John Doe v. Board of Directors of the State Bar of Texas Commission for Lawyer Discipline And Linda Acevedo, in Her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas

Opinion

ACCEPTED 03-15-00007-CV 4825837 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 12:57:03 PM JEFFREY D. KYLE CLERK NO. 03-15-00007-CV

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FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 4/9/2015 12:57:03 PM _________________________________ JEFFREY D. KYLE Clerk JOHN DOE Appellant

V.

BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS, COMMISSION FOR LAWYER DISCIPLINE; AND LINDA ACEVEDO, IN HER OFFICIAL CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL OF THE STATE BAR OF TEXAS Appellees

______________________________

On Appeal from the 126th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-001635

______________________________

APPELLANT’S BRIEF

______________________________

WEST, WEBB, ALLBRITTON & GENTRY, GAINES WEST P.C. State Bar No. 21197500 1515 Emerald Plaza gaines.west@westwebblaw.com College Station, Texas 77845 Telephone ~ (979) 694-7000 JENNIFER D. JASPER Facsimile ~ (979) 694-8000 State Bar No. 24027026 jennifer.jasper@westwebblaw.com

ROB GEORGE State Bar No. 24067623 rob.george@westwebblaw.com

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

1. Appellee (Plaintiff below):

John Doe Counsel for Appellant: GAINES WEST State Bar No. 21197500 gaines.west@westwebblaw.com

JENNIFER D. JASPER State Bar No. 24027026 jennifer.jasper@westwebblaw.com

ROB GEORGE State Bar No. 24067623 rob.george@westwebblaw.com WEST, WEBB, ALLBRITTON, & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845 (979)694-7000 – Telephone (979)694-8000 – Facsimile Appellate and Trial Court Counsel

2. Appellees (Defendant below):

Board of Directors of the State Bar of Texas, Commission For Lawyer Discipline; and Linda Acevedo, in her official capacity as the Chief Disciplinary Counsel of the State Bar of Texas Counsel for Appellant: PAUL HOMBURG, III Disciplinary Counsel State Bar No. 09934050 phomburg@texasbar.com Office of the Chief Disciplinary Counsel State Bar of Texas

APPELLANT’S BRIEF ii

711 Navarro, Suite 750 San Antonio, Texas 78205 (210) 208-6600 – Telephone (210) 208-6625 – Facsimile Trial Court Counsel

Rebecca Stevens Disciplinary Counsel State Bar No. 24065381 bstevens@texasbar.com

Office of the Chief Disciplinary Counsel State Bar of Texas P. O. Box 12487 Austin, Texas 78711-2487 (512) 427-1350 – Telephone (512) 2427-4167 – Facsimile Trial Court Counsel

APPELLANT’S BRIEF iii

TABLE OF CONTENTS

Identities of Parties and Counsel............................................................................... ii

Index of Authorities ................................................................................................... v

Issues Presented ........................................................................................................vi

Statement of Facts ...................................................................................................... 2

Summary of Argument .............................................................................................. 4

Arguments and Authorities ........................................................................................ 5

A. Standard of Review..................................................................................... 5

B. The State Bar Defendants do not enjoy sovereign immunity from the lawsuit .......................................................................................... 5

C. Doe has standing to bring this suit, which is not moot ............................... 8

1. Injury ...................................................................................................... 8

2. Mootness ................................................................................................. 9

D. This case does not seek to enjoin a grievance proceeding ...................... 11

Conclusion ............................................................................................................... 13

Prayer ....................................................................................................................... 13

Certificate of Compliance ........................................................................................ 14

Certificate of Service ............................................................................................... 14

APPELLANT’S BRIEF iv

INDEX OF AUTHORITIES

CASES

Estate of Terrell v. Sisk, 111 S.W.3d 274 (Tex. App.—Texarkana 2003, no pet.)........................................6

Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (Tex. App.—Dallas 2000, no pet.). .............................................12

In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) ............................................................................5

Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied). ......................................8

State v. Holland, 221 S.W.3d 639 (Tex. 2007). ................................................................................5

Sheth v. Dearen, 225 S.W.3d 828 (Tex. App.—Houston [14th Dist.] 2007, no pet.) .......................5

State Bar of Texas v. Gomez, 891 S.W2d 243 (Tex. 1994). ......................................................................... 11, 12

Tex. Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896 (Tex. App.—Austin 2009, no pet.) ..........................................8, 9

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011). ........................................................................ 4, 7, 8

Univ. Scholastic League v. Buchanan, 848 S.W.2d 298 (Tex. App.—Austin 1993, no writ). ..........................................10

APPELLANT’S BRIEF v

Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770 (Tex. App.—Corpus Christi 2006, no pet.). ................................5

RULES AND CODES

TEX. R. DISC. P. 2.10 ..................................................................................................9

TEX. R. DISC. P. 2.16 ............................................................................. 2, 3, 7, 10, 12

TEX. R. DISC. P. 15.09. .................................................................................. 4, 5, 6, 7

TEX. DISCIPLINARY R. PROFF’L CONDUCT Preamble .................................................1

OTHER

MERRIAM-WEBSTER ONLINE DICTIONARY .................................................................6

APPELLANT’S BRIEF vi

ISSUES PRESENTED

This appeal presents the following issues:

Whether the trial court erred in dismissing Plaintiff’s claims for lack of jurisdiction, based on sovereign immunity.

Whether the trial court erred in dismissing Plaintiff’s claims for lack of jurisdiction, based on a lack of standing or mootness.

Whether the trial court erred in dismissing Plaintiff’s claims for lack of jurisdiction over Plaintiff’s request related to the Texas Rules of Disciplinary Procedure

APPELLANT’S BRIEF vii

TO THE HONORABLE THIRD COURT OF APPEALS:

The Preamble to the Texas Disciplinary Rules of Professional Conduct

states:

The Legal profession has taken a responsibility to assure that its regulation is undertaken in the public interest rather than in furtherance of parochial or self-interested concerns of the bar, and to insist that every lawyer both comply with its minimum disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

TEX. DISCIPLINARY R. PROFF’L CONDUCT Preamble, reprinted in TEX. GOV’T CODE ANN., title 2, subtit. G, app. A. (Vernon 2013).

To support this goal of assuring that self-regulation is undertaken “in the

public interest” (rather than in self-interest), the system must always strive to be

transparent. Yet, that is exactly the opposite of what the State Bar Defendants

seek in this case. They have insisted that the very rules put into place to implement

self-regulation “in the public interest” actually prohibit a complaining member of

the public from learning why his grievance against a Texas attorney was

summarily dismissed with no explanation. There are no rules or laws, however,

which prohibit the complaining party himself, from learning about his own

grievance and why it was dismissed.

APPELLANT’S BRIEF 1

STATEMENT OF FACTS

The procedural facts of this case are not in dispute. John Doe filed a

sixteen-page grievance against a Texas-licensed attorney. The Chief Disciplinary

Counsel (“CDC”) sent its recommendation regarding the grievance ex parte to the

Summary Disposition Panel (“SDP”). The CDC then informed Complainant that

his grievance had been dismissed.

When Doe requested the CDC’s recommendation to the SDP (to understand

why the CDC believed the allegations in his complaint did not surpass the low-

threshold of “just cause”), the CDC claimed that such a disclosure would violate

Texas Rules of Disciplinary Procedure 2.16, which generally makes the grievance

process confidential. Thus, the CDC has interpreted 2.16 as making the grievance

process confidential, from the complainant himself.

This misinterpretation of 2.16 provided the basis for Doe’s declaratory

judgment action, filed on May 30, 2014, against the State Bar of Texas,

Commission for Lawyer Discipline, the State Bar of Texas, and Linda Acevedo in

her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas

(collectively, “The State Bar Defendants”). C.R. 4-20.1 In his declaratory

judgment action below, Doe sought to have the trial court declare that Texas Rules 1 Appellant will cite to the Clerk’s Record as “CR [Page No.]” and to the Reporter’s Record as “RR [Page No.]/[Line No.].”

APPELLANT’S BRIEF 2 of Disciplinary Procedure 2.16 does not apply to complainants, and the CDC

cannot hide its recommendation to the SDP from the Complainant (Appellant).2

C.R. 8 at ¶ 22. Doe also requested a declaration that Defendant Linda Acevedo, in

her official capacity as the Chief Disciplinary Counsel of the CFLD, by and

through her employee agents, acted without legal authority in denying Doe a copy

of the CDC’s recommendation to the SDP on Doe’s grievance, and that as a result,

he is entitled to receive a copy of the recommendation. C.R. 9 at ¶ 23.

To avoid such a declaration, the State Bar Defendants filed a Motion to

Dismiss, which raised 5 separate arguments, and requested dismissal of the suit.

C.R. 21-29. On July 23, 2014, a hearing on the Motion to Dismiss was held before

the Honorable Scott Jenkins. R.R. 1-40.

On October 8, 2014, an Order granting dismissal was signed. C.R. 88.

However, the parties were not notified that the Order was granted, and did not

discover the Order until December 5, 2014. Doe then filed an Unopposed Motion

to Establish Notice of Judgment under Texas Rules of Civil Procedure 306a (C.R.

89-106), which the trial court signed on January 6, 2015 (C.R. 107), thus

2 Along with his original declaratory judgment petition, Appellant filed below a Motion to Seal Records, out of an abundance of caution, to maintain the confidentiality of the entire grievance proceeding. Oddly, the State Bar Defendants opposed the Motion to Seal, a position contrary to their underlying confidentiality arguments. Despite this opposition, the Trial Court granted the Motion to Seal (CR 31-32) ordering eleven separate documents sealed, including the original 16- page grievance. Thus, while not included in the Clerk’s Record, those sealed records are available to this appellate court.

APPELLANT’S BRIEF 3 establishing that Doe first had notice of the October 8, 2014 Order on December 5,

2014, and appellate deadlines would run from December 5, 2014. While the

Motion to Establish Notice of Judgment was pending, out of an abundance of

caution, Doe filed his Notice of Appeal on December 31, 2014. Pursuant to the

signed Order granting the Motion to Establish Notice, Doe’s notice of appeal was

timely filed.

SUMMARY OF ARGUMENT

The trial court had jurisdiction over Does’s claims because the State Bar

Defendants were not immune from suit under Texas Rules of Disciplinary

Procedure 15.09 or under Sefzik. Furthermore, the trial court had jurisdiction

because Does’s claims are justiciable, and because Does’s lawsuit does not seek to

enjoin the grievance process.

APPELLANT’S BRIEF 4

ARGUMENTS AND AUTHORITIES

A. Standard of Review

The Motion to Dismiss is properly characterized as a motion to dismiss for

want of jurisdiction. RR 6 at 9-10. Under Texas caselaw, the proper standard of

review is dictated by the substance of the issue to be reviewed as opposed to the

procedural vehicle through which that issue is developed. See Sheth v. Dearen,

225 S.W.3d 828, 831 n. 2 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing

In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Valley Baptist Med. Ctr. v. Stradley,

210 S.W.3d 770, 773 (Tex. App.—Corpus Christi 2006, no pet.)). Each argument

Appellees raised below as a basis for dismissal implicates jurisdiction. Thus, the

standard of review is de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007).

B. The State Bar Defendants do not enjoy sovereign immunity from this lawsuit.

The Motion to Dismiss argues that the trial court lacked jurisdiction because

Texas Rules of Disciplinary Procedure 15.09 provides the State Bar Defendants

with complete immunity. C.R. 24 ¶6. But 15.09 applies to individuals, not entities,

and thus the trial court should have rejected this argument. TEX. R. DISC. P. 15.09,

reprinted in TEX. GOV’T CODE ANN., title 2, subtit. G, app. A-1 (Vernon 2013).

APPELLANT’S BRIEF 5

Texas Rules of Disciplinary Procedure 15.09 states, in relevant part, that all

“members of the Commission, the Chief Disciplinary Counsel . . . all members of

Committees, all members of the Board of Disciplinary Appeals . . . are immune

from suit for any conduct in the course of their official duties. Id. (emphases

added). “Member” means “one of the individuals composing a group.” MERRIAM-

WEBSTER ONLINE DICTIONARY, Definition 2, available at www.merriam-

webster.com/dictionary/member (last visited July 17, 2014). The use of the term

“their” also confirms that 15.09 applies to individuals, not entities. Thus, by its

own terms, Rule 15.09 applies only to suits against individuals.

In the case at bar, Doe named as Defendants the Board of Directors of the

State Bar and the Commission for Lawyer Discipline, neither of which is an

individual (or “member”), as contemplated by Rule 15.09. See C.R. 79; TEX. R.

DISC. P. 15.09. Doe also named the Chief Disciplinary Counsel in her official

capacity, but a suit against her in her official capacity is not a suit against her as an

individual. See, e.g., Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex. App.—

Texarkana 2003, no pet.) (noting that an official-capacity suit against a

governmental employee is not a suit against the employee but against his

employer). Accordingly, none of the named Defendants are “members,” or

APPELLANT’S BRIEF 6 individuals, as Rule 15.09 contemplates; therefore, Rule 15.09 does not apply, and

the trial court should have rejected this argument.3

At the hearing on the Motion to Dismiss (for the first time), the State Bar

Defendants asserted that they were entitled to sovereign immunity as state

agencies, citing Sefzik. See RR 15/20 (citing Tex. Dep’t of Transp. v. Sefzik, 355

S.W.3d 618 (Tex. 2011). According to the State Bar Defendants, Sefzik confirmed

that the declaratory judgment act does not waive immunity, i.e. there must be a

legislatively-provided waiver for the claims at issue. See id. This general

statement of Sefzik’s holding is correct. However, Sefzik also made clear that

declaratory judgment actions may be brought against the state or its officers in two

instances: (1) in actions against the state, and its agencies, which challenge the

validity of a statute; and (2) in ultra vires claims against a state officer. Id. at 621–

22.

Doe’s pleadings comply with Sefzik’s directives. In the present case, Doe

prayed for (1) an interpretation that Rule 2.16 does not bar Doe from receiving a

copy of the CDC’s recommendation to the SDP, and (2) a declaration that

Defendant Acevedo, in her official capacity as the Chief Disciplinary Counsel,

acted ultra vires in denying Doe’s request for a copy of the CDC’s 3 Even if the Chief Disciplinary Counsel, who was sued in her official capacity, is considered an individual to whom TRDP may apply, Complainant alleged that she acted ultra vires—without authority—which means she could not have been acting “in the course of [her] official duties” as required for Rule 15.09 to apply. See TEX. R. DISCIPLINARY. P 15.09; see, e.g., C.R. 82 ¶18.

APPELLANT’S BRIEF 7 recommendation to the SDP. CR 83. Because both requests are allowed by Sefzik,

the trial court should have disregarded the State Bar Defendants’ argument. See id.

C. Doe has standing to bring this suit, which is not moot.

In their Motion to Dismiss, the State Bar Defendants asserted that (1) Doe

failed to plead an injury-in-fact; and (2) the issues are moot. Both points are

incorrect. Because Doe properly alleged his specific and legally cognizable

interest affected by the State Bar Defendants’ actions, and because those actions

will be repeated time and again without being reviewed, the issues are justiciable,

and the trial court has jurisdiction to decide them.

1. Injury

The State Bar Defendants argue that Doe alleged “no actual harm from any

act of any of the Defendants.” C.R. 25 ¶8. In a declaratory judgment action, to

establish standing, a plaintiff must show actual or imminent harm to his own

particular interests. See Tex. Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906

(Tex. App.—Austin 2009, no pet.) (citing Save Our Springs Alliance, Inc. v. City

of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.—Austin 2010, pet. denied)).

In his Second Amended Petition, Doe states that the State Bar Defendants’

unauthorized action—denying his request for a copy of the CDC’s ex parte

APPELLANT’S BRIEF 8 recommendation to the SDP—prevents him from reviewing the CDC’s finding of

“no just cause.” C.R. 82 ¶18. Thus, Doe cannot evaluate how his grievance failed,

in Defendants’ estimation, to satisfy the very low “just cause” standard. Id.

Further, the “TRDP authorizes Plaintiff to file another grievance in this matter, but

the CDC’s unauthorized decision to hide its ex parte recommendation to the SDP

renders futile any effort to correct Plaintiff’s grievance in a new filing.”4 Id.; see

TEX. R. DISC. P. 2.10. Thus, Doe’s interest in filing a new grievance is actually

harmed by the State Bar Defendants’ unauthorized actions relating to their ex parte

recommendation. See Salazar, 304 S.W.3d at 906 (citation omitted).

2. Mootness

The Motion to Dismiss asserts that there is no live controversy because once

the SDP dismissed Doe’s grievance, the process ended and cannot be revisited.

C.R. 25-26 ¶9. But because this case meets the “public interest” exception to the

mootness doctrine—the questions involved in this case are of considerable public

importance, are capable of arising again between the same parties or other

4 To the extent the State Bar Defendants argue that Doe cannot assert a new grievance against this attorney, and thus there is no need for Doe to review the ex parte recommendation, this argument fails under the language of TRDP 2.10. TRDP 2.10 does not limit the number of grievances a complainant may file, so long as the grievance is classified as a “complaint.” TRDP 2.10. The limitations of TRDP 2.10 apply only when the CDC classifies grievances as “inquiries,” and then circumscribe the number of attempts a complainant may make to have his grievance classified as a complaint and not an inquiry. Id. TRDP 2.10’s restrictions simply do not apply once the CDC classifies a grievance as a “complaint.” Id.

APPELLANT’S BRIEF 9 members of the public, and will continue to evade judicial review—this case is not

moot. See Univ. Scholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex.

App.—Austin 1993, no writ).

Specifically, under the State Bar Defendants’ interpretation of Texas Rules

of Disciplinary Procedure 2.16, a person complaining of attorney conduct—

normally a member of the public—will never have access to the CDC’s ex parte

recommendation to the SDP. Thus, the question in this case will arise again and

again, each time a grieving complaint’s grievance is summarily dismissed with no

explanation. Each time Defendants determine that the “just cause” standard has

not been met (in any grievance proceeding against any attorney), Defendants will

again refuse to provide a copy of their ex parte recommendation to the

complaining party (who began the whole complaint process).

Moreover, following this pattern ensures that Defendants’ “no just cause”

determination is never scrutinized, and the complaining member of the public

never knows why his grievance against the attorney did not meet that low standard.

In addition, whether the State Bar Defendants are permitted to hide their ex

parte recommendation to the decision-maker from the complaining member of the

public—the very person who initiated the grievance process—is a question of

considerable public importance. The State Bar Defendants will continue

unjustifiably using Rule 2.16 to keep their ex parte recommendation from the

APPELLANT’S BRIEF 10 parties to a grievance proceeding and again, more importantly, keep their reasons

to recommend dismissal from the very person making the complaint. Furthermore,

as in this case, the SDP will continue to rule on the recommendations from the

CDC before a court can intervene, thereby prohibiting review of the CDC’s ex

parte recommendation and “no just cause” finding. For those reasons, this case

satisfies the “public interest exception” to the mootness doctrine, and the trial court

had jurisdiction to hear the pending declaratory judgment action.

D. This case does not seek to enjoin a grievance proceeding.

The State Bar Defendants argue generally that trial courts cannot enjoin

grievance proceedings, and claim this general proposition of law prevents this

Court from hearing this Declaratory Judgment action. But because Doe does not

seek (and has never sought) to enjoin any grievance proceeding, this argument is

misplaced.

Defendants rely on State Bar of Texas v. Gomez, in which the plaintiffs

asked a state district court to create a mandatory duty for attorneys to undertake

pro bono representations. 891 S.W2d 243, 246 (Tex. 1994). The supreme court

narrowly held that creating duties for attorneys is the sole province of the supreme

court, and any attempt by a lower court to so regulate the legal profession is an

impermissible usurpation of the supreme court’s authority. Id. In other words, a

trial court cannot “promulgat[e] policies and regulations governing Texas

APPELLANT’S BRIEF 11 lawyers.” Id. For that reason, in Gomez, the district court could not grant the relief

requested by the plaintiff—an injunction creating a mandatory pro bono program.

Id. Thus, because the district court could not grant the relief request, the case

before it was not justiciable, and that court lacked jurisdiction. Id.

Gomez is inapposite to this case. Doe is not asking the trial court to create a

new rule, institute a new program, insert a new requirement, or promulgate a new

policy or regulation. All the trial court is asked to do is declare that disclosure to a

complainant is not prohibited by Rule 2.16.

The State Bar Defendants also cite Favaloro v. Commission for Lawyer

Discipline, in which the plaintiff sought a court order enjoining the State Bar of

Texas, the grievance committee, and others from enforcing the grievance rules

against him. 13 S.W.3d 831, 836–37 (Tex. App.—Dallas 2000, no pet.). The

Dallas Court of Appeals rejected the plaintiff’s argument, holding that a district

court does not have jurisdiction to enjoin the “grievance procedures authorized by

the State Bar Act.” Id. (citations omitted).

Favaloro is likewise inapposite to this case. In this case, Doe is merely

asking the Court to declare rights under a rule of disciplinary procedure. Unlike

the plaintiff in Favaloro, Doe is not seeking an order from the Court halting or

forbidding the State Bar Defendants from enforcing the disciplinary rules against

him.

APPELLANT’S BRIEF 12

Defendants cite no cases which have held that a district court may not

interpret a rule of disciplinary procedure, and the trial court is well-within its

power to make such a declaration.

CONCLUSION

The trial erred when it dismissed Doe’s claims for lack of jurisdiction, and

this Court should reverse and remand to the trial court for further proceedings.

PRAYER

Appellant John Doe prays that this Court reverse the trial court’s dismissal

and remand this case for further proceedings.

Respectfully submitted,

WEST, WEBB, ALLBRITTON & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845-1515 Telephone: (979) 694-7000 Facsimile: (979) 694-8000

/s/ Gaines West By:________________________ GAINES WEST State Bar No. 21197500 gaines.west@westwebblaw.com

JENNIFER D. JASPER State Bar No. 24027026 jennifer.jasper@westwebblaw.com

ROB GEORGE State Bar No. 24067623 rob.george@westwebblaw.com

APPELLANT’S BRIEF 13

CERTIFICATE OF COMPLIANCE

I certify that this BRIEF OF APPELLANTS complies with the typeface and word-count requirement set forth in the Rules of Appellate Procedure. This motion has been prepared, using Microsoft Word, in 14-point Times New Roman font for the text and 12-point Times New Roman font for any footnotes. This motion contains 2,862 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the notice exempted by TEX. R. APP. P. 9.4(i)(1).

/s Gaines West Gaines West

CERTIFICATE OF SERVICE

On April 9, 2015, the undersigned certifies that he served a copy of this Brief of Appellee on the following in the manner listed below, in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

PAUL HOMBURG, III Via email: phomburg@texasbar.com Disciplinary Counsel and Certified Mail, RRR Office of the Chief Disciplinary Counsel State Bar of Texas 711 Navarro, Suite 750 San Antonio, Texas 78205

Rebecca Stevens Via email: bstevens@texasbar.com Disciplinary Counsel and Certified Mail, RRR Office of the Chief Disciplinary Counsel State Bar of Texas P. O. Box 12487 Austin, Texas 78711-2487

/s Gaines West Gaines West

APPELLANT’S BRIEF 14

HYPERLINKED CASE LAW

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

jurisdiction filed by Rains County and Robert M. Sisk, the county judge of Rains County, and dismissing the Terrell 111 S.W.3d 274 family's lawsuit. We affirm.

Court of Appeals of Texas, Texarkana.

The lawsuit stemmed from an automobile accident resulting Odell TERRELL, on Behalf of the ESTATE in serious personal injuries to, and ultimately the deaths of, OF J.R. TERRELL, Jr., and on Behalf of J.R. Terrell, Jr., and his wife, Virginia. The accident was the Estate of Virginia Terrell, David Elkins, caused by June Goble, Judge Sisk's secretary, while on her way to a doctor's appointment. The Terrell family alleged that and Jimmy Wayne Terrell, Appellants, Goble was in a drug-induced stupor, that Judge Sisk knew v.

she had been misusing prescription drugs but made no effort Robert M. SISK and Rains County, Texas, Appellees.

to control the situation through her employment, and that her medical visit on the date of the accident was “in furtherance of No. 06–02–00174–CV. | Submitted County business.” The lawsuit was filed against Rains County June 19, 2003. | Decided July 16, 2003.

and Judge Sisk. 2 The County and Judge Sisk raised sovereign Survivors of motorists killed in collision with county immunity and official immunity as defenses. employee brought action against county and county judge alleging failure to supervise, failure to train, failure to control, In the sole issue presented for review, the Terrell family negligent implementation of policy, and negligent hiring. The challenges the trial court's order granting the plea to the 402nd Judicial District Court, Wood County, G. Timothy jurisdiction. The Terrell family has presented a number of Boswell, J., dismissed for lack of subject matter jurisdiction. arguments in an effort to support that contention. We will Survivors appealed. The Court of Appeals, Ross, J., held address those as necessary, but recognize that the main thrust that: (1) county employee driving her own car to doctor's of their contentions is that, as to the County and Judge appointment was not acting within scope of her employment; Sisk, sovereign immunity has been waived by the Texas Tort (2) joint enterprise did not exist between employee, judge, Claims Act. 3 They contend there is a cause of action for and county; (3) judge did not act in bad faith by failing failure to supervise, for failure to train, for failure to control, to request drug test of employee; and (4) official immunity for negligent implementation of policy, negligent hiring (or barred negligence claims against judge. retention), and that “joint enterprise” applies.

Affirmed. [1] As to the claims against Rains County, the only question is whether sovereign immunity has been waived. If not, then no claim against the County can prevail. Under the doctrine of Attorneys and Law Firms sovereign immunity, a governmental unit is not liable for the *276 Christopher A. Kalis, Law Offices of Christopher A. torts of its officers or agents in the absence of a constitutional Kalis, Dallas, for appellants. or statutory provision creating such liability. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d Robert T. Bass, Allison, Bass & Associates, LLP, Austin, for 339, 341 (Tex.1998). In the absence of the state's consent to appellees. suit, a trial court lacks subject matter jurisdiction and must dismiss. The Tort Claims Act creates that limited waiver of Before MORRISS, C.J., ROSS and CARTER, JJ.

sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997).

OPINION As a governmental unit, Rains County is immune from both suit and liability unless the Tort Claims Act has waived Opinion by Justice ROSS.

that immunity. *277 Section 101.021 of the Tort Claims Odell Terrell, on behalf of the estates of J.R. Terrell, Jr., and Act has been interpreted as waiving sovereign immunity in Virginia Terrell, David Elkins, and Jimmy Wayne Terrell (the three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or Terrell family) 1 appeal from an order granting a plea to the use of property.” Tex. Dep't of Transp. v. Able, 35 S.W.3d

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

608, 611 (Tex.2000), quoting Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). Pursuant to Section 101.021, a The facts alleged by the Terrell family are that the damage governmental unit in the state is liable for: was caused by the private vehicle of the driver (Judge Sisk's secretary) while that driver was on her way to a doctor's (1) property damage, personal injury, and death appointment. There is no allegation of an express waiver of proximately caused by the wrongful act or omission or immunity. Thus, in order to fall under the Tort Claims Act the negligence of an employee acting within his scope of exception, the Terrell family must show that the use of the employment if: vehicle was part of the scope of the driver's employment by the County. “Scope of employment” is defined as “the (A) the property damage, personal injury, or death arises performance for a governmental unit of the duties of an from the operation or use of a motor-driven vehicle or employee's office or employment *278 and includes being motor-driven equipment; and in or about the performance of a task lawfully assigned to (B) the employee would be personally liable to the an employee by competent authority.” TEX. CIV. PRAC. & claimant according to Texas law; and REM.CODE ANN. § 101.001(5) (Vernon Supp.2003).

(2) personal injury and death so caused by a condition There are no allegations in the Terrell family's pleadings that or use of tangible personal or real property if the can reasonably be interpreted as showing that the driver was governmental unit would, were it a private person, be liable acting within the scope of her employment at the time of to the claimant according to Texas law. the accident. She was not traveling at the direction of her employer. There is nothing to suggest this trip to the doctor TEX. CIV. PRAC. & REM.CODE ANN. § 101.021. was any part of the performance of her duties as an employee;

rather, the pleadings show conclusively it was a personal The lack of subject matter jurisdiction is properly raised by activity away from the workplace. a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (correcting a number of The Terrell family also alleged, however, that Goble's trip to misunderstandings on that point). 4 The plaintiff has the the doctor was a part of her employment—and thus her use burden to show that jurisdiction exists by alleging facts that of her car was actionable under the vehicle exception to the affirmatively demonstrate that the trial court has subject Tort Claims Act. They argue that this theory applies because matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Judge Sisk had, on an earlier occasion, directed Goble to go Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Midland v. home, and because he permitted her to leave on this occasion. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.). In the context of suit against a governmental unit, The underlying principle is that an employee is generally the plaintiff must allege consent to suit either by reference to not in the course and scope of employment while driving statute or express legislative permission. Jones, 8 S.W.3d at his or her own vehicle to or from his or her place of 638; Sullivan, 33 S.W.3d at 6. employment. Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex.App.-Houston [14th Dist.] 1995, no writ).

In our analysis, the question of subject matter jurisdiction is a This rule is based on the premise that an injury occurring legal question which we review de novo. Sullivan, 33 S.W.3d while traveling to or from work has nothing to do with the at 6. We examine the pleadings, taking as true the facts pled, risks associated with a place of employment. Smith v. Tex. and we determine whether those allegations of fact support Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193 jurisdiction in the trial court. Tex. Ass'n of Bus., 852 S.W.2d (1937). at 446. In so doing, we construe the pleadings in favor of the pleader. Id. If necessary, we may review the entire record There is an exception to this rule that applies when an to determine if there is jurisdiction. Id. If the petition does employee undertakes a special mission for his or her not allege jurisdictional facts, the plaintiff's suit is subject to employer. Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, dismissal only when it is impossible to amend the pleadings 654 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.). to confer jurisdiction. See id. In this case, special exceptions A special mission is a specific errand that an employee directed at this matter were raised, and the Terrell family had undertakes at the specific request of the employer. Wilie the opportunity to amend their pleadings. v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359

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Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

(Tex.App.-Houston [14th Dist.] 2001, pet. denied); Upton v. Arguably, there was an agreement, and a common purpose, Gensco, Inc., 962 S.W.2d 620, 621–22 (Tex.App.-Fort Worth between Goble and the County, as the Terrell family alleges. 1997, pet. denied). However, the Terrell family's counsel has However, neither the “pecuniary interest” nor the “equal right explicitly stated in a post-submission letter to this Court that to control” elements make any sense in the context of a the “special mission” concept does not apply to the facts of benefit provided for an employee by an employer. There is no this case. We will therefore not further address that theory. real pecuniary interest involved as a profit-making business arrangement between the parties. The County provided health There is no allegation of fact to show that, on the occasion of insurance as a benefit. That was arguably a pecuniary benefit this accident, the employee went to the doctor at the specific to Goble. The health benefits are provided by doctors, who request of Judge Sisk. There is also no allegation of fact to presumably receive a pecuniary benefit from their use. In support the Terrell family's theory that Rains County had a return, the County receives—not money—but a worker who duty to keep Goble from leaving her workplace. There is is more satisfied with his or her employment and is thus more nothing in the Terrell family's pleadings that can be read to likely to remain employed by the County. support the application of the Tort Claims Act to allow them to pursue a cause of action against Rains County. The plea to Further, the mere fact that an employee has the ability to the jurisdiction was therefore properly granted. choose the doctor whom he or she will visit does not indicate such employee has “control” over a joint enterprise. It simply [2] The Terrell family also contends the County has waived shows that the employee has the ability under the provided its sovereign immunity because it was in a joint enterprise insurance contract to choose which doctor he or she will visit. with Goble. They so contend because Judge Sisk allowed Goble to use her personal vehicle to occasionally run errands In light of the fact the Texas Supreme Court has held that for the County and because the County's health insurance even business relationships such as a franchisor, wholesaler, plan provided the drugs Goble was taking, and Judge Sisk or supplier do not have a “community of pecuniary interest” allowed her to go to the doctor to obtain those drugs and did adequate to show the existence of a joint enterprise, neither not attempt to stop her. can we find any indication a joint enterprise exists in this situation. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 528 In Able, the Texas Supreme Court held that “a governmental (Tex.2002). unit that enters into a joint enterprise can be liable under the waiver of sovereign immunity found in the Tort Claims Act.” [4] The Terrell family then takes a different direction in Able, 35 S.W.3d at 610. In that case, the plaintiffs alleged a their pleadings concerning Judge Sisk. They allege that Judge premises defect involving a state highway. See id. at 612. The Sisk was the negligent party and that his negligence was the plaintiffs also alleged that a joint enterprise existed between proximate cause of the deaths because of his failure to enforce the Texas *279 Department of Transportation (TxDOT) the County's drug-testing policy. The policy, as stated in the and the Houston Metropolitan Transit Authority (Metro) with Terrell family's brief, provided that an “employee suspected respect to the highway. See id. at 610. As a party to a joint of drug/alcohol abuse may be requested to take a test. If an enterprise with Metro, the plaintiffs contended TxDOT was employee refuses to take this test or fails a test, they are equally responsible for the premises defect. See id. at 613. subject to immediate dismissal.”

[3] A plaintiff must show four elements to prove the The initial question is whether this alters the analysis set existence of a joint enterprise: (1) an agreement, express or out above for Judge Sisk in his official capacity as the implied, among the members of the group; (2) a common county judge. Article IX, Section 1 of the Texas Constitution purpose to be carried out by the group; (3) a community of provides that counties are legal subdivisions of the state. TEX. pecuniary interest in that purpose, among the members; and CONST. art. IX, § 1. A suit against a government official in (4) an equal right to a voice in the direction of the enterprise, his or her official capacity seeks to impose liability only on the which gives an equal right of control. Id.; Tex. Dep't of governmental entity the official represents, and any judgment Transp. v. City of Floresville Elec. Power & Light Sys., 53 in this type of suit is collectible only against the governmental S.W.3d 447, 456 (Tex.App.-San Antonio 2001, no pet.). entity, not against the official's personal assets. Kentucky v.

Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Herring v. Houston Nat'l Exch. Bank, 113 Tex.

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Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

264, 253 S.W. 813 (1923); Harris County v. Walsweer, 930 would be personally liable under Texas law. A government S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ employee is entitled to official immunity for (1) the denied); Winograd v. Clear Lake City Water *280 Auth., performance of discretionary duties (2) that are within the 811 S.W.2d 147, 162 (Tex.App.-Houston [1st Dist.] 1991, scope of the employee's authority, (3) provided the employee writ denied); see also Bowles v. Reed, 913 S.W.2d 652, acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d 655 (Tex.App.-Waco 1995, writ denied) (suit against county 650, 653 (Tex.1994); see also DeWitt v. Harris County, 904 official is a suit solely against the county); Bowles v. Wade, S.W.2d 650, 652 (Tex.1995). 913 S.W.2d 644, 649, 649 n. 13 (Tex.App.-Dallas 1995, writ denied) (suits against public officials are suits against the In deciding whether the facts alleged fall outside the scope entities for whom they work and official-capacity judgments of official immunity, we recognize that the basis for alleged impose liability on the entity). liability is the County's policy, which explicitly provides that requiring a drug test of an employee is absolutely [5] As a public official sued in his official capacity, Judge discretionary, and that the Terrell family has alleged the Sisk is protected by the same sovereign immunity enjoyed accident was caused by Judge Sisk while acting within the by the state agency he represents. Tex. Dep't of Health scope of his official duties. The sole disputed question then v. Rocha, 102 S.W.3d 348, 353 (Tex.App.-Corpus Christi, becomes whether he acted in good faith. 2003, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 460 (Tex.App.-Tyler 1999, pet. denied); Morris v. Copeland, If Judge Sisk was performing a discretionary function, then 944 S.W.2d 696, 698–99 (Tex.App.-Corpus Christi 1997, he is protected by official immunity, regardless of whether he no writ). Because a suit against a state officer in his or was negligent in the exercise of his public duties. See City of her official capacity is equivalent to a suit against the Wichita Falls v. Norman, 963 S.W.2d 211, 215 (Tex.App.- state, employees acting in their official capacity share their Fort Worth 1998, pet. dism'd w.o.j.). The Terrell family employer's sovereign immunity. Rocha, 102 S.W.3d at 353; cannot breach the immunity wall merely because Judge Sisk Denson, 63 S.W.3d at 460; Morris, 944 S.W.2d at 698– was negligent—they can only do so if Judge Sisk exercised 99; see also Sykes v. Harris County, 89 S.W.3d 661, 669 his discretionary authority in *281 bad faith. See Harless v. (Tex.App.-Houston [1st Dist.] 2002, pet. filed); Univ. of Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.). Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd The Terrell family must do more than show that a reasonably w.o.j.) (holding employee sued in her official capacity was prudent supervisor could have acted differently; they must shielded by sovereign immunity). Accordingly, a plea to the show that no reasonable person in Judge Sisk's position could jurisdiction is procedurally the proper method of contesting have thought the facts were such that they justified his acts. the propriety of the lawsuit against him or her as a public See Chambers, 883 S.W.2d at 657. Good faith is not defeated official. simply by a showing of negligence. Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n. 1 (Tex.1997).

The Terrell family alleges Judge Sisk is liable to them for two main reasons: 1) the judge knew his secretary at least Good faith is established when it is proved that a reasonably occasionally had problems (i.e., sleeping on the job) caused prudent government official, under the same or similar by her use of prescription medications, but had negligently circumstances, could have believed that his actions were failed to exercise the County's policy to require her to undergo justified. Chambers, 883 S.W.2d at 656. A government drug testing; and 2) the judge knew on that particular occasion employee acts in bad faith only if that employee could not that his secretary was in no condition to drive her automobile have reasonably reached the decision in question. Univ. of and was thus negligent in allowing her to drive to her Houston v. Clark, 38 S.W.3d 578, 581 (Tex.2000). Good doctor's appointment. We will first analyze these allegations faith can be established as a matter of law when the factual as viewed through the window of sovereign/official immunity recitation by the governmental unit's employee is otherwise of a public servant. supported by the evidence. Dovalina v. Nuno, 48 S.W.3d 279, 283 (Tex.App.-San Antonio 2001, no pet.); Alamo Workforce [6] In determining whether a waiver of the application Dev., Inc. v. Vann, 21 S.W.3d 428, 434–35 (Tex.App.-San of sovereign immunity is shown in this context, a critical Antonio 2000, no pet.). The Terrell family alleged negligence. question is whether the employee of a governmental unit Although they also used the term “good faith” throughout

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Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

official is an agent. Will v. Mich. Dep't of State Police, 491 their pleadings, the allegations involving that language are the U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); City same ones used in their allegations of negligence. 5 of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.- Houston [1st Dist.] 1995, no writ). The suit is therefore the The facts concerning the accident alleged by the Terrell same as one brought directly against the state. Will, 491 U.S.

family do not support a finding that Judge Sisk acted in bad at 71, 109 S.Ct. 2304; Kmiec, 902 S.W.2d at 122. The United faith, either for failing to require Goble to undergo a drug States Supreme Court has held that “neither a State nor its test, or in connection with her driving to her doctor's office officials acting in their official capacities are ‘persons' under in her own vehicle. Requiring a drug test was discretionary § 1983.” Will, 491 U.S. at 71, 109 S.Ct. 2304; see Harrison v.

on the part of the county judge, and there are no facts alleged Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d showing any directive by Judge Sisk to Goble to drive her 882, 889–90 (Tex.App.-Houston [1st Dist.] 1995, no writ).

automobile. Taking the allegations at their most extreme The Court went on to explain that, “As such, it is no different possible meaning, with maximal inferences applied, they at from a suit against the State itself.” Will, 491 U.S. at 71, 109 most show questionable judgment, and thus possibly show S.Ct. 2304.

negligence. They do not show the absence of good faith, which is necessary to avoid the sovereign immunity bar.

Therefore, as a government official in his official capacity, Accordingly, the trial court did not err by concluding Judge Judge Sisk is not a “person” under Section 1983. Section 1983 Sisk, riding on the coattails of sovereign immunity of his of the Civil Rights Act provides as follows:

county, is not amenable to suit in his official capacity.

Every person who, under color of [7] [8] We next consider whether claims were raised any statute, ordinance, regulation, against Judge Sisk in his individual capacity. State employees custom, or usage, of any State or sued in their individual capacities may be liable for their Territory or the District of Columbia, negligence if they do not have official immunity. Sykes, 89 subjects, or causes to be subjected, S.W.3d at 669; Denson, 63 S.W.3d at 460. any citizen of the United States or other person within the jurisdiction We have reviewed the pleadings in detail. Although there thereof to the deprivation of any rights, are places where the Terrell family referred to claims against privileges, or immunities secured by Judge Sisk in his personal capacity, there were no claims the Constitution and laws, shall be raised involving any act by the judge outside of his public liable to the party injured in an action servant persona. This is not a situation where there is a at law, suit in equity, or other proper mixture of allegations, some of which are directed at actions proceeding for redress. taken outside a public capacity. In this case, all allegations were of claimed wrongdoing or negligence by Judge Sisk in 42 U.S.C.A. § 1983 (West Supp.2003). actions he was able to take only because of his position as a public servant. Under these circumstances, we conclude that Section 1983 was not designed to override sovereign a fair reading of the Terrell family's pleadings is that there immunity. Will, 491 U.S. at 66, 109 S.Ct. 2304. Accordingly, *282 was no effective pleading against Judge Sisk in his the Section 1983 claim made against Judge Sisk in his official individual capacity. capacity could not serve to avoid the application of sovereign immunity and the claim was properly the subject of the plea [9] [10] The Terrell family has also raised a federal Section to the jurisdiction. 1983 claim against Judge Sisk. A suit against a state official in his or her official capacity is not a suit against the official, We affirm the judgment. but against the official's office and the state for which the

Footnotes 1 Odell Terrell is a surviving brother of J.R. Terrell, Jr. David Elkins is the surviving son of Virginia Terrell, and Jimmy Wayne Terrell is the surviving son of J.R. Terrell, Jr.

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Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)

2 The style of the lawsuit in the Terrell family's pleadings does not specify whether Judge Sisk was sued in his personal capacity or in his capacity as county judge (and the supervisor of his secretary). We will therefore review the pleadings to determine the nature of the Terrell family's claims.

3 TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(1)(A), (B) (Vernon 1997). 4 Since as early as 1847, the law in Texas has been that, absent the state's consent to suit, a trial court lacks subject matter jurisdiction.

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A party may contest a trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Id.

5 “When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings' to determine the nature of the liability the plaintiff seeks to impose.” Harless v. Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.), quoting Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.).

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

Richard W. Favaloro, alleging professional misconduct. The trial court found that Favaloro committed misconduct in 13 S.W.3d 831 violation of rules 3.03(a)(1), 8.02(a), and 8.04(a)(3) of the Court of Appeals of Texas, e Texas Disciplinary Rules of Professional Conduct and Dallas.

suspended Favaloro form the practice of law, probated for Richard W. FAVALORO, Appellant, three years. In twenty-four points of error, Favaloro argues v. generally that the trial court (1) lacked jurisdiction, (2) erred COMMISSION FOR LAWYER DISCIPLINE, in charging the jury and entering judgment because he had no fair notice of the charges against him, (3) erred in overruling Appellee.

his evidentiary objections, (4) erred in entering judgment No. 05–96–01627–CV. | Feb. 28, 2000. on the jury's verdict, (5) erred in charging the jury, (6)

erred in refusing his jury issues and definitions, (7) erred in Attorney disciplinary action was brought. Following jury overruling his motion for continuance, (8) erred in failing trial, the 95th District Court, Dallas County, Tony Lindsay, to file findings of fact and conclusions of law, (9) erred in J., entered judgment on jury verdict that attorney committed overruling his objections to opposing counsel, (10) erred in misconduct and suspended him from practice of law, probated sustaining the Commission's objections to his exhibits, (11) for three years. Attorney appealed, and Commission for erred in disregarding the jury's finding on attorney's fees, Lawyer Discipline cross-appealed. The Court of Appeals, and (12) erred in failing to stay judgment pending appeal. Bridges, J., held that: (1) trial court had jurisdiction over In a single cross-point, the Commission argues that the trial proceedings; (2) investigatory committee was not required court erred in fully probating Favalor's suspension. We affirm to make an express finding of “just cause” for bringing the trial court's judgment. We publish this opinion pursuant complaint; (3) attorney had fair notice of charges against him; to Texas Rules of Disciplinary Procedure 6.06. See Tex. R. (4) scheduling order entered by first assigned judge became Disciplinary P. 6.06, reprinted in TEX. GOV'T CODE ANN., a nullity once attorney objected to judge and replacement tit. 2, subtit. G app. A-1 (Vernon 1998). judge was appointed; and (5) of stay judgment of suspension pending appeal was not warranted.

