Texas Southern University, Texas Southern University President Lesia Crumpton-Young and General Counsel Hao Le v. Mary Young

Supreme Court of Texas
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No. 23-0391
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Texas Southern University, Texas Southern University President
Lesia Crumpton-Young and General Counsel Hao Le,
Petitioners,

v.

Mary Young,
Respondent

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On Petition for Review from the
Court of Appeals for the First District of Texas
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~ and ~
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No. 23-0392
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In re Texas Southern University, Texas Southern University
President Lesia Crumpton-Young and General Counsel Hao Le,
Relators
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On Petition for Writ of Mandamus
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JUSTICE YOUNG, concurring in the denial of the petition for review
and the petition for writ of mandamus.

The State contends that the trial court in this case improperly
ordered merits discovery before ruling on the State’s sovereign-immunity-
based plea to the jurisdiction. The Court today denies the State’s
petition for review and petition for writ of mandamus. I concur and write
separately to explain why.
Specifically, I do not disagree with the State that a trial court
must resolve a challenge to its subject-matter jurisdiction before reaching
any merits issues. To the contrary, I fully endorse that principle, which
applies to all courts and to litigation involving any parties, not just the
State. But when the State is the defendant, these principles may play out
differently. The State possesses vastly more jurisdictional defenses than
typical defendants do, so the no-merits-before-jurisdiction rule usually
gives the State extraordinary benefits. The State’s ability to insulate
itself from suit unless a plaintiff can hurdle a bevy of jurisdictional
obstacles, however, entails a consequence that the State finds less
desirable—that jurisdictional discovery will often burden the State more
than a typical defendant. The State must take the bitter with the sweet.
If the waiver of immunity is tethered to specific factual prerequisites,
the only way to know if immunity has been waived is to determine if the
necessary facts exist. The path to that destination often passes through
jurisdictional discovery. The State finds itself in that situation here.
My votes to deny the petitions for review and for writ of mandamus
reflect disagreement not with the State’s asserted legal principle,
therefore, but only with the State’s assertion that the lower courts in this

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case (or more generally) are flouting that principle.

* * *
Mary Young began serving as the Chief of Police for Texas
Southern University in 2017. In 2022, she learned that an allegedly
anonymous complaint had been filed against her. Soon thereafter, TSU
President Lesia Crumpton-Young falsely told Young that TSU’s board of
trustees wanted to fire her. Young also learned that TSU had been
investigating her actions to determine whether there was merit to the
complaint and whether her actions warranted termination. Despite
Young’s requests, TSU did not provide her a copy of the complaint.
In response, Young filed suit against TSU. She sought court orders
prohibiting TSU from firing or otherwise disciplining her without first
giving her a copy of the signed complaint. Young also sought a
declaratory judgment that TSU’s investigation and attempted discipline
violated § 614 of the Texas Government Code. TSU filed a plea to the
jurisdiction on the basis of sovereign immunity.
Before ruling on TSU’s plea to the jurisdiction, the trial court
ordered expedited discovery. The discovery order required TSU to turn
over documents “related to the investigation” into Young’s conduct and to
produce for deposition Crumpton-Young and Darlene Brown, the auditor
who led TSU’s investigation into Young.
In this Court, the State’s petition for review (in No. 23-0391)
argues that the trial court improperly ordered merits discovery before
ruling on the plea to the jurisdiction. The State contends that such an
action implicitly denied the plea to the jurisdiction, which authorizes the
State to bring an interlocutory appeal. It urges the Court to grant the

