In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00183-CV ________________
WINDHAM SCHOOL DISTRICT, Appellant
V.
EVEN THOMAS, Appellee ________________________________________________________________________
On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No. 23CCCV0176 ________________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, Windham School District (“WSD”) appeals an
interlocutory order denying its Plea to the Jurisdiction. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(8) (allowing for interlocutory appeal from a denial of a plea to
the jurisdiction). As discussed below, we reverse the trial court’s Order denying
WSD’s Plea to the Jurisdiction and render judgment dismissing Thomas’s claims.
1 Background
In May 2023, Even Thomas (“Thomas”) filed his Original Petition against
WSD. Thomas alleges that he was wrongfully terminated from his position as a
teacher in WSD, a district that provides educational services to students in the Texas
Department of Criminal Justice (“TDCJ”). A termination letter specified that
Thomas violated the rules when he failed to comply with the directives and policies
of the TDCJ and WSD, and refused to be pat searched when he entered the facility.
In his Original Petition, Thomas alleged claims of discrimination, retaliation,
and wrongful termination under the Texas Whistleblower Act. 1 Thomas later filed
an amended petition that only alleged a retaliation claim under the Texas
Whistleblower Act.
In response, WSD filed an Answer to Plaintiff’s Second Amended Petition
and Plea to the Jurisdiction. In the Plea to the Jurisdiction, WSD argued that it is
entitled to sovereign immunity under the Texas Whistleblower Act because Thomas
failed to allege a violation of law or that he had reported violations to a law
enforcement authority. They also argued that Thomas failed to allege that he had
1WSD removed the suit to federal court based on its belief that Thomas filed
his suit under Title VII, the Age Discrimination in Employment Act, and the Whistleblower Act. The suit was remanded back to state court when Thomas clarified that “he was only pursuing a Texas Whistleblower Act claim pursuant to Texas state law and disclaiming any interest in litigating federal causes of action.” 2 initiated the grievance process regarding his termination and timely filed this lawsuit
as required by the Act.
Thomas responded twice in the same day to WSD’s Answer to his Second
Amended Petition and filed an opposition to WSD’s Plea to the Jurisdiction stating
that he was not seeking relief under the Texas Whistleblower Act, but under the
Texas Labor Code. The same day, Thomas also filed a Third Amended Petition titled
“Plaintiff’s Third Amended Pleadings Took Out the Word Whistleblower” that
alleged WSD had retaliated against him by terminating him when he reported
violations, refused to falsify documents, and called the Fraud Hotline on his
supervisor. Nine days later, Thomas also filed “Plaintiff Files Legal Pleading under
Texas Labor Code Chapter 21 Employment Discrimination” that alleged that WSD
discriminated against him based on his age, because he was fifty-six years old at the
time of his termination. Thomas also claimed that WSD retaliated against him by
terminating him because he reported to the Windham Fraud Hotline that the principal
was “stealing time.” He alleged that WSD discriminated against him when he
refused to make false statements by evaluating him differently compared to others,
not recording him on the surveillance cameras, not allowing him to miss workdays,
and planting evidence used to terminate him.
In late January 2024, and in response to Thomas’s filings, WSD filed its
Answer to Plaintiff’s Third Amended Petition and Plea to the Jurisdiction. In its Plea
3 to the Jurisdiction, WSD argued that it is entitled to sovereign immunity and the case
should be dismissed for lack of jurisdiction because Thomas failed to meet the prima
facie elements for both age discrimination and retaliation under the Texas Labor
Code. Specifically, WSD asserted that Thomas “fails to allege elements of
discrimination and retaliation under the Texas Commission on Human Rights Act
(“TCHRA”).”
In February 2024, Thomas filed a response to WSD’s Plea to the Jurisdiction
and argued that the trial judge was unfair and gave WSD an advantage when they
did not appear at a hearing on January 18, 2024. Thomas requested that all WSD
filings after January 18, 2024, be stricken and that the trial court consider WSD’s
removal of the case to federal court as fraudulent. Thomas stated that he is being
penalized for being pro se, and he wants to return to work.
About a month later, Thomas filed “Plaintiff’s Opposed Defendant [WSD]’s
Answer to Plaintiff’s Third Amended Petition and Plea to the Jurisdiction.” In the
filing, Thomas requests the trial court “waive” WSD’s sovereign immunity claim
because WSD fraudulently removed this case to federal court. Thomas further
argued that he will be able to establish a prima facie case of retaliation once
discovery is completed. Thomas stated that he did not refuse a pat search, that he
will file a claim under the Texas Tort Claims Act (“TTCA”), and that he was denied
due process.
