State v. Valerie Saxion, Inc. and Valerie Saxion, Individually , 450 S.W.3d 602 ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00227-CV
THE STATE OF TEXAS AND GREG APPELLANTS AND APPELLEES
ABBOTT, IN HIS OFFICIAL
CAPACITY AS ATTORNEY
GENERAL OF THE STATE OF
TEXAS
V.
VALERIE SAXION, INC. AND APPELLEES AND APPELLANTS
VALERIE SAXION, INDIVIDUALLY
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 348-254931-11
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OPINION
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I. Introduction
In two issues in this accelerated interlocutory appeal, Appellants the State
of Texas and Greg Abbott, in his official capacity as Attorney General of the State
of Texas (collectively, the State) argue that the trial court erred by denying their
plea to the jurisdiction on the Free Exercise and federal Religious Freedom
Restoration Act (RFRA) claims of Appellees Valerie Saxion, Inc. and Valerie
Saxion, individually (collectively, Saxion). See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(5), (8) (West 2008 & Supp. 2014). The State presents this as a case
about false and misleading labeling made in connection with the sale of dietary
supplements in the Texas market.
In two issues in her cross-appeal, Saxion counters that the trial court erred
by denying her motion for summary judgment on her counterclaims and
affirmative defenses and characterizes the case as one involving religious
speech infringed upon by government persecution.
Concluding that Saxion’s cross-appeal does not fall under civil practice and
remedies code section 51.014(a)(6), we dismiss the cross-appeal for want of
jurisdiction. See id. § 51.014(a)(6) (West 2008 & Supp. 2014). And we reverse
the trial court’s judgment on the State’s plea to the jurisdiction with regard to
Saxion’s free exercise and federal RFRA claims, render a judgment of dismissal
for the State on these claims, and remand this case to the trial court for further
proceedings.
II. Factual and Procedural Background
The State sued Saxion for violations of the Texas Food, Drug, and
Cosmetic Act (TFDCA) and the Deceptive Trade Practices Act (DTPA), listing
page after page of allegations regarding Saxion’s explicit and implicit
statements—“on the internet, in labeling, and in promotional materials, including
2
product catalogues and newsletters”—about the ability of her dietary
supplements to diagnose, mitigate, treat, cure, and prevent disease.1 See Tex.
Health & Safety Code Ann. §§ 431.047, .0585 (West 2010); Tex. Bus. & Com.
Code Ann. §§ 17.41, .46(a)–(b) (West 2011). The State also alleged that Saxion
promoted herself as a “naturopathic” doctor, which Texas does not recognize,
and stated that
any use of terms like “Doctor” or “Dr.” with VALERIE SAXION’S
name or derivative of her name on the label, in labeling, or in
advertising in Texas constitutes false advertising under both the
1
In the State’s original petition, filed August 29, 2011, and in its first
amended petition, filed April 11, 2012, the State alleged in paragraph 14 that
Saxion promoted her products “through a television show entitled ‘Alternative
Health,’” and asked in paragraph 42(j) that Saxion be enjoined from “[m]aking
claims, either explicitly or implicitly, to diagnose, mitigate, treat, cure, or prevent
disease for dietary supplements through any means, including, but not limited to,
websites, product labels and brochures, catalogs, television programs or
advertisements, radio programs or advertisements; third party vendors; and third
party websites.” [Emphasis added.]
However, television and radio were not mentioned in the State’s live
pleading, filed January 11, 2013, which was before the trial court at the time of
the April 5, 2013 hearings on the various motions at issue here. Paragraph 14 of
the live pleading stated, “Defendant VALERIE SAXION promotes VALERIE
SAXION, INC.’S products on the internet, in labeling, and in promotional
materials, including product catalogues and newsletters.” Paragraph 47(j) of the
live pleading asked that Saxion be enjoined from
[m]aking claims, either explicitly or implicitly, to diagnose, mitigate,
treat, cure, or prevent disease for dietary supplements through any
means, including, but not limited to, websites, product labels and
brochures, catalogs, advertisements, third party vendors, and third
party websites unless the claims meet the requirements of a health
claim or qualified health claim, structure/function claim, or nutrient
claim authorized by federal regulation or are otherwise permitted by
the Federal Food and Drug Administration.
3
TFDCA and the DTPA as this use implies directly or indirectly that
Defendant VALERIE SAXION is a degreed doctor and/or authorized
to practice medicine in Texas.
