the Texas Department of Public Safety v. K. W. ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00117-CV
The Texas Department of Public Safety, Appellant
v.
K. W., Appellee
FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 04-831-K26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
MEMORANDUM OPINION
The trial court entered a final judgment ordering at least the Texas Department of
Public Safety (DPS) to correct a list of offenses that, at the Legislature’s direction, DPS uses for
purposes of motions to request early termination of sex-offender-registration requirements.1 See
Tex. Code Crim. Proc. arts. 62.402, 62.404. In three appellate issues, DPS contends that the trial
court had no jurisdiction over appellee K.W.’s petition for writ of mandamus against DPS and that
K.W. did not prove her entitlement to mandamus relief. Because, as K.W. concedes, DPS enjoys
sovereign immunity and she did not plead any valid waiver of DPS’s sovereign immunity, we
vacate the judgment against DPS and dismiss K.W.’s suit against it.
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We say “at least” because the parties to this appeal join issue over whether the Director
of the Department of Public Safety, in his official capacity, was also bound by the trial court’s
judgment as a party to the suit. The Director did not notice any appeal from the judgment; only
the Department did. To decide the issues raised by the Department in this appeal, we need not
decide whether the Director, in his official capacity, is bound by the judgment or was or is a party
to the suit. See Tex. R. App. P. 47.1.
BACKGROUND
Years ago, K.W. was placed on deferred-adjudication community supervision for
the offense of sexual assault for having intentionally or knowingly penetrated the sexual organ of
a child. See Tex. Penal Code § 22.011(a)(2)(A). According to K.W.’s testimony, K.W. was then
18 years old and a senior in high school and the victim was a high-school freshman. K.W. had to
register as a sex offender and has since completed her term of deferred adjudication. She wishes
to move for early termination of the sex-offender-registration requirements imposed on her ever
since, see Tex. Code Crim. Proc. art. 62.404, but says that DPS erroneously interprets her offense
to be one that requires her to register as a sex offender for life. DPS’s erroneous interpretation,
she argues, stems from the “list of reportable convictions” that DPS has to compile and publish
under Code of Criminal Procedure article 62.402. She argues that the relevant list erroneously
interprets her offense as one requiring registration for life when “the minimum required
registration period under federal law” for the analogous federal offense, see id. art. 62.402(b), is
for a period less than life. K.W. petitioned the trial court for a writ of mandamus compelling DPS
to correct the list of offenses. The trial court denied DPS’s plea to the jurisdiction and granted the
writ. DPS alone appealed.
DISCUSSION
DPS, as an arm of state government, enjoys sovereign immunity. See University of
the Incarnate Word v. Redus, 602 S.W.3d 398, 404–05 (Tex. 2020); Texas Dep’t of Pub. Safety v.
Petta, 44 S.W.3d 575, 580–81 (Tex. 2001). Sovereign immunity implicates courts’ subject-matter
jurisdiction over claims against immune entities, see Rusk State Hosp. v. Black, 392 S.W.3d 88,
95 (Tex. 2012), so for K.W.’s claim against DPS to go forward, she must plead a valid waiver of
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sovereign immunity, see Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 738
(Tex. App.—Austin 2014, pet. dism’d).
In her live pleading from before the trial court entered judgment, the only theory
that K.W. pleaded to support a waiver of DPS’s sovereign immunity was an ultra vires claim.
Generally speaking, K.W. pleaded that DPS was shirking its statutory duty, see Tex. Code
Crim. Proc. art. 62.402, to correctly compile the list of offenses that could be eligible for early
termination of sex-offender-registration requirements in line with federal law’s treatment of
analogous federal offenses. K.W. sought by her suit to bring DPS into line with her view of its
duties under the relevant statute.
“Even if a government entity’s immunity has not been waived by the Legislature,
a claim may proceed against a government official in his official capacity if the plaintiff
successfully alleges that the official is engaging in ultra vires conduct.” Matzen v. McLane,
__ S.W.3d __, 2021 WL 5977218, at *3 (Tex. Dec. 17, 2021) (quoting Chambers–Liberty
Counties Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019)). But such ultra vires claims
must be pleaded against government actors in their official capacities and not against government
entities themselves—the entities remain immune to such claims absent some other applicable
immunity waiver. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per
curiam); Bacon v. Texas Hist. Comm’n, 411 S.W.3d 161, 176 (Tex. App.—Austin 2013, no pet.).
K.W. thus has pleaded no valid waiver of sovereign immunity for her claim against DPS. She
concedes as much in her appellee’s brief: “DPS’s argument that sovereign immunity protects it,
despite its blatant error, is correct based on current case law. . . . KW concedes that it was an error
to seek a writ against DPS. . . . Appellee believes the sovereign immunity protection for DPS is
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dispositive of this appeal.” We therefore sustain DPS’s first issue and need not reach its other two.
See Tex. R. App. P. 47.1.
CONCLUSION
We vacate the trial court’s judgment against DPS and dismiss K.W.’s suit against
DPS for want of jurisdiction.2
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Smith
Vacated and Dismissed
Filed: May 6, 2022
2
As stated above, we need not reach whether DPS’s Director, in his official capacity, was
or is a party to K.W.’s suit. No matter whether he was or was not, K.W. cannot sue DPS using the
ultra vires theory that she has pleaded. Only DPS noticed an appeal from the trial court’s
judgment, and this opinion and our judgment dispose of the issues that concern DPS. If the
Director, in his official capacity, was a party to the suit and properly bound by the trial court’s
judgment, then he remains so after this appeal. If he was not, then that scenario also remains true
after this appeal.
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