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.

Appellees, 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 DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-004319, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

O P I N I O N 

Gerard Matzen appeals the portion of a district court’s order granting in part 

Appellees’ plea to the jurisdiction in the underlying cause involving his civil commitment under 

the sexually violent predator (SVP) statute. See Tex. Health & Safety Code §§ 841.001-.153. 

The Texas Civil Commitment Office (TCCO) and its Director Marsha McLane filed a crossappeal as to the portion of the order denying in part their plea. In five issues, Matzen contends 

that: the district court erred by ruling on Appellees’ plea to the jurisdiction after he filed his third 

amended petition; sovereign immunity did not bar his Administrative Procedure Act (APA), see

Tex. Gov’t Code §§ 2001.001-.903, ultra vires, and statutory- and constitutional-violation 

claims; and McLane was not entitled to qualified immunity.
2

On cross-appeal, Appellees challenge the denial of their plea as to Matzen’s 

procedural due process and takings claims. We will affirm the district court’s order.

BACKGROUND

Matzen’s complaints arise in the context of the 2015 legislative changes to the 

SVP Act in chapter 841 of the Health and Safety Code, which we address briefly. See id. The 

SVP Act sets forth the civil-commitment procedure providing long-term supervision and

treatment for SVPs who have behavioral abnormalities that are not amenable to traditional 

mental-health treatment and that increase the SVPs’ likelihood of recidivism. See id.; Stevenson 

v. State, 499 S.W.3d 842, 844 (Tex. Crim. App. 2016); Texas Civil Commitment Office v. 

Hartshorn, 550 S.W.3d 319, 321 (Tex. App.—Austin 2018, no pet.). The SVP Act establishes a 

framework for the civil-commitment process, encompassing a person’s initial assessment as an 

SVP, trial, commitment, biennial review of the person’s commitment, any modifications to the 

person’s housing or supervision during commitment, and any petitions to the court for the 

person’s release. Hartshorn, 550 S.W.3d at 321; see Tex. Health & Safety Code §§ 841.001-

.153. A person civilly committed under the SVP Act must reside at a particular location, remain 

in Texas unless given permission to leave, be fitted with satellite-monitoring equipment, and 

comply with “a host of restrictions on his activities.” In re Commitment of Fisher, 164 S.W.3d 

637, 648 (Tex. 2005); Hartshorn, 550 S.W.3d at 329.

Statutory changes to SVP program in 2015

The Legislature amended several aspects of the SVP Act in 2015. See Act of May 

21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Gen. Laws 2701, 2701-12 (codified at Tex. Health

& Safety Code §§ 841.001-.153). These amendments included renaming the former “Office of 
3

Violent Sex Offender Management” as the “Texas Civil Commitment Office” and establishing 

that TCCO would be governed by a five-member board. Tex. Gov’t Code § 420A.002(b). 

Further, the Legislature replaced the “outpatient treatment and supervision” model with a tieredtreatment program providing for both inpatient and outpatient treatment. Tex. Health & Safety 

Code § 841.0831; see In re State, 556 S.W.3d 821, 823-24 (Tex. 2018) (summarizing 

amendments to SVP Act). The Legislature directed TCCO to develop the tiered program for the 

supervision and treatment of a committed person, providing “for the seamless transition of a 

committed person from a total confinement facility to less restrictive housing and supervision 

and eventually to release from civil commitment, based on the person’s behavior and progress in 

treatment.” Tex. Health & Safety Code § 841.0831.

As part of the tiered program, TCCO is to designate an intake and orientation 

facility for committed persons on their release from a secure correctional facility. Id. 

§ 841.0832(b). The Legislature tasked TCCO with operating or contracting with a vendor to 

operate one or more facilities for housing committed persons. Id. § 841.0832(a). The 

Legislature also allowed a person to progress to less-restrictive housing and supervision if a court 

“determines that the transfer is in the best interests of the person and conditions can be imposed 

that adequately protect the community.” Id. § 841.0834; see In re State, 556 S.W.3d at 824 

(noting that amended SVP Act “enumerates a procedure for a committed person’s movement 

between program tiers, both from more restrictive to less restrictive and vice versa”); see also

Richards v. Taylor, No. H-13-1394, 2015 U.S. Dist. LEXIS 121659, at *7 n.20 (S.D. Tex. Sept. 

11, 2015) (noting that “the possibility of outpatient treatment is not forbidden by the amended 

SVP Act, but such treatment, if provided, would be simply one stage in a progressive treatment 

process”).
4

Another amendment to the SVP Act requires a civilly committed person who is 

not indigent to make a monthly payment of an “amount that the office determines will be 

necessary” to defray the costs of providing the person’s housing and treatment. Tex. Health & 

Safety Code § 841.084. That payment was added to the existing statutory requirement that a 

civilly committed person contribute to the cost of a tracking service. Id. § 841.084(a)(1)(B).

TCCO adopted a rule implementing these statutory requirements of payment to defray costs for 

housing, treatment, and a tracking service. 37 Tex. Admin. Code § 810.273 (2018) (Tex. Civil 

Commitment Office, Cost of Housing, Treatment, and Tracking Service). TCCO also adopted 

rules defining “income” and “indigent.” Id. § 810.122(5), (6) (2019) (Tex. Civil Commitment 

Office, Definitions).

Finally, the 2015 amendments to the SVP Act provided a procedure for modifying 

any previously imposed civil-commitment requirements that differed from the 2015 amendments 

to conform to the legislative changes. See 2015 Tex. Gen. Laws 2701, 2711-12 (“If a civil 

commitment requirement imposed under Chapter 841, Health and Safety Code, before the 

effective date of this Act differs from any of the civil commitment requirements listed in Section 

841.082, Health and Safety Code, as amended by this Act, the applicable court with jurisdiction 

over the committed person shall, after notice and hearing, modify the requirement imposed as 

applicable to conform to that section.”); In re State, 556 S.W.3d at 824; Hartshorn, 550 S.W.3d 

at 326.

Matzen’s suit

Matzen was adjudicated an SVP and civilly committed in 2014. The last biennial 

review referenced in this record determined that Matzen’s “behavioral abnormality, which causes 

him to engage in predatory acts of sexual violence, was still present.” In 2015, the district court 
5

that civilly committed Matzen signed an order conforming his civil commitment to the most 

recent legislative changes and placing Matzen in the tiered-treatment program pursuant to section 

841.0831 of the Texas Health and Safety Code. The same day, the court signed an amended 

order of civil commitment for Matzen that, among other things, ordered him to comply with all 

requirements and rules imposed by TCCO.

Matzen resides at the Texas Civil Commitment Center (TCCC). It is operated by 

Correct Care Recovery Solutions (Correct Care) under a contract with TCCO. Matzen sued 

Appellees, challenging the validity of various agency rules because they were adopted by 

TCCO’s board rather than TCCO itself and alleging that a portion of Matzen’s work-program 

income had been “misappropriat[ed]” as restitution to the State. Matzen pled claims under the 

APA and the Texas Debt Collection Practices Act. He also pled violations of the prohibitions 

against creation of a “debtor’s prison,” unlawful search and seizure of his financial information, 

and taking of private property—his work-program pay—without due process. Matzen sought 

damages and injunctive and mandamus relief for his claims. He later amended his petition to 

request several declarations under the Uniform Declaratory Judgments Act (UDJA). See Tex. 

Civ. Prac. & Rem. Code §§ 37.001-.011.

In response, Appellees filed a plea to the jurisdiction. Matzen then filed a second 

amended petition, adding allegations that McLane committed ultra vires acts by administering 

the rules that TCCO’s board promulgated—rather than rules being adopted by McLane herself—

and that she and Correct Care violated his peaceable-assembly and free-speech rights by 

“denying [him] the right to meet with the media.” Matzen followed that filing with his 

“Opposition” to the plea. Appellees then filed a plea to the jurisdiction responsive to Matzen’s 

second amended petition and attached evidence, including a sample of the cost-recovery 
6

worksheet for calculation of the amount payable to TCCO that was blank. Matzen responded 

with his “Opposition” to that plea and then a “Corrected Opposition,” also attaching evidence 

supporting the allegations set forth in his petition and his completed cost-recovery worksheet

dated May 4, 2018.

