Gerard Matzen v. Marsha McLane, Director of the Texas Civil Commitment Office, and the Texas Civil Commitment Office

Supreme Court of Texas
══════════
No. 20-0523
══════════

Gerard Matzen,
Petitioner,

v.

Marsha McLane, Director of the Texas Civil Commitment Office,
and the Texas Civil Commitment Office,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued September 29, 2021

JUSTICE BLACKLOCK delivered the opinion of the Court.

Petitioner Gerard Matzen sued the Texas Civil Commitment
Office and its executive director. He brought several claims regarding
his civil commitment as a sexually violent predator (SVP). The district
court dismissed most of Matzen’s suit, but it allowed him to pursue his
claim that charging him for his housing, treatment, and GPS tracking
is both an unconstitutional taking and a denial of due process of law.
Both sides appealed. The court of appeals affirmed over a dissent that
would have dismissed all the claims. We agree with the dissent. All of
Matzen’s claims fail as a matter of law, and we render judgment
dismissing them.
I. Factual and Procedural Background
The Sexually Violent Predators Act, first enacted in 1999,
establishes “a civil commitment procedure for the long-term supervision
and treatment of sexually violent predators.” TEX. HEALTH & SAFETY
CODE § 841.001. A “sexually violent predator” is a “repeat” offender who
“suffers from a behavioral abnormality that makes the person likely to
engage in a predatory act of sexual violence.” Id. § 841.003(a).
Following a trial conducted pursuant to the SVP Act, a jury in
2014 found beyond a reasonable doubt that Matzen was an SVP. See id.
§§ 841.061, 841.062(a). In response to the verdict, the district court
issued a civil commitment order. See id. § 841.081(a). The commitment
order placed Matzen in “outpatient” treatment, which means he lived in
a private residential facility and was allowed unsupervised trips for
shopping, treatment, and other activities. The commitment order
further required that he not contact certain people, not use alcohol or
other intoxicants, submit to use of a tracking device, and provide blood
and hair samples. Matzen appealed the order, but his appeal was
dismissed for want of prosecution. In re Commitment of Matzen, No. 09-
14-00115-CV, 2014 WL 5307131 (Tex. App.—Beaumont Oct. 16, 2014,
no pet.).
At the time of Matzen’s original commitment order, the SVP Act
required the court to commit an SVP to “outpatient treatment and

2
supervision.”1 In 2015, the Legislature amended the SVP Act.2 Under
the new law, committed SVPs enter a “tiered” treatment program
instead of an outpatient program. The tiered program is intended to
“provide for a seamless transition of a committed person from a total
confinement facility to less restrictive housing and supervision and
eventually to release from civil commitment, based on the person’s
behavior and progress in treatment.” TEX. HEALTH & SAFETY CODE
§ 841.0831(b). “Thus, while the Act’s prior version contemplated
significant limitations on an SVP’s housing and movements, the
amended Act goes further by authorizing ‘total confinement,’ at least in
the more restrictive treatment tiers.” In re State, 556 S.W.3d 821, 824
(Tex. 2018).
Prior to the 2015 amendments, an SVP was responsible only for
the cost of his GPS tracking service.3 After the amendments, SVPs such
as Matzen, if they can afford to do so, must also pay a monthly amount
“necessary to defray the cost of providing [] housing, treatment, and
service” to the SVP. TEX. HEALTH & SAFETY CODE § 841.084(a)(2)(A).
Matzen’s suit arises primarily from his objection to paying these costs.
The Texas Civil Commitment Office (TCCO) runs the SVP
program. Id. § 841.007. In 2017 and 2018, TCCO adopted rules

Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen.
1

Laws 4143, 4147; see also In re Commitment of Fisher, 164 S.W.3d 637, 641
(Tex. 2005).
2 Act of May 21, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Gen. Laws
2701.
Act of May 18, 2007, 80th Leg., ch. 593, § 1.13, sec. 841.084, 2007 Tex.
3

Gen. Laws 1120, 1125.

