Dianne Hensley v. State Commission on Judicial Conduct

Supreme Court of Texas
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No. 22-1145
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Dianne Hensley,
Petitioner,

v.

State Commission on Judicial Conduct et al.,
Respondents

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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JUSTICE LEHRMANN, dissenting.

After an investigation and a hearing, the State Commission on
Judicial Conduct issued a public warning to a justice of the peace upon
finding that she violated Canon 4A(1) of the Code of Judicial Conduct.
Although the judge disagreed with the Commission’s findings, she did
not request judicial review of the decision as the Government Code
provides. Instead, she sued the Commission and its members for
violating the Texas Religious Freedom Restoration Act (TRFRA) in
issuing the warning, seeking monetary, declaratory, and injunctive
relief. The district court dismissed the claims on jurisdictional grounds,
in part because the judge failed to exercise her statutory right to appeal
the Commission’s warning and instead collaterally attacked the decision
in district court. This Court holds that the judge was not required to
exhaust her administrative remedies because it could not have mooted
her claims in this suit. In my view, the Court glosses over the purposes
of the exhaustion requirement and erroneously minimizes the impact
that a decision of the Special Court of Review (SCR)—the entity that
would have reviewed the Commission’s sanction had the judge appealed
it—could have had on the claims being pursued here. A faithful
application of our precedent leads to the conclusion that exhaustion of
administrative remedies was a jurisdictional prerequisite to this suit.
Accordingly, and expressing no opinion on the merits of the claims, I
respectfully dissent.
A state agency has exclusive jurisdiction when the Legislature
grants it sole authority to make an “initial determination” in “disputes
that arise within the agency’s regulatory arena.” Clint Indep. Sch. Dist.
v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016); see also In re Entergy
Corp., 142 S.W.3d 316, 321 (Tex. 2004); Cash Am. Int’l Inc. v. Bennett,
35 S.W.3d 12, 15 (Tex. 2000). If an agency has exclusive jurisdiction, a
party involved in such a dispute “must pursue and exhaust all available
administrative remedies before turning to the courts.” CPS Energy v.
Elec. Reliability Council of Tex., 671 S.W.3d 605, 618 (Tex. 2023).
Generally, “administrative bodies are entitled to and should exercise the
duties and functions conferred by statute without interference from the
courts.” Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785
(Tex. 1978).

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This exhaustion requirement applies not only to administrative
procedures before a state agency, but also to appeals and other efforts to
obtain review of the agency’s decisions and actions. When a statute
provides procedures for obtaining judicial review of an administrative
agency’s decisions, parties who wish to appeal those decisions generally
“must do so in compliance with” the statutory procedures. Grounds v.
Tolar Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex. 1986), overruled on
other grounds by Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000).
And this Court has long considered such statutory procedures, which
are intended to provide an “effective method” for a “speedy disposition”
of any challenge to the agency’s decisions, to be “exclusive.” Alamo
Express, Inc. v. Union City Transfer, 309 S.W.2d 815, 827 (Tex. 1958);
Lone Star Gas Co. v. State, 153 S.W.2d 681, 699 (Tex. 1941). A challenge
asserted outside of that exclusive method is considered an impermissible
“collateral attack” on the agency’s decision, over which courts lack
jurisdiction. Grounds, 707 S.W.2d at 890; Magnolia Petroleum Co. v.
R.R. Comm’n, 96 S.W.2d 273, 275 (Tex. 1936).
In the arena of sanctioning judges for violations of the Code of
Judicial Conduct, Chapter 33 of the Civil Practice and Remedies Code
and Article V, Section 1-a of the Texas Constitution establish the very
type of pervasive regulatory scheme that grants an agency exclusive
jurisdiction and requires exhaustion of administrative remedies. As the
Court describes, those provisions expressly create the Commission,
define its powers, require and govern its administrative review of
complaints and concerns regarding judges’ conduct, encourage
compliance through an informal process, impose deadlines to promote

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efficiency within that process, authorize de novo judicial review of the
Commission’s decisions, and impose deadlines and specific procedures
for that review. See ante at 14–16. The provisions thereby “establish[]
a comprehensive administrative review system” and “strongly indicate
a requirement of mandatory exhaustion of administrative remedies,”
including the prescribed appeal process. Schroeder v. Tex. Iron Works,
Inc., 813 S.W.2d 483, 485, 487 (Tex. 1991), overruled on other grounds
by In re United Servs. Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010).
The judge argues that this suit is not a collateral attack on the
Commission’s warning for two reasons. First, she asserts that she is not
seeking “in any way” to disturb the warning, which “will remain on the
books no matter what happens in this lawsuit.” The Court agrees with
this characterization; I cannot. As discussed below, the judge is no doubt
seeking in this suit to “disturb” the Commission’s unappealed warning.
A person may raise a government agency’s violation of TRFRA as
a defense in an administrative proceeding. TEX. CIV. PRAC. & REM. CODE
§ 110.004. The judge did just that, asserting at the hearing before the
Commission that TRFRA prohibited the Commission from sanctioning
her conduct. Had the judge sought judicial review of the warning, she
likewise could have asserted a TRFRA violation as a defense in a de novo
proceeding before the SCR. In this suit, she makes the same complaint
about the warning that she could have made before the SCR: it
substantially burdens her free exercise of religion in violation of TRFRA.
It is technically true that reversal of the warning is not among
the requests for relief in the judge’s pleadings, and the Court notes that
such a request would constitute a collateral attack barred by the failure

