When is governmental immunity waived by the acts of governmental officials? Ultra Vires Revisited
Ultra Vires and Immunity
On June 3, 2022, the Texas Supreme Court issued two important opinions on the topic of waiver of governmental immunity based on the doctrine of ultra vires.
In the first–Van Boven–the Court approved a physician’s claims that immunity for members of governmental agency (the Texas Medical Board) was waived on grounds of ultra vires for the Board’s failure to follow applicable guidelines in a physician disciplinary matter. In the second–Schroeder–the Court sided with the officials of a local planning and zoning commission with respect to their approval of a subdivision plat, despite objection from a neighboring homeowners association. This blog summarizes both opinions.
Do officials on the Texas Medical Board waive governmental immunity by failing to follow National Practitioner Data Bank Guidelines?
In Van Boven v. Freshour, — S.W.3d —, — 2022 WL — (Tex. June 3, 2022) [20-0117] (“Van Boven”) the issue was whether members of the Texas Medical Board acted ultra vires by refusing to void a temporary sanction reported against a physician to the National Practitioner Data Bank.
In the administrative proceeding, the Board determined that the allegations underlying the sanction were not proved, and that finding became final. Once the sanctions were determined as not proved, the applicable guidelines for disciplinary review required that the Board submit a Void Report to the Data Bank to remove the Initial Report from the physician’s record. Instead of submitting a Void Report, the Board submitted a Revision-to-Action report, which the guidelines described as “a report of an action that modifies an adverse action previously reported.” When a Revision-to-Action Report is filed, the Initial Report remains part of the physician’s record. The physician in question, Van Boven, sought a writ of mandamus directing the Board to submit a Void Report. Van Boven argued that the Board’s immunity from suit was waived because the Board acted ultra vires by submitting a Revision-to-Action Report rather than a Void Report. See Van Boven at pg. 1-9.
The trial court denied the Board officials’ plea to the jurisdiction based on governmental immunity, but the court of appeals reversed and rendered judgment dismissing Van Boven’s suit for lack of jurisdiction. The Texas Supreme Court reversed the dismissal, finding that, under the facts of the case, the Board was required to file a Void Report with the Data Bank and that the officials’ actions to the contrary were ultra vires such that those officials are not immune from Van Boven’s claims. Van Boven at pg. 16. In describing the confluence of governmental immunity and the ultra vires doctrine, the supreme court stated:
The Board’s sovereign immunity from suit as a state agency extends to its officials who act consistently with the law but not to those who act ultra vires—that is, “without legal authority or [by] fail[ing] to perform a purely ministerial act.” An official acts without legal authority when he “exceeds the bounds of his granted authority or if his acts conflict with the law itself.” An official fails to perform a ministerial act when he fails to comply with a law that “prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” An official who acts ultra vires is not acting for the state and not entitled to its immunity. But “it is not an ultra vires act for an official to make an erroneous decision within the authority granted.”
Van Boven at pg. 10.
Under what circumstances do officials on a planning and zoning commission commit ultra vires acts and therefore lose the protection of governmental immunity?
In Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., — S.W.3d —, (Tex. June 3, 2022) [20- 0855] (“Schroeder”), the issue was whether governmental immunity protected a zoning commission’s determination that a proposed subdivision conformed with applicable law. There, a developer sought approval from a planning and zoning commission of a preliminary plat for a new subdivision. The commission concluded the plat conformed to UDC requirements, and that it had a duty under law to approve the conforming plat. A neighboring homeowners association sued the commission members in their official capacities for mandamus relief, asserting that the plat was nonconforming to the applicable city’s Unified Development Code (UDC). In a plea to the jurisdiction based on governmental immunity, the commissioners argued that they had a ministerial duty to approve a plat they had determined to be conforming. The trial court granted the commissioners’ plea. The court of appeals reversed, finding that the increased traffic along with the accompanying safety risks amounted to a particularized injury and that the determination of whether the plat was conforming was a matter of discretion, judicially reviewable for a clear abuse.
The Texas Supreme Court reversed the court of appeals, concluding that governmental immunity protected the commissioners’ determination of conformity. In describing the confluence of governmental immunity applicable to plat approval and the ultra vires doctrine, the supreme court stated:
“[P]lat approval is a discretionary function that only a governmental unit can perform.” But once the relevant governmental unit determines that a plat conforms to applicable regulations, it has a ministerial duty to approve that plat. The Commission made such a determination in this case. If correct in its determination of conformity, then the Commission had a ministerial duty to approve the plat. . . .
Governmental immunity protects the State’s political subdivisions from suit and liability. The Legislature may waive governmental immunity by statute. . . However, governmental immunity will “not bar a suit against a government officer for acting outside his authority—i.e., an ultra vires suit.” “To fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” “[A] government officer with some discretion to interpret and apply a law may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict with the law itself.” If the challenged actions “were not truly outside the officer’s authority or in conflict with the law,” then the plaintiff has not stated a valid ultra vires claim and governmental immunity will bar the suit.
Schroeder at pg. 4-6. The Court—in concluding that the commissioners fully considered the applicable UDC requirements and applied those requirements to the determination of conformity—concluded as follows:
The platting process is intended to be an expeditious one that favors approval. The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one. If a municipal planning and zoning commission wants to deny a plat for nonconformance, it has only thirty days to do so. After that, the plat is generally approved—even if nonconforming. And unlike the related field of zoning, where the Legislature has statutorily approved suits by a broad swath of plaintiffs to challenge allegedly improper zoning decisions, the Legislature has not created a mechanism for third parties to seek judicial review of a municipality’s platting approval. Providing one against the Commissioners in this case would undercut both our well-established limitations on ultra vires suits and the Legislature’s plain preference for speedy platting decisions. The Commissioners are duty-bound to interpret the UDC, consider certain listed items, and determine whether a plat conforms to the standards in the UDC. Because the Commissioners adhered to this duty in determining that the . . . preliminary plat conformed to the applicable standards, the trial court lacked jurisdiction to compel a contrary determination by mandamus.
Schroeder at pg. 11-13.
Insights. These two opinions of Van Boven and Schroeder are illustrative of the on-going challenges citizens face when harmed or potentially harmed by the actions or inactions of governmental officials. Governmental immunity grants state and local government officials a strong and sometimes impenetrable shield when faced with a lawsuit or liability for actions or inactions that are or may be contrary to law applicable to the governmental function to be served or performed by those officials. The law recognizes a few swords that may penetrate that shield, one of which is legislative enactment and another is a concept called the “ultra vires exception.” See also Freeman Law attorney, Jason Freeman’s blog on The Ultra Vires Exception to Sovereign Immunity in Texas (April 12, 2022); and Freeman Law attorney, Cory Halliburton’s What is a whistle-blow “report under the Texas Whistleblower Act? (addressing governmental immunity and waiver of same for qualified reports made by governmental employees).