Dianne Hensley v. State Commission on Judicial Conduct ( 2024 )

Supreme Court of Texas
══════════
No. 22-1145
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Dianne Hensley,
Petitioner,
v.
State Commission on Judicial Conduct et al.,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
Argued October 25, 2023
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which
Justice Boyd, Justice Devine, Justice Blacklock, Justice Busby, Justice
Bland, Justice Huddle, and Justice Young joined.
Justice BLACKLOCK filed a concurring opinion, in which Justice
Devine joined.
Justice YOUNG filed a concurring opinion.
Justice LEHRMANN filed a dissenting opinion.
Judges, by their constitutionally mandated oath of office, 1 and to
promote public confidence in the integrity and impartiality of the
judiciary, must carefully and faithfully follow the law in all judicial
proceedings, irrespective of their purely personal views. 2 And while they
may have rights to hold and express personal views outside their judicial
duties, 3 their extra-judicial actions must not cast reasonable doubt on
their capacity to be equally fair to all. 4 Judges are subject to discipline
for violating these fundamental principles. 5 And the parties to a case
may move to recuse a judge who they believe cannot be fair. 6
1 See TEX. CONST. art. XVI, § 1(a) (“All elected and appointed officers,
before they enter upon the duties of their offices, shall take the following Oath
or Affirmation: ‘I, [name], do solemnly swear (or affirm), that I will faithfully
execute the duties of the office of [name office] of the State of Texas, and will
to the best of my ability preserve, protect, and defend the Constitution and
laws of the United States and of this State, so help me God.’”).
2 See TEX. CODE JUD. CONDUCT, Canon 2(A), reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. C (“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.”). We refer to the provisions of the
Texas Code of Judicial Conduct as Canons.
3 See Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002)
(holding that “prohibiting candidates for judicial election from announcing
their views on disputed legal and political issues violates the First
Amendment”).
4 See TEX. CODE JUD. CONDUCT, Canon 4A (“A judge shall conduct all of
the judge’s extra-judicial activities so that they do not: (1) cast reasonable
doubt on the judge’s capacity to act impartially as a judge; or (2) interfere with
the proper performance of judicial duties.”).
5 See TEX. CONST. art. V, § 1-a; TEX. GOV’T CODE §§ 33.001-33.051.
6 See, e.g., TEX. R. CIV. P. 18a (motions to recuse); id. R. 18b(b) (“A judge
must recuse in any proceeding in which: (1) the judge’s impartiality might
reasonably be questioned; (2) the judge has a personal bias or prejudice
2
Petitioner, a justice of the peace, 7 is authorized by virtue of her
judicial office to officiate at wedding ceremonies 8 but not required to do
so as part of her judicial duties. She announced that because of her
religious beliefs she would not perform weddings for same-sex couples
but would refer them to others who would. No one in any case before her
moved to recuse her for that reason. But the State Commission on
Judicial Conduct 9 issued her a public warning (the Public Warning) “for
casting doubt on her capacity to act impartially to persons appearing
before her as a judge due to the person’s sexual orientation in violation
of Canon 4A(1) of the Texas Code of Judicial Conduct.” 10 She did not
concerning the subject matter or a party . . . .”); see also Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 872 (2009) (holding that there is a federal due
process right to recusal “when ‘the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable’” (quoting
Withrow v. Larkin, 421 U.S. 35, 47 (1975))).
7 A justice of the peace serves a county precinct. See TEX. CONST. art. V,
§ 18. Very generally, justice courts have civil jurisdiction over small claims
involving up to $20,000 and criminal jurisdiction over misdemeanors
punishable by fine only. See TEX. GOV’T CODE §§ 27.001-27.060. There are
around 800 justices of the peace in Texas. See Office of Court Administration,
ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY: FY 2022, at v (2023).
8 See TEX. FAM. CODE § 2.202(a)(4), (b) (authorizing “a current, former,
or retired federal judge or state judge”, as defined by Section 25.025 of the Tax
Code, to conduct a marriage ceremony); TEX. TAX CODE § 25.025 (a-1)(3)(c)
(‘“State judge’ means . . . a justice of the peace . . . .”).
9 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.”).
10 State Comm’n on Jud. Conduct, Public Warning: Honorable Dianne
Hensley, Justice of the Peace, Precinct 1, Place 1, Waco, McLennan County,
Texas, CJC No. 17-1572 (Nov. 12, 2019) https://www.scjc.texas.gov/media/
46780/hensley17-1572pubwarn111219.pdf.
3
avail herself of her right to appeal to a Special Court of Review (SCR) 11
but instead sued the Commission and its members and officers for
violating the Texas Religious Freedom Restoration Act (TRFRA) 12 and
her right to freedom of speech under Article I, Section 8 of the Texas
Constitution (the Free Speech Clause). 13 The trial court dismissed her
claims for want of jurisdiction, and the court of appeals affirmed. 14
We hold that, apart from one declaratory request against the
Commission, 15 petitioner’s suit is not barred by her decision not to
appeal the Commission’s Public Warning or by sovereign immunity.
Accordingly, we affirm the part of the court of appeals’ judgment
dismissing the one declaratory request for lack of jurisdiction, reverse
the remainder of the judgment, and remand to the court of appeals to
address the remaining issues on appeal.
