120 (Tex. 2011) (Texas Supreme Court ultimately adopting proposed expansion). 4

Becau se so ver e ign immunity bars Hensley ’ s claim s for dec laratory relief under th e UDJ A, the t rial court pr operly di smissed them.

Ultra Vi res Claims Sovereign immunity does not bar claims alleg ing that state officials acted ultra vires, or w ithout legal autho rity, in carrying out their duties. See Houston Be lt & Termi nal Ry.
Co. v

. City o

f Houston , 487 S.W.3d 154, 158 n.1 (Tex. 2016) ( “ [W]hen a govern m ental offic er is sue d for allegedly ultra vires acts, go vernmental immunity does not apply from the outset. ” )

. An ult ra vires action requires a plaintiff to “ al lege, and ultimately pro ve, that the officer acted without legal authority or fai led to perfor m a purely ministerial act. ” City o f E l Pa so v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009). The Texa s Supreme Cour t cl arified what it mea ns for an

4 We also note that, rather than challenging the va lidity of Canon 4A, Hensley is actually ch allengin g the Commission ’ s ac tions under its ow n inter pretation of the Canon . The UDJA does not provide a wa iver for challenges to an agency ’ s interpretation of rules it is charged with enforcing or appl y ing. Comp laints tha t the Commission misinterpreted or misap plied the Canons are properly brough t through the availab le appeal process tha t Hensley declined to pursu e.16

official to ac t “ without legal authori ty. ” See Houston Belt & Terminal Ry. Co. , 487 S.W. 3d at 158 . The court said that “ a government officer with some discr etion to interpret and apply a law
may nonetheless act ‘ witho ut l egal authority , ’ and thus ultra vires , if he ex ceeds the bound s of his gra nted authority or if his acts conf lict with th e law it self. ” Id

. “ [ U ] ltra vires suit s do not attempt to exert control o ver the state

— they attempt to reass er t the control o f the sta te. ” Heinrich , 284 S.W.3d at 372. To reassert such control , an ultra vires suit must lie against the

“ alle ge dly responsib le government actor in his offici al c apacity

. ” Patel , 469 S.W.3d at 76. Therefore , an ultr a vires claim against the Officials mus t compla in of conduct taken pursuan t to their aut ho rity: the ir duty to d etermine whe ther Hensley ’ s conduct c ontravened judicial canons and whether that conduc t was , as she asserted, nevertheless protected by the TRFRA.

An ultra vires claim against the Of fi cials in the present case , therefore, must be bas ed on the assertion that the Officials acted without leg al authority when they reject ed her defense under t he TRFRA that publ icly reprimanding her for her conduct would substantially burden her free exerci se of re ligion. See Tex. Gov ’ t Code § 110.004 (per son whose free exercise of r eligion has been sub st antially burdened in violation o f Section 110.003 or 110. 031 may assert that violation as defense in administrative proceeding). Th e dispositive issue, th en , is w hether the Commiss ion ’ s alleged mis take of law constituted an ultra vires act. The Texas S upreme Court has explained th at, when considering w hether a legal mistake is an ultra vires act, “ it is the
mi sta ke ’ s impact on the official ’ s authority that c arries dispositive weigh t. ” Hall v. McRaven , 508 S.W.3d 232, 241 (Tex. 2017)

. The court explain ed that a n official ’ s mistake in inter preting his enabli ng authority can gi ve rise to an ultra vires claim because it results in a misinterpre tation of the b ou nds of his own authority

. Id. at 24 1

- 4 2 . In Hal l , the court concluded that the official ’ s all eg ed misinterpretation of federal privacy law , a l aw “ collate ral to [the official ’ s] authority , ”17

did not give rise to an u ltra vires cla im because that federal p rivacy law did not “ supp l[y] the parameters of [h is ] autho rity. ” Id. at 242. The court held that “ [ i]n order to act without legal authority in carrying o u t a duty to interpre t and apply the law, [an official] must have exercised discretion “ withou t ref

er ence t o or in conflict w ith the co nstra ints of th e law authorizing [him] to

act
. ” Id. (emphasis adde d).

Informed by the court ’ s explanation in Hall , Hens ley must have a lleged, and ultimately prove, that the Officials exercised their discretion in conf li ct wit h the constraints of the law authorizing th em t o act. Without that showing, Hens ley “ woul d simply have no ba sis for ‘ reassert [ing] control of the sta te. ’ ” Id. ( quoting Heinrich , 284 S.W.3d at 372 ). Here, the Officials car rie d out their dut y to d et ermine whether Hensley ’ s conduct vi olated Canon 4 A and whether punishing that conduct with a Public Reprimand would sub st antially burden her free exercise of religion

. Their discretion in making those determinations was otherwise

uncon strained. C

f. Ho ust on Be lt & Terminal Ry. Co

. , 4 87 S.W.3d at 159 (o fficial ’ s neglec ting what he was required to consider in making perm eab ility determi nation rendered it

— right or
wrong

—ultra vi res). As the supreme court explained in Hall :

When the ultimate and unrest rai ned objec ti ve of an off icial ’ s duty is to inte rpret collateral law, a misinterpre tation is not overst epping such authority; it is a compliant action even if ultimately erroneous. Our inter mediate courts o f appeals have repeatedly stated that it is not an ultra vir es act for an official or agency to m ake an erroneous decision whi le staying within its authority

. Indeed, an ult ra vires doctrine that re quires nothing more than an id entifiable mistake would not be a narrow exception to immunity : it would swall ow immuni ty. [] As im portant as a mistake ma y be, sovereign immunity comes with a price ; it often all ows the

“ improvid ent actions ” of the gov ernment to go un redressed. Only wh en t hese improvident actions are una uthorized does an official shed the c loak of the so vereign and ac t ultra vires

.
Hall , 50 8 S.W. 3d at 242 (citations om itted).18 The Officials

— whether right or wro ng

— were not acting without legal authority
i n making the ir determinations regarding Hensley ’ s conduct. 5 Mo reover , the Commissioner ’ s det erminatio ns did not con s titute vio lations of “ a pure ly mi nisterial duty. ” See i d. at 243 ( “ Perhaps it goes without sayin g , but if an offic ial ’ s duty is discretionary , it i s not also nondiscretionary. ” ). Because Hens ley failed to meet either of the bas es for es ta b l ishing an ult ra vires claim agains t the Of ficials , the trial court proper ly dismissed her ultra vires clai ms for lack of jurisdiction.

CONCLUSION

Because the trial c ourt lacked jurisdict ion to con sider Hensl ey ’ s claims under the
TRFRA and the UDJA, an d because Hensl ey failed to establish ultra vires claims ag ainst the Of ficials , the court did not err i n granting the plea to the ju ris diction and di smissing the case. A ccordingly, we affirm the tr ial court ’ s judgment.

_____________________ ________________ _____ Thomas J. Baker , Justice Before Justices Goodwin, Bak er, and Smith Concurring Opini on by Justice Goodwin Affirmed Filed: Novemb er 3, 202 2

5 We ne ed not, and do not, express any opinion on the correctness of the Commission ’ s dete rminations.