Empower Texans, Inc. and Michael Quinn Sullivan v. State of Texas Ethics Commission Seanaa Willing, in Her Capacity as Executive Director of the Texas Ethics Commission Tom Ramsay, Individually and in His Capacity as Commissioner Paul Hobby, Individually and in His Capacity as Commissioner ( 2017 )


Menu:
  •                                                                                        ACCEPTED
    03-17-00770-CV
    21333123
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    12/15/2017 4:35 PM
    JEFFREY D. KYLE
    CLERK
    No. 03-17-00770-CV
    _______________________________________________
    FILED IN
    IN THE COURT OF APPEALS     3rd COURT OF APPEALS
    AUSTIN, TEXAS
    THIRD JUDICIAL DISTRICT OF TEXAS12/15/2017 4:35:09 PM
    AT AUSTIN               JEFFREY D. KYLE
    _______________________________________________     Clerk
    Empower Texans, Inc., and Michael Quinn Sullivan,
    Appellants
    v.
    Tom Ramsay, Paul Hobby, Hugh C. Akin, James T. Clancy,
    Wilhelmina R. Delco, Warren T. Harrison, Robert K. Long, and
    Charles G. Untermeyer, in their individual capacities,
    Appellees.
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
    CAUSE NO. D-1-GN-14-001252,
    THE HONORABLE AMY CLARK MEACHUM PRESIDING
    Motion to Dismiss Interlocutory Appeal
    for Want of Jurisdiction
    Eric J.R. Nichols                       BECK REDDEN, LLP
    enichols@beckredden.com                 515 Congress Avenue, Suite 1900
    State Bar No. 14994500                  Austin, TX 78701
    Amanda G. Taylor                        (512) 708-1000
    State Bar No. 24045921
    ataylor@beckredden.com                  ATTORNEYS FOR APPELLEES
    Amy K. Penn
    State Bar No. 24056117
    apenn@beckredden.com
    IDENTITY OF PARTIES AND COUNSEL
    Appellants     Empower Texans, Inc. and
    (Plaintiffs)   Michael Quinn Sullivan
    Appellants’    Joseph M. Nixon
    Counsel        AKERMAN, LLP
    1300 Post Oak Blvd., Suite 2500
    Houston, TX 77056
    James E. “Trey” Trainor, III
    AKERMAN, LLP
    700 Lavaca Street, Suite 1400
    Austin, TX 78701
    Appellees      Tom Ramsay, Paul Hobby, Hugh C. Akin, James T. Clancy,
    (Defendants)   Wilhelmina R. Delco, Warren T. Harrison, Robert K. Long,
    and Charles G. Untermeyer, in their individual capacities.
    •   The order from which this appeal is pursued grants
    a plea to the jurisdiction filed by only these eight
    individuals, in their individual capacities. Hence,
    they are the only Appellees.
    Additional     The Texas Ethics Commission.
    Defendants
    (Interested       •   Appellants’ Notice of Appeal misnames the
    Parties; Not          Commission as the “State of Texas Ethics
    Appellees)            Commission.” It should be corrected in this Court’s
    records and future filings. See TEX. CONST., art. III,
    § 24a.
    Additional     Seana Willing, in her capacity as Executive Director of the
    Defendants     Texas Ethics Commission.
    (Interested
    Parties; Not      •   When this suit was filed, Natalia Luna Ashley was
    Appellees)            the Executive Director of the Texas Ethics
    (cont.)               Commission.       She has been automatically
    substituted in this proceeding by her successor,
    Seana Willing. Tex. R. App. P. 7.2(a).
    •   Appellants’ Notice of Appeal misspells Ms. Willing’s
    first name. It should be corrected in this Court’s
    records and future filings.
    Tom Ramsay, Hugh C. Akin, James T. Clancy, and Charles
    G. Untermeyer in their official capacities as current
    Commissioners of the Texas Ethics Commission; and
    Steve P. Wolens, Chris Flood, Mary K. Kennedy, and Chad
    M. Craycraft, in their official capacities as current,
    successor Commissioners of the Texas Ethics Commission.
    •   The terms of former Commissioners Hobby, Delco,
    Harrison, and Long expired on November 19, 2015.
    In any proceeding against the Commissioners in
    their official capacities, their above-named
    successors should be automatically substituted.
    Tex. R. App. P. 7.2(a).
    Appellees’     Eric J.R. Nichols
    Counsel        Amanda Taylor
    Amy K. Penn
    BECK REDDEN, LLP
    515 Congress Ave., Suite 1900
    Austin, Texas 78701
    ii
    TABLE OF CONTENTS
    PAGE
    IDENTITY OF PARTIES AND COUNSEL ..................................................... i
    TABLE OF CONTENTS ................................................................................ iii
    INDEX OF AUTHORITIES ........................................................................... v
    SUMMARY OF THE MOTION.......................................................................1
    BACKGROUND ..............................................................................................1
    ARGUMENT & AUTHORITIES .................................................................... 5
    A.       Appellants Must Demonstrate a Specific, Proper
    Statutory Basis for Interlocutory Jurisdiction. ........................... 5
    B.       Section 51.014(a)(8) Provides Interlocutory
    Jurisdiction to Review Orders on Pleas by
    Governmental Units—Not State Actors in their
    Individual Capacities. ................................................................. 5
    C.       This Interlocutory Order Grants a Plea Filed by
    Individuals, Not a Governmental Unit. ...................................... 9
    PRAYER .......................................................................................................13
    CERTIFICATE OF CONFERENCE ..............................................................14
    CERTIFICATE OF SERVICE........................................................................14
    iii
    APPENDIX
    1.   Individual Defendants’ Plea to the Jurisdiction,
    without exhibits, 6.13.2017 (CR.3941-3956).
