Counterclaim challenging TEC's constitutionality survived Commission's nonsuit of enforcement action, Third Court of Appeals rules

Empower Texans, Inc. and Michael Quinn Sullivan v. Texas Ethics Commission, 

No. 03-16-00872-CV (Tex.App. - Austin, Aug. 3, 2018) (grant of plea to the jurisdiction on  counterclaim against Texas Ethics Commission following TEC's nonsuit in enforcement action reversed and remanded). 

We have held that the Commission's nonsuiting of its action against appellants did not moot or otherwise render non-justiciable appellants' counterclaim related to the constitutionality of the Commission's enforcement powers. We have further held that appellants' counterclaim does in essence challenge the constitutionality of sections 571.061 and 571.062 and thus is not barred by sovereign immunity. The trial court therefore erred in granting the Commission's plea to the jurisdiction as to that counterclaim. We reverse the trial court's dismissal of appellants' counterclaim as set out in paragraph 81 of its amended answer and counterclaim.[9] We remand that counterclaim for further proceedings before the trial court. The remaining, uncontested portions of the trial court's order of dismissal are affirmed.

Empower Texans, Inc. and Michael Quinn Sullivan, Appellants,
v.
Texas Ethics Commission, Appellee.

No. 03-16-00872-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: August 3, 2018.

N. Terry Adams, Jr., James E. "Trey" Trainor, III, Joseph M. Nixon, Nicholas D. Stepp, for Empower Texans, Inc. and Michael Quinn Sullivan, Appellants.

Amanda G. Taylor, Eric J.R. Nichols, for Texas Ethics Commission, Appellee.

Appeal from the District Court of Travis County, 345th Judicial District, No. D-1-GN-15-004455, Honorable Stephen Yelenosky, Judge Presiding.

Affirmed in Part; Reversed and Remanded in Part.

Before Justices Pemberton, Goodwin, and Bourland.

MEMORANDUM OPINION

CINDY OLSON BOURLAND, Justice.

This appeal, in which Empower Texans, Inc., and Michael Quinn Sullivan appeal from the trial court's order granting the plea to the jurisdiction filed by appellee the Texas Ethics Commission, presents a very narrow question: whether the trial court could exercise jurisdiction over the counterclaim filed by Empower Texans challenging the constitutionality of the Commission's exercise of its statutory authority.^[1] As explained below, the counterclaim properly invoked the jurisdiction of the trial court, and we therefore will reverse the trial court's order in part and remand the cause for further proceedings in light of this opinion.

Procedural and Factual Summary^[2]

The Commission was created by the legislature under Article III, Section 24a of the Texas Constitution and is governed by Chapter 571 of the Government Code. Tex. Gov't Code § 571.021 ("This chapter applies to the Texas Ethics Commission created under Article III, Section 24a, of the Texas Constitution."); see Tex. Const. art. III, § 24a ("Texas Ethics Commission"); Tex. Gov't Code §§ 571.001-.177 ("Texas Ethics Commission"). Its purpose is to regulate elections and prohibit undue influence while protecting the public's constitutional right to apply to the government for the redress of grievances. Tex. Gov't Code § 571.001. Chapter 571, which "shall be construed to achieve" its objectives, gives the Commission the power to receive and investigate complaints filed against a "person subject to a law administered and enforced by the commission" and, if the Commission deems it necessary, to initiate civil enforcement actions and assess sanctions. See id. §§ 571.001 ("Purpose"), .121-.142 (Subchapter D, "Complaint Procedures and Hearings"), .171-.177 (Subchapter F, "Enforcement").

In 2015, the Commission filed a petition seeking to enforce subpoenas it had issued to appellants. The Commission stated in its petition that it issued the subpoenas to obtain information it needed to evaluate the merits of two ethics complaints filed against appellants. Appellants filed an answer and asserted a counterclaim for declaratory relief as to whether the Commission is an executive-branch or legislative-branch agency and whether it is thus barred from exercising its statutory authority given by sections 571.061 and 571.062 of the Government Code by the separation-of-powers provision of the Texas Constitution. See Tex. Const. art. II, § 1. The Commission nonsuited its action against appellants and then filed a plea to the jurisdiction seeking to bar appellants' counterclaim. The trial court held a hearing and granted the plea.

Immunity & Justiciability

Although the State and its agencies are generally protected from suit by sovereign immunity, immunity does not bar a suit seeking equitable or declaratory relief to remedy a constitutional violation, see City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995), or to challenge the constitutionality of a statute, see Tex. Civ. Prac. & Rem. Code § 37.004 (person whose rights are affected by statute may challenge validity of statute under Uniform Declaratory Judgments Act ("UDJA"));^[3] Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d 69, 75-76 (Tex. 2015); Abbott v. G.G.E., 463 S.W.3d 633, 647-48 (Tex. App.-Austin 2015, pet. denied).^[4]

Justiciability is a separate jurisdictional requirement.^[5] See, e.g., Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (ripeness and standing emphasize "the need for a concrete injury for a justiciable claim to be presented"); Patterson v. Planned Parenthood of Hou. and Se. Tex., Inc., 971 S.W.2d 439, 442-43 (Tex. 1998) ("The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine."). A party seeking a declaration may not seek an advisory opinion and must show that the requested relief will resolve a live controversy between the parties. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); see G.G.E., 463 S.W.3d at 647. "The standing doctrine identifies suits appropriate for judicial resolution" and ensures that there is a real controversy "that will be determined by the judicial declaration sought." Patel, 469 S.W.3d at 77. Thus, the party "must both suffer some actual or threatened restriction under the statute and contend that the statute unconstitutionally restricts" its rights. Id. (cleaned up).

The party must show that its claim is ripe, meaning that "at the time a lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to occur, rather than being contingent or remote." Id. at 78 (cleaned up); see Patterson, 971 S.W.2d at 442 (ripeness examines when action may be brought and "asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote"). "By maintaining this focus, the ripeness doctrine serves to avoid premature adjudication." Patterson, 971 S.W.2d at 442. 

