Trinh T. Ho v. Harris County

Opinion issued August 26, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00740-CV
———————————
TRINH T. HO, Appellant
V.
HARRIS COUNTY AND ANNETTE RAMIREZ, IN HER OFFICIAL
CAPACITY AS HARRIS COUNTY TAX ASSESSOR-COLLECTOR,
Appellees

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2021-28749

MEMORANDUM OPINION

In this dispute over delinquent ad valorem taxes, Trinh T. Ho asserted

counterclaims against Harris County and Ann Harris-Bennett, in her official capacity
as Harris County Tax Assessor-Collector.1 Both counter-defendants filed pleas to

the jurisdiction arguing that Ho could not demonstrate that governmental immunity

had been waived for her counterclaims. The trial court granted the pleas to the

jurisdiction and dismissed Ho’s counterclaims.

In two issues on interlocutory appeal, Ho contends that (1) the trial court erred

by granting Harris County’s plea to the jurisdiction because Ho’s counterclaim

sought monetary damages as an offset to the affirmative claim Harris County

asserted against her; and (2) the trial court erred by granting Harris-Bennett’s plea

to the jurisdiction because Ho alleged ultra vires actions and a takings claim for

which immunity was waived.

We affirm.

Background

In 2021, Harris County, on behalf of itself and several other taxing units,2 filed

suit against Williams Walls seeking approximately $8,000 in unpaid property taxes,

penalties, and interest for a specific property for the 2002 through 2006 tax years.

1
Ann Harris-Bennett’s term of office ended on December 31, 2024. We substitute
her successor in office, Annette Ramirez, in her official capacity as Harris County
Tax Assessor-Collector, as appellee.
2
Harris County sued on its own behalf and on behalf of the Harris County Department
of Education, the Port of Houston Authority of Harris County, the Harris County
Flood Control District, and the Harris County Hospital District. The City of
Houston, the Houston Independent School District, and the Houston Community
College System were also named as plaintiffs.
2
The petition also named Ho as a defendant “In Rem Only.”3 Harris County sought

foreclosure of its liens against the property securing the amount of all delinquent

taxes and “personal judgment against Defendant(s) who owned the property on

January 1 of the year for which the taxes were imposed for all taxes, penalties,

interest, and costs that are due or will become due on the property.” In its prayer for

relief, Harris County stated that it did not “pray for personal judgment against any

defendant(s) identified in paragraph I as IN REM ONLY.”

Ho answered and asserted her own affirmative claims. In her third amended

counterpetition, she asserted a counterclaim against Harris County and a third-party

claim against Ann Harris-Bennett, then the Harris County Tax Assessor-Collector.4

Ho alleged that Harris-Bennett “engag[ed] in prosecuting wrongful claims against

[Ho] in the underlying lawsuit,” “engaged in ultra vires acts and conduct in suing

Trinh T. Ho for an alleged debt that is invalid, discharged, barred and/or is invalid

under the statutes, doctrines or common-law of the State of Texas,” and had “actual

3
The petition also named the United States as a defendant “In Rem Only” to foreclose
a federal tax lien on the property.
4
Ho also named as counter-defendants City of Houston Mayor John Whitmire,
Houston Independent School District Superintendent Mike Miles, Houston
Community College System Chancellor Margaret Ford Fisher, the Houston
Community College System, the City of Houston, the Houston Independent School
District, and Linebarger Goggan Blair & Sampson, LLP, the law firm that filed
Harris County’s suit against her. It is unclear whether any of these counter-
defendants have answered or appeared. None of these counter-defendants are parties
to this appeal.
3
knowledge of the lack of merits of [Harris County’s] delinquent tax claims, and/or

[was] consciously indifferent to the facts of the claim.” Ho alleged that she had paid

the subject taxes under duress.