1

The district court heard argument on Appellees’ plea responsive to Matzen’s 

second amended petition. While the plea was under advisement, Matzen filed a third amended 

petition alleging that he is a third-party beneficiary of the contract between TCCO and Correct 

Care and that Correct Care breached the contract to his detriment. The district court granted

Appellees’ plea in part and dismissed Matzen’s APA, ultra vires, Debt Collection Practices Act, 

“debtor’s prison,” and unlawful-search-and-seizure claims. However, the district court denied 

the plea in part as to Matzen’s procedural due process and takings claims.

2 Matzen’s appeal and 

Appellees’ cross-appeal followed.

DISCUSSION

Standard of review

A plea to the jurisdiction challenges the court’s authority to decide a case. 

Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012) (citing Bland Indep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 555 (Tex. 2000)). The burden is on the plaintiff to affirmatively 

demonstrate the trial court’s jurisdiction. Id. (citing Texas Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 226 (Tex. 2004)). Because subject-matter jurisdiction is a question of law, we 

1 Appellees filed a motion to strike certain exhibits that Matzen attached to his 

“Corrected Opposition,” but no ruling on the motion appears in the record.

2 Matzen’s claims against Correct Care remain pending in district court. Correct Care is 

not a party to this appeal.
7

review de novo a trial court’s ruling on a plea to the jurisdiction. Houston Belt & Terminal Ry. 

Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). In assessing a plea to the jurisdiction, 

we begin by considering the plaintiff’s live pleadings and determine whether the facts alleged 

affirmatively demonstrate that jurisdiction exists. Heckman, 369 S.W.3d at 150 (citing Miranda, 

133 S.W.3d at 226). Mere unsupported legal conclusions do not suffice. Texas Dep’t of State 

Health Servs. v. Balquinta, 429 S.W.3d 726, 737-38 (Tex. App.—Austin 2014, pet. dism’d); see

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting analogous principle in federal courts as to 

dismissal of constitutional complaints for failure to state claim: “the tenet that a court must 

accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions”). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we 

may also consider evidence submitted to the trial court, and we must do so when necessary to 

resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227; Bland, 34 S.W.3d at 555.

“[T]he jurisdictional inquiry may unavoidably implicate the underlying substantive merits of the 

case when, as often happens in ultra vires claims, the jurisdictional inquiry and the merits 

inquiry are intertwined.” Chambers—Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 

345 (Tex. 2019) (citing Miranda, 133 S.W.3d at 228) (italics in original).

If the plaintiff’s pleadings lack sufficient facts to affirmatively demonstrate the 

trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the 

issue is one of pleading sufficiency, and the plaintiff should be afforded an opportunity to

amend. Miranda, 133 S.W.3d at 226-27. But if the plaintiff’s pleadings affirmatively negate the 

existence of jurisdiction—for instance, by seeking to recover monetary damages from a state 

agency and a state official under circumstances in which immunity has not been waived—the 

trial court may grant a plea to the jurisdiction without allowing the plaintiff an opportunity to 
8

amend. See id.; Milton v. Texas State Dental Bd. of Exam’rs, No. 03-14-00346-CV, 2014 Tex. 

App. LEXIS 13825, at *4 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op.).

I. Matzen’s appeal

First issue: Ruling on plea after Matzen filed third amended petition

In his first issue, Matzen contends that the district court erred by ruling on 

Appellees’ plea to the jurisdiction after he filed his third amended petition. Matzen states that 

his third amended petition supplanted his second amended petition, that “the second amended 

petition was no longer part of the record” when the district court ruled, and that granting a plea to 

the jurisdiction addressed to the second amended petition was error.

When a party files an amended pleading after a hearing has been held on the plea 

but before the trial court’s ruling, and the court’s order reflects that it reviewed the parties’ 

pleadings, the amended pleadings are considered the live pleadings before the trial court when it 

ruled on the plea. City of McKinney v. Hank’s Rest. Grp., 412 S.W.3d 102, 110 (Tex. App.—

Dallas 2013, no pet.); see also Church v. City of Alvin, No. 01-13-00865-CV, 2015 Tex. App. 

LEXIS 10114, at *11 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, no pet.) (mem. op.). Here, 

the district court’s order on the plea to the jurisdiction states that it considered the parties’ 

pleadings and that the district court declined to rule on claims pled in Matzen’s second amended 

petition but omitted from his third amended petition. Thus, the third amended petition was 

Matzen’s live pleading before the district court when it ruled. See Hank’s Rest. Grp., 412 

S.W.3d at 110; Church, 2015 Tex. App. LEXIS 10114, at *11. 
9

Matzen’s third amended petition included claims against TCCO and McLane that 

overlapped those in his second amended petition. His live pleading also made allegations—such 

as the Board’s lack of rulemaking authority, McLane’s exclusive rulemaking authority, 

McLane’s ministerial duties, and the preclusive effect of his original commitment order—

addressed by the plea to the jurisdiction pending before the district court. It was proper for the 

district court to consider whether Matzen’s pleadings affirmatively demonstrated the court’s lack 

of jurisdiction, as Appellees’ plea contended, regardless of whether Appellees amended or 

supplemented their plea in response to Matzen’s most recently amended petition. See Gulf Coast 

Waste Disposal Auth. v. Four Seasons Equip., Inc., 321 S.W.3d 168, 172, 177-78 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (reversing order denying defendant’s plea to jurisdiction, 

although defendant did not amend or supplement its plea to address breach-of-contract claim 

alleging waiver-by-conduct and third-party-beneficiary theories in plaintiff’s supplemental 

petition, because plaintiff sought damages in excess of trial court’s jurisdictional limit); see also

Milton, 2014 Tex. App. LEXIS 13825, at *3-4 (“[Plaintiff]’s pleadings affirmatively negate the 

existence of jurisdiction by seeking to recover monetary damages from a state agency and a state 

official under circumstances in which immunity has not been waived. Thus, the trial court could 

properly grant a plea to the jurisdiction on that claim without allowing [plaintiff] an opportunity 

to amend.”).

On this record, Matzen has not shown that the district court erred by ruling on 

Appellees’ plea to the jurisdiction after he filed his third amended petition. Accordingly, we 

overrule Matzen’s first issue.
10

Second issue: Matzen’s APA claims

In his second issue, Matzen contends that his APA claims are not barred by 

sovereign immunity. He alleges that “all proclamations found in Title 37 Texas Administrative 

Code Chapter 810”—the rules addressing SVP civil commitment—“are invalid because they 

were adopted and/or amended by the Board,” “an entity with no rulemaking authority.” See

generally 37 Tex. Admin. Code §§ 810.121-.283 (2017) (Tex. Civil Commitment Office, Civil 

Commitment). Matzen further alleges that McLane was responsible for promulgating TCCO’s 

rules. Matzen’s APA cause of action is set forth in his second and third amended petitions in 

nearly identical terms, except that his third amended petition requested declarations as to the 

invalidity of the rules based on their enactment by the governing Board.

The Legislature provided that TCCO is “governed by a board composed of five 

members appointed by the governor,” serving staggered six-year terms. Tex. Gov’t Code

§ 420A.002(b)-(c). The Legislature was aware that TCCO—like its predecessor agency, the 

Office of Violent Sex Offender Management—functions through its governing board. See Act of 

May 19, 2011, 84th Leg., R.S., ch. 1201, § 19(b), 2011 Tex. Gen. Laws 3197, 3204 (requiring 

that transfer of “all functions relating to the sex offender civil commitment program” to TCCO’s 

predecessor agency occur after all members of its governing board had qualified for office); see 

also Dallas Cty. Flood Control Dist. No. 1 v. Cross, 815 S.W.2d 271, 278 (Tex. App.—Dallas 

1991, writ denied) (noting governing board’s involvement in policy decisions “[l]ike any 

governing body of a public agency”); 1 Ronald L. Beal, Texas Administrative Practice and 

Procedure § 8.3.2[a], at 8-27 (2019) (noting that “[a]n agency board is charged with the ultimate 

responsibility of enforcing its legislative mandate”). Among the governing board’s functions for 

TCCO is the adoption of rules consistent with the purposes of chapter 841 of the Health and 
11

Safety Code concerning the civil commitment of SVPs. See Tex. Health & Safety Code 

§ 841.141(a) (“The office by rule shall administer this chapter. Rules adopted by the office 

under this section must be consistent with the purposes of this chapter.”).