Finally, "a court cannot not decide a case that has become moot during the pendency of the litigation," meaning that "the court's action on the merits cannot affect the parties' rights or interests." Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). "A case becomes moot when there ceases to be a justiciable controversy between the parties or when the parties cease to have a legally cognizable interest in the outcome." State ex rel. Best v. Harper, ___ S.W.3d ___, No. 16-0647, 2018 WL 3207125, at *2 (Tex. June 29, 2018) (cleaned up); see Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

Discussion

Appellants contend that the trial court erred in dismissing their counterclaim challenging the constitutionality of certain statutes. The Commission, on the other hand, argues that because it dismissed the ethics claims filed against appellants and nonsuited its lawsuit, there was no longer any action threatened against them by the Commission. It argues that appellants therefore lacked standing to prosecute their counterclaim and that the claim for declaratory relief was rendered moot and unripe and no longer presents a justiciable controversy.^[6]

If events during the pendency of a case make it impossible for the court to grant the requested relief or otherwise affect the parties' rights or interests, a case becomes moot. Harper, 2018 WL 3207125, at *2. If a case becomes moot, the court loses jurisdiction because any decision rendered at that point would be an advisory opinion. Id.; Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). The supreme court has explained that "[a]lthough a plaintiff decides which of its claims to pursue or abandon, that decision does not control the fate of a non-moving party's independent claims for affirmative relief." Villafani v. Trejo,251 S.W.3d 466, 469 (Tex. 2008). A State agency's "cessation of challenged conduct does not, in itself, deprive a court of the power to hear or determine claims for prospective relief." Matthews, 484 S.W.3d at 418. "[D]ismissal may be appropriate when subsequent events make absolutely clear that the challenged conduct could not reasonably be expected to recur," but "[p]ersuading a court that the challenged conduct cannot reasonably be expected to recur is a heavy burden." Id. (cleaned up).

Although the supreme court held in Williams that the "capable of repetition, yet evading review" exception to the mootness doctrine applies only in rare circumstances, 52 S.W.3d at 184, we believe that the Matthews opinion controls in this case. As explained in Matthews, an opposing party's voluntary conduct may result in mootness even without that party's admission that the challenged conduct was illegal, but "those cases generally involved conduct that could not be easily undone, and thus foreclosed a reasonable chance of recurrence." 484 S.W.3d at 419.

The Commission dismissed the underlying ethics complaints and nonsuited its action against appellants, but it has never indicated that it would not act similarly in the event a new complaint was filed against appellants and asserts that it has the authority to do so. Although the Commission does not have current, concrete plans to take action against appellants under sections 571.061 and 571.062, in the event another sworn complaint is filed, the Commission has expressed its position that it would so act if necessary. The Commission states that it is responsible for administering and enforcing certain portions of the election code, that it must conduct reviews of all properly filed complaints, that complaints sometimes must proceed to a formal hearing, and that the Commission must be able to issue subpoenas to facilitate its investigations. As in Matthews, the Commission defends its statutory authority in the face of appellants' constitutional challenge to that authority. See id. at 419-20.

The Commission had the "heavy burden" of showing that its subsequent actions made it "absolutely clear" that the conduct challenged by appellants could not reasonably be expected to recur. Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.-Austin 2007, no pet.) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). However, its dismissal of the underlying ethics complaints and nonsuiting its lawsuit provides no assurance that the Commission will not take the same steps against appellants in the future. Under the circumstances presented here, including the Commission's arguments related to its statutory authority and duties, we hold that the Commission's nonsuit did not render moot appellants' counterclaim related to the Commission's authority under the government code. See Matthews, 484 S.W.3d at 419-20; Bexar Metro. Water Dist., 234 S.W.3d at 131.

As for standing and ripeness, those issues are generally determined at the beginning of the case, Patel, 469 S.W.3d at 78; Perry v. Del Rio, 66 S.W.3d 239, 249-50 (Tex. 2001), but a party may lose standing during the pendency of a case, see Williams, 52 S.W.3d at 184 (if case becomes moot, "parties lose standing to maintain their claims"), and a claim may become unripe due to intervening events, see Perry, 66 S.W.3d at 249 (appellate court should consider intervening events occurring after lower court's decision, just as with questions of mootness). 

For the same reasons we concluded that the controversy between the parties did not become moot, we hold both that appellants did not lose standing due to the Commission's nonsuit, see Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 12-13 (Tex. App.-Austin 2008, no pet.) (appellees had standing under "capable-of-repetition-yet-evading-review exception to the mootness doctrine"); American Nat'l Ins. Co. v. Cannon, 86 S.W.3d 801, 806 (Tex. App.-Beaumont 2002, no pet.)("Generally, a personal stake must exist at the beginning of litigation and continue throughout the lawsuit's existence," but "exception to the general rule may apply when a claim on the merits is capable of repetition, yet evades review."), and that the Commission's nonsuit did not render appellants' counterclaim unripe, see Patel, 469 S.W.3d at 78.

Nor does sovereign immunity bar appellants' counterclaim. The Commission contends that the "real substance" of the counterclaim did not challenge the constitutionality of a statute but instead asked the trial court "to interpret whether the Commission is a legislative or executive branch agency" and "whether the Commission is entitled to exercise the rights vested in it by the legislature" in sections 571.061 and 571.062 of the Government Code. Thus, it argues, that counterclaim is barred because the UDJA does not waive sovereign immunity for a claim seeking "statutory interpretation." See Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011).

Appellants' counterclaim, set out in paragraph 81 of its amended answer and counterclaim, reads as follows:

Defendants/Counter-Plaintiffs seek this court declare that the TEC is an executive branch agency as it relates to the statutory and rulemaking duties given by the Legislature in Tex. Gov't Code § 571.061 and § 571.062. In the alternative, Defendants/Counter-Plaintiffs seek this court declare that the TEC is a legislative branch agency and therefore prohibited by Articles I and II of the Texas Constitution from exercising any statutory authority as set out in Tex. Gov't Code § 571.061 and § 571.062. If the court finds that the TEC is a legislative agency, the Defendants/Counter-Plaintiffs also request the court declare that all fees and fines assessed and collected by the TEC were done without authority, and that final decisions by the TEC are void and without authority and effect and that the TEC must cease and desist all enforcement activities.

Appellants do not assert that the Commission or any individuals associated with the Commission had acted in violation of or excess of their statutory authority. Instead, they contest the propriety of the Commission's statutory authority in and of itself. Appellants argue that the Commission is a legislative agency and thus that Article II of the Texas Constitution, which divides the State's power into three distinct departments and bars one of those departments from exercising a power properly attached to one of the others, see Tex. Const. art. II, § 1, prohibits the Commission from acting under sections 571.061 and 571.062 of the Government Code, which tasks the Commission with administering and enforcing the election code and other statutes.^[7] 

Reading the pleadings liberally in favor of jurisdiction, as we must, Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018); Lakey, 278 S.W.3d at 11, appellants' counterclaim contends that the Commission is a legislative agency and, thus, that the legislature's granting it executive enforcement powers is in violation of the constitution's separation-of-powers provision.^[8] Appellants' counterclaim, read liberally, must be viewed as challenging the constitutionality of the statutes granting the Commission its enforcement powers. See Patel, 469 S.W.3d at 75-76; Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 633-34 (Tex. 2010); see also Bouillion, 896 S.W.2d at 149 ("suits for equitable remedies for violation of constitutional rights are not prohibited").