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petition “[t]o clarify that a trial court may not subject a governmental
defendant to non-jurisdictional discovery before ruling on a plea to the
jurisdiction.” (Emphasis added.) As an alternative, if we were to conclude
that we lack appellate jurisdiction, the State has filed a petition for writ
of mandamus (in No. 23-0392), which asks us to direct the district court
to withdraw its discovery order and rule on the plea to the jurisdiction,
thus preventing unlawful merits discovery. The underlying theory of
both petitions is that merits discovery may not be ordered when there is
a pending challenge to a trial court’s subject-matter jurisdiction.
I do not see how anyone could disagree with that proposition.
“Subject matter jurisdiction is ‘essential to a court’s power to decide a
case.’” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (quoting
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)). It
does not mean that anything short of a final decision is fair game despite
the absence of jurisdiction, of course, because the principle “stems from
the doctrine of separation of powers, and aims to keep the judiciary from
encroaching on subjects properly belonging to another branch of
government.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379
(Tex. 2006) (Brister, J., concurring). A court that exercises unauthorized
judicial power is necessarily exercising power that belongs to someone
else, either to others within the government or to the citizens of our State.
The State’s premise is therefore correct: subject-matter jurisdiction
is a condition precedent to reaching the merits of a dispute. See In re Lazy
W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016) (“A trial court ‘must
determine at its earliest opportunity whether it has the constitutional or
statutory authority to decide the case before allowing the litigation to

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proceed.’” (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004))); see also Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998) (describing “the first and fundamental question
[as] that of jurisdiction” (quoting Great S. Fire Proof Hotel Co. v. Jones,
177 U.S. 449, 453 (1900))). Because “[s]overeign immunity from suit
deprives a trial court of subject-matter jurisdiction,” the trial court here
has no authority to proceed to the merits until it determines whether
TSU’s plea to the jurisdiction should be sustained. Shamrock Psychiatric
Clinic, P.A. v. DHHS, 540 S.W.3d 553, 559 (Tex. 2018). Discovery that
implicates only the merits is wholly improper until it is clear that the
court has authority to reach the merits.
But because discovery is not invariably tethered only to the merits,
discovery is not categorically unavailable upon a challenge to a trial
court’s subject-matter jurisdiction. “Courts always have jurisdiction to
determine their own jurisdiction,” Harrell v. State, 286 S.W.3d 315, 317
(Tex. 2009) (quoting Hous. Mun. Employees Pension Sys. v. Ferrell, 248
S.W.3d 151, 158 (Tex. 2007)), so if discovery is needed to reach that
determination, “trial courts considering a plea to the jurisdiction have
broad discretion to allow ‘reasonable opportunity for targeted discovery’
and to grant parties more time to gather evidence and prepare for such
hearings.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
642–43 (Tex. 2012) (quoting Miranda, 133 S.W.3d at 233). After all,
especially when the State is a party, jurisdiction can turn on contested
facts. A trial court lacking sufficient evidence to resolve a jurisdictional
fact question and thus to rule on the plea to the jurisdiction may order
targeted discovery. Miranda, 133 S.W.3d at 229. Discovery of this kind

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is not a transgression of a court’s subject-matter jurisdiction—it is how
a court ensures that no such transgression occurs.
Relevant to this case, where the facts are insufficient for a court
to determine its jurisdiction in an ultra vires claim, a court may order
targeted discovery into the key factual issues related to the claim. True,
there will sometimes—often—be some overlap with the merits, especially
in ultra vires cases where the waiver of immunity, which implicates
jurisdiction, is closely linked to the merits. That truism hardly means
that broad discovery into the merits is permissible, though. Targeted
discovery cannot be allowed unless—and only to the extent that—it is
essential to the resolution of a jurisdictional question. It would be worse
than improper for a court to keep anything but a firm tether on discovery
during the pendency of a jurisdictional challenge.
The scope of jurisdictional discovery, therefore, will vary based on
the scope of an ultra vires allegation, which “is dependent upon the grant
of authority at issue in any particular case.” Hous. Belt & Terminal Ry.
Co. v. City of Houston, 487 S.W.3d 154, 164 (Tex. 2016). The grant of
authority at issue here is in the Texas Government Code. The statute
requires an agency to give a law enforcement officer “[a] copy of a signed
complaint [filed against her] . . . within a reasonable time after the
complaint is filed.” Tex. Gov’t Code § 614.023(a). And “[d]isciplinary
action may not be taken against the officer . . . unless a copy of the signed
complaint is given to” her. Id. § 614.023(b). The statute also provides
that a complaint may not be “considered by the head of a state agency”
unless the complaint is first “in writing” and second “signed by the person
making the complaint.” Id. § 614.022.

