Mark Goloby and Richard Vega v. Lesley Briones, Adrian Garcia, Lina Hidalgo, Rodney Ellis, and Tom Ramsey, All in Their Official Capacities as Members of the Harris County Commissioners' Court

Opinion issued April 16, 2026




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas
                          ————————————
                            NO. 01-25-00409-CV
                         ———————————
           MARK GOLOBY AND RICHARD VEGA, Appellants
                                    V.
  LESLEY BRIONES, ADRIAN GARCIA, LINA HIDALGO, RODNEY
ELLIS, AND TOM RAMSEY, ALL IN THEIR OFFICIAL CAPACITIES AS
  MEMBERS OF THE HARRIS COUNTY COMMISSIONERS COURT,
                         Appellees


                  On Appeal from the 333rd District Court
                           Harris County, Texas
                     Trial Court Case No. 2024-40076


                                   ***
                             ————————————
                              NO. 01-26-00108-CV
                            ———————————
                       IN RE RICHARD VEGA, Relator


            Original Proceeding on Petition for Writ of Mandamus


                                  OPINION
      Dual officeholding by government officials may implicate the common-law

doctrine of incompatibility. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928).

Appellants Mark Goloby and Richard Vega brought this suit for injunctive and

mandamus relief,1 contending Appellee Harris County Commissioner Adrian

Garcia violated the incompatibility doctrine, and thus resigned his office as a

commissioner, when he accepted an appointment by the Harris County

Commissioners Court to the board of the Gulf Coast Protection District (GCPD).

The trial court dismissed Appellants’ claims for lack of jurisdiction. We affirm.

                                   Background

      The governing body of each Texas county is its commissioners court,

comprised of the county judge and four county commissioners.              See TEX.

CONST. art. V, § 18(b); TEX. LOC. GOV’T CODE § 81.001. Garcia was elected to


1
      The appeal and original proceeding relate to the same underlying case. See
      Goloby et al. v. Briones et al., No. 2024-40076, 333d Judicial District Court,
      Harris County, Texas.
                                         2
represent Precinct 2 on the Harris County Commissioners Court in November

2018. He took office in January 2019 to serve a four-year term.

      In 2021, the legislature created the GCPD to facilitate projects for the

prevention and control of storm surge flooding along parts of the Texas Gulf coast.

See TEX. SPEC. DIST. CODE § 9502.0301(a). The GCPD is composed of territory in

five counties, one of which is Harris County. See id. §§ 9502.0102, .0104(a). The

GCPD has various revenue raising powers (such as the power to impose taxes,

some subject to voter approval, and to issue bonds and notes), the power to enter

into contracts generally as well as into certain agreements with political

subdivisions of the state, and the power of eminent domain. See id. §§ 9502.0302,

.0307, .0312.

      The GCPD is governed by a board of eleven directors.                  See id.

§ 9502.0201(a). The governor appoints six of them, and the commissioners courts

of the five counties each appoint one director. See id. § 9502.0201(b). GCPD

directors are “not entitled to compensation” for their service as such. See id.

§ 9502.0204.

      Appellants allege that in August 2021, half-way through Garcia’s first term

as a commissioner, the Harris County Commissioners Court appointed Garcia as a

director of the GCPD to serve an initial two-year term.        They allege Garcia

qualified for the director position, accepted the appointment, and executed the oath


                                         3
of office and a bond on August 31, 2022, after which Garcia began acting as a

GCPD director, including by casting votes on GCPD business. Appellants also

allege that after Garcia began serving as a GCPD director, he “continued to

participate as a member of Harris County Commissioners Court, including by

casting a vote in favor of approving certain programs, and/or allocating or

expending public funds as part of various projects.”

      Garcia was re-elected to the commissioners court in November 2022 and

began his second four-year term as Precinct 2 commissioner in January 2023.

Appellants allege that in June 2023, the commissioners court re-appointed Garcia

to a four-year term as a GCPD director, and that in August 2023 he executed

another oath of office and bond and continued performing his duties as a director.

      Appellants brought this suit in August 2024, and allege that the minutes of

the GCPD’s August 14, 2024 meeting show that Tina Peterson was appointed by

the Harris County Commissioners Court “to replace Adrian Garcia for the term

expiring June 16, 2027.”

