City of Austin v. Doe, NO. 03-20-00136-CV

CourtCourt of Appeals of Texas
Writing for the CourtThomas J. Baker, Justice
PartiesThe City of Austin, Chief Brian Manley, and the Austin Police Department, Appellants v. Jane Doe, Appellee
Docket NumberNO. 03-20-00136-CV
Decision Date29 December 2020

The City of Austin, Chief Brian Manley, and the Austin Police Department, Appellants
Jane Doe, Appellee

NO. 03-20-00136-CV


December 29, 2020



The City of Austin, the Austin Police Department (APD), and APD Chief Brian Manley (collectively, the City) appeal the trial court's order denying their plea to the jurisdiction. Appellee, Jane Doe, individually and on behalf of all others similarly situated, sued appellants for declaratory and injunctive relief related to their publication of booking photos (a.k.a. "mug shots") on APD's website. For the following reasons, we will affirm in part the trial court's order as to Doe's ultra vires claim but reverse the order as to her remaining claims and render judgment dismissing those claims.


In her live petition, Doe—a fifty-one-year-old "wife, mother, professional and private citizen [who] has never been convicted of a crime"—alleges that she was recently arrested in Austin and accused of driving while intoxicated (DWI), a misdemeanor charge she denies. After Doe was transported to the Travis County Jail, a sheriff's deputy told her that a

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booking photo would be taken, but she objected to being photographed "on the grounds that the booking photo would likely be posted on the internet and introduced into the public domain in violation of her right to privacy and right to due process." The deputy explained that the photo was being taken "solely to confirm [her] identity for internal law enforcement purposes and that if [she] did not submit [to having her photo taken] she would be sent to a holding cell until she acquiesced." After the photo was taken and upon Doe's release from jail, the deputy instructed her to inform APD that she "did not consent to the public release" of the booking photo.

Doe alleges that the APD maintains a policy—"authored, adopted, and enforced by" Chief Manley—declaring that "[m]ug shots of adult arrestees are subject to public release unless the release would interfere with law enforcement interests or hinder investigative efforts . . . [and, the mug shots] are publicly released automatically through the online APD Booking Photo Database Search 13 days after date of arrest." The policy is identified as APD General Order 326.4 (GO 326.4), and Doe appended a copy of it to her petition. Doe alleges that the policy "also excepts from disclosure information considered 'restricted' including 'criminal history information' and 'any information that is otherwise privileged or restricted under state or federal law.'"

Doe complains that the APD posts photos on its mug-shot website continuously for thirteen days from original release date "without regard to whether an individual has received due process for the crime of which the individual is accused or whether the crime is a felony, misdemeanor, violent or non-violent offense, or whether the accused is a fugitive from justice." Further, she contends that the website's search function permits searches for booking photos based on name, booking number, booking date, and charges; that photos can be "exported" without restriction, including the ability to print and download them onto personal computers

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where they can be manipulated, changed, and distributed; and that when the photo is downloaded, it contains no date identifying when it was taken or for what type of offense or whether the arrestee was charged or exonerated or whether the case was dismissed.

Following her release from jail and before the mug shot was published on the APD website, Doe provided the City with written notice that she did not consent to the release or publication of her booking photo, citing the common-law doctrine of privacy and confidentiality under the Texas Public Information Act (PIA). She also requested that the City obtain an opinion from the Texas Attorney General regarding interpretation of the PIA's provisions concerning APD's planned release of the photo. The City responded that it would publish the photo on the website despite Doe's objections.