The State concluded its petition with the allegation that
[b]ased on the findings in paragraphs 16 through 27 above,
incorporated herein by reference, Defendants have manufactured,
held, offered for sale, distributed, sold, and/or introduced into
commerce in Texas unapproved new drugs, misbranded drugs and
foods, and falsely represented that these unapproved new drugs or
misbranded foods could treat, mitigate, cure, or prevent various
diseases. Defendants have also manufactured foods within Texas
without a food manufacturer’s license for each name listed as a
manufacturer on the label.
The State contended in its petition’s conclusion that Saxion’s products fell under
the auspices of the TFDCA and violated it because they had not been approved
by the federal Food and Drug Administration (FDA), they were misbranded, and
their labels were false or misleading. And it contended that in the course of trade
and commerce, Saxion had engaged in false, misleading, and deceptive acts and
practices that were unlawful under the DTPA.
The State sought an injunction against Saxion to stop her from engaging in
the practices set out in its petition—a comprehensive list of twenty-four activities
pertaining to, among other things, misbranding, misrepresentation, and
mislabeling by failing to disclose that claims to diagnose, mitigate, treat, cure, or
prevent disease cannot legally be made for dietary supplements2 and in other
2
The State included in its petition the following claims by Saxion with
regard to her products, and Saxion admitted in her responses to the State’s
requests for admissions that she had made these statements:
4
manners; representing that a person has a sponsorship, approval, status,
affiliation, or connection that she does not have by using the title “Doctor,” or the
abbreviation “Dr.”; making misleading claims, either explicitly or implicitly, to
diagnose, mitigate, treat, cure, or prevent disease for dietary supplements
through any means, “including, but not limited to, websites, product labels and
brochures, catalogs, advertisements, third party vendors, and third party
websites unless the claims meet the requirements of a health claim or qualified
 “CLA has been shown to have strong anti-cancer properties.
Especially in inhibiting breast and prostate tumors as well as
colorectal, stomach and skin cancer, including melanoma . . . . CLA
even lowered cancer cell growth. CLA is an excellent inhibitor of
tumor growth.”
 “The primary therapeutic applications for 5-HTP is [sic] low serotonin
states. Conditions associated with low serotonin levels helped by 5-
HTP are Depression, Obesity, Carbohydrate craving, Bulimia,
Insomnia, Narcolepsy, Sleep apnea, Migraine headaches, Tension
headaches, Chronic daily headaches, Premenstrual syndrome, and
Fibromyalgia.”
 “A partial list of bacteria/viruses tested and neutralized with Colloidal
Silver in the laboratory were: Lyme disease, Herpes, Legionnaire,
Staphylococcus[,] Aureas, Salmonella, Choleraesuis, Streptococci,
Warts, Pseudomonas[,] Aeruginosa, Neisseria, Gonorrhea,
Gardnerella Vaginalis, Gangrene and Candida. It is great for
BURNS and CUTS, too.”
 Regarding “Dr. Val’s JC360 Graviola”: “Derived from the Soursop
tree, research indicates this is a nutrient that can help the body fight
inferior cells, making it a great addition to a complete cancer
program. It has many other uses, including fever, influenza, and
immune support.”
5
health claim, structure/function claim, or nutrient claim authorized by federal
regulation or . . . otherwise permitted by” the FDA; and disseminating false
advertisements.
Saxion counterclaimed for declaratory and injunctive relief against the
State of Texas and against Gregg Abbott “in his official capacity as Attorney
General,” asserting that her statements were based on her sincerely held
religious beliefs and arguing, among other things, that the State’s suit implicated
her free exercise and free speech rights and her corresponding rights under the
state constitution. Saxion nonetheless admitted in her pleadings that the speech
to which she referred was “not contained on the labels of her products.”
In support of her religious-message argument, Saxion pointed to certain
passages from a book she had authored:
1. Realize there is a problem! The first step to utilizing your spiritual
authority over food or whatever has a hold on you is admitting you
have a problem.
2. Ask for the Holy Spirit’s help! Ask the Holy Spirit to reveal
anything that is not pleasing to Him. If you really want to be free,
listen when he answers. You may be surprised what he reveals to
you.
3. Repent! Ask the Lord to forgive you for allowing food to have
such a strong hold on your life, and thank Him for [s]howing you this
area of your life that needs work. Don’t beat yourself up over it. Just
repent and receive God’s forgiveness and love.
