A review of the current Texarkana court’s plea to the jurisdiction cases finds government winning outright 11 times out of 13. Cities are 6–0. And every such opinion written by Chief Justice Scott Stevens has ended the same way.
There is a particular kind of motion Texas government lawyers can file that deserves a translation into layman’s terms.
It is called a plea to the jurisdiction.
The legal version is that the court lacks “subject matter jurisdiction.” But when sovereign or governmental immunity is involved, it basically means:
“You don’t have the power to stop us and neither does this court.”
It is closely related to sovereign immunity, the older and more powerful cousin of the qualified immunity doctrine that many voters have heard about in police cases.
The government isn’t saying they didn’t do anything wrong.
It is saying something much more fundamental:
This court has no power to do anything about it even if we did something wrong.
That makes these cases worth watching.
I went through the plea to the jurisdiction decisions of the current three member Sixth Court of Appeals in Texarkana: Chief Justice Scott Stevens and Justices Charles van Cleef and Jeff Rambin.
The result is hard to miss.
Thirteen direct appeals. Eleven complete government victories.
And if the defendant was specifically a city, the record was simpler still:
Cities: 6.
People suing them: 0.
The Stevens Plea to Jurisdiction Ratchet
Chief Justice Scott Stevens has written seven of these opinions.
Government won all seven.
Five times, the trial judge had already agreed with the government and granted its plea. Stevens affirmed all five.
Twice, however, a trial judge looked at the government’s argument and said no the lawsuit may continue.
Stevens reversed both times and ordered the claims dismissed.
So the recent Stevens record looks like this:
Trial judge throws the case out? Affirmed.
Trial judge lets the case continue? Reversed and thrown out.
In Barker v. Sam Houston State University, a professor sued after being struck by a university vehicle. The university persuaded the trial court that sovereign immunity barred her claim. Stevens affirmed.
In Buchanan v. City of Bogata, a passenger injured when a City roadwork vehicle backed into another vehicle sued Bogata. The City argued she had failed to give the notice required by the Texas Tort Claims Act. The trial court threw the case out. Stevens affirmed.
In Jesus Christ Open Altar Church v. City of Hawkins, the City obtained both a jurisdictional dismissal and summary judgment. Stevens affirmed. That one deserves an asterisk: the Church did itself no favors on appeal, because its briefing failed to meaningfully attack the rulings below. Justice Rambin specifically pointed that out in a concurrence.
Then there are Castanon v. City of Longview and Beene v. The Woodlands Township. In each, the governmental defendant persuaded the trial court to grant its plea. Stevens affirmed both.
So far, nothing especially strange. Trial courts dismiss cases all the time, and appellate courts affirm them.
The more revealing cases are the ones where the trial judge didn’t agree with government.
When the Trial Judge Says No
Gayle Collard sued the Texas Attorney General’s Office for age discrimination, alleging that she had effectively been forced into retirement. The Attorney General asked the trial court to throw out the case on jurisdictional grounds.
The trial judge refused.
In Office of the Attorney General v. Collard, Stevens reversed the trial judge and rendered judgment dismissing Collard’s claim.
Then there is TexAmericas Center v. Hooks Independent School District.
This one is especially interesting because it wasn’t citizen versus government.
It was government versus government.
Hooks ISD alleged that TexAmericas Center sought the school district’s political support for special legislation exempting certain property interests from taxation. According to Hooks, TexAmericas had promised payments that would make the district whole for lost tax revenue, then failed to fully honor the bargain.
TexAmericas answered with governmental immunity.
The trial judge denied its plea and allowed the lawsuit to continue.
Stevens reversed and ordered the claims dismissed. The Texas Supreme Court later declined to review the decision.
So what happens when both sides are government?
In this case, immunity protected TexAmericas the special purpose development authority that had obtained the special legislation not the local school district claiming it had been promised compensation for supporting it.
Maybe TexAmericas simply had the better legal argument.
But if you were looking for a government versus government case that broke the pattern, this wasn’t it.
Van Cleef: One Case, Same Direction
Justice Charles van Cleef has written only one direct governmental-immunity plea case in this period, but it fits neatly into the pattern.
In City of Canton v. Lewis First Monday, the trial judge denied Canton’s plea and entered an injunction protecting a private property owner’s access during First Monday Trade Days.
Van Cleef reversed.
He held that the City’s plea should have been granted and wiped out the injunction.
And van Cleef later wrote an important preliminary decision in the TexAmericas fight.
Before the eventual appeal, the trial judge wanted to give Hooks ISD sixty days to conduct discovery before deciding TexAmericas’s immunity plea. TexAmericas went to the Sixth Court seeking the extraordinary remedy of mandamus.
Van Cleef granted it.
The message was essentially that Hooks did not get to conduct unnecessary discovery first; the government’s argument that the courthouse lacked power to hear the lawsuit had to be dealt with promptly.
Months later, Stevens wrote the decision that ended Hooks’s case altogether.
Then there is Rambin
Justice Jeff Rambin’s record is different enough to be interesting.
Not because he always rules against government. He doesn’t.
