In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00093-CV
PAUL JOHNSON, APPELLANT
V.
FAUN CULLENS, APPELLEE
On Appeal from the 335th District Court Bastrop County, Texas1 Trial Court No. 1671-335, Honorable Reva Towslee-Corbett, Presiding
March 7, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Paul Johnson, brings this interlocutory appeal claiming that the trial
court erred in sustaining the plea to the jurisdiction filed by appellee, Faun Cullens. We
affirm the trial court’s order sustaining Cullens’s plea and dismissing Johnson’s claims
against her.
1 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. Background
Johnson filed his original petition alleging that Cullens, in her official capacity as
Chief Appraiser of the Bastrop Central Appraisal District (“BCAD”), made four false
statements that defamed him. Johnson claimed that these statements caused the BCAD
Appraisal Review Board to deny his application for an open-space appraisal of property
he owns in Bastrop County. He asserted that his suit was filed under the ultra vires
exception to governmental immunity because Cullens’s alleged conduct of “lying under
oath” was prohibited. Johnson sought economic damages, non-economic damages, and
exemplary damages. In response to Cullens’s special exceptions requesting clarification
as to what statute she allegedly violated, Johnson claimed that Cullens committed
aggravated perjury, a violation of section 37.03 of the Texas Penal Code.
Cullens filed a plea to the jurisdiction in which she contended that Johnson had no
standing to bring an action to enforce the Penal Code, the ultra vires exception did not
apply because Johnson asserted only retroactive harm, and the Texas Tort Claims Act
does not waive sovereign immunity for defamation claims. The trial court heard the
motion in a hearing via Zoom teleconferencing on March 24, 2021, and sustained the plea
the same day. Johnson’s claims were dismissed with prejudice. Johnson timely
appealed the trial court’s order.
Standard of Review
A plea to the jurisdiction challenges a court’s authority to decide a case. City of
Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam).
Whether a court has subject matter jurisdiction is a question of law we review de novo.
2 Id. When a plea to the jurisdiction challenges the pleadings, we determine whether the
pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear
the case. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent.
Id. If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial
court’s jurisdiction, but do not affirmatively negate the existence of jurisdiction, the plaintiff
should be allowed the opportunity to amend. Id. at 226-27. However, if the pleadings
affirmatively negate the existence of jurisdiction, the plea to the jurisdiction may be
granted without affording the plaintiff the opportunity to amend. Id. at 227.
Analysis
Johnson raises three issues for review. First, Johnson claims that the trial court
abused its discretion by determining outside facts rather than determining jurisdiction only
from the pleadings. Second, Johnson asserts that the trial court failed to consider the
petition in the light most favorable to the petitioner. Lastly, Johnson argues that the
allegations in the petition did not affirmatively negate jurisdiction. These three intertwined
issues, which we will discuss jointly, present variations on the same theme: whether the
trial court erred in sustaining Cullens’s plea to the jurisdiction and denying Johnson the
opportunity to amend.
Johnson claims that his petition alleges the necessary elements of slander, a
waiver of immunity, and proper standing, such that, if taken as true, affirmatively
demonstrate the trial court’s jurisdiction to hear the case. Cullens responds that there is
3 no valid waiver of governmental immunity under any theory Johnson pleaded. We agree
with Cullens.
Johnson’s pleadings assert that his claims are brought against Cullens in her
official capacity as chief appraiser of the BCAD. A suit against a government employee
in her official capacity is fundamentally a suit against her government employer and not
a suit against the individual. Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin
2007, no pet.). When, as here, an individual is sued in her official capacity, she may raise
any defense that would be available to her employer, including the defense of sovereign
or governmental immunity. Id.
The Texas Tort Claims Act provides a waiver of governmental immunity for certain
claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (waiving governmental
immunity for torts related to use of publicly owned vehicles, premises defects, and injuries
arising from conditions or use of property). But intentional torts, such as defamation, do
not fall within the scope of the waiver of immunity under the Tort Claims Act. TEX. CIV.
PRAC. & REM. CODE ANN. § 101.057(2); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122
(Tex. App.—Houston [1st Dist.] 1995, no writ). Moreover, Johnson asserts that he is
bringing his defamation claim “pursuant to a waiver that exists apart from the Texas Tort
Claims Act.” Specifically, Johnson contends that immunity is waived because Cullens
committed an ultra vires act.
“[I]n certain narrow instances, a suit against a state official can proceed even in
the absence of a waiver of immunity if the official’s actions are ultra vires.” Hall v.
