Full Opinion (html_with_citations)

                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION

                                            No. 04-22-00427-CV

                                            Chris Noel CARLIN,
                                                  Appellant

                                                        v.

 BEXAR COUNTY, Bexar County Judge Nelson W. Wolff, in his Official Capacity as Bexar
     County Judge, Judge Ron Rangel in his Official Capacity as Local Criminal Court
Administrative Judge, Bexar County, Texas, and Judge Rosie Alvarado, in her Official Capacity
                    as Local Administrative Judge, Bexar County, Texas,
                                         Appellees

                      From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2021CI10840
                               Honorable Tina Torres, Judge Presiding

Opinion by:      Irene Rios, Justice

Sitting:         Irene Rios, Justice
                 Beth Watkins, Justice
                 Lori I. Valenzuela, Justice

Delivered and Filed: December 20, 2023

AFFIRMED

           Chris Carlin 1 filed suit alleging minimum standard health protocols issued by Bexar

County Judge Nelson Wolff on behalf of Bexar County, State District Judge Ron Rangel, and State

District Judge Rosie Alvarado (collectively, “the Appellees”), regarding masking requirements in

response to COVID-19, violated the Texas Religious Freedom Restoration Act (“TRFRA”). The


1
 Carlin filed his original petition using his former name, “Dustin Shawn Kolodziej.” According to his first amended
petition, Carlin changed his legal name to “Christopher Noel Carlin” on December 13, 2021.
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appellees filed pleas to the jurisdiction and Rule 91a motions to dismiss asserting their sovereign

and governmental immunity was not waived because Carlin failed to comply with pre-suit notice

provisions under the TRFRA. Carlin appeals from the trial court’s order granting the Appellees’

pleas to the jurisdiction and Rule 91a motions to dismiss. 2 We affirm.

                                                   BACKGROUND

         On June 1, 2021, Carlin sued Bexar County, Judge Wolff, and Judge Rangel asserting

various causes of action complaining about the May 28, 2021 minimum standard health protocols

implemented at the Bexar County Courthouse in response to the COVID-19 pandemic. Carlin did

not serve citation with his original petition on any of the named defendants.

         On January 20, 2022, Carlin filed his first amended petition. The first amended petition

added Judge Alvarado as a defendant, and, in addition to the causes of action asserted in the

original petition, requested declaratory and injunctive relief under the Texas Religious Freedom

Restoration Act (“TRFRA”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 110.001–110.012. It

appears the Appellees received service of the first amended petition.

         On March 10, 2022, Judge Rangel and Judge Alvarado filed a plea to the jurisdiction

asserting they are entitled to sovereign immunity and judicial immunity from Carlin’s suit. On

March 21, 2022, Bexar County and Judge Wolff filed a plea to the jurisdiction asserting they are

entitled to governmental immunity from Carlin’s suit. The pleas assert, among other things, that

the legislature waived sovereign and governmental immunity for an action brought under the

TRFRA only when the plaintiff complies with the pre-suit notice requirements in section 110.006


2
 Because the motions to dismiss are “the functional equivalent of a plea to the jurisdiction challenging the trial court’s
authority to determine the subject matter of a cause of action[,]” it is unnecessary to address the motions to dismiss
separately from the pleas to the jurisdiction. Pickett v. Tex. Mut. Ins. Co.,
239 S.W.3d 826, 839
 (Tex. App.—Austin
2007, no pet.); see also Lacy v. Bassett,
132 S.W.3d 119, 122
 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
Anderson v. City of San Antonio,
120 S.W.3d 5, 7
 (Tex. App.—San Antonio 2003, pet denied); TEX. R. APP. P. 47.1
(“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”).


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of the TRFRA; however, they assert Carlin failed to comply with pre-suit notice requirements

before he filed suit.
Id.
 §§ 110.006(a), 110.008(a).

       On April 11, 2022, Carlin filed his second amended petition. The second amended petition

dropped all causes of action except for the declaratory and injunctive relief sought under the

TRFRA. On April 18, 2022, the trial court granted both pleas and dismissed Carlin’s case with

prejudice. Carlin appeals.

                                            DISCUSSION

       The TRFRA prevents a government agency from substantially burdening a person’s free

exercise of religion unless the agency demonstrates that the burden is in furtherance of a

compelling government interest and is the least restrictive means of furthering that interest. TEX.