11 See TEX. GOV’T CODE § 33.034.
12 TEX. CIV. PRAC. & REM. CODE §§ 110.001-110.012.
13 “Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that privilege; and
no law shall ever be passed curtailing the liberty of speech or of the press.”
TEX. CONST. art. I, § 8.
14 683 S.W.3d 152 (Tex. App.—Austin 2022).
15 Hensley’s requested declaration against the Commission (but not the
commissioners) that Canon 4A violates the Free Speech Clause is barred by
sovereign immunity, as discussed in Part III.C below.
4
I
A
Dianne Hensley was first elected justice of the peace in McLennan
County 16 in 2014 for a four-year term and has been re-elected twice
since. Upon taking office, Hensley began officiating marriage
ceremonies, as justices of the peace are authorized to do, charging
$100 for each. At the time, same-sex marriage was unlawful in Texas. 17
But in June 2015, the United States Supreme Court decided Obergefell
v. Hodges, holding that the U.S. Constitution “does not permit the State
to bar same-sex couples from marriage on the same terms as accorded
to couples of the opposite sex.” 18 Hensley believes—it is undisputed,
sincerely—that officiating a same-sex marriage would be inconsistent
with her religious faith. So she stopped officiating marriages altogether.
To her knowledge, so did all the judges in the county at the time.
Concerned that couples would lack access to a low-cost wedding, Hensley
decided to resume conducting weddings for opposite-sex couples and to
refer same-sex couples to others she and her staff identified in the area
as willing to perform the marriages for the same $100 fee she charged.
She prepared a form for her staff to hand out, which explained that she
did not perform same-sex weddings because of her religious beliefs and
provided contact information for others who would.
No one complained to Hensley, her staff, or the Commission about
16 McLennan County is in central Texas. Its estimated population is
268,583, and its county seat is Waco.
17 See TEX. CONST. art. I, § 32(a); TEX. FAM. CODE § 6.204(b).
18 576 U.S. 644, 680 (2015).
5
her marriage-referral system or her ability to be fair—or even her
appearance of fairness—in any judicial proceeding. Nevertheless, the
Commission learned of her system from an interview she gave a
newspaper and opened a preliminary investigation in May 2018. 19 After
Hensley responded to the Commission’s written questions about her
officiating practices and her reasons for declining to conduct same-sex
ceremonies, the Commission issued a tentative public warning in
January 2019, 20 concluding that she was violating Canon 3B(6), which
applies to conduct in the performance of judicial duties, 21 and Canon
4A(1), which applies to a judge’s extra-judicial conduct. 22
Rather than accept the warning, Hensley chose to challenge it in
a hearing before the Commission. 23 There she asserted that her speech
19 See TEX. CONST. art. V, § 1-a(7) (“The Commission shall keep itself
informed as fully as may be of circumstances relating to the misconduct or
disability of [judges] . . . and make such preliminary investigations as it may
determine.”).
20 The Commission may discipline a judge for “willful or persistent
conduct that is clearly inconsistent with the proper performance of his duties
or casts public discredit upon the judiciary or administration of justice.” Id.
§ 1-a(6)(A). Among other things, “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. § 1-a(8).
21 “A judge shall not, in the performance of judicial duties, by words or
conduct manifest bias or prejudice, including but not limited to bias or
prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status . . . .” TEX. CODE JUD. CONDUCT,
Canon 3B(6).
22 See supra note 4.
23 Under Rule 6 of the Commission’s procedural rules, the Commission
may offer a judge the opportunity to appear informally before the Commission
terminates its investigation. Evidence is limited to the judge’s testimony and
6
was protected by the Free Speech Clause and that the Commission’s
sanction infringed on her sincerely held religious beliefs in violation of
TRFRA. She had notified the Commission and its members and officers
in writing earlier, shortly after receiving the tentative warning, of her
constitutional and TRFRA claims. At the hearing in August
2019, Hensley testified that if any party who appeared in her court
expressed doubt about her impartiality based on her refusal to perform
same-sex marriages, she would recuse herself from that case. Hensley
stopped officiating weddings entirely around the time of the hearing,
concerned that the Commission would further sanction her.
Following the hearing, the Commission issued the final Public
Warning on November 12, 2019. The Public Warning found only a
violation of Canon 4A(1), concluding that Hensley’s referral system, an
extra-judicial activity, cast reasonable doubt on her capacity to act
impartially as a judge.
B
Hensley was entitled to appeal the Public Warning to an SCR
composed of three justices of the courts of appeals selected at random by
the Chief Justice of this Court. 24 A judge must file a written request for
an SCR within 30 days after the date the Commission issues its
decision. 25 Hensley did not do so.
documentary evidence, and the judge may be represented by counsel. Hensley
had three lawyers present at her hearing.
24 TEX. GOV’T CODE § 33.034(a).
25 Id. § 33.034(b).
7
Instead, on December 17, 2019, she sued the Commission and its
members and officers 26 in district court under TRFRA. TRFRA provides
that “a government agency may not substantially burden a person’s free
exercise of religion” unless it “demonstrates that the application of the
burden to the person: (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
interest.” 27 This prohibition expressly applies to an agency “order” or
“decision”, like the Public Warning the Commission issued to Hensley. 28
TRFRA contains a waiver of sovereign immunity from a TRFRA
action. 29 A person who successfully establishes a violation is entitled to
recover declaratory relief, injunctive relief to prevent future violations,
and compensatory damages not to exceed $10,000, as well as attorney’s
fees and other expenses incurred in bringing the action. 30
Hensley asserts that the Commission violated TRFRA by its
investigation, Public Warning, and threat of future discipline if she
persists in using her referral system and declining to perform same-sex
marriages. She seeks damages for her lost income in not being able to
perform opposite-sex weddings, declaratory relief under TRFRA, and
injunctive relief prohibiting the Commission from further sanctioning
26 We refer to the defendants collectively as the Commission unless the
context or an express statement indicates otherwise.