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to appeal the warning. Ante at 17 n.63. But the Court distinguishes the
judge’s requests for declarations that (1) a judge engaging in the same
conduct underlying the unappealed warning would not violate Canon 4A
and (2) sanctioning such conduct violates TRFRA and the Constitution,
holding that those claims may proceed. The Court’s conclusions rest on
a distinction without a difference. The entire basis of the claims in this
suit is that the Commission misapplied Canon 4A and violated TRFRA
by sanctioning the judge for her policy—motivated by sincerely held
religious beliefs—of conducting wedding ceremonies only for
opposite-sex couples and referring same-sex couples to other officiants.
If she were to prevail and obtain a declaration to that effect, plus an
injunction prohibiting the Commission from issuing future sanctions
against her for engaging in that practice, the warning would be “on the
books” only in the most nominal sense. In both form and substance, this
suit “is an attempt to avoid the binding force of a judgment in a
proceeding not instituted for the purpose of correcting, modifying, or
vacating the judgment.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.
2005). Thus, it is a collateral attack.
Second, the judge argues that exhaustion was not required
because the SCR could not have awarded her the relief she seeks in this
suit under TRFRA and the Uniform Declaratory Judgments Act:
compensatory damages, declaratory relief, and an injunction against
further sanctions for engaging in the same conduct. Our precedent holds
otherwise.
The purpose of requiring a party to exhaust administrative
remedies “is never to deprive a party of legal rights; rather, it aims to

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ensure an orderly procedure to enforce those rights.” City of Houston v.
Rhule, 417 S.W.3d 440, 442 (Tex. 2013). This Court has thus
consistently held that a party’s inability to obtain all the relief sought
through the administrative process is no grounds for bypassing that
process where exhaustion could result in a favorable ruling that would
moot the party’s other claims. 1 See, e.g., City of Dallas v. Stewart, 361
S.W.3d 562, 579 (Tex. 2012) (holding that “a litigant must avail itself of
statutory remedies that may moot its takings claim, rather than directly
institute a separate proceeding asserting such a claim” (citing City of
Dallas v. VSC, LLC, 347 S.W.3d 231, 237 (Tex. 2011))).
We recently applied this principle in Garcia v. City of Willis, 593
S.W.3d 201 (Tex. 2019). There, Garcia alleged that the City’s
red-light-camera scheme was unconstitutional and the resulting fines
levied on him were therefore unconstitutional takings. Id. at 205. But
he had not contested the fines via the administrative adjudicative
process established in the Transportation Code. See id. at 210. Garcia
argued that exhaustion was not required because the administrative
process could not provide the relief he sought for his constitutional
claims, but we rejected that argument, noting that it did not “consider
that the administrative process might have granted him relief on

1 We have also recognized an exception to the exhaustion requirement

“when the claimant cannot obtain an adequate remedy through the
administrative process and requiring the claimant to go through the process
would cause the claimant irreparable harm.” Oncor Elec. Delivery Co. v.
Chaparral Energy, LLC, 546 S.W.3d 133, 141 (Tex. 2018) (citing Hous. Fed’n
of Tchrs., Loc. 2415 v. Hous. Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987)).
The judge does not argue that seeking judicial review in the SCR before filing
this suit would have caused her irreparable harm.