3
implementing the amended Act’s requirement that certain additional
costs be assessed against SVPs. See 37 TEX. ADMIN. CODE §§ 810.122,
810.273. These rules, which the parties call the “cost-recovery rules,”
provide that TCCO shall not require payment of costs exceeding 50
percent of the SVP’s income. Id. § 810.273. Under a TCCO policy
contained in the record, SVPs are actually required to pay 33 percent of
their income toward cost recovery.4
The amended Act required that commitment orders covering
SVPs like Matzen be adjusted to comply with the statutory changes. It
further mandated an individualized hearing prior to the modification of
each SVP’s commitment order.5 In Matzen’s case, the State filed a
motion in 2015 to amend Matzen’s commitment as required by the new
law. The district court held the required hearing, at which Matzen was
personally present and was permitted to present evidence and to call
and cross-examine witnesses.
In October 2015, the court amended Matzen’s commitment order
“to conform with the legislative changes contained in Senate Bill 746.”6
The amended order placed Matzen in a “tiered” treatment program. It
also ordered Matzen to “comply with all requirements and rules imposed

4 The State advised at oral argument that TCCO’s current policies
require SVPs to pay only 25 percent of their income and that the scope of
eligible income has been narrowed. This amended policy is not part of the
record, but our analysis does not turn on the fraction of SVP income collected
by TCCO or the precise definition of income subject to collection.
Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 40(b), 2015 Tex. Gen.
5

Laws 2701, 2712.
6This language is found in the trial court’s Order on Motion for
Placement in Tiered Treatment Program.

4
by TCCO.” One such rule is the cost-recovery scheme of which Matzen
now complains. Matzen appealed the order amending his civil
commitment. See TEX. HEALTH & SAFETY CODE § 841.146(b). He later
voluntarily dismissed this appeal. In re Commitment of Matzen, No. 09-
16-00014-CV, 2016 WL 637904 (Tex. App.—Beaumont Feb. 18, 2016, no
pet.).
Matzen’s amended commitment order required he be moved from
an outpatient residence to the Texas Civil Commitment Center in
Littlefield, Texas. The Littlefield facility is a “total-confinement”
facility, which we understand to mean that Matzen was no longer
permitted to make unsupervised trips away from the facility. It is
operated by Correct Care Recovery Solutions, a private contractor.
Pursuant to its cost-recovery rules, TCCO ordered Matzen to pay to the
State one-third of his military pension and one-third of his pay under a
Correct Care work program to defray the costs of his commitment.
In August 2017, Matzen brought this lawsuit pro se. He was later
represented by counsel in district court and on appeal. He sued TCCO
and the Director of the Office, Marsha McLane, in her official capacity
(collectively “the State”). He also sued Correct Care. He has thus far
filed four district-court petitions asserting a host of evolving common-
law, statutory, and constitutional claims. Matzen’s live petition alleges
that one or more of the defendants has (1) violated the Texas
Administrative Procedure Act; (2) acted ultra vires; (3) misappropriated
property; (4) violated his rights of free speech and peaceable assembly;
(5) breached a contract; (6) engaged in unlawful search and seizure;
(7) committed an unconstitutional taking; (8) denied him due process;

5
and (9) created an illegal debtor’s prison. He seeks declaratory,
injunctive, and mandamus relief.
Most of Matzen’s multifarious claims stem from his conviction
that, because he was committed before the Legislature amended the
SVP Act, he should (1) not have to pay anything under the cost-recovery
rules, and (2) remain in outpatient treatment rather than confinement.
The predominant legal argument underlying Matzen’s claims is that
TCCO’s cost-recovery rules are invalid because they were enacted by the
Board of TCCO rather than TCCO “itself.” Matzen points to section
841.141(a) of the Health and Safety Code, which reads: “The office by
rule shall administer this chapter.” He claims that TCCO’s Board
adopted the cost-recovery rules in violation of this provision, which he
reads to require the TCCO “office”—not the TCCO Board—to make the
rules. Because TCCO’s rules were adopted by the wrong entity, he
contends, they are all invalid and cannot be applied to him. As he has
pleaded them, nearly all Matzen’s claims rest in one way or another on
this view of how TCCO’s rulemaking power works, a view which, as
explained below, is without foundation.
The State filed a plea to the jurisdiction asserting immunity from
suit. The district court dismissed all claims against the State except the
takings claim and the due-process claim. Both remaining claims
challenge the requirement that Matzen pay part of the costs of housing,
treatment, and GPS tracking. Both sides brought an interlocutory
appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing
interlocutory appeal of the grant or denial of a plea to the jurisdiction of

