In the Interest of E.M., a Child v. the State of Texas

Affirmed and Opinion filed March 16, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00274-CV
IN THE INTEREST OF E.M., A CHILD
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 43370
OPINION
The Office of the Attorney General (OAG) appeals the denial of its plea to
the jurisdiction. In two issues it contends that (1) sovereign immunity bars the trial
court from imposing sanctions under its inherent authority; and (2) the trial court
violates the separation of powers doctrine when it sanctions the OAG when the
OAG is acting solely in its administrative authority. We affirm the order of the
trial court denying the OAG’s plea to the jurisdiction.
BACKGROUND
In 2018, the trial court ordered Mother to pay $534.00 per month in child
support. In February 2020, Mother filed a Petition to modify the parent child
relationship. Father filed an answer, and the OAG filed a notice of non-
appearance. Soon thereafter, the trial court entered temporary orders that
terminated Mother’s child support obligation as of February 19, 2020. The
temporary orders also established a child support obligation for Father.
After the trial court terminated Mother’s child support obligation, Mother
alleges that the OAG continued to submit writs of withholding to her employer.
Mother alleges that the OAG “continued to withhold $5,597.74 from [Mother’s]
paychecks and denied her child support from [Father].” Mother filed a “Motion to
Compel Termination of Wage Withholding Order and Motion for Sanctions”
(Motion) asserting that the trial court should compel the OAG to withdraw the
wage withholding order as to Mother and assess sanctions against the OAG for its
failures to withdraw the wage withholding order in violation to the trial court’s
temporary orders. In response to Mother’s Motion, the OAG filed an answer. The
OAG asserted a plea to the jurisdiction alleging that the trial court did not have
jurisdiction to order or award sanctions against the OAG based on sovereign
immunity and the separation of powers doctrine.1
After conducting a hearing, the trial court denied the OAG’s plea to the
jurisdiction but did not award sanctions. Instead, the trial court reserved the
question of whether it would award sanctions for a later hearing. The OAG filed a
notice of interlocutory appeal on the denial of its plea to the jurisdiction.
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The OAG asserted other immunity defenses, but those are not raised on appeal.
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PLEA TO THE JURISDICTION
The OAG argues that the trial court lacks jurisdiction to impose any
sanctions under its inherent authority because of the doctrine of sovereign
immunity. The OAG next contends that if the trial court were to impose sanctions
that such an order would violate the separation of powers doctrine.
A. General Legal Principles
In reviewing a plea to the jurisdiction, a court does not weigh the merits of
the claims but only considers the pleadings and evidence relevant to the
jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002). We construe the pleadings in favor of the plaintiff and look to the intent of
the pleader. Id. If the pleadings affirmatively negate jurisdiction, then the case
should be dismissed. Id.Under the common law doctrine of sovereign immunity, the state cannot be
sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.
2011). Sovereign immunity refers to the state’s immunity from both suit and
liability and protects the state and its divisions. See Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). “An action to determine or protect a
private party’s rights against a state official who has acted without legal or
statutory authority is not a suit against the State that sovereign immunity bars.”
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997). “[W]e distinguish
suits to determine a party’s rights against the State from suits seeking damages.”
Id.; see also In re A.C.B., 103 S.W.3d 570, 574 (Tex. App.—San Antonio 2003, no
pet.) (concluding trial court had jurisdiction over dispute regarding writ of
withholding because “[Father] filed his motion for declaratory judgment within
thirty days after meeting with the [OAG]. Accordingly, we hold the [father]
substantially complied with section 158.506”).
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B. Analysis
The substance of the Motion is a request that the trial court determine the
rights and obligations of the parties—specifically, of Mother’s child support
obligation and arrearages, an order from the trial court that Mother be reimbursed,
an accounting of the child support paid to the OAG, and for the OAG to cease all
wage withholding from Mother. This is akin to a suit against the government for a
determination of rights and is not barred by sovereign immunity. See Fed. Sign,
951 S.W.2d at 404; In re A.C.B., 103 S.W.3d at 574; see also Tex. Fam. Code §
158.506(c).