McRaven, 508 S.W.3d 232, 238 (Tex. 2017). Under the “ultra vires exception” to
4 sovereign immunity, a claimant may file suit to compel a government official “to comply
with statutory or constitutional provisions” through prospective injunctive or declaratory
relief. City of El Paso v. Heinrich, 284 S.W.3d 366, 372, 374-77 (Tex. 2009).
Consequently, ultra vires suits do not attempt to exert control over the State, but rather to
“reassert the control of the State over one of its agents,” or to bring such agents into
compliance with the law. Id. Thus, a plaintiff alleging an ultra vires action against a
government official is not entitled to monetary relief but may only request prospective
declaratory or injunctive relief against government actors to require compliance with their
duties going forward. Id. at 374-77; City of Houston v. Houston Mun. Emps. Pension
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00093-CV
PAUL JOHNSON, APPELLANT
V.
FAUN CULLENS, APPELLEE
On Appeal from the 335th District Court Bastrop County, Texas1 Trial Court No. 1671-335, Honorable Reva Towslee-Corbett, Presiding
March 7, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Paul Johnson, brings this interlocutory appeal claiming that the trial
court erred in sustaining the plea to the jurisdiction filed by appellee, Faun Cullens. We
affirm the trial court’s order sustaining Cullens’s plea and dismissing Johnson’s claims
against her.
1 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. Background
Johnson filed his original petition alleging that Cullens, in her official capacity as
Chief Appraiser of the Bastrop Central Appraisal District (“BCAD”), made four false
statements that defamed him. Johnson claimed that these statements caused the BCAD
Appraisal Review Board to deny his application for an open-space appraisal of property
he owns in Bastrop County. He asserted that his suit was filed under the ultra vires
exception to governmental immunity because Cullens’s alleged conduct of “lying under
oath” was prohibited. Johnson sought economic damages, non-economic damages, and
exemplary damages. In response to Cullens’s special exceptions requesting clarification
as to what statute she allegedly violated, Johnson claimed that Cullens committed
aggravated perjury, a violation of section 37.03 of the Texas Penal Code.
Cullens filed a plea to the jurisdiction in which she contended that Johnson had no
standing to bring an action to enforce the Penal Code, the ultra vires exception did not
apply because Johnson asserted only retroactive harm, and the Texas Tort Claims Act
does not waive sovereign immunity for defamation claims. The trial court heard the
motion in a hearing via Zoom teleconferencing on March 24, 2021, and sustained the plea
the same day. Johnson’s claims were dismissed with prejudice. Johnson timely
appealed the trial court’s order.
Standard of Review
A plea to the jurisdiction challenges a court’s authority to decide a case. City of
Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam).
Whether a court has subject matter jurisdiction is a question of law we review de novo.
2 Id. When a plea to the jurisdiction challenges the pleadings, we determine whether the
pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear
the case. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent.
Id. If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial
court’s jurisdiction, but do not affirmatively negate the existence of jurisdiction, the plaintiff
should be allowed the opportunity to amend. Id. at 226-27. However, if the pleadings
affirmatively negate the existence of jurisdiction, the plea to the jurisdiction may be
granted without affording the plaintiff the opportunity to amend. Id. at 227.
Analysis
Johnson raises three issues for review. First, Johnson claims that the trial court
abused its discretion by determining outside facts rather than determining jurisdiction only
from the pleadings. Second, Johnson asserts that the trial court failed to consider the
petition in the light most favorable to the petitioner. Lastly, Johnson argues that the
allegations in the petition did not affirmatively negate jurisdiction. These three intertwined
issues, which we will discuss jointly, present variations on the same theme: whether the
trial court erred in sustaining Cullens’s plea to the jurisdiction and denying Johnson the
opportunity to amend.
Johnson claims that his petition alleges the necessary elements of slander, a
waiver of immunity, and proper standing, such that, if taken as true, affirmatively
demonstrate the trial court’s jurisdiction to hear the case. Cullens responds that there is
3 no valid waiver of governmental immunity under any theory Johnson pleaded. We agree
with Cullens.
Johnson’s pleadings assert that his claims are brought against Cullens in her
official capacity as chief appraiser of the BCAD. A suit against a government employee
in her official capacity is fundamentally a suit against her government employer and not
a suit against the individual. Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—Austin
2007, no pet.). When, as here, an individual is sued in her official capacity, she may raise
any defense that would be available to her employer, including the defense of sovereign
or governmental immunity. Id.
The Texas Tort Claims Act provides a waiver of governmental immunity for certain
claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (waiving governmental
immunity for torts related to use of publicly owned vehicles, premises defects, and injuries
arising from conditions or use of property). But intentional torts, such as defamation, do
not fall within the scope of the waiver of immunity under the Tort Claims Act. TEX. CIV.