6
a governmental entity).7 The court of appeals affirmed across the board.
604 S.W.3d 91, 97, 117 (Tex. App.—Austin 2020). One justice dissented
in part and would have dismissed all Matzen’s claims. Id. at 118–19
(Goodwin, J., concurring and dissenting). Both sides petitioned for
review in this Court, and we granted both petitions.
II. Discussion
Sovereign immunity protects the State of Texas and its agencies
and subdivisions from suit and from liability. PHI, Inc. v. Tex. Juv. Just.
Dep’t, 593 S.W.3d 296, 301 (Tex. 2019). TCCO, a state agency, enjoys
sovereign immunity unless the Legislature waives it. Gen. Servs.
Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).
Because the assertion of sovereign immunity implicates the courts’
jurisdiction, immunity is properly raised in a plea to the jurisdiction.
Hous. Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex.
2016). If, as here, a plea “challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We review orders on pleas
to the jurisdiction de novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v.
McKenzie, 578 S.W.3d 506, 512 (Tex. 2019).
Matzen sued both TCCO and its executive director, McLane.
Notwithstanding sovereign immunity, Texas law recognizes “ultra
vires” claims seeking prospective injunctive relief against individual
government officials in their official capacities. City of El Paso v.

7 Correct Care, a private entity, is not a party to this interlocutory
appeal.

7
Heinrich, 284 S.W.3d 366, 373, 376 (Tex. 2009). “Even if a government
entity’s immunity has not been waived by the Legislature, a claim may
proceed against a government official in his official capacity if the
plaintiff successfully alleges that the official is engaging in ultra vires
conduct.” Chambers–Liberty Cntys. Navigation Dist. v. State, 575
S.W.3d 339, 344 (Tex. 2019). “The basic justification for this ultra vires
exception to sovereign immunity is that ultra vires acts—or those acts
without authority—should not be considered acts of the state at all.
Consequently, ‘ultra vires suits do not attempt to exert control over the
state—they attempt to reassert the control of the state’ over one of its
agents.” Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (citation
omitted and quoting Heinrich, 284 S.W.3d at 372).
Plaintiffs who seek to bypass sovereign immunity using an ultra
vires claim must plead, and ultimately prove, that the defendant
government official “acted without legal authority or failed to perform a
ministerial act.” Heinrich, 284 S.W.3d at 372. An officer acts without
legal authority “if he exceeds the bounds of his granted authority or if
his acts conflict with the law itself.” Hous. Belt & Terminal Ry., 487
S.W.3d at 158. If, however, the actions alleged to be ultra vires were not
truly outside the officer’s authority or in conflict with the law, the
plaintiff has not stated a valid ultra vires claim and therefore has not
bypassed sovereign immunity. See Chambers–Liberty Cntys.
Navigation Dist., 575 S.W.3d at 344–45. In such cases, sovereign
immunity continues to protect state officials from both suit and liability
in their official capacities. Hall, 508 S.W.3d at 238; Heinrich, 284
S.W.3d at 372.

8
 As we have said before, to defeat a plea to the jurisdiction, the
plaintiff suing the state or its officers must plead facts that, if true,
“affirmatively demonstrate” that sovereign immunity either does not
apply or has been waived. E.g., Tex. Dep’t of Crim. Just. v. Rangel, 595
S.W.3d 198, 205 (Tex. 2020); Miranda, 133 S.W.3d at 226. As applied to
ultra vires claims, this rule requires the plaintiff’s petition to allege facts
affirmatively demonstrating actionable ultra vires conduct by state
officials in order to avoid dismissal on jurisdictional grounds due to
sovereign immunity. Hall, 508 S.W.3d at 238; Chambers–Liberty Cntys.
Navigation Dist., 575 S.W.3d at 344–45; Klumb v. Hous. Mun. Emps.
Pension Sys., 458 S.W.3d 1, 17 (Tex. 2015) (dismissing suit because
plaintiffs failed to plead actionable ultra vires conduct). Likewise, if the
plaintiff seeks to establish a waiver or exception to sovereign immunity
apart from an ultra vires claim, the pleaded facts must “affirmatively
demonstrate” that the waiver or exception applies. Miranda, 133
S.W.3d at 226.
The court of appeals may have misperceived these pleading
requirements. It placed a burden on the State to demonstrate that
“Matzen’s pleadings could never allege a viable takings claim [or due-
process claim].” 604 S.W.3d at 117. To the contrary, as the dissent in
the court of appeals observed, “it was Matzen’s burden to allege facts
that affirmatively demonstrate that sovereign immunity from suit has
been waived or does not apply.” Id. at 118 (Goodwin, J., concurring and
dissenting) (citing Hall, Klumb, Heinrich, and Miranda). The question
is not whether additional, hypothetical facts could come to light that
would, in the future, allow Matzen to state a viable ultra vires claim or

