the Honorable Eric Hagstette, Honorable Joseph Licata, III and the Honorable Jim Wallace v. State Commission on Judicial Conduct

• Court: Court of Appeals of Texas
• Decided: December 15, 2020
• Docket: 01-19-00208-CV
• Status: Published

Opinion

Opinion issued December 15, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00208-CV ——————————— THE HONORABLE ERIC HAGSTETTE, HONORABLE JOSEPH LICATA, III, AND THE HONORABLE JIM WALLACE, Appellants V. STATE COMMISSION ON JUDICIAL CONDUCT, ERIC VINSON, CATHERINE N. WYLIE, DAVID C. HALL, RONALD E. BUNCH, DEMETRIUS K. BIVINS, DAVID M. RUSSELL, TRAMER J. WOYTEK, DARRICK L. MCGILL, SUJEETH B. DRAKSHARAM, RUBEN G. REYES, LEE GABRIEL, VALERIE ERTZ, AND FREDERICK TATE, Appellees

On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2018-33741

MEMORANDUM OPINION

Appellants, the Honorable Eric Hagstette, the Honorable Joseph Licata, III,

and the Honorable Jim Wallace (Magistrate Judges) seek a declaratory judgment that the appellees, the State Commission on Judicial Conduct and its individual

members1 (collectively, the Commission) exceeded the scope of their authority in

issuing a public admonition against the Magistrate Judges. The Commission filed a

plea to the jurisdiction, which the trial court granted. In their sole appellate issue, the

Magistrate Judges argue that the trial court had jurisdiction to declare the

Commission’s actions void because the Commission and its officials acted beyond

their statutory authority. Because we conclude that the Magistrate Judges’ pleadings

affirmatively negated the trial court’s subject-matter jurisdiction over the case, we

affirm.

Background

The Magistrate Judges are criminal law hearing officers appointed and

authorized to assist elected criminal district court judges in Harris County. One of

the duties of the Magistrate Judges is to preside over the initial hearing following a

criminal defendant’s arrest, at which the court is obligated to determine probable

cause, set money bail, and, in appropriate cases, consider the release of an arrestee

on a no-money-down personal bond. See TEX. CODE CRIM. PROC. art. 15.17 (setting

1 The individual appellees are members of the Commission: Eric Vinson, Executive Director; Hon. Catherine N. Wylie, Chair; Hon. David C. Hall, Vice-Chair; Hon. Ronald E. Bunch, Secretary; Hon. Demetrius K. Bivins, Member; Hon. David M. Russell, Member; Hon. Tramer J. Woytek, Member; Hon. Darrick L. McGill, Member; Hon. Sujeeth B. Draksharam, Member; Hon. Ruben G. Reyes, Member; Hon. Lee Gabriel, Member; Hon. Valerie Ertz, Member; and Hon. Frederick Tate, Member. 2 out duties of arresting officer and magistrate). Theses initial hearings are referred to

as “15.17 hearings,” named for Texas Code of Criminal Procedure article 15.17 that

governs the duties of a magistrate following an arrest. See id. The Magistrate Judges

point out that some elected criminal judges “chose to reserve the decision on

personal bond eligibility for themselves” and had instructed the Magistrate Judges

to refer those applications to the elected judge of the assigned court. Therefore, some

arrestees not released following a 15.17 hearing later appeared before the elected

judge of the assigned court for a determination regarding release on a personal bond.

In May 2016, a civil rights group filed a class-action lawsuit against several

Harris County judges challenging their bail practices (the O’Donnell Litigation). The

Magistrate Judges were named defendants in the O’Donnell Litigation. The

plaintiffs in the O’Donnell Litigation asserted, in relevant part, a claim under 42

U.S.C. § 1983, alleging that the County’s system of setting bail for indigent

misdemeanor arrestees violates Texas statutory and constitutional law as well as the

Equal Protection and Due Process Clauses of the Fourteenth Amendment. ODonnell

v. Goodhart, 900 F.3d 220, 222 (5th Cir. 2018).