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non-constitutional grounds, thus mooting those claims.” Id. We
explained that “[t]he question here is not whether an administrative
hearing could have resolved all his claims, constitutional or otherwise.
Rather, the correct inquiry is whether the hearing officer had the
authority to render Garcia’s claims moot.” Id. at 211. Thus, even though
the administrative body lacked the ability to resolve Garcia’s
constitutional claim, he was nevertheless required to exhaust the
process because of “the potential to moot that claim.” Id. at 211–12; see
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (“If a case becomes
moot, the parties lose standing to maintain their claims.”).
Similarly, we held in CPS Energy that the Public Utility
Commission’s inability to address a party’s constitutional claims was no
justification for avoiding its administrative process. 671 S.W.3d at 620.
Citing Garcia, we explained that the process could moot the
constitutional claims. Id. And if it ultimately did not, “a party is not
precluded from pursuing its constitutional claims after exhaustion or
from seeking judicial review of any [administrative] rulings on issues
underlying those claims.” Id. (citing Oncor Elec. Delivery Co. v.
Chaparral Energy, LLC, 546 S.W.3d 133, 141–42 (Tex. 2018)).
Here, the judge could have requested appointment of an SCR to
conduct a de novo review of the Commission’s “charging document,”
comprising the “sanction issued as well as any additional charges to be
considered.” TEX. GOV’T CODE § 33.034(d). And as noted, she could have
raised TRFRA as a defense before the SCR, just as she did at the
Commission hearing. See TEX. CIV. PRAC. & REM. CODE § 110.004. Had
the SCR agreed with the judge that her conduct did not violate

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Canon 4A or that the Commission’s sanction violated TRFRA, the SCR
could have dismissed the charging document, thereby vacating the
public warning. P. RULES FOR STATE COMM’N ON JUD. CONDUCT R. 9(d).
While this would not have mooted every aspect of the current claims, as
discussed below, it would have mooted some of the requested relief and
mitigated the damages she now seeks.
First, the judge seeks injunctive relief prohibiting the
Commission from issuing future sanctions should she resume the
sanctioned conduct. TEX. CIV. PRAC. & REM. CODE § 110.005(a)(2)
(authorizing a person who successfully asserts a TRFRA claim to recover
“injunctive relief to prevent the threatened violation or continued
violation”). The Court concludes that the SCR’s vacatur of the warning
would not have mooted this claim. Ante at 19. According to the Court,
even if the SCR concluded that the sanction could not stand, either
because the judge did not violate Canon 4A or because TRFRA served as
a defense, the “amplified” threat that the Commission could impose
future sanctions against her for engaging in the same conduct would
remain. Id. Again, I disagree.
Had the warning been vacated, the judge’s standing to seek
prospective relief against the Commission would be based solely on “a
perceived threat of injury.” In re Abbott, 601 S.W.3d 802, 812 (Tex.
2020); see also USAA Cas. Ins. Co. v. Letot, ___ S.W.3d ___, 2024 WL
2490521, at *3–6 (Tex. May 24, 2024) (concluding that the plaintiff had
standing to seek damages but not injunctive relief). To establish such
standing, the “threatened injury must be certainly impending”; “mere
‘[a]llegations of possible future injury’ are not sufficient.” Abbott, 601

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S.W.3d at 812 (alteration in original) (quoting Whitmore v. Arkansas,
495 U.S. 149, 158 (1990)). Here, the judge would need to show “a
credible threat” of being sanctioned for resuming her policy of recusing
herself from performing same-sex marriages. See id. (“[T]o challenge
the constitutionality of a criminal law,” the plaintiff must “allege ‘an
intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.’” (quoting Babbitt v. Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979))). I cannot conclude that
such a credible threat would exist here.
As we have explained, “allegations of a past injury, which
retrospective relief—typically damages—can remedy,” without more,
are insufficient to establish standing to pursue an injunction. Letot,
2024 WL 2490521, at *4; see also O’Shea v. Littleton, 414 U.S. 488,
495–96 (1974) (“Past exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief, however, [if]
unaccompanied by any continuing, present adverse effects.”). As things
stand today, with an unreviewed public warning on the books, I do not
disagree that the judge faces a credible threat of future investigation
and sanctions by the Commission if she resumes her marriage policy.
But any such threat would have all but disappeared had she sought
review in the SCR and prevailed.
Not so, the Court concludes, because the SCR has no power to
prospectively bind the Commission with respect to future investigations
and sanctions, nor is an SCR, composed of newly appointed justices for
each case, bound by the decisions of previous SCRs. Ante at 19.

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However, even if the SCR’s vacatur of the sanction against the judge
would not have categorically foreclosed the Commission from
“re-sanctioning” her if she resumed the sanctioned conduct, the mere
possibility that the Commission could do so does not amount to a
credible threat that it would. The notion that the Commission would
devote its time and resources to such an endeavor after having its
sanction vacated on judicial review, hoping for a different result the
second time around, while not unfathomable, is certainly less than
credible.
Second, the judge asserts several requests for declaratory relief.
TEX. CIV. PRAC. & REM. CODE § 110.005(a)(1) (authorizing a person who
successfully asserts a TRFRA claim to recover declaratory relief under
the UDJA). These include requests for a declaration that the
Commission violated her rights under TRFRA by sanctioning her for
recusing herself from officiating same-sex weddings, that the
Commission’s interpretation of Canon 4A violates the Free Speech
Clause, 2 and that a judge does not violate Canon 4A by engaging in the
same type of religious speech and referral system. As the Court notes,
those requests are subject to the same exhaustion requirement as her
request for injunctive relief because all hinge on whether “the
prospective threat of future sanctions would remain following vacatur of
the Public Warning.” Ante at 20. Because I conclude that a credible

2 The Court holds that this claim was correctly dismissed because it is

barred by sovereign immunity, not because the judge failed to exhaust. Ante
at 25–26.