Because TCCO functions through its governing board and because Matzen’s APA 

cause of action is based on an incorrect theory that the administrative rules in Chapter 810 of the 

Texas Administrative Code were invalid because TCCO’s board enacted them, we overrule his 

second issue.

Third issue: Matzen’s ultra vires claims

In his third issue, Matzen contends that his ultra vires claims against McLane 

were not barred by sovereign immunity. He reiterates his contention that TCCO’s board lacked 

authority to promulgate rules for the agency. Matzen contends specifically that McLane acted 

outside the scope of her legal authority by: 

(1) adopting a rule that defines indigence for the purpose of collecting “cost 

recovery fees”; 

(2) extorting “cost recovery fees” from [Matzen], who had been declared 

indigent for purposes of Chapter 841; 

(3) extorting “cost recovery fees” from [Matzen] in violation of the Judgment

ordering [him] into Chapter 841 commitment; 

(4) extorting “cost recovery fees” from [Matzen] in violation of the 

Constitutional prohibition on retroactive laws; 

(5) extorting “cost recovery fees” from [Matzen] without his having been 

ordered to pay such fees after a “civil commitment proceeding”; 

(6) extorting “cost recovery fees” of 33% of income from each and every 

resident of TCCC without individual assessment of their ability to pay; 
12

(7) extorting “cost recovery fees” from [Matzen] in violation of Texas Gov’t 

Code Chapter 2107; 

(8) extorting “cost recovery fees” from [Matzen] in violation of Texas Finance 

Code Section 392.301; 

(9) compelling [Matzen] to participate in inpatient treatment;

(10) denying [Matzen] his Constitutional right to freedom of speech; 

(11) denying [Matzen] his Constitutional right to peaceably assemble with 

persons other than his victims;

(12) administering Chapter 841 with policies and procedures, adopted, discarded 

and/or changed as McLane and TCCO deem convenient; and

(13) granting Correct Care the authority to punish [Matzen] for violation of 

Correct Care rules.

Ultra vires acts—i.e., acts taken without authority—are not considered acts of the 

state. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). “[A] government officer with some 

discretion to interpret and apply a law may nonetheless act ‘without legal authority,’ and thus 

ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict with the law 

itself.” Id. (quoting Houston Belt, 487 S.W.3d at 158). An ultra vires claim requires a plaintiff 

to “allege, and ultimately prove, that the officer acted without legal authority or failed to perform 

a purely ministerial act.” Id. (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 

2009)). “If the plaintiff alleges only facts demonstrating acts within the officer’s legal authority 

and discretion, the claim seeks to control state action, and is barred by sovereign immunity.”

LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 126 (Tex. 

App.—Austin 2017, pet. denied). 
13

Ministerial acts are those “where the law prescribes and defines the duties to be 

performed with such precision and certainty as to leave nothing to the exercise of discretion or 

judgment.” Hall, 508 S.W.3d at 238 (quoting Southwestern Bell Tel., L.P. v. Emmett, 459 

S.W.3d 578, 587 (Tex. 2015)). Discretionary acts, by contrast, require the exercise of judgment 

and personal deliberation. Emmett, 459 S.W.3d at 587.

As examined below, all of the allegations Matzen pled as ultra vires claims were 

either within McLane’s discretionary authority, authorized by statutes or administrative rules, or 

have no application in this context. In such circumstances, there is no waiver of sovereign 

immunity and the district court properly granted the plea without affording Matzen further 

opportunity to amend. See Miranda, 133 S.W.3d at 226-27; Milton, 2014 Tex. App. LEXIS 

13825, at *4 (noting that because claimant sought to recover monetary damages from state 

agency and state official under circumstances in which their immunity had not been waived, trial 

court could grant plea to jurisdiction without allowing claimant opportunity to amend).

1. Cost-recovery-rule allegations

Matzen’s allegations numbered 1 through 6 and 12 are complaints about 

administrative rules defining indigence and implementing the cost-recovery statute that requires 

monthly payments defraying the costs of a civilly committed person’s housing, treatment, and 

tracking service. 

a. TCCO board’s adoption of cost-recovery rules

Because the governing board adopted the rules instead of McLane, Matzen pled 

that McLane failed to administer the SVP Act in chapter 841 by rule, see Tex. Health & Safety 

Code § 841.141(a) (conferring on TCCO power to administer by rule statutes in chapter 841 of 
14

Health and Safety Code concerning civil commitment of SVPs), thereby rendering her actions 

ultra vires. We have already rejected Matzen’s theory that the rules in Chapter 810 of the Texas 

Administrative Code were not “validly adopted” because TCCO’s board enacted them. Matzen 

cites no authority showing that McLane herself had a ministerial duty to adopt rules by a 

specified deadline on any particular subject. See Hall, 508 S.W.3d at 238 (noting that ministerial 

duties are those that law requires to be performed “with such precision and certainty as to leave 

nothing to the exercise of discretion or judgment”).

b. Obligation to defray costs of housing, treatment, and tracking service

Further, as to the authorization for the cost-recovery rules that TCCO’s board 

adopted, we have noted that the SVP Act requires a civilly committed person who is not indigent 

to make a monthly payment of an “amount that the office determines will be necessary” to defray 

the costs of providing the person’s housing, treatment, and tracking service. Tex. Health & 

Safety Code § 841.084. Matzen contends that the judgment adjudicating him an SVP imposes 

on the State the obligation to pay for his treatment and supervision. But as the SVP Act clarifies, 

the provisions of section 841.084 requiring a civilly committed person to defray the costs of

providing the person’s housing, treatment, and tracking service apply “notwithstanding” another 

part of the Act reciting that the State pays reasonable costs of a person’s treatment and 

supervision. See id. §§ 841.084(a) (“Notwithstanding Section 841.146(c) [providing that State 

shall pay reasonable costs of person’s treatment and supervision], a civilly committed person 

who is not indigent: (1) is responsible for the cost of: (A) housing and treatment provided under 

this chapter; (B) the tracking service required by Section 841.082; and (C) repairs to or 

replacement of the tracking equipment required by Section 841.082, if the person intentionally 
15

caused the damage to or loss of the equipment, as determined by the office; and (2) shall pay to 

the office: (A) a monthly amount that the office determines will be necessary to defray the cost 

of providing the housing, treatment, and service with respect to the person; and (B) as directed 

by the office, any amount for which the person is responsible under Subdivision (1)(C).”), 

841.146(c). Because section 841.084 of the SVP Act imposes an obligation to defray the costs 

of providing a committed person’s housing, treatment, and tracking service, Matzen’s contention 

that the State was required to pay for those costs is incorrect and is not a proper basis for an ultra 

vires claim against McLane.

c. Indigency status and order to pay cost-recovery fees

In allegation 6, Matzen cites no authority, and we have found none, supporting his

contention that his indigency status when he was civilly committed under the SVP Act in 2014 

permanently established his future indigency. Cf. Tex. R. App. P. 20.1(b)(3) (recognizing that 

party’s financial circumstances on appeal may have materially changed for purposes of 

determining party’s status as indigent); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 

2010) (noting that indigency determinations are made on case-by-case basis when issue is raised 

and that “[a] defendant can be found indigent for one purpose without being found indigent for 

the other”). As TCCO notes, Matzen was found not indigent for appeal of his civil commitment. 

See In re Commitment of Matzen, No. 09-14-00115-CV, 2014 Tex. App. LEXIS 11438, at *1 

(Tex. App.—Beaumont Oct. 16, 2014, no pet.) (mem. op.) (noting that trial court sustained 

contest to Matzen’s affidavit of indigence after he disclosed that he had $15,000 in his inmate 

trust fund).
16

Relatedly, Matzen complains that McLane is obtaining cost-recovery fees from 

him without his having been ordered to pay such fees after a “civil commitment proceeding.” 

