Hays County, Texas, Ruben Becerra, Debbie Ingalsbe, Michelle Cohen, Morgan Hammer, and Walt Smith, in Their Official Capacities v. Leslie Carnes, Jim Camp, Cathy Ramsey, and Gabrielle Moore

Opinion

ACCEPTED 15-25-00121-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 7/23/2025 12:56 PM NO. 15-25-00121-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS, 15TH DISTRICT OF TEXAS 7/23/2025 12:56:45 PM CHRISTOPHER A. PRINE Clerk

HAYS COUNTY, TEXAS, RUBEN BECERRA, DEBBIE INGALSBE, MICHELLE COHEN, MORGAN HAMMER, AND WALT SMITH, APPELLANTS

V.

LESLIE CARNES, JIM CAMP, CATHY RAMSEY, AND GABRIELLE MOORE, APPELLEES

ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS CAUSE NO. D-1-GN-25-002049 THE HON. CATHERINE A. MAUZY, PRESIDING

APPELLEES’ MOTION TO DISMISS UNDER TRAP 42.3(A)

BILL ALESHIRE SAVE OUR SPRINGS ALLIANCE BAR NO. 24031810 WILLIAM G. BUNCH ALESHIRELAW, P.C. STATE BAR NO. 03342520 3605 SHADY VALLEY DR. BILL@SOSALLIANCE.ORG AUSTIN, TEXAS 78739 ROBERT “BOBBY” LEVINSKI TELEPHONE: (512) 320-9155 STATE BAR NO. 24097993 CELL: (512) 750-5854 BOBBY@SOSALLIANCE.ORG FACSIMILE: (512) 320-9156 4701 WESTGATE BLVD., D-401 BILL@ALESHIRELAW.COM AUSTIN, TX 78745 TEL: 512-477-2320 FAX: 512-477-6410 ATTORNEYS FOR APPELLEES Appellees ask the Court to dismiss this appeal for lack of

jurisdiction and grant appellees judgment for costs.

A. INTRODUCTION

1. Appellants are Hays County, Texas, Ruben Becerra, Debbie

Ingalsbe, Michelle Cohen, Morgan Hammer, and Walt Smith, in their

official capacities as members of the Hays County Commissioners Court

(defendants in the trial court); appellees are Leslie Carnes, Jim Camp,

Cathy Ramsey, and Gabrielle Moore, voters and property taxpayers of

Hays County, Texas (plaintiffs in the trial court).

2. This case began as an Election Contest regarding a $439

million road bond election which was ordered in violation of the Texas

Open Meetings Act. In response to that original lawsuit, the Hays County

Commissioners Court filed a bond validation lawsuit pursuant to Tex.

Gov’t Code chapter 1205. The Election Contest lawsuit was then

consolidated with the bond validation lawsuit.

3. On June 23, 2025, The Honorable Catherine A. Mauzy, Judge

Appellees’ Motion to Dismiss Page |2 of the 419th District Court of Travis County, signed a Summary Judgment

Order granting Counter-Plaintiffs’ Election Contest, finding the road

bond election was thus invalid and void because the election was called

in violation of the Texas Open Meetings Act. APP. TAB A. On June 26th,

2025 Judge Mauzy signed the Final Judgment, denying all relief to Hays

County under its bond validation petition because the bonds were not

approved by voters at a valid election. APP. TAB B..

4. Pursuant to Tex. Gov’t Code 1205.023, Hays County’s bond

validation lawsuit is “a proceeding in rem” and a class action binding all

Hays County property owners, taxpayers, and anyone who has, or claims,

“a right, title, or interest in any property or money to be affected by the

public security authorization or the issuance of the public securities.”

While the trial court has in personam jurisdiction over everyone in the

“class,” as an in rem action, there is no named “defendant” whom the

bond validation suit is “against.” Not even the Attorney General.

5. Pursuant to Tex. Gov’t Code § 1205.042, Hays County served

a copy of their bond validation lawsuit on the Texas Attorney General.

Appellees’ Motion to Dismiss Page |3 Hays County did not file suit against the Attorney General, nor were they

required to do so. The Attorney General participated in the trial court

proceedings pursuant to Tex. Gov’t Code § 1205.063 providing the trial

court information and legal analysis about why the Hays County petition

was defective and why the road bonds should not be validated. APP. TAB

C. The focus of the Attorney General’s pleading was on one of the 37 road

projects because that project limits extended outside Hays County, and

the Attorney General (and Counter-Plaintiffs) argued that Hays County

lacked authority to spend bond funds on projects outside it jurisdictional

boundaries. As opposed to being a party litigant, the Attorney General’s

role was to provide information and legal analysis to the trial court

focused on the validity of the bonds. This is demonstrated by the Prayer

in the Attorney General’s pleading, asking only that the Court “enter

such order as may be proper.” (Snip from APP. TAB C, Answer by the

Attorney General)

Appellees’ Motion to Dismiss Page |4 6. The core dispute in the case brought by Appellees below—and

on appeal—is whether the Hays County Commissioners Court had

violated the Texas Open Meetings Act, an issue in which the Texas

Attorney General is not a party. When Hays County filed the appeal at

issue here, they did not name the Texas Attorney General as a party to

the appeal, naming only themselves as Appellants and the

voter/taxpayers as Appellees. Hays County did not comply with TRAP

Rule 25.1(d)(9), and on July 21, 2025, this Court asked the parties to

address the issue of the jurisdiction of the 15th Court of Appeals. That

jurisdiction, as it relates to this appeal, is whether the underlying lawsuit

was “against” the Texas Attorney General. See Tex. Gov’t Code §

Appellees’ Motion to Dismiss Page |5 22.220(d) (granting to the 15th Court of Appeals “exclusive intermediate

appellate jurisdiction over” civil cases regarding “matters brought by or

against the state or ... office ... in the executive branch of the state

government.” (emphasis added). Because the bond validation lawsuit was

not “against” the Attorney General and because the issues on appeal in

this is really a dispute over the Open Meetings Act and Election Contest

between the Hays County Commissioners Court and the Hays

voter/taxpayer appellees, Appellees respectfully ask the Court to dismiss

this appeal for lack of jurisdiction.

B. ARGUMENT & AUTHORITIES

7. The Court has the authority under Texas Rule of Appellate

Procedure 42.3(a) to dismiss an appeal for lack of jurisdiction. Pursuant

to Tex. Gov’t Code § 22.220(d)(1), the 15th Court of Appeals has

jurisdiction only if the matter is “brought by or against” the state or

executive branch office. 1

1 There is no pleading in the present case that invokes the Court’s additional jurisdiction under Tex. Gov’t Code § 22.220(d)(2) “challenging the

Appellees’ Motion to Dismiss Page |6 8. This issue of whether a lawsuit—which involves only optional

or nominal participation by a state agency or official—is truly “against”

the state official was addressed very recently in the attached concurring

opinion by Texas Supreme Court Justice Young (joined by Justice Busby)

in Six Bros. Concrete Pumping, LLC v. Tex. Workforce Comm'n, No. 23-

0711, 2025 WL 2004685 (Tex. July 18, 2025, Young. J, concurring). APP.

TAB D.

a. The Six Brothers Concrete Pumping case was a payday

complaint that was administratively adjudicated between the employer

and the employee (Tomczak) before the Texas Workforce Commission,

which decided in the employee’s favor. To obtain judicial review of that

administrative decision, Tex. Labor Code § 61.062(d) required the

employer to file a lawsuit naming the Commission and the employee as

defendants. Section 61.063 required the lawsuit to be filed in the county

of the employee’s residence, but the employer filed suit in a different

county. Whether this filing error was jurisdictional is implicated by

constitutionality or validity of a state statute or rule and the attorney general is a party to the case.”

Appellees’ Motion to Dismiss Page |7 application of Tex. Gov’t Code § 311.034 which says, in part, “....Statutory

prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.” (emphasis

added).

b. Even though the Workforce Commission was required by

law to be a named defendant in that case, Justice Young questioned

whether the lawsuit was really “against” the Commission or whether the

Commission was merely a nominal party (holding the disputed wages for

distribution based on the court’s review) and the real judicial dispute was

between the employer and the employee. Six Bros. Concrete Pumping,

LLC v. Tex. Workforce Comm'n, No. 23-0711, 2025 WL 2004685, at *3

(Tex. July 18, 2025)(asking, “But is it clear that ‘against’ means ‘if the

governmental entity is a named party’?”). Justice Young used an analogy

of a mandamus action against a judge where the judge is “nominally the

respondent (or defendant) in a mandamus action” but “has no interest in

the case other than the law being properly applied.” Id. at *4.