In making these claims, the O’Donnell plaintiffs asserted that article 15.17

requires magistrates to “admit the person arrested to bail if allowed by law.” TEX.

CODE CRIM. PROC. art. 15.17(a). In making a bail determination, the magistrate must

consider multiple factors, including the arrestee’s ability to make bail. See id. art.

3 17.15 (providing rules for fixing amount of bail). Magistrates are also authorized to

release certain arrestees “on personal bond without sureties or other security,” id.

art. 17.03(a), and “a magistrate shall release a defendant on personal bond unless

good cause is shown otherwise” provided the enumerated statutory criteria are

satisfied, id. art. 17.032(b). The plaintiffs in the O’Donnell Litigation asserted that,

by refusing to consider release on personal bond and instead referring that issue to

the assigned elected judge, the Magistrate Judges violated indigent arrestees’ equal-

protection and due-process rights by holding them in jail when similarly situated but

wealthier arrestees were released on bail.

While the O’Donnell Litigation was still pending, on December 1, 2016, a

state senator filed a disciplinary complaint with the Commission against some of the

judges named in the O’Donnell Litigation, including the Magistrate Judges. The

disciplinary complaint challenged the same actions that were the subject of the

O’Donnell Litigation—bail setting practices.

The Commission investigated the complaint and notified the Magistrate

Judges of its determination that public admonitions were appropriate. The

Magistrate Judges exercised their right to have a full hearing before the Commission

to challenge these tentative public admonitions. They appeared at a hearing before

the Commission on December 7, 2017. Following this hearing, on January 10, 2018,

the Commission issued a “Public Admonition and Order of Additional Education”

4 against each Magistrate Judge. These public admonitions were substantively

identical. They contained findings of fact by the Commission that the Magistrate

Judges’ testimony at the hearing that they fully considered all statutory factors in

assessing bail lacked credibility. The findings acknowledged the magistrates’

testimony that the elected judges “did not permit Hearing Officers to grant personal

bonds” during the relevant time period, and, until August 2016, “the County

Criminal Court at Law’ Judges historically had similar rules.” The public admonition

also contained findings of fact that the Magistrate Judges were at-will employees

and were concerned they would lose their positions as hearing officers if they failed

to comply with the directives of the elected criminal district court judges.

The public admonition further identified the “relevant standards” as including

Code of Criminal Procedure article 17.15, setting out the factors that courts are

required to consider in setting bail, and article 17.03, which provides that “a

magistrate may, in the magistrate’s discretion, release the defendant on personal

bond without sureties or other security.” See id. arts. 17.03(a), 17.15. The order also

identified Judicial Canons 2A and 3B(2) as relevant standards. Canon 2A states: “A

judge shall comply with the law and should act at all times in a manner that promotes

public confidence in the integrity and impartiality of the judiciary.” TEX. CODE OF

JUD. CONDUCT, Canon 2A. Canon 3B(2) provides: “A judge should be faithful to the

law and shall maintain professional competence in it. A judge shall not be swayed

5 by partisan interests, public clamor, or fear of criticism.” TEX. CODE OF JUD.

CONDUCT, Canon 3B(2).

The public admonitions concluded:

[The Magistrate Judges] failed to comply with the law, and failed to maintain competence in the law, by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned. In so doing, [the judges] violated [their] constitutional and statutory obligation to consider all legally available bonds, including personal recognizance bonds, for those individuals whose cases were assigned to courts who instructed [them] not to issue personal recognizance bonds. In weighing the facts and circumstances of this case, the Commission gave weight to the fact that, at least in part, [the Magistrate Judges’] conduct was motivated by direct instructions from individual judges who played a role in [their] continued employment. The Commission considered this a mitigating factor in reaching its determination in this case. Based on this conduct, the Commission concludes that [the Magistrate Judges’] actions constituted willful violations of Canons 2A and 3B(2) of the Texas Code of Judicial Conduct.

In addition to issuing the public admonitions, the Commission also required each

Magistrate Judge to “obtain four hours of instruction with a mentor” in the “area of

magistration and bond setting” in addition to regular continuing education

requirements.

