Cecil Adams and Maxine Adams v. Harris County and Christopher A. Prine, Clerk of the First Court of Appeals

ACCEPTED
04-15-00287-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/24/2015 9:31:29 PM
KEITH HOTTLE
CLERK

NO. 04-15-00287-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE FOURTH COURT OF APPEALS 12/28/2015 11:09:00 AM
KEITH E. HOTTLE
____________________________________ Clerk

Cecil Adams and Maxine Adams
Appellants,
vs.
Harris County, Rebecca Ross, Kathleen Keese, Christopher Prine Clerk of the
Court and Chris Daniel District Clerk
Appellees
On Appeal from 269th Judicial Court
Houston, Texas
Cause No. 2014-35653
Transferred by Order of the Supreme Court from the First Court of Appeals
Houston, Texas
Cause No. 01-15-00384-CV

Adams’ En Banc Motion for Reconsideration
__________________________________________________________________

Cecil Adams
Maxine Adams
5510 S. Rice #1206
Houston, Texas 77081
p.713.840.0330
Email: cecillovesmax@sbcglobal.net
NOW HERE COMES Maxine Adams and Cecil Adams (collectively the “Adams”)

to file this En Banc Motion for Reconsideration and would show as follows:

BACKGROUND FACTS

The Adams adopts the background facts in the December 9, 2015

Memorandum Opinion and Judgment issued by this Honorable Court [Appendix 1].

This is a case in which the trial court granted governmental officials claim of

sovereign and judicial immunity in a plea to jurisdiction. The appellate judgment in

the above captioned appeal taxed the costs of the appeal against Adams. The Opinion

affirmed the trial court order granting the plea to the jurisdiction filed by Christopher

A. Prine in his official capacity and dismissed Adams’ challenge of the order

granting the plea to the jurisdiction in Christopher A. Prine’s individual capacity for

lack of jurisdiction because:

“The trial court’s ruling on the plea was not one that “grante[ed] or
denie[d] a plea to the jurisdiction by a governmental official and the
Adamses’ interlocutory appeal is not authorized by section
51.014(a)(8). See Sanders v. City of Grapevine, 218 S.W.3d 772, 776
(Tex. App.—Fort Worth 2007, pet denied.)(holding a trial court’s order
granting plea to jurisdiction and dismissing claims against city officials
in their individual capacities was not an appealable interlocutory order
under section 51.014(a)(8).1” [APPENDIX (“APP”) 1: page 7].

1
APP. 2: James v. Underwood, 438 SW 3d 704 - Tex: Court of Appeals 2014 [1st District: No 01-
13-00277-CV] (full text) addresses a recent case where a governmental official claimed sovereign
and judicial immunity. (“The judges' motion to dismiss alleged both judicial immunity and
sovereign immunity. The order granting dismissal did not specify the basis for dismissal. If
dismissal was proper under either theory, the trial court's judgment will be affirmed. See Guar.
Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986); In re Estate of Hutchins, 391
S.W.3d 578, 585 (Tex. App.-Dallas 2012, no pet.) Because we conclude that dismissal based on
judicial immunity was proper, we do not reach the issue of sovereign immunity.”)

-1-
 QUESTIONS OF LAW

Does TEX. CIV. PRAC & REM. CODE 51.015 permit the taxation of cost in an
interlocutory appeal filed under TEX. CIV. PRAC. & REM. CODE 51.014(a)(8)?

Does TEX. CIV. PRAC. & REM. CODE 51.014(a)(8) grant an appellate court
authority to review both immunity claims when a governmental official claims
official and individual immunity?

GROUNDS FOR RECONSIDERATION

The Adams respectfully requests the Court to reconsider (1) the Judgment

taxing costs of court in an interlocutory appeal filed under TEX. CIV. PRAC. &

REM. CODE (“CODE”) 51.014(a)(8). 51.0152 does not permit awarding of cost in

an appeal filed under CODE 51.014(a)(8). No party in this appeal has a statutory

right to attorney fees. A Motion to Correct Judgment is also pending before this

Court.

(2) The Texas Supreme Court affirms that CODE 51.014(a)(8) requires

complete resolution all jurisdictional pleas, holding that “a plea to the jurisdiction

challenges the court's authority to decide a case.” “When assessing a plea to the

jurisdiction, our analysis begins with the live pleading.” “…[W]e must consider such

2
See CODE Sec. 51.015.” In the case of an appeal brought pursuant to Section 51.014(6), if the
order appealed from is affirmed, the court of appeals shall order the appellant to pay all costs and
reasonable attorney fees of the appeal; otherwise, each party shall be liable for and taxed its own
costs of the appeal.

-2-
evidence when necessary to resolve the jurisdictional issue”, “[w]e must grant the

plea to the jurisdiction if the plaintiff's pleadings affirmatively negate the existence

of jurisdiction, “[a]nd we must grant the plea if the defendant presents undisputed

evidence that negates the existence of the court's jurisdiction.” Heckman v.

Williamson County, 369 SW 3d 150 - Tex: Supreme Court 2012 (citing Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000), Tex. Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226-227 (Tex.2004). The issue of immunity evokes

subject matter jurisdiction of the trial court. Subject matter jurisdiction cannot be

waived or conferred by agreement, can be raised at any time, and must be considered

by a court sua sponte. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379

(Tex. 2006) (Brister, J., concurring) (citing Univ. of Tex. Sw. Med. Ctr. at Dallas v.

Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004)); see also Waco Indep. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 850 (Tex.2000).

“The inquiry is not whether section 51.014(a) grants appellate courts authority

to review an immunity claim; rather, it is whether section 51.014(a) divests appellate

courts of such authority. We conclude that it does not.” Rusk State Hospital v. Black,

392 SW 3d 88 - Tex: Supreme Court 2012 This Court has jurisdiction to review the

plea to the jurisdiction de novo, the trial court granted both of Christopher A. Prines

jurisdictional pleas in a single order and the Adams were granted an appeal under

CODE 51.014(a)(8).

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 (3) As the Court obtained jurisdiction to address the issue of sovereign

immunity, Tex. R. App. P. 29.6 affords this Court jurisdiction over the interlocutory

issue with respect to individual immunity as it impairs the effectiveness of the relief

sought on appeal, the sole purpose of a plea to jurisdiction is to determine whether

the trial court has authority to act. The trial court must determine at its earliest

opportunity whether it has the constitutional or statutory authority to decide the case

before allowing the litigation to proceed. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d at 226 (Tex.2004).

The main purpose of the interlocutory appeal statute is to increase efficiency

of the judicial process. Rusk State Hospital v. Black, 392 SW 3d 88 - Tex: Supreme

Court 2012 (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.

2007). The ruling as it stands (1) severs Christopher A. Prine’s immunity claims into

two immunity rulings without resolving whether the question of law as to whether

the trial court has jurisdiction over claims in his individual capacity, (2) would

require Adams to wait until a final judgment issues for the interlocutory

jurisdictional order to be determined.

