Opinion
NO. 03-16-00657-CV
04-20-2017
Texas Health and Human Services Commission; Department of State Health Services; HHSC Executive Commissioner Charles Smith; DSHS Commissioner John Hellerstedt, M.D.; and DSHS Hearing Officer Elaine Snow, Appellants v. Jane Doe, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-16-002113 , HONORABLE JAMES E. MORGAN, JUDGE PRESIDING MEMORANDUM OPINION
After the Department of State Health Services (DSHS) issued a decision denying Jane Doe's request for a certified Texas birth certificate, Doe filed a petition in the trial court seeking judicial review of the agency's order. The appellants (collectively, the HHSC Defendants) filed a plea to the jurisdiction, which the trial court denied. The HHSC Defendants appeal this interlocutory order. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). In three appellate issues, the HHSC Defendants contend that the trial court erred in denying the plea because the Uniform Declaratory Judgments Act (UDJA) does not waive sovereign immunity for Doe's claims, the Administrative Procedures Act (APA) does not provide for judicial review of DSHS's decision, and Doe did not plead valid ultra vires claims. Because we conclude that neither the UDJA nor the APA conferred jurisdiction over Doe's claims and that Doe failed to plead valid ultra vires claims, we will reverse the trial court's order denying the HHSC Defendants' plea to the jurisdiction and render judgment granting the plea and dismissing Doe's suit.
BACKGROUND
The following facts are undisputed on appeal. In 1994, the state registrar received a Texas Certificate of Birth for Doe. The certificate showed Rosalinda Esquivel as the midwife who delivered Doe. In 1995, Esquivel pleaded guilty to two counts of unlawfully procuring evidence of citizenship. See 18 U.S.C. § 1425 ("Procurement of citizenship or naturalization unlawfully"). Esquivel executed a sworn affidavit in which she admitted to unlawfully obtaining Texas birth certificates for about 500 individuals, including Doe. This affidavit included Doe's name, date of birth, alleged place of birth, and the names of Doe's parents. In the affidavit, Esquivel admitted that she did not attend Doe's birth. A Mexican birth certificate for Doe was also found. This Mexican birth certificate showed the same date of birth as the Texas certificate but stated that Doe was born in Mexico. Because Esquivel's affidavit and the Mexican birth certificate contradicted the information on Doe's Texas birth certificate, the state registrar placed an addendum on Doe's Texas birth certificate. See Tex. Health & Safety Code § 191.033(a) ("The state registrar may attach to the original record an addendum that sets out any information received by the state registrar that may contradict the information in a birth . . . record required to be maintained in the vital statistics unit.").
In 2014, Doe applied for a certified copy of her birth certificate. Pursuant to section 191.057 of the Health and Safety Code, the state registrar refused to issue the birth certificate because of the addendum on Doe's record. Section 191.057 provides,
If the vital statistics unit or any local registration official receives an application for a certified copy of a birth . . . record to which an addendum has been attached under Section 191.033, the application shall be sent immediately to the state registrar. After examining the application, the original record, and the addendum, the state registrar may refuse to issue a certified copy of the record or part of the record to the applicant.Id. § 191.057(b). The state registrar informed Doe of the refusal and afforded Doe the opportunity for a hearing. See id. § 191.057(c).
Doe requested a hearing, which was held before DSHS hearing examiner Elaine Snow. Following the hearing, Snow signed an order concluding that the addendum on Doe's record should not be removed and that the birth certificate should not be issued because the information that led to the addendum had not been rebutted. The order also stated that it was a "final decision" of DSHS, and it included findings of fact and conclusions of law.
Doe filed a petition in the trial court seeking a "De Novo Appeal" of DSHS's decision. In her petition, Doe sought declaratory relief under the UDJA. See Tex. Civ. Prac. & Rem. Code § 37.004(a). Specifically, Doe asked the court to interpret 25 Texas Administrative Code section 181.21(b), which provides that "[t]he criteria for refusal to issue a certified copy of a record is based on information the State Registrar receives that contradicts the information shown in the record" and lists several examples of such information. See 25 Tex. Admin. Code § 181.21(b). Doe alleged that 25 Texas Administrative Code section 181.21(b) is unconstitutional as applied to her. Doe further complained that 25 Texas Administrative Code section 181.21(b) fails "to identify a legal standard and burden of proof for determining the 'false' nature of any contradictory information received by the State." Doe also sought a temporary injunction enjoining the HHSC Defendants from "continuing to place an attachment to her birth certificate" and "depriving her of obtaining a certified copy of her birth certificate" until further order of the court and asked that the court later issue a permanent injunction.
The HHSC Defendants filed a plea to the jurisdiction, which the trial court denied, and this appeal followed.