The Magistrate Judges each appealed these public admonitions to special

courts of review to be appointed pursuant to the provisions of Government Code

section 33.034. However, they dismissed these review proceedings before their final

hearings could take place.

6 On May 18, 2018, the Magistrate Judges filed the underlying proceeding

under the Civil Practice and Remedies Code chapter 37, the Uniform Declaratory

Judgments Act (UDJA), seeking a declaration that the Commission and its officials

acted without jurisdiction in issuing the public admonition against the Magistrate

Judges. In their petition, the Magistrate Judges specifically asserted:

There is no settled law prohibiting Plaintiffs from referring the personal bond decision to the assigned court for consideration the next business day. To reach this conclusion, the Commission interprets (or misinterprets) the law to reach its sanction. Because the Commission’s sanction rests on its interpretation of the law, it is void.

Thus, the Magistrate Judges sought a judicial declaration that their public

admonitions were void.

The Commission filed a plea to the jurisdiction, arguing that it and its

individual members are entitled to sovereign immunity that had not been waived.

The Commission further argued that the ultra vires exception did not apply here.

Finally, the Commission argued that there is no right of review of its sanctions orders

apart from the special court of review procedure set out in Government Code chapter

33.

The trial court granted the plea to the jurisdiction.2 This appeal followed.

2 The Honorable Randy Wilson granted the plea to the jurisdiction. When the Honorable Tonya Garrison replaced him on the bench, she likewise denied the motion to reconsider. 7 Plea to the Jurisdiction

In their sole issue on appeal, the Magistrate Judges argue that the trial court

erred in granting the plea to the jurisdiction. They assert that the trial court had

jurisdiction to declare the Commission’s actions void because the Commission and

its members acted beyond their statutory authority.

A. Standard of Review

We review de novo a trial court’s ruling on a jurisdictional plea. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “The ultimate

inquiry is whether the particular facts presented in the pleadings affirmatively

demonstrate a claim within the trial court’s subject-matter jurisdiction.” Crampton

v. Farris, 596 S.W.3d 267, 272 (Tex. App.—Houston [1st Dist.] 2019, no pet.)

(citing City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010), and Bacon v. Tex.

Historical Comm’n, 411 S.W.3d 161, 170–71 (Tex. App.—Austin 2013, no pet.));

see Miranda, 133 S.W.3d at 226.

When reviewing a trial court’s ruling on a challenge to its jurisdiction, we

consider the plaintiff’s pleadings and factual assertions, as well as any evidence

relevant to the jurisdictional issue. City of Elsa, 325 S.W.3d at 625–26; Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Crampton, 596 S.W.3d at 272.

We construe pleadings liberally in favor of the plaintiff, look to the pleader’s intent,

and determine if the pleader has alleged facts affirmatively demonstrating the court’s

8 jurisdiction. City of Elsa, 325 S.W.3d at 625; Miranda, 133 S.W.3d at 226;

Crampton, 596 S.W.3d at 273. Allegations found in pleadings may affirmatively

demonstrate or negate the court’s jurisdiction. City of Waco v. Kirwan, 298 S.W.3d

618, 622 (Tex. 2009); Crampton, 596 S.W.3d at 273. “If the pleadings affirmatively

negate the existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiffs an opportunity to amend.” Miranda, 133 S.W.3d at

227; Crampton, 596 S.W.3d at 273.

B. The Commission’s Immunity

The State Commission on Judicial Conduct is a constitutionally-created

agency comprised of judges, attorneys, and citizens from the State of Texas. See

TEX. CONST. art. V, § 1-a(2); TEX. GOV’T CODE § 33.002(a-1) (“The commission is

an agency of the judicial branch of state government and administers judicial

discipline.”). As a state agency, the Commission is thus entitled to sovereign

immunity. See Miranda, 133 S.W.3d at 224; see also LMV-AL Ventures, LLC v. Tex.

Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 120 (Tex. App.—Austin 2017,

pet. denied) (recognizing, in administrative-agency context, that sovereign immunity

generally deprives courts of subject-matter jurisdiction to review agency actions

absent legislatively-granted right to judicial review). When a governmental entity

challenges jurisdiction on immunity grounds, the plaintiff “must affirmatively

9 demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Ryder

Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015).