Conclusion

We have held that the Commission's nonsuiting of its action against appellants did not moot or otherwise render non-justiciable appellants' counterclaim related to the constitutionality of the Commission's enforcement powers. We have further held that appellants' counterclaim does in essence challenge the constitutionality of sections 571.061 and 571.062 and thus is not barred by sovereign immunity. The trial court therefore erred in granting the Commission's plea to the jurisdiction as to that counterclaim. We reverse the trial court's dismissal of appellants' counterclaim as set out in paragraph 81 of its amended answer and counterclaim.^[9] We remand that counterclaim for further proceedings before the trial court. The remaining, uncontested portions of the trial court's order of dismissal are affirmed.

[1] Appellants also counterclaimed for injunctive relief, attorney's fees, and other declarations, and the Commission sought dismissal of all but two of appellants' counterclaims. Thus, two requests for declaratory relief remain pending in the trial court. On appeal, appellants only complain of the trial court's dismissal of their counterclaim related to the constitutionality of the Commission's exercise of its enforcement powers, and we thus limit our consideration to whether the trial court could have exercised jurisdiction over that particular counterclaim.

[2] Because the underlying facts are well known to the parties, we will summarize the facts only as far as is necessary to explain our reasoning. We take the factual summary from the pleadings and other filings in the clerk's record.

[3] See generally Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 ("Uniform Declaratory Judgments Act").

[4] See also Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 622 & n.3 (Tex. 2011) (noting that UDJA waives sovereign immunity from suit challenging validity of statute); Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634 (Tex. 2010) ("the DJA permits statutory challenges").

[5] Standing, ripeness, and mootness are aspects of the justiciability inquiry, which goes to whether a court has subject-matter jurisdiction over a case. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010); City of Austin v. Savetownlake.Org, No. 03-07-00410-CV, 2008 WL 3877683, at *6 (Tex. App.-Austin Aug. 22, 2008, no pet.) (mem. op.) ("ripeness and mootness are threshold issues that implicate subject matter jurisdiction," and both consider issue of timing).

[6] It is well settled that we review a trial court's ruling on a plea to the jurisdiction de novo, construing the pleadings liberally in favor of jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

[7] See Tex. Gov't Code §§ 571.061 ("Laws Administered and Enforced by Commission") (Commission shall administer and enforce Chapters 302, 303, 305, 572, and 2004 of Government Code; Sections 2152.064 and 2155.003 of Government Code; Chapter 159, Subchapter C, of Local Government Code; and Title 15 of Election Code), .062 ("Rules") (Commission may adopt rules to administer laws "administered and enforced by" Commission).

[8] We note that in their answer to the Commission's plea to the jurisdiction, appellants made their constitutionality argument with more clarity:

4. The TEC seeks to avoid obvious liability with regard to the Tex. Civ. Prac. & Rem. Code § 105 counterclaim by asserting it is a "Legislative Agency". Such an assertion is in direct contravention to Article I and Article II of the Texas Constitution which established a republican form of state government with separate and district branches of government. To assert that the Legislative Branch has an agency with executive power, see Tex. Gov't Code § 571.061, but is not an "Executive Branch Agency", is a disavowal of Article II and the separation of powers. The Legislature cannot, as a matter of fundamental constitutional law, create an agency under its authority which has the power to make rules, enforce laws, issues orders and collect fines. Yet, the TEC does all that, now with assertion it is not responsible to any other branch of government, especially the judicial.

5. If the court finds the TEC is a legislative, and not executive agency as to the grant of authority to administer and enforce laws pursuant to Tex. Gov't Code § 571.061, the court must also find that Tex. Gov't Code § 571.061, is [a] violation of Article II of the Texas Constitution and the required separation of powers.

[9] In our review of the trial court's decision on the Commission's plea, we make no comment as to the merits of appellants' counterclaim. See Davis v. Burnam, 137 S.W.3d 325, 331 (Tex. App.-Austin 2004, no pet.).

On Justice Boyd's Dissent in State of Texas v. Harper (Tex. June 29, 2018) (regarding issue of sovereign immunity to attorney fee claim under the TCPA)

Note: A motion for rehearing is pending in State ex rel. Best v. Harper, ___ S.W.3d ___, 

No. 16-0647, 2018 WL 3207125 (Tex. June 29, 2018) 

I am starting to like Justice Jeff Boyd, not because I necessarily agree with him, but because it is refreshing to see that he is willing to go out on a limb when he finds it necessary to part ways with his fellow Republicans on the Texas High Court and expose flaws in the reasoning marshaled to justify the disposition. - Even if it makes him unpopular and the target of verbal darts by this peers.

In State v. Harper, Boyd accuses the Court, of which he is not the most senior member, of having messed with its own prior sovereign immunity jurisprudence, and having carved out an unprincipled exception to favor a particular individual against the State, - a very unusual occurrence. 

But the particular individual is one a majority of the Court had sympathy for. The majority's opinion itself is pretty clear on that point. So, not much guesswork needed to understand what motivated the majority to pursue the strained outcome. 

Boyd uses a strong words for what the Court has done: served up results-oriented jurisprudence. 

Critics of the Texas Supreme Court might observe that this has been going on for years, if not decades. Still, it's refreshing to see one of the more recent appointees to the supreme elective body articulate it in no uncertain terms. If an appellate practitioner dared to do this, he or she may face discipline for impugning the integrity of the august tribunal. So Justice Boyd is doing the appellate bar a great service, writing in dissent from the losing side in this case.

Body Dissent in State of Texas v. Harper 

BOYD DISSENT IN STATE V. HARPER 

IN THE SUPREME COURT OF TEXAS

══════════

No. 16-0647

══════════

THE STATE OF TEXAS EX REL.

GEORGE DARRELL BEST, PETITIONER,

v.

PAUL REED HARPER, RESPONDENT

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS

══════════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE JOHNSON and JUSTICE LEHRMANN, dissenting.

