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

NO. 03
- 18
- 00740
- CV

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

v. Appellee s , Marsha McLane, in Her Official Capacity as Director of Texas Civil C ommitment Office, and The Texas Civil Commitment Office// Cross
- Appellee, Gerard Matzen

FROM THE 261ST DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 004319 , THE HONORABLE JAN SOIFER, JU DGE 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) statut e . See Tex. Health & Safety Code §§ 841.001

- .153. T he Texas Civil Commitment Office (TCCO) and its Director Marsha McLane filed a cross appeal as to the portion of the order denying in part their plea. In five issues , Matzen contends that : the district c o u rt 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 constitution a l

- violation claims ; and McLane was not entitled to qualified immunity.2 O n cross - appeal, Appellees c hallenge the den ial of their plea as to Matzen’s procedural due process and takings claim s . W e will affirm the district court’s order

.
BACKGROUND Mat z e n’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
t reatment for SVPs who have behavioral abnormalities that are not amenable to traditional mental

- health treatment and that increase the SVPs’ likelihood of recidivism. S ee id. ; S tevenson v. State , 499 S.W.3d 842, 844 (Tex. Crim. App. 2016) ; Texas Civil C o m mitment O ffice 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 pers o n ’ s commit ment , 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 u n de r the S VP 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 , 64 8 (Tex. 2005) ; Hartshorn , 550 S.W.3d at 329.
Statutory changes to SVP program in 2015 The Legislat ure amend ed 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 T e x. Health & Safety Code § § 841.0 01

- .153). These amendments included renaming the former “ Office of3 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 C o d e § 420A. 002 (b)

. Further, t he Legislature replaced the “ outpatient treatment and supervision” model with a tiered

treatment program providing for both inpatient and outpatient treatment

. Tex. Health & Safety Code § 841.0831; see In re State , 556 S.W.3d 8 21 , 823

- 2 4 (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 con f in ement f acility 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 § 841.08 31

. As part of the tiered program, TCCO is to des i gn ate 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 co mmitted persons. I d . § 841.0832(a). T he Legislature also allowed a person to p rogress 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 adequa t el y prote ct the community.” I d . § 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”); s ee also
R ichards 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 o ne 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 providin g t he pers on’s housing and treatment. Tex. Health & Safety Code § 841.084

. Th at 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 r u le impl ementing the se statutory requirement s of payment to defray costs for housing, treatment, and a tracking service

. 37 Tex. Admin. Code § 810.273 (201 8 ) (Tex. Civil Commitment Office, Cost of Housing, Treatment, and Tracking Service)

. TCCO also ado p t ed rule s defining “income” and “indigent.” Id

. § 810. 122 (5), (6) (201 9 ) (Tex. Civil Commitment Office, Definitions ). Finally, the 2015 amendment s to the SVP Act provided a procedure for modifying

a ny previously imposed civil

- commitment requirements th a t differ ed 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 o f the c ivil 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 t o confor m to that section.”) ; In re State , 556 S.W. 3d at 82 4; Hartshorn , 550 S.W.3d
at 326

.
Matzen’s suit Matzen was adjudicated a n SVP and civilly committed in 2014

. The last biennial review referenced in this record determined that Matzen’s “ behavio r a l abnor mality, which causes him to engage in predatory acts of sexual violence, was still present. ” In 2015, the district court5 that civilly committed Matzen signed an order conforming his civil commitment to the most recent legislative changes and plac i n g Matze n in the tiered

- treatment program pursuant to section 841.0831 of the Tex as 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 requiremen t s and ru les imposed by TCCO. Matzen resides at the Texas Civil Commitment Center (TCCC)

. It is operated by Correct Care Recovery S olutions (Correct Care) under a contract with TCCO. Matzen sued Appellees , challenging the validity of various agency rul e s becaus e they were adopted by TCCO’s board rather than TCCO itself and alleg ing that a portion of Matzen ’ s work

- program income had been “misappropriat[ed]” as restitution to the State. Matzen pled claims under the A PA and the Texas Debt Collection Pract i ces Ac t . He also pled violation s 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 in j unctiv e and m andamus relief for his claims. He later amended his petition to request se veral declarations under the Uniform Declaratory Judgments Act (UDJA)

. See Tex. Civ. Prac. & Rem. Code §§ 37.001

- .011. In response, Appellees file d a plea to the ju r isdict ion

. M atzen then filed a second amended petition , adding allegation s that McLane committed ultra vires acts by administering the rules that TCCO’s board promulgated

— rather than rules being adopted by McLane herself

—

a nd that she and Correct Care vio l ated his peac e able

- assembly and free

- speech rights by “denying [ hi m ] 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 respons iv e to Matzen’s second amended p etition and a t tached evidence , including a sample of the cost

- recovery6 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 , ” al so attaching evidence

s upporting the allegations set forth i n 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 t hird a mended
p etiti o n 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

. T he district court grant ed Appellees’ plea in part and dismis s ed Matzen’s APA, ultra vires, Debt C o llection Practices Act, “debtor’s prison,” and unlawful

- search

- and

- seizure c laim s. However, t he district court denied the plea in part as to Matzen’s procedural due process and takings claim s . 2 Matzen’s appeal and Ap p ellees’ cross - appeal followed.

DISCU S SION Standard of review A plea to the ju risdiction 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 o n the plaintiff to affirmativ ely 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 o f law, we

1 Appel lees filed a motion to strike certain exhibits that Matzen attached to his “Corrected Opposition , ” bu t no ruling on the mo ti on appears in t he record.

2 Matzen’s claims ag ainst Correct Care remain pending in district court. Correct Care is not a p ar ty to this appeal.7 review de novo a trial cou r t ’ 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 beg in by considering the plaintiff’ s live plead ing s and determine whether the facts al l eged 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. Bal qui n ta , 429 S.W.3d 726, 737

- 38 (Tex. Ap p . — Austin 2014 , pet. dism’d ) ; see Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009) ( noting analogous principle in federal courts as to d ismissal of constitutional complaints for failure to state claim: “ the tenet that a co urt must accept as true all of the alle g ations contained in a complaint is inapplicable to legal conclusions ”)

. When a plea to the jurisdiction challenges the existence of jurisdictional facts , w e may also consider evidence submitted to the trial court , a nd w e must do so when necessary to

reso l ve 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 u ltra vires claims, the jurisdictio n al inquiry and the merits inquir y 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 pl ea d i ngs lack sufficient facts to affir m ativ ely 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

a mend. Miranda , 133 S.W.3d at 226

- 2 7

. But if the plaintiff’s p leadings affirmatively nega te the existence of jurisdiction

— for instance, by seeking to recover monetary damages from a state agency and a state official under circumstances in which immuni ty h as not been waived

— the trial court may grant a plea to the jurisdiction without allowing the plaintiff an opportunity to8 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.