      In their operative petition, Appellants name as defendants all five members

of the Harris County Commissioners Court—the Harris County Judge and the four

Harris County Commissioners—in their official capacities. Appellants allege that

because the offices of county commissioner and GCPD director conflict, under the

conflicting-loyalties prong of the doctrine of incompatibility, Garcia resigned his


                                         4
position as Precinct 2 commissioner by operation of law when he accepted a

position as GCPD director. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930

(Tex. Crim. App. 1994). They seek injunctions prohibiting the commissioners

court from paying Garcia’s salary and “from disbursing any further funds for any

items that were purportedly enacted on a 3-2 vote with Garcia voting with the

majority during the period beginning with his qualification for the [GCPD]

board . . . through the end of 2022,” a writ of mandamus compelling the

commissioners court to call a special election to fill the “vacancy” created by

Garcia’s resignation, and attorney’s fees and costs.

      Appellees filed a plea to the jurisdiction (and a supplemental plea after

Appellants amended their pleadings), arguing they are immune from Appellants’

claims due to governmental immunity and its derivatives. They also argued the

trial court lacked jurisdiction for the separate reason that Appellants lack standing,

both because only the State of Texas has authority to challenge an official’s right

to hold office and because Appellants alleged no actual injury distinct from any

alleged injury to the general public.

      After a hearing, the trial court granted Appellees’ plea and entered a final

order dismissing Appellants’ claims with prejudice. The trial court’s order does

not state a basis for its ruling. Appellants timely appealed.




                                          5
                                      Analysis

      Appellants raise five issues on appeal (which we re-order here): (1) whether

Garcia resigned his position as Harris County Commissioner by operation of law

when he qualified for and accepted the position as GCPD director; (2) whether

Goloby has standing as a taxpayer to challenge expenditures authorized by

Garcia’s vote following his alleged resignation; (3) whether Vega has standing as a

candidate to seek a writ of mandamus ordering a special election to fill the

“vacancy” created by Garcia’s alleged resignation; (4) whether the trial court has

authority to issue such a writ; and (5) whether the trial court erred by dismissing

Appellants’ claims with prejudice. Because we conclude Garcia did not resign his

position as a commissioner, we overrule the first issue and need not consider issues

two through four.2 We also overrule the fifth issue because the trial court did not

err in dismissing the claims with prejudice.

A.    Immunity law

      Sovereign immunity protects the State from lawsuits and deprives a trial

court of subject-matter jurisdiction over a plaintiff’s claims.    Mission Consol.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).


2
      We need not reach the questions of standing because, even if Appellants have
      standing, they have not shown that Appellees lack immunity. See Andrade v.
      NAACP of Austin, 345 S.W.3d 1, 11–14 (Tex. 2011); Ramirez v. Hotze, No. 01-
      25-00301-CV, 2025 WL 3768096, at *5 (Tex. App.—Houston [1st Dist.] Dec. 31,
      2025, pet. filed) (mem. op.).
                                          6
Governmental immunity derives from the State’s sovereign immunity and provides

the same protections for political subdivisions of the State as sovereign immunity

gives the State. See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).

Counties are political subdivisions of the State and generally have governmental

immunity. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018).

      Appellants brought this suit against Appellees in their official capacities as

Harris County Commissioners and the Harris County Judge.                 “[A]n official

capacity suit is essentially a suit against the governmental agency for which the

person works rather than a suit against the individual.” Sheedy v. Frederick, No.

01-22-00663-CV, 2023 WL 8459494, at *6 (Tex. App.—Houston [1st Dist.] Dec.

7, 2023, pet. denied) (mem. op.). “Because a suit against government employees

in their official capacities is, in all respects, a suit against the governmental entity,

employees sued in their official capacities are shielded by sovereign immunity or

governmental immunity.” Id. (citing Franka v. Velasquez, 332 S.W.3d 367, 382–

83 (Tex. 2011)).         As official-capacity defendants, Appellees thus have

governmental immunity to suit unless immunity has been waived by the legislature

or Appellants plead and prove that Appellees acted ultra vires. See id.; see also

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (“[S]uits to require

state officials to comply with statutory or constitutional provisions are not

prohibited by sovereign immunity, even if a declaration to that effect compels the


                                           7
payment of money. To fall within this ultra vires exception, a suit must not

complain of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act.”).