27 TEX. CIV. PRAC. & REM. CODE § 110.003(a)-(b).
28 Id. § 110.002(a).
29 See id. § 110.008(a) (“Subject to Section 110.006, sovereign immunity
to suit and from liability is waived and abolished to the extent of liability
created by Section 110.005 . . . .”).
30 Id. § 110.005(a)-(b).
8
her speech and conduct. She also seeks several declarations under the
Uniform Declaratory Judgments Act (UDJA) against both the
Commission and the commissioners, among them that: (1) the
Commission’s interpretation and application of Canon 4A(1) violates the
Free Speech Clause; (2) the officiating of weddings is not a judicial ‘duty’
under Canon 3B(6); and (3) her referral system does not violate
Article V, Section 1-a(6)(A) of the Texas Constitution. 31 Hensley also
contends that the commissioners acted ultra vires and are therefore not
protected by sovereign immunity. Hensley does not seek any form of
relief that would require the Commission to reverse the Public Warning
or take it down from its website.
The Commission filed a plea to the jurisdiction. It asserts, first,
that Hensley’s claims are an impermissible collateral attack on the
Public Warning barred by her failure to exhaust her administrative
remedies by not appealing it to the SCR—the exclusive forum provided
by the Legislature for appeals from Commission warnings. Second, the
Commission contends that Hensley’s claims are barred by sovereign
immunity for four reasons: (1) TRFRA’s waiver of sovereign immunity
does not apply because Hensley failed to strictly comply with TRFRA’s
notice requirement, 32 which functions as a jurisdictional requirement in
31 This provision authorizes a sanction for “willful or persistent conduct
that is clearly inconsistent with the proper performance of his duties or casts
public discredit upon the judiciary or administration of justice.” TEX. CONST.
art. V, § 1-a(6)(A).
32 TEX. CIV. PRAC. & REM. CODE § 110.006.
9
all suits against a governmental entity; 33 (2) the Commission has special
immunity under Section 33.006 of the Texas Government Code, 34 not
waived by TRFRA’s general waiver; (3) the UDJA’s sovereign immunity
waiver does not apply; 35 and (4) the ultra vires doctrine does not negate
immunity because the commissioners’ actions were all discretionary and
authorized. 36 The Commission’s plea did not assert that the trial court
lacked jurisdiction because Hensley failed to plead facts that, if true,
would support her claims. 37
33 See TEX. GOV’T CODE § 311.034 (“Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits
against a governmental entity.”).
34 See id. § 33.006(b)-(c) (providing that the Commission and
commissioners are “not liable for an act or omission committed by the person
within the scope of the person’s official duties”, and “[t]he immunity from
liability provided by this section is absolute and unqualified and extends to any
action at law or in equity”).
35 See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 552
(Tex. 2019) (“[T]he UDJA . . . provid[es] only a limited waiver for challenges to
the validity of an ordinance or statute.” (citing Tex. Parks & Wildlife Dep’t v.
Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011))).
36 See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (“To
fall within this ultra vires exception, 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.”).
37 “When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts that affirmatively demonstrate the
court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
10
The trial court agreed with the Commission and dismissed
Hensley’s claims for want of jurisdiction. The court of appeals
affirmed. 38
We granted Hensley’s petition for review.
II
We begin with whether an appeal of the Public Warning to the
SCR was an administrative remedy that Hensley was required to
exhaust before bringing this suit to recover for violations of her rights
under TRFRA and the Free Speech Clause. The Commission argues that
it was, and the lower courts agreed, holding that because Hensley chose
not to avail herself of her appellate remedy, her suit is an impermissible
collateral attack on the Public Warning. For several reasons, we
disagree.
A
District courts are presumed to have the jurisdiction to resolve
legal disputes. 39 That presumption is overcome where the Constitution
38 683 S.W.3d at 152. The trial court also granted the plea to the
jurisdiction on the bases that Hensley was seeking an advisory opinion and
seeking to litigate unripe claims and granted the Commission’s alternative
plea of estoppel. The court of appeals did not address these additional reasons
for granting the plea to the jurisdiction, nor did it address any reasons for
granting the plea of estoppel.
Hensley moved for summary judgment on her claims. The trial court
did not rule on her motion, and the court of appeals did not discuss her
arguments that the motion should have been granted. Hensley and the
Commission both brief the summary-judgment issues here, but we decline to
address them in the first instance.
39 CPS Energy v. Elec. Reliability Council of Tex., 671 S.W.3d 605, 617
(Tex. 2023) (citing Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546
S.W.3d 133, 138 (Tex. 2018)); see also TEX. CONST. art. V, § 8.
