COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
KAREN SPEASE AND No. 08-14-00065-CV
CRAIG SPEASE, §
Appeal from
Appellants, §
327th District Court
v. §
of El Paso County, Texas
THE HONORABLE KATHLEEN §
OLIVARES, JUDGE OF THE 205TH (TC # 2014DCV0050)
DISTRICT COURT OF EL PASO §
COUNTY, TEXAS,
§
Appellee.
OPINION
Karen Spease and Craig Spease, Appellants, filed suit against several defendants,
including the Honorable Kathleen Olivares, Judge of the 205th District Court of El Paso County,
Texas. This civil suit arises out of Appellants’ detention at the Sierra Blanca checkpoint by
federal agents, their later indictment on State charges for possession of marijuana, and the
eventual dismissal of those charges in a case or cases pending before Judge Olivares. In this
appeal, we review the trial court’s decision to grant a plea to the jurisdiction with regard to Judge
Olivares and dismissal of the claims against her. For the reasons noted below, we affirm.
FACTUAL SUMMARY
The trial court granted Judge Olivares’s motion to dismiss while Appellants’ “Second
Amended Verified Petition for Declaratory Judgment, Injunctive Relief and Damages” (the
Petition) was on file. We summarize the factual allegations as relevant to this appeal from that
pleading. Appellants generally allege that on July 9, 2010, while traveling from California to
Houston, they were detained at the Customs and Border Protection checkpoint located just
outside Sierra Blanca, Texas. They were informed that a drug sniffing dog had alerted on their
vehicle. They were apparently detained, but contend the federal authorities declined to prosecute
them. Instead, they were held by the federal authorities until the Hudspeth County Sheriff’s
Office imprisoned them.
Appellants were in jail for two days until they contend that bail was set by the Hudspeth
County Judge. Craig Spease bonded out of jail on July 13, 2010, and Karen Spease sometime
shortly thereafter. Much of their pleading details grievances against the officers who detained,
transported, and jailed them, as well as the bail bonding companies that were involved with their
bonds. Those particular allegations are not germane to the legal issue before us and we therefore
do not recount them here. They also allege that in November 2010, the District Attorney’s office
obtained indictments, which necessitated Craig appearing before Judge Olivares on January 20,
2011. Appellants then contend that some five months later the District Attorney’s office
obtained the dismissal of the charges after it admitted that it had no “lab report” supporting the
charges.
The Petition asserts claims against a number of parties, including Hudspeth County
Sheriff’s officers, the Hudspeth County Judge, the District Attorney, a bail bondsman, the court
reporter for the 205th District Court, and Judge Olivares, in her individual and official capacity.
2
With regard to Judge Olivares, the Petition appears to make four factual allegations that serve as
the basis for the various theories asserted:
1. Judge Olivares did not hold an arraignment so that Appellants’ not guilty pleas
could be taken;
2. There was no examining trial or determination of probable cause for the search
and seizure or arrest;
3. The Appellants filed several motions which were either not set or heard.
Somewhat related to this claim, they contend Judge Olivares did not appear in court
on July 21, 2011 when some matter had been set;
4. At one point, Judge Olivares ordered the release of Appellants on a personal
bond, but Appellants claim the judge did not order the release of their previously
obtained bail bond. Once on out on bond, the Appellants complain of being
compelled to check in weekly with court staff.1
These factual allegations are wound into eleven claims, which allege various federal
constitutional and common law theories. The last claim requests declaratory and injunctive relief
under 42 U.S.C. § 1983, seeking “protection from Hudspeth County’s official customs, policies
or practices of detaining and prosecuting citizens coming from western states, in violation of
their constitutional rights, which also caused Plaintiffs’ property to be taken, and marijuana to be
‘planted’ in Plaintiffs’ vehicle.” They allege no specific fact as to Judge Olivares other than
guilty pleas are often taken in the 205th District Court for possession of small amounts of
marijuana.
Judge Olivares filed a motion to dismiss for lack of subject matter jurisdiction. A
heading in the body of the motion states that the “Judge is Entitled to Judicial and Sovereign
Immunity.” A careful reading of the text of the motion and the cases cited, however, shows the
real basis for the dismissal was absolute judicial immunity, as distinct from sovereign immunity.
With respect to the declaratory and injunctive relief sought, the motion to dismiss challenged
1
We emphasize that these are the allegations as made in the Petition. Because the case was dismissed on an attack
on this pleading, there was never any factual determination made of the truth of the allegations made.
