The San Antonio Court of Appeals has affirmed a trial court order dismissing a lawsuit filed against the Texas House and Senate for certain legislative actions taken in response to the COVID-19 pandemic.
Koepke v. Texas State Senate and Texas House of Representatives (No. 04-22-00256-CV; filed July 31, 2023) involved a petition for writ of mandamus asserting that the Legislature “had violated the United States and Texas Constitutions . . . [stemming] from various COVID-19 related emergency orders and legislation, which [petitioner] argued violated civil liberties. The petition also called for a “full independent audit of the 2020 general election.” In addition, the petitioner requested the court to “nullify fraudulent election results,” “issue a return to hand-counted paper ballots,” “order the return of” all federal COVID-19 relief funding, and “prevent any federal, state, or local—public or private—entity within the jurisdiction and of operating in [the] state of Texas compelling citizens of Texas directly or indirectly to participate in health care data collection, health care services, biometric surveillance.” The Legislature filed a plea to the jurisdiction, which the trial court granted. Petitioner appealed.
In an opinion by Justice Rodriguez, the court of appeals affirmed. Petitioner argued that the Legislature had waived sovereign immunity and that he had “constitutional standing—not only as a petitioner for mandamus relief, but as an injured plaintiff in a lawsuit where immediate dangers continue to threaten harm against [him].” The Legislature responded that “[i]nstead of identifying a waiver of sovereign immunity, [petitioner] seemingly challenges the very existence of sovereign immunity.” It further observed that petitioner’s claims do not implicate this Court’s enforcement of its jurisdiction, except insofar as the judicial branch lacks jurisdiction to compel the legislative branch to pass or rewrite specific laws.” Finally, the Legislature argued, legislative immunity applies because petitioner “seeks to compel the Legislature to pass laws he favors . . . [falling] squarely within the sphere of legislative activity and matters of general concern protected by legislative immunity.”
Observing that sovereign immunity applies to mandamus petitions as it does to any other lawsuit, the court pointed out that district courts have mandamus jurisdiction “only to enforce [their] own jurisdiction” (citing Art. V, § 8, Texas Constitution inter alia). Petitioner’s demand that the court “compel the Legislature to enact legislation favored by [petitioner] . . . does not implicate the trial court’s mandamus jurisdiction” (citations omitted). Additionally, the court found, petitioner’s ultra vires theory failed because the Legislature acted within its discretionary authority when it enacted COVID-19 related legislation. Finally, legislative immunity applied because the petition challenged “the substance of the Legislature’s lawmaking; his complaints relate to discretionary, policymaking decisions of general application.”
A further note of interest. In a footnote at the end of the opinion, the court noted that the petitioner “complain[ed] that the Texas e-file system refused to permit him to file his original petition for writ of mandamus in the Texas Supreme Court and instead forced him to file his petition in the trial court. This complaint is not preserved for appellate review.” That’s a pity—it would have been entertaining to read the court’s response.
This case obviously does not tell us anything about the law that we didn’t already know. But perhaps it does tell us that some, perhaps many, have a basic lack of understanding of how a constitutional republic functions.