4 Thomas then filed a pleading that alleged employment discrimination under
the TCHRA, and later filed a pleading under the TTCA, the Texas Education Code,
and the Texas Whistleblower Act. Under the TTCA, Thomas alleged negligence,
intentional torts, and “permissive liability.” Under the Texas Education Code,
Thomas alleged breach of contract, and retaliation under the Whistleblower Act.
In April 2024, WSD filed an answer to Thomas’s new pleadings, and in a
separate filing, a Plea to the Jurisdiction and Motion to Dismiss on Thomas’s most
recent causes of action. WSD argued that Thomas’s tort claims against WSD are
barred by sovereign immunity because Thomas only alleges facts against the guards,
who are TDCJ employees, not WSD. As such, WSD contended that “plaintiff’s
issues with security and pat searches are not relevant to WSD[.]” WSD further
argued that Thomas’s tort claims do not fall within the limited waivers of sovereign
immunity under the TTCA. WSD stated that Thomas’s claims of retaliation and
intentional infliction of emotional distress are intentional torts, and intentional torts
are not included in the limited waiver of immunity. WSD then argued that Thomas’s
claim of breach of contract under the Texas Education Code must be dismissed for
lack of jurisdiction because Thomas failed to establish legislative consent to sue
WSD for breach of contract. WSD stated that it is entitled to sovereign immunity on
Thomas’s retaliation claim under the TCHRA because Thomas failed to allege the
prima facie elements of retaliation in his pleadings. Regarding Thomas’s claim under
5 the Texas Whistleblower Act, WSD stated that Thomas failed to allege the elements
of the Whistleblower Act including the specific law violated and that Thomas
initiated the grievance process.
Four days later, Thomas responded by filing “Plaintiff’s Objection to
Defendant [WSD]’s Answer to Plaintiff’s Fourth Amended Petition and Plea to the
Jurisdiction and Motion to Dismiss Pursuant to 91A.” In his response, Thomas
argued that the TTCA provides the framework for “holding governmental entities
accountable” and WSD can be held liable for tortious conduct. Thomas further
argued that he has a valid deprivation of rights claim because he was deprived of his
rights under the Constitution, and paperwork indicating that he refused to be pat
searched is false. Thomas alleged that others conspired against him causing him to
lose his job and that his due process rights were violated. He argued that WSD
breached its employment contract with him when he was wrongfully terminated for
making a complaint and not for refusing a pat search.
In early May 2024, before a hearing on WSD’s Plea to the Jurisdiction,
Thomas filed a document titled, “Ultra Vires Document.” Thomas argued that the
school superintendent and another official denied him due process and exceeded the
bounds of their authority by terminating him rather than moving him to other nearby
prisons. He also argued that the officials conspired against his rights secured by the
6 Constitution, and that he was deprived of his constitutionally protected rights by
officials acting under color of law.
On May 7, 2024, WSD responded to Thomas’s filing by stating that Thomas
failed to plead facts that fall within the ultra vires exception to sovereign immunity.
According to WSD, Thomas did not sue a state official, only the state agency. Next,
WSD argued that Thomas did not assert his new claim in a responsive pleading.
The trial court held a hearing on WSD’s Amended Plea to the Jurisdiction and
Motion to Dismiss Pursuant to Rule 91A. WSD continued to argue that it was
entitled to sovereign immunity and dismissal because Thomas failed to allege an
exception and because he failed to establish a prima facie case for his claims under
the TTCA and the Texas Education Code. In response, the trial judge acknowledged
that Thomas had a hearing with his employer regarding his termination to determine
whether he failed to go through the pat search. The trial judge noted that at the
conclusion of the hearing, the officer ruled that Thomas failed to go through the pat
search and his termination was justified. The trial judge stated that whether Thomas
failed to go through the pat search is the issue here, and because it is a fact issue,
Thomas is entitled to a jury trial on that issue.
At the conclusion of the hearing, the trial judge then denied WSD’s Plea to
the Jurisdiction. This interlocutory appeal followed.
