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Pistikopoulos v. Texas A&M University and Ken Paxton

Court of Appeals of Texas, Tenth District

March 1, 2017

EFSTRATIOS PISTIKOPOULOS, Appellant
v.
TEXAS A&M UNIVERSITY AND KEN PAXTON, ATTORNEY GENERAL OF TEXAS, Appellees

         From the 361st District Court Brazos County, Texas Trial Court No. 16-000526-CV-361.

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice

         In one 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 affirm.

         I. Background

         This 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.[1] 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.

         In our 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. Id.

         Concurrently 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.

         II. Standard of Review

         A plea 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).

         The 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. at 227.

         A trial 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).

         III. Analysis

         In his 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, ...


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