REQUEST FOR RELIEF

Adams requests the following relief: (1) removal of taxation of costs in

accordance with TEX. CIV. PRAC. & REM. CODE 51.015 (2) Render a judgment

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that either affirms or reverses the trial court order granting Christopher A. Prine’s

plea to jurisdiction in his individual capacity to resolve the issue of jurisdiction.

Dated: December 24, 2015

Respectfully submitted,
Respectfully submitted, /s/: Maxine Adams
Respectfully submitted,
/s/: Cecil Adams Maxine Adams
/s/: Maxine Adams
Cecil Adams 5510
MaxineS. Rice
Adams#1206
5510 S. Rice #1206 Houston, Texas
5510 S. Rice 77081
#1206
Houston, Texas 77081 713.840.0330
Houston, Texas 77081
713.840.0330 cecillovesmax@sbcglobal.net
713.840.0330
cecillovesmax@sbcglobal.net Pro Se
cecillovesmax@sbcglobal.net
Pro Se Pro Se

CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure 9.2(c)(1), I certify that
a copy of this Motion was served on the following parties by e-service through a
government approved electronic filing system via email on December 24, 2015.

Vince Ryan, Esq.
Harris County Attorney
vince.ryan@cao.hctx.net

Clinton Gambil Senior
Assistant County Attorney
clinton.gambill@cao.hctx.net

Brian A. Quintero
Esq. Senior Assistant County Attorney
brian.quintero@cao.hctx.net
1019 Congress, 15th Floor
Houston, Texas 77002
p. 713.274.5173 f. 713.437.8633
ATTORNEYS FOR CHRIS DANIEL AHARRIS COUNTY

-5-
Timothy J. Henderson
6300 West Loop South, Suite 280
Bellaire, Texas 77401
timhenderson@msn.com
p. 713.667.7878 f. 713.668.5697
COUNSEL FOR REBECCA ROSS

Jayson Booth, Esq.
3730 Kirby Drive, Suite 777
Houston, Texas 77098
jbooth@boothricheylaw.com
713.333.0377 713.526.1175 (fax)
COUNSEL FOR KATHLEEN KEESE

Christian Cobe Vasquez
Assistant Attorney General
P.O. Box 12548, Capitol Station Austin,
Texas 78711
christin.cobe@texasattorneygeneral.gov
p. (512) 463-2080 f. (512) 495-9139 (fax)
COUNSEL FOR CHRISTOPHER PRINE

/s/: Maxine Adams
Maxine Adams

/s/: Cecil Adams
Cecil Adams

-6-
 APPENDIX

APPENDIX 1 [OPINION AND JUDGMENT]…………………………………8

APPENDIX 2 [James v. Underwood, 438 SW 3d 704 - Tex: Court of Appeals 2014
[1st District: No 01-13-00277-CV]……………………………………………….9

7
 APPENDIX 1

OPINION AND JUDGMENT

8
 Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00287-CV

Cecil ADAMS and Maxine Adams,
Appellants

v.

HARRIS COUNTY and Christopher A. Prine, Clerk of the First Court of Appeals
Appellees

From the 269th Judicial District Court, Harris County, Texas
Trial Court No. 2014-35653
Honorable Dan Hinde, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: December 9, 2015

AFFIRMED IN PART AND DISMISSED FOR LACK OF JURISDICTION IN PART

Maxine and Cecil Adams filed this interlocutory appeal, complaining of the trial court’s

orders denying their motion to dismiss Harris County’s interpleader action and granting

Christopher A. Prine’s plea to the jurisdiction. We affirm the trial court’s order dismissing the

Adamses’ claims against Christopher A. Prine in his official capacity as Clerk of the First Court

of Appeals. We dismiss the rest of the appeal for lack of jurisdiction.
 04-15-00287-CV

BACKGROUND

This litigation arose as a result of a landlord-tenant dispute between the Adamses and

Rebecca Ross. A lawsuit between them in the 269th Judicial District Court of Harris County,

Texas, resulted in a judgment in favor of the Adamses. The Adamses recovered part of the

judgment through a writ of garnishment, and Ross deposited the balance due on the judgment into

the registry of the court. The Adamses appealed the judgment to the First Court of Appeals, and

in August 2013, the court of appeals dismissed the appeal for want of prosecution. Adams v. Ross,

No. 01-11-00552-CV, 2013 WL 4003757 (Tex. App.—Houston [1st Dist.] Aug. 2, 2013, pet.

denied) (per curiam, mem. op.). The judgment assessed all of the costs of the appeal against

Maxine Adams and ordered the Clerk of the Court to issue a statement of costs with the mandate.

The court of appeals’ mandate issued April 4, 2014. The same day, Christopher A. Prine, Clerk

of the First Court of Appeals, prepared and issued a bill of costs in Appeal No. 01-11-00552-CV.

The bill of costs indicated that a number of items, including fees for preparing parts of the appellate

record, remained unpaid or that the status of payment was unknown.

In June 2014, Harris County filed a petition in interpleader in the district court, alleging

that the Harris County District Clerk is custodian of the funds Rebecca Ross previously deposited

into the registry of the court. The petition alleged competing claims to the funds had been made

by the Adamses, Ross, the Harris County District Clerk, the court reporter, and Prine, as Clerk of

the First Court of Appeals. Prine disclaimed any interest in the interpleaded funds, and Harris

County nonsuited him from the interpleader action. The Adamses subsequently filed a motion to

dismiss the interpleader action, which the trial court denied by an order signed March 13, 2015.

The Adamses also filed counter and cross claims against several parties, including an action

under 42 U.S.C. § 1983 against Prine. The Adamses’ live pleading alleges that in the bill of costs,

Prine “systematically over billed for each appellate record filed in the Court of Appeals, and
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 04-15-00287-CV

charged fees for appellate records that the Harris County [sic] documented as no amount due” and

that Prine and the Harris County District Clerk “falsified court records individually or collectively

to deprive Adams of property without due process.” The Adamses assert that “Christopher Pine

[sic] acting in his individual capacity as the Clerk of the 1st Court of Appeals in performing

ministerial billing responsibilities” proximately caused them to be deprived of property without

due process of law, in violation of their rights under the Fourteenth Amendment. The Adamses

sought damages “from Christopher Prine individually for falsified billing entries resulting in costs

not associated with [the] appeal and punitive damages.”

Prine filed a plea to the jurisdiction based on the pleadings, asserting he has sovereign and

quasi-judicial immunity from the Adamses’ suit and from liability for the damages claimed. The

trial court granted Prine’s plea and signed an order dismissing the Adamses’ claims against Prine

with prejudice. This appeal followed.

DENIAL OF MOTION TO DISMISS INTERPLEADER ACTION

The Adamses moved to dismiss Harris County’s interpleader suit on the ground that the

County had failed to allege or present evidence on one or more of the elements of an interpleader

action. The trial court denied the motion. This court does not have jurisdiction to consider

immediate appeals of interlocutory orders unless a statute explicitly provides such jurisdiction.

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).1 The Adamses’ notice of

appeal asserts that an interlocutory appeal of this order is authorized by Texas Rule of Appellate

Procedure 29.6. Rule 29.6 provides that while an appeal from an interlocutory order is pending,

the appellate court may review:

(1) a further appealable interlocutory order concerning the same subject matter; and

1
We must inquire into our jurisdiction to consider an appeal even if the parties have not challenged appellate
jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).

