Date: 09-30-2022

Case Style:

Al Suarez, as Mayor of the City of Converse; et al v. Katherine Silvas

Case Number: 04-21-00113-CV

Judge: Patricia O. Alvarez

Court:

Fourth Court of Appeals San Antonio, Texas

On appeal from the 438th Judicial District Court of Bexar County

Plaintiff's Attorney: Patrick Charles Bernal Scott M. Tschirhart Charles E. Zech

Defendant's Attorney:

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San Antonio, Texas – Governmental Law lawyer represented Appellee with appealing her removal from office as a Converse City Council member.

Silvas Elected to Office In November 2018, Katherine Silvas was elected to Place 4 for the Converse City Council; she was sworn in, and she began serving as a council member.

B. Silvas’s Alleged Directive to City Employee In preparation for the October 15, 2019 city council meeting, Silvas and other city council members received a “September, 2019 Monthly Report” from the City’s Development Services Department, whose director was John J. Quintanilla.

When Quintanilla contacted Silvas to discuss his monthly report, Silvas asked Quintanilla if the report included data on commercial permits. Silvas and Quintanilla disagree on what Quintanilla said in response. Silvas asserts she accepted Quintanilla’s offer to prepare and analyze the report; Quintanilla asserts Silvas directed him—which was allegedly in contravention of the City Charter—to prepare a report for the previous five fiscal years that included commercial permits data.

C. Council’s Motion to Forfeit On October 22, 2019, in an executive session of a special called meeting of the city council, a motion was made that the council forfeit Silvas’s position.

The motion asserted that Silvas’s alleged directive to Quintanilla to prepare the previous years’ report to include commercial permits violated section 2.07(C) of the City Charter—which expressly prohibits “any Council person [from giving] orders to any [City] officer or employee” who “is subject to the direction of the City Manager.” Thus, the motion alleged, section 2.12’s “Forfeiture of Office” provision was invoked—which states that “[a] Council person . . . shall forfeit his office if he . . . [v]iolates any express prohibition of this Charter.” The motion insisted that when Silvas directed Quintanilla to prepare the commercial permits report, she violated one of the Charter’s express prohibitions, and she forfeited her office.

The motion was presented for a vote, and it passed.

D. Silvas’s Suit A few days later, Silvas filed her original petition for declaratory judgment, application for a temporary restraining order, and application for temporary and permanent injunctions. Silvas sued the City of Converse (the City); she also sued Al Suarez, as mayor; Jeff Beehler, Kathy Richel, Shawn Russell, and Marc Gilbert as members of the Converse City Council; Le Ann Piatt as City Manager; and Holly Nagy as the City Secretary (the City Officials).

E. Trial Court Actions The same day Silvas filed her suit, the trial court granted her application for a temporary restraining order. After a hearing, the trial court granted Silvas’s application for a temporary injunction, and it denied Appellants’ (the City’s and the City Officials’) plea and first supplemental plea to the jurisdiction. \\

F. First Appeal In their first appeal, Appellants raised several issues: (1) the City Charter was not a statute or ordinance that could be construed by declaratory judgment; (2) Silvas could not obtain retrospective relief; (3) an ultra vires claim is not proper against the City itself; (4) Silvas did not allege any ultra vires claims against the city manager or city secretary; and (5) Appellants were entitled to legislative immunity. Suarez v. Silvas, 613 S.W.3d 549, 551–53 (Tex. App.—San Antonio 2020, no pet.).

On May 20, 2020, we reversed the portion of the trial court’s order granting a temporary injunction, and we denied the application for temporary injunction. Id. at 559–60. We reversed the portion of the trial court’s order denying Appellants’ plea to the jurisdiction against Silvas’s claims for declaratory relief against the City and all of Silvas’s other claims for declaratory relief except for her ultra vires claims. Id. We affirmed the portion of the trial court’s order denying Appellants’ first plea as it related to Silvas’s ultra vires claims against the City Officials. Id.’

In their motion for rehearing, Appellants argued that because Silvas had already been removed from office, her ultra vires claims seeking prospective relief for past injury were moot, but Appellants’ motion was denied.