3
Appellants’ standing by contending there is no justiciable controversy when the declaration
sought will not resolve the parties’ dispute. The trial court granted the motion to dismiss and
later severed the claims against Judge Olivares into a separate action. We begin with our
standard of review and the law regarding judicial immunity.
REVIEW OF JUDICIAL IMMUNITY CLAIMS
When a defendant raises an absolute immunity claim, such as judicial immunity, she is
challenging the trial court’s subject matter jurisdiction to hear the case against the immune
defendant. James v. Underwood, 438 S.W.3d 704, 709 (Tex.App.--Houston [1st Dist.] 2014, no
pet.), citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The
burden is on the plaintiff to allege facts which affirmatively demonstrate that the trial court has
subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001); City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13, 18 (Tex.App.--El Paso 2012, pet.
denied). Whether a party has alleged sufficient facts is a question of law which we review de
novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
Mazie’s, 408 S.W.3d at 18. As in this case, when a plea to the jurisdiction challenges the
pleadings, we look to the pleader’s intent, construe the pleadings liberally in favor of
jurisdiction, and accept the allegations in the pleadings as true to determine if the pleader has
alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the case.
Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). But if the pleading
affirmatively negates the existence of jurisdiction, then a plea to the jurisdiction may be granted
without allowing the plaintiff an opportunity to amend their pleading. Miranda, 133 S.W.3d at
226-27.
4
Texas has adopted absolute judicial immunity as recognized in Stump v. Sparkman, 435
U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(“A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess of his authority,
but rather he will be subject to liability only when he has acted in the clear absence of all
jurisdiction.”)(internal quotations omitted); Dallas County. v. Halsey, 87 S.W.3d 552, 554 (Tex.
2002); James, 438 S.W.3d at 709; Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex.App.--
Houston [14th Dist.] 2004, pet. denied); Hawkins v. Walvoord, 25 S.W.3d 882 (Tex. App.--El
Paso 2000, pet. denied). “Absolute privilege is founded on the theory that the good it
accomplishes in protecting the rights of the general public outweighs any wrong or injury” that
may result as a result of improper government actions. Hawkins, 25 S.W.3d at 889-90; see also
Bradley v. Fisher, 80 U.S.(13 Wall.) 335, 350 (1871). The immunity applies unless the plaintiff
can show: (1) the claim is based on some act not taken in the judge’s judicial capacity; or (2) the
judge’s actions were taken in the “complete absence of all jurisdiction.” Mireles v. Waco, 502
U.S. 9, 10-12, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991); James, 438 S.W.3d at 709; Twilligear,
148 S.W.3d at 504.
With these standards in mind, we turn to the six issues which Appellants raise on appeal.
While some of their arguments overlap, we discuss each separately.
Lack of Jurisdiction as a Bar to Judicial Immunity.
In their first issue, Appellants contend that because Judge Olivares lacked jurisdiction
over the underlying criminal proceeding, her actions were not cloaked in judicial immunity. The
argument, as we understand it, is that because Appellants were stopped by federal authorities,
any criminal proceeding would necessarily be a federal claim. 2 According to Appellants, the
2
This is the explanation of the argument as made at the hearing on the motion to dismiss:
5
Hudspeth County officials did not have the authority to take them into custody, nor did the El
Paso County District Attorney’s office have the right to initiate proceedings against them, and
accordingly the case, which found its way to the 205th District Court, landed there without the
requisite subject matter jurisdiction. Consequently, Appellants posit that Judge Olivares’
handling of suit was without jurisdiction.
This argument misses the mark because Appellants misapprehend the meaning of
jurisdiction in this context. “In determining whether an act was clearly outside a judge’s
jurisdiction for judicial immunity purposes, the focus is not on whether the judge’s specific act
was proper or improper, but on whether the judge had the jurisdiction necessary to perform an
act of that kind in the case.” Bradt v. West, 892 S.W.2d 56, 68 (Tex.App.--Houston [1st Dist.]
1994, writ denied). In other words, the question is not whether the underlying criminal charge
was brought in the correct court, but whether the judge had the authority to take the particular
actions that she did. James, 438 S.W.3d at 713 (question was whether probate judge had
authority to rule on motion); Mireles, 502 U.S. at 13, 112 S.Ct. at 288 (concluding that judge
had jurisdiction to secure attorneys’ presence before him); Malina v. Gonzales, 994 F.2d 1121,
1124 (5th Cir. 1993)(holding that judge had power to cite for contempt and to sentence).