      A plaintiff bears the burden of affirmatively demonstrating the trial court’s

jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).

Typically, that means a plaintiff suing a governmental entity or official-capacity

defendant bears the burden of establishing that an immunity waiver applies or that

the official-capacity defendant acted ultra vires. City of Austin v. Powell, 704

S.W.3d 437, 447 (Tex. 2024); Heinrich, 284 S.W.3d at 372. But here, Appellants

do not rely on an immunity waiver or contend Appellees acted ultra vires. Instead,

they appear to argue Garcia simply has no immunity because he resigned his

position as a commissioner when he accepted the position as a GCPD director.

B.    Pleas to the jurisdiction

      Because immunity to suit defeats a trial court’s subject-matter jurisdiction, it

is properly asserted in a plea to the jurisdiction. Pepper Lawson Horizon Int’l

Grp., LLC v. Tex. S. Univ., 669 S.W.3d 205, 211 (Tex. 2023). When, as here, a

plea challenges the plaintiff’s pleadings, “the government does not dispute the

plaintiff’s factual allegations, and evidence is irrelevant.” Powell, 704 S.W.3d at

447. The question we must answer in evaluating a pleadings challenge is “whether


                                          8
the alleged facts ‘affirmatively demonstrate a trial court’s subject matter

jurisdiction.’” Id. (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004)).

      Whether a plaintiff has carried this burden is a question of law we review de

novo, construing the pleadings liberally in the plaintiff’s favor. See Heckman v.

Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). And when the trial court

grants a plea to the jurisdiction without stating the basis for its ruling, we may

affirm on any basis properly before us. Comm’n for Lawyer Discipline v. Stern,

355 S.W.3d 129, 134 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

C.    Garcia did not resign his position as a commissioner

      Appellants’ case is premised on their contention that Garcia resigned his

position as a county commissioner, as a matter of law, when he accepted the

commissioners court’s appointment as a GCPD director. Appellants do not dispute

that if Garcia did not resign, he is immune to their claims.

      1.     Doctrine of incompatibility

      Appellants contend Garcia resigned as commissioner based on the doctrine

of incompatibility, specifically conflicting-loyalties incompatibility. See Pirtle,

887 S.W.2d at 930. Appellants argue the incompatibility stems from the fact that

the offices of commissioner and GCPD director can contract with one another and

have overlapping taxing authority, eminent-domain authority, and other powers.


                                          9
For purposes of this opinion, we assume without deciding that the offices of

commissioner and GCPD director are incompatible, such that the doctrine of

conflicting-loyalties incompatibility—if it applies—would mean Garcia resigned

his position as commissioner if he accepted an appointment as a GCPD director.

      But “[c]ommon-law incompatibility is . . . not a single doctrine,” and two

other branches have been recognized in addition to conflicting-loyalties: self-

employment and self-appointment. See Tex. Att’y Gen. Op. No. JC-0564 at 1–2

(2002). Self-employment incompatibility “bars an individual from holding two

positions, one of which is immediately or ultimately answerable to the other,” and

self-appointment incompatibility “prohibits an officer from being appointed to a

position over which the officer has appointment authority.” See id. at 3; Tex. Att’y

Gen. Op. No. KP-0487 at 2 (2025).

      Self-appointment incompatibility is relevant here and was recognized in

Ehlinger v. Clark.    There, Fayette County sued to collect on two notes the

defendant had executed in connection with an oil lease. Ehlinger, 8 S.W.2d at 667.

The Fayette County Commissioners Court appointed the county judge to represent

the county in the suit. Id. at 673. The county sought not only the amounts due

under the notes, but also the fees to be paid to the county judge for his services in

representing the county in the collection action. Id.




                                         10
      The supreme court held the commissioners court could not appoint the

county judge as Fayette County’s attorney in the suit. Id. at 674. “It is because of

the obvious incompatibility of being both a member of a body making the

appointment and an appointee of that body that the courts have with great

unanimity throughout the country declared that all officers who have the

appointing power are disqualified for appointment to the offices to which they may

appoint.” Id. Although the county attorney “did have th[e] authority” to represent

the county in the suit “because of his office,” the fact that the commissioners court

appointed one of its own members as its attorney in the suit meant “the contract of

employment is void.” Id.

      Two years later, the Texarkana Court of Appeals decided St. Louis Sw. Ry.