Doe immediately filed an original petition and motion for temporary restraining order and temporary injunction (TI) seeking to prohibit the City from releasing and publishing the photo. Shortly thereafter, the City and Doe executed a Rule 11 agreement prohibiting the release and publication of Doe's booking photo on the APD mug-shot website until the trial court heard and ruled on the motion for TI. In her live petition, Doe asserts causes of action for violation of her common-law right to privacy and violation of the PIA; seeks declarations under the Uniform Declaratory Judgments Act (UDJA), including that GO 326.4 is invalid; and contends that Chief Manley's posting of the photos on the APD website constitutes an ultra vires act. The City filed a plea to the jurisdiction, which the trial court heard contemporaneously with Doe's motion for TI. The trial court granted the TI and denied the plea to the jurisdiction. This appeal ensued. See Tex. Civ. Prac. & Rem. Code § 51.014.

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In its plea to the jurisdiction, the City contended that (1) it enjoys governmental immunity from Doe's cause of action for common-law invasion of privacy, an intentional tort, for which the Texas Tort Claims Act (TTCA) does not waive immunity; (2) Doe's claims under the UDJA seek merely an interpretation of the PIA, a claim for which the UDJA does not waive immunity, and the PIA does not waive its immunity under the facts alleged; and (3) Doe's ultra vires claim against Chief Manley is not viable because she is complaining solely about acts within the exercise of his official discretion.1 We review the trial court's ruling on the plea to the jurisdiction de novo. See Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

Does the City enjoy governmental immunity from Doe's claims?

A city, as a political subdivision of the state, is immune from suit and liability unless the state consents. City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). Governmental immunity defeats a court's jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Where a government entity challenges jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015). To determine if the plaintiff has met that burden, we consider the facts the plaintiff has alleged and, to the extent it is relevant to the jurisdictional issue, the evidence the parties have submitted. Whitley, 104 S.W.3d at 542.

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However, as Doe argues in her brief, a city has no immunity of its own but is only afforded the state's immunity when it is acting as the state's agent and performing governmental functions for public benefit. Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 433 (Tex. 2016) ("[A] city is not a freestanding sovereign with its own inherent immunity."); see also Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019) ("Political subdivisions of the state—such as counties, cities, and school districts—are not sovereign entities, but under the governmental-immunity doctrine, they share the state's immunity when performing governmental functions as the state's agent."). Political subdivisions are immune from suit for acts performed as a branch of the state but not for those acts performed in a proprietary, non-governmental capacity. See Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). While the "proprietary-governmental dichotomy" is not a "clear one," "generally speaking, a municipality's proprietary functions are those conducted 'in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government,' while its governmental functions are 'in the performance of purely governmental matters solely for the public benefit.'" Id. (quoting Dilley v. City of Houston, 222 S.W.2d 992, 993 (Tex. 1949)). "Acts that are proprietary in nature, therefore, are not done as a branch of the state, but instead for 'the private advantage and benefit of the locality and its inhabitants.'" Wasson, 489 S.W.3d at 433 (quoting City of Galveston v. Posnainsky, 62 Tex. 118, 127 (1884)).

"Because governmental immunity extends 'as far as the state's [immunity] but no further,' no immunity exists for acts performed in a proprietary, non-governmental capacity." Rosenberg Dev., 571 S.W.3d at 746-47 (quoting Wasson, 489 S.W.3d at 433-34). "Like ultra vires acts, acts performed as part of a city's proprietary function do not implicate the state's immunity for the simple reason that they are not performed under the authority, or for the benefit,

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of the sovereign." Wasson, 489 S.W.3d at 434. As a common-law doctrine, the judiciary determines whether immunity exists "in the first instance and delineates its boundaries." Id. at 435. "If immunity is applicable, then the judiciary defers to the legislature to waive such immunity." Id. We thus consider whether APD's posting of booking photos on its mug-shot website constitutes a proprietary or governmental function to determine whether the City enjoys governmental immunity in the first instance.

The Texas Supreme Court has explained that when the legislature has statutorily defined a particular activity as a governmental function in the TTCA, there is "no reason to think that the classification would be different under the common law." Tooke, 197 S.W.3d at 343-44 (holding that plaintiffs' contract with city to provide curbside leaf and brush collection within city was encompassed by TTCA's inclusion of "garbage...

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