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

NO. 03-15-00007- CV

John Doe, Appellan t

v. Board of Direc tors of the State Bar of T exas; Com m ission for Law yer D iscipli ne; and Lin da Aceve do, in her Off icial Capacity as the Chief Discipl inary Couns el of the State Bar of Texas, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0163 5, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

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

J o h n Do e appea ls the trial court’s dismiss al of his decla ratory judgme nt action 1
ag ainst the Boa

rd of Direc tors of the State Ba r of Texas, the Commi ssion for L awy er Discipline, and
L inda Ace vedo, in her Offic ial Capac ity as the Chief Disciplinary Counsel of the State Ba r of Texas (collec tively , the State Ba

r Def endants). Doe soug ht decla rations that the State Ba

r Def endants wer e not pr ohibited f

rom disclosing to D oe, as a g rieva nce complainant, Ace vedo’s rec ommendation to the summary dispositi on panel conce rning Doe’ s g rieva nce ag ainst an attorney , that he was entitled
to a copy of the rec ommendation, and that Ace vedo had acte d without au t h o ri t y i n ref using to
p ro v i d e h i m a copy . The State Ba r Def endants filed a motion to dismiss for lack of jurisdictio n , which the tria l court g rante d. For the re asons that follow, we aff irm the trial cour

t’s order

.

J ohn Doe is a pse udony

m for a pe rson who filed a g rieva nce a g ainst a Texas attorney

. 1BACK GR OUND Doe filed a g rieva

nce ag ainst an attorney alleg ing violations of the Rules of Disciplinary Procedur e. See Tex. Rules Disciplinary P. R. 1.06(R), reprinted in Tex. Gov’ t Code , tit. 2, subtit. G, app. A-1 (def ining “g ri ev an ce ” as “a written statement, from whateve r source , appar ently intended to alleg e Professional Misconduct by a law y er , or lawy er Disability , or both,

rec eived by

the Off ice of Chief Disciplinary

Counsel”). Ac evedo ma de a threshold deter mination
to classify t h e gri ev an ce as a “complaint” and beg an an investiga tion into whether “just cause ” exis ted. See id. R. 1.06(G) (def ining “complaint” as written matter alleg ing conduct that constitutes profe ssional misconduct and/or disability ), (S) (def ining “inquiry ” a s w r it

te n ma tt e r alleg ing conduct that, even if true, does not const i t u t e p ro fessional misconduct or attorney disability , or both), (U) (def ining “just cause ” in rele vant part as “such cause as is found to exis t upon a rea sonable inquiry that would induce a rea sonably intelligent and prudent person to believe that an at t o rney . . . has committed an ac t or ac ts of Professional Misconduct r equiring that a S anction be imposed

. . . .”),
R

. 2

. 1 0 (r eq uiring Chief Disciplinary Counsel to examine g rieva nces and classify as inquiry or complaint). Grie vance s classified a s complaints are sent to the responde nt attorney with notice to provide a written re sponse to the alleg ations within thi rty day s. See id. R. 2.10. After rec eiving the attorney ’s response and a series of repli e s and response s, Ace vedo investiga ted the complaint and notified Doe that she did not find just cause and wo u l d re fer the complaint to the s ummary dispositi on panel. See id. R. 1.06 (CC) (def ining summ ary disp o s i tion panel as panel of g rieva

nce committee that d et er m i nes whether complaint should proce ed or be d ismiss ed based on absenc e of evidenc e of just cause afte r rea sonable investiga tion by Chief

2Disciplinary Counsel). Ace vedo place d the complain t o n t he docket of the summary dispositi on

panel. See id. R. 2.13 (re quiring Chief Disciplinary Counsel, upon deter mination that just cause does not exi st, to place c omplaint on docket of summary dispositi on panel)