STANDARD OF REVIEW
"Sovereign immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction." Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). "We construe the pleadings liberally in favor of the [plaintiff] and look to the pleader['s] intent." Id. at 226. "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court[']s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the [plaintiff] should be afforded the opportunity to amend." Id. at 226-27. However, "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the [plaintiff] an opportunity to amend." Id. at 227. Because subject-matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction de novo. See Houston Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 160 (Tex. 2016).
DISCUSSION
UDJA
In her original petition, Doe asserts that the trial court has jurisdiction over her case under the UDJA. The UDJA provides that "[a] person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code § 37.004(a). The Texas Supreme Court has explained that "the UDJA does not enlarge the trial court's jurisdiction but is 'merely a procedural device for deciding cases already within a court's jurisdiction.'" Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam) (quoting Texas Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Accordingly, the UDJA "is not a general waiver of sovereign immunity." Sawyer Trust, 354 S.W.3d at 388. Instead, the UDJA only "waives sovereign immunity in particular cases." Sefzik, 355 S.W.3d at 622. "For example, the state may be a proper party to a declaratory judgment action that challenges the validity of a statute." Id.
Doe is challenging the constitutionality of an agency rule, not a statute. Her original petition includes the following statements:
• "A justiciable controversy exists as to the rights of the parties—the interpretation and application by Defendants of 25 T.A.C. § 181.21(b)."
• "A hearing examiner cannot deny an individual a constitutional right pursuant to an ambiguous interpretation of a state rule specifically when said rule is lacking essential elements of due process and a fair hearing—burden of proof and applicable legal standard."
• "As applied to [Doe], 25 T.A.C. § l81.21(b) constitutes a retroactive law prohibited by the Texas Constitution Article 1, Section 15."
• "As applied to [Doe] by Defendants, 25 T.A.C. § 181.21(b) violates [Doe]'s rights to both substantive and procedural due process under Tex. Const. Art. 1, Section 19."
• "Specifically, [Doe] seeks a declaratory judgment regarding the proper interpretation of 25 T.A.C. § l 81.21(b)."
• "[Doe] . . . seeks a declaration to afford relief from uncertainty and insecurity with respect to her rights, status, and legal relations as anticipated under sections 25 T.A.C. § 181.28 and the State of Texas Constitution . . . ."These statements demonstrate that Doe's UDJA claim is essentially a challenge to 25 T.A.C. § 181.21(b), an agency rule. And, while other procedural mechanisms exist for challenging an agency rule, the UDJA does not waive sovereign immunity for a rule challenge. See Tex. Civ. Prac. & Rem. Code § 37.004 ("A person . . . whose rights, status, or other legal relations are affected by a statute [or] municipal ordinance . . . may have determined any question of construction or validity arising under the . . . statute [or] ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.") (emphases added); Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 708 (Tex. App.—Austin 2013, no pet.) ("[A]s Giggleman acknowledges, some of the declarations he purports to seek concern the proper construction of the Board's rules, as opposed to a statute. That sort of claim falls outside the UDJA altogether."). Therefore, we conclude that the UDJA does not waive sovereign immunity for Doe's claims.
• "By failing to identify a legal standard and burden of proof for determining the 'false' nature of any contradictory information received by the State, 25 T.A.C. § 181.21(b) grants the Defendants unlimited, unchecked authority to pick and choose any legal standard and burden of proof regardless of its relevance or applicability to the case. Furthermore, it grants the Defendants an advantage in that an opposing party is limited in his/her preparation of arguments to present at the time of the hearing."
• "[T]he absence of a legal standard and burden of proof as part of 25 T.A.C. § 181.21(b) creates an avenue by which a hearing officer can arbitrarily adopt a legal standard that is inapplicable and irrelevant to an individual's case."
• "Absent temporary injunctive relief, staying the finality of a final judgment in this case, Defendants will contend that this Court has lost subject matter jurisdiction to consider the issues presented in this case regarding the validity as applied, of the provisions of 25 T.A.C. § 181.21(b) and 25 T.A.C. § 181.28."
• "[Doe] seeks injunctive relief to preserve the status quo, including a prohibition on certain activities of the Commissioner, until such rules have been judicially reviewed and the requested declaratory relief granted."
• "[Doe] can demonstrate probable success on the merits on its claims asserted as to the invalidity of the Defendants' interpretation of 25 T.A.C. § 181.21(b) . . . ."
• "[Doe prays that] upon final hearing, the Court issue a declaratory judgment holding that 25 T.A.C. § 181.21(b) violates Tex. Const. Art. 1, Sec. 16 and 19, as applied; that the Defendant Commissioner must adopt clear and concise rules prior to proceeding with any action to deprive an individual a right to his/her birth certificate in violation of Tex. Const. Art. 1, Section 19, as applied . . . ."
