Amarillo Court of Appeals holds AG had no jurisdiction to enforce specific gun sign against county

Waller County, Texas, et al. v. Ken Paxton, Texas Attorney General (Tex. App. — Amarillo, August 17, 2022)

Ken Paxton, Attorney General of Texas, sued Waller County in 2016 asserting that the County was unlawfully attempting to prohibit licensed handgun owners carrying handguns from accessing portions of the county courthouse building in violation of section 411.209 of the Texas Government Code. Attorney General’s suit challenges the legality of signs posted at all four entrances to the Waller County Courthouse. Integral to their argument is the requirement the County violated the sign requirements of Penal Code sec. 30.06. The County filed a motion to dismiss for lack of jurisdiction. The trial court denied the motion and the County appealed.

A motion to dismiss based on a lack of subject matter jurisdiction is the functional equivalent of a plea to the jurisdiction. The Attorney General contends that the County’s immunity was waived under section 411.209(h) of the Texas Government Code states “[s]overeign immunity to suit is waived and abolished to the extent of liability created by this section.” TEX. GOV’T CODE ANN. § 411.209(h). However, when immunity is waived a plaintiff must “actually allege” a violation of the statute. Thus, the Attorney General had to plead facts sufficient to support his claim that the County violated the statute. The court’s inquiry is therefore on whether, at the inception of the suit, the Attorney General alleged facts that stated a cause of action under the statute in effect at the time. The court determined the County’s signs do not fall within the parameters of the statute in effect at the time this lawsuit was filed in 2016. For the purposes of this jurisdictional inquiry, the court need not reach the issue of whether the County’s signs or oral communications violate the current version of the statute. Therefore the plea should have been granted.

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