-3-
 04-15-00287-CV

(2) any interlocutory order that interferes with or impairs the effectiveness of the relief
sought or that may be granted on appeal.

TEX. R. APP. P. 29.6. An order denying a motion to dismiss an interpleader petition is not

immediately appealable. See Law Office of Henry Gates Steen Jr., P.C. v. Eagle Pass Indep. Sch.

Dist., 293 S.W.3d 792, 794 (Tex. App.—San Antonio 2009, no. pet.) (holding order allowing

interpleader action to go forward is an unappealable interlocutory order). Because the order is not

appealable, Rule 29.6(1) does not apply. In order for Rule 29.6(2) to apply, the Adamses must

establish that the trial court’s order interferes with or impairs the effectiveness of any relief that

may be granted in this appeal. The Adamses’ brief does not contain any argument or authority

directed to this order — either on the merits of the order or in support of our exercising jurisdiction

over the order. We conclude we lack jurisdiction to review the order. Therefore we dismiss for

lack of jurisdiction the Adamses’ appeal of the trial court’s order denying their motion to dismiss

Harris County’s interpleader action.

PLEA TO THE JURISDICTION

Prine’s plea to the jurisdiction asserted grounds for dismissing both official capacity and

individual capacity claims against him. The trial court’s order sustained the plea in its entirety and

dismissed all of the Adamses’ claims against Prine with prejudice. 2 This court generally has

jurisdiction to hear appeals only from final judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d

266, 272 (Tex. 1992). The trial court’s order dismissing the Adamses’ claims with prejudice is

not final because other claims and parties remain pending in the trial court. We have jurisdiction

to review the trial court’s interlocutory orders only if expressly authorized by statute. Koseoglu,

233 S.W.3d at 840.

2
The parties dispute whether the Adamses’ pleading asserted both individual and official capacity claims against
Prine. For purposes of this appeal, we construe the Adamses’ pleading broadly and assume that official capacity
claims as well as individual capacity claims were pleaded.

-4-
 04-15-00287-CV

The Adamses contend that section 51.014(a)(8) of the Texas Civil Practice and Remedies

Code authorizes us to exercise jurisdiction over the trial court’s interlocutory dismissal order. That

section provides:

A person may appeal from an interlocutory order of a district court . . . that . . .
grants or denies a plea to the jurisdiction by a governmental unit as that term is
defined in Section 101.001.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2015). 3 “We strictly construe Section

51.014(a) as ‘a narrow exception to the general rule that only final judgments are appealable.’”

Koseoglu, 233 S.W.3d at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355

(Tex. 2001)).

Official Capacity Claims

Under Texas law, a suit against a government employee in his official capacity is usually

a suit against his government employer. Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex.

2011). A state official sued in his official capacity may invoke the sovereign immunity from suit

held by the governmental unit itself because the suit is not one against the official personally; the

real party in interest is the governmental unit. Koseoglu, 233 S.W.3d at 844 (citing Kentucky v.

Graham, 473 U.S. 159, 166 (1985)). A state official sued in his official capacity therefore may

challenge the trial court’s jurisdiction on the grounds of sovereign immunity by filing a plea to the

jurisdiction, and the trial court’s ruling on the plea is within the scope of section 51.014(a)(8). Id.

at 843.

3
The definition of “governmental unit” in section 101.001 of the Texas Civil Practice and Remedies Code includes:

this state and all the several agencies of government that collectively constitute the government of
this state, including other agencies bearing different designations, and all departments, bureaus,
boards, commissions, offices, agencies, councils, and courts;

TEX. CIV. PRAC. & REM. CODE ANN. 101.001(3)(A) (West Supp. 2015) (emphasis added).

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 04-15-00287-CV

Prine is an officer or employee of the First Court of Appeals, which is an agency of the

State of Texas and a “governmental unit” within the meaning of section 101.001(3)(A) of the

Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A).

A suit against Prine in his official capacity as the Clerk of the First Court of Appeals is effectively

against the governmental unit, and Prine may assert the governmental unit’s immunities from suit

in a plea to the jurisdiction. See Koseoglu, 233 S.W.3d at 843. The court’s order granting the plea

filed by Prine in his official capacity is appealable under section 51.014(a)(8). See id.

Prine’s plea to the jurisdiction argued that a section 1983 suit against Prine in his official

capacity is barred by sovereign immunity and by the Eleventh Amendment. We agree. The

Eleventh Amendment to the United States Constitution bars a suit against the State in state court

unless the State waives its immunity or Congress abrogates it. Alden v. Maine, 527 U.S. 706, 754

(1999); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010). In enacting 42

U.S.C. § 1983, Congress did not abrogate the states’ Eleventh Amendment immunity. Quern v.

Jordan, 440 U.S. 332, 337–45 (1979); see also Hafer v. Melo, 502 U.S. 21, 25, 27 (1991) (holding

suits against state officials in their official capacity are suits against the State, and section 1983

does not authorize suits against them). We therefore hold the trial court did not err in sustaining

the plea to the jurisdiction filed by Prine in his official capacity and affirm the order dismissing

the Adamses’ claims against Prine in his official capacity.

Individual Capacity Claims

The Adamses also challenge the trial court’s order dismissing their section 1983 claims

against Prine in his individual capacity for actions he took under the authority of his office. Prine’s

plea to the jurisdiction asserted the defense of quasi-judicial immunity to the individual-capacity

section 1983 claims.

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 04-15-00287-CV

A section 1983 claim against a governmental official or employee in his individual capacity

for actions taken under the authority of his office seeks to impose personal monetary liability on

the officer or employee. See Hafer, 502 U.S. at 25. It is not a claim against a governmental unit,

and a person sued only in his individual capacity may not assert the governmental unit’s sovereign

immunity. City of Leon Valley v. Wm. Rancher Estates Joint Venture, No. 04-14-00542-CV, 2015

WL 2405475, at *2 (Tex. App. May 20, 2015, no pet.); see Harrison v. Tex. Dep’t of Criminal

Justice–Institutional Div., 915 S.W.2d 882, 887-89 (Tex. App.—Houston [1st Dist.] 1995, no pet.)

(sovereign immunity does not bar a section 1983 suit against individual state officials in their

individual capacities, even if they were acting in their official capacities when they took the actions

complained of). A governmental official or employee sued in his individual capacity may assert

quasi-judicial immunity as an affirmative defense; however, it is a personal defense, not one

asserted by a governmental unit or by a state employee sued in his official capacity. See Turner v.

Houma Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000).

The plea to the jurisdiction filed by Prine in his individual capacity was based on his claim

of quasi-judicial immunity, a personal defense that is not based on the governmental unit’s

immunity. Therefore, the trial court’s ruling on the plea was not one that “grant[ed] or denie[d] a

plea to the jurisdiction by a governmental unit,” and the Adamses’ interlocutory appeal is not

authorized by section 51.014(a)(8). See Sanders v. City of Grapevine, 218 S.W.3d 772, 776 (Tex.

