"Texas is open for business." The state of Texas permeates this message across nearly all channels of advertisement. It is meant to convey how entrepreneurs are welcomed and supported by the state's government and ever-growing communities.

During this past 89th session of the Texas Legislature, a critically important bill was introduced that sought to ensure this message continued to ring true. H.B. 3647 was sent to the Committee on Calendars on May 8 but was not put to a vote before the legislative session ended. However, there is possibility that it could be reintroduced in the next legislative session.

H.B. 3647 would have amended Section 51.014 of the Texas Civil Practice and Remedies Code and been an invaluable boon for the preservation of Texans' constitutional property rights. More specifically, this bill would have curbed the ever more frequent procedural tactics employed by local government entities asserting sovereign immunity.

To understand why this bill is critical to the preservation of property rights, a basic understanding of the aforementioned immunities and the narrow exceptions that apply to them is necessary.

Sovereign immunity affords the government protection from lawsuits and damages.

In the 2008 opinion Mission Consolidated Independent School District v. Garcia, the Texas Supreme Court held that sovereign immunity protects the state, its agencies, and its officers from lawsuits and damages, while governmental immunity protects the state's political subdivisions from the same.[1]

The court then reiterated the long-standing rule that, due to these immunities, "no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent."[2] It went on to explain that sovereign immunity and governmental immunity "afford the same degree of protection."[3]

In the 2002 opinion Texas Natural Resource Conservation Commission v. IT-Davy, the state Supreme Court extrapolated that these immunities grant the government protection from both suit and liability.[4]

In the 1999 opinion Texas Department of Transportation v. Jones, the Supreme Court of Texas further explained that "immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction."[5] The court also stated that "[i]mmunity from liability protects the state from judgment even if the Legislature has expressly consented to the suit."[6]

Hence, even if private litigants are able to show that the government is not afforded immunity from suit in a particular case, they must still ultimately prove that immunity from liability should not apply either. Therefore, sovereign immunity is an extremely high hurdle for plaintiffs to overcome when suing the government.

The ultra vires cause of action provides a narrow exception to sovereign immunity.

In addition to the state consent requirement, Texas common law also provides for a cause of action that circumvents sovereign immunity and governmental immunity all together: ultra vires. The term ultra vires is a Latin phrase meaning "beyond the powers."

In the 2009 opinion in City of El Paso v. Heinrich, the Texas Supreme Court explained that an ultra vires cause of action "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."[7]

The court then stated that "ultra vires suits do not attempt to exert control over the state — they attempt to reassert the control of the state."[8]

Thus, it ultimately held "that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money."[9]

The court then explained in the same opinion that "while '[a] lack of immunity may hamper governmental functions by requiring tax resources to be used for defending lawsuits ... rather than using those resources for their intended purposes' ... this reasoning has not been extended to ultra vires suits."[10]

Finally, it concluded that "extending immunity to officials using state resources in violation of the law would not be an efficient way of ensuring those resources are spent [as intended, and this] is particularly true since ... suits that lack merit may be speedily disposed of by a plea to the jurisdiction."[11]

Thus, ultra vires causes of action provide an additional avenue for private citizens to seek redress from the courts when the government acts outside of its authority or fails to perform a mandatory duty.

And because they do not seek monetary damages, immunity from liability — under the sovereign immunity doctrine — is not violated by ultra vires lawsuits either.

However, the usefulness of ultra vires causes of action has been greatly diminished by the legal tactics employed by local governments pursuant to Section 51.014 of the Texas Civil Practice and Remedies Code.

Current Texas statutory law prevents most private litigants from seeking judicial remedies when the government violates their property rights.

The Texas Civil Practice and Remedies Code provides yet an additional layer of protection for government entities and officials named in lawsuits. As currently written, Section 51.014 of the Texas Civil Practice and Remedies Code allows government entities to drain the financial resources of most litigants before any evidence can be presented to a court.

The relevant portion of Section 51.014 provides that:

(a) A person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that:

...
(8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.

As a result, a government's plea to the jurisdiction can be appealed immediately, regardless of whether it is granted or denied.

The practical effect of this statute is that when a litigant brings an ultra vires lawsuit, the government will file a plea to the jurisdiction and then appeal when it is inevitably denied, regardless of the appeal's merits.

Furthermore, pursuant to Section 51.014(b) of the Texas Civil Practice and Remedies Code, such an interlocutory appeal "stays all other proceedings in the trial court pending resolution of that appeal."

Therefore, before private litigants can ever submit any evidence to a court or present the merits of their case to a jury, they must first prove the court has jurisdiction at the trial court level and then do so again at the intermediary appellate court level at a minimum.

However, even if a private citizen prevails at both the intermediary appellate and trial court levels, the government could still appeal yet again to the Supreme Court of Texas.

Hence, Texas landowners whose constitutional property rights have been violated by a government official's ultra vires acts are forced to spend tens of thousands, if not hundreds of thousands, of dollars on appellate attorney fees before they can ever see the inside of a trial courtroom.

Predictably, Section 51.014 acts as a monetary barrier to judicial remedies for all but the most affluent citizens whose property rights have been trampled by the government.

This procedural strategy is almost invariably employed by county and municipal governments and officials to prevent real estate from being developed for certain purposes or by specific people, regardless of what Texas statutes may mandate.

The average citizen or business cannot afford the exorbitant legal expenses of litigating a case at the trial court and multiple appellate court levels. Therefore, Section 51.014, as presently enacted, has rendered the ultra vires cause of action a nearly toothless recourse for citizens seeking to rectify the government's violations of their property rights.

H.B. 3647 sought to cure the access-to-justice issue created by Texas local governments using Section 51.014.

H.B. 3647 would have amended Section 51.014 so that interlocutory appeals for denials of the government's pleas to the jurisdiction are not permitted for ultra vires causes of action.

The bill would have integrated the following subsection into Section 51.014 of the Texas Civil Practice and Remedies Code:

(a-1) Subsection (a) does not apply to an order granting or denying a plea to the jurisdiction by a governmental unit as that term is defined by Section 101.001 with respect to: (1) a mandamus action; or (2) a claim alleging performance of an ultra vires act. (a-2) A court shall strictly construe the limitation described by Subsection (a-1).

H.B. 3647 would have also supplemented Section 51.015 with the following provision:

(b) In the case of an appeal of an order denying a plea to the jurisdiction by a governmental unit as that term is defined by Section 101.001 with respect to a mandamus action or a claim alleging performance of an ultra vires act, if the order appealed from is affirmed, the court of appeals shall order the governmental unit to pay all costs and reasonable attorney's fees of the appeal.

Thus, not only would denials of pleas to the jurisdiction be precluded from interlocutory appeals when they challenge ultra vires causes of action, but the government would also be forced to bear the cost of the appeals that ultimately fail.

These amendments to the Texas Civil Practice and Remedies Code would have allowed private litigants to access the judicial remedies that ultra vires claims were originally intended to provide.

In addition, it would have created a substantial deterrent for the government from filing appeals challenging jurisdiction that have little to no merit.

As such, the passage of H.B. 3647 would have reestablished the ability of Texas citizens to hold government entities and officials accountable when they violate property rights by acting outside of their authority or refusing to perform actions mandated by law.

In other words, it would have reaffirmed that Texas is open for business.

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