....
God has placed herbs, minerals and vitamins for us to understand
and utilize to maintain health and regain health[.] He [h]as instructed
6
man through His Word on how to utilize these for our personal
wellness. [Emphasis added.]
Saxion contended that she needed protection from state action that deprived or
substantially burdened her free exercise of religion under the First Amendment,
under the federal RFRA, and under the state constitution.
Saxion sought a declaratory judgment that her statements were not illegal
under the TFDCA, DTPA, or any state law; that the “Federal FDCA as amended
by DSHEA [the Dietary Supplemental Health Education Act]” expressly or
impliedly preempted the State’s TFDCA and DTPA claims; that her due process
rights would be violated if civil monetary penalties or an injunction were imposed
on her under the TFDCA or DTPA; and that her equal protection and First
Amendment rights would be violated by an injunction for the State. She also
sought a prohibitory injunction against the attorney general “in his official
capacity, and officers, agents[,] appointees[,] and employees of the State of
Texas from enforcing Tex. Pen[al] Code [section] 31.52” against her; from
censoring or threatening to censor her by prior restraint; or from imposing or
threatening to impose civil monetary penalties or damages with regard to her
rights of free speech, free press, and free exercise. The State raised sovereign,
official, and qualified immunity defenses in response to Saxion’s claims.
Saxion filed a combined traditional and no-evidence motion for summary
judgment, arguing that the State’s lawsuit violated the federal RFRA and, for the
7
first time, the Texas RFRA, and her constitutional rights to freedom of religion,
free exercise, and free speech.
To her motion, Saxion attached her eleven-page affidavit. In her affidavit,
Saxion averred that she promoted dietary supplements to be used in conjunction
with faith in God, that she was a regular on TBN’s Praise the Lord and hosted
TBN’s Alternative Health, and that the attorney general’s office intended to
silence her ministry and destroy her business. Saxion also stated in her affidavit
that
when ministering on TV or in person, any reference to any
ingredient(s) that may be found in a dietary supplement(s) or food(s)
was/were always referenced by an ingredient’s common or scientific
name and never in the mentioning or promotion of a specific brand.
For example, if I spoke on vitamin C, I called it vitamin C[,] which is
readily available for purchase in multitudes of stores and countless
websites.
Saxion incorporated portions of one of her books, which included the following
statement:
Let me assure you, when I talk about feeling great all the time, there
are no magic vitamins or minerals or hormones that do the trick . . .
No amount of cleansing and detoxifying will remove bitterness,
unforgiveness [sic], fear, or any other bad attitude that shouldn’t be
there. Ask our wonderful heavenly father for wisdom so that you can
pluck out the real root and be free and healthy all the time.
Saxion also contended in her affidavit that an assistant attorney general
had ridiculed her religious beliefs, that the State had demanded that she lie about
her degree in naturopathy based on its allegation that she had improperly
represented that she had sponsorship, approval, status, affiliation, or connection
8
by using the title “Doctor,” or the abbreviation “Dr.,” and that she had never held
herself out to be a medical doctor or practitioner and then quoted the disclaimer
in her books:
The information in this book is for educational purposes only and is
not recommended as a means of diagnosing, or treating an illness.
Neither the publisher nor author is engaged in rendering
professional advice or services to the individual reader. All matters
regarding physical and mental health should be supervised by a
health practitioner knowledgeable in treating that particular
condition. Neither the author nor the publisher shall be liable for any
loss, injury or damage allegedly arising from any information or
suggestion in this book.
Saxion also attached excerpts from her book, The Gospel of Health: The A
to Z Guide to Vibrant Health . . . God’s Way, which included in its “About the
Author” section that Saxion was the host of TBN’s On Call, a weekly television
program “dedicated to bringing [the] most up-to-date health and nutritional
information” and that she had made numerous other radio and television
appearances. And Saxion attached excerpts from her book, How to Feel Great
All the Time. However, none of the excerpts specifically mention her products at
issue in the State’s lawsuit.
Saxion also attached the affidavit of George Herbison, her compliance
manager, who claimed that Saxion had made efforts to comply with all of the
dietary supplement regulations and corrections in response to a Texas
Department of State Health Services (TDSHS) inspection and that her efforts
made no difference to the State because “[t]hey wanted to silence Valerie’s
messages on television, radio and in her books,” per its proposed injunction.
