John Doe v. Board of Directors of the State Bar of Texas Commission for Lawyer Discipline And Linda Acevedo, in Her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00007-CV

John Doe, Appellant

v.

Board of Directors of the State Bar of Texas; Commission for Lawyer Discipline; and
Linda Acevedo, in her Official Capacity as the Chief Disciplinary Counsel of the
State Bar of Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-14-001635, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

MEMORANDUM OPINION

John Doe1 appeals the trial court’s dismissal of his declaratory judgment action

against the Board of Directors of the State Bar of Texas, the Commission for Lawyer Discipline, and

Linda Acevedo, in her Official Capacity as the Chief Disciplinary Counsel of the State Bar of Texas

(collectively, the State Bar Defendants). Doe sought declarations that the State Bar Defendants were

not prohibited from disclosing to Doe, as a grievance complainant, Acevedo’s recommendation to

the summary disposition panel concerning Doe’s grievance against an attorney, that he was entitled

to a copy of the recommendation, and that Acevedo had acted without authority in refusing to

provide him a copy. The State Bar Defendants filed a motion to dismiss for lack of jurisdiction,

which the trial court granted. For the reasons that follow, we affirm the trial court’s order.

1
John Doe is a pseudonym for a person who filed a grievance against a Texas attorney.
 BACKGROUND

Doe filed a grievance against an attorney alleging violations of the Rules of

Disciplinary Procedure. See Tex. Rules Disciplinary P. R. 1.06(R), reprinted in Tex. Gov’t Code,

tit. 2, subtit. G, app. A-1 (defining “grievance” as “a written statement, from whatever source,

apparently intended to allege Professional Misconduct by a lawyer, or lawyer Disability, or both,

received by the Office of Chief Disciplinary Counsel”). Acevedo made a threshold determination

to classify the grievance as a “complaint” and began an investigation into whether “just cause”

existed. See id. R. 1.06(G) (defining “complaint” as written matter alleging conduct that constitutes

professional misconduct and/or disability), (S) (defining “inquiry” as written matter alleging conduct

that, even if true, does not constitute professional misconduct or attorney disability, or both), (U)

(defining “just cause” in relevant part as “such cause as is found to exist upon a reasonable inquiry

that would induce a reasonably intelligent and prudent person to believe that an attorney . . . has

committed an act or acts of Professional Misconduct requiring that a Sanction be imposed . . . .”),

R. 2.10 (requiring Chief Disciplinary Counsel to examine grievances and classify as inquiry or

complaint). Grievances classified as complaints are sent to the respondent attorney with notice to

provide a written response to the allegations within thirty days. See id. R. 2.10.

After receiving the attorney’s response and a series of replies and responses, Acevedo

investigated the complaint and notified Doe that she did not find just cause and would refer the

complaint to the summary disposition panel. See id. R. 1.06 (CC) (defining summary disposition

panel as panel of grievance committee that determines whether complaint should proceed or be

dismissed based on absence of evidence of just cause after reasonable investigation by Chief

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Disciplinary Counsel). Acevedo placed the complaint on the docket of the summary disposition

panel. See id. R. 2.13 (requiring Chief Disciplinary Counsel, upon determination that just cause does

not exist, to place complaint on docket of summary disposition panel).

At the summary disposition panel docket, Acevedo presented the complaint, and the

panel dismissed the complaint.2 See id. R. 2.13 (requiring Chief Disciplinary Counsel to present at

summary disposition panel docket complaint “together with any information, documents, evidence,

and argument deemed necessary and appropriate by the Chief Disciplinary Counsel, without the

presence of the Complainant or Respondent” and providing that summary disposition panel shall

determine whether complaint should be dismissed or proceed). Doe asked for a copy of Acevedo’s

recommendation to the summary disposition panel. Acevedo denied Doe’s request, citing the

confidentiality provisions of Rule 2.16. See id. R. 2.16 (“All members of the staff of the Office of

Chief Disciplinary Counsel, Board of Disciplinary Appeals, Committees, and Commission shall

maintain as confidential all Disciplinary Proceedings and associated records [with exceptions not

relevant to this appeal].”). Doe filed a declaratory judgment action against the State Bar Defendants

seeking declarations that he is entitled to receive a copy of Acevedo’s recommendation, that

Rule 2.16 does not apply to him as complainant and does not prohibit him from receiving or the State

Bar Defendants from providing him a copy of Acevedo’s recommendation, and that Acevedo acted

without authority in denying his request for a copy of the recommendation. Doe also sought an order

requiring Acevedo to provide a copy of her recommendation to him.