    2.   Fourth Amended Petition,          without   exhibits,
    7.26.2017 (CR.4247-4285).
    3.   Response to the Plea, without exhibits, 7.28.2017
    (CR.4291-4295).
    4.   Letter Ruling, 9.15.2017 (CR.4298).
    5.   Order Granting Individual         Defendants’   Plea,
    10.20.2017 (CR.4325-4326).
    6.   Notice of Appeal, without exhibits, 11.9.2017
    (CR.4327-4328).
    7.   Docketing Statement, 11.28.2017
    iv
    INDEX OF AUTHORITIES
    Cases                                                                                             Page(s)
    Adams v. Harris County,
    No. 04-15-00287-CV, 2015 Tex. App.
    LEXIS 12459 (Tex. App.—San Antonio
    Dec. 9, 2015, pet. denied) .............................................................. 8, 10, 12
    Am. Heritage Capital, LP v. Gonzalez,
    
    436 S.W.3d 865
    (Tex. App.—Dallas
    2014, no pet.). ........................................................................................... 5
    Cen-Tex Childcare, Inc. v. Johnson,
    
    339 S.W.3d 734
    (Tex. App.—Fort Worth
    2011, no pet.) ............................................................................................ 5
    City of Donna v. Ramirez,
    No. 13-16-00619-CV, 2017 Tex. App.
    LEXIS 10476 (Tex. App.—Corpus Christi
    Nov. 9, 2017, no pet.) ................................................................................ 8
    City of Houston v. Estate of Jones,
    
    388 S.W.3d 663
    (Tex. 2012) ..................................................................... 5
    Empower Texans, Inc.
    v. Texas Ethics Comm’n,
    No. 03-16-00019-CV, 2016 Tex. App.
    LEXIS 12446 (Tex. App.—Austin
    Nov. 22, 2016, no pet.) ......................................................................... 2, 3
    Garcia v. Kubosh,
    
    377 S.W.3d 89
    (Tex. App.—Houston
    [1st Dist.] 2012, no pet.) ........................................................................... 6
    Great Sw. Reg’l Ctr., LLC v. ACSWD, LP,
    No. 03-17-00359-CV, 2017 Tex. App.
    LEXIS 8156 (Tex. App.—Austin
    Aug. 25, 2017, no pet.) .........................................................................6, 12
    v
    LTTS Charter Sch., Inc. v. C2 Constr., Inc.,
    
    342 S.W.3d 73
    (Tex. 2011) ........................................................................ 6
    Minton v. Gunn,
    
    355 S.W.3d 634
    (Tex. 2011) ...................................................................... 5
    Sanders v. City of Grapevine,
    
    218 S.W.3d 772
    (Tex. App.—Fort Worth
    2007, pet. denied)..................................................................................... 9
    Stary v. DeBord,
    
    967 S.W.2d 352
    (Tex. 1998) ..................................................................... 5
    Tex. A&M Univ. Sys. v. Koseoglu,
    
    233 S.W.3d 835
    (Tex. 2007) ................................................................. 7, 8
    Tex. Dep’t of Pub. Safety v. Petta,
    
    44 S.W.3d 575
    (Tex. 2001) ....................................................................... 9
    STATUTES
    42 U.S.C. § 1983 ................................................................ 2, 3, 4, 9, 10, 11, 
    12 Tex. Civ
    . Prac. & Rem. Code
    § 51.014(a)(8)....................................................................1, 4, 5, 6, 8, 9, 12
    § 101.001(3) .............................................................................................. 7
    Tex. Gov’t Code § 571.137(d) ......................................................................... 9
    vi
    TO THE HONORABLE THIRD COURT OF APPEALS
    SUMMARY OF THE MOTION
    Appellants Empower Texans, Inc., and Michael Quinn Sullivan seek to
    appeal an interlocutory order, claiming that section 51.014(a)(8) of the Texas
    Civil Practice and Remedies Code provides a basis for appellate jurisdiction.
    They are mistaken. Section 51.014(a)(8) allows for an interlocutory appeal
    of an order granting or denying a plea to the jurisdiction brought by a
    governmental unit. The underlying order grants a plea brought by eight
    commissioners in their individual capacities (Appellees), not by a
    governmental unit nor by governmental officials in their official capacities.
    Moreover, the plea was based on standing, ripeness, and mootness—not an
    assertion of sovereign immunity. Hence, section 51.014(a)(8) does not
    provide a basis for appellate jurisdiction to review this interlocutory order.
    BACKGROUND
    Empower Texans, Inc. and its President, Michael Quinn Sullivan,
    brought the underlying suit in 2014 seeking a protective order and moving
    to quash two subpoenas that the Texas Ethics Commission (“the
    Commission”) issued as part of its investigation of complaints filed against
    Empower Texans. CR.6, 20. The complaints alleged that Empower Texans
    violated certain campaign finance rules set forth in Chapter 305 of the Texas
    Government Code. CR.11, 3943-3944. 1
    Empower Texans and Sullivan amended their petition in November
    2015 to add the then-current Commissioners as defendants in their
    individual and official capacities. CR.2243-2244. As is relevant here, Count
    IV of the Second Amended Petition complained that the eight named
    Commissioners, in their individual capacities, were liable under 42 U.S.C.
    1There  are currently two other appeals pending before this Court in related
    matters. In Cause No. 03-17-00392-CV, Sullivan appeals from the denial of a TCPA
    motion that he filed against the Commission in a separate trial court proceeding (D-1-GN-
    17-001878), which Sullivan filed as a de novo appeal from the Commission’s final
    administrative order finding him in violation of Section 305.003 of the Texas Government
    Code. That matter was argued before Justices Puryear, Field, and Bourland on December
    13, 2017.