Judge Olivares undoubtedly had the authority to take all of the actions that she did in a
criminal proceeding that found its way to her court. The 205th District Court has jurisdiction for
THE COURT: Okay. So why do you think that the judge of that county has no jurisdiction?
MS. SPEASE: Why do we think? Because if you’re seized and detained by federal officers, then it’s a federal case;
not a -- MR. SPEASE: State.
MS. SPEASE: -- state or county case.
MR. SPEASE: How does it get to be a state case?
MS. SPEASE: Because we do say in our petition here that the only authority a State Judge has in acting on behalf
of the federal government is in determining whether to hold or release a suspect based upon whether they were
seized lawfully or not.
6
matters arising in Culberson, El Paso, and Hudspeth Counties. TEX.GOV’T CODE ANN. § 24.384
(West 2004). Its jurisdiction includes criminal matters. Id. With regard to the particular actions
of which the Appellants complain, a trial court is empowered to set the amount of bail, and
reduce it if appropriate. TEX.CODE CRIM.PROC.ANN. art. 17.15 (West 2015); id. at art. 17.09. A
trial court has the authority to set an arraignment of the defendant “if such be necessary” and to
hear and resolve motions pertaining to the case. TEX.CODE CRIM.PROC.ANN. art 28.01 (West
2006). The court is specifically empowered to resolve speedy trial issues. Id. at art. 28.061. The
trial court is also empowered to oversee, and when appropriate, to appoint counsel to indigent
defendants. TEX.CODE CRIM.PROC.ANN. art. 1.051 (West 2005) and TEX.CODE CRIM.PROC.ANN.
art. 26.04 (West 2009).
Appellants criticize Judge Olivares for actions she took, or did not take, but all of those
actions were within the scope of her authority as a judge. Whether she did or did not hear a
motion, did or did not rule on Appellants’ bail, did or did not set an arraignment, she was
authorized to act as a sitting judge. Accordingly, they are within her jurisdiction for the purposes
of judicial immunity.
We pause to note that Appellants’ claim that they could not be prosecuted for drug
charges in a state district court when they were initially apprehended by federal authorities,
overlooks that the State of Texas and Federal Government have overlapping jurisdiction for
certain drug crimes. Both the Texas Legislature and United States Congress have criminalized
possession of even small amounts of marijuana. TEX.HEALTH&SAFETY CODE ANN. § 481.121
(West 2010)(possession of less than two ounces is a Class B misdemeanor); 21 U.S.C. § 844
(2013)(possession of controlled substance illegal). Under the dual-sovereignty doctrine, either,
and possibly both, jurisdictions may seek to prosecute a violation of its own laws. See Bartkus v.
7
People of the State of Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959);
United States v. Lanza, 260 U.S. 377, 382 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). This has been
the rule in the United States for over 150 years. Fox v. State of Ohio, 46 U.S. 410, 5 How. 410,
419-20, 12 L.Ed. 213 (1847).
We also note that each action by Judge Olivares of which Appellants complain are clearly
judicial actions. We consider four factors in determining whether a judge’s acts are judicial: (1)
whether the act complained of is one normally performed by a judge; (2) whether the act
occurred in a judicial setting, such as a courtroom; (3) whether the controversy arises out of a
case pending before the judge; and (4) whether the act arose out of an interaction with the judge
in her judicial capacity. Bradt, 892 S.W.2d at 67; Hawkins, 25 S.W.3d at 889-90. In this case,
all of the actions of Judge Olivares were clearly judicial. Appellants complain of her actions in
regard to a case pending in her court. They complain of hearings held, or not held, in her
courtroom. They complain of actions taken, or not taken, which are customarily done by sitting
judges, such as hearing and ruling on motions. Because Appellants’ pleading below complains
only of judicial actions of Judge Olivares, and for activities which are within the jurisdiction of a
sitting judge, we overrule Issue One.
Relief for Ministerial Acts
In Issue Two, Appellants contend that the actions of Judge Olivares were “ministerial.”
As such, they claim this is only a suit against a governmental official for declaratory relief which
seeks to compel a ministerial act. They direct us to cases dealing with official immunity and the
ultra vires exception to official immunity. E.g. Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex.
2011); City of El Paso v. Heinrich, 284 S.W.3d 366, 372, 373 (Tex. 2009)(“To fall within this
ultra vires exception, a suit must not complain of a government officer’s exercise of discretion,
8
but rather must allege, and ultimately prove, that the officer acted without legal authority or
failed to perform a purely ministerial act. . . . But the ultra vires rule is subject to important
qualifications. Even if such a claim may be brought, the remedy may implicate immunity.”).