7 Standard of Review
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004). The purpose of a plea to the jurisdiction is to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to the court’s
authority to decide a case and is never presumed and cannot be waived. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). Whether a
court has subject matter jurisdiction is a question of law that we review de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When a plea to the jurisdiction challenges the plaintiff’s pleadings, the trial
court is required to review the pleadings, construe them liberally in favor of the
plaintiff, look to the pleader’s intent, and determine whether the plaintiff “has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the
cause.” Id. If the plaintiff has pleaded facts affirmatively negating jurisdiction, the
trial court may grant the plea to the jurisdiction without allowing the plaintiff an
opportunity to amend. Id. at 227. Even so, if the pleadings merely fail to allege facts
sufficient to affirmatively demonstrate jurisdiction, “the issue is one of pleading
sufficiency and the plaintiffs should be afforded the opportunity to amend.” Id.; see
also Tex. Tech. Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024).
8 Analysis
On appeal, WSD challenges the trial court’s denial of its Plea to the
Jurisdiction in six issues. WSD argues that the trial court erred in denying its Plea to
the Jurisdiction based on sovereign immunity under the TTCA, the Texas Education
Code, the Texas Labor Code, and the Texas Whistleblower Act. WSD further argues
Thomas failed to properly plead facts that fall within the ultra vires exception to
sovereign immunity and that it is entitled to sovereign immunity for Thomas’s
federal constitutional claims.
Generally, “[i]n Texas, sovereign immunity deprives a trial court of subject
matter jurisdiction for lawsuits in which the state or certain governmental units have
been sued unless that state consents to suit.” Miranda, 133 S.W.3d at 224.
“Sovereign immunity includes two distinct principles, immunity from suit and
immunity from liability.” Id. While immunity from liability is an affirmative
defense, immunity from suit, as claimed here by WSD, deprives a court of subject
matter jurisdiction. See id. Sovereign immunity from suit defeats a trial court’s
subject matter jurisdiction and is therefore properly asserted in a plea to the
jurisdiction.
Texas Tort Claims Act
The TTCA provides a limited waiver of sovereign immunity. Tex. Civ. Prac.
& Rem. Code Ann. §§ 101.001–.109. Generally, WSD is immune from suit unless
9 the TTCA expressly waives immunity. See id. §§ 101.001(3)(A) (defining a
governmental unit to include “all departments” of the state), 101.021 (outlining
when government can be liable), 101.025 (providing for limited waiver of liability
as allowed under the TTCA); see also Tex. Nat. Res. Conservation Comm’n v. White,
46 S.W.3d 864, 868 (Tex. 2001). Under the TTCA, sovereign immunity is expressly
waived in areas that involve use of publicly owned automobiles, premises defects,
and injury arising out of conditions or use of property. Tex. Dep’t of Transp. v. Able,
35 S.W.3d 608, 611 (Tex. 2000) (citation omitted); see also Tex. Civ. Prac. & Rem.
Code Ann. § 101.021.
In his pleading titled “Plaintiff files Legal Pleading under Texas Tort Claims
Act and Violation of Plaintiff Rights to Due Process,” Thomas alleged a claim of
negligence. Thomas alleges that when he arrived at the Larry Gist State Prison on
September 9, 2022, a female guard allowed him to enter the gates of the prison
because no male guard was able to pat search him. He states that he did not refuse
to be searched, and he alleges that the guards were negligent. He further alleges that
the State is negligent by not having working cameras to show that he did nothing
wrong.
In that same pleading, Thomas alleges retaliation and intentional infliction of
emotional distress. Regarding his retaliation claim, Thomas alleges that the principal
of WSD retaliated against him by giving him unfavorable evaluations and ultimately
10 terminating him, after he refused to do “illegal activities.” He further alleges that
after his termination, WSD requested a return of retention money given to him, and
if he did not, WSD threatened to report him to the Attorney General’s office.
As for his intentional infliction of emotional distress, Thomas alleges that
WSD fraudulently removed this case to federal court, met with the former trial judge
that resulted in his removal from the case, and knew that the cameras were not
working at the state prison. Thomas alleges that his termination was intentional and
inflicted emotional distress.
In his pleadings, Thomas fails to make any allegations that fall within the
TTCA waiver of immunity. The waiver of sovereign immunity under the TTCA
states:
A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021.
Here, Thomas’s claim does not allege an injury that arises from the operation
or use of a motor-driven vehicle or equipment, and it does not involve an injury 11 caused by a condition or use of tangible personal or real property. See id. Thomas
does not claim to have sustained a personal injury, property damage, or death as
described in the TTCA, but instead he complains of his termination, unfavorable
evaluations, the actions of guards, and actions of other WSD employees. Because
Thomas’s claims do not fall within the waiver of sovereign immunity under the
TTCA, his claims of negligence, retaliation, and intentional infliction of emotional
distress are barred.