9
invoke an exception to, or waiver of, sovereign immunity. In other
words, the State need not show that “Matzen’s constitutional due
process and takings claims could never exist,” as the court of appeals
required. 604 S.W.3d at 117. Instead, the proper question is whether
Matzen’s pleaded facts “affirmatively demonstrate” either that state
officials are engaged in ultra vires conduct or that Matzen otherwise has
stated a valid claim not barred by sovereign immunity. If additional
facts would be necessary to state a viable ultra vires claim or to state a
viable claim falling within a waiver or exception to immunity, then the
plaintiff has not affirmatively demonstrated the court’s jurisdiction. In
such a case, a plea to the jurisdiction should be granted. Klumb, 458
S.W.3d at 17; Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011)
(“[T]he Secretary retains immunity from suit unless the voters have
pleaded a viable claim.”).
A. The State’s Petition
The courts below denied the State’s plea to the jurisdiction as to
Matzen’s due-process claim and his takings claim, both of which are
alleged under the state and federal constitutions. As pleaded, these
claims fail as a matter of law. We render judgment dismissing them.
1. Due Process
Matzen did not plead an actionable due-process violation.8 His
multifaceted invocations of the due-process clause can be divided into

8 Matzen alleged a due-process violation under the U.S. Constitution
and a due-course-of-law violation under the Texas Constitution. See U.S.
CONST. amend. XIV, § 1; TEX. CONST. art. I, § 19 (“No citizen of this State shall
be deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.”). When

10
two categories. First, he claims TCCO’s cost-recovery rules are invalid
because TCCO’s Board adopted them. In Matzen’s view, the Act
empowers only TCCO “itself,” not its Board, to adopt rules. Disposing
of this argument disposes of most of Matzen’s claims, which rely in one
way or another on his misconception of TCCO’s rulemaking authority.
The court of appeals correctly rejected Matzen’s attempt to separate the
rulemaking authority of the state agency called TCCO from the
authority of TCCO’s appointed Board to govern the agency. 604 S.W.3d
at 101–02.
The SVP Act states: “The office by rule shall administer this
chapter.” TEX. HEALTH & SAFETY CODE § 841.141(a). Other sections of
the Act empower “the office” to enact rules or to make other decisions,
such as determining how much an SVP “shall pay to the office” to defray
the cost of treatment. Id. §§ 841.007, 841.084. Matzen reads these
provisions to grant authority to “the office” itself, apart from its
governing Board. Although the Legislature has directed that TCCO “is
governed by a board,” TEX. GOV’T CODE § 420A.002(b), Matzen
nevertheless conceptualizes the TCCO “office” as exercising
independent authority distinct from that exercised by the TCCO Board.
He bases this view primarily on the existence of separate definitions of

interpreting Texas’s due-course-of-law clause, we are not bound by federal due-
process jurisprudence but often consider it as persuasive authority. E.g., Univ.
of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Where,
as here, the parties do not suggest any divergence in the meaning of the two
provisions, we have treated them as coextensive. E.g., Tex. S. Univ. v.
Villarreal, 620 S.W.3d 899, 905 (Tex. 2021). Because neither Matzen nor the
State suggests otherwise, we treat Matzen’s allegation of federal due-process
violations and state due-course violations as a single claim.

11
“office” and “board” in TCCO’s enabling statute.9 Because the TCCO
Board adopted the cost-recovery rules, Matzen reasons, the agency
failed to follow the Act, which vests rulemaking authority exclusively in
“the office.”
Matzen’s idiosyncratic view of the separation between state
agencies and their boards finds no support in the law. Like any
government agency, TCCO must act through natural persons duly
vested with legal authority to make decisions for the agency. For
agencies with elected executives, like the Attorney General’s Office or
the General Land Office, the people of Texas decide who will have
ultimate authority to make decisions for the state agency. TEX. CONST.
art. IV, §§ 1, 2. For many agencies created by the Legislature, executive
decision-making authority over the agency is vested by law in a multi-
member board appointed by elected officials, most often the Governor.
This is the case for TCCO, which is “governed by a board.” TEX. GOV’T
CODE § 420A.002(b). The Governor appoints TCCO’s five-member Board
and designates its presiding officer. Id. §§ 420A.002(b), 420A.003.
Adopting Matzen’s distinction between the TCCO “office” and its
board would vest state agency employees directly with executive power
by authorizing them to act without the oversight of politically appointed
governing officials. But if state agency “offices” exercised independent
power apart from a chain of command tethered to elected officials, “the
public [could] not ‘determine on whom the blame or the punishment of

9 The “Office” is defined as “the Texas Civil Commitment Office.” TEX.
GOV’T CODE § 420A.001(2); TEX. HEALTH & SAFETY CODE § 841.002(4). The
“Board” is defined as “the governing Board of the Texas Civil Commitment
Office.” TEX. GOV’T CODE § 420A.001(1).

