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, Appellees1
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-003926, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Dianne Hensley appeals from the trial court’s order dismissing her suit against the
State Commission on Judicial Conduct (the Commission) and 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
1
Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, the current officers
and members of the State Commission on Judicial Conduct have been automatically substituted
for its former officers and members.
capacities as Members of the State Commission on Judicial Conduct (collectively “the
Officials”). Hensley brought claims against the Commission and the Officials alleging that
they violated the Texas Religious Freedom Restoration Act, see Tex. Civ. Prac. & Rem. Code
§ 110.005 (the TRFRA), and acted ultra vires regarding the Commission’s disciplinary action
against her. Hensley also sought declaratory relief under the Texas Uniform Declaratory
Judgments Act. See id. §§ 37.001-.011 (the UDJA). On the Commission’s and the Officials’
plea to the jurisdiction and, in the alternative, plea in estoppel, the trial court dismissed Hensley’s
claims, concluding that (1) Hensley failed to exercise her exclusive statutory remedy for issues
related to the disciplinary proceeding; (2) Hensley failed to comply with jurisdictional statutory
notice requirements governing her claims under the TRFRA; (3) sovereign immunity barred her
claims; (4) her claims were barred by statutory immunity under Texas Government Code section
33.006, see Tex. Gov’t Code § 33.006; (5) her claims were not ripe; (6) her claims sought
impermissible advisory opinions; and (6) her claims were barred by the doctrine of res judicata.
We will affirm.
BACKGROUND
Hensley is a justice of the peace in Waco, Texas. After a Waco newspaper
published an article about Hensley, which included an interview with her, the Commission sent
Hensley a letter of inquiry asking her to respond to written questions. The Commission’s
questions inquired into Hensley’s policy, from the time she assumed the bench until the date of
the inquiry, regarding performing wedding ceremonies for same-sex couples. The Commission
also asked Hensley to confirm whether the Waco newspaper article, which was titled “No
courthouse weddings in Waco for same-sex couples, 2 years after Supreme Court ruling” and
2
included quotes attributed to Hensley regarding the issue of performing same-sex marriages,
accurately and fairly represented her statements to the media on that issue. The Commission also
asked Hensley to discuss whether, in her opinion, refusing requests to perform same-sex
marriages but continuing to perform marriage ceremonies for heterosexual couples violated
Canons 2(A), 3B(5), or 3B(6) of the Texas Code of Judicial Conduct. In her June 20, 2018
response, Hensley included contentions that her conduct was protected by the TRFRA.
In January 2019, the Commission wrote Hensley and identified two alleged
violations of the Texas Code of Judicial Conduct and one alleged violation of the Texas
Constitution’s restrictions on judicial conduct. An attached unsigned “tentative Public Warning”
identified (1) an alleged violation of Canon 3B(6), which prohibits bias and prejudice in
the performance of judicial duties; (2) an alleged violation of Canon 4A(1), which prohibits
conduct in extra-judicial activities that would cast reasonable doubt on the judge’s capacity
to act impartially; and (3) an alleged violation of Article V, Section 1-a(6)(A) of the Texas
Constitution, which prohibits “willful or persistent conduct that is clearly inconsistent with the
proper performance of [the judge’s] duties or casts public discredit upon the judiciary or
administration of justice.” The Commission gave Hensley the option of either accepting the
tentative Public Warning or appearing before the Commission for a hearing. Hensley elected to
appear for a hearing, and the tentative Public Warning never became effective and remained
confidential by statute.2
At an August 2019 hearing before the Commission, Hensley appeared and was
represented by three attorneys. Hensley testified under oath to the Commission’s questions.
2
The tentative Public Warning was not made public before the conclusion of the
Commission’s disciplinary proceedings and only became public when Hensley attached a copy
of it as an exhibit to her pleadings in the underlying trial court proceedings.