The Court thinks this suit to remove Paul Harper from office is a mere "pretext" and "transparent retaliation against Harper's quixotic political beliefs." Ante at ___. And because the state should not have pursued the suit, it should have to reimburse Harper's attorney's fees and court costs and, perhaps, pay additional sanctions. Ante at ___. Maybe it should. Maybe that's a good result for Harper. But "the common good is best served by faithful adherence to the rule of law, and not by individual judges seeking good in individual cases." Hon. Thomas M. Reavley & Ryan S. Killian, Against the Rule of Judges, 68 BAYLOR L. REV. 661, 669 (2016) (emphasis added). 

To reach its good result in this case, the Court ignores the governing statute's language and undermines our well-established sovereign-immunity precedent. Applying the statute's language and our carefully constructed immunity doctrine, I would hold that the Texas Citizens Participation Act does not apply to this enforcement action; and even if it did apply, sovereign immunity bars Harper's counterclaim for fees, costs, and sanctions.^[1] I respectfully dissent.

I.

Enforcement Action

The Texas Citizens Participation Act (TCPA) "does not apply" to "an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney." TEX. CIV. PRAC. & REM. CODE § 27.010(a). Here, a county attorney, acting for the state, sought to remove Harper from his elected position on a hospital district's board under Chapter 87 of the Local Government Code. See TEX. LOC. GOV'T CODE § 87.013(a)(1), (2). The first issue is whether this Chapter 87 removal action is an "enforcement action." If it is, Harper cannot recover his costs, fees, or sanctions under the TCPA because the TCPA "does not apply."

The TCPA does not define "enforcement action." Considering its common, ordinary meaning and its statutory context, the Court construes the term to mean a legal action that attempts "to enforce a substantive legal prohibition against unlawful conduct." Anteat ___. Although I cannot fully join the Court's reasoning,^[2] I agree that its definition adequately captures the term's common, ordinary meaning.^[3] But I do not agree with the Court's application of that definition.

The Court agrees that this Chapter 87 removal action is an enforcement action to the extent it seeks removal based on Harper's alleged "official misconduct," because his alleged misconduct arises from "unlawful" actions in violation of the Texas Open Meetings Act.^[4] Ante at ___. But the Court holds that this is not an enforcement action to the extent it seeks removal based on Harper's alleged "incompetency" because incompetency "is not against the law." Ante at ___. According to the Court, Harper could seek dismissal and recover attorney's fees, costs, and sanctions under the TCPA to the extent the state sought removal based on incompetency allegations, but not to the extent the state relied on misconduct allegations. Ante at ___. By inventing this dichotomy, the Court finds a way to allow Harper to recover at least some costs and fees under the TCPA.^[5] But it does so only by ignoring Chapter 87's governing provisions, which—for both incompetency and misconduct—permit removal only to enforce an officer's statutorily imposed "official duties."

Chapter 87 describes three grounds for removal: "incompetency," "official misconduct," and "intoxication on or off duty caused by drinking an alcoholic beverage." TEX. LOC. GOV'T CODE § 87.013(a). As the Court notes, the statute defines official misconduct to mean "intentional, unlawful behavior," but the remainder of that definition explains that the behavior must relate "to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law." Id. § 87.011(3) (emphases added). In the very same way, the statute defines incompetency as "gross ignorance of official duties;" "gross carelessness in the discharge of those duties;" or "unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer's election." Id.§ 87.011(2) (emphases added).

The Court simply ignores this statutory language and suggests that Chapter 87's incompetency ground permits removal merely for "behavior undesirable in a public official." Ante at ___. But according to the statute's language, the behavior that justifies removal—whether based on incompetency or misconduct—must involve the officer's failure to fulfill the office's "official duties."^[6] "A finding of guilt, or the sustaining of the allegation or cause of any one of such charges, by a verdict of the jury, would authorize and justify the judgment for removal." Huntress v. State, 88 S.W.2d 636, 648 (Tex. Civ. App.-San Antonio 1935, no writ) (emphasis added).

A county officer's "official duties" are substantive duties imposed by statutory law. A failure to fulfil those duties runs afoul of that law. The Texas Constitution provides that county officers' duties shall be "prescribed" or "regulated" by the legislature. TEX. CONST. art. V §§ 20, 21, 23. Pursuant to that authority, the legislature has provided that a county hospital district has a statutory duty to "provide adequate hospital services for the district," and its board has a statutory duty to "manage, control, and administer the district" to fulfill that purpose. TEX. HEALTH & SAFETY CODE §§ 282.050, .041(a). Before taking office, a board member must take an oath "to faithfully and impartially discharge the duties of a board member." Id. § 282.022(a)(1).

When the state pursues a Chapter 87 suit to remove a board member from office, it seeks to compel compliance with the officer's "official duties," regardless of whether it alleges incompetency or misconduct. TEX. LOC. GOV'T CODE § 87.011(2), (3). Under either ground for removal, the suit is an enforcement action under the common, ordinary meaning of that phrase. See, e.g., State v. Ennis, 195 S.W.2d 151, 152 (Tex. Civ. App.-San Antonio 1946, writ ref'd n.r.e.) (explaining that the "right sought to be enforced" under Chapter 87 is "a public right as distinguished from a private right") (emphasis added). Contrary to the Court's assertion, this suit to remove Harper from the district's board—whether based on incompetency or misconduct— seeks to compel compliance with that position's official duties. It is thus an enforcement action under the term's common, ordinary meaning, and the TCPA "does not apply." TEX. CIV. PRAC. & REM. CODE § 27.010(a).

II.

Sovereign Immunity

After holding that an incompetency-based removal action under Chapter 87 is not an enforcement action and thus the TCPA applies, the Court then holds that immunity from suit does not protect the state from Harper's TCPA counterclaim for attorney's fees, costs, and sanctions.^[7] This holding represents a radical departure from our immunity jurisprudence. Although this Court certainly has authority to alter sovereign immunity's contours, the Court alters them here—and drastically so—simply because the Court believes the state should have to pay Harper's costs, fees, and sanctions. Upholding our well-reasoned and well-established immunity jurisprudence, I would hold that sovereign immunity from suit bars Harper's counterclaim because the state does not seek any kind of monetary damages or recovery against which his claim could provide an offset.

