Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.[54] Local governing bodies,[55] therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional 691*691 deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U. S. 144, 167-168 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law."[56]
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We begin with the language of § 1983 as originally passed:
"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such 692*692 law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ." 17 Stat. 13 (emphasis added).
The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "caused" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.[57] See Rizzo v. Goode, 423 U. S. 362, 370-371 (1976).
693*693 Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be 694*694 spread to the community as a whole on an insurance theory. See, e. g., id., § 26.5; Prosser, supra, at 459.[58]
The first justification is of the same sort that was offered for statutes like the Sherman amendment: "The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation." Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: "we do not look upon [the Sherman amendment] as a punishment. . . . It is a mutual insurance." Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 695*695 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.
…
Since the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 "be drained of meaning," Scheuer v. Rhodes, 416 U. S. 232, 248 (1974). Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397-398 (1971).
"Whether a court has subject matter jurisdiction is a question of law." Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction seeks to establish that the trial court lacks jurisdiction to hear a plaintiff's claims by challenging the sufficiency of the plaintiff's pleadings alone or by challenging the existence of jurisdictional facts. See City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009). We review a trial court's decision on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 228.
If a plea challenges the existence of jurisdictional facts, courts "`consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,' even where those facts may implicate the merits of the cause of action." Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d at 227). When the jurisdictional facts implicate the merits, the manner in which the court analyzes the evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Miranda, 133 S.W.3d at 228. "[T]he courts, both trial and appellate, `take as true all evidence favorable to the nonmovant' and `indulge every reasonable inference and resolve any doubts in the nonmovant's favor.'" Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d at 228). If the evidence raises a fact issue as to jurisdiction, that issue is left for the fact-finder to decide. Id. "However, if the relevant 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. (quoting Miranda, 133 S.W.3d at 228). Although a plaintiff need not put on its case to establish jurisdiction, the plaintiff must "show that there is a disputed material fact regarding the jurisdictional issue." Id.; see Tex. R. Civ. P. 166a(c).
"In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit." Miranda, 133 S.W.3d at 224. However, a county generally "has no sovereign immunity from a [Section] 1983 claim."[2] Rocha v. Potter County, 419 S.W.3d 371, 376 (Tex. App.-Amarillo 2010, no pet.) (citing County of Dallas v. Sempe, 151 S.W.3d 291, 299-300 (Tex. App.-Dallas 2004, pet. dism'd w.o.j.)). Thus, a local governmental entity "may be sued for deprivation of constitutional rights under [S]ection 1983, but such deprivations must be pursuant to an official policy or pursuant to a widespread custom of the municipality." Roberson v. City of Austin, 157 S.W.3d 130, 140 (Tex. App.-Austin 2005, pet. denied) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978)).
An official government policy can be proven in more than one way. It includes: (1) official decisions promulgated by a local government's lawmaking body; (2) longstanding practices so persistent and widespread as to fairly represent government policy or the force of law; and (3) the acts or policies of officials who by law or delegation possess final policymaking authority for the local government concerning the action alleged to have caused the particular constitutional or statutory violation at issue.
Harris County v. Coats, 607 S.W.3d 359, 373 (Tex. App.-Houston [14th Dist.] 2020, no pet.); see Democracy Coal. v. City of Austin, 141 S.W.3d 282, 289 (Tex. App.-Austin 2004, no pet.) (policy can be official custom or take form of duly promulgated policy statements, regulations, or similar act (citing Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001))).
Thus, municipal liability under Section 1983 requires: "(1) a policymaker, (2) an official policy or custom, and (3) a violation of constitutional rights whose `moving force' is the policy or custom," which "distinguish[es] individual violations of employees from those that can be fairly identified as actions of the government itself." Roberson, 157 S.W.3d at 140 (quoting Piotrowski, 237 F.3d at 578). The plaintiff must "plead facts showing that: (1) a policy or custom existed, (2) the governmental policymakers actually or constructively knew of the policy's existence, (3) a constitutional violation occurred, and (4) the custom or policy served as the moving force behind the violation." Rocha, 419 S.W.3d at 376. The "description of the policy or custom and its relationship to the constitutional violation cannot be conclusory; it must contain specific facts." Id.
