Jeff Brice, Jr. and Dorothy Brice, Parents of S.B., a Child v. Texas Department of Family and Protective Services, an Agency of the State of Texas ( 2022 )

Affirmed and Memorandum Opinion filed May 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00506-CV
JEFF BRICE, JR. AND DOROTHEA BRICE, PARENTS OF S.B., A
CHILD, Appellants
V.
THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES, AN AGENCY OF THE STATE OF TEXAS, Appellee
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2019-68803
MEMORANDUM OPINION
The parents of a minor appeal the trial court’s order granting the
jurisdictional plea of a state agency asserting sovereign immunity against the
claims for money damages asserted by the parents. Because the parents have not
shown a waiver of the agency’s sovereign immunity as to their claims, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants/plaintiffs Jeff Brice, Jr. and Dorothea Brice are the parents of
S.B., a minor. Appellee/defendant The Texas Department of Family and Protective
Services, an Agency of the State of Texas (hereinafter the “Department”) filed in
the trial court a petition seeking an emergency order and writ of attachment to
remove S.B. from the Brices’ home. After a hearing, the trial court signed an order
appointing the Department as the temporary managing conservator of S.B. (the
“First Order”). The Brices allege that almost one year after signing this order the
trial court signed a summary-judgment order in which the court set aside this order
and reestablished the Brices as S.B.’s managing conservator (the “Second Order).
The Brices then filed this case as a separate suit in the trial court below
against the Department. The Brices alleged that they were not allowed to see S.B.
during the almost one-year period in which the First Order was in effect.
According to the Brices, the trial court’s summary-judgment ruling in the Second
Order established as a matter of law that “the Department’s seizure of [S.B.] was
illegal, improper and not in the child’s best interest.” The Brices alleged that the
Department’s action violated “the statutory rules which govern [its] actions, and
the State and Federal Constitution[s], which recognize the parent-child relationship
as one of the most valuable constitutional rights of citizens of our country which
should not be improperly violated by any State.” The Brices asserted that S.B.
suffered psychological, sociological, emotional, and educational injuries as a result
of being taken from his parents, and therefore, the Brices sought to recover
$750,000 in money damages from the Department on S.B.’s behalf, as well as
reasonable attorney’s fees. The Brices did not cite any statute as a basis for their
claims or as a basis for any alleged waiver of the Department’s sovereign
immunity.
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The Department filed a plea to the jurisdiction asserting that the Brices had
not carried their burden of demonstrating the trial court’s jurisdiction by alleging a
valid waiver of the Department’s sovereign immunity. The Department asserted
that the trial court lacked subject-matter jurisdiction over this case due to the
Department’s sovereign immunity. After a hearing, the associate judge
recommended that the trial court grant the Department’s jurisdictional plea, and the
trial court signed an order granting the plea and dismissing the Brices’ claims with
prejudice. The Brices timely requested a de novo hearing before the trial court,
asserting that the associate judge erred in concluding that the Department’s
jurisdictional plea should be granted. After conducting a de novo hearing, the trial
court denied relief. The Brices have timely appealed the trial court’s order granting
the Department’s jurisdictional plea.
II. ISSUES AND ANALYSIS
A. Did the trial court err in granting the Department’s jurisdictional plea?
By their first issue, the Brices challenge the trial court’s order granting the
Department’s jurisdictional plea and dismissing their claims for lack of jurisdiction
based on the Department’s sovereign immunity. A defendant may seek a dismissal
on the ground that the trial court lacks subject-matter jurisdiction over claims
against that defendant due to sovereign immunity by filing a plea to the
jurisdiction. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010).
Whether a court has jurisdiction is a question of law that we review de novo. City
of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). When, as in today’s case, a
party has filed a plea to the jurisdiction challenging the pleadings, we must
construe the pleadings liberally in favor of the pleader and look to the pleader’s
intent. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). A party suing a governmental entity bears the burden of
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affirmatively demonstrating the trial court’s jurisdiction by alleging a valid waiver
of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003). To determine if the party has met that burden, we consider the facts alleged
by the party and, to the extent it is relevant to the jurisdictional issue, any evidence
submitted by the parties. Id.Because the Department is an agency of the State of Texas, the Department
generally enjoys sovereign immunity. See In re K.G.S., No. 14-12-00673-CV, 2014
WL 801127, at *5, *9 (Tex. App.—Houston [14th Dist.] Feb. 27, 2014, no pet.)
(mem. op.). Sovereign immunity has two components: immunity from liability
and immunity from suit. See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.
2006). When a state agency enjoys immunity from suit under the doctrine
of sovereign immunity, a court lacks subject-matter jurisdiction. See Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
This case does not involve an ultra vires claim, a claim in which a plaintiff
may sue state officers in their official capacity without a statutory waiver of
immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 371–73 (Tex. 2009).
