Robert Koepke v. Texas State Senate and Texas House of Representatives ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00256-CV
Robert KOEPKE,
Appellant
v.
TEXAS STATE SENATE and Texas House of Representatives,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-CI-25237
Honorable Martha Tanner, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Liza A. Rodriguez, Justice
Sandee Bryan Marion, Chief Justice (Ret.) 1
Delivered and Filed: July 31, 2023
AFFIRMED
Robert Koepke appeals the trial court’s order, which granted the plea to jurisdiction filed
by the Texas State Senate and Texas House of Representatives (collectively “the Legislature”) and
dismissed his petition for writ of mandamus. We affirm.
On December 9, 2021, Koepke filed in the trial court a petition for writ of mandamus,
complaining that the Legislature had violated the United States and Texas Constitutions. Koepke’s
complaints in his petition stemmed from various COVID-19 related emergency orders and
1
Sitting by assignment pursuant to section 74.003(b) of the Texas Government Code
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legislation, which he argued violated civil liberties. He also sought “a full independent audit of the
2020 general election.” In his live petition, he requested that the Legislature
be compelled to uphold the Constitution of Texas that they swore to uphold and
defend against all enemies, foreign and domestic; The Texas State Legislature be
compelled to perform within the duties vested in them to enforce and uphold the
Constitution of the state of Texas by immediately conducting a full independent
forensic audit of the 2020 general election (including down-ballot races); this court
nullify fraudulent election results (Daniels v. Mack 2020. Orange County Circuit
Court – judge overturned fraudulent election); issue a return to hand-counted paper
ballots; order the return of CARES act, America Rescue Plan, and CSLFRF funds;
and prevent any federal, state, or local – public or private – entity within the
jurisdiction and or operating in state of Texas compelling citizens of Texas directly
or indirectly to participate in health care data collection, health care services,
biometric surveillance, and force to provide healthcare information by mandamus
from this court.
In response to Koepke’s petition, the Legislature filed a plea to the jurisdiction, arguing that his
petition was barred by sovereign and legislative immunity. The trial court granted the plea to the
jurisdiction and dismissed Koepke’s petition.
On appeal, Koepke argues the trial court erred in dismissing his petition because the
Legislature “waived immunity from liability and suit both retrospectively and prospectively.” He
further argues that he “maintains constitutional standing—not only as a petitioner for mandamus
relief, but as an injured plaintiff in a lawsuit where immediate dangers continue to threaten harm
against [him].” He argues that he met the elements necessary for writ of mandamus.
In response to Koepke’s brief, the Legislature points out that “[i]nstead of identifying a
waiver of sovereign immunity, [Koepke] seemingly challenges the very existence of sovereign
immunity.” Further, the Legislature argues that Koepke “cannot rely on the ultra vires exception
to sovereign immunity because he has failed to allege the necessary elements of a mandamus
claim.” That is, the Legislature contends that his “claims do not implicate this Court’s enforcement
of its jurisdiction, except insofar as the judicial branch lacks jurisdiction to compel the legislative
branch to pass or rewrite specific laws.” “Nor do [Koepke’s] claims seek to compel the
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performance of purely ministerial acts.” The Legislature emphasizes that “the lawmaking
[Koepke] seeks to compel necessarily requires [and] involves discretionary decision-making by
lawmakers.” The Legislature further argues that Koepke’s claims are barred by legislative
immunity, as Koepke “seeks to compel the Legislature to pass laws he favors,” which “falls
squarely within the sphere of legislative activity and matters of general concern protected by
legislative immunity.” We agree with the Legislature.
Mandamus proceedings are subject to sovereign immunity. See League v. De Young, 2 Tex.
497, 500, (1847), aff’d, 52 U.S. 185 (1850) (explaining that “mandamus is not a process that can
be resorted to against a state, without her consent”). Sovereign immunity deprives a trial court of
subject-matter jurisdiction over an action against the state unless the party suing the state
establishes “the state’s consent, which may be alleged either by reference to a statute or to express
legislative permission.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Koepke
has not pointed to a statute that waives sovereign immunity for his mandamus proceeding.