Co. of Tex. v. Naples Indep. Sch. Dist., 30 S.W.2d 703 (Tex. Civ. App.—

Texarkana 1930, no writ). In Naples, a statute gave a school district the power to

assess tax amounts through a “board of equalization.” Id. at 705. The statute

required the district’s trustees to appoint the board of equalization, and the trustees

appointed themselves. Id. at 705–06. The school district later sued a railway

company to collect taxes that had been assessed by the board of equalization, and

the railway company challenged the assessments on grounds the trustees’ self-

appointments to the board of equalization were improper. Id. at 705.




                                          11
      Citing Ehlinger, the court held the trustees’ self-appointment to the board of

equalization was “an absolutely void act.” Id. at 706. It reasoned that although the

“statute plainly evidences the will of the Legislature to grant the power to the

board of trustees to select and appoint an official board of equalization,” the statute

did not give the trustees the power to appoint a board of equalization composed “of

themselves,” but only “other qualified and suitable persons.” Id. This conclusion

followed from the rule that “[i]t is contrary to the policy of the law for an officer to

use his official appointing power to place himself in office, so that, even in the

absence of statutory inhibition, all officers who have the appointing power are

disqualified for appointment to the offices to which they may appoint.”              Id.

(citation and internal quotation marks omitted)).

      Two principles emerge from these cases. First, the self-appointment prong

of the incompatibility doctrine prohibits a governmental body from appointing one

of its own officers to another governmental office for which it has appointing

authority. Ehlinger, 8 S.W.2d at 673–74. And second, where a governmental

body purports to make such an appointment, the appointment is “an absolutely

void act.” Naples, 30 S.W.2d at 706. Appellants do not dispute that the effect of

the self-appointment doctrine, where it applies, is to render an appointment made

in violation of the doctrine void; they argue only that the self-appointment doctrine

is inapplicable here, for reasons we discuss below.


                                          12
      The parties do not cite, and our research has not revealed, any post-Naples

Texas cases applying self-appointment incompatibility. But since Naples, several

Attorneys General of Texas have applied the doctrine in formal opinions, and those

opinions uniformly interpret Ehlinger and Naples to establish the two principles set

forth above. See, e.g., Tex. Att’y Gen. Op. No. KP-0407 at 2 (2022) (“Self-

appointment incompatibility precludes an officer from being appointed to a

position over which the officer has appointment authority.” (citing Ehlinger, 8

S.W.2d at 674)); Tex. Att’y Gen. Op. No. GA-0377 at 2 (2005) (any such

appointment is “void as a matter of law” (citing Naples, 30 S.W.3d at 706)). While

attorney general opinions are not binding on this Court, they are persuasive here

because our independent analysis of Naples and Ehlinger leads us to the same

conclusions. See In re Smith, 333 S.W.3d 582, 590 (Tex. 2011); Texas Appleseed

v. Spring Branch Indep. Sch. Dist., 388 S.W.3d 775, 783 n.2 (Tex. App.—Houston

[1st Dist.] 2012, no pet.).

      2.     Garcia’s appointment as a GCPD director was void

      If, as Appellants argue, conflicting-loyalties incompatibility controls, Garcia

resigned his position as commissioner by operation of law when he accepted the

appointment as a GCPD director. See Pirtle, 887 S.W.2d at 930. But if, as

Appellees argue, self-appointment incompatibility controls, then Garcia’s




                                         13
appointment as a director was void and never took effect, meaning he did not

resign as commissioner. See Naples, 30 S.W.2d at 706.

      Logically, we should consider whether Garcia’s appointment took effect

before we consider any effects the appointment might have had. Thus, we first

determine    whether     self-appointment     incompatibility      rendered   Garcia’s

appointment as a GCPD director void before we assess any impact the appointment

had under conflicting-loyalties incompatibility.

      The Attorney General of Texas agrees with this order of operations. In

2002, the attorney general considered whether a county commissioner who was

appointed by his commissioners court could simultaneously serve on the board of

the county’s groundwater conservation district. See Tex. Att’y Gen. Op. No. JC-

0455 at 1 (2002).      Without discussing self-appointment incompatibility, the

attorney general initially concluded that conflicting-loyalties incompatibility would

prevent the commissioner from serving in both offices, noting “the well-

established principle that qualification for and acceptance of a second office

operates as an automatic resignation from the first office.” Id.

