*18 Pleas to the Jurisdiction

PLEAS TO THE JURISDICTION, 72 The Advoc. (Texas) 18

72 The Advoc. (Texas) 18

The Advocate (Texas) Fall, 2015

Symposium: Motion Practice Dale Wainwright a1 Lindsay Hagans a2

*18 PLEAS TO THE JURISDICTION

A PLEA TO THE JURISDICTION IS THE VEHICLE most often employed to challenge a trial court's subject-matter jurisdiction. 1 This motion has been in our rules of trial court procedure since 1877. 2 Although the motion is used to raise the jurisdictional issues of lack of standing, mootness, failure to satisfy a court's minimum jurisdictional amount, and ripeness, governmental entities frequently use this plea to raise governmental or sovereign immunity. 3 It is in connection with immunity that the Texas Supreme Court has provided recent guidance on this procedural vehicle.

Sovereign Immunity

As a context to the following discussion, we provide some background on sovereign immunity. It is one of this nation's deepest- rooted jurisprudential tenets that the sovereign is immune from suit. Alexander Hamilton wrote that it is “inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” 4 Indeed immunity is “one of the attributes of sovereignty [and] is now enjoyed by the government of every State in the Union.” 5 In 1847, the Supreme Court of Texas affirmed this long-held axiom and held that “no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” 6

Sovereign immunity includes two distinct principles: immunity from suit and immunity from liability. 7 Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject-matter jurisdiction and may be raised at any time, including initially on appeal. 8 Immunity from liability protects the state from money judgments even if the Legislature has expressly given consent to sue. 9 Immunity from suit bars a suit against the state unless the Legislature expressly consents to the suit. 10 If the Legislature has not expressly waived immunity from suit, the state retains such immunity even if its liability is not disputed. 11 The Court has consistently deferred to the Legislature to waive immunity from suit, thus allowing the Legislature “to protect not only its policy-making function but also to preserve its interest in managing state fiscal matters.” 12

Subject-Matter Jurisdiction

Pleas to the jurisdiction raise issues of subject-matter jurisdiction, like sovereign immunity. If a court does not have subject- matter jurisdiction over a dispute, it does not have the power to decide the case. 13 Because sovereign immunity from suit defeats a trial court's subject-matter jurisdiction, it is properly asserted in a plea to the jurisdiction. 14 The claims asserted may establish the context in which, or the grounds on which, a dilatory plea is raised, but the plea to the jurisdiction should be decided without delving into the merits of the case, unless the jurisdictional and merits issues are intertwined. 15 (See Considering Evidence in Connection With a Plea to the Jurisdiction, discussed below). The purpose of this dilatory plea is not to force a plaintiff to

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 PLEAS TO THE JURISDICTION, 72 The Advoc. (Texas) 18 preview its case on the merits but to establish a reason why the merits of the plaintiff's claims should never be reached at all. Thus, the Texas Supreme Court has instructed that trial courts must determine at their earliest opportunity whether they have the constitutional or statutory authority--the subject-matter jurisdiction--to decide the case before allowing the suit to proceed. 16

Considering Evidence in Connection With a Plea to the Jurisdiction

Whether a court has subject-matter jurisdiction is a question of law. 17 Therefore, whether a pleader has alleged sufficient facts that challenge a trial court's subject-matter jurisdiction is a question of law reviewed de novo. 18 In reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, the court takes as true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant's favor. 19

However, in some cases, there is a dispute over jurisdictional facts, which also implicate the merits of the case, and this evidentiary dispute may require resolution by the fact-finder. 20 In *19 fact, as early as 1893, Texas courts indicated that evidentiary challenges to subject-matter jurisdiction raised in pleas to the jurisdiction should be considered by trial courts. 21 Several times the Texas Supreme Court has addressed whether, and to what extent, a court may consider evidence in deciding a plea to the jurisdiction. In Bland Independent School District v. Blue, the Court made clear that because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence only as necessary to determine the jurisdictional issue. 22