BACKGROUND Affirmed.

The underlying disciplinary proceeding arose out of Favaloro's representation of a client in a wrongful termination Attorneys and Law Firms of employment case. Opposing counsel filed a grievance *834 Richard W. Favaloro, Attorney at Law, Dallas, for against Favaloro. A district grievance committee determined Appellant. that there was just cause to believe that Favaloro had violated the Texas Disciplinary Rules. However, before the committee David M. Pruessner, Pruessner & Shilling, Dallas, for notified Favaloro of its determination, Favaloro filed suit in Appellee. the 191 st District Court of Dallas County against the State Bar of Texas, the grievance committee, and the committee Before Justices KINKEADE, BRIDGES, and ROACH.

chairperson. Favaloro gave the following notice in the final paragraph of his petition against the State Bar: “Under Rule 2.14, Plaintiff [Favaloro] refuses any further proceedings OPINION before the District 6A grievance committee or any other Opinion By Justice BRIDGES. grievance committee regarding the Grievance.”

On the Court's own motion, we VACATE our September 10, The Commission subsequently filed a disciplinary petition 1999 opinion. We also VACATE our September 10, 1999 against Favaloro in the 95 th District Court of Dallas County. judgment. This is now the opinion of this Court. A jury found, among other things, that Favaloro had made certain false statements in the course of the underlying suit, The State Bar of Texas filed a disciplinary petition in the name *835 and the trial court entered judgment that Favaloro had of the Commission for Lawyer Discipline against attorney

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

committed professional misconduct. Favaloro now brings this appeal. G. Any other matter that is required or may be permitted by law or by these rules.

TEX.R. DISCIPLINARY P. 3.01.

JURISDICTION [1] [2] Favaloro argues that rule 3.01(G), in providing We first address Favaloro's arguments that the trial court that the disciplinary petition contain “any other matter,” lacked jurisdiction over this case. In his first point of error, requires that the petition allege every requirement under the Favaloro argues the trial court lacked jurisdiction because rules governing district grievance committees. See TEX.R. the Commission did not plead all “statutory conditions DISCIPLINARY P. 3.01(G). We disagree. The disciplinary precedent.” In his second point of error, Favaloro argues petition in this case met the requirements of rule 3.01 the trial court erred in entering judgment because it failed which prescribes the contents of the petition. See TEX.R. to find these same “conditions precedent.” The “conditions DISCIPLINARY P. 3.01. We do not read rule 3.01(G) to precedent” to which Favaloro refers are the Texas Rules require that a disciplinary petition allege that every aspect of of Disciplinary Procedure pertaining to the composition every rule pertaining to the administration and organization of and operation of district grievance committees. See TEX.R. district grievance committees has been satisfied. We overrule DISCIPLINARY P. 2.01, 2.02, 2.03, 2.05, 2.06, 2.07, 2.09, Favaloro's first point of error. Similarly, nothing required 2.10, 2.11, 2.12, 2.13, 2.14, 2.15. Among other things, the trial court to expressly find in its judgment that the Favaloro argues that the disciplinary petition against him requirements concerning district grievance committees had did not allege that the grievance against him was assigned been met. We overrule Favaloro's second point of error. to a properly-appointed district grievance committee or that the committee classified the grievance as a complaint [3] [4] In his seventeenth and nineteenth points of error, and assigned a properly-constituted panel that reviewed the Favaloro argues the trial court erred when it acted outside its complaint as provided in the Texas Rules of Disciplinary judicial and “temporal” jurisdiction. In particular, Favaloro Procedure. complains that the Supreme Court of Texas did not appoint a replacement judge within thirty days of Favaloro's February Section 3.01 of the Texas Rules of Disciplinary Procedure 14, 1995 “Respondent's Objection to Visiting Judges.” sets out the contents of a disciplinary petition as follows: Therefore, Favaloro argues, the supreme court's appointment of a replacement judge on October 10, 1995, was void A. Notice that the action is brought by the Commission for because it came outside the statutory thirty-day limitations Lawyer Discipline, a committee of the State Bar.

period. See TEX.R. DISCIPLINARY *836 P. 3.02. With B. The name of the Respondent and the fact that he or she respect to “temporal” jurisdiction, Favaloro argues that the is an attorney licensed to practice law in the State of Texas. trial court was prohibited from resetting the April 1995 trial date because the trial court was required to begin trial C. The residence and principal place of practice of the no later than 180 days after the disciplinary petition was Respondent, or other allegations necessary to fix venue. filed with the district clerk. See TEX.R. DISCIPLINARY P.

3.07. However, Texas Rule of Disciplinary Procedure 15.07, D. A description of the acts and conduct that gave rise to regarding the effect of time limitations, does not include rules the alleged Professional Misconduct in detail sufficient to 3.02 or 3.07 among those rules with mandatory time periods. give fair notice to Respondent of the claims made, which See TEX.R. DISCIPLINARY P. 15.07. Instead, rules 3.02 factual allegations may be grouped in one or more counts. and 3.07 fall within the provision that “all other time periods herein provided are directory only and the failure to comply E. The specific rules of the Disciplinary Rules of with them does not result in the invalidation of an act or Professional Conduct allegedly violated by the acts or event by reason of the noncompliance with those time limits.”

conduct, or other grounds for seeking Sanctions.

Id. Thus, even though the appointment of a replacement F. A demand for judgment that the Respondent be judge was somewhat delayed, this delay did not result in the disciplined as warranted by the facts and for any other invalidation of the trial court's jurisdiction. See id. Likewise, appropriate relief. although trial in this case was reset on a date outside the 180– day period, this delay did not result in the invalidation of

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

the trial court's jurisdiction. See id. We overrule Favaloro's because of his prior suit against the State Bar, the grievance seventeenth and nineteenth points of error. committee, and Duncan. We disagree. A district court does not have jurisdiction to interfere with the grievance [5] In Favaloro's eighteenth point of error, he argues that procedures authorized by the State Bar Act. See Board the court acted outside of its geographic jurisdiction when of Disciplinary Appeals v. McFall, 888 S.W.2d 471, 472 it conducted judicial appointments in Travis County and (Tex.1994); *837 State Bar of Tex. v. McGee, 897 S.W.2d hearings in Harris County, not Dallas County. To support 437, 438–39 (Tex.App.-Corpus Christi 1995, writ dism'd this argument, Favaloro cites rule 3.03's provision that all w.o.j.). Thus, Favaloro's suit in the 191 st District Court did proceedings incident to the trial de novo must take place not impact the jurisdiction of the 95 th District Court over in the county of respondent's principal place of practice.

the disciplinary petition filed therein. We overrule Favaloro's See TEX.R. DISCIPLINARY P. 3.03. Although Favaloro twentieth point of error.

complains of appointments and hearings conducted outside Dallas County, he fails to provide any citations to the record in support of this point of error. The rules of disciplinary procedure require that the supreme court, which sits in THE JUDGMENT Travis County, appoint an active district judge who does not reside in the Administrative Judicial Region in which [8] Having resolved Favaloro's jurisdictional points of the Respondent resides to preside over a disciplinary case. error against him, we turn now to consider his points of TEX.R. DISCIPLINARY. P. 3.02. ppellant cites no authority, error complaining about the judgment against him. In his nor have we found any, to support the proposition that rule third point of error, Favaloro argues the trial court erred in 3.02 prohibits the supreme court from conducting judicial entering judgment because the court did not find that any appointments in Travis County. In this case, Judge John of the steps in Texas Rules of Disciplinary Procedure 3.01 Montgomery resided in Harris County and Favaloro resided through 3.14, pertaining to trial de novo in the district court, in Dallas County. Thus, Judge Montgomery's appointment were followed. See TEX.R. DISCIPLINARY P. 3.01–3.14. complied with rule 3.02. Additionally, we note that Favaloro Favaloro does not argue that any violation of the rules filed an objection to Judge Montgomery who then removed pertaining to trial occurred, merely that the trial court erred himself from the case and referred the matter to the Supreme in refusing Favaloro's request for findings on each of the Court for appointment of a replacement judge. Thus, we steps in rules 3.01 through 3.14. While the trial court was conclude Favaloro's challenge to the trial court's jurisdiction required to follow the rules concerning the conduct of trial, on this basis is without merit. We overrule Favaloro's along with pretrial and post-trial matters, we find no support eighteenth point of error. for Favaloro's argument that the trial court was also required to find that it had followed the rules, nor does Favaloro cite [6] [7] In his twentieth point of error, Favaloro argues the us to any authority imposing such a requirement. We overrule Favaloro's third point of error.

trial court erred when it interfered with the 191 st District Court's jurisdiction. On April 14, 1994, Favaloro filed in [9] [10] In his fourth point of error, Favaloro first argues the 191 st District Court an original petition against the the trial court erred in entering judgment and charging the State Bar of Texas, the grievance committee, and Eleanora jury because the grievance committee never found just cause Duncan, chairperson of the grievance committee. In his on the charges. Favaloro's “just cause” argument refers to the petition, Favaloro sought temporary relief enjoining the State requirement under the Texas Rules of Disciplinary Procedure Bar, the grievance committee, and Duncan from (1) enforcing that the grievance committee appoint an investigatory against Favaloro the rules of disciplinary procedure relating committee to determine whether “just cause” exists for a to the confidentiality of the investigatory panel's proceedings, complaint against an attorney. See TEX.R. DISCIPLINARY see TEX.R. DISCIPLINARY P. 2.07, 2.11, 2.15, 15.10, P. 2.11. However, nothing in the Texas Rules of Disciplinary 15.11, and (2) proceeding further with the grievance against Procedure specifically requires the Commission to plead and him. On December 16, 1994, the Commission for Lawyer prove a finding of just cause. Wade v. Commission for Lawyer Discipline filed a disciplinary petition against Favaloro in the Discipline, 961 S.W.2d 366, 371 (Tex.App.-Houston [1 st th 95 District Court of Dallas County. Favaloro contends Dist.] 1997, no pet.). In fact, by the time a complaint reaches that the 191 st District Court had dominant jurisdiction the district court, other rules, such as 2.11 and 2.13, have

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

ensured that the finding of just cause has already been made. and filing frivolous motions. See TEX. DISCIPLINARY R. Id.; see TEX.R. DISCIPLINARY P. 2.11, 2.13. Moreover, PROF'L CONDUCT 3.01, 3.03(a)(1), 8.02(a), 8.04(a)(3), the record in this case contains letters from the Office of the reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. General Counsel of the State Bar of Texas indicating that the A (Vernon 1998) (TEX. STATE BAR R. art. X, § 9). Under grievance committee believed Favaloro violated rules 3.01, these circumstances, we conclude Favaloro had fair notice of 3.02, 3.03(a)(1), 3.04(c)(1), 3.04(c)(2), 8.02(a), 8.04(a)(1), the charges against him, and the pleadings supported the jury 8.04(a)(2), and 8.04(a)(3) of the Texas Disciplinary Rules charge. We overrule Favaloro's fourth point of error to the of Professional Conduct and that the Grievance Committee extent it argues Favaloro did not receive fair notice of the Panel's decision in the matter was unanimous. While the charges against him and Favaloro's thirteenth point of error. letters do not use the words “just cause,” they constitute sufficient evidence to show the investigatory committee made such a finding. See Wade, 961 S.W.2d at 372. We overrule THE SCHEDULING ORDER Favaloro's fourth point of error to the extent it complains about a finding of “just cause.” [14] In his fifth point of error, Favaloro complains that the trial judge who ultimately presided over this case erred in setting aside a January 27, 1995 scheduling order entered NOTICE by the first judge appointed to hear this case and overruling Favaloro's objections to witnesses and other matters regarding [11] [12] In the second part of his fourth point of the order. Favaloro appears to complain that the Commission error, Favaloro argues he did not have fair notice of the should not have been allowed to call witnesses at trial in charges against him until the court read the charges to the April 1996 because it did not comply with the disclosure jury. Similarly, in his thirteenth point of error, Favaloro requirements imposed by the January 27, 1995 scheduling complains that the trial court erred in charging the jury order. We disagree. because no pleadings supported the charge. We liberally construe pleadings in favor of the pleader, particularly when [15] [16] [17] The record contains a January 27, 1995 the complaining party has not filed any special exceptions. scheduling order entered by Judge Montgomery setting an Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on April 3, 1995 deadline for the Commission to disclose its reh'g); Spiers v. Maples, 970 S.W.2d 166, 168 (Tex.App.- fact and expert witnesses. However, on February 14, 1995, Fort Worth 1998, no pet.); Bank One, Tex., N.A. v. Stewart, Favaloro objected to Judge Montgomery under section 74 th of the Texas Government Code. See TEX. GOV'T.CODE 967 S.W.2d 419, 431 (Tex.App.-Houston [14 Dist.] 1998, no pet.) (op. on reh'g). Pleadings shall give fair notice of the ANN. § 74.053 (Vernon 1998). Once a party makes a claim or defense asserted to provide the opposing party with timely objection to an assigned judge, the assigned judge's enough information to enable him to prepare a defense or disqualification is mandatory. Amateur Athletic Found. v. answer to the defense asserted. TEX.R. CIV. P. 45(b), 47(a); Hoffman, 893 S.W.2d 602, 602–03 (Tex.App.-Dallas 1994, Bank One, 967 S.W.2d at 430. A petition is sufficient if a no writ). An objection to an assigned judge is timely if made *838 cause of action or defense may be reasonably inferred before the assigned judge, sitting on the bench in open court, from what is specifically stated. Bank One, 967 S.W.2d at calls the case to hearing or to trial. Id. at 603 Any order 430. entered by the assigned judge then becomes a nullity. Id.

Judge Montgomery entered an order referring this case back [13] The original disciplinary petition filed against Favaloro to the supreme court for appointment of a replacement judge. specified that he had violated rules 3.01, 3.02, 3.03(a)(1), The supreme court appointed a replacement judge on October 3.04(c)(1), 3.04(c)(2), 8.02(a), 8.04(a)(1), 8.04(a)(2), and 10, 1995. Thus, by Favaloro's request, there was no judge 8.04(a)(3) of the Texas Disciplinary Rules of Professional assigned to try the case in April 1995. At trial on April 15, Conduct. The trial court charged the jury on the issues of 1996, Favaloro argued that the Commission did not comply whether Favaloro had violated these rules by, among other with the January 27, 1995 scheduling order. However, the things, making false statements to the tribunal, engaging scheduling order was a nullity once Favaloro objected to in conduct involving deceit or misrepresentation, making Judge Montgomery and the supreme court appointed a statements concerning the qualifications or integrity of a replacement. See id. Accordingly, we overrule Favaloro's judge with reckless disregard as to their truth or falsity, fifth point of error.

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

rule 8.02 1 of the Texas Disciplinary Rules of Professional [18] [19] In his fifteenth point of error, Favaloro argues Conduct. Favaloro discusses the jury's findings and quotes the trial court erred in denying his motion for continuance excerpts from the jury charge but does not support his after refusing to enforce the January 27, 1995 scheduling arguments with any authority. In his fourteenth point of error, order. The record contains Favaloro's oral request for a Favaloro complains that the trial court erred in refusing his continuance in order to designate witnesses. This oral motion jury issues and definitions. He does not explain, nor does he does not satisfy the provisions of rule 251 of the Texas provide any support for, the proposition that his submitted Rules of Civil Procedure. See TEX.R. CIV. P. 251. When issues and definitions were “proper.” In his twenty-first point the provisions of rule 251 have not been satisfied, it will of error, Favaloro complains that the trial court erred in be presumed that the trial court did not abuse its discretion overruling his objections to the Commission's counsel. In his in denying a continuance. Metro Aviation, Inc. v. Bristow twenty-second point of error, Favaloro complains that the trial Offshore Helicopters, Inc., 740 S.W.2d 873, 874 (Tex.App.- court erred in sustaining the Commission's objections to his Beaumont 1987, no writ); *839 Ohlhausen v. Thompson, exhibits. Favaloro does not explain or support his contention th 704 S.W.2d 434, 436 (Tex.App.-Houston [14 Dist.] 1986, that the trial court erred in overruling his objections to the no writ). We overrule Favaloro's fifteenth point of error. Commission's counsel, and he does not set forth with any particularity the reasons why the trial court erred in sustaining the Commission's objections to Favaloro's exhibits. We are not responsible for making Favaloro's argument for him.

THE VERDICT

[20] In his sixth point of error, Favaloro argues the trial [22] Former rule of appellate procedure 74(f) 2 required that court erred in entering judgment on the verdict and charging a brief to this Court contain, among other things, a statement the jury because the judgment references the verdict, the of the facts of the case, supported by record references, verdict does not conform to the pleadings, and the judgment and a clear and concise argument for the contention made therefore does not conform to the pleadings. Favaloro does with appropriate citations to authorities and the *840 not direct us to any place in the record where he objected to record. See TEX.R.APP. P. 74(f) (former rules). Because, the jury charge and obtained a ruling. Instead, Favaloro cites in these points of error, Favaloro does nothing more than generally to the jury charge, the judgment, the first and second summarily state his point of error, without citation to legal amended disciplinary petitions, and the trial amendment to authority or substantive analysis, we conclude he has failed to the disciplinary petition. A comparison of these documents preserve these arguments for review. See Trenholm v. Ratcliff, shows that the judgment stated Favaloro had violated rules 646 S.W.2d 927, 934 (Tex.1983); Bowles v. Clipp, 920 3.03(a)(1), 8.02(a), and 8.04(a)(3) of the Texas Disciplinary S.W.2d 752, 756 (Tex.App.-Dallas 1996, writ denied); Tacon Rules of Professional Conduct, the jury found that Favaloro Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc., 889 had violated these rules, and the disciplinary petition alleged S.W.2d 666, 671 (Tex.App.-Houston [14 th Dist.] 1994, writ that Favaloro had violated these rules, among others. We denied). Accordingly, we overrule Favaloro's seventh, eighth, overrule Favaloro's sixth point of error. ninth, tenth, eleventh, twelfth, fourteenth, twenty-first, and twenty-second points of error.

MATTERS NOT PRESERVED FOR REVIEW FINDINGS OF FACT AND CONCLUSIONS OF LAW [21] In his seventh, eighth, and ninth points of error, Favaloro complains that the trial court erred in entering [23] In his sixteenth point of error, Favaloro complains of judgment on the verdict because the verdict was never the trial court's failure to file findings of fact and conclusions rendered, the judge erroneously created a hung jury, and of law. Rule 296 of the Texas Rules of Civil Procedure the judge discharged the jury without returning them for provides for requests for findings of fact and conclusions further deliberation on an incomplete verdict. In raising these of law. See TEX.R. CIV. P. 296. By its terms, it is only arguments, Favaloro does not cite to the clerk's record or the applicable in a case tried without a jury. Id. Thus, the rule does reporter's record. In his tenth, eleventh, and twelfth points not apply in this case which was, as previously discussed, a of error, Favaloro complains that the trial court erred in jury trial. We overrule Favaloro's sixteenth point of error. entering judgment on the verdict and charging the jury under

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Favaloro v. Commission for Lawyer Discipline, 13 S.W.3d 831 (2000)

of suspension may be stayed during the pendency of appeals therefrom if the district court finds, upon competent evidence, that “the Respondent's continued practice of law does not ATTORNEY'S FEES pose a continuing threat to the welfare of Respondent's clients or to the public.” TEX.R. DISCIPLINARY P. 3.14. After [24] [25] [26] In his twenty-third point of error, Favaloro judgment was entered against him, Favaloro had the burden to complains that the trial court erred in disregarding the jury prove his continued practice of law did not pose a threat. See finding on attorney's fees. Favaloro's complaint addresses the id.; Wade, 961 S.W.2d at 373. Favaloro has failed to direct us trial court's decision, reflected in the final judgment, that “the to any place in the record where he filed a motion or requested uncontroverted evidence established that a reasonable fee for that his suspension be stayed. Under these circumstances, we preparation and prosecution of this suit was $25,000.” We conclude that Favaloro failed to carry his burden of proving note that Favaloro has only provided this Court with a partial that his continued practice of law did not pose a threat. See reporter's record, and his only citation to the record under Wade, 961 S.W.2d at 373. We overrule Favaloro's twentythis point of error is to the trial court's final judgment. Points fourth point of error.

of error dependent on the state of the evidence cannot be reviewed without a complete record. Dob's Tire & Auto Ctr. v. Safeway Ins. Agency, 923 S.W.2d 715, 720 (Tex.App.- Houston [1 st Dist.] 1996, writ dism'd w.o.j.). If the appellant PROBATED SENTENCE fails to bring forward a complete record, the points of error [28] In a single cross-point, the Commission argues that dependent on the state of the evidence will be deemed to have the trial court erred in fully probating Favaloro's suspension been waived. See id. Because Favaloro has not provided this from the practice of law. The trial court has broad discretion Court with a complete reporter's record with which to review to determine whether an attorney guilty of professional the trial court's award of attorney's fees, he has waived review.

misconduct should be reprimanded, suspended, or disbarred.

We overrule Favaloro's twenty-third point of error.

Butler v. Commission for Lawyer *841 Discipline, 928 S.W.2d 659, 666 (Tex.App.-Corpus Christi 1996, no writ). After reviewing the record, we cannot conclude that the STAY OF JUDGMENT trial court's decision to probate Favaloro's suspension was an abuse of discretion. We overrule the Commission's sole cross [27] Although the trial court fully probated his suspension, point. Favaloro raises the argument in his twenty-fourth point of error that the trial court erred in failing to stay judgment We affirm the trial court's judgment. pending appeal, citing rule 3.14 of the Texas Rules of Disciplinary Procedure. Rule 3.14 provides that a judgment

Footnotes 1 Although Favaloro's eleventh point of error refers to rule 8.03(a), which imposes a duty on lawyers to report the misconduct of other lawyers, we conclude Favaloro's eleventh point of error actually relates to rule 8.02(a) prohibiting false statements concerning the qualifications or integrity of a judge. We note that violation of rule 8.03(a) was not alleged in the disciplinary petition and was not submitted to the jury.

2 Effective September 1, 1997, the Texas Supreme Court repealed the then-existing rules of appellate procedure and replaced them with the current rules of appellate procedure. In civil cases, the current rules of appellate procedure apply to cases in which the notice of appeal or the brief (depending on the circumstances) was filed after September 1, 1997. In all other civil cases, the repealed rules apply. In this case, the appeal was perfected on April 17, 1996, and Favaloro's brief was filed on February 7, 1997. Therefore, the former rules of appellate procedure apply to this case.

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In re Doe, 19 S.W.3d 249 (2000)

for a court order authorizing her to consent to an abortion without notifying her parents. Our Court is called upon to 19 S.W.3d 249 determine what the Legislature intended in Texas's parental Supreme Court of Texas.

notification statute when it wrote that a court “shall enter In re Jane DOE. an order” that a minor is “authorize[d] ... to consent to the performance of [an] abortion” if she demonstrates “by No. 00–0140. | Feb. 25, 2000. a preponderance of the evidence [that she] is mature and sufficiently well informed to make the decision to have Pregnant minor filed application for a court order authorizing an abortion performed without notification to either of her her to consent to abortion without notifying her parents. The parents....” TEX. FAM.CODE § 33.003(i). We are not called trial court denied application, finding that minor was not upon to decide the constitutionality or wisdom of abortion. sufficiently well informed to make decision without notifying Arguments for or against abortion do not advance the issue her parents. Minor appealed. The Court of Appeals affirmed. of statutory construction presented by this case. Instead, our Granting minor's petition for review, the Supreme Court, sole function in this case is to interpret and apply the statute Phillips, C.J., held, as matters of first impression, that: (1) enacted by our Legislature. Family Code did not prohibit Supreme Court from releasing opinion to public; (2) review of denial of order was subject The trial court in this case concluded that although the minor to legal and factual sufficiency standards; (3) requirements “shows signs of being mature, she has not demonstrated that to be mature and sufficiently well informed would be met if she is sufficiently well informed about the medical procedures minor was capable of reasoned decision making and decision and the emotional impact of the procedure.” The court of was not based on impulse; and (4) trial court must consider appeals affirmed, and the minor has appealed to this Court. totality of circumstances in making decisions as to whether We conclude that in this case, the minor has not met the minor was mature and sufficiently well informed. statutory standard. Because this Court has not previously provided guidance to trial and appellate courts about what a Reversed and remanded to the trial court. minor must show under section 33.003 of the Texas Family Code to demonstrate that she is mature and sufficiently well Enoch, J., concurred in part and filed a separate opinion, in informed, we remand this case to the trial court in the interest which Baker, Hankinson, and O'Neill JJ., joined. of justice. In so doing, we direct that upon remand, the proceedings in the trial court must be concluded as if Doe's Owen, J., concurred in part and filed a separate opinion, in application had been filed the day after our opinion issues. which Phillips, C.J., joined in part. See TEX. FAM.CODE § 33.003(h). In the event that the minor requires additional time after issuance of this opinion to Hecht, J., filed a dissenting opinion, in which Abbott, J., prepare for a hearing, she may, of course, request an extension joined. of time. See id.

I

*250 OPINION Jane Doe is a pregnant, unmarried minor. Her eighteenth Chief Justice PHILLIPS delivered the opinion of the Court birthday will occur within a few months. She lives at home as to Parts I–VI and a concurring opinion as to Part VII, all with her parents, and she has not been emancipated. Pursuant of which Justice GONZALES joins. Justice ENOCH, Justice to Family Code section 33.003, she sought an order from BAKER, Justice HANKINSON, and Justice O'NEILL join the trial court allowing her to consent to an abortion without in Parts I, II, and IV–VI of the Court's opinion and in the having to notify either of her parents. See TEX. FAM.CODE judgment. Justice OWEN joins in Parts I, II, and III of the § 33.003.

Court's opinion and in the judgment. Justice HECHT and Justice ABBOTT join in Parts II and III of the Court's opinion.

Jane Doe was represented by counsel of her choice, and This is a confidential appeal from a court of appeals' decision as the Family Code requires, the trial court appointed a affirming a trial court's *251 denial of a minor's application guardian ad litem. See id. § 33.003(e). At the conclusion of

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In re Doe, 19 S.W.3d 249 (2000)

a hearing, the trial court denied Jane Doe's application and person designated to receive the order issued written findings and conclusions in accordance with by the minor, or a governmental Texas Family Code section 33.003(h). Jane Doe appealed to agency or attorney in a criminal or the court of appeals, which affirmed the trial court's judgment administrative action seeking to assert without an opinion. She now appeals to this Court. See id. § or protect the interest of the minor. 33.004(f). She contends that she has conclusively established that she is mature and is sufficiently well informed to make TEX. FAM.CODE § 33.003(l ). a decision about terminating her pregnancy without notifying her parents. She also has presented a limited argument that the Similarly, Family Code section 33.004(c) prohibits the court trial court erred in failing to conclude that notification would of appeals from publishing its ruling: not be in her best interest. See id. § 33.003((i). Because she (c) A ruling of the court of did not present this latter issue to the court of appeals, we will appeals issued under this section is not consider it.

confidential and privileged and is not subject to disclosure under Chapter Before we turn to the merits of the issues before us, however, 552, Government Code, or discovery, there are two significant procedural matters that we must subpoena, or other legal process. The resolve. The first is whether the Family Code prohibits us ruling may not be released to any from releasing our opinions to the public in these types of person but the pregnant minor, the matters. The second is what standard of appellate review pregnant minor's guardian ad litem, applies in cases arising under sections 33.003 and 33.004 of the pregnant minor's attorney, another the Family Code.

person designated to receive the ruling by the minor, or a governmental agency or attorney in a criminal or II administrative action seeking to assert or protect the interest of the minor.

[1] Family Code sections 33.003 and 33.004 contain many provisions designed to ensure the minor's anonymity and TEX. FAM.CODE § 33.004(c). the confidentiality of the judicial bypass proceeding. *252 Among these are provisions that, in effect, direct the trial The Code's judicial bypass provisions concerning appeals court and the court of appeals not to publicly disseminate their in this Court do not, however, contain directives regarding rulings. See TEX. FAM.CODE §§ 33.003(k),(l ); 33.004(c). dissemination of opinions or rulings. The Family Code requires only that a “confidential appeal” shall be available Family Code section 33.003 directs that a minor's application to any pregnant minor to whom a court of appeals denies to the trial court, all other documents pertaining to the consent: proceedings, and the trial court's ruling are confidential and privileged. See TEX. FAM.CODE §§ 33.003(k), (l ). The (f) An expedited confidential appeal statute is explicit about those who may receive notice of the shall be available to any pregnant trial court's ruling: minor to whom a court of appeals denies an order authorizing the minor (l ) An order of the court issued to consent to the performance of under this section is confidential an abortion without notification to and privileged and is not subject either of her parents or a managing to disclosure under Chapter 552, conservator or guardian. Government Code, or discovery, subpoena, or other legal process. The TEX. FAM.CODE § 33.004(f). The requirement of a order may not be released to any “confidential appeal” is not an impediment to publishing our person but the pregnant minor, the opinions. We can do so without disclosing the identity of the pregnant minor's guardian ad litem, minor, the court of appeals, or the trial court. the pregnant minor's attorney, another

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In re Doe, 19 S.W.3d 249 (2000)

As the head of the third branch of government with regard review standard or a legal and factual sufficiency review to civil matters, this Court has an obligation to provide standard. The abuse of discretion standard applies when a guidance to lower courts through its published opinions. trial court has discretion either to grant or deny relief based There would be no means of insuring consistency, uniformity, on its factual determinations. See Bocquet v. Herring, 972 and predictability of the law if the court of last resort could S.W.2d 19, 20–21 (Tex.1998). This standard is especially not commit its analyses, reasoning, and decisions to writing appropriate when the trial court must weigh competing in opinions and disseminate those opinions to the public. policy considerations and balance interests in determining Without some explication from this Court of the meaning whether to grant relief. See General Tire, Inc. v. Kepple, of “mature and sufficiently well informed,” different courts 970 S.W.2d 520, 526 (Tex.1998). Thus, the abuse of around the state at both the trial and appellate level would discretion standard is typically applied to procedural or surely arrive at very different constructions of what the statute other trial management determinations. See, e.g., National requires. This result would undermine the rule of law that Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 128 undergirds our whole system of justice. (Tex.1996)(attorney disqualification); City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753–54 (Tex.1995)(admission of By publicly announcing our construction of this statute, the evidence); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 Legislature and the public will know the meaning that we (Tex.1992)(discovery sanctions). have ascribed to it, and can order their behavior accordingly. In particular, the people, through their elected representatives, By contrast, in this case the trial court has no discretion will have full opportunity to change the law, if they so desire, over the order. The statute provides that if the court in light of the way the judiciary is interpreting and applying it. finds that the minor is “mature and sufficiently well informed,” it “shall enter an order authorizing the minor We note that we are not called upon to express an opinion to consent to the performance of the abortion without about the constitutionality of the provisions of the Family notification to either of her parents....” TEX. FAM.CODE Code *253 that prohibit the lower courts from making their § 33.004(i)(emphasis added). Furthermore, in determining rulings publicly available. Those questions must be decided whether a minor is “mature and sufficiently well informed,” another day. the trial court is not to weigh policy considerations; it simply makes a factual determination. When the trial court acts primarily as a factfinder, appellate courts normally review its determinations under the legal and factual sufficiency

III

standards. See Bocquet, 972 S.W.2d at 21; Catalina v.

The second important procedural issue involves the standard Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We therefore apply of review that appellate courts are to apply in reviewing trial that standard of review to this appeal. 1 court rulings. Because section 33.004 is silent on this issue, we look to the standards of review we apply to other trial court Unlike the courts of appeals, our Court may only engage decisions. in legal sufficiency review. See TEX. CONST. art. V, § 6. In reviewing legal sufficiency, however, we may set [2] First, we must determine whether the “mature and forth factors and principles for lower courts to follow in sufficiently well informed” requirement is a question of determining and reviewing whether a minor is “mature fact or of law. Section 33.003 provides that the trial judge and sufficiently well informed” to make this decision should determine these questions by “a preponderance of the without parental notification. See Bocquet, 972 S.W.2d evidence.” TEX. FAM.CODE § 33.003(i). This requirement at 21 (reasonableness and necessity of attorney's fees); implies that the trial judge is to weigh the evidence and Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30–31 determine the credibility of the minor or any other witnesses. (Tex.1994)(gross negligence). These are typical fact-finding functions, performed by a trial court only after hearing the minor's live testimony and viewing her demeanor.

*254 IV

[3] Next, we determine whether the trial court's factual We turn next to the standard of proof the Legislature intended findings on these issues are subject to an abuse of discretion to require in the parental notification statute. The Texas

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In re Doe, 19 S.W.3d 249 (2000)

parental notification statute was enacted against a backdrop constitutionally required in a notification rather than a consent of over two decades of decisions from the United States statute, but applying Bellotti II requirements). Our Legislature Supreme Court. One of the seminal opinions regarding was obviously aware of this jurisprudence when it drafted the minors and abortion is Bellotti v. Baird, 443 U.S. 622, 99 statute before us. S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). In Bellotti a state had enacted a statute that required parental consent before a physician could perform an abortion on a minor, with

V

certain limited exceptions. A plurality of the Court reiterated in Bellotti II what a majority of the Court had previously Against this backdrop our Legislature, like the legislatures of held in Planned Parenthood of Central Missouri v. Danforth, a number of other states, has chosen to require only parental 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976): “ notification, not parental consent. And like the other states ‘[T]he State may not impose a blanket provision ... requiring that require only parental notification, our Legislature did not the consent of a parent ... as a condition for abortion of an specify the particular information a minor must have before unmarried minor,’ ” and that it would be “inappropriate ‘to she can be considered “sufficiently well informed” to make give a third party an absolute, and possibly arbitrary, veto over the decision independently. 2 the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding *255 [4] The parental notification statute forbids a the consent.’ ” Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035 physician from performing an abortion on a pregnant, (plurality opinion) (quoting Danforth, 428 U.S. at 74, 96 S.Ct.

unemancipated minor without giving notice to the minor's 2831). The Bellotti II plurality further concluded that parental parents at least 48 hours before the procedure. See TEX.

consent statutes would not pass constitutional muster unless FAM.CODE § 33.002(a). But the act allows a pregnant minor the state provided an alternative procedure in which a minor who wants to have an abortion without notifying one of her could receive authorization for an abortion. Id. (plurality parents to “file an application for a court order authorizing the opinion).

minor to consent to the performance of an abortion without notification to either of her parents....” TEX. FAM.CODE Thus, the plurality concluded that a minor must be permitted § 33.003(a). When a minor files such an application, the an opportunity to show “either: (1) that she is mature enough court “shall determine by a preponderance of the evidence”

and well enough informed to make her abortion decision, in whether:

consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision 1. The minor is “mature and sufficiently well informed to independently, the desired abortion would be in her best make the decision to have an abortion performed without interests.” Id. at 643–44, 99 S.Ct. 3035 (plurality opinion). notification to either of her parents;” or With regard to the determination of maturity, “the peculiar nature of the abortion decision requires the opportunity for 2. Notification would not be in the best interest of the case-by-case evaluations of the maturity of pregnant minors.” minor; or Id. at 643 n. 23, 99 S.Ct. 3035 (plurality opinion). The Bellotti 3. Notification may lead to physical, sexual, or emotional II plurality also concluded that a parental bypass proceeding abuse of the minor.

must maintain the anonymity of the minor and must be completed with “sufficient expedition to provide an effective TEX. FAM.CODE § 33.003(i). If the court makes any of these opportunity for an abortion to be obtained.” Id. at 644, 99 determinations, the court “shall enter an order authorizing S.Ct. 3035 (plurality opinion). A majority of the United States the minor to consent to the performance of the abortion Supreme Court has subsequently approved the Bellotti II without notification to either of her parents....” Id. Because parental bypass requirements. See City of Akron v. Akron the Legislature used the imperative word “shall,” we conclude Center for Reproductive Health, Inc., 462 U.S. 416, 439–442, that when a minor meets the statutory threshold, the trial 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ) (holding court must grant the application. See TEX. GOV'T CODE § parental consent statute unconstitutional in light of Bellotti 311.016(2). II ); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 511–13, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) [5] Our focus in construing this statute is to determine the (Akron II ) (declining to decide whether parental bypass was Legislature's intent; this we discern primarily from the plain

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meaning of the words chosen. See, e.g., Surgitek, Bristol– the information, and the minor's ability to understand that Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex.1999); information and deal with it responsibly. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); Liberty Mutual Ins. Co. v. Garrison The states that have written on this issue, including Alabama, Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). In Kansas, Massachusetts, Nebraska, North Carolina, and Ohio section 33.003(i), the Legislature has succinctly stated that require that the minor has been informed as to the alternatives the minor must be “mature and sufficiently well informed to abortion, to the nature of the abortion procedure and its to make the decision to have an abortion performed without risks, and the physical, emotional, and social consequences notification to either of her parents....” TEX. FAM.CODE § of either abortion or bringing the pregnancy to term. The 33.003(i). The brevity of the requirement does not, however, Alabama Court of Civil Appeals has suggested that the mean that it is insubstantial. The Legislature undoubtedly information about the risks and options should be targeted to intended the bypass procedure to be a meaningful one. In an individual's specific circumstances. See In re Anonymous, requiring that a minor demonstrate that she is mature and 650 So.2d 923, 925 (Ala.Civ.App.1994). But the courts sufficiently well informed, the Legislature took into account are also careful to ensure that the minor understands that the gravity and potential consequences of the irreversible information, and has assimilated it in a mature way. To this decision to terminate a pregnancy, and sought to assure that end, they have inquired into how a minor might respond the minor's decision was thoughtful and informed. to certain contingencies, particularly assessing whether the minor will seek counseling in the event of physical or [6] Thus, we conclude that a minor is “mature and emotional complications. Many courts have assessed the sufficiently well informed to make the decision to have minor's school performance and activities, as well as the an abortion without notification to either of her parents” minor's future and present life plans. A few courts have when the evidence demonstrates that the minor is capable explicitly assessed the minor's character and judgment of reasoned decision-making and that her decision is not the directly. Most of the decisions have also considered the product of impulse, but is based upon careful consideration minor's job experience and experience handling finances, of the various options available to her and the benefits, risks, particularly assessing whether the minor is aware of the and consequences of those options. See In re Anonymous, financial obligations inherent in raising a child. Almost 711 So.2d 475, 477 (Ala.Civ.App.1998); In re Petition of all courts conduct the maturity inquiry, either explicitly Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 788 (1997); or implicitly, against the background circumstances of the In re Petition of Anonymous 2, 253 Neb. 485, 570 N.W.2d minor's experience. These include the minor's relationship 836, 838–39 (1997); In re Jane Doe, 126 N.C.App. 401, 485 with her parents, whether she has social and emotional S.E.2d 354, 356 (1997). The decisions of a number of other support, particularly from the male who would be a father, state courts construing similar statutes, which were available and other relevant life experiences. to the Legislature at the time they enacted section 33.003(i), inform our interpretation. See Ex Parte Anonymous, 618 So.2d 722, 725 (Ala.1993); In re Petition of Jane Doe for

VI

Waiver of Notice, 19 Kan.App.2d 204, 866 P.2d 1069, 1074– 75 (1994); *256 In re Mary Moe, 18 Mass.App.Ct. 727, 469 [7] [8] We conclude that a trial court should take into N.E.2d 1312, 1315 (1984); Cf. In re Anonymous, 674 So.2d account the totality of circumstances the minor presents in 1317, 1318 (Ala.Civ.App.1995); In re Anonymous, 655 So.2d determining whether she is mature and sufficiently well 1052, 1054 (Ala.Civ.App.1995). informed. In order to establish that she is sufficiently well informed, the minor must make, at a minimum, three Obviously, whether a minor is mature and sufficiently well showings. informed is a highly individualized decision that must take into account the diverse background and circumstances First, she must show that she has obtained information from of each applicant for waiver of parental notification. An a health-care provider about the health risks associated with examination of decisions from other states' courts reveals an abortion and that she understands those risks. That would consistent themes. All of the decisions wrestle with “mature” include an understanding of the risks associated with the and “informed,” two concepts that overlap to some extent, particular stage of the minor's pregnancy. but which are also distinct. States make a distinction between

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Second, she must show that she understands the alternatives showing immaturity. The United States Supreme Court has to abortion and their implications. As with any medical said that one of those is the fact, standing alone, that the procedure, part of making an informed decision is knowing pregnant female is a minor. That Court has also admonished the available alternatives. A minor should be able to that states and courts “may not make a blanket determination demonstrate that she has given thoughtful consideration to her that all minors ... are too immature to make this decision or alternatives, including adoption and keeping the child. She that an abortion never may be in the minor's best interests should also understand that the law requires the father to assist without parental approval.” Akron I, 462 U.S. at 440, 103 in the financial support of the child. See TEX. FAM.CODE § S.Ct. 2481. A child's age, educational background or grades 154.001; see also TEX. CONST. art. XVI, § 28 (garnishment in school, while indicative of some level of maturity, are not of wages for court-ordered child support payments). She conclusive on the issue of maturity. Nor is participation in should not be required to justify why she prefers abortion extra-curricular activities. It should also go without saying above other options, only that she is fully apprised of her that a minor's socio-economic status should not bear on the options. decision.

Third, she must show that she is also aware of the emotional and psychological aspects of undergoing an abortion, which

VII

can be significant if not severe for some women. She must also show that she has *257 considered how this As discussed earlier in this opinion, the standard of review is decision might affect her family relations. Although the minor legal sufficiency. Thus, unless Jane Doe has shown as a matter need not obtain this information from licensed, professional of law that she is mature and sufficiently well informed, we counselors, she must show that she has received information would ordinarily affirm the judgment of the court of appeals. about these risks from reliable and informed sources, so After reviewing this record, we conclude that she has not that she is aware of and has considered these aspects of the established as a matter of law that she is sufficiently well abortion procedure. informed to make the decision to have an abortion performed without notifying her parents. But because this is a matter of [9] While a minor must demonstrate a knowledge and first impression, in the interests of justice, we remand to the appreciation of the various considerations involved in her trial court for further hearing and consideration. 3 decision, she should not be required to obtain information or other services from any particular provider. Nor should she be required to meet with or review materials that advocacy or religious groups provide. The inquiry is whether she has CONCLUSION obtained information on the relevant considerations from For the reasons we have discussed, we reverse the judgment of reliable sources of her choosing that enable her to make a the court of appeals and remand this case to the trial court for thoughtful and informed decision.

further hearing and consideration. We have already indicated the time stricture within which further proceedings in the [10] [11] A determination of maturity necessarily involves trial court must be concluded. Importantly, the court should more trial court discretion. However, if a court determines schedule its proceedings with the additional consideration that a minor has not demonstrated that she is mature enough that it must maintain the minor's confidentiality. Section to make a decision to undergo an abortion, then the court 33.003 allows the trial court to give proceedings of this should make specific findings concerning its determination so type “precedence over other pending matters to the extent that there can be meaningful review on appeal. Similarly, if a necessary to assure that the *258 court reaches a decision court concludes that a minor is not credible in some respect promptly.” TEX. FAM.CODE § 33.003(h).

that directly relates to its determination of maturity, the court should make specific findings in that regard as well.

[12] A minor who can show that she is sufficiently well Justice ENOCH filed a concurring opinion, in which Justice informed may also establish in the process that she is mature. BAKER, Justice HANKINSON, and Justice O'NEILL join. In making a determination of maturity, there are, however, some criteria that should not be relied upon as conclusively

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Legislature directs that the minor must demonstrate by a Justice OWEN filed a concurring opinion, in which Chief preponderance of the evidence (which generally means more Justice PHILLIPS joined as to Parts I and III. likely than not) that she is mature and sufficiently well-

informed, yet because the minor is the only party presenting Justice HECHT filed a dissenting opinion, in which Justice evidence on these elements, there is no other evidence against ABBOTT joins.

which to weigh it to see if it is more likely than not.