G. Intermediate Proceedings In November 2020, Silvas was reelected to Place 4, and she began serving her new term on the city council. Silvas non-suited defendants Jeff Beehler and Kathy Richel, who were no longer members of the city council, and Holly Nagy, who was no longer employed by the City. In their second plea to the jurisdiction, Appellants argued that (1) they had been sued in their official capacities and were entitled to governmental immunity, (2) Silvas’s claims were moot because she has not shown a present waiver of immunity for her ultra vires claims, and (3) Silvas lacks standing to maintain her suit because “she is not currently subject to the alleged illegal conduct for which she seeks declaratory relief.” In their first supplement to their second plea, Appellants also argued that because the City moved to dismiss Silvas’s claims against them under subsection 101.106(e) of the Tort Claims Act, Appellants were immune from suit.

Silvas responded that (1) this court had already rejected Appellants’ mootness arguments, (2) the voluntary cessation exception to mootness applies and Appellants have the heavy burden to show their conduct cannot reasonably be expected to recur, and (3) because the City was no longer a party in the case, it could not properly make a motion under subsection 101.106(e).

H. Second Appeal On March 25, 2021, the trial court denied Appellants’ second plea to the jurisdiction— including its supplements—and Appellants again appeal.

I. Parties’ Arguments In this second appeal, Appellants raise two issues. First, the trial court erred by denying their second plea to the jurisdiction because Silvas lost standing because her ultra vires claims are now moot. Second, the trial court erred by failing to dismiss Silvas’s claims against the individual defendants because they were immunized against suit by the City’s motion to dismiss them under subsection 101.106(e) of the Tort Claims Act. Silvas argues, as a threshold matter, that this court lacks jurisdiction over Appellants’ interlocutory appeal. Next, in response to Appellants’ mootness issue, Silvas argues that the voluntary cessation exception to the mootness doctrine applies, and Appellants did not meet their burden to show their actions are not reasonably capable of repetition. In response to Appellants’ immunity issue, Silvas argues that she did not make any tort claims, the Tort Claims Act does not apply, and the trial court did not err by denying Appellants’ plea to the jurisdiction. Before we address Appellants’ issues, we first address Silvas’s challenge to our subject matter jurisdiction.

APPELLATE JURISDICTION A. Parties’ Arguments In her appellate brief, Silvas argues the trial court’s order denying Appellants’ plea to the jurisdiction is interlocutory, and Appellants may not appeal under section 51.014(a)(8) because they are not governmental units as defined in section 101.001. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014 (“Appeal from Interlocutory Order”), 101.001 (“Definitions”). She acknowledges that the City is a governmental unit, but she insists that Appellants are not because her ultra vires claims are against Appellants for their actions outside their legal authority, and her ultra vires claims against them do not invoke governmental immunity. Therefore, she argues, this court lacks subject matter jurisdiction in this appeal, and it must be dismissed for want of jurisdiction. In their reply brief, Appellants argue that section 51.014(a)(5) authorizes their appeal because their plea to the jurisdiction asserted immunity from suit, and the trial court denied their motion. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5). We agree with Appellants.

B. Applicable Law The legislature authorizes an appeal from an interlocutory order when a trial court “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); Univ. of Tex. Sw. Med. Ctr. of Dall. v. Margulis, 11 S.W.3d 186, 187 (Tex. 2000) (per curiam). “[A]n appeal may be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used.” Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (per curiam) (referencing TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5)). Whether we have subject matter jurisdiction is a 04-21-00113-CV - 7 - question of law which we review de novo. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010); see Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). C. Discussion In Appellants’ second plea to the jurisdiction, they asserted they were governmental officials sued in their official capacity and they argued they were entitled to governmental immunity. Cf. Margulis, 11 S.W.3d at 188 (recognizing that a “motion was ‘based on’ immunity within the meaning of the statute that permits interlocutory appeals” where the movants raised and argued a qualified immunity defense). The trial court denied Appellants’ plea, and under section 51.014(a)(5) and Margulis, we may review the trial court’s order. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); Margulis, 11 S.W.3d at 188; see also Graham, 347 S.W.3d at 301 (procedural vehicles). We conclude we have subject matter jurisdiction in this appeal. See Margulis, 11 S.W.3d at 188; see also Graham, 347 S.W.3d at 301. We turn now to Appellants’ first issue. STANDING, MOOTNESS Appellants’ first issue addresses standing and mootness.

A. Parties’ Arguments Appellants argue the trial court erred by denying their plea to the jurisdiction because Silvas lacks standing. Appellants insist that Silvas’s pleadings “allege only a past injury,” prospective injunctive relief cannot remedy Silvas’s past forfeiture of office, and Silvas’s remaining ultra vires claims are now moot. Finally, Appellants assert that, because Silvas’s claims are moot, any opinion by this court would be advisory. Silvas responds that, in denying Appellants’ motion for rehearing, this court has already rejected Appellants’ mootness arguments. Silvas also contends that the voluntary cessation 04-21-00113-CV - 8 - exception applies, and Appellants failed to meet their burden to prove their conduct could not reasonably be expected to recur. Before we address the parties’ arguments, we briefly recite the applicable law.