But the suit against Judge Olivares was dismissed based on judicial immunity, not official
immunity. Moreover, if there was some ministerial act that she should have performed, the
remedy was to pursue a mandamus during the pendency of the underlying criminal proceeding.
See e.g. State ex rel. Young v. Sixth Judicial District Court of Appeals at Texarkana, 236 S.W.3d
207, 210 (Tex.Crim.App. 2007)(setting forth elements for mandamus to compel performance of
ministerial acts in criminal proceedings).
Finally, Appellants’ arguments only bolster the conclusion that everything they complain
of is protected by judicial immunity. They point to the following “ministerial” acts which Judge
Olivares should have performed: “failed to perform her duty to arraign Craig Spease and Karen
Spease”; “failed to determine whether the Speases needed counsel”; “failed to read the
indictment or to provide the Speases with a copy of the indictment”; “failed to hear or enter the
Speases’ not guilty pleas upon the minutes of the court”; and “failed to hear or to rule upon the
Speases’ motions to suppress, which acted to deprive the Speases’ right to review.” Each of
these complaints are clearly directed at judicial actions which a trial judge is empowered to
perform. We overrule Issue Two.
Error in Ruling only on the Pleadings.
In Issue Three, Appellants complain that the motion to dismiss should not have been
granted until there was a “fact-based jurisdictional inquiry.” Citing Trinsey v. Pagliaro, 229 F.
Supp. 647 (E.D. Pa. 1964), they contend counsel’s statements or arguments are not sufficient to
sustain a motion to dismiss. They further contend the trial court “failed to instruct pro se
9
litigants about how their pleadings are deficient or how to repair their pleadings.” We reject both
contentions.
While argument of counsel cannot support a plea to the jurisdiction, a plaintiff can plead
themselves out of court if their pleadings affirmatively negate the existence of jurisdiction.
Miranda, 133 S.W.3d at 226–27. In that situation, the plea to the jurisdiction may be granted
without allowing the plaintiff an opportunity to amend the pleadings. Id. Appellants’ pleading,
as outlined above, only complains of actions by Judge Olivares in her role as a District Court
Judge.
Moreover, at the hearing on the motion to dismiss, the trial judge gave Appellants another
opportunity to clarify the nature of their complaints against Judge Olivares:
THE COURT: Okay. I understand that that’s your position. I don’t agree that
that’s the law. What I want to hear is, is there anything in your petition that you
contend is something she did outside her judicial capacity? Even if it was a
mistake, even if she didn’t show up to court, those are all judicial acts.
MR. SPEASE: I don’t know that we’ve had any dealings with her other than
judicial.
MS. SPEASE: Well, there’s the -- you know, the ministerial, or is it just -- she’s
responsible for --completely responsible for employing a court reporter, and she
holds all responsibility there.
. . .
MS. SPEASE: -- you know, that’s the one I can think of. But, you know, the
most important thing is that we don’t believe she had any authority or jurisdiction.
Nothing in this these statements remotely suggests that further pleading or discovery would
avoid the bar of judicial immunity.
Nor can we fault the trial court for not instructing Appellants on how to plead their case.
First, a judge cannot be both a neutral referee and an advocate in a dispute. See United States v.
Saenz, 134 F.3d 697, 702 (5th Cir. 1998); Ex parte Miller, 696 S.W.2d 908 (Tex.Crim.App.
10
1985). Nor does this rule change merely because Appellants represent themselves. Pro se
litigants are held to the same standards as licensed attorneys and must comply with all applicable
rules of procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.--El Paso 2006, no
pet.). If this were not the rule, pro se litigants would gain an unfair advantage over parties who
are represented by counsel. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). We overrule Issue Three.
Takings Claim
In Issue Four, Appellants contend that Judge Olivares is liable under Article I, section 17
of the Texas Constitution. That provision states that “[n]o person’s property shall be taken,
damaged, or destroyed for or applied to public use without adequate compensation . . . . “ TEX.
CONST. art. 1 § 17(a)(West Supp. 2015). As a general proposition, a takings claim is an
exception to sovereign immunity. General Services Commission v. Little-Tex Insulation
Company Inc., 39 S.W.3d 591, 598 (Tex. 2001). Appellants contend that Judge Olivares’ actions
caused them to lose property, including bonding fees, and from this they seek to make a takings
claim.