App.—Fort Worth 2007, pet. denied) (holding trial court’s order granting plea to jurisdiction and

dismissing with prejudice claims against city officials in their individual capacities was not an

appealable interlocutory order under section 51.014(a)(8)). We therefore dismiss this part of the

appeal for lack of jurisdiction.

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 04-15-00287-CV

CONCLUSION

The trial court’s order dismissing with prejudice Maxine and Cecil Adamses’ claims

against Christopher A. Prine in his official capacity as the Clerk of the First Court of Appeals is

affirmed. The Adamses’ appeal of the trial court’s orders (1) denying their motion to dismiss

Harris County’s interpleader petition and (2) granting the plea to the jurisdiction filed by

Christopher Prine in his individual capacity and dismissing the individual capacity claims against

him are dismissed for lack of jurisdiction.

Luz Elena D. Chapa, Justice

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 Fourth Court of Appeals
San Antonio, Texas

JUDGMENT
No. 04-15-00287-CV

Cecil ADAMS and Maxine Adams,
Appellants

v.

HARRIS COUNTY and Christopher A. Prine, Clerk of the First Court of Appeals
Appellees

From the 269th Judicial District Court, Harris County, Texas
Trial Court No. 2014-35653
Honorable Dan Hinde, Judge Presiding

BEFORE JUSTICE ANGELINI, JUSTICE MARTINEZ, AND JUSTICE CHAPA

In accordance with this court’s opinion of this date, the trial court’s order dismissing with
prejudice Maxine and Cecil Adamses’ claims against Christopher A. Prine in his official capacity
as the Clerk of the First Court of Appeals is AFFIRMED. The appeals of the trial court’s orders
denying Maxine and Cecil Adamses’ motion to dismiss Harris County’s interpleader petition and
granting the plea to the jurisdiction filed by Christopher Prine in his individual capacity are
DISMISSED FOR LACK OF JURISDICTION.

We ORDER that Harris County and Christopher A. Prine, Clerk of the First Court of
Appeals, recover their costs of this appeal from appellants Cecil Adams and Maxine Adams.

SIGNED December 9, 2015.

_____________________________
Luz Elena D. Chapa, Justice
APPENDIX 2:
James v. Underwood, 438 SW 3d 704 - Tex: Court of Appeals 2014 [1st District: No
01-13-00277-CV]

9
 438 S.W.3d 704 (2014)

Carolyn Calkins JAMES, Individually and as Next Friend of her Elderly
Mother, Mary Olive Calkins, Appellant
v.
Honorable Olen UNDERWOOD, Honorable Patrick Sebesta and Fidelity And
Deposit Company of Maryland, Richard Stephen Calkins as Agent in Fact for
Mary Olive Calkins and Michael Easton, Individually and as Assignee of
Richard Stephen Calkins, Appellees.
No. 01-13-00277-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 8, 2014.
Rehearing Overruled July 17, 2014.

706*706 Kenneth A. Zimmern, Zimmern Law Firm, P.C., G. Wesley Uroquhart,
P.C., Houston, TX, for Appellant.

Duncan L. Clore, Christine D. Roseveare, Strasburger & Price, L.L.P., Dallas, TX,
David A. Harris, Assistant Attorney General, Austin, TX, Susan C. Norman,
Houston, TX, Michael Easton, Richmond, TX, for Appellees.

Panel consists of Justices KEYES, BLAND, and BROWN.

OPINION

PER CURIAM.

Carolyn James and her brother Richard Steven Calkins are in a legal dispute over
who has the right to manage the assets of 707*707 their mother, Mary Calkins. Their
controversy has spawned multiple lawsuits filed in various district and probate
courts in at least two counties resulting in no less than 11 issued appellate decisions
— thus far — from the First and Fourteenth Courts of Appeals.[1] Michael Easton,
an individual who is not related to James or Calkins, has repeatedly intervened, sued
and been sued in the dispute between the siblings.[2]

In this latest iteration, James sued two judges who have presided over aspects of her
on-going legal dispute with Calkins and Easton: Judge Underwood and Judge
Sebesta. She also sued Judge Sebesta's surety, Fidelity and Deposit Company of
Maryland. The judges filed a motion to dismiss James's claims based on the doctrines
of judicial and sovereign immunity. Fidelity also filed a motion to dismiss based on
its defenses that James lacked standing and capacity to sue and that the statute James
relied on as an exception to judicial immunity did not apply. The trial court granted
the motions to dismiss.

Michael Easton and James's brother, Calkins, intervened in the suit after the judges
were dismissed but before Fidelity's dismissal. They requested sanctions against
James and her attorneys. After all defendants had been dismissed, Easton and James
filed a notice of non-suit, allowing the judgment to become final.

James timely appealed the trial court's rulings granting dismissal of James's claims
against all defendants. She asserts that the trial court erred in four regards: (1)
denying James's special exception to the judges' and Fidelity's motions to dismiss;
(2) granting dismissal to the judges on the theory of judicial immunity; (3) failing to
permit a claim against Judge Sebesta to the extent of the judge's surety bond; and (4)
granting dismissal to Fidelity on the theories of lack of standing and lack of capacity.

We affirm.

Background
The underlying facts have been detailed in earlier appellate opinions;[3] therefore,
only those facts necessary for the resolution of the issues currently before the Court
will be included here.[4]

James initiated proceedings to have a guardian appointed for her mother in 2008.
Calkins fought the appointment. Easton, alleged to be the legal assistant of the
attorney representing Calkins, intervened "pro se." Both Calkins and Easton
sought 708*708 to recuse the judge assigned to the probate case, Judge Mike Wood.
Regional Presiding Judge Olen Underwood assigned judges to hear that and
subsequent recusal motions filed by Calkins and Easton. Easton challenged — on
procedural grounds — the orders denying recusal and, eventually, Judge Underwood
issued an order granting recusal of Judge Wood. Subsequently, eight judges were
assigned the probate matter, each of whom either were recused or informed Judge
Underwood that they were "withdrawing or resigning from the cases." Judge Sebesta
was the ninth judge assigned to the probate case. Fidelity and Deposit Company of
Maryland is the surety for Judge Sebesta.

Judge Sebesta entered an order voiding prior orders, including the appointment of a
temporary guardian over James's mother, based on a lack of in personam jurisdiction
over the proposed ward, whom James had not properly served. James filed motions
seeking to require Calkins and Easton to answer discovery in the probate matter, to
dismiss Easton and Calkins's opposition to appointment of a guardian, and to require
an accounting of funds removed from her mother's estate.

James filed suit against Judge Underwood and Judge Sebesta, alleging
"constitutional due process violations." She included Fidelity in her suit, as surety
for Judge Sebesta. James's petition asserts that she has sued in dual capacities:
individually and as next friend of her mother.
All defendants answered and filed motions to dismiss. The judges' motion to dismiss
was granted. Less than one month later, Easton and Calkins intervened in the case,
requesting sanctions against James and her attorneys. A couple of months later, the
trial court granted Fidelity's motion to dismiss. Easton and Calkins nonsuited their
intervention. James appealed the dismissal of her claims against Judge Underwood,
Judge Sebesta, and Fidelity.