11
or another law grants exclusive jurisdiction to another court or an
administrative agency. 40 “A statute may grant an agency exclusive
jurisdiction either expressly or by establishing a ‘pervasive regulatory
scheme’ that impliedly ‘indicates that the Legislature intended for the
regulatory process to be the exclusive means of remedying the problem
to which the regulation is addressed.’” 41 A state agency has exclusive
jurisdiction when the Legislature grants it sole authority to make an
initial determination in “disputes that arise within the agency’s
regulatory arena.” 42 “Thus, to establish exclusive jurisdiction over a
particular issue, there must be (1) an express or implied grant of
exclusive jurisdiction and (2) the issue must ‘fall[] within that
jurisdictional scope.’” 43 If the agency has exclusive jurisdiction over a
particular issue, a trial court lacks jurisdiction over a claim involving
that issue until the claimant has exhausted all available administrative
remedies. 44
Exhaustion is required so that the agency given exclusive
jurisdiction can exercise it and because the administrative remedies
40 CPS Energy, 671 S.W.3d at 617 (citing Chaparral Energy, 546 S.W.3d
at 138).
41 Id. (quoting Chaparral Energy, 546 S.W.3d at 138).
42 Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016)
(citing City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013)); see also In
re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004); Cash Am. Int’l Inc. v.
Bennett, 35 S.W.3d 12, 15 (Tex. 2000).
CPS Energy, 671 S.W.3d at 617 (alteration in original) (quoting
43
Chaparral Energy, 546 S.W.3d at 139).
44 Id. at 617-618.
12
provided may moot the claim. We have held repeatedly that a claim is
barred when administrative remedies that could have mooted the claim
were not exhausted. 45 But we have never held that administrative
remedies must be exhausted when they cannot moot the claim—when
exhaustion would be a pointless waste of time and resources. 46 Indeed,
we have suggested the contrary. 47 The SCR could have reversed
Hensley’s Public Warning, but she does not seek reversal, and reversal
could not have mooted her claims. One claim is that the sanction—while
it existed, until any reversal—unduly burdened her freedoms of religion
and speech. Reversal could have limited that claim to a shorter period,
45 See id. at 618-620; Garcia v. City of Willis, 593 S.W.3d 201, 211-212
(Tex. 2019); City of Beaumont v. Como, 381 S.W.3d 538, 540 (Tex. 2012); Patel
v. City of Everman, 361 S.W.3d 600, 601-602 (Tex. 2012); City of Dallas v.
Stewart, 361 S.W.3d 562, 579-580 (Tex. 2012); City of Dallas v. VSC, LLC, 347
S.W.3d 231, 235-237 (Tex. 2011).
46 A cursory reading of CPS Energy might suggest otherwise. See 671
S.W.3d at 620. That case addressed a scenario where the agency’s
determination on the issue within the area of its exclusive jurisdiction had the
potential—but was not guaranteed—to moot the plaintiff’s constitutional
claims. Requiring exhaustion was appropriate there because the agency’s
determination could have eliminated the need for the independent suit, and
constitutional claims could still be pursued following exhaustion if they weren’t
mooted by the agency’s determination. CPS Energy did not address a scenario
where exhaustion had no potential to moot the plaintiff’s constitutional claims
at all.
47 See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d
212 (Tex. 2002) (holding that a party who did not challenge an agency’s
findings was not required to pursue the available remedy of an appeal before
suing in district court); see also Hous. Fed’n of Tchrs., Loc. 2415 v. Hous. Indep.
Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987) (“Parties are not required to pursue
the administrative process regardless of the price. If irreparable harm will be
suffered and if the agency is unable to provide relief, the courts may properly
exercise their jurisdiction in order to provide an adequate remedy.”).
13
but it could not have extinguished it. The other claim is that she is
entitled to injunctive relief from the threat of future such sanctions. As
we explain, the SCR is not authorized to grant injunctive relief.
B
Article V, Section 1-a of the Texas Constitution and Chapter 33 of
the Texas Government Code create the Commission, 48 define its
powers, 49 require and govern its administrative review of complaints
and concerns regarding judges’ conduct, 50 authorize it to impose
sanctions of judges, and provide for de novo review of the Commission’s
decisions by an SCR. 51 The Commission “is an agency of the judicial
branch of state government”. 52 It “does not have the power or authority
of a court”. 53 The Commission consists of 13 members appointed with
the advice and consent of the Senate. 54 Six are judges appointed by the
Supreme Court: a justice of a court of appeals, a district judge, a county
judge, a constitutional county judge, a justice of the peace, and a
municipal judge. Two members are lawyers appointed by the State Bar.
And five are public members appointed by the Governor. Commissioners
generally serve one six-year term. 55 The Commission reviews,
48 TEX. CONST. art. V, § 1-a(2) to (14).
49 See, e.g., TEX. GOV’T CODE §§ 33.002, 33.021.
50 Id. §§ 33.0211-33.0212, 33.022.
51 Id. § 33.034.
52 Id. § 33.002(a-1).
53 Id.
54 TEX. CONST. art. V, § 1-a(2).
55 Id. § 1-a(3).
14
investigates, and hears complaints of judicial misconduct. 56 The
Commission alone is charged with enforcement of the Canons through
sanctions, including public warnings. 57 The Commission has original
jurisdiction to determine whether a judge has violated a Canon and, if
so, the discretion to decide whether to impose a sanction. Because the
Commission’s membership regularly and routinely changes by design,
one group’s decisions are not binding on the next.