9
Herbison averred that the State had sued Saxion for refusing to sign the
injunction and sent the lawsuit to the Fort Worth Star-Telegram, resulting in a
news editorial entitled, “State Tells Bogus Doctor to Cut it Out.”3 Saxion did not
attach a copy of the alleged proposed injunction to her motion.
In its response to Saxion’s motion, the State argued that Saxion could not
satisfy the elements of her claims and had not pleaded a Texas RFRA claim, that
she had failed to state a cognizable free speech claim, and that her free exercise
claim under the federal and state constitutions and her federal RFRA claim failed
as a matter of law. To its response, the State attached e-mails and other
correspondence pertaining to the injunction and the injunction’s revised drafts.
The first mention of any speech restriction was in an email from Saxion’s new
counsel in September 2012; the State’s documents make clear that the drafted
injunction was a “Final Judgment and Agreed Permanent Injunction,” to close the
existing case, which the State filed in August 2011. The emails included a
December 14, 2011 email that Saxion forwarded to the State regarding TBN’s
decision to cancel her alternative health programs “due to legal matters that are
taking place within your ministry.” They also included an October 2011 email that
Herbison sent to the State, in which he said, “I appreciate your [October 14,
2011] email regarding Texas[’s] desire to not have business[es] shut down but
3
Saxion attached two August 31, 2011 Star-Telegram articles—an editorial
and a news article—to her reply to the State’s response to her motion, but she
did not bring a defamation counterclaim or a counterclaim under civil practice and
remedies code chapter 27 for the statements contained in the articles.
10
rather comply with the law,” and his October 12, 2011 email in which he thanked
one of the State’s attorneys for speaking with him and specifically referenced
passing along his thanks to the State’s attorney who Saxion, in her affidavit,
alleged had ridiculed Saxion’s beliefs.4 They also included Saxion’s letters in
2010 regarding proposed settlements prior to the State’s filing suit.
The State filed a combined plea to the jurisdiction and motion for summary
judgment on Saxion’s counterclaims, arguing that Saxion had not pleaded any
elements or carried her burden of proof on her counterclaims and affirmative
defenses and that her failure to plead a viable constitutional claim was fatal as a
matter of law. The State further argued that it had sovereign immunity from
Saxion’s counterclaims and that Saxion’s failure to plead a proper ultra vires
claim against an appropriate state official in his official capacity for
nondiscretionary acts required dismissal of her claims. And the State argued that
the only speech at issue was commercial speech and that no underlying facts
supported Saxion’s contention that it sought to enjoin religious speech.
Saxion responded to the State’s motion by arguing that she was immune
from prosecution because her statements rested upon religious doctrine or belief,
her speech was not just commercial speech, and the State’s TFDCA and DTPA
4
This attorney also filed an affidavit, stating that she had never ridiculed
Saxion’s beliefs and that Saxion had never brought up her religious beliefs in any
of their meetings.
11
enforcement action violated the federal and Texas RFRAs as a matter of law.5
Saxion incorporated by reference the evidence attached to her own motion for
summary judgment.
The trial court held a hearing on all of these motions and the plea to the
jurisdiction, as well as the State’s motion for partial summary judgment on
liability, which is not a part of this appeal. The trial court denied all of the motions
and the plea. These appeals followed.
III. Jurisdiction
In two issues, the State argues that Saxion’s free exercise claim is barred
by sovereign immunity because she failed to allege a valid ultra vires claim
against a state official and cannot bring one against the State and that the trial
court erred by denying its plea to the jurisdiction on Saxion’s federal RFRA claim.
Saxion responds that she sufficiently pleaded and supported her allegations with
proof of an unconstitutional ultra vires state action and that the trial court did not
err by denying the State’s plea on her RFRA claim.
5
In her response, Saxion stated,
It strains credulity to imagine a person would dedicate her life to a
theology contained in the book, The Gospel of Health, the A – Z
Guide to Vibrant Health God’s Way, yet market her vitamins
independent of any religious motivation. She does attempt to keep
health claims off the labels. But maybe some do technically cross a
line. She nevertheless cannot be stopped or punished. She avoids
health claims on the labels to be respectful, not because she must.