— Aust in D ec. 30, 2014 , no pet. ) (mem. op.).

I. Matzen’s appeal F irst issue: Ruling on plea after Matzen filed third amended petition In his first issue, Matzen contends that the district court erred by rul ing on Appellees’ plea to the jurisdiction after he fil ed h is 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 gr anting a plea to the jurisdi ct i o n addressed to the second am ended p etition 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 t he parties’ pleadings, the a m e n d ed pleadings are considered the li ve 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 Te x . A pp. LEXIS 10114, at *11 (Te x. 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 con sidered the parties’ pleadings and that the district court declined to rule o n c laims pled in Matzen’s seco nd amen ded 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 Te x . A pp. LEXIS 10114, at *11.9 Matze n ’s third amended petition included claims against TCCO and McLane that overlapped th ose in his se cond a mended p etition

. His live pleading also made allegations

— s uch

as the Board’s lack of rulemaking authority, McLane ’ s e xclusive r ulemaking authori ty , McL ane’s ministerial duties, and the preclusive effect of his original commitment order

— addressed by the plea to the jurisdiction pending before the district court

. I t was proper for the district court to consider whethe r Ma tzen’s pleadi ngs aff irmatively 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 recent ly amended petition

. See Gulf Coast Waste D is posal Auth. v . Four Seasons Equip., Inc ., 321 S.W.3d 168, 172, 177

- 78 (Tex. App.

— Houston [1st Dist.] 2010 , no pet. ) ( reversing order den ying defendant’s plea to jurisdiction , although defendant did not amend or supplement its plea to address breach

- of

- c o nt ract claim al leging waiver

- by

- conduct and third

- party

- beneficiary theories in plaintiff’s supplemental petition , because plaintiff sought damages in e xce ss of trial court’ s jurisdictional limit ) ; see also Milton , 2014 Tex. App. LEXIS 13825, at *3

- 4 (“[ P l ai ntiff]’s plea dings a ffirmatively 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 p lea to the ju risdict ion on that claim without allowing [pl aint i ff] an opportunity to amend. ”)

. On this record, Mat zen has not shown that t he district court erred by ruling on Appellees’ plea to the jurisdiction after he filed his third amended peti t i on . Accordingl y , w e

o verrule Matzen’s first issue.10 Second issue: Matzen’s A PA claims In his second issue, Matzen contends that his A PA claims are not barred by sovereign immunity . He a lleges that “all proclamations found in Title 37 Texas Adminis t r ati ve Code Chapt er 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

- .2 83 (201 7 ) (Tex. Civil Commitm e n t O ffice, Civil Commitm ent )

. M atzen 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 p e tit ion request ed declar ations as to the invalidity of the rules based on their enactment by the governing B oard. The Legislature provided that TCCO is “governed by a board composed of five members appointed by the governor,” serving staggered six

- year t e rms . Tex. Gov’t Code § 42 0A.002( b)

- (c). The L egislat ure 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), 2 0 11 Tex. Gen. Laws 3197, 32 04 ( req uiring 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. Flo o d Co ntrol Dist. No. 1 v. Cross , 81 5 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 Procedu r e § 8.3.2[a] , at 8

- 27 (20 1 9 ) (noti ng that “[a]n agency board is charged with the ultimate responsibility of enforc ing its legislative mandate”). Among the governing board’s functions for TCCO is the adoption of rules consistent with the purposes of chapt e r 84 1 of the Health and11 S afety Cod e concerning the civil commitment of SVPs

. See Tex. Heal th & 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 purpos e s of this chapter.”).
B ecause TC CO 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 b o a rd enacted them , w e over rule 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 b o a rd lacked authority to p romulgate 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 “ c ost 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 [M a t zen ] in violation of the Constitutional prohibition on retroactive laws; (5) extorting “cost recovery fees” from [Matzen] without his having been ordered to pay s uch fees after a “civil commitment proceeding”; (6) extorting “cost recovery fees” of 33% of inc o m e f rom each and every resident of TCC C without individual assessment of their ability to pay;12 (7) extorting “cost recovery fees” from [Matzen] in violation of Tex as Gov ’ t Code Chapter 2107; (8) extorting “cost recovery fees” from [Matzen] in violation of Tex a s Fi nance 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 v i c t ims; (12) administering Chapter 841 with policies and procedures, adopted, discarded and/or changed as McLane and TCCO deem convenient; and (13) granting Correct Car e the aut hority to punish [Matzen] for violation of Correct Care rules.

U ltra vires acts

— i

. e ., act s 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 dis cretion t o interpret and a pply a law may nonetheless act ‘ without legal authority, ’ and thus

u l t r a vire s, 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 ul tra vires claim requires a plaintiff to “ allege, and ultimately prove, that the officer acted w i t ho ut l egal 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 plai ntiff all eges only facts demonstrating acts within the officer’s legal authority and discretio n , th e cl aim seeks to control state action, and is barred by sovereign immunity. ” L MV

- AL Ventures, LLC v. Tex as Dep ’ t of Aging & Disability Servs ., 520 S.W.3d 11 3, 126 (T ex. App.

— Austin 2017 , pet. denied )

.13 M inisterial acts are those “ where the law pr es c r ibe s an d defines the duties to be performed with such precision and certainty as to leave nothing to the exer cise of discretion or judgment.” Hall , 508 S.W.3d at 238 ( quoting S outhwestern Bell Tel., L.P. v. Emmett , 4 59 S.W.3d 578, 587 (Tex. 2015))

. D is c r eti onar y 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 ple d as ultr a vires claims were either within M cLane’s discretionary authority, aut ho r i zed by s tatutes or administrative rules , or have no application in this context

. In such circumstances, there is no waive r of sovereign immunity and the district court pro perly gra nted the plea without affording Matzen further opportunity to amend

. S ee M iran da , 133 S.W.3d at 226

- 27; Milton , 2014 Tex. App. LEXIS 13825, at *4 (noting that b ecause claimant s ought to recover monetary damages from state agency and state officia l under c ircumstances in which their immunity ha d not been waived , trial
court c ou l d gra nt p lea 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

- recove ry s tatu te t hat requires monthly payments defraying the costs of a civilly committed person’ s housing, treatment, and tracking service.

a. T CCO board’s adoption of cost - recovery rules Because the governing board adopted the rules instead of McLane , Matz en p led
t h at McLane fail e d 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 of14 Health a nd Safety Code concerning civil commitment of SVPs) , th e r eby r ende ring her actions ultra vires

. W e have already rejected Matzen’s theory that the rules in Chapter 810 of the Texas Administrative Code were not “val idly adop ted” because TCCO’s board enacted them. Matzen cites no authority showing that McLane h e r self 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 ar e those t hat law requires to be performed “with such precision and certainty as to leave nothin g t o the exer cise of discretion or judgment” ).