9. While the Six Brothers case involved a different statute (Tex.

Gov’t Code § 311.034) that applies to lawsuits “against” state officials,

Appellees’ Motion to Dismiss Page |8 the issue raised by Justic Young is directly applicable to the 15th Court of

Appeals’ jurisdiction over appeals “against” state officials. Unlike the

Labor Code requirement that the Workforce Commission be “named as a

defendant,” the Expedited Declaratory Judgment Act (EDJA), Tex. Gov’t

Code chapter 1205 does not even require the Texas Attorney General be

named as a party, and the Attorney General has the discretion to not

participate at all in the case.

10. Appellees contend the bond validation lawsuit is not “against”

the Attorney General, and the Attorney General’s role in that litigation—

particularly when the real dispute is between the Commissioners Court

and its taxpayers over whether Hays County complied with the Texas

Open Meetings Act—is to see that only valid public securities are

authorized to be issued. Compare, Tex. Gov’t Code § 1205.042 (requiring

only that the Attorney General be served a copy of the petition) with Tex.

Gov’t Code section 552.324(a)(1) permitting a governmental body to file

suit seeking to withhold information from a requestor under the Texas

Public Information Act if the suit “is filed in a Travis County district court

against the attorney general....” (emphasis added).

Appellees’ Motion to Dismiss Page |9 11. Unless Hays County’s bond validation lawsuit is a lawsuit

“against” the Attorney General, there is no other basis for jurisdiction in

the 15th Court of Appeals.

12. The core legal issue that will be in play in Hays County’s

appeal is the application of the Texas Open Meetings Act and the Election

Code election contest provision, not issues about the validity of the road

bonds themselves. The issue is whether the bonds received the requisite

approval by voters in a validly called election—an issue that can be

litigated on appeal without requiring the appeal be “against” the Texas

Attorney General or even necessitating the Attorney General’s

participation in the appeal. Without Hays County’s lawsuit being against

the Attorney General, the 15th Court of Appeals lacks jurisdiction over

the appeal.

PRAYER

For these reasons, Appellees ask the Court to grant this motion and

dismiss the appeal and grant Appellees judgment for costs.

Appellees’ Motion to Dismiss P a g e | 10 Respectfully submitted,

_____________________________ Bill Aleshire Texas Bar No. 24031810 AleshireLAW, P.C. 3605 Shady Valley Dr. Austin, Texas 78739 Cell: (512) 750-5854 Telephone: (512) 320-9155 Facsimile: (512) 320-9156 Bill@AleshireLaw.com

Save Our Springs Alliance William G. Bunch State Bar No. 03342520 bill@sosalliance.org Robert “Bobby” Levinski State Bar No. 24097993 bobby@sosalliance.org 4701 Westgate Blvd., D-401 Austin, TX 78745 Tel: 512-477-2320 Fax: 512-477-6410

ATTORNEYS FOR APPELLEES

Appellees’ Motion to Dismiss P a g e | 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served upon all parties of record via e-filing on this 23rd day of July, 2025.

MCGINNIS LOCHRIDGE LLP 1111 West Sixth Street, Building B, Suite 400 Austin, Texas 78703 512.495.6000 (telephone) 512.495.6093 (telecopier) mshaunessy@mcginnislaw.com idavis@mcginnislaw.com ajones@mcginnislaw.com jpiriano@mcginnislaw.com

Lynn Saarinen, Assistant Attorney General ATTORNEY GENERAL OF TEXAS FINANCIAL LITIGATION SECTION, GENERAL LITIGATION DIVISION MC-017 P. O. Box 12548 Austin, Texas 78711-2548 lynn.saarinen@oag.texas.gov Attorney General of Texas

_____________________________ Bill Aleshire

Appellees’ Motion to Dismiss P a g e | 12 APPENDIX TO MOTION TO DISMISS

TAB A: Order on Summary Judgment – TOMA & Election Contest

TAB B: Final Judgment

TAB C: Attorney General’s Answer filed in Trial Court

TAB D: Six Bros. Concrete Pumping, LLC v. Tex. Workforce Comm'n, No. 23-0711, 2025 WL 2004685 (Tex. July 18, 2025)

Appellees’ Motion to Dismiss P a g e | 13 TAB A 06/23/2025 03:45:59 PM Velva L. Price District Clerk Travis County D-1-GN-25-002049 TAB A TAB B 06/27/2025 12:05:13 PM Velva L. Price District Clerk Travis County D-1-GN-25-002049 CAUSE NO. D-1-GN-25-002049

IN RE HAYS COUNTY, TEXAS § DISTRICT COURT FOR THE Plaintiff § § 126TH JUDICIAL DISTRICT § § TRAVIS COUNTY, TEXAS

CONSOLIDATED WITH CAUSE NO. 24-2885 (HAYS COUNTY)

LESLIE CARNES, JIM CAMP, § IN THE DISTRICT COURT CATHY RAMSEY, and GABRIELLE § MOORE § Intervenor Counter-Plaintiffs § § OF HAYS COUNTY, TEXAS V. § § COUNTY OF HAYS, RUBEN § BECERRA, DEBBIE INGALSBE, § MICHELLE COHEN, LON SHELL, § and WALT SMITH, in their official § capacities § 207TH JUDICIAL DISTRICT Counter-Defendants

FINAL JUDGMENT

On June 17 and 18, 2025, the Court conducted the hearing on Intervenor/Counter-Plaintiffs

Leslie Carnes, Jim Camp, Cathy Ramsey and Gabrielle Moore’s (collectively, the “Intervenors/

Counter-Plaintiffs”) Motion for Summary Judgment on Intervenor/Counter-Plaintiffs’ Election

Contest and also conducted the trial on Hays County, Texas’s (“Petitioner”) First Amended Petition

for Expedited Declaratory Judgment (“Petition”) brought under Chapter 1205 of the Texas

Government Code. Petitioner, the Intervenor/Counter-Plaintiffs, and the Attorney General of Texas

appeared through counsel of record. After considering the pleadings on file, all admissible evidence

properly before the Court, and arguments of counsel, the Court, in its order signed June 23, 2025,

1 TAB B

granted Intervenor/Counter-Plaintiffs’ Election Contest and declared void the November 5, 2024

Hays County Proposition A road-bond election.

IT IS, THEREFORE,

ORDERED, ADJUDGED, AND DECREED that Petitioner’s First Amended Petition for

Expedited Declaratory Judgment is DENIED in its entirety. IT IS FURTHER

ORDERED, ADJUDGED, AND DECREED that Petitioner’s requests for declarations as

to the validity and legality of the public security authorizations that are the subject matter of its Petition

are hereby DENIED. IT IS FURTHER

ORDERED, ADJUDGED, AND DECREED that this Final Judgment, with respect to each

matter adjudicated at trial and each such matter that could have been raised is binding, conclusive, and

final against Hays County, Texas, the Hays County Commissioners Court, Ruben Becerra, Debbie

Ingalsbe, Michelle Cohen, Lon Shell, and Walt Smith, in their official capacities, the Texas Attorney

General, the Intervenor/Counter-Plaintiffs, and all who reside in Hays County, including property

owners and taxpayers in Hays County, and all who have or claim a right, title, or interest in any

property or money to be affected by the public security authorizations or the issuance of the public

securities made the subject of this lawsuit. IT IS FURTHER

ORDERED, ADJUDGED, AND DECREED that, with respect to the consolidated cases,

other than the relief granted in the Order on the Intervenor/Counter-Plaintiffs’ Motion for Summary

Judgment signed on June 23, 2025, all relief not expressly granted herein is denied. IT IS FURTHER

ORDERED, ADJUDGED, AND DECREED that all court costs are adjudged against

Petitioner. IT IS FURTHER

2 TAB B

ORDERED, ADJUDGED, AND DECREED that this Final Judgment finally disposes of

all parties and all claims and constitutes a FINAL JUDGMENT.