We reject this theory because Judge Olivares was dismissed from the lawsuit because of
judicial immunity and not sovereign immunity. Thus an exception to sovereign immunity, even
were it properly pled, would not apply. And were it otherwise, every judge who ever entered an
adverse judgment against a party would be subject to a takings claim, because most judgments
divest a person of either property or liberty. Accordingly, we overrule Issue Four.
Use of an Automobile
In Issue Five, Appellants maintain that immunity was waived because Judge Olivares
traveled to hearings in Hudspeth County in a motor vehicle and the Texas Tort Claims Act
11
waives immunity for property damage which “arises from the operation or use of a motor-driven
vehicle.” TEX.CIV.PRAC.&REM.CODE ANN. § 101.021 (West 2011). We reject this theory for a
number of reasons. First, it was never raised in Appellants’ Petition, and our sole focus is on
whether the last active pleading asserts a claim which is not barred by judicial immunity.
Second, Judge Olivares was dismissed on judicial immunity and not sovereign immunity
grounds. We are aware of no authority that the Texas Tort Claims Act operates as an exception
to judicial immunity. Finally, even if the Tort Claims Act was applicable, the mere fact Judge
Olivares drove to court in a motor vehicle does not operate as a general waiver of immunity.
Section 101.021 has been extensively construed and at a minimum, the government
employee must have been actively operating the vehicle at the time of the incident. See LeLeaux
v. Hamshire-Fannett Independent School District, 835 S.W.2d 49, 52 (Tex. 1992)(no waiver
when government employee was not present when student sustained injury in school bus).
Moreover, the tortious act must relate to the defendant’s operation of the vehicle rather than to
some other aspect of the defendant’s conduct. Ryder Integrated Logistics, Inc. v. Fayette
County, 2015 WL 496303, at *3 (Tex. Feb. 6, 2015). It follows that even if this theory had been
pled below, the trial judge would have been compelled to reject it because there was no nexus
between the use of a vehicle and the actions of which Appellants complain. We therefore
overrule Issue Five.
Request for Equitable Relief
In Issue Six, to the extent we understand it, Appellants claim they are seeking
“declaratory and/or injunctive relief” to stop the Sierra Blanca checkpoint from being used to
impede travel along Interstate 10 or harass those with “prescription medication . . . being
12
subjected to unlawful searches and seizure.”3 In 1984, the United States Supreme Court held
that judicial immunity does not shield a judge from prospective relief sought under 42 U.S.C. §
1983. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984).
Congress later amended that statute to add language that “injunctive relief shall not be granted”
in any action brought against “a judicial officer for an act or omission taken in such officer’s
judicial capacity,” “unless a declaratory decree was violated or declaratory relief was
unavailable.” See Federal Courts Improvement Act, Pub.L. No. 104-317, 110 Stat. 3847
(1996)(amending 42 U.S.C. § 1983). Several courts have viewed this statutory amendment as
effectively overruling Pulliam. Guerin v. Higgins, 8 F.App’x 31, 32 (2d Cir. 2001)(“We also
reject plaintiff’s contention that he is entitled to declaratory relief based on Pulliam v. Allen,
given that the Pulliam holding with respect to such relief has been effectively overruled by
Congress.” (internal citation omitted)); Kircher v. Ypsilanti, 458 F.Supp.2d 439, 447-48
(E.D.Mich. 2006)(“This argument [that Pulliam allows injunctive relief against judicial officers]
would be a good deal more persuasive if not for a 1996 amendment to 42 U.S.C. § 1983 that
abrogated the portion of Pulliam upon which Plaintiff seeks to rely.”).
Even were declaratory or injunctive relief still available, we think it was properly
dismissed by the court below. Our first concern is standing, which touches upon our subject-
matter jurisdiction. Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999); see also
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)(“A court has no jurisdiction
over a claim made by a plaintiff without standing to assert it.”)(footnote omitted); SCI Texas
Funeral Services, Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex.App.--El Paso 2007, pet. denied).
Thus, a court may examine standing issues sua sponte if necessary. Texas Ass’n of Business v.
3
We assume Appellants are contending that any marijuana found in their vehicle was legally prescribed in
California.
13
Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)(noting that standing “may be raised
for the first time on appeal by the parties or by the court”); Martin v. Clinical Pathology
Laboratories, Inc., 343 S.W.3d 885, 888 (Tex.App.--Dallas 2011, pet. denied); OAIC
Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 735 (Tex.App.--Dallas
2007; pet. denied).