    In Cause No. 03-16-00872-CV, Empower Texans and Sullivan appeal from the
    grant of a partial plea to the jurisdiction filed by the Commission, which dismissed some
    of Sullivan’s and Empower Texans’ claims in a separate lawsuit (D-1-GN-15-004455) on
    the basis of immunity, mootness, and standing. That lawsuit, like this one, is also based
    on Empower Texans’ and Sullivan’s challenges to the Commission’s subpoenas and its
    ability under Chapter 571 of the Texas Government Code to enforce the lobbying
    regulations in Chapter 305. That matter is fully briefed and pending a submission notice.
    Notably too, in Cause No. 03-16-00019-CV, this Court dismissed a prior
    interlocutory appeal pursued by Empower Texans and Sullivan in this same lawsuit (D-1-
    GN-14-001252). There, Empower Texans appealed from an order denying its application
    for a temporary injunction to prohibit the Commission from taking further action to
    investigate the complaints. While the appeal was pending, the Commission dismissed its
    subpoenas. This Court dismissed the appeal as moot. Empower Texans, Inc. v. Texas
    Ethics Comm'n, No. 03-16-00019-CV, 2016 Tex. App. LEXIS 12446, *2 (Tex. App.—
    Austin Nov. 22, 2016, no pet.).
    2
    § 1983 for their actions related to the investigation of Empower Texans and
    Sullivan. CR.2266-2270.
    In the fall of 2016, the Commission withdrew its subpoenas and
    formally dismissed the complaints against Empower Texans. CR.3945; see
    also Empower Texans, 2016 Tex. App. LEXIS 12446, at *5.
    The eight named Commissioners, in their individual capacities, then
    filed an “Individual Defendants’ Plea to the Jurisdiction,” arguing that the
    trial court lacked subject-matter jurisdiction over the section 1983 claims
    against them in Count IV because (1) Empower Texans and Sullivan lacked
    standing, having suffered no cognizable injury; (2) the claims were not ripe,
    because the subpoenas had never been enforced at the time of filing suit and
    none of Empower Texans’ or Sullivan’s anticipated injuries ever
    materialized; and, (3) alternatively, the claims were moot because the
    subpoenas had been fully and finally withdrawn.        CR.3941, 3949-3955
    (Appx. 1).
    The plea was filed in response to the Second Amended Petition. Prior
    to the hearing, Empower Texans and Sullivan filed a Fourth Amended
    Petition that did not make substantive changes to the section 1983 claims
    asserted against the Commissioners individually. However, these claims
    became “Count V” in the Fourth Amended Petition, which was the live
    3
    pleading for purposes of the hearing on August 15, 2017. CR.4247-4285
    (Appx. 2); RR.11-12.
    The Honorable Amy Clark Meachum granted the plea. The Court
    issued a letter ruling on September 15 (CR.4298, Appx. 4), followed by a
    formal order on October 20, 2017 (CR.4325-4326, Appx. 5). The order states
    that the “Individual Defendants’ Plea to the Jurisdiction is GRANTED, and
    all claims brought pursuant to 42 U.S.C. § 1983 contained within Count V of
    Plaintiffs’ Fourth Amended Petition are DISMISSED in their entirety with
    prejudice as to refiling.” CR.4325-4326 (Appx. 5). Because the order does
    not dispose of all claims and parties, it is interlocutory.
    Empower Texans and Sullivan filed their notice of appeal “pursuant to
    section 51.014 (a)(8) of the Texas Civil Practice and Remedies Code” on
    November 9. CR.4327-4331 (Appx. 6). Their Docketing Statement likewise
    claims that section 51.018(a)(8) provides this Court with jurisdiction to
    review the interlocutory order. Appx. 10, pg. 2, § V.
    4
    ARGUMENT & AUTHORITIES
    A.   Appellants Must Demonstrate a Specific, Proper Statutory
    Basis for Interlocutory Jurisdiction.
    An interlocutory order is appealable “only if a statute explicitly
    provides appellate jurisdiction.” Stary v. DeBord, 
    967 S.W.2d 352
    , 352-53
    (Tex. 1998); Cen-Tex Childcare, Inc. v. Johnson, 
    339 S.W.3d 734
    (Tex.
    App.—Fort Worth 2011, no pet.).           Courts strictly construe statutes
    authorizing interlocutory appeals because they are a “narrow exception to
    the general rule that only final judgments are appealable.” City of Houston
    v. Estate of Jones, 
    388 S.W.3d 663
    , 666 (Tex. 2012) (per curiam).
    The appellate court must determine its jurisdiction to consider the
    interlocutory appeal before reaching the merits.     Minton v. Gunn, 
    355 S.W.3d 634
    , 639 (Tex. 2011).        “[I]f the record does not affirmatively
    demonstrate that appellate jurisdiction is proper, the appeal must be
    dismissed.” Am. Heritage Capital, LP v. Gonzalez, 
    436 S.W.3d 865
    , 869
    (Tex. App.—Dallas 2014, no pet.).
    B.   Section 51.014(a)(8) Provides Interlocutory Jurisdiction to
    Review Orders on Pleas by Governmental Units—Not State
    Actors in their Individual Capacities.
    Section 51.014(a)(8) allows an interlocutory appeal from an order that
    “grants or denies a plea to the jurisdiction by a governmental unit as that
    term is defined in Section 101.001.”        Tex. Civ. Prac. & Rem. Code
    5
    § 51.014(a)(8); see also LTTS Charter Sch., Inc. v. C2 Constr., Inc., 
    342 S.W.3d 73
    , 76 (Tex. 2011) (jurisdictional decision turned on whether
    appellant fit within the definition of “governmental unit” in Section
    101.001(3)(D); Great Sw. Reg’l Ctr., LLC v. ACSWD, LP, No. 03-17-00359-
    CV, 2017 Tex. App. LEXIS 8156, *2 (Tex. App.—Austin Aug. 25, 2017, no pet.)