As the Court explains, immunity from suit is jurisdictional and, absent waiver, prevents courts from exercising jurisdiction over a claim against the state. Ante at ___. We defer to the legislature to waive the state's immunity, and any such waiver is effective only when it is clear and unambiguous. Ante at ___. The Court correctly concludes that neither the TCPA nor Chapter 87 clearly and unambiguously waives the state's immunity. Ante at ___. Yet the Court decides to "abrogate" immunity against Harper's counterclaim for attorney's fees, costs, and sanctions under the TCPA. Ante at ___.

The Court begins its discussion of this issue with the general assertion that "immunity does not apply in certain situations in which the state `join[s] into the litigation process.'" Ante at ___ (quoting Reata Const. Corp. v. City of Dallas, 197 S.W.3d 18 371, 376 (Tex. 2006), and citing Kinnear v. Tex. Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam)). It then acknowledges our more specific (and more recent) explanations that, under Reata, "`a governmental entity does not have immunity from suit for monetary claims against it that are "germane to, connected with, and properly defensive to" affirmative claims by the entity,' to the extent that the claims against the entity offset the entity's own claims." Ante at ___ (emphases added) (quoting City of Dallas v. Albert, 354 S.W.3d 368, 372 (Tex. 2011), and citing Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 532-33 (Tex. 2012) (per curiam)). 

The Court agrees that the Reata rule does not apply here, however, because the state has not asserted any monetary claims against which Harper's counterclaims could provide an offset. Ante at ___.

But the Court then asserts that Reata "does not purport to map the full boundary separating counterclaims that sovereign immunity bars from those it does not," and our per curiam decisions in Kinnear and Manbeck reflect that "sovereign immunity sometimes does and sometimes does not protect the state from counterclaims for attorney's fees." Ante at ___, ___. Purporting to address an issue of "first impression," the Court announces a narrow holding that immunity from suit does not reach a counterclaim for attorney's fees under the TCPA. Ante at ___. In support of this holding, the Court claims to be promoting the TCPA's purpose to protect the constitutional rights of those who participate in government and require those who fail to prove a prima facie case to pay litigation costs. Ante at ___. And because the state "risks paying only attorney's fees," the Court believes its TCPA-specific rule abrogating immunity "does not present any grave danger to the public fisc." Ante at ___.

The Court reveals its true motivation, however, by expressing its own view that the state "should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them." Ante at ___. While the Court certainly has the power to "abrogate" sovereign immunity however it wants, its decision in this case undermines the distinction we have recognized between the scopeof immunity and a waiver of immunity. The Court's result-oriented decision to abrogate immunity in this case confuses our immunity jurisprudence, ignores the principles on which immunity is based, and eschews the deference we have consistently given to the legislature to decide whether and when to waive immunity.

This Court has carefully crafted the immunity doctrine, especially over the past few decades. Long ago, the Court stated quite broadly, and without any real analysis, that when "a state voluntarily files a suit and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to plead and prove all matters properly defensive. This includes the right to make any defense by answer or cross-complaint germane to the matter in controversy." Anderson, Clayton & Co. v. Allred, 62 S.W.2d 107, 110 (Tex. 1933). More recently, in Kinnear (a four-paragraph, per curiam opinion), the Court stated in dicta^[8] that because the Texas Commission on Human Rights "initiated this proceeding under the Texas Fair Housing Act, and Kinnear claimed attorney fees as a consequence of that suit, the jurisdictional question in this case"—that is, whether immunity from suit applied or was waived—"was answered when the Commission filed suit, regardless of whether the Commission can ultimately be liable for fees." 14 S.W.3d at 300.

After Kinnear, however, the Court held in Reata that the state "does not have immunity from suit as to [counterclaims] which are germane to, connected with, and properly defensive to the [government's] claims, to the extent [the counterclaims] offset those asserted by the [government]." Reata, 197 S.W.3d at 373. We explained that, although "there may have been some question after Anderson regarding whether sovereign immunity continues to exist when an affirmative claim for relief is filed by a governmental entity, subsequent cases indicate that under such circumstances immunity from suit no longer completely exists for the governmental entity." Id. at 376 (emphasis added). And we cited Kinnear for the proposition that "the trial court had jurisdiction over claims against the State in a case where the State had filed suit." Id. (citing Kinnear, 14 S.W.3d at 300). We held in Reata that when the state chooses to involve itself in litigation, immunity from suit does not apply to its opponent's counterclaims if (1) the government is seeking to recover "monetary relief," (2) the counterclaims are "germane to, connected with, and properly defensive to" the government's claims, and (3) any recovery on the counterclaims serves only to "offset" the monetary relief the government may recover. Id.at 376-77. Once the government "asserts affirmative claims for monetary recovery," we explained, the government "must participate in the litigation process as an ordinary litigant, save for the limitation that the [government] continues to have immunity from affirmative damage claims against it for monetary relief exceeding amounts necessary to offset the [government's] claims." Id. at 377 (emphases added).

As this Court and the courts of appeals have confirmed, Reata "clarified and modified" sovereign immunity law and "limited" Kinnear and Anderson by carefully defining the scope of immunity when the government chooses to file suit. See Albert, 354 S.W.3d at 373; Emps. Ret. Sys. v. Putnam, LLC, 294 S.W.3d 309, 324-25 (Tex. App.-Austin 2009, no pet.) ("[T]he Texas Supreme Court limited Kinnear by issuing Reata."); see also Nazari v. State, ___ S.W.3d ___, ___ (Tex. June 22, 2018) (explaining that we "expounded" on Anderson "and other cases like it" in Reata). Contrary to the Court's assertion that Reata "does not hold that a monetary claim is a necessary condition for abrogation in every instance," ante at ___, we have remanded a number of cases for reconsideration in light of Reata, explaining that under Reata, the government "retainsimmunity from suit as to [counterclaims] for monetary damages . . . to the extent [the counterclaimant seeks damages that] exceed amounts offsetting the [government's] monetary recovery, absent legislative waiver of that immunity." City of Irving v. Inform Const., Inc., 201 S.W.3d 693, 694 (Tex. 2006) (per curiam).^[9] And in a separate case decided last week, the Court holds that Reata's first requirement—that the government sue for "monetary relief"—actually requires that the government sue for monetary damages, not just any monetary relief, so "sovereign immunity protects the State from counterclaims that seek to offset a penalty." Nazari, ___ S.W.3d at ___.