Justice ENOCH, joined by Justice BAKER, Justice HANKINSON, and Justice O'NEILL, concurring. A preponderance standard for trial court hearings cannot I join parts I, II, IV, V, and VI of the Court's opinion, establish the standard of review on appeal, precisely because and I join the Court's judgment remanding this appeal in of the unique, unopposed nature of the proceedings. Since the the interests of justice. I disagree with parts III and VII hearing in the trial court is not adversarial and no weighing for two reasons. One, I believe the standard of review on of disputed evidence can occur, there is no basis for appellate appeal in a proceeding under the parental notification act courts to defer to the trial courts' fact-finding function, as we should be abuse of discretion, not factual or legal sufficiency. would in any other ordinary appeal. In other words, unless And two, I emphasize that in a proceeding under the the evidence in the record raises a question about the minor's parental notification act, our disposition today, remand, is credibility, the trial court is not free to simply disregard inappropriate except in extraordinary circumstances. Because the undisputed facts provided by the minor. Whether those today we are construing the parental notification act for the undisputed facts demonstrate that the minor is “mature and first time, and because I agree it is in the interests of justice to sufficiently well informed to make *259 the decision to have give Jane Doe an opportunity to meet the statutory standard an abortion” is a legal question. And as we have said before, as the Court has construed it, I conclude this case presents trial courts have no discretion in determining what the law is exceptional circumstances warranting a remand. or in applying the law to the facts. 2

I join the Court's construction of the statutory phrase “mature Thus, in these unique, non-adversarial, parental notification and sufficiently well-informed to make the decision to have proceedings, I would hold that Texas appellate courts must an abortion performed without notification to either of her review a trial court's decision under an abuse of discretion parents.” 1 But I do not agree that the standard of review standard. That is, did the trial court correctly apply the law to for appellate review of a trial court's decision that a minor is the undisputed facts in the record? not mature or sufficiently well informed is factual and legal sufficiency. Because of the nature of the unusual proceedings Moreover, again because of the unusual nature of the contemplated under sections 33.003 and 33.004 of the Family proceedings, I believe this Court should review the trial Code, I would conclude that the appropriate standard of court's decision, rather than the court of appeals' ruling, review is abuse of discretion. for abuse of discretion because a case under the parental notification statute reaches us only when the court of appeals Unlike virtually any other judicial proceeding I am aware has affirmed the trial court's denial of a minor's application of, this proceeding is not only “non-adversarial,” but notice for waiver of parental notice. Thus, the focus in this Court to the very persons (besides the minor) likely to have the should remain on whether the trial court misapplied the law most interest in the outcome of the hearing—the parents who to the undisputed facts. 3 stand not to be notified of their minor child's decision—is prohibited. And the secrecy of the proceeding assures that the An abuse of discretion standard would not diminish the trial hearing will be entirely one-sided. court's role under the statute. It remains the trial court's role to determine the witness's credibility, as the trial court hears Because of the nature of this proceeding, then, all the the minor's testimony in person and is in the best position to evidence in the record will be undisputed. But the standard assess the minor's credibility. But the trial court's discretion to the Legislature chose for trial courts to apply in determining make credibility determinations should not be unfettered. The whether a minor is “mature and sufficiently well informed”— trial court cannot simply disregard the minor's uncontested preponderance of the evidence—is typically associated testimony. To decide otherwise—that a trial court is free with weighing conflicting evidence after an adversarial to disregard the undisputed evidence despite no question of proceeding. Thus, we have an anomalous situation—the veracity—would put the trial court's legal decision beyond

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In re Doe, 19 S.W.3d 249 (2000)

review. Consequently, whether the trial court can disregard case presents just such an exceptional circumstance and a the undisputed evidence should depend on whether the record remand in the interest of justice is warranted. 8 before the court raises a significant, legitimate question about the minor's veracity. But now that this Court has announced the guiding legal principles, trial courts are not free to disregard those As mentioned, the parental notification statute prohibits not principles and substitute their own for determining whether only general notice of the proceeding, but specific notice to a minor demonstrates that she is mature and sufficiently well the very people who likely would have the greatest interest informed to make this most difficult of decisions. And while in the minor's application—her parents. 4 It appears to me, the possibility exists that other exceptional circumstances therefore, that the Legislature intended for these proceedings in some future situation might also warrant a remand, I to be unopposed in all circumstances. That means that the emphasize that such a result is contemplated neither by the Legislature did not intend for the trial courts to assume statute 9 nor by our rules. 10 The time-sensitive nature of the the role of an opposing party and reject the undisputed proceedings and the constitutional implications of the specter evidence in the absence of a reasonable, factual basis to of protracted hearings and appeals counsel very strongly question the minor's credibility. Under similar circumstances, against remand as an appellate disposition. And our rules other courts have also concluded that the trial court may expressly preclude a court of appeals from remanding. 11 not simply choose to discredit the evidence offered by the minor unless it is “improbable or unreasonable or is shown But here, where the minor has presented a record that to be untrustworthy.” 5 In the case before us, for example, demonstrates a high level of maturity, and where neither the if the record revealed that, despite her testimony that she minor nor the trial court had the benefit of guidance from had conducted Internet research, Doe did not have access this (or any other appellate decision) on the meaning of the to a computer, the record itself would raise a significant, phrase “mature and sufficiently well informed,” I believe that legitimate question about her veracity. (Of course, no such it is in the best interest of justice to allow the minor the questions appear in this record.) opportunity to meet the test the Court elaborates today for waiver under the act of notification to her parents to consent Furthermore, I note that throughout the Family Code a trial to the procedure. Thus, I join the Court's judgment. court makes decisions bearing on the best interests of a child. And appellate courts review those decisions under an abuse of discretion standard. 6 This fact strengthens my conviction Justice OWEN, joined by Chief Justice PHILLIPS as to Parts that an abuse of discretion standard should apply here. In this I and III, concurring. case, the best interests of the child is the subject of two of the I join in the Court's judgment reversing the court of appeals three inquiries that the statute sets forth. The same level of and remanding this matter to the trial court for further review should apply to the trial court's decisions regardless proceedings, but I cannot join the opinion of the Court in parts of the provision under review. But the Court would apply a IV–VII. The Court refuses to give full effect to the statutory different level of review to the trial court's decision relating mandate that before a minor can obtain authorization to *260 to maturity and adequacy of information. This cannot proceed with an abortion without notifying one of her parents, but lead to confusion and inconsistency. she must be “mature and sufficiently well informed to make the decision.” TEX. FAM.CODE § 33.003(i). The Court's Nonetheless, having concluded that the standard of review interpretation of “sufficiently well informed” falls short of should be abuse of discretion, I cannot say that the trial what the Legislature had in mind. Most minors will, with court in this case demonstrably acted “without regard to the assistance of counsel, be able to meet the requirements set by the Court, which are minimal. The plain language of guiding legal principles.” 7 The primary reason for this is that the Family Code and its historical backdrop require a more we have not before had the opportunity to provide guiding substantive showing.

legal principles. That this trial court may not have properly comprehended what the Legislature meant by the phrase “mature and sufficiently well informed” does not equate to an abuse of discretion in this instance, where no published I appellate decision existed to guide the trial court. Thus, this

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The history of how and why the bypass procedure in section Bellotti II plurality concluded that a minor must be permitted 33.003 of the Family Code came to be sheds light on how it an opportunity to show “either: (1) that she is mature enough should be construed. Over twenty years ago, the United States and well enough informed to make her abortion decision, in Supreme Court *261 handed down two landmark decisions consultation with her physician, independently of her parents' dealing with minors and abortion. See Planned Parenthood wishes; or (2) that even if she is not able to make this decision of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 independently, the desired abortion would be in her best L.Ed.2d 788 (1976); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. interests.” Id. at 643–44, 99 S.Ct. 3035. With regard to the 2857, 49 L.Ed.2d 844 (1976) (Bellotti I ) (issued the same day determination of maturity, Bellotti II stated that “the peculiar as Danforth ). In Danforth, the Supreme Court held for the nature of the abortion decision requires the opportunity for first time that a parent does not have an absolute “veto” over case-by-case evaluations of the maturity of pregnant minors.” the decision of a minor to terminate her pregnancy: Id. at 643 n. 23, 99 S.Ct. 3035. The Bellotti II plurality also concluded that a parental bypass proceeding must maintain [T]he State may not impose a blanket the anonymity of the minor and must be completed with provision ... requiring the consent of “sufficient expedition to provide an effective opportunity for a parent ... as a condition for abortion an abortion to be obtained.” Id. at 644, 99 S.Ct. 3035. of an unmarried minor.... [T]he State does not have the constitutional A majority of the United States Supreme Court has authority to give a third party an subsequently approved the Bellotti II parental bypass absolute, and possibly arbitrary, veto requirements. See City of Akron v. Akron Ctr. for Reprod. over the decision of the physician and Health, Inc., 462 U.S. 416, 439–42, 103 S.Ct. 2481, 76 his patient to terminate the patient's L.Ed.2d 687 (1983) (Akron I ) (holding parental consent pregnancy, regardless of the reason for statute unconstitutional in light of Bellotti II ); Ohio v. Akron withholding consent. Ctr. for Reprod. Health, 497 U.S. 502, 510–13, 110 S.Ct.

2972, 111 L.Ed.2d 405 (1990) (Akron II ) (declining to decide Danforth, 428 U.S. at 74, 96 S.Ct. 2831. The Court further whether parental bypass was constitutionally required in a concluded that “[a]ny independent interest the parent may notification rather than a consent statute, but applying Bellotti have in the termination of the minor daughter's pregnancy is II requirements).

no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.” Id. at 75, 96 A question specifically left open in United States Supreme S.Ct. 2831.

Court decisions is whether the parental bypass procedure set forth above is constitutionally mandated when a statute In so holding, the Supreme Court said that it did not mean to requires only that a parent be notified that the minor is about suggest that “every minor, regardless of age or maturity, may to undergo an abortion as opposed to a statute *262 that give effective consent for termination of her pregnancy.” Id.

requires parental consent. See, e.g., Lambert v. Wicklund, at 75, 96 S.Ct. 2831. Consistent with that statement, the Court 520 U.S. 292, 295, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997)

registered its concern that there are “unquestionably greater (per curiam); Akron II, 497 U.S. at 510, 110 S.Ct. 2972.

risks of inability to give an informed consent” for a minor. See Nevertheless, there is reasoning in Bellotti II that would Bellotti I, 428 U.S. at 147, 96 S.Ct. 2857. The Court suggested suggest that the United States Supreme Court might hold that a statute requiring parental consent before a minor could that bypass procedures are necessary in notification statutes.

obtain an abortion might be constitutional if there were also The statute under consideration in Bellotti II required that a a provision that allowed the minor to go to court to obtain parent be notified when a minor brought judicial proceedings consent. Id.

to obtain consent. See 443 U.S. at 646, 99 S.Ct. 3035. The Supreme Court struck down this provision, observing “ In Bellotti II, a plurality of the Supreme Court adopted what ‘there are parents who would obstruct, and perhaps altogether the Court had previously suggested in Bellotti I by holding prevent, the minor's right to go to court.’ ” Id. at 647, 99 S.Ct.

that parental consent statutes would not pass constitutional 3035 (quoting the district court). The Court continued, stating muster unless the State provided an alternative procedure in that every minor must have the opportunity to go to court which a minor could receive authorization for an abortion.

without first notifying a parent:

See Bellotti v. Baird, 443 U.S. 622, 646–47, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti II ). The

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The bypass procedure in section 33.003 does not mean, [M]any parents hold strong views on the subject of however, that the Legislature intended for a minor to abortion, and young pregnant minors, especially those proceed with an abortion based on a minimal showing. living at home, are particularly vulnerable to their parents' The Legislature has required that the minor be mature efforts to obstruct both an abortion and their access to court. and sufficiently well informed to make the decision. In It would be unrealistic, therefore, to assume that the mere determining what the Legislature meant by those terms, it existence of a legal right to seek relief in superior court again must be borne in mind that decisions of the United provides an effective avenue of relief for some of those who States Supreme Court have dominated abortion law. There need it the most. is a substantial body of law from that Court regarding what a state may and may not require to demonstrate a woman's informed consent to an abortion. That law should guide *** interpretation of section 33.003.

[E]very minor must have the opportunity—if she so desires Given the context in which section 33.003 of the Family Code —to go directly to a court without first consulting or was enacted, I can only conclude that the Legislature intended notifying her parents. If she satisfies the court that she is to require minors to be informed about the decision to have mature and well enough informed to make intelligently the an abortion to the full extent that the law, as interpreted by the abortion decision on her own, the court must authorize her United States Supreme Court, will allow. Accordingly, I turn to act without parental consultation or consent. to what the United States Supreme Court has said regarding Id. (plurality opinion) (emphasis added). *263 informed consent and what states may require. Undoubtedly cognizant of these holdings and admonitions of the United States Supreme Court, the Texas Legislature enacted amendments to the Family Code that require parental

III

notification before a minor may obtain an abortion, but the Legislature also included a bypass provision. See TEX. The United States Supreme Court has made it clear that when FAM.CODE §§ 33.002, 33.003. The bypass procedures a woman is making a decision about abortion, particularly substantially track those set forth in Bellotti II. See id. § when she is a minor, a state can require consideration of 33.003. A minor may apply to a court for an order authorizing factors in addition to the physical risks of the procedure. her to consent to an abortion without notification of a parent Those include recognition that there are profound philosophic or guardian. See id. The trial court may not authorize a arguments surrounding abortion, consideration of the impact minor to consent to an abortion unless it determines by a that the procedure will have on the fetus, an understanding preponderance of the evidence that there may be an emotional and psychological impact following an abortion and later in life, and consideration of whether the minor is mature and how the decision to obtain an abortion may impact present sufficiently well informed to make the and future familial relationships.

decision to have an abortion performed without notification to either of her With regard to the philosophic aspects of the abortion parents or a managing conservator or decision, a majority of the Court observed in Akron II that:

guardian, whether notification would not be in the best interest of the minor, A free and enlightened society or whether notification may lead to may decide that each of its physical, sexual, or emotional abuse of members should attain a clearer, more the minor. tolerant understanding of the profound philosophic choices confronted by a Id. § 33.003(i).

woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal II dignity, and the origins of the other human life that lie within the embryo.

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possible effects on her own.’ ” *264 Id. at 969–70, 112 Akron II, 497 U.S. at 520, 110 S.Ct. 2972. S.Ct. 2791 (quoting Akron I, 462 U.S. at 474, 103 S.Ct. 2481 (O'Connor, J., dissenting)).

Other members of the Supreme Court again acknowledged the philosophic and social aspects of the abortion decision Initially, the Supreme Court had struck down as in Planned Parenthood v. Casey, 505 U.S. 833, 872, 112 unconstitutional statutes that were fairly specific in their S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). requirements for informed consent to an abortion. See They further acknowledged that when an adult woman is Thornburgh v. American College of Obstetricians and considering whether to have an abortion, a state may take Gynecologists, 476 U.S. 747, 759–65, 106 S.Ct. 2169, 90 steps to ensure that the decision is thoughtful and informed: L.Ed.2d 779 (1986); Akron I, 462 U.S. at 442–45, 103 S.Ct.

2481. However, in Casey, a majority of the Justices overruled Though the woman has a right to choose to terminate or Thornburgh and Akron I, at least in part. See Casey, 505 U.S.

continue her pregnancy before viability, it does not at all at 881–87, 112 S.Ct. 2791 (plurality opinion); id. at 966–69, follow that the State is prohibited from taking steps to 112 S.Ct. 2791 (Rehnquist, C.J., concurring in the judgment ensure that this choice is thoughtful and informed. Even in part and dissenting in part). Although the constitutional in the earliest stages of pregnancy, the State may enact limits on what a state may require for informed consent are rules and regulations designed to encourage her to know not entirely clear after the Supreme Court's decision in Casey, that there are philosophic and social arguments of great it is clear that a state may require a “thoughtful and informed”

weight that can be brought to bear in favor of continuing decision that encourages a woman to consider that there are the pregnancy to full term and that there are procedures and “philosophic and social arguments of great weight that can institutions to allow adoption of unwanted children as well be brought to bear.” Casey, 505 U.S. at 872, 112 S.Ct. 2791 as a certain degree of state assistance if the mother chooses (plurality opinion); see also Akron II, 497 U.S. at 520, 110 to raise the child herself. “ ‘[T]he Constitution does not S.Ct. 2972. With regard to the emotional and psychological forbid a State or city, pursuant to democratic processes, consequences of an abortion for a minor, a majority of the from expressing a preference for normal childbirth.’ ” It Supreme Court in Akron II said: “ ‘The medical, emotional, follows that States are free to enact laws to provide a and psychological consequences of an abortion are serious reasonable framework for a woman to make a decision and can be lasting; this is particularly so when the patient that has such profound and lasting meaning. This, too, we is immature.’ ” Akron II, 497 U.S. at 519, 110 S.Ct. 2972 find consistent with Roe 's central premises, and indeed the (quoting H.L. v. Matheson, 450 U.S. 398, 411, 101 S.Ct. 1164, inevitable consequence of our holding that the State has an 67 L.Ed.2d 388 (1981)).

interest in protecting the life of the unborn.

Id. at 872–73, 112 S.Ct. 2791 (citation omitted) (emphasis added). IV

In Casey, the Chief Justice, joined by three other Justices, Today, this Court refuses to acknowledge the foregoing body agreed with the plurality that the informed consent provisions of law or the likelihood that our Legislature relied on it when it at issue did not unduly burden the abortion decision. See id. said that a minor must be “sufficiently well informed to make at 969, 112 S.Ct. 2791 (Rehnquist, C.J., concurring in the the decision to have an abortion.” The Court chooses to ignore judgment in part and dissenting in part). In the Chief Justice's that the Legislature intended section 33.003 to encompass separate opinion, the concurring Justices observed that a state factors other than physical risk to the pregnant minor and “has an interest in preserving unborn life,” and that it may take alternatives to abortion. The Legislature did not intend for steps to ensure “that a woman's decision to abort is a well- the “mature and sufficiently well informed requirement” of considered one, and reasonably furthers the State's legitimate section 33.003 to have as limited a focus as the Court ascribes interest in maternal health and in the unborn life of the fetus.” to it. I would hold that a minor must demonstrate more. Id. The Chief Justice's opinion further concluded that a 24– hour waiting period designed to give a woman time to reflect The Court properly requires a minor to consult a health-care on her decision “ ‘is surely a small cost to impose to ensure provider about the general risks of an abortion. But that is that the woman's decision is well considered in light of its insufficient. There may be risks that are heightened for or certain and irreparable consequences on fetal life, and the unique to an individual. A minor cannot make a sufficiently

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In re Doe, 19 S.W.3d 249 (2000)

well-informed decision about an abortion if she does not her decision, the State furthers the know the risks to her of that procedure. In this regard, the legitimate purpose of reducing the risk Family Code expressly allows a pregnant, unmarried minor that a woman may elect an abortion, to consent to medical treatment by a physician, short of an only to discover later, with devastating abortion itself. See TEX. FAM.CODE § 32.003(a)(4). psychological consequences, that her decision was not fully informed.

The Court recognizes that just as there are physical risks associated with an abortion, there are emotional and Casey, 505 U.S. at 882, 112 S.Ct. 2791. psychological consequences, which can be significant for some women. But the Court's treatment of this aspect of the In this same vein, these Justices explained, “[I]n order for abortion decision—one of the most important considerations there to be informed consent to a kidney transplant operation —is superficial. I would require a minor to demonstrate that the recipient must be supplied with information about risks to she has sought and obtained meaningful counseling from the donor as well as risks to himself or herself.” Id. at 883, a qualified source about the emotional and psychological 112 S.Ct. 2791. No less should be required for an abortion. impact she may experience now and later in her life as a result of having an abortion. She should be able to demonstrate to a The Court today gives a nod to the fact that a decision court that she understands that some women have experienced to have an abortion may impact relationships with family severe remorse and regret. She should also indicate to the members. I would require a minor to demonstrate that she court that she is aware of and has considered that there are has thoughtfully considered the potential impact on her philosophic, social, moral, and religious arguments that can relationships with her parents and other family members if be brought to bear when considering abortion. See generally they learn now or sometime in the future that she has had Casey, 505 U.S. at 872, 112 S.Ct. 2791 (plurality opinion). A an abortion. She should also exhibit some consideration of court cannot, of course, require a minor to adopt or adhere to how this decision may impact her future relationships, such any particular philosophy or to profess any religious beliefs. as those she may have with a husband or future children. A But requiring a minor to exhibit an awareness that there minor should also have considered the impact that continuing are issues, including religious ones, surrounding the abortion her pregnancy would or might have on these relationships. decision is not prohibited by the *265 Establishment Clause. Cf. Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S.Ct. 2105, While a minor must demonstrate a knowledge and 29 L.Ed.2d 745 (1971) (holding that a statute must have a appreciation of the various considerations involved in her secular legislative purpose, that its principal or primary effect decision, I agree with the Court that she should not be required must be one that neither advances nor inhibits religion, and to obtain counseling or other services from a particular that it must not foster an excessive government entanglement provider. The internet should not, however, suffice. Nor with religion). The State's statutorily expressed interest in should advice from laypersons who are not specifically section 33.003 is to ensure a well-informed decision, which trained and experienced in counseling pregnant minors includes a mature understanding of all issues surrounding the suffice. The “State's interest is in ensuring that the woman's decision to have an abortion. consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling An informed appreciation of the emotional and psychological from a qualified person, not the identity of the person from aspects of terminating a pregnancy includes an understanding whom she obtains it.” Akron II, 497 U.S. at 518, 110 S.Ct. of the impact the procedure will have on the fetus. As Justices 2972. I note, however, that a majority of the Supreme Court O'Connor, Kennedy, and Souter observed in Casey, failure to has observed that “ ‘[i]t seems unlikely that [a minor] will obtain a full understanding of this aspect of the procedure can obtain adequate counsel and support from the attending lead to “devastating psychological consequences” afterwards: physician at an abortion clinic, where abortions for pregnant minors frequently take place.’ ” H.L. v. Matheson, 450 U.S.

Nor can it be doubted that most women 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) (quoting considering a abortion would deem Planned Parenthood v. Danforth, 428 U.S. 52, 91, 96 S.Ct. the impact on the fetus relevant, if 2831, 49 L.Ed.2d 788 (1976) (concurring opinion)). By the not dispositive, to the decision. In same token, it seems unlikely that a minor would obtain all attempting to ensure that a woman the information necessary for a well-informed decision about apprehend the full consequences of

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In re Doe, 19 S.W.3d 249 (2000)

proceeding with an abortion, such as medical information, have an abortion might have on her relationships with her solely from a religious organization or an advocacy group. parents or others or her future relationships.

Because Jane Doe's proof was deficient, the trial court did not err in denying her application. I agree with the Court,

V

however, that because no court has ever construed section I agree with the Court that Jane Doe has not established 33.003, this matter should be remanded in the interest of as a matter of law that *266 she is sufficiently well justice. informed to make the decision to have an abortion performed without notification of one of her parents. With regard to the Accordingly, I join only in parts I, II, and III of the Court's emotional and psychological consequences of an abortion, opinion, and I join the judgment. Jane Doe testified that she understood that there “is some emotional factor that can distress you and there is a slight Justice HECHT, joined by Justice ABBOTT, dissenting.

risk of infection, not much.” When asked if she anticipated The Court today deals a heavy blow to parents' fundamental, seeking additional counseling if she were authorized by the constitutional rights to raise their children, rights the Court to consent to an abortion, she said, “I haven't thought Legislature had absolutely every intention of protecting by about it, but I think I do not need further counseling. I feel that my decision, and [sic] once it is followed through, would be passing the Parental Notification Act in 1999. 1 Described by fine. I am aware of it.” She also testified that she had talked one of its sponsors, Senator Florence Shapiro, as a “parental with an adult relative who had an abortion as a minor. That rights bill”, the Act was plainly meant to encourage minors relative told Jane Doe that she has not regretted her decision. to seek their parents' advice and counsel in making what Jane Doe had also talked to two of her friends who had the United States Supreme Court has sympathetically called become pregnant as minors and were raising their respective the “grave and indelible” 2 decision whether to have an children. One was of college age and told Jane Doe that “she abortion. The Act permits a judge to authorize a minor to really wishes that she hasn't [sic] had her child.” This friend make the decision herself if she is “mature and sufficiently is currently unable to attend college or to support herself and well informed”. But, explains the Court, all that really her child, and she intends to move back in with her parents. means is that a minor must know something of the health Jane Doe's other friend is fifteen and has married the father risks of the abortion procedure (which is not too hard, of her child. Jane Doe perceives that they are having “a very *267 since for most women the physical risks are easily hard life,” and her friend told her that “they wish they could assessed), the alternatives to abortion (although she need not take it back.” Jane Doe also talked to a friend who has had an explain her choice among them), and, from “reliable and abortion. That friend told her that her own decision to have informed sources”, 3 whatever that means, the emotional and an abortion was “a good thing” and that she does not regret it. psychological aspects of having an abortion. To think that a minor should choose abortion based merely on such antiseptic The fact that Jane Doe has sought advice from friends and considerations trivializes the decision. As the Court reads the family indicates that she is seeking information as a mature statute, no one need counsel a minor, as her parents should person would do. Minors in Jane Doe's position should if they were told of her situation, that the family, social, not be discouraged from asking for counsel and support moral, and religious aspects of her decision may radically from people who know and care about them. But talking to affect her life, her family, and her future. Of such things—the friends and family and obtaining anecdotal information is not really important part of the calculus of the abortion decision equivalent to receiving in-depth counseling and information —a minor can be largely unappreciative and still be, in the from sources qualified by training and experience. She Court's view, well informed. She need not have the benefit of expressed no appreciation that many women experience differing viewpoints; she may obtain all her information from emotional and psychological problems as a consequence of abortion proponents. “Well informed”, for the Court, means their decision or why that is so. only that a minor has thought about what she knows, not that she knows what to think about.

With regard to alternatives to abortion, Jane Doe exhibited only the most superficial consideration. Finally, she did not The Court does not base its statutory interpretation of demonstrate that she has considered the impact a decision to “mature” and “well informed” on the ordinary meanings of

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In re Doe, 19 S.W.3d 249 (2000)

those words, or on the purposes the Legislature intended for authorization to have an abortion without notifying her them to achieve, or on the United States Supreme Court parents. cases from which they were undoubtedly drawn, but on its own predilections. Other states' laws cited by the Court vary At the hearing, Doe was asked what kind of information she widely, some specifying the information a woman must be had obtained and how she had made her decision. Her entire given, others prescribing only a general standard, and none testimony on this subject is as follows: shedding more than a faint light on the proper construction of Texas' statute. The result of today's decision is that it is not *268 Q And what kind of information did you look at to much harder now for a minor to obtain an abortion without evaluate your options? telling her parents than it was before the Parental Notification A I got information on abortion and that procedure and Act was passed. Mostly, the Legislature has wasted a lot of what goes on with it and process of adoption and what time and energy. Before the statute a minor needed a willing it would actually be to have the child and I looked them clinic; now she just needs a lawyer, whose fees will be paid over and I decided the abortion would be the best for me by the State.

personally.

The essential intent of the Parental Notification Act, as I read Q Briefly describe for the Court, I mean briefly, your it, is that if the State is going to cut off a parent's right to advise understanding of what the abortion procedure entails. a minor about her pregnancy, and to authorize the minor to choose abortion without the benefit of parental involvement, A Okay. Well, I know I would have to get up and go to then the State must ensure that the minor has had the same Planned Parenthood early and take a slight sedative, so kind of assistance in making her decision that a parent should be less painful, and they would flush it out and suck out, provide. The last thing the State should want to hear is a remove it, and I would have to go out—to go back in a minor's belated cry: “Why didn't someone tell me?” It is month to a checkup, make sure there is no infection, no precisely that kind of assistance that the Legislature intended hemorrhaging, and that's pretty much how they remove it. to ensure but the Court ignores.

Q Did the information that you examined include information about medical risks associated with abortion?

Because I believe the Court's construction of the Act conflicts with its language, purposes, and sources, I dissent. A Well, there is a slim chance of death, a very, very rare.

It is a pretty safe procedure, safer than actually having a child. There is some emotional factor that can distress you I and there is a slight risk of infection, not much. It is a pretty safe procedure.

Jane Doe will be eighteen years old in a few months. She is a high school senior with a high-“B” or low-“A” grade average, Q Did you also attempt to find any information on is involved in some extracurricular activities, and has a part- alternatives to abortion? time job. She has never been married and lives at home with A Yes, I looked at other information such as adoption and both her parents. She has a boy friend, a recent high school actually having the child.

graduate, who is attending college. Doe and her boy friend have been, in her words, “sexually active”, and Doe thinks Q And what information did you look at, what information her mother is aware of that fact, although they do not discuss did you evaluate in deciding to get an abortion as opposed it. Doe is not sure whether her father is aware that she has to pursuing one of those other options? had sex.

A Well, I just thought about my options and what would be Doe has used birth control pills for years, but about ten best for me and actually the child and abortion in the long weeks ago she discovered she was pregnant. About a month run I see as being most positive and best one there is. ago she went to a Planned Parenthood office where she received some information about abortion and, in her words, Q Could you explain to the Court why you made that “partial counseling”. A week later she applied to the trial court decision?

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In re Doe, 19 S.W.3d 249 (2000)

Asked why she did not want to involve her parents in her A Well, for me I feel if I were to have the child, my parents, decision, Doe testified as follows: they would be slightly upset to actually know that I became pregnant and they are very against abortion. So, first of Q Could you briefly describe for the Court, you have talked all, they wouldn't even give me that chance to have an a little bit, but maybe a little bit more information, as to abortion. And I am planning after I graduate this year to go why it is you don't believe you can tell your parents about off [from home] to college. And I would like to pursue my your decision to have an abortion? own career. And I feel if I had the child I couldn't do any of that now and be a major setback. And I don't favor the A Okay. Both of my parents are active members at our adoption. I know it could be done, but if I were to go nine church.... And they strongly believe that it's not a wise thing months having this child, I would feel to keep it. But that to do. It is something they do not believe in. They much is—I already decided that would be, would be holding me rather me have a child. And they wouldn't even give me the back from my future, what I want to become. So, I decided opportunity to have this done. They have it set in their mind abortion would be overall the best solution. what would go on. It is something they strongly disapprove of.

Doe has not consulted a physician. She testified that she had talked with a close relative who had had an abortion when she was 17. Doe's entire account of the conversation was *** that “she told me how she felt about it and what went on.” Doe's guardian told the trial court that Doe's conversations Q You say that your parents, you seem pretty sure that they with her relative “were pretty limited in terms of having the would not be in favor of abortion. Have you ... had some real advice”. Doe also testified that she had spoken with three general discussion with them about how they would feel friends. One, a high school graduate, had a child and could not if someone in their family got an abortion, or what is your go to college but had to move in with her parents. Another, basis for that? age 15, was, in Doe's words, “trying to go to school and have A Well, when my [relative] had her abortion ... my mom her baby, you know,” and her parents had forced her to marry.

felt very strongly since then that it is something that In Doe's words: “[T]hey both have a very hard life right now she doesn't believe in, something that she doesn't want and they say they wish they could take it back.” A third had anyone else in the family to have done. She feels that had an abortion and felt strongly that it was, according to Doe, the child would be a part of her and she would not give “a good thing that she had it done so she can look into the me that option. She's told me before that is not a thing future and say she's glad she had this done”. Doe did not talk that she does believe in. She doesn't want her daughter to with anyone else about her decision. No one she spoke with go through that. It would be wrong. So, she just strongly expressed any reservations about her having an abortion or disagrees with it.

about abortion in general.

Doe's guardian asked her to get counseling at a crisis *** pregnancy center, and she *269 made an appointment to do so, but she was unable to locate the office. She testified Q And can you tell me if there is any reason that you that she “did further research over the internet, different sites, wouldn't want to have your mother there when you wake different places, for how they feel about it, you know, what up [from the sedative after the abortion procedure]? their procedures were about. So, I looked up on my own.” Doe A She wouldn't let me do it. I know for a fact she did not give further specifics about her internet research. Doe wouldn't. She is very against this and she would be has not spoken with a member of the clergy. Asked whether disappointed in me. She wouldn't be there to support she thought she needed any further counseling on the abortion me with it. I know she wouldn't go along with it. She procedure or alternatives to it, she said: “I haven't thought wouldn't be there in the first place. She totally detests the about it, but I do not think I need further counseling. I feel fact of people that actually do that.

that my decision, and once it is followed through, would be Having heard this evidence, and after argument by the fine. I am aware of it.”

guardian and by Doe's attorney, the trial court made the following findings:

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In re Doe, 19 S.W.3d 249 (2000)

When the woman is a minor, her right is subject to two 5. The applicant has not shown by a preponderance of important limitations: the State's interest in protecting the the evidence that: Applicant is mature and sufficiently welfare of all its citizens and the life of the unborn, 6 and the well informed to make the decision to have an abortion interest of parents and families in living their lives free from without notification to either of her parents, her managing conservator, or guardian. undue state interference. 7 I examine each of these limitations in turn.

6. The court finds that although applicant shows sign of being mature, she has not demonstrated that she is sufficiently well informed about the medical procedures

A

and the emotional impact of the procedure.

The State has a legitimate interest in protecting its citizens'

7. The applicant has not shown by a preponderance of the welfare, and it may constitutionally favor normal childbirth evidence that: Notifying either of the applicant's parents, and encourage a woman to make that choice. In Casey, the managing conservator or guardian would not be in her best Supreme Court explained:

interest.

Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all II follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even Texas' Parental Notification Act was enacted in the context in the earliest stages of pregnancy, the State may enact of a developing body *270 of federal constitutional law that rules and regulations designed to encourage her to know attempts to determine the extent of a woman's right to choose that there are philosophic and social arguments of great abortion and the kinds of limitations that can be placed on it. weight that can be brought to bear in favor of continuing Understanding this context is necessary to construe and apply the pregnancy to full term and that there are procedures and the Texas statute. institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses A woman's right to choose abortion that the United States to raise the child herself. “ ‘[T]he Constitution does not Supreme Court has recognized is not absolute. 4 The Supreme forbid a State or city, pursuant to democratic processes, Court explained in Planned Parenthood v. Casey: from expressing a preference for normal childbirth.’ ” It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that At the heart of liberty is the right to define one's own has such profound and lasting meaning. concept of existence, of meaning, of the universe, and of the mystery of human life....

These considerations begin our analysis of the woman's *** interest in terminating her pregnancy but cannot end What is at stake is the woman's right to make the ultimate it, for this reason: though the abortion decision may decision, not a right to be insulated from all others in doing originate within the zone of conscience and belief, it is so. Regulations which do no more than create a structural more than a philosophic exercise. Abortion is a unique mechanism by which the State, or the parent or guardian of act. It is an act fraught with consequences for others:

a minor, may express profound respect for the life of the for the woman who must live with the implications of unborn are permitted, if they are not a substantial obstacle her decision; for the persons who perform and assist in to the woman's exercise of the right to choose.

the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of *271 * * * violence against innocent human life; and, depending on It cannot be questioned that psychological well-being is a one's beliefs, for the life or potential life that is aborted. 5 facet of health. Nor can it be doubted that most women

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In re Doe, 19 S.W.3d 249 (2000)

considering an abortion would deem the impact on the fetus Among those choices, the Supreme Court has insisted, is relevant, if not dispositive, to the decision. In attempting abortion: to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose The State has a strong and legitimate of reducing the risk that a woman may elect an abortion, interest in the welfare of its only to discover later, with devastating psychological young citizens, whose immaturity, consequences, that her decision was not fully informed. If inexperience, and lack of judgment the information the State requires to be made available to may sometimes impair their ability the woman is truthful and not misleading, the requirement to exercise their rights wisely. That may be permissible. interest, which justifies state-imposed requirements that a minor obtain his or her parent's consent before undergoing *** an operation, marrying, or entering military service, extends also to the [W]e permit a State to further its legitimate goal of minor's decision to terminate her protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, pregnancy. 12 even when in so doing the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to

B

fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable A minor's right to choose to have an abortion can be restricted measure to ensure an informed choice, one which might not only by the State's interest in her welfare but by the interest cause the woman to choose childbirth over abortion. 8 of her parents and the interest of the family unit. 13 These To sum up, the Supreme Court stated: “[t]he woman's liberty interests are subject to constitutional protection. The Supreme [to choose abortion] is not so unlimited ... that from the Court has stated: outset the State cannot show its concern for the life of the unborn....” 9 “Only where state regulation imposes an undue [T]he demonstration of commitment to the child through burden on a woman's ability to make this decision does the the assumption of personal, financial, or custodial power of the State reach into the heart of the liberty protected responsibility *272 may give the natural parent a stake in by the Due Process Clause.” 10 the relationship with the child rising to the level of a liberty interest.

The State's interest is particularly acute when the woman is a minor. The Supreme Court

***

has held that the States validly may limit the freedom of children to [T]he family has a privacy interest in the upbringing and choose for themselves in the making education of children and the intimacies of the marital of important, affirmative choices relationship which is protected by the Constitution against with potentially serious consequences. undue state interference. 14 These rulings have been grounded This Court has also recognized the constitutional rights of in the recognition that, during the parents in the relationship with their children. 15 formative years of childhood and adolescence, minors often lack the Specifically with respect to parental involvement in a minor's experience, perspective, and judgment decision whether to have an abortion, the Supreme Court has to recognize and avoid choices that explained: could be detrimental to them. 11 [T]he guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors.... “The child is not the mere creature of the State; those

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In re Doe, 19 S.W.3d 249 (2000)

who nurture him and direct his destiny have the right, to make important decisions. As immature minors often coupled with the high duty, to recognize and prepare him lack the ability to make fully informed choices that take for additional obligations.” “The duty to prepare the child account of both immediate and long-range consequences, a for ‘additional obligations' ... must be read to include State reasonably may determine that parental consultation the inculcation of moral standards, religious beliefs, and often is desirable and in the best interest of the minor. It elements of good citizenship.” This affirmative process of may further determine, as a general proposition, that such teaching, guiding, and inspiring by precept and example consultation *273 is particularly desirable with respect is essential to the growth of young people into mature, to the abortion decision—one that for some people raises socially responsible citizens. profound moral and religious concerns. 16 The Supreme Court has held that a parent cannot have We have believed in this country that this process, in large an absolute and arbitrary veto over a child's choice of an part, is beyond the competence of impersonal political institutions. Indeed, affirmative sponsorship of particular abortion. 17 But by the same token, a parent's right to be ethical, religious, or political beliefs is something we involved in a child's decisions cannot be abrogated without expect the State not to attempt in a society constitutionally sufficient reason. committed to the ideal of individual liberty and freedom of choice. Thus, “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, III whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” In the context of this developing federal constitutional law, Texas' Parental Notification Act was passed, as its abundant history repeatedly emphasizes, to encourage parental participation in a minor's decision to have an

***

abortion, to discourage abortion generally, and to discourage [T]he parental role implies a substantial measure of teen pregnancy with the warning that an abortion without authority over one's children. Indeed, “constitutional parental involvement would not be readily available. The interpretation has consistently recognized that the parents' Act prohibits a physician, with certain exceptions, from claim to authority in their own household to direct the performing an abortion on an unemancipated minor without rearing of their children is basic in the structure of our giving a parent, managing conservator, or guardian at least 48 society.” hours' actual notice. 18 One exception to this prohibition is that a court may grant a minor's application to consent to an Properly understood, then, the tradition of parental abortion without the prescribed notice if the court determines, authority is not inconsistent with our tradition of by a preponderance of the evidence, that either (1) “the minor individual liberty; rather, the former is one of the is mature and sufficiently well informed to make the decision basic presuppositions of the latter. Legal restrictions on to have an abortion performed without notification to either minors, especially those supportive of the parental role, of her parents or a managing conservator or guardian,” (2) may be important to the child's chances for the full “notification would not be in the best interest of the minor,” growth and maturity that make eventual participation or (3) “notification may lead to physical, sexual, or emotional in a free society meaningful and rewarding. Under abuse of the minor.” 19 As I have already noted, petitioner the Constitution, the State can “properly conclude that bases her application on the first two of these grounds. I parents and others, teachers for example, who have consider each ground separately.

[the] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.”

A

*** The Legislature has not defined the phrase “mature and sufficiently well informed” in section 33.033(i). Accordingly, [P]arental notice and consent are qualifications that typically may be imposed by the State on a minor's right we are obliged to give the words their ordinary meaning, 20

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In re Doe, 19 S.W.3d 249 (2000)

a requirement acknowledged by the Court and then wholly very safe medical procedure. The risks in a particular case ignored. may be greater and may determine the decision, but that is not true in most situations. Far more important are concerns According to the Oxford English Dictionary, the word about the family, social, psychological, emotional, moral, and “mature”, used in describing a person, means “having the religious implications of the abortion decision. Ordinarily, powers of body and mind fully developed.” With reference some of these issues are none of the State's business. A to thought and deliberation, the word means “duly prolonged person's religious views, for example, are entirely a private and careful.” And as applied to “plans, conclusions, etc.,” and individual matter. But minors who have not yet thought the word means “formed after adequate deliberation.” The seriously about such matters should be aware that their views Oxford English Dictionary defines the word “well-informed” may someday change. It is critical that a minor appreciate that as: “Well equipped with information; fully furnished with decisions made today can have consequences decades into the knowledge, whether of a special subject or of things in future. The essential approach taken by the Legislature in the general; having a well-stored mind.” Thus defined, the Parental Notification Act is that if a minor is to be allowed statutory phrase, “mature and sufficiently well informed”, to choose abortion without the guidance parents should refers to the basis for a decision—full information and give a child in such circumstances, then she must have an knowledge of the subject—as well as the manner in which it appreciation of that guidance from somewhere else. Because is made—as by a person of ample years and experience. there is deep disagreement over the subjective elements of a choice of abortion, a minor should be aware of and appreciate A decision cannot be well informed if the person making it the differing views. She is free to credit some and discount does not have a full knowledge of the relevant considerations. others, of course, but she ought not to make a decision without In the present context, this does not mean that a minor knowing what others believe to be at stake. As the United must know all there is to know about abortion as a medical States Supreme Court has observed, “It seems unlikely that procedure or the alternatives to it and the factors involved [a woman] will obtain adequate counsel and support from the in a choice. Some of the relevant factors are not hard to attending physician at an abortion clinic, where abortions for assess, such as the health risks of the procedure to the woman. pregnant minors frequently take place.” 23 The landscape is But many of the relevant factors involve more unknowns: not revealed in any single setting. the consequences to the fetus, the risks of psychological and emotional problems, the woman's ability to mother the Whether a minor is well informed is more of an objective child if it is born, *274 the availability of alternatives determination than whether she is mature. As noted above, the including adoption, the availability of financial assistance if latter quality is an ability to act as an experienced adult would. the child is carried to term, the impact of the decision on The United States Supreme Court has observed that “the fact the woman's present and future family, and the “philosophic that a minor may be very much an adult in some respects and social” 21 —including religious—concerns that favor does not mean that his or her need and opportunity for growth continuing the pregnancy to term. Mastery of these issues under parental guidance and discipline have ended.” 24 The is not necessary for a person to be well-informed, but an Court fails to take this obvious fact into account. Maturity is appreciation of them is. A minor worried about the financial not so much a matter of what a person knows as it is of how burdens of parenthood, for example, should know what she thinks and acts. A trial judge who can watch a minor's support is available to her; that information could affect her demeanor and hear the inflections in her voice is in a far better decision. While people disagree about the more subjective position to determine her maturity than an appellate judge factors, a minor should nevertheless have some awareness confined to the typed transcript of her testimony. of the issues in the disagreement in making her decision. As the United States Supreme Court has observed, the State From the meanings of the words themselves and the purposes has a legitimate purpose in “reducing the risk that a woman of the Parental *275 Notification Act, informed by the may elect an abortion, only to discover later, with devastating United States Supreme Court's reference to the same ideas psychological consequences, that her decision was not fully in numerous opinions, I conclude that by “mature and informed.” 22 sufficiently well informed” the Legislature means a minor who has obtained for herself the kind of complete and The abortion decision does not turn merely, or mostly, on balanced information relevant to her decision and evaluate it simple facts, such as that in most instances abortion is a as a person who no longer needed parental guidance on so

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In re Doe, 19 S.W.3d 249 (2000)

grave a matter. For reasons that I am about to explain, the without parental notification. The trial court has no discretion Court reads the statutory standard to mean something far less. in the matter. Thus, if a minor offers evidence to satisfy the Court's three requirements, her application must be granted. This standard is, of course, foreign to the language, intent, and purposes of the Act.