. At the summary dispositi on panel docket, Ace vedo prese nted the complaint, and the panel dismiss ed the complaint. See id. R. 2.13 (re quiring Chief Disciplinary Counsel to prese nt at 2
summary dispositi on panel docket complaint “tog ether with any information, documents, evidenc e, and arg um en t deeme d nece ssary and appropr iate by the Chief Disciplinary Counsel, without the
prese nce of the Complainant o r R es p o n d ent” and providing that summary dispositi on panel shall deter mine whether complaint should be dismiss ed or proce ed). Doe asked for a copy of Ace vedo’s

rec ommendation to the summary dispositi on panel. Ace vedo d en ied Doe’ s reque st, citing the confide ntiality provisions of Rule 2.16. See id. R. 2.16 (“A ll membe rs of the staff of the Offic e of Chief Disciplinary Counsel, Boa rd of Di s ci plinary Appea ls, Commi ttees, and Commi ssion shall maintain as confide ntial all Disciplinary Procee dings and associate d rec ords [wit h exceptions not rele vant to this appea l] .”). Doe filed a decla ratory judgme nt action ag ainst the State Ba r Def endants seeking decla

rations that he is entitled to rec eive a copy of Ace vedo’s rec ommendation, that Rule 2.16 does not apply to him as complainant and does not prohibit him from rec eiving or the State Ba r Def endants from providing him a copy of Ace vedo’s rec ommendation, and that Ace vedo acte d without authority in deny ing his reque st for a copy of the rec ommendation. Doe also soug ht an order requiring Ace vedo to provide a copy of her rec ommendation to him.

There is no appea l of the panel’ s decision to dismiss

. Tex. Rules Disciplinary P. R. 2.13. 2 3The State Ba r Def endants filed a motion to dismiss fo r lack of jurisdiction. They

asser ted that they are protec ted by sovere ign and statutory immunit y , that Doe had alleg ed no actua l injury and lacke d standing , that Doe’ s claims wer e moot, and that the trial court could not intervene in the disciplinary proce ss, w hich the Texas Supre me Court has authority to reg ulate. Following a hear ing, the trial court g rante d the State Ba r Def endants’ motion to dismiss

. Doe then filed this appeal.

STANDARD OF REVIEW AND AP P LICABLE LAW

I n their motion to dismiss , the State Ba r Def endants arg

ued that the trial court lacke d subject matter jurisdiction. Whether a court has subject matter jurisdiction is a question of law that

we revie w de novo. Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). The ultimate inquiry is whether the particula r fac ts p resented aff

irmatively demonstrate a claim within the trial co u rt’s subject matter jurisdiction. Bacon v. Texas Historical Comm’n , 411 S.W .3d 161, 171 (Tex. Ap p . — Au s t i n 2013, no pet.). Among the g rounds that the State Ba r Def endants asser

ted for the trial court’s lack of subjection matter jurisdiction was that Doe’ s claims

are barr ed by sovere ign immunit y . Sovereig n immunit y protec ts the State of Texas and its ag encie s 3 from lawsuits, including suits for decla ratory or injunc ti v e r e li e f

, u n le ss immunit y has been expressly waived. Texas Dep’ t of Transp. v. Sefzik , 355 S.W .3d 618, 621–22 (Tex. 2011) (per curia m); Harris

The State Ba

r Def endants did not asser

t sovere ign immunit y in their motion to dismiss but 3 did include it as a g round for dismiss al in their arg ument at the hear ing on the motion. Doe does not contend that they

have w aived this arg ument, and the parties join i ssue on sovere ign immunity on appea l. I n any event, beca use sovere ign immunit y implicates subject matter jurisdiction, a party may raise it for the first time on appea l. Rusk State Hosp. v. Black , 392 S.W .3d 88, 95–96 (Tex. 2012); Nootsie, Lt d. v. W

illiamson C

nty. Appraisal Dist. , 925 S.W .2d 659, 662 (Tex. 1996).

4Cnty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004); Texas Natural Res. Conservation Comm’n

v. IT-Davy , 74 S.W .3d 849, 857 (Tex. 2002). The State Ba r is a g overnme nt ag ency that is entitled
to the protec tion aff

orded by sovere i gn i m m u n i ty

. See Tex. Gov’t Code § 81.011(a) (desc ribing State Ba r as administrative ag ency of judicial depar tment of g overnme nt). As a standing committee of the State Ba

r, the Commi ssion is likewise protec ted by sovere ign immunit y . See Tex. Gov’t Code § 81.076(b) (Commissi on is standing committee of S t at e Ba r); W illie v. Commission for Lawyer Discipline , No. 14-10-00900- CV, 2011 Tex. App. L EXI S 5684, at *11 (Tex. App.—Houston [14t h Dist.] J uly 26, 2011, pet. denied) (mem. op.) (Commissi on en titled to sovere ign immunit y unless waived)