b. Obligation to defray costs of housing, treatment, and tracking service Further, as to the authorization for th e cost

- re covery rules that TCCO’s board adopted , we have noted that the SVP Act requires a civi ll y commi tted 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 t he person ’s housing , treatment , and tracking service

. Tex. Health & Safety Code § 841.084

. Ma tz e n cont ends that the j udgment adjudicating him an SVP imposes on the State the obligation to pay for his treatment and supervision. But as the SVP Act clarifi es, the p rovisions of section 841.084 requiring a civilly committed person to defray the costs of
p rovid ing the person’s housing, treatment, and tracking service apply “notwithstanding” another part of the Act reciting that the State pays reasonable costs of a pers on’s treatment and supervision

. S ee id

. § § 841.084(a) ( “Notwithstanding Section 841.1 46 ( c ) [pr ovid ing 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 servi ce r equir ed b y Section 841.082; and (C) repairs to or replacement of the tracking equipment required by Section 841.082, if the person intentionally15 caused the d amage to or loss of the equipment, as determined by the office; and (2) shall pay to the office : ( A ) a m onth ly amount that the office determines will be necessary to defray the cost of providing the housing, treatment, and service with respect to the perso n; and (B ) as directed by the office, any amount for which the person is responsible under Subd iv i s ion ( 1)(C ).”) , 841 .146(c)

. Because section 841.084 of the SVP Act imposes an ob ligation to defray the costs of providing a committed person’s housing, treatmen t, and tr acking service , Matzen’s contention that the State was required to pay for those co st s is in corr ect and is not a proper basis for an ultra vires claim against McLane.

c. I ndigency status and order to pay cost - recovery fees In allegation 6 , Matzen cites no authority , and we have fou nd none, supporting his contention that his indigency sta tu s when he w as civilly committed under the SVP Act in 2014 permanently established his future indigency. Cf

. Tex. R. App. P. 20.1(b)(3) (re cognizing that party’s financial circumstances on a ppeal may have materially changed for purposes of determining pa rt y ’ s sta tus as indi gen t ) ; Mc Fatridge 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] d efendant can be found indigent for one purpose without being fou nd i ndige nt f or 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 (Te x. App.

— Beaumont Oct. 16, 2014, no pet.) (mem. op.) (no tin g that tria l court sustained
contest to Matzen’s affidavit of indigence after he disclosed that he had $15,000 in his i nmate
t rust f und ).16 Relatedly, Matzen complains that McLane is obtain ing cost

- recovery fees from him without his having been ordered to p ay suc h fe es 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 legisla tive chan ges, necessarily including the contribution to ward
cost

- re c overy fees , as required by the SVP Act

. Transition provisions in section 40 (b) of the session law for the 2015 amend ments to the SVP Act specify that the court with jurisdiction over the committed person must modify any previously imposed civil

- commit men t requi reme nts 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 Safe ty Code, before the effective date of this Act differs from any of t he civ il c ommitment 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 no tice and hearing, modify the requirement imposed as applicable t o c o nform to t hat section.”). As we have noted, i n 2015 the district court that civilly committed Matzen signed an amended order of civil commitment order ing Matzen’s compliance with all requ irements and rules imposed by TCCO. Matzen also complains th at t he cost

- rec overy 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 h is financ ial information to TCCO , and that TCCO uses that inform ati o n to de term ine 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 Matz en also a lleges that McLane has acted out sid e the sc ope of her legal authority by obtaining cost

- recovery fees from him in violation of the constitutional prohi bition against retroactive laws. Similar contentions about the retroactive effect of amendments to the S VP Act have been considered and rej e c ted. 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 t o outpati ent treatment and noting that wh en M a y was civi lly 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, 9 31, 935

- 36 (Tex. App.

— Beaumont 2 013 , no pet .) ( concluding that person civilly committed as SVP could be ordered to reside at approved treatment facility notwithstanding allow ance of “outpatient” sex

- offender treatment in his original judgment of c ommitment ). Further, t he SVP Act provid es t h at civ il

- c ommitment requirements m ay 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 an d a heari ng. Tex. Health & Safety Code § 84 1 .082(e) ; se e In re Wilson , No. 09

- 16

- 00243

- CV, 2016 Tex. App. LEXIS 10400, at * 8

- 10 (Tex. App.

— Beaumont Sep t . 22, 2016 , orig. proceeding ) ( rejecting contention that amended order app lying changes to SVP statute r etroactiv ely to SVP’s case

v iolat ed proh ibit i ons on ex p ost facto and retroactive laws ). M atzen’s retroactivity allegations do not support his ultra vires claim.18 e. Unreasonable sea r ch and seizure Another of Matzen’s cost

- recovery complaints is that McLane h as enforced an invalid rule requir ing h i m to revea l his “ financial and/or banking records ” without a court order in violation of the prohibitions against un reasonable search es and seizure s in the Fourth Amendment to the United States Constitution and Artic le I, section 9 of the Texas Const itut i o n . Ma tzen further complains that TCC O 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 Tex as Admini strative Code were not “validly ad opted ” becau se TC CO’s board enacted them. Moreover , M atzen’s p leadings 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 determin e h is co n tributi on to ward his housing, treatment, and tracking service in compliance with the SV P Act

. S ee Tex. Health & Safety Code § 841.08 4 ; cf

. Goodwin v. State , 416 S.W.3d 90, 95

- 96 (Tex. App.

— Beaumont 2013 , no pet. ) ( rejecting unreasonable search and s eizur e claim and n oting 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 unconstitu tiona l search or s eizure and are not a proper basis for his ultra vires claim. For the reas ons discu ssed 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 ru les

. S

ee Hall , 508 S.W.3d at 238.19 2. Texas Government Code Chapter 2107 allegations Matzen’ s allegat ion number 7 contends generally that McLane obtained cost

recovery fees from him in violat ion of c hapter 2107 of the Texas Government Code

. His pleading s alle g e that she d id 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 guide lines,

an d referral to the Attorney General of uncollected and delinquent obligations

. See Tex. Gov’t Code § § 2107. 00 2

- .00 3(a) ; State v. Buchanan , 572 S.W.3d 746 , 748 ( T ex. App

. — Aus tin 2019, no pet.) (addressing attorney’s fees under chapter 2107 for Atto rney Gene ral’s collection of delinquent sales

- and

- use tax es)

. Chapter 2107 also provides that “[u]ntil a state agency adopts rules under this section, the attorn ey gene r al by r ule m ay establish collection procedures for the agency, including the period fo r collect ing 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 Genera l ’s guid eline s. 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 rule s, the A ttorney Gener al may do so for the agency. See id. § 2107.003(c). Thus, McLane would not have violated Chapter 2107 if she had not enact ed rules under this statute

