Opinion
NO. 03-17-00770-CV
02-02-2018
Empower Texans, Inc. and Michael Quinn Sullivan, Appellants v. Texas Ethics Commission; Seana Willing in her Capacity as Executive Director of the Texas Ethics Commission; Tom Ramsay, Individually and in his Capacity as Commissioner; Paul Hobby, Individually; Steve P. Wolens, in his Capacity as Commissioner; Hugh C. Akin, Individually and in his Capacity as Commissioner; James T. Clancy, Individually and in his Capacity as Commisisoner; Wilhelmina R. Delco, Individually; Chris Flood, in his Capacity as Commissioner; Warren T. Harrison, Individually; Mary K. Kennedy, in her Capacity as Commissioner; Robert K. Long, Individually; Chad M. Craycraft, in his Capacity as Commissioner; and Charles G. Untermeyer, Individually and in his Capacity as Commissioner, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-14-001252 , HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellants Empower Texans, Inc. and Michael Quinn Sullivan seek to appeal an interlocutory order signed by the trial court on October 20, 2017, granting a plea to the jurisdiction filed by Tom Ramsay, Paul Hobby, Hugh Akin, James T. Clancy, Wilhelmina R. Delco, Warren T. Harrison, Robert K. Long, and Charles G. Untermeyer (collectively, "the Individual Defendants"), in which they sought to dismiss claims asserted against them in their individual capacities. The Individual Defendants asserted that the trial court lacked jurisdiction over the claims asserted against them in their individual capacities on the grounds of standing, mootness, and ripeness. Appellants assert that this Court has jurisdiction over this interlocutory appeal by virtue of Texas Civil Practice and Remedies Code section 51.014(a)(8) (person may appeal from interlocutory order of district court that grants or denies plea to jurisdiction by governmental unit as that term is defined in section 101.001). The Individual Defendants moved to dismiss the appeal, asserting that the order appealed from does not grant "a plea to the jurisdiction by a governmental unit" because the plea was filed by them in their individual capacities, as opposed to in their capacities as Commissioners, and the plea sought dismissal only of claims brought against them in their individual capacities. Appellants counter that after the trial court granted the Individual Defendants' plea to the jurisdiction, counsel for the Individual Defendants was asked to prepare an order. Appellants argue that the order submitted by the Individual Defendants, which the trial court signed, dismissed with prejudice all of Appellants' civil rights claims against "all the defendants, including those claims made against the Texas Ethics Commission and its commissioners in their official capacity." Thus, according to Appellants, the order grants a plea to the jurisdiction "by a governmental unit" and this Court has jurisdiction to review the interlocutory order. See id.
The order recites:
On August 15, 2017, came to be heard before this Court the Individual Defendants' Plea to the Jurisdiction. Upon careful consideration of the Plea, the response, the reply, the evidence, the pleadings and arguments of counsel, the Court determines that the Plea should be GRANTED in its entirety.
It is therefore ORDERED that the Individual Defendants' Plea to the Jurisdiction is GRANTED, and all claims brought pursuant to 42 U.S.C. § 1983 within Count V of Plaintiffs' Fourth Amended Petition are DISMISSED in their entirety with prejudice as to refiling.Thus, it appears that the trial court's order, while purporting only to grant the plea to the jurisdiction filed by the Individual Defendants, also dismisses claims in Count V of the petition asserted against the Commission and the Commissioners in their official capacities. Because such an order would grant more relief than was requested by the parties, and because the plea itself and the transcript of the hearing on the plea indicate that the trial court was only asked to dismiss the claims against the Individual Defendants, we are unable to discern whether the trial court's intent was to dismiss only the claims brought pursuant to 42 U.S.C. § 1983 against the Individual Defendants, or whether the trial court actually intended to grant more relief than was sought in the motion.
Whether this Court has jurisdiction to consider this interlocutory appeal turns on whether the trial court's order granted a jurisdictional challenge by a governmental unit or, as the Individual Defendants contend, more narrowly granted the plea only of defendants sued in their individual capacities. Accordingly, we abate this appeal to permit clarification by the trial court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating that appellate court can abate appeal to permit trial court to clarify intention of its order). If the trial court intended to dismiss only those claims brought pursuant to 42 U.S.C. § 1983 against the Individual Defendants, it shall modify the order to clearly evidence that intent. If the trial court intended to grant more relief than was requested in the Individual Defendants' plea to the jurisdiction and to dismiss claims brought pursuant to 42 U.S. C. § 1983 against the Texas Ethics Commission or any defendant sued in his or her capacity as Commissioner, it shall certify this in writing. The trial court shall then include the modified order or certification clarifying its intent in a supplemental clerk's record to be filed with the clerk of this Court on or before March 1, 2018.
It is so ordered on February 2, 2018. Before Chief Justice Rose, Justices Goodwin and Field Abated and Remanded Filed: February 2, 2018