CIV. PRAC. & REM. CODE ANN. § 110.003. A plaintiff who successfully asserts a claim under the

TRFRA is entitled to recover: (1) declaratory relief; (2) injunctive relief to prevent the threatened

violation or continued violation; (3) compensatory damages; and (4) reasonable attorney’s fees,

court costs, and other reasonable expenses incurred in bringing the action. Id. § 110.005(a).

       On appeal, Carlin argues the trial court erred in dismissing his suit because he was not

required to provide pre-suit notice when the substantial burden on his free exercise of religion is

imminent and he “did not . . . have knowledge of the exercise of the governmental authority in

time to reasonably provide the notice.” Id. § 110.006(b). Carlin further argues that his original

petition provided notice to the Appellees that he had religious objections to the minimum standard

health protocols. Finally, Carlin argues the trial court erred by dismissing the suit with prejudice.

                                      STANDARD OF REVIEW

       “Immunity from suit implicates a court’s subject-matter jurisdiction and is properly

asserted in a plea to the jurisdiction.” City of Pearsall v. Tobias,
533 S.W.3d 516, 521
 (Tex. App.—

San Antonio 2017, pet. denied). “As subject matter jurisdiction is a question of law, we review a


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trial court’s ruling on a plea to the jurisdiction de novo.”
Id.
 “If the plea to the jurisdiction

challenges the pleadings, we liberally construe the pleadings to determine if the plaintiff has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”
Id.
 (internal

quotation marks omitted). “If the plea to the jurisdiction challenges the existence of jurisdictional

facts, which also implicate the merits of the case, we consider evidence submitted by the parties

to determine if a fact issue exists.”
Id.
 (internal quotation marks omitted). “We take as true all

evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts

in the nonmovant’s favor.”
Id.
 “If the evidence creates a fact question regarding jurisdiction, the

plea must be denied pending resolution of the fact issue by the fact finder.”
Id.
 “If the evidence

fails to raise a question of fact, however, the plea to the jurisdiction must be granted as a matter of

law.”
Id.
 at 521–22.

                       WAIVER OF GOVERNMENTAL IMMUNITY AND TRFRA

       The TRFRA defines government agency as “(A) this state or a municipality or other

political subdivision of this state; and (B) any agency of this state or a municipality or other

political subdivision of this state including a department, bureau, board, commission, office,

agency, council, or public institution of higher education.”
Id.
 § 110.001(a)(2). “Because a suit

against a state officer in his or her official capacity is equivalent to a suit against the state,

employees acting in their official capacity share their employer’s sovereign immunity.” Terrell ex

rel. Est. of Terrell v. Sisk,
111 S.W.3d 274, 280
 (Tex. App.—Texarkana 2003, no pet.) (“As a

public official sued in his official capacity, Judge Sisk is protected by the same sovereign immunity

enjoyed by the state agency he represents.”); Denson v. T.D.C.J.-I.D.,
63 S.W.3d 454, 460
 (Tex.

App.—Tyler 1999, pet. denied); Pickell v. Brooks,
846 S.W.2d 421
, 424–25 (Tex. App.—

Austin 1992, writ denied).




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        Bexar County, as a political subdivision, falls within the definition of “government agency”

and enjoys governmental immunity from suit under the TRFRA unless Carlin can show the

legislature waived immunity. See Hughes v. Tom Green County,
573 S.W.3d 212, 218
 (Tex. 2019)

(“Governmental immunity refers to the protection afforded the state’s political subdivisions, such

as the County here.”). Because the judges were sued in their official capacities, they enjoy their

employers’ sovereign and governmental immunities unless Carlin can show the legislature waived

immunity. See Liberty Mut. Ins. Co. v. Sharp,
874 S.W.2d 736, 738
 (Tex. App.—Austin 1994,

writ denied) (“[A] suit against a state officer in his official capacity is a suit against the state.”).

        “Absent waiver, governmental entities retain immunity from suit.” Tobias,
533 S.W.3d at 522
. “If the [l]egislature has not expressly waived immunity from suit, the State retains such

immunity even if its liability is not disputed.”
Id.
 When determining legislative intent, “[w]e must

enforce the statute as written and refrain from rewriting text that lawmakers chose.” City of Del

Rio v. Arredondo, No. 04-20-00409-CV,
2021 WL 3376948
, at *2 (Tex. App.—San Antonio

Aug. 4, 2021, no pet.) (mem. op.) (quoting County of Galveston v. Triple B Servs., LLP,
498 S.W.3d 176, 184
 (Tex. App—Houston [1st Dist.] 2016, pet. denied)).