    (dismissing interlocutory appeal on appellee’s motion prior to merits
    briefing because appellants, who relied on section 51.014(a)(8) for
    jurisdiction, were not “governmental units”).
    “[T]he statute’s limitation of interlocutory jurisdiction to certain pleas
    to the jurisdiction—those brought by a governmental unit—indicates that the
    Legislature did not intend section 51.014(a)(8) as a blanket authorization for
    interlocutory appellate review of a trial courts’ subject-matter jurisdiction.”
    Garcia v. Kubosh, 
    377 S.W.3d 89
    , 105 & 107 n.41 (Tex. App.—Houston [1st
    Dist.] 2012, no pet.) (Brown, J., concurring). “[W]hen a party appeals from
    an interlocutory ruling on a plea to the jurisdiction filed by an entity that is
    not a ‘governmental unit,’ as defined in section 51.014(a)(8), courts of
    appeals generally dismiss the appeal for lack of appellate jurisdiction without
    deciding challenges to the trial court's subject-matter jurisdiction.” 
    Id. (collecting cases).
    6
    Section 101.001(3) defines “governmental unit” as:
    (A) this state and all the several agencies of
    government that collectively constitute the
    government of this state, including other agencies
    bearing different designations, and all departments,
    bureaus, boards, commissions, offices, agencies,
    councils, and courts;
    (B) a political subdivision of this state, including any
    city, county, school district, junior college district,
    levee improvement district, drainage district,
    irrigation district, water improvement district, water
    control and improvement district, water control and
    preservation district, freshwater supply district,
    navigation district, conservation and reclamation
    district, soil conservation district, communication
    district, public health district, and river authority;
    (C) an emergency service organization; and
    (D) any other institution, agency, or organ of
    government the status and authority of which are
    derived from the Constitution of Texas or from laws
    passed by the legislature under the constitution.
    Tex. Civ. Prac. & Rem. Code § 101.001(3).
    Each category of this definition facially refers to a type of entity, not an
    individual.    Nevertheless, the Texas Supreme Court has held that the
    definition includes state officials who are sued in their official capacities
    when they file a plea “invoking the sovereign immunity from suit held by the
    government itself.” Tex. A&M Univ. Sys. v. Koseoglu, 
    233 S.W.3d 835
    , 837,
    843-46 (Tex. 2007). The Koseoglu Court explained: “A suit against a state
    7
    official in his official capacity ‘is not a suit against the official personally, for
    the real party in interest is the entity.’ Such a suit actually seeks to impose
    liability against the governmental unit rather than on the individual
    specifically named and ‘is, in all respects other than name, … a suit against
    the entity.” 
    Id. (internal citations
    omitted).        Because the defendant in
    Koseoglu “filed a plea to the jurisdiction in defense of claims against him in
    his official capacity,” the appellate court had jurisdiction under section
    51.014(a)(8). 
    Id. at 846.
    The Court made clear, however, that no claims
    against the defendant in his individual capacity were at issue in the
    interlocutory appeal. 
    Id. at 846,
    n.3.
    Without question, interlocutory orders on pleas to the jurisdiction filed
    by state actors seeking dismissal of claims against them in their individual
    capacities remain outside the scope of section 51.014(a)(8). See, e.g., City of
    Donna v. Ramirez, No. 13-16-00619-CV, 2017 Tex. App. LEXIS 10476, *19
    (Tex. App.—Corpus Christi Nov. 9, 2017, no pet.) (holding “appellants’
    interlocutory appeal [of order denying plea based on declaratory judgment
    claims asserted against state actors in their individual capacities] is not
    authorized by section 51.014(a)(8)”); Adams v. Harris County, No. 04-15-
    00287-CV, 2015 Tex. App. LEXIS 12459, *9 (Tex. App.—San Antonio Dec. 9,
    2015, pet. denied) (holding order granting plea and dismissing 42 U.S.C.
    8
    § 1983 claims brought against state actor in his individual capacity was not
    subject to interlocutory appeal under section 51.014(a)(8)); Sanders v. City
    of Grapevine, 
    218 S.W.3d 772
    , 776 (Tex. App.—Fort Worth 2007, pet.
    denied) (holding trial court’s order granting plea to jurisdiction and
    dismissing with prejudice claims against city officials in their individual
    capacities was not an appealable interlocutory order under section
    51.014(a)(8)).
    C.    This Interlocutory Order Grants a Plea Filed by Individuals,
    Not a Governmental Unit.
    There can be no doubt on this record that the order appealed from is
    outside the scope of section 51.014(a)(8) because it was granted on behalf of
    eight individual defendants in their individual capacities. This is apparent
    from a review of the pleadings, the plea and the response to the plea, the
    hearing transcript, and the order.
    Live Pleading: Empower Texans’ and Sullivan’s Fourth Amended
    Petition asserted only two grounds for the trial court’s subject-matter
    jurisdiction: (1) Texas Government Code § 571.137(d); and (2) 42 U.S.C
    § 1983.   CR.4249 (Appx. 2).      The first supports a motion to quash an
    administrative subpoena, which is not at issue here. The second supports a
    claim of constitutional deprivation brought against defendants in their
    individual (not official) capacities. See Tex. Dep’t of Pub. Safety v. Petta, 44
    
    9 S.W.3d 575
    , 581 (Tex. 2001); Adams, 2015 Tex. App. LEXIS 12459, at *9 (“A
    section 1983 claim against a governmental official or employee in his
    individual capacity for actions taken under the authority of his office seeks
    to impose personal monetary liability on the officer or employee. It is not a
    claim against a governmental unit, and a person sued only in his individual
    capacity may not assert the governmental unit's sovereign immunity.”).