. As a g overnme nt of ficial, the Chief Disciplinary Counsel ma y be a proper party

to a suit that alleg es, and ultimately proves, that she failed to perf orm a purely minist eria l act or acte d without leg al authority and thus falls within the ultra vires exception to sovere ign immunit y . See Tex. Gov’t Code § 81.076(g ) (authorizing Commi ssion for L awy er Discipline, with advice and consent of State Ba r Boa rd of Direc tors, to selec t Chief Disciplinary Counsel to serve as administrator of State Ba r’s
g rieva nce proce dure) ; Sefzik , 355 S.W .3d at 621; City of El Paso v. Heinrich , 284 S.W .3d 366, 372 (Tex. 2009) (discussing ultra vires e x ception to sovere ign immunity ).

There is no g ener al rig ht to sue a state ag ency for a decla ration of rig hts, and althoug h the Uniform Dec lara tory J udg ment Ac t (UDJA) waives immunit y for cer tain claims, it is not a g ener al waiver of immunit y . See Tex. Civ. Prac. & Rem. Code § 37.006(b); Texas Parks & W ildlif e Dep’ t v. Sawyer Trust , 354 S.W .3d 384, 388 (Tex. 2011). I t does not enlar g e a tr ial court’s jurisdiction, and a reque st for decla ratory relief does not alter the underly ing nature of a suit. Heinrich , 284 S.W .3d at 370; IT-Davy , 74 S.W .3d at 855. When sovere ign immunit y bars a claim

5ag ainst a g overnme ntal entity , the trial court lacks subject matter jurisdiction. Miranda , 133 S.W .3d

at 224.

DISCUSSIO N

I n his first issue, Doe acknow ledg es that sovere ign immunit y bars his claims except
t o the extent immunit y is expressly waived by the leg islature. Doe contends, howeve r, that hi s claims fall within exceptions allowing actions t h at (1 ) challeng e the validity of a statute and (2) asser t ultra vires claims ag ainst a state office r. See Sefzik , 35 5 S

. W

. 3 d at 6 22 (state may be
proper party to d e c la

r a to ry judgme nt action that challeng es validity of statute); Heinrich , 284 S.W .3d
at 372 (suits ag ainst g overnme ntal officia ls alleg ing, and ultimately proving , that they acte d without l ega l au t hority or failed to perf orm purely minist eria l act fall within ultra vires exception to
g overnme ntal immunit y

). We addre ss eac h exception in turn.

Ultra V ires Claim s

Doe contends that his claims ag ainst Ace vedo are not barr ed by sovere ign immunit y beca use t hey fall w i t h i n the ex ception for ultra vi res claims ag ainst a st ate official. See Heinrich , 284 S.W .3d at 372. For

the ultra vire s exception to im munity to apply , a plainti ff must prove tha t the state actor either failed to perf orm a minist eria l task or acte d wi t h o ut leg al authority

. Southwestern Bell Tel., L

. P

. v. Emmett , 459 S.W .3d 578, 587 (Tex. 2015); Heinrich , 284 S.W .3d
at 372. Doe arg ues that Ace vedo acte d ultra vires in deny ing his reque st for a copy of her

rec ommendation to the s ummary dispositi on panel based on a misinterpre tation of Rule 2.16. He does not contend that Ace vedo failed to perf orm a purely minist eria l act but complains that beca use

6Rule 2.16 does not expressly prohibit disclosure of the rec ommendation to a complainant, Ace vedo

acte d without leg al authority in withholding it. To deter mine whether Doe has asser ted a valid ultra vires claim that invokes the t rial court’s subject m atter jur i s d iction, we construe the provisions of Rule 2.16 that define the s cope of Ace vedo’s lega l authori t y , apply them to the facts that Doe has alleg ed, and asce rtain wh et her those fac ts constitute acts bey ond Ace vedo’s leg al authority

