Opinion issued January 26, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00431-CV ——————————— TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant V. JORGE GONZALEZ ROCHA AND KIRK GIPSON, Appellees
On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2020-19803
OPINION
Appellant, the Texas Department of Criminal Justice (TDCJ), appeals the trial
court’s denial of its partial plea to the jurisdiction seeking to dismiss Appellees Jorge
Gonzalez Rocha’s and Kirk Gipson’s request for a “finding” of a violation of the
Texas Constitution under Section 501.019 of the Texas Government Code. Because we conclude that Section 501.019 does not contain a clear and unambiguous waiver
of sovereign immunity, we hold that the trial court erred in denying TDCJ’s plea to
the jurisdiction.
We reverse and render.
Background
Appellees sued the TDCJ pursuant to the Texas Tort Claims Act (the Act or
TTCA). Appellees alleged that they were passengers in a van driven by TDCJ’s
employee when the employee attempted to pass another vehicle on the roadway,
“drove the van to the left of the center of the roadway into the lane designated for
oncoming traffic and collided with another vehicle” driven by the codefendant,
Lawrence Dmello. Appellees alleged that TDCJ’s employee violated various
provisions of the Texas Transportation Code and that TDCJ was vicariously liable
for its employee’s actions pursuant to the TTCA, Section 101.021 of the Texas Civil
Practice & Remedies Code. Appellees sought damages for their injuries.
Appellees also alleged that TDCJ violated Article 1, Sections 13 and 19 of
Texas Constitution by:
• “failing to seatbelt Plaintiffs while they were handcuffed and being transported in Defendant TDCJ’s van”; and
• “refusing to allow Plaintiffs to receive necessary medical services following the collision at issue.”
2 Pursuant to Section 501.091(e) of the Texas Government Code, appellees sought a
“finding by the Court of a violation by Defendant TDCJ of the Constitution of the
State of Texas.” Section 501.019 authorizes the State to “deduct from any monetary
obligation owed to an incarcerated person . . . the cost of incarceration.” TEX. GOV’T
CODE § 501.019(a)(1). However, if the monetary obligation arises “from a judgment
against the state, an agency of the state, or an officer or employee of the state or an
agency of the state,” the State may deduct the costs of incarceration “only if” two
conditions are met:
(1) the judgment awards damages for property damage or bodily injury resulting from a negligent act or omission, including an act or omission described by Section 101.021(1), Civil Practice and Remedies Code [i.e., the TTCA]; and
(2) there is not a finding by the court of a violation of the constitution of this state or the United States.
Id. § 501.019(e). Appellees expressly stated they were not seeking monetary
damages for TDCJ’s alleged constitutional violations.
TDCJ filed an amended partial plea to the jurisdiction seeking to dismiss
appellees Texas constitutional claims from the suit based on sovereign immunity.1
1 Appellees’ first amended petition sought monetary damages for the alleged Texas constitutional violations. TDCJ filed its first partial plea to the jurisdiction regarding these claims, arguing that there was no private cause of action for damages for violations of the Texas Constitution. In response, appellees filed their second amended petition removing their request for monetary damages for the Texas Constitutional claims and replacing it with a request for a “finding” by the trial court that TDCJ violated the Constitution of the State of Texas. Because appellees failed to identify specific provisions of the Texas Constitution they alleged TDCJ had 3 In their response, appellees expressly stated that they “have not pleaded a cause of
action for constitutional violations,” but instead requested a “finding . . . of a
constitutional violation under [Section] 501.019(e)(2)” “so that TDCJ is apprised of
the basis for challenging its claim to deduct [appellees’] cost of incarceration.” The
trial court denied TDCJ’s partial plea to the jurisdiction. This appeal followed.2
Plea to the Jurisdiction
In its sole issue, TDCJ argues that the trial court erred in denying its partial
plea to the jurisdiction because the trial court lacked subject matter jurisdiction over
appellees’ request for a “finding” of a constitutional violation.
A. Standard of Review
A plea to the jurisdiction challenges the trial court’s authority to decide a case.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Because
governmental immunity from suit defeats a trial court’s subject matter jurisdiction,
it is “properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Whether the trial court has subject
matter jurisdiction is a question of law reviewed de novo, Tex. Nat. Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002), and the plaintiff
violated, TDCJ filed special exceptions to the second amended petition. Appellees filed their third amended petition, which included the above quoted allegations that TDCJ violated Article 1, Sections 13 and 19 of the Texas Constitution. TDCJ thereafter filed its amended partial plea to the jurisdiction. 2 Appellees did not a brief on appeal. 4 bears the burden of affirmatively demonstrating the trial court’s jurisdiction. See
Miranda, 133 S.W.3d at 226.