    Count V of the petition asserts that the individual Commissioners
    violated Empower Texans’ and Sullivan’s constitutional rights by engaging
    in certain conduct related to their investigation of the complaints and
    issuance of the subpoenas. CR.3945-3948 (Appx. 1); CR.4276-4282 (Appx.
    2). Empower Texans and Sullivan claimed they were damaged by such
    conduct because they were “forced to expend time and resources in their
    defense, as well as attorney’s fees.” CR.4279 (Appx. 2). “Accordingly, [they
    sought] relief and damages as is authorized pursuant to 42 U.S.C. [§] 1983
    and attorney’s fees, costs, and expenses pursuant to 42 U.S.C. [§] 1988.”
    CR.4279, 4282 (Appx. 2).
    Plea, Response, and Hearing: The plea was expressly filed by the
    “Individual Defendants” in their individual capacities, seeking dismissal of
    the section 1983 claims set forth in Count V. CR.3941, 3945 (Appx. 1). Their
    plea was in no way based on an assertion of immunity.           Instead, the
    10
    Individual Defendants urged that the trial court lacked jurisdiction because
    (1) Empower Texans and Sullivan lacked standing to assert the claims,
    having suffered no legally cognizable injury; (2) the claims were not ripe; or
    alternatively, (3) the claims were moot following the Commission’s full and
    final dismissal of the complaints and termination of its investigation into
    Empower Texans’ activities. CR.3949-3955 (Appx. 1).
    In response, Empower Texans and Sullivan agreed that the claims
    subject to the plea were brought “under 42 U.S.C. 1983 against the
    Defendants in their individual capacities.” CR.4292 (Appx. 3). The response
    makes clear that the plea did not involve any claims against the defendants
    in their official capacities, any claims against the Commission as a
    governmental unit, nor any assertion of immunity. CR.4291-4295 (Appx. 3).
    This was confirmed by the argument presented at the hearing. Counsel
    for the Individual Defendants made clear that the plea was brought only by
    the eight named defendants in their individual capacities, and that it was
    “focused solely on claims brought pursuant to 42 U.S.C. 1983.” RR.5:20-24,
    10:17-23, 22:9-12. Counsel for Empower Texans and Sullivan unequivocally
    acknowledged that the plea was aimed at the section 1983 claims against the
    defendants in their individual capacities, and that “there’s a difference”
    11
    between this type of claim and one brought against a state official in his
    official capacity. RR.41:7-19.
    Order Granting Plea: Consistent with the pleadings and argument
    presented, the district court “ORDERED that the Individual Defendants’
    Plea to the Jurisdiction is GRANTED, and all claims brought pursuant to 42
    U.S.C. § 1983 contained within Count V of the Plaintiffs’ Fourth Amended
    Petition are DISMISSED in their entirety with prejudice as to refiling.”
    CR.4325-4326 (Appx. 5).
    This order does not grant or deny “a plea to the jurisdiction by a
    governmental unit” within the scope of section 51.014(a)(8). All claims that
    were the subject of the plea and resulting order were brought against the
    Individual Defendants in their individual capacities. The plea and order do
    not cover any claims against the Commissioners in their official capacities,
    and the Individual Defendant did not rely on sovereign immunity as the basis
    for their plea. Hence, section 51.014(a)(8) does not provide a basis for
    jurisdiction over this interlocutory appeal. The appeal must be dismissed for
    a want of jurisdiction. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); see also
    Great Sw. Reg’l, 2017 Tex. App. LEXIS 8156, at *2; Adams, 2015 Tex. App.
    LEXIS 12459, at *9.
    12
    PRAYER
    For these reasons, Appellees (Tom Ramsay, Paul Hobby, Hugh Akin,
    James Clancy, Wilhelmina Delco, Warren Harrison, Robert Long, and
    Charles Untermeyer, in their individual capacities) respectfully pray that this
    Court grant their Motion to Dismiss the Appeal for a Want of Jurisdiction,
    and tax all costs against Appellants, Empower Texans, Inc., and Michael
    Quinn Sullivan. The Appellees further request any and all further relief to
    which they may be entitled in law or equity.
    Respectfully submitted,
    BECK REDDEN, LLP
    515 Congress Avenue, Suite 1900
    Austin, TX 78701
    (512) 708-1000
    By: /s/Amanda Taylor
    Eric J.R. Nichols
    enichols@beckredden.com
    State Bar No. 14994500
    Amanda G. Taylor
    State Bar No. 24045921
    ataylor@beckredden.com
    Amy K. Penn
    State Bar No. 24056117
    apenn@beckredden.com
    ATTORNEYS FOR APPELLEES
    13
    CERTIFICATE OF CONFERENCE
    As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify
    that counsel for Appellees has conferred with counsel for Appellants about
    the merits of Appellees’ Motion. Mr. Joe Nixon, counsel for Appellants, is
    opposed to the relief requested herein.
    /s/ Amanda G. Taylor
    Amanda G. Taylor
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing Motion to
    Dismiss and Award Just Damages has been electronically filed and served on
    all counsel below on December 15, 2017. See Tex. R. App. P. 9.2(c)(1),
    9.5(b)(1).
