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Davis v. Office of Attorney General

Court of Appeals of Texas, Fifth District, Dallas

May 18, 2018


          On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-07331

          Before Justices Francis, Brown, and Stoddart



         Pro se appellant Donald Davis appeals the trial court's order granting a plea to the jurisdiction filed by appellee Office of the Attorney General (OAG). In a single issue, Davis contends the trial court erred in granting the plea because OAG is not entitled to sovereign immunity protection from his claims alleging violations of the Fair Credit and Reporting Act (FCRA).[1] For the following reasons, we affirm the trial court's order.


         According to his first amended petition, Davis received four OAG notices informing him he owed past due child support and, unless he paid the amounts due within thirty days, OAG would report the arrears to consumer reporting agencies and the Internal Revenue Service. Davis disputed that he owed the child support and ultimately brought this action against OAG alleging a number of FCRA violations and libel by "placing false reports." OAG answered, asserting sovereign immunity as an affirmative defense, and subsequently filed a plea to the jurisdiction challenging the trial court's subject-matter jurisdiction over Davis's claims. Following a hearing, [2] the trial court entered an order granting OAG's plea to the jurisdiction and noted that "[n]o amendment of the pleadings would overcome [OAG's] sovereign immunity."

         Applicable Law

         A plaintiff has the burden of pleading and proving the trial court has subject-matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plaintiff suing a state agency, such as OAG, [3] also must allege a valid waiver of sovereign immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

         A defendant may assert immunity from suit through a plea to the jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018). If the plea challenges the pleadings, we determine whether the plaintiff alleged facts affirmatively demonstrating subject-matter jurisdiction. Id. We look to the pleader's intent, construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings as true. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively negate subject-matter jurisdiction, the trial court must grant a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

         The Eleventh Amendment shields states and state agencies from suit in either federal or state court unless either (1) Congress has abrogated that immunity pursuant to a valid grant of constitutional authority or (2) the state has voluntarily waived the immunity. U.S. Const. Amend. XI; Alden v. Maine, 527 U.S. 706, 754 (1999); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010); Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004) (per curiam) ("Eleventh Amendment immunity protects nonconsenting states from being sued in their own courts for federal law claims"). To abrogate the states' Eleventh Amendment immunity, Congress must unequivocally intend to do so and act pursuant to a valid grant of constitutional authority. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996); see Herrera, 322 S.W.3d at 195 & n. 12. A state's waiver of immunity for federal claims must be "unequivocally expressed." Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990). A court "will give effect to a [s]tate's waiver of Eleventh Amendment immunity only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Id. (citation and internal quotations omitted).

         Congress enacted FCRA for the purpose of requiring "consumer reporting agencies [to] adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information... ." 15 U.S.C. § 1681(b). The statute imposes significant responsibilities on credit reporting agencies, and a consumer injured by the negligent or willful failure of a reporting agency to comply with any of FCRA's requirements may sue for damages. Id. at §§ 1681e, 1681i, 1680n, 1681o.

         Although no Texas state court has addressed whether Eleventh Amendment sovereign immunity shields a state or state agency, like OAG, from FCRA claims, other courts doing so have concluded that it does. See, e.g., Banks v. ACS Educ., 638 Fed.Appx. 587, 589 (9th Cir. 2016) (mem. op.); Webb v. Texas Higher Educ. Coordinating Bd., EP-14-CV-00345-FM, 2014 WL 12594193, at *10 (W.D. Tex. Dec. 12, 2014); Sorrell v. Illinois Student Assistance Comm'n, 314 F.Supp.2d 813, 817 (C.D. Ill. 2004). Those courts have determined that, because Congress enacted FCRA pursuant to authority derived from the Commerce Clause and not from section 5 of the Fourteenth Amendment, it lacked a valid grant of constitutional authority to abrogate state immunity for FCRA claims. See Banks, 638 Fed.Appx. at 589; Webb, 2014 WL 12594193, at *10; Wright v. Applied Bank, No. 11-585-GMS, 2012 WL 3758957, at *2 (D. Del. Aug. 28, 2012); Bardes v. South Carolina, No. 2:10-559-PMD-RSC, 2010 WL 1498332, at *4 (D. S.C. Mar. 11, 2010); Densborn v. Trans Union, LLC, No. 08-C-3631, 2009 WL 331466, at *2 (N. D. Ill. Feb. 10, 2009); Peaslee v. Illinois Student Assistance Comm'n, No. 08-C-3167, 2008 WL 4833124, at *2 (N.D. Ill. Oct. 27, 2008); Alexander v. District Court of Md. for Charles Cty., No. DKC-2007-1647, 2008 WL 6124449, *7 (D. Md. Mar. 20, 2008), aff'd, 290 Fed.Appx. 595 (4th Cir. 2008); Betts v. Commonwealth of Va., No. 3:06CV753, 2007 WL 515406, at *3 (E.D. Va. Feb. 2, 2007); Rovers v. Oregon Dep't. of Justice Div. of Child Support, No. 05-6122-AA, 2005 WL 2218457, at *1 (D. Or. Sept. 13, 2005); Sorrell, 314 F.Supp.2d at 817; O'Diah v. New York City, No. 02-CV-274(DLC), 2002 WL 1941179, at *6 (S.D.N.Y. Aug. 21, 2002); Richmond v. TRW Info Servs. Div., No. 96-1150 JM (POR), 1997 WL 1037886, at *4 (S.D. Cal. July 22, 1997); see also Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003) (recognizing Congress may not abrogate sovereign immunity pursuant to Commerce Clause).


         In his sole issue, Davis contends the trial court erred in granting OAG's plea to the jurisdiction because the Eleventh Amendment does not bar his FCRA claims in state court.[4] Davis relies on Campbell v. Baldwin, 90 F.Supp.2d 754 (E.D. Tex. 2000), in which the district court refused to dismiss the plaintiff's FCRA claims despite the defendants' assertion of Eleventh Amendment sovereign immunity. The defendants, however, were individual child support officers - not the state or a state agency - and the plaintiff sought only prospective injunctive relief. Id. at 755. The court held that, under those circumstances, the Eleventh Amendment did not bar the FCRA claims because official capacity actions for prospective relief are not treated as actions against the state. Id. at 755-56 (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, n. 10 (1989)); see also Ex Parte Young, 209 U.S. 123, 160 (1908) (Eleventh Amendment does not bar ...

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