But the record reflects that the district court issued an amended order conforming Matzen’s civil 

commitment to the most recent legislative changes, necessarily including the contribution toward 

cost-recovery fees, as required by the SVP Act. Transition provisions in section 40(b) of the 

session law for the 2015 amendments to the SVP Act specify that the court with jurisdiction over 

the committed person must modify any previously imposed civil-commitment requirements that 

differ from the 2015 amendments to conform to the changes. 2015 Tex. Gen. Laws at 2711-12

(“If a civil commitment requirement imposed under Chapter 841, Health and Safety Code, before 

the effective date of this Act differs from any of the civil commitment requirements listed in 

Section 841.082, Health and Safety Code, as amended by this Act, the applicable court with 

jurisdiction over the committed person shall, after notice and hearing, modify the requirement 

imposed as applicable to conform to that section.”). As we have noted, in 2015 the district court 

that civilly committed Matzen signed an amended order of civil commitment ordering Matzen’s 

compliance with all requirements and rules imposed by TCCO.

Matzen also complains that the cost-recovery fees were imposed without 

individual assessment of ability to pay. However, Matzen’s pleadings show that there is such an 

assessment because he alleged that he provides his financial information to TCCO, and that 

TCCO uses that information to determine whether he—or any other resident of the Texas Civil 

Commitment Center—is indigent. Matzen has not shown that his ability-to-pay complaints 

support his ultra vires claim.
17

d. Retroactive laws

Matzen also alleges that McLane has acted outside the scope of her legal authority 

by obtaining cost-recovery fees from him in violation of the constitutional prohibition against 

retroactive laws. Similar contentions about the retroactive effect of amendments to the SVP Act

have been considered and rejected. See, e.g., In re Commitment of May, 500 S.W.3d 515, 524-26 

(Tex. App.—Beaumont 2016, pet. denied) (rejecting contention that civil-commitment judgment 

ordering outpatient treatment gave May vested right to outpatient treatment and noting that when 

May was civilly committed as SVP, “settled expectations included having the treating agency 

determine where May would reside and the sex offender treatment he would receive”); In re 

Commitment of Cortez, 405 S.W.3d 929, 931, 935-36 (Tex. App.—Beaumont 2013, no pet.) 

(concluding that person civilly committed as SVP could be ordered to reside at approved 

treatment facility notwithstanding allowance of “outpatient” sex-offender treatment in his 

original judgment of commitment). 

Further, the SVP Act provides that civil-commitment requirements may be 

modified by the committing court—as done here to conform with the requirements of the 2015 

amendments—at any time after notice to each affected party to the proceedings and a hearing. 

Tex. Health & Safety Code § 841.082(e); see In re Wilson, No. 09-16-00243-CV, 2016 Tex. 

App. LEXIS 10400, at *8-10 (Tex. App.—Beaumont Sept. 22, 2016, orig. proceeding) (rejecting 

contention that amended order applying changes to SVP statute retroactively to SVP’s case

violated prohibitions on ex post facto and retroactive laws). Matzen’s retroactivity allegations do 

not support his ultra vires claim.
18

e. Unreasonable search and seizure

Another of Matzen’s cost-recovery complaints is that McLane has enforced an 

invalid rule requiring him to reveal his “financial and/or banking records” without a court order 

in violation of the prohibitions against unreasonable searches and seizures in the Fourth 

Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution. 

Matzen further complains that TCCO failed to enact “valid rules” authorizing him to reveal his 

banking or financial information. We have rejected Matzen’s theory that the rules in Chapter 

810 of the Texas Administrative Code were not “validly adopted” because TCCO’s board 

enacted them. 

Moreover, Matzen’s pleadings acknowledge that he provides financial 

information to TCCO. Matzen completes a monthly form listing the amounts and sources of his 

income, and that information is used to determine his contribution toward his housing, treatment, 

and tracking service in compliance with the SVP Act. See Tex. Health & Safety Code 

§ 841.084; cf. Goodwin v. State, 416 S.W.3d 90, 95-96 (Tex. App.—Beaumont 2013, no pet.) 

(rejecting unreasonable search and seizure claim and noting that “[a]s a sexually violent predator 

subject to a commitment order, Goodwin does not have an expectation of privacy equal to an 

individual in society generally”). Matzen’s pleadings do not support his allegations of an 

unconstitutional search or seizure and are not a proper basis for his ultra vires claim.

For the reasons discussed in this subsection, we conclude that Matzen has not pled 

a valid ultra vires claim against McLane based on his allegations about the cost-recovery rules. 

See Hall, 508 S.W.3d at 238.
19

2. Texas Government Code Chapter 2107 allegations

Matzen’s allegation number 7 contends generally that McLane obtained costrecovery fees from him in violation of chapter 2107 of the Texas Government Code. His 

pleadings allege that she did not comply with a ministerial duty to enact rules under this statute. 

Chapter 2107 addresses the Texas Attorney General’s adoption of “uniform 

guidelines for the process by which a state agency collects delinquent obligations owed to the

agency,” an agency’s establishment of rules conforming to the Attorney General’s guidelines, 

and referral to the Attorney General of uncollected and delinquent obligations. See Tex. Gov’t 

Code §§ 2107.002-.003(a); State v. Buchanan, 572 S.W.3d 746, 748 (Tex. App.—Austin 2019, 

no pet.) (addressing attorney’s fees under chapter 2107 for Attorney General’s collection of 

delinquent sales-and-use taxes). Chapter 2107 also provides that “[u]ntil a state agency adopts 

rules under this section, the attorney general by rule may establish collection procedures for the 

agency, including the period for collecting a delinquent obligation.” Tex. Gov’t Code 

§ 2107.003(c). The statute sets no deadline for the agency’s adoption of rules conforming to the 

Attorney General’s guidelines. See generally id. §§ 2107.001-.008. 

Assuming Chapter 2107 were to apply to uncollected and delinquent costs for an 

SVP’s housing, treatment, and tracking service, the statute specifies that if the agency has not yet 

adopted rules, the Attorney General may do so for the agency. See id. § 2107.003(c). Thus, 

McLane would not have violated Chapter 2107 if she had not enacted rules under this statute. 

Because Matzen has not shown that Chapter 2107 of the Texas Government Code required 

McLane to perform certain duties “with such precision and certainty as to leave nothing to the 

exercise of discretion or judgment,” we cannot conclude that Matzen pled a valid ultra vires 

claim based on this statute. See Hall, 508 S.W.3d at 238. 
20

3. Debt Collection Practices Act allegations

Matzen’s allegation number 8 contends that McLane obtained cost-recovery fees 

from him in violation of section 392.301 of the Texas Finance Code, the Debt Collection 

Practices Act. However, that statute does not apply here because Matzen is not a “consumer” 

and because the costs he is responsible for paying are not “consumer debt.”

A “consumer” is defined in the Debt Collection Practices Act as “an individual 

who has a consumer debt,” and “consumer debt” is defined as “an obligation, or an alleged 

obligation, primarily for personal, family, or household purposes and arising from a transaction 

or alleged transaction.” Tex. Fin. Code § 392.001(1)-(2). “To be a consumer, the claimant must 

have sought or acquired goods or services by purchase or lease, and those goods or services must 

form the basis of the complaint.” Burton v. Prince, 577 S.W.3d 280, 291 (Tex. App.—Houston 

[14th Dist.] 2019, no pet.); Green v. Port of Call Homeowners Ass’n, No. 03-18-00264-CV, 

2018 Tex. App. LEXIS 6937, at *35 (Tex. App.—Austin Aug. 29, 2018, no pet.) (mem. op.) 

(concluding that “DCPA does not apply to debts that are not ‘consumer debts’”). Matzen is 

responsible for defraying the costs of his housing, treatment, and tracking service because of his 

SVP civil commitment, not because of any consumer transaction as defined in the Debt 

Collection Practices Act. Thus, the Debt Collection Practices Act in section 392.301 of the 

Finance Code is not a proper basis for pleading an ultra vires claim against McLane.