We sustain issue one.
Texas Education Code
In his pleading, Thomas also asserts what he claims is a breach of contract
under the Texas Education Code because he was terminated prior to his contract’s
end date. Thomas states that he was denied due process at his “written notice
hearing” when he challenged the reason for his termination.
WSD argues that it entitled to dismissal of Thomas’s claims of an alleged
breach of contract and due process because Thomas failed to allege a waiver of
sovereign immunity under the Texas Education Code or legislative consent.
According to WSD, the only way a claim can be brought against the State for breach
of contract, is through an express waiver provided by the legislature.
Like sovereign immunity, governmental immunity protects political
subdivisions of the state, including school districts, from liability and lawsuits. See
12 Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions
Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). “A political
subdivision enjoys governmental immunity from suit to the extent that immunity has
not been waived or abrogated by the Legislature.” Id. (citing Tex. Nat. Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)). Governmental
immunity consists of immunity from suit and from liability. Harris Cnty. Hosp. Dist.
v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Immunity from suit is
jurisdictional and bars suit. Id. Governmental immunity is waived only by clear and
unambiguous language indicating the Legislature’s intent to do so. Hillman v.
Nueces Cnty., 579 S.W.3d 354, 359–60 (Tex. 2019) (citation omitted).
The plaintiff bears the burden of alleging facts that affirmatively show that
the trial court has subject matter jurisdiction. See Tex. Air Control Bd., 852 S.W.2d
at 446. When the defendant in a suit is the state or a political subdivision thereof, the
plaintiff must plead facts that affirmatively demonstrate that immunity has been
waived and that the court has subject matter jurisdiction. Dall. Area Rapid Transit
v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
Here, Thomas fails to meet his burden to affirmatively plead facts and
demonstrate that immunity has been waived. See id. In his petition, Thomas only
states that the Texas Education Code mandates that school districts contract with
their employees, and he alleges that he was terminated mid-contract. Thomas does
13 not provide a copy of his contract, does not include language from his contract that
provides the method for resolving a suit based on breach of the contract, and he
includes no terms in his contract that would indicate the WSD’s consent to being
sued based on the circumstances herein. Nor does Thomas plead that the legislature
consented to suit in any statute or resolution. See Hillman, 579 S.W.3d at 359–60.
Since Thomas does not provide evidence that immunity for WSD has been waived
or authorized for his breach of contract claim, WSD is entitled to immunity on this
claim.
We sustain issue two.
Texas Labor Code
In its third issue, WSD argues that Thomas failed to plead facts sufficient to
waive sovereign immunity under the Texas Labor Code. WSD states that Thomas
complains of what he alleges were illegal employee actions and he argues he was
terminated for refusing to participate in the illegal actions and for not following the
chain of command when reporting the illegal actions. WSD states that it is unclear
if Thomas’s retaliation claim is brought under the TTCA, the Texas Whistleblower
Act, or the Texas Labor Code.
Generally, we construe pro se pleadings and briefs liberally. See Giddens v.
Brooks, 92 S.W.3d 878, 880 (Tex. App.—Beaumont 2002, pet. denied) (“pro se
pleadings and briefs are to be liberally construed[]”). That said, a pro se litigant is
14 held to the same standards as licensed attorneys and must comply with applicable
laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-
85 (Tex. 1978). “Our rules provide that amended pleadings and their contents take
the place of prior pleadings.” FKM P’Ship, Ltd. v. Bd. of Regents of the Univ. of
Hous. Sys., 225 S.W.3d 619, 633 (Tex. 2008) (citing Tex. R. Civ. P. 65). Thus,
causes of action not contained in an amended pleading are generally effectively
dismissed when the amended pleading is filed. Id.
A review of Thomas’s live petition does not include a claim under the Texas
Labor Code. The record confirms that Thomas previously filed a pleading that
included claims of age discrimination and retaliation under the Texas Labor Code,
but Thomas later filed his live petition, and it includes no claims or reference to the
Texas Labor Code. See id. Accordingly, we need not address WSD’s third issue.
Texas Whistleblower Act
In WSD’s fourth issue, WSD argues that it is entitled to immunity for the
alleged claims of Thomas under the Texas Whistleblower Act. According to WSD,
the elements of a whistleblower claim must be included in the pleading, and Thomas
fails to plead the necessary elements in his live pleading.