The Magistrate Judges argue, in part, that sovereign immunity does not apply

to claims for declaratory relief. The UDJA, however, “does not enlarge a trial court’s

jurisdiction, and a litigant’s request for declaratory relief does not alter a suit’s

underlying nature.” City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009);

see City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex. 2007) (“[G]overnmental

immunity does not spring into existence when a damages award is finally made; it

shields governments from the costs of any litigation leading up to that goal.”). The

UDJA provides a limited waiver of immunity for suits challenging the validity of a

statute or ordinance. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325

S.W.3d 628, 633–34 (Tex. 2010); Heinrich, 284 S.W.3d at 373 n.6 (“For claims

challenging the validity of ordinances or statutes . . . the Declaratory Judgment Act

requires that the relevant governmental entities be made parties, and thereby waives

immunity.”); see also 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 is entitled to be heard, 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.”).

10 The UDJA’s limited waiver does not apply here because the Magistrate

Judges’ petition does not challenge the validity of a statute or ordinance. Rather,

they sought a declaration that the public admonitions are void because the

Commission and its members exceeded the scope of their constitutional and

statutory authority. We look to the pleadings themselves and relevant jurisdictional

evidence to determine applicability of sovereign immunity and need not accept the

legal theories asserted as valid. See City of Elsa, 325 S.W.3d at 625–26; Bland Indep.

Sch. Dist., 34 S.W.3d at 555; see also Williams, 216 S.W.3d at 828–29 (holding that

private party may not “circumvent the State’s sovereign immunity from suit” by

mischaracterizing its claim as suit for declaratory judgment).

Furthermore, a plaintiff cannot use the UDJA to recharacterize a claim that

should have been pursued through different channels. Cf. Patel v. Tex. Dep’t of

Licensing and Reg., 469 S.W.3d 69, 79 (Tex. 2015). “Under the redundant remedies

doctrine, courts will not entertain an action brought under the UDJA when the same

claim could be pursued through different channels.” Id. (citing Tex. Mun. Power

Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 200 (Tex. 2007)). “The focus of the

doctrine is on the initiation of the case, that is, whether the Legislature created a

statutory waiver of sovereign immunity that permits the parties to raise their claims

through some avenue other than the UDJA.” Id.; see Alamo Express, Inc. v. Union

City Transfer, 309 S.W.2d 815, 827 (Tex. 1958) (holding that “an action for

11 declaratory judgment does not lie” in suit that asserts “a direct attack upon the

[agency’s] order by appeal”); Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212

S.W.3d 665, 669 (Tex. App.––Austin 2006, no pet.) (en banc) (“When a statute

provides an avenue for attacking an agency order, a declaratory judgment action will

not lie to provide redundant remedies.”).

Here, the Texas Constitution and the Government Code provides the

Commission with authority to administer judicial discipline—including issuing

public admonitions—and they provide an avenue for the Magistrate Judges to pursue

review of to the challenged public admonitions. The Texas Constitution provides

that, “[o]n the filing of a sworn complaint charging a person holding [judicial] office

with willful or persistent violation of rules promulgated by the Supreme Court of

Texas” or other “incompetence in performing the duties of the office,” the

Commission, “after giving the person notice and an opportunity to appear and be

heard before the Commission, may recommend to the Supreme Court the suspension

of such person from office” or take other such action as it may determine is

appropriate. TEX. CONST. art. 5, §1-a(6)(A). The Constitution further provides, for

example, that “[a]fter such investigation as it deems necessary, the Commission may

in its discretion issue a private or public admonition, warning, reprimand, or

requirement that the person obtain additional training or education. . . .” Id. art. 5,

§1-a(8). The Constitution further granted the legislature authority to “promulgate

12 laws in furtherance of this Section [creating the Commission and outlining its

duties].” Id. art. 5, §1-a(14).