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threat of future sanctions would not remain following vacatur, I would
hold that the claims are barred by the failure to exhaust. 3
Finally, the judge seeks compensatory damages for the
Commission’s alleged past violations of TRFRA. TEX. CIV. PRAC. & REM.
CODE § 110.005(a)(3), (b) (authorizing a person who successfully asserts
a TRFRA claim to recover compensatory damages up to $10,000 for each
controversy). I agree with the Court that an SCR’s vacatur of the public
warning would not have mooted the claim seeking redress for the burden
of the warning during the time it was in effect. Ante at 18. But it would
have significantly shortened that period and, in turn, lowered the
amount of lost income attributable to the warning.
Unlike most civil litigation, judicial review of a Commission
decision issued after an informal proceeding, as happened here, is a
streamlined process. A judge who seeks such review must file a request
with the Chief Justice of this Court for appointment of an SCR within
thirty days after the Commission issues its decision. TEX. GOV’T CODE
§ 33.034(b). Within ten days of receiving the request, the Chief Justice
must select “by lot” the justices that will serve on the SCR. Id.
§ 33.034(c). Within fifteen days after the SCR is appointed, the
Commission must file a charging document that includes the sanction

3 The Court holds that the judge may also proceed with her claim for a

declaration that her conduct did not violate Canon 3B(6) or Article V,
Section 1-a(6)(A) of the Texas Constitution. Ante at 20. Again, I disagree. The
Commission ultimately found only that the judge violated Canon 4A and issued
the public warning solely on that basis. She cannot legitimately claim a
credible threat that the Commission will sanction her in the future for violating
canons that the Commission has already concluded she did not violate.

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or censure. Id. § 33.034(d). Absent a continuance for good cause, which
may not exceed a total of sixty days, the SCR must conduct a de novo
hearing on the charging document within thirty days after the date the
document is filed. Id. § 33.034(h). And the SCR must issue its decision
within sixty days after the hearing. Id. At most, the process takes less
than eight months from start to finish. By contrast, the current lawsuit
has already been pending for approximately four-and-a-half years.
Utilizing available administrative remedies to minimize the
damages that will ultimately be sought against a governmental unit is
consistent with the purpose of requiring exhaustion. That is, such an
approach ensures “an orderly procedure to enforce” a party’s legal rights;
it does not “deprive” the party of said rights. Rhule, 417 S.W.3d at 442.
Further, exhaustion would (or at least could) have resulted in a more
streamlined and efficient TRFRA lawsuit on the back end, lowering the
amount of attorney’s fees that will inevitably be sought against the
Commission if the judge prevails. TEX. CIV. PRAC. & REM. CODE
§ 110.005(a)(4) (authorizing a person who successfully asserts a TRFRA
claim to recover “reasonable attorney’s fees, court costs, and other
reasonable expenses incurred in bringing the action”). By failing to
exhaust, she maximizes her damages and attorney’s fees in derogation
of the “orderly procedure” envisioned by the doctrine.
In sum, the judge could and should have engaged in the procedure
provided by the Government Code for obtaining judicial review of the
public warning, as nothing precluded her from bringing affirmative
claims under TRFRA and the UDJA after exhausting that procedure.
See CPS Energy, 671 S.W.3d at 620. Because she did not, the district

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court lacked jurisdiction and appropriately dismissed this suit.
Chaparral Energy, 546 S.W.3d at 138 (“When an agency has exclusive
jurisdiction, courts lack jurisdiction until the party has exhausted all
administrative remedies before the agency.”).
I express no opinion on the merits of the judge’s TRFRA claims. 4
I would hold only that she failed to exhaust her administrative remedies
before filing this suit, thereby depriving the district court of jurisdiction.
Because the Court holds that exhaustion was not required, I respectfully
dissent.

Debra H. Lehrmann
Justice

OPINION FILED: June 28, 2024

4 As neither the trial court nor the court of appeals has addressed the

merits, the Court appropriately declines to do so in the first instance. See In
re Troy S. Poe Tr., 646 S.W.3d 771, 780 (Tex. 2022) (“As a court of last resort,
it is not our ordinary practice to be the first forum to resolve novel questions,
particularly ones of widespread import.”).

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