3

3 The introduction to Matzen’s brief states that the district court erred by dismissing the 

claims pled under 28 U.S.C. 2007 and Article I, section 18 of the Texas Constitution (Matzen’s 

“debtor’s prison” claims). However, Matzen waived this issue by wholly omitting any briefing 

of it. See Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise argument for 

contentions made, with appropriate citations to authorities and record).
21

4. Inpatient-treatment allegations

Matzen’s allegation number 9 contends generally that McLane has acted outside 

the scope of her legal authority by compelling him to participate in inpatient treatment. He also 

complains that he is not provided “appropriate and necessary treatment” and “coordinated 

treatment.” But Matzen has not shown that McLane’s provision of “appropriate and necessary 

treatment” or “coordinated treatment” involve duties that the law requires her to perform “with 

such precision and certainty as to leave nothing to the exercise of [her] discretion or judgment” 

and as to provide a basis for pleading a viable ultra vires claim. See Hall, 508 S.W.3d at 238.

Moreover, with regard to his inpatient-treatment complaint, Matzen’s amended 

civil-commitment order requires him to reside where instructed by TCCO and to comply with all 

of TCCO’s requirements and rules. Consistent with his amended order, Matzen’s 2014 civilcommitment order—which was incorporated into the judgment adjudicating him as an SVP—

required him to live where instructed by TCCO and to comply with treatment provided by 

TCCO. Matzen’s judgment requires his treatment to be conducted in accordance with both the 

judgment and the civil-commitment order. 

As part of his civil commitment, Matzen is subject to biennial reviews. See Tex. 

Health & Safety Code § 841.102. One function of a biennial review is to consider whether to 

modify a requirement imposed on the person under the SVP Act. In re State, 556 S.W.3d at 826

(citing Tex. Health & Safety Code § 841.102(c)(1)). When the district court ordered Matzen’s 

placement in the tiered-treatment program, it noted that as of the last biennial review, Matzen’s 

“behavioral abnormality, which causes him to engage in predatory acts of sexual violence, was 

still present.” The district court determined that Matzen’s behavior and progress in treatment 

would benefit from placement in the tiered-treatment program.
22

As we have noted, the Legislature tasked TCCO with operating or contracting 

with a vendor for the operation of one or more housing facilities for committed persons. See 

Tex. Health & Safety Code § 841.0832(a). Matzen resides and receives treatment at a facility 

operated by TCCO’s contractor, Correct Care. Matzen has not shown that McLane lacks 

discretion to require that he receive treatment there. See Hall, 508 S.W.3d at 238; see also In re 

Commitment of May, 500 S.W.3d at 524-26 (rejecting contention that civil-commitment 

judgment ordering outpatient treatment gave May vested right to outpatient treatment and noting 

that when May was civilly committed as SVP, “settled expectations included having the treating 

agency”—here, TCCO—“determine where May would reside and the sex offender treatment he 

would receive”); In re Commitment of Cortez, 405 S.W.3d at 935-36 (concluding that person 

civilly committed as SVP could be ordered to reside at treatment facility approved by TCCO’s 

predecessor agency notwithstanding his original judgment of commitment allowing “outpatient”

sex-offender treatment). Thus, Matzen’s inpatient-treatment complaint is not a proper basis for 

pleading an ultra vires claim against McLane.

5. Freedom-of-speech and peaceable-assembly allegations

Matzen’s allegations 10 and 11 contend that McLane has acted outside the scope 

of her legal authority by denying his constitutional rights to freedom of speech and to peaceably 

assemble. Matzen’s pleadings link these free-speech and peaceable-assembly claims to “the 

right to meet with the media,” but he provides no factual support for them. As to these claims, 

his petition states only that

under the United States Constitution, [Matzen] has the rights to peaceably 

assemble and free speech. [Matzen] asserts that Defendant McLane, and her 

agent CCRS, are denying [Matzen]’s rights to peaceably assemble and free speech 
23

by denying [him] the right to meet with the media. [Matzen] requests the Court to 

declare that by denying [him] the right to meet with the media, Defendant 

McLane and her agent CCRS are violating [his] rights to free speech and 

assembly and thereby acting outside the scope of Defendant McLane’s lawful 

authority.

Matzen’s brief asserts summarily that “[v]iolation of an individual’s Constitutional rights is by 

definition outside the scope of a State official’s lawful authority.” But without contextual facts

that assertion does not support his ultra vires allegations against McLane. See Balquinta, 429 

S.W.3d at 737-38 (noting that claimant must allege facts affirmatively demonstrating trial court’s 

jurisdiction to hear cause and that mere unsupported legal conclusions do not suffice); see also 

Matzen v. McLane, 764 F. App’x 402, 403 (5th Cir. 2019) (rejecting Matzen’s similar contention 

that “McLane violated his First Amendment right to associate by not allowing him to contact any 

person without first obtaining permission.”).

4

We conclude that despite his multiple amended pleadings, Matzen’s freedom-ofspeech and peaceable-assembly claims contain no factual allegations supporting an ultra vires 

claim against McLane and that the district court did not err by dismissing these ultra vires 

claims. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has been 

provided a reasonable opportunity to amend after a governmental entity files its plea to the 

4 Further, to the extent that media access implicates issues of security and monitoring, 

certain restrictions may comply with the Legislature’s instruction to TCCO to “develop 

procedures for the security and monitoring of committed persons in each programming tier.” 

Tex. Health & Safety Code § 841.0833; see Matzen v. McLane, 764 F. App’x 402, 403 (5th Cir. 

2019) (concluding that Matzen failed to show that McLane’s alleged restrictions on his 

constitutional right of association lacked reasonable relationship with state’s interests of 

rehabilitation and security); see also Bohannan v. Doe, 527 F. App’x 283, 294 (5th Cir. 2013)

(“While courts of appeals have been reluctant to articulate a specific standard applicable to

civilly committed individuals, it nevertheless seems that restrictions [on their First Amendment 

rights] are permissible so long as they advance the state’s interest in security, order, and

rehabilitation.”).
24

jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would constitute 

a waiver of immunity, then the trial court should dismiss the plaintiff’s action.”).

6. Correct Care authorization allegations

Matzen’s allegation number 13 contends that McLane has acted outside the scope 

of her legal authority by granting Correct Care the authority to punish him for violating its rules.5

Matzen contends that the judgment adjudicating him an SVP and his commitment orders do not

expressly authorize Appellees or Correct Care to punish him, whether in a disciplinary procedure 

with due process or otherwise. He specifically contends that McLane has no authority, and 

cannot authorize Correct Care, to punish residents of the Texas Civil Commitment Center where 

he lives.

However, TCCO is responsible for performing “appropriate functions” related to

the sex-offender civil-commitment program, including functions related to the provision of 

treatment and supervision to civilly committed sex offenders. Tex. Gov’t Code § 420A.010.

TCCO is authorized to contract with a vendor like Correct Care to operate facilities for civilly 

committed persons. Tex. Health & Safety Code § 841.0832. The Legislature tasked TCCO with 

“develop[ing] procedures for the security and monitoring of committed persons in each 

programming tier.” Id. § 841.0833. Under certain circumstances, security concerns at a civilcommitment center may require a properly trained “employee of the office [TCCO], or a person 

who contracts with the office or an employee of that person” to use mechanical or chemical 

restraints on a committed person residing in a civil-commitment center. Id. § 841.0838. We are 

5 Depending on the severity of the rule violations, the possible sanctions include criminal

charges, monetary restitution, community service, recommendation for tier-level review, unit 

restriction, wing restriction, and loss of privileges for up to ninety days per infraction.
25

not persuaded that McLane lacks legal authority, or cannot authorize Correct Care, to impose 

consequences for rule violations on residents of the Texas Civil Commitment Center if that 

authority is not expressly stated in an SVP adjudication or in a commitment order. We conclude 

that Matzen’s Correct Care authorization complaint was not a proper basis for pleading an ultra 

vires claim against McLane. 

For all the reasons discussed, the ultra vires allegations that Matzen pled against 

McLane fail. We overrule Matzen’s third issue.

Fourth issue: Matzen’s takings and procedural-due-process claims

In his fourth issue, Matzen contends that the district court erred when it 

“dismissed” his claims that Appellees “are violating the constitutional prohibitions against the 

taking of property and/or liberty found in Texas Constitution Article 1, sections 17 and 19 and 

the 5th Amendment to the U.S. Constitution.” But the district court denied the plea to the 

jurisdiction as to these “constitutional claims against TCCO and McLane pertaining to 

[Matzen’s] Work Program Pay.” The retention of these takings and procedural due process 

claims is the basis for Appellees’ cross-appeal here. Because this issue complains about the 

“dismissal” of claims that the district court did not order dismissed, we overrule Matzen’s fourth

issue.