    Joseph M. Nixon                   James E. “Trey” Trainor, III
    joseph.nixon@akerman.com                Trey.trainor@akerman.com
    AKERMAN, LLP                            AKERMAN, LLP
    1300 Post Oak Blvd., Suite 2500          700 Lavaca Street, Suite 1400
    Houston, TX 77056                       Austin, TX 78701
    (713) 623-0887                         (512) 623-6700
    (713) 960-1527 Facsimile               (512) 623-6701 Facsimile
    Attorneys for Appellants
    /s/ Amanda G. Taylor
    Amanda G. Taylor
    14
    Appx. 1
    3941
    3942
    3943
    3944
    3945
    3946
    3947
    3948
    3949
    3950
    3951
    3952
    3953
    3954
    3955
    3956
    Appx. 2
    2
    4247
    4248
    4249
    4250
    4251
    4252
    4253
    4254
    4255
    4256
    4257
    4258
    4259
    4260
    4261
    4262
    4263
    4264
    4265
    4266
    4267
    4268
    4269
    4270
    4271
    4272
    4273
    4274
    4275
    4276
    4277
    4278
    4279
    4280
    4281
    4282
    4283
    4284
    4285
    Appx. 3
    4291
    4292
    4293
    4294
    4295
    Appx. 4
    4298
    Appx. 5
    4325
    4326
    11/9/2017 12:32 PM
    Appx. 6                                             Velva L. Price
    District Clerk
    CAUSE NO. D-1-GN-14-001252                                    Travis County
    D-1-GN-14-001252
    EMPOWER TEXANS, INC., and                           §                                        Victoria
    IN THE DISTRICT COURT   OF Chambers
    MICHAEL QUINN SULLIVAN,                             §
    Plaintiffs,                          §
    §
    V.                           §
    §
    STATE OF TEXAS ETHICS COMMISSION,                   §
    SEANAA WILLING, in hers capacity as Executive       §
    Director of the Texas Ethics Commission, TOM        §
    RAMSAY, individually and in his capacity as         §
    Commissioner, PAUL HOBBY, individually and in       §
    his capacity as Commissioner, HUGH C. AKIN,         §
    individually and in his capacity as Commissioner,   §                       TRAVIS COUNTY, TEXAS
    JAMES T. CLANCY, individually and in his            §
    capacity as Commissioner, WILHELMINA R.             §
    DELCO, individually and in her capacity as          §
    Commissioner, WARREN T. HARRISON,                   §
    individually and in his capacity as Commissioner,   §
    ROBERT K. LONG, individually and in his             §
    capacity as Commissioner, and CHARLES G.            §
    UNTERMEYER, individually and in his capacity        §
    as Commissioner,                                    §
    Defendants.                      §                       53RD JUDICIAL DISTRICT
    NOTICE OF APPEAL
    Plaintiffs Empower Texans, Inc. and Michael Quinn Sullivan files this Notice of Appeal
    pursuant to section 51.014 (a) (8) of the Texas Civil Practice and Remedies Code and Rules 25.1
    and 26.1(b) of the Texas Rules of Appellate Procedure, and would respectfully show the Court as
    follows:
    1.      Plaintiffs desire to appeal this Court’s Order, signed October 20, 2017, a copy of
    which is attached hereto.
    2.      Plaintiffs appeal is to the Third Court of Appeals in Austin, Texas.
    3.      A copy of this Notice of Appeal has been served on all parties to the proceeding
    from which this appeal is taken. See TEX. R. APP. P. 25.1(e), 28.1(b).
    4327
    4.      This interlocutory appeal is an accelerated appeal under Rule 28.1 of the Texas
    Rules of Appellate Procedure and is not a parental termination or child protection case. Tex. R.
    App 28.1 and 25.1 (d) (6).
    5.      This interlocutory appeal results in an automatic stay of all proceedings in the trial
    court during the pendency of this appeal Tex. Civ. Proc. & Rem. Code § 51.014 (b) and (c).
    Respectfully submitted,
    AKERMAN L.L.P.
    By: /s/ Joseph M. Nixon
    Joseph M. Nixon
    State Bar No. 15244800
    1300 Post Oak Blvd., Suite 2500
    Houston, Texas 77056
    Telephone: (713) 871-6809
    Facsimile: (713) 960-1527
    Email: joe.nixon@akerman.com
    James E. “Trey” Trainor, III
    State Bar No. 24042052
    700 Lavaca Street Suite 1400
    Austin, Texas 78701
    Telephone: (512) 623-6700
    Facsimile: (512) 623-6701
    Email: trey.trainor@akerman.com
    ATTORNEYS FOR PLAINTIFFS
    CERTIFICATE OF SERVICE
    I hereby certify that on November 9, 2017, a true and correct copy of this pleading was served on
    all counsel of record in accordance with the Texas Rules of Civil Procedure.
    /s/ Joseph M. Nixon
    Joseph M. Nixon
    4328
    ACCEPTED
    Appx. 7                                                                   03-17-00770-CV
    20934840
    Appellate Docket Number:      ðíóïéóððééðóÝÊ                                                                                        THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    11/28/2017 11:52 AM
    Appellate Case Style:         Û³°±©»® Ì»¨¿²-ô ײ½ò ¿²¼ Ó·½¸¿»´ Ï«·²² Í«´´·ª¿²                                                                JEFFREY D. KYLE
    CLERK
    Vs.
