the 361st District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
issue, appellant, Efstratios Pistikopoulos, argues that the
trial court improperly granted a plea to the jurisdiction in
favor of appellees, Texas A&M University and Ken Paxton,
Attorney General of Texas, which allowed appellees to assert
sovereign immunity for an alleged ultra-vires action. We
dispute stems from the same set of facts alleged in a prior
appeal and corresponding mandamus in this Court. See
generally Vestal v. Pistikopoulos (In re Vestal), Nos.
10-16-00034-CV & 10-16-00035-CV, 2016 Tex.App. LEXIS 7958
(Tex. App.-Waco July 27, 2016, no pet.) (mem. op.). As noted
in our prior opinion, Pistikopoulos filed a verified petition
in the trial court requesting depositions of Kidron Vestal, a
former staff member at Texas A&M University, under Texas
Rule of Civil Procedure 202. See id. at *2.
Pistikopoulos alleged that Vestal falsely claimed that he
harassed and tried to kiss her and that the allegations
"harmed [his] reputation, and caused [him] to be
investigated by his employer." Id.
Additionally, in his petition, Pistikopoulos indicated that
he wished to elicit deposition testimony from Vestal
regarding statements she may have made about him to third
parties because he believed that such testimony was necessary
to "determine whether he has a claim for defamation, or
any other tort actions, against Vestal." Id.
opinion in the prior appeal and mandamus, we determined that
Pistikopoulos's petition was too broad because "[i]t
is conceivable that the statements sought by Pistikopoulos
could involve actions both within and outside the course and
scope of Vestal's employment. . . . [And] such statements
. . . could implicate immunity." Id. at
**10-11. Accordingly, we concluded that the trial court erred
in denying a plea to the jurisdiction filed by Vestal and
granting Pistikopoulos's Rule 202 petition. Id.
at *12. However, we remanded the proceeding to the trial
court to allow Pistikopoulos an opportunity to amend his
petition to avoid immunity or other undiscoverable issues.
with his Rule 202 petition, Pistikopoulos also filed an
action against appellees seeking a declaration that Vestal is
not entitled to representation by the Texas Attorney General
in a Rule 202 action. Appellees responded by filing original
and amended pleas to the jurisdiction. In their amended plea
to the jurisdiction, appellees contended that: (1)
Pistikopoulos lacks standing to challenge the Attorney
General's representation of Vestal because his
"claim is a generalized grievance" and that he has
no injury distinct from anybody else"; (2) Pistikopoulos
failed to plead a waiver of sovereign immunity; and (3) to
the extent that Pistikopoulos alleged an ultra-vires claim,
it fails to confer subject-matter jurisdiction After a
hearing, the trial court granted appellees' amended plea
to the jurisdiction. This appeal followed.
Standard of Review
to the jurisdiction is a dilatory plea used to defeat a cause
of action without regard to whether the claims asserted have
merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000). The plea based on immunity challenges
the trial court's subject-matter jurisdiction.
Id.; see State v. Holland, 221 S.W.3d 639,
642 (Tex. 2007). Whether the trial court has subject-matter
jurisdiction and whether the pleader has alleged facts that
affirmatively demonstrate the trial court's
subject-matter jurisdiction are questions of law that we
review de novo. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
plaintiff has the burden to plead facts affirmatively showing
that the trial court has jurisdiction. Tex Ass'n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). We construe the pleadings liberally in favor of the
pleader, look to the pleader's intent, and accept as true
the factual allegations in the pleadings. See
Miranda, 133 S.W.3d at 226, 228. If a plea to the
jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised,
as the trial court is required to do, even those facts which
may implicate the merits of the cause of action. Id.
court's review of a plea to the jurisdiction challenging
the existence of jurisdictional facts mirrors that of a
traditional motion for summary judgment. Id. at 228;
see Tex. R. Civ. P. 166a(c). The governmental unit
is required to meet the summary judgment standard of proof
for its assertion that the trial court lacks jurisdiction.
Miranda, 133 S.W.3d at 228. Once the governmental
unit meets its burden, the plaintiff is then required to show
that there is a disputed material fact regarding the
jurisdictional issue. Id. If the evidence creates a
fact question regarding jurisdiction, the trial court must
deny the plea to the jurisdiction and leave its resolution to
the factfinder. Id. at 227-28. But, if the evidence
is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to
the jurisdiction as a matter of law. Id. at 228.
"In considering this evidence, we 'take as true all
evidence favorable to the nonmovant' and 'indulge
every reasonable inference and resolve any doubts in the
nonmovant's favor.'" City of Waco v.
Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (quoting
Miranda, 133 S.W.3d at 228).
sole issue on appeal, Pistikopoulos contends that the trial
court erred in granting appellees' amended plea to the
jurisdiction because the Texas Attorney General has no legal
authority to represent a Rule 202 deponent in the trial
court. And because the Texas Attorney General purportedly had
no legal authority to represent Vestal in the trial court,