FROM
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-004316, THE HONORABLE TIM SULAK, JUDGE PRESIDING
Before
Justices Goodwin, Baker, and Smith.
MEMORANDUM OPINION
Edward
Smith, Justice.
Herbert
Feist appeals from the district court's order sustaining
a plea to the jurisdiction filed by David Gutierrez, Chairman
of the Texas Board of Pardons and Paroles, and Lorie Davis,
Director of the Institutional Division of the Texas
Department of Criminal Justice. We will affirm the district
court's order.
Feist,
an inmate confined in the Institutional Division, sued
Gutierrez and Davis seeking a writ of mandamus compelling his
release on parole and payment of certain funds. Specifically,
he sought $150 that he claims should have been paid when he
was released on parole in 2007 and reimbursement of certain
parole fees collected from him without statutory
authorization before the revocation of his parole in 2016.
Gutierrez and Davis filed a plea to the jurisdiction. The
district court sustained the plea and dismissed Feist's
suit with prejudice. This appeal followed.
Feist
subsequently informed this Court by letter that he has been
released on parole. We must first consider whether his
release moots this case because courts have no jurisdiction
to decide moot cases. See Glassdoor, Inc. v. Andra
Grp., __ S.W.3d __, __, No. 17-0463, 2019 WL 321934, at
*2 (Tex. Jan. 25, 2019).[1] "Mootness occurs when events make
it impossible for the court to grant the relief requested or
otherwise 'affect the parties' rights or
interests.'" State ex rel. Best v. Harper,
562 S.W.3d 1, 6 (Tex. 2018) (quoting Heckman v.
Williamson County, 369 S.W.3d 137, 162 (Tex. 2012)).
Feist has obtained the release he sought, but his claim for
money damages continues to present a live controversy.
Feist's appeal of the district court's ruling is not
moot as to that issue. See In re Kellogg Brown &
Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig.
proceeding) ("A case is not rendered moot simply because
some of the issues become moot during the appellate
process.").
Having
concluded that Feist's appeal is not entirely moot, we
turn to whether the district court correctly sustained the
plea to the jurisdiction. We review a court's disposition
of a plea to the jurisdiction de novo. Meyers v.
JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018).
We construe the pleadings liberally and in light of the
pleader's intent to determine if the plaintiff has
alleged facts affirmatively demonstrating the trial
court's jurisdiction to hear the claim.[2] Id.
Gutierrez
and Davis argue for the first time on appeal that sovereign
immunity bars Feist's claim. See Rusk State Hosp. v.
Black, 392 S.W.3d 88, 95 (Tex. 2012) (instructing
appellate courts to consider sovereign immunity arguments
raised for first time on appeal). Sovereign immunity from
suit defeats a court's subject matter jurisdiction over
suits against the state unless the state consents and waives
its immunity. Nazari v. State, 561 S.W.3d 495, 500
(Tex. 2018). Claims for retrospective monetary relief
"even by way of mandamus . . . are generally barred by
immunity, absent legislative consent." In re Nestle
USA, Inc., 359 S.W.3d 207, 212 (Tex. 2012) (orig.
proceeding). If the Legislature chooses to waive immunity, it
must do so by "clear and unambiguous language."
Tex. Gov't Code § 311.034. Feist seeks retrospective
money damages but makes no attempt to identify a waiver of
sovereign immunity. We conclude Feist failed to allege facts
affirmatively demonstrating the district court's
jurisdiction over his claim.
Feist
asks us to remand this case to give him an opportunity to
replead. Appellate courts generally must remand a case to
afford parties an opportunity to amend their pleadings to
cure a jurisdictional problem when the jurisdictional issue
arose for the first time on appeal. Clint Indep. Sch.
Dist. v. Marquez, 487 S.W.3d 538, 558-59 (Tex. 2016).
But remand is unnecessary if the plaintiff would be unable to
amend his pleadings to invoke the trial court's
jurisdiction. Rusk State Hosp., 392 S.W.3d at 96.
Even if Feist were to amend his pleadings to assert Gutierrez
and Davis acted ultra vires, he would also need to identify a
waiver of sovereign immunity for the money damages he seeks.
See City of El Paso v. Heinrich, 284 S.W.3d 366,
373-77 (Tex. 2009) (explaining immunity generally bars
retrospective monetary relief even in context of
otherwise-proper ultra vires claim). In the absence of a
waiver that Feist could conceivably plead facts to invoke, we
will not afford him an opportunity to amend. See Texas
Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867
(Tex. 2002) ("A plaintiff has a right to amend her
pleadings to attempt to cure pleading defects if she has not
alleged enough jurisdictional facts.").
We
affirm the district court's order sustaining the plea to
the jurisdiction.
Affirmed.
---------
Notes:
[1] We address whether the appeal is moot
on our own motion because courts are "obliged to
ascertain that subject-matter jurisdiction exists regardless
of whether the parties have questioned it."
Raghunath Dass, P.E. v. Texas Bd. of Prof'l
Eng'rs, 517 S.W.3d 252, 257 (Tex. App.-Austin 2017,
no pet.) (quoting University of Tex. ...