12
In two issues in her brief as cross-appellant, Saxion argues that the trial
court erred by denying her motion for summary judgment. In its brief as cross-
appellee, the State contends that we do not have jurisdiction over Saxion’s cross-
appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6); Kaufman v.
Islamic Soc’y of Arlington, 291 S.W.3d 130, 142 (Tex. App.—Fort Worth 2009,
pet. denied).
A. “Media Defendant”
We must determine the issue of our jurisdiction over Saxion’s appeal
before reaching the merits of the remaining issues. See Royal ISD v. Ragsdale,
273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating
that jurisdiction is fundamental, may not be ignored, and requires dismissal of an
appeal over which it is lacking). The standard of review—de novo—is the same
with regard to jurisdictional issues and their statutory underpinnings. Tex.
Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002)
(stating that subject matter jurisdiction is a question of law); Tarrant Cnty. v.
McQuary, 310 S.W.3d 170, 172 (Tex. App.—Fort Worth 2010, pet. denied)
(same); see also City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008)
(setting out statutory construction standard of review).
Under section 51.014(a)(6), a person may appeal from an interlocutory
order that
denies a motion for summary judgment that is based in whole or in
part upon a claim against or defense by a member of the electronic
or print media, acting in such capacity, or a person whose
13
communication appears in or is published by the electronic or print
media, arising under the free speech or free press clause of the First
Amendment to the United States Constitution, or Article I, Section 8,
of the Texas Constitution, or Chapter 73.
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6). The supreme court has
interpreted subsection (a)(6) as limiting interlocutory appeals to
“members of the electronic or print media” in certain instances
involving the “free speech or free press clause of the First
Amendment to the United States Constitution.” It can only be read
as allowing appeals by members of the media “or a person whose
communication appears in or is published by” the media. No other
person would typically have standing to appeal a denial of “a motion
for summary judgment that is based in whole or in part upon a claim
against or defense by a member of the electronic or print media . . .
or a person whose communication appears in or is published by the
electronic or print media.”
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007). We strictly
construe civil practice and remedies code section 51.014(a) as a narrow
exception to the general rule that only final judgments are appealable. Id. at 841.
To bring an interlocutory appeal from the denial of her motion for summary
judgment, Saxion must meet section 51.014(a)(6)’s status requirement that, with
regard to the State’s claims against her and her counterclaims and defenses, she
is either a member of the electronic or print media and acting in that capacity, or
a person whose communication at issue appears in or is published by the
electronic or print media. See id. at 843; Hotze v. Miller, 361 S.W.3d 707, 711–
12 (Tex. App.—Tyler 2012, pet. denied) (applying section 51.014(a)(6) media-
defendant status to individual whose allegedly defamatory statements were
published as editorials in traditional newspapers, on internet websites, and during
14
radio broadcast because that subsection “applies to anyone whose
communication appears in electronic or print media when the claims or defenses
involved arise under the free speech clause of the First Amendment”); Scripps
Tex. Newspapers, LP v. Carter, No. 13-09-00655-CV, 2012 WL 5948955,
at *1 n.2 (Tex. App.—Corpus Christi Nov. 21, 2012, pet. denied) (mem. op.)
(stating that section 51.014(a)(6), an exception to the general rule that a motion
denying summary judgment is not appealable, applies to a media defendant “in a
defamation case”).
Saxion must also meet section 51.014(a)(6)’s requirement that her claim or
defense arises under the Free Speech or Free Press Clause of the First
Amendment,6 or civil practice and remedies code chapter 73 (which pertains to
libel actions), or article I, section 8 of the state constitution.7
6
The First Amendment provides, “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
U.S. Const. amend. I (emphasis added).
7
Article I, section 8 provides:
Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that
privilege; and no law shall ever be passed curtailing the liberty of
speech or of the press. In prosecutions for the publication of papers,
investigating the conduct of officers, or men in public capacity, or
when the matter published is proper for public information, the truth
thereof may be given in evidence. And in all indictments for libels,
the jury shall have the right to determine the law and the facts, under
the direction of the court, as in other cases.
15
Saxion attached some evidence to her summary judgment motion showing
that she is a published author of at least two books, but she is not being sued by
the State in the capacity of an author or with regard to the statements made in
her books and other media-related presentations but rather in the capacity of the
owner of a business that manufactures and sells products that the State
regulates. Cf. Serv. Emps. Int’l Union Local 5 v. Prof’l Janitorial Serv. of
Houston, Inc., 415 S.W.3d 387, 395 (Tex. App.—Houston [1st Dist.] 2013, pet.
filed) (stating, in defamation suit, that “[t]he right of interlocutory appeal under
section 51.014(a)(6) depends on who speaks, not on how they speak”).
