Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00256-CV

Robert KOEPKE,

Appellant

v.

TEXAS STATE SENATE and Texas House of Representatives,

Appellees

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2021-CI-25237

Honorable Martha Tanner, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Rebeca C. Martinez, Chief Justice

Liza A. Rodriguez, Justice

Sandee Bryan Marion, Chief Justice (Ret.)1

Delivered and Filed: July 31, 2023

AFFIRMED

Robert Koepke appeals the trial court’s order, which granted the plea to jurisdiction filed 

by the Texas State Senate and Texas House of Representatives (collectively “the Legislature”) and 

dismissed his petition for writ of mandamus. We affirm.

On December 9, 2021, Koepke filed in the trial court a petition for writ of mandamus, 

complaining that the Legislature had violated the United States and Texas Constitutions. Koepke’s

complaints in his petition stemmed from various COVID-19 related emergency orders and 

1

Sitting by assignment pursuant to section 74.003(b) of the Texas Government Code
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legislation, which he argued violated civil liberties. He also sought “a full independent audit of the 

2020 general election.” In his live petition, he requested that the Legislature

be compelled to uphold the Constitution of Texas that they swore to uphold and 

defend against all enemies, foreign and domestic; The Texas State Legislature be 

compelled to perform within the duties vested in them to enforce and uphold the 

Constitution of the state of Texas by immediately conducting a full independent 

forensic audit of the 2020 general election (including down-ballot races); this court 

nullify fraudulent election results (Daniels v. Mack 2020. Orange County Circuit 

Court – judge overturned fraudulent election); issue a return to hand-counted paper 

ballots; order the return of CARES act, America Rescue Plan, and CSLFRF funds; 

and prevent any federal, state, or local – public or private – entity within the 

jurisdiction and or operating in state of Texas compelling citizens of Texas directly 

or indirectly to participate in health care data collection, health care services, 

biometric surveillance, and force to provide healthcare information by mandamus 

from this court. 

In response to Koepke’s petition, the Legislature filed a plea to the jurisdiction, arguing that his 

petition was barred by sovereign and legislative immunity. The trial court granted the plea to the 

jurisdiction and dismissed Koepke’s petition. 

On appeal, Koepke argues the trial court erred in dismissing his petition because the

Legislature “waived immunity from liability and suit both retrospectively and prospectively.” He 

further argues that he “maintains constitutional standing—not only as a petitioner for mandamus 

relief, but as an injured plaintiff in a lawsuit where immediate dangers continue to threaten harm 

against [him].” He argues that he met the elements necessary for writ of mandamus. 

In response to Koepke’s brief, the Legislature points out that “[i]nstead of identifying a 

waiver of sovereign immunity, [Koepke] seemingly challenges the very existence of sovereign 

immunity.” Further, the Legislature argues that Koepke “cannot rely on the ultra vires exception 

to sovereign immunity because he has failed to allege the necessary elements of a mandamus 

claim.” That is, the Legislature contends that his “claims do not implicate this Court’s enforcement 

of its jurisdiction, except insofar as the judicial branch lacks jurisdiction to compel the legislative 

branch to pass or rewrite specific laws.” “Nor do [Koepke’s] claims seek to compel the 
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performance of purely ministerial acts.” The Legislature emphasizes that “the lawmaking 

[Koepke] seeks to compel necessarily requires [and] involves discretionary decision-making by 

lawmakers.” The Legislature further argues that Koepke’s claims are barred by legislative 

immunity, as Koepke “seeks to compel the Legislature to pass laws he favors,” which “falls 

squarely within the sphere of legislative activity and matters of general concern protected by 

legislative immunity.” We agree with the Legislature. 

Mandamus proceedings are subject to sovereign immunity. See League v. De Young, 2 Tex. 

497, 500, (1847), aff’d, 52 U.S. 185 (1850) (explaining that “mandamus is not a process that can 

be resorted to against a state, without her consent”). Sovereign immunity deprives a trial court of 

subject-matter jurisdiction over an action against the state unless the party suing the state 

establishes “the state’s consent, which may be alleged either by reference to a statute or to express 

legislative permission.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Koepke 

has not pointed to a statute that waives sovereign immunity for his mandamus proceeding.