A judge subject to a lesser sanction, like the Public Warning in
this case, may appeal by applying to the Chief Justice of the Supreme
Court for the appointment of an SCR. 58 An SCR is composed of three
justices of the courts of appeals randomly selected to serve for the one
appeal only. If the judge were to be sanctioned again, even for the same
type of action, or if another judge received a similar sanction, an appeal
would be to a different SCR. The opinion of one SCR does not bind
another. 59 An SCR has the power to dismiss or affirm a Commission
56 Id. § 1-a(7).
57 See Hagstette v. State Comm’n on Jud. Conduct, No. 01-19-00208-CV,
2020 WL 7349502, at *5 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.)
(mem. op.) (holding that the trial court lacked jurisdiction over a suit by three
judges to declare sanctions issued by the Commission void); Schied v. Merritt,
No. 01-15-00466-CV, 2016 WL 3751619, at *6 (Tex. App.—Houston [1st Dist.]
July 12, 2016, no pet.) (mem. op.) (holding that it lacked jurisdiction to
adjudicate a claim that the trial judge’s breached the Code of Judicial
Conduct).
58 TEX. GOV’T CODE § 33.034(a)-(b).
59 See In re Uzomba, 683 S.W.3d 358, 363-364 (Tex. Spec. Ct. Rev. 2024)
(per curiam) (noting “the recent opinion of another special court of review” that
concluded “that the [SCR] may sua sponte determine that [a] Respondent
violated additional canons”, but nevertheless sustaining the Respondent’s
15
decision, impose a lesser or greater sanction, or order the Commission
to file formal proceedings against a judge. 60 Because it is created by
statute, the SCR is limited in its powers to those expressly granted to
it. 61 Nowhere has the SCR been granted the powers of a court of general
jurisdiction or authorized to give injunctive, declaratory, or
compensatory relief.
C
Before the Commission, Hensley argued that her conduct did not
violate Canon 4A(1) and that she should not be sanctioned. She also
argued, separately, that TRFRA and the Free Speech Clause bar
enforcement of the Canon against her for declining to perform same-sex
marriages because of her religious beliefs, for stating those beliefs
publicly, and for her marriage-referral system, even if her actions
“objections to the additional charges” that “were not included in [the
Commission’s] charging document”).
60 See Rule 9(d) of the Procedural Rules for the State Commission on
Judicial Conduct.
61 See TEX CONST. art. V, § 1 (“The Legislature may establish such other
courts as it may deem necessary and prescribe the jurisdiction and
organization thereof, and may conform the jurisdiction of the district and other
inferior courts thereto.”). In line with this, the SCR has interpreted its own
jurisdiction exceedingly narrowly. See In re Jenevein, 158 S.W.3d 116 (Tex.
Spec. Ct. Rev. 2003); In re Keller, 357 S.W.3d 413 (Tex. Spec. Ct. Rev. 2010).
For example, in Jenevein, the SCR dismissed an appeal from a Commission
order of public censure because it had resulted from “formal”, not “informal”,
proceedings. 158 S.W.3d at 119. The Legislature subsequently found it
necessary to amend the governing statute to provide a statutory right to appeal
formal “censures” to the SCR. Keller, 357 S.W.3d at 420 n.9 (citing TEX. GOV’T
CODE § 33.034).
16
violated the Canon and were sanctionable. 62
The Commission ruled against Hensley on both arguments,
concluding that she had violated Canon 4A(1) and is subject to sanction
and, implicitly, by rejecting her second argument, that a sanction is not
prohibited by the Free Speech Clause and TRFRA. Interpreting and
applying the Canon was within the Commission’s jurisdiction, subject to
appeal to an SCR. But while the Commission can assess whether a
sanction is prohibited by some other law, that jurisdiction is not
exclusive. The district court may likewise determine whether a sanction
is prohibited, and it is not bound by the Commission’s or SCR’s decisions.
In this district court action against the Commission, Hensley
makes only her statutory and constitutional arguments. She has
repeatedly asserted that she does not now complain that the Public
Warning was an abuse of the Commission’s discretion to interpret and
apply Canon 4A(1). She does not seek review or reversal of that
decision. 63 She accepts it for what it is: the Commission’s exercise of its
62 See TEX. CIV. PRAC. & REM. CODE § 110.004 (“A person whose free
exercise of religion has been substantially burdened in violation of [TRFRA]
may assert that violation as a defense in a judicial or administrative
proceeding without regard to whether the proceeding is brought in the name
of the state or by any other person.”).
63 Were Hensley requesting reversal of the Public Warning in her
current action, the request would be barred by her failure to seek review of the
Public Warning in the SCR. When the Legislature specifies procedures for
obtaining judicial review of an agency decision, the appeal of that decision
must be taken in compliance with those procedures. See Grounds v. Tolar
Indep. Sch. Dist., 707 S.W.2d 889, 891-892 (Tex. 1986) (concluding that a
statute’s requirement for an appeal to be taken in a particular court meant
that “[t]he decision to appeal is optional, but the place of trial is jurisdictional”),
overruled on other grounds by Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.
2000).
17
jurisdiction to interpret and apply the Canons. But she claims, as she
did before the Commission, that the Public Warning, even if otherwise
permitted by the Canons, violates TRFRA and the Constitution.