Doe's petition does include the following sentence: "The interpretation and application by Defendants of 25 T.A.C. § 181.2l(b), render this statute unconstitutional, under Tex. Const. Art. 1, Section 16 and Art. 1, Section 19." However, Doe does not explain what statute she is referring to and does not request that the trial court declare any statutory provision unconstitutional. Moreover, the context of this statement suggests that "this statute" actually refers to the rule itself. All the constitutional claims in Doe's petition rest upon her assertion that 25 Texas Administrative Code section 181.2l(b) is unconstitutional as applied to her.
We note, for example, that Doe did not bring her suit under section 2001.038 of the APA. See Tex. Gov't Code § 2001.038(a) ("The validity or applicability of a rule . . . may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.").
APA
Although her original petition does not mention the APA, Doe argues in her response to the HHSC Defendants' plea to the jurisdiction and in her appellate briefing that "Section [2001.171] of the [APA] confers jurisdiction in this case because Doe seeks judicial review of an agency decision in a contested case." See Tex. Gov't Code § 2001.171 ("A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter."). The HHSC Defendants respond that the decision not to issue Doe a certified birth certificate was not "a final decision in a contested case" within the meaning of the APA. Even assuming, without deciding, that the hearing examiner's decision was "a final decision in a contested case" and that Doe could seek judicial review under section 2001.171, we conclude that Doe failed to exhaust her administrative remedies because she did not file a motion for rehearing as required by the APA. See id. § 2001.145(a) ("A timely motion for rehearing is a prerequisite to an appeal in a contested case except [for situations not relevant here]."); Railroad Comm'n of Tex. v. WBD Oil & Gas Co., 104 S.W.3d 69, 74-75 (Tex. 2003) ("Judicial review of contested case decisions is . . . limited. To obtain such review, an aggrieved person must move for rehearing (except in certain cases), must have exhausted all other administrative remedies available, and must file a petition with the court within thirty days of the decision.") (footnotes omitted). Therefore, the APA does not give the trial court jurisdiction over Doe's appeal. See Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995) ("The failure to file a timely motion for rehearing deprives the district court of jurisdiction to review the agency's decision on appeal."); Natter v. Texas Dep't of State Health Servs., No. 03-16-00317-CV, 2016 WL 4980215, at *2 (Tex. App.—Austin Sept. 13, 2016, no pet.) (mem. op.) ("Under the APA, a timely filed motion for rehearing is a prerequisite to an appeal except in certain situations not germane to this case . . . . Timely filing the motion for rehearing with the agency is part of the exhaustion requirement and is a prerequisite to invoking the district court's jurisdiction."); Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 565 (Tex. App.—Austin 2008, pet. denied) ("Under the APA, a timely motion for rehearing generally is a jurisdictional prerequisite to an appeal in a contested case.").
It is undisputed that Doe did not file a motion for rehearing. However, in her original petition, Doe alleges, "In order to ensure that there was no further recourse[,] [Doe] contacted Officer Snow by telephone and was informed that Officer Snow's decision was final, unappealable and that [Doe] did not have the opportunity to request a rehearing." Nevertheless, even if the HHSC Defendants wrongly informed Doe that she could not file a motion for rehearing (a question we do not reach here), Doe was still required to file a motion for rehearing before seeking judicial review, again assuming without deciding that the APA applies. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001) (per curiam) (noting that jurisdiction cannot be conferred by estoppel or action of party or agency and that school district's failure to inform employee about administrative remedies did not absolve employee of exhaustion-of-remedies requirement); Lindsay v. Sterling, 690 S.W.2d 560, 563 (Tex. 1985) ("The requirement of having a motion for rehearing overruled, thus exhausting administrative remedies, is a jurisdictional prerequisite to judicial review by the district court and cannot be waived by action of the parties."); Mosley v. Texas Health & Human Servs. Comm'n, ___ S.W.3d ___, No. 03-16-00358-CV, 2017 WL 1208764 at *4 (Tex. App.—Austin Mar. 30, 2017, no pet. h.) ("[A]n agency may not waive a jurisdictional prerequisite such as the APA's motion-for-rehearing requirement, even if the agency improperly communicates to a party that there are no further administrative remedies available to pursue."); Texas Alcoholic Beverage Comm'n v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San Antonio 1990, writ denied) (op. on reh'g) (per curiam) ("An appeal from an administrative agency is not a matter of right, it is set out by statute and must be strictly complied with in order to vest the district court with jurisdiction.").