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The State argues that the “only potential [jurisdictional] factual
dispute concerns when Young received a copy of the complaint against
her and what the contents of that complaint were.” I cannot agree. The
statute raises several jurisdictional factual issues: (1) when Crumpton-
Young was alerted to the complaint and what action she took, if any,
between that time and when Young was provided a copy of the complaint;
(2) whether TSU took any disciplinary actions against Young before
giving her a copy of the complaint; and (3) whether Young was provided
the complaint within a reasonable time. From what I can see, the trial
court did not have the evidence it needed to properly address these
jurisdictional issues.
Young pleaded that Crumpton-Young told her that she was going
to be fired because of an anonymous complaint. She also pleaded that
TSU was investigating her to determine whether there was merit to the
complaint’s allegations. Why Crumpton-Young made her false statement
to Young, and what decisions were being made during TSU’s
investigation, implicate a fact issue as to whether TSU had decided to
discipline Young before she was given the allegedly anonymous
complaint. In fact, the trial court noted in its discovery order that the
reason Crumpton-Young made her false statement to Young was “directly
probative on the issue that an adverse employment decision had been
made without complying with [the statute].”
The trial court required TSU to turn over documents related to
Brown’s investigation. It also required the depositions of Brown and
Crumpton-Young. True, if understood apart from its context, this
discovery order could be viewed as overbroad and beyond what is needed

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to determine the court’s jurisdiction to hear the suit. In a vacuum, it
might appear to authorize discovery into the merits. But the order was
not issued in a vacuum. Everyone knows its jurisdictional purpose.
Given that context, we cannot assume that any apparent imprecision or
breadth reflects a trial court’s intent to ignore jurisdiction and address
the merits. Ordering jurisdictional discovery would be a clear abuse of
discretion only if it necessarily trespasses so far into the merits that any
tether to pending jurisdictional questions was illusory or pretextual. And
such an order would warrant appellate relief only if a trial court refused
to correct it.
I acknowledge, of course, that parties might seek improper discovery
from an order that does not inherently or inevitably require transgressing
the no-merits-before-jurisdiction rule. If they do, the State (or any party
in such a situation) could readily take protective action far short of
immediately noticing an appeal or seeking mandamus relief. For one
thing, if an adverse party (in this case, Young) seeks to leverage
permissible jurisdictional discovery into clearly impermissible merits
discovery, the other side (in this case, the State) may seek a protective
order, resist a motion to compel, or take similar steps. A trial court who
issued an order in good faith only to determine its own jurisdiction would
not permit that order to be abused. If it does, the appellate courts can
and should appropriately limit discovery. The State, in fact, has
identified two cases in which a lower court has acted in disregard of the
jurisdictional principles that the State advances, and in both cases the
appellate courts stepped forward to vindicate those principles. See In re
Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062 (Tex. App.—

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Beaumont Aug. 16, 2018, orig. proceeding); City of Galveston v. Gray, 93
S.W.3d 587, 591 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
By contrast, the State thus far has not identified cases where the
courts of appeals have failed to act appropriately. If there is an epidemic
of unconstitutional orders allowing merits discovery without a
jurisdictional foundation, I am unaware of it. If the State, or any party,
finds itself in such a position, that party should present concrete evidence
that the trial court has exceeded its jurisdiction (and, especially in this
Court, any available evidence that other courts are frequently doing so).
At present, however, this Court’s review does not appear to be needed.
Again, I emphasize that “the court may not reach the merits if it
finds a single valid basis to defeat jurisdiction.” Rattray v. City of
Brownsville, 662 S.W.3d 860, 868 (Tex. 2023). Trial courts must
determine whether they have jurisdiction before proceeding to the merits.
Based on the information before us, the lower courts appreciate this
fundamental principle. Nothing that I see in this case reflects a clear
violation of the very rules the State properly defends. The district court
neither implicitly denied the plea to the jurisdiction nor clearly abused its
discretion by allowing discovery in derogation of its jurisdiction. I
therefore concur in the denial of the petitions for review and for writ of
mandamus.

Evan A. Young
Justice

OPINION FILED: October 13, 2023

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