Hensley is not seeking relief the SCR could afford, nor would the
relief it could provide moot or preclude her claims in this case. In an
appeal, the SCR could have determined both the correctness of the
Public Warning and whether TRFRA or the Free Speech Clause prohibit
it. A ruling for Hensley on either ground would have vacated the Public
Warning. But that would not have mooted Hensley’s TRFRA claim. She
still seeks redress for the burden of the Public Warning during the time
it was in effect. 64 Chapter 33 of the Government Code does not stay
warnings during the pendency of an appeal to the SCR. TRFRA allows
Hensley to sue for relief and assert that the Public Warning unduly
64 TRFRA does not necessarily require that a plaintiff file suit while the
substantial burden is still in place. See TEX. CIV. PRAC. & REM. CODE
§ 110.007(a) (“A person must bring an action to assert a claim for damages
under this chapter not later than one year after the date the person knew or
should have known of the substantial burden on the person’s free exercise of
religion.”). However, if the agency that caused the burden alleviates that
burden before the burdened party files suit, the aggrieved party may not bring
a TRFRA claim. Id. § 110.006(c) (“A government agency that receives a notice
under Subsection (a) may remedy the substantial burden on the person’s free
exercise of religion.” (emphasis added)); id. § 110.006(e) (“A person with respect
to whom a substantial burden on the person’s free exercise of religion has been
cured by a remedy implemented under [Section 110.006(c)] may not bring an
action under Section 110.005.”). Because the SCR—not the Commission
itself—would have vacated the Public Warning, the government agency that
caused Hensley’s burden would not have alleviated that burden and Hensley
would not be foreclosed from bringing a TRFRA action. See Keller, 357 S.W.3d
at 431 (“vacat[ing] the Commission’s order” and “dismiss[ing] the . . . charging
document”); In re Ginsberg, 630 S.W.3d 1, 20 (Tex. Spec. Ct. Rev. 2018)
(“revers[ing] the Commission’s public admonition of the [judge] and
dismiss[ing] the charges against him without sanction”).
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burdened the exercise of her religious freedom. The SCR could not have
provided her with the relief TRFRA provides, should her TRFRA claim
have merit. Vacating the Public Warning could not have mooted her
claim.
Moreover, in this action Hensley seeks injunctive relief under
TRFRA against the Commission prohibiting future sanctions for
repeated actions like those the Public Warning sanctioned. The SCR’s
reversal of the Public Warning would not prevent the Commission from
continuing to sanction Hensley, as it does not bind the Commission to
any future course of action or to refrain from infringing on
constitutionally protected activity. As a court that reviews the
imposition of Commission sanctions in a specific case, the SCR has no
power to prospectively bind or otherwise interfere with the
Commission’s broad discretion to investigate claims, initiate
proceedings, and order sanctions and censures. Hensley could have won
at the SCR but remained under the threat of future Commission
sanctions should she resume use of her referral system. This threat is
amplified because justices on the SCR are newly appointed for each case
and are not bound by the decisions of previous SCRs.
D
Hensley’s request for a declaration under the UDJA that the
Commission’s interpretation of Canon 4A violates the Free Speech
Clause is subject to the same exhaustion of remedies rationale as her
TRFRA claim. A declaration would prevent the Commission from
ignoring Hensley’s Free Speech Clause defense in the future should she
19
reimplement her referral system. 65 As already discussed, a favorable
SCR decision vacating the Public Warning would not restrict the
Commission from sanctioning Hensley in the future, so the SCR could
not have provided Hensley with the relief she seeks. Nor could a
favorable SCR decision moot her need for declaratory relief because the
prospective threat of future sanctions would remain following vacatur of
the Public Warning. Hensley’s requested Free Speech Clause
declaration under the UDJA is thus not barred by the exhaustion
requirement. Another of Hensley’s requested declarations—that a judge
does not violate Canon 4A by engaging in the same type of religious
speech and referral system as Hensley—is also not barred for the same
reasons.
Likewise, Hensley’s requested declarations that her selective
officiating practice does not violate Canon 3B(6) or Article V,
Section 1-a(6)(A) of the Texas Constitution are not barred by the
exhaustion requirement. The Commission did not sanction Hensley for
violating those provisions, and her appeal before the SCR would not
have involved those issues. Hensley is not required to appeal to the SCR
before seeking declaratory relief in district court for matters completely
unrelated to the Public Warning and potential appeal.
In sum, Hensley’s requested declarations are not barred by the
exhaustion requirement. Hensley’s ultra vires claim, which seeks the
65 A declaration under the UDJA “has the force and effect of a final
judgment or decree.” TEX. CIV. PRAC. & REM. CODE § 37.003(b). Such
“judgment or decree will terminate the controversy or remove an uncertainty.”
Id. § 37.003(c). “Further relief based on a declaratory judgment or decree may
be granted whenever necessary or proper.” Id. § 37.011.
20
same UDJA declaratory relief and TRFRA injunctive relief against the
commissioners, is subject to identical treatment.
* * *
The SCR could not have finally decided whether Hensley is
entitled to the relief sought in this case or awarded the relief TRFRA
provides if it is determined that her claim has merit. Nor could the SCR
have mooted Hensley’s TRFRA claim. Hensley was not required to
further exhaust her remedy by appeal to a court that could not afford
her the relief TRFRA provides to successful claimants before suing in a
court that can. 66
III
We turn to the Commission’s arguments that Hensley’s action is
barred by sovereign immunity. 67
66 TRFRA’s prohibition against a government agency substantially
burdening a person’s exercise of religion expressly “applies to any ordinance,
rule, order, decision, practice, or other exercise of governmental authority.”
