Court of Appeals of Texas, Third District, Austin
Texas Health and Human Services Commission; Department of State Health Services;HHSC Executive Commissioner Charles Smith; DSHS Commissioner John Hellerstedt, M.D.; and DSHS Hearing Officer Elaine Snow, Appellants
Jane Doe, Appellee
THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-16-002113, HONORABLE JAMES E. MORGAN, JUDGE
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice.
the Department of State Health Services (DSHS) issued a
decision denying Jane Doe's request for a certified Texas
birth certificate, Doe filed a petition in the trial court
seeking judicial review of the agency's order. The
appellants (collectively, the HHSC Defendants) filed a plea
to the jurisdiction, which the trial court denied. The HHSC
Defendants appeal this interlocutory order. See Tex.
Civ. Prac. & Rem. Code § 51.014(a)(8). In three
appellate issues, the HHSC Defendants contend that the trial
court erred in denying the plea because the Uniform
Declaratory Judgments Act (UDJA) does not waive sovereign
immunity for Doe's claims, the Administrative Procedures
Act (APA) does not provide for judicial review of DSHS's
decision, and Doe did not plead valid ultra vires claims.
Because we conclude that neither the UDJA nor the APA
conferred jurisdiction over Doe's claims and that Doe
failed to plead valid ultra vires claims, we will reverse the
trial court's order denying the HHSC Defendants' plea
to the jurisdiction and render judgment granting the plea and
dismissing Doe's suit.
following facts are undisputed on appeal. In 1994, the state
registrar received a Texas Certificate of Birth for Doe. The
certificate showed Rosalinda Esquivel as the midwife who
delivered Doe. In 1995, Esquivel pleaded guilty to two counts
of unlawfully procuring evidence of citizenship. See
18 U.S.C. § 1425 ("Procurement of citizenship or
naturalization unlawfully"). Esquivel executed a sworn
affidavit in which she admitted to unlawfully obtaining Texas
birth certificates for about 500 individuals, including Doe.
This affidavit included Doe's name, date of birth,
alleged place of birth, and the names of Doe's parents.
In the affidavit, Esquivel admitted that she did not attend
Doe's birth. A Mexican birth certificate for Doe was also
found. This Mexican birth certificate showed the same date of
birth as the Texas certificate but stated that Doe was born
in Mexico. Because Esquivel's affidavit and the Mexican
birth certificate contradicted the information on Doe's
Texas birth certificate, the state registrar placed an
addendum on Doe's Texas birth certificate. See
Tex. Health & Safety Code § 191.033(a) ("The
state registrar may attach to the original record an addendum
that sets out any information received by the state registrar
that may contradict the information in a birth . . . record
required to be maintained in the vital statistics
2014, Doe applied for a certified copy of her birth
certificate. Pursuant to section 191.057 of the Health and
Safety Code, the state registrar refused to issue the birth
certificate because of the addendum on Doe's record.
Section 191.057 provides,
If the vital statistics unit or any local registration
official receives an application for a certified copy of a
birth . . . record to which an addendum has been attached
under Section 191.033, the application shall be sent
immediately to the state registrar. After examining the
application, the original record, and the addendum, the state
registrar may refuse to issue a certified copy of the record
or part of the record to the applicant.
Id. § 191.057(b). The state registrar informed
Doe of the refusal and afforded Doe the opportunity for a
hearing. See id. § 191.057(c).
requested a hearing, which was held before DSHS hearing
examiner Elaine Snow. Following the hearing, Snow signed an
order concluding that the addendum on Doe's record should
not be removed and that the birth certificate should not be
issued because the information that led to the addendum had
not been rebutted. The order also stated that it was a
"final decision" of DSHS, and it included findings
of fact and conclusions of law.
filed a petition in the trial court seeking a "De Novo
Appeal" of DSHS's decision. In her petition, Doe
sought declaratory relief under the UDJA. See Tex.
Civ. Prac. & Rem. Code § 37.004(a). Specifically,
Doe asked the court to interpret 25 Texas Administrative Code
section 181.21(b), which provides that "[t]he criteria
for refusal to issue a certified copy of a record is based on
information the State Registrar receives that contradicts the
information shown in the record" and lists several
examples of such information. See 25 Tex. Admin.
Code § 181.21(b). Doe alleged that 25 Texas
Administrative Code section 181.21(b) is unconstitutional as
applied to her. Doe further complained that 25 Texas
Administrative Code section 181.21(b) fails "to identify
a legal standard and burden of proof for determining the
'false' nature of any contradictory information
received by the State." Doe also sought a temporary
injunction enjoining the HHSC Defendants from
"continuing to place an attachment to her birth
certificate" and "depriving her of obtaining a
certified copy of her birth certificate" until further
order of the court and asked that the court later issue a
HHSC Defendants filed a plea to the jurisdiction, which the
trial court denied, and this appeal followed.
immunity from suit defeats a trial court's subject matter
jurisdiction and thus is properly asserted in a plea to the
jurisdiction." Texas Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
"We construe the pleadings liberally in favor of the
[plaintiff] and look to the pleader['s] intent."
Id. at 226. "If the pleadings do not contain
sufficient facts to affirmatively demonstrate the trial
court[']s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is
one of pleading sufficiency and the [plaintiff] should be
afforded the opportunity to amend." Id. at
226-27. However, "[i]f the pleadings affirmatively
negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the [plaintiff]
an opportunity to amend." Id. at 227. Because