      But nine months later, the attorney general acknowledged this conclusion

was error because the original opinion “relied on the conflicting-loyalties portion

of the doctrine” and “failed to address the effect of the self-appointment doctrine.”

See Tex. Att’y Gen. Op. No. JC-0455A at 1–2 (2002). In a corrected version of the


                                         14
opinion, the attorney general concluded that, based on the self-appointment

doctrine, “such appointments were void ab initio” and thus “we erred . . . in

considering the effect of such appointments.” Id. at 2. Because the “purported

appointments at issue here were void,” they could not result in the commissioners

resigning their offices. Id. And because the self-appointment doctrine rendered

the appointments void at the outset, “it was unnecessary for us in [the original

opinion] even to reach the issue of conflicting-loyalties incompatibility.” Id.

      Appellants do not dispute that the commissioners court had the power to

appoint a GCPD director. See TEX. SPEC. DIST. CODE § 9502.0201(b). Nor do they

dispute that when the commissioners court appointed Garcia as a director, it

appointed one of its own members. Therefore, the undisputed facts of this case fit

squarely within both Ehlinger’s directive that “all officers who have the appointing

power are disqualified for appointment to the offices to which they may appoint,”

and the effect of that rule as set forth in Naples that any such purported

appointment was “an absolutely void act.” Ehlinger, 8 S.W.2d at 674; Naples, 30

S.W.3d at 706.

      Appellants argue Ehlinger prohibits self-appointments only when a

government officer is appointed to a compensated position, which the GCPD




                                         15
director position was not. See TEX. SPEC. DIST. CODE § 9502.0204.3 Appellants

point to Ehlinger’s language that the commissioners court “cannot appoint as its

attorney one of its own members, to wit, the county judge, . . . and that, therefore,

the contract of his employment as attorney, in so far as it provided for

compensation, was void.” 8 S.W.2d at 674 (emphasis added). We do not read this

language as limiting Ehlinger’s holding to compensated self-appointments.

      First, under the unique facts of Ehlinger, the county judge had pre-existing

authority to represent the commissioners court in the case and could not also be

appointed as a compensated attorney for the court of which he was the presiding

member and which would supervise his role as attorney:

      The county judge, as a member of the commissioners’ court of Fayette
      county, had the constitutional and statutory duty placed upon him of
      not only executing the contracts sued upon in this suit, but of seeing
      that these contracts were carried out by the defendant in error[,] and
      finally collecting the identical notes sued upon, in so far as the
      collection of these notes was placed upon the commissioners’ court.
      If the court in the course of its proceedings found it necessary to
      employ an attorney to collect these notes, then the county judge, as the
      presiding officer of that court, had the constitutional and statutory
      duty imposed upon him of president over the court in its deliberations
      while selecting an attorney, and of participating therein as such
      officer. On the other hand, if, after an attorney was employed, it
      should be found that the attorney was not performing his duties in a

3
      Because the GCPD director position is uncompensated, Garcia’s appointment as a
      director does not implicate the emoluments provision of the Texas Constitution.
      See TEX. CONST. art. XVI, § 40 (subject to exceptions enumerated therein, “[n]o
      person shall hold or exercise at the same time, more than one civil office of
      emolument”); Pirtle, 887 S.W.2d at 931 (for purposes of article XVI, § 40, “[a]n
      ‘emolument’ is a pecuniary profit, gain, or advantage”).
                                         16
      competent or faithful manner, it would become the duty of the
      commissioners’ court, presided over by the county judge, to relieve
      such attorney of his duties and employ another. It is because of the
      obvious incompatibility of being both a member of a body making the
      appointment and an appointee of that body that the courts have with
      great unanimity throughout the country declared that all officers who
      have the appointing power are disqualified for appointment to the
      offices to which they may appoint.

      We think the employment of the county judge as an attorney by the
      commissioners’ court, over which he presided, comes clearly within
      the rule that the appointing[] power, in this instance the
      commissioners’ court, cannot appoint as its attorney one of its own
      members, to wit, the county judge, as was done in this case, and that,
      therefore, the contract of his employment as attorney, in so far as it
      provided for compensation, was void. . . . We do not say that the
      county judge had no authority to appear in the case and represent the
      county; on the contrary, he did have that authority because of his
      office, but for a like reason he could not become the employed
      attorney of the county in this proceeding.