26th day of June, 2025. SIGNED this _______

Catherine Mauzy Presiding District Court Judge

APPROVED AS TO FORM:

MCGINNIS LOCHRIDGE LLP

_/s/ Ian Davis______________ Signed by permission Michael Shaunessy mshaunessy@mcginnislaw.com Ian Davis idavis@mcginnislaw.com Austin Jones ajones@mcginnislaw.com 1111 West Sixth Street, Building B, Suite 400 Austin, Texas 78703 Attorneys for Plaintiff/Counter-Defendants Hays County, Texas, Ruben Becerra, Debbie Ingalsbe, Michelle Cohen, Lon Shell, and Walt Smith, in their official capacities

ALESHIRELAW, P.C.

_/s/ Bill Aleshire_____________ Signed by permission Bill Aleshire bill@aleshirelaw.com 3605 Shady Valley Drive Austin, Texas 78739 Attorney for Intervenor/Counter-Plaintiffs Leslie Carnes, Jim Camp, Cathy Ramsey, and Gabrielle Moore

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

/s/ Lynn Saarinen ____________ Lynn Saarinen Assistant Attorney General lynn.saarinen@oag.texas.gov 300 West 15th Street, 12th Floor Austin, Texas 78701-1649 Attorney for Ken Paxton, Attorney General of Texas 3 TAB C

KEN PAXTON ATTORNEY GENERAL OF TEXAS

June 3, 2025

Travis County District Clerk Attn: Ms. Velva L. Price 1700 Guadalupe Street, 3rd Floor Austin, Texas 78701

Re: In Re: Hays County, Texas Cause No. D-1-GN-25-002049 Requested Cover Letter: Original Answer and Specific Defenses of Ken Paxton, Attorney General of Texas

Dear Ms. Price:

In correspondence with your staff, this requested cover letter leads and accompanies the Original Answer and Specific Defenses of Ken Paxton, Attorney General of Texas. The Original Answer includes references, added as Exhibits, that are part of the case record and included in Intervenor Counter- Plaintiffs’ Plaintiffs’ Second Amended Original Petition For Mandamus and Injunctive Relief, which was accepted by your office with a file mark of 5/14/2025 at 4:56 PM.

Exhibits referenced and incorporated into the Attorney General of Texas’s Original Answer are:

1. Exhibit P-7 2022-09-13 Travis CC Resolution 518_Hays; 2. Exhibit P-8 2023-12-19 TCCC SH 45 Gap Study Comments 2023-12-19_Item 48; 3. Exhibit P-9 2024-08-26 CC Shea - SH 45 Southwest Extension Discussion Request for Removal; and 4. Exhibit P-10 2024-08-26 CC Shea - SH 45 SW Extension-Copy of Hays CC SH45 Gap Proj.

Respectfully,

/s/ Lynn E. Saarinen Lynn E. Saarinen, State Bar Number 17498900, Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS General Litigation Division Phone (737) 224-4634 Email Lynn.Saarinen@oag.texas.gov Counsel for Ken Paxton, Attorney General of Texas

Post Office Box 12548, Austin, Texas 78711–2548  Phone (512) 463-2100  Division Fax (512) 320-0667  www.texasattorneygeneral.gov TAB C

CAUSE NO. D-1-GN-25-002049

IN RE: § IN THE DISTRICT COURT OF § § TRAVIS COUNTY, TEXAS § HAYS COUNTY, TEXAS § 126th JUDICIAL DISTRICT

ORIGINAL ANSWER AND SPECIFIC DEFENSES OF KEN PAXTON, ATTORNEY GENERAL OF TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Ken Paxton, Attorney General of Texas (“Attorney General”), a

party herein, and pursuant to Texas Government Code Chapter 1205, files this

Original Answer and Specific Defenses in response to the Original Petition for

Expedited Declaratory Judgment (“Original Petition”), filed by Hays County, Texas

(“Petitioner”), and would respectfully show the Court the following:

I. GENERAL DENIAL

The Attorney General asserts a general denial pursuant to Rule 92 of the Texas

Rules of Civil Procedure and respectfully requests that this Court require the

allegations of the Original Petition for Expedited Declaratory Judgment be properly

proved and that this Court then act in such manner as the interest of all parties

require, consonant with equity, justice, and the laws applicable to the facts as proved.

II. SPECIFIC DEFENSES

A. Pursuant to section 1205.063(a)(1) of the Government Code, the

following paragraphs and declarations prayed for by Petitioners in the Original

Petition are defective:

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 1 of 7 TAB C

1. Petitioner’s assertions in paragraphs 26 and 27 that it has the authority

of issue the Bonds authorized by Proposition A and that the Commissioners Court

validly and legally approved the order calling the bond election are defective. In

addition to potential defects in providing notice of the meeting to call the November

2024 bond election, on which the Attorney General takes no position at this time,

some of the proposed projects exceed Petitioner’s authority to undertake and

therefore constitute violations of its contract with the voters, as addressed in further

detail in section B below.

2. Petitioner’s assertion in paragraph 30 that its resolution to “reimburse

project expenditures from proceeds of future tax-exempt obligations, in connection

with all roadways and related expenditures” approved in the November 2024 bond

election complies with its contract with the voters with regard to Proposition A is

defective because it does not have authority to unilaterally construct roads outside of

its boundaries and has not secured the cooperation of the parties necessary for such

projects. Further, any effort to instead construct only the portion of the SH 45

Southwest Extension Regional Connectivity Project that is within its boundaries

likewise would not comply with its contract with the voters, who were promised a

road connecting SH 45 and IH-35, not merely an extension of SH 45 to the Travis

County line, well short of IH-35. Although the proposed bond money is for “design”,

the description of the project presented to the voters was that “the project will allow

easier access to I-35”. To the extent that any other Proposition A projects involve

similar issues, they also constitute violations of Petitioners contract with the voters.

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 2 of 7 TAB C

3. Paragraph 31 is defective in that, while section 1205.024(6) requires the

petition to set out “the interest rate or rates or the proposed maximum interest rate

of the public securities,” it instead states an estimated maximum net effective interest

rate.

4. Paragraph 33 is defective to the extent that Petitioner approved

reimbursement of costs of projects that it cannot lawfully complete, as addressed in

paragraph 2 above.

5. The declarations requested in paragraphs 38(F) and (G) are defective

because Proposition A includes projects that are beyond Petitioner’s authority to

construct, thereby preventing it from complying with its contract with the voters and

rendering its actions invalid as to those projects.

6. The declaration requested in paragraph 38(I) is overbroad in that it does

not identify the public security authorizations Petitioner seeks to declare valid.

B. Pursuant to section 1205.063(a)(2), the public securities are, or the

public security authorization or an expenditure of money relating to the public

securities is or will be invalid or unauthorized to the extent that they involve projects

that exceed Petitioner’s authority to complete. The reasons for such lack of validity

or authorization include but are not limited to the following:

1. Texas courts have long held that the express terms of resolutions and

orders calling a tax or bond election become a contract with the voters, who are

entitled to receive substantially all of the benefits and security of that contract. See,

e.g., San Saba County v. McCraw, 108 S.W.2d 200 (Tex. 1937); Fletcher v. Howard,

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 3 of 7 TAB C

39 S.W.2d 32 (Tex. 1931) (bond proceeds may not be diverted from highway described

in county order as it existed on date of election); Black v. Strength, 246 S.W. 79 (Tex.

1922) (bond proceeds may not be diverted from improvements designated in order

adopted subsequent to election order but prior to election); Moore v. Coffman, 200

S.W. 374 (Tex. 1918) (bond-financed bridge must be constructed at location

designated in election order). In this case, the contract with the voters provided that,

in exchange for approval of the proposition, including agreement to pay the resulting

taxes, Petitioner would construct the projects enumerated in the election order.

2. One of these projects is identified in the proposition as the “SH 45

Southwest Extension (Regional Connectivity Project).” “Regional connectivity” is a

term Petitioner applied to several of the projects in the proposition, and while it is

not defined, it was applied to various initiatives intended to connect major roads in

the area and reduce travel times across the area. Specifically, materials Petitioner

prepared for voters regarding the proposition showed the SH 45 Extension project

connecting SH 45 southwest of Austin to IH-35 north of Buda – approximately a third

of which would be in Travis County (Exhibit P-10 to Plaintiff’s Second Amended

Original Petition for Mandamus and Injunctive Relief).