B. Mootness Affecting Standing “For a plaintiff to have standing, a controversy must exist between the parties at every stage of the legal proceedings, including the appeal. . . . If a case becomes moot, the parties lose standing to maintain their claims.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (citations omitted). A case becomes moot when (1) a justiciable controversy no longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the case’s outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties’ rights or interests, or (4) any decision would constitute an impermissible advisory opinion. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634–35 (Tex. 2021) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018)). For example, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Williams, 52 S.W.3d at 184 (second alteration in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). C. Burden to Show Standing Further, “[a] plaintiff has the burden to affirmatively demonstrate the trial court’s jurisdiction,” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (per curiam) (citing Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012)), which includes standing, Garcia v. City of Willis, 593 S.W.3d 201, 206 (Tex. 2019). To show she has standing, a plaintiff must “pleads facts establishing an injury that is ‘concrete and particularized, actual or imminent, not hypothetical.’” Garcia, 593 S.W.3d at 206 (quoting Heckman, 369 S.W.3d at 155). A plaintiff must also plead that the complained of is likely to be redressed by the requested relief.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018) (citing Heckman, 369 S.W.3d at 155–56); accord Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (“To meet the standing requirements of Article III, ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’” (alteration in original) (quoting Raines v. Byrd, 521 U.S. 811, 818–19 (1997))). “We review questions of standing de novo.” Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (citing W. Wendell Hall & Ryan G. Anderson, Standards of Review in Texas, 50 ST. MARY’S L.J. 1099, 1244 (2019)). D. Plea to the Jurisdiction As noted above, “standing is a component of subject matter jurisdiction,” Tex. Ass’n of Bus., 852 S.W.2d at 446, and “[t]he absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction,” Bland Indep. Sch. Dist. V. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To withstand the defendant’s plea to the jurisdiction, the plaintiff must plead facts that show the governmental entity’s immunity has been waived. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). In reviewing a plea to the jurisdiction, “[w]e construe the plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s intent.” Heckman, 369 S.W.3d at 150; accord Miranda, 133 S.W.3d at 226. We review a trial court’s order denying a plea to the jurisdiction de novo. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 226.

E. Silvas’s Pleadings 1. Original petition In her original petition, Silvas sought a declaratory judgment: She asked the trial court to declare her rights and status “affected by the ultra vires action of DEFENDANTS” and with respect to her “claim to the office of Place 4 of the City Council of the City of Converse, Texas.” She sought attorney’s fees and costs, see TEX. CIV. PRAC. & REM. CODE ANN. § 37.009, and she sought a temporary restraining order and a temporary injunction against Appellants.

2. First Amended Petition In her first amended petition, Silvas incorporated by reference her original petition, and she added these factual assertions. 8.20. Defendants have taken action that has the effect of removing, hindering, and/or obstructing KATHERINE SILVAS from her duly elected office and/or has the effect of seeking to place a usurper in KATHERINE SILVAS’ duly elected office in violation of the City Charter, Ordinance No. 101, and Section 2-40 of the Code. 8.21. There is no express authority in the City Charter for the City Council to seek to remove a member of the City Council or make declaration regarding forfeiture. 8.22. DEFENDANTS are also violating Chapter 66 of the Texas Civil Practice & Remedies Code by seeking a removal in contravention of a quo warranto proceeding. 8.23. DEFENDANTS also are violating Chapter 551 of the Texas Government Code by refusing to produce public information lawfully requested by citizen SILVAS and seeking to deprive/punish KATHERINE SILVAS for exercising her statutory rights to make a request for such information. 8.24. All of these violations indicated that those DEFENDANTS who are members of the City Council are acting ultra vires and in contravention of Ordinance 101 and Section 2-40 of the Code. Silvas’s first amended petition also added specific requests for declaratory relief.