As courts have discovered, though, it can be a fine line to determine when evidence is considered necessary for jurisdictional purposes and when it requires plaintiffs “to put on their case,” in contravention of the nature of a dilatory plea. 23 In Texas Department of Parks and Wildlife v. Miranda, the Court was faced with the issue of whether evidence should be considered in connection with a plea to the jurisdiction raising the state's immunity. The question arose in the interplay between the Texas Tort Claims Act, which, inter alia, provides a limited waiver of sovereign immunity in cases of premises defects, and the Recreational Use Statute, which limits the state's duty for premises defects to that which is owed a trespasser (i.e., willfulness, wantonness, or gross negligence). 24 Therefore, read together, the two statutes require a plaintiff to plead gross negligence to establish waiver of sovereign immunity and thus establish subject-matter jurisdiction.

In the case, both sides relied on deposition testimony in addition to the pleadings. 25 The Court held that because waiver of immunity, and the court's subject-matter jurisdiction, was dependent on the merits (establishing gross negligence), the trial court was required to examine the evidence to determine if a genuine issue of material fact existed regarding the alleged gross negligence of the state. 26 Although the plaintiffs alleged sufficient facts to survive a plea to the jurisdiction if based solely on the pleadings, the Court found that because the State rebutted with evidence the gross negligence pleading and the plaintiffs failed to bring forth evidence to raise a genuine issue of material fact on the issue, the record did not support the conclusion that the state was grossly negligent. Accordingly, the Court dismissed the case because the trial court lacked subject-matter jurisdiction over the suit. 27

In these two leading opinions on pleas to the jurisdiction, Miranda and Bland, the Court clarified this previously opaque procedural mechanism and the practical details of its operation. 28 As the Court explained, if a plea to the jurisdiction challenges the existence of jurisdictional facts, a fact-finder must consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. 29 It is within the trial court's discretion to decide whether the jurisdictional determination can be made at a preliminary hearing or should await a fuller development of the case, mindful that this determination must be made as soon as practicable. 30 If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue must be resolved by the fact-finder. However, if the relevant evidence

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 PLEAS TO THE JURISDICTION, 72 The Advoc. (Texas) 18 is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of law. The Court acknowledged that this procedure was analogous to the procedures for motions for summary judgment. Because a court must determine at the outset if it has jurisdiction to hear a dispute, it is reasonable to conclude that these procedures should be followed whether the jurisdictional issue is intertwined with the merits or not.

Prior to 2004, many courts of appeals had held, with one exception, that a defendant had to allege that the plaintiff's pleading was fraudulent in order for the trial court to consider evidence in determining its subject-matter jurisdiction. Miranda disapproved of ten appellate decisions that had so held. 31 The one exception, as explained in Bland, is that the plaintiff's allegation of the amount in controversy controls for jurisdictional purposes, unless the party challenging jurisdiction pleads and proves that the allegation is a sham. 32

Vehicles to Raise Challenges to a Court's Subject-Matter Jurisdiction

Savvy practitioners may note that the absence of subject-matter jurisdiction not only may be raised by a plea to the jurisdiction, but may be raised as well by other procedural vehicles, such as a motion for summary judgment. 33 The Court acknowledged in Miranda that the standard for a plea to the jurisdiction standard generally mirrors the standard applicable to a motion for summary judgment under Texas Rule of Civil Procedure 166a(c). 34 Despite the similarities *20 between the two procedural rules, the Court declined to funnel all jurisdictional matters to summary judgment motions. 35 Sovereign immunity may be raised by plea to the jurisdiction or summary judgment, or other appropriate procedural vehicles, so long as the substantive issue raised challenges the subject-matter jurisdiction of the Court. 36 In this way, the Court gave effect to the distinct rules of Texas civil procedure, without subsuming one into the other--even if, as the Court acknowledged, the purposes and effects of the two rules are similar.

Finally, although the cases discussed herein are all Texas cases, it is worth noting that the United States Supreme Court and all of the federal circuits have authorized federal district courts to consider evidence in deciding motions to dismiss for lack of subject-matter jurisdiction. 37

As evidenced above, it can be hard to tell when evidence is required to determine subject-matter jurisdiction. However, it is evident that the state's use of a plea to the jurisdiction can require the plaintiff to raise a fact issue on a merits question, if it underlies a jurisdictional issue, at an early stage of the litigation. Miranda and Bland guide how pleas to the jurisdiction play out in real time.