3. However, as counties only have the authority granted to them in the

Constitution or by statute (Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)), a

county’s ability to use article 3, section 52 road bond proceeds to construct roads

extends only as far as its boundaries. See City of Breckenridge v. Stephens County, 40

S.W.2d 43, 44 (Tex. 1931) (county’s jurisdiction in highway matters is coextensive

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 4 of 7 TAB C

with the limits of the county (citing State v. Jones, 18 Tex. 874 (Tex. 1857)); hence, a

county road project stretching into an adjacent county would require the agreement

of the adjacent county. Furthermore, projects involving state highways require the

cooperation of TxDOT. See Tex. Transp. Code § 221.003 (d) (county commissioners

court may not directly control state highway improvement unless approved by the

executive director of TxDOT). Petitioner’s materials regarding the SH 45 Southwest

Extension Project listed both Travis County and TxDOT as “potential partners,”

although Travis County commissioners had notified Petitioner for years that Travis

County was opposed to the project. See Exhibits P-10 (project map of SH 45 Southwest

Extension), P-7 (September 13, 2022 letter from Travis County Commissioners Court

to Hays County Commissioners Court opposing the SH 45 Gap project), P-8

(December 22, 2023 - Travis County Commissioners Court Comments for Submission

to the Virtual SH 45 Gap Study vigorously opposing the project), P-9 (August 26, 2024

email from Travis County Commissioner Brigid Shea to Hays County Commissioners

requesting that the SH 45 Southwest Extension be removed from the bond package

since Travis County is opposed and requesting that all references to Travis County

as a “potential partner” in the project be eliminated). The Exhibits are also attached

to Plaintiff’s Second Amended Original Petition for Mandamus and Injunctive Relief

which was filed on May 14, 2025. Accordingly, Petitioner has not demonstrated that

it can deliver on its connectivity promises to voters as to the SH 45 Southwest

Extension project. And merely designing and/or constructing the portion of the road

that is within its boundaries would fall short of the connectivity Petitioner promised

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 5 of 7 TAB C

in the proposition and supporting information provided to voters. The Attorney

General therefore objects to it and to any other similarly situated projects.

III. RIGHT TO AMEND

The Attorney General reserves the right to contest all relief requested by the

Petitioners upon further review, upon failure by the Petitioners to properly prove all

allegations contained in the Petitioner’s Original Petition, or in the event the Original

Petition is amended.

IV. PRAYER

WHEREFORE, PREMISES CONSIDERED, the Attorney General respectfully

prays that upon final judgment, this Honorable Court enter such order as may be

proper. The Attorney General also requests that the Court award it any further relief

to which it may be entitled.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

AUSTIN KINGHORN Deputy Attorney General for Civil Litigation

KIMBERLY GDULA Chief, General Litigation Division

/s/ Lynn E. Saarinen LYNN E. SAARINEN

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 6 of 7 TAB C

Assistant Attorney General State Bar No. 17498900 General Litigation Division P.O. Box 12548/Mail Stop 019 Austin, Texas 78711-2548 Tel: (512) 936-1659 /Fax: (512) 302-0667 Lynn.Saarinen@oag.texas.gov

Counsel for Ken Paxton, Attorney General of Texas

CERTIFICATE OF SERVICE

I hereby certify that on June 3, 2025, a true and correct copy of the foregoing, Original Answer and Specific Defenses of Ken Paxton, Attorney General of Texas was filed and served on the following attorney of record via EfileTexas.gov:

Michael Shaunessy McGinnis Lochridge 1111 W. 6th St., Bldg. B, Ste. 400 Austin, TX 78703 512-495-6130 phone / 512-505-6343 fax MShaunessy@mcginnislaw.com Attorney for Petitioner

Bill Aleshire AleshireLAW PC 3605 Shady Valley Dr. Austin, Texas 78739 512-320-9155 phone / 512-750-5854 cell 512-320-9156 fax Bill@AleshireLaw.com Attorney for Intervenor Counter-Plaintiffs

/s/ Lynn E. Saarinen LYNN E. SAARINEN Assistant Attorney General

In Re: Hays County, Texas Original Answer and Specific Defenses of Ken Paxton Page 7 of 7 (;+3 TAB C (;+3 TAB C (;+3 TAB C (;+3 TAB C (;+3 TAB C (;+3 TAB C

From: Brigid Shea To: "debbiei@co.hays.tx.us"; "michelle.cohen@co.hays.tx.us" Cc: Comm2; Scheleen Walker; Charlie Watts; Cathy Stephens; Cynthia McDonald; Sydnia Crosbie Subject: SH 45 Southwest Extension Discussion / Request for Removal Date: Monday, August 26, 2024 3:55:14 PM Attachments: 518_Hays_Travis_County_Letter_-_Sep_13_2022_-_1-16_PM.pdf TCCC SH 45 Gap Study Complete_with_DocuSign_2023-12-19_Item_48_TC.pdf SH 45 Southwest Extension.pdf

Commissioners Ingalsbe & Cohen, I greatly appreciate you taking the time to meet and discuss our concerns with the Hays County Bond project “SH 45 Southwest Extension”, also known as the SH 45 Gap Project. My request is that the Hays County Commissioners Court remove the “SH 45 Southwest Extension” project from their bond package since roughly half of this road is in Travis County and the Travis County Commissioners Court is on record opposing the SH 45 Gap Project. Also, please eliminate references to Travis County as being a “potential partner” on this project in all current and future documents, as this is not accurate. I also recommend that Hays County contact TxDOT regarding their inclusion as a “potential partner” in your bond documents, given the feedback our staff received from them. TxDOT stated that they have not provided concurrence to this project for inclusion in CAMPO’s 2050 Regional Transportation Plan (RTP) as an on-system facility. The SH 45 Gap project is not included in the current CAMPO 2045 Plan. Has Hays County or the City of Buda submitted an application for inclusion in the CAMPO 2050 RTP update? According to Ashby Johnson, CAMPO Executive Director, to include a project located in multiple jurisdictions in the CAMPO Regional Transportation Plan, the project sponsor must get concurrence from all other jurisdictions that the project is in. Travis County staff has not received a request for concurrence for the SH 45 Gap project in the CAMPO 2050 RTP. Thanks again for meeting with me and our transportation staff. I look forward to continuing our conversation and to working with you both on other issues. Best regards, Brigid Attached documents: 1. (9/13/22) TC Commissioners letter sent to Hays County Commissioners to oppose the approval of the engineering and design contract to “complete the missing section of SH 45” between I-35 and FM 1626, connecting I-35 to South Mopac. 2. (12/22/23) TC Commissioners Court official comments sent to the Hays County SH 45 Gap Study Open House #2, stating opposition to the Gap Study. 3. (2024) Hays County document from the 2024 “SH 45 Southwest Extension” bond project that lists Travis County and TxDOT as “potential partners”. In case it’s helpful, here’s a brief history of SH 45: Decades ago, a comprehensive project was originally proposed as a multi-lane highway around the City of Austin (the “Outer Loop” or “Ring Road”) There was a vigorous debate within the Austin/Travis County community about the proposed “Ring Road”, given its location over the most environmentally sensitive areas (;+3 TAB C

within Hays County, Travis County and Austin. The developers that were supporting this roadway project decided to break the comprehensive project into small segments to avoid a more extensive Environmental Impact Statement for NEPA review due to SH45 segments traversing environmentally sensitive areas. The “SH 45 Southwest Extension” (SH 45 between I 35 and RM 1626) is one of the final pieces yet to be implemented to complete the “Ring Road”. In 2022, the Hays County Commissioners Court funded and hired a consultant team to study the feasibility of “constructing SH 45 between I35 and RM 1626”. This study was included in the CAMPO Regional Transportation Plan (RTP) 2045 update as a locally funded study. Since that time, the Travis County Commissioners Court has sent two official communications from the full Court, adopted unanimously (attached): One to the Hays County Commissioners Court members, and One during the Hays County SH 45 Gap Study Open House #2 public comment period. The current adopted transportation plan for Travis County, the Travis County Transportation Blueprint, approved unanimously by Commissioners Court in July 2019, does not include the SH 45 Gap Project in its Roadway Plan. The current regional transportation plan, the CAMPO 2045 Regional Transportation Plan, does not include the connection of SH 45 SW from I-35 to FM 1626 in the “Constrained Project List”, “Illustrative Project List” (used for ROW reservation) or in any maps of those lists. Brigid Shea Travis County Commissioner, Pct. 2 brigid.shea@traviscountytx.gov traviscountytx.gov

USA Board Chair Local Governments for Sustainability icleiusa.org (;+3 SH 45 SOUTHWEST EXTENSION TAB C

P R ECINCT 4

PR O J E C T L I M I TS: FM 1 626 T O I-35 ( TR AVI S CO UNTY )