B

Although petitioner in this case has not focused her arguments The Court's first requirement is that a minor must obtain on appeal on the alternative ground on which she based her information about the health risks of the procedure. While application—that notifying her parents of her intent to have such information is certainly essential to the minor's decision, an abortion would not be in her best interest—I address that it will not be significant in most instances. Abortion is, for ground briefly. the most part, a physically safe procedure. There are instances when this is not true, and a minor should be advised of the In essence, petitioner does not want to notify her parents risks to her, but in most instances it will not be difficult for a because she fears they will not approve. This concern, minor to meet this requirement. standing alone, should not justify excluding her parents from her decision, as the trial court found. For one thing, The Court's second requirement is that a minor should petitioner may have judged wrongly. But assuming her fears “have an understanding of the alternatives to abortion are well founded, petitioner must choose between parental and their implications” and have given them “thoughtful disapproval and the burden of knowing that she has kept consideration”, although she need not “justify why she prefers something very important from them. The latter does not abortion above *276 other options”. 27 In the Court's view, simply trump the former. A minor's concealment from her thisrequirement can be satisfied by a simple declaration by the parents of so profound a decision, like the decision itself, may minor that she has thought long and hard about her decision. have lifelong, and unforeseen, consequences. The trial judge But in fact, a minor is not well informed merely because she must ensure that the minor appreciates those consequences knows that she can carry her pregnancy to term and then either and must attempt to determine whether it would not be in keep the child or offer it for adoption. She should have an a minor's interest to attempt to involve her parents in her appreciation of what her options entail. decision despite their disappointment and disapproval.

The Court's third requirement is that a minor should have received information “from reliable and informed sources” concerning the “emotional and psychological aspects of

IV

undergoing an abortion”. 28 Just who such sources might be The Court's opinion minimizes what a minor must prove to the Court does not say, but nothing prohibits them from all show that she is “mature and sufficiently well informed” to being promoters of abortion. A minor is not well informed choose abortion without involving her parents. This is not simply because she has heard one side of a matter. immediately apparent from all its language. For instance, at one point the Court states that a minor must demonstrate The Court acts as if these three requirements are significant, that her decision “is based upon careful consideration of the but they plainly are not. Any competent attorney representing various options available to her and the benefits, risks, and a minor in a case like this can easily script testimony that consequences of those options.” 25 But this broad statement will meet all three requirements. All a minor need tell the is belied by the specific requirements set out in Part V. There trial court is: that she has consulted with a clinician who told are only three, and while they are what the Court would her that abortion presented insignificant physical risks to her, that some people regret having an abortion but not very often, require “at a minimum”, 26 they are nevertheless sufficient as and that she could always have the child and keep it or put a matter of law for a minor to obtain judicial authorization for it up for adoption; and that she carefully considered all the an abortion.

clinician said. Once the minor has covered these bases, she is entitled to an order authorizing her to consent to an abortion.

This point is crucial: as the Court reads the statute, once a A trial court that is convinced that a minor is not entitled to minor has proved what she must by a preponderance of the an abortion without parental notification must therefore base evidence, then she is entitled as a matter of law to an abortion the decision on the minor's overall credibility and evidence of

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In re Doe, 19 S.W.3d 249 (2000)

her immaturity that cannot be fully reflected in the appellate Court says that it writes to give the lower courts guidance, record. and then in Part VII of its opinion, on the issue dispositive of the case, offers no explanation. None, except “Sorry, you The Court refuses even to acknowledge that a minor's lose, try again.” To undertake an opinion in this case and then decision can profoundly affect her future and present family give no explanation for the result is a blatant abnegation of the relationships. In the Court's mind, the most significant issues Court's responsibility to the lower courts and the petitioner, involved in the abortion decision do not even exist. According and an affront to the Legislature. to the Court, a minor is well informed if she knows a little about a few things which may matter and nothing about the I would hold that the trial court's decision to deny petitioner's very profound consequences of her decision. application was based on some evidence, and I would deny her appeal. I do not agree that she should simply have a second The Court completely ignores the fundamental, constitutional try, especially since she will have no trouble improving her rights of petitioner's parents which must, as the United case. While the court's decision should be given res judicata States Supreme Court has stated, 29 be balanced against effect, it would not bar petitioner from reapplying if her petitioner's right to choose an abortion. The Legislature's circumstances changed materially. express intent in passing the Parental Notification Act was to protect parents' rights to provide children guidance in making difficult decisions. In essence, the Court holds that minors can VI get by without the help.

I agree with the conclusion in Part II of the Court's opinion that this Court must publicly explain its decisions, even in cases like this one in which there is a special need for

V

confidentiality. 30 Neither our duty to the rule of law, nor our I have set out above in complete detail petitioner's testimony, constitutional role in the government, nor our obligations to omitting only those facts that tend to identify her. It is fair to the people whose government it is, permit this Court to rule say that she based her decision to have an abortion on what in secret. It may well be that the lower courts' rulings in cases she called “partial counseling” one Saturday at a Planned like this cannot be secret either, but petitioner has not raised Parenthood clinic; the unsurprising encouragement of her 19– the issue, and no one else can raise it in this case, since no year–old boy friend, who is the father of the child and now one besides her attorney and guardian will have known before wants no part of the responsibility; a brief conversation with today that the case was before us. So the issue must be left a relative who had an abortion when she was petitioner's age; for another day. 31 conversations with three teenage friends, one of whom was glad she had had an abortion, and two of whom, one age I also agree with the conclusion in Part III of the Court's 15, said they wished they had; and unspecified information opinion that the trial court's decision in this case should obtained on the internet. I agree with the Court that this does be affirmed on appeal if it finds sufficient support in the not prove as a matter of law that petitioner is mature and evidence. 32 Because our jurisdiction to review evidentiary sufficiently well informed to have an abortion without telling sufficiency is limited, we must affirm the trial court's decision her parents.

if there is any evidence to support it. We can reverse only if petitioner demonstrates that she has proven her right to Incredibly, the Court never hints at the specific deficiency an abortion without parental involvement as a matter of in petitioner's proof. In this “matter of first impression” the law, which I agree she has not done, for the reasons I have Court hides any reasoning it has. Why has petitioner's proof explained and the Court has not.

failed? What was missing? *277 How much more, or how little, was required? Ordinarily, the Court would answer these questions, would apply its construction of the statute to the facts of the case and explain the consequences. But the ***** JUSTICES in the majority cannot agree on enough issues, even after days of compromise among themselves, to come The people of Texas, like the American people, are deeply up with a single ecumenical justification for their result. The divided over abortion. That division will almost certainly

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In re Doe, 19 S.W.3d 249 (2000)

parents can be deprived of their fundamental right to guide affect the present and future life of every minor who has their child's decisions when she has no more appreciation an abortion. If the Legislature's mandate that a minor be of her circumstances than the Court requires, then the well informed before choosing abortion without involving her statute is almost meaningless. I would not deny the Parental parents does not mean that she be given the same guidance Notification Act its intended purposes. I dissent.

a child should have from her parents, then it offers her little protection. If the Legislature's mandate means that

Footnotes 1 Justice Enoch's concurrence argues that the proper standard of review is abuse of discretion. Much of his argument is based on the premise that the facts will be undisputed. Although the hearing is unopposed, the testimony presented by the minor may be inconsistent, either on direct or after the trial court has posed questions. Therefore, rather than simply applying the law to undisputed facts, the trial court must weigh all the evidence before it, including demeanor and credibility, to determine if the minor, by a preponderance of the evidence, has demonstrated that she is mature and sufficiently well informed.

2 See ARK.CODE ANN. § 20–16–804(1)(A)(Michie 1999); COLO.REV.STAT. ANN . § 12–37.5–107(2)(a)(1999); FLA. STAT.

§§ 390.01115(3)(a) & (4)(c)(1999); GA.CODE ANN. § 15–11–114(c)(1999); 750 ILL. COMP. STAT.. 70/25–25(d) (West 1999); KAN. STAT. ANN.. §§ 65–6705(a) & (d) (1998); MD.CODE ANN., HEALTH §§ 20–103(a) & (c) (1991); MINN.STAT. § 144.343(6) (1998); MONT.CODE ANN. §§ 50–20–212(4) & (5) (1999); NEB.REV.STAT. § 71–6903(1) (1999); NEV.REV.STAT. § 442.255(2) (1997); N.J. STAT. ANN.. § 9:17A–1.7(d) (West 1999); OHIO REV.CODE ANN. §§ 2151.85(A)(4) & (C)(1) (Banks– Baldwin 1999); S.D. CODIFIED LAWS §§ 34–23A–7(3) & 34–23A–7.1 (Michie 1999); VA.CODE ANN. § 16.1–241(V) (Michie 1999); W. VA.CODE § 16–2F–4(f) (1999); WYO. STAT. ANN. § 35–6–118(b)(v)(B) (Michie 1999).

3 Although Texas Parental Notification Rule 3.3(b) does not allow a court of appeals to remand, the rules are silent regarding this Court. Consequently, we are not prohibited from remanding.

1 TEX. FAM.CODE § 33.003(i). 2 Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). 3 See, e.g., Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). 4 See TEX. FAM.CODE § 33.003(k). 5 In the Matter of the Petition of Jane Doe, 19 Kan.App.2d 204, 866 P.2d 1069, 1074 (1994). 6 See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Green v. Remling, 608 S.W.2d 905, 908 (Tex.1980). 7 Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). 8 See TEX.R.APP. P. 60.3. 9 See TEX. FAM.CODE § 33.004(b). 10 See TEX. PARENTAL NOTIFICATION RULES & FORMS 3.3(b). 11 See id. (“The court of appeals ... must issue a judgment affirming or reversing the trial court's order denying the application. If the court of appeals reverses the trial court order, it must also state in its judgment that the application is granted.”).

1 TEX. FAM.CODE §§ 33.001–.011. All statutory references are to the Family Code unless otherwise noted. 2 Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). 3 Ante at 256–57. 4 Planned Parenthood v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). 5 Id. at 851–852, 112 S.Ct. 2791. 6 Id. at 872–873, 112 S.Ct. 2791. 7 Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion). 8 Casey, 505 U.S. at 872–883, 112 S.Ct. 2791 (citations omitted). 9 Id. at 869, 112 S.Ct. 2791. 10 Id. at 874, 112 S.Ct. 2791. 11 Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). 12 Hodgson, 497 U.S. at 444–445, 110 S.Ct. 2926 (plurality opinion) (citations omitted). 13 Id. at 444, 110 S.Ct. 2926. 14 Id. at 446, 110 S.Ct. 2926. 15 E.g., Patterson v. Planned Parenthood, 971 S.W.2d 439, 447 (Tex.1998) (Gonzalez, J., concurring); In the Interest of J.W.T., 872 S.W.2d 189, 194–195 (Tex.1994); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976).

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In re Doe, 19 S.W.3d 249 (2000)

16 Bellotti II, 443 U.S. at 637–640, 99 S.Ct. 3035 (emphasis in original, citations omitted). 17 Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). 18 TEX. FAM.CODE § 33.002. 19 Id. § 33.003(i). 20 TEX. GOV'T CODE § 312.002(a); Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex.1999). 21 Planned Parenthood v. Casey, 505 U.S. 833, 872, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). 22 Id. at 882, 112 S.Ct. 2791. 23 H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). 24 Bellotti v. Baird, 443 U.S. 622, 644 n. 23, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ) (plurality opinion). 25 Ante at 255. 26 Ante at 256. 27 Ante at 256. 28 Ante at 256. 29 Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion). 30 Ante at 251–52. 31 See also TEX. PARENTAL NOTIFICATION RULES & FORMS, Explanatory Stmt. (“such issues should not be resolved outside an adversarial proceeding with full briefing and argument”).

32 Ante at 253.

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Jan P. Patterson, J., dissented from the denial of reconsideration en banc and filed opinion in which Henson, 304 S.W.3d 871 J., joined.

Court of Appeals of Texas, Austin.

Attorneys and Law Firms SAVE OUR SPRINGS ALLIANCE, INC., Appellant, v. *875 Brad Rockwell, Scanlon, Buckle & Young, Sarah CITY OF DRIPPING SPRINGS; Todd Purcell, in his Baker, Austin, for appellant. Official Capacity as Mayor of the City of Dripping Springs; and Mak Foster Ranch, L.P., Appellees. Thomas W. Robertson, Baker & Associates, Dripping Springs, E. Lee Parsley, E. Lee Parsley, P.C., Howard S.

No. 03–04–00683–CV. | Feb. Slobodin, Hazen & Terrell, P.C., Paul M. Terrill, III, The 11, 2010. | Order Denying Terrill Law Firm, P.C., J. Bruce Scrafford, Jeffrey J. Hobbs, Reconsideration En Banc Feb. 12, 2010. Armbrust & Brown, L.L.P., Austin, for appellee.

Synopsis Before Chief Justice LAW, Justices PEMBERTON and Background: Non-profit public interest group, dedicated WALDROP. to protecting a segment of an aquifer, filed suit against city and landowners, challenging city's authority to enter into agreements with landowners to develop portions of OPINION their property for residential, commercial, and recreational use. Group also sought declaration that agreements violated G. ALAN WALDROP, Justice. Texas Constitution, and alleged that public notices regarding We withdraw the opinion and judgment issued July 3, 2009, city council's approval of agreements violated Texas Open and substitute the following opinion and judgment in their Meetings Act. The 207th Judicial District Court, Hays place. We deny appellant's motion for rehearing.

County, Jack H. Robison, J., granted summary judgment to defendants on the Open Meetings Act claim, granted The City of Dripping Springs entered into agreements with defendants' pleas to the jurisdiction on remaining claims, two landowners in the City's extraterritorial jurisdiction, and awarded defendants attorney fees. Public interest group Cypress–Hays, L.P. and Mak Foster Ranch, L.P. The appealed.

agreements contemplated the landowners' development of portions of their property for residential, commercial, and recreational use. The agreements were approved by the city Holdings: On motion for rehearing, the Court of Appeals, G. council in public meetings during April 2001. Appellant Alan Waldrop, J., held that: Save Our Springs Alliance, Inc. (“SOS Alliance”) filed suit alleging that the agreements would result in added [1] group lacked associational standing to bring its claims, pollution to the environmentally sensitive Edwards Aquifer. other than the Open Meetings Act claim; In its petition, SOS Alliance sought a declaration that the agreements violated the Texas Constitution, and alleged that [2] notice of city council meeting to approve agreements did the public notices regarding the *876 city council's approval not violate Open Meetings Act; and of the agreements did not sufficiently communicate the subject matter of the meetings as required by the Texas Open [3] trial court did not abuse its discretion in awarding attorney Meetings Act. The district court granted summary judgment fees. to the defendants on SOS Alliance's Open Meetings Act claim, granted the defendants' pleas to the jurisdiction on the remaining claims based on SOS Alliance's lack of standing, Affirmed; motion for reconsideration en banc denied. and awarded the defendants attorneys' fees. We affirm the judgment of the district court.

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

session. See Act of May 24, 2003, 78th Leg., R.S., ch. 522, § Factual and Procedural Background 1, 2003 Tex. Gen. Laws 1788, 1788–89 (codified at Tex. Loc. After notice and a public hearing on April 10, 2001, the Gov't Code Ann. §§ 212.171–.174 (West 2008)). The 2003 City of Dripping Springs entered into a “Development legislation included a provision that resulted in the retroactive Agreement” with Cypress–Hays, L.P. This agreement validation of the Development Agreements. See Tex. Loc. authorized development on approximately 2,724 acres of Gov't Code Ann. § 212.172(h). land owned by Cypress–Hays in the City's extraterritorial jurisdiction in Hays County. After notice and a public After this legislation was enacted, on May 11, 2004, SOS hearing on April 19, 2001, the City entered into a similar Alliance filed its second amended petition—the live pleading “Development Agreement” with Mak Foster Ranch, L.P. in this case when judgment was entered—seeking declaratory This agreement authorized development on approximately and injunctive relief and attorneys' fees. In its petition, SOS 1,611 acres of land owned by Mak Foster in the Alliance alleged that the Development Agreements violate City's extraterritorial jurisdiction in Hays County. Both the Texas Constitution by impinging on the right of local self- Development Agreements contemplated development of government, impairing the preservation of a republican form the land as master-planned, mixed-use communities with of government, and contracting away legislative powers. SOS commercial and residential uses, as well as park and Alliance further alleged that the City violated the Texas Open recreational facilities. Under the Agreements, Cypress–Hays Meetings Act by issuing public notices that insufficiently and Mak Foster could develop the land according to agreed- stated the subject of the Development Agreements. upon standards, in exchange for the City's pledge that the standards would remain consistent for a period of 15 years The parties filed cross-motions for partial summary (with up to two 5–year extensions). 1 judgment, and the defendants also filed pleas to the jurisdiction challenging SOS Alliance's standing to pursue SOS Alliance is a nonprofit corporation dedicated to its claims. On July 26, 2004, the district court granted the protecting the Barton Springs segment of the Edwards defendants' pleas to the jurisdiction as to all of SOS Alliance's Aquifer, which is located almost entirely in Hays and claims except the alleged violations of the Open Meetings Act Travis Counties. According to SOS Alliance, water from and, after a hearing, granted summary judgment in favor of the aquifer's “contributing zone.” in which the City of appellees as to the Open Meetings Act claim. The parties and Dripping Springs is located, flows eastward on creeks into the court agreed to try the remaining issue of attorneys' fees the “recharge zone,” where the water moves underground on written submission, and the court subsequently granted the through caves, sinkholes, and other openings to fill or defendants' requested fees. The district court entered a final “recharge” the aquifer. Most of the water from this segment judgment on November 29, 2004, incorporating all of its prior of the aquifer emerges at Barton Springs in Austin, Texas, orders. SOS Alliance appeals. 3 which is on the northeast corner of the two zones.

In November 2002, SOS Alliance filed suit against the City Standing of Dripping Springs and Todd Purcell in his official capacity [1] [2] [3] In its first and second points on appeal, as mayor of the City of Dripping Springs (collectively, the SOS Alliance asserts that the district court's granting of “City”), challenging the municipality's authority to enter into appellees' pleas to the jurisdiction as to SOS Alliance's the Development Agreements and the sufficiency of the claims that do not relate to the Open Meetings Act was in information in the public notices for the meetings at which the error. A plea to the jurisdiction challenges the trial court's Agreements were considered and approved. 2 Four months authority to determine the subject matter of a specific cause later, SOS Alliance *877 added Cypress–Hays and appellee of action. See Texas Dep't of Parks & Wildlife v. Miranda, Mak Foster as defendants in the lawsuit. 133 S.W.3d 217, 225–26 (Tex.2004). We review de novo whether a court has subject-matter jurisdiction and whether Although some authority existed for cities to enter into the plaintiff has alleged facts that affirmatively demonstrate certain types of development agreements for land in their subject-matter jurisdiction. Id. at 226. In deciding a plea to the extraterritorial jurisdiction, see Tex. Loc. Gov't Code Ann. § jurisdiction, we are not to consider the merits of the plaintiff's 42.044 (West 2008), the legislature expanded cities' authority claims beyond the extent necessary to resolve the jurisdiction to enter into such agreements during the 2003 legislative issue, but consider the plaintiff's pleadings, construed in the

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

plaintiff's favor, and evidence pertinent to the jurisdictional (“[W]e may look to the similar federal standing requirements inquiry. Id. at 227–28; County of Cameron v. Brown, 80 for guidance.”). S.W.3d 549, 555 (Tex.2002). SOS Alliance contends that its pleadings and jurisdictional *878 evidence are sufficient to SOS Alliance alleges several distinct injuries to its members establish jurisdiction. by which it asserts to have standing in this lawsuit: (1)

members who enjoy Barton Springs pool and its surroundings [4] [5] [6] [7] Subject-matter jurisdiction is essentialfor its recreational, scenic, or scientific value allege injury to the authority of a court to decide a case, and standing is from increased pollution in the aquifer; (2) members who a component of subject-matter jurisdiction. See Texas Ass'n live near the land subject to the Development Agreements of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443–45 and who use well water express concern of pollution to the (Tex.1993). A plaintiff must have standing for the court to water; (3) members who are residents of Dripping Springs have subject-matter jurisdiction to decide the merits of the allege that the Agreements injured their procedural interests plaintiff's claims. See id.; Farmers Tex. County Mut. Ins. in using democratic means to prevent development activities Co. v. Romo, 250 S.W.3d 527, 532 (Tex.App.-Austin 2008, that would further pollute Barton Springs; (4) members who no pet.). The plaintiff must allege facts that affirmatively pay property taxes to the City allege injury from the City's demonstrate the court's jurisdiction to hear the cause. Texas expenditure of public funds under the Agreements; and (5) Ass'n of Bus., 852 S.W.2d at 446. The general test for standing members who live near the land subject to the Agreements is whether there is a real controversy between the parties that express concern about increased lights during the nighttime, will actually be determined by the judicial declaration sought. increased road traffic, and decreased property values. Id. Standing focuses on the question of who may bring a lawsuit. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). Injury to Environmental, Scientific, and Recreational Interests in Barton Springs [8] [9] SOS Alliance sues on behalf of its members. An SOS Alliance argues that it has standing due to environmental association has standing to sue on behalf of its members when injury related to the Barton Springs pool in Austin. (1) its members would otherwise have standing to sue in their SOS Alliance *879 alleges that many of its members own right, (2) the interests it seeks to protect are germane to regularly swim in the Barton Springs pool, and many of the organization's purpose, and (3) neither the claim asserted them enjoy Barton Springs and Barton Creek for other nor the relief requested requires the participation of individual recreational activities and for purposes of observing and members in the lawsuit. Texas Ass'n of Bus., 852 S.W.2d contemplating nature. One member claimed that, as a at 447 (quoting Hunt v. Washington State Apple Adver. scientist, he has a professional and educational interest in Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 the Barton Springs salamander. SOS Alliance alleges that (1977)). The first prong of associational standing may be the Development Agreements will result in an increase satisfied if at least one of the organization's members would in pollution in the aquifer, which will contribute to the have standing individually. See Hays County v. Hays County declining health of Barton Springs—including the reduction Water Planning P'ship, 106 S.W.3d 349, 357 (Tex.App.- of water quality, plant life, numbers of fish, and population Austin 2003, no pet.). The Supreme Court has observed of the Barton Springs salamander—which will in turn injure that the “irreducible constitutional minimum” of individual SOS Alliance's members' “environmental, scientific, and standing contains three elements: (1) the plaintiff must have recreational interests.” SOS Alliance contends that injury suffered an “injury in fact,” an invasion of a legally protected to these types of interests has been “widely recognized” to interest that is concrete and particularized, and that is actual confer standing. or imminent rather than conjectural or hypothetical, (2) the injury is fairly traceable to the challenged action of the The Texas cases cited by SOS Alliance to support standing defendant and not the independent action of a third party not based on environmental harm involve plaintiffs who own before the court, and (3) it must be likely that the injury will property affected by the defendant's actions. In Lake be redressed by a favorable decision. Lujan v. Defenders of Medina Conservation Society v. Texas Natural Resource Wildlife, U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 Conservation Commission, an organization sued for review (1992); see Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001) of a state commission's order authorizing a water control and improvement district's diversion of water from a lake. 980

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S.W.2d 511, 513–15 (Tex.App.-Austin 1998, pet. denied). harm may be a cognizable injury for purposes of standing, This Court held that the organization's members would have it was the harm to the plaintiff's riparian interests that made standing in their own right because they owned waterfront the injury sufficiently particularized so as to distinguish the property, waterfront businesses, and private wells in the area. harm from that experienced by the general public. See id. See id. at 515–16. In Heat Energy Advanced Technology, at 151–52; Brown, 53 S.W.3d at 302 (“Our decisions have Inc. v. West Dallas Coalition for Environmental Justice, an always required a plaintiff to allege some injury distinct from application for a renewal permit for a hazardous and industrial that sustained by the public at large.”). In sum, we do not waste storage and processing facility was challenged by a find any Texas case in which an alleged injury to a plaintiff's coalition of nearby residents, but the administrative agency environmental, scientific, or recreational interests conferred determined the coalition did not have standing to participate standing in the absence of allegations that the plaintiff has an in the hearing. 962 S.W.2d 288, 289–90 (Tex.App.-Austin interest in property affected by the defendants' actions. 1998, pet. denied). This Court held that the agency erred in its determination, concluding that the proximity of a member's Lacking a member with a property interest in Barton home to the facility, combined with that member's allegation Springs (the land alleged to be polluted as a result of of odors affecting his breathing, was sufficient to confer the Development Agreements contrary to SOS Alliance standing. See id. at 295. members' environmental, scientific, or recreational interests)

or with property rights otherwise affected by Baron Springs's SOS Alliance also relies on this Court's opinion in alleged pollution, SOS Alliance turns to federal case law Texas Rivers Protection Ass'n v. Texas Natural Resource to support its assertion of environmental standing. SOS Conservation Commission, 910 S.W.2d 147 (Tex.App.- Alliance is correct that federal courts have recognized that Austin 1995, writ denied). In that case, a state commission environmental harm can constitute a cognizable injury for granted a permit for the diversion of water from the purposes of constitutional standing. See Sierra Club v. Guadalupe River, despite a challenge by the Texas Rivers Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d Protection Association (TRPA) to the application. See 910 636 (1972) (“We do not question that this type of harm S.W.2d at 150–51. On appeal, the party to whom the permit [to scenery, natural and historic objects, and wildlife of a was issued challenged the TRPA's standing to seek judicial national park] may amount to an ‘injury in fact’ sufficient review of the permit. See id. at 151–52. A member of the to lay the basis for standing....”). Moreover, federal courts TRPA owned property fronting the affected area of the have found standing for this type of harm in the absence of river and testified that the diversion of water would injure the plaintiff possessing a property right where harm occurs. his “aesthetic and recreational interests in the river.” Id. at Under federal case law, environmental plaintiffs adequately 151. This Court stated, “An injury need not affect ‘vested’ allege a particularized injury in fact when they aver that they property rights to confer standing; the harm may be economic, use the affected area and are persons for whom the aesthetic recreational, or environmental.” Id. at 151–52. SOS Alliance and recreational values of the area will be lessened by the contends that because its members have alleged recreational challenged activity. See Friends of the Earth, Inc. v. Laidlaw and environmental harm, it has shown a sufficient injury in Envtl. Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 fact for purposes of standing. However, this Court's view L.Ed.2d 610 (2000). SOS Alliance contends that we should of the type of harm that can constitute an injury in fact for follow the federal courts' lead on this issue by determining purposes of standing in Texas Rivers was coupled with the that SOS Alliance's members' environmental interests are determination that the TRPA member's “riparian ownership particularized, legally protected interests, even in the absence alone sufficiently distinguishes [his] injury from that of the of ownership of property impacted by the environmental public at large.” Id. at 151. The plaintiff in Texas Rivers had harm. See Texas Ass'n of Bus., 852 S.W.2d at 444 (“Because no vested right in the river itself, but had property rights standing is a constitutional prerequisite to maintaining a suit affected by the defendant's actions upstream. under both federal and Texas law, we look to the more extensive jurisprudential experience of the federal courts on The Texas Rivers case, therefore, does not stand for this subject for any guidance it may yield.”). the proposition that an allegation *880 of any type of recreational or environmental impact, by itself, constitutes However, the federal cases cited by SOS Alliance, in which an injury in fact sufficient to confer standing. Instead, this environmental harm is held to constitute an injury in fact Court in Texas Rivers concluded that while environmental for purposes of standing, involve the application of federal

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

environmental-protection statutes that prohibited the types S.W.3d 547, 555–56 (Tex.2000) (as general rule, standing of conduct alleged by the plaintiffs in those cases to have requires interest distinct from general public, unless standing occurred. The majority of the federal cases cited by SOS conferred by statute); Texas Ass'n of Bus., 852 S.W.2d at Alliance to demonstrate that an injury in fact for purposes 444 (UDJA “merely a procedural device for deciding cases of standing may be environmental involve claims under the already within a court's jurisdiction rather than a legislative federal Clean Water Act (CWA). 4 See 33 U.S.C. § 1251 et enlargement of a court's power”); Frasier v. Yanes, 9 S.W.3d *881 seq. (2001). The CWA itself provides for a private 422, 427 (Tex.App.-Austin 1999, no pet.) (“A declaratory right of action. A suit to enforce an effluent standard or judgment declares the rights and duties or the status of parties limitation under the CWA may be brought by any “citizen,” in a justiciable controversy.”). which is defined as “a person or persons having an interest which is or may be adversely affected.” Id. § 1365(a), [10] There is no Texas authority for the proposition (g). This provision “confers standing to enforce the Clean that the type of injury alleged by SOS Alliance in this Water Act to the full extent allowed by the Constitution.” case—injury to its members' environmental, scientific, and Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., recreational interests generally and without any interest in 204 F.3d 149, 152 (4th Cir.2000). In these cases, then, the or connection to the real property involved—is the type of plaintiffs possessed a legally protected interest for purposes interference with a legally protected interest or injury that of standing by virtue of a federal statute. See id. at 156–57 confers standing as a matter of state law. SOS Alliance (“injury required by Article HI may exist solely by virtue of must show a particularized, legally protected interest that statutes creating legal rights, the invasion of which creates is actually or imminently affected by the alleged harm. standing” (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 See Defenders of Wildlife, 504 U.S. at 560–61, 112 S.Ct.

2130. SOS Alliance has alleged neither an environmental S.Ct. 2197, 45 L.Ed.2d 343 (1975))). 5 interest provided for or protected by statute (as is present in the federal cases cited by SOS Alliance) nor a property The few federal cases cited by SOS Alliance not involving interest subject to the recreational or environmental harm the CWA—which has a citizen-enforcement provision—

(as is present in the state cases cited by SOS Alliance).

also involved environmental-protection statutes. In Cantrell Absent such allegations, there is no particularized, legally v. City of Long Beach, 241 F.3d 674 (9th Cir.2001), for protected interest at stake in this context, as there is nothing example, the federal law sought to be enforced—the National to distinguish the environmental, scientific, or recreational Environmental Policy Act—included a federal policy to concerns of SOS Alliance's members from the same concerns “preserve important historic, cultural, and natural aspects of experienced by the public in general. See id. at 560, 112 S.Ct.

our national heritage.” 241 F.3d at 679 (quoting 42 U.S.C.

2130; Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976).

§ 4331(b)(4) (2003)). Thus, the Ninth Circuit concluded Based on the existing state and federal case law, to find that the plaintiffs sufficiently alleged an injury in fact for standing under the circumstances here would, we think, be constitutional standing purposes in that they “observed and to expand Texas's standing jurisprudence, and it is not our enjoyed” endangered birds that could be evicted by the proper role as an intermediate appellate court to do so. See defendants' actions. Id. at 679–82. In short, each of the Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 federal cases cited by SOS Alliance that found the existence (Tex.App.-Austin 2004, no pet.). Therefore, we decline to of standing where the alleged harm was to environmental, conclude that the environmental, scientific, and recreational scientific, or recreational interests involved a federal statute interests asserted by SOS Alliance result in a “concrete and protecting those same interests. 6 particularized” injury in fact, as is necessary to establish standing under Texas law. 7 *882 Based on this state and federal case law, we must address whether SOS Alliance has established standing under Texas law to pursue its claims under the Uniform Declaratory *883 Injury to Landowners' Well Water Judgments Act (UDJA). See Tex. Civ. Prac. & Rem.Code [11] SOS Alliance also bases its assertion of standing on Ann. §§ 37.001–.011 (West 2008). Under the UDJA, SOS its members' concern about pollution to their residential Alliance must establish standing by alleging an injury in water use. SOS Alliance relies on the affidavits of two fact to a “legally protected interest which is ... concrete members who use well water for residential use. One member and particularized.” Defenders of Wildlife, 504 U.S. at 560, alleges that he lives “about one-quarter mile” west of the 112 S.Ct. 2130; see Bland Indep. Sch. Dist. v. Blue, 34

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Cypress Hays land and is “concerned” about “pollution from about pollution to their water supply are in a location that Cypress' proposed golf courses and other development,” is at least potentially “downflow” from the developments. and the other member alleges that she lives “within the SOS Alliance did not present any allegations or evidence on extraterritorial jurisdiction of the City of Dripping Springs,” this point. 8 The fact that the *884 Mak Foster property is owns an undeveloped residential lot “within 200 feet” of the somewhere in the contributing zone and an SOS member's Cypress Hays development, and is “concerned” about “how well is somewhere in the recharge zone is not, by itself, pollution from a large development in the recharge zone of the sufficient to show harm that is imminent and not merely Aquifer would [a]ffect the quality of the Aquifer water.” We conjectural or speculative. SOS Alliance has failed to allege need not determine whether the members' “concern” about or provide evidence of any actual or imminent impact from pollution to well water on their property is a sufficiently the approvals of the Development Agreements on the amount particularized injury in fact for purposes of standing, because of pollution to SOS Alliance's members' residential water we conclude that SOS Alliance has failed to demonstrate supply. that the alleged harm is actual or imminent, rather than hypothetical or conjectural.

Procedural Injury [12] To have standing, SOS Alliance must allege an SOS Alliance next points to its claims in its pleadings that injury that is “actual or imminent, not hypothetical.” See the Development Agreements violate the Texas Constitution DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 in that they impinge on the right of local self-government (Tex.2008). The two members concerned about pollution to (citing Tex. Const. art. I, § 1), impair the preservation of a their water supply do not allege any connection between republican form of government (citing Tex. Const art. I, § the Development Agreements and their well water. Neither 2), and contract away legislative and police powers (citing member makes any reference to the property subject to the Tex. Const. art. I, § 17). According to SOS Alliance, some of Mak Foster Development Agreement, and the only reference its members reside within the city limits of Dripping Springs to the Cypress Hays Development Agreement property is one or its extraterritorial jurisdiction and are opposed to the of proximity. According to SOS Alliance's experts' affidavits, developments, and their ability to act on their opposition has the Mak Foster development is located in the contributing been eliminated as a result of the Development Agreements' zone, the Rutherford Ranch development is located within the “immediate and certain effect of closing off the democratic “uniquely sensitive” recharge zone, and both will “contribute process and democratic controls over the development of that to the pollution load within wells in the Barton Springs tract of property for at least 15 years.” Edwards Aquifer.” It is not enough, however, to allege that the Development Agreements will pollute some well water in To establish standing to assert these alleged constitutional the area and that an SOS Alliance member uses well water in violations, SOS Alliance must show an injury in fact the area. The potential harm to the members' well water must See Neeley v. West Orange–Cove Consol. Indep. Sch. be more than speculative. There must be some allegation or Dist., 176 S.W.3d 746, 774 (Tex.2005) (“Standing to evidence that would tend to show that the well water of the assert a constitutional violation depends on whether the members in question will be affected by the action of which claimant asserts a particularized, concrete injury.”). While they complain. SOS Alliance contends that the Development Agreements “adversely and immediately impinge” on its members'

According to SOS Alliance's experts' affidavits, rainfall on constitutional rights, the only injury identified by SOS the contributing zone flows east to the recharge zone, where Alliance is “procedural injury” suffered by those members it enters the underground aquifer, and then flows north and who reside within the city limits of Dripping Springs or mostly resurfaces at the Barton Springs pool. The experts its extraterritorial jurisdiction. SOS Alliance relies on two further aver that pollutants from the developments would federal cases for the proposition that injury to its members' be added to this run-off into the aquifer, and that there procedural interests can be an injury in fact sufficient to show is already evidence of increased pollutants at the Barton standing—Sierra Club v. Marita, 46 F.3d 606 (7th Cir.1995), Springs pool. Given the specific description contained in SOS and Natural Resources Defense Council v. Abraham, 223 Alliance's jurisdictional evidence of the flow direction toward F.Supp.2d 162 (D.D.C.2002). and within the aquifer, there must be evidence in the record to show that the properties of the members who express concern

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In Marita, the Seventh Circuit considered a “forest harm to its members' non-specified procedural interests. See management plan” created by the defendant, a plan with Tex.R.App. P. 38.1(i); Valadez v. Avitia, 238 S.W.3d 843, which subsequent natural resource management activities in 845 (Tex.App.-El Paso 2007, no pet.) (“Failure to cite legal the covered area had to comply. See 46 F.3d at 610–11. The authority or provide substantive analysis of the legal issue court concluded that, for purposes of standing, there was presented results in waiver of the complaint.”). actual or imminent injury underlying the alleged procedural default even if the plan was not implemented immediately. *885 See id. at 612. The court was able to reach this Taxpayer Standing conclusion because, as the Supreme Court has recognized, a [14] [15] Next, SOS Alliance asserts standing based on plaintiff in federal court does not need to meet the normal the taxpayer status of its members. Taxpayer standing is an standing requirement of imminence when he seeks to assert a exception to the general rule that the plaintiff must show a procedural right. See Defenders of Wildlife, 504 U.S. at 572 particularized injury distinct from that suffered by the public. n. 7, 112 S.Ct. 2130. However, for this to apply, the plaintiff See Bland Indep. Sch. Dist., 34 S.W.3d at 555–56; Hendee v. must first be accorded the procedural right. See id. The Dewhurst, 228 S.W.3d 354, 373–74 (Tex.App.-Austin 2007, National Environmental Policy Act, which the court in Marita pet. denied). A plaintiff relying on taxpayer standing can was construing, see 46 F.3d at 612–13, is “essentially a seek to enjoin prospective expenditures of public funds, but procedural statute,” such that “injury alleged to have occurred cannot recover funds already expended. Williams v. Huff, 52 as a result of violating this procedural right confers standing.” S.W.3d 171, 180 (Tex.2001). To establish taxpayer standing, Idaho Conservation League v. Mumma, 956 F.2d 1508, 1514 the plaintiff must show that (1) he is a taxpayer, and (2) public (9th Cir.1992). Thus, the court in Marita, in concluding that funds are to be expended on the allegedly illegal activity. Id. the plaintiff had standing based on its procedural interests, at 179. SOS Alliance alleges that it has at least one member was construing a statute that specifically provided for the who resides within the City of Dripping Springs and who procedural rights at issue, the violation of which could confer pays property taxes on her homestead. SOS Alliance further standing. alleges that the Development Agreements obligate the City to spend money on attorneys' fees defending the Development Likewise, in Natural Resources Defense Council, the Agreements from challenges such as this lawsuit. court's conclusion that the plaintiffs had standing based on procedural injury was in the context of a statute that accorded *886 [16] To show that the City will expend public funds the plaintiffs specific procedural rights. 223 F.Supp.2d on attorneys' fees, SOS Alliance refers to the Development at 178–79. In that case, the plaintiffs alleged violations Agreements' provision that in the event of a third-party of the Federal Advisory Committee Act. See id. at 167. lawsuit relating to a Development Agreement, the City and According to the court, this federal law established procedural the developer “agree to cooperate in the defense of such requirements, the requirements were “designed to protect suit or claim, and to use their respective best efforts to some threatened concrete interest” of the plaintiffs, and resolve the suit or claim.” This provision, by its plain terms, the plaintiffs sufficiently alleged harm from the defendant's does not require the expenditure of public funds. It does not failure to comply with those procedural requirements. Id. at address expenditures at all. Rather, a separate provision of 178–80. the Development Agreements addresses expenditures. That provision requires the developer to pay the City a deposit [13] Unlike in Marita and Natural Resources Defense “intended to cover all City legal ... fees and administrative Council, SOS Alliance does not sue based on a statute that expenses” associated with the Agreement. In the event accords SOS Alliance or its members specified procedural fees and expenses incurred exceed the initial deposit, the rights. SOS Alliance does not provide any argument developer is obligated to “pay the additional fees and or authority for the proposition that the constitutional expenses upon the City's request.” provisions, under which SOS Alliance asserts its claims, provide procedural protections akin to the federal statutes at We decline to grant taxpayer standing based on expenses that issue in the two federal cases cited, or that any such procedural taxpayers will never bear, given the developers' obligation protections exist in the absence of a statute that would accrue to reimburse the City. SOS Alliance has not shown that any to the benefit of SOS Alliance or its members. Therefore, public funds have been or will be expended by the City as we decline to hold that SOS Alliance has standing based on a result of the allegedly illegal Development Agreements.

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Therefore, SOS Alliance has failed to establish taxpayer already occurred.” We are unpersuaded that increased time standing. and danger for automobile travel, impaired viewing of the night sky, and decreased property value for landowners in the Barton Springs contributing and recharge zones is “germane Landowners' Non–Water–Related Concerns to” SOS Alliance's purpose of reducing water pollution [17] SOS Alliance also points to its members' concerns in Barton Springs. We recognize that SOS Alliance's about injuries that are distinct from increased pollution to the mission to protect the water that feeds Barton Springs water entering the aquifer, specifically: (1) increased traffic would generally result in opposition to developments in the congestion caused by the new residents of the developments, contributing and recharge zones. According to the affidavit which in turn might increase traffic safety hazards, (2) of SOS Alliance's communications director, “[a] significant increased light interfering with appreciation of nighttime amount of the activities of SOS Alliance are devoted to skies, and (3) decreased property value due to the prospect of preventing or stopping governments from granting special nearby high-density development SOS Alliance asserts that it favors to landowners and developers that facilitate destructive has standing because of these concerns of its members who development in the recharge and contributing zones.” It is live near the developments. equally apparent that a successful opposition to development can, in turn, benefit such interests as low traffic and low light [18] Even assuming these members may have standing to levels for residents in the area. However, the fact that SOS sue in their own right, to have associational standing SOS Alliance's mission would benefit a member's interest does not Alliance must show that the interests it seeks to protect are mean that particular interest is included in—or germane to— germane to the organization's purpose (the second prong SOS Alliance's purpose. 9 of associational standing). See Texas Ass'n of Bus., 852 S.W.2d at 447. We note that, in this lawsuit, SOS Alliance SOS Alliance refers to two federal cases in which members seeks to protect its members' environmental interests, which of an environmental organization had standing based on are germane to its purpose. However, to have associational diminished property value resulting from the defendant's standing, we conclude that the interest that is “germane to the conduct. See Laidlaw Envtl. Servs., 528 U.S. at 182–83, organization's purpose”—thereby satisfying the second prong 120 S.Ct. 693; Gaston Copper Recycling, 204 F.3d at —must also relate to the interest by which its members would 156. Although neither case addresses the second prong of “have standing to sue in their own right”—thereby satisfying associational standing, we note that in both cases, the alleged the first prong. See Hays County v. Hays County Water decrease in property value was attributable to pollution Planning P'ship, 106 S.W.3d 349, 357 (Tex.App.-Austin by the defendant. See Laidlaw Envtl. Servs., 528 U.S. at 2003, no pet.) (association was created to address “these kinds 182–83, 120 S.Ct. 693 (member “believed the pollutant of community issues” by which its members showed standing discharges accounted for some of the discrepancy” in home to sue on their own behalf). We do not think the associational value); Gaston Copper Recycling, 204 F.3d at 156 (member standing factors are intended to permit an association that has claimed “the pollution or threat of pollution has diminished an interest against a challenged activity to obtain standing the value of his property”). Therefore, in those cases, the by adding a member who has individual standing to sue interest of the members who had standing individually based on his own unrelated interest against the same activity.

(combating the pollution that was lowering their property Therefore, SOS Alliance cannot satisfy the second prong of values) was germane to the purpose of the organization associational standing based on its members' environmental (combating pollution in general). Unlike in those cases, the concerns, while satisfying the first prong solely based on SOS Alliance member who alleged a decrease in property certain members' unrelated concerns regarding their property value attributed the decrease solely to the fact that it was values.

a “high-density development.” SOS Alliance's members' concerns that neighboring high-density developments will To establish standing based on its members' non-watercause artificial light sources to increase, road traffic to related concerns, then, SOS Alliance must show that those increase, and property values to decrease are not germane to interests are germane to its purpose. According to its petition, SOS Alliance's mission to protect the Edwards Aquifer water.