TEX. CIV. PRAC. & REM. CODE § 110.002(a). Hensley does not argue, and we
need not decide, whether TRFRA thus preempts a requirement of exhaustion
of administrative remedies.
67 It is undisputed that the Commission is a state agency that is entitled
to immunity. The State Commission on Judicial Conduct is a constitutionally
created agency composed 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 entitled
to sovereign immunity. See Miranda, 133 S.W.3d at 224; Hagstette, 2020 WL
7349502, at *4. When a governmental entity challenges jurisdiction on
immunity grounds, the plaintiff’s burden of affirmatively demonstrating
jurisdiction includes establishing a waiver of immunity. Swanson, 590 S.W.3d
at 550.
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A
TRFRA waives sovereign immunity from suit and liability under
the Act. 68 The Commission argues that the waiver does not apply
because Hensley failed to give written notice of her claims as TRFRA
requires, and therefore the trial court lacks jurisdiction over this action.
A person may not sue under TRFRA without giving 60 days’ written
notice
(1) that the person’s free exercise of religion is
substantially burdened by an exercise of the government
agency’s governmental authority; 2) of the particular act or
refusal to act that is burdened; and (3) of the manner in
which the exercise of governmental authority burdens the
act or refusal to act. 69
The Commission contends that the notice Hensley gave is deficient for
two reasons.
First, Hensley sent her notices to the Commission and its
members and officers a few weeks after she received the tentative public
warning. The Commission argues that Hensley’s religious freedom was
not burdened until after the Public Warning, months later, and that she
never gave notice that the Public Warning burdened her exercise of
religious freedom. But Hensley contends that her protected religious
freedom was burdened from the Commission’s opening of an
investigation months before her notice and has continued till now. The
68 TEX. CIV. PRAC. & REM. CODE § 110.008(a).
69 Id. § 110.006(a).
22
Commission may disagree she has ever been burdened, but the notice
she gave certainly provided notice of her claim. 70
Second, the Commission argues that Hensley’s presuit notice
“merely implied that [she] had been required to suspend her
opposite-sex wedding ceremonies due to the [Commission’s]
‘investigation’ and ‘threatened penalties.’” Such notice, the Commission
contends, fails to properly state the manner in which the exercise of
governmental authority burdens the act or refusal to act as required by
TRFRA Section 110.006(a)(3). Hensley’s presuit notice, sent by her
lawyer to each Commissioner via letter, stated:
I represent Justice of the Peace Dianne Hensley. I write to
inform you that the Commission’s investigation of Judge
Hensley, and its threatened discipline of Judge Hensley for
refusing to perform same-sex weddings, substantially
burdens her free exercise of religion. See Tex. Civ. Prac. &
Rem. Code § 110.006(a)(1).
The Texas Religious Freedom Restoration Act protects a
“refusal to act that is substantially motivated by sincere
religious belief.” Tex. Civ. Prac. & Rem. Code
§§ 110.001(1). . . .
The Commission’s investigation of Judge Hensley and its
threatened penalties are imposing substantial burdens on
Judge Hensley for her refusal to perform same-sex
weddings in violation of her Christian faith. See Tex. Civ.
Prac. & Rem. Code § 110.006(a)(2)-(3).
70 See Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) (holding that
an ordinance passed to ban halfway houses operated as part of a religious
ministry burdened religious freedom from the moment it was passed, even
though it was never enforced).
23
The Commission does not dispute that Hensley’s religious beliefs are
sincere. Her notice clearly states that they were burdened by the
Commission’s threatened sanction against her for refusing to perform
same-sex marriages.
Hensley’s notice of the burden she claims to her religious freedom
is clearly sufficient under TRFRA. 71
B
The Commission argues that TRFRA’s general waiver of
sovereign immunity does not extend to the “immunity from liability”
granted the Commission and commissioners under Section 33.006 of the
Texas Government Code, which “is absolute and unqualified and
extends to any action at law or in equity.” 72
71 The court of appeals held that TRFRA does not waive the
Commission’s immunity because Hensley has not shown that she has a
“successful” claim. 683 S.W.3d at 161. But Hensley need not prove her claim
for immunity to be waived. The district court would lack jurisdiction over
Hensley’s action if she failed to plead facts supporting claims for which
immunity is waived. See Miranda, 133 S.W.3d at 226. The Commission has not
asserted that the facts Hensley alleges in her pleadings are insufficient to
support her claims.
We have indicated that TRFRA’s presuit notice requirement is not
jurisdictional. In Barr, we acknowledged the trial court’s finding of a “fail[ure]
to give notice as required by [TRFRA]”, but we did not engage in sua sponte
review of our jurisdiction as we must whenever our jurisdiction is uncertain,
and we concluded that plaintiffs were entitled to relief. 295 S.W.3d at 292 n.8,
308; see also Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 591 (5th Cir.