PR O J E C T D E S CRI PTI O N: T HIS P ROJECT I S DESI GNI NG A 4 L ANE D I VI D ED H IG H W A Y

PR O J E C T S EL ECTI O N RE ASO N: T HI S PR O JECT WI L L AL L O W EA S I E R A C C ES S T O I-35

Project Type Regional Connectivity Project Location Map

Typical Section 4 Lanes Divided

Length 1.9 Miles

Bond Scope Design

Estimated Cost $7,095,000

Potential Partners TxDOT, Travis County TAB D Six Brothers Concrete Pumping, LLC v. Texas Workforce..., --- S.W.3d ---- (2025)

fought Tomczak in administrative proceedings before the 2025 WL 2004685 Texas Workforce Commission and lost. The court of appeals Only the Westlaw citation is currently available. agreed with the district court that Six Brothers's lawsuit must Supreme Court of Texas. be dismissed for lack of subject-matter jurisdiction. This Court denied Six Brothers's resulting petition for review, and SIX BROTHERS CONCRETE PUMPING, LLC, Six Brothers has filed a motion for rehearing raising two Petitioner, important issues. The first implicates the line between public v. and private litigation. A statute required Six Brothers to sue the commission, thus injecting “sovereign immunity” into TEXAS WORKFORCE COMMISSION and Martin what at its core is just a private dispute between Six Brothers Tomczak, Respondents and Tomczak. The second issue involves the jurisdictional No. 23-0711 consequences of filing suit in the wrong venue. Here, Six | Brothers's apparent error in selecting venue led to its OPINION FILED: July 18, 2025 otherwise timely suit being dismissed on jurisdictional | grounds. Rehearing Denied July 18, 2025 The issues that Six Brothers raises are far from settled and warrant further consideration in a suitable case. I write On Petition for Review from the Court of Appeals for the First separately to address why the issues matter and why the Court District of Texas, Gordon Goodman. nonetheless properly denies the motion for rehearing in this particular case. Attorneys and Law Firms

Curt Hesse, Melissa Moore, Moore & Associates Lyric Centre, Houston, for Petitioner. I William Cohen, Brent Webster, Ralph Molina, Steven Craig Robinson, Office of the Attorney General, Austin, Deborah Rao, Austin, James Lloyd, Deputy Attorney General for Civil Martin Tomczak initiated an administrative proceeding and Litigation, Austin, Samuel Dorfman, Texas Business Court, sought unpaid wages from his former employer, Six Brothers. Houston, Scott Dale Simmons, Assistant Attorney General, Using its authority as provided in the Texas Payday Law, the Austin, Thales Smith, McElroy, Sullivan, Miller & Weber, commission ruled for Tomczak, ordering Six Brothers to pay L.L.P., Austin, W. Kenneth Paxton Jr., Attorney General of $1,000. Six Brothers timely “br[ought] a suit to appeal the Texas Office of the Attorney General, Austin, for Respondent order” and, as required by statute, named both the commission Texas Workforce Commission. and Tomczak as “defendants in the suit.” Tex. Lab. Code § 61.062(a)–(c). Six Brothers made the apparently fateful Gregg M. Rosenberg, Nazanin Salehi, Rosenberg & decision to bring suit in Harris County, not in neighboring Associates, Houston, for Respondent Tomczak, Martin. Montgomery County, where Tomczak resided.

Opinion Six months into the litigation, the commission filed a plea to *1 Rehearing of petition for review denied. the jurisdiction, arguing that because Six Brothers failed to bring suit “in the county of the claimant's residence,” id. § 61.062(d), the Harris County trial court lacked subject-matter Justice Young, joined by Justice Busby, concurring in the jurisdiction. The commission argued that this mandatory- denial of the motion for rehearing. venue provision is a “[s]tatutory prerequisite[ ] to a suit,” On the surface, this case concerns $1,000—the amount of meaning that it is a “jurisdictional requirement[ ]” in this “suit[ unpaid wages that Martin Tomczak claims from his former ] against a governmental entity.” See Tex. Gov't Code § employer, Six Brothers Concrete Pumping, LLC. Six Brothers 311.034. Despite Six Brothers's arguments that venue does not

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implicate subject-matter jurisdiction and that objections to it are waivable, see Tex. R. Civ. P. 86.1, the trial court granted First, Government Code § 311.034 is inapplicable unless Six the commission's plea and dismissed Six Brothers's suit “for Brothers's suit is actually “against” the commission. Is it? I want of jurisdiction with prejudice.” have my doubts. Tomczak invoked the commission's authority to function as an executive-branch tribunal, statutorily The court of appeals affirmed, holding in an “issue of first charged with resolving the Six Brothers–Tomczak dispute. To impression” that “the mandatory venue requirement in [Labor obtain review of that resolution, Labor Code § 61.062(d) Code § 61.062(d)] is a statutory prerequisite to suit [under required Six Brothers to file a new lawsuit naming the Government Code § 311.034], making failure to adhere to it a commission as a defendant. Does such a lawsuit—a jurisdictional bar to suit.” 679 S.W.3d 746, 748 (Tex. App.— procedural mechanism to trigger further review—constitute a Houston [1st Dist.] 2023). To get there, it (correctly) observed suit “against” the commission? If so, can any essentially that “[a] statutory prerequisite is a requirement that: (1) is private litigation be funneled through an administrative found in the relevant statute; (2) is required by the relevant process, which (by requiring a new lawsuit to trigger judicial statute; and (3) must be met before the suit is filed.” Id. at 749, review) would imbue the administrative result with the 751 (citing Prairie View A&M Univ. v. Chatha, 381 S.W.3d attributes of sovereign immunity? In other words, if sovereign 500, 511–12 (Tex. 2012)). The court of appeals homed in on immunity is only “waived” (thus allowing Six Brothers to the last element and noted that § 61.062(d) states that suits like secure judicial review of the order compelling it to pay Six Brothers's “must be brought” in a certain venue. Id. at 751 Tomczak) subject to § 311.034’s requirements, could the (emphasis added) (quoting Tex. Lab. Code § 61.062(d)). The legislature preclude judicial review of agency adjudications of court reasoned that because “[t]he term ‘must’ in a statute private disputes by refusing to “waive” sovereign immunity creates a condition precedent,” and “[a] condition precedent is altogether? At the very least, constitutional avoidance may an event that must happen or be performed before a right can justify treating essentially private cases as not “against” the accrue to enforce an obligation,” the condition precedent State if the state agency is a party only for procedural reasons. found in § 61.062(d) “is a statutory prerequisite,” and the “trial court did not err in granting the commission's plea to the Second, and assuming that the lawsuit is one against the State, jurisdiction.” Id. at 751–53 (first quoting Tex. Gov't Code § it is not readily apparent that mandatory-venue provisions are 311.016(3); and then quoting Centex Corp. v. Dalton, 840 properly characterized as “statutory prerequisites to suit.” S.W.2d 952, 956 (Tex. 1992)). Perhaps they are, but the distinction between getting venue wrong versus, for example, failing to sue on time or to comply *2 Six Brothers sought this Court's review, but we denied its with administrative-exhaustion requirements seems petition following briefing. Six Brothers then filed the motion potentially significant. for rehearing that the Court denies today, raising two significant issues. Because both issues are, at best, I address these issues in turn. underdeveloped both in this case and in the courts of appeals generally, my vote comes with the hope that the issues presented in this motion will come before us again after the courts have had ample time to consider them. And thus, while A I agree that it is right to deny the motion for rehearing, I think it is also proper to express my appreciation to Six Brothers and Begin with the threshold question of whether Six Brothers's its counsel for helpfully identifying these issues. suit is in fact a “suit[ ] against a governmental entity.” Tex. Gov't Code § 311.034 (emphasis added). On rehearing, Six Brothers reiterates its petition's assertion that its suit is against a governmental entity “in name only.” The careful reader will II notice, however, that the court of appeals never wrestled with Six Brothers's argument—and that is because Six Brothers I proceed as follows. never raised it before that court. Instead, when determining

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whether the mandatory-venue provision in Labor Code § 141, 144 S.Ct. 718, 218 L.Ed.2d 77 (2024)). The key statutory 61.062(d) was a statutory prerequisite to suit, the court simply term to be understood in context is not “all,” but “against.” In noted that § 61.062 generally provides a limited waiver to “the other words, once we can ascertain a rule to determine if a case commission's sovereign immunity” and so assumed that is a “suit against a governmental entity,” then the result is Government Code § 311.034 applies. 679 S.W.3d at 749. easy—all such suits are subject to § 311.034.