The motion to dismiss the Appellant’s injunctive relief claim asserted that “[t]here is no
controversy that could be resolved.” This argument mirrors the general test for standing which is
whether there is a real controversy between the parties that will actually be determined by the
judgment sought. Texas Ass’n of Business, 852 S.W.2d at 446; SCI, 214 S.W.3d at 153.
Appellants lack standing for the injunctive relief they seek. First, their criminal case is
now dismissed. This makes their position indistinguishable from the plaintiffs in Williams v.
Lara, 52 S.W.3d 171 (Tex. 2001). That case involved a challenge to a jail religious service on
Establishment Clause grounds. Two of the plaintiffs had been incarcerated in the jail, and thus
arguably were exposed to the religious services, but they had been released by the time the case
was filed. Id. at 175. The Texas Supreme Court held once they were released from the jail, their
claim became moot, which necessarily denied them standing. Id. at 184 (“Because Lara and
Huff have been released from jail, they lack a legally cognizable interest in obtaining injunctive
or declaratory relief. They no longer face the unconstitutional conduct about which they
complain, and thus any prospective relief we might grant cannot help them.”). The Lara court
also rejected the argument that because the two plaintiffs might be arrested and incarcerated in
the future, they had standing under the “capable of repetition, yet evading review” exception to
the mootness doctrine. Id. One element of that exception is that the plaintiff must have a
reasonable expectation that he or she will be subjected to the same action again. Blum v. Lanier,
14
997 S.W.2d 259, 264 (Tex. 1999); General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569,
571 (Tex. 1990). But the court was unwilling to assume that the Lara plaintiffs had a reasonable
expectation of being recidivists such that they would again be jailed. 52 S.W.3d at 185.
For the same reason, Appellants claim is moot and denies them standing. Their criminal
proceeding has ended, just as the Lara plaintiffs’ jail term ended. Appellants do not allege,
perhaps wisely so, that they intend to transport marijuana through the Sierra Blanca checkpoint
in the future, and nor could we indulge the presumption that they would do so.
Another component of standing is whether the injury alleged can be redressed with a
favorable decision. Heckman v. Williamson County, 369 S.W.3d 137, 155 n.78 (Tex. 2012),
citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917,
1924, 1926, 48 L.Ed.2d 450 (1976). Lujan is particularly instructive. The plaintiff there
challenged the U.S Interior Department’s funding of overseas construction projects. Id. 504 U.S.
at 563, 112 S.Ct. at 2138. But the plaintiffs lacked standing on redressability grounds because
some of the necessary parties were absent from the suit. Id. at 568, 112 S.Ct. at 2140. As
presently postured, nothing that the Appellant’s seek here can be obtained via a suit against
Judge Olivares.
First, much of their complaint is directed at the Sierra Blanca checkpoint, which they
recognize is run by an agency of the Federal Government, which is not a party below. And even
if it were a party, it has been known for almost two centuries that a state court cannot issue
equitable relief directing a federal officer in the performance of a federal duty. McClung v.
Silliman, 19 U.S. 598, 5 L.Ed. 340 (1821)(state court could not issue mandamus against federal
officer); Ex parte Tarble, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1871)(state cannot issue habeas
15
corpus relief compelling federal government to release conscripted solider); cf. Donovan v. City
of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964)(state court was completely
without power to issue injunction prohibiting plaintiff in Federal Court action from pursuing in
personam action); 17A Charles Alan Wright et al., Federal Practice and Procedure § 4213 (3d
ed.2007)(“On the other hand, it has been clear since 1821 that a state court cannot issue a writ of
mandamus against a federal officer.). As a practical matter, a state court could not issue the kind
of injunctive relief that Appellants seek with respect to the checkpoint itself.
As alluded to at the hearing on Judge Olivares’s severance motion, she is no longer the
sitting judge of the 205th District Court. Her term expired in 2014. There is no injunctive relief
that could be granted against her in an individual or official capacity that would affect the border
checkpoint, or any actions of the Hudspeth County Sheriff’s Department, or the District Attorney
who prosecutes criminal cases. Even if she were still in office, no decree against the 205th Court
could be crafted which would affect the detention, arrest, or indictment of persons transporting
marijuana through the check-point. A judge only hears a case that is brought before her; she
does not decide whom to arrest and whom to prosecute. For these reasons, we overrule Issue Six
and affirm the judgment below.
May 31, 2016
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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