2
There is no appeal of the panel’s decision to dismiss. Tex. Rules Disciplinary P. R. 2.13.

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 The State Bar Defendants filed a motion to dismiss for lack of jurisdiction. They

asserted that they are protected by sovereign and statutory immunity, that Doe had alleged no actual

injury and lacked standing, that Doe’s claims were moot, and that the trial court could not intervene

in the disciplinary process, which the Texas Supreme Court has authority to regulate. Following a

hearing, the trial court granted the State Bar Defendants’ motion to dismiss. Doe then filed

this appeal.

STANDARD OF REVIEW AND APPLICABLE LAW

In their motion to dismiss, the State Bar Defendants argued that the trial court lacked

subject matter jurisdiction. Whether a court has subject matter jurisdiction is a question of law that

we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The ultimate inquiry is whether the particular facts presented affirmatively demonstrate a

claim within the trial court’s subject matter jurisdiction. Bacon v. Texas Historical Comm’n,

411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.). Among the grounds that the State Bar

Defendants asserted for the trial court’s lack of subjection matter jurisdiction was that Doe’s claims

are barred by sovereign immunity.3 Sovereign immunity protects the State of Texas and its agencies

from lawsuits, including suits for declaratory or injunctive relief, unless immunity has been expressly

waived. Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam); Harris

3
The State Bar Defendants did not assert sovereign immunity in their motion to dismiss but
did include it as a ground for dismissal in their argument at the hearing on the motion. Doe does not
contend that they have waived this argument, and the parties join issue on sovereign immunity on
appeal. In any event, because sovereign immunity implicates subject matter jurisdiction, a party may
raise it for the first time on appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95–96 (Tex. 2012);
Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).

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Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Texas Natural Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 857 (Tex. 2002). The State Bar is a government agency that is entitled

to the protection afforded by sovereign immunity. See Tex. Gov’t Code § 81.011(a) (describing

State Bar as administrative agency of judicial department of government). As a standing committee

of the State Bar, the Commission is likewise protected by sovereign immunity. See Tex. Gov’t Code

§ 81.076(b) (Commission is standing committee of State Bar); Willie v. Commission for Lawyer

Discipline, No. 14-10-00900-CV, 2011 Tex. App. LEXIS 5684, at *11 (Tex. App.—Houston [14th

Dist.] July 26, 2011, pet. denied) (mem. op.) (Commission entitled to sovereign immunity unless

waived). As a government official, the Chief Disciplinary Counsel may be a proper party to a suit

that alleges, and ultimately proves, that she failed to perform a purely ministerial act or acted without

legal authority and thus falls within the ultra vires exception to sovereign immunity. See Tex. Gov’t

Code § 81.076(g) (authorizing Commission for Lawyer Discipline, with advice and consent of State

Bar Board of Directors, to select Chief Disciplinary Counsel to serve as administrator of State Bar’s

grievance procedure); Sefzik, 355 S.W.3d at 621; City of El Paso v. Heinrich, 284 S.W.3d 366, 372

(Tex. 2009) (discussing ultra vires exception to sovereign immunity).

There is no general right to sue a state agency for a declaration of rights, and although

the Uniform Declaratory Judgment Act (UDJA) waives immunity for certain claims, it is not a

general waiver of immunity. See Tex. Civ. Prac. & Rem. Code § 37.006(b); Texas Parks & Wildlife

Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). It does not enlarge a trial court’s

jurisdiction, and a request for declaratory relief does not alter the underlying nature of a suit.

Heinrich, 284 S.W.3d at 370; IT-Davy, 74 S.W.3d at 855. When sovereign immunity bars a claim

5
against a governmental entity, the trial court lacks subject matter jurisdiction. Miranda, 133 S.W.3d

at 224.