The Texas Whistleblower Act prohibits a governmental entity from
terminating or taking any adverse employment action against an employee who in
good faith reports to an appropriate law enforcement authority a violation of law by
15 the entity or a public employee. Montgomery Cnty. v. Park, 246 S.W.3d 610, 612
(Tex. 2007) (citing Tex. Gov’t Code Ann. §§ 554.001-.010). The Act contains a
provision waiving sovereign immunity to the extent of liability for authorized relief.
See Tex. Gov’t Code Ann. § 554.0035; State v. Lueck, 290 S.W.3d 876, 881–82
(Tex. 2009). To demonstrate the trial court’s jurisdiction over an asserted
Whistleblower Act claim, a plaintiff must actually allege a violation of the act and
not merely reference it. Lueck, 290 S.W.3d at 882 (“Mere reference to the … Act
does not establish the state’s consent to be sued and thus is not enough to confer
jurisdiction on the trial court.”) (quoting Tex. Dep’t of Crim. Just. v. Miller, 51
S.W.3d 583, 587 (Tex. 2001)). Thus, the elements of a Whistleblower Act claim
“must be included within the pleadings so that the trial court can determine if they
sufficiently allege a violation under the Act and fall within” the waiver of immunity
from suit provided by section 554.0035. Id. at 884. For example, under Lueck,
whether an employee made a “good faith report of a violation of law to an
appropriate law enforcement authority is a jurisdictional question.” Tex. Dep’t of
Health and Human Servs. v. Okoli, 295 S.W.3d 667, 668 (Tex. 2009).
A plaintiff establishes a claim under the Whistleblower Act by showing: (1)
he is a public employee; (2) he acted in good faith in making a report; (3) the report
involved a violation of law by an agency or employee; (4) the report was made to an
appropriate law enforcement authority; and (5) he suffered retaliation as a result of
16 making the report. See Tex. Gov’t Code Ann. § 554.002; Phelan v. Tex. Tech Univ.,
No. 07-07-00171-CV, 2008 WL 190741, at *3 (Tex. App.—Amarillo Jan. 23, 2008,
pet. denied) (mem. op.).
In his petition, Thomas alleges that he made several reports during his
employment. Thomas states that he reported that the principal was stealing time, that
a counselor had inappropriate relationships with inmates, and that he reported to the
Superintendent after his termination that WSD continued to use his teacher
credentials to receive state funding. Thomas also states that he was asked to falsify
paperwork for WSD to receive extra state funding. The record also confirms that
Thomas filed a complaint with whistleblower allegations with the U.S. Equal
Employment Opportunity Commission. In May 2023, Thomas received a letter
notifying him of dismissal of his charge of whistleblower allegations for lack of
jurisdiction. Additionally, the letter notified Thomas of his right to sue.
Although Thomas makes several general allegations of misconduct in his
petition, he fails to plead his claim with the required specificity to invoke
jurisdiction. He does not provide the required information about the nature of
prohibited conduct or violation of law as required. See Tex. Gov’t Code Ann. §
554.002; see also Lueck, 290 S.W.3d at 882–84. Thomas’s petition fails to specify
the violation of law and does not identify any law enforcement authority to which
17 he reported the alleged violations. See Tex. Gov’t Code Ann. § 554.002; see also
Lueck, 290 S.W.3d at 882–84.
Because Thomas fails to plead facts that establish a claim under the
Whistleblower Act, WSD is entitled to sovereign immunity on this claim. WSD’s
fourth issue is sustained.
Ultra Vires Exception
In its fifth issue, WSD argues that Thomas failed to plead facts that fall within
the ultra vires exception to sovereign immunity. According to WSD, Thomas’s live
pleading does not state an ultra vires claim because he does not sue a state official
in their official capacity, and he does not allege any facts that an officer acted without
legal authority.
To state a claim under the ultra vires exception, the plaintiff must allege and
prove that the named official or governmental employee acted without legal
authority or failed to perform a ministerial act. Honors Acad., Inc. v. Tex. Educ.
Agency, 555 S.W.3d 54, 68 (Tex. 2018); see Tex. Dep’t of Transp. v. Sefzik, 355
S.W.3d 618, 621 (Tex. 2011) (explaining ultra vires action may be brought against
governmental official only for nondiscretionary acts not authorized by law). “Ultra
vires claims depend on the scope of the state official’s authority.” Hall v. McRaven,
508 S.W.3d 232, 234 (Tex. 2017). The standard for an ultra-vires act is whether it
was done without legal authority, not whether it was correct. See id. at 243.