PRAC. & REM. CODE ANN. § 101.057(2); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122
(Tex. App.—Houston [1st Dist.] 1995, no writ). Moreover, Johnson asserts that he is
bringing his defamation claim “pursuant to a waiver that exists apart from the Texas Tort
Claims Act.” Specifically, Johnson contends that immunity is waived because Cullens
committed an ultra vires act.
“[I]n certain narrow instances, a suit against a state official can proceed even in
the absence of a waiver of immunity if the official’s actions are ultra vires.” Hall v.
McRaven, 508 S.W.3d 232, 238 (Tex. 2017). Under the “ultra vires exception” to
4 sovereign immunity, a claimant may file suit to compel a government official “to comply
with statutory or constitutional provisions” through prospective injunctive or declaratory
relief. City of El Paso v. Heinrich, 284 S.W.3d 366, 372, 374-77 (Tex. 2009).
Consequently, ultra vires suits do not attempt to exert control over the State, but rather to
“reassert the control of the State over one of its agents,” or to bring such agents into
compliance with the law. Id. Thus, a plaintiff alleging an ultra vires action against a
government official is not entitled to monetary relief but may only request prospective
declaratory or injunctive relief against government actors to require compliance with their
duties going forward. Id. at 374-77; City of Houston v. Houston Mun. Emps. Pension
Sys., 549 S.W.3d 566, 576 (Tex. 2018) (recognizing that “ultra vires claimants are only
entitled to prospective relief”). A plaintiff bringing an ultra vires claim must affirmatively
allege facts to support a finding that he faces an ongoing violation of his rights, and it is
insufficient to merely allege that his rights were violated in the past. See, e.g., Garcia v.
City of Willis, 593 S.W.3d 201, 207 (Tex. 2019) (court lacks authority to grant plaintiff
prospective relief for ultra vires claim when plaintiff no longer faces complained-of
conduct).
Even taking Johnson’s allegations as true, and despite Johnson’s characterization
of his claim, he has not asserted an ultra vires claim; rather, he has asserted an intentional
tort claim for which he seeks monetary damages from Cullens. See Texas Dep’t of
Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, no pet.)
(“merely asserting legal conclusions or labeling a defendant’s actions as ‘ultra vires,’
‘illegal,’ or ‘unconstitutional’ does not suffice to plead an ultra vires claim . . .”); Texas
Southern Univ. v. Greenleaf, No. 14-97-01135-CV, 1998 Tex. App. LEXIS 4997, at *5
5 (Tex. App.—Houston [14th Dist.] Aug. 13, 1998, pet. denied) (reviewing court must accept
factual allegations in plaintiff’s pleadings as true but is not bound by legal conclusions or
illogical factual conclusions that plaintiff draws from facts pled). Johnson’s pleading in
this cause is entitled “Petition for Defamation.” His sole claim is for defamation and he is
seeking $4,236.82 in economic damages, $12,710.46 in non-economic damages, and
$42,368.20 in exemplary damages. This relief is not available under an ultra vires claim.
See Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019)
(ultra vires claims generally bar retrospective monetary relief and allow only prospective
injunctive relief); City of Houston, 549 S.W.3d at 576 (“If the injury has already occurred
and the only plausible remedy is monetary damages, an ultra vires claim will not lie.”).
Because he seeks only impermissible retrospective relief, Johnson has not asserted an
ultra vires claim against Cullens that falls within the exception to governmental immunity.
Without a valid ultra vires claim against Cullens, Johnson cannot rely on the ultra
vires exception to waive governmental immunity. Moreover, repleading would not cure
this jurisdictional defect.2 See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
(Tex. 2007) (pleader should only be given opportunity to replead if possible to cure
pleading defect); Perrin v. City of Temple, No. 03-18-00736-CV, 2020 Tex. App. LEXIS
8739, at *18 (Tex. App.—Austin Nov. 6, 2020, no pet.) (mem. op.) (denying plaintiff
opportunity to replead where he sought only retrospective relief). Thus, the trial court
properly sustained Cullens’s plea to the jurisdiction.
2 Johnson has not requested a remand for repleading, but we consider the question nonetheless, as a pleader must be given an opportunity to amend in response to a plea to the jurisdiction if it is possible to cure the pleading defect. See Miranda, 133 S.W.3d at 226-27.
6 Conclusion
For the reasons set forth herein, we affirm the trial court’s order sustaining
Cullens’s plea to the jurisdiction and dismissing Johnson’s suit with prejudice.
Judy C. Parker Justice