Id. at 674 (emphasis added).4 Here, Garcia did not have pre-existing authority to

represent Harris County as a director for the newly created GCPD, meaning his



4
      Appellants also rely on Smith v. Elliott as supporting that self-appointment
      incompatibility applies only to compensated positions. 149 S.W.2d 1067 (Tex.
      Civ. App.—Amarillo 1941, writ ref’d). Smith involved the sale of school land by
      a county judge the commissioners court appointed as substitute trustee for the
      deed-of-trust sale. Id. at 1068. The plaintiff argued the county judge could not
      serve as trustee because he was the acting county judge and the presiding officer
      of the commissioners court at the time of the appointment. Id. at 1071. The court
      of appeals rejected this challenge, explaining that the commissioners court had
      legal authority to manage the disposition of school lands and the county judge did
      not receive a commission on the sale. Id. at 1071. The court did not mention
      Ehlinger, self-appointment incompatibility, or the incompatibility doctrine
      generally, but relied on cases providing that a county judge has authority to act as
      an attorney for the county if he does not receive compensation and that trust
      beneficiaries may serve as trustees. Id. Although it is writ refused with binding
      precedential value, we disagree Smith concerns self-appointment incompatibility.
                                           17
appointment, although uncompensated, gave him new powers. See TEX. SPEC.

DIST. CODE §§ 9502.0201 (governing how directors are appointed), 9502.0301–

.0312 (GCPD’S powers and duties).

      Second, limiting application of self-appointment incompatibility to

compensated positions would be contrary to the doctrine’s obvious purposes,

which include preventing the use of public offices for personal advancement,

ensuring the most qualified candidates are appointed to open positions, and

maintaining public confidence in the functions of government. See Ehlinger, 8

S.W.2d at 674 (discussing “obvious incompatibility” of self-appointments);

Naples, 30 S.W.2d at 706 (“It is contrary to the policy of the law for an officer to

use his official appointing power to place himself in office.”); Tex. Att’y Gen. Op.

No. LO-94-020 at 2 (1994) (“[A]n officer should not use the appointment power to

benefit himself or herself, regardless of any incompatibility between the offices of

the appointing power and the appointee.”). These purposes are not dependent on

whether the appointed position is compensated. The public deserves to have

confidence that the commissioners court is not advancing its own members’

interests with an appointment to the GCPD board but is thoroughly vetting

candidates qualified for the position.


      See Ferreira v. Butler, 575 S.W.3d 331, 335 n.29 (Tex. 2019) (describing “writ
      refused” opinion as having “the precedential value of one of our own”).

                                         18
      Third, in the nearly one-hundred years since Ehlinger was decided, no

attorney general opinion mentioning self-appointment incompatibility expresses it

is limited to compensated self-appointments. See, e.g., Tex. Att’y Gen. Op. No.

KP-0487 at 2 (2025) (recognizing, without mention of compensation, that “[s]elf-

appointment incompatibility prohibits an officer from being appointed to a position

over which the officer has appointment authority”); Tex. Att’y Gen. Op. No. O-

789 at 3 (1939) (stating, without mention of compensation, “[w]hen an official

body is clothed with the power and duty of designating the person to fill a vacancy

in public office, strong and controlling principles of public policy forbid such

board or body from filling such vacancy by the appointment of one of its own

members”). It “is a literal and absolute prohibition” on self-appointments and “not

limited by the facts.” Tex. Att’y Gen. Op. No. GA-0377 at 2 n.2 (2005).

      Similarly, our sister states that recognize self-appointment incompatibility

do not limit the doctrine to compensated appointments.        See, e.g., Fowler v.

Mitcham, 291 S.E.2d 515, 518 (Ga. 1982) (recognizing, without mention of

compensation, that “our courts have held that it is contrary to public policy to

permit an official board having the power to appoint to an office to exercise that

power by appointing one or more of their own body, unless the statute conferring

the appointing power expressly authorizes self-appointment”); State v. Thompson,

246 S.W.2d 59, 62 (Tenn. 1952) (holding, without mention of compensation, that


                                        19
“the Board of Commissioners of the City of Paris was without authority to appoint

one of its own members to the office of City Manager of that City, and that the

attempted appointment of Thompson was void; therefore, ineffective to place him

in that office,” and recognizing that the decisions of other states are “fairly uniform

in holding that a council or board which has the power and duty of appointment to

an office cannot select one of its own members”); Bradley v. City Council of City

of Greenville, 46 S.E.2d 291, 295 (S.C. 1948) (“In the absence of constitutional or

statutory provision, it is . . . contrary to public policy to permit an officer having an

appointing power to use such power as a means of conferring an office upon

himself, or to permit an appointing body to appoint one of its own members.”

