Walker County ESD No. 3 The Board of ESD No. 3 And the Officers & Commissioners of ESD No. 3, in Their Official Capacities v. City of Huntsville, Texas

                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-22-00009-CV

WALKER COUNTY ESD NO. 3;
THE BOARD OF ESD NO. 3; AND
THE OFFICERS & COMMISSIONERS OF ESD NO. 3,
IN THEIR OFFICIAL CAPACITIES,
                                    Appellants
 v.

CITY OF HUNTSVILLE, TEXAS,
                                                             Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 2130313


                             DISSENTING OPINION

      A claim made against an individual in their official capacity for an ultra vires act is

very different than a claim against a governmental entity. When a claim is made against

a governmental entity, as such, the nature of the claim as pled will determine if immunity

has been waived by the legislature. Thus, the pled claim must be examined to determine

if immunity has been waived. If immunity has not been waived, the trial court does not
have jurisdiction of the claim. But when a claim is against a person for an ultra vires act

in their official capacity, the trial court will have jurisdiction to evaluate the merits of the

claim. The claim pled may be a frivolous claim, and it may even be a claim that should

be dismissed. But the dismissal is not because the trial court lacks jurisdiction based on

the absence of a legislative waiver. The individual is not immune from suit.

                               Ultra Vires Claims and Jurisdiction

        What the Court does here is a bit odd. In the guise of a plea to the jurisdiction, the

Court determines that the claim made by the City of Huntsville lacks any basis in law.

But the Court asserts it is not making a merits-based ruling. The Court holds that based

on an analysis of the pleadings, because the claim lacks merit, the trial court has no

jurisdiction. Ultimately, this odd procedural vehicle is not about the jurisdiction of the

trial court; rather, it is about the viability of the claim. Normally, a claim that lacks merit

is summarily disposed of by any number of other procedural tools such as a Rule 91a

motion, a no-evidence motion for summary judgment, or a traditional motion for

summary judgment. But the claim filed here, against an individual in their official

capacity for committing ultra vires acts as a member of a governmental board, is an

exception to sovereign or governmental immunity because it is not a claim against the

governmental unit as such.

        Looking at the pleadings and determining jurisdictional facts is part and parcel of

what we routinely do to determine if a suit against a governmental entity is the proper

subject of a legislative waiver of sovereign/governmental immunity. But when there is

no question that the suit is against an individual in their official capacity for prospective

Walker County ESD No. 3, et al. v. City of Huntsville                                    Page 2
non-monetary relief, is the trial court actually deprived of jurisdiction to determine the

merits of the proceeding using one of the appropriate tools as mentioned above? If the

claim for prospective non-monetary relief is wholly frivolous, either based on applicable

law or the facts, is the trial court deprived of jurisdiction? It seems to me that in the

judicial branch’s zeal to keep the government protected from suit, we have created a

hybrid procedure that hides behind the label of a plea to the jurisdiction but is not actually

about jurisdiction. As applied to this proceeding, I believe the proper procedure for the

only remaining claim being asserted by Huntsville, which is against the Walker County

ESD No. 3 board members in their individual capacities for ultra vires acts, is to recognize

that the trial court has jurisdiction of that claim, without regard to the merits, and leave

the disposition of the case on the merits to another procedural tool on another day.1

        Accordingly, I would affirm the trial court’s denial of the plea to the jurisdiction.

Because the Court reverses the trial court’s determination that it has jurisdiction to

address the merits of the City of Huntsville’s claim in the first instance and dismisses the

case, I respectfully dissent.



                                                TOM GRAY
                                                Chief Justice

Dissenting opinion delivered and filed December 7, 2022




1
 To the extent the City of Huntsville has abandoned its claims against Walker County ESD No. 3 or its
board as an entity, anything we say in this proceeding as to them is dicta. The claims as to these parties
should be dismissed as moot and could, if necessary, then be severed from this appeal.

Walker County ESD No. 3, et al. v. City of Huntsville                                              Page 3