3
Hensley argued that her conduct was protected by the TRFRA and disputed that her conduct
constituted a violation of the Texas Constitution or of Canons 3B(6) or 4A(1). She also asserted
that she was protected from discipline by Article 1, Section 8 of the Texas Constitution. See
Tex. Const. art 1, § 8 (providing that “[e]very person shall be at liberty to speak, write or publish
his opinions on any subject” and that “no law shall ever be passed curtailing the liberty of speech
or of the press”). After the hearing, the Commission issued a Public Warning on November 12,
2019. The Public Warning included the following findings of fact:
1. At all times relevant hereto, the Honorable Dianne Hensley was Justice of the
Peace for Precinct 1, Place 1, in Waco, McLennan County, Texas.
2. On June 24, 2017, the Waco Tribune newspaper published an article on their
website entitled No Courthouse Weddings in Waco for Same-sex Couples, 2 Years
After Supreme Court Ruling which reported that Justice of the Peace Dianne
Hensley “would only do a wedding between a man and a woman.”
3. From August 1, 2016, to the present, Judge Hensley has performed opposite-
sex weddings for couples, but has declined to perform same-sex wedding
ceremonies.
4. Beginning on about August 1, 2016, Judge Hensley and her court staff began
giving all same-sex couples wishing to be married by Judge Hensley a document
which stated “I’m sorry, but Judge Hensley has a sincerely held religious belief
as a Christian, and will not be able to perform any same sex weddings.” The
document contained a list of local persons who would officiate a same-sex
wedding.
5. Judge Hensley told the Waco-Tribune, the public and the Commission that her
conscience and religion prohibited her from officiating same-sex weddings.
6. At her appearance before the Commission, Judge Hensley testified that she
would recuse herself from a case in which a party doubted her impartiality on the
basis that she publicly refuses to perform same-sex weddings.
Based on the record before it and these findings, the Commission determined that Hensley should
“be publicly warned for casting doubt on her capacity to act impartially to persons appearing
4
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.”
The Public Warning was sent to Hensley’s counsel on November 14, 2019, after
which Hensley had 30 days to file an appeal. See Tex. Gov’t Code § 33.034(a) (judge who
receives sanction or censure by Commission entitled to review of Commission’s decision);
(b) (judge must file written request for appointment of special court of review with chief justice
of supreme court not later than 30th day after date on which Commission issues its decision);
(e) (providing for review by trial de novo as that term is used in appeal of cases from justice
to county court). Hensley did not file an appeal. Instead, she filed the underlying suit in
December 2019.3
In her petition, Hensley asserted that the Commission violated her rights under
the TRFRA by punishing her for “recusing herself from officiating at same-sex weddings, in
accordance with the commands of her Christian faith.” Hensley asserted that “the Commission’s
investigation and punishment” of her for “acting in accordance with the commands of her
Christian faith” substantially burdened her free exercise of religion. Hensley also asserted that
“the Commission’s threat to impose further discipline on Judge Hensley if she persists in
recusing herself from officiating at same-sex weddings” also substantially burdens her free
exercise of religion. Hensley alleged that “the Commission’s investigation and punishment” of
her and “its threat to impose further discipline” on her “if she persists in recusing herself from
officiating at same-sex weddings” further no compelling governmental interest. Hensley
asserted that the Commission’s determination that her actions violated Canon 4A(1) because they
3
The underlying suit was originally filed in McLennan County but, after a contested
hearing, venue was transferred to Travis County District Court.
5
cast reasonable doubt on her capacity to act impartially as a judge was erroneous because, she
contends, “disapproval of an individual’s behavior does not evince bias toward that individual as
a person when they appear in court.” Hensley described the Commission’s determination as
“absurd” because, according to her, the Commission “equate[d] a judge’s publicly stated
opposition to an individual’s behavior as casting doubt on the judge’s impartiality toward
litigants who engage in that conduct.” She asserted that under this reasoning, “no judge who
publicly opposes murder or rape could be regarded as impartial when an accused murderer or
rapist appears in his court.” Hensley alleged that, pursuant to the TRFRA, she was entitled to
declaratory and injunctive relief, compensatory damages, and attorneys’ fees. See Tex. Civ.