DISCUSSION

In his first issue, Doe acknowledges that sovereign immunity bars his claims except

to the extent immunity is expressly waived by the legislature. Doe contends, however, that his

claims fall within exceptions allowing actions that (1) challenge the validity of a statute and

(2) assert ultra vires claims against a state officer. See Sefzik, 355 S.W.3d at 622 (state may be

proper party to declaratory judgment action that challenges validity of statute); Heinrich, 284 S.W.3d

at 372 (suits against governmental officials alleging, and ultimately proving, that they acted without

legal authority or failed to perform purely ministerial act fall within ultra vires exception to

governmental immunity). We address each exception in turn.

Ultra Vires Claims

Doe contends that his claims against Acevedo are not barred by sovereign immunity

because they fall within the exception for ultra vires claims against a state official. See Heinrich,

284 S.W.3d at 372. For the ultra vires exception to immunity to apply, a plaintiff must prove that

the state actor either failed to perform a ministerial task or acted without legal authority.

Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015); Heinrich, 284 S.W.3d

at 372. Doe argues that Acevedo acted ultra vires in denying his request for a copy of her

recommendation to the summary disposition panel based on a misinterpretation of Rule 2.16. He

does not contend that Acevedo failed to perform a purely ministerial act but complains that because

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Rule 2.16 does not expressly prohibit disclosure of the recommendation to a complainant, Acevedo

acted without legal authority in withholding it. To determine whether Doe has asserted a valid ultra

vires claim that invokes the trial court’s subject matter jurisdiction, we construe the provisions of

Rule 2.16 that define the scope of Acevedo’s legal authority, apply them to the facts that Doe has

alleged, and ascertain whether those facts constitute acts beyond Acevedo’s legal authority. See

City of New Braunfels v. Tovar, 463 S.W.3d 913, 919 (Tex. App.—Austin 2015, no pet.) (citing

Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 701–02 (Tex. App.—Austin 2011,

no pet.)).

Under Rule 2.16, the Office of Chief Disciplinary Counsel, Board of Disciplinary

Appeals, Committees, and Commission are required to “maintain as confidential all Disciplinary

Proceedings and associated records.” See Tex. Rules Disciplinary P. R. 2.16. Thus, the

plain language of the rule requires confidentiality. See Marks v. St. Luke’s Episcopal Hosp.,

319 S.W.3d 658, 663 (Tex. 2010) (we apply plain meaning of text unless different meaning is

supplied by legislative definition or is apparent from context or unless plain meaning leads to absurd

results); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009) (our

primary concern is express statutory language). The rule includes several exceptions to

confidentiality not relevant to this appeal, but it does not include an exception for disclosure to

complainants. Doe’s argument that Acevedo acted without authority in withholding a copy of her

recommendation inverts the ultra vires exception. For Acevedo to make an exception for

complainants when no such exception is contained in Rule 2.16 would be to act without legal

authority, not the other way around, as Doe argues. We conclude that Acevedo acted with authority

7
of law in withholding her recommendation from Doe and that the ultra vires exception is

inapplicable to her. See Tovar, 463 S.W.3d at 919; Emmett, 459 S.W.3d at 589 (where city

employee acted in accordance with city ordinance, he acted with authority of law, and ultra vires

exception did not apply to him).

Challenge to Rule 2.16

As for the other State Bar Defendants, Doe challenges Rule 2.16 in two interrelated

arguments. He sought a declaration that as a matter of law Rule 2.16 does not apply to him as

complainant and that it does not prohibit him from receiving and the State Bar Defendants providing

to him Acevedo’s recommendation prior to presenting that recommendation to the summary

disposition panel. Doe argues that this request for an interpretation of Rule 2.16 falls within the

exception allowing actions against the state that challenge the validity of a statute. See Tex. Civ.

Prac. & Rem. Code § 37.006(b) (requiring joinder of municipality in challenge to municipal

ordinance or franchise); Sefzik, 355 S.W.3d at 622 & n.3 (interpreting section 37.006(b) as requiring

joinder of state in challenge to statute); O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 399

(Tex.1998) (concluding disciplinary rules should be treated like statutes). On its face, this request

for declaratory relief appears to be a request for statutory interpretation that would fall within the

exception, allowing suit against the Board and the Commission. See Texas Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 634–35 (Tex. 2010) (UDJA contemplates that

governmental entities may be joined in suits to construe legislative pronouncements, both those

seeking invalidation and those involving interpretation) (citing Texas Educ. Agency v. Leeper,

893 S.W.2d 432, 433, 446 (Tex. 1994)).

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 Even if we were to conclude that Doe’s claims fall within this exception to sovereign

immunity, however, Doe has failed to allege a legally cognizable interest in obtaining a copy of

Acevedo’s recommendation. Doe argues that he “properly alleged his specific and legally

cognizable interest affected by the State Bar Defendants’ actions.” However, Doe has asserted no

statutory or other basis for his contention that he is entitled to a copy of Acevedo’s recommendation.

