Texas Case Law

IN RE OF C. S. 03-05-00654-CV (Tex.App. [3rd Dist.]
1-11-2007) In the Interest of C. S. and I. P. No.
03-05-00654-CV. Court of Appeals of Texas, Third District,
Austin. Filed: January 11, 2007.





In this interlocutory appeal, the Texas Department of
Family and Protective Services and Carey Cockerell, in his
official capacity as its executive director, challenge the
trial court’s denial of their joint plea to the
jurisdiction.[fn1] The trial court appointed attorney ad
litem Richard LaVallo for the purpose of obtaining adoption
services for C. S. and I. P., two children in the foster
care system. LaVallo filed this lawsuit for declaratory and
injunctive relief, requesting that the Department provide
an increased adoption subsidy to C. S. and I. P.’s foster
parents so that the foster parents could meet the financial
requirements for adoption. On appeal, the Department
contends that the trial court erred by denying its plea to
the jurisdiction because the relief sought by LaVallo is
barred by sovereign immunity. We agree with the Department
and, accordingly, reverse the trial court’s denial of the
plea to the jurisdiction.

C. S. and I. P. are siblings who have been in the foster
care system since December 1997. The parental rights of
their biological parents were terminated in 1999. The
Department is the permanent managing conservator of both
children, and it has been searching for an adoptive home
for them since January 2000. C. S. and I. P., along with
their sibling B.P., have lived with foster parents Charles
and Theresa Stewart since August 2001. The Stewarts work
for Caring Family Network, a child placement agency. The
Department pays Caring Family Network $5,850 per month to
provide the children with foster placement, and the
Stewarts directly receive $3,150 of this money. The
Stewarts desire to adopt C. S., I. P., and B. P. They are
the only family currently willing to adopt these children
despite a nationwide search by the Department for an
adoptive home.[fn2] However, if the Stewarts were to adopt
the children, they would no longer be eligible to receive
foster care payments in the amount of $3,150 per month and
would instead qualify for adoption subsidies in the amount
of $1,635 per month. Based on the adoption subsidy, the
Stewarts do not meet the financial requirements to qualify
as an adoptive placement for the children.

In February 2004, the trial court appointed attorney ad
litem LaVallo “for the purpose of obtaining appropriate
adoptive services, including but not limited to adoption
subsidies, to enable the children to be maintained in their
current placement as an adoptive placement.” In October
2004, LaVallo filed a counterclaim for declaratory and
injunctive relief in the trial court as next friend of C. S.
and I. P.[fn3] The counterclaim requested that the trial
court “issue a permanent injunction requiring
Cross-Respondent Chapmond[fn4] or his successor to provide
Charles and Theresa Stewart with adoption subsidies for [C.
S. and I. P.] which are equal to the amount paid to them in
foster care payments.” In his third amended counterclaim,
LaVallo recharacterized the injunctive relief sought,
requesting that the trial court issue a permanent
injunction to “remove the unconstitutional barriers that
prevent [C. S. and I. P.] and their sibling from being
adopted by the only available pre-adoptive parents.”

In response, the Department filed a plea to the
jurisdiction, asserting, inter alia, that LaVallo’s
counterclaim for declaratory and injunctive relief is
barred by sovereign immunity. The trial court held a
hearing on the plea to the jurisdiction on September 15,
2005, and entered an order denying the plea. This is an
interlocutory appeal of that order.

A plea to the jurisdiction is a dilatory plea used “to
defeat a cause of action without regard to whether the
claims asserted have merit.” Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges
the trial court’s authority to determine the subject matter
of a pleaded cause of action. City of Celina v. Blair, 171
S.W.3d 608, 610 (Tex.App.-Dallas 2005, no pet.). Because the
existence of subject matter jurisdiction is a question of
law, we review the trial court’s denial of the Department’s
plea to the jurisdiction under a de novo standard. See
Frasier v. Yanes, 9 S.W.3d 422, 425 (Tex.App. –
Austin 1999, no pet.).

Sovereign immunity protects the State from lawsuits for
monetary damages absent legislative consent to sue the
State. Rylander v. Caldwell, 23 S.W.3d 132, 135
(Tex.App.-Austin 2000, no pet.) (citing Federal Sign v.
Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)). Under the
doctrine of sovereign immunity, in the absence of
legislative consent to suit, a court has no subject matter
jurisdiction to entertain a suit against a governmental
unit. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636,
638 (Tex. 1999). Additionally, private parties cannot
circumvent the State’s sovereign immunity from suit by
characterizing a suit for monetary damages as a declaratory
judgment claim or a request for injunctive relief. See
Texas Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 856 (Tex. 2002); County of Galveston v. Tolle,
176 S.W.3d 859, 863 (Tex.App.-Houston [1st Dist.] 2005,
pet. denied). In this case, LaVallo requested that the
court enter an injunction to “remove the unconstitutional
barriers” that prevent C. S. and I. P. from being adopted
by the Stewarts. On appeal, he contends that his
counterclaim against the Department is not barred by
sovereign immunity because it seeks an equitable remedy for
a constitutional violation. However, despite its innovative
context, the request for injunctive relief is, in fact, a
suit for monetary relief. To grant the relief sought in
this case, the court would have to order the Department to
pay the Stewarts an increased adoption subsidy each month
so that they could meet the financial qualifications for
adoption. Increasing the amount paid from the Department to
the Stewarts each month is the only way the court could
remove the alleged “unconstitutional barriers” claimed
here. The simple reality of this case is that it is an
attempt to force the State to pay money to the Stewarts
that the State is not willing to pay on its own volition.
Although concealed in injunctive language, this is a suit
for monetary relief. Because the legislature has not
consented to this suit for monetary relief, it is barred by
sovereign immunity. See IT-Davy, 74 S.W.3d at 856; Tolle,
176 S.W.3d at 863.

LaVallo contends that sovereign immunity does not bar his
counterclaim against the Department because the trial court
has jurisdiction to order injunctive relief that has a
significant impact on the State’s budget as was done in
several cases addressing the constitutionality of the Texas
public school finance system. See Neeley v. W. Orange-Cove
Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005);
Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.
1995); Carrollton-Farmers Branch Indep. Sch. Dist. v.
Edgewood Indep. Sch. Dist., 826 S.W.2d 489 (Tex. 1992);
Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.
1991); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391
(Tex. 1989). However, all of the cases cited by the ad
litem rely on the following unique provision of the Texas
Constitution: “it shall be the duty of the Legislature of
the State to establish and make suitable provision for the
support and maintenance of an efficient system of public
free schools.” Tex. Const. art. VII, § 1. Here,
there is no constitutional directive for the legislature to
provide adoption subsidies of any amount to potential
adoptive parents. Therefore, the school finance cases are
distinguishable and do not affect the jurisdictional bar of
sovereign immunity in this case.

We reverse the trial court’s order denying the Department’s
plea to the jurisdiction and render judgment dismissing
LaVallo’s counterclaim for lack of jurisdiction.

Reversed and Rendered

[fn1] We will refer to the Texas Department of Family and
Protective Services and Carey Cockerell, in his official
capacity as its executive director, collectively as “the

[fn2] C. S. and I. P. are teenagers with severe emotional
and behavioral problems.

[fn3] Richard LaVallo is an attorney with Advocacy, Inc.,
the federally funded and authorized protection and advocacy
system for Texans with disabilities. He was appointed to
represent C. S. and I. P. because of their disabilities. He
was not appointed to represent B.P. because B.P. does not
have a disability.

[fn4] Thomas Chapmond was the executive director of the
Department prior to Carey Cockerell.