Fifth issue: McLane’s entitlement to qualified immunity

In his fifth issue, Matzen contends that McLane was not entitled to qualified 

immunity as to his claims alleging that she was: (1) not performing discretionary activity; 

(2) acting outside the scope of her authority; and (3) acting in bad faith. Appellees respond that 
26

because Matzen has sued McLane only in her official capacity—and not her individual 

capacity—qualified immunity does not apply here.

“Suits against a government employee in his or her official capacity are just 

another way of pleading a suit against the government entity of which the official is an agent.”

Bexar Cty. v. Giroux-Daniel, 956 S.W.2d 692, 695 (Tex. App.—San Antonio 1997, no writ); 

Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex. 2011) (“A suit against a state 

official is merely another way of pleading an action against the entity of which [the official] is an 

agent.”); see Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007) (noting that 

official sued in his individual capacity would assert official immunity as defense to personal 

monetary liability but that official sued in his official capacity would assert sovereign immunity); 

Hill v. Trinci, No. 14-10-00862-CV, 2012 Tex. App. LEXIS 5934, at *8 (Tex. App.—Houston 

[14th Dist.] July 24, 2012, no pet.) (mem. op.) (noting that official immunity is also referred to as 

qualified immunity). Qualified immunity is not at issue when a government employee is sued 

only in employee’s official capacity. Giroux-Daniel, 956 S.W.2d at 695 (citing Simpson v. 

Hines, 903 F.2d 400, 404 (5th Cir. 1990) (noting that because police chief was sued in official 

capacity only, qualified immunity was not at issue)).

We agree with Appellees that qualified immunity is inapplicable to Matzen’s suit 

against McLane in her official capacity as Director of TCCO. Accordingly, we overrule

Matzen’s fifth issue. We proceed to consider Appellees’ cross-appeal.

II. Appellees’ cross-appeal

In their cross-appeal, Appellees challenge the denial of their plea as to Matzen’s 

procedural due process and takings claims involving his work-program pay. Appellees contend 
27

that Matzen has not stated a viable constitutional claim involving his work-program pay and that 

these claims, in addition to the others, should have been dismissed. 

In his pleading, Matzen states that his takings claim is brought “VERSUS AL[L] 

DEFENDANTS,” that TCCO and McLane failed to follow proper legal procedures, and that 

Correct Care unconstitutionally misappropriated his work program pay “without affording [him] 

procedural due process and/or due course of law pursuant to both United States and Texas 

Constitutions.” Matzen requests reimbursement of “the amount that he was unjustly and illegally 

coerced to pay” and that “TCCO be enjoined from further misappropriation of [his] property as 

part of TCCO’s efforts to recover the cost of expenses incurred for monitoring GPS tracking, 

housing and/or treatment.” In support of these claims, Matzen alleged the following facts:

During the month of January 2016 [Matzen] was verbally advised by his case 

manager that he would have to begin paying 33% of his military retirement check 

monthly to TCCO because the law required him to pay for his GPS monitoring,

housing and treatment. On or about January 13, 2016 [Matzen] was advised by 

the Clinical Director of the TCCC and the Assistant Deputy Director of TCCO 

that all residents of his dormitory at the TCCC that [sic], each month, they would 

have to pay 33% of their income to TCCO to cover the cost of their GPS 

monitoring, housing and treatment. During this same assembly, [Matzen] and the 

other residents of his dormitory were informed that failure to pay the prescribed 

33% would subject the residents to loss of privileges and/or electronic devices and 

that they would not advance in tier or go home.

On February 23, 2016 [Matzen]’s commissary request was denied because it was 

determined that [he] owed the monthly fees for the time period September 2015 

through December 2015 in the amount of $1135.48. The next day [Matzen] was 

called into his case manager’s office to attempt an on-line payment from 

[Matzen]’s bank. During the incident all of [Matzen]’s confidential banking 

information was stored on his case manager’s computer. The attempted transfer 

failed because it was an electronic transfer.

On April 14, 2016 [Matzen] met with his new case manager in another attempt to 

make an online transfer from [Matzen]’s bank to secure payment of [Matzen]’s 

September-December 2015 GPS monitoring, housing, and treatment arrears. 
28

Using a different method of payment, [Matzen] and his case manager succeeded 

in transferring $1135.48 to TCCO.

Matzen also alleged that packages are subject to the cost-recovery process and that “if cash in the 

amount of 331⁄3% of the value of the contents of a package and the cost of shipping does not 

accompany a package, Correct Care confiscates the package.” Matzen’s response to the plea 

attached exhibits, and Appellees filed a motion to strike some of those exhibits but did not obtain 

a ruling on that motion. Thus, the evidence Matzen attached in his response was before the 

district court when ruling on the plea.

Appellees contend that “Matzen’s constitutional claims are not viable.” Thus, the 

issue as Appellees have stated, is “whether a takings clause claim can ever exist under the facts 

Matzen alleges.” Appellees acknowledge that Matzen’s burden at this stage of the litigation is to 

plead a set of facts that, if true, would be a constitutional violation. For the reasons that follow, 

we conclude that Appellees are incorrect in their contention that a takings clause claim could 

never exist on these facts. See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 

77 (Tex. 2015) (noting that claims need not be “viable on their merits” survive plea to 

jurisdiction).

Cost-recovery statute and rule

As we have noted, the cost-recovery statute in section 841.084 of the Texas 

Health and Safety Code requires a civilly committed person to “pay to the office a monthly 

amount that the office determines will be necessary to defray the cost of providing the housing, 

treatment, and service with respect to the person.” Tex. Health & Safety Code
29

§ 841.084(a)(2)(A). TCCO Rule 810.273 implements that statute. When Matzen filed the 

underlying suit in 2017, Rule 810.273 provided:

A civilly committed person who is not indigent is responsible for the cost of 

housing and treatment services under Chapter 841 of the Health and Safety Code 

and the cost of the tracking service required by Health and Safety Code 

§ 841.082. The office shall create and administer a policy regarding cost recovery 

for services. The policy shall include the amount and method of payment for the 

cost recovery and shall not require payment in an amount that exceeds the actual 

cost of the services.

42 Tex. Reg. 485, 485 (2017), amended by 43 Tex. Reg. 1142, 1142 (2018) (codified as an 

amendment to 37 Tex. Admin. Code § 810.273 (2019) (Tex. Civil Commitment Office, Cost of 

Housing, Treatment, and Tracking Services). TCCO amended the rule in 2018 to reference its 

definitions of “indigent” and “income” and cap the contribution amount at 50% of a civilly 

committed person’s income:

A civilly committed person who is not indigent is responsible for the cost of

housing and treatment services under Chapter 841 of the Health and Safety Code 

and the cost of the tracking service required by Health and Safety Code § 841.082 

as well as any intentional loss of or damage to the tracking monitor. The office 

shall create and administer a policy regarding cost recovery for services utilizing 

the definitions of indigent and income set forth in Rule § 810.122, Definitions.

The policy shall set forth the method of payment for the cost recovery and shall 

not require payment in an amount that exceeds 50% of the income of the 

committed person or the actual cost of the services.

37 Tex. Admin. Code § 810.273 (2019) (new provisions underlined). Under both versions of the 

rule, TCCO is to “create and administer a policy regarding cost recovery for services,” setting 

the amount and method of payment.

TCCO’s policy calculates the cost-recovery payment amount at “one-third” 

(331⁄3%) of a civilly committed person’s monthly income. “Income” includes “money received 
30

from employment, to include wages, salaries, tips and other taxable employee pay; disability 

benefits; net earnings from self-employment; funds received from the sale of property; funds 

received as an inheritance; interest or dividend income; retirement income; social security 

income; unemployment benefits; and gifts.” Id. § 810.122(5). Per TCCO policy, packages with 

a total cash value, including shipping, that exceeds $50 are also subject to cost-recovery 

assessment. See Tex. Civ. Commitment Office, Policy & Procedure No. 3.38 (effective 

10/9/2017).