A plea to the jurisdiction may challenge the pleadings, the existence of
jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 770 (Tex. 2018). When, as here, the plea to the jurisdiction challenges only the
pleadings, “we determine if the pleader has alleged facts that affirmatively
demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226.
To determine whether the plaintiffs met their burden, “we liberally construe the
pleadings, taking all factual assertions as true and looking to [the plaintiff’s] intent.”
City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per
curiam). “If the pleadings do not contain sufficient facts to affirmatively demonstrate
the trial court[’]s jurisdiction but do not affirmatively demonstrate incurable defects
in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be
afforded the opportunity to amend [their pleadings].” Miranda, 133 S.W.3d at 226–
27. But if the pleadings affirmatively negate the existence of jurisdiction, the plea to
the jurisdiction must be granted without giving the plaintiff an opportunity to amend.
Id. at 227.
B. Sovereign Immunity
Sovereign immunity exists to protect the State and its various divisions,
including agencies, boards, hospitals, and universities, from lawsuits and liability
5 for money damages. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655 (Tex. 2008); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v.
Tex. Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323–24
(Tex. 2006) (“Sovereign immunity protects the State, its agencies, and its officials
from lawsuits for damages” and “extends to various divisions of state government,
including agencies, boards, hospitals, and universities.”). “Such lawsuits ‘hamper
governmental functions by requiring tax resources to be used for defending lawsuits
and paying judgments rather than using those resources for their intended
purposes.’” Garcia, 253 S.W.3d at 655 (quoting Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). Accordingly, Texas courts have long
recognized that “no state can be sued in her own courts without her consent, and then
only in the manner indicated by that consent.” Hosner v. DeYoung, 1 Tex. 764, 769
(1847); see also IT–Davy, 74 S.W.3d at 853 (“Immunity from suit bars a suit against
the State unless the Legislature expressly consents to the suit.”). Because the
Legislature is better suited to balance the conflicting policy issues associated with
waiving immunity, we look to pertinent legislative enactments to determine the
extent to which immunity has been voluntarily relinquished. See Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). We interpret statutory waivers
of immunity narrowly, as the Legislature’s intent to waive immunity must be clear
and unambiguous. See TEX. GOV’T CODE § 311.034. Without an express waiver of
6 sovereign immunity, courts do not have subject-matter jurisdiction over suits against
the State or its agencies. See State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006);
Miranda, 133 S.W.3d at 224–25.
C. Analysis
Appellees sought a “finding” from the trial court that TDCJ violated their
rights under Article 1, Sections 13 and 19 of the Texas Constitution, which prohibit
cruel and unusual punishment and the deprivation of life or liberty without due
process. TEX. CONST. art. I, §§ 13, 19. In their response to TDCJ’s jurisdictional plea
below, appellees contended, however, they were not bringing causes of action
against TDCJ for violations of the Texas Constitution, but were simply requesting
the finding in connection with TDCJ’s request pursuant to Section 501.019 of the
Government Code to offset the cost of incarceration from any money judgment
awarded to appellees in the event they prevail on their TTCA claims. According to
appellees, “before permitting TDCJ to deduct incarceration expenses, [Section]
501.019(e)(2) allows [the trial court to conduct] an inquiry into [TDCJ’s] possible
constitutional violation.” The constitutional violations were “pleaded so that TDCJ
is apprised of the basis for challenging its claim to deduct [appellees’] cost[s] of
incarceration . . . and for no other reason.” Appellees asserted that even if they had
not included this “notice as to the basis to challenge TDCJ’s request to deduct . . .
cost[s] of incarceration,” the trial court would have been required to engage in a
7 constitutional analysis under Section 501.019(e)(2) before authorizing a setoff. In
essence, appellees appear to argue that sovereign immunity is not implicated by their
request for a “finding” because they have not brought a cause of action against TDCJ
for constitutional violations. Thus, according to appellees, TDCJ’s plea to the
jurisdiction seeking to dismiss appellees’ constitutional claims was “misguided” as
there are no constitutional claims to be dismissed. We disagree.
Despite appellees’ claim to the contrary, their request for a “finding” that
TDCJ violated the Texas Constitution equates to a request for relief against TDCJ.
As noted above, sovereign immunity protects the State and its agencies from
lawsuits for monetary damages, as well as “other forms of relief,” including actions
brought under the Uniform Declaratory Judgments Act (UDJA) against the State and
its political subdivisions. See Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621
(Tex. 2011) (per curiam); City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex.
2009). Although not pleaded under the UDJA, construing appellees’ petition
liberally, appellees are effectively asking for the same type of declaratory relief
available under the UDJA, i.e., that TDCJ violated their constitutional rights. This
request, like a request for declaratory relief brought under the UDJA, implicates
TDCJ’s sovereign immunity and is barred absent an express waiver of immunity.