This Court rarely will be the initial one to consider a legal But is it clear that “against” means “if the governmental entity contention because we sit as a court of final review, not a court is a named party”? Section 311.034 does not simply state that of first instance. Six Brothers's arguments nonetheless warrant rule, for one thing; it begins with a textually enacted rationale, mention, if only to assist future litigants, the lower courts, and which is “managing state fiscal matters.” Proper textualist this Court's eventual review. inquiry does not consider unstated or generalized legislative motivations, but when enacted as part of the text, a specifically Six Brothers's arguments contesting the court of appeals’ stated purpose “can shed light on the meaning of the operative assumption that § 311.034 applies go like this: While the provisions that follow,” though it “cannot give words and commission must be named as a defendant, it has no real skin phrases of the dispositive text itself a meaning that they cannot in the game—the only “real parties in interest” are Six bear.” Antonin Scalia & Bryan A. Garner, Reading Law: The Brothers and Tomczak, so sovereign immunity is not Interpretation of Legal Texts 35, 218 (2012). implicated. The commission counters that it is a “real party” because it “has a very real interest in the outcome of this So the whole game reduces to determining what § 311.034 Payday Law litigation.” And, it says, because “this is a suit means by “against a governmental entity.” It is possible that regarding an agency action” and “is a traditional suit against a merely naming a governmental entity in any suit is enough— governmental entity,” “sovereign immunity is implicated.” but, as I describe below, that position seems in tension with common sense, our precedents, and potentially even *3 The statute, quoted in relevant part, helps assess these constitutional protections of private rights. For the moment, I competing views: assume that something more than merely having a governmental entity named as a “defendant” is required. But In order to preserve the legislature's interest in what else? managing state fiscal matters through the appropriations process, a statute shall not be Perhaps the traditional common-law method of reasoning construed as a waiver of sovereign immunity from the specific case before us in light of existing law might unless the waiver is effected by clear and prove fruitful. Doing so in this case could start with examining unambiguous language.... Statutory prerequisites the mechanics behind the Texas Payday Law to suss out to a suit, including the provision of notice, are whether, consistent with traditional understandings of jurisdictional requirements in all suits against a everyday adversarial litigation against the government, Six governmental entity. Brothers's suit is “against” the commission. We can then look to the usual sovereign-immunity principles to uncover Tex. Gov't Code § 311.034 (emphasis added). From the outset, whether this “suit” implicates that doctrine. the plain language of the statute captures “all suits against” governmental entities—not a specified subset or distinct The parties begin by disputing whether the commission is a portion, but all. If a petition in which the governmental entity “real party in interest” to Six Brothers's suit such that the must be a named party is not a “suit against a governmental litigation is truly “against” that governmental entity within the entity,” the obvious question is why? meaning of Government Code § 311.034. Six Brothers emphasizes, for example, that it “is not seeking damages from Answering that question “lies in considering the statute's text any governmental entity” and that “[n]o judgment in this case in its legal context.” Malouf v. State ex rels. Ellis, 694 S.W.3d would require any governmental entity to pay anything to Six 712, 736 (Tex. 2024) (Young, J., dissenting) (alterations Brothers.” According to the commission, however, the incorporated) (quoting Pulsifer v. United States, 601 U.S. 124,

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requirement that it be made a defendant to the suit, Tex. Lab. commission's adjudication is nothing inherently special— Code § 61.062(d), “indicates the Legislature's intent that the claims like Tomczak's are familiar in litigation, and his claim [c]ommission be a full participant in the litigation, not simply could have been initially filed in the normal course (i.e., in any a nominal representative of the party [it] found for at the number of state courts) without ever involving the agency. Cf. administrative level.” If it “is merely a nominal party,” the Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 88 commission continues, “then the text of § 61.062(d) that (Tex. 2008) (explaining that by invoking the Payday Law's requires [it] to be a separate independent defendant is administrative scheme “to a final decision, [the claimant] meaningless and superfluous.” forgoes his common law claims”).

*4 Notably, in casting itself as anything but a “nominal party,” But Tomczak invoked the administrative process, leaving Six the commission argues again and again that the legislature has Brothers with no choice but to proceed “against” both “charged [it] with defending ... its final wage claim Tomczak and the commission when it sought judicial review decisions,” “mandated” as much, and “require[d] [it] to of the commission's decision. Again, however, the muster a defense” in suits like this one. (Emphasis added.) But commission points to no statutory mandate that it defend the it has not identified a single provision within the Payday Law suit (any more than a district judge named as a respondent in requiring it (as opposed to simply permitting it) to defend its a mandamus action is mandated to defend her order). That administrative decisions in the trial courts. may be different, however, where the commission has assessed administrative penalties against an employer, paid Analogously, a district judge is nominally the respondent (or not to the employee but to the government. See Tex. Lab. Code defendant) in a mandamus action—but “the real party in § 61.053(a) (permitting penalties where “the commission interest” is always the litigant who has benefited from determines that an employer acted in bad faith in not paying whatever action the judge took that prompted the other side to wages”). The commission at least has an interest in seeing that seek mandamus relief. The district judge must be named—and those funds are eventually deposited “in the unemployment is authorized to formally respond—but as a neutral arbiter, the compensation special administration fund,” see id. § 61.065, judge has no interest in the case other than the law being and the legislature could have required the commission's properly applied. That interest is the same interest that the presence as a defendant to protect that interest. (Whether such justices of the court of appeals have in this and any other case. an action could be denied judicial review by denominating it They are not formally named as “respondents” when a a suit “against” the government and then purporting to petitioner seeks this Court's review. Their position, though, is withdraw sovereign immunity raises various other issues, of functionally identical to the commission's when its course.) determinations in a case like this one are challenged in litigation or to a district judge's when her orders are subject to *5 Yet the commission did not assess an administrative a mandamus action. penalty here. So rather than to defend such a penalty, the commission's presence as a defendant here operates almost True, the legislature has charged, mandated, and required the entirely to vindicate Six Brothers's or Tomczak's private commission to “administer” and “adopt rules as necessary to interests. The Labor Code provides, for example, that once the implement” the Payday Law. Tex. Lab. Code § 61.002(a)(1)– commission reaches a final decision against the employer, the (2). The legislature designed the Payday Law's administrative employer must “send the amount [owed to the wage claimant] scheme to provide another outlet for claimants like Tomczak to the commission for deposit in an interest-bearing escrow to vindicate their claims. See id. § 61.051(a) (providing that account” should the employer seek judicial review of the “[a]n employee who is not paid wages as prescribed by this decision. Id. § 61.063(a)(2). If a court decides that “some or chapter may file a wage claim with the commission” all of the [amount owed] is reduced or is not assessed,” then (emphasis added)). Once a claimant invokes the “the commission shall remit the appropriate amount to the administrative scheme, the commission has the authority to party ... plus the interest accrued on the escrowed amount.” Id. order wage payment and assess administrative penalties. See, § 61.063(c). Thus, an entry of judgment against both a wage e.g., id. §§ 61.052(a)(2), .053(a)–(b), .0613(a)(2)–(3). But the claimant and the commission ensures that the commission