Ho asserted the following causes of action:

Wrongful Debt Collection
27. Counter-defendants have initiated the underlying lawsuit to
recover for alleged delinquent taxes on the Property while, at all
times material, Counter-defendants had personal and/or
constructive knowledge that the alleged delinquent taxes are not
subject to judicial enforcement and/or collection through the
legal process. Each Counter-defendant and/or his or her
predecessor had actual and/or constructive knowledge of the
numerous prior prosecutions for delinquent taxes which resulted
in final judgments and involved the same parties.
Declaratory Relief
28. Pursuant to Chapter 37.001, et. seq. Texas Civil Practice and
Remedies Code, (Uniform Declaratory Judgments Act),
Counter-plaintiff requests this Court declare that, at all times
material, Ann Harris Bennett was, and is continuing to, act
outside the scope of her official duties in filing and prosecuting
the underlying delinquent tax suit as a matter of law. Counter-
plaintiff requests this Court declare that Counter-defendants do
not have the authority to proceed with this or future lawsuits
involving the subject matter of this cause.
29. Counter-plaintiff requests that this Court also enter an injunction
against Counter-defendants from filing future tax delinquent
suits or collecting the ta[x]es that Counter-defendants may allege
are due on [a specific tax account.]
Quiet Title
30. By filing the underlying delinquent tax suit Counter-defendants
have slandered Counter-plaintiff’s quiet and peaceable
possession of the subject Property and Counter-plaintiff requests

4
declaratory relief as to the rights and obligations of the parties to
the Plaintiffs’ claims in the underlying lawsuit.
Takings Clause
31. As a result of Counter-defendants’ acts as set out above Counter-
plaintiff is being subjected to seizure and deprivation of her right,
title and ownership of the Property subject to the underlying
lawsuit in violation of Counter-plaintiff’s protection under the
5th Amendment of the Constitution of the United States.

Ho sought damages of “at least $9,172.60,” as well as an order that the counter-

defendants reimburse her for the taxes she paid under duress.

Harris County and Harris-Bennett answered and asserted governmental and

official immunity. They also filed separate pleas to the jurisdiction asserting

governmental immunity. In its plea, Harris County argued that Ho could not use the

Declaratory Judgments Act as a waiver of immunity, and it further argued that Ho

could not seek declaratory relief when the Tax Code applied because those remedies

are mandatory and exclusive. Harris-Bennett argued that Ho could present no

evidence that she engaged in an ultra vires act because the Tax Code authorizes the

county tax assessor-collector to assess and collect taxes on property located within

the county, and Harris-Bennett was acting within the scope of her duties by assessing

taxes against Ho’s property.

In response, Ho argued that Harris County and Harris-Bennett had

“prosecuted delinquent tax claims against the party defendants numerous times over

delinquent taxes” leading to final judgments. She requested a declaration that Harris

5
County’s claims against her were barred by res judicata and a declaration striking

the tax account of the subject property from Harris County’s tax rolls. She also

sought injunctive relief barring the filing of future legal proceedings “for the omitted

improvements” subject to the tax account. She argued that Harris County’s immunity

had been waived to the extent she sought to offset the county’s affirmative claims

against her. Ho further argued that Harris-Bennett was “wrongfully holding funds

which were paid under duress” and had “wrongfully filed suit contravening the

doctrine of res judicata and is continuing to prosecute this lawsuit having actual

knowledge of the prior tax delinquency suits involving the same parties and the same

property.” Ho did not attach supporting evidence.

The trial court signed separate orders granting the pleas to the jurisdiction

filed by Harris County and Harris-Bennett. Harris County’s claim against Ho

remains pending. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(8) (allowing interlocutory appeal from order granting or denying

plea to jurisdiction filed by governmental unit).

Waiver of Governmental Immunity

In two issues, Ho challenges the trial court’s rulings granting the pleas to the

jurisdiction filed by Harris County and Harris-Bennett. In her first issue, Ho

contends that Harris County’s immunity from suit was waived because she brought

her claim as a counterclaim in response to Harris County seeking affirmative

6
monetary relief from her. In her second issue, Ho contends that Harris-Bennett’s

immunity was waived because she alleged ultra vires actions and asserted a takings

claim, but Harris-Bennett offered no evidence to disprove the claims.