. Because Matzen has not shown that Chapter 2107 of the Texas Government Code requi red McL a n e to per form certain duties “with such precision and certainty as to leave nothing to the

exer cise 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 Colle ct i on Pract ices Act allegations Matzen’s allegation number 8 contends that McLane ob tained co st

- recovery fees from him in violat ion of section 3 92.301 of the Texas Finance Code , the D ebt C ollection
P ractices Act. However, th at statute does not ap ply he re because M atze n is not a “consumer” and because the costs he is responsible for payin g are not “consumer debt.” A “ c onsumer” is defined in the Debt Collection Practices Act as “an individual who has a consumer debt , ” and “consumer debt” is define d as “ an obligation , or an alleged obligation, primarily for personal, family, or household pu rposes an d 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 goo ds or se r vices by p urcha se or lease, and those goods or services must for m the basis of the co mplaint.” 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. A pp . LEXIS 693 7, at *35 (Tex . App.

— Austin Aug. 29, 2018 , no pet. ) (mem. op.) ( concluding that “DCP A does not apply to debts that are not ‘consumer debts ’ ”). Matzen is responsible for defraying the costs of his housing, treatment, and tracking service becau se of his SVP civi l commitment, not because of any consumer transaction as defined in th e Debt Co llection Practices Act

. Thus, t he Debt Collection Practices Act in section 392.301 of the Finance Code is not a proper basis for pleading an ultra vires claim a g ainst McLa ne . 3

3 The introduction to Matzen’s brief state s that the district court erred by dismissi n g t he claims pled un de r 28 U.S.C. 200 7 and Article I, secti on 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 con t a in clear and concis e argument for co ntentions made, with a ppropria t e citations to authorities and record).21 4. Inpatient
- treatment allegations Matzen’s allegation number 9 conten ds genera lly that McLane has acted outside the scope of her legal authority by compell ing him to participate in inpatient treatment. He also complains that he is not p r ovided “ap propr iate and necessary treatment” and “coordinated treatment.” But Matzen has not s hown that McLane’s provision of “appropriate and necessary treatment” or “coordinated treatment” involve duties that the law requires her to perform “wi th such p recision a nd ce rtainty as to leave nothing to the exercise of [her] discretion or j udgment ” and as to provide a basis for plead ing a viable ultra vires claim. See Hall , 508 S.W.3d at 238. Moreover, with regard to his inpatient

- treatment compl aint, M a t zen’s amend ed

c i vil

- commitment order requires him to reside where instructed by TCC O and to comply with all of TCCO’s requirements and rules. C onsistent with his amended order, Matzen’s 2014 civil

commitment order

— which was incorporated into the judgmen t adjudicatin g him as an SVP

— require d him to live where instructed by TCCO and to com ply 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 p a rt of his ci vil c ommitment, 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 , 5 56 S.W. 3 d at 826 (cit ing T ex. Health & Safety Code § 841.102(c)(1) )

. When the district cour t ordered Matzen’s placement in the tier ed

- treatment program , it noted that as of the last biennial review , Matzen’s “behavioral abnormality, which causes him to en gage in p redatory act s of sexual violence, was still present.” T he district court determine d that Ma tzen’s behavior and progress in treatment would benefit from placement in the tiered

- treatment program

.22 As we have noted, t he Legislature tasked TCCO w ith ope r a t ing or contr act in g with a vendor for th e operation of one or more housing facilit i es for co mmitted persons. See Tex. Health & Safety Code § 841.0832 (a)

. Matzen resides and receives treatment at a facility operated by TCCO’s contractor, Correct Care

. M a tzen has not shown that McLane lacks discretion to require that he receive treatmen t 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 outpatie nt trea t m ent gave May veste d right to outpatient treatment and noting that when May was civi lly commi tted as SVP , “settled expectations incl uded having the treating agency”

— here, TCCO

— “ determine where May would reside and the sex offender treatment he woul d recei v e ”); In re Com mitme nt of Cortez , 405 S.W.3d at 93 5

- 36 (concluding that person civill y committ ed as SVP could be ordered to reside at treatment facility approved by TCCO’s predecessor agency notwithstanding his original judgment of commitment allowi ng “ out p a tient ”

sex - of fende r treatment)

. Thus, Matzen’s inpatient

- treatment complaint is no t a prope r basis for pleading an ultra vires claim against McLane

.
5. F ree dom
- of
- speech and peaceable
- assembly allegations Matzen’s allegation s 1 0 and 11 contend th at McLa n e has acted ou tside the scope of her legal authority by den ying his constitut ional rig ht s to freedom of speech and to peaceably assembl e . Matzen ’s pleadings link these free

- speech and peaceable

- assembly claims to “ the right to meet with the media , ” but h e provides no f actua l support for the m . As to these claims, his petition stat es only t hat
under the United States Constitution, [Matzen] has the rights to peaceably assemble and free speech. [Matzen] asserts that Defendant McLane, and her agent C CRS, ar e denying [Matz en]’s rights to peaceably assemble and free speech23 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 vio l a ting [his] ri ghts to free speech and assembly and thereby acting outside the scope of Defendant McLane’s lawful authority.

Mat z en ’s brie f asserts summarily that “[v]iolation of an individual’s Constitutional rights is by definition outside the s cope of a St ate offici al’s lawful authority. ” B ut without contextual fact s that assertion does not support his ultra vires allegations a g ainst McL ane. See Balquinta , 429 S.W.3d at 737

- 38 (noting that claimant must a lleg e facts affirmatively demonstrat ing trial c o urt ’ s jurisdi ction to hear cause and that m ere unsupported legal conclusions do not suffice ) ; see also Matzen v. McLane , 764 F. A pp ’ x 402, 403 (5th Cir. 2019) (rejecting Matzen’s similar contention that “McLane violated his First Amendment right t o assoc i a te by not all owing him to contact any person without first obtaining permission.”)

. 4 We conclude that despite his multiple ame n ded plead ings, Matzen’s freedom

- of

speech and peaceabl e - assembly claims contain no factual allegations suppor ting an u lt ra vi r e s claim again st Mc Lane 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 governme ntal en t i ty files its plea to the

4 Further , to the extent that media access implicates issues of security and monitoring, certain restric tions may comply with the Legislature’s ins t r uc tion t o TCCO to “ de velop procedure s for the security and monitor i ng of committed pe rs ons i n each programming tier .” Tex. H ealth & Safety Code § 841.0833; see Matzen v. McLane , 764 F. App’x 402, 403 (5th Cir. 2019) (concluding that Matzen failed to show t h at McL ane’s alleg e d restrictions o n his constitutional right of a ssociation lacked re asona ble relationship with state’s interests of rehabilitation and security); see also Bohannan v. Doe , 527 F. App’ x 283, 29 4 (5th Cir. 2013) (“ While courts of appeals h a v e been reluctant t o articulate a s pecific standard applicable to civilly committed in divid uals, it nevertheless seems that restrictions [on their First Amendment rights] are permissible so long as they advance the state’ s interest in security, order, an d r ehabil itation. ”).24 jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would constitute

a w a iver of imm unity, then the trial court should dismiss the plaintiff’s action.”).