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remits the funds the employer (here, Six Brothers) escrowed “Sovereign immunity protects the State from lawsuits for with the commission. Conversely, an entry of judgment money damages.” Tex. Nat. Res. Conservation Comm'n v. IT- against the employer ensures that the commission “pay[s] to Davy, 74 S.W.3d 849, 853 (Tex. 2002). There can be no the claimant” (here, Tomczak) “wages collected ... and any dispute that a judgment for Six Brothers here would not interest earned on those wages.” See id. § 61.064. implicate the State's fisc in the traditional sense. So, as Six Brothers notes, § 311.034’s concern for “preserv[ing] the In other words, this suit directly implicates Six Brothers's and legislature's interest in managing state fiscal matters through Tomczak's rights and liabilities, but it affects the commission's the appropriations process” falls a bit flat. (Emphasis added.) only in an attenuated way at most. Specifically, the Still, we have said that “[w]here the purpose of a proceeding administrative decision below might have hinged on the against state officials is to control action of the State or subject commission's legal interpretation of the Payday Law, giving it it to liability, the suit is against the State and cannot be an independent interest in participating in this litigation by maintained without the consent of the Legislature.” Griffin v. defending that interpretation. Consistent with my reference Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960). In other above, Six Brothers counters that this interest “is no different words, these “suits” implicate sovereign immunity, whereas than th[is] Court's interest in resolving this petition.” True, the “suits to compel state officers to act within their official judges of this Court, the courts of appeals, and the trial courts capacity do not attempt to subject the State to liability” and vindicate their interests in defending their interpretations of thus “do not implicate the sovereign-immunity doctrine.” IT- constitutional provisions, statutes, or contracts by written Davy, 74 S.W.3d at 855–56 (noting that as opposed to “certain decisions or judgments—just as I do here. But for a lower declaratory-judgment actions against state officials,” those court to regard itself as now a co-appellee or co-respondent “seeking to establish a contract's validity, to enforce with the prevailing party as a case makes its journey to the performance under a contract, or to impose contractual higher courts—lodging objections, filing briefs, and liabilities” implicate sovereign immunity because they participating in arguments—would be bizarre. That is why “attempt to control state action by imposing liability on the naming a judge in a mandamus action is not bringing suit State”). In other words, our precedents suggest that the “against” that person in the traditional sense. legislature was well aware that simply naming a state entity as a defendant did not legally transform the case into a suit All told, however, these competing arguments are, at best, “against” the State. underdeveloped and will benefit from the courts of appeals’ consideration. While the commission no doubt has “a right to *6 So where does Six Brothers's suit fall? As the commission make [a] defense” in this litigation, the legislature's decision notes, and as I have confirmed above, “if it is ultimately to mandate the commission's being named as a defendant determined after judicial review that substantial evidence does could be interpreted either to require that the commission not support the wage claim decision, [the commission] ... is muster a defense or to ensure that it is bound by the eventual required to act, in remitting the appropriate amount to whom judgment (and ultimately pays the prevailing party)—or both. which judgment is rendered.” Does that make Six Brothers's Cf. Am. Indem. Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, suit one to “control state action”? Or is it simply one that 910 (1924) (concluding that an indemnity company, “though ultimately compels a state agency “to act within its official not technically a party,” was nevertheless “a party to th[e] capacity”? Does the answer depend on whether the suit” and thus “bound by the judgment” because “[i]t had a commission assessed an administrative penalty? Or is the right to make the defense, control the proceedings, [and] analysis more holistic, demanding a review of the nature of examine and cross-examine the witnesses” such that the suit the commission's defense before the trial court? It is no doubt was for all intents and purposes a suit “against” that conspicuous that Tomczak's counsel did not defend the trial company). The waters get even muddier as the parties turn to court's judgment in either this Court or in the court of the broader statutory context—namely, whether Six Brothers's appeals—instead resting entirely on the commission's papers. “suit” falls within the meaning of that term in Government These questions and quirks—and surely more unknown—are Code § 311.034 because it implicates sovereign immunity. ripe for review in the lower courts as they confront cases like this one.

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that “strict compliance with all statutory prerequisites is And yet here, Six Brothers did not advance these arguments necessary to vest a trial court with jurisdiction.” Id. at 510 or identify the quirks of the Payday Law that I have described. (citing Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 The arguments it now presents, however, provide a significant (1926)). The legislature's actions put us back to our prior benefit to the State by airing out serious questions of precedent holding that “where the cause of action and remedy administrative law, sovereign immunity, and even potentially for its enforcement are derived not from the common law but the private constitutional rights of individual litigants. The from statute, the statutory provisions are mandatory and judiciary may find that it is necessary to give “against a exclusive, and must be complied with in all respects or the governmental entity” a narrower reading to avoid serious action is not maintainable.” Id. at 512 (quoting Mingus, 285 constitutional questions. Such a reading may include only S.W. at 1087). We found the amended § 311.034’s mandate to cases that genuinely involve governmental financial interests be “clear: In a statutory cause of action against a governmental or that would require the government to take actions wholly entity, the failure to adhere to the statute's mandatory collateral to adjudicating the rights of private parties. It is provisions that must be accomplished before filing suit is a precisely because these questions are so important that the jurisdictional bar to suit.” Id. Court today properly denies the motion for rehearing as to this ground, thus allowing fuller consideration in future litigation, *7 Turning to the provision at issue, Chatha held that the 180- starting at the trial-court level. day filing requirement for bringing discrimination claims under Chapter 21 of the Labor Code was “a mandatory statutory requirement that must be complied with before filing suit,” meaning it was “a statutory prerequisite to suit under [§] B 311.034.” Id. at 503 (citing Tex. Lab. Code § 21.202). Key to the Court's decision was that “the term ‘statutory prerequisite’ refer[red] to statutory provisions that are mandatory and must But that is not the only issue Six Brothers raises. It also argues be accomplished prior to filing suit.” Id. at 512 (emphasis that even if the suit is one “against” the commission, the added). Because the claimant failed to “file a complaint” with mandatory-venue provision in Labor Code § 61.062(d) is not the agency within 180 days—i.e., before she filed suit—the a “statutory prerequisite to suit,” and thus Government Code Court held “that her suit [was] jurisdictionally barred by [§] § 311.034 does not impose any jurisdictional consequences for 311.034.” Id. at 503. The Court concluded by providing this Six Brothers's failure to bring suit in Harris County. It guidance: distinguishes the provision from those that this Court has held were statutory prerequisites to suit in a trilogy of decisions [A] statutory prerequisite to suit, whether interpreting § 311.034: Chatha, 381 S.W.3d 500; City of administrative (such as filing a charge of Madisonville v. Sims, 620 S.W.3d 375 (Tex. 2020); and Texas discrimination) or procedural (such as timely State University v. Tanner, 689 S.W.3d 292 (Tex. 2024). And filing a lawsuit) is jurisdictional when the it cites various lower-court opinions holding that various defendant is a governmental entity. venue provisions, including § 61.062(d), are not jurisdictional. As I shall explain, however, this issue (like the one explored Id. at 515. above) will benefit from further percolation among the courts of appeals. Chatha, we have explained, was one example of an “administrative” prerequisite to suit, whereas we confronted a Start with Chatha, which was the first of our cases to “procedural” prerequisite about a decade later in Sims. The “constru[e] [§ 311.034’s] reach.” 381 S.W.3d at 510. In 2005, Court there held that the Whistleblower Act's ninety-day filing the legislature amended § 311.034 to make all “statutory deadline (a “procedural” provision) was “a statutory prerequisites to suit[ ] jurisdictional as to governmental prerequisite to suit” under § 311.034. 620 S.W.3d at 377, 380 entities” (at least for suits “against” such entities). Id. at 511. (noting that Chatha concerned an “administrative” The legislature, we said, was responding to a pair of our prerequisite to suit). We observed that “an employee with a decisions that had overruled a longstanding rule establishing Whistleblower Act claim must strictly abide by the procedural