SOS Alliance is “formed for the purpose of protecting the Therefore, SOS Alliance has not met the second prong of Edwards Aquifer with particular emphasis on preventing associational standing by alleging its members' concerns as *887 further pollution of Barton Springs and reversing landowners not related to Edwards Aquifer water.

the water quality degradation of Barton Springs that has

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Section 42.044 of the Texas Local We affirm the district court's granting of appellees' pleas to Government Code. the jurisdiction as to SOS Alliance's claims that are not related The public notice concerning the Mak Foster Development to the Open Meetings Act. 10 Agreement, posted ten days later, contained identical language, except that “Cypress–Hays, L.P.” was replaced *888 Sufficiency of City's Public Notices with “Mak Foster Ranch. L.P.,” and “Ordinance No. 1280.1” In its third point on appeal, SOS Alliance contends that was replaced with “Ordinance No. 1280.2.” SOS Alliance the district court erred in granting summary judgment to complains that these notices insufficiently communicate the appellees on SOS Alliance's cause of action under the subject of the Development Agreements because they do not Texas Open Meetings Act (the “Act”). In its petition, SOS alert a member of the public to the Agreements' substantial Alliance alleged that the City's public notices regarding the impact—including thousands of homes, central water and Development Agreements failed to comply with the Act's wastewater systems, commercial development, and golf requirement that the subject of a meeting be sufficiently set courses. Moreover, the notices do not refer to the property forth. Section 551.041 of the Act requires that a governmental locations, the multiple variances from City ordinances, 11 body “give written notice of the date, hour, place, and subject or the time periods for which the Agreements could not be of each meeting held by the governmental body.” Tex. Gov't altered. Code Ann. § 551.041 (West 2004) (emphasis added).

*889 The Texas Supreme Court has noted that, under the We review summary judgments de novo. Provident Life & notice requirements of the Act, “less than full disclosure Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). is not substantial compliance.” Cox Enters., Inc. v. Board Under the standard applicable to a traditional motion for of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 summary judgment, the motion should be granted only when (Tex.1986). However, the supreme court has also held that it the movant establishes that there is no genuine issue as to any is not necessary to “state all of the consequences which may material fact and that it is entitled to judgment as a matter of necessarily flow from the consideration of the subject stated.” law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Texas Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675, Co., 690 S.W.2d 546, 548 (Tex.1985). When both parties 676 (Tex.1977). move for summary judgment and the trial court grants one party's motion and denies the other party's, as occurred in this We are guided by this Court's analysis in Friends of Canyon case, the reviewing court should review both sides' summary Lake, Inc. v. Guadalupe–Blanco River Authority, 96 S.W.3d judgment evidence and determine all questions presented. FM 519 (Tex.App.-Austin 2002, pet. denied). In that case, Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 this Court concluded that the following notice sufficiently (Tex.2000). Thus, if the district court erred, we will reverse described the applicable subject matter of the meeting: and render the judgment the court should have rendered. Id. In the event that the City's notices were insufficient under the Water Purchase Contract among Act, the City's actions taken in connection with the defective GBRA, CRWA, City of Cibolo, City portions of the notices are voidable. See Tex. Gov't Code of Marion, City of Schertz, ECWSC, Ann. § 551.141 (West 2004); Point Isabel Indep. Sch. Dist. v. GVSUD, SHWSC, & BMWD; Hinojosa, 797 S.W.2d 176, 182–83 (Tex.App.-Corpus Christi Outline of Preliminary Agreement 1990, writ denied). concerning joint participation in a treated water supply for portions of The public notice concerning the Cypress–Hays Comal, Kendall, & Bexar Counties. Development Agreement stated as follows:

96 S.W.3d at 530. The plaintiff complained that the notice Consider Approving a Development was insufficient to inform the public that the river authority Agreement with Cypress–Hays, L.P., would seek to double the amount of water to which it was including adopting Ordinance No. entitled on an annual basis, sell a portion of the water 1280.1 Designating a District under outside its ten-county area, and require the construction of $75 million in improvements. See id. This Court recognized that the notice “might not inform the casual reader of the

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

precise consequences” of the agreements at issue, but held the fifth meeting stated only “discussion,” the court held nonetheless that the notice was sufficiently descriptive to that the public was not properly alerted to the possibility satisfy the Act See id. at 531 (citing Texas Turnpike Auth., that action would be taken. See id. Here, however, SOS 554 S.W.2d at 676). Alliance does not identify a “well established custom and practice” applicable to development agreements. Instead, [19] In this case, like the notice at issue in Friends of Canyon SOS Alliance refers to notice postings that involved zoning Lake, the City's notices identified the applicable parties to decisions. The Development Agreements do not involve the agreements and stated the type of agreement at issue— zoning. Cf. Tex. Loc. Gov't Code Ann. § 212.003(a) (West a development agreement. Moreover, just as the notice in 2008) (restricting municipality's ability to regulate in its Friends of Canyon Lake set out the counties affected without extraterritorial jurisdiction). With no other public notice specifying the precise area, the notices here referenced posting related to development agreements with the City in section 42.044 of the local government code, which governs the record, SOS Alliance has not shown any well-established the creation of “industrial districts” within a municipality's custom and practice that would be relevant to the notices' extraterritorial jurisdiction. See Tex. Loc. Gov't Code Ann. sufficiency. 12 § 42.044(b) (West 2008). Section 42.044 also provides that the municipality's contract with a landowner in the SOS Alliance also argues that a more detailed description of industrial district can guarantee the district's immunity from the subject matter was required because of the “high level of annexation by the municipality “for a period not to exceed 15 public interest in these developments.” To show a heightened years.” Id. § 42.044(c)(1). Therefore, a reader of the notices public interest, SOS Alliance relies on affidavits of residents would be informed that the subject of the meetings would in the extraterritorial jurisdiction who assert that they were include the potential approval of agreements with Mak Foster among many citizens who attended subsequent city council and Cypress Hays that involved development, on property meetings to raise their concerns regarding the Development in the City's extraterritorial jurisdiction, and potentially Agreements. with restrictions lasting up to 15 years. The City was not obligated to state all the consequences that would flow Even assuming SOS Alliance has demonstrated a heightened from these Development Agreements. See Texas Turnpike public interest, we are not convinced that the notices' Auth., 554 S.W.2d at 676. Indeed, had the notices listed all description of subject matter should be deemed insufficient the consequences that would follow from the Development as a result In Cox Enterprises, the Texas Supreme Court Agreements, including the variances to be provided and the held that, taking into account an increased level of public other issues highlighted by SOS Alliance, the result may interest, the bare description “personnel” was insufficient to have been to overwhelm, rather than inform, the reader. See describe the selection of a new school superintendent and the City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d description “litigation” was insufficient to describe “a major 762, 766 (Tex.1991) (“Far from serving the purposes of the desegregation lawsuit which has occupied the Board's time Act, this degree of specificity would so overwhelm readers for a number of years, and whose effect will be felt for years to that it would prove even less informative than the current come.” 706 S.W.2d at 959. The City's notices in this case are notice.”); see also Texas Turnpike Auth., 554 S.W.2d at 676 much more detailed than those in Cox Enterprises. The City's (not necessary to “post copies of proposed resolutions”). notices state the parties involved, the type of agreement at issue, that the extraterritorial jurisdiction would be impacted SOS Alliance argues that the notices' omission of the (based on the statute included in the notice), and that the location or size of the property subject to the proposed agreements might be approved as a result of the meeting. A Development *890 Agreements is at variance from the reader interested in development in the City's extraterritorial City's standard notice practice. SOS Alliance relies on River jurisdiction would have had sufficient notice that the City Road Neighborhood Ass'n v. South Texas Sports, which was considering action relevant thereto. See Fourth Court found a notice insufficient under the Act based on “the of Appeals, 820 S.W.2d at 766; Rettberg v. Texas Dep't of well established custom and practice” of the governmental Health, 873 S.W.2d 408, 411 (Tex.App.-Austin 1994, no body. 720 S.W.2d 551, 557 (Tex.App.-San Antonio 1986, writ) (“notice is sufficient under the Act when it alerts a reader writ dism'd w.o.j.). In that case, four public meetings had that some action will be taken relative to a topic”). involved a similar subject matter, with the notices identifying the purpose as “discussion/action.” Because the notice for

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Having concluded that the notices were sufficiently attorneys' fees incurred in defense *892 of UDJA claims descriptive so as to state the subjects of the meetings in brought by party without standing), rev'd on other grounds, accordance with section 551.041 of the Open Meetings Act, 841 S.W.2d 361 (Tex.1992). we overrule SOS Alliance's third point *891 on appeal. 13 [23] [24] SOS Alliance also argues that Mak Foster failed to segregate between its defense of claims asserted Attorneys' Fees by SOS Alliance and those asserted by Friendship Alliance, [20] [21] In its remaining points on appeal, SOS Alliance the co-plaintiff that settled with appellees. “A party seeking asserts that, even if we affirm the trial court's granting of attorney fees has a duty ... to segregate the fees owed by appellees' pleas to the jurisdiction and motions for summary different parties.” See French v. Moore, 169 S.W.3d 1, 17 judgment, the district court erred in awarding attorneys' (Tex.App.-Houston [1st Dist.] 2004, no pet.). There is no 14 duty to segregate, however, when the causes of action are fees to Mak Foster. In a proceeding under the Uniform Declaratory Judgments Act, a court may award “reasonable dependent upon the same set of facts or circumstances and and necessary attorney's fees as are equitable and just” Tex. are intertwined to the point of being inseparable. Stewart Civ. Prac. & Rem.Code Ann. § 37.009. A trial court's award Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex.1991). of attorneys' fees under the UDJA is reviewed for an abuse Mak Foster relies on SOS Alliance's motion to consolidate of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20– to show that the claims asserted by the co-plaintiffs were 21 (Tex.1998). A trial court abuses its discretion by awarding intertwined, 16 but that motion is not in the appellate record. fees when there is insufficient evidence that the fees were Similarly, Friendship Alliance's petition is not in the record reasonable and necessary, or when the award is inequitable or for our review. We are limited to the appellate record unjust Id. at 21. provided. See Tex.R.App. P. 34.1; Merchandise Ctr., Inc.

v. WNS, Inc., 85 S.W.3d 389, 394 (Tex.App.-Texarkana [22] As an initial matter, SOS Alliance argues that Mak 2002, no pet.) (“Materials outside the record ... that are Foster failed to segregate between its defense of claims improperly included in or attached to a party's brief ... may for which recovery of attorneys' fees was proper and those not be considered by an appellate court in its review of for which such recovery was not proper. See West Beach the appeal on its merits.”). However, our review of what Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 267 (Tex.App.- the record does contain gives us no reason to conclude that Austin 2002, no pet.). However, SOS Alliance fails to provide Friendship Alliance's lawsuit did not involve the same set a reason for which any of its particular claims independently of facts and circumstances. See Enterprise Leasing Co. v. would not provide a valid basis for Mak Foster's recovery Barrios, 156 S.W.3d 547, 550 (Tex.2004) (“If the pertinent of attorneys' fees. Regarding its Open Meetings Act claim, summary judgment evidence considered by the trial court is SOS Alliance refers to section 551.142 of the Act, which not included in the appellate record, an appellate court must permits a court to award the defendant reasonable attorneys' presume that the omitted evidence supports the trial court's fees in an action by mandamus or injunction regarding a judgment.”). We conclude that Mak Foster had no duty to potential violation of the Act, provided that the court consider segregate the fees owed by the co-plaintiffs. whether the action was brought in good faith. See Tex. Gov't Code Ann. § 551.142 (West 2004). According to its [25] [26] [27] Next, SOS Alliance asserts that the petition, however, SOS Alliance brought its Open Meetings evidence is insufficient to support an award of attorneys' Act claim as an action under the UDJA, not as an action fees in the amount requested by Mak Foster. As a general by mandamus or injunction under section 551.142. See Tex. rule, the party seeking to recover attorneys' fees carries Civ. Prac. & Rem.Code Ann. § 37.004(a). Regarding its other the burden of proof. Stewart Title Guar. Co., 822 S.W.2d claims, SOS Alliance questions whether the district court had at 10. Whether an award of attorneys' fees is reasonable jurisdiction to award attorneys' fees that were incurred in and necessary is a fact question. Bocquet, 972 S.W.2d at connection with claims over which the court determined it 21. SOS Alliance contends that Mak Foster's evidence of had no subject-matter jurisdiction. The district court did have attorneys' fees “consists entirely of the conclusory, selfthis authority. 15 See id. § 37.009 (court may award attorneys' serving, affidavit[ ] of lead counsel[ ].” However, contrary to fees in any proceeding under the UDJA); Galveston County SOS Alliance's contention, that affidavit sets out the attorneys Comm'rs' Court v. Lohec, 814 S.W.2d 751, 755 (Tex.App.- who performed the work, the number of hours billed by Houston [14th Dist.] 1991) (op. on reh'g) (court may award each, their hourly rates, and a description of the tasks for

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

which legal services were performed. The affiant stated his does not abuse its discretion merely because it decides a qualifications and experience, and averred that: discretionary matter differently than the appellate court would under similar circumstances. Baylor Univ. Med. Ctr. v. Rosa, I am familiar with usual and customary 240 S.W.3d 565, 569 (Tex.App.-Dallas 2007, pet. denied). rates charged by attorneys in the area The test for an abuse of discretion is whether the court acted for cases with comparable complexity without reference to guiding rules and principles. See Cire v. and amounts in controversy, and Cummings, 134 S.W.3d 835, 838–39 (Tex.2004). the fees described above are those customarily charged in this area for To show that the attorneys' fees award was not just and the same or similar services by those equitable, SOS Alliance relies on its being a “nonprofit with similar experience, reputation, organization dedicated to the public good” and the and ability, considering the type “significance of the matters at stake in this lawsuit and that of controversy, the time limitations SOS Alliance was at least somewhat successfully addressed.” imposed, the work involved, the We do not consider this, standing alone, to make the award results obtained and length of the of attorneys' fees to Mak Foster inequitable or unjust. It may firm's relationship with Mak Foster. very well have been equitable and just for the district court not to have awarded fees or to award some other amount, SOS Alliance suggests that only fee bills with unredacted but that does not make this award inequitable or unjust. See entries would be sufficient evidence of attorneys' fee Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., amounts, but *893 does not base its position on any legal 198 S.W.3d 300, 318–19 (Tex.App.-Texarkana 2006, pet.

authority. We conclude that the evidence was sufficient denied) (holding that trial court did not abuse its discretion in to show Mak Foster's attorneys' fees were reasonable and awarding attorneys' fees to defendant in UDJA action, even necessary. See Texas Commerce Bank v. New, 3 S.W.3d though SOS Alliance was “a local nonprofit organization,”

515, 517–18 (Tex.1999) (affidavit testimony in support of because “reasonable minds can differ concerning whether the attorneys' fees legally sufficient where attorney detailed the attorney's fees are just and equitable”). The award was a services rendered and testified he was duly licensed attorney, matter of the district court's discretion, and we do not consider he was familiar with usual and customary attorneys' fees in the court to have abused its discretion in reaching the decision locality, and the fees sought were reasonable); Brockie v.

it did.

Webb, 244 S.W.3d 905, 909–10 (Tex.App.-Dallas 2008, pet. denied) (“Generally, the nature and extent of the attorney's Having concluded that the district court did not err in services are expressed by the number of hours and the hourly awarding attorneys' fees to Mak Foster, we overrule SOS rate.”).

Alliance's remaining points on appeal.

[28] [29] [30] [31] [32] SOS Alliance also contends that the attorneys' fees amount awarded to Mak Foster— Conclusion $86,200—is “inequitable and unjust under the circumstances The judgment of the district court is affirmed. of this case for a nonprofit organization dedicated to the public good.” Similar arguments were stated by amicus curiae, who expressed concern that “full fee awards for bringing environmental and open government claims” are Chief Justice LAW Not Participating. a “threat of financial intimidation” that “can only have a Before Chief Justice JONES, Justices PATTERSON, chilling effect on the ability of community organizations PURYEAR, PEMBERTON, WALDROP and HENSON.

to bring citizen suits on behalf of their members.” We review whether attorneys' fees awarded under the UDJA are equitable and just under an abuse of discretion standard. See *894 ORDER Bocquet, 972 S.W.2d at 21. An award can be inequitable or unjust even when the fees are reasonable and necessary. PER CURIAM. See id. However, when reviewing matters committed to the Save Our Springs Alliance, Inc. has filed a motion for trial court's discretion, an appellate court may not substitute reconsideration en banc. The motion is denied.

its judgment for that of the trial judge, and a trial court

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

The panel cites Lujan v. Defenders of Wildlife, 504 U.S. 555, It is ordered February 12, 2010. 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976), to support its holding that SOS Alliance was required to show that one of its members had an affected property interest to have Dissenting Opinion by Justice PATTERSON, Joined by standing. Neither case, however, supports curtailing common Justice HENSON.

law standing here. That a party does not have standing to JAN P. PATTERSON, Justice, dissenting. assert a fraud claim when he was not the defrauded party is Review en banc is warranted to “secure or maintain not analogous to SOS *895 Alliance's alleged injury to its uniformity” of this Court's decisions. See Tex.R.App. members' environmental, recreational, and scientific interests P. 41.2(c). Because the two-justice panel's decision is in public land. See Nobles, 533 S.W.2d at 927. inconsistent with this Court's jurisprudence in an important and recurring area of law—an association's standing to pursue As to Lujan, the panel cites the Supreme Court's definition its member's claims of environmental harm—I respectfully of “injury in fact.” See 504 U.S. at 560, 112 S.Ct. 2130. dissent from the denial of appellant's motion for en banc In the context of standing under Article III of the United reconsideration. States Constitution, the Supreme Court defined “injury in fact” as “an invasion of a legally protected interest which The panel holds that, in the absence of a statute conferring is ... concrete and particularized” and “ ‘actual or imminent.’ standing, appellant Save Our Springs Alliance, Inc. (“SOS ” Id. (citation omitted); see also U.S. Const. art. III. The Alliance”) was required to show that one of its members had panel focuses on the Supreme Court's requirement that the a property interest affected by appellees' actions. The panel's interest be “legally protected,” but the Supreme Court did not holding, narrowing the class of claimants with common law purport to restrict standing to property owners affected by the standing to assert recreational, scientific, and environmental challenged action there. harm, conflicts with other opinions of this Court. See Texas Rivers Prot. Ass'n v. Texas Natural Res. Conservation In that case, environmental associations on behalf of their Comm'n, 910 S.W.2d 147, 151–52 (Tex.App.-Austin 1995, members challenged a rule promulgated by the Secretary of writ denied). the Interior concerning certain funded activities abroad that allegedly increased the rate of extinction of endangered and In Texas Rivers Protection Association, this Court held that threatened species. Lujan, 504 U.S. at 562, 112 S.Ct. 2130. “[a]n injury need not affect ‘vested’ property rights to confer Although the Supreme Court concluded that the associations standing” and that “the harm [for purposes of standing] failed to show injury in fact to have standing to seek judicial may be economic, recreational, or environmental.” See id.; review of the rule, the Supreme Court recognized that, “[o]f see also Coastal Habitat Alliance v. Public Util. Comm'n, course, the desire to use or observe an animal species, even for 294 S.W.3d 276, 287 (Tex.App.-Austin 2009, no pet.) purely esthetic purposes, is undeniably a cognizable interest (recognizing this Court's holding in Texas Rivers Protection for purpose of standing.” Id. at 562–63, 112 S.Ct. 2130. The Association that “[a]n injury need not affect Vested' property Supreme Court denied associational standing, not because rights to confer standing” and, thus, “the harm [for a member did not have a property interest, but because the purposes of standing] may be economic, recreational, or associations failed to demonstrate redressability and “actual or imminent” injury—i.e., that a member had “concrete environmental”) 1 ; Walker v. City of Georgetown, 86 S.W.3d plans” to visit an area affected by the rule. Id. at 564, 568, 249, 253 (Tex.App.-Austin 2002, pet. denied) (common 112 S.Ct. 2130.

law rule for standing to enjoin actions of governmental body satisfied if “the challenged action has caused the The Supreme Court more recently addressed injury in fact plaintiff some injury in fact, either economic, recreational, in the context of allegations of environmental harm to the environmental, or otherwise”); Lindig v. City of Johnson City, national forests:

No. 03–08–00574–CV, 2009 WL 3400982, at *6–7, 2009 Tex.App. LEXIS 8188, at *19–20 (Tex.App.-Austin Oct. 21, It is common ground that the 2009, no pet.) (op. on reh'g) (citing common law rule for respondent organizations can assert standing in Walker ). the standing of their members.

To establish the concrete and

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

denied standing to challenge the regulations at issue because particularized injury that standing there was no live dispute over a concrete application of the requires, respondents point to their regulations, not because the organizations failed to show a members' recreational interests in the property interest by their members to confer standing. 129 National Forests. While generalized harm to the forest or the environment S.Ct. at 1152–53. 2 will not alone support standing, if that harm in fact affects the recreational or This Court's holding in Texas Rivers Protection Association even the mere esthetic interests of the that “an injury need not affect Vested' property rights to plaintiff, that will suffice. *896 confer standing” conforms with federal case law concerning standing under Article III. See Summers, 129 S.Ct.

See Summers v. Earth Island Inst., 555 U.S. 488, ––––, 129 at 1149; Lujan, 504 U.S. at 562–63, 112 S.Ct. 2130; Texas S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009); see also Friends of Rivers Prot. Ass'n, 910 S.W.2d at 151–52. The panel's holding the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. to the contrary here should not be sustained in the absence of 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting review en banc. See Tex.R.App. P. 41.2(c). Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)) (“We have held that environmental Because the panel's decision is inconsistent with this plaintiffs adequately allege injury in fact when they aver that Court's jurisprudence in an important and recurring area, I they use the affected area and are persons ‘for whom the would grant appellant SOS Alliance's motion for en banc aesthetic and recreational values of the area will be lessened’

reconsideration. 3 by the challenged activity.”); Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (defining injury in fact as “an invasion of a judicially cognizable interest”). Consistent with its decision in Lujan, the Supreme Court Joined by Justice Henson.

Footnotes 1 Given that SOS Alliance's interests against the Development Agreements spring from environmental concerns, we note that the Agreements contain several environmental-protection provisions, requiring the developers to (1) comply with applicable state rules “designed to protect the quality of the Edwards Aquifer,” (2) obtain and comply with any required “no-discharge” permits regarding treated sewage effluent, (3) comply with any U.S. Army Corps of Engineers authorizations under section 404 of the federal Clean Water Act, (4) prepare and implement a “storm water pollution prevention plan,” (5) ensure no adverse effect on listed endangered species or their critical habitat in accordance with the federal Endangered Species Act, and (6) implement certain voluntary environmental protection measures, including an integrated pest management program at any golf course, education of property owners, and buffering of sensitive drainage areas.

2 During the same time period, another organization, Friendship Alliance, filed suit against the City challenging the legality of the Development Agreements. The two lawsuits were consolidated in early 2003. Friendship Alliance settled its lawsuit in 2004 after certain amendments to the Agreements had been negotiated.

3 SOS Alliance has dismissed its claims against Cypress–Hays, which is no longer a party to this case. See Save Our Springs Alliance v. City of Dripping Springs, No. 03–04–00683–CV (Tex.App.-Austin Dec. 7, 2007) (per curiam) (order). Also, on April 27, 2007, this Court issued an order staying the appeal due to SOS Alliance's declaration of bankruptcy. On September 15, 2008, on the motion of appellee Mak Foster, we reinstated the appeal.

4 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 173, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); American Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 509 (4th Cir.2003); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir.2000); Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 553 (5th Cir.1996), cert. denied, 519 U.S. 811, 117 S.Ct. 57, 136 L.Ed.2d 20 (1996); Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1111–12 (4th Cir.1988), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989); Friends of the Earth, Inc. v. Chevron Chem. Co., 900 F.Supp. 67, 70 (E.D.Tex.1995).

5 SOS Alliance asserts that section 26.177 of the Texas Water Code “articulates standing rights at least as broad as the standing granted under the federal Clean Water Act.” Section 26.177 authorizes “[a]ny person affected by any ruling, order, decision, ordinance, program, resolution, or other act of a city relating to water pollution control and abatement outside the corporate limits of such city” adopted pursuant to statute to appeal such action to district court. Tex. Water Code Ann. § 26.177(d) (West 2008). However, such a lawsuit must be filed within 60 days of the challenged act of the city. See id. Regardless of whether section 26.177 could apply to SOS

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

Alliance and would provide standing as broad as the CWA, SOS Alliance does not allege that it satisfied the 60–day requirement. The Development Agreements were approved in April 2001. This lawsuit was filed in November 2002. SOS Alliance has not asserted any claims under section 26.177, nor could it have. Moreover, SOS Alliance does not allege any other statute on which its standing to assert its claims not related to the Open Meetings Act might be based.

6 We note that this Court's holding in Texas Rivers that harm for purposes of standing may be “economic, recreational, or environmental” appears to be connected to federal case law in which a federal statute protected such interests. The Texas case from which the “economic, recreational, or environmental” language originates is Housing Authority of Harlingen v. State in its general statement of the test for standing. 539 S.W.2d 911, 913–14 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). As authority for the language, the court in Housing Authority of Harlingen cited several United States Supreme Court opinions, and appears to have taken its description of the scope of an injury in fact from Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In that case, the Supreme Court observed that the legal interest required for purposes of standing “may reflect ‘aesthetic, conservational, and recreational’ as well as economic values,” provided that “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 397 U.S. at 153–54, 90 S.Ct. 827.

7 SOS Alliance contends that this conclusion ignores SOS Alliance's “long and proud history” of obtaining standing to challenge government actions. SOS Alliance relies on Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161 (Tex.App.-Austin 1996, orig. proceeding), as indicative of such standing. However, that case involved standing based on a statute—the Texas Open Meetings Act. See 934 S.W.2d at 162. That Act authorizes an “interested person” to file suit. See Tex. Gov't Code Ann. § 551.142(a) (West 2004). According to Lowry, this statutory provision dispenses with the standing requirement of an injury distinct from that of the general public. Lowry, 934 S.W.2d at 163.

Similarly, the San Marcos River Foundation (SMRF) filed a letter brief as amicus curiae, expressing its concern that a determination in this case that SOS Alliance does not have standing based on environmental harm would impair SMRF's future ability to litigate. We note that in City of San Marcos v. Texas Commission on Environmental Quality—by which, SMRF asserts, it was successful in protecting the San Marcos River—a statute specifically authorized judicial review. 128 S.W.3d 264, 266 (Tex.App.-Austin 2004, pet. denied) (citing Tex. Water Code Ann. § 5.351 (West 2008)). Thus, our adjudication of SOS Alliance's standing in the absence of such statutory provision will not likely affect SMRF's future ability to again file suit under the same statute.

8 SOS Alliance argues that it should not be required to “hire experts to map and calculate local hydrogeological flows to engage in debates about gradients of flows” at this stage. Whether or not this is the case, SOS Alliance must at least provide evidence that a member “used an area subject to contamination from the discharge.” American Canoe Ass'n, 326 F.3d at 520. In the cases SOS Alliance cites on this issue, unlike here, there was evidence from which the court could find that the consequences of the challenged action of the defendant would in fact extend to the plaintiff. See id. (members' use of river was downstream from polluting defendant); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 624, 627 (Tex.1996) (landowner over Edwards Aquifer challenges constitutionality of statute governing entire aquifer); City of Canyon v. McBroom, 121 S.W.3d 410, 415 (Tex.App.- Amarillo 2003, no pet.) (landowner in flood plain complaining of increased risk of flooding); Lake Medina Conservation Soc'y v. Texas Natural Res. Conservation Comm'n, 980 S.W.2d 511, 515–16 (Tex.App.-Austin 1998, pet. denied) (owners of lakefront property challenging removal of water from lake); Texas Rivers Prot. Ass'n v. Texas Natural Res. Conservation Comm'n, 910 S.W.2d 147, 151 (Tex.App.-Austin 1995, writ denied) (property owners “fronting the affected area of the river” challenging diversion of water from river).

9 In fact, it appears more feasible that many of these members' interests as landowners might even be contrary to SOS Alliance's purpose. SOS Alliance would likely welcome declining property values if they would enable SOS Alliance to place more watershed land into long-term conservation easements, and would likely welcome inconveniences such as increased traffic and light if the result was surrounding areas becoming less desirable for home buyers and future real estate developers. Moreover, in the event that Mak Foster and Cypress Hays successfully develop their properties in accordance with the Development Agreements, we question whether SOS Alliance would subsequently seek to protect those developments' interests in increasing property values as well.

10 In its second point on appeal, SOS Alliance contends that the district court erred in granting appellees' pleas to the jurisdiction based on the case not being ripe for adjudication as to any land that had not become subject to a finally approved plat, and based on the case being moot as to land that was subject to a finally approved plat that SOS Alliance neither appealed nor challenged. Given that we have determined that the court does not have subject-matter jurisdiction based on standing, we need not consider the issues of ripeness or mootness.

11 SOS Alliance alleges that the Cypress–Hays Development Agreement contains more than 32 variances, including reduction of minimum lot size, reduction of minimum setbacks, and reduction of plat review and approval time.

12 In fact, given that the Development Agreements were apparently without precedent as to the City (SOS Alliance itself describes the developments as “unprecedented in size and density for Dripping Springs”), it appears that the City actually followed its usual

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Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (2010)

custom and practice. The second notice—for the Mak Foster Development Agreement—was essentially identical to the first notice —for the Cypress Hays Development Agreement.

13 Appellees argue that any potential violations of the Act were validated by the legislature in 2003. See Tex. Loc. Gov't Code Ann.

§ 212.172(h) (West 2008) (“An agreement between a municipality and a landowner entered into prior to the effective date of this section and that complies with this section is validated.”). Because we conclude that SOS Alliance has not shown a violation of the Act, we need not address this argument 14 Due to a partial settlement between SOS Alliance and the City, SOS Alliance does not seek appellate review of the attorneys' fees awarded to the City.

15 Neither of the cases cited by SOS Alliance suggests otherwise. In Gregg County Appraisal District v. Laidlaw Waste Systems, Inc., the statute at issue allowed attorneys' fees for a property owner who prevailed in his tax appeal. 907 S.W.2d 12, 21 (Tex.App.-Tyler 1995, writ denied). To the extent the trial court did not have jurisdiction over the owner's claims, he did not “prevail” and, therefore, by statute was not entitled to attorneys' fees. Id. In Lipshy Motorcars, Inc. v. Sovereign Associates, Inc., 944 S.W.2d 68 (Tex.App.- Dallas 1997, no writ), an appellate court determined it had no jurisdiction to consider a motion for sanctions and attorneys' fees against an appellant who attempted to appeal a non-appealable interlocutory order. 944 S.W.2d at 70–72.

16 According to Mak Foster, SOS Alliance represented in its motion to consolidate that the plaintiffs' lawsuits were “based on identical facts and circumstances,” asked for “identical declaratory and nearly identical injunctive relief,” and were based on “identical legal grounds.”

1 In Coastal Habitat Alliance, this Court also cites Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir.2001) (“That the litigant's interest [for purposes of standing] must be greater than that of the public at large does not imply that the interest must be a substantive right sounding in property or contract.”), to support its conclusion that “[w]hether a plaintiff has standing in federal courts to assert a cause of action is not indicative of the deprivation of a vested property right.” Coastal Habitat Alliance v. Public Util. Comm'n, 294 S.W.3d 276, 287 (Tex.App.-Austin 2009, no pet.).

2 In Summers, the government conceded that affidavits that a member had “repeatedly visited” a particular public site, that he had “imminent plans to do so again,” and that “his interests in viewing the flora and fauna of the area” would be harmed were sufficient to establish standing under Article III. Summers v. Earth Island Inst., 555U.S. 488, ––––, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009).

3 Because I believe review en banc is warranted based upon the standing issue, I limit my review to this ground.

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State v. Holland, 221 S.W.3d 639 (2007) 50 Tex. Sup. Ct. J. 642

Opinion 221 S.W.3d 639 Supreme Court of Texas. Justice O'NEILL delivered the opinion of the Court.

STATE of Texas, Texas General Land Office, Herbert Holland developed a cost-effective process to clean and Texas Land Commissioner, Petitioners, oil-contaminated bilge water. The State of Texas, seeking v. to abate oil pollution in its coastal waters, contracted with, Herbert W. HOLLAND, Respondent. and paid more than $160,000 to, Holland's companies for assistance in designing and constructing filtration units along No. 05–0292. | Argued Sept. 27, the Texas Gulf Coast. Holland later received a patent on 2006. | Decided April 20, 2007. the decontamination process and began demanding additional payments as patent royalties. When the State refused to pay, Synopsis Holland filed this suit claiming the State's unauthorized use of Background: Holder of patent for polymer-based filters his patented technology constituted a taking under Article I, brought action against State, alleging State's refusal to section 17 of the Texas Constitution. We must decide whether pay for use of his patented process for cleaning oil- a takings claim is the proper avenue for a patentholder who contaminated bilge water constituted a taking under the Texas performs services under contract with the State to assert Constitution. The 23rd District Court, Matagorda County, patent rights. We hold that it is not when, as here, the State's Craig Estlinbaum, J., denied State's plea to the jurisdiction, use is pursuant to colorable contract rights. Because Holland and State appealed. The Court of Appeals, 161 S.W.3d 227, cannot state a takings claim for the State's alleged unlawful affirmed. State appealed. use of his patent, the State is entitled to immunity from suit.

Accordingly, we reverse the court of appeals' judgment and dismiss Holland's claim for want of jurisdiction.

Holdings: The Supreme Court, O'Neill, J., held that:

[1] Supreme Court had jurisdiction because Court of Appeals' I. Background decision conflicted with prior Supreme Court holding, and In the late 1990s, the General Land Office (GLO) began [2] State did not have requisite intent for takings claim working on a project to abate pollution resulting from because it acted under color of contract with patent holder's commercial fishing boats illegally discharging oily bilge companies. water into coastal waters. The GLO contracted with two companies, Spill Removal Products, Inc. (SRP) and Pollution Prevention Products (PPP), to provide design services, Reversed and dismissed. components, installation and consulting services for the construction of three bilge water processing facilities located in Port Isabel, Port Lavaca, and Palacios. Herbert Holland Attorneys and Law Firms developed the polymer-based pollution filters used in the *641 Greg Abbott, Attorney General of Texas, Barry Ross facilities and the process for their installation. According McBee, Edward D. Burbach, Rafael Edward Cruz, Office to Holland, he was the “managing member” of PPP and of the Attorney General, Kristofer S. Monson, Assistant the president of SRP, and it is undisputed that all of the Solicitor General, Austin, for Petitioners. GLO's contacts on the project were with him. The three processing facilities were completed by 2001, and all three Thomas W. Sankey, Greg M. Luck, Godwin Gruber, LLP, used Holland's polymer-based filtration system to extract oil Michael T. McLemore, Danny L. Williams, Williams Morgan from contaminated bilge water. The GLO paid more than & Amerson, Houston, Eric G. Walraven, Godwin, Pappas & $160,000 to PPP and SRP pursuant to their agreement. Ronquillo, LLP, Dallas, for Respondent.

Holland applied for a patent on his filtration process in 1998, and in 2000 received Patent No. 6,027,653 for a “Method of Removing Organic Compounds from Air and Water

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State v. Holland, 221 S.W.3d 639 (2007) 50 Tex. Sup. Ct. J. 642

Columns,” referred to as the “#653 patent.” Claim 13 of the patent describes a method of removing and collecting *642 III. Standard and Scope of Review contaminants, first by pretreating the water and then directing it through a series of separation and filtration media. 1 Claim [2] [3] [4] [5] [6] A plea to the jurisdiction based 19 describes the apparatuses used in the separation and on sovereign immunity challenges a trial court's jurisdiction. filtration processes. The GLO facilities use the method and Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d apparatuses described in Claims 13 and 19 of the patent. 217, 225–26 (Tex.2004). A plea questioning the trial In 2002, Holland contacted the GLO and began demanding court's jurisdiction raises a question of law that we review payment of patent royalties for the three facilities' use of his de novo. Id. at 226. We focus first on the plaintiff's patented process. The GLO's contracts with PPP and SRP did petition to determine whether the facts pled affirmatively not provide for the payment of patent royalties. demonstrate that jurisdiction exists. *643 Id. We construe the pleadings liberally, looking to the pleader's intent. Id.

When the GLO refused to make any additional payments, If the pleadings are insufficient to establish jurisdiction but Holland sued the State of Texas, the GLO, and the Texas Land do not affirmatively demonstrate an incurable defect, the Commissioner (collectively “the State”) alleging that use of plaintiff should be afforded the opportunity to replead. Id. at his patented process at the Palacios reclamation facilities 226–27. In some instances, however, a plea to the jurisdiction infringed the ′653 patent. 2 He further alleged that the State's may require the court to consider evidence pertaining to use of his patented process constituted a taking of his property jurisdictional facts. Id. at 227; Bland Indep. Sch. Dist. v. Blue, for public use without compensation in violation of Article I, 34 S.W.3d 547, 555 (Tex.2000). A plea should not be granted section 17 of the Texas Constitution. After entering a general if a fact issue is presented as to the court's jurisdiction, but denial, the State filed a plea to the jurisdiction which the if the relevant undisputed evidence negates jurisdiction, then trial court denied. The court of appeals affirmed, holding that the plea to the jurisdiction must be granted. Miranda, 133 Holland had adequately pled a takings claim against the State S.W.3d at 227–28. for which immunity was waived. 221 S.W.3d at 643. We granted the State's petition for review to examine the State's sovereign immunity under the circumstances presented. IV. Analysis

The State contends Holland's petition does not present a viable takings claim because the State designed and II. Jurisdiction constructed the bilge water reclamation facilities, which [1] Because this is an interlocutory appeal from the trial utilized the process described in Holland's patent, under color court's denial of a jurisdictional plea, and there was no dissent of contract. According to the State, it is of no moment that its in the court of appeals, we have jurisdiction only if the court contract was with Holland's companies rather than Holland of appeals' decision conflicts with a prior decision of this himself; rather, the proper focus is whether the State had the Court or of another court of appeals. TEX. GOV'T CODE requisite intent to take property for public use and thus was §§ 22.001(a)(1), (2). Decisions conflict for jurisdictional invoking its eminent-domain powers. Holland responds, and purposes “when there is inconsistency in their respective the court of appeals agreed, that the State did not establish as decisions that should be clarified to remove unnecessary a matter of law that it was acting under color of contract with uncertainty in the law and unfairness to litigants.” Id. § Holland rather than with PPP and SRP. 161 S.W.3d at 233. 22.001(e). As we explain below, the trial court erred in Holland contends the State's contract with his companies is denying the State's plea to the jurisdiction because the State immaterial because he holds the ′635 patent individually, and was acting under color of contract in utilizing the treatment whether or not the State was acting pursuant to an implied process that the ′653 patent covers. Because Holland's claim contract with him is a disputed fact question that the factfinder does not arise as a taking under the constitution but sounds must resolve. We agree with the State. in contract, the court of appeals' decision conflicts with our decision in General Services Commission v. Little–Tex [7] [8] [9] [10] [11] Absent an express waiver of Insulation Co., 39 S.W.3d 591 (Tex.2001), and we have its sovereign immunity, the State is generally immune from jurisdiction to resolve the conflict. suit. State v. Shumake, 199 S.W.3d 279, 283 (Tex.2006).

But sovereign immunity does not shield the State from

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State v. Holland, 221 S.W.3d 639 (2007) 50 Tex. Sup. Ct. J. 642

a claim based upon a taking under Article I, section 17 that the stamps had been taken under the State's eminentof the Texas Constitution, known as the “takings clause.” domain power. Id. Little–Tex Insulation Co., 39 S.W.3d at 598. The takings clause mandates that “[n]o person's property shall be taken, Similarly, in A.C. Aukerman Co. v. State of Texas, 902 S.W.2d damaged or destroyed for or applied to public use without 576 (Tex.App.-Houston [1st Dist.] 1995, writ denied), the adequate compensation being made, unless by the consent State paid independent highway-construction contractors of such person.” TEX. CONST. art. I, § 17. To establish a who had used concrete roadway barriers manufactured takings claim under Article I, section 17, the claimant must according to a process over which Aukerman asserted patent show that a governmental actor acted intentionally to take rights. Id. at 577. Claiming the State had obtained the benefits or damage property for a public use. Little–Tex Insulation of his patents without paying compensation, Aukerman sued Co., 39 S.W.3d at 598. When the government acts pursuant the State for inverse condemnation. Id. The court of appeals to colorable contract rights, it lacks the necessary intent to affirmed the trial court's summary judgment in the State's take under its eminent-domain powers and thus retains its favor, determining that any cause of action Aukerman might immunity from suit. Id. at 598–99. This is because the State have was for patent infringement against the independent may “wear [ ] two hats: the State as a party to the contract and contractors. Id. at 578. Even if the contractors had infringed the State as sovereign. The State, in acting within a color of Aukerman's patent, the court held, the State was merely a right to take or withhold property in a contractual situation, party to contracts with them and, without more, could not be is acting akin to a private citizen and not under any sovereign liable for patent infringement. Id. (citing Am. Graphophone powers.” Id. at 599 (citations omitted). Co. v. Gimbel Bros., 234 F. 361, 368 (S.D.N.Y.1916) (holding that a purchaser of a product which has been made in Holland contends he had no contract with the State and infringement of a patented process cannot be liable as an therefore the State's use of his patent was unauthorized. But infringer)). Having acquired the concrete barriers through its absence of an express contract between Holland and the State, third-party contract, the court concluded the State lacked the or uncertainties about the existence of an implied contract intent necessary to establish a takings claim. Id. at 578–79. between them, are immaterial to determining the capacity in which the State is acting. When we articulated the principle In this case, the State presented uncontroverted evidence that distinguishing the State's eminent-domain capacity from its Holland voluntarily provided, and the State accepted, his contractual capacity in Little–Tex, we relied on State v. filtration process along with his design assistance pursuant to Steck Co., 236 S.W.2d 866, 869 (Tex.Civ.App.-Austin 1951, contractual agreements with SRP and PPP. Whether or not writ ref'd). In that case, Steck, a printer, sought to recover a contract may be implied between the State and Holland from the State *644 the value of 39,603,690 cigarette tax individually, the State accepted Holland's product and his stamps it had manufactured and delivered to the State. Id. services under color of its contracts with SRP and PPP, and at 867. The year before those stamps were delivered, Steck not pursuant to its powers of eminent domain. Any claim had manufactured, delivered, and been paid for 300,000,000 for patent infringement Holland might have would be against cigarette stamps under a competitively bid, one-year contract. SRP and PPP, not the State as a mere party to a contract with Id. Pursuant to an oral agreement with the chief of the them. Lacking the requisite intent to take Holland's patented printing division of the Cigarette Tax Stamp Board, Steck process under its eminent-domain powers, the State is not continued to manufacture and deliver the stamps after the subject to liability under article I, section 17 of the Texas first year's contract had expired. Id. When the State refused Constitution. Accordingly, the trial court erred in denying the payment, Steck sued. Id. The trial court determined that Steck State's plea to the jurisdiction. was entitled to compensation under Article I, section 17. Id. at 867–68. We disagreed. First, we held there was no enforceable contract because the State had failed to abide by V. Conclusion the legally required bidding procedures. Id. at 868. We also held that Steck could not assert a takings claim under Article We reverse the court of appeals' judgment and dismiss the I, section 17. Id. at 869. We reasoned that because Steck had case for lack of jurisdiction. delivered and the State had accepted the stamps under the purported, but nonexistent, contract, Steck could not contend

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State v. Holland, 221 S.W.3d 639 (2007) 50 Tex. Sup. Ct. J. 642

Parallel Citations

50 Tex. Sup. Ct. J. 642

Footnotes 1 A patent “claim” sets forth an invention's parameters and describes in some detail “the subject matter which the [patent] applicant regards as his invention.” 35 U.S.C. § 112; see 3 DONALD S. CHISUM, CHISUM ON PATENTS § 8.01 (2005).

2 The State submitted an affidavit attesting that the three facilities were completed in 1998. In response, Holland submitted an affidavit disputing the State's affidavit to the extent it asserted that the Palacios facility “currently in use and operating was completed in 1998.” This dispute is irrelevant to our analysis, which focuses on the assistance Holland provided in designing the three facilities. Holland's petition in the trial court acknowledges that all three facilities use the same process and apparatus to process bilge water.