12
a pernicious measure, or series of pernicious measures ought really to
fall.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 497 (2010) (quoting THE FEDERALIST NO. 70, at 476 (J. Cooke ed.
1961) (Alexander Hamilton)). The entire government of this State rests
on the principle that “[a]ll political power is inherent in the people, and
all free governments are founded on their authority.” TEX. CONST. art.
I, § 2. As with the federal constitution, our Texas Constitution “was
adopted to enable the people to govern themselves, through their elected
leaders.” Free Enter. Fund, 561 U.S. at 499. The appointment of agency
board members by elected officials provides crucial democratic
legitimacy to state agencies, which operate under the oversight of
appointees chosen by officers who are directly accountable to the people
of Texas, from whom “all political power” in this State must flow. TEX.
CONST. art. I, § 2.10
Accepting Matzen’s invitation to sever the connection between
state agencies and their governing officials would implicate these
foundational constitutional questions, and perhaps others. We need not
delve into them here, however, because Matzen’s approach violates the
Legislature’s direction that employees of TCCO, and many other
agencies like it, do not exercise executive power on their own but are
instead “governed by a board” appointed by elected officials. TEX. GOV’T

10 See Free Enter. Fund, 561 U.S. at 499 (“One can have a government
that functions without being ruled by functionaries, and a government that
benefits from expertise without being ruled by experts. . . . The growth of the
Executive Branch, which now wields vast power and touches almost every
aspect of daily life, heightens the concern that it may slip from
the . . . control . . . of the people.”).

13
CODE § 420A.002(b). The Legislature’s instruction that TCCO will be
“governed by a board” means just what it says. Like dozens of other
state agencies, all of TCCO’s actions, including its promulgation of
administrative rules, are ultimately “governed by a board.” Id. The
adoption of cost-recovery rules by TCCO’s Board thus complied with the
agency’s legislatively mandated chain of command.
Having disposed of Matzen’s complaint about TCCO’s rulemaking
authority, we have disposed of nearly all his claims. We agree with the
dissenting justice in the court of appeals that the essence of Matzen’s
due-process and takings claims “is that he should not have to pay any
amount toward the costs of the housing, treatment, or tracking services”
because the TCCO Board lacks rulemaking authority. 604 S.W.3d at
118–19 (Goodwin, J., concurring and dissenting). The majority in the
court of appeals nevertheless construed Matzen’s petition to allege due-
process and takings allegations apart from his rulemaking complaint.
Even on those terms, both claims fail as a matter of law.
As for the due-process claim, the court of appeals understood
Matzen’s petition to claim that the assessment of costs of confinement
against him pursuant to TCCO’s rules deprived him of property without
due process of law. The claim is that although Matzen had an
individualized hearing when he was originally committed and another
such hearing when his commitment order was amended to incorporate
the cost-recovery rules, the constitution entitles him to yet another
individualized hearing regarding the amount of the costs charged to
him. This is incorrect.

14
 The U.S. Constitution prohibits states from “depriv[ing] any
person of life, liberty, or property without due process of law.” U.S.
CONST. amend. XIV. The Texas Constitution similarly protects a
“citizen of this State” against the deprivation of “life, liberty, [or]
property . . . except by the due course of the law of the land.” TEX.
CONST. art. I, § 19.11 When analyzing a due-process claim, courts must
first determine whether the claimant has been deprived of “life, liberty,
or property.” U.S. CONST. amend. XIV; see Mosley v. Tex. Health & Hum.
Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019). Matzen asserts a
property interest in the money he must pay to TCCO under the cost-
recovery rules, and the State does not argue otherwise. Thus, because
a protected property interest is implicated, we next “must determine
what process is due.” Mosley, 593 S.W.3d at 264.
It is often said that due process generally “requires notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner.” Id. at 265. It is just as true, however, that “[w]hen the
legislature enacts a law, or a state agency adopts a regulation, that
affects a general class of persons, all of those persons have received
procedural due process by the legislative process itself and they have no
right to individual attention.” United States v. LULAC, 793 F.2d 636,
648 (5th Cir. 1986); see also Bi-Metallic Inv. Co. v. State Bd. of
Equalization, 239 U.S. 441, 445–46 (1915).

11 In addition to protecting “life, liberty, [and] property,” the Texas
Constitution also provides that citizens shall not be “deprived of . . . privileges
or immunities, or in any manner disfranchised, except by the due course of the
law of the land.” TEX. CONST. art. I, § 19. Neither party suggests the Texas
clause’s additional language makes a difference in this case.