Even if the Brices tried to assert an ultra vires claim against the Department, it
would be barred by sovereign immunity. See id. at 372–73. The Brices do not
assert that the non-statutory waiver of immunity from the Reata case applies, and
even if they did, the record does not support a waiver of sovereign immunity under
the Reata case. See Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371,
373 (Tex. 2006). In this context, for there to be a waiver of the Department’s
sovereign immunity as to the Brices’ claims, the Texas Legislature must have
waived the Department’s sovereign immunity by clear and unambiguous language
in a statute or legislative resolution or the United States Congress must have
enacted a statute pursuant to section 5 of the Fourteenth Amendment unequivocally
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expressing Congress’s intent to waive the Department’s sovereign immunity as to
the Brices’ claims. See U.S. Const. Amend. XIV, §5 (stating “[t]he Congress shall
have power to enforce, by appropriate legislation, the provisions of this article”);
Tex. Civ. Prac. & Rem. Code Ann. § 107.001, et seq. (West, Westlaw through
2021 C.S.) (providing procedure for seeking legislative resolution granting
permission to sue “the state or any of the agencies of government that collectively
constitute the government of this state”); Tex. Gov’t Code Ann. § 311.034 (West,
Westlaw through 2021 C.S.) (stating that “a statute shall not be construed as a
waiver of sovereign immunity unless the waiver is effected by clear and
unambiguous language”); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66,
109 S. Ct. 2304, 2309–10, 105 L.Ed.2d 45 (1989) (stating that the Eleventh
Amendment to the United States Constitution bars claims against a State seeking a
remedy for alleged deprivations of civil liberties unless the State has waived its
immunity or unless Congress has exercised its power to abrogate that immunity
under section 5 of the Fourteenth Amendment); Nazari v. State, 561 S.W.3d 495,
500 (Tex. 2018) (stating that for the Texas Legislature to waive sovereign
immunity it must do so by clear and unambiguous language in a statute or
legislative resolution); In re K.G.S., 2014 WL 801127, at *5–*9 (concluding that
the Department has sovereign immunity from suit unless (1) Congress has
abrogated the Department’s sovereign immunity under section 5 of the Fourteenth
Amendment; (2) the Texas Legislature has waived the Department’s sovereign
immunity by clear and unambiguous language; or (3) the Department’s sovereign
immunity is waived under the Reata case).
In their first issue, the Brices ask “[d]oes the failure of the State of Texas to
formally waive its immunity against being sued by the parents of a child for its
improper removal of that child from the parents[’] care . . .bar [the Brices] from
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filing this suit against [the Department]?” In the same issue, the Brices state that
the Department was “not granted immunity under the immunities granted under the
Texas Family Code.” The Brices suggest that although there is no unambiguous
legislative waiver of the Department’s sovereign immunity, the Department has no
sovereign immunity in this case because no statute establishes this immunity. This
is not how sovereign immunity works. The courts—not Congress or the Texas
Legislature—created the doctrine of sovereign immunity; yet in most cases the
courts require clear and unambiguous legislative action before the courts will
conclude that sovereign immunity has been waived in a particular case. See Reata
Const. Corp., 197 S.W.3d at 374–75; Hosner v. DeYoung, 1 Tex. 764, 769
(1847); Board of Land Comm’rs v. Walling, Dall. 524, 1843 WL 3919 (Tex. 1843);
In re K.G.S., 2014 WL 801127, at *5–*9.
The Brices do not assert that the Texas Legislature has waived the
Department’s sovereign immunity in a statute or legislative resolution or that the
United States Congress has enacted a statute pursuant to section 5 of the
Fourteenth Amendment unequivocally expressing Congress’s intent to waive the
Department’s sovereign immunity as to the Brices’ claims. The Brices do assert
that the Fourteenth Amendment’s Due Process Clause gives parents rights as to the
care, custody, and control of their children. See U.S. Const. amend. XIV, § 1. The
Brices also cite the Texas Constitution’s due course of law provision and state that
there is no meaningful distinction between this provision and the Fourteenth
Amendment’s Due Process Clause. See id.; Tex. Const. art. I, § 19. Because the
Brices have not briefed an argument that any due course of law analysis differs
from the analysis under the Fourteenth Amendment’s Due Process Clause, we
presume without deciding that the analysis under the Texas Constitution’s due
course of law provision mirrors the analysis under the Fourteenth Amendment’s
Due Process Clause. See Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 338 (Tex.
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App.—Houston [14th Dist.] 2017, no pet.). The Fourteenth Amendment’s Due
Process Clause does not waive the Department’s sovereign immunity.1 See Garcia
v. United States, 666 F.2d 960, 966 (5th Cir. 1982); Wije v. Texas Women’s Univ.,
No. 4:14-CV-571, 2015 WL 9872534, at *7 (E.D. Tex. 2015). The Brices did not
assert a claim against the Department under title 42, section 1983 of the United
States Code based on the alleged violation of their constitutional rights. See 42
U.S.C. §1983. Even if the Brices had done so, Congress has not abrogated the
Department’s sovereign immunity as to claims under this statute, nor has the Texas
Legislature waived the Department’s sovereign immunity as to such claims. See 42
U.S.C. §1983; Will, 491 U.S. at 66–67, 109 S. Ct. at 2309–10; In re K.G.S., 2014
WL 801127, at *5.