Prac. & Rem. Code § 110.005 (person who successfully asserts claim or defense under TRFRA
entitled to declaratory relief under UDJA, injunctive relief, compensatory damages, and
reasonable attorneys’ fees).
Hensley sought additional declaratory relief under the UDJA. Specifically,
Hensley sought declarations that (1) a judge does not violate Canon 4A by merely expressing
disapproval of homosexual behavior or same-sex marriage or by belonging to or supporting a
church or charitable organization that opposes homosexual behavior or same-sex marriage
(Declaration 1); (2) the officiating of weddings is not a “judicial duty” under Canon 3B(6)
(Declaration 2); (3) Hensley’s decision to recuse herself from officiating at same-sex weddings
does not constitute “willful or persistent conduct clearly inconsistent with the proper
performance of [a judge’s] duties or casts public discredit upon the judiciary or administration of
justice” such that it violates article V, section 1-a(6)(A) of the Texas Constitution (Declaration
3); and (4) the Commission’s interpretation of Canon 4A violates article I, section 8 of the Texas
6
Constitution (Declaration 4). Hensley also sought this declaratory relief against the Officials
based on her assertion that they had acted ultra vires.
The Commission and the Officials filed a plea to the jurisdiction and, in the
alternative, a plea in estoppel. They argued that Hensley’s claims should be dismissed for lack
of jurisdiction because she failed to utilize the exclusive statutory review process provided by the
Legislature to challenge the Commission’s determination to issue the Public Warning. They also
asserted that sovereign immunity bars Hensley’s claims brought under the TRFRA because she
failed to comply with the TRFRA’s statutory notice requirements. The Commission and the
Officials argued further that sovereign immunity bars Hensley’s UDJA claims and that she failed
to plead any ultra vires conduct by the Officials. They also maintained that, to the extent
Hensley seeks declarations about her potential future conduct, the court lacks jurisdiction
because those issues are not ripe for adjudication and Hensley is seeking impermissible
advisory opinions. In the alternative, the Commission and the Officials asserted that Hensley’s
claims should be dismissed because they are barred by the doctrines of res judicata and
collateral estoppel.
After an evidentiary hearing, the trial court granted the plea to the jurisdiction,
concluding that the court lacked jurisdiction over Hensley’s claims concerning issues pertinent to
her disciplinary proceeding because she failed to exercise her exclusive statutory remedy. The
trial court concluded that it lacked jurisdiction over Hensley’s claims under the TRFRA because
she failed to strictly comply with jurisdictional statutory notice requirements. The trial court also
concluded that Hensley’s claims were barred by sovereign immunity and statutory immunity
under section 33.006 of the Texas Government Code, were not ripe for adjudication and sought
7
impermissible advisory opinions, and were barred by the doctrine of res judicata. Hensley then
perfected this appeal.
DISCUSSION
Standard of Review
A plea to the jurisdiction is a procedural mechanism “through which a party
may challenge a trial court’s authority to decide the subject matter” of a claim. Texas Dep’t of
State Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d).
Because whether a court has subject-matter jurisdiction is a question of law, we review de novo
a trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225 (Tex. 2004).
A plea to the jurisdiction may challenge whether the plaintiff has alleged facts
that affirmatively demonstrate a court’s jurisdiction to hear the case, the existence of those
jurisdictional facts, or both. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021).
When the jurisdictional plea challenges the pleadings, we determine whether the plaintiff’s
pleadings allege facts affirmatively demonstrating subject-matter jurisdiction. Miranda,
133 S.W.3d at 226. In making this assessment, we construe the plaintiff’s pleadings liberally,
taking all assertions as true, and look to the pleader’s intent. Texas Dep’t of Crim. Justice v.