6. Correct Care authorization allegati ons M a tzen’s allega tion number 13 contends that McLane has acted outside the scope of her legal authority by granting Correct Care the a uthority to punish him for violati ng its rules. 5 Matzen contends that the judgment adjudicating him an SVP and his co mmitmen t orders do not
expr essly authorize Appell ees or Correct Care to punish him, whether in a disciplinary procedure with due process or otherwise

. He s pecifically contends that McLane has no authority, and cannot authorize Correct Care , to punish resi dents o f the Texas Civ il Co mmitment Center where he lives

. However, TCCO is responsible for perform ing “ appropriate functions ” related to the sex

- of f

ender civil

- commitment program , including functions related to the provision of treatment and supervision to civ i l ly committed sex o ffenders. 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. T he Legislature tasked TCCO with

“ develop [i n g] procedure s for the security and monitoring of committed persons in each programming tier.” Id

. § 841.0833. Under certain cir c umsta nces, security concerns at a civil

commitment center may require a properly trained “employee of the office [TC CO] , or a person who c ontrac ts with the offic e or an employee of that person” to use mechanical or chemical restraints on a commi tted perso n residing i n a civil

- commitment center

. Id . § 841.0838. We are

5 Depending on the severity of the rule viol a tions, the possible sanctions includ e criminal charge s , monetary restitution, community service, reco mmendation for tier

- level review, unit rest riction, wing restriction, and loss of privi l e g es for up to n ine t y days per infra ct ion

.25 not persuaded that McLane lacks legal authority , or cannot a u thori ze Corr ect Ca re , to impose consequences for rule violations on residents of the Texas Civil Commitment Center if that author i ty is not e xpressly stated in a n SVP adjudicati o n or in a commitment order

. We conclude that Matzen’s Correct Care authori za t ion complain t was not a proper basis for plead ing an ultra vires claim against McLane. For all the reasons discussed , the ult r a vires all egations that Matzen pled against McLane fail. W e overrule Matzen’s third issue.

Fourth issue: Matzen’ s t ak ings and procedura l
- due
- process claims In his fourth issue, Matzen contends that the district court erred when it “dismissed” his c l aims that A ppellees “ are violating the constitutional prohibitions against the taking of property and/or liberty fou nd in Tex a s Constitutio n Arti cle 1, sections 17 and 19 and the 5th Amendment to the U.S. Constitution .” B ut the district court denied the p lea to the jurisdiction as to these “ constitutional claims against TCCO and McLane pertaining to [Matzen’s] Work Pro gram Pay. ” The retenti on of these takings and procedural due process claims is the basis for Appellees’ cross

- appeal here. Because this i s sue complai ns about the “dismissal” of claims that the district court did not order dismissed , w e overrule Matzen’s f ourt h is s ue.

Fifth is sue: McLane’s entitlement to qualified immunity
In his fifth issue, Matzen contends that McLane was not entitle d to qualifie d immunity as to his claims alleging that she was : (1) not performing discretionary activity; (2) acting outsi de t h e scope of he r auth ority; and (3) acting in bad faith

. Appellees respond that26 because Matzen has sued McLane only in her offici al capacity

— a nd not her individual capacity

— qualified immunity does not apply here

.

“ Suits against a government em ploye e in his or her off icial capacity are just another way of pleading a suit against the government entity of which the official is an a ge nt. ” Bexar Cty. v. Giroux

- Daniel , 956 S.W.2d 692, 695 (Tex. App.

— San Antonio 1997 , no writ ) ; Univ. of Tex. Health Sc i. Ct r. 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 t he entity of which [the official] is an agent. ”); see Texas A&M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 843 (Tex. 2007 ) (no ting that official sued i n his individual capacity w ould assert official immunity as defense to personal monetary liability but tha t official sued in his official capacity would assert sovereign immunity ) ; Hill v. Trinci , No. 14

- 10

- 00862

- CV, 2012 Tex. App. LEX I S 5934, at *8 (Tex. App.

— Houston [14th Dist.] July 24, 2012 , no pet.) (mem. op.) (noting that o fficial immunity is also referr ed to as qualif ied immunity ). Q ualified immunity is not a t issue when a government employee is sued only in employee’s offic ial c apacity. Giro ux - Dan iel , 956 S.W.2d at 695 ( citing Simpson v. Hines , 903 F.2d 400, 404 (5th Cir. 1990) (noting that b ecause po li ce chief was sued in o fficial capacity only, qualified immun ity wa s not at issue ))

. W e agree with Appellees that qu alifi ed i m munity is inapp licabl e to Matzen’s suit against McLane in her official capacity as Director of TCCO

. Accordingly, we overrule
M at zen’s fi fth i ssue. We proceed to consider Appellees’ cross

- appeal.

II. Appellees’ cross - appeal In their cross

- appea l, A p pell e es challenge th e deni al of their plea as to Matzen’s procedural due process and takings c laim s involving his work

- program pay. Ap pellees conte nd27 that Matzen has not stated a viable constitutional claim involving his work

- program pay and that the se cl aims , in addition to the o thers, should have been dismissed.
In his pleading , Matzen states that his takings cl aim is brought “ VERSUS AL [ L ] DEFENDANTS , ” that TCCO and McLane failed to follow prop er legal procedu res , and that Correct Care unconstit ution ally misappropriate d his wo rk program pay “without affording [him] procedural due process and/or due course of law pursuant to both United Sta tes and Texas Constitutions.” Matzen requests reimburseme nt of “the amoun t that he was unjustly and illegall y

coe rced to pay ” and that “ TCCO be enjoined from further misappropriation of [his] property as part of TCCO’s efforts to recover the cost of expen ses incurred for monitoring GPS tracking, housing and/or t rea tment.” In s upport of these claims, Matzen alle ged t he f o llowing 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, hous ing a nd treatment. O n or a bout January 13, 2016 [Matzen] was advised by the Clinical Director of the TCCC and the Assistant Deputy Director o f TCCO that all residents of his dormitory at the TCCC tha t [ sic] , each mo nth, they would have to pay 33% of their inc o me to TCCO to co ver th e 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 pr esc ribed 33% wou ld subject the residents to loss of priv ileg e s and/or electro nic de vices and that they would not advance in tier or go home. On February 23, 2016 [Matzen]’s commissary request was d enied because it was determined that [he] owed the monthly fe es for the ti me period September 2015 through De cembe r 20 1 5 in the amount of $11 35.48. 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 confidenti al banking infor mation was stored on his case manag er ’ s comp u ter. The attemp ted tr ansfer failed because it was an electronic transfer. On April 14, 2016 [Matzen] met with his new case manager in a nother attempt to make an online transfer from [Matzen] ’ s ban k to secure p ayment of [Matzen]’ s September