Rambin affirmed dismissal for the City of College Station in Elliott, for Texas A&M–Texarkana in Greig, and for Westworth Village and its officials in Sanchez.
But Rambin also wrote both cases in this entire group where a plaintiff actually got past a substantial part of the government’s jurisdictional attack.
The first is Hickory Creek Special Utility District v. Mastellar.
A utility district had received an easement to run a water line across a man’s property. Seven years later, it returned and ran another line to serve somebody else.
The landowner sued.
The government argued immunity.
The trial judge threw out some claims but allowed two important ones to continue: a constitutional claim that the government had effectively taken his property without compensation, and a negligence claim under the Texas Tort Claims Act.
Both sides appealed.
Rambin left those two claims alive.
One passage captures the common sense flavor of the opinion. The government argued, in substance, that it believed its easement gave it the right to use the property. Rambin pointed to Texas Supreme Court authority explaining why subjective belief cannot end a takings case: otherwise government could bulldoze someone’s house and avoid compensation simply by saying it believed it had the right.
The second is even more revealing.
In Sulphur Springs ISD v. Barnett, a campus police officer alleged that he reported school-safety problems including doors being left propped open while children were present and was later fired.
The school district asked to have his lawsuit thrown out.
The trial court denied its plea as moot after Barnett amended his lawsuit.
On appeal, Rambin did something notably absent from the Stevens cases: he actually rejected important jurisdictional arguments made by the government rather than finding a route to dismissal.
He held that the school district had not established immunity from Barnett’s Texas Whistleblower Act claim. He also rejected the district’s argument that Barnett had to exhaust the normal school law administrative process for claims based on alleged violations of his constitutional and whistleblower rights.
Other newly raised theories were sent back for the trial court to consider. But Barnett’s lawsuit was not killed.
Those are the only two cases in the thirteen-case set where government did not walk away with a complete jurisdictional victory and dismissal.
Rambin wrote both.
There is an important caution here, however: Stevens and van Cleef joined those opinions too.
In fact, this entire dataset is remarkable for another reason. The court did not split over any of these results. Rambin wrote separately in the Hawkins church case, but agreed with the judgment. Otherwise, these were unanimous outcomes.
So it would be misleading to say:
“Rambin votes to let people sue government while Stevens doesn’t.”
The record doesn’t show that.
What it does show is subtler:
Every governmental plea case assigned to Stevens for an opinion has produced a complete government victory. The only two opinions in which claimants meaningfully survived were written by Rambin.
Whether opinion assignment has anything to do with that is another question and this dataset cannot answer it.
Six cities, six wins
Strip away the universities, school districts, special districts and Attorney General’s Office and look only at municipalities.
There are six:
College Station.
Canton.
Bogata.
Hawkins.
Westworth Village.
Longview.
They won every one of their plea to the jurisdiction appeals before this court.
Sometimes the trial judge sided with the city.
The Sixth Court affirmed.
In Canton, the trial judge sided with the property owner.
The Sixth Court reversed.
Again, Texas governmental immunity law is extraordinarily favorable to cities. A 6–0 record by itself proves nothing improper.
It does, however, tell voters something useful about what happens when a city arrives in Texarkana saying:
“This lawsuit shouldn’t be allowed to exist.”
So far under the current court, the city has not lost one of those appeals.
And then we come to Babcorp 200, Ltd. v. City of Grand Prairie.
This case is not part of the thirteen case plea to the jurisdiction dataset.
It is interesting precisely because it is a contrast.
Babcorp is a developer. It owned 16.9 acres that it believed were zoned for multifamily development. Grand Prairie argued that an old provision had caused the property to revert to single-family zoning.
The trial judge held a trial and ruled for the City.
Stevens reversed and didn’t merely order another trial. He rendered judgment for the developer.
The legal tool he used was equitable estoppel against a city.
That is not supposed to be ordinary relief. Texas Supreme Court precedent describes estoppel against municipalities as something reserved for exceptional cases where the circumstances demand it to prevent manifest injustice.
When citizens run into governmental immunity, the vocabulary is rigid even when the law has expressly waived immunity:
No waiver. No jurisdiction. Case dismissed.
Remember these are cases that are dismissed without merits consideration.
When this developer confronted Grand Prairie, Stevens found room for an extraordinary equitable doctrine and concluded that “justice requires estoppel against the City.”
That tells us something important.
The law is apparently capable of flexibility when a court believes justice demands it.
The interesting question is:
Who gets the benefit of that flexibility?
Under the current Sixth Court, in the thirteen governmental plea to the jurisdiction appeals I identified:
Government won outright in 11.
Cities won all 6 of theirs.
Stevens wrote 7; government won all 7.
When a trial judge granted the government’s plea in a Stevens opinion, he affirmed. When a trial judge denied it, he reversed and dismissed.
The two cases where a claimant meaningfully survived were both written by Rambin.
And the decisions were unanimous, meaning this is ultimately a pattern involving the court, not merely one judge.
One opinion is an anecdote.
Thirteen opinions are data.
And voters who elect these judges should see both.