United Mexican States v. Ashley
| Decision Date | 05 October 1977 |
| Docket Number | No. B-6853,B-6853 |
| Citation | 556 S.W.2d 784 |
| Parties | UNITED MEXICAN STATES, Relator, v. Honorable Calvin ASHLEY, Judge, et al., Respondent. |
| Court | Texas Supreme Court |
Denning E. Schattman and Michael D. Schattman, Murad, Wilemon & Henningan, Jerry Murad, Fort Worth, for relator.
Eugene Sherrod, Jr., Clifford A. Bridwell, Wichita Falls, for respondent.
This is an original mandamus brought by the United Mexican States (Mexico), a sovereign nation, against the Honorable Calvin Ashley, district judge. This mandamus was sought as the result of a suit filed by C. J. Brannan against Mexico concerning lands allegedly expropriated by Mexico without compensation. Mexico contends that the district court had no jurisdiction and should have dismissed the suit; Brannan disputes this contention.
Brannan filed suit against Mexico on December 10, 1976, alleging that he was the owner of two ranches in Mexico which had been expropriated by Mexico in 1963 and 1967. In Brannan's original petition he stated that Mexico, a foreign sovereign, had property located within Texas. On December 10, 1976, Brannan made application for writ of attachment in the district court, which was granted the same day. The property sought to be attached was a collection of pre-Columbian artifacts held by a United States Marshal and claimed as the property of Mexico. Service of citation was made on Honorable Enrique Vasquez, Consul of Mexico, on December 14, 1976.
On December 22, 1976, Brannan filed a motion in the United States District Court for the Western District of Texas seeking to establish a lien by attachment on the pre-Columbian artifacts which had been used as evidence in a criminal case in that court. 1 Brannan's motion also stated that he knew of no other property situated in the State of Texas upon which attachment could be levied. There is nothing in this record showing what ruling, if any, the federal district court made on Brannan's motion.
On January 6, 1977, Mexico filed a special appearance in Judge Ashley's court, stating that in all cases affecting foreign consuls, suits could not be brought in a state court. The special appearance also stated that because Brannan's petition was a complaint against the sovereignty of lands located in Mexico, it constituted a direct attack against Mexico's sovereignty and could not be brought in state or federal court.
Brannan served the Mexican Consul with written interrogatories on February 16, 1977, which Mexico has refused to answer. On February 17, 1977, Mexico filed an additional special appearance stating that its consul, Enrique Vasquez, could not accept service of process by a Texas court. Brannan then served the Mexican Consul with requests for admissions on April 11, 1977. Mexico later objected to the interrogatories and requests asserting that it did not need to answer them because they did not pertain to the question of whether the district court had jurisdiction to hear the suit. Subsequently Brannan filed a motion to compel answers to the interrogatories and to deem the requests admitted. Mexico then filed a motion to dismiss the suit, an objection to the district court's jurisdiction, and requested a hearing on the matter of jurisdiction. Mexico never filed a motion to quash the service made upon Vasquez or a motion contesting the attachment of the property.
The district court heard all pending motions on June 3, 1977. On June 7, 1977, the district court entered an order stating that it had jurisdiction of the cause. The court overruled Mexico's motion to dismiss, its objection to jurisdiction, and its objection to the requests and written interrogatories. The court granted Brannan's motion to compel answers to his interrogatories and conditionally granted Brannan's motion to deem the requests admitted.
Mexico brings this case as a mandamus because, in effect, its motions for special appearance were overruled by the action of the trial court. The order which overruled the special appearances cannot be appealed; therefore, it was necessary for Mexico to bring this cause as a mandamus. Carpenter Body Works, Inc. v. McCulley, 389 S.W.2d 331 (Tex.Civ.App. Houston 1965, writ ref'd), cert. denied, 382 U.S. 979, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).
Brannan contends that the doctrine of sovereign immunity is not an absolute jurisdictional bar to the suit and argues that the doctrine applies only to the merits of a case. In summary, Brannan argues that the trial court has jurisdiction to consider this case and the defenses of sovereign immunity and act of state would not operate as a bar to the suit at this stage in the proceedings.
We hold that the doctrine of sovereign immunity applies to this case and bars Brannan's suit against Mexico in the courts of Texas. Under the doctrine of sovereign immunity, a foreign sovereign is immune from suit absent its consent to be sued. The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812). Sovereign immunity has been modified and it has been stated that "restrictive sovereign immunity" is now the law in the United States. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 703, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976); see Mexico v. Hoffman, 324 U.S. 30, 35-36, 65 S.Ct. 530, 89 L.Ed. 729 (1945); Ex parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 714 (1943). The doctrine of restrictive sovereign immunity denies immunity to sovereigns when the suit arises out of a purely commercial transaction, with the foreign sovereign acting solely in a commercial capacity. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 703, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). The doctrine of restrictive sovereign immunity is inapplicable to this suit because no commercial activity is involved. It is undisputed that the action giving rise to this suit was Mexico's expropriation of Brannan's ranches located in Mexico. While expropriation of lands of a Texas citizen by a foreign power is not an activity to be commended, the action is a governmental action and not a commercial activity within the scope of the doctrine of restrictive sovereign immunity. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 704, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). We hold that the restriction placed on the doctrine of sovereign immunity is inapplicable in this case and Brannan's suit is thus barred.
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