. See City of New Braunfels v. Tovar , 463 S.W .3d 913, 919 (Tex. App.—Austin 2015, no pet.) (citing Texas Dep’ t of Transp. v. Sunset Transp., Inc. , 357 S.W .3d 691, 701–02 (Tex. App.—Austin 2011, no pet.)). Under Rule 2.16 , the Offic e of Chief Disciplinary Counsel, Boa rd of Disciplinary Appea ls, Commi ttees, and Commi ssion are require d to “m ai ntain as confide ntial all Disciplinary Procee dings and associate d re co rd s . ” See Tex. Rules Disciplinary P. R. 2.16. Thus, the plain lang uag e of the rule require s confide ntiality

. S ee Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010) (we apply plain meanin g of text unless differ ent meaning is supplied by leg islative definition or is appar ent from context or unless plain meaning leads to absurd results); Galbraith Eng’g Consultant s, Inc. v. Pochuc ha , 290 S

. W

. 3 d 8 6 3 , 867 (Tex. 2009) (our primary conce rn is ex press statutory lang uag e). The rule includes sever al exceptions to confide ntiality not rele vant to thi s ap p ea l , b ut it does not include an exception for disclosure to complainants. Doe’ s arg ument that Ace vedo acte d without authority in withholding a c opy

of her

re co m m en dation inverts the ultra vires exception. For Ace vedo to make an exception for complainants when no such exception is contained in Rule 2.16 would b e to act without leg al authority , not the other way around, as Doe arg ues. We conclude that Ace vedo acte d with authority

7of law in withh o l d i ng her rec ommendation from Doe and that the ultra vires exception is

inapplicable to her. See Tovar , 463 S.W

. 3 d at 9 1 9 ; E mmett , 459 S.W .3d at 589 (whe re city employ ee acte d in acc ordanc e with cit y ordinanc e, he acte d with authority of law, and ultra vires exception did not apply

to him).
Challenge to Rule 2.16

As for the other State Ba

r Def endants, Doe challeng es Rule 2.16 in two interre lated
arg uments. He soug ht a decl ar at i o n t h at as a matter of law Rule 2.16 does not apply to him as complainant and that it does not prohibit him from rec eiving and the State Ba r Def endants providing
to him Ace vedo’s rec ommendation prior to prese nting that rec o m m en d ation to the summary dispositi on panel. Doe arg ues that this reque st for an interpre tation of Rule 2.16 falls within the exception allowing actions ag ainst the state th at challeng e the validity of a statute. See Tex. Civ. Prac. & Rem. Code § 37.006(b) (re quiring joinder of municipality in chal l en g e to municipal ordinanc e or fra

nchise); Sefzik , 355 S.W .3d at 622 & n.3 (interpr eting section 37.006(b) as requiring joinder of state in challeng e to sta t u t e) ; O’ Qu i n n v. State Bar of Texas , 763 S.W .2d 397, 399 (Tex.1998) (conc luding disciplinary rules should be trea ted like statutes). On its fa ce, this reque st for decla ratory relief appea

rs to be a reque st for statutory interpr et ation that would fall within the exception, allowing suit ag ainst the Boa rd and the Commi ssion. See Texas Lottery Comm’n v. First State Bank of DeQue en , 325 S. W

. 3 d 628, 634–35 (Tex. 2010) (UDJA contemplates that
g overnme ntal entities may be joined in suits to construe leg islative prono u n ceme nts, both those seeking invalidation and those involving interpre tation) (citing Texas Educ. Agenc y v. L ee per , 893 S.W .2d 432, 433, 446 (Tex. 1994)).

8Even if we wer e to conclude that Doe’ s claims fall within this exception to sovere ign

immunit y , h o wever, Doe has failed to alleg e a leg ally cog nizable interest in obtaining a copy of Ace vedo’s rec ommendation. Doe ar gues that he “prope rly alleg ed his specific and leg ally
cog nizable inter est aff

ecte d by the State Ba

r Def endants’ a ctions.” Howe ver, D oe has a sserted no statutory or other basis for his contention that he is entitled to a copy of Ace vedo’s rec ommendation. He cit es s ec t i o n 81.072 of the Gover nment Code, which require s the Texas Supreme Court to establish standards and proce dures t h at p rovi de for a full explanation to eac h complainant on dismiss al of a complaint. See Tex. Gov’t Code § 81.072(b)( 2). Yet he points us to no statute or rule requiring or even authorizing the Chief Disciplinary Counsel to provide the complainant with a copy of the rec ommendation to the summary dispositi on panel. I t is undisputed that Rule 2.16 does not require disclosure, and we are unpers uaded by Doe’ s arg ument that he is somehow entitled to disclosure mere ly beca

use the confide ntiality rule does not expressly prohibit disclosu re to complainants.