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Sheth v. Dearen, 225 S.W.3d 828 (2007) 221 Ed. Law Rep. 967

225 S.W.3d 828 Court of Appeals of Texas, I. BACKGROUND Houston (14th Dist.).

In September of 2003, appellee, Donald C. Dearen, sustained Dhiren S. SHETH, M.D., Appellant, a hip fracture and was taken into surgery at Memorial v. Hermann Hospital. Dearen was treated by Dr. Sheth, an Donald C. DEAREN, Appellee. orthopedic surgeon practicing at the University of Texas Health Science Center at Houston (“UTHSCH”). As part of No. 14–07–00004–CV. | May 24, 2007. Dr. Sheth's appointment at UTHSCH, he provided medical treatment to patients at Memorial Hermann Hospital.

Synopsis Background: Patient brought medical malpractice action In treating Dearen's hip fracture, Dr. Sheth performed surgery against surgeon, who performed surgery to repair hip fracture which involved the implantation of an orthopedic hardware and, during the surgery, implanted orthopedic hardware device, known as a “short Gamma nail,” into Dearen's body. 1 device. The 334th District Court, Harris County, Sharon As a result of this surgery, Dearen brought suit alleging McCally, J., denied surgeon's motion to dismiss, and he personal injuries caused by Dr. Sheth's negligence. Dr. Sheth appealed.

filed a motion to dismiss, which the trial court denied.

[Holding:] The Court of Appeals, Adele Hedges, C.J., held II. ANALYSIS that patient alleged a misuse of tangible property causing his injuries, and these claims were within the scope of the In Dr. Sheth's sole issue, he contends that the trial court Tort Claims Act waiver provisions, and as such, patient's erred in denying his motion to dismiss pursuant to Section malpractice suit could have been brought against state 101.106(f) of the Texas Tort Claims Act. Section 101.106(f) university medical center, which employed surgeon. provides that:

If a suit is filed against an Reversed and remanded. employee of a governmental unit based on conduct within the general scope of that employee's Attorneys and Law Firms employment and if it could have *829 Nancy Bolin Broaddus, Houston, for appellant. been brought under this chapter against the governmental unit, the John A. Davis, Houston, for appellee. suit is considered to be against the employee in the employee's official Panel consists of Chief Justice HEDGES and Justices capacity only. On the employee's HUDSON and GUZMAN.

motion, *830 the suit against the employee shall be dismissed unless the plaintiff files amended OPINION pleadings dismissing the employee and naming the governmental unit ADELE HEDGES, Chief Justice.

as defendant on or before the 30th Appellant, Dhiren S. Sheth, M.D. (“Dr.Sheth”) brings this day after the date the motion is filed. appeal following the trial court's denial of his motion to TEX. CIV. PRAC. & REM.CODE § 101.106(f). In this dismiss pursuant to Section 101.106(f) of the Texas Tort case, Dearen does not dispute that his suit was based on Claims Act. In his sole issue, Dr. Sheth argues that the trial conduct within the general scope of Dr. Sheth's employment court erred in denying his motion to dismiss. We reverse and with UTHSCH. The parties disagree, however, as to whether remand.

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Sheth v. Dearen, 225 S.W.3d 828 (2007) 221 Ed. Law Rep. 967

Dearen's suit could have been brought under the Tort Claims been brought under the TCA); see also Dallas County Mental Act (TCA) against UTHSCH. Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) (“The real substance of plaintiffs' complaint [1] [2] In Texas, a governmental agency is not liable for is that Roger's death was caused, not by the condition or use the torts of its officers or agents unless there is a specific of property, but by the failure of Hillside's staff to restrain legislative waiver of immunity. Lowe v. Texas Tech Univ., him once they learned he was still suicidal.”); Kerrville, 923 540 S.W.2d 297, 298 (Tex.1976). Sovereign immunity can S.W.2d at 585 (“The gravamen of their complaint is that only be waived by clear and unambiguous language. Univ. of KSH's non-use of an injectionable drug was the cause of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 their daughter's death.”); Univ. of Tex. Health Sci. Ctr. v. (Tex.1994). The Texas Legislature enacted the TCA to waive *831 Schroeder, 190 S.W.3d 102, 106 (Tex.App.-Houston sovereign immunity in limited circumstances. See Kerrville [1st Dist.] 2005, no pet.) (“Here, the gravamen of Schroeder's State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996). complaints amount to negligent supervision.”). Where the facts taken from the plaintiff's pleadings are undisputed, the [3] [4] [5] As the movant on the motion to dismiss, it question of whether those pleadings support a jurisdictional is Dr. Sheth's burden to point to the facts evidencing that finding of waiver of sovereign immunity is one of law and Dearen's suit could have been brought against UTHSCH. is thus reviewed de novo. See Tex. Dep't of Parks & Wildlife See Phillips v. Dafonte, 187 S.W.3d 669, 677 (Tex.App.- v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) (“[W]hether Houston [14th Dist.] 2006, no pet.) (“We find that the undisputed evidence of jurisdictional facts establishes a trial doctors failed to establish that Dafonte's suit is one that court's jurisdiction is also a question of law.”); see also Tex. could have been brought against UTMB.”); Tejada v. Rowe, Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 207 S.W.3d 920, 923 (Tex.App.-Beaumont 2006, pet. filed) 849, 855 (Tex.2002) (holding that the issue of whether a party (“We find that [the movants] met their burden of proof has properly alleged a valid waiver of sovereign immunity under section 101.106(f).”); Williams v. Nealon, 199 S.W.3d is jurisdictional and is reviewed de novo); Waxahachie 462, 466 (Tex.App.-Houston [1st Dist.] 2006, pet. filed) Independent School District v. Johnson, 181 S.W.3d 781, 787 (“[T]he doctors have not shown that Williams's claims could (Tex.App.-Waco 2005, pet. filed) (same); Kelso v. Gonzales have been brought against UTHSCH under the Texas Tort Healthcare Sys., 136 S.W.3d 377, 381 (Tex.App.-Corpus Claims Act.”). The primary source of those facts are the Christi 2004, no pet.) (same). In this case, Dr. Sheth does not plaintiff's pleadings, however, other evidence is proper if dispute the facts presented in Dearen's pleadings; rather, he relevant to the issue of waiver of sovereign immunity. See disputes Dearen's characterization of those facts. As a result, Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d we apply the de novo standard. See Miranda, 133 S.W.3d at 864, 868 (Tex.2001) (“We must examine the plaintiff's 226. 2 pleadings and, to the extent relevant to the jurisdictional issue, the evidence submitted by the parties in order to Dr. Sheth argues that Dearen's suit could have been brought determine if the government waived sovereign immunity.”); against UTHSCH pursuant to Section 101.021(2) of the TCA, see also Phillips, 187 S.W.3d at 676–77 (analyzing plaintiff's which waives governmental immunity for “personal injury petition as part of its 101.106(f) analysis); Tejada, 207 and death so caused by a condition or use of tangible personal S.W.3d at 922–23 (reviewing, as part of its 101.106(f) or real property if the governmental unit would, were it a analysis, plaintiff's petition and two expert reports attached private person, be liable to the claimant according to Texas to that petition in deciding whether plaintiff's suit could law.” TEX. CIV. PRAC. & REM.CODE § 101.021(2). In have been brought under the TCA); Franka v. Velasquez, his motion to dismiss, Dr. Sheth relied on Dearen's original 216 S.W.3d 409, 412 (Tex.App.-San Antonio 2006, pet. petition, a report by Dearen's expert, and Dearen's responses filed) (reviewing “the petition and the evidence presented” to various discovery to support his contentions. Dr. Sheth in disposing of appellant's 101.106(f) issue). In determining contends that Dearen's pleadings allege the misuse of a device whether the plaintiff alleges facts supporting a finding of implanted into his body, which caused Dearen's injuries. We waiver of sovereign immunity, we look at the substance of note that the plaintiff's pleadings should be the primary focus the plaintiff's pleadings rather than his characterizations of of our inquiry regarding this jurisdictional issue of waiver of them. See Phillips, 187 S.W.3d at 676–77 (looking at “the real sovereign immunity. See White, 46 S.W.3d at 868. substance of [plaintiff's] petition” in determining, as part of its 101.106(f) analysis, whether plaintiff's claim could have

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Sheth v. Dearen, 225 S.W.3d 828 (2007) 221 Ed. Law Rep. 967

Dearen's expert wrote a report describing the procedure Dr. claim under the Texas Tort Claims Act). Dr. Sheth frames Sheth performed on Dearen. The report states that Dr. Sheth Dearen's petition as alleging a misuse of property—the short chose to stabilize Dearen's fracture by implanting a device, Gamma nail was misused in that it was improperly secured dubbed the “short Gamma Nail,” into Dearen's body. The thereby causing Dearen's injuries. Dearen characterizes his report further states that because the Gamma nail is short, claims as a non-use of property—Dr. Sheth's failure to use the it requires a distal interlocking screw for stability. Dearen's distal interlocking screw caused his injuries. original petition summarized his negligence claims arising out of that surgery as: We find the characterization of Dearen's pleadings as alleging a misuse of the short Gamma nail to be a more accurate (1) failing to initially align the nail hole and the hole in the representation of the substance of Dearen's claims. See jig in order to permit the placement of the intramedullary Bossley, 968 S.W.2d at 343 (looking at “the real substance hip screw 3 to permit distal interlocking, of plaintiff's complaint” to determine whether a sufficient use was alleged as required by 101.021(2)); Kerrville, 923 S.W.2d at 585 (“The gravamen of their complaint is that *832 (2) failing to correct the misalignment of the KSH's non-use of an injectionable drug was the cause of their nail hole and the hole in the jig in order to permit the daughter's death.”); Phillips, 187 S.W.3d at 676–77 (looking placement of the intramedullary hip screw to permit distal at “the real substance of [plaintiff's] petition” in determining, interlocking, as part of its 101.106(f) analysis, whether plaintiff's claim could have been brought under the TCA).

(3) failing to engage the distal interlock of the intramedullary hip screw in order to ensure proper leg alignment, and The distal interlocking device is relevant only as a necessary 4 part of the larger device, the short Gamma nail. It is the (4) failing to properly follow the patient to provide early proper use of the entire device (the short Gamma nail), which intervention that would have limited the scope and need implicates the proper use of all the individual parts that for subsequent surgeries and would have limited his aggregate to make the whole device effective, *833 that is recovery time. crucial in stabilizing the hip thereby avoiding further injury.

The use or misuse of the screw is of no consequence in and Such breaches of the standard of care were, among of itself: it is merely a piece of a larger, multi-part device and others, individually and collectively proximate causes of is not designed to function alone. Plaintiff's injuries as claimed herein.

[7] The line of cases in which courts have found a non-use, When Dearen's petition is viewed in conjunction with his and therefore non-waiver of immunity, is distinguishable.

expert's report, which provides the necessary background For instance, in Texas Natural Resource Conservation to understand the procedure, it becomes clear that Dearen Commission v. White, White argued that TNRCC's failure to is complaining that Dr. Sheth's failure to stabilize the short continue use of a pump which was installed on his property to Gamma nail with the use of a distal interlocking screw dissipate gasoline vapors caused a fire which destroyed that caused his injuries. [6] The dispositive controversy in this jurisdictional property. 5 46 S.W.3d at 870. The supreme court held that challenge is the characterization of Dr. Sheth's failure to such a claim involves a non-use of property outside the scope stabilize the Gamma nail with the distal interlocking screw. of the sovereign immunity waiver statute. Id. Importantly, A suit can only be brought under Section 101.102(2) when the unused device (the pump) was alleged to be the direct there is a use of property. See Texas A & M Univ. v. cause of damages. Id. In this case, however, the device that Bishop, 156 S.W.3d 580, 583 (Tex.2005) (finding that, Dearen claims was not used (the distal interlocking screw) because the governmental officials did not use the property, is only a piece of a larger device (the Gamma nail) that is sovereign immunity was not waived thereby allowing suit to alleged to be the direct cause of his injuries. In Kassen v. be brought against the university); San Antonio State Hosp. Hatley, the supreme court held that “the non-use of available v. Cowan, 128 S.W.3d 244, 246 (Tex.2004) (finding that the drugs during emergency medical treatment is not a use of governmental entity did not use the property as required to tangible personal property that triggers waiver of sovereign invoke waiver of immunity); Kerrville, 923 S.W.2d at 584 immunity.” 887 S.W.2d 4, 14 (Tex.1994). Similarly, in (holding that “mere non-use of property” [cannot] support a Kerrville State Hospital v. Clark, the supreme court found that

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Sheth v. Dearen, 225 S.W.3d 828 (2007) 221 Ed. Law Rep. 967

with the screw) led to his injuries. See Kerrville, 923 S.W.2d the failure of the hospital to administer an injectionable drug at 585 (“The gravamen of their complaint is that KSH's nonto the plaintiff was a non-use of tangible personal property.

use of an injectionable drug was the cause of their daughter's 923 S.W.2d at 586. As a result, the court found that the death.”); Phillips, 187 S.W.3d at 676–77 (looking at “the real plaintiff failed to plead facts sufficient to support a finding of substance of [plaintiff's] petition” in determining, as part of waiver of sovereign immunity. Id. In reaching its conclusion, its 101.106(f) analysis, whether plaintiff's claim could have the court stated:

been brought under the TCA).

There cannot be waiver of sovereign immunity in every [8] Dearen also seems to contend that because some of case in which medical treatment is provided by a public his claims involved general negligence, his suit could not facility. Doctors in state medical facilities use some form have been brought against UTHSCH under the TCA because of tangible personal property nearly every time they treat a such claims are outside the scope of the sovereign immunity patient. Because of this fact, a patient suing for negligence waiver provisions. A suit can be brought under the TCA, could always complain that a different form of treatment however, when there are both claims within and outside the than the one employed would have been more effective and scope of the TCA's sovereign immunity waiver provisions. still claim waiver under the Act. If such a complaint were See, e.g., Salcedo v. El Paso Hosp. District, 659 S.W.2d enough to constitute the use of tangible personal property 30, 33 (Tex.1983) (finding that plaintiff's allegations stated under the Act, the doctrine of sovereign immunity would a claim within the scope of the TCA where plaintiff alleged be rendered a nullity. non-use of property and misuse of property); Tejada, 207 Id. at 585–86. Dearen does not complain that a S.W.3d at 922–23 (finding that plaintiff's claims could have different “form of treatment” should have been used. been brought under the TCA where plaintiff pleaded claims of Instead, Dearen complains that the treatment he received, general negligence and negligence resulting from the use of implantation of the Gamma nail device, was improperly tangible property). Because we find that Dearen's pleadings performed. As such, we find these cases to be inapplicable allege a misuse of tangible property causing his injuries, to the facts at hand. See also Bishop, 156 S.W.3d at 583 claims that are within the scope of the TCA waiver provisions, (finding that the knife alleged to be the cause of plaintiff's the fact that he also alleged general negligence is irrelevant. injuries was not used as required under Section 101.021(2) We sustain Dr. Sheth's sole issue. because the governmental officials merely allowed the students to use it as opposed to putting it in use themselves); Cowan, 128 S.W.3d at 246 (holding that allowing the III. CONCLUSION patient to keep his suspenders and walker, which he later used to kill himself, was not a use of property). Because we find that Dearen's suit could have been brought Dearen argues that his amended petition, filed after Dr. Sheth against UTHSCH, we reverse the order of the trial court filed his motion to dismiss, more clearly reflects his claim that denying Dr. Sheth's motion to dismiss. This cause is Dr. Sheth's failure to use a distal interlocking screw, rather remanded to the trial court with instructions to enter an than the misuse of property, caused his injuries. Assuming order of dismissal of Dearen's claims against Dr. Sheth, with without deciding that we can consider his amended petition, 6 prejudice, and for such further proceedings and orders as we do not find it to be *834 additionally persuasive. the parties may show themselves justly entitled to receive in Dearen's amended petition offers essentially the same facts accordance with this opinion. and claims as his original petition; however, in the amended petition, he explicitly uses phrases such as “non-use” and Parallel Citations “did not use.” Despite these pointed characterizations, the gravamen of his petitions remains unchanged in pleading that 221 Ed. Law Rep. 967 Dr. Sheth's misuse of the nail device (in failing to secure it

Footnotes 1 It is not clear from the record where exactly the Gamma nail was placed.

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Sheth v. Dearen, 225 S.W.3d 828 (2007) 221 Ed. Law Rep. 967

2 In Williams v. Nealon, our sister court, in analyzing the appellee's 101.106(f) motion to dismiss, stated that “the proper standard of review for a motion to dismiss is abuse of discretion.” 199 S.W.3d at 465. To the extent the court was holding that all motions to dismiss are reviewed for abuse of discretion, we disagree. The proper standard of review to be employed is dictated by the substance of the issue to be reviewed as opposed to the procedural vehicle through which that issue is developed. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (stating that, in order to determine the proper standard of review, “we must determine whether the [issue] is a question of law or fact”); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 773 (Tex.App.-Corpus Christi 2006, pet. filed) (finding that, while motions to dismiss are generally reviewed for abuse of discretion, the issue of whether plaintiff's claim is a health care liability claim in accordance with the statute at issue is a question of law and is thus reviewed de novo ). Because the issue in this case—waiver of sovereign immunity—is legal in nature, we apply the de novo standard.

3 To the extent there is a distinction, Dearen apparently intended to allege that Dr. Sheth failed to align the nail hole and the jig to permit the placement of the distal interlocking screw. As the expert's report states, the procedure itself was called an “intramedullary nailing” and involved the placement of a short Gamma nail which requires a distal interlocking screw to “lock” the nail in place. Dearen's amended petition further clarifies this by alleging the same facts, but substituting the term “distal interlocking screw” for “intramedullary hip screw.”

4 Both Dearen, in his amended petition, and Dearen's expert, in his report, stated that the nail “requires the distal interlocking screw for stability (emphasis added).”

5 White also argued that the pump's use on his property caused the damages, however, this claim was not considered by the court because it involved factual allegations first raised on appeal. White, 46 S.W.3d at 870.

6 Dr. Sheth argues that once he filed his motion to dismiss pursuant to 101.016(f), his right to dismissal was perfected and any subsequent pleadings by Dearen could not effect that right. See Villasan v. O'Rourke, 166 S.W.3d 752, 758 (Tex.App.-Beaumont 2005, pet. filed) (finding that the defendant's right to dismissal under 101.106(e) was perfected upon the filing of his motion to dismiss and any subsequent pleadings “do not moot the right created by the filing of the motion under section 101.106”). Because we find that the amended petition provides no additional value, we need not address this argument.

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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994) 38 Tex. Sup. Ct. J. 140

Opinion 891 S.W.2d 243 Supreme Court of Texas. CORNYN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HECHT and ENOCH, THE STATE BAR OF TEXAS, James Parsons, III, Justices, join. in his capacity as President of the State Bar of Texas and Karen Johnson, in her capacity as Executive The sole question presented for our determination is whether Director of the State Bar of Texas, Petitioners, the district court below has jurisdiction of this suit, which v. complains of the failure of the State Bar of Texas to compel member lawyers to provide free legal services to Texans who Maria GOMEZ, Alicia Naveja, and Leonardo cannot pay for those services. We conclude that the district Chavez, on Behalf of Themselves and court correctly dismissed the case for lack of jurisdiction.

Others Similarly Situated, Respondents.

Thus, we reverse the judgment of the court of appeals and remand this case to the district court with instructions to No. D–4218. | Argued Jan. 20, 1994. | Decided Dec. 22, 1994. dismiss. 1

Indigents brought action for declaratory and injunctive After being refused free legal services, Maria Gomez, Alicia relief to require State Bar or Supreme Court to implement Naveja, and Leonardo Chaves, on behalf of themselves mandatory pro bono program for state lawyers. The 353rd and others similarly situated (collectively, Gomez), filed Judicial District Court, Travis County, Joseph H. Hart, J., suit in a Travis County district court against the State dismissed for lack of subject matter jurisdiction, and indigents Bar of Texas and two of its officials at that time, James appealed. The Court of Appeals, J. Woodfin Jones, J., 856 Parsons III, President, and Karen Johnson, Executive Director S.W.2d 804, reversed and remanded. On application for writ (collectively, State Bar). Gomez contends that the State Bar, of error, the Supreme Court, Cornyn, J., held that indigents' by not effectively encouraging attorneys to volunteer free action to compel State Bar or Supreme Court to implement legal services, has illegally failed to meet the legal needs of mandatory pro bono program did not present justiciable indigent Texans. Specifically, Gomez alleges violations of the controversy and, therefore, district court lacked jurisdiction following provisions of the Texas Constitution: (1) Article over action. I, Section 13 (open courts); (2) Article I, Section 3 (equal protection); (3) Article I, Section 3a (equal rights); (4) Article Reversed and remanded. I, Section 19 (due course of law); and (5) Article I, Section 29 (inviolate nature of the Bill of Rights). Gomez further asserts Gonzalez, J., concurred and filed opinion. violations of the Texas antidiscrimination statute, 2 the Texas Disciplinary Rules of Professional Conduct, 3 and the Texas Hightower, J., dissented and filed opinion in which Gammage and Spector, JJ., joined. Lawyer's Creed. 4

Doggett, J., noted his dissent. The district court dismissed the case, concluding it lacked jurisdiction under Article V, Section 8, of the Texas Constitution. 5 The court of appeals reversed, holding that the Attorneys and Law Firms district court had jurisdiction to decide the merits of Gomez's claims, but because of this Court's exclusive authority to *244 Lynn Liberato, Houston, Linda A. Acevedo, Austin, regulate the legal profession in Texas, it held that the district Alene Ross Levy, Jeffrey T. Nobles, Houston, Broadus A.

court could levy only a prohibitory, and not a mandatory Spivey, Eric R. Galton, James M. McCormack, Austin, for injunction against the State Bar. 856 S.W.2d 804 (Tex.1993).

petitioners.

The court of appeals explained:

Virginia Agnew, Charles Herring, Jr., James C. Harrington, Austin, for respondents.

We conclude that a district court does not have authority to grant relief that would *245 unreasonably usurp the

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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994) 38 Tex. Sup. Ct. J. 140

supervisory control vested exclusively in the supreme of powers dictated by Article II, Section 1 of the Texas court. By vesting the supreme court with supervisory Constitution). Those duties include our obligation, as the head control of the practice of law, the constitution and the of the judicial department, to regulate judicial affairs. Because State Bar Act grant the supreme court discretion to decide the admission and practice of Texas attorneys is inextricably issues concerning the State Bar and the practice of law. intertwined with the administration of justice, the Court must Whether a district court has authority to grant a particular have the power to regulate these activities in order to fulfill form of injunctive relief depends, we believe, on whether its constitutional role. See generally JIM R. CARRIGAN, granting such relief would effectively exercise the kind INHERENT POWERS OF THE COURTS 2 (1973) (defining of supervisory discretion that is vested exclusively in the inherent powers as those “reasonably required to enable a supreme court. court to perform efficiently its judicial functions, to protect 856 S.W.2d at 815. We agree with the court of appeals' its dignity, independence and integrity, and to make its lawful identification of the issue but not its conclusion. actions effective”). The Court's inherent powers, such as the [1] [2] The jurisdictional question presented is complex power to regulate the practice of law, are not jurisdictional and in some ways unique. As a general proposition, before powers. See Eichelberger, 582 S.W.2d at 399. These powers a court may address the merits of any case, the court must are administrative powers, necessary to the preservation of have jurisdiction over the party or the property subject to the judiciary's independence and integrity. the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. [5] [6] Because the Court's power to regulate the practice See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d of law is an administrative one, the exercise of that power 878, 881 (Tex.1973). Subject matter jurisdiction requires that does not in and of itself deprive lower courts of general the party bringing the suit have standing, that there be a subject matter jurisdiction over challenges to that governance. live controversy between the parties, and that the case be They do not, however, have jurisdiction over all such justiciable. See Texas Ass'n of Business v. Texas Air Control challenges because in every individual case, jurisdiction Bd., 852 S.W.2d 440, 443–46 (Tex.1993). If the district court also depends on justiciability. And, as the court of appeals lacks jurisdiction, in any of these senses, then its decision acknowledged, for a controversy to be justiciable, there must would not bind the parties. See Austin Indep. Sch. Dist., 495 be a real controversy between the parties that will be actually S.W.2d at 881 (noting that collateral attacks on a judgment resolved by the judicial relief sought. 856 S.W.2d 804, 811 are allowed when the district court lacked jurisdiction). And, (citing Texas Ass'n of Business, 852 S.W.2d at 446 and *246 a decision that does not bind the parties is, by definition, anBoard of Water Eng'rs v. City of San Antonio, 155 Tex. advisory opinion prohibited by Texas law. See Texas Ass'n of 111, 283 S.W.2d 722, 724 (1955)). While we do not find it Business, 852 S.W.2d at 444 (citing Article II, Section 1, of necessary to set the precise boundaries of the district court's the Texas Constitution as prohibiting advisory opinions). jurisdiction under these circumstances, we hold that these facts do not present a justiciable controversy and that the [3] [4] The unique aspect of this jurisdictional inquiry, district court therefore has no jurisdiction. as the court of appeals recognized, arises out of this Court's power to regulate the practice of law in the State of Texas. [7] Gomez seeks to compel either the State Bar or this This power is derived from both statutory and inherent Court to implement a mandatory pro bono program for Texas powers. The primary statutory grant of power is found in lawyers. To the extent a remedy is sought against the State the State Bar Act, which gives the Court administrative Bar, Gomez seeks relief from an entity that is powerless, control over the State Bar and provides a statutory mechanism acting alone, to implement that remedy. The State Bar's for promulgating regulations governing the practice of law. authority is limited to proposing regulations to this Court, See TEX.GOV'T CODE § 81.011(c). The other source of which may accept or reject any recommendation, in whole or this court's power to regulate the practice of law in this in part. See TEX.GOV'T CODE § 81.024(a). For example, state, its inherent power, is not secured by any legislative when the latest amendment to the rules governing lawyer grant or specific constitutional provision, but is necessarily advertising was recommended by the State Bar, we modified implied to enable the Court to discharge its constitutionally the proposed amendment before promulgation. See Amended imposed duties. See Eichelberger v. Eichelberger, 582 Order of Promulgation and Adoption of Disciplinary Rules, S.W.2d 395, 398–99 (Tex.1979) (noting that doctrine of West's Texas Cases Advance Sheet 884–885 issue 49, pp. inherent power is derived, in part, from the separation LXIX–LXXXI. Thus, the relief sought against the State Bar,

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even if granted by the trial court, could not resolve the dispute a justiciable controversy. Once again, acknowledging the between these litigants. limitations on the district court's authority in this area, the dissenting justices nevertheless contend, “The district [8] Moreover, to the extent the remedies are sought against court does, however, have jurisdiction to issue a mandatory the Supreme Court, they would clearly impinge on the injunction which requires the State Bar to implement a more Court's exclusive authority to regulate the practice of law. effective voluntary pro bono program calculated to meet The Legislature itself implicitly acknowledged the Court's constitutional and statutory demands which may exist.” Infra, fundamental authority in this area when it enacted the State 891 S.W.2d at 252 (emphasis added). We are at a loss to Bar Act as an aid to the Court in carrying out this function. understand, and the dissenting justices do not explain, how a See TEX.GOV'T CODE § 81.011(b). No subordinate court in mandatory injunction to enforce a voluntary program could Texas has the power to usurp our authority or responsibility in ever be enforced by any court. By limiting the district court's this area. The dissenting justices acknowledge this limitation jurisdiction to such illusory relief, the dissenting justices when they say, “An injunction mandating this court or the have, in effect, conceded that the *247 trial court cannot State Bar to implement a mandatory pro bono program would grant plaintiffs the real relief they seek. be improper. It would inappropriately involve the district court in the regulation of the practice of law.” Infra, 891 Our decision that the district court lacks jurisdiction does not, S.W.2d at 252 (citations omitted). however, leave the parties without a forum in which to seek redress of their grievances. This Court, in the exercise of its This is not to say that all remedies bearing upon the regulation constitutional responsibilities, wants and needs input from of the legal profession would be unacceptable infringements interested persons concerning its supervisory responsibility on the inherent powers of the Court. Had this Court actually over Texas lawyers. Ordinarily, interested parties would be promulgated rules establishing a pro bono program and had free to informally petition this Court in its administrative Gomez challenged the constitutionality of such rules, the capacity, to urge reconsideration of the proper constitutional district court would have jurisdiction to decide, in the first mandates for this Court's regulation of attorney conduct. instance, whether such rules met constitutional standards. See However, given the potentially far-reaching effects of this O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding particular challenge to our scheme of regulation, we direct the trial court's decision on a constitutional challenge to the that this matter be placed on the Court's administrative rules of disciplinary conduct promulgated by the Court). agenda for further consideration. All interested parties have In due course, we would review any adverse determination until April 14, 1995, to submit their written arguments on in our adjudicative capacity. See Cameron v. Greenhill, the merits of the underlying claims. Cf. Barger v. Brock, 582 S.W.2d 775, 777 & n. 3 (Tex.1979) (holding that 535 S.W.2d 337, 342 (Tenn.1976) (ordering a lower court the Court could both promulgate a rule and determine its to dismiss a challenge to the Supreme Court's rules but constitutionality). The important distinction between such a directing the lower court to forward the petitions for further case and the one at hand is that in the former case, the consideration as a direct motion in the Supreme Court). district court would not be cast in the impermissible role of effectively promulgating policies and regulations governing Accordingly, we reverse the judgment of the court of appeals Texas lawyers. Such a case would be justiciable because and remand to the district court with instructions to dismiss the district court would be capable of rendering a judgment for want of jurisdiction. that accords the parties complete relief, subject of course to appellate review.

DOGGETT, J., dissents.

But when, as here, the essence of a complaint is that this Court has failed to establish rules governing some GONZALEZ, Justice, concurring. aspect of lawyer conduct, a district court has no authority This case presents significant issues of public policy. to assume this Court's authority to regulate the legal Respondents seek a court declaration that indigent citizens profession. This prohibition includes the rendition of orders of our State are entitled to free legal services in civil cases. that would, as a practical matter, preempt this Court's They also seek an injunction that would require the State Bar authority. Because the district court cannot effect a remedy of Texas to implement a program mandating pro bono legal that would resolve this dispute, this case does not present services from all attorneys licensed to practice law in Texas. 1

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For the reasons stated in the majority opinion, I agree with 1988, we signed an order that made the IOLTA program the trial court and this Court that this case does not present mandatory. Id. (amended December 13, 1988). We took this a justiciable controversy within the trial court's jurisdiction. I action under our authority to regulate the practice of law. thus concur in the judgment.

Realistically, the Court has progressed as far as it can to I write separately because I disagree with the Court extend legal services to the poor. A mandatory pro bono prolonging resolution of the mandatory pro bono issue by program is quite different from the IOLTA program. This placing the matter “on the Court's administrative agenda for Court lacks the resources and/or the political will to attempt further consideration.” 891 S.W.2d at 247. This procedure further resolution of the profound problem of providing is unnecessary, and it gives Respondents false hope that a legal services for indigent citizens. I would tell Respondents majority of the Court is seriously considering implementing frankly that we are not going to order mandatory pro bono. such a sweeping change in the practice of law in Texas. As The Legislature is better suited to tackle this social problem. for the invitation for interested parties to submit more briefs to the Court, I think that any information which anyone gives the Court will merely duplicate what we already have for HIGHTOWER, Justice, joined by GAMMAGE and determining the merits of Respondents' request. The issue of SPECTOR, Justices, dissenting. how to provide legal services for the indigent is a problem in Because I believe that the district court has jurisdiction of this our society that has been widely debated and studied. More suit and that the Court would effectively deny the Plaintiffs' hearings, briefs, or argument before us will be of little utility. access to a meaningful forum in which to seek redress of their grievances, I respectfully dissent.

Mandating any program for legal services to the poor is a political question, over which this Court in its administrative capacity and the Legislature would have I. jurisdiction. However, in my opinion, any attempt to draft and implement such a program would unnecessarily divert The jurisdictional inquiry begins with Article V, Section 8 of the Court from its primary business of adjudicating disputes. the Texas Constitution which provides in part: The Legislature is better suited to undertake the activities District Court jurisdiction consists necessary for drafting and implementing a program to provide of exclusive, appellate, and original indigents legal services. Different program options, as well jurisdiction of all actions, proceedings as their legal and constitutional ramifications, will need to be and remedies, except in cases where considered. Since the problem of access to legal services faces exclusive, appellate, or original society as a whole, the burden of resolving it does not solely jurisdiction may be conferred by this rest on the legal profession.

Constitution or other law on some other court, tribunal or administrative I acknowledge that a very real problem exists for individuals body.

who seek legal representation but lack the financial resources to retain counsel. Studies clearly document that our poor Tex. Const. art. V, § 8 (emphasis added). The district citizens need greater access to legal services. See, e.g., court held that it lacked jurisdiction because the legislature COMMITTEE ON LEGAL SERVICES TO THE POOR IN had conferred jurisdiction over matters concerning the CIVIL MATTERS, STATE BAR OF TEXAS, REPORT administration of the State Bar upon this Court in the State ON MANDATORY PRO BONO (1991); STATE BAR Bar Act. See Tex.Gov't Code Ann. § 81.011(c) (West 1988). OF TEXAS ET AL., LEGAL NEEDS OF THE POOR I disagree. ASSESSMENT PROJECT (1991). This need led the Court to create the Texas Equal Access to Justice foundation in What the legislature conferred upon this Court was 1984 to administer the voluntary *248 IOLTA (Interest on “administrative control over the state bar.” Tex.Gov't Lawyers' Trust Accounts) program. 2 See TEXAS EQUAL Code Ann. § 81.011(c) (West 1988) (emphasis added). ACCESS TO JUSTICE PROGRAM §§ 1–9 (effective May “Jurisdiction” within the meaning of Article V, Section 8 19, 1994), reprinted in TEX.GOV'T CODE, tit. 2, subtit. G includes only the judicial powers of the courts. These judicial app. (STATE BAR RULESS art. XI, §§ 1–9). In December, powers are typically the only ones at issue when the Court

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makes statements such as: “[J]udicial power is divided among to regulate the practice of law.” Tex.Gov't Code Ann. § the various named courts by means of express grants of 81.011(b) (West 1988). ‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex. The State Bar's actual power in this regard is limited to 553, 62 S.W.2d 641 (1933)). But Texas courts have duties in proposing regulations to this Court, which could reject or addition to their judicial responsibilities. amend any such recommendation. Under a strict concept of justiciability, one could argue that there is no justiciable I do not disagree that this Court's inherent power to regulate controversy between the State Bar and the Plaintiffs. See the practice of law is more expansive than the administrative Board of Water Eng'rs v. City of San Antonio, 155 Tex. authority that the legislature has “granted” to us. See Daves v. 111, 283 S.W.2d 722, 724 (1955) (defining “justiciable State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ controversy” as the requirement that there shall be a ref'd n.r.e.) (noting the Court's inherent power to adopt rules real controversy between the parties that will actually be governing the practice of law by extra-statutory means); see determined by the judicial declaration sought). On the also Tex.Gov't Code Ann. § 81.011(b) (West 1988) (stating other hand, more modern notions of justiciability would that the State Bar was a legislative creation passed to aid acknowledge that the State Bar is an acceptable “surrogate the Court in exercising its judicial power). See State Bar v. defendant” for the Court in this matter. In fact, the State Bar Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does has served as such a surrogate in several recent cases. See, not necessarily follow that this inherent power is so great e.g., O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State that it deprives the state's courts of general jurisdiction of the Bar v. Tinning, 875 S.W.2d 403 (Tex.App.—Corpus Christi authority to hear a challenge pertaining to the governance of 1994, writ denied); Musslewhite v. State Bar, 786 S.W.2d 437 the legal profession. (Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, The proper question to determine whether the district court writ ref'd n.r.e.). 2 For these reasons, I conclude that the has jurisdiction over this case is not whether this Court, in district court's jurisdiction is not suspect on this basis. its administrative capacity, could act in a manner that would decide or moot the issues raised. Rather, three questions must be asked: (1) *249 whether the State Bar and its officers are the proper parties in this case; (2) if so, whether the II. district court is an appropriate forum to hear a matter over Next we must decide whether the district court has subject which this Court exercises such extensive authority; and (3)

matter jurisdiction over a challenge to an administrative whether the failure to act, as opposed to an affirmative action, decision of this Court. I believe the answer is yes.

nevertheless presents an issue over which the district court Promulgating court rules in our administrative capacity does may exercise authority. I would answer all three questions in not and cannot imply a concomitant determination by this the affirmative.

Court in its judicial capacity that such rules are constitutional in every respect. Hopefully, this Court does not abandon its However couched, the Plaintiffs' claims are actually directed collective knowledge of the Constitution when it exercises not so much at the State Bar 1 as at an alleged deficiency its rulemaking authority, and surely it would not knowingly in the current system of lawyer regulation established by promulgate any rule it regarded as violating the United States this Court and the legislature. This Court, both by legislative or Texas Constitutions. However, we are not omniscient. It is grant and its inherent powers, possesses authority to regulate simply beyond the capacity of this or *250 any other court to the practice of law and exercises control over the State envision every possible constitutional ramification or factual Bar. See Tex.Gov't Code Ann. §§ 81.011, 81.024(a) (West application of its orders or rules, particularly before it has 1988) (clarifying this Court's supervisory role over the State the benefit of a case and controversy that vigorously explores Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State both sides of the issues. See Order of the Supreme Court of Bar Act was passed in aid of this court's exercise of its February 28, 1966, Transmitting Amendments to Rules of inherent power to regulate the practice of law.”) (footnotes Civil Procedure, 383 U.S. 1029, 1032 (Black, J., dissenting) omitted). The legislature recognized the Court's fundamental (stating that “the Court's transmittal does not carry with it a responsibility in this area when it passed the State Bar Act “in decision that the amended rules are all constitutional” because aid of the judicial department's powers under the constitution “such a decision would be the equivalent of an advisory

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opinion which, I assume the Court would unanimously is doubtful that the Legislature has the power to impose a agree, we are without constitutional power to give.”); Grand mandatory pro bono system upon the State Bar. Bahama Petroleum Co. v. Canadian Transp. Agencies, 450 F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district Some state supreme courts have expressly provided for the court had jurisdiction to consider a constitutional challenge filing of petitions challenging their orders and rules directly to a federal rule of civil procedure, noting that “[w]hile with that court. See, e.g., Aldridge v. Watling Ladder Co., the [United States Supreme] Court certainly considers the 275 Ark. 225, 628 S.W.2d 322, 323 (1982) (holding that constitutionality of a rule recommended by a committee, it is a case involving construction of supreme court rule should not possible for its members to anticipate every constitutional have been certified to supreme court under Supreme Court objection.”). This is especially true when, as here, it is the Rule 29(1)(c)); *251 Goetz v. Harrison, 153 Mont. 403, 457 failure to provide for some constitutionally mandated system P.2d 911, 912 (1969) (stating that questions involving the that is alleged. constitutionality of a supreme court rule should be presented to the supreme court in an “appropriate original proceeding.”)

Nor would the mere determination by the district court that the current system is constitutionally deficient invade this This Court has, with narrow exceptions, never provided such Court's inherent power to regulate the practice of law. We a procedure. 4 Because supreme court rules must comport have no inherent power to create a system that violates the with the Constitution and because the judicial branch is Constitution, just as the legislature has no power to pass entrusted with interpreting the Constitution, jurisdiction to unconstitutional statutes. See Reese v. State, 772 S.W.2d 288, consider challenges to rules must exist at the district court 290 (Tex.App.—Waco 1989, pet. ref'd) (reasoning that a level. This view comports with the general understanding of court may not enact a procedural rule that conflicts with a Texas law, and with what is probably the majority rule in most provision of the constitution); Picard v. State, 631 S.W.2d of the states that have been confronted with the issue. See, 761, 763 (Tex.App.—Beaumont 1981, no writ) (holding that e.g., Beard v. North Carolina State Bar, 320 N.C. 126, 357 the rule-making authority of any court may not conflict with S.E.2d 694, 695 (1987) (holding that a “direct challenge of the constitutional provisions and that any unconstitutional rule constitutionality of an order of this Court ... must be litigated is inoperative). For example, the Constitution provides that as an original action in the General Court of Justice.”); this Court may not appoint to the State Commission on Berberian v. Kane, 425 A.2d 527, 528 n. 2 (R.I.1981) Judicial Conduct more than one judge from the same Supreme (holding that a rule may be challenged in a case seeking Judicial District. Tex. Const. art. V, § 1–a(2). If the Court declaratory judgment that the rule was unconstitutional). breached this restriction, surely it would be answerable to the legal system. If this be conceded, there can be only two possible mechanisms to enforce constitutional restrictions on the Court acting in its administrative capacity: a suit against III. the Court in a lower court or an original proceeding in the The question remains whether this case is nonjusticiable Court itself. Either of these courses is permissible, but at least because the district court does not have jurisdiction to grant one is necessary. Under the Court's analysis, however, there the relief sought. Plaintiffs seek a declaratory judgment is no mechanism to enforce constitutional restrictions on the that the State Bar is violating their constitutional and Court acting in its administrative capacity. In this case, the statutory rights. Among other things, Plaintiffs requested Plaintiffs are left without a meaningful forum in which to that the district court “[d]eclare that the official policies, seek redress of their grievances. The Court has directed “that actions, and failure to act alleged herein, which involve the this matter be placed on the Court's administrative agenda refusal to Defendants to adequately provide for the legal for further consideration.” In essence, the Court suggests that services needed by Plaintiffs and the class, violate the Texas the Plaintiffs directly petition the Court for redress of their Constitution and Tex.Civ.Prac. & Rem.Code § 106.001.”

“complaint.” However, the Court is not required to consider Plaintiffs also seek an injunction prohibiting the State Bar or take any action on the “petition”—ever! Obviously this from continuing to violate the rights of indigent citizens does not constitute a meaningful forum. 3 It is also unclear and an injunction mandating the State Bar to implement whether the Plaintiffs could seek redress of their grievances in an adequate and more effective pro bono program. First, the Legislature. Based upon the Court's expansive description declaratory relief is proper whether or not further relief is of its inherent powers to regulate the practice of law, it or could be claimed. See Tex.Civ.Prac. & Rem.Code Ann.

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§ 37.003(a). The district court has the authority to render a do not now instruct the legislature as to the specifics of the judgment declaring the constitutional and statutory rights of legislation it should enact....” Plaintiffs and, also, to declare whether such rights have been violated. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003. I fail Moreover, a court should not overstep the line between to see the distinction between the district court's jurisdiction adjudication and regulation. Regulation of the practice of to determine the constitutionality of the official policies, law is within the exclusive control of this Court. Tex.Gov't actions, and failure to act caused by the refusal of the State Code Ann. § 81.011(c) (Vernon 1986); Daves v. State Bar, Bar to adequately provide for the legal services needed by 691 S.W.2d 784, 788–89 (Tex.App.—Amarillo 1985, writ Plaintiffs and the district court's jurisdiction to determine ref'd n.r.e.). An injunction mandating this Court or the State the constitutionality of rules proposed by the State Bar Bar to implement a mandatory pro bono program would be and promulgated by this Court. In both cases, the district improper. It would inappropriately involve the district court court's determination could be reviewed by this Court in its in the regulation of the practice of law. See Edgewood Indep. adjudicative capacity. Contrary to the Court's assertion, the Sch. Dist. v. Kirby, 777 S.W.2d at 399; Edgewood Indep. Sch. determination of the constitutionality of the refusal to the Dist. v. Kirby, 804 S.W.2d at 493–94. The district court does, State Bar to adequately provide for the legal services needed however, have jurisdiction to issue a mandatory injunction by Plaintiffs would not cast the district court in the role of which requires the State Bar to propose and implement a effectively promulgating policies and regulations governing more effective voluntary pro bono program calculated to meet Texas lawyers. constitutional and statutory demands which may exist. Id. In addition, the district court would have jurisdiction to issue a Concerning injunctive relief, a prohibitory injunction, one mandatory injunction which requires the State Bar to propose prohibiting the State Bar from continuing to violate Plaintiffs' regulations creating a mandatory pro bono program to this rights, would be proper in the event the district court holds Court. such rights are being violated. It is axiomatic that a court has the power to enforce its orders determining the legal Finally the question remains whether this case is rights of the parties. Morrow v. Corbin, 122 Tex. 553, 62 nonjusticiable because it alleges constitutional sins of S.W.2d 641, 644–45 (1933). “Reason and experience argue omission. I believe that the Plaintiffs' complaint that that courts empowered ... [to decide] constitutional mandates the State Bar has failed to act as required by various cannot be left without the means to order appropriate relief.” constitutional and statutory provisions does not affect the Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991). justiciability of their claims. Distinctions between an act and Furthermore, a mandatory injunction could also be proper. an omission in this context are not helpful. See generally See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, Lisa E. Heinzerling, Note, Actionable Inaction: Section 399 (Tex.1989); Edgewood Indep. Sch. Dist. v. Kirby, 804 1983 Liability for Failure to Act, 53 U.CHI.L.REV. 1048, S.W.2d 491, 494 (Tex.1991); Terrazas, 829 S.W.2d at 717– 1057–63 (1986) (criticizing the entire act/omission analysis 20. However, courts should tread lightly when dealing with in the context of governmental responsibilities under the powers traditionally reserved to other areas of government. Constitution, primarily because its tort-based reasoning is ill- For example, in Terrazas, although we held that the courts suited to explain existing doctrine). If this Court concluded could order apportionment, we were careful to state, that the district court lacked jurisdiction over the Plaintiffs'

claims because they allege an omission rather than an act, *252 [T]hat power ought to be used the Plaintiffs could simply recast their allegations. Thus, only after investigation and careful the difference between acts and omissions in this highly consideration of the many, diverse unusual context seems semantic. See David A. Fischer, interests affected, after due deference Causation in Fact in Omission Cases, 1992 UTAH L.REV. to the Legislature to rectify its own 1335, 1339 (“[A]s a matter of semantics, any omission statutes, and after due regard for the can be characterized as part of a larger encompassing effect of the court's order on the act.”). The mere fact that the Plaintiffs have alleged an election process. unconstitutional omission cannot deprive the district court of jurisdiction when it clearly would have jurisdiction to review 829 S.W.2d at 718. Likewise, in Edgewood Indep. Sch. Dist.

an unconstitutional act.

v. Kirby, 777 S.W.2d at 399, we stated, “Although we have ruled the school financing system to be unconstitutional, we

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For the foregoing reasons, I respectfully dissent.