Accordingly, Government Code chapter 33 governs the Commission and its

investigation of complaints against members of the judiciary. See TEX. GOV’T CODE

§§ 33.001–.051. Section 33.006 provides “absolute and unqualified” immunity from

liability for acts by the Commission, its members and employees, or its executive

director committed within the scope of official duties. Id. § 33.006. Section 33.022

contains provisions governing investigations and formal proceedings before the

Commission, beginning with the Commission’s ability to conduct a preliminary

investigation of a complaint to determine whether the complaint is unfounded or

frivolous and permitting further investigation if warranted. Id. § 33.022. Once a

complaint is disposed of, the Commission is to promptly notify the complainant of

the outcome, whether the complaint is dismissed, formal proceedings are instituted,

or a private or public sanction is issued. Id. § 33.033(a), (b).

Importantly, a judge who is sanctioned by the Commission is entitled to de

novo review of the Commission’s decision by a special court of review made up of

three court of appeals justices appointed by the chief justice of the supreme court.

Id. § 33.034(a)-(e). The special court of review’s “decision under this section is not

appealable.” Id. § 33.034(i).

13 Given these statutory provisions permitting the Magistrate Judges to raise

their claim through some avenue other than the UDJA, we determine that the district

court lacked subject-matter jurisdiction over the Magistrate Judges’ suit seeking a

declaration that the Commission’s public admonitions were void. See id. § 33.034;

Patel, 469 S.W.3d at 79 (“[C]ourts will not entertain an action brought under the

UDJA when the same claim could be pursued through different channels.”); see also

Aaron Rents, Inc., 212 S.W.3d at 669 (“When a statute provides an avenue for

attacking an agency order, a declaratory judgment action will not lie to provide

redundant remedies.”).

C. Ultra Vires Claims

The Magistrate Judges argue that they are challenging whether “the

Commission had the authority to act in the first place—not the ‘correctness’ of the

Commission’s decision.” The Magistrate Judges assert that “well-settled authority

dictates that a district court has subject matter jurisdiction to consider whether a state

agency, such as the Commission, exceeded the scope of its authority.” They alleged

in their pleadings below that the Commission exceeded the scope of its statutory

authority by interpreting unsettled law, rather than applying settled law, in issuing a

public admonition against them. They assert that “this allegation establishes the

district court’s jurisdiction,” citing City of Sherman v. Pub. Util. Comm’n of Tex.,

643 S.W.2d 681 (Tex. 1983) and MHCB (USA) Leasing & Fin. Corp. v. Galveston

14 Cent. App. Dist. Review Bd., 249 S.W.3d 68 (Tex. App.—Houston [1st Dist.] 2007,

pet. denied).

The Supreme Court of Texas in the City of Sherman set out the general rule

that “judicial review of administrative orders is not available unless all

administrative remedies have been pursued to the fullest extent.” 643 S.W.2d at 683.

It went on to observe, however, that “intervention by the court in administrative

proceedings may be permissible when an agency is exercising authority beyond its

statutorily conferred powers.” Id. (concluding that court had jurisdiction to consider

claim that Public Utility Commission had no statutory authority to regulate

operations or services of municipally owned utilities) (quoting Westheimer Indep.

Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978)). In City of El Paso v.

Heinrich, the supreme court further clarified that “suits to require state officials to

comply with statutory or constitutional provisions are not prohibited by sovereign

immunity. . . .” 284 S.W.3d at 372. The court held that for the “ultra vires” exception

to state actors’ sovereign immunity to apply, a suit “must not complain of a

government officer’s exercise of discretion, but rather must allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely

ministerial act.” Id.

15 The supreme court further clarified that “as a technical matter, the

governmental entities themselves—as opposed to their officers in their official

capacity—remain immune from suit.” Id. at 372–73. It held:

[B]ecause the rule that ultra vires suits are not “suit[s] against the State within the rule of immunity of the State from suit” derives from the premise that the “acts of officials which are not lawfully authorized are not acts of the State,” it follows that these suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity. This is true even though the suit is, for all practical purposes, against the state.

Id. at 373 (internal citations omitted). Thus, the ultra vires exception does not extend

to the Magistrate Judges’ claims against the Commission itself. See id.