- Dece mber 2015 GPS monitoring, housin g, and treatment arrears.28 Using a different method of payment, [Matzen] and his case manager succeeded in transferr ing $1135.48 to TCCO.
Matzen also alleged that packages are subject to t he cost

- recovery process and that “ if ca sh i n the amount of 3 3 1⁄3% of the value of the contents of a package and the cost of shipping does not accompany a package, C orrect Care confiscates the package. ” Matzen’s response to the plea attached exhibits, and Appellees filed a motion to strike s ome o f th o se exhibits but d id not obtain a ruling on that motion. Thus, the evidence Matzen attached in his response was bef ore the district court when ruling on the plea. A ppellees contend that “ Matzen’s constitutional claims ar e not viable

. ” Th us, th e issue a s Appellees have s tated, i s “ whether a takings claus e 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 tr u e, would be a constituti on al viol a tion. F or the r e asons that follow,

we c onclude that Appellees are incorrect in their contention that a taking s cl ause claim could

never ex is t on th ese facts

. S ee Patel v. Texas Dep’t of Licensing & Regulation , 469 S.W.3d 69, 77 (Tex. 2015) (not in g that c laims need not b e “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 civ illy committed person to “ pay to t he office a mont h ly amount that t he office determines will be necessary to defray the cost of providing the housing, treatment, and service with respect to the person.” Tex. Health & Safety Code29 § 841.084(a)(2)(A). TCCO Rule 810.273 implements th at stat u te. When Matzen filed the underl ying 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 S afety Code and the cost of the tr a cking service re q uired by Health a nd 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 f or the cost rec overy and shall not requ ir e payme n t in an amount t h at exceeds the ac tual 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 Commitmen t Office, Cost of Housin g, Treatm e nt, 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 r es ponsibl e for the cost of housing and treat ment 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 of f ice 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 sh al l not r e quire payment in an amount that ex ceeds 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 , TC CO is to “ create and adm in ister a policy regarding cost recovery for services , ” setting the amount and method of payment. TCCO’s policy calculates the cost

- recovery payment amount a t “one

- third” ( 33 1⁄3 % ) of a civilly committed person’s monthly income. “ Income ” i ncludes “ money re ceived30 f rom employment, t o 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; reti re ment in c ome; social secur i ty income; unemployment benefits; and gifts. ” Id

. § 810.122(5). Per TCCO policy , packages with

a total cash value, including shipping, that exceed s $50 are also subject to cost

- recovery
assessment. See Tex. Civ. Commitment Of fi ce, Pol i cy & Procedure No

. 3.38 (effective 10/9/2017).

1. Procedural
- d ue - process claim Appellees c ontend that Matzen received all the process that he was due during his civ il commitment in 2014 and during his subseq uent hearing i n 2015 to conform his ci vil

commi t ment order to the statutory amendments. They contend that the district court’s order subject s Matzen to the entire civil

- commitment scheme without any entitle ment to s eparate due
process. They further contend that Rule 8 10.273 does not create t he cost

- r e covery payment

re q uirement but merely implements section 841.084 of the Health and Safety Code. The due

- course - of

- law guarantee of the Texas Constitution provides tha t “ N o citizen of this State shall be deprived of life, liberty, property, priv ileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Con st. art. I, § 19. The Texas due

- course - of

- law clause is near ly id entical to the federal due

- process clause: “No State s hall make or enforce any law whic h shall abridge th e 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. Tex as Health & Human Se rvs. Comm ’ n , No. 17

- 0345, 2 0 19 Tex. LEXIS 427, at *28 ( Tex. May 3, 2019) (citing University of31 Tex. Med. Sch. v. Than , 901 S.W.2d 926, 929 (Tex. 1995) , and concluding that there is no “meaningful distinction” between Texas and feder al due

- process clauses). Thus, T e xas courts

“ have t raditionally followed contemporary federal due process interpretations of procedural due process issues. ” Mosley , 2019 Tex. LEXIS 427, at *28 ( quotin g Than , 901 S.W.2d at 929 )

. “ In procedural due proce ss claims, d eprivation by state ac t ion of a constitu t ionally 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. Bur ch , 494 U.S. 113, 125 (19 90) (emph a sis 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 fai r manner.”). We apply a two

- part test to due

- proces s claim s : we determin e whether the petitioner (1) ha s a liberty or property interest that is entitled to procedural due process protection and , (2) if s o, w hat process is due. Mosley , 2019 Tex. LEXIS 427, at *28.

a. P roperty in terest

“ Property interests protected by the procedural due process clause include, at the very least, ownership of .

. . money. ” Stotter v. Univ ersity of Tex

. at San Antonio , 508 F.3d 812, 822 (5t h Cir. 2007); Fontenot v. City of Hous ton , No. 4:12

- CV

- 0 3503, 201 3 U.S. Dist. LEXIS 1 3 3600, at *2 6

- 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 co ntinu ed receipt o f social

- security b e nefits); 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.”). Her e, Matzen has alleged a vested property inter e st in the money in his32 b an k account ; thus, his claims a r e unlike those in cases such as Klumb v. Houston Municipal Emp l oy ees Pension System that were facially invalid because they alleged no veste d property right

. 458 S.W.3d 1, 15 , 17 (Tex. 2015) (concl uding that claimants had “ n o ve sted p roperty right
to the pension plan contributions and future retirement benefits at issue ” and thus, that claiman ts ’ pleadings “ conclusively negate [d] the existence of subject

- matter jurisdiction o ver the ir constitutional claims ” )

. B ecause the la ck of a v e sted property rig ht i s dispositi ve of a takings claim , the

c o n s t i t u t i o n a l a n a l y s i s e n d s whe n no vested property right is alleged

. See i d

. at 17 ; see also Holt v. Texas Dep ’ t of Ins

. - Div . of Wo rkers ’ Comp

. , No. 03

- 17

- 00 758

- CV, 2018 Tex. App. LEXI S 10555, a t * 20, *23 (Tex. App.