Parallel Citations

38 Tex. Sup. Ct. J. 140

Footnotes 1 This disposition of the limited issue before us means that we do not, as Justice Gonzalez's concurring opinion does, comment on the merits of the underlying claims.

2 TEX.CIV.PRAC. & REM.CODE § 106.001. This statute generally prohibits the state or its agents from discriminating against persons because of race, religion, color, sex, or national origin. Remedies available to a successful litigant include injunctive relief, attorney's fees, and court costs. Id. § 106.002. A person who knowingly violates this statute is subject to a fine and confinement in the county jail. Id. § 106.003.

3 TEX.DISCIPLINARY R.PROF.CONDUCT, pmbl. ¶ 6, reprinted in TEX.GOV'T CODE, tit. 2, subtit. G app. (West Supp.1992)

(STATE BAR RULES art. X, § 9) (“The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.”).

4 Texas Lawyer's Creed—A Mandate for Professionalism (adopted by the Supreme Court of Texas and the Court of Criminal Appeals of Texas, Nov. 7, 1989), reprinted in TEXAS RULES OF COURT 487 (West 1994). In the Creed, lawyers are urged to commit themselves “to an adequate and effective pro bono program.” Id.

5 Section 8 defines the district courts' jurisdiction, but excepts those cases where jurisdiction has been conferred on some other court.

See TEX. CONST. art. V, § 8. The district court held that this Court's power to regulate the practice of law was sufficient to bring this case within Section 8's exception.

1 Respondents deny that they are seeking a mandatory pro bono program, but they do not suggest any other method of providing legal services to the indigent.

2 The IOLTA foundation administers a program wherein lawyers convert their non-interest bearing trust accounts to interest bearing accounts. Financial institutions remit all interest earned on IOLTA accounts to the IOLTA foundation. The foundation in turn channels money to organizations that deliver civil legal services to the poor. Since inception of the mandatory IOLTA program, the foundation has distributed approximately $42 million to assist people unable to afford an attorney in civil actions.

1 The current pro bono policy was adopted by the State Bar of Texas Board of Directors in May 1992. The policy includes an aspirational goal of fifty (50) hours per year and an annual voluntary pro bono reporting system.

2 We need not decide in this case whether Plaintiffs could have proceeded against this Court itself. Like other state courts of last resort, we have been named defendants in district court at least once before. Cameron v. Greenhill, 582 S.W.2d 775 (Tex.1979); see also CWA Local 1044 v. Chief Justice of the Sup. Ct., 118 N.J. 495, 572 A.2d 613 (1990) (challenging a New Jersey Supreme Court decision made in the course of labor negotiations with its judicial employees); American Trial Lawyers Ass'n v. New Jersey Sup. Ct., 66 N.J. 258, 330 A.2d 350 (1974) (challenging a New Jersey Supreme Court order limiting contingent attorney's fees in certain tort cases); Vermont Sup. Ct. Admin. Directive No. 17 v. Vermont Sup. Ct., 154 Vt. 217, 576 A.2d 127 (1990) (challenging a Vermont Supreme Court order postponing civil jury trials due to budgetary shortfalls). But some jurisdictions expressly proscribe suing the state's highest court. See, e.g., Goetz v. Harrison, 153 Mont. 403, 457 P.2d 911 (1969) (holding that a lower court has no supervisory control over the Supreme Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions).

3 It is unclear whether the Court is creating a “parallel administrative docket” in which interested persons could petition the Court for various forms of relief. Are these “petitioners” entitled to timely consideration of their petition and oral argument? See Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976) (“[I]n order that the parties may have their insistences considered, we direct that all pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat the pleadings as constituting a motion to vacate or modify Rule 42. This matter will be docketed for oral argument, in Knoxville, at the heel of the calendar on 7 May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The sole issue before the Court is the constitutionality of Rule 42.”).

4 Our lack of an original proceeding may actually be salutary. This Court's resolution of complex questions concerning the constitutionality of our rules would most likely be enhanced by the fuller development of issues and arguments that usually attend the appellate process.

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Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

[5] employer and non-citizens whose visas were issued for a period of less than one year had standing to challenge new 304 S.W.3d 896 rules under APA; and Court of Appeals of Texas, Austin.

[6] plaintiffs failed to establish entitlement to temporary TEXAS DEPARTMENT OF PUBLIC SAFETY; injunction.

Lt. Col. Lamar Beckworth, in his official capacity as Interim Director of the Texas Reversed.

Department of Public Safety; and Allan B. Polunsky, in his official capacity as Chairman of the Public Safety Commission, Appellants, Attorneys and Law Firms v.

*900 Erika M. Kane, Assistant Attorney General, Austin, Miguel SALAZAR; Edgar Soria; Francisco Avila TX, for Appellants.

Trejo; Green Meadows Landscaping, Inc.; Eustolio Galvan; and Jose Gomez, Appellees. David G. Hinojosa, Mexican American Legal Defense & Educational Fund, Inc., San Antonio, for Appellees.

No. 03–09–00222–CV. | Dec. 31, 2009. | Rehearing Overruled Feb. 25, 2010. Before Chief Justice JONES, Justices WALDROP and HENSON.

Synopsis Background: Non-citizens and an employer relying on foreign temporary employees brought action challenging OPINION Department of Public Safety rules governing the issuance of driver's licenses to non-citizen drivers. The 345th DIANE M. HENSON, Justice. Judicial District Court, Travis County, Orlinda Naranjo, J., temporarily enjoined Department from implementing and The Texas Department of Public Safety, the Interim Director enforcing the rules. Department appealed. of the Texas Department of Public Safety, 1 and the Chairman of the Public Safety Commission (collectively, the “Department”), appeal from the trial court's order granting a temporary injunction sought by appellees Miguel Salazar, Holdings: The Court of Appeals, Diane M. Henson, J., held Edgar Soria, Francisco Avila Trejo, Eustolio Galvan, Jose that:

Gomez, and Green Meadows Landscaping (collectively, the “Appellees”). The trial court's order temporarily enjoined [1] where valid rule challenges were raised under the the Department from implementing and enforcing Rule Administrative Procedure Act (APA), the trial court had 15.24, as amended, and Rule 15.171 of chapter 37 of the subject-matter jurisdiction to consider claims for both Texas Administrative Code. See 37 Tex. Admin. Code § declaratory and injunctive relief;

15.24 (2009) (Tex. Dep't of Pub. Safety, Identification of Applicants) (hereinafter, “Rule 15.24”); id. § 15.171 (2009)

[2] APA waives agency's immunity with respect to challenges (Tex. Dep't of Pub. Safety, Issuance of Driver Licenses & to the validity of an agency rule;

Identification Certificates to Non-citizens) (hereinafter, “Rule 15.171”). The trial court further enjoined the Department [3] internal memorandum providing that non-citizen driver's from issuing driver's licenses that are temporary or different licenses were to be produced in a non-standard vertical format in appearance from standard driver's licenses to individuals was not a “rule” subject to challenge under APA;

on the basis that they are not citizens or legal permanent residents of the United States or on the basis that they are [4] plaintiffs did not have standing to challenge internal legal permanent residents with an expiration date on their memorandum under Uniform Declaratory Judgments Act permanent resident card.

(UDJA);

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*901 We hold that the Appellees' claims, with the exception days from the status date, his driver's license will be cancelled. of the challenges to Rules 15.24 and 15.171 brought by Green Id. at (c). Meadows, Salazar, Soria, and Trejo, are barred by sovereign immunity. With respect to those claims that are not barred In September 2008, the Department issued an internal by sovereign immunity, we hold that the trial court abused memorandum stating that licenses issued to certain nonits discretion in granting injunctive relief. Accordingly, we citizen drivers would differ in appearance from standard reverse the trial court's order issuing the temporary injunction. driver's licenses by being vertically oriented and bearing a stamp stating, “Temporary Visitor.” The memorandum further provided that such licenses would display the license holder's status date as required by Rule 15.171. This BACKGROUND memorandum was never memorialized in a Department rule.

The Department is authorized to adopt rules necessary to administer chapter 521 of the transportation code, governing In response to the Department's amendment of Rule 15.24, the issuance of driver's licenses. See Tex. Transp. Code adoption of Rule 15.171, and September 2008 internal Ann. §§ 521.005, .291 (West 2007) (delegating rulemaking memorandum, the Appellees filed suit seeking declaratory authority to the Department). Transportation code section and injunctive relief under the *902 Uniform Declaratory 521.142 provides that an application for a driver's license Judgments Act (UDJA), see Tex. Civ. Prac. & Rem.Code must include any “information the [D]epartment requires Ann. §§ 37.001–.011 (West 2008), and section 2001.038 to determine the applicant's identity, competency, and of the Administrative Procedure Act (APA), see Tex. Gov't eligibility.” Id. § 521.142(e) (West Supp. 2009); see also Code Ann. § 2001.038 (West 2008). id. § 521.142(a) (requiring “presentation of proof of identity satisfactory to the [D]epartment”). Rule 15.24 describes The Appellees alleged that the enforcement of Rules 15.24 the types of documents considered satisfactory proof of and 15.171 and the Department's policies as outlined identity. In 2008, the Department amended the type of in the memorandum would cause them probable injury. primary identification document described in subsection Specifically, Appellees Salazar, Soria, and Trejo assert that (1)(D) of Rule 15.24 from an “unexpired United States they are authorized workers under the federal H–2B work Bureau of Citizenship and Immigration Services document” visa program, but cannot obtain driver's licenses under the to an “unexpired United States Bureau of Citizenship and new rules because their visas are only valid for ten months at Immigration Services document issued for a period of at least a time. 3 Appellee Green Meadows, a landscaping business one year and must be valid for not less than six (6) months that relies on temporary employees working in the U.S. on from the date presented to the [D]epartment with a completed H–2B work visas, alleges that the Department's new rules application.” 2 have prevented its H–2B workers from obtaining Texas driver's licenses, and therefore precluded Green Meadows Also in 2008, the Department adopted Rule 15.171, titled from employing them as foremen, as that position requires “Issuance of Driver Licenses and Identification Certificates to the ability to drive work crews from one job site to Non-citizens.” Rule 15.171 provides that if an applicant has another. Because of the resulting shortage of foremen, less than six months remaining on his lawful admission period Green Meadows contends that it has been forced to forego in the United States, no driver's license may be issued. Rule obligations owed to its landscaping customers. Appellee 15.171(a)(2). The rule further provides that if the applicant's Gomez, who holds a Class B commercial driver's license and lawful admission period is more than six months but less than resides in the United States with temporary protected status, the full term of a driver's license, the applicant will be issued alleges that he has been denied a Class A driver's permit a driver's license “with a status date displayed that coincides as a result of the Department's new rules, despite having with the expiration of the applicant's lawful admission period taken and passed the required written examination. 4 Finally, in the United States.” Id. at (a)(1). If the applicant's lawful Appellee Galvan, a legal permanent resident of the United admission period has an indefinite expiration date, the driver's States, alleges that he was harmed by the Department's new license will be issued with a status date of one year from the rules and policies when he was mistakenly issued a nondate of the application. Id. at (a)(3). If the applicant cannot standard driver's license indicating that he is a temporary show valid documentation of a change or extension within 45 visitor to the United States.

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After a hearing, the trial court granted the Appellees' request not determine whether the Appellees have properly alleged for a temporary injunction, and this appeal followed. On ultra vires claims because the trial court's subject-matter appeal, the Department argues that the trial court did not have jurisdiction is established by section 2001.038 of the APA. subject-matter jurisdiction to grant the temporary injunction See Tex. Gov't Code Ann. § 2001.038. Section 2001.038 because the Appellees' claims are barred by sovereign allows a party to bring a declaratory-judgment action immunity. The Department further argues even if the trial challenging the validity or applicability of an agency rule if it court did have subject-matter jurisdiction, it abused its is alleged that the rule or its threatened application interferes discretion in granting the temporary injunction. with or impairs a legal right or privilege of the plaintiff. See id.

Section 2001.038 is considered a legislative grant of subject- matter jurisdiction, so that valid claims raised pursuant to that provision are not barred by sovereign immunity. See Combs v.

STANDARD OF REVIEW Entertainment Publ'ns, Inc., 292 S.W.3d 712, 720 (Tex.App.-

[1] [2] We review the grant or denial of a temporary Austin 2009, no pet.) (collecting cases). injunction for an abuse of discretion. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993) (“The decision to grant or deny [6] The Department argues that because the APA only a temporary writ of injunction lies in the sound discretion expressly authorizes declaratory actions challenging agency of the trial court, and the court's grant or denial is subject rules, it does not establish subject-matter jurisdiction with to reversal only for a clear abuse of that discretion.”). A respect to requests for injunctive relief. While section trial court abuses its discretion when it acts arbitrarily, 2001.038 does not expressly mention injunctive relief, this unreasonably, and without reference to guiding rules or Court has held that injunctive relief against a state agency is principles, or misapplies the law to the established facts of the available under the APA, stating: case. See Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003);

The Commission's final point on Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.

appeal is that the trial court's order proceeding).

is void for attempting to enjoin a state agency. Ordinarily, a plaintiff [3] [4] Sovereign immunity from suit defeats a trial must sue an individual in authority court's subject-matter jurisdiction. *903 State v. Gonzalez, to enjoin the activities of a state 82 S.W.3d 322, 327 (Tex.2002). Whether a trial court has agency. However, as discussed above, subject-matter jurisdiction is a question of law we review de the trial court's jurisdiction over this novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.2007).

matter was founded on the APA. It was therefore empowered to issue an injunctive order.

DISCUSSION Texas Alcoholic Beverage Comm'n v. Amusement & Music Jurisdiction Operators of Tex., Inc., 997 S.W.2d 651, 659 (Tex.App.-

Austin 1999, pet. dism'd w.o.j.) (internal citations omitted);

1. Subject–Matter Jurisdiction Under the APA see also Watson v. North Tex. Higher Educ. Auth., Inc., In its first issue on appeal, the Department contends that No. 03–00–00139–CV, 2000 WL 1534905, at *9–10, 2000 the Appellees' claims are barred by sovereign immunity. Tex.App. LEXIS 7017, at *30–31 (Tex.App.-Austin Oct. 19, Specifically, the Department argues that the Appellees have 2000, pet. dism'd by agr.) (mem. op.) (affirming trial court's failed to assert a valid ultra vires claim sufficient to waive denial of plea to jurisdiction on sovereign-immunity grounds sovereign immunity. See City of El Paso v. Heinrich, in suit challenging agency rule under section 2001.038 and 284 S.W.3d 366, 372 (Tex.2009) (describing “ultra vires further affirming trial court's order temporarily enjoining exception” to sovereign immunity for suits alleging that state agency from enforcing rule). Allowing plaintiffs to challenge official acted without legal authority or failed to perform the validity of an agency rule but barring injunctive relief purely ministerial act). preventing application of the challenged rule would defeat the purpose of section 2001.038, which “is to obtain a final [5] However, if the Appellees have raised valid challenges declaration of a rule's validity before the rule is applied.” to the Department's rules under the APA, then we need Rutherford Oil Corp. v. General Land Office, 776 S.W.2d

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232, 235 (Tex.App.-Austin 1989, no writ). Therefore, we to be taken by Department staff in order to comply with hold that if the Appellees raised valid rule challenges under Rule 15.171 and outlines the methods by which non-citizens the APA, the trial court had subject-matter jurisdiction are to be issued driver's licenses indicating “status dates” to consider their claims for *904 both declaratory and as required by that rule. See Rule 15.171. The complainedinjunctive relief. To hold otherwise would nullify the relief of portion of the memorandum is a statement that nonafforded by section 2001.038 of the APA. See id. at 236 citizen driver's licenses will be produced “in a vertical card (stating that to hold that state agency could not be enjoined format with a red box around the photograph, a statement at from applying rule subject to validity challenge would the top of the card (‘Temporary Visitor’), and a secondary “wholly nullify” predecessor to section 2001.038 of APA). statement near the photograph which will include the [ ]

status expiration date.” Because the inclusion of a status [7] The Department further contends that in order to seek date is required by Rule 15.171, the memorandum does injunctive relief against the State, the Appellees must bring a not reflect rulemaking in connection with that issue, but valid ultra vires claim against a state official, as opposed to the merely reiterates what is already contained in Rule 15.171. agency itself. See Heinrich, 284 S.W.3d at 373. We disagree. The question then becomes whether the “Temporary Visitor” While the supreme court held in Heinrich that certain types of designation and the vertical format of the licenses described ultra vires suits must be brought against a state official, rather in the memorandum constitute improper agency rulemaking. than the State or its subdivisions, the court noted that this rule did not apply to “claims challenging the validity of ordinances [9] [10] [11] Not every administrative pronouncement or statutes,” because the UDJA “requires that the relevant is a rule within the meaning of the APA. See Texas Educ. government entities be made parties, and thereby waives Agency v. Leeper, 893 S.W.2d 432, 443 (Tex.1994). In immunity” for such validity claims. Id. at 373 n. 6 (citing order to be considered statements of “general applicability” Tex. Civ. Prac. & Rem.Code Ann. § 37.006(b)). Similarly, the as described in *905 section 2001.003(6), agency APA requires that the relevant state agency be made a party pronouncements must “affect the interest of the public at large to any action challenging the validity of an agency rule, and such that they cannot be given the effect of law without public thereby waives the agency's immunity with respect to such input.” Railroad Comm'n v. WBD Oil & Gas Co., 104 S.W.3d rule challenges. Tex. Gov't Code Ann. § 2001.038(c) (“The 69, 79 (Tex.2003). Agency statements that “have no legal state agency must be made a party to the action.”). effect on private persons” are not considered rules. Brinkley v. Texas Lottery Comm'n, 986 S.W.2d 764, 770 (Tex.App.- Austin 1999, no pet.).

2. Does the APA Apply? [8] Having determined that subject-matter jurisdiction is The Appellees have not identified any public interest in established by the APA for agency rule challenges, we must ensuring that all qualified applicants receive a horizontally now determine whether the Appellees actually raised valid oriented driver's license or a driver's license free from any rule challenges under the APA in this case. As a preliminary “Temporary Visitor” designation. 5 The Appellees have also matter, section 2001.038 requires that the challenged action failed to identify any legal effect on private persons as a result be “a rule.” See Tex. Gov't Code Ann. § 2001.038(a). While of the Department's policy. It is undisputed that the vertically there is no doubt that Rules 15.24 and 15.171 are agency oriented driver's licenses, including the “Temporary Visitor”

rules, a closer examination is required to determine whether designation, remain valid Texas driver's licenses, despite their the Department's September 2008 internal memorandum non-standard appearance. The Department's internal policy qualifies as a “rule” that may be challenged under the APA.

regarding the appearance of driver's licenses as outlined in the memorandum does not affect the interest of the public such Section 2001.003 of the APA defines a rule as a state that it cannot be altered without public input, nor does it have agency statement of general applicability that “implements, any legal effect on private persons. On that basis, we hold interprets, or prescribes law or policy” or “describes the that the Department's September 2008 memorandum does not procedure or practice requirements of a state agency.” Tex.

qualify as a rule under the APA. See WBD Oil & Gas Co., Gov't Code Ann. § 2001.003(6) (West 2008). The definition 104 S.W.3d at 79; Brinkley, 986 S.W.2d at 770; see also Tex.

of a rule “does not include a statement regarding only the Gov't Code Ann. § 2001.003(6).

internal management or organization of a state agency and not affecting private rights or procedures.” Id. The Department's September 2008 memorandum describes internal procedures

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Because the Department's internal memorandum does not with a “Temporary Visitor” designation, is a recognizable qualify as a rule under the APA, section 2001.038 does legally protected interest. On that basis, we hold that not confer subject-matter jurisdiction on the trial court to the Appellees have not established standing to challenge consider the Appellees' request for declaratory and injunctive the Department's September 2008 memorandum under the relief with respect to the memorandum. See generally UDJA, and therefore that the trial court lacked subject-matter Entertainment Publ'ns, 292 S.W.3d at 723 (first resolving jurisdiction to resolve the issue. issue of whether agency action constituted rule under APA in the affirmative before concluding that trial court had jurisdiction to consider validity challenge). 4. Standing Under the APA: Rules 15.24 and 15.171 [17] We now turn to the question of whether the Appellees have standing to challenge Rules 15.24 and 15.171 under the 3. Subject–Matter Jurisdiction Under the UDJA: The APA. 7 In order to have standing under section 2001.038, September 2008 Memorandum the Appellees must have alleged that the challenged rules or [12] [13] [14] While the Appellees also seek relief under their threatened application “interfere[ ] with or impair [ ], or the UDJA, the UDJA is not a general waiver of sovereign threaten[ ] to interfere with or impair, a legal right or privilege immunity and does not enlarge a trial court's jurisdiction. See of the plaintiff.” Tex. Gov't Code Ann. § 2001.038. Heinrich, 284 S.W.3d at 370; State of Texas v. BP Am. Prod. Co., 290 S.W.3d 345, 360 (Tex.App.-Austin 2009, pet. filed). [18] While a driver's license is not a legal right, it is Therefore, if the memorandum represents an act within the considered a privilege. See Texas Dep't of Pub. Safety legal authority and discretion of the Director, any challenge v. Schaejbe, 687 S.W.2d 727, 728 (Tex.1985). Appellees to the memorandum represents an attempt to control state Salazar, Soria, and Trejo have all alleged that due to their action and is barred by sovereign immunity. See Heinrich, immigration status, they are not eligible to obtain Texas 284 S.W.3d at 372. On the other hand, if a party alleges, and driver's licenses under Rules 15.24 and 15.171. Under these can ultimately prove, that a state official has acted outside his rules, a non-citizen's immigration documentation from the legal authority, that party's ultra vires claims are considered federal government must have been originally issued for a attempts to reassert the control of the State and are not barred period of at least one year. Salazar, Soria, and Trejo work in by sovereign immunity. 6 See id. the United States through the federal H–2B program on visas issued for a period of approximately ten months. While they *906 [15] [16] However, because the Appellees lack generally receive extensions from the federal government, the standing under the UDJA, we need not reach the issue of fact that their visas are originally issued for a period of less whether they have raised a valid ultra vires claim alleging than a year prevents them from obtaining a Texas driver's acts beyond the Director's authority. While private parties license under the new rules. As a result, Salazar, Soria, and may seek declaratory relief in connection with an alleged Trejo have demonstrated that the new rules interfere with ultra vires act, “[a] declaratory judgment requires a justiciable their privilege to obtain a Texas driver's license, giving them controversy as to the rights and status of parties actually standing to challenge *907 the rules under section 2001.038 before the court for adjudication, and the declaration sought of the APA. must actually resolve the controversy.” Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163–64 (Tex.2004). To establish [19] Green Meadows alleges that it relies on H–2B workers standing under the UDJA, the Appellees must show “a in conducting its landscaping business, and that due to the particularized, legally protected interest that is actually or seasonal nature of its business, the H–2B visas it requests imminently affected by the alleged harm.” Save Our Springs for its workers are valid for a period of ten months. Because Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, the visas held by the H–2B workers employed by Green 882 (Tex.App.-Austin 2010, no pet. h.). As discussed above, Meadows are valid for less than one year, these workers are the Appellees have not alleged any cognizable legal effect precluded from obtaining a Texas driver's license under the on private persons as a result of the Department's September new rules. According to Green Meadows, it cannot employ 2008 memorandum, as it merely alters the appearance of workers without driver's licenses as foremen, because the certain driver's licenses. The Appellees have not shown foremen must be able to drive work crews from one job that receipt of a Texas driver's license that is standard in site to another. Green Meadows further contends that the appearance, as opposed to vertically oriented and stamped

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Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

resulting shortage of foremen has prevented it from fulfilling was entitled to a standard license reflecting an expiration obligations to its landscaping customers. *908 date six years from the date it was issued, but that he was issued a vertically oriented license stamped “Temporary The ability of an employer to participate in federal guest- Visitor” by mistake. While this turn of events is unfortunate, worker programs, such as the H–2B program, is a privilege it is not an indication Rule 15.24 or Rule 15.171 impairs created by federal law. See 8 U.S.C.A. § 1101(a)(15)(H)(ii) or interferes with or threatens to impair or interfere with (a) (West Supp. 2009). Green Meadows has alleged that the Galvan's legal privilege to obtain a Texas driver's license. Department's new rules threaten to impair this privilege by Therefore, Galvan has not established standing to challenge preventing its H–2B employees from obtaining Texas driver's these rules. 9 licenses, thus limiting Green Meadows's ability to utilize these employees in its business. Therefore, we hold that Green In light of the foregoing, we hold that the trial court properly Meadows has sufficiently established standing to challenge exercised subject-matter jurisdiction over the challenges to the new rules under the APA. Rules 15.24 and 15.171 brought by Green Meadows, Salazar, Soria, and Trejo under section 2001.038 of the APA. The [20] Appellee Gomez, who holds a Texas Class B Appellees' challenge to the Department's September 2008 commercial driver's license, alleges that he was denied a memorandum, Gomez and Galvan's rule challenges, and all Class A driver's permit in March 2009 as a result of the claims raised pursuant to the UDJA, are dismissed for want Department's new rules, despite having taken and passed of jurisdiction. the required written examination. The record reflects that Gomez's immigration documentation is valid from March 10, 2009, to September 9, 2010. Gomez testified at the Temporary Injunction temporary-injunction hearing that he applied for the Class [22] We now turn to the Department's second issue on A permit sometime in March 2009. When asked whether appeal, in which it argues that the trial court abused its he applied for a Class A permit before or after March 10, discretion in determining that the Appellees established 2009, Gomez responded, “I think before.” However, the trial the elements necessary to entitle them to a temporary court later asked Gomez whether he provided the immigration injunction. 10 See Walling v. Metcalfe, 863 S.W.2d 56, 58 document entered into evidence—the document reflecting (Tex.1993) (stating that trial court's decision to grant or deny that his valid immigration status extends from March 10, temporary injunction is reviewed for abuse of discretion). “To 2009, to September 9, 2010—when applying for the license, obtain a temporary injunction, the applicant must plead and and Gomez answered, “Correct.” It is unclear why Gomez prove three specific elements: (1) a cause of action against the was denied the Class A permit, as his immigration document defendant; (2) a probable right to the relief sought; and (3) was valid for more than one year at the time it was issued a probable, imminent, and irreparable injury in the interim.” and remained valid for more than six months at the time Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). he applied for the license. If the problem stemmed from his applying for the license prior to the March 10, 2009 In support of the argument that they would suffer a effective date of his immigration document, it would have probable, imminent, and irreparable injury in the absence of been remedied on that date, and in fact, Gomez's immigration a temporary injunction, Salazar, Soria, and Trejo contend document remains sufficient to obtain a license under the new that the Department's new rules prevent them from obtaining rules until March 2010, at which time it will no longer have Texas driver's licenses, which in turn prevents them from six months of validity remaining. Because Gomez has not receiving promotions at work and forces them to rely on established that Rules 15.24 and 15.171 have interfered with others for transportation to work or to obtain medical care or impaired his ability to obtain a Class A license, we hold that if needed. Green Meadows argues that application of the he lacks standing to challenge Rule 15.24 and 15.171 under Department's rules would disrupt its business by restricting the APA. 8 the number of employees that can act as foremen and drive work crews to various job sites.

[21] Similarly, appellee Galvan has not established that the Department's new rules have impaired or interfered with The Department asserts, however, that even viewing the a legal right or privilege. The Department concedes that evidence in the light most favorable to the trial court's order, Galvan, as a legal permanent resident of the United States, as we must to do in reviewing a temporary injunction, see

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[29] Salazar, Soria, and Trejo further argue that because CRC–Evans Pipeline Int'l, Inc. v. Myers, 927 S.W.2d 259, 262 they are unable to obtain Texas driver's licenses, they are (Tex.App.-Houston [1st Dist.] 1996, no writ), the Appellees unable to seek promotions at work, as the position of foreman have failed to establish a probable, imminent, and irreparable requires a driver's license. Salazar, Soria, and Trejo have injury that they would suffer in the absence of a temporary presented no evidence that they are otherwise qualified or injunction.

eligible for a promotion to the position of foreman. As a [23] [24] [25] [26] Establishing probable, imminent,result, their inability to seek a possible promotion without a Texas driver's license does not represent an imminent injury, and irreparable injury requires proof of an actual threatened but a speculative or merely conjectural one. See Butnaru, 84 injury, as opposed to a speculative or purely conjectural S.W.3d at 204 (stating that applicant for temporary injunction one. Dallas General Drivers, Warehousemen & Helpers v.

has burden of pleading and proving probable, imminent, and Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (1956).

irreparable injury). Therefore, we hold that Salazar, Soria, Fear or apprehension of possible injury is insufficient to and Trejo do not meet the required elements of temporary support a finding of imminent injury. Frey v. DeCordova injunctive relief.

Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex.1983). The question of whether a probable, imminent, *909 and [30] Similarly, Green Meadows's assertion that it will irreparable injury exists to warrant injunctive relief is a legal eventually run out of employees eligible to work as foremen question for the court. Operation Rescue–National v. Planned is merely conjectural, and does not represent the type of Parenthood, 975 S.W.2d 546, 554 (Tex.1998). Furthermore, imminent, irreparable injury required to qualify for temporary a temporary injunction will not be granted “where there is a injunctive relief. Furthermore, while Green Meadows argues plain and adequate remedy at law.” McGlothlin v. Kliebert, that it is harmed by its inability to promote from within the 672 S.W.2d 231, 232 (Tex.1984).

company, there is no indication that Green Meadows is in [27] [28] To the extent Salazar, Soria, and Trejo cite their any way precluded from hiring additional employees who possess valid Texas driver's licenses to serve as foremen.

inability to drive in Texas for purposes of driving to work, As a result, Green Meadows has *910 not shown that obtaining food and other necessities, or seeking medical care its inability to promote from within creates a probable, if necessary, there are alternatives to a standard Texas driver's imminent, and irreparable injury for which there is no other license that create an adequate remedy to this potential harm.

adequate remedy.

Section 521.030 of the transportation code provides that a non-resident from an approved country of residence who Based on our conclusion that the Appellees have failed to holds a license in his or her country of residence may rely establish the existence of a probable, imminent, irreparable on that reciprocal license to legally drive in Texas without injury for which there is no adequate remedy, we hold that the obtaining a Texas driver's license. Tex. Transp. Code Ann.

trial court abused its discretion in temporarily enjoining the § 521.030 (West 2007). Mexico, the country of residence Department from enforcing Rules 15.171 and 15.24.

for Salazar, Soria, and Trejo, is on the list of approved countries for the use of reciprocal licenses. See 37 Tex. Admin. Code § 15.91(b)(6) (2009) (Tex. Dep't of Pub. Safety, Int'l Reciprocity). Rule 15.91 also provides that “[r]eciprocal CONCLUSION privileges are limited to private vehicles. Carriage of ... goods other than personal baggage of the occupants of the We hold that the challenges to Rules 15.24 and 15.171 vehicles is not authorized.” Id. § 15.91(d)(2). This would brought by Green Meadows, Salazar, Soria, and Trejo are appear to exclude any transporting of landscaping work not barred by sovereign immunity. However, because the crews and their equipment. However, for everyday driving necessary elements for temporary injunctive relief were not purposes, the statute and regulation authorizing reciprocal met, we reverse the trial court's order issuing injunctive relief licenses foreclose Salazar, Soria, and Trejo from arguing that with respect to those claims. All of Appellees' remaining in the absence of a temporary injunction, they would suffer claims are dismissed for lack of subject-matter jurisdiction on imminent, irreparable injury for which there is no adequate the basis of sovereign immunity. remedy. 11

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Texas Dept. of Public Safety v. Salazar, 304 S.W.3d 896 (2009)

Footnotes 1 We substitute Lt. Col. Lamar Beckworth, in his official capacity, as successor to Stanley E. Clark, former director of the Texas Department of Public Safety. See Tex.R.App. P. 7.2.

2 Since 2006, subsection (1)(F) of Rule 15.24 has provided that a federally issued Form I–94 could only be used to establish identity if it was originally issued for at least one year and has at least six months of validity remaining at the time of the license application. Subsection (1)(F) is not at issue in this appeal.

3 The federal H–2B program allows employers in non-agricultural businesses to petition the federal government for permission to hire temporary labor and service workers from other countries if those positions cannot be filled by persons in the United States. See 8 U.S.C.A. § 1101(a)(15)(H)(ii)(a) (West Supp.2009).

4 Temporary protected status (TPS) is granted to eligible nationals of designated countries who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary condition. See id. § 1254a (West 2005).

5 Licenses issued to individuals under the age of 21 are vertically oriented as required by statute. See Tex. Transp. Code Ann. § 521.123 (West 2007) (requiring Department to “orient the information on the license to clearly distinguish the [under 21] license from a license that is issued to a person who is 21 years of age or older”).

6 As the supreme court explained in Heinrich, ultra vires suits may only be brought against the relevant government actors in their official capacity, rather than the state agency itself. See 284 S.W.3d at 373. Therefore, even if we determine that the Appellees have raised a valid ultra vires claim with respect to the September 2008 memorandum, that claim remains barred by sovereign immunity to the extent it is brought against any party other than the Director of the Department.

7 To the extent the Appellees also seek relief under the UDJA in connection with these rule challenges, we dismiss those claims for want of jurisdiction on the ground that a party may not seek relief under the UDJA when such relief would be redundant to relief under the APA. See Texas State Bd. of Plumbing Exam'rs v. Associated Plumbing–Heating–Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex.App.-Austin 2000, pet. dism'd by agr.) (“When a plaintiff files a proceeding that only challenges the validity of an administrative rule, the parties are bound by the APA and may not seek relief under the UDJA because such relief would be redundant.”).

8 For the same reason, even if we considered Gomez's rule challenge to be a valid ultra vires claim under the UDJA, he has failed to establish a justiciable controversy and therefore lacks standing under the UDJA as well.

9 Like Gomez, Galvan has also failed to establish a justiciable controversy that would give him standing under the UDJA in the event of a valid ultra vires claim regarding the Department's rules.

10 In light of our holding on the jurisdictional question, we need only determine whether Green Meadows, Salazar, Soria, and Trejo established the elements necessary to entitle them to a temporary injunction, as the remaining appellees have been dismissed.

11 Based on the testimony provided at the temporary-injunction hearing, it appears that Salazar holds a license from Mexico, but that Soria and Trejo do not. However, the question at issue here is whether an adequate remedy is available, not whether the parties have actually availed themselves of that remedy. Furthermore, “[t]he lack of an adequate remedy is not shown by the mere fact that the remedy provided would involve more expense or delay.” Kendall Appraisal Dist. v. Cordillera Ranch, Ltd., No. 04–03–00150–CV, 2003 WL 21696901, at *3, 2003 Tex.App. LEXIS 6293, at *10 (Tex.App.-San Antonio July 23, 2003, no pet.) (citing Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994)).

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Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011) 55 Tex. Sup. Ct. J. 42

Opinion 355 S.W.3d 618 Supreme Court of Texas. PER CURIAM.

TEXAS DEPARTMENT OF [1] At issue in this case is whether sovereign immunity TRANSPORTATION, Petitioner, bars Roger Sefzik's lawsuit seeking declaratory relief under v. the Uniform Declaratory Judgments Act (UDJA) against the Roger SEFZIK, Respondent. Texas Department of Transportation (TxDOT). In City of El Paso v. Heinrich, we dismissed claims *620 seeking No. 08–0943. | Oct. 21, 2011. declaratory and injunctive relief against governmental entities as barred by sovereign immunity. 284 S.W.3d 366, 380 Synopsis (Tex.2009). The court of appeals relied on our pre-Heinrich Background: Applicant for permit to erect outdoor- ultra vires precedent to conclude that declaratory judgment advertising sign brought suit against Texas Department actions do not implicate sovereign immunity. We reverse of Transportation (TxDot), seeking declaration that and hold that state agencies, like TxDOT here, are immune Administrative Procedure Act's (APA's) provisions from suits under the UDJA unless the Legislature has waived governing “contested cases” applied to TxDot's denial of immunity for the particular claims at issue. However, because his application and alleging that denial of contested-case Sefzik's claim was filed pre-Heinrich, we remand the case to proceeding violated due process. The 53rd District Court, the trial court so that Sefzik has a reasonable opportunity to Travis County, Suzanne Covington, J., granted TxDot's assert an ultra vires claim against state officials. plea to jurisdiction based on sovereign immunity. Applicant appealed. The Corpus Christi - Edinburg Court of Appeals, In March 2005, Sefzik filed a permit application with 267 S.W.3d 127, affirmed in part and reversed and remanded TxDOT to erect an outdoor advertising sign along Interstate in part. Review was granted. 30. A few weeks later, another company filed a similar application, seeking to create a sign in the same area. After reviewing the conflicting applications, TxDOT found that [Holding:] The Supreme Court held that the sovereign Sefzik's permit was invalid. Under former section 21.142 of immunity of the Texas Department of Transportation was not the Texas Administrative Code, applicants for sign permits waived. were required to verify that a sign would be near adjacent commercial or industrial activities that had been open for at least ninety days. See 43 TEX. ADMIN. CODE § 21.142(2)

Court of Appeals reversed in part; remanded to trial court. (K), (30) (2008) (Tex. Dep't of Transp., Definitions) repealed 36 Tex. Reg. 2418 (2011) (proposed Dec. 2, 2010). When TxDOT received Sefzik's application, one of the businesses Attorneys and Law Firms he listed was only open for seventy-eight days. TxDOT denied Sefzik's application and approved the competing bid.

*619 Beth Ellen Klusmann, Assistant Solicitor General, Betsy Jane Johnson, Office of the Attorney General, Austin, Sefzik appealed to TxDOT's Executive Director, Michael James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, David Behrens, and requested an oral hearing. Behrens denied S. Morales, Office of the Attorney General of Texas, Deputy Sefzik's appeal without holding a hearing, and explained First Assistant Attorney General, Kent C. Sullivan, 14th that TxDOT had discretion to deny Sefzik's invalid permit Court of Appeals, Greg W. Abbott, Attorney General and application. Sefzik filed a motion for rehearing, arguing, inter Clarence Andrew Weber, Kelly Hart & Hallman LLP, Austin, alia, that he was entitled to a hearing under the Administrative for Texas Department of Transportation.

Procedure Act's (APA) “contested case” procedures. See J. Allen Smith, Scott J. Conrad, Bradley E. McLain, Settle TEX. GOV'T CODE § 2001.051. TxDOT did not respond, Pou, Dallas and Clyde Russell Woody, Hartzog Conger and the motion was eventually overruled by operation of law. Cason & Neville, Oklahoma City, OK, for Roger Sefzik.

Sefzik then filed suit against TxDOT but did not join Behrens or any other TxDOT official. Sefzik sought relief under the

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Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011) 55 Tex. Sup. Ct. J. 42

UDJA, requesting that the district court declare the APA's asked the courts to declare that the defendants acted without 1 authority in taking such action. Id. Our precedent made clear “contested case” procedures entitled him to a hearing. TxDOT filed a plea to the jurisdiction, arguing that sovereign that “suits to require state officials to comply with statutory immunity barred Sefzik's suit. The district court granted the or constitutional provisions are not prohibited by sovereign plea to the jurisdiction and denied Sefzik's motion for a new immunity.” Id. at 372. While we recognized that these suits trial. Sefzik appealed. are against the state for all practical purposes, we held that they “cannot be brought against the state, which retains A divided court of appeals reversed, holding that declaratory immunity, but must be brought against the state actors in their judgment claims do not implicate sovereign immunity and official capacity.” Id. at 373. Thus, we allowed Heinrich to thus TxDOT was a proper party to the UDJA action. 267 pursue claims for prospective relief against the state officials, S.W.3d 127, 132–34 (“[W]hen a private plaintiff merely but we dismissed the claims against the city and the other seeks a declaration of his or her rights under a statute, such an governmental entities. Id. at 379–80. action is not subject to a sovereign immunity defense, and a waiver or consent to suit is unnecessary.”). Having concluded [6] [7] [8] Two points from Heinrich are relevant here. that the UDJA does not implicate sovereign immunity, the First, Heinrich held that the proper defendant in an ultra court of appeals did not decide whether the UDJA or the APA vires action is the state official whose acts or omissions waives immunity. allegedly trampled on the plaintiff's rights, not the state agency itself. Id. at 372–373. Sefzik did not sue any state [2] [3] [4] Reviewing the immunity question de novo, official. 2 Instead, he argues that the court of appeals correctly see Harris County Hosp. Dist. v. Tomball Reg'l Hosp., exempted UDJA actions seeking a declaration of rights from 283 S.W.3d 838, 842 (Tex.2009), we conclude that, under the application of the sovereign immunity doctrine. The Heinrich, sovereign immunity bars UDJA actions against second point from Heinrich dictates otherwise. As noted, the state and its political subdivisions absent a legislative we dismissed Heinrich's claims seeking declaratory and waiver. Heinrich clarified an area of the law that had been injunctive relief against governmental entities, brought under unclear, namely, the intersection between the doctrine of the UDJA, because the entities were immune. In so doing, sovereign immunity and the ultra vires exception to it. While we necessarily concluded that the UDJA does not waive the doctrine of sovereign immunity originated to protect the the state's sovereign immunity when the plaintiff seeks a public fisc from unforeseen expenditures that could hamper declaration of his or her rights under a statute or other law. governmental functions, see Tex. Natural Res. Conservation Very likely, the same claim could be brought against the Comm'n v. IT–Davy, 74 S.W.3d 849, 854 (Tex.2002), it has appropriate state official under the ultra vires exception, but been used to shield the state from lawsuits seeking other the state agency remains immune. See id. at 372–73. As we forms of relief, see, e.g., W.D. Haden Co. v. Dodgen, 158 have consistently stated, the UDJA does not enlarge the trial Tex. 74, 308 S.W.2d 838, 839 (1958) (“[T]he rule of state court's jurisdiction *622 but is “merely a procedural device immunity from suit without its consent applies to suits under for deciding cases already within a court's jurisdiction.” Tex. the Uniform Declaratory Judgments Act....”). Concomitant Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 to this rule, however, is the ultra vires exception, under (2011) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 which claims may be brought against a state official for S.W.2d 440, 444 (Tex.1993)). Accordingly, the underlying nondiscretionary acts unauthorized by law. See, e.g., Fed. action, if against the state or its political subdivisions, must Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997). Such be one for which immunity has expressly been waived. lawsuits are not against the state and thus are not barred by sovereign immunity. Id. [9] [10] [11] Although the UDJA waives sovereign immunity in particular cases, Sefzik's claim does not fall [5] In Heinrich, we addressed which governmental entities within the scope of those express waivers. For example, the —the state, its subdivisions, or the relevant government actors state may be a proper party to a declaratory judgment action in their official capacities—are proper parties to a suit seeking that challenges the validity of a statute. Heinrich, 284 S.W.3d declaratory relief for an ultra vires action. 284 S.W.3d at 371– at 373 n. 6 (citing TEX. CIV. PRAC. & REM.CODE § 73. Heinrich sued the City of El Paso and various government 37.006(b)); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d officials, claiming the defendants violated her statutory rights 692, 697–98 (Tex.2003); Tex. Educ. Agency v. Leeper, 893 when they altered her pension benefits. Id. at 369–70. She S.W.2d 432, 446 (Tex.1994). 3 But Sefzik is not challenging

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Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011) 55 Tex. Sup. Ct. J. 42

went on to provide that “[p]ermits will be considered on the validity of a statute; instead, he is challenging TxDOT's a first-come, first-serve basis.” Id. § 21.150 (2008) (Tex.

actions under it, and he does not direct us to any provision of Dep't of Transp., Permits) repealed 36 Tex. Reg. 2418 the UDJA that expressly waives immunity for his claim. 4 (proposed Dec. 2, 2010). If the first application was denied, the Administrative Code specified that other applications [12] Sefzik also suggests that the APA provides a guide would be considered “between the time a denied application for analyzing the application of sovereign immunity to his is returned to the applicant and the time it is resubmitted.” Id.

case. The APA's declaratory judgment provision allows a Sefzik contends that his application was the only one on file plaintiff to challenge the validity or applicability of a rule.

on the 90th day; thus, in denying his permit, TxDOT officials See TEX. GOV'T CODE § 2001.038(a), (c) (“The validity failed to perform a purely ministerial duty.

or applicability of a rule ... may be determined in an action for declaratory judgment if it is alleged that the rule or its [13] When this Court upholds a plea to the jurisdiction threatened application interferes with or impairs ... a legal on sovereign immunity grounds, we allow the plaintiff the right or privilege of the plaintiff.... The state agency must opportunity to replead if the defect can be cured. See, e.g., be made a party to the action.”). While the APA may waive Sawyer Trust, 354 S.W.3d. at 392 (citing Tex. A & M Univ.

sovereign immunity, an issue we do not decide here, Sefzik Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007)). As does not challenge the validity or applicability of any agency mentioned, Sefzik did not sue any state officials; however, rule. Instead, he challenges the application of the APA's Sefzik brought his claim pre-Heinrich. As we have observed, contested case procedures, which are established by statute.

our decisions prior to Heinrich were “less than clear” as to As noted in his brief, Sefzik's claim is broader than the who the proper party was in a suit for declaratory remedy, APA's scope. Moreover, the APA's mechanism for seeking as well as the parameters of the ultra vires exception to the a declaration of rights does not trump Heinrich's conclusion doctrine of sovereign immunity. See Heinrich, 284 S.W.3d that the state is generally immune from declaratory actions at 373. In light of our clarifications to this area of the law in brought under the UDJA. Accordingly, section 2001.038 Heinrich, Sefzik should have an opportunity to replead in an does not carry Sefzik's claim over the hurdle of sovereign attempt to cure the jurisdictional defects in his petition. We immunity.

thus remand the case to allow Sefzik this opportunity without expressing any opinion on the merits of such a claim. See In the event that we reverse the court of appeals' judgment, Sawyer Trust, 354 S.W.3d at 393.