        Subject to the notice requirements in section 110.006 of the TRFRA, the legislature has

waived sovereign immunity for suits brought under the TRFRA. TEX. CIV. PRAC. & REM. CODE

ANN. § 110.008(a) (“Subject to [s]ection 110.006, sovereign immunity to suit and from liability is

waived and abolished to the extent of liability created by [s]ection 110.005, and a claimant may

sue a government agency for damages allowed by that section.”). Subsection 110.006(a) of the

TRFRA states:

        A person may not bring an action to assert a claim under this chapter unless, 60
        days before bringing the action, the person gives written notice to the government
        agency by certified mail, return receipt requested:




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             (1) that the person’s free exercise of religion is substantially burdened by an
                 exercise of the government agency’s governmental authority;
             (2) of the particular act or refusal to act that is burdened; and
             (3) of the manner in which the exercise of governmental authority burdens
                 the act or refusal to act.
Id. § 110.006(a).

       Because the “TRFRA’s notice requirement is jurisdictional under Texas law, . . . the

waiver of governmental immunity is conditioned on plaintiff’s strict compliance with the notice

provision.” Gonzales v. Mathis Indep. Sch. Dist.,
978 F.3d 291, 295
 (5th Cir. 2020) (internal

quotation marks omitted); see also TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to

a suit, including the provision of notice, are jurisdictional requirements in all suits against a

governmental entity.”). Thus, pre-suit notice is an indispensable requirement, and any “failure of

[this] jurisdictional requirement deprives the court of the power to act (other than to determine that

it has no jurisdiction), and ever to have acted, as a matter of law.” Morgan v. Plano Indep. Sch.

Dist.,
724 F.3d 579, 584
 (5th Cir. 2013) (quoting City of DeSoto v. White,
288 S.W.3d 389, 393

(Tex. 2009)).

       Here, it is undisputed that Carlin never sent the Appellees notice at all, much less by

certified mail with return receipt requested as required by section 110.006. At the plea to the

jurisdiction hearing, the trial court asked Carlin whether he had sent a notice letter to the Appellees

prior to filing the lawsuit. Carlin responded: “No, Judge, it’s not required by the law, it’s not.”

Instead, Carlin stated to the trial court—and he maintains on appeal—that the notice was not

required to obtain injunctive or declaratory relief when the alleged substantial burden on his free

exercise of religion is imminent, and he did not have knowledge of the government’s purportedly

violative action in time to provide the notice. We disagree.




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        Subsection 110.006(b) of the TRFRA states: “a claimant may, within the 60-day period

established by [s]ubsection (a), bring an action for declaratory or injunctive relief . . . if: (1) the

exercise of governmental authority that threatens to substantially burden the person’s free exercise

of religion is imminent; and (2) the person was not informed and did not otherwise have knowledge

of the exercise of the governmental authority in time to reasonably provide the notice.” TEX. CIV.

PRAC. & REM. CODE ANN. § 110.006(b).

        While the TRFRA allows plaintiffs to file suit in certain imminent circumstances after the

plaintiff has provided notice by certified mail—but before the expiration of the 60-day waiting

period—it does not allow plaintiffs to neglect notice entirely. See id. § 110.006 (emphasis added)

(“[A] claimant may, within the 60-day period . . . bring an action for declaratory or injunctive relief

. . . .”); see also Gonzales,
978 F.3d at 297
 (holding one plaintiff’s failure to comply with the

TRFRA’s pre-suit notice requirement mandated the court vacate the preliminary injunction as to

him but not as to the other plaintiff who gave pre-suit notice and filed suit within the 60-day waiting

period).

        Moreover, Carlin complains about minimum standard health protocols that were

implemented on June 1, 2021; however, he did not assert a TRFRA claim until January 20, 2022.

Carlin fails to explain why he could not provide the sixty-days’ notice within the six-month period

preceding assertion of his TRFRA claim. Further, Carlin fails to explain how the alleged burden

on his free exercise of religion was imminent when he was subjected to the minimum standard

health protocols nearly six months before he asserted the TRFRA claim in his first amended

petition.