Rangel, 595 S.W.3d 198, 205 (Tex. 2020). Allegations found in pleadings may affirmatively
demonstrate or negate the court’s jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622
(Tex. 2009). If the pleadings affirmatively negate the existence of jurisdiction, the plea may be
granted without affording the plaintiff an opportunity to replead. Miranda, 133 S.W.3d at 226.
8
When the plea challenges the existence of jurisdictional facts, we must move
beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). When those challenged jurisdictional facts
also implicate the merits of the plaintiff’s claim, as in this case, the plaintiff’s burden mirrors that
of a traditional motion for summary judgment. Lara, 625 S.W.3d at 46 (quoting Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). Consequently, we review the
relevant evidence in the light most favorable to the plaintiff to determine whether a genuine issue
of material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019)
(citing Miranda, 133 S.W.3d at 226). If the evidence creates a fact issue regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue
will be resolved by the fact finder. Miranda, 133 S.W.3d at 227-28. But if the relevant evidence
is undisputed or does not raise a fact question on jurisdiction, we rule on the plea as a matter of
law. See id. at 228.
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 v. State Comm’n on
Jud. Conduct, No. 01-19-00208-CV, 2020 WL 7349502, at *4 (Tex. App.—Houston [1st Dist.]
Dec. 15, 2020, no pet.) (mem. op.); see also Tex. Gov’t Code § 33.006 (providing that
commission and its members are immune from liability for acts or omissions committed by
person within scope of person’s official duties). When a governmental entity challenges
9
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.
TRFRA Claims
We first consider whether the trial court erred by dismissing Hensley’s TRFRA
claims that relate to the Commission’s investigation and determination, after conducting a
hearing, to issue a Public Reprimand. Hensley’s claims reduce to two complaints. First, she
contends that the Commission’s investigating and issuing a Public Reprimand were improper
because they violated her rights under the TRFRA. Second, she takes issue with the
Commission’s determination that her conduct did in fact violate Canon 4A. Both these
complaints challenge an agency’s determination after a hearing. With regard to Hensley’s
complaint that the Commission’s investigation and decision to issue a Public Warning violated
her rights under the TRFRA, we note that Hensley could have, and did, raise this as a defense to
the Commission’s action. See Tex. Civ. Prac. & Rem. Code § 110.004 (“A person whose free
exercise of religion has been substantially burdened in violation of Section 110.003 or 110.0031
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 another person.”). By
issuing the Public Warning in the face of this asserted defense, the Commission implicitly found
that its investigation and subsequent Public Warning did not substantially burden Hensley’s
free exercise of religion. Similarly, regarding whether her conduct violated Canon 4A, the
Commission determined that it did. Rather than pursue an appeal of the Commission’s
determination—the avenue established by the Legislature to obtain review of Commission
decisions and set forth in Texas Government Code section 33.034—Hensley filed a proceeding
10
in district court asserting the same argument she presented to the Commission and requesting
that the district court declare that the Commission was incorrect in its determinations that
(1) Hensley’s conduct violated the Code of Judicial Conduct and (2) that its investigation and
public reprimand did not substantially burden her free exercise of religion so as to violate the
TRFRA. The trial court correctly dismissed this impermissible collateral attack on the
Commission’s order. See Chocolate Bayou Water Co. & Sand Supply v. Texas Nat. Res.
Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (“Collateral
attacks upon an agency order may be maintained successfully on one ground alone—that the
order is void.”); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A collateral
attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the
purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific
relief which the judgment stands as a bar against.”).
Also pursuant to the TRFRA, Hensley sought injunctive relief “that will prevent
the Commission and its members from investigating or sanctioning judges or justices of the
peace who recuse themselves from officiating at same-sex weddings on account of their sincere
religious beliefs.” This injunctive relief is not available to Hensley under the TRFRA. The
statute provides that a person who successfully asserts a claim or defense under the TRFRA is
entitled to injunctive relief to prevent the threatened or continued violation. See Tex. Civ. Prac.