— Austin Dec. 20, 201 8, pet. denied) (mem. op.) ( rejecting taking s claim based on backdating of maximum

- medi cal

- improvem ent da tes , allow ed by administrative rule, that caused claimants ’ loss of temporary income benefits and no ting that “ for a takings claim to be viable, the plaintiff must establish that a vested property interest is at stake ” )

. Further, the claim ant s in Holt

— lik e Matzen

— alleged an uncon stitutional taking b ased on the
very sam e action authorized by a n agency ru le. See 2 0 18 Tex. App. LEXIS 10 555, at * 16

- 2 2 ; accord Butler v. Michigan State Disbursement Unit , 738 N.W.2d 269, 271 (Mich. 2007) ( claimant alleged uncons titutional taking ba se d on agency’s retention of accrued interest on child

- support payments it proce ssed , al th o ugh retention of accr ued interest was authorized by
statute ). Havin g d etermined that Matzen alleged a vested pro perty interest in the money in h is bank accoun t, we proceed to evaluate the viability of his constitutional claim by consider ing wha t process h e received

.33 b. P rocess due At a minimum , due p rocess requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner

. Mosley , 2019 Tex. LEXI S 427, at *28 ; see Hill v. Taylor , No. H

- 13

- 1489, 2015 U.S. Dist. LEXIS 10 5 407, at * 7 (S.D. Tex. Aug. 11, 2015) (concluding that c ivilly committed SVP showed no procedural

- due

- process violation because
courts had previously reviewe d and rejected his reques t to be released from civil comm itment pending his second civil

- commitment trial ) ; F o ntenot , 2013 U.S. Dis t. LEXIS 133600, at *27 (concluding that plaintiffs “ma [d] e out a cognizable due process claim” by alleg ing that d efendants n otif ied them that surchar ge for traffic violations was due and inform ed them of penalty to be impos e d for fai l ing to pay surcharge but provid ed no hearing or other opportunity
to contest that deprivation )

. Here, i t is undisputed that Matzen received a ju ry trial in 2014 before t he trial
court adjudicat ed him an SVP and that he had a hearing in 2015 in which t he requirements of his

c ivil commitment were con formed to the most recent legislative amendments

. But neither version of R ule 810.273 concerning the cost

- recovery policy was in effect when those proceedings were held. Moreover , section 841.084 of the Healt h and Safety Code

— whic h authorizes cost

- recove ry payments from nonindigent civilly committed SVPs

— does not address the broader policy provisions th at Appellees implemented , including extending the cost

- recovery process to all “ income ” and to pack a ges excee d ing $50 in value by c ontents and shipping costs

. Appellees complain that the facts set forth in Matzen’s pleadings o f his constitutional claims contain allegations , such as a conversati on with a caseworker, that are “unsupported by the record. ” But whe n reviewing a plea to the jurisdiction , we determin e whether t he pleader has alleged sufficient facts to affirmatively demonstrate the court’s34 juri sdiction to hear the cause and ensur e tha t the pleadings do not affirmatively negate the existence o f jurisdi c tion. Miranda , 133 S .W.3d at 226

- 27 ; see Patel , 469 S.W.3d at 77 ( reject ing requirement that claims be “ viable on their merits ” to survive plea t o jurisdiction ); cf

. Pfeil v. Freudenthal , 281 F . App ’ x. 406, 410 (5th Cir. 2008) ( reversing trial c ourt’s or d er that dism i ss ed inm ate’s takings claim as “frivolous or for failure to state a claim upon which relief may be granted” an d concluding that he al leged viable claim “for the taking of mon ey from his inmate account without due process” ); Eubanks v . McCotte r , 802 F.2d 7 9 0, 793

- 9 4 (5th Cir. 1986) (reversing trial court’s order that dismissed inmates’ takings claims for want of jurisdiction because thei r claims were “minimally sufficient to re quire a decision on the merits”)

. Appellees ’ ple a ha s not shown tha t Matzen’s pleadin g of his procedural due

- process claim fails either of th o se tests , such th at his constitutional claim c ould not be viable

.
2. Taking s claim Appellees also contend that the district court erred by not granting their plea as to
M at z en ’s ta k ings c laim because “t he takings clause simply does not apply to Matzen’s s ituation

. ” We note that the ex tent of Appellees ’ takings argument to the district court was in a footnote to the ir repl y in support of the plea , contending that “Plaintif f’ s persona l housing, treatment, and GPS monitoring are not ‘public use , ’ that “ the takings clause prohibits the taking of real property , ” and that “ [h] ere, t he Plaintiff is simply required to make monetary payments.” The Texas Constitution provides that : “[n]o per s on’s property shall b e taken, damaged or destroyed for or applied to public use without adequate compensation be ing made, unless by the consent of such person . . . .” Tex. Const. art. I, § 17

. Similarly, t he Takings Clause of the Fifth Amend me nt provid e s that “ private prope rty [shall not] be taken for public35 use, without just compensation.” U.S. Const. amend. V; see Dolan v. City of Tigard , 512 U.S. 374, 383 (1994) (noting that Takings Claus e is applicable to states through Fourteenth Amendm en t )

. The T exas Supreme Court ha s concluded that the takings clauses in the Texas and federal constitutions are substantial ly similar. City of Austin v. Tra vis Cty. Landfill Co ., 73 S.W.3d 234, 238 (Te x. 2002). Thus, determining the viability of Matzen ’ s ta kings c laim requires consider ation of whether he has alleged a taking of his money for public use, without just compen sation. See U.S. Const. amend. V; Tex. Const. art. I, § 17.

a. Public use Appellees note that Takings C lause ca ses generally rela te to eminen t

- domain proceedings. Friedman v. American Sur. Co ., 151 S.W.2d 570, 577 (Tex. 194 1). But other Takings Clause cases do not. See Texas W orkforce Comm’n v. Midfirst Bank , 40 S.W.3d 690, 697 (Tex. App.

— Austin 2001 , pet. denied ) ( “ [W] e will not limit takin g s - clause actions to si tuations involving eminent domain. ” ). T he Supreme Court’ s opinion in Bro wn v. Legal Found ation , 538 U.S. 216 (2003) , involved an alleged Fifth Amendment v iolation based on the taking of money . W e include Brown in our di scussion of t he just

- compensa tion f actor

. Additionally, A ppellees contend that the money collected from the cost

- recovery fees is not for “public use,” but for services provided to an in dividual. However, the Supreme Court has noted that , “[q]uite simpl y, the gover n ment’s pursuit of a public purpose will often benefit individual private part ies.” Kelo v. C ity of New London , 545 U.S. 469, 485 (2005) ; see H

ousing Auth. of Dall. v. Higginbotham , 1 43 S.W.2d 79, 84 (Tex. 1940) ( “The mere fact that the advant age of the u s e inures to a particul ar individual or enterprise, or group thereof, will not36 deprive it of its public character .” ); see also KMS Retail Rowlett, LP v. City of Rowlett , No. 17