A governmental unit may use a plea to the jurisdiction to challenge a Section 1983 claim. See Tejas Motel, L.L.C. v. City of Mesquite, No. 05-19-00667-CV, 2020 WL 2988566, at *5 (Tex. App.-Dallas June 4, 2020, pet. denied) (mem. op.); Jackson v. Port Arthur Indep. Sch. Dist., No. 09-15-00227-CV, 2017 WL 1425589, at *5 (Tex. App.-Beaumont Apr. 20, 2017, no pet.) (mem. op.); City of Dallas v. Saucedo-Falls, 268 S.W.3d 653, 657 (Tex. App.-Dallas 2008, pet. denied). If the plaintiff's pled claims have been challenged with evidence to support the dismissal of the claims, "the burden shifts to the plaintiff to raise a material fact issue regarding jurisdiction to survive the plea." Jackson, 2017 WL 1425589, at *5 (citing Miranda, 133 S.W.3d at 228).
Unless waived, governmental immunity protects political subdivisions of the state, such as cities and their officers, from suit and liability.[10] Chambers-Liberty Counties Navigation Dist., 575 S.W.3d at 344; Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 157 (Tex. 2016); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity is a fundamental principle of Texas law, intended "to shield the public from the costs and consequences of improvident actions of their governments." Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Governmental immunity deprives a trial court of subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. City of Houston v. Houston Mun. Employees Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018) (citing Reata Constr. Corp., 197 S.W.3d at 374); Miranda, 133 S.W.3d at 225-26.
The Texas Supreme Court, however, has recognized that "immunity does not bar a suit in at least two circumstances relevant to appellants' claims: (1) when the suit seeks to determine or protect a party's rights against a government official who has acted without legal or statutory authority—commonly referred to as an ultra vires claim; or (2) when the suit challenges the validity of a statute." Tex. Transp. Comm'n v. City of Jersey Vill., 478 S.W.3d 869, 875 (Tex. App.-Houston [14th Dist.] 2015, pet. denied).
In this case, appellants argue that Mayor Turner is not immune from suit under the first circumstance. Appellants further contend the City is not immune under the second circumstance because it is a necessary party under the Uniform Declaratory Judgments Act ("the UDJA"). See Tex. Civ. Prac. & Rem. Code § 37.002, et seq. Each exception to immunity is discussed below.
An ultra vires claim against a government official-that is, a suit against a government official for acting outside his or her authority and seeking to require the official to comply with statutory or constitutional provisions-is not barred by immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009); Turner v. Robinson, 534 S.W.3d 115, 125-26 (Tex. App.-Houston [14th Dist.] 2017, no pet.); Lazarides v. Farris, 367 S.W.3d 788, 800 (Tex. App.-Houston [14th Dist.] 2012, no pet.). An ultra vires claim cannot be asserted against a governmental entity but must instead be brought against a government official or employee of a governmental entity. See Heinrich, 284 S.W.3d at 372-73. "The basic justification for this ultra vires exception to [governmental] immunity is that ultra vires acts—or those acts without authority—should not be considered acts of the [the entity] at all." Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). "Consequently, `ultra vires suits do not attempt to exert control over the [governmental entity] — they attempt to reassert the control of the [governmental entity]' over one of its agents." Id. (quoting Heinrich, 284 S.W.3d at 372).
597*597 To fall within this ultra vires exception to governmental immunity, "a suit must not complain of a government [official's] exercise of discretion, but rather must allege, and ultimately prove, that the [official] acted without legal authority or failed to perform a purely ministerial act." Heinrich, 284 S.W.3d at 372.
Because an ultra vires suit is, for all practical purposes, a suit against the governmental entity, relief is limited. Heinrich, 284 S.W.3d at 374. Therefore, a plaintiff alleging an ultra vires claim cannot recover retrospective monetary relief, but is instead limited to prospective declaratory and injunctive relief. Lazarides, 367 S.W.3d at 800, 805. "As Heinrich made clear, immunity for an ultra vires act is only a waiver with regard to bringing future acts into compliance with the law." City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 569 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (citing Heinrich, 284 S.W.3d at 374).
[10] "Official-capacity suits ... `generally represent only another way of pleading an action against an entity of which [the official] is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). A suit brought against an employee in his official capacity "actually seeks to impose liability against the governmental unit rather than on the individual specifically named" and "is, in all respects other than name, ... a suit against the entity." See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007).
42 U.S. Code § 1983 - Civil action for deprivation of rights
The ultra vires doctrine is a narrow exception to governmental immunity. An ultra vires claim against a government official–that is, a suit against a government official for acting outside his or her authority and seeking to require the official to comply with statutory or constitutional provisions–is not barred by immunity. Such a suit is known as an ultra vires suit.
An ultra vires claim cannot be maintained against the governmental entity directly. Rather, it is brought against the government official.