Dianne Hensley v. State Commission on Judicial Conduct ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00305-CV
Dianne Hensley, Appellant
v.
State Commission on Judicial Conduct; David Schenck, in his official capacity as Chair of
the State Commission on Judicial Conduct; Janis Hold, in her official capacity as Vice-
Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official
capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,
David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick
Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their
official capacities as Members of the State Commission on Judicial Conduct, Appellees
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-003926, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
CONCURRING OPINION
Because I agree with the Court’s disposition but not its analysis, I concur in the
judgment only.
To the extent that Dianne Hensley seeks to challenge the Commission’s
investigation and subsequent disciplinary action, she could have sought de novo review of the
Commission’s decision by a special court of review but chose not to do so. See Tex. Gov’t Code
§ 33.034 (providing review of Commission’s decision). Thus, she may not complain in this case
about the Commission’s disciplinary action and is foreclosed from separately litigating her
asserted defense to that action that her conduct was protected under the Texas Religious Freedom
Restoration Act (TRFRA). See Tex. Civ. Prac. & Rem. Code § 110.004; Hagstette v. State
Comm’n on Judicial Conduct, No. 01-19-00208-CV, 2020 Tex. App. LEXIS 9838, at *14 (Tex.
App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.); see also Patel v. Texas Dep’t of
Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015) (“[C]ourts will not entertain an action brought
under the UDJA when the same claim could be pursued through different channels.”). Although
the Court reaches this conclusion, it then unnecessarily and, in my view improperly, discusses
and describes the Commission’s investigation and actions. See Valley Baptist Med. Ctr.
v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (stating that under article II, section 1 of Texas
Constitution, “courts have no jurisdiction to issue advisory opinions”).
Further, I would decide Hensley’s TRFRA claims on the ground that she did not
comply with its notice provisions. See Tex. Civ. Prac. & Rem. Code § 110.006 (addressing
notice requirements). I do not agree with the Court’s analysis or its ultimate determinations
about those claims or the evidence surrounding those claims, particularly the Court making an
implicit finding by the Commission that its investigation and disciplinary action did not
substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed
any future claims. The TRFRA’s express statutory language waives sovereign immunity and
allows a plaintiff to seek compensatory damages and “injunctive relief to prevent [a] threatened
violation” when a governmental entity is violating or has threatened to violate the plaintiff’s right
to religious freedom. See id. §§ 110.005 (addressing available remedies), .008 (addressing
waiver of sovereign immunity to suit and from liability to extent liability is created by
section 110.005).
For these reasons, I concur in the judgment only.
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__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Filed: November 3, 2022
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