Subject Matter Jurisdiction

A. Standard of Review

Subject-matter jurisdiction is essential for a court to have the authority to resolve a
case.See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999); Mann v.
Gabriel,No. 11-10-00265-CV, 2012 WL 2865811, at *2 (Tex.App.-Eastland July
12, 2012, no pet.) (mem. op.). Whether a trial court has subject-matter jurisdiction
is a threshold inquiry that can be addressed by the court sua sponte and at any
time. See In re G.S.G.,145 S.W.3d 351, 353 (Tex. App.-Houston [14th Dist.] 2004,
no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443
(Tex.1993)); Mann, 2012 WL 2865811, at *2. Whether the trial court has subject-
matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res.
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The determination of whether a trial court has subject-matter jurisdiction begins with
the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the burden to plead
facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of
Bus., 852 S.W.2d at 446. We construe the pleadings liberally in favor of the pleader,
look to the pleader's intent, and accept as true the pleader's factual
allegations. See Miranda, 133 S.W.3d at 226; City of Fort Worth v. Crockett, 142
S.W.3d 550, 552 (Tex.App.-Fort Worth 2004, pet. denied). When a plaintiff fails to
plead facts that establish jurisdiction, but the petition does not affirmatively
demonstrate incurable jurisdictional defects, the issue is one of pleading sufficiency
and the plaintiff should be afforded the 709*709 opportunity to amend. See Peek v.
Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex.1989); Tex. Dep't of
Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974). On the other hand, if the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiff an opportunity to
amend.See Peek, 779 S.W.2d at 804-05; Cnty. of Cameron v. Brown, 80 S.W.3d 549,
555 (Tex.2002).

B. Judicial Immunity

In her second issue, James argues that the trial court erred by dismissing her claims
against Judges Underwood and Sebesta on the grounds of judicial immunity.

The judges' motion to dismiss alleged both judicial immunity and sovereign
immunity. The order granting dismissal did not specify the basis for dismissal. If
dismissal was proper under either theory, the trial court's judgment will be
affirmed. See Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648
(Tex.1986); In re Estate of Hutchins, 391 S.W.3d 578, 585 (Tex. App.-Dallas 2012,
no pet.) Because we conclude that dismissal based on judicial immunity was proper,
we do not reach the issue of sovereign immunity.

Immunity from suit deprives a trial court of subject-matter jurisdiction. Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). The Supreme
Court has stated repeatedly that "it is a general principle of the highest importance
to the proper administration of justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself." Bradley v. Fisher, 80 U.S. 335,
347, 13 Wall. 335, 20 L.Ed. 646 (1871); Mireles v. Waco, 502 U.S. 9, 10, 112 S.Ct.
286, 287, 116 L.Ed.2d 9 (1991);Stump v. Sparkman, 435 U.S. 349, 355, 98 S.Ct.
1099, 1104, 55 L.Ed.2d 331 (1978);see also Dallas Cnty. v. Halsey, 87 S.W.3d 552,
554 (Tex.2002); Twilligear v. Carrell,148 S.W.3d 502, 504 (Tex.App.-Houston
[14th Dist.] 2004, pet. denied). Thus, judges are afforded immunity from suit for
their judicial conduct. See Mireles, 502 U.S. at 10, 112 S.Ct. at 287.

Judicial immunity provides immunity from suit, not just from the ultimate
assessment of damages. See id., 502 U.S. at 11, 112 S.Ct. at 288; Halsey, 87 S.W.3d
at 554. Accordingly, allegations of bad faith or malice will not overcome immunity,
given that such allegations would require discovery and possibly trial to
resolve. See Mireles, 502 U.S. at 11, 112 S.Ct. at 288; Pierson v. Ray, 386 U.S. 547,
554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). "Judges enjoy absolute judicial
immunity from liability for judicial acts, no matter how erroneous the act or how
evil the motive, unless the act is performed in the clear absence of all
jurisdiction." Alpert v. Gerstner, 232 S.W.3d 117, 127 (Tex. App.-Houston [1st
Dist.] 2006, pet. denied) (quoting City of Houston v. W. Capital Fin. Servs.
Corp., 961 S.W.2d 687, 689 (Tex.App.-Houston [1st Dist.] 1998, pet. dism'd
w.o.j.)).

There are two sets of circumstances in which immunity is overcome. First, a judge
is not immune from liability for nonjudicial actions, described as actions not taken
in the judge's judicial capacity. See Mireles, 502 U.S. at 11, 112 S.Ct. at
288; Twilligear, 148 S.W.3d at 504. Second, a judge is not immune from actions,
even those judicial in nature, if taken in the "complete absence of all
jurisdiction." Mireles, 502 U.S. at 12, 112 S.Ct. at 288.

1. Judicial versus nonjudicial acts

710*710 The factors we consider in determining whether a judge's act is "judicial"
are whether (1) the act complained of is one normally performed by a judge, (2) the
act occurred in the courtroom or an appropriate adjunct such as the judge's chambers,
(3) the controversy centered around a case pending before the judge, and (4) the act
arose out of an exchange with the judge in the judge's judicial capacity. Bradt v.
West, 892 S.W.2d 56, 67 (Tex. App.-Houston [1st Dist.] 1994, writ denied); see
also Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.1993). These factors are
broadly construed in favor of immunity. Bradt, 892 S.W.2d at 67. Not all factors
must be met for immunity to exist. Id. In some circumstances, immunity may exist
even if only one factor is met. Id.(citing Adams v. McIlhany, 764 F.2d 294, 297 n. 2
(5th Cir.1985)). The factors are not required to be given equal weight; rather, they
are weighted according to the facts of the particular case. Bradt, 892 S.W.2d at 67.

In considering whether the act complained of is one normally performed by a judge,
we ask whether the action is a "function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity."Mireles, 502 U.S. at 11, 112 S.Ct. 288; Twilligear, 148 S.W.3d at 504. The
relevant inquiry is the "nature" and "function" of the act, not the "act
itself." Mireles, 502 U.S. at 13, 112 S.Ct. at 288; Stump, 435 U.S. at 362, 98 S.Ct. at
1107. This distinction is necessary, otherwise any act characterized as improper
would be deemed nonjudicial because "an improper or erroneous act cannot be said
to be normally performed by a judge." Mireles, 502 U.S. at 12, 112 S.Ct. at
288 (concluding that judge claiming judicial immunity performed judicial act when
he directed police to bring counsel in pending case before court, even though
plaintiff alleged that judge instructed police to use excessive force which would be
outside his authority to do).

In Twilligear, our sister court concluded that a judge accused of "negligence and
gross negligence in failing to adequately oversee expenditures from a guardianship
account" was exercising judicial action because "the actions required of probate
judges under section 671 of the Probate Code are directly related to conducting the
guardianship proceedings pending in their courts ... [and thus are] protected by
judicial immunity."Twilligear, 148 S.W.3d at 505. Thus, if the nature of the action
taken by the judge or the function he performed through that action is one "normally
performed by a judge" and the complaining party "dealt with the judge in his judicial
capacity," then the act is considered judicial. See Mireles, 502 U.S. at 11-12, 112
S.Ct. at 288; Twilligear, 148 S.W.3d at 504.

