Dianne Hensley v. State Commission on Judicial Conduct

• Court: Court of Appeals of Texas
• Decided: November 3, 2022
• Docket: 03-21-00305-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00305-CV

Dianne Hensley, Appellant

v.

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

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

CONCURRING OPINION

Because I agree with the Court’s disposition but not its analysis, I concur in the

judgment only.

To the extent that Dianne Hensley seeks to challenge the Commission’s

investigation and subsequent disciplinary action, she could have sought de novo review of the

Commission’s decision by a special court of review but chose not to do so. See Tex. Gov’t Code

§ 33.034 (providing review of Commission’s decision). Thus, she may not complain in this case

about the Commission’s disciplinary action and is foreclosed from separately litigating her

asserted defense to that action that her conduct was protected under the Texas Religious Freedom

Restoration Act (TRFRA). See Tex. Civ. Prac. & Rem. Code § 110.004; Hagstette v. State Comm’n on Judicial Conduct, No. 01-19-00208-CV, 2020 Tex. App. LEXIS 9838, at *14 (Tex.

App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.); see also Patel v. Texas Dep’t of

Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015) (“[C]ourts will not entertain an action brought

under the UDJA when the same claim could be pursued through different channels.”). Although

the Court reaches this conclusion, it then unnecessarily and, in my view improperly, discusses

and describes the Commission’s investigation and actions. See Valley Baptist Med. Ctr.

v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (stating that under article II, section 1 of Texas

Constitution, “courts have no jurisdiction to issue advisory opinions”).

Further, I would decide Hensley’s TRFRA claims on the ground that she did not

comply with its notice provisions. See Tex. Civ. Prac. & Rem. Code § 110.006 (addressing

notice requirements). I do not agree with the Court’s analysis or its ultimate determinations

about those claims or the evidence surrounding those claims, particularly the Court making an

implicit finding by the Commission that its investigation and disciplinary action did not

substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed

any future claims. The TRFRA’s express statutory language waives sovereign immunity and

allows a plaintiff to seek compensatory damages and “injunctive relief to prevent [a] threatened

violation” when a governmental entity is violating or has threatened to violate the plaintiff’s right

to religious freedom. See id. §§ 110.005 (addressing available remedies), .008 (addressing

waiver of sovereign immunity to suit and from liability to extent liability is created by

section 110.005).

For these reasons, I concur in the judgment only.

2 __________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Filed: November 3, 2022