Further, the “communication” in the State’s lawsuit pertains to labeling, not
libel,8 Saxion has not shown that her products’ allegedly improper and misleading
labels appeared in or were published by the electronic or print media, and her
own evidence shows that she kept her supplements business separate from her
media activities. Cf. Kaufman, 291 S.W.3d 137–43 (concluding, in defamation
suit, that author of an Internet article was a section 51.014(a)(6) media defendant
Tex. Const. art. I, § 8.
8
Subsection (a)(6) was added to the interlocutory appeal statute in 1993 in
response to lobbying efforts by members of the print media in response to “some
highly publicized plaintiffs’ libel verdicts in cases that had been believed to be of
doubtful merit.” Thomas J. Williams, Media Law: Interlocutory Appeal, 67 Tex.
B.J. 760, 760 (2004) (characterizing the addition of subsection (a)(6) as “[o]ne of
the most significant developments affecting media law in Texas” because it
allows “a media libel defendant to take an immediate, interlocutory appeal from
the denial of a motion for summary judgment”); see also Act of May 25, 1993,
73rd Leg., R.S., ch. 855, § 1, 1993 Tex. Gen. Laws 3365, 3365–66.
16
based on his journalistic background and notoriety outside the parameters of the
internet article at issue and his publisher’s broad readership and existence as a
“news/commentary medium” independent from his articles); New Times, Inc. v.
Doe, 183 S.W.3d 122, 123–24 (Tex. App.—Dallas 2006, no pet.) (allowing
interlocutory appeal in wrongful-disclosure-of-test-results suit in which
defendants published plaintiff’s HIV-positive status in a newspaper article).
None of Saxion’s First-Amendment-based defenses or counterclaims are
made with regard to libel, slander, or other defamation-based claims, to wrongful
disclosure, or to invasion of privacy. Cf. Hotze, 361 S.W.3d at 711–12 (holding,
in libel and slander suit, that statements made by political writer and journalist
were those of a section 51.014(a)(6) media defendant); Main v. Royall, 348
S.W.3d 381, 384–85, 387 (Tex. App.—Dallas 2011, no pet.) (holding, in libel suit
brought against author and book publisher for statements about appellant in their
book, that appellees were “member[s] of the electronic or print media”); Brock v.
Tandy, No. 02-08-00400-CV, 2009 WL 1905130, at *1, 4 (Tex. App.—Fort Worth
July 2, 2009, pet. denied) (mem. op. on reh’g) (holding, on interlocutory appeal
under section 51.014(a)(6), that appellant’s paid advertisement in local
newspaper was capable of being defamatory); Cox Tex. Newspapers, L.P. v.
Wootten, 59 S.W.3d 717, 725 (Tex. App.—Austin 2001, pet. denied) (op. on
reh’g) (holding that plaintiff’s artful pleading against media-defendant newspaper
that published his dead wife’s photo failed to state any viable cause of action).
Compare Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (applying generally to
17
media defendants facing defamation complaints), with id. § 27.001(1) (West
Supp. 2014) (defining “communication” for purposes of the Texas Citizen
Participation Act as “includ[ing] the making or submitting of a statement or
document in any form or medium, including oral, visual, written, audiovisual, or
electronic”). And section 51.014(a)(6)’s plain language does not include the Free
Exercise Clause, the Freedom of Religion Clause, or the Texas or federal RFRAs
as the basis for either a claim or a defense. Cf. Holly Corp. v. Longhorn Partners
Pipeline, L.P., No. 08-02-00186-CV, 2002 WL 1929493, at *1 (Tex. App.—El
Paso Aug. 21, 2002, pet. dism’d) (not designated for publication) (dismissing
interlocutory appeal when appellants were not members of the electronic or print
media and the only First-Amendment-related defenses asserted by them with
regard to their lobbying activities were the rights of association and to petition).
We conclude that we lack jurisdiction over Saxion’s interlocutory cross-appeal
under section 51.014(a)(6), and we dismiss her cross-appeal.