A. Standard of Review

Sovereign immunity protects the State against lawsuits for damages unless the

State consents to be sued. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 283 (Tex.

2022). Governmental immunity provides similar protection to political subdivisions

of the State, including counties. Id. at 284; City of Houston v. Branch, 695 S.W.3d

580, 586 (Tex. App.—Houston [1st Dist.] 2024, pet. denied) (en banc) (op. on

reh’g). A suit against a governmental official in her official capacity is “just another

way of pleading a suit against a governmental agency of which the official is an

agent.” City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston

[1st Dist.] 1995, no writ). Thus, if the governmental agency is entitled to

governmental immunity, so too is the governmental official. Id.; see Robbins v.

Lostracco, 578 S.W.3d 130, 134 (Tex. App.—Tyler 2019, pet. denied).

Immunity from suit, which bars a suit against the State unless it has consented

to the suit, “presents a jurisdictional question of whether the State has expressly

consented to suit.” Gulf Coast Ctr., 658 S.W.3d at 284. In a suit against a

governmental unit, the plaintiff must affirmatively demonstrate the trial court’s

7
jurisdiction over the case by establishing a valid waiver of immunity. Id.; Town of

Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).

A governmental unit may assert immunity from suit through several

procedural vehicles, including a plea to the jurisdiction. Alamo Heights Indep. Sch.

Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). A plea to the jurisdiction may

challenge the pleadings, the existence of jurisdictional facts, or both. Id. When the

jurisdictional plea challenges the pleadings, we must determine if the pleader has

alleged facts affirmatively demonstrating subject-matter jurisdiction. Id. When the

plea challenges the existence of jurisdictional facts, we must move beyond the

pleadings and consider evidence when necessary to resolve the jurisdictional issues,

even if the evidence implicates both subject-matter jurisdiction and the merits of the

pleader’s claim. Id. at 770–71.

Whether the trial court has subject-matter jurisdiction is a question of law that

we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). When the plea to the jurisdiction challenges the pleadings, we must

construe the pleadings liberally and look to the pleader’s intent. Id. If the pleadings

do not contain sufficient facts to affirmatively demonstrate jurisdiction but do not

affirmatively demonstrate incurable defects in jurisdiction, the issue is one of

pleading sufficiency and we should afford the pleader an opportunity to amend. Id.

8
at 226–27. If the pleadings affirmatively negate jurisdiction, then the plea may be

granted without allowing the pleader an opportunity to amend. Id. at 227.

B. Harris County’s Immunity From Suit

Ho’s argument as to Harris County boils down to the proposition that a

governmental entity may permissibly be sued on counterclaims that are “germane

to, connected with, and properly defensive to” affirmative claims for monetary relief

asserted by the entity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 376–

77 (Tex. 2006) (op. on reh’g).

Harris County acknowledges this proposition but contends that this Court has

already found the Reata principle inapplicable to a suit to recover delinquent taxes.

In Waller County v. Simmons, a panel of this Court held that such a tax suit does not

seek money damages but rather seeks foreclosure of a lien: “Because the suit brought

by the governmental unit is not one for monetary damages, governmental immunity

is not waived under Reata II.” See No. 01-07-00180-CV, 2007 WL 3038420, at *3

(Tex. App.—Houston [1st Dist.] Oct. 18, 2007, no pet.) (mem. op.). The Simmons

Court thus upheld the immunity of the governmental unit.

In reply, Ho says that the pertinent language in Simmons was dicta and has

never been cited by later courts. Ho also says that the Dallas Court of Appeals has

gone the other way. See Linbeck Constr. Co. v. City of Grand Prairie, 293 S.W.3d

896, 899 (Tex. App.—Dallas 2009, pet. denied) (disagreeing that “a suit for

9
foreclosure of property owned by a government is not, for governmental immunity

purposes, the equivalent of a suit for money damages against the governmental

entity” because in both situations “the plaintiff seeks money through an order from

a court”). Based on the Dallas decision, Ho concludes that “Texas law is not settled

whether an in rem claim by or against a governmental entity constitutes a claim for

monetary damages.”