James's petition contends that Judge Underwood was required to sever a claim in
intervention brought by Easton against Judge Wood, who was presiding over the
underlying probate matter at that time. Judge Underwood's refusal to effectuate that
severance forms the basis of James's contention that Judge Sebesta had no
jurisdiction to subsequently preside over the probate matter. James's specific
contention is that Judge Sebesta "continue[d] to ignore the fact that he ha[d] no
jurisdiction because [Judge] Underwood never had jurisdiction to appoint [Judge]
Sebesta to preside over the subject guardianship and trust cases because [the
intervention] was statutorily severed." She further complains of Judge Underwood's
"wrongful recusal of the originally assigned Judge Mike Wood" and appointment of
a replacement, contending that a regional presiding judge may not grant
a 711*711 motion to recuse that has already been denied by another judge assigned
the motion.
We apply the Bradt factors to determine whether these actions are judicial or
nonjudicial, noting that nonjudicial acts are outside the protection of judicial
immunity. First, the act of ruling on motions to recuse and replacing a disqualified
judge with a replacement judge are actions normally taken by a presiding judge.
TEX. GOV'T CODE ANN. §§ 25.002201, 25.00255 (West Supp. 2013) (detailing
method for recusal and assignment of replacement judge in statutory probate courts).
Additionally, the act of presiding over a probate matter is an action normally taken
by a probate judge. TEX. GOV'T CODE ANN. § 25.0026 (West 2004) (discussing
statutory probate court judges' powers and duties). Thus, the first factor supports the
conclusion that the actions on which James complains were judicial.

James's characterization of these acts as neglectful, or even malicious, does not
convert them to nonjudicial acts. See Mireles, 502 U.S. at 11, 112 S.Ct. at
288 (instructing that proper analysis is whether action is "function normally
performed by a judge," not whether specific action taken was permitted and without
regard to judge's intent);Pierson, 386 U.S. at 554, 87 S.Ct. at 1218 ("It is a judge's
duty to decide all cases within his jurisdiction that are brought before him, including
controversial cases that arouse the most intense feelings in the litigants. His errors
may be corrected on appeal, but he should not have to fear that unsatisfied litigants
may hound him with litigation charging malice or corruption. Imposing such a
burden on judges would contribute not to principled and fearless decisionmaking but
to intimidation.")

The two judges' actions occurred in court; therefore, the second factor also supports
a finding that the judges' actions were judicial in nature. Bradt, 892 S.W.2d at 67.

The third factor is whether the controversy centered around a case pending before
the judge. The underlying probate matter was initiated by James and assigned to a
large number of probate judges. The rulings that James contends were erroneous and
led to this suit against the judges all occurred while the probate matter was pending
in the probate courts. Accordingly, this factor supports the conclusion that the judges'
actions were judicial. See id. To the extent James contends that the judges were not
the proper judicial actors to issue a ruling in her mother's probate matter due to
procedural errors, that argument does not make the actions less judicial. See id. at 68
(holding that judge had jurisdiction, for judicial immunity purposes, to sign an order
even if that order would be determined void due to pending motion to recuse judge).

The final factor is whether the act arose out of an exchange with the judge in the
judge's judicial capacity. While James disputes that the judges should have been the
ones to issue ruling in the case, the parties appeared before the judges and interacted
with them in the judges' judicial capacity and not in any alternative capacity. The
judges received motions and evidence and issued rulings on those motions. They
acted in a judicial capacity in doing so, whether their rulings were correct or
not. See Mireles, 502 U.S. at 13, 112 S.Ct. at 288. Accordingly, this last factor
supports the conclusion that the judges' actions were judicial. Bradt, 892 S.W.2d at
67.

Having concluded that the judges' acts were judicial in nature, we next consider
whether the judges acted in a "complete absence of all jurisdiction." Mireles, 502
U.S. at 12, 112 S.Ct. at 288; Bradt, 892 S.W.2d at 68.

712*712 2. Complete absence of all jurisdiction

To overcome judicial immunity, the act must be either nonjudicial, as discussed
above, or have occurred in a complete absence of all jurisdiction. Bradt, 892 S.W.2d
at 67. InBradt, a litigant sued a state district judge, arguing that judicial immunity
did not attach because there was a recusal motion pending against the judge at the
time. This court rejected the argument, noting that the term "jurisdiction" has a
different meaning in the judicial-immunity context. Id. at 67-68. "Where a court has
some subject-matter jurisdiction, there is sufficient jurisdiction for immunity
purposes." Id. at 68 (quotingMalina, 994 F.2d at 1125); accord Harris v.
Deveaux, 780 F.2d 911, 916 (11th Cir.1986)(holding that judge acts in "clear
absence of all jurisdiction" only if judge "completely lacks subject matter
jurisdiction").

"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, 892 S.W.2d at 68; Mireles, 502 U.S. at 13, 112
S.Ct. at 288(involving judge alleged to have authorized police to use excessive force
in bringing attorney to judge's courtroom and concluding that judge had jurisdiction
to secure attorneys' presence before him, even if he did not have legal authority to
authorize excessive force; therefore, judge acted within jurisdiction); Malina, 994
F.2d at 1124(holding that judge had power to cite for contempt and to sentence;
therefore, judge who cited motorist for contempt and sentenced him to jail acted
within his jurisdiction for judicial immunity purposes, even though judge improperly
stopped motorist himself, privately used officer to unofficially "summon" motorist
to court, and charged motorist himself — none of which was permissible); Holloway
v. Walker, 765 F.2d 517, 523 (5th Cir.1985) (where judge was alleged to have
committed many illegal acts from bench, but there was "no question that he was
generally empowered to conduct proceedings of the sort he [was] conduct[ing] at the
time he allegedly committed illegal acts, acts were within his jurisdiction for judicial
immunity purposes).
Probate judges have jurisdiction to preside over probate cases, which is what Judge
Sebesta had been doing at the point that his actions became, in James's view,
actionable. TEX. GOV'T CODE ANN. § 25.0026. Further, administrative judges,
such as Judge Underwood, have the authority to assign matters to judges within their
region, rule on motions to recuse, and to effectuate recusal transfers. TEX. GOV'T
CODE ANN. §§ 25.002201, 25.00255. Accordingly, both of these judges had
jurisdiction to conduct proceedings of the sort that are the basis of James's complaint.

Importantly, immunity is not lost based on an allegation that the action taken had
procedural errors, even "grave" ones. See Bradt, 892 S.W.2d at 68 (holding that
judge had jurisdiction, for judicial immunity purposes, to sign order even if that
order would be determined void because motion to recuse judge was pending); see
also Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331
(1978).