1. Procedural-due-process claim

Appellees contend that Matzen received all the process that he was due during his 

civil commitment in 2014 and during his subsequent hearing in 2015 to conform his civilcommitment order to the statutory amendments. They contend that the district court’s order 

subjects Matzen to the entire civil-commitment scheme without any entitlement to separate due 

process. They further contend that Rule 810.273 does not create the cost-recovery payment 

requirement but merely implements section 841.084 of the Health and Safety Code.

The due-course-of-law guarantee of the Texas Constitution provides that “No 

citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any 

manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. 

The Texas due-course-of-law clause is nearly identical to the federal due-process clause: “No 

State shall make or enforce any law which shall abridge the privileges or immunities of citizens 

of the United States; nor shall any State deprive any person of life, liberty, or property, without 

due process of law; . . .” U.S. Const. amend. XIV, § 1; Mosley v. Texas Health & Human Servs. 

Comm’n, No. 17-0345, 2019 Tex. LEXIS 427, at *28 (Tex. May 3, 2019) (citing University of 
31

Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995), and concluding that there is no 

“meaningful distinction” between Texas and federal due-process clauses). Thus, Texas courts 

“have traditionally followed contemporary federal due process interpretations of procedural due 

process issues.” Mosley, 2019 Tex. LEXIS 427, at *28 (quoting Than, 901 S.W.2d at 929). “In 

procedural due process claims, deprivation by state action of a constitutionally protected interest 

in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the 

deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 

125 (1990) (emphasis in original); Lakey v. Taylor, 435 S.W.3d 309, 317 (Tex. App.—Austin 

2014, no pet.) (“Procedural due process mandates that any government action depriving a person

of life, liberty, or property be implemented in a fair manner.”). 

We apply a two-part test to due-process claims: we determine whether the 

petitioner (1) has a liberty or property interest that is entitled to procedural due process 

protection and, (2) if so, what process is due. Mosley, 2019 Tex. LEXIS 427, at *28.

a. Property interest 

“Property interests protected by the procedural due process clause include, at the 

very least, ownership of . . . money.” Stotter v. University of Tex. at San Antonio, 508 F.3d 812, 

822 (5th Cir. 2007); Fontenot v. City of Houston, No. 4:12-CV-03503, 2013 U.S. Dist. LEXIS 

133600, at *26-27 (S.D. Tex. 2013) (“The plaintiffs have a cognizable property interest in their 

money.”); cf. Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976) (noting that individual has 

protected property interest in continued receipt of social-security benefits); Rosin v. Thaler, 417 

F. App’x 432, 434 (5th Cir. 2011) (“A prisoner has a protected property interest in the funds in 

his prison account.”). Here, Matzen has alleged a vested property interest in the money in his 
32

bank account; thus, his claims are unlike those in cases such as Klumb v. Houston Municipal 

Employees Pension System that were facially invalid because they alleged no vested property 

right. 458 S.W.3d 1, 15, 17 (Tex. 2015) (concluding that claimants had “no vested property right 

to the pension plan contributions and future retirement benefits at issue” and thus, that claimants’

pleadings “conclusively negate[d] the existence of subject-matter jurisdiction over their 

constitutional claims”).

Because the lack of a vested property right is dispositive of a takings claim, the 

constitutional analysis ends when no vested property right is alleged. See id. at 17; see also Holt 

v. Texas Dep’t of Ins.-Div. of Workers’ Comp., No. 03-17-00758-CV, 2018 Tex. App. LEXIS 

10555, at *20, *23 (Tex. App.—Austin Dec. 20, 2018, pet. denied) (mem. op.) (rejecting takings

claim based on backdating of maximum-medical-improvement dates, allowed by administrative

rule, that caused claimants’ loss of temporary income benefits and noting that “for a takings 

claim to be viable, the plaintiff must establish that a vested property interest is at stake”).

Further, the claimants in Holt—like Matzen—alleged an unconstitutional taking based on the 

very same action authorized by an agency rule. See 2018 Tex. App. LEXIS 10555, at *16-22; 

accord Butler v. Michigan State Disbursement Unit, 738 N.W.2d 269, 271 (Mich. 2007) 

(claimant alleged unconstitutional taking based on agency’s retention of accrued interest on 

child-support payments it processed, although retention of accrued interest was authorized by 

statute). Having determined that Matzen alleged a vested property interest in the money in his 

bank account, we proceed to evaluate the viability of his constitutional claim by considering

what process he received.
33

b. Process due

At a minimum, due process requires notice and an opportunity to be heard at a 

meaningful time and in a meaningful manner. Mosley, 2019 Tex. LEXIS 427, at *28; see Hill v. 

Taylor, No. H-13-1489, 2015 U.S. Dist. LEXIS 105407, at *7 (S.D. Tex. Aug. 11, 2015)

(concluding that civilly committed SVP showed no procedural-due-process violation because 

courts had previously reviewed and rejected his request to be released from civil commitment 

pending his second civil-commitment trial); Fontenot, 2013 U.S. Dist. LEXIS 133600, at *27 

(concluding that plaintiffs “ma[d]e out a cognizable due process claim” by alleging that 

defendants notified them that surcharge for traffic violations was due and informed them of 

penalty to be imposed for failing to pay surcharge but provided no hearing or other opportunity 

to contest that deprivation).

Here, it is undisputed that Matzen received a jury trial in 2014 before the trial 

court adjudicated him an SVP and that he had a hearing in 2015 in which the requirements of his 

civil commitment were conformed to the most recent legislative amendments. But neither 

version of Rule 810.273 concerning the cost-recovery policy was in effect when those 

proceedings were held. Moreover, section 841.084 of the Health and Safety Code—which 

authorizes cost-recovery payments from nonindigent civilly committed SVPs—does not address 

the broader policy provisions that Appellees implemented, including extending the cost-recovery 

process to all “income” and to packages exceeding $50 in value by contents and shipping costs.

Appellees complain that the facts set forth in Matzen’s pleadings of his 

constitutional claims contain allegations, such as a conversation with a caseworker, that are 

“unsupported by the record.” But when reviewing a plea to the jurisdiction, we determine

whether the pleader has alleged sufficient facts to affirmatively demonstrate the court’s 
34

jurisdiction to hear the cause and ensure that the pleadings do not affirmatively negate the 

existence of jurisdiction. Miranda, 133 S.W.3d at 226-27; see Patel, 469 S.W.3d at 77 (rejecting 

requirement that claims be “viable on their merits” to survive plea to jurisdiction); cf. Pfeil v. 

Freudenthal, 281 F. App’x. 406, 410 (5th Cir. 2008) (reversing trial court’s order that dismissed

inmate’s takings claim as “frivolous or for failure to state a claim upon which relief may be 

granted” and concluding that he alleged viable claim “for the taking of money from his inmate 

account without due process”); Eubanks v. McCotter, 802 F.2d 790, 793-94 (5th Cir. 1986) 

(reversing trial court’s order that dismissed inmates’ takings claims for want of jurisdiction 

because their claims were “minimally sufficient to require a decision on the merits”). Appellees’

plea has not shown that Matzen’s pleading of his procedural due-process claim fails either of 

those tests, such that his constitutional claim could not be viable.

2. Takings claim

Appellees also contend that the district court erred by not granting their plea as to 

Matzen’s takings claim because “the takings clause simply does not apply to Matzen’s situation.”

We note that the extent of Appellees’ takings argument to the district court was in a footnote to 

their reply in support of the plea, contending that “Plaintiff’s personal housing, treatment, and 

GPS monitoring are not ‘public use,’ that “the takings clause prohibits the taking of real 

property,” and that “[h]ere, the Plaintiff is simply required to make monetary payments.”

The Texas Constitution provides 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. Similarly, the Takings 

Clause of the Fifth Amendment provides that “private property [shall not] be taken for public 
35

use, without just compensation.” U.S. Const. amend. V; see Dolan v. City of Tigard, 512 U.S. 

374, 383 (1994) (noting that Takings Clause is applicable to states through Fourteenth 

Amendment). The Texas Supreme Court has concluded that the takings clauses in the Texas and 

federal constitutions are substantially similar. City of Austin v. Travis Cty. Landfill Co., 73 

S.W.3d 234, 238 (Tex. 2002).