        To the extent Carlin argues his original petition provided sufficient notice to the Appellees

under the TRFRA, this argument lacks merit for three reasons. First, section 110.006 requires the

notice to be sent “before bringing the action[.]” TEX. CIV. PRAC. & REM. CODE ANN. § 110.006(a);


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see also Morgan,
724 F.3d at 586
 (emphasis added) (“[T]he TRFRA imposes statutory

prerequisites to filing suit, the TRFRA contains language that is mandatory, and the pre-suit

requirement must be accomplished prior to filing suit.”). Second, the Appellees argue, and the

record reflects, the Appellees did not receive service of Carlin’s original petition. 3 Finally, the

TRFRA explicitly mandates written notice by certified mail. See TEX. CIV. PRAC. & REM. CODE

ANN. § 110.006(a).          We strictly construe statutes that waive sovereign and governmental

immunity. City of Houston v. Jackson,
192 S.W.3d 764, 770
 (Tex. 2006). Because the TRFRA

requires strict compliance, Carlin’s failure to send pre-suit notice via certified mail left the

Appellees’ sovereign and governmental immunities intact. See id.; see also Morgan,
724 F.3d at 588
 (“[S]ection 110.006 of the TRFRA requires pre-suit notice in the form of certified mail, return

receipt requested, 60 days prior to filing suit[.]”). But see Gonzales,
978 F.3d at 295
 n.15 (holding

plaintiff’s pre-suit notice valid even though it was submitted by fax rather than certified mail).

Accordingly, the Appellees were immune from suit and the trial court did not err when it granted

their pleas to the jurisdiction. 4

                                         DISMISSAL WITH PREJUDICE

         “If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot

be removed, then it must be dismissed; but if the impediment to the jurisdiction could be removed,


3
  Carlin does not dispute that he failed to serve Appellees with his original petition.
4
  We further note Judge Rangel and Judge Alvarado have judicial immunity from this suit. “Judges acting in their
official judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their
jurisdiction.” Twilligear v. Carrell,
148 S.W.3d 502, 504
 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing
Dallas County v. Halsey,
87 S.W.3d 552, 554
 (Tex. 2002)). “This immunity extends to actions that are done in error,
maliciously, and even in excess of the judge’s authority.” Twilligear,
148 S.W.3d at 504
 (citing Stump v. Sparkman,
435 U.S. 349
, 356–57 (1978)). “It is overcome only for actions that are: (1) nonjudicial, i.e., not taken in the judge’s
official capacity; or (2) taken in the complete absence of all jurisdiction.” Twilligear,
148 S.W.3d at 504
 (citing
Mireles v. Waco,
502 U.S. 9
, 11–12 (1991)). Here, the actions Carlin complains of were taken in the district judges’
official judicial capacities to ensure the safety of those entering the Bexar County courthouse. See Dow Chemical Co.
v. Francis,
46 S.W.3d 237, 240
 (Tex. 2001) (“A judge’s ordinary efforts at courtroom administration . . . remain
immune.” (citing Liteky v. U.S.,
510 U.S. 540, 556
 (1994))); see also Cantu-McGarrahan v. Foote, No. 03-01-00506-
CV,
2002 WL 1728587
 at *6 (Tex. App.—Austin July 26, 2002, no pet.) (“Courts have inherent powers to regulate
behavior in their courtrooms.”).


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then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional

problem to be cured.” Am. Motorist Ins. Co. v. Fodge,
63 S.W.3d 801, 805
 (Tex. 2001). “In

general, a dismissal with prejudice is improper in a plea to the jurisdiction when the plaintiff is

capable of remedying the jurisdictional defect.” Goss v. City of Houston,
391 S.W.3d 168, 175

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (alterations omitted) (quoting Harris County v.

Sykes,
136 S.W.3d 635, 639
 (Tex. 2004)). “But if the pleadings affirmatively negate jurisdiction,

a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend

his petition.” Goss,
391 S.W.3d at 175
 (citing Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 227
 (Tex. 2004)). “Thus, when the evidence establishes that the trial court lacks

subject matter jurisdiction due to governmental immunity to suit, dismissal with prejudice is

proper.” Goss, 391 S.W.3d at 175–76 (citing Sykes,
136 S.W.3d at 639
). Because Carlin cannot

cure the defect in his pleadings—namely, his failure to provide pre-suit notice—the trial court did

not err in dismissing the case with prejudice.

                                           CONCLUSION

       We affirm the trial court’s orders dismissing Carlin’s suit.


                                                  Irene Rios, Justice




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