15
 Our decision in In re State, 556 S.W.3d 821 (Tex. 2018), concerned
an SVP who, like Matzen, was subjected to an amended commitment
order. We concluded that the SVP’s due-process rights were adequately
protected by the notice and hearing mandated by the Legislature. Id. at
830–31. The same is true of Matzen.
Matzen was given notice and a hearing in connection with his
original commitment order. When that order was amended to conform
to legislative changes, he again received an individualized hearing, as
required by the SVP Act. The amendments to the SVP Act directed
TCCO to calculate “a monthly amount that the office determines will be
necessary to defray” the costs of confinement and to charge these costs
to each SVP. TEX. HEALTH & SAFETY CODE § 841.084. Matzen
participated in an individualized hearing that resulted in an order
subjecting him to such costs. His amended commitment order states
that Matzen will be charged costs set by TCCO. Moreover, both the SVP
Act and Matzen’s amended commitment order indicate that the
conditions of his confinement, which include the costs assessed to him,
may be adjusted in the future pursuant to TCCO rules and policies.
The court of appeals reasoned that Matzen stated a possible due-
process violation because certain TCCO cost-recovery rules were
adopted after Matzen’s hearing modifying his commitment order. 604
S.W.3d at 114. The State is correct, however, that Matzen’s amended
commitment order—for which he received an individualized hearing—
states that TCCO will subject him to cost recovery as required by the
SVP Act and TCCO rules. Matzen cites no authority supporting his
assertion that every adjustment to TCCO’s generally applicable cost-

16
recovery rules that affects him and post-dates his amended commitment
order triggers a renewed constitutional right to individualized notice
and hearing. Nor does he claim that he has been charged costs above
those dictated by TCCO’s cost-recovery scheme. Instead, he challenges
TCCO’s authority to subject him to any changes in its cost-recovery
scheme without first giving him an individualized hearing.
The State objects that such an individualized hearing for every
SVP every time TCCO amends rules or policies affecting SVPs would
grind TCCO to a halt. That may very well be true, but regardless of the
practical consequences, the individualized process Matzen seeks is more
process than is “due” to him under the constitution. TCCO need not
provide each SVP with individualized process every time it alters
generally applicable rules or policies governing committed SVPs.
Matzen’s due-process and due-course-of-law claims fail as a matter of
law.
2. Takings Claim
We turn to Matzen’s claim that charging him for his housing,
treatment, and tracking is an unconstitutional taking. The federal
Takings Clause provides that “private property” shall not “be taken for
public use, without just compensation.” U.S. CONST. amend. V. The
Texas Takings Clause provides that “[n]o person’s property shall be
taken, damaged, or destroyed for or applied to public use without
adequate compensation being made.” TEX. CONST. art. I, § 17(a).12 “To

12As with the due-process issues, no party contends that the unique
language of the Texas Takings Clause makes a difference in this case. We will
therefore treat the state and federal clauses as providing coextensive

17
establish a takings claim, [the plaintiff] must prove (1) the State
intentionally performed certain acts, (2) that resulted in a ‘taking’ of
property, (3) for public use.” Gen. Servs. Comm’n v. Little–Tex Insulation
Co., 39 S.W.3d 591, 598 (Tex. 2001).
Matzen has not pleaded a cognizable takings claim. As explained
above, he is subject to a statute requiring him to pay a portion of the
costs the State expends for his treatment, housing, and tracking. TEX.
HEALTH & SAFETY CODE § 841.084(a); 37 TEX. ADMIN. CODE § 810.273.
He cites no authority indicating that charging him costs of this nature
is an unconstitutional taking. The State argues that the government
may in a variety of contexts charge “user fees” for the value of
government services without implicating takings law. There is ample
authority for this position. In United States v. Sperry Corp., the U.S.
Supreme Court held that “a reasonable user fee is not a taking if it is
imposed for the reimbursement of the cost of government services.” 493
U.S. 52, 63 (1989). Courts frequently apply this rule to services provided
to the incarcerated.13 The logic of these authorities bars Matzen’s
takings claim.

protection. City of Austin v. Travis Cnty. Landfill Co., 73 S.W.3d 234, 238 (Tex.
2002) (noting that similar wording of federal and state takings provisions “has
led us . . . to rely on the United States Supreme Court’s interpretation of the
federal takings clause in construing our takings provision”).
13 E.g., Vance v. Barrett, 345 F.3d 1083, 1089–90 (9th Cir. 2003);
Williamson v. Northampton Cnty. Prison, Civ. No. 12-2333, 2012 WL 1656291,
at *2 (E.D. Pa. May 9, 2012); Abney v. Alameida, 334 F. Supp. 2d 1221, 1228
(S.D. Cal. 2004); Dean v. Lehman, 18 P.3d 523, 526, 534–35 (Wash. 2001);
Weber v. Hvass, 626 N.W.2d 426, 435–36 (Minn. Ct. App. 2001).