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limitations set out in the Act to obtain relief.” Id. at 379. “That 35 (Tex. Civ. App.—San Antonio 1980, writ ref'd n.r.e.) include[d] the statute of limitations, which state[d] that an (distinguishing Mingus and holding that venue provisions employee with a Whistleblower Act claim ‘must sue’ within providing that a suit “may be brought either in the county ninety days to obtain relief.” Id. (quoting Tex. Gov't Code § where the injury occurred or in the county of the claimant's 554.005). What clued us in was that “[t]he term ‘must’ residence” were “merely venue provisions,” not create[d] a condition precedent,” so “a claim that fail[ed] to jurisdictional); State v. Pounds, 525 S.W.2d 547, 548 (Tex. meet that deadline may properly be disposed of by a Civ. App.—Amarillo 1975, writ ref'd n.r.e.) (holding that a jurisdictional plea.” Id. (citing Tex. Gov't Code § 311.016(3) State Bar Act provision providing that “[n]o disbarment (“ ‘Must’ creates or recognizes a condition precedent.”)). proceedings shall be instituted against any attorney except in the District Court located in the county of said attorney's Rounding out the trilogy is Tanner, where we held that timely residence” was not a “jurisdictional statute” and “relate[d] service of process was a statutory prerequisite to suit. 689 only to venue”); see also Wichita County v. Hart, 917 S.W.2d S.W.3d at 296. The case was an offshoot of Sims—a 779, 782–83 (Tex. 1996) (finding “no indication that the “procedural” prerequisite involving “bringing suit within Legislature intended the Whistleblower Act's venue provision limitations.” Id. We acknowledged that Chatha contemplated to be jurisdictional”). Perhaps confronted with this change in actions that took place purely “ ‘before the lawsuit [was] filed’ law, to say nothing of our decisions in Chatha, Sims, and ” but that Chatha’s phrasing “was incomplete.” Id. at 300 Tanner, the San Antonio and Amarillo Courts of Appeals may (quoting Chatha, 381 S.W.3d at 512). True, “[s]ervice comes change course and hold that the venue provisions at issue in after filing,” and “one could hardly expect it to be done before Singleton and Pounds are now more properly characterized as filing,” but “while service follows filing, both are “statutory prerequisites to suit” with statutorily imposed prerequisites to ‘bringing’ the suit.” Id. (quoting the statutory jurisdictional consequences. phrase “bring suit” in Tex. Civ. Prac. & Rem. Code § 16.003(a)). Put differently, “[t]he suit is not ‘brought,’ and the Six Brothers's repeated references to cases from before § statute of limitations is not satisfied, until the plaintiff 311.034’s enactment that describe venue as not achieves both steps.” Id. “jurisdictional” are by themselves meaningless. This contention is not wrong, exactly; in private litigation, venue With this backdrop, Six Brothers asks this Court to return to § errors like this are not jurisdictional. But the question is 311.034 and distinguish the mandatory-venue provision in whether such an error has become jurisdictional (only in suits Labor Code § 61.062(d) from those we confronted in Chatha, against the government) because of § 311.034. For that reason, Sims, and Tanner. To be sure, § 61.062(d) does not fit neatly it is difficult to find any case persuasive in this discrete context within the classes of provisions we have described as if it does not engage with the new § 311.034 or the Chatha “statutory prerequisites to suit”—namely, administrative or line of cases. See, e.g., In re C.H., No. 13-17-00544-CV, 2019 procedural provisions like filing deadlines. Indeed, Six WL 5251145, at *2 (Tex. App.—Corpus Christi–Edinburg Brothers identifies several courts of appeals that, it says, “have Oct. 17, 2019, no pet.) (holding that a provision stating that held that venue is not a jurisdictional prerequisite to suit.” And “the petition must be filed in a Travis County district court” yet, upon closer inspection, it is not clear whether the cases was a “mandatory venue provision” that was not Six Brothers cites remain good law following the legislature's “jurisdictional” (citation omitted)). amendment to Government Code § 311.034 or the Chatha trilogy. The timing of the authorities alone undermines Six Take next the principal case upon which Six Brothers relies, Brothers's argument that “[t]his issue has received extensive which suffers from the same bugs as Singleton and Pounds but analysis in the lower courts, making further percolation at least pertains to the mandatory-venue provision at issue unnecessary.” here. In Kshatrya v. Texas Workforce Commission, the court of appeals held that the trial court erred in concluding that the *8 Take first the decisions Six Brothers cites that predate the “failure to file suit in the county mandated by [Labor Code § legislature's decision to amend Government Code § 311.034. 61.062(d)] deprived [it] of jurisdiction.” 97 S.W.3d 825, 827 E.g., Tex. Emps. Ins. Ass'n v. Singleton, 616 S.W.2d 232, 233– (Tex. App.—Dallas 2003, no pet.). Like the commission here,

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the commission there “claimed it had not waived its immunity 311.034 and that failure to comply with the venue provision to be sued because [the plaintiff] did not bring suit in the thus deprived the district court of jurisdiction), rev'd on other county in which he lived ... as required by” § 61.062(d). Id. at grounds, 309 S.W.3d 927 (Tex. 2010). The commission may 828. The court of appeals disagreed, concluding that “[t]his be correct that under § 61.062(d), “a suit must be brought in mandatory venue statute instructs the appealing party where the correct county,” and “only after that has happened can it to physically file suit, but there is nothing in the statutory be properly filed.” In other words, even if venue is “typically language suggesting this is a jurisdictional prerequisite.” Id. at capable of being satisfied after filing suit,” meaning it is not 831. It ultimately held that “[b]ecause venue is not “typically” a “statutory prerequisite to suit,” the court of jurisdictional, the trial judge erred in granting the pleas to the appeals may have properly held that the mandatory-venue jurisdiction in this case.” Id. at 832. provision here “must be satisfied before the jurisdictional filing deadline to confer jurisdiction on a court in a suit against Six Brothers urges this Court to follow Kshatrya even after a governmental entity.” the legislature's amendment to § 311.034 and our decisions in Chatha, Sims, and Tanner. True, the Dallas Court of Appeals This is not to say that there are not strong reasons to think that appears to have at least flaggingly done so, as has at least one Six Brothers may be right. Venue is at least arguably quite other court. See Tex. Underground, Inc. v. Tex. Workforce different for § 311.034’s purposes from the kinds of Comm'n, 335 S.W.3d 670, 674 n.1 (Tex. App.—Dallas 2011, requirements considered in Chatha, Sims, and Tanner. Indeed, no pet.) (reiterating Kshatrya’s holding that § 61.062(d) “is as one civil-procedure textbook describes them, “[v]enue not a jurisdictional requirement”); Gutierrez v. Gutierrez, No. requirements exist to ensure that a case is litigated in a court 05-14-00803-CV, 2016 WL 1242193, at *1 (Tex. App.— that is conveniently located and has some connection to the Dallas Mar. 30, 2016, no pet.) (holding that Family Code § lawsuit or to one or both of the parties.” Joseph W. Glannon et 103.001 “is not jurisdictional” but rather “is a venue statute” al., Civil Procedure 368–69 (3d ed. 2017). One may readily like Labor Code § 61.062(d) (citing Kshatrya, 97 S.W.3d at see how the legislature might require suits like Six Brothers's 832)); In re J.J.J., No. 14-08-01015-CV, 2009 WL 4613715, to be filed in the county of Tomczak's residence, as that would at *3 (Tex. App.—Houston [14th Dist.] Dec. 8, 2009, no pet.) have likely been Tomczak's venue of choice had he not (relying on Kshatrya for the proposition that “venue is not resorted to administrative proceedings. And unlike the jurisdictional”). administrative and procedural provisions at issue in the Chatha trilogy, venue is—at least traditionally—readily *9 Again, however, cases not involving the government are remediable by the defendant's moving in the trial court for not instructive, and cases in which the argument based on § another, more convenient venue (say, where witnesses and 311.034 was not pressed in the court of appeals can hardly evidence are located). Should he fail to do so, our Rules of constitute precedents about how venue statutes fare under § Civil Procedure set forth how he will have waived his right to 311.034. These cases are unhelpful because absent in any of object to an allegedly improper venue. See Tex. R. Civ. P. 86.1. them is a discussion of § 311.034 or this Court's precedents. All this to say, § 61.062(d) may be “a garden-variety venue Contra Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. provision,” one “which resembles many other venue 2022) (explaining that “three-judge panels must follow provisions, none of which are thought to alter the jurisdiction materially indistinguishable decisions of earlier panels of the of any court.” Paxton v. Am. Oversight, ––– S.W.3d ––––, –– same court unless a higher authority has superseded that prior ––, 2025 WL 1793117, at *7 (Tex. June 27, 2025) (footnote decision” (emphasis added)). omitted).

The commission, for its part, identifies one post-amendment But the potential for a vibrant debate is a good reason for this and post-Chatha case in which the court of appeals squarely Court to deny review, not to grant it. This Court should rarely held that a mandatory-venue provision was jurisdictional. See if ever be on the frontlines of a legal issue that affects litigation Scott v. Presidio ISD, 266 S.W.3d 531, 535–36 (Tex. App.— across Texas in a host of contexts. Instead, parties should raise Austin 2008) (holding that the venue requirement under the it in the lower courts and convert the potential for debate into Education Code was a statutory prerequisite to suit under § its reality. At that point, and especially if division arises, this

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Court will properly play its constitutional function of providing an authoritative statement about the requirements of the law. The Court is right to await a future case where the key arguments will both be made to and explored by our colleagues on the lower courts.

III

*10 This is a small-dollar suit with Texas-sized implications. Having gone through the administrative process and lost, Six Brothers deserved an opportunity to air its dispute before a state tribunal. But having filed in the wrong venue, it lost that opportunity—forever. An untold number of employers and employees may await a similar fate, and Six Brothers rightly wonders whether the court of appeals’ construction of the mandatory-venue provision at issue here insulates the administrative state from meaningful judicial review. For this reason, I am confident that the Court will receive further opportunities to address these issues in the fullness of time. On that understanding, I concur.

All Citations

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