The Brices rely upon three opinions in cases involving appeals from a
judgment terminating parental rights. See In re N.G., 577 S.W.3d 230, 235 (Tex.
2019); In re M.S., 115 S.W.3d 534, 549 (Tex. 2003); In re W.J.H., 111 S.W.3d
707, 715 (Tex. App.—Fort Worth 2008, pet. denied). None of these cases are on
point because none of them involve a claim against a governmental entity for a
money judgment or an issue of sovereign immunity. See In re N.G., 577 S.W.3d at
235; In re M.S., 115 S.W.3d at 549; In re W.J.H., 111 S.W.3d at 715. The
Fourteenth Amendment’s Due Process Clause provides heightened protection
against government interference with a parent’s fundamental liberty interest in the
care, custody, and control of the parent’s child, for example, mandating a clear and
convincing evidence standard of proof in parental termination cases. In re N.G.,
577 S.W.3d at 235. But this heightened protection does not mean that the
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Sovereign immunity does not shield the State from a claim based on a taking under article I,
section 17 of the Texas Constitution. See Tex. Const. art. I, § 17; State v. Holland, 221 S.W.3d
639, 643 (Tex. 2007). The Brices have not asserted such a taking claim, and the record does not
reveal any basis on which the Brices could properly do so.
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Department’s sovereign immunity has been waived as to claims by a parent for
monetary relief based on alleged violations of the parent’s fundamental liberty
interest. See Garcia, 666 F.2d at 966; Wije, 2015 WL 9872534, at *7; In re K.G.S.,
2014 WL 801127, at *5–6. The Brices cite no case that supports the proposition
that the Department’s sovereign immunity has been waived as to their claims in
this case.
The Brices have not shown that the Texas Legislature has waived the
Department’s sovereign immunity as to their claims by clear and unambiguous
language, nor have the Brices shown that the United States Congress has enacted a
statute pursuant to section 5 of the Fourteenth Amendment unequivocally
expressing Congress’s intent to waive the Department’s sovereign immunity as to
the Brices’ claims. See Will, 491 U.S. at 66, 109 S. Ct. at 2309–10; Garcia, 666
F.2d at 966; Nazari, 561 S.W.3d at 500; In re K.G.S., 2014 WL 801127, at *5–*9;
In re C.S., 214 S.W.3d 465, 467–68 (Tex. App.—Austin 2006, no pet.); Harris
County Children Protective Servs. v. Richker, 2 S.W.3d 741, 743–44 (Tex. App.—
Houston [14th Dist.] 1999, no pet.). Concluding that the trial court did not err in
granting the Department’s plea to the jurisdiction, we overrule the first issue.
B. Do the Brices’ other issues have merit?
In their second issue the Brices assert that before granting the Department’s
jurisdictional plea, the trial court should have required the Department to respond
to discovery requests that the Brices had served. In their fourth issue, the Brices
complain that the Department sought a protective order regarding that discovery
even though the Department had allegedly not satisfied the requirements for doing
so. The discovery in question addressed the merits of the Brices’ alleged claims
rather than any issue regarding the Department’s sovereign immunity. Because the
trial court lacked subject-matter jurisdiction over the Brices’ claims based on the
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doctrine of sovereign immunity, the trial court also lacked jurisdiction to fashion
discovery relief relating solely to merits discovery. See San Jacinto River Auth. v.
Ogletree, 594 S.W.3d 833, 841 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
Therefore, we lack jurisdiction over the second and fourth issues.
In their third issue, the Brices assert that the trial court should have made the
Department file objections against any alleged pleading deficiencies in the Brices’
suit before the trial court granted the Department’s jurisdictional plea. Because the
Brices failed to preserve error in the trial court on their third issue, we overrule it.
See Stettner v. Lewis & Maese Auction, LLC, 611 S.W.3d 102, 107–08 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
Under their fifth issue, the Brices assert that if this court determines that the
amount of damages they sought on their claims is excessive and forms a basis for
the trial court’s ruling on the jurisdictional plea, then the Brices should be allowed
to amend their petition to seek a different amount of damages. The amount of
damages the Brices sought does not affect the Department’s immunity from suit
under the doctrine of sovereign immunity. Because the condition precedent in this
argument has not occurred, we do not address the fifth issue. See Schwartzott v.
Etheridge Property Management, 403 S.W.3d 488, 503 (Tex. App.—Houston
[14th Dist.] 2013, no pet.).
III. CONCLUSION
The Brices have not shown that (1) the Texas Legislature has waived the
Department’s sovereign immunity as to their claims by clear and unambiguous
language, (2) the United States Congress has abrogated the Department’s sovereign
immunity under section 5 of the Fourteenth Amendment; or (3) the Department’s
sovereign immunity has been waived under the Reata case. The trial court did not
err in granting the Department’s plea to the jurisdiction. We lack jurisdiction over
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the second and fourth issues, and in the remaining issues, the Brices have not
shown that the trial court erred. We affirm the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
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