As to the Magistrate Judges’ claims against the individual members of the

Commission in their official capacities, we observe that they have not pled any

actions taken by the individual members of the Commission outside the scope of

their duties. See id.; Crampton, 596 S.W.3d at 275; Turner v. Robinson, 534 S.W.3d

115, 126 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A state officer acts

without legal authority if he “exceeds the bounds of his granted authority or if his

acts conflict with the law itself.” Crampton, 596 S.W.3d at 275; Turner, 534 S.W.3d

at 126. The Magistrate Judges allege that the individual members of the Commission

exceeded their statutory authority by construing the law, rather than applying

established law, in deciding to issue public admonitions against them. However,

these allegations complain of a government officer’s exercise of discretion. See

16 Heinrich, 284 S.W.3d at 372. Nothing in the pleadings indicate that the individual

members of the Commission acted without legal authority or failed to perform a

purely ministerial act. See id.

The Magistrate Judges cite State Commission on Judicial Conduct v. Gist, No.

03-88-252-CV, 1990 WL 176008, at *5 (Tex. App.—Austin 1990) (case dismissed

and opinion withdrawn, Dec. 12, 1990), for the proposition that the function of the

Commission is one of fact finding, and, as such, it is to apply the facts to determined

law, not to determine, construe, or interpret what the law should be. See TEX. GOV’T

GODE § 33.001(b)(2) (defining “willful or persistent conduct that is clearly

inconsistent with the proper performance of a judge’s duties” as including “willful

violation of a provision of the Texas penal statutes or the Code of Judicial Conduct”).

We observe, however, that Gist is an unpublished opinion from 1990 that has no

precedential authority and has since been withdrawn. No precedential authority

supports the Magistrate Judges’ contention that the Commission may not construe

the law when necessary to carry out its constitutionally and statutorily conferred

duties.

The Commission, as a state agency, may “exercise those powers granted by

statute, together with those necessarily implied from the statutory authority

conferred or duties imposed.” See San Antonio River Auth. v. Austin Bridge & Rd.,

L.P., 601 S.W.3d 616, 621 (Tex. 2020) (citing City of Sherman, 643 S.W.2d at 686).

17 The challenged actions of the Commission and its individual members fall within

the specifically enumerated and necessarily implied constitutional and statutory

grant of authority. The Commission investigated a complaint filed against the

Magistrate Judges and ultimately issued a public admonition, as it is authorized to

do. See TEX. CONST. art. 5, §1-a(8) (listing public admonitions as potential outcome

of investigation into judicial wrongdoing); TEX. GOV’T CODE § 33.002 (providing

that the Commission is judicial agency charged with administering judicial

discipline). Fulfilling its duty to “administer[] judicial discipline” in this case

necessarily implied authority to interpret the laws, such as Code of Criminal

Procedure articles 17.03 and 17.15, and judicial Canons 2A and 3B(2), to determine

whether discipline of the Magistrate Judges was appropriate. Even if the

Commission or its individual members erred in exercising this discretion, we cannot

say that such an error constitutes an ultra vires act. See Honors Academy, Inc. v. Tex.

Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018) (“‘Ultra vires claims depend on the

scope of the state official’s authority,’ not the quality of the official’s decisions.

Thus, it is not an ultra vires act for an official to make an erroneous decision within

the authority granted.”) (internal citations omitted); MHCB (USA) Leasing & Fin.

Corp., 249 S.W.3d at 81 (“[J]ust because an agency determination is wrongly

decided does not render that decision outside the agency’s authority . . . : an incorrect

agency determination rendered pursuant to the agency’s authority is not a

18 determination made outside that authority.”). The Magistrate Judges’ attempt to

recharacterize their challenge to the Commission’s public admonitions as a

challenge to ultra vires acts are, thus, unavailing. See Heinrich, 284 S.W.3d at 369–

73, 377–78 n.7 (looking to “nature of the liability sought to be imposed” to determine

applicability of ultra vires exception).

We overrule the Magistrate Judges’ sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower Justice

Panel consists of Justices Keyes, Hightower, and Countiss.