Pursuant to article V, section 8 of the Texas Constitution, along with section 24.011 of the 

Texas Government Code, a district court “has mandamus jurisdiction only to enforce its own 

jurisdiction.” Williams v. Davis, 628 S.W.3d 946, 952 (Tex. App.—Houston [14th Dist.] 2021, no 

pet.); see TEX. CONST. art V, § 8 (“District court judges shall have the power to issue writs 

necessary to enforce their jurisdiction.”); TEX. GOV’T CODE § 24.011 (“A judge of a district court 

may, either in termtime or vacation, grant writs of mandamus . . . necessary to the enforcement of 

the court’s jurisdiction”). In his petition, Koepke requested that the trial court compel the 

Legislature to enact legislation favored by Koepke. However, his requested relief does not 

implicate the trial court’s mandamus jurisdiction. See Thompson v. Velasquez, 155 S.W.3d 551, 

553 (Tex. App.—San Antonio 2004, no pet.); Morath v. Tex. Taxpayer & Student Fairness 

Coalition, 490 S.W.3d 826, 887 (Tex. 2016) (Guzman, J., concurring) (explaining that the 
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Legislature has “great discretion” in passing laws and that the court has the authority to “review, 

but not rewrite the Legislature’s enactments”). 

Further, we note the ultra vires exception to sovereign immunity does not apply in this 

case. “To fall within this ultra vires exception, a suit . . . must allege, and ultimately prove, that 

the officer acted without legal authority or failed to perform a purely ministerial act.” City of El 

Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). “‘Ministerial acts’ are those ‘where the law 

prescribes and defines the duties to be performed with such precision and certainty as to leave 

nothing to the exercise of discretion or judgment.’” City of Houston v. Houston Mun. Emps.

Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018) (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 

578, 587 (Tex. 2015)). “Conversely, ‘discretionary acts’ are those that ‘require the exercise of 

judgment and personal deliberation.’” Id. (quoting Sw. Bell Tel., 459 S.W.3d at 587). Koepke’s 

petition does not complain that individual legislators are failing to perform purely ministerial acts. 

Instead, his complaints center on legislation relating to the pandemic and the resulting election—

legislation that necessarily involved the exercise of discretion by legislators. See In re Nestle USA, 

387 S.W.3d 610, 623 (Tex. 2012) (holding that “the Legislature must have discretion in structuring 

tax laws”); Moore v. Bell, 95 Tex. 151, 157, 66 S.W. 45, 48 (1902) (“The discretion which is thus 

placed in the Legislature is beyond judicial control, so long as the law is confined to the subject 

matter and the purpose for which the constitution authorized it to be enacted”). Koepke thus has 

made no showing that the ultra vires exception to sovereign immunity applies in this case. 

In addition to sovereign immunity, legislative immunity also applies. “Texas and federal 

courts have recognized that individuals acting in a legislative capacity are immune from liability 

for those actions.” In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (orig. proceeding). “An action is 

legislative in nature when it reflects a discretionary, policymaking decision of general application, 

rather than an individualized decision based upon particular facts.” Id. at 860. “No act is more 
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fundamentally legislative than lawmaking itself.” Id. Legislative immunity “shields individual 

legislators from litigation challenging the substance of a decision.” Hays Cty. v. Hays Cty. Water 

Planning P’ship, 69 S.W.3d 253, 260 (Tex. App.—Austin 2002, no pet.) (emphasis in original). 

Koepke’s complaints in his petition challenge the substance of the Legislature’s lawmaking; his 

complaints relate to discretionary, policymaking decisions of general application. Accordingly, 

legislative immunity also bars the requested relief sought by Koepke. 

For the above reasons, we hold the trial court did not err in granting the Legislature’s plea 

to the jurisdiction and dismissing Koepke’s petition.2

Liza A. Rodriguez, Justice

2

We note that in his brief, Koepke complains that the Texas e-file system refused to permit him to file his original 

petition for writ of mandamus in the Texas Supreme Court and instead forced him to file his petition in the trial court. 

This complaint is not preserved for appellate review. See TEX. R. APP. P. 33.1.