See Sefzik, 355 S.W.3d at 621–22 (holding that state agencies are immune from suit
under UDJA unless immunity is waived by statute); Heinrich, 284 S.W.3d at 372–
8 73 (dismissing claims seeking declaratory and injunctive relief against state entities
brought under UDJA because state entities remain immune even though same claims
may be brought as ultra vires claims against state officials); Sides v. Tex. Dep’t of
Crim. Just., No. 01-15-00004-CV, 2015 WL 6692136, at *4 (Tex. App.—Houston
[1st Dist.] Nov. 3, 2015, pet. denied) (holding TDCJ was immune from plaintiff’s
claims for violations of Article 1, Sections 13 and 19 of Texas Constitution brought
under UDJA).
In an attempt to circumvent that immunity, appellees contended that Section
501.019 authorizes, even mandates, an analysis of the constitutionality of the State’s
actions in all cases where the State seeks to setoff the costs of incarceration against
a monetary obligation, even where there are no underlying constitutional claims
asserted against the State. Resolution of this issue turns on statutory construction,
which presents a question of law that we review de novo. See Tex. W. Oaks Hosp.,
LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). When construing a statute, our
primary objective is to ascertain and give effect to the Legislature’s intent. TGS–
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “To discern
that intent, we begin with the statute’s words.” Id. “Where text is clear, text is
determinative of [legislative] intent.” Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 437 (Tex. 2009). The words cannot be examined in isolation but must
be informed by the context in which they are used. TGS–NOPEC Geophysical, 340
9 S.W.3d at 441. We rely on the plain meaning of the words, unless a different
meaning is supplied by legislative definition or is apparent from the context, or
unless such a construction leads to absurd results. See City of Rockwall v. Hughes,
246 S.W.3d 621, 625–26 (Tex. 2008); see also TEX. GOV’T CODE § 311.011 (“Words
and phrases shall be read in context and construed according to the rules of grammar
and common usage,” but “[w]ords and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.”). We further presume the Legislature chooses statutory language with
care, including each word chosen for a purpose, while purposefully omitting words
not chosen. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).
As noted above, Section 501.019 authorizes the State to “deduct from any
monetary obligation owed to an incarcerated person . . . the cost of incarceration.”
TEX. GOV’T CODE § 501.019(a)(1). However, if the monetary obligation arises “from
a judgment against the state, an agency of the state, or an officer of employee of the
state or an agency of the state,” the State may deduct the costs of incarceration “only
if” two conditions are met:
(1) the judgment awards damages for property damage or bodily injury resulting from a negligent act or omission, including an act or omission described by Section 101.021(1), Civil Practice and Remedies Code [i.e., the TTCA]; and
(2) there is not a finding by the court of a violation of the constitution of this state or the United States.
10 TEX. GOV’T CODE § 501.019(e). We have found no cases interpreting the language
of Section 501.019 generally, nor any specifically analyzing whether this section
contains a “clean and unambiguous” waiver of sovereign immunity. See TEX. GOV’T
CODE § 311.034.
The legislature has demonstrated that it knows how to waive sovereign
immunity in clear and unambiguous language when waiver is its intent. See TEX.
CIV. PRAC. & REM. CODE § 101.025(a) (“Sovereign immunity to suit is waived and
abolished to the extent of liability created by [the TTCA].”); TEX. GOV’T CODE §
404.103(b) (permitting Texas Treasury Safekeeping Trust Company to enter into
contracts and trust agreements and stating that “ the state expressly waives all
defenses of governmental immunity by and on behalf of the trust company . . . .”);
TEX. GOV’T CODE § 554.0035 (“A public employee who alleges a violation of [the
Whistleblower Act] may sue the employing state or local governmental entity for
the relief provided by this chapter. Sovereign immunity is waived and abolished to
the extent of liability for the relief allowed under this chapter . . . .”); TEX. GOV’T
CODE § 2007.004(a) (“Sovereign immunity to suit and liability is waived and
abolished to the extent of liability created by [the Private Real Property Preservation
Rights Act].”); TEX. NAT. RES. CODE § 52.035(c) (“The state waives its right to claim
sovereign immunity in any action commenced against the state for unauthorized
11 disclosure of the confidential information obtained from the Department of the
Interior . . . .”).
In contrast to these unambiguous statements of waiver, Section 501.019
makes no reference whatsoever to a waiver of sovereign immunity. It simply allows
the State to setoff the costs of incarceration in certain cases involving claims under
the TTCA where a monetary obligation is owed and “only if . . . there is not a finding
by the court of a [constitutional] violation[.]” TEX. GOV’T CODE § 501.019(e)(2).
