Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 95th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-07331
Justices Francis, Brown, and Stoddart
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). For the following reasons, we affirm the
trial court's order.
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,  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."
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,
also must allege a valid waiver of sovereign immunity.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d
540, 542 (Tex. 2003).
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).
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
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.
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).
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. 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 ...