18 Thomas filed a document titled, “Ultra Vires Doctrine” wherein he claims that
the superintendent and another person denied him due process at his hearing by not
taping the hearing or providing a copy of the hearing to him. Thomas alleges that he
could not challenge his termination with the superintendent. However, Thomas only
sued WSD and did not name any WSD employees or officials as a defendant. Nor
did Thomas provide any authority that requires that his hearing be recorded or that
a copy of the recorded hearing be provided to him. See Honors Acad., Inc., 555
S.W.3d at 68. Therefore, we conclude that Thomas has not asserted a proper claim
under the ultra vires exception.
We sustain issue five.
Federal Constitutional Claims
In its last issue, WSD argues that it is entitled to sovereign immunity on any
federal constitutional claims. Even if Thomas is alleging a due process violation,
WSD argues that it has not waived its immunity under the Eleventh Amendment,
and it is therefore entitled to sovereign immunity on any claims.
In filings titled “Plaintiff’s Objection to Defendant Windham School
District’s Answer to Plaintiff’s Fourth Amended Petition and Plea to the Jurisdiction
and Motion to Dismiss Pursuant to 91A” and “Ultra Vires Doctrine,” Thomas made
vague allegations of a deprivation of his rights by an individual under color of law
and a civil rights conspiracy. See 18 U.S.C. §§ 241 (conspiracy), 242 (deprivation
19 of rights under color of law). However, both statutes that Thomas cites criminalize
conspiracy against the free exercise of a constitutional right and criminalize willful
acts under color of law that deprive a person of rights protected by the Constitution
or laws of the United States. See 18 U.S.C. §§ 241, 242. Both statutes are criminal
statutes and provide no civil remedies. See Robinson v. Overseas Mil. Sales Corp.,
21 F.3d 502, 511 (2d Cir. 1994); Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th
Cir. 1960).
In the same filings, Thomas alleges a Fourteenth Amendment due process
violation when his hearing was not recorded, or a copy of the recording was not
provided to him. Thomas does not provide any authority that it was a requirement
that WSD record the hearing at issue. Thomas bore the burden of affirmatively
demonstrating the trial court’s jurisdiction by alleging a valid waiver of immunity.
See Whitley, 104 S.W.3d at 542. The Eleventh Amendment to the United States
Constitution protects the State of Texas from suit in its own courts for an alleged
violation of federal law. See U.S. CONST. amend. XI. Thomas has directed us to no
authority to suggest that Congress has abrogated Eleventh Amendment immunity as
to claims under the Fourteenth Amendment or that the Texas Legislature waived
sovereign immunity as to claims such as this. See Mathis v. Tex. Dep’t of Fam. &
Protective Servs., No. 04-22-00123-CV, 2022 WL 6815180, at *3 (Tex. App.—San
Antonio Oct. 12, 2022, no pet.) (mem. op.). Because Thomas has not provided
20 authority that waives sovereign immunity, WSD is entitled to immunity on his
Fourteenth Amendment claim.
We sustain issue six.
Opportunity to Replead
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 plaintiff should be permitted to replead. Miranda, 133 S.W.3d at
226–27. On the other hand, if the pleadings affirmatively negate the existence of
jurisdiction, then the plaintiff is not entitled to replead. Id. at 227. In addition, “[i]f
a plaintiff has been provided a reasonable opportunity to amend after a governmental
entity files its plea to the jurisdiction, and the plaintiff’s amended pleading still does
not allege facts that would constitute a waiver of immunity, then the trial court
should dismiss the plaintiff’s action.” Sykes, 136 S.W.3d at 639; see Miranda, 133
S.W.3d at 231 (explaining that plaintiffs already repled to try to cure defects in
response to the plea to the jurisdiction).
Here, despite the trial court allowing Thomas to amend his pleadings four
times, Thomas has still failed to plead sufficient facts to invoke the trial court’s
jurisdiction. We conclude that Thomas is not entitled to remand so that he can allege
a new cause of action. Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex.
2016) (citation omitted).
21 Conclusion
Having sustained issues one, two, four, five and six, and determined that issue
three need not be resolved, we reverse the trial court’s Order denying WSD’s Plea
to the Jurisdiction and render judgment dismissing Thomas’s claims.
REVERSED AND RENDERED.
W. SCOTT GOLEMON Chief Justice
Submitted on January 24, 2025 Opinion Delivered May 22, 2025
Before Golemon, C.J., Johnson and Wright, JJ.