He cites section 81.072 of the Government Code, which requires the Texas Supreme Court to

establish standards and procedures that provide for a full explanation to each complainant on

dismissal of a complaint. See Tex. Gov’t Code § 81.072(b)(2). Yet he points us to no statute or rule

requiring or even authorizing the Chief Disciplinary Counsel to provide the complainant with a copy

of the recommendation to the summary disposition panel. It is undisputed that Rule 2.16 does not

require disclosure, and we are unpersuaded by Doe’s argument that he is somehow entitled to

disclosure merely because the confidentiality rule does not expressly prohibit disclosure

to complainants.

Doe claims that Acevedo’s denial of his request for a copy of her recommendation

has prevented him from being able to review Acevedo’s finding and evaluate how his complaint

failed to meet the standard of just cause, “render[ing] futile any effort to correct [his] grievance in

a new filing.” But he has cited to no authority, and we know of none, for the proposition that Doe

has a statutory or common law cause of action encompassing the legal right to demand

documentation from the State Bar Defendants in order to assist him in preparing a potential future

complaint against an attorney. Even if we were to construe the confidentiality provision of Rule 2.16

as inapplicable to Doe, he has not alleged, nor can he allege, any legal basis supporting his right to

9
access or view Acevedo’s recommendation to the summary disposition panel. Therefore Doe has

not pleaded a legally cognizable claim under any statute, rule, or common law cause of action

capable of conferring subject matter jurisdiction upon the trial court.4 See A.G. Edwards & Sons,

Inc. v. Beyer, 235 S.W.3d 704, 708 (Tex. 2007) (without statutorily required written agreement, joint

owner had no cognizable claim to sums in joint tenant with right of survivorship account); Austin

v. HealthTrust, Inc., 967 S.W.2d 400, 401 (Tex. 1998) (plaintiff failed to state cognizable claim

under Texas common law, which did not recognize private whistleblower cause of action); King

v. Moores, No. 13-05-00694-CV, 2006 Tex. App. LEXIS 6083, at *12–14 (Tex. App.—Corpus

Christi July 13, 2006, no pet.) (mem. op.) (affirming trial court’s grant of plea to jurisdiction on

ground plaintiff failed to state cognizable claim under applicable state law); cf. Leeper, 893 S.W.2d

at 437 (involving class action plaintiffs who sought declaration that compulsory school attendance

law did not apply to home schooling and who alleged constitutional and civil rights violations

resulting from prosecutions and threatened prosecutions).

We therefore conclude that the trial court lacked subject matter jurisdiction and

properly granted the State Bar Defendants’ motion to dismiss. See Emmett, 459 S.W.3d at 589;

HealthTrust, 967 S.W.2d at 401. We overrule Doe’s first issue. Because this issue is dispositive,

we do not reach Doe’s second issue, in which he argues that he had standing because he alleged

actual harm and his claims are not moot, or his third issue, in which he argues that he did not seek

4
To the extent Doe asked the trial court to modify Rule 2.16 or to implement a new rule
requiring disclosure of the Chief Disciplinary Counsel’s recommendation to the summary disposition
panel, it is powerless to do so. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 244–46 (Tex. 1994)
(“[A] district court has no authority to assume [the Supreme Court’s] authority to regulate the legal
profession. This prohibition includes the rendition of orders that would, as a practical matter,
preempt [the Supreme Court’s] authority.”).

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to enjoin a grievance proceeding or create a new rule and that the trial court would not be intruding

on the province of the Texas Supreme Court to regulate attorney discipline.

CONCLUSION

Having concluded that the trial court lacked subject matter jurisdiction, we affirm the

trial court’s order granting the State Bar Defendants’ motion to dismiss.5

__________________________________________
Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: October 27, 2015

5
Doe’s unopposed motion for leave to file supplemental brief is granted.

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