B. Plea to the Jurisdiction
With regard to our review of a plea to the jurisdiction, if the plea challenges
the pleadings, we construe the pleadings liberally in favor of the nonmovant and
look to the pleader’s intent. City of El Paso v. Heinrich, 284 S.W.3d 366, 378
(Tex. 2009). If the plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issue and take all evidence favorable to
the nonmovant as true, indulging every reasonable inference and resolving any
18
doubts in the nonmovant’s favor. Id. If the jurisdictional evidence creates a fact
question, then the trial court cannot grant the plea to the jurisdiction, and the
issue must be resolved by the fact finder. Id.
1. Ultra Vires
In its first issue, the State contends that Saxion’s Free Exercise claim is
barred because she has failed to allege a valid ultra vires claim against a state
official and cannot pursue such action directly against the State. See id. at 368–
69, 372–73 (setting out ultra vires exception for official-capacity suits against
government actors but reiterating that “as a technical matter, the governmental
entities themselves—as opposed to their officers in their official capacity—remain
immune from suit”); see also Lowell v. City of Baytown, 356 S.W.3d 499, 502
(Tex. 2011) (restating that claims for prospective declaratory and injunctive relief
must be brought against the relevant government officials rather than the
governmental entity itself).
The supreme court has stated that
suits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign
immunity . . . . To fall within this ultra vires exception, a suit must not
complain of a government officer’s exercise of discretion, but rather
must allege, and ultimately prove, that the officer acted without legal
authority or failed to perform a purely ministerial act. . . . Stated
another way, these suits do not seek to alter government policy but
rather to enforce existing policy.
Heinrich, 284 S.W.3d at 372 (footnote omitted) (citations omitted). “Conversely,
if the plaintiff alleges only facts demonstrating acts within the officer’s legal
19
authority and discretion, the claim seeks to control state action, and is barred by
sovereign immunity.” Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on
Envtl. Quality, 307 S.W.3d 505, 515–16 (Tex. App.—Austin 2010, no pet.).
Likewise, if the claimant attempts to restrain a state officer’s conduct on the
grounds that it is unconstitutional, the claimant must allege facts that actually
constitute a constitutional violation. Id. at 516; see also Tex. Dep’t of Transp. v.
Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (stating that claims may be brought
under the ultra vires exception “against a state official for nondiscretionary acts
unauthorized by law”); Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex.
2011) (requiring claimant to plead a “viable” constitutional claim); Price v. Tex.
Alcoholic Beverage Comm’n, No. 01-12-01164-CV, 2014 WL 3408696, at *3
(Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied) (mem. op.) (“To state
a claim within the waiver of sovereign immunity, the plaintiff must plead a facially
valid constitutional claim.”).
Saxion challenged the attorney general’s discretion or authority to enforce
the TFDCA and DTPA against her as infringing on her right to free exercise of
religion under the state and federal constitutions.9
If government action burdens the free exercise of religion by interfering
with an individual’s observance or practice of a central religious belief, see
9
When, as here, neither party argues that the state constitution offers
greater protection, we treat the state and federal free exercise guarantees as
coextensive. HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235
S.W.3d 627, 649–50 (Tex. 2007).
20
Westbrook v. Penley, 231 S.W.3d 389, 395 (Tex. 2007), the issue is whether the
burden is a substantial one, and if so, whether it is justified by a compelling
governmental interest. Jimmy Swaggart Ministries v. Bd. of Equalization of Calif.,
493 U.S. 378, 384–85, 110 S. Ct. 688, 693 (1990) (citing Hernandez v. Comm’r
of Internal Revenue, 490 U.S. 680, 699, 109 S. Ct. 2136, 2148 (1989)).
The twenty-four “practices in pursuit and conduct of trade or commerce”
listed by the State in its live pleading do not seek to restrain Saxion from
practicing any religious beliefs or expressing any religious opinions. Cf. Tilton v.
Marshall, 925 S.W.2d 672, 677 (Tex. 1996) (orig. proceeding) (op. on reh’g)
(noting that Texas Constitution article I, section 6’s interpretive commentary
reflects that conduct “even under religious guise remains subject to regulation for
the protection of society”).10 Rather, the relief sought by the State attempts to
10
Although Saxion relies on Tilton to support her arguments, it is inapposite
on the facts and record before us. In Tilton, the relator—a televangelist—in
addition to relators Word of Faith World Outreach Center Church, Inc. and Word
of Faith World Outreach Center Church, was sued for fraud, conspiracy, and
intentional infliction of emotional distress by the real parties in interest, who had
sent money and prayer requests to the relator as a result of his television
programs. 925 S.W.2d at 675. The relator filed a petition for writ of mandamus,
arguing that the trial court had no jurisdiction because the state and federal
constitutions and the federal RFRA barred the real parties’ causes of action
against him. Id. at 676.