In Stump, a judge was sued based on an allegation that he authorized the sterilization
of a 15-year-old girl without affording the child any notice or other procedural due
process.See id., 435 U.S. at 353-54, 98 S.Ct. at 1103-04. After the
judge 713*713 granted the motion filed by the child's mother, the mother had the
sterilization procedure performed all the while assuring the child that she was having
her appendix removed. Id. After the child reached adulthood and discovered the true
nature of the surgery, she sued, arguing that judicial immunity did not apply because
the judge's act of approving sterilization without notice or hearing was outside his
jurisdiction. See id., 435 U.S. at 360, 98 S.Ct. at 1106. The Supreme Court disagreed,
explaining that immunity attaches even if a judge's action in exercising his authority
is flawed in substance or procedure. See id., 435 U.S. at 359, 98 S.Ct. at 1106 (stating
that erroneous exercise of court's jurisdiction may affect validity of action taken but
does not make act any less "judicial"). In support of its conclusion, the Court noted
that the proper ruling if sterilization was improper would have been to deny the
motion rather to dismiss it for lack of jurisdiction. See id., 435 U.S. at 359, 98 S.Ct.
at 1106; see also In re J.B.H., No. 14-05-00745-CV, 2006 WL 2254130, *2
(Tex.App.-Houston [14th Dist.] Aug. 8, 2006, pet. denied) (mem. op.) (affirming
dismissal of claims against judge who had judicial immunity regarding order in
guardianship proceedings).

Thus, the question is not whether Judge Underwood acted improperly when he ruled
on a motion to recuse or assigned a probate matter to a judge or whether Judge
Sebesta acted improperly when he presided over the probate matter assigned to him,
allegedly without authority to act. The question is whether they had the necessary
jurisdiction to take that type of action, i.e., rule on a motion to recuse or preside over
a guardianship matter. They did.

Accordingly, we overrule issue two.

C. Liability under statutory exception to probate judge's immunity

In her third and fourth issues, James contends that the trial court erred by granting
the motion to dismiss filed by Judge Sebesta's surety, Fidelity, because a statutory
exception to judicial immunity applies. James argues that, even if Judge Sebesta has
broad judicial immunity, his surety can be liable up to the amount of Judge Sebesta's
statutory bond through a limited exception to judicial immunity found in the Texas
Estates Code. TEX. EST.CODE ANN. § 1201.003 (West 2014) (effective Jan. 1,
2014) (formerly codified as TEX. PROBATE CODE ANN. § 671(d) (West 2003)).

We have already concluded that judicial immunity applies to the types of actions
taken by Judges Underwood and Sebesta in this case. James's effort to invoke a
statutory exception to broad judicial immunity is an attempt to establish subject
matter jurisdiction. Whether a trial court has subject-matter jurisdiction is a threshold
inquiry that can be addressed by the court sua sponte and at any time. See In re
G.S.G., 145 S.W.3d 351, 353 (Tex.App.-Houston [14th Dist.] 2004, no
pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.
1993)).

To fall within a statutorily-created exception to judicial immunity, a plaintiff must
plead facts establishing the applicability of that provision; otherwise, courts have no
subject matter jurisdiction over a plaintiff's claims against a judge for judicial
acts. See Miranda,133 S.W.3d at 226 (determination of whether trial court has
subject-matter jurisdiction begins with plaintiff's pleading); Tex. Ass'n of Bus., 852
S.W.2d at 446 (stating that plaintiff has burden to plead facts affirmatively showing
that trial court has jurisdiction).

714*714 James argues that section 671 of the Texas Probate Code waives Judge
Sebesta's judicial immunity because the express terms of the statute places duties on
the probate judge that, if ignored, create liability. See Twilligear, 148 S.W.3d at
505 (holding that "judges have no liability for failing to perform their duties under
section 671 beyond whatever liability can be found, if any, on their bonds, as
expressly provided in that section.") Fidelity's position is that its principal, Judge
Sebesta, could not be liable to James under section 671 because those duties are
inapplicable given that no guardian was appointed.

Section 1201.003 of the Texas Estates Code, which is former section 671(d) of the
Probate Code, states that "[a] judge is liable on the judge's bond to those damaged if
damage or loss results to a guardianship or ward because of the gross neglect of the
judge to use reasonable diligence in the performance of the judge's duty under this
subchapter." TEX. EST.CODE ANN. § 1201.003 (emphasis added). This provision
provides a limited waiver of judicial immunity, allowing recovery for losses directly
tied to the judge's duties under the subchapter. Those duties include the use of
reasonable diligence to determine whether an appointed guardian is performing the
required duties, to at least annually examine the well-being of each ward and the
solvency of the appointed guardian's bond, to require new bonds from appointed
guardians when necessary, and to request the production of identifying
information. See TEX. EST.CODE ANN. § 1201.001-004 (West 2014) (formerly
TEX. PROB.CODE ANN. § 671(a-e) (West 2003)).

James repeatedly asserts in her pleading that Judge Sebesta had no jurisdiction to
manage a guardianship over her mother. "Carolyn maintains that Defendants
Underwood and Sebesta have never had jurisdiction to preside over the subject
Calkins's guardianship and trust cases and requests [the trial court to] sign and cause
to be entered a Declaratory Judgment, that Defendants Underwood and Sebesta
never had jurisdiction over the Calkins guardianship and trust cases, that all of
Defendants Underwood's and Sebesta's rulings and signed orders therein are void as
a matter of law and [award cost and fees]."

The trial court confirmed at the hearing on Fidelity's motion to dismiss that the order
appointing a temporary guardian had been declared void, leaving no recognized
guardian over James's mother. At that hearing, the trial court asked questions of the
attorney ad litem for James's mother, who confirmed that the original order
appointing a temporary guardian for James's mother had been voided by Judge
Sebesta because the court lacked in personam jurisdiction over the proposed ward
and that no judge had appointed a guardian for her following the voiding of the
original appointment. No party disputed those assertions. Thus the parties agree that
Judge Sebesta did not recognize an existing guardianship over James's mother.
To the extent any individual has a claim for damages arising from a probate judge's
neglectful management of a guardianship or a ward, the claim comes within the
subject matter jurisdiction of the courts only if those statutory duties have
attached. See TEX. EST.CODE ANN. § 1201.003 (specifying that liability is limited
to neglectful exercise of duties imposed by that subchapter). Without a guardian to
manage or with whom to interact to fulfill any statutorily-created duties, Judge
Sebesta could not have failed to fulfill the statutory duties. See Twilligear, 148
S.W.3d at 505 (holding that probate 715*715judges have no liability for failing to
perform their duties beyond whatever liability can be found for violation of duties
imposed within section 671).

If a party cannot invoke a statutorily-created exception to judicial immunity, a trial
court has no subject matter jurisdiction where judicial immunity would otherwise
apply. Accordingly, we conclude that James failed to meet her burden to demonstrate
subject matter jurisdiction over her claims against Fidelity. We overrule James's
third and fourth issues.

Special Exceptions

In her first issue, James contends that the trial court erred in denying her special
exceptions to the judges' motion to dismiss and to Fidelity's motion to dismiss.