KATHERINE SILVAS seeks a declaration as follows:

a. That the CITY OF CONVERSE and DEFENDANTS who are Council members violated Ordinance 101 as codified at Section 2-40 of the Code for the violations of law they committed;

b. There is no forfeiture of office by KATHERINE SILVAS because she did not issue an order that violated Section 2.07C and 5.01D (or, the exceptions thereto) of the City Charter;

c. That the City Council under the City Charter has no express authority of removal of one of its members or to declare a forfeiture of office;

d. There is no express, self-enabling forfeiture in this case under the City Charter because the multiple cross-references, exceptions, and reliance upon subjective opinion inherently does not enable such an interpretation;

e. The City Charter on its face, or as applied, violates the statutory rights of citizens under Chapter 551 of the Texas Government Code insofar as said Charter on its face or as applied prohibits members of Council from making a lawful request for public information to subordinates of the City Manager;

f. The City Council acted ultra vires and without authority under the City Charter or statute for the declaration and removal it attempted to do;

g. The vote taken by the City Council on October 22, 2019 is void ab initio and KATHERINE SILVAS never vacated her office.

h. In this case, only a quo warranto proceeding under Chapter 66 of the Texas Civil Practice & Remedies Code is the mechanism for a removal from office. F. Claims Dismissed by First Appeal As shown above, Silvas’s pleadings sought two types of relief—declaratory judgment and injunctive relief—and in their first appeal, Appellants challenged both. In our review, we concluded injunctive relief was not available in this case and we dismissed Silvas’s claims for injunctive relief in their entirety. Suarez v. Silvas, 613 S.W.3d 549, 559 (Tex. App.—San Antonio 2020, no pet.). We also dismissed all of Silvas’s declaratory relief claims against the City and the City Officials—except for Silvas’s ultra vires claims against the City Officials. Id.

G. Pending Ultra Vires Claims In this appeal, Appellants argue Silvas’s remaining ultra vires claims against the City Officials are moot because, inter alia, Silvas does not allege any ongoing actual or imminent injury and any prospective relief cannot remedy her complaints. Despite taking Silvas’s facts as true and interpreting her pleadings liberally, we nevertheless agree with Appellants that Silvas’s ultra vires claims are moot and Silvas lacks standing to maintain those claims. 1. Factual Allegations Silvas’s pleadings allege the City Officials violated Ordinance 101 and Section 2-40 of the City’s Municipal Code when they acted without legal authority to remove her from office, which prevented her from acting in her office, and to install a “usurper” in Place 4. Cf. Garcia, 593 S.W.3d at 207 (observing that the plaintiff had “no [then present] concrete or particularized stake in the validity or future application of the ordinance”). Her pleadings also allege the City Officials failed to produce the public information she requested, and if they wanted to remove her from office, the proper procedure was to request a quo warranto proceeding. These alleged facts address allegedly improper past actions, but by their plain language, none allege an injury that could be remedied by the requested prospective relief. See Meyers, 548 S.W.3d at 486 (noting that “to establish standing, a plaintiff must plead facts demonstrating that the . . . [plaintiff’s] injury is likely to be redressed by the requested relief”); Williams, 52 S.W.3d at 184 (discussing mootness and noting that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects” (second alteration in original) (quoting O’Shea, 414 U.S. at 495–96)).

Silvas’s pleadings also allege that Appellants’ ultra vires actions “are expected to continue,” but her expectations are merely hypothetical; they do not allege “concrete and particularized, actual or imminent” injury necessary to support a claim. Cf. Garcia, 593 S.W.3d at 206 (requiring a plaintiff to “plead[] facts establishing an injury that is ‘concrete and particularized, actual or imminent, not hypothetical’” (quoting Heckman, 369 S.W.3d at 155)). Silvas’s pleadings further allege that the city council is preparing an ordinance that might disqualify her from seeking a future place on the city council, but she does not allege that the city council has no authority to present such an ordinance to the voters or assert that the proposed ordinance is causing her a concrete and particularized or actual or imminent injury. Cf. id. at 207 (“‘[A]ny prospective relief [a court] might grant cannot help’ [the plaintiff] because he ‘no longer face[s] the [purportedly] unconstitutional conduct about which [he] complain[s].’” (first, second, fourth, fifth, sixth, seventh alterations in original) (quoting Williams, 52 S.W.3d at 184)); Meyers, 548 S.W.3d at 486 (same).

2. Declaratory Relief Silvas’s only remaining requested declarations are that (1) the City Officials violated Ordinance 101 and Section 2-40, (2) they acted without legal authority to remove her from Place 4, and (3) the city council’s vote to remove her was void ab initio and she never vacated her office. But “ultra vires claimants are only entitled to prospective relief.” City of Hous. v. Hous. Mun. Employees Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018). And the prospective relief Silvas seeks—her requested declarations—would not remedy the alleged past ultra vires actions. See Garcia, 593 S.W.3d at 207 (standing); Meyers, 548 S.W.3d at 486; Williams, 52 S.W.3d at 184 (determining that the plaintiffs’ claims were moot because, inter alia, “any prospective relief [the court] might grant cannot help them”).