But here, the Court carves out an exception applicable only to counterclaims for costs, attorney's fees, and sanctions under the TCPA. The fact that Harper seeks only that relief, however, does not justify the Court's holding, at least not according to our post-Reata decisions. See Manbeck 381 S.W.2d at 532-33 (holding that, under Reata,immunity from suit barred counterclaim for attorney's fees because the governmental entity did not assert a claim for "money damages"); Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011) (holding that, under Reata, immunity from suit applies even to a counterclaim for attorney's fees unless the fees can serve as an offset against the government's monetary recovery). Consistent with these decisions and Reata, immunity from suit bars Harper's counterclaims because the state has not sought any kind of monetary relief against which Harper's recovery could provide an offset.

The Court, however, concludes that the legislature's purpose in enacting the TCPA justifies the Court's decision to abrogate the state's immunity from suit against TCPA counterclaims. Ante at ___. Unlike the Court's misplaced reliance on the TCPA's purpose to construe the statutory term "enforcement action," see supra n.2, the Court relies on that purpose here to shift the responsibility for its own policy decision. The Court cannot claim to be promoting the legislature's purpose when—as the Court itself agrees—the legislature did not waive the state's immunity from suit in the TCPA. See ante at ___. Nor does anything about the TCPA suggest that the legislature wanted the Court to treat the TCPA differently than any other statute that allows for an award of attorney's fees. To the contrary, the legislature has made clear its view (and we have consistently and repeatedly agreed) that we cannot find that a statute waives immunity unless it does so by "clear and unambiguous" language. TEX. GOV'T CODE § 311.034. Because the legislature has not clearly and unambiguously waived immunity in the TCPA, the Court cannot genuinely claim to be promoting the legislature's purpose by judicially abrogating immunity the legislature has not waived. See supra n.3. Because the legislature has not waived immunity in the TCPA, the Court's implementation of its own purposes contradicts the legislature's purpose by waiving the state's immunity when the legislature has chosen not to waive it.

To be sure, the Court has authority to abrogate sovereign immunity in whole or in part, but its holding today represents a sea change from our current immunity jurisprudence. I cannot join the Court's cavalier approach to such a well-established and important doctrine.

III.

Conclusion

I am sympathetic to the Court's desire to allow Paul Harper to recover the fees and costs he incurred defending this removal action, but sympathy cannot determine the outcome of this case. The question we must decide is whether Harper can recover those losses under the TCPA. Because this Chapter 87 removal action is an "enforcement action" regardless of the grounds asserted, the TCPA "does not apply." 

And even if it did apply, the state's immunity from suit bars Harper's counterclaim for court costs, attorney's fees, and sanctions because the state neither sought nor obtained any monetary recovery that an award to Harper could offset. Because Harper's counterclaim presents the only issue that is not now moot in this case, I would reverse the court of appeals' judgment remanding the case for an award of costs, fees, and sanctions and render judgment dismissing this case. Because the Court holds otherwise, I respectfully dissent.

_____________________
Jeffrey S. Boyd
Justice
Opinion delivered: June 29, 2018

BELOW: MAJORITY OPINION IN BY JUSTICE  BROWN 

THE STATE OF TEXAS EX REL. GEORGE DARRELL BEST, Petitioner,
v.
PAUL REED HARPER, Respondent.

No. 16-0647.

Supreme Court of Texas.

Argued November 8, 2017. Opinion delivered: June 29, 2018.

Joseph R. Larsen, for Freedom of Information Foundation of Texas, Amicus Curiae.

Andrew W. Lucas, C. Alfred Mackenzie, for State of Texas, Petitioner.

Cleve Doty, Nichole Beth Bunker-Henderson, Brantley D. Starr, Scott A. Keller, Atty. Gen. W. Kenneth Paxton, Jr., James E. Davis, Jeffrey C. Mateer, Angela V. Colmenero, for Texas Attorney General's Office, Other Interested party.

Mary H. Barkley, Christopher A. Brown, for Paul Reed Harper, Respondent.

On Petition for Review from the Court of Appeals for the Tenth District of Texas.

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE DEVINE joined.

JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON and JUSTICE LEHRMANN joined.

JUSTICE BLACKLOCK did not participate in the decision.

JEFFREY V. BROWN, Justice.

The Texas Citizens Participation Act (the TCPA) allows a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action does not establish prima facie support. We conclude that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. However, the TCPA does not apply when a government attorney brings an enforcement action in the state's name. We further conclude that only one of the several allegations against the county official constitutes an enforcement action. Finally, as to the allegations that are not enforcement actions, we conclude that the state's sovereign immunity does not protect it from the county official's claim for appellate costs. We affirm the court of appeals' judgment, with a modification.

I

Background

When Paul Harper ran for a position on the Somervell County Hospital District Board, he campaigned on pledges to eliminate the tax that supports the district and to replace the district's administrative employees. He won the election, joined the board, and allegedly tried to make good on his promises. In response, a county resident named George Best sought to remove Harper from the board by filing this suit under the removal statute. SeeTEX. LOC. GOV'T CODE §§ 87.001-.043. Specifically, Best alleged that Harper violated the district's bylaws at a board meeting by moving to set the district's tax rate at zero—even though Harper knew that eliminating the tax revenue would bankrupt or otherwise harm the district. Best also alleged that Harper posted a blog that falsely accused the district's administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency under the removal statute. See id. § 87.013(a)(1).

More Tort Immunity from Texas High Court: K-9 (Canine) Immunity: Army-base kennel design as a separation-of-powers issue invoked to let military contractor off the hook in case stemming from attack by IED-sniffing dog on civilian employee

TEXAS SUPREME COURT LETS ARMY  CONTRACTOR

SNUFF OUT DOG BITE CASE BY JURISDICTIONALZING IT  

Also see recent blog post on -->  Texas High Court's grant of industry-wide tort immunity to lawyers and law firms in Youngkin v. Hines (Tex. 2018). 

In a “discriminating analysis” that might suitably be characterized as cognitively bewildering, if not impaired, a majority of SCOTX holds that a friendly bite from a four-footed private soldier in a war zone presents a political question, that a tort claim brought by the bitten against the defense contractor that provided and handled the bomb-sniffing canine is therefore nonjusticiable, and that the claim is properly dispatched with a plea to the court's (lack of) jurisdiction. Invocation of immunity mantra will do as a matter of law. Further facts on why the dog charged is not required. After all, the High Court has already decided that the plaintiff must lose.  