The interpretation of Section 501.019 offered by appellees below would require the
State to litigate the constitutionality of its actions in all cases where it seeks a setoff
of costs of incarceration and, in effect, would eliminate the State’s and its agencies’
sovereign immunity in suits requesting declaratory relief related to constitutional
violations that otherwise, in many cases, would be barred if brought pursuant to the
UDJA. See Sefzik, 355 S.W.3d at 620–22 (holding that state agencies are immune
from suit under UDJA unless immunity is waived by statute); Sides, 2015 WL
6692136, at *4 (noting that certain narrow exceptions to sovereign immunity exist
for declaratory judgment suits, but because plaintiff did not point to provision
waiving immunity, holding that TDCJ was immune to claims under Texas
Constitution).
Furthermore, in determining whether a statute affords a clear and
unambiguous waiver of immunity absent express language to that effect, one
12 interpreting guideline is that a statute must waive immunity “beyond doubt,” such
as “when the provision in question would be meaningless unless immunity were
waived.” See Taylor, 106 S.W.3d at 697. Here, the language “there is not a finding
by the court of a [constitutional] violation” would not be meaningless unless the
State’s immunity was waived. See TEX. GOV’T CODE § 501.019(e)(2). When viewed
in the context of the remainder of this statute, this language contemplates that
underlying claims for property damage or bodily injury resulting from a negligent
act or omission have already been brought against the State, its agencies, or its
employees under statutes like the TTCA, and under the United States or Texas
Constitutions, or both, and that those claims resulted in a judgment. See id. §
501.019(e) (“This section applies to a monetary obligation arising from a judgment
against the state, an agency of the state, or an officer or employee of the state or an
agency of the state . . . .” (emphasis added)); id. § 501.019(a) (“The state may deduct
from any monetary obligation owed to an incarcerated person . . . .”); Deduct,
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 324 (11th ed. 2020) (“to take away
(an amount) from a total”); see also TGS–NOPEC Geophysical, 340 S.W.3d at 441
(“It is a fundamental principle of statutory construction and indeed of language itself
that words’ meanings cannot be determined in isolation but must be drawn from the
context in which they are used.”). Only after there is a judgment can the State offset
or deduct the costs of incarceration against the monetary obligation it owes under
13 the judgment, and only if there is not a finding by the court of a constitutional
violation, i.e., the plaintiff was not successful on constitutional claims, to the extent
they were brought in the underlying case.
Additionally, the language in Section 501.019 “there is not a finding by the
court of a [constitutional] violation” does not require the trial court to make a
separate finding related to the constitutionality of the State’s actions, even in the
absence of an underlying constitutional claim, as appellees contended below. As
with waivers of statutory immunity, the Legislature knows how to direct a court to
make a certain finding, when that is its intent. See, e.g., TEX. ESTATES CODE §
1160.155(b) (“If cash consideration is to be paid for the pooling or unitization
agreement, the court shall make a finding as to the necessity of increased or
additional bond as a finding is made in the making of leases on payment of the cash
bonus for the lease.” (emphasis added)); TEX. FAM. CODE § 263.202(e) (“At the
status hearing, the court shall make a finding as to whether the court has identified
the individual who has the right to consent for the child[.]” (emphasis added)); TEX.
GOV’T CODE § 57.002(d)(2) (“[A] court may appoint a spoken language interpreter
who is not a certified or licensed court interpreter if . . . the court makes a finding
that there is no licensed court interpreter within 75 miles who can interpret in the
language that is necessary in a proceeding.” (emphasis added)). We interpret the
particular language used in Section 501.019(e)(2)—“there is not a finding”—to
14 indicate that the Legislature was talking about whether such a finding already exists,
as in a case where there were constitutional claims at issue. We do not interpret this
to mean that the trial court may, or must, make a separate finding on constitutionality
specifically for the purpose of deciding whether costs of incarceration may be
deducted as a setoff. As discussed above, this interpretation is supported by the
language of the statute when viewed as a whole.
Thus, we conclude that Section 501.019 itself does not contain clear and
unambiguous waiver of sovereign immunity, but instead contemplates that other
claims have been brought against the State for which immunity has been waived and
a judgment has been entered. Accordingly, we hold that Section 501.019 of the
Texas Government Code does not constitute the Legislature’s waiver of sovereign
immunity in suits against the State, its agencies, or its employees, and the trial court
erred in denying TDCJ’s partial plea to the jurisdiction.
We sustain TDCJ’s sole issue.
Conclusion
We conclude that appellees’ request for a “finding” that TDCJ violated their
rights under the Texas Constitution was a request for relief against TDCJ that
implicates TDCJ’s sovereign immunity, and because Section 501.019 of the Texas
Government Code does not contain an express waiver of that immunity, the trial
court lacked subject matter jurisdiction over appellees’ constitutional claims. Thus,
15 the trial court erred in denying TDCJ’s partial plea to the jurisdiction and we reverse
and render judgment dismissing appellees’ constitutional claims against TDCJ.
Amparo Guerra Justice
Panel consists of Justices Goodman, Hightower, and Guerra.