18
 The court of appeals reasoned that it could not tell from Matzen’s
pleading whether the costs charged to Matzen truly compensated the
government for the value of the services provided. 604 S.W.3d at 117.
This was so, in the court’s view, because no evidence in the record
showed how much Matzen’s confinement costs the government. Id. It
remained possible, then, that Matzen was paying for more than he was
getting, which from the court of appeals’ perspective meant he could
potentially state a takings claim.
We will not address whether a user fee exceeding the
government’s costs could amount to a taking, because Matzen never
pleaded such a claim. The court of appeals hypothesized that he might
be able to do so. But the proper question when ruling on the State’s plea
to the jurisdiction is not whether Matzen could plead such a claim. The
question is whether he has done so. Because he has not pleaded a viable
takings claim—whether or not he could do so—his petition is insufficient
to overcome the State’s immunity and must be dismissed in response to
the State’s plea to the jurisdiction.
As the dissent in the court of appeals correctly pointed out,
Matzen’s petition is devoid of any suggestion “that the amount that he
has paid or is responsible to pay exceeds the actual costs of the housing,
treatment, and tracking services provided to him.” 604 S.W.3d at 118–
19 (Goodwin, J., concurring and dissenting). Instead, Matzen’s petition
sought recovery from the State of “all money paid by him as payment for
housing, treatment and/or GPS monitoring service.” His claim has
always been that TCCO lacks authority to charge him anything, not that
TCCO has charged him more than it costs the agency to confine him.

19
 When ruling on a plea to the jurisdiction, the court’s task is not
to identify available legal theories and deny the plea if those theories
could be viable with more factual development. Again, when sovereign
immunity is asserted, it is not the State’s burden to show that the
plaintiff could never state a viable claim. Instead, it is the plaintiff’s
burden to plead facts that affirmatively state a viable claim. “‘In the
absence of a properly pled takings claim, the state retains immunity’”
and the court “must sustain a properly raised plea to the jurisdiction.”
City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014) (quoting
Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex.
2012)). The court of appeals erred by allowing Matzen’s takings claim
to proceed under an unpleaded theory. Like the due-process claims, the
takings claims must be dismissed.
B. Matzen’s Petition
Having concluded that both of the claims authorized by the court
of appeals must be dismissed, we turn to Matzen’s petition for review.
Matzen appeals the court of appeals’ unanimous dismissal of most of his
claims. His core contention is that he should not have to pay for his
treatment. He seeks to reach that result using a variety of legal
theories. His primary argument, which cuts across all his claims, is that
the TCCO Board lacked authority to adopt the regulations TCCO now
enforces against him. As explained above, that argument fails. Supra
at ___. As a result, most of Matzen’s petition to this Court fails as well.
Matzen’s remaining claims fall into three categories. First, he
contends that changing his commitment order from an outpatient-
treatment order to a total-confinement order deprived him of vested

20
rights in violation of the Texas Constitution’s promise that
“[n]o . . . retroactive law . . . shall be made.” TEX. CONST. art. I, § 16.
This claim fails primarily because the new statutory requirements were
imposed on Matzen prospectively following a hearing, not retroactively.
Moreover, “[a] law that does not upset a person’s settled expectations in
reasonable reliance upon the law is not unconstitutionally retroactive.”
In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Matzen cannot plausibly
argue that he had a settled expectation that his rights under the original
commitment order would not change. The original order itself says it
could be modified with notice and a hearing.14 The SVP Act likewise
provides that commitment orders may be modified at any time upon
notice and hearing. TEX. HEALTH & SAFETY CODE § 841.082(e). This
provision has been in effect since long before Matzen’s original
commitment.15 In addition, Matzen’s commitment has always been
subject to a statutorily mandated biennial review, at which his
commitment order may be modified. Id. § 841.102.
Because both the SVP Act and Matzen’s commitment orders
informed him that his order could be amended, he never had a

14 The order stated:
ORDERED that a biennial review shall be conducted, in
accordance with Texas Health and Safety Code § 841.102, on or
about January 15, 2016. If the Court determines at the biennial
review that a requirement imposed should be modified, or that
there is probable cause to believe that GERARD NEIL MATZEN
is no longer likely to engage in a predatory act of sexual violence,
notice will [be] given and a hearing upon written motion.
See Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 24, 2003 Tex. Gen.
15

Laws 1505, 1517.