A. Standard of review

Special exceptions may be used to challenge the sufficiency of a pleading. TEX.R.
CIV. P. 91; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998). The purpose of
a special exception is to compel the clarification of the opposing party's pleading
when that pleading is not sufficiently specific or fails to plead a cause of
action. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex.2007). A trial
court has broad discretion in ruling on special exceptions. See id. A trial court's
ruling will be reversed only if there has been an abuse of discretion. See Aldous v.
Bruss, 405 S.W.3d 847, 857 (Tex.App.-Houston [14th Dist.] 2013, no pet.).
Pleadings are liberally construed, but special exceptions are appropriate when a
pleading does not meet the threshold of "fair notice" of the pleader's contentions. See
id.

James specially excepted to both motions to dismiss. We turn first to the judges'
motion.

B. Special exceptions to judges' motion to dismiss

The judges' motion to dismiss alleges that James is suing them for actions taken in
their judicial capacity based on rulings they have made in the underlying probate
case, entitling them to judicial and sovereign immunity. Because we have already
concluded that judicial immunity applies, making other defensive theories moot, we
will limit our analysis of the special exceptions to that particular affirmative defense.

The judges' judicial immunity defense challenges the trial court's subject matter
jurisdiction. Whether a court has subject matter jurisdiction is a question of
law. Miranda,133 S.W.3d at 226. Whether a plaintiff has met her burden to allege
facts that affirmatively demonstrate a trial court's subject matter jurisdiction is also
a question of law. See id. The burden assigned the judges in raising this defensive
matter was simply to give fair notice of their claim of judicial immunity. TEX.R.
CIV. P. 45, 91. The judges' motion to dismiss adequately met that burden.

The judges had no burden to allege facts in support of their affirmative defense
because judicial immunity is analyzed first by reviewing the facts alleged in the
plaintiff's pleading — not the judge's answer or motion. See Miranda, 133 S.W.3d
at 226. James may not use the special exceptions procedure to force opposing party
judges to marshal evidence in support of their defensive claim; instead, it was
James's burden to plead facts to invoke the trial court's subject matter
jurisdiction. See id. Because the factual allegations contained in James's pleading
negate subject matter jurisdiction, we conclude that the trial court did not abuse its
discretion by denying James's special exceptions to the assertion 716*716 of judicial
immunity in the judges' motion to dismiss.

C. Special exceptions to Fidelity's motion to dismiss

Fidelity's motion to dismiss alleged judicial and sovereign immunity of its principal,
Judge Sebesta. James filed special exceptions to Fidelity's motion to dismiss,
contending that Fidelity could not adopt by reference assertions in Calkins's court
filings, noting Calkins's self-designation as a "non-party." See TEX.R. CIV. P. 58
(permitting adoption by reference of statements in pleadings). James further argued
that Fidelity's assertions contained in its motion to dismiss were conclusory and did
not give James fair notice of the basis for dismissal.

Fidelity filed a supplement to its motion to dismiss, arguing that dismissal is
appropriate because a surety cannot be liable on a bond issued to cover liability under
section 671 of the Probate Code when the plaintiff affirmatively pleads that the
probate judge being sued had no jurisdiction. TEX. PROB.CODE ANN. § 671 (West
2003) (repealed and currently codified as TEX. EST.CODE ANN. § 1201.001-.004
(West 2014) (effective Jan. 1, 2014)). The trial court subsequently denied James's
special exceptions to Fidelity's motion to dismiss.

As with the judges' motion to dismiss, James has wrongly assigned the burden of
proving or disproving jurisdiction to her opposing party. The pleader is required to
allege facts that affirmatively demonstrate the court's jurisdiction to hear a
case. See Tex. Ass'n of Bus., 852 S.W.2d at 446. It was not Fidelity's burden to plead
specific facts that would disprove subject matter jurisdiction. James, as the plaintiff,
had the initial burden of alleging facts and framing legal arguments that would
affirmatively demonstrate the trial court's jurisdiction to hear her
claims. Miranda, 133 S.W.3d at 225-26 (citing Texas Ass'n of Bus., 852 S.W.2d at
446). Unsupported legal conclusions do not suffice. SeeCreedmoor-Maha Water
Supply Corp. v. Tex. Comm'n on Envt'l Quality, 307 S.W.3d 505, 515-16 & nn. 7 &
8 (Tex. App.-Austin 2010, no pet.).

When necessary, we may consider evidence that the parties have submitted to
resolve jurisdictional issues, but we need not do so when subject matter jurisdiction
is negated by the allegations in the plaintiff's pleading. See Bland Indep. Sch.
Dist., 34 S.W.3d at 555 (stating that, when necessary, courts may consider evidence
beyond pleadings to decide subject matter jurisdiction); see also Bacon v. Tex.
Historical Comm'n, 411 S.W.3d 161, 170-71 (Tex.App.-Austin 2013, no
pet.) (permitting grant of plea to jurisdiction — when pleadings affirmatively negate
jurisdiction — without affording plaintiff opportunity to amend).

Because subject matter jurisdiction was negated through review of James's pleading,
the trial court did not need to rely on non-party factual assertions to decide the issue
of subject matter jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d at 555 (stating
that courts may consider evidence beyond pleadings to decide subject matter
jurisdiction, if necessary). Further, Fidelity had no burden to produce evidence in
support of its defense or to provide James a detailed explanation of how it negated
subject matter jurisdiction. Instead, under rule 45, Fidelity's pleading was adequate
if it gave James fair notice of its allegation. TEX.R. CIV. P. 45. We conclude that it
did. Accordingly, the trial court did not err in denying James's special exceptions to
Fidelity's motion to dismiss.

Having concluded that the trial court did not err in denying James's special
exceptions717*717 to the motions to dismiss, we overrule issue one.

Conclusion

We affirm the trial court's judgment. We dismiss all pending motions as moot.

[1] See Nos. 01-12-00445-CV, 01-11-00731-CV, 01-11-00734-CV, 01-11-00732-
CV, 01-11-00733-CV, 14-11-00053-CV, 01-12-00036-CV, 14-10-00471-CV, 01-
10-00751-CV, 01-10-00574-CV, 01-10-00413-CV, and 01-09-00623-CV.

[2] See, e.g., James v. Easton, 368 S.W.3d 799 (Tex.App.-Houston [14th Dist.] 2012,
pet. denied) (James appealed dismissal of temporary injunction suit against Easton
in which Easton was alleged to have written emails to James with pointed references
to violent movies that insinuating threats of physical harm).

[3] See, e.g., In re Estate of Calkins, No. 01-11-00731-CV, 2013 WL 4507923
(Tex.App.-Houston [1st Dist.] Aug. 22, 2013, no pet.).

[4] Many of the factual assertions contained in James's pleadings do not have
accompanying, supporting documentation in the record. These omissions may be the
result of James pursing a lawsuit about other lawsuits without the records from those
cases included in her appeal. As a result, some of the documents discussed in the
parties' briefs are not part of the record, including orders issued by the two judges
sued by James and by other probate judges. Because we take as true the factual
assertions contained in a party's pleading that has been dismissed for lack of
jurisdiction, we provide the factual account offered by James.Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex.2004).