Sefzik urges this Court to remand the case so that he can replead an ultra vires claim within the trial court's Accordingly, without hearing oral argument, TEX. R. APP.

jurisdiction. If given that opportunity, Sefzik asserts he P. 59. 1, we reverse in part the court of appeals' judgment, would plead a claim against TxDOT officials for improperly and remand the case to the trial court in accordance with this denying his permit. As mentioned previously, under the opinion.

former Administrative Code provisions governing this case, applicants for sign permits were required to verify that a sign would be near adjacent commercial or industrial activities which had *623 been open for at least ninety days. See Justice JOHNSON did not participate in the decision. 43 TEX. ADMIN. CODE § 21.142(2)(K), (30) (2008) (Tex.

Parallel Citations Dep't of Transp., Definitions) repealed 36 Tex. Reg. 2418 (2011) (proposed Dec. 2, 2010). The Administrative Code 55 Tex. Sup. Ct. J. 42

Footnotes 1 Sefzik also alleged that TxDOT's actions violated his due process and equal protection rights under the United States and Texas Constitutions. The court of appeals ultimately affirmed the district court's dismissal on those issues, 267 S.W.3d at 135–38, and Sefzik did not petition this Court to review that decision.

2 Although Sefzik refused to apply the ultra vires label to his suit below, that is the underlying nature of his claim. The relief he seeks —a declaration that he is entitled to a hearing—is directly related to whether Behrens acted outside the scope of his authority in denying a hearing. That is, Sefzik ultimately wishes to compel a government official (Behrens) to perform some act that he considers to be nondiscretionary (holding a hearing). That relief falls within the ultra vires rationale.

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Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (2011) 55 Tex. Sup. Ct. J. 42

3 We have recognized this waiver because the UDJA expressly requires joinder of the governmental unit. See TEX. CIV. PRAC. & REM.CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party ... and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.”); Leeper, 893 S.W.2d at 446 (“The DJA expressly provides that ... governmental entities must be joined or notified.”). This reasoning is consistent with the requirement that the Legislature expressly waive immunity with “clear and unambiguous” language. TEX. GOV'T CODE § 311.034; Taylor, 106 S.W.3d at 696.

4 On “rare occasions,” we may recognize a waiver absent explicit language. Taylor, 106 S.W.3d at 697. Sefzik has not argued that we should infer a waiver of immunity under the UDJA, so we do not consider that possibility.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

Opinion 848 S.W.2d 298 Court of Appeals of Texas, KIDD, Justice.

Austin.

The University Interscholastic League and its Executive UNIVERSITY INTERSCHOLASTIC Director, Bailey Marshall, *300 (collectively hereinafter LEAGUE and Bailey Marshall, Appellants, the “UIL”) appeal the judgment of the trial court granting a v. permanent injunction against the enforcement of the UIL's Bruce LaFeyette BUCHANAN, et al., Appellees. over–19 rule. 1 We will affirm the judgment of the district UNIVERSITY INTERSCHOLASTIC LEAGUE court.

and Dr. Bailey Marshall, Appellants, v.

Phillip Earl BOMAR, Jr., et al., Appellees. FACTUAL BACKGROUND

Nos. 3–92–108–CV, 3–92–161–CV. | Feb. 3, Composed of representatives of Texas school districts, the 1993. | Rehearing Overruled March 31, 1993. UIL is a voluntary organization that regulates, among other things, the competitive athletics of the junior and senior Learning disabled high school athletes sought to permanently high school student athletes in Texas. This case involves enjoin organization regulating high school athletics from a challenge to section 400(a) of the UIL Constitution and enforcing rule precluding participation by athletes over 19 Contest Rules (the “over–19 rule”) which states: “Subject to years old. The 331st and 53rd Judicial District Courts, the other sections of this subchapter, an individual is eligible Travis County, B.B. Schraub, J., granted the injunction, and to participate in a League varsity contest as a representative of organization appealed. The Court of Appeals, Kidd, J., held a participant school if that individual ... is less than 19 years that: (1) athletes were “disabled” under Rehabilitation Act; old on September 1 preceding the contest....” (2) organization failed to reasonably accommodate athletes by not allowing exceptions to rule; (3) students' failure The UIL states that the underlying purpose of the over– to exhaust remedies under Individuals with Disabilities 19 rule is to ensure the safety of the participating student Education Act did not deprive trial court of jurisdiction; and athletes and the equality of competitors. It argues that one (4) “public interest exception” to mootness doctrine permitted policy justification for the over–19 rule is the avoidance of review. potential injury which might result if younger, less developed high school students are required to compete against older Affirmed. students. Furthermore, the UIL argues that the over–19 rule discourages the practice of “redshirting,” i.e., having students repeat grades so that they will be more mature and better Attorneys and Law Firms athletes during their high school years. The UIL permits no *299 William C. Bednar, Jr., Eskew, Muir & Bednar, exception to or waiver of the over–19 rule based on special Austin, for University Interscholastic League. circumstances of individual students.

James R. Raup, McGinnis, Lochridge & Kilgore, Austin, for Appellees, Bruce Buchanan and Phillip Bomar (the Austin Independent School Dist. and Dr. Jim Hensley. “Students”), obtained permanent injunctions allowing them to participate in the 1991 football season. The final judgments Diane M. Henson, Graves, Dougherty, Hearon & Moody, rendered in these causes stated that the over–19 rule violated Austin, for Bruce LaFeyette Buchanan and Phillip Earl Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. Bomar, Jr. § 794 (West Supp.1992) (“Section 504”), as applied to the Students. Section 504 provides in pertinent part:

Leonard J. Schwartz, Schwartz & Eichelbaum, P.C., Austin, for Dallas Independent School Dist. and Dr. Marvin E. No otherwise qualified individual Edwards. with handicaps in the United States, as defined in section 706(8) of Before CARROLL, C.J., and JONES and KIDD, JJ.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied CROSS–CLAIMS OF THE SCHOOL DISTRICTS the benefits of, or be subjected to discrimination under any program or Both school districts filed cross-claims against the UIL, activity receiving Federal financial stating that the UIL's mandatory forfeiture rule caused them assistance.... to violate the rights of the Students. Section 700(a)(2)(C)

(ii) of the UIL Constitution and Contest Rules (the UIL's 29 U.S.C.A. § 794.

“mandatory forfeiture rule”) provides that if a school allows a student who is finally determined ineligible to participate The factual bases for the permanent injunctions involving the in a UIL contest under a court order, the school must forfeit Students are as follows.

all contests in which the student participated. In the past, the UIL has enforced the mandatory forfeiture rule to require Bruce Buchanan that a school forfeit all of its contests in which the litigating Buchanan turned nineteen years old before he entered the student participated even though the student's participation twelfth grade at Travis High School of the Austin Independent was pursuant to a lawful court-ordered injunction. 3 School District (“Austin ISD”). Because he had learning disabilities, he had repeated the first and seventh grades. In October 1991, the trial court issued temporary orders During ninth grade, Buchanan began participating in his enjoining the enforcement of the over–19 rule against the school's football program. Although he was nineteen at the Students and the mandatory forfeiture rule against Austin ISD start of his senior year, Buchanan was below the average and Dallas ISD. These two causes were then consolidated weight and height of his team members, and he never was a for purposes of trial and appeal. After a trial on the merits, starter on the team. the district court rendered a final judgment in favor of the Students and the school districts, enjoining the enforcement Both Buchanan's mother and his Admission, Review and of the two rules. Dismissal (ARD) Committee 2 requested a waiver from the over–19 rule. The UIL responded that there were “no rules From this judgment, the UIL appeals bringing forth four which allow for a waiver of the 19–year–old rule.” Buchanan points of error. instituted this lawsuit against the UIL and its director, and later joined Austin ISD and Dr. *301 Jim Hensley, the Superintendent of Austin ISD, as defendants in the suit to IMPACT OF THE REHABILITATION enjoin the enforcement of the rule. ACT ON THE OVER–19 RULE

[1] [2] In order to obtain injunctive relief, an applicant Phillip Bomar must establish the existence of a wrongful act, imminent Bomar was also nineteen years of age at the start of his senior harm, and irreparable injury, and the absence of an adequate year. He had repeated his fourth and seventh grades, and was remedy at law. Hues v. Warren Petroleum Co., 814 classified by his school district, Dallas Independent School S.W.2d 526, 529 (Tex.App.—Houston [14th Dist.] 1991, writ District (“Dallas ISD”), as learning disabled. Like Buchanan, denied); Priest v. Texas Animal Health Comm'n, 780 S.W.2d Bomar began playing football for his high school, Justin F. 874, 875 (Tex.App.—Dallas 1989, no writ). The decision Kimball High School. Bomar was average in size compared to grant or deny a permanent injunction lies within the trial to the other members of his football team and was a starting court's sound discretion, and appellate review is restricted to linebacker during his junior year of high school. whether the action involved a clear abuse of discretion. Hues, 814 S.W.2d at 529; Priest, 780 S.W.2d at 875.

Bomar's mother and high school principal applied for a waiver of the over–19 rule for Bomar, which the UIL refused. In [3] [4] The UIL argues in its first two points of error that response, Bomar filed this action against the UIL, its director, the trial court erred in granting the permanent injunctions Dallas ISD, and Dr. Marvin Edwards, the Superintendent of against the over–19 rule and in awarding attorneys' fees. 4 In Dallas ISD.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

its first point of error, the UIL alleges that the rule does not Although the UIL provides a waiver procedure for some discriminate solely on the basis of the Students' handicaps; eligibility rules, e.g., the four-year eligibility rule, it fails the UIL maintains that the Students are ineligible due to their to furnish such a process for the over–19 rule. Since the ages which are determined by their birth dates. The rule and UIL already utilizes a waiver procedure for some rules, the its purposes, it contends, apply equally to both handicapped evidence indicates that instituting such a procedure for the and non-handicapped students. over–19 rule might be a reasonable accommodation in the UIL program to ensure that handicapped persons achieve *302 We agree that the UIL's enforcement of its over–19 meaningful access to the competitions regulated by the UIL. rule as to these Students was not on the basis of a current We find the U.S. District Court's reasoning on this issue in handicap or because of a history of being handicapped. Booth v. University Interscholastic League, No. A–90–CA– However, the record clearly demonstrates that both Students 764 (W.D.Tex. Oct. 4, 1990) (case dismissed as moot Jan. 14, repeated grades in school because of learning disabilities. 1991), particularly persuasive: Had they not experienced difficulties in the classroom and progressed through school at a pace slower than most [T]o uphold the [UIL's] blanket policy students, they would have turned nineteen after September 1 against consideration of the Plaintiff's of their senior year and thus would have been age-eligible to circumstances in this case would be participate in interscholastic athletics. to undermine the objectives of the Rehabilitation Act without advancing The United States District Court, in Doe v. Marshall, 459 the policies behind the 19 year-old F.Supp. 1190 (S.D.Tex.1978), vacated and remanded on eligibility rule. There is no evidence other grounds, 622 F.2d 118 (5th Cir.1980), cert. denied, before the Court to suggest that the [UIL] bases its decision to bar the 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855 (1981), 5 Plaintiff from playing high school invoked a balancing test of the harms inflicted upon the football on any particular harm that various parties in its determination of whether to grant a might result if he is allowed to preliminary injunction of a UIL rule. Id. at 1192. In the play, or on anything other than a present cases, evidence demonstrated that the Students would policy of strictly enforcing its rules.

benefit emotionally by participating in competitive athletics.

But the Rehabilitation Act requires The evidence did not show that these Students had been that federally assisted programs do involved in redshirting or that they presented a danger to other more for those who fall within its student athletes; the concerns that made the rule necessary ambit. For these reasons, requiring the are not present in these causes and the UIL is not harmed.

[UIL] to give special consideration Thus, the equities before the trial court weighed in favor of to the Plaintiff based on his history enjoining the enforcement of the rule.

of being handicapped is a reasonable accommodation.

The United States Supreme Court has stated that “an otherwise qualified handicapped individual must be provided Booth, at 11–12. The Students in these causes are entitled with meaningful access to the benefit that the grantee offers.... to special consideration by the UIL to guarantee that [T]o assure meaningful access, reasonable accommodations the objectives of Section 504 are effectuated. A waiver in the grantee's program or benefit may have to be made.” mechanism for the over–19 rule would permit the UIL to Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, consider the facts of particular situations in order to make 83 L.Ed.2d 661 (1985) (discussing Southeastern Community individualized determinations as to the enforcement of the College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d rule. Such determinations are reasonable accommodations 980 (1979)) (emphasis added). Furthermore, the United States which would advance both the purposes of Section 504 Court of Appeals in Brennan v. Stewart, 834 F.2d 1248, 1262 and the policies behind the over–19 rule. Under *303 (5th Cir.1988), concluded that “our precedent requires that the these factual circumstances, the “no-exception” policy to ‘reasonable accommodation’ question be decided as an issue the over–19 rule must yield to Section 504's reasonable of fact....” accommodation requirement established by the United States Supreme Court in Alexander.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

Accordingly, we hold that the trial court did not abuse its discretion in enjoining the enforcement of the over–19 rule. Points of error one and two are overruled.

MANDATORY FORFEITURE RULE

In its fourth and final point of error, the UIL contends that EXHAUSTION OF REMEDIES the trial court erred in enjoining the mandatory forfeiture rule and in awarding attorneys' fees. It insists that “the rule is [5] In its third point of error, the UIL alleges that, because reasonably related to a legitimate state purpose and is not the Students did not exhaust the administrative remedies arbitrary, capricious, or fundamentally unfair.” under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C.A. §§ 1400–1484 (West Supp.1992), 6 Issue of Mootness the district court lacked jurisdiction over the causes.

The Students reurge this Court to dismiss the appeal as Specifically, it complains that the Students did not comply with section 1415(f) of the IDEA which states, “before the moot. 8 They argue that since the 1991 football season has filing of a civil action under [the Rehabilitation Act and] ended and they have graduated, an active controversy *304 such laws seeking relief that is also available under this no longer exists. The school districts respond by urging that subchapter, the procedures under subsections (b)(2) and (c) of such action on our part would vacate the trial court's judgment this section shall be exhausted to the same extent as would be and would permit the UIL to invoke the sanctions contained required had the action been brought under this subchapter.” in the mandatory forfeiture rule. 20 U.S.C.A. § 1415(f). The applicable remedy under this statute consists of a due process hearing and subsequent [6] [7] [8] The mootness doctrine is well established. review for any complaint raised by a handicapped child or Appellate courts only determine cases in which an actual its parents regarding the child's education. 20 U.S.C.A. § controversy exists. Camarena v. Texas Employment Comm'n, 1415(b)(2), (c). The UIL maintains that the Students did not 754 S.W.2d 149, 151 (Tex.1988); Texas Educ. Agency, 797 comply with this prerequisite for civil suits because they did S.W.2d at 369. The issue of whether an injunction is valid not request a due process hearing to contest the exclusion of becomes moot when the injunction does not continue to have effect. See Parr v. Stockwell, 322 S.W.2d 615, 616 interscholastic athletics from their IEPs. 7 (Tex.1959); Texas Educ. Agency, 797 S.W.2d at 369; Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.App.—

The Students respond that the IDEA and Section 504 Houston [1st Dist.] 1988, no writ). An appellate court must are different statutes with different purposes. They urge set aside the judgment and dismiss the cause when an appeal that while the IDEA strives to assure that handicapped is moot. Texas Educ. Agency, 797 S.W.2d at 369; Texas Parks children receive appropriate free public education, Section & Wildlife Dep't v. Texas Ass'n of Bass Clubs, 622 S.W.2d 504 prohibits discrimination against handicapped persons.

594, 596 (Tex.App.—Austin 1981, writ ref'd n.r.e.).

See Smith v. Robinson, 468 U.S. 992, 1016, 104 S.Ct. 3457, 3470, 82 L.Ed.2d 746 (1984). The Students argue that their [9] Two exceptions to the mootness doctrine currently complaint is against the UIL for discrimination on the basis exist: (1) the “capable of repetition exception” and (2) the of their handicaps, not against the school districts for denial “collateral consequences exception.” General Land Office v.

of a free appropriate public education; hence, relief was only OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990). However, available under Section 504. They argue that, because the UIL neither exception applies to these causes. See Spring Branch is not vested with the duty to provide a free appropriate public I.S.D., 764 S.W.2d at 18–19.

education under the IDEA, the Students could not assert their action against the UIL under the IDEA. The record reflects The UIL urges this Court to avoid dismissal by adopting that the school districts applied to the UIL for waivers to the a new exception to the mootness doctrine, the “public rule which the UIL denied. Therefore, the Students and their interest exception.” According to the UIL, thirty-six states school districts acted in accordance with the UIL rules, and have recognized the “public interest exception,” which the cause of action was governed by Section 504 and not the allows appellate review of a question of considerable public IDEA. We agree with the Students regarding this exhaustion importance if that question is capable of repetition between of remedies point, and thus we overrule the UIL's third point either the same parties or other members of the public but for of error.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

exception” to the mootness doctrine, and adhere to our earlier some reason evades appellate review. The UIL points out that ruling overruling the Students' motion to dismiss the appeal other states have applied this doctrine in high school athletic as moot.

controversies such as this one.

Because we elect to review these causes under the “public In Texas Education Agency, 797 S.W.2d at 369, under interest exception” to the mootness doctrine, and because we similar facts as these, we determined that the appeal was affirm the lower court's final judgment that the over–19 rule moot because the football eligibility of the litigating students violates Section 504 of the Rehabilitation Act, we affirm the had expired. See also Spring Branch I.S.D., 764 S.W.2d district court's ruling that the Students were eligible to play at 18. However, these cases are distinguishable from the football during the 1991 season. Therefore, since there is no instant cause. In neither of those cases was the question of basis for the UIL to invoke the mandatory forfeiture rule, we attorneys' fees involved. 9 Furthermore, in the instant cause, have no need to address its fourth point of error.

the school districts, which are parties to this appeal, have a direct interest in the continued viability of the district court judgment to prevent the UIL from enforcing the mandatory forfeiture rule. See Mahavongsanan v. Hall, 529 F.2d 448 CONCLUSION (5th Cir.1976) (Student brought action to compel university to Finding no error, the judgment of the district court is affirmed.

grant a degree. After injunctive relief was granted, university awarded degree and appealed the judgment. The Fifth Circuit Court of Appeals held that the case was not moot because Parallel Citations the legal interests of the parties continued to be adverse.). Therefore, because of these distinguishing facts, we have 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263 decided to review the case pursuant to a “public interest

Footnotes 1 As a preliminary matter, we address the Students' motion to dismiss this appeal as moot. For reasons discussed later in this opinion, we decline to dismiss the appeal as moot.

2 The ARD Committee is composed of, at a minimum, a school administrator, a special education teacher, a regular education teacher, and the child's parent. Other persons may be included in the ARD Committee if determined to be necessary. One of the functions of the ARD Committee is to develop an individualized educational plan (IEP) for the student. Buchanan's IEP did not include interscholastic football as part of his program. Buchanan never petitioned for an administrative appeal of the decision of the ARD Committee to the Texas Education Agency. Buchanan's mother testified that because the ARD Committee recommended a waiver from the over–19 rule, she agreed with its decision, and thus did not feel it was necessary to appeal the decision.

3 See Texas Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex.App.—Austin 1990, no writ). (This Court held that the appeal in that case was moot, and therefore the underlying order was vacated. Accordingly, the UIL's determination of ineligibility became final and triggered the enforcement of the mandatory forfeiture rule).

4 As a preliminary matter, the UIL contends in its second point of error that the Students do not meet the definition of “qualified handicapped persons” under section 504 of the Rehabilitation Act. After reviewing the Act and its attendant regulations, we reject this argument and conclude that both students meet the definition of “qualified handicapped persons.”

5 Although not controlling, this Court looks to federal precedent for its persuasive value. 6 Among the stated purposes of IDEA are to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2)(B) of this title, a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of children with disabilities and their parents or guardians are protected.... 20 U.S.C.A. § 1400(c).

7 The UIL admitted in oral argument that had the school districts declared the Students eligible under the IDEA, the UIL would not have abided by such determination. We also note that the school districts requested waivers from the UIL of the over–19 rule, and therefore the Students had no need to invoke an administrative procedure designed to request affirmative action from the school authorities.

8 We overruled the Students' original motion to dismiss as moot. 9 If we moot this appeal and the judgment of the district court is vacated, the judgment for attorneys' fees is vacated as well.

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University Interscholastic League v. Buchanan, 848 S.W.2d 298 (1993) 81 Ed. Law Rep. 1145, 1 A.D.D. 742, 3 NDLR P 263

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

Court to dismiss the appeal for lack of jurisdiction. By four issues, VBMC asks us to determine whether: (1) Stradley's 210 S.W.3d 770 allegation that VBMC was negligent in its safety practices Court of Appeals of Texas, alleges a departure from “accepted standards of safety”

Corpus Christi–Edinburg.

such that she is making a health care liability claim and VALLEY BAPTIST MEDICAL CENTER, Appellant, is required to provide an expert report; (2) in light of the v. current definition of “health care liability claim” and the Margaret STRADLEY, Appellee. Texas Supreme Court's Diversicare opinion, claims based on the safety practices of health care providers must *772 No. 13–06–191–CV. | Nov. 30, 2006. involve conduct that is “directly related to health care” or “an inseparable part of the rendition of health care services” in Synopsis order to be subject to the medical liability chapter of the Texas Background: Patient whose doctor recommended exercise Civil Practice and Remedies Code; (3) dismissal for lack of an routine and referred her to medical center's fitness center expert report is an affirmative defense; and (4) VBMC waived brought premises liability and negligence claims against its right to seek dismissal for lack of an expert report. We medical center after she fell from treadmill at fitness center affirm the trial court's denial of VBMC's motion to dismiss. and sustained injuries. The 107th District Court, Cameron County, Benjamin Euresti, Jr., J., denied medical center's motion to dismiss. Medical center appealed.

I. BACKGROUND

A. Factual Background [Holding:] The Court of Appeals, Valdez, C.J., held that The underlying cause of action stems from a fall Stradley had patient's claims were not health care liability claims that on a treadmill at VBMC's Wellness Center, a fitness center required her to submit an expert report in support of her located on the campus of Valley Baptist Medical Center. At claims. the time of the incident, Stradley was a 78 year-old retiree who was having weight, hypertension, and mobility issues. Her primary care physician “prescribed” exercise and referred Affirmed. Stradley to the Wellness Center. During one of her visits to the center, Stradley attempted to use a treadmill. It is alleged that the treadmill unexpectedly accelerated and when Stradley Attorneys and Law Firms pulled the emergency stop cord, the treadmill did not stop.

*771 Scott T. Clark, Adams & Graham, Harlingen, for Stradley was allegedly thrown to the floor by the treadmill appellant. and injured her arm and shoulder.

Don Stecker, Putman & Putman, Inc., San Antonio, for appellee. B. Procedural Background Stradley brought a premises liability claim and negligence Before Chief Justice VALDEZ and Justices RODRIGUEZ causes of action against VBMC. 1 VBMC answered with a and GARZA. general denial of the allegations. It later filed a motion to dismiss. VBMC's motion to dismiss claimed Stradley's cause of action was really a health care liability claim, which is OPINION governed by the Texas Civil Practice and Remedies Code requirement that an expert medical report be filed within Opinion by Chief Justice VALDEZ. 120 days of when the claim was filed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)(Vernon Supp.2006). The trial Valley Baptist Medical Center (“VBMC”), appellant, brings court denied VBMC's motion to dismiss, stating in its order an interlocutory appeal from the trial court's denial of its that “the underlying nature of this case is not a ‘health motion to dismiss the underlying cause of action. Tex. Civ.

care liability claim’ [sic] as defined in Section 74.001 et.

Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2006).

seq. Texas Civil Practice and Remedies Code and therefore, Margaret Stradley, appellee, has filed a motion asking this

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Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

Defendant's Motion to Dismiss should be denied.” VBMC brings this appeal under the interlocutory appeal statute. C. The Categorization of Safety Claims Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9)(Vernon The first two issues are so interrelated and dispositive to Supp.2006) (providing that a person may appeal from an this appeal that they will be dealt with together. Through interlocutory order of a district court, county court at law, or its second issue, VBMC contends that the trial court erred county court that denies all or part of the relief sought by a in denying its motion to dismiss because all claims based on safety practices (“safety claims”) against a health care motion under Section 74.351(b)). 2 provider should be categorized as health care liability claims under chapter 74's definition of a health care liability claim. VBMC contends every safety claim against a health II. DISCUSSION care provider or physician would be a health care liability claim if the safety claim asserts departures from “accepted A. Stradley's Motion to Dismiss the Appeal standards of safety.” In essence, VBMC urges us to read [1] The characterization of a claim as a health care the definition of a health care liability claims as “a cause liability claim is a threshold question in section 51.014 of action against a health care provider or physician for appeals. See, e.g., Valley Baptist Med. Ctr. v. Azua, treatment, lack of treatment, or other claimed departure No. 13–05–00488–CV, 2006 WL 2076756, at *2, 2006 from accepted standards of medical care, or health care, Tex.App. LEXIS 6659, *5, 198 S.W.3d 810, 814 (Tex.App.- or safety or professional or administrative services directly Corpus Christi July 27, 2004, no pet.) (not designated related to health care....” Tex. Civ. Prac. & Rem.Code Ann. for publication) (“Although section 51.014(a)(9) *773 § 74.001(13)(Vernon 2005) (emphasis added). It primarily specifically authorizes an interlocutory appeal of the denial relies upon the holding in Diversicare to support its reading of relief sought under section 74.351(b), section 74.351 of chapter 74. See Diversicare Gen. Partner, Inc. v. Rubio, applies only to ‘health care liability claims.’ Therefore, we 185 S.W.3d 842, 855 (Tex.2005). must first determine if appellant's claim constitutes a health care liability claim.”); see also Oak Park, Inc. v. Harrison, No. 11–05–00298–CV, 2006 Tex.App. LEXIS 8096, *7 1. Safety Claims Under the MLIIA: The Diversicare Case (Tex.App.-Eastland July 27, 2004, no pet.) (not designated The Texas Supreme Court recently dealt with how safety for publication). Therefore, Stradley's motion to dismiss for violation allegations could be categorized as health care lack of jurisdiction is denied. liability claims under the Medical Liability and Insurance Improvement Act (“MLIIA”), chapter 74's precursor. Id. at 842. In Diversicare, Maria Rubio, through her daughter as B. Standard of Review next friend, sued her nursing home for injuries that occurred [2] Generally, we review a trial court's order on a motion from two alleged falls and for alleged sexual assault against to dismiss under an abuse of discretion standard. Am. her by another nursing home patient. Id. at 845. The sexual Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d assaults allegedly took place nearly five and a half years 873, 877 (Tex.2001). However, whether a claim is a health before suit was filed. Id. Diversicare moved for summary care liability claim pursuant to section 74.351 is a question of judgment on all of Rubio's claims arising from the alleged law and is reviewed de novo. Buck v. Blum, 130 S.W.3d 285, sexual assaults, arguing that the MLIIA's two-year statute of 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Ponce v. limitations barred recovery on the claims. Id. Rubio argued El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.- that because her claims were not health *774 care liability El Paso 2001, pet. denied); Gomez v. Matey, 55 S.W.3d claims under the MLIIA, they were governed by the general 732, 735 & n. 2 (Tex.App.-Corpus Christi 2001, no pet.). statute of limitations for personal injury claims, which tolls The dismissal order states that “the underlying nature of this the statute of limitations for mental incapacity. Tex. Civ. Prac. case is not a ‘health care liability claim’ [sic] as defined in & Rem.Code Ann. §§ 16.001(b), 16.003 (Vernon). Section 74.001 et. seq. Texas Civil Practice and Remedies Code and therefore, Defendant's Motion to Dismiss should be A majority of the Supreme Court held that Rubio's causes denied.” We shall review the statutory interpretation question of action were health care liability claims because the presented by VBMC's motion to dismiss de novo. legislature meant to include all safety claims against health care providers or physicians within the scope of the MLIIA.

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Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

Diversicare Gen. Partner, Inc., 185 S.W.3d at 853. The only included claims for treatment or lack of treatment, but relevant statute at the time read: it also included claims for “other claimed departure from accepted standards of medical care or health care or safety ....”

a cause of action against a health care provider or former Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4). For, “the physician for treatment, lack of treatment, or other claimed Legislature's inclusion within the scope of the MLIIA of departure from accepted standards of medical care or health claims based on breaches of accepted standards of ‘safety’ care or safety which proximately results in injury to or expands the scope of the statute beyond what it would be if death of the patient, whether the patient's claim or cause of it only covered medical and health care.” Diversicare Gen. action sounds in tort or contract. Partner, *775 Inc., 185 S.W.3d at 854. We note that there was no comma separating the phrases medical care, health Former Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4) (emphasis care, or safety and that a cause of action under the MLIIA added). 3 The Supreme Court noted that, “[t]he Legislature's must be one “which proximately results in injury to or death inclusion within the scope of the [MLIIA] of claims based of the patient.” Id. on breaches of accepted standards of ‘safety’ expands the scope of the statute beyond what it would be if it only covered The current statute covers three types of claims: treatment, medical and health care.” Diversicare Gen. Partner, Inc., care, and peripheral claims. Tex. Civ. Prac. & Rem.Code 185 S.W.3d at 855. The majority reasoned that a nursing Ann. § 74.001(13). Claims involving treatment, lack of home's provision of professional supervision, monitoring, and treatment, medical care, or health care against a health protection of the patient population necessarily implicated care provider or physician that proximately cause injury the standards of safety under the MLIIA. Id. at 850–51. or death to a claimant are automatically categorized as However, the majority's opinion conceded that, “[t]here may health care liability claims. Id. Claims involving “safety or be circumstances that give rise to premise liability claims in a professional or administrative services” constitute the final healthcare setting that may not be properly classified as health type of possible health care liability claims contemplated by care liability claims....” Id. at 854. the statute. Id. These peripheral claims are not separated by commas, they are only separated by the disjunctive term “or,” and therefore fall into the same class of claims. The phrase 2. Safety Claims Under Chapter 74 appearing right after the peripheral claims is “directly related The instant case is governed by chapter 74 of the Civil to health care.” Both the peripheral claims and the latter Practice and Remedies Code, which contains different phrase are confined with each other by commas. Because we language than that used in the Diversicare case. A health care are mindful of the rules of grammar when reading a statute, we liability claim under the current statute is defined as:

find the peripheral claims are tempered by the phrase “directly [A] cause of action against a health care provider or related to health care” because it appears immediately after physician for treatment, lack of treatment, or other claimed that class of claims. departure from accepted standards of medical care, or health care, or safety or professional or administrative [3] Based upon a grammatically correct reading of the services directly related to health care, which proximately statute, we hold that a safety claim can be categorized as a results in injury to or death of a claimant, whether the health care liability claim only when it is against a health claimant's claim or cause of action sounds in tort or care provider or physician for a claimed departure from contract. accepted standards of safety directly related to health care.

But see Diversicare Gen. Partner, Inc., 185 S.W.3d at 861 Tex. Civ. Prac. & Rem.Code Ann. § 74.001(13) (Vernon n. 4 (Jefferson, C.J., concurring in part, dissenting in part, 2005) (emphasis added). According to the Code Construction and concurring in judgment) (in dicta the Chief Justice noted Act, “[w]ords and phrases shall be read in context and that, “[i]t is clear under the revised statute that claims for construed according to the rules of grammar and common ‘professional or administrative services' must be ‘directly usage.” Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005). related to health care’; however, there is no indication that claims involving ‘safety’ must also relate to health care.”).

The instant case is legally distinguishable from Diversicare Holding otherwise and finding all safety claims against health because the statute in question has been revised. The MLIIA care providers or physicians to be health care liability claims broadly defined health care liability claims because it not regardless of whether they directly relate to health care, would

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Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (2006)

without the aid of a medical expert's report. See Rogers, be an arbitrary and legislatively unauthorized expansion of 13 S.W.3d at 419. Much has been made about Stradley's the health care liability statute.

physician recommending an exercise routine and how such a recommendation might recast Stradley's claims into health 3. Stradley's Claims care liability claims. The analogy is absurd. While exercise [4] [5] [6] Our final step in resolving VBMC's first has a salutary effect on one's health, in most situations two issues is to determine whether the underlying nature of a doctor's recommendation of regular exercise is no more Stradley's claims are safety claims that directly relate to health related to the rendition of health care than the automobile care. Artful pleading cannot avoid the requirements of section ride one makes for a doctor's appointment. See, e.g., Shults 74.351 when the essence of the suit is a health care liability v. Baptist St. Anthony's Hosp. Corp., 166 S.W.3d 502, claim. Diversicare Gen. Partner, Inc., 185 S.W.3d at 849 (“It 505 (Tex.App.-Amarillo 2005, pet. denied) (holding that is well settled that a health care liability claim cannot be recast the presence of a sharp paint chip in the shower of the as another cause of action to avoid the requirements of the plaintiff's hospital room could not be considered in any way MLIIA”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 an inseparable part of the medical services rendered to the (Tex.2004); MacGregor Med. Ass'n v. Campbell, 985 S.W.2d plaintiff.). 38, 40 (Tex.1998). To determine whether a cause of action falls under chapter 74's definition of a health care liability Based upon the underlying nature of Stradley's claims, we claim, we examine the claim's underlying nature. Id. (citing hold that they do not constitute health care liability claims Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994)). One under the statute. We overrule VBMC's first and second consideration in that determination may be whether proving issues. the claim would require the specialized knowledge of a medical expert. Garland Cmty. Hosp., 156 S.W.3d at 544 (citing Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d III. CONCLUSION 417, 419 (Tex.App.-Corpus Christi 1999, no pet.)).

We affirm the trial court's order denying VBMC's motion to Stradley's premises liability claim and negligence causes of dismiss and remand the cause to the trial court for further action stem from an accident she had while using a treadmill. proceedings. Because of our disposition of the VBMC's first They are personal injury claims of the most pedestrian and second issues, we need not address VBMC's third or nature. A jury could understand *776 the evidentiary fourth issues. See Tex.R.App. P. 47.1. issues and negligence standards posed by Stradley's claims

Footnotes 1 Stradley alleged that VBMC failed to (1) to adequately hire, train, and instruct its employees in the safe operation of exercise machines, (2) adequately inspect, repair, or maintain the machines, (3) supervise her use of the treadmill, and (4) warn her of the risks posed by the treadmill.

2 Section 74.351(b) of the Texas Civil Practice & Remedies Code reads, “If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall subject to Subsection (c), enter an order that....”

3 The legislature repealed the MLIIA, amended parts of the previous article 4590i, and recodified it in 2003 as chapter 74 of the Texas Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

2.10. Classification of Inquiries and Complaints, TX ST RULES DISC P 2.10

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys Title 2, Subtitle G--Appendix a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part II. The District Grievance Committees

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.10

2.10. Classification of Inquiries and Complaints

Currentness

The Chief Disciplinary Counsel shall within thirty days examine each Grievance received to determine whether it constitutes an Inquiry or a Complaint. If the Grievance is determined to constitute an Inquiry, the Chief Disciplinary Counsel shall notify the Complaint and Respondent of the dismissal. The Complainant may, within thirty days from notification of the dismissal, appeal the determination to the Board of Disciplinary Appeals. If the Board of Disciplinary Appeals affirms the classification as an Inquiry, the Complainant will be so notified and may within twenty days amend the Grievance one time only by providing new or additional evidence. The Complainant may appeal a decision by the Chief Disciplinary Counsel to dismiss the amended Complaint as an Inquiry to the Board of Disciplinary Appeals. No further amendments or appeals will be accepted. In all instances where a Grievance is dismissed as an Inquiry other than where the attorney is deceased or is not licensed to practice law in the State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution procedure. If the Grievance is determined to constitute a Complaint, the Respondent shall be provided a copy of the Complaint with notice to respond, in writing, to the allegations of the Complaint. The notice shall advise the Respondent that the Chief Disciplinary Counsel may provide appropriate information, including the Respondent's response, to law enforcement agencies as permitted by Rule 6.08. The Respondent shall deliver the response to both the Office of the Chief Disciplinary Counsel and the Complainant within thirty days after receipt of the notice.

Credits Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994. Renumbered from Rule 2.09 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

Notes of Decisions (6)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.10, TX ST RULES DISC P 2.10 Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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2.16. Confidentiality, TX ST RULES DISC P 2.16

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys Title 2, Subtitle G--Appendix a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part II. The District Grievance Committees

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16

2.16. Confidentiality

Currentness

A. All members and staff of the Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals. Committees, and Commission shall maintain as confidential all Disciplinary Proceedings and associated records, except that:

1. the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the Office of Chief Disciplinary Counsel or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary Proceeding is based on conviction of a serious crime, or disclosure is ordered by a court of competent jurisdiction;

2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private reprimand.

a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and

b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall, upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came to the attention of the Evidentiary Panel during the Disciplinary Proceeding;

3. the record in any appeal to the Board of Disciplinary Appeals from an Evidentiary Panel's final judgment, other than an appeal from a judgment of private reprimand, is a public record; and

4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or introduced in the course of a Disciplinary Proceeding.

B. The deliberations and voting of an Evidentiary Panel are strictly confidential and not subject to discovery. No person is competent to testify as to such deliberations and voting.

C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2.16. Confidentiality, TX ST RULES DISC P 2.16

Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and the Commission on Judicial Conduct.

Credits Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by order of Dec. 7, 2009, eff. Jan. 1, 2010.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

Notes of Decisions (1)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16, TX ST RULES DISC P 2.16 Current with amendments received through August 15, 2014

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15.09. Immunity, TX ST RULES DISC P 15.09

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys Title 2, Subtitle G--Appendix a-1. Rules of Disciplinary Procedure (Refs & Annos)

Part XV. Miscellaneous Provisions

V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09

15.09. Immunity

Currentness

No lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation in the attorney disciplinary and disability system. All members of the Commission, the Chief Disciplinary Counsel (including Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the District Disability Committees, all officers and Directors of the State Bar, and the staff members of the aforementioned entities are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends to all actions at law or in equity.

Credits Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, as corrected by order of Sept. 12, 1994, eff. Oct. 1, 1994. Renumbered from Rule 15.11 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.

<An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09, TX ST RULES DISC P 15.09 Current with amendments received through August 15, 2014

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos)

Subtitle G. Attorneys Title 2, Subtitle G--Appendix A. State Bar Rules Article X. Discipline and Suspension of Members Section 9. Texas Disciplinary Rules of Professional Conduct (Refs & Annos)

Preamble: A Lawyer's Responsibilities

V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Preamble

Preamble: A Lawyer's Responsibilities

Currentness

1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's affairs and reporting about them to the client or to others.

3. In all professional functions, a lawyer should zealously pursue clients' interests within the bounds of the law. In doing so, a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law.

4. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

6. A lawyer should render public interest legal service. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally. A lawyer may discharge this basic responsibility by providing public interest legal services without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation, the administration of justice, and by financial support for organizations that provide legal services to persons of limited means.

7. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interests. The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment. In applying these rules, lawyers may find interpretive guidance in the principles developed in the Comments.

8. The legal profession has a responsibility to assure that its regulation is undertaken in the public interest rather than in furtherance of parochial or self-interested concerns of the bar, and to insist that every lawyer both comply with its minimum disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

9. Each lawyer's own conscience is the touchstone against which to test the extent to which his actions may rise above the disciplinary standards prescribed by these rules. The desire for the respect and confidence of the members of the profession and of the society which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

Credits Adopted by order of Oct. 17, 1989, eff. Jan. 1, 1990.

<The original Rules Governing the State Bar of Texas, consisting of former articles 1 to 13, were approved by the Supreme Court February 22, 1940.>

<Articles 1 through 9 of the State Bar Rules were adopted and former articles 1 through 11 of the Rules Governing the State Bar of Texas were repealed by Order of the Texas Supreme Court dated March 14, 1983.>

<Article 10 of the State Bar Rules was adopted and article 12, §§ 1 to 7 and 9 to 36, as well as article 13, of the Rules Governing the State Bar were repealed by Order of the Texas Supreme Court dated February 29, 1984, effective March 1, 1984. That same order also restated and continued article 12, § 8, of the Rules Governing the State Bar (the Texas Code of Professional Responsibility) and promulgated such art. 12, § 8 as article 10, § 9, of the State Bar Rules.>

<Article 11 of the State Bar Rules was adopted by order of the Texas Supreme Court dated May 9, 1984.>

<Article 12 of the State Bar Rules, effective June 1, 1986, was adopted by order of the Texas Supreme Court dated December 19, 1985.>

<Article 13 of the State Bar Rules, effective May 15, 1988, was adopted by order of the Texas Supreme Court dated March 14, 1988.>

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Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble

V. T. C. A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9 Preamble, TX ST RPC Preamble Current with amendments received through August 15, 2014

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