Pursuant to article V, section 8 of the Texas Constitution, along with section 24.011 of the
Texas Government Code, a district court “has mandamus jurisdiction only to enforce its own
jurisdiction.” Williams v. Davis, 628 S.W.3d 946, 952 (Tex. App.—Houston [14th Dist.] 2021, no
pet.); see TEX. CONST. art V, § 8 (“District court judges shall have the power to issue writs
necessary to enforce their jurisdiction.”); TEX. GOV’T CODE § 24.011 (“A judge of a district court
may, either in termtime or vacation, grant writs of mandamus . . . necessary to the enforcement of
the court’s jurisdiction”). In his petition, Koepke requested that the trial court compel the
Legislature to enact legislation favored by Koepke. However, his requested relief does not
implicate the trial court’s mandamus jurisdiction. See Thompson v. Velasquez, 155 S.W.3d 551,
553 (Tex. App.—San Antonio 2004, no pet.); Morath v. Tex. Taxpayer & Student Fairness
Coalition, 490 S.W.3d 826, 887 (Tex. 2016) (Guzman, J., concurring) (explaining that the
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Legislature has “great discretion” in passing laws and that the court has the authority to “review,
but not rewrite the Legislature’s enactments”).
Further, we note the ultra vires exception to sovereign immunity does not apply in this
case. “To fall within this ultra vires exception, a suit . . . must 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). “‘Ministerial acts’ are those ‘where the law
prescribes and defines the duties to be performed with such precision and certainty as to leave
nothing to the exercise of discretion or judgment.’” City of Houston v. Houston Mun. Emps.
Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018) (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d
578, 587 (Tex. 2015)). “Conversely, ‘discretionary acts’ are those that ‘require the exercise of
judgment and personal deliberation.’” Id. (quoting Sw. Bell Tel., 459 S.W.3d at 587). Koepke’s
petition does not complain that individual legislators are failing to perform purely ministerial acts.
Instead, his complaints center on legislation relating to the pandemic and the resulting election—
legislation that necessarily involved the exercise of discretion by legislators. See In re Nestle USA,
387 S.W.3d 610, 623 (Tex. 2012) (holding that “the Legislature must have discretion in structuring
tax laws”); Moore v. Bell, 95 Tex. 151, 157, 66 S.W. 45, 48 (1902) (“The discretion which is thus
placed in the Legislature is beyond judicial control, so long as the law is confined to the subject
matter and the purpose for which the constitution authorized it to be enacted”). Koepke thus has
made no showing that the ultra vires exception to sovereign immunity applies in this case.
In addition to sovereign immunity, legislative immunity also applies. “Texas and federal
courts have recognized that individuals acting in a legislative capacity are immune from liability
for those actions.” In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (orig. proceeding). “An action is
legislative in nature when it reflects a discretionary, policymaking decision of general application,
rather than an individualized decision based upon particular facts.” Id. at 860. “No act is more
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fundamentally legislative than lawmaking itself.” Id. Legislative immunity “shields individual
legislators from litigation challenging the substance of a decision.” Hays Cty. v. Hays Cty. Water
Planning P’ship, 69 S.W.3d 253, 260 (Tex. App.—Austin 2002, no pet.) (emphasis in original).
Koepke’s complaints in his petition challenge the substance of the Legislature’s lawmaking; his
complaints relate to discretionary, policymaking decisions of general application. Accordingly,
legislative immunity also bars the requested relief sought by Koepke.
For the above reasons, we hold the trial court did not err in granting the Legislature’s plea
to the jurisdiction and dismissing Koepke’s petition. 2
Liza A. Rodriguez, Justice
2
We note that in his brief, Koepke complains that the Texas e-file system refused to permit him to file his original
petition for writ of mandamus in the Texas Supreme Court and instead forced him to file his petition in the trial court.
This complaint is not preserved for appellate review. See TEX. R. APP. P. 33.1.
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