H. No Standing Silvas failed to plead facts showing a concrete or particularized injury that could be redressed by the prospective relief she requested. Contra Garcia, 593 S.W.3d at 207; Meyers, 548 S.W.3d at 486; Williams, 52 S.W.3d at 184. Therefore, we necessarily conclude Silvas’s ultra vires claims are moot, and she lacks standing to maintain those claims against the City Officials.

I. Attorney’s Fees Claims

Silvas argues that even if we conclude her ultra vires claims are moot, her claim for attorney’s fees is not moot.

1. Attorney’s Fees Under Declaratory Judgments Act “[T]he Declaratory Judgments Act allows fee awards to either party in all cases.” MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.009); accord Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 576 (Tex. App.—San Antonio 2014, pet. denied). “[T]he [trial] court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009; accord Schuhardt Consulting Profit Sharing Plan, 468 S.W.3d at 576. “[T]he award of attorney’s fees in declaratory judgment actions is clearly within the trial court’s discretion and is not dependent on a finding that a party ‘substantially prevailed.’” Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996); accord Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“Under section 37.009, a trial court may exercise its discretion to award attorneys’ fees to the prevailing party, the nonprevailing party, or neither.”).

2. Attorney’s Fees Claim May Survive “[A] case ‘is not rendered moot simply because some of the issues become moot during the appellate process.’ If only some claims or issues become moot, the case remains ‘live,’ at least as to other claims or issues that are not moot.” State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (citation omitted) (quoting In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding)). The Harper court continued: If [a] statute allows a non-prevailing party to recover fees under equitable principles, the claim for fees always breathes life into a case that has otherwise become moot, because the trial court must always consider the relative merits of the parties’ positions (among other factors) when exercising its discretion to award fees to either party. Harper, 562 S.W.3d at 7.

3. Remand for Trial Court’s Action As we have explained, Silvas’s ultra vires claims are moot, and she lacks standing to maintain them. Nevertheless, under Harper, Silvas’s and Appellants’ claims for attorney’s fees are not moot. See Harper, 562 S.W.3d at 7. Silvas sought court costs and attorney’s fees under the Declaratory Judgments Act—which allows the trial court to exercise its discretion to award attorney’s fees to Silvas, Appellants, or no one. See MBM Fin. Corp., 292 S.W.3d at 669 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.009); Schuhardt Consulting Profit Sharing Plan, 468 S.W.3d at 576. Thus, the court costs and attorney’s fees claim is still live, and we will remand the cause to the trial court for it to exercise its discretion under the statute. IMMUNITY UNDER SECTION 101.106(E) In their second issue, Appellants argue the trial court erred by denying their plea to the jurisdiction because they are immune from suit by operation of the Tort Claims Act, specifically subsection 101.106(e). The subsection reads as follows: 04-21-00113-CV - 16 - (e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). Appellants contend the record shows Silvas sued the City of Converse—a governmental unit—and the other appellants—the City Officials. Thus, when the City moved to dismiss the City Officials from Silvas’s suit, the City Officials’ dismissal was mandatory, and the trial court erred by not granting their plea to the jurisdiction. We disagree: The Tort Claims Acts does not apply to Silvas’s suit. Silvas sued the City and Appellants under the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004; City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009); see also Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011) (“Claims against the government brought pursuant to waivers of sovereign immunity that exist apart from the Tort Claims Act are not brought ‘under [the Tort Claims Act].’” (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008))). Silvas sought declarations of her rights, injunctive relief, reinstatement to Place 4, and attorney’s fees and costs; she did not make any tort claims. We overrule Appellants’ second issue. In their reply brief, Appellants also moved to dismiss this appeal under subsection 101.106(f). Assuming without deciding that Appellants could raise such a motion in their reply brief, because Silvas’s suit was not brought under the Tort Claims Act, the Act does not apply, and Appellants’ motion is denied.

Outcome: Because Silvas no longer has standing to maintain her ultra vires claims, we reverse the trial court’s March 25, 2021 order and dismiss those claims. Nevertheless, we remand the cause to the trial court for it to exercise its discretion regarding any award of court costs and attorney’s fees

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