Footnotes a1 Dale Wainwright is the managing partner of the Austin office of Bracewell & Giuliani and practices in the firm's appellate group. He is a former justice of the Supreme Court of Texas and the author of the opinion in Texas Department of Parks and Wildlife v. Miranda. a2 Lindsay Hagans is an associate in the appellate group at Bracewell & Giuliani in Austin. She previously served as a law clerk for Chief Justice Nathan L. Hecht of the Supreme Court of Texas.

1 Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012).

2 See TEX. R. CIV. P. 85; Hosner v. DeYoung, 1 Tex. 764, 769 (1847); Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004).

3 See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000) (standing and jurisdictional amount); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 679 (Tex. App.--Austin 2004, no pet.) (mootness); Perry v. Del Rio, 66 S.W.3d 239, 244 (Tex. 2001) (ripeness).

4 ALEXANDER HAMILTON, THE FEDERALIST NO. 81, at 487 (Clinton Rossiter ed., 1961) (dismissing fears that adopting the new Constitution would abrogate states' sovereign immunity).

5 Id.

6 Hosner, 1 Tex. at 769.

7 Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997), superseded by statute on other grounds.

8 Jones, 8 S.W.3d at 638; Fed. Sign, 951 S.W.2d at 405; see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).

9 Gen. Servs. Comm'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001).

10 Id.

11 Fed. Sign, 951 S.W.2d at 405.

12 Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012).

13 Bland, 34 S.W.3d at 553-54.

14 Jones, 8 S.W.3d at 637.

15 Bland, 34 S.W.3d at 554; Miranda, 133 S.W.3d at 228.

16 Miranda, 133 S.W.3d at 226 (citing Austin & N.W.R. Co. v. Cluck, 77 S.W. 403, 405 (Tex. 1903) (“[T]here can be no doubt that the courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to proceed ....”)). Note that personal jurisdiction, while similar in some respects to subject-matter jurisdiction, is a different animal.

17 Tex. Natural Res. Conservation Comm'n v. TT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

18 Id.

19 See Miranda, 133 S.W.3d at 228.

20 See, e.g., Gentry v. Bowser, 21 S.W. 569, 570 (Tex. Civ. App.-- Fort Worth 1893, no writ) (“Certainly the court has the right to hear the necessary evidence to enable it to decide as to whether or not it has power to try the case it is sought to have it adjudicate, whether the allegations disclosing such want of jurisdiction appear in the petition of the plaintiff, or in the plea to the jurisdiction by the defendant.”).

21 See, e.g., Gates v. Pitts, 291 S.W. 948, 949 (Tex. Civ. App.-- Amarillo 1927, no writ); Gentry, 21 S.W. at 570.

22 34 S.W.3d 547, 555 (Tex. 2000).

23 Id. at 554.

24 133 S.W.3d 217, 225 (Tex. 2004).

25 Id. at 222.

26 Id. at 232.

27 Id. at 221. The requirement to consider evidence in a plea, while necessary to preclude courts from potentially making rulings in a case over which they have no jurisdiction, also raises the very interesting possibility that a case may be tried to a jury and have a final judgment that dismisses the case for lack of jurisdiction. This could happen, for example, in the facts in Miranda if the gross negligence evidence raised a fact issue to be decided by the jury.

28 Miranda has been cited by every intermediate appellate court in Texas, as well as 55 subsequent times by the Texas Supreme Court.

29 See Bland, 34 S.W.3d at 555 (confining the evidentiary review to evidence that is relevant to the jurisdictional issue).

30 Id. at 554.

31 Miranda, 133 S.W.3d at 224 n.4.

32 Bland, 34 S.W.3d at 554.

33 Id. at 553-54.

34 Miranda, 133 S.W.3d at 228.

35 Id. at 232.

36 See Harris County v. Sykes, 136 S.W.3d 635, 638-39 (Tex. 2004); Miranda, 133 S.W.3d at 225-26.

37 See FED. R. CIV. P. 12(b)(1); Miranda, 133 S.W.3d at 227 n.6 (cases cited therein).

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