& Rem. Code § 110.005(a)(2). In this case, the trial court properly dismissed Hensley’s claims
brought under the TRFRA and, consequently, she has not successfully asserted a claim under
that statute that would entitle her to injunctive relief.
The trial court also properly dismissed Hensley’s claims for relief under the
TRFRA that were based on her allegations that the Commission violated her right to religious
11
freedom by “threatening to impose further discipline if she persists in recusing herself from
officiating at same-sex weddings.” The undisputed evidence, presented at the evidentiary
hearing through the testimony of the Commission’s Executive Director, was that, since issuing
the Public Warning, the Commission has not initiated any new investigation of Hensley, has not
initiated any new disciplinary proceeding involving Hensley, and has not communicated to
Hensley any threat that any new investigation or disciplinary proceeding is planned or imminent.
Because the evidence establishes that the Commission has in fact not threatened further
disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the
TRFRA waives the Commission’s immunity for her claim that threats of further discipline
by the Commission have burdened her free exercise of religion. See id. §§ 111.005 (person
who successfully asserts claim under TRFRA entitled to declaratory and injunctive relief),
.008(a) (providing that sovereign immunity to suit is waived to extent of liability created by
section 110.005).
UDJA Claims
In addition to the declarations she requested pursuant to the TRFRA, Hensley also
sought Declarations 1, 2, 3, and 4 under the UDJA. The trial court dismissed these claims for
lack of jurisdiction on several grounds, including that they were barred by sovereign immunity.
Because it is dispositive, we first consider whether the trial court correctly concluded that
Hensley’s UDJA claims were barred by sovereign immunity. The UDJA provides that “[a]
person . . . whose rights, status, or other legal relations are affected by a statute . . . may have
determined any question of construction or validity arising under the . . . statute . . . and may
obtain a declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a). The
12
Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction
but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’”
Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam) (quoting
Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011)). Accordingly,
the UDJA “is not a general waiver of sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.
Instead, the UDJA only “waives sovereign immunity in particular cases.” Sefzik, 355 S.W.3d
at 622. “For example, the state may be a proper party to a declaratory judgment action that
challenges the validity of a statute.” Id. However, “the UDJA does not waive the state’s
sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or
other law.” Id. at 621. On appeal, Hensley does not challenge the trial court’s dismissal of her
request for Declarations 1, 2, or 3. Instead, she asserts only that the UDJA waives sovereign
immunity for her request for Declaration 4 that “the Commission’s interpretation of Canon 4A
violates article 1, section 8 of the Texas Constitution.” Hensley maintains that this constitutes a
challenge to the validity of Canon 4A for which the UDJA provides a waiver of immunity. See
Town of Shady Shores, 590 S.W.3d at 552 (holding that UDJA provides “only limited waiver for
challenges to the validity of an ordinance or statute”). Hensley asserts that, although Canon 4A
is not a statute, supreme court precedent in Patel v. Texas Department of Licensing &
Regulation, 469 S.W.3d 69 (Tex. 2015), supports the conclusion that the UDJA waives sovereign
immunity for a claim challenging a Canon of the Code of Judicial Conduct. Hensley asserts that
“Patel holds that the UDJA allows litigants to sue government entities when challenging the
validity of agency regulations, even though agency rules are not mentioned in section 37.006(b)”
and that “there is no basis for excluding claims that challenge the validity of a judicial canon
from the UDJA’s waiver of immunity.”