Ho’s answers to Simmons do not persuade us. First, Ho’s only reason for

calling the language dicta is that the opinion contained an alternate holding. But

alternate holdings do not ipso facto lack precedential force. See Casparis v. Fid.

Union Cas. Co., 65 S.W.2d 404, 406 (Tex. Civ. App.—Austin 1933, writ ref’d); see

also State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554–55 (Tex. 2004)

(op. on reh’g) (concluding that supreme court had “conflicts jurisdiction” over

interlocutory appeal when alternate holding of intermediate appellate court

conflicted with earlier decision from supreme court). Second, Simmons does not

derive its precedential force from the number of times another court has cited it.

Frequency of citation might relate to reliance interests and to arguments about

whether Simmons should be overruled, but not to whether we should follow it in the

first instance. Nor does it matter that the Dallas Court may see things differently.

Such a fact would not make Simmons disappear. That another court disagrees might

10
bear on whether the Texas Supreme Court wishes to weigh in on the issue, but it

does not mean that this panel should depart from First Court precedent.

Ho’s argument as to Harris County is foreclosed by Simmons: Harris County’s

suit against her is not a claim for monetary damages—which might implicate the

limited waiver of immunity discussed in Reata—but is instead a suit for foreclosure

of a lien. See 2007 WL 3038420, at *3. Accordingly, the trial court did not err by

granting Harris County’s plea to the jurisdiction.

We overrule Ho’s first issue.

C. Tax Assessor-Collector’s Immunity From Suit

1. Ultra Vires Claims

Even if the Legislature has not waived immunity for the governmental entity,

a plaintiff can bring a claim against a governmental official if the official engages in

ultra vires conduct. City of Houston v. Houston Mun. Emps. Pension Sys., 549

S.W.3d 566, 576 (Tex. 2018); Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017).

These claims must be brought against the governmental official in her official

capacity, not against the governmental entity. Chambers-Liberty Cntys. Navigation

Dist. v. State, 575 S.W.3d 339, 348 (Tex. 2019); City of El Paso v. Heinrich, 284

S.W.3d 366, 373 (Tex. 2009).

A plaintiff bringing an ultra vires claim must “allege, and ultimately prove,

that the officer acted without legal authority or failed to perform a purely ministerial

11
act.” Houston Mun. Emps. Pension Sys., 549 S.W.3d at 576 (quoting Heinrich, 284

S.W.3d at 372). A governmental official “with some discretion to interpret and apply

a law may nonetheless act ‘without legal authority,’ and thus ultra vires, if he

exceeds the bounds of his granted authority or if his acts conflict with the law itself.”

Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex.

2016); see Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022) (“[A]n ultra vires

claim may not be maintained if the officials’ acts are within their discretion; the

plaintiff must show that the officers failed to perform a purely ministerial act or acted

outside the scope of their allotted discretion.”). An ultra vires claim depends “on the

scope of a state official’s authority.” Hall, 508 S.W.3d at 234.

“Ministerial acts are those 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.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex.

2015) (quotations omitted). Discretionary acts, on the other hand, require the

exercise of judgment and personal deliberation. Id. An act within an official’s

discretion is “protected by immunity even if it is erroneous,” but an official generally

has “no discretion to misinterpret the law.” Jones, 646 S.W.3d at 325.

Retrospective monetary claims are generally barred in ultra vires suits.