KENNEL DESIGN AS A POLITICAL QUESTION

Hecht-led majority of SCOTX lets military contractor shed potential tort liability for attack by explosive-sniffing dog on civilian worker, holding that Army’s kennel design was implicated by contractor’s invocation of the proportionate liability statute and posed a nonjusticiable political question that cannot be reviewed by a court. American K-9 Detection Services, LLC and Hill Country Dog Center, LLC v. LaTasha Freeman, No. 15-0932 (Tex. June 29, 2018) (dog bite claim inextricably involved reexamination of military decisions that are beyond the court to conduct; judgment of the court of appeals reversed; tort claims dismissed at pretrial stage, including those against second defendant who had not joined plea to the jurisdiction or filed its own). 

The Army has it's own dogs - not at issue in this case 

  

EXPLOSIVE SNIFFING DOG BITE IMMUNITY DECISION DRAWS HOWLS 

Two justices--Guzman and Devine--sharply dissented. 

Devine Dissent in American K-9 v. Freeman (link to pdf) 

  

In his dissent, Justice Devine argues--rather compellingly, I might add--that, as a matter of pretrial procedure and applicable standards, the case should not be resolved in the current posture because fact issues precluded the grant of the contractor's plea to the jurisdiction, and that the question of whether the political-question doctrine applies is premature on the insufficiently-developed record. 

Devine's dissent points out that the Court's holding allows the contractor to get the case dismissed as a matter of law based on a disputed fact-question, and that this is incompatible with how jurisdictional pleas are to be resolved under established SCOTX precedents. Beyond the procedural posture issue--also addressed by fellow-dissenter Guzman in her own separate opinion--Devine questions the majority's reliance on federal cases, pointing out that the U.S. Supreme Court has not blessed the political-question doctrine in proportionate-responsibility systems as applied by the majority here. 

AMK9’s plea is based on its allegation that the Army at least partly caused Freeman’s injuries; but Freeman alleges that AMK9, not the Army, proximately caused her injuries. 

This is a classic fact-question.

So long as this fact question remains, we cannot grant AMK9’s plea. Yet the Court flips the standard of review on its head by viewing the evidence in the light most favorable to AMK9, the movant. 

The Court does this through heavy reliance on the pronouncements—some of which are dicta—of several federal courts. 

I am unconvinced by their reasoning. The U.S. Supreme Court has not endorsed their views on the political-question doctrine in proportionate-responsibility systems, and we are not otherwise bound by their holdings. I would instead hold that when a political question doctrine claim depends on a causal finding, we cannot dismiss the suit while causation is disputed. 

Because the Court’s dismissal contravenes well-established plea-to-the-jurisdiction jurisprudence, and because no other ground AMK9 or Hill Country Dog Center, LLC asserts can sustain the plea, I dissent. 

***

The Court dismisses this entire suit on the mere allegation that the Army might have at least partly caused Freeman’s injuries. Because that causal fact-question is disputed, and because nothing about our proportionate-responsibility system mutates such a causal finding into a political question, we should not yet hold that a political question is “inextricable from the case.” Baker, 369 U.S. at 217. Until a political question is so intertwined, I cannot join the Court’s judgment. 

III. Conclusion 

Freeman alleges that AMK9’s supervision and training of its dog was the cause-in-fact of her injuries. AMK9 alleges that the Army was partly to blame. Although the Court does not know whether either allegation is true, it nonetheless dismisses Freeman’s claim against AMK9 because the Army might have contributed to causing her injuries. 

Even assuming that the Court otherwise 15 correctly applies the political-question doctrine to such partial-cause scenarios, I simply cannot understand how the mere allegation that the Army might have partly caused Freeman’s injuries is sufficient to defeat her claim—a claim that does not even raise that issue. The Court ignores these deficiencies to sustain AMK9’s jurisdictional plea notwithstanding the existence of unresolved factual questions necessary to the doctrine’s application. 

Thus, I respectfully dissent.
                                                              ______________________________
                                                              John P. Devine Justice

American K-9 Detection Services, LLC v. Freeman, No. 15-0932 (Tex. June 29, 2018) 

Guzman Dissent in American K-9 v. Freeman (link to pdf)

Justice Eva Guzman joined Devine's dissent, but found the majority's resolution of the appeal egregious enough to write her own separate dissenting opinion, calling the majority's conclusion that a political question existed based on nothing more than the contractor’s allegations "misguided". Guzman chides the majority for abdicating the judiciary's role to resolve disputes and unnecessarily and improperly tilting the scales to the advantage of tortfeasors, allowing wrongdoers to evade responsibility, and accomplish that by merely pointing fingers at others in their defensive pleadings.

Over the past two decades, the military’s use of private contractors to support its overseas missions has skyrocketed.1 “At times, the number of contract employees has exceeded the number of military personnel alongside whom they work in these warzones.”2 In a decision carrying serious ramifications for those injured by private contractors in combat zones, the Court holds that contractors can escape liability for their actions merely by pointing the finger at the military. 

The Court’s analysis turns on a dangerous misapplication of the political question doctrine and runs counter to our plea-to-the-jurisdiction jurisprudence. I therefore join JUSTICE DEVINE’s dissenting opinion and write separately to expound on these substantive and procedural shortcomings. 

“[T]he Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid.”3 The political question doctrine is a “narrow exception” to that charge,4 applying only when a political question “is inextricable from the case at bar.”5 But with virtually no United States Supreme Court guidance on the topic, courts have been inconsistent in determining how entwined a political question must be for it to be “inextricable” from a case. Multiple approaches have been employed, and this case presents a prime example of the lingering uncertainty. The Court views the Army as a responsible third party on AMK9’s mere say so and dismisses the case without any evidence of that fact, concluding that simply designating the Army as a potentially responsible party means the merits of the case could never be determined without evaluating the military’s battlefield decisions. I believe courts must first determine whether a fact issue exists that could obviate any need to assess the military’s decisions—here, whether the Army actually caused an injury. Other Courts have taken different analytical paths, such as declining to focus the inextricability determination on the defensive theories that have been asserted—as the Court does here—because that “‘give[s] defendants too much power to define the issues.’”6 Though the existing political-question jurisprudence is fairly well-developed, it is decidedly uneven regarding inextricability, and the Supreme Court has not weighed in to settle the matter. 