Thus, determining the viability of Matzen’s takings claim requires consideration 

of whether he has alleged a taking of his money for public use, without just compensation. See

U.S. Const. amend. V; Tex. Const. art. I, § 17.

a. Public use

Appellees note that Takings Clause cases generally relate to eminent-domain 

proceedings. Friedman v. American Sur. Co., 151 S.W.2d 570, 577 (Tex. 1941). But other 

Takings Clause cases do not. See Texas Workforce Comm’n v. Midfirst Bank, 40 S.W.3d 690, 

697 (Tex. App.—Austin 2001, pet. denied) (“[W]e will not limit takings-clause actions to 

situations involving eminent domain.”). The Supreme Court’s opinion in Brown v. Legal 

Foundation, 538 U.S. 216 (2003), involved an alleged Fifth Amendment violation based on the 

taking of money. We include Brown in our discussion of the just-compensation factor.

Additionally, Appellees contend that the money collected from the cost-recovery 

fees is not for “public use,” but for services provided to an individual. However, the Supreme 

Court has noted that, “[q]uite simply, the government’s pursuit of a public purpose will often 

benefit individual private parties.” Kelo v. City of New London, 545 U.S. 469, 485 (2005); see

Housing Auth. of Dall. v. Higginbotham, 143 S.W.2d 79, 84 (Tex. 1940) (“The mere fact that the 

advantage of the use inures to a particular individual or enterprise, or group thereof, will not 
36

deprive it of its public character.”); see also KMS Retail Rowlett, LP v. City of Rowlett, No. 17-

0850, 2019 Tex. LEXIS 463, at *25 (Tex. May 17, 2019) (same). The Supreme Court stated that 

its cases “[w]ithout exception” define the concept of public use or public purpose “broadly” and 

“in favor of affording legislatures broad latitude in determining what public needs justify the use 

of the takings power.” Kelo, 545 U.S. at 480, 483.

A taking that is “rationally related to a conceivable public purpose” constitutes a 

“public use” under the Fifth Amendment. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 

(1984); Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 812 (Tex. 2016) (noting that 

“[e]xamples of a taking for a private use tend to be esoteric . . . because all that is required for the 

taking to be considered for public use is a rational relationship to some conceivable public

purpose” and that “[v]ery few takings will fail to satisfy that standard” (quoting Montgomery v. 

Carter Cty., 226 F.3d 758, 765-66 (6th Cir. 2000))). Courts have determined that the taking of 

money to provide funding for legal services to the poor was a public use, Brown, 538 U.S. 216 at 

232, as was a redevelopment project to eliminate blight, a problem that caused “added costs to 

the taxpayer,” City of Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1, 6 & n.8, 11 

(Nev. 2003). 

Matzen’s pleading about the cost-recovery fees alleged that TCCO is 

misappropriating his property as part of TCCO’s efforts to recover the cost of expenses incurred 

for monitoring, GPS tracking, housing and treatment. Those cost-recovery fees, by offsetting an 

amount that otherwise would be shouldered by the taxpayers, are “rationally related to a 

conceivable public purpose” and thus, constitute a “public use” for the purpose of Matzen’s 

pleading of his takings claim. See Midkiff, 467 U.S. at 241; Brown, 538 U.S. 216 at 232; Kerr, 

499 S.W.3d at 812.
37

b. Just compensation

The parties join issue as to whether the cost-recovery fees are taken “without just 

compensation.” Appellees contend that Matzen is compensated because the cost-recovery 

money defrays the expenses of the housing, tracking service, and therapeutic treatment he 

receives. 

However, Appellees do not cite, and we have not found, any Texas court opinion 

on whether a civilly committed SVP receives “just compensation”—in the form of his courtordered housing, monitoring, and treatment—for the required payment of a portion of his money 

(including any wages, disability benefits, proceeds from the sale of property, inheritance funds,

interest or dividends, retirement income, social-security income, unemployment benefits, and 

gifts). Cf. Brown v. Taylor, No. EP-13-CV-17-FM, 2014 U.S. Dist. LEXIS 200282, at *9-10, 

*16 (W.D. Tex. 2014) (declining to address civilly committed SVP’s claim that he was deprived 

of his property interest in his entitlements such as his “Social Security Insurance” payments

because such argument could have been raised in his prior lawsuit); see also 37 Tex. Admin. 

Code § 810.122(5) (defining “income”). Similarly, we have not found any Texas authority on 

the constitutionality of tying payment of cost-recovery amounts to the SVP’s ability to “advance 

in tier” in his civil commitment under the SVP Act if his progress warrants it.

The Supreme Court has concluded that the question of “just compensation” is 

measured by what the property owner has lost. Brown, 538 U.S. at 235. Further, the amount of 

compensation due is calculated by the property owner’s net pecuniary loss. Id. at 237. If the 

property owner’s net pecuniary loss is zero, the compensation due is also zero. Id.; see Butler, 

738 N.W.2d at 271 (rejecting contention that agency’s retention of accrued interest on child-
38

support payments it processed was unconstitutional taking because “plaintiff’s net loss was 

zero”). 

In Brown, the Court considered whether the transfer of interest income generated 

by clients’ pooled funds under a state’s IOLTA (interest on lawyer’s trust accounts) program 

constituted a taking without just compensation. Id. at 220. The Court quoted from the circuit 

court’s dissenting opinion, noting that

[i]t may be that the difference between what a pooled fund earns, and what the 

individual clients . . . lose, adds up to enough to sustain a valuable IOLTA 

program while not depriving any of the clients . . . of just compensation for the 

takings. This is a practical question entirely undeveloped on this record.

Id. at 238.

6 

Our record has a similar factual deficiency. As we have noted, the cost-recovery

worksheet for calculation of the amount payable to TCCO that Appellees attached in support of 

their plea was blank, while Matzen attached a completed cost-recovery worksheet in response to 

the plea. See Miranda, 133 S.W.3d at 227 (considering relevant evidence submitted by parties 

when necessary to resolve jurisdictional issue). Neither party’s evidence shows whether 

Appellees’ costs for Matzen’s housing, monitoring, and treatment are so great, and Matzen’s

monthly contribution so small, that there is no net pecuniary loss and no compensation due. See 

6 Ultimately, the Court decided that further hearings were unnecessary because the

state’s IOLTA program rules directed lawyers “to deposit client funds in non-IOLTA accounts 

whenever those funds could generate earnings for the client.” Brown v. Legal Found., 538 U.S. 

216, 239 (2003). To the extent that lawyers or those acting for them deposited client funds into 

an IOLTA account when those funds could have generated net income, they violated the IOLTA 

rules. Id. The Court further determined that “any conceivable net loss” was a consequence of 

“incorrect private decisions rather than any state action.” Id. When the rules of the state’s 

IOLTA program were obeyed, the owner’s pecuniary loss was zero. Id. at 240.
39

Brown, 538 U.S. at 237. Determining whether any compensation is due to Matzen for any net 

pecuniary loss resulting from the taking he has pled necessarily requires development of a proper 

factual record. See Blue, 34 S.W.3d 554 (noting that “the proper function of a dilatory plea does 

not authorize an inquiry so far into the substance of the claims presented that plaintiffs are 

required to put on their case simply to establish jurisdiction” and that “whether a determination 

of subject-matter jurisdiction can be made at a preliminary hearing or should await fuller 

development of the merits of the case must be left largely to the trial court’s sound exercise of 

discretion”); see also Miranda, 133 S.W.3d at 227-28 (same). Without that information, a 

conclusion that Matzen’s pleadings could never allege a viable takings claim is premature.

On this record, we disagree with Appellees’ contentions that their plea to the

jurisdiction should have been granted in full and that Matzen’s constitutional due process and 

takings claims could never exist, are facially invalid, and are not viable. Matzen’s pleading of 

those claims does not “affirmatively demonstrate incurable defects in jurisdiction,” see Miranda, 

133 S.W.3d at 226-27; and his pleading alleges more than “[m]ere unsupported legal

conclusions,” see Balquinta, 429 S.W.3d at 737-38. Accordingly, we overrule Appellees’ crossappellate issue.7

7 We express no opinion on the merits of Matzen’s claims.
40

CONCLUSION

We affirm the district court’s order.

__________________________________________

Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

 Concurring and Dissenting Opinion by Justice Goodwin

Affirmed

Filed: March 6, 2020