- 0850, 2019 Tex. LEXIS 463, a t *25 ( Tex. May 17, 2019) ( s ame)

. The Supreme Cour t 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 publ ic needs justify th e use of the takings power. ” Kelo , 545 U.S. at 4 8 0 , 483

. A taking that is “ rationally r elated to a conceivable public purpose ” constitutes a

“ public use ” under the Fifth Amendment. Ha waii Hous

. Auth. v. Midkiff , 467 U.S. 229, 241 (1984) ; Harris Cty. Flood Cont rol D ist. v. Kerr , 499 S.W.3d 793, 812 (Tex. 2 0 16) (noting that “[e]x amples of a ta king 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 som e conceivable p ublic purpose” and that “[v]ery fe w takings w i l l fail to satisfy that standard” (qu oting 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 service s to the poor was a public use, Brown , 538 U.S. 2 16 at 232 , a s was a r edevelopment p roject to e lim inate blight , a problem that caused “ added costs to the taxpayer , ” City of Las Vegas Downtown Re dev

. Agency v. Pappas , 76 P.3d 1, 6 & n.8, 11 (Nev. 2003)

. Matzen ’ s pleading about the cost

- recovery fees a lleg ed that T CCO is misappropriat in g his property as part of TCCO ’ s efforts to recover the cost of expenses incurred for monitoring, GPS tracking, housing and treatment

. Th o se cost

- recovery fees, by offset t ing an amount that otherwise would be shouldered by the taxp a y ers, are “ rationally r elated to a

co nceivable public purpose ” and thus, cons titute a “ public use ” for the purpose of Matzen’s pleading of his t akings c laim. See Midkiff , 467 U.S. at 241 ; Brown , 538 U.S. 216 at 232 ; Kerr , 499 S.W. 3d at 812

.37 b. J u st compens at i on The parties join iss ue as to w hether the cost

- recovery fees are taken “ without just
compen sation. ” A ppellees contend that Matzen is compensated because the cost

- recovery money defrays t he expense s of the housing, tracking service , and t h erapeutic tr e atment h e recei ves . However , Ap pellees 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 court

or dered housing, monitoring, and treatment

— f or the required p ay m ent of a portion of hi s money ( incl uding any wages, disability benefits , proceeds from the sale of property , i nheritance funds, interest or dividend s, retirement income , social

- security income , unempl oyment benefits , and gifts )

. Cf. Brown v. T aylor , No

. E P

- 13

- CV

- 17

- FM, 20 14 U. S. Dist. LEXI S 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 a s his “Social Security Insurance” payments because su ch argument could ha ve be en raised in his prior lawsuit) ; s e e a l s o 37 Tex. Admin. Code § 810. 122(5) (defining “income”). Similarly, we have not found any Texas authority on the constitutionality of tying pay ment o f cost

- recovery amount s to the S VP’s abili ty to “ adva nce in tier ” i n his ci vil c ommitment u nder the SVP Act if his progress warrants it

. The Supreme Court has concluded that t he question of “just compensation” is measured by what the property owner has l ost. Brown , 538 U.S. at 235

. F urther, the a mount of

c ompensation due is c alcul ated 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 , 73 8 N.W. 2d at 271 ( rejecting contention that agency ’ s retention of accrued interest on child

-38 suppor t payments it proc essed was unconstitutional taking because “ plaintiff ’ s net loss was

zero ” )

. In Brown , the Court considered whether the transfe r of inter est in come generated by clients’ po oled f unds under a state’s IOLTA (interes t on lawyer’s trust a ccounts) program constituted a taking without just compensation. Id . at 220. The Court quoted from the circuit court’s dissenting opinion, noting t hat
[i] t may be that the difference betwee n what a pooled fund earns, and what the in dividual clients . . . lose, adds up t o enough to sustain a valuable IOLTA program while not depriving any of the clients . . . of just compensation for the takings

. Thi s is a pra ctical question entirely undevelo pe d on t his record.

Id . at 238

. 6 Our r ecord has a similar factual deficienc y. As we have noted, the cost

- recovery worksheet for calculation of the amount payable to TCCO that Appellees attached in support of th eir pl ea was blank , while Matzen attac hed a com pleted cost

- r e c o v ery worksheet in r esponse to the plea

. See Mi randa , 133 S.W. 3d at 227 ( considering relevant evidence submitted by parties when necessary to resolve jurisdictional issue). Neithe r party ’ s e vide nce shows whether Appell ees ’ costs for Matzen ’s housing, m onitoring, and treat me nt are so great , and M atzen ’ s monthly contribution so small , that there is no net pecuniary l oss a nd no compensation due

. See

6 Ultimately, the Cour t decided that further hearings were unnecessary because the state’s IOLTA program rules directed lawye rs “to deposit client funds in non

- IOL T A a ccounts whenever those funds could generate e a r nin gs for the cli e nt .” Brown v. L egal Found ., 538 U.S. 216, 23 9 (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. I d

. The Court furth e r determined that “any conceivable net loss” w as a consequence of “incorrect private decisions rather than any state action.” Id

. W hen 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 23 7. Determining whether an y compensation is due to Matzen for any net
pec uniary loss r esulting from the taki ng he has pled necessarily re q uires 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 a n inquiry so fa r int o the substance of the clai ms presented that plaintiffs are

re quired to put on their case s i mply to establish jurisd iction ” and that “whether a determination of subject

- matter jurisdiction can be made at a preliminary hearing or should await fuller de velop ment of the merits of the c ase must be l eft largely to the tri al court’s sound exercise of d iscretion”) ; see also Miranda , 133 S.W.3d at 227

- 28 ( s ame)

. Without that informatio n, a

co nclusion that Matzen’s pleadings could never allege a v i abl e takings claim i s premature. O n this r ecord, w e di s agree with Appellees ’ contention s that their plea t o the jurisdiction should have been granted in full and that M atzen ’ s constitutional due process and takings claims could never exist , are facial ly invalid, and are not v iable

. M atzen ’ s plead in g of those claims do es not “ affir matively demonstrate incurabl e defects in jurisdiction , ” see Miranda , 133 S.W.3d at 226

- 27; a n d h i s p l e a d i n g alleges more than “ [ m ] er e unsupported legal conclusions , ” se e Bal quinta , 429 S.W.3d at 737

- 38

. Accordingly, w e overrule Ap p e llees’ cross appellate issue. 7

7 We express no opinion on the merits of Matzen’s claims.40 C ONCLUSION We affi r m the district court’s or der.

__________________________________________ Gisela D. T r i ana, Justice

Before Justices Goodwin, Baker, and T riana

Concurring and Dis senting O p inion by Justice Goodwin Affirmed Filed: March 6 , 2020