***

Though a court must be careful not to exercise jurisdiction it lacks, it must be equally careful not to decline to exercise jurisdiction it has.11 The Court strikes the wrong balance here. The bright-line rule the Court adopts (1) favors tortfeasors over injured parties, (2) ignores the Supreme Court’s holding that only inextricable political questions render a matter nonjusticiable, and (3) is repugnant to our plea-to-the-jurisdiction precedent. Applying the appropriate legal standard and following proper procedures may ultimately lead to dismissal of LaTasha Freeman’s lawsuit. But if the military had no part in causing Freeman’s injury, the political question doctrine does not bar a merits-based disposition. 

Declining to dismiss a suit unless a political question meets the inextricability standard preserves access to the courts and fulfills the judiciary’s obligation to resolve disputes. But, here, the Court gives short shrift to this crucial precept, summarily concluding a merits-based disposition is beyond judicial ken.10 Rather than ensuring the inextricable presence of a political question, the Court holds dismissal is required if a contractor asserts—without evidence—that the military might be a causal contributor. The Court abjures its responsibility to decide justiciable cases by embracing a legal standard that terminates litigation before any determination has been made that a political question is actually in play. 

*** 

This case was decided on a plea to the jurisdiction, and under our well-settled procedures, naked allegations are not enough to sustain a jurisdictional plea. As we have explained time and again, when the jurisdictional inquiry and merits intertwine, as they do on the causation issue here, dismissal is improper absent proof that jurisdiction is lacking. Because such a plea invokes a summary-judgment type proceeding, any fact disputes must be resolved by the factfinder.13 The trial court does not, as the Court implies, have discretion to ignore the evidence and “dismiss the case early on.”14 Courts have discretion regarding when, not whether, the evidence should be considered.15  

 *** 

The Court’s analysis is conspicuously bereft of a compelling justification to jettison established precedent in favor of a special rule for political-question cases. And this is not the only defect in the Court’s analysis. A more disconcerting error lies in the evidentiary void the Court downplays. Because discovery was prematurely halted, the facts of this case have not been developed. The Court’s disposition is contrary to the approach taken by federal appellate courts, which look to the evidence, not the allegations, to determine whether a political question is genuinely in play. In case after case, federal courts have remanded for additional discovery and other proceedings necessary to determine whether a political question is actually—rather than potentially—inextricable from the case.21

 *** 

The Supreme Court’s most recent political-question guidance serves as a reminder that courts must not shirk their “responsibility to decide cases properly before [them].”27 In Zivotofsky v. Clinton, the Court refused to find a political question precluded the third branch from passing on the constitutionality of certain parts of the Foreign Relations Act.28 In so holding, the Court emphasized the judicial branch’s duty to decide cases, observing that judges “appropriately exercise[]” the authority to determine the constitutionality of statutes on a regular basis.29 “This is what courts do.”30 As a concurring opinion in Zivotofsky put it, courts may not “decline to resolve a controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches.”31 After all, deciding such cases “is the role assigned to courts by the Constitution.”32  

Here, the Court abdicates that role in favor of a bright-line rule that unnecessarily and improperly tilts to the advantage of tortfeasors, allowing wrongdoers to evade responsibility by accusing others. Dismissal on “the mere chance that a political question may eventually present itself” is inappropriate33 and works an injustice on those who risk their lives working alongside military contractors. Because we do not know now, with any certainty, that the potential political question cannot be extricated from this case, dismissal is premature and improper. I respectfully dissent. 

                                                                  _______________________________ 

                                                                  Eva M. Guzman Justice

THE SUPREME COURT OF TEXAS ORDERS PRONOUNCED JUNE 20, 2018

ORDERS ON CAUSES

NO. 15-0932 AMERICAN K-9 DETECTION SERVICES, LLC AND HILL COUNTRY DOG CENTER, LLC v. LATASHA FREEMAN; from Bandera County; 13th Court of Appeals District (13-14-00726-CV, 494 SW3d 393, 10-29-15)   2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Johnson, Justice Lehrmann, Justice Boyd, Justice Brown, and Justice Blacklock joined.
Justice Guzman delivered a dissenting opinion.
Justice Devine delivered a dissenting opinion, in which Justice Guzman joined.

OPINION OF THE COURT BELOW 

494 S.W.3d 393 (2015)

Latasha FREEMAN, Appellant,
v.
AMERICAN K-9 DETECTION SERVICES, L.L.C. and Hill Country Dog Center, L.L.C., Appellees.

No 13-14-00726-CV 

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed October 29, 2015.

396On appeal from the 198th District Court, of Bandera County, Texas.

Shannon K. Dunn, Law Office of Beth Watkins, San Antonio, TX, for Appellant.

Deborah Smith McClure, W. Calloway Huffaker, Attorney at Law, PLLC, Amarillo, TX, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, Austin, TX, for Appellee.

Before Justices Garza, Benavides and Longoria.

OPINION

Opinion by Justice Garza.

This case involves personal injuries allegedly caused by a contract working dog ("CWD") on a United States military base in Afghanistan. Appellant LaTasha Freeman argues that the trial court erred in granting a plea to the jurisdiction dismissing her suit against appellees, American K-9 Detection Services, LLC ("AMK9") and Hill Country Dog Center, LLC ("HCDC"). We reverse and remand.^[1]

I. BACKGROUND

Freeman was employed as an administrative clerk by Honeywell International, Inc., a private military contractor that provided support to the United States Army's operations at Camp Mike Spann, a forward operating base in Afghanistan. AMK9 is a Florida corporation that trains and deploys military working dogs and their handlers; HCDC is a Texas corporation that also trains dogs for government work.

In her petition, Freeman alleged that, on or about November 9, 2011, while in the course and scope of her employment at Camp Mike Spann, she was attacked by an unprovoked CWD owned by AMK9 and "negligently left unattended" by its handler, an AMK9 employee. She alleged that the dog at issue, named Callie or Kallie, was "trained, certified, received veterinary services, and/or were purchased" by AMK9 from HCDC in Bandera County, Texas; that the dog's handler "while stationed overseas" was "trained, managed, and employed" by AMK9; and that HCDC also trained the handler. 

Freeman alleged that AMK9 was negligent for failing to properly train the dog, failing to properly train the dog's handler, failing to keep the 397dog under restraint, leaving the dog unattended, and failing to secure the kennel in which the dog was being held. She also raised theories of negligence per se and strict liability as to AMK9. As to HCDC, Freeman contended that it was negligent for failing to properly train the dog, failing to properly train the handler, and failing to provide the handler with proper equipment. She requested damages for lost wages, medical expenses, pain and suffering, mental anguish, physical impairment and disfigurement, and loss of enjoyment of life, both in the past and in the future.