13
In Patel, in the context of evaluating whether the plaintiffs had alleged an ultra
vires claim, the court held that “because the [plaintiffs] challenge the validity of the cosmetology
statutes and regulations, rather than complaining that officials illegally acted or failed to act, the
ultra vires exception does not apply.” Id. at 77. We do not believe that this constitutes a holding
that the UDJA waives immunity for challenges to agency regulations. In fact, challenges to
agency rules and regulations are properly brought as a rule challenge under Texas Government
Code section 2001.038, and courts routinely dismiss challenges to agency rules brought under
the UDJA instead of under section 2001.038. See Tex. Gov’t Code § 2001.038 (validity or
applicability of rule may be determined in action for declaratory judgment under Administrative
Procedure Act); see also Patel, 469 S.W.3d at 78 (stating that “[u]nder the redundant remedies
doctrine, courts will not entertain an action brought under the UDJA when the same claim could
be pursued through different channels” and that focus of doctrine is “whether the Legislature
created a statutory waiver of sovereign immunity that permits the parties to raise their claims
through some avenue other than the UDJA”); id. at 79 (“When a plaintiff files a proceeding that
only challenges the validity of an administrative rule, the parties are bound by the APA and may
not seek relief under the UDJA because such relief would be redundant.”). In Patel, the supreme
court concluded that the trial court had jurisdiction over the plaintiffs’ claims under the UDJA
because they challenged the constitutionality of a statute, along with rules promulgated pursuant
to that statute. Id. at 80. Here, Hensley’s UDJA claim does not purport to challenge any statute;
she challenges only the validity of Canon 4A. Moreover, even if Patel could be read to stand
for the proposition that the UDJA waives immunity for a challenge to an agency regulation, as an
intermediate appellate court we will not expand any such waiver to include challenges to Canons
of the Texas Code of Judicial Conduct. See Anderson v. Archer, 490 S.W.3d 175, 177 (Tex.
14
App.—Austin 2016) (declining to recognize cause of action for tortious interference with
inheritance and observing that “[w]e must, in short, follow the existing law rather than change it,
and we have adhered to that basic limiting principle in a variety of contexts”), aff’d, Archer v.
Anderson, 556 S.W.3d 228, 229 (Tex. 2018) (holding that there is no cause of action in Texas for
intentional interference with inheritance); Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers,
L.P., 287 S.W.3d 390, 394-95, 398 (Tex. App.—Austin 2009) (declining to recognize proposed
judicial expansion of common-law or constitutional privacy exceptions to mandatory disclosure
under Public Information Act), rev’d on other grounds, 343 S.W.3d 112, 120 (Tex. 2011) (Texas
Supreme Court ultimately adopting proposed expansion).4
Because sovereign immunity bars Hensley’s claims for declaratory relief under
the UDJA, the trial court properly dismissed them.
Ultra Vires Claims
Sovereign immunity does not bar claims alleging that state officials acted ultra
vires, or without legal authority, in carrying out their duties. See Houston Belt & Terminal Ry.
Co. v. City of Houston, 487 S.W.3d 154, 158 n.1 (Tex. 2016) (“[W]hen a governmental officer
is sued for allegedly ultra vires acts, governmental immunity does not apply from the outset.”).
An ultra vires action requires a plaintiff to “allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009). The Texas Supreme Court clarified what it means for an
4
We also note that, rather than challenging the validity of Canon 4A, Hensley is actually
challenging the Commission’s actions under its own interpretation of the Canon. The UDJA
does not provide a waiver for challenges to an agency’s interpretation of rules it is charged with
enforcing or applying. Complaints that the Commission misinterpreted or misapplied the
Canons are properly brought through the available appeal process that Hensley declined to
pursue.
15
official to act “without legal authority.” See Houston Belt & Terminal Ry. Co., 487 S.W.3d at
158. The court said that “a government officer with some discretion to interpret and apply a law
may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of
his granted authority or if his acts conflict with the law itself.” Id. “[U]ltra vires suits do not
attempt to exert control over the state—they attempt to reassert the control of the state.”
Heinrich, 284 S.W.3d at 372. To reassert such control, an ultra vires suit must lie against the
“allegedly responsible government actor in his official capacity.” Patel, 469 S.W.3d at 76.
Therefore, an ultra vires claim against the Officials must complain of conduct taken pursuant to
their authority: their duty to determine whether Hensley’s conduct contravened judicial canons
and whether that conduct was, as she asserted, nevertheless protected by the TRFRA.