Houston Mun. Emps. Pension Sys., 549 S.W.3d at 576; see Heinrich, 284 S.W.3d at

374 (“[T]he basis for the ultra vires rule is that a governmental official is not

12
following the law, so that immunity is not implicated, but because the suit is, for all

practical purposes, against the state, its remedies must be limited.”). Ultra vires

claimants are only entitled to prospective relief. Houston Mun. Emps. Pension Sys.,

549 S.W.3d at 576; see Chambers-Liberty Cntys. Navigation Dist., 575 S.W.3d at

345 (“Only prospective injunctive relief is available on an ultra vires claim.”). “If

the injury has already occurred and the only plausible remedy is monetary damages,

an ultra vires claim will not lie.” Houston Mun. Emps. Pension Sys., 549 S.W.3d at

576.

2. Takings Claim

Both the United States and Texas Constitutions prohibit the taking of a

person’s property for public use without payment of just compensation. See U.S.

CONST. amend. V (“[N]or shall private property be taken for public use, without just

compensation.”); TEX. CONST. art. I, § 17 (“No person’s property shall be taken,

damaged, or destroyed for or applied to public use without adequate compensation

being made . . . .”). If the government appropriates private property without paying

adequate compensation, the property owner may recover damages in an inverse

condemnation suit. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992); Town

Park Ctr., LLC v. City of Sealy, 639 S.W.3d 170, 192 (Tex. App.—Houston [1st

Dist.] 2021, no pet.). “An inverse condemnation may occur when the government

physically appropriates or invades the property, or when it unreasonably interferes

13
with the landowner’s right to use and enjoy the property, such as by restricting access

or denying a permit for development.” Westgate, 843 S.W.2d at 452; see Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) (“Takings can be classified as

either physical or regulatory takings.”); Town Park Ctr., 639 S.W.3d at 192 (stating

that regulatory taking can occur when governmental agency imposes restrictions that

deny property owner all economically viable use of its property).

Sovereign and governmental immunity do not protect the government from

liability for compensation under the takings clause. Harris Cnty. Flood Control Dist.

v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (op. on reh’g); Town Park Ctr., 639

S.W.3d at 193. “To defeat a plea to the jurisdiction, the plaintiff need only plead

sufficient facts to show the elements of a takings claim.” Town Park Ctr., 639

S.W.3d at 193. “In the absence of a properly pled takings claim, the state retains

immunity.” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex.

2012).

“All real property and tangible personal property in this State, unless exempt

as required or permitted by this Constitution, whether owned by natural persons or

corporations, other than municipal, shall be taxed in proportion to its value, which

shall be ascertained as may be provided by law.” TEX. CONST. art. VIII, § 1(b).

Similarly, the Tax Code provides that “[a]ll real and tangible personal property that

this state has jurisdiction to tax is taxable unless exempt by law.” TEX. TAX CODE

14
§ 11.01(a). Texas “has jurisdiction to tax real property if located in this state.” Id.

§ 11.01(b).

The county tax assessor-collector “shall assess and collect taxes on property

in the county for the county” and for other taxing units in the county.5 Id. § 6.23(a).

The tax assessor “for each taxing unit shall prepare and mail a tax bill to each person

in whose name the property is listed on the tax roll and to the person’s authorized

agent.” Id. § 31.01(a). “At any time after its tax on property becomes delinquent, a

taxing unit may file suit to foreclose the lien securing payment of the tax, to enforce

personal liability for the tax, or both.” Id. § 33.41(a); see id. § 31.02(a) (providing

that with some limited exceptions, “taxes are due on receipt of the tax bill and are

delinquent if not paid before February 1 of the year following the year in which

imposed”).