2013) (Elrod, J., dissenting) (concluding that the Texas Supreme Court does
not consider a plaintiff’s failure to provide proper notice under TRFRA to be a
jurisdictional defect). But see State v. Valerie Saxion, Inc., 450 S.W.3d 602, 615
n.11 (Tex. App.—Fort Worth 2014, no pet.) (citing the Morgan majority’s
proposition that “[T]RFRA’s pre-suit notice requirement is jurisdictional”).
72 TEX. GOV’T CODE § 33.006(c).
24
Section 33.006(b) expressly provides only an immunity from
liability, not an immunity from suit. 73 “[I]mmunity from liability does
not affect a court’s jurisdiction to hear a case and cannot be raised in a
plea to the jurisdiction.” 74 The trial court thus erred in relying on the
immunity provided by Section 33.006 as a basis for concluding that it
lacked jurisdiction over the Commission and commissioners. 75
C
The lower courts concluded that Hensley’s request for a
declaration against the Commission (not the commissioners) that
Canon 4A violates the Free Speech Clause is barred by sovereign
immunity. 76
The UDJA provides that “[a] person . . . whose rights . . . are
affected by a statute . . . or municipal ordinance . . . may have
determined any question of construction or validity . . . and obtain a
declaration of rights . . . thereunder.” 77 Hensley argues that this
provision waives the Commission’s sovereign immunity from her claim.
73 See Tarrant County v. Bonner, 574 S.W.3d 893, 900 (Tex. 2019)
(“Immunity from liability and immunity from suit are distinct aspects of
governmental immunity under common law. Immunity from liability protects
governmental entities from judgments; immunity from suit protects those
entities from the burdens of litigation altogether, absent legislative consent.”
(citations omitted)).
74 Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).
75 The parties also dispute the relationship between Section 33.006 and
the express waiver of sovereign immunity in TRFRA Section 110.008. We
express no opinion on the matter in this case.
Hensley made other requests for declaratory relief against the
76
Commission in the trial court that she has abandoned on appeal.
77 TEX. CIV. PRAC. & REM. CODE § 37.004(a).
25
But Canon 4A is neither an ordinance nor a statute but a rule
promulgated by this Court. Thus, the UDJA waiver does not apply.
Hensley also argues that the Commission’s sovereign immunity
from her claim is waived by the Texas Administrative Procedure Act,
which provides that “[t]he validity or applicability of a rule . . . may be
determined in an action for declaratory judgment if it is alleged that the
rule or its threatened application interferes with or impairs, or
threatens to interfere with or impair, a legal right or privilege of the
plaintiff.” 78 A “rule” is defined as “a state agency statement of general
applicability”. 79 The definition of “state agency” expressly excludes
courts. 80 Canon 4A is not a rule promulgated by a state agency.
The lower courts correctly concluded that the Commission’s
sovereign immunity is not waived for Hensley’s request for a declaration
regarding Canon 4A.
D
The lower courts dismissed Hensley’s declaratory requests
against the commissioners under both the UDJA and TRFRA on the
grounds that the commissioners’ sovereign immunity was not waived.
Hensley argues that the commissioners acted ultra vires because
“unlawful acts of officials are not acts of the State” 81 and the
commissioners have no discretion to violate TRFRA by determining that
78 TEX. GOV’T CODE § 2001.038(a).
79 Id. § 2001.003(6).
80 Id. § 2001.003(7)(c).
81 Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 76 (Tex.
2015).
26
it does not apply here. The Commission responds that in investigating
Hensley and ultimately issuing the Public Warning, the commissioners
were performing their duties precisely as authorized by the
Commission’s enabling laws. Even if the commissioners erred in
exercising their discretion, they contend, any alleged error does not
constitute an ultra vires act because the error occurred while acting
within the zone of their authority.
Not all acts of a government official misinterpreting and
misapplying a law are ultra vires. Sovereign immunity bars suits
complaining of legal errors stemming from the exercise of the officer’s
absolute discretion but not suits complaining of those errors stemming
from an officer’s exercise of limited discretion. 82 Acts within an officer’s
absolute discretion are those where the officer exercises “free
decision-making without any constraints”, while acts within the officer’s
limited discretion are those where the officer must exercise “discretion
that is otherwise constrained by the principles of law.” 83
Hensley alleges that the commissioners’ decision to warn her
violated her statutorily protected constitutional right to free exercise.
We have noted that questions of law that determine the constitutionality
of an agency’s decision fall “outside the competence of administrative
agencies” because “the power of constitutional construction is inherent
in, and exclusive to, the judiciary.” 84 Though the Commission does have
82 Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,
163 (Tex. 2016).
83 Id.84 Stewart, 361 S.W.3d at 578-579.
27
the discretion to issue informal warnings, 85 the commissioners’
discretion to issue a warning over a TRFRA defense is necessarily of the
limited sort because the Commission does not have absolute discretion
to interpret and apply TRFRA. Because the commissioners’ discretion in
interpreting and applying TRFRA is limited, a claim that alleges that
the Public Warning violated TRFRA is a sufficient ultra vires allegation
to survive a plea to the jurisdiction.
* * * * *
We affirm the part of the court of appeals’ judgment dismissing
Hensley’s requested declaratory relief against the Commission
concerning the Free Speech Clause for lack of jurisdiction, reverse the
remainder of the judgment, and remand to the court of appeals for
consideration of the unaddressed issues remaining on appeal.
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: June 28, 2024
85 TEX. CONST. art. V, § 1-a(8).
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