The court granted mandamus relief as to the real parties’ intentional-
infliction-of-emotional-distress and related conspiracy claims but denied relief
with regard to the fraud claims that did not involve allegedly fraudulent and
deceitful presentations of religious doctrine or belief. Id. at 678–79, 682
(concluding that the truth or falsity of a religious representation is beyond the
scope of judicial inquiry). The plurality cautioned that the trial court had to
carefully consider each alleged misrepresentation and determine which fraud
21
regulate the advertising and sale of certain dietary supplements as a proper
restraint on commercial speech necessary to protect the public. See AEP Tex.
Comm. & Indus. Retail Ltd. P’ship v. Pub. Util. Comm’n of Tex., 436 S.W.3d 890,
924 (Tex. App.—Austin 2014, no pet.) (“[T]here is no value to consumers or
society for misleading or deceptive commercial speech.”). Although Saxion
contends in her affidavit that the State’s employees threatened her and mocked
her beliefs—evidence that the State contested—she failed to show how her
religious calling to educate others on the health benefits of vitamins was
substantially burdened when the part of her evidence that was undisputed by the
State showed that she was able to separate her general message about vitamins
and minerals from any promotion of a specific brand from her dietary-supplement
business. Therefore, because Saxion has failed to allege a viable ultra vires
claim with regard to her free-exercise-of-religion rights and the attorney general’s
discretion and authority to enforce the TFDCA and DTPA, we sustain the State’s
first issue.
claims, if any, involved religious doctrines or beliefs, to ensure that the trier of
fact did not hear evidence on them or pass on their veracity. Id. at 680. None of
the labeling or other product-related issues listed by the State in its live pleading
involve any statements of religious belief.
22
2. Federal RFRA Claim
In its second issue, the State argues that the trial court erred by denying its
plea to the jurisdiction as to Saxion’s federal RFRA claim. As pointed out by the
State, the federal RFRA is inapplicable to governmental action by a state instead
of the federal government. See City of Boerne v. Flores, 521 U.S. 507, 527, 532,
536, 117 S. Ct. 2157, 2167, 2170, 2172 (1997) (holding that the federal RFRA
could not be considered remedial, preventive legislation and that Congress did
not have a substantive, non-remedial power under the Fourteenth Amendment to
enforce the federal RFRA against the states); see also Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2759 (2014) (stating that the federal RFRA
“prohibits the Federal Government from taking any action that substantially
burdens the exercise of religion unless that action constitutes the least restrictive
means of serving a compelling government interest”); Barr v. City of Sinton, 295
S.W.3d 287, 295 (Tex. 2009) (noting that as originally enacted, the RFRA applied
to the states as well as the federal government but that after the Supreme Court
held that Congress had exceeded its authority in extending the RFRA to the
states in City of Boerne, Congress amended the RFRA to limit its application to
the federal government, federal territories and possessions, the District of
Columbia, and Puerto Rico). Therefore, we sustain the State’s second issue.
IV. Conclusion
We dismiss Saxion’s cross-appeal for want of jurisdiction. See Tex. R.
App. P. 43.2(f). Having sustained both of the State’s issues, we reverse the trial
23
court’s denial of the State’s plea to the jurisdiction as it pertains to these two
issues, render judgment dismissing Saxion’s free exercise and federal RFRA
claims,11 and remand the case to the trial court for further proceedings.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, WALKER and MCCOY, JJ.
DELIVERED: December 4, 2014
11
Although Saxion contends that she sufficiently alleged a claim under the
Texas RFRA by mentioning the federal RFRA and the state constitution, even if
this were sufficient to plead a Texas RFRA claim, the record does not reflect that
she also complied with the Texas RFRA’s pre-suit notice requirement. See Tex.
Civ. Prac. & Rem. Code Ann. § 110.006(a) (West 2011); see also Morgan v.
Plano ISD, 724 F.3d 579, 586 (5th Cir. 2013) (concluding that the Texas RFRA’s
pre-suit notice requirement is jurisdictional).
24