5
The tax assessor-collector “shall also assess and collect taxes on property for
another taxing unit” aside from the county if one of four statutory requirements is
met: (1) the law creating or authorizing the unit requires it to use the county tax
assessor-collector for the taxes it imposes in the county; (2) the law creating or
authorizing the unit does not mention who assesses or collects its taxes and the unit
imposes taxes in the county; (3) the governing body of the unit requires the county
to assess and collect its taxes; or (4) an intergovernmental contract requires the tax
assessor-collector to assess and collect the taxes imposed by the unit. TEX. TAX
CODE § 6.23(a). Ho does not allege or argue that the Harris County Tax Assessor-
Collector was not authorized to assess and collect taxes on behalf of any of the
taxing units represented by Harris County in the tax delinquency suit, such as, for
example, the Harris County Department of Education or the City of Houston.
15
3. Analysis

After a review of Ho’s pleading, we cannot discern any plausible claim for

ultra vires acts or for a taking. Ho alleges that the tax assessor-collector sued her

“for delinquent taxes.” Nothing in such a suit would appear to support a viable ultra

vires claim on Ho’s part. A tax assessor-collector is statutorily authorized, on behalf

of the taxing units she serves, to assess and collect taxes on real property located

within the taxing units’ jurisdiction. Moreover, taxing units may file suit to foreclose

a lien after taxes become delinquent. Ho alleges no specific statutory violation by

the tax assessor-collector, nor does she allege that the tax assessor-collector acted

outside of any specific statutory authority. See Houston Mun. Emps. Pension Sys.,

549 S.W.3d at 576 (stating that plaintiff bringing ultra vires claim must “allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a

purely ministerial act”) (quotations omitted); see also Matzen v. McLane, 659

S.W.3d 381, 388 (Tex. 2021) (stating that plaintiff must “allege facts affirmatively

demonstrating actionable ultra vires conduct by state officials in order to avoid

dismissal on jurisdictional grounds due to sovereign immunity”).

Although Ho goes on to allege that the tax suit suffers from a “lack of merits”

and “the alleged delinquent taxes are not subject to judicial enforcement and/or

collection through the legal process,” that allegation fares no better. If in fact the tax

suit lacks merit, litigation of the tax suit should bring that conclusion to light in due

16
course, and there is nothing to be gained from a counterclaim premised on the

proposition that the tax suit ought to fail.

As for the takings claim, Ho’s live pleading provides nothing more than a bare

conclusion, stated in a single sentence, that the various acts “set out above” amount

to a seizure and deprivation of her property in violation of the Fifth Amendment.

That one sentence is literally all there is to the takings claim. Nothing in that sentence

alleges any facts that affirmatively show jurisdiction. See Matzen, 659 S.W.3d at

389 (stating that “[i]f additional facts would be necessary . . . to state a viable claim

falling within a waiver or exception to immunity, then the plaintiff has not

affirmatively demonstrated the court’s jurisdiction”). On appeal, Ho cites no

authority supporting her contention that a pending suit seeking recovery of allegedly

delinquent taxes—even if the delinquency suit is ultimately not meritorious—can

form the basis for a takings claim under the Fifth Amendment.

For these reasons, neither the ultra vires claim nor the takings claim is viable.

The trial court properly sustained the tax assessor-collector’s plea to the jurisdiction.

The only remaining question is whether Ho should have an opportunity to replead.

A party normally “deserves the opportunity to amend his pleadings if the defects can

be cured.” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); see

Von Dohlen v. City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022) (“[S]o long as

petitioners’ pleading does not affirmatively demonstrate the absence of jurisdiction,

17
they should be given an opportunity to amend.”). That is, in general, “a plaintiff

deserves a reasonable opportunity to amend unless the pleadings affirmatively

negate the existence of jurisdiction.” Koseoglu, 233 S.W.3d at 839 (quotations

omitted). But where repleading cannot cure the defect, repleading serves no purpose

and need not be allowed. Id. at 840.

The parties’ briefing casts very little light on that issue. Neither side has gone

into any detail about whether the defect could be cured. Accordingly, because Harris

County’s claims against Ho remain pending in the trial court and litigation between

the parties will continue regardless of our disposition of this interlocutory appeal,

we will not hold that Ho is barred from repleading. We hold only that the trial court

ruled correctly in sustaining the plea to the jurisdiction based on Ho’s live pleading.

Conclusion

We affirm the trial court’s orders granting the pleas to the jurisdiction.

David Gunn
Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

18