    ͬ¿¬» ±º Ì»¨¿- Û¬¸·½- ݱ³³·--·±²ô »¬ ¿´
    Companion Case No        :
    Amended/corrected statement:                          DOCKETING STATEMENT (Civil)
    Appellate Court: í®¼ ݱ«®¬ ±º ß°°»¿´-
    (to be filed in the court of appeals upon perfection of appeal under TRAP 32)
    Person       Organization (choose one)                                            Lead Attorney
    Û³°±©»® Ì»¨¿²-ô ײ½ò ¿²¼ Ó·½¸¿»´ Ï«·²² Í«´´·ª¿²              First Name:         Ö±-»°¸
    First Name:                                                                  Middle Name:        Óò
    Middle Name:                                                                 Last Name:          Ò·¨±²
    Last Name:                                                                   Suffix:
    Suffix:                                                                      Law Firm Name:       ßµ»®³¿² ÔÔÐ
    Pro Se:                                                                      Address 1:          ïíðð б-¬ Ñ¿µ Þ´ª¼
    Address 2:          Í«·¬» îëðð
    City:               ر«-¬±²
    State:      Ì»¨¿-                        Zip+4:      ééðëê
    Telephone:          éïíóêîíóðèèé              ext.
    Fax:        éïíóçêðóïëîé
    Email:      ¶±»ò²·¨±²à¿µ»®³¿²ò½±³
    SBN:        ïëîììèðð                                 Add Appellant / Attorney
    Person      Organization (choose one)                                            Lead Attorney
    First Name:         Û®·½
    First Name:     ͬ¿¬» ±º Ì»¨¿- Û¬¸·½- ݱ³³·--·±²ô »¬ ¿´                      Middle Name:        ÖòÎò
    Middle Name:                                                                 Last Name:          Ò·½¸±´-
    Last Name:                                                                   Suffix:
    Suffix:                                                                      Law Firm Name:       Þ»½µ λ¼¼»²ô ÔÔÐ
    Pro Se:                                                                      Address 1:          ëïë ݱ²¹®»-- ߪ»²«»
    Address 2:          Í«·¬» ïçðð
    City:               ß«-¬·²
    State:      Ì»¨¿-                         Zip+4:     éèéðï
    Telephone:          ëïîóçððóíîðë              ext.
    Fax:        ëïîóéðèóïððî
    Email:      »²·½¸±´-ྻ½µ®»¼¼»²ò½±³
    SBN:        ïìççìçðð                                  Add Appellee / Attorney
    п¹» ï ±º é
    Nature of Case (Subject matter or type of case):      Ѭ¸»®
    Date order or judgment signed:      ïðñîðñîðïé                            Type of judgment:       ײ¬»®´±½«¬±®§ Ñ®¼»®
    Date notice of appeal filed in trial court: ïïñðçñîðïé
    If mailed to the trial court clerk, also give the date mailed:
    Interlocutory appeal of appealable order:       Yes           No
    If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):               ëïòðïìø¿÷øè÷ ÌÝÐúÎÝ
    Accelerated appeal (See TRAP 28):                Yes ² No
    If yes, please specify statutory or other basis on which appeal is accelerated:
    Parental Termination or Child Protection? (See TRAP 28.4):               Yes       No
    Permissive? (See TRAP 28.3):                      Yes     ²   No
    If yes, please specify statutory or other basis for such status:
    Agreed? (See TRAP 28.2):                          Yes         No
    If yes, please specify statutory or other basis for such status:
    Appeal should receive precedence, preference, or priority under statute or rule:                 Yes       No
    If yes, please specify statutory or other basis for such status:
    Does this case involve an amount under $100,000?               Yes       No
    Judgment or order disposes of all parties and issues:          Yes       No
    Appeal from final judgment:                                    Yes        No
    Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance?               Yes        No
    Motion for New Trial:                   Yes       No                 If yes, date filed:
    Motion to Modify Judgment:              Yes       No                 If yes, date filed:
    Request for Findings of Fact            Yes       No                 If yes, date filed:
    and Conclusions of Law:
    Yes        No                 If yes, date filed:
    Motion to Reinstate:
    Yes       No                 If yes, date filed:
    Motion under TRCP 306a:
    Other:                                  Yes       No
    If other, please specify:
    Yes     No       If yes, date filed:
    Yes     No       If yes, date filed:
    Yes     No                         :
    Yes     No                         :
    п¹» î ±º é
    Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal?              Yes        No
    If yes, please attach a copy of the petition.
    Date bankruptcy filed:                                                Bankruptcy Case Number:
    Court:     ëí®¼                                                            Clerk's Record:
    County:    Ì®¿ª·- ݱ«²¬§
    Trial Court Clerk:        District   County
    ÜóïóÙÒóïìóððïîëî           Was clerk's record requested?        Yes         No
    If yes, date requested:   ïïñîïñîðïé
    Trial Judge (who tried or disposed of case):                               If no, date it will be requested:
    First Name:         ß³§                                                    Were payment arrangements made with clerk?
    Middle Name:                                                                                                          Yes    No       Indigent
    Last Name:          Ý´¿®µ ó Ó»¿½¸«³
    Suffix:
    Address 1:           ïððð Ù«¿¼¿´«°» í®¼ Ú´±±®
    Address 2 :
    City:                ß«-¬·²
    State:    Ì»¨¿-                         Zip + 4:    éèéðï
    Telephone:        ëïîóèëìóçíðë            ext.
    Fax:       ëïîóèëìóîîêè
    Email:
    Reporter's or Recorder's Record:
    Is there a reporter's record?               Yes        No
    Was reporter's record requested?            Yes       No
    Was there a reporter's record electronically recorded?         Yes       No
    If yes, date requested:       ïïñîïñîðïé
    If no, date it will be requested:
    Were payment arrangements made with the court reporter/court recorder?               Yes      No     Indigent
    п¹» í ±º é
    Court Reporter                                              Court Recorder
    Official                                                    Substitute
    First Name:               ß´·½·¿
    Middle Name:
    Last Name:                ο½¿²»´´·
    Suffix:
    Address 1:                ïððð Ù«¿¼¿´«°» í®¼ Ú´±±®
    Address 2:
    City:                     ß«-¬·²
    State:       Ì»¨¿-                                     Zip + 4:       éèéðï
    Telephone:           ëïîóèëìóìðîè                         ext.