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reasonable expectation that the terms of his commitment were forever
fixed. We discern no basis in the law for Matzen’s contention that the
terms of his commitment were “vested” at the time of the original order
such that they cannot be altered without running afoul of the
constitution. We agree with the existing court of appeals decisions
rejecting such an argument.16 Matzen and other similarly situated
SVPs were not subjected to an unconstitutionally retroactive law when
their commitment orders were prospectively amended as required by
changes to the SVP Act.17
Second, Matzen argues in this Court that his commitment must
be subjected to “strict scrutiny.” He contends that the State’s
infringement of his “fundamental liberty interests” must be “narrowly
tailored to serve a compelling state interest.” Even giving his
voluminous pleadings a liberal construction, see City of Ingleside v. City
of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015), Matzen did not
assert this claim in the district court. He had four chances to plead such
a claim, but he did not. Because this claim was not pleaded or argued
below, it cannot be considered on appeal as a basis for denial of the plea

16In re Commitment of May, 500 S.W.3d 515, 524–26 (Tex. App.—
Beaumont 2016, pet. denied); In re Commitment of Cortez, 405 S.W.3d 929,
935–36 (Tex. App.—Beaumont 2013, no pet.).
17 Matzen contends that the terms of his commitment could not be
modified because the final judgment in the first commitment proceeding
stated: “All relief not granted is denied.” This language did not negate the
provisions of the SVP Act requiring later amendment, and the commitment
order stated elsewhere that its terms could be modified. The quoted language
is not a protection against amendments to Matzen’s order. It is a routine clause
frequently used to indicate the finality of a judgment. See In re R.R.K., 590
S.W.3d 535, 541 (Tex. 2019).

22
to the jurisdiction. Even “a liberal construction does not require a court
to read into a petition what is plainly not there.” Bos v. Smith, 556
S.W.3d 293, 306 (Tex. 2018) (internal quotation marks omitted).
Finally, Matzen alleges TCCO has an “unwritten rule” under
which it can deny him the ability to advance in treatment should he fail
to pay for his expenses. His live petition claims this rule is invalid
because it creates a “debtor’s prison” in violation of a federal statute and
the Texas Constitution. The court of appeals correctly ruled that
Matzen’s “debtor’s prison” claim was abandoned on appeal because it
was not briefed in the court of appeals. 604 S.W.3d at 107 n.3. Matzen
likewise does not complain of a “debtor’s prison” in this Court. He does,
in this Court, attack TCCO’s “unwritten rules” on other grounds, none
of which were pleaded or argued below. Because these issues were not
presented to the courts below, we do not address them. See In re L.G.,
596 S.W.3d 778, 779 n.1 (Tex. 2020).
III. Conclusion and Disposition
All Matzen’s claims against the State fail as a matter of law.
Matzen pleaded no viable claim affirmatively demonstrating a waiver
of, or exception to, sovereign immunity. Nor did he plead a viable ultra
vires claim against state officials. The State’s plea to the jurisdiction
should have been granted in full.
Matzen has already repleaded three times, and his briefing in this
Court advances no viable theories of liability. Matzen does not request
a remand for repleading. Even if he had made such a request, we would

23
deny it because he has already been permitted to amend his petition to
no avail.18
The judgment of the court of appeals is affirmed in part and
reversed in part, and judgment is rendered dismissing all Matzen’s
claims against TCCO and McLane. Matzen’s claims against Correct
Care are not part of this interlocutory appeal.

James D. Blacklock
Justice

OPINION DELIVERED: December 17, 2021

18 See, e.g., Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558–59
(Tex. 2016) (dismissing claim rather than remanding, in part because plaintiffs
“had an opportunity to, and did in fact, amend their pleadings in the trial court
after the district filed its plea to the jurisdiction”); Tex. Dep’t of Crim. Just.–
Cmty. Just. Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012) (“[I]f a
governmental entity has asserted in the trial court that it is immune and a
plaintiff fails to allege or show facts demonstrating a waiver of immunity after
having a reasonable opportunity to conduct discovery directed to the issue and
amend the pleadings, then the case should be dismissed.”); Harris Cnty. v.
Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has been provided a
reasonable opportunity to amend after a governmental entity files its plea to
the jurisdiction, and the plaintiff’s amended pleading still does not allege facts
that would constitute a waiver of immunity, then the trial court should dismiss
the plaintiff’s action.”).

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