Ultra Vires
In her response to the HHSC Defendants' plea to the jurisdiction and in her appellate briefing, Doe also argues that the trial court has jurisdiction over her suit because she has asserted ultra vires claims, which do not implicate sovereign immunity. See Houston Belt, 487 S.W.3d at 161 ("[W]hile governmental immunity provides broad protection to the state and its officers, it does not bar a suit against a government officer for acting outside his authority—i.e., an ultra vires suit."). Doe's original petition makes the following allegations:
• "[The HHSC Defendants] failed to adopt any standards for determining that [Doe] should not have the addendum attached to the birth certificate removed; thereby, entitling [Doe] to a certified copy of her birth certificate."
• "Defendants have failed to adopt necessary rules establishing the factual basis for rebutting evidence presented by DSHS."
• "At the [hearing on] March 29, 2016, Officer Snow adopted the legal standard pertaining to termination of the parent-child relationship—specifically the requirements (and burden of proof) for challenging the validity of an affidavit. [Doe] would argue that the adoption and use of such legal standard at the moment of the hearing leads to ambiguity, unfair and arbitrary results without notice to [Doe]."
• "[Doe] argues that both agencies have denied her substantive and procedural constitutional rights of citizenship without the opportunity to appeal or even to object to Officer Snow's final order."
To constitute ultra vires claims that do not implicate sovereign immunity, "a suit 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." Id. (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). We conclude that Doe has not alleged that any of the HHSC Defendants failed to perform a purely ministerial act, and we further conclude that Doe has not alleged facts showing that any of the HHSC Defendants acted without legal authority. Indeed, the facts alleged by Doe show that the HHSC Defendants acted with explicit statutory authority. That is, when the state registrar received information contradicting the information on Doe's Texas birth certificate, the state registrar placed an addendum on Doe's record. See Tex. Health & Safety Code § 191.033(a). Later, when Doe requested a certified copy of her birth certificate, the state registrar examined the addendum and decided not to issue the birth certificate. See id. § 191.057(b). The state registrar then informed Doe of the refusal and afforded Doe the opportunity for a hearing. See id. § 191.057(c).
Doe did receive a hearing, and the hearing examiner issued a written decision that included findings of fact and conclusions of law. This written decision shows that the hearing examiner weighed conflicting evidence (including the Texas birth certificate, the Mexican birth certificate, and the two contradictory affidavits from the midwife Esquivel) and concluded that Doe had not rebutted the information that led to the addendum. Although Doe may be dissatisfied with the results of the hearing, an ultra vires claim must challenge the government official's authority, not whether the government official made an incorrect decision. See Office of the Comptroller of Pub. Accounts for the State of Tex. v. Farshid Enterprises, L.L.C.,No. 03-16-00291-CV, 2017 WL ___, at *___ (Tex. App.—Austin Apr. 13, 2017, no pet. h.) (mem. op.) ("[T]o be cognizable, an ultra vires claim must challenge the government official's authority, not whether the government official made an incorrect decision."); City of Austin v. Utility Assocs., Inc., ___ S.W.3d ___, No. 03-16-00565-CV, 2017 WL 1130397, at *5 (Tex. App.—Austin Mar. 24, 2017, no pet. h.) ("Where, as here, a governmental body has been delegated authority to make some sort of decision or determination, immunity jurisprudence has long emphasized a critical distinction between alleged acts of that body that are truly ultra vires of its decision-maker authority, and are therefore not shielded by immunity, and complaints that the body merely 'got it wrong' while acting within this authority, which are shielded."); Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Envtl. Quality, 307 S.W.3d 505, 517-18 (Tex. App.—Austin 2010, no pet.) (concluding that "allegations that TCEQ reached an incorrect or wrong result when exercising its delegated authority" did not invoke "the district court's inherent jurisdiction to remedy ultra vires agency actions"); Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.) ("Whether [the agency's] interpretation is correct or incorrect cannot be the factor that confers jurisdiction."); see also Ex parte Springsteen, 506 S.W.3d 789, 799 (Tex. App.—Austin 2016, pet. filed) ("[The Texas Supreme Court] has squarely repudiated the once-widespread notion that the UDJA confers some broader right to sue government to obtain 'statutory construction' or a 'declaration of rights.'"). Therefore, we conclude that Doe did not allege ultra vires claims that would avoid the HHSC Defendants' sovereign immunity.
Summary
Because we have determined that neither the UDJA nor the APA waives the HHSC Defendants' sovereign immunity and that Doe has not pleaded cognizable ultra vires claims, and because we further determine that the facts Doe pleaded affirmatively show that the trial court lacked subject-matter jurisdiction over Doe's suit, we conclude that the trial court erred in denying the HHSC Defendants' plea to the jurisdiction. Accordingly, we sustain the HHSC Defendants' issues to the extent they argue that the trial court lacked jurisdiction over Doe's suit.
CONCLUSION
We reverse the trial court's order denying the HHSC Defendants' plea to the jurisdiction and render judgment granting the plea to the jurisdiction and dismissing Doe's suit.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Reversed and Rendered Filed: April 20, 2017