    Fax:           ëïîóèëìóîîêè
    Email:                                                                                                                                                                                            Add Reporter
    Supersedeas bond filed:                   Yes            No         If yes, date filed:
    Will file:          Yes            No
    Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court?                                                        Yes            No
    If yes, briefly state the basis for your request:
    Should this appeal be referred to mediation?
    Yes           No
    If no, please specify: ̸»®» ·- ²± ·--«» ¬± ³»¼·¿¬»
    Has the case been through an ADR procedure?                                     Yes            No
    If yes, who was the mediator?
    What type of ADR procedure?
    At what stage did the case go through ADR?                                    Pre-Trial              Post-Trial               Other
    If other, please specify:
    Type of case?
    Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without
    prejudice to the right to raise additional issues or request additional relief):
    ̸·- ·- ¿ ìî ËÍÝ ïçèí ½¿-» ¾®±«¹¸¬ º±® ½·ª·´ ®·¹¸¬- ª·±´¿¬·±²- ¾®±«¹¸¬ ¿¹¿·²-¬ ¬¸» ÌÛÝ ½±³³·--·±²»®- ·² ¾±¬¸ ¬¸»·® ·²¼·ª·¼«¿´ ¿²¼ ±ºº·½¿´ ½¿°¿½·¬·»-ò ̸» ½±«®¬ ·²½±®®»½¬´§ ¹®¿²¬»¼ ¿ °´»¿ ¬± ¬¸» ¶«®·-¼
    How was the case disposed of? Ѭ¸»®
    Summary of relief granted, including amount of money judgment, and if any, damages awarded. °´»¿ ÌÑ ÌØÛ ÖËÎ×ÍÜ×ÝÌ×ÑÒ
    If money judgment, what was the amount? Actual damages:
    Punitive (or similar) damages:
    п¹» ì ±º é
    Attorney's fees (trial):
    Attorney's fees (appellate):
    Other:
    If other, please specify:
    Will you challenge this Court's jurisdiction?        Yes      No
    Does judgment have language that one or more parties "take nothing"?          Yes       No
    Does judgment have a Mother Hubbard clause?         Yes       No
    Other basis for finality?    ÑÎÜÛÎ Í×ÙÒÛÜ É×ÌØ ÐÎÛÖËÜ×ÝÛ
    Rate the complexity of the case (use 1 for least and 5 for most complex):       1      2      3         4   5
    Please make my answer to the preceding questions known to other parties in this case.             Yes       No
    Can the parties agree on an appellate mediator?      Yes      No
    If yes, please give name, address, telephone, fax and email address:
    Name                              Address                   Telephone                      Fax                       Email
    Languages other than English in which the mediator should be proficient:
    Name of person filing out mediation section of docketing statement:
    List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.
    Docket Number:     ðíóïéóððíçîó½ª                                              Trial Court:   ¼óïó¹²óïéóððïèéè
    Style:     Ó·½¸¿»´ Ï«·²² Í«´´·ª¿²
    Vs.
    Ì»¨¿- Û¬¸·½- ݱ³³·--·±²
    Add Related Matter
    п¹» ë ±º é
    The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar
    Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in
    the appeal before this Court.
    The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of
    discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched
    with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information
    regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at
    www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within
    thirty (30) to forty-five (45) days after submitting this Docketing Statement.
    Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select
    your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you
    in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and
    information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate
    attorneys.
    Do you want this case to be considered for inclusion in the Pro Bono Program?            Yes       No
    Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have
    regarding the appeal?     Yes    No
    Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for
    the purposes of considering the case for inclusion in the Pro Bono Program.
    If you have not previously filed an                                    and attached a file-stamped copy of that                   , does your
    income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines?      Yes                No
    These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.
    Are you willing to disclose your financial circumstances to the Pro Bono Committee?         Yes       No
    If yes, please attach an                                           completed and executed by the appellant or appellee. Sample forms may be
    found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon
    your execution of a            under oath as to your financial circumstances.
    Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without
    prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).
    Signature of counsel (or pro se party)                                                    Date:    ïïñîïñîðïé
    Printed Name:    Ö±-»°¸ Óò Ò·¨±²                                                          State Bar No.:   ïëîììèðð
    Electronic Signature:   Ö±-»°¸ Óò Ò·¨±²
    (Optional)
    п¹» ê ±º é
    The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial
    court's order or judgment as follows on                        .
    Signature of counsel (or pro se party)                                   Electronic Signature: Ö±-»°¸ Óò Ò·¨±²
    (Optional)
    State Bar No.:      ïëîììèðð
    Person Served
    Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must
    state:
    (1) the date and manner of service;
    (2) the name and address of each person served, and
    (3) if the person served is a party's attorney, the name of the party represented by that attorney
    Please enter the following for each person served:
    Date Served:      ïïñîîñîðïé
    Manner Served: »Í»®ª»¼
    First Name:       Û®·½
    Middle Name:      ÖòÎò
    Last Name:        Ò·½¸±´-
    Suffix:
    Law Firm Name: Þ»½µ λ¼¼»²ô ÔÔÐ
    Address 1:        ëïë ݱ²¹®»-- ߪ»²«»ô Í«·¬» ïçðð
    Address 2:
    City:             ß«-¬·²
    State     Ì»¨¿-                      Zip+4:      éèéðï
    Telephone:                           ext.
    Fax:
    Email:
    If Attorney, Representing Party's Name:     ͬ¿¬» ±º
    п¹» é ±º é