County must sue AG, not individual concealed handgun license holder, in dispute over courthouse sign says 1st District Court of Appeals


Terry Holcomb, Sr. v. Waller County, 01-16-01005-CV, (Tex. App. – Houston [1st Dist.], March 15, 2018)

This is a concealed handgun/courthouse civil suit where the First District Court of Appeals reversed a declaratory judgment for the County.

The Waller County Courthouse houses civil and criminal courts as well as County offices. Outside, the County has a sign, pursuant to Penal Code §30.06, indicating it is a criminal violation for a concealed handgun license holder to enter the Courthouse carrying a concealed handgun.  Holcomb, a license holder, followed the procedure in Tex. Gov’t Code §411.209(a), to put the County on notice he believed the sign was used improperly since it prohibited carrying a handgun in all areas of the courthouse, not just areas accessible to the courts. In response Waller County sued Holcomb seeking a declaratory judgment his interpretation of the statute was incorrect. The trial court denied Holcomb’s plea to the jurisdiction and granted the County’s requested relief. Holcomb appealed.

Holcomb’s letter to Waller County providing notice of an ostensible violation of §411.209(a) is the basis for the County’s suit against him. As a matter of law, however, writing a letter to a political subdivision to complain about perceived unlawful action does not create subject-matter jurisdiction. Holcomb had a statutory right to notify the County of his contention. Even in the absence of a statute, he had a constitutional right to complain. Holcomb’s letter therefore does not constitute a redressable wrong. Further, no harm has befallen the County due simply to the letter. Since the Texas Attorney General has the exclusive right to seek enforcement, any legal dispute over the lawfulness of the County’s signage would be between the County and the Attorney General, not Holcomb. Waller County effectively sought and obtained a declaratory judgment in its favor as to its disagreement with the Attorney General without making him a party. Because only the Attorney General has the authority to decide whether a suit for violation of §411.209(a) is warranted, he was a necessary party and the judgment rendered in his absence was an impermissible advisory opinion. Finally, since the County utilized the suit to impact Holcomb’s statutory and constitutional right to complain about perceived unlawful action, it’s actions entitled Holcomb to attorney’s fees under the Citizens Participation Act. The declaratory judgment of the trial court is reversed, and the case is remanded for the sole purpose of awarding Holcomb attorney’s fees.

Justice Jennings concurred regarding the lack of subject-matter jurisdiction for the County to sue Waller. However, he dissented as to the remand, noting that if no jurisdiction exists, the trial court could not grant the motion to dismiss under the CPA. It would be improper for the trial court to award attorney’s fees in such a case.

If you would like to read this opinion click here. Justice Jennings concurring and dissenting opinion can be found here. Panel: Justice Jennings, Justice Bland and Justice Brown. The attorney listed for Holcomb is Thomas Edwin Walker. The attorney’s listed for the County are Elizabeth Dorsey
Sean Whittmore.

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