Doe c laims that Ace vedo’s denial of hi s reque st for a copy of her rec ommendation has preve nted him fr o m being able to revie w Ace vedo’s finding and evalua te how his complaint failed to mee t the standard of just cause, “ rende r[ing] futile any eff ort to corr ect [his] g rieva

nce in

a new filing.” But he has cited to no authority , and we know of none, for the proposition that Doe has a statutory or common law cause of actio n encompassing the leg al rig ht to demand documentation from the State Ba r Def endants in or der to a ssist him in prepa ring a potential future complaint ag ainst an attorney

. Even if we wer e to construe the confide ntiality provision of Rule 2.16

as inapplicable to D oe, he has not alleg ed, nor can he alleg e, any leg al basis supporting his r ight to

9acc ess or view Ace vedo’s recommenda tion to the s ummary dispositi on panel. The ref ore D oe has
not pleade d a leg ally cog nizable claim under any statute, rule, o r co m m o n law cause of action
capa ble of confe rring subject m atter jurisdiction upon the t rial court

. See A

. G. Edwards & Sons, 4
Inc. v. Bey er , 235 S.W .3d 704, 708 (Tex. 2007) (without statutorily require d written ag ree ment, joint

owner had no cog nizable claim t o sums in joint t enant with right of survivorship acc ount); Austin

v. HealthTrust, Inc. , 967 S.W .2d 400, 401 (Tex. 1998) (plaintiff fa i l ed to state cog nizable claim under Texas common law, which did not rec og nize private whistle b l o wer cause of action); King

v. Moores , No. 13-05-00694- CV, 2006 Tex. App. L EXI S 6083, at *12–14 (Tex. App.—Corpus Christi J uly 13, 2006, no pet.) (mem. op.) (af firming trial court’s g rant of plea to jurisdicti o n on g round plaintiff failed to state cog nizable claim under applicable state law); cf. Leeper , 893 S.W .2d
at 437 (involving class action plaintiffs who soug ht decla ration that compulsory school attendanc e law did not apply to home schooling and who alleg ed cons t i t u t i o n al and civil rig hts violations resulting from prose cutions and threa tened pr osecutions). We there fore conclude t h at t h e trial court lacke d subject matter jurisdiction and
proper ly g rante d the State Ba r Def endants’ motion to dismiss

. S ee E mmett , 459 S.W .3d at 589; HealthTrust , 967 S.W .2d at 401. We overrule Doe’ s first issue. Be cause this iss ue is dispositi ve,

we do not reach Do e’ s s econd issue, in which he arg ues that he had standing beca use he alleg ed
actua l ha rm and his c laims a

re not moot, or his third issue, in which he ar g ues that he did not se ek

To the extent Doe asked the tri al co u rt t o m o d ify Rule 2.16 or to implement a new rule 4 requiri n g d is c lo s u

r e o f th e Ch ie f D is c ip li n a

ry Counsel’s rec ommendation to the summary dispositi on panel, it is power less to do so. See State Bar of Tex. v. Gomez , 891 S.W .2d 243, 244–46 (Tex. 1994) (“[A] district court has no authority to assume [t he Supreme Court’s] authority to reg ulate the leg al profe ssion. This prohibition incl u d es t h e rendition of order s that would, as a prac tical matter, pree mpt [ the Supreme Court’s] authority .”). 10to enjoin a g rieva nce proce eding or cre ate a new rule and that the trial court would not be intruding on the province of the Te x as Supreme Court to re g ulate attorne y discipline.

CONCLUSION Having conclude d that the trial court lacke d subject matter jurisdiction, we aff irm the trial court’ s order

g ranting the State B ar D efe ndants’ motion to dism iss. 5

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Oc tober 27, 2015

Doe’ s unopposed motion for leave to file supplemental brie f is g rante d. 5 11