An ultra vires claim against the Officials in the present case, therefore, must be
based on the assertion that the Officials acted without legal authority when they rejected her
defense under the TRFRA that publicly reprimanding her for her conduct would substantially
burden her free exercise of religion. See Tex. Gov’t Code § 110.004 (person whose free exercise
of religion has been substantially burdened in violation of Section 110.003 or 110.031 may assert
that violation as defense in administrative proceeding). The dispositive issue, then, is whether
the Commission’s alleged mistake of law constituted an ultra vires act. The Texas Supreme
Court has explained that, when considering whether a legal mistake is an ultra vires act, “it is the
mistake’s impact on the official’s authority that carries dispositive weight.” Hall v. McRaven,
508 S.W.3d 232, 241 (Tex. 2017). The court explained that an official’s mistake in interpreting
his enabling authority can give rise to an ultra vires claim because it results in a misinterpretation
of the bounds of his own authority. Id. at 241-42. In Hall, the court concluded that the official’s
alleged misinterpretation of federal privacy law, a law “collateral to [the official’s] authority,”
16
did not give rise to an ultra vires claim because that federal privacy law did not “suppl[y] the
parameters of [his] authority.” Id. at 242. The court held that “[i]n order to act without legal
authority in carrying out a duty to interpret and apply the law, [an official] must have exercised
discretion “without reference to or in conflict with the constraints of the law authorizing [him] to
act.” Id. (emphasis added).
Informed by the court’s explanation in Hall, Hensley must have alleged, and
ultimately prove, that the Officials exercised their discretion in conflict with the constraints of
the law authorizing them to act. Without that showing, Hensley “would simply have no basis
for ‘reassert[ing] control of the state.’” Id. (quoting Heinrich, 284 S.W.3d at 372). Here, the
Officials carried out their duty to determine whether Hensley’s conduct violated Canon 4A
and whether punishing that conduct with a Public Reprimand would substantially burden her
free exercise of religion. Their discretion in making those determinations was otherwise
unconstrained. Cf. Houston Belt & Terminal Ry. Co., 487 S.W.3d at 159 (official’s neglecting
what he was required to consider in making permeability determination rendered it—right or
wrong—ultra vires). As the supreme court explained in Hall:
When the ultimate and unrestrained objective of an official’s duty is to interpret
collateral law, a misinterpretation is not overstepping such authority; it is a
compliant action even if ultimately erroneous. Our intermediate courts of appeals
have repeatedly stated that it is not an ultra vires act for an official or agency to
make an erroneous decision while staying within its authority. Indeed, an ultra
vires doctrine that requires nothing more than an identifiable mistake would not
be a narrow exception to immunity: it would swallow immunity. [] As important
as a mistake may be, sovereign immunity comes with a price; it often allows the
“improvident actions” of the government to go unredressed. Only when these
improvident actions are unauthorized does an official shed the cloak of the
sovereign and act ultra vires.
Hall, 508 S.W.3d at 242 (citations omitted).
17
The Officials—whether right or wrong—were not acting without legal authority
in making their determinations regarding Hensley’s conduct.5 Moreover, the Commissioner’s
determinations did not constitute violations of “a purely ministerial duty.” See id. at 243
(“Perhaps it goes without saying, but if an official’s duty is discretionary, it is not also
nondiscretionary.”). Because Hensley failed to meet either of the bases for establishing an ultra
vires claim against the Officials, the trial court properly dismissed her ultra vires claims for
lack of jurisdiction.
CONCLUSION
Because the trial court lacked jurisdiction to consider Hensley’s claims under the
TRFRA and the UDJA, and because Hensley failed to establish ultra vires claims against the
Officials, the court did not err in granting the plea to the jurisdiction and dismissing the case.
Accordingly, we affirm the trial court’s judgment.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Concurring Opinion by Justice Goodwin
Affirmed
Filed: November 3, 2022
5
We need not, and do not, express any opinion on the correctness of the Commission’s
determinations.
18