United States: The Ultra Vires Exception To Sovereign Immunity In Texas

Ultra Vires Claims

In the absence of a waiver or consent, state government entities and their employees generally enjoy immunity from liability while acting within the scope of their employment.  Sovereign immunity, as the doctrine is known, protects the State and divisions of state government (including agencies, boards, hospitals, and universities) from lawsuits and liability for damages.  But the doctrine of sovereign immunity is subject to limits, or exceptions, when a government official or officer engages in an ultra vires act.

Under the ultra vires doctrine, sovereign immunity does not prohibit suits against a state official or officer of a state entity if the official's actions were ultra vires.1  Thus, even when a government entity's immunity has not been waived by the Legislature, a claim may proceed against a government official in his official capacity if the plaintiff successfully alleges that the official has engaged in ultra vires conduct.

Sovereign Immunity

"That the king can do no wrong is a necessary and fundamental principle of the English constitution. . . . [N]o action will lie against the sovereign (for who shall command the king?)"

- Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 [1753], Book III, Chapter XVII

Sovereign immunity implicates a court's subject-matter jurisdiction, generally barring suits against the State or its subdivisions absent a clear and unambiguous waiver of immunity by the Legislature. In certain narrow instances, however, a suit against a state official can proceed even in the absence of a waiver of immunity if the official's actions are ultra vires.  Such claims fall outside of the State's umbrella of sovereign immunity.

Sovereign immunity protects the State of Texas and its agencies from suit and liability.  Governmental immunity, on the other hand, provides similar protections to the State's political subdivisions.

What is an Ultra Vires Claim?

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.

Before 2009, the Texas Supreme Court used the phrase "ultra vires" sparingly in connection with suits against the state, its subdivisions, or officials.

But in 2009, the Court began to use the phrase regularly in the context of suits against governmental entities and their officials. In City of El Paso v. Heinrich, the court analyzed a case involving a suit for declaratory and injunctive relief against a pension fund board and its members for allegedly unlawfully reducing benefits.  The Texas Supreme Court found that governmental immunity did not bar the suit for prospective injunctive relief against the pension board members in their official capacities.

The court held that ultra vires suits could not, however, be brought against the state or its political subdivisions.  That is, the suit could only be brought against government actors in their official capacities.

The Texas Supreme court defined an ultra vires claim as "an action to determine or protect a private party's rights against a state official who has acted without legal or statutory authority," and did not confine ultra vires acts to acts taken "outside" the agency's jurisdictional authority.

To fall within this limited exception, the suit "must not complain of a governmental officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act."

 What is the Justification for the Ultra Vires Doctrine?

The basic justification for the ultra vires exception to sovereign immunity is that ultra vires acts-or those acts that are without authority-should not be considered acts of the state at all. As such, ultra vires suits do not technically seek to exert control over the state.  Rather, they effectively seek to reassert the control of the state over one of its agents.

A public officer has no discretion or authority to misinterpret the law.  Therefore, governmental immunity only extends to those government officers who are acting consistently with the law. And unlike suits for money damages, ultra vires claims help defend the integrity of the public treasury and legislative control over scarce resources: extending immunity to officials using state resources in violation of the law would not be an efficient way of ensuring those resources are spent as intended.

How does a Party Allege an Ultra Vires Act?

A party alleges an ultra vires act when they allege that a government official acted without legal authority or failed to perform a purely ministerial act.

A government officer with some discretion to interpret and apply a law may act "without legal authority"-that is, ultra vires-if he or she exceeds the limits of their authority or if the acts conflict with the law itself.  That is, if an official's authority is less than absolute and the official acts outside that limited authority, the acts are ultra vires.  Whether an official's authority is absolute depends not on whether the granting body intended to grant the official authority to exercise discretion, but whether it intended to grant the official absolute discretion.

An ultra vires claim based on actions taken "without legal authority" has two fundamental components: (1) authority giving the official some (but not absolute) discretion to act and (2) conduct outside of that authority.

What is a Ministerial Act for Ultra Vires Purposes? 

"Ministerial acts" are those acts where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.

 What Relief is Available?

Generally, only prospective injunctive relief is available through an ultra vires claim.  Retrospective monetary relief is generally barred.

Footnote 

1  Heinrich, 284 S.W.3d at 369-372 (widow challenged retroactive reduction in benefits by pension fund); see also Chambers-Liberty Ctys. Nav. Dist. v. State, 575 S.W.3d 339, 348-355 (Tex. 2019) (ultra-vires claims against commissioners of coastal-navigation district by State alleging district exceeded its legal authority by entering into lease of certain submerged land when right to enter that lease belonged to different state department); McRaven, 508 S.W.3d at 234, 235-37 (ultra-vires claim against chancellor alleging chancellor exceeded his granted authority in applying applicable laws and withholding records); Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158-61 (Tex. 2016) (railroads alleged City's director of public works acted without legal authority in making determination of status of railroad's property with regard to drainage fees); Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015) (utility company alleged that county commissioners acted ultra vires by refusing to accept responsibility for repayment of relocation costs in violation of statutory duty); Sawyer Trust, 354 S.W.3d at 393-94 (plaintiff sought declaratory judgment against State that streambed on its property was not navigable; however, while court dismissed claim as barred by sovereign immunity, it held plaintiff should have right to amend and assert ultra-vires claim against state actors claiming streambed to be navigable).

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