Included in the Motion is a request for sanctions based on the OAG’s
conduct pursuant to the trial court’s inherent power. Mother asserts that the OAG
should be sanctioned for its alleged failure to comply with the trial court’s order
terminating Mother’s child support obligation despite her multiple requests and the
“improper garnishment of child support despite receipt of proper notice.” Mother
alleges that the OAG “ignored” all requests and continued to unlawfully garnish
Mother’s wages. Mother alleges this is an “abuse of process and demonstrates bad
faith.”
In its plea to the jurisdiction, the OAG argues that the trial court has inherent
authority to sanction bad faith conduct resulting from the impeding of the judicial
process itself. See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 718
(Tex. 2020). The OAG argues that its actions in the administrative writ of
withholding process are not part of the judicial process citing to In re B.N.A., 278
S.W.3d 530, 535 (Tex. App.—Dallas 2009, no pet.). However, the In re B.N.A.
court concluded that an errant administrative writ of withholding was not asserting
a cause of action or counterclaim under section 105.002 of the Civil Practice and
Remedies Code. Id. “The only items complained of in Father’s motion (issuance
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of the administrative writ and violation of the injunction) do not constitute the
assertion of a cause of action by an agency.” Id. Therefore, the trial court
concluded that an award under section 105.002 was improper because the OAG
had not asserted a cause of action. Id. The opinion did not address sovereign
immunity or whether it would have been appropriate to otherwise sanction the
conduct at issue. It is further clear that “an award of attorney’s fees under [section
105.002] requires more than a finding that particular incidents of an agency’s
conduct are frivolous, unreasonable, or without foundation.” Black v. Dallas Cnty.
Child Welfare Unit, 835 S.W.2d 626, 629–30 (Tex. 1992).
Here, appellee did not seek or request sanctions under section 105.002 and
instead requested sanctions under the trial court’s inherent authority. “It is well
established that when the State enters the courts as a litigant, it must observe and
will be bound by the same evidentiary and procedural rules that apply to all
litigants.” Att’y Gen. of Tex. ex rel. State v. Cartwright, 874 S.W.2d 210, 219
(Tex. App.—Houston [14th Dist.] 1994, writ denied); see also Lowe v. Tex. Tech
Univ., 540 S.W.2d 297, 301 (Tex. 1976) (“[T]he State is not exempt from these
rules of procedure but is subject to them as any other litigant.”); In re A.C.B., 103
S.W.3d 570, 574 (Tex. App.—San Antonio 2003, no pet.) (request for declaratory
judgment against the OAG for alleged wrongful issuance of writ of withholding
and sanctions did not implicate sovereign immunity); Office of Att’y Gen. v.
Phillips, No. 14-03-01040-CV, 2004 WL 2559934, *1 (Tex. App.—Houston [14th
Dist.] Nov. 12, 2004, no pet.) (mem. op.) (“We are unpersuaded . . . and decline to
hold in this case that sovereign immunity applies to deprive the trial court of
jurisdiction to assess attorney’s fees against it.”).
We are unpersuaded by the OAG’s general arguments that the trial court’s
inherent authority is “limited” and therefore the trial court lacks jurisdiction. See
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In re Tex. Dep’t. of Fam. & Protective Servs., 415 S.W.3d 522, 529–30 (Tex.
App.—Houston [1st Dist.] 2013, no pet.) (concluding inherent authority limited by
plenary power doctrine but not discussing court’s inherent authority to sanction
under principles of sovereign immunity). The OAG does not dispute that it may be
sanctioned under Rule 13 of the Rules of Civil Procedure but argues that an
“express rule of civil procedure” should be treated differently. However, the OAG
has given no argument as to why such a distinction should be made between an
“express rule” and the trial court’s inherent authority. Instead, the OAG asserts
that an award of attorney’s fees in this case could not be rendered under section
105.002 of the Civil Practice and Remedies Code, nor under Rule 215.2 of the
Rules of Civil Procedure. However, the OAG acknowledges the trial court’s
authority and jurisdiction to render such an award in those cases. The OAG does
not indicate why or how the trial court’s inherent authority should be afforded
different treatment and we decline to apply such different treatment under the facts
as presented herein. See Lowe, 540 S.W.2d at 301 Cartwright, 874 S.W.2d at 219.