(citation and internal quotation marks omitted)); Wood v. Town of Whitehall, 197

N.Y.S. 789, 791 (N.Y. Sup. Ct. 1923) (“When the members of a board are given

the appointing power, it seems necessarily implied in that power that they cannot

appoint themselves.”).

      We conclude self-appointment incompatibility is not limited to appointments

to compensated positions but applies equally to uncompensated positions the

appointee did not have a pre-existing duty to perform, including Garcia’s

appointment by the commissioners court as a GCPD director. See Ehlinger, 8

S.W.2d at 674; Tex. Att’y Gen. Op. No. GA-0377 at *2 n.2 (2005). Garcia’s




                                           20
appointment was void and did not effect his resignation as a county commissioner.

Naples, 30 S.W.2d at 706.

D.      Appellees are immune to Appellants’ claims

        Under the facts as pled in Appellants’ operative petition, Garcia did not

resign his position as a county commissioner. As an official-capacity defendant,

he thus has governmental immunity to Appellants’ claims. See City of Galveston,

217 S.W.3d at 469; Sheedy, 2023 WL 8459494, at *6. And because Garcia is

immune to Appellants’ claims, the trial court lacked subject-matter jurisdiction

over them. See Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 & n.2. The

same is true of Appellants’ claims against the other Appellees. Appellants do not

contend any other Appellee resigned his or her position, or that the other Appellees

do not presently occupy the offices of county commissioner and county judge,

respectively. The trial court lacked subject-matter jurisdiction over them as well.

See id.

        Because the trial court lacked subject-matter jurisdiction over Appellants’

claims, it properly granted Appellees’ plea to the jurisdiction. See Miranda, 133

S.W.3d at 226. We overrule issue one5 and need not consider issues two through

four.


5
        Because of this disposition, we likewise deny Vega’s petition for writ of
        mandamus in Cause No. 01-26-00108-CV, arguing Garcia resigned as county
        commissioner as a matter of law.
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E.    The trial court properly dismissed Appellants’ claims with prejudice

      In their fifth issue, Appellants contend the trial court erred by dismissing

their claims with prejudice.      Appellants argue dismissal with prejudice is

inappropriate because “dismissal on a plea to the jurisdiction would mean the court

lacks jurisdiction.”

      “A dismissal of a lawsuit by granting a plea to the jurisdiction on the

grounds of immunity ‘is with prejudice because a plaintiff should not be permitted

to relitigate jurisdiction once that issue has been finally determined.’” Crotts v.

Healey, No. 01-15-00076-CV, 2015 WL 5890103, at *3 (Tex. App.—Houston [1st

Dist.] Oct. 8, 2015, pet. denied) (mem. op.) (quoting Harris Cnty. v. Sykes, 136

S.W.3d 635, 639 (Tex. 2004)). Moreover, where “a governmental unit filed its

plea to the jurisdiction asserting its immunity and the plaintiff was given a

reasonable opportunity to amend her petition, and the plaintiff’s amended petition

still did not allege facts that would constitute a waiver of immunity, the trial court

should dismiss with prejudice.” Anderson v. Waller Cnty. Sheriff’s Dep’t., No. 01-

20-00097-CV, 2021 WL 3042677, at *8 (Tex. App.—Houston [1st Dist.] July 20,

2021, pet. denied) (mem. op.).

      Appellees filed their plea to the jurisdiction in March 2025, and Appellants

filed their second amended petition—their operative pleading—almost two months

later. Appellants thus had the opportunity to amend their pleading after Appellees


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filed their plea, and the facts it alleged did not cure the jurisdictional defects.

Dismissal with prejudice was proper. See id; see also Sykes, 136 S.W.3d at 639.

We overrule Appellants’ fifth issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                   Andrew Johnson
                                                   Justice

Panel consists of Justices Guerra, Johnson, and Dokupil.




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