“Courts possess inherent powers that aid the exercise of their jurisdiction,
facilitate the administration of justice, and preserve the independence and integrity
of the judicial system.” Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704,
718 (Tex. 2020). Thus, we disagree with the OAG that the trial court lacks
jurisdiction to render sanctions under its inherent authority or that sovereign
immunity is implicated herein. See Lowe, 540 S.W.2d at 301; In re A.C.B., 103
S.W.3d at 574. We do not comment on whether such sanctions, would be
appropriate in this case. The trial court has not rendered any opinion on whether it
will or will not award sanctions and the record has not been developed with the
presentation of evidence. We merely conclude that in this case, the trial court’s
jurisdiction is not implicated by a request for sanctions under its inherent authority.
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We overrule the OAG’s first issue.
SEPARATION OF POWERS DOCTRINE
The OAG next contends that any award of sanctions in this case would
necessarily conflict with the separation of powers doctrine because it “seeks to
manage the solely administrative actions of the OAG, an executive branch
agency.” See Tex. Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d
655, 659 (Tex. App.—Austin 1997, pet. denied). The OAG concludes that “the
trial court violated the separate [sic] of powers doctrine when it held that it could
sanction the OAG under these facts.”2
“In the context of judicial review of administrative decisions, the separation-
of-powers doctrine ensures that discretionary functions delegated to administrative
agencies by the legislature are not usurped by the judicial branch.” Id. “Although
courts have the authority to hold that an agency erred and must correct its error,
courts cannot dictate how to correct the error if, by doing so, the court effectively
usurps the authority and discretion delegated to the agency by the legislature.” Id.However, “[i]t is well settled that trial courts may review an administrative action
only if a statute provides a right to judicial review or the action adversely affects a
vested property right or otherwise violates a constitutional right.” In re Office of
Att’y Gen., 456 S.W.3d 153, 157 (Tex. 2015); see also Tex. Fam. Code
§158.506(c) (“[T]he obligor may file a motion with the court to withdraw the
administrative writ of withholding and request a hearing . . . .”).
The OAG argues that through sanctions the trial court “seeks to manage the
solely administrative actions of the OAG.” However, the OAG admits that the trial
2
The order denying the Plea to the Jurisdiction states that “the Court has jurisdiction to
consider imposing sanctions against the OAG for alleged acts of bad faith in only its conduct of
the litigation. Therefore, the plea to the jurisdiction is denied. . . . This finding is not a comment
on the merits of the request for sanctions.”
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court has not yet ordered sanctions. The question presented by the OAG is,
therefore, whether if the trial court rendered sanctions under those facts pleaded, it
would violate the separation of powers doctrine. However, since no such sanctions
have been awarded and the record has not been fully developed, the mere
consideration of the evidence and facts does not implicate a separation of powers
concern. Any award of sanctions is still contingent and uncertain. As a result, this
question is not ripe for our review. See Perry v. Del Rio, 66 S.W.3d 239, 249–50
(Tex. 2001) (“Ripeness is one of several categories of justiciability. . . . ‘Ripeness
doctrine is invoked to determine whether a dispute has yet matured to a point that
warrants decision. The central concern is whether the case involves uncertain or
contingent future events that may not occur as anticipated, or indeed may not occur
at all.’” (quoting 13 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure § 3529, at 278–79 (2d ed. 1984))).
We overrule the OAG’s second issue.
CONCLUSION
Concluding that a request for sanctions under the facts herein does not
implicate sovereign immunity and the separation of powers issue is not ripe for our
review because the trial court has not awarded any sanctions, we affirm the trial
court’s order denying the OAG’s plea to the jurisdiction.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
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