City of El Paso v. Heinrich, No. 06-0778 284 S.W.3d 366 (Tex. May 1, 2009)(Jefferson)
(ultra vires claim against governmental official in official capacity as exception to governmental immunity,
nature of relief sought: retrospective vs. prospective, equitable relief vs. damages, individual capacity suit
vs. official-capacity suit)
City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009)
Chief Justice Jefferson delivered the opinion of the Court.
“Sovereign immunity protects the State from lawsuits for money damages.” Tex. Nat.
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). But “an
action to determine or protect a private party’s rights against a state official who has
acted without legal or statutory authority is not a suit against the State that sovereign
immunity bars.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
Today we examine the intersection of these two rules. We conclude that while
governmental immunity generally bars suits for retrospective monetary relief, it does
not preclude prospective injunctive remedies in official-capacity suits against
government actors who violate statutory or constitutional provisions. We affirm in part
and reverse in part the court of appeals’ judgment and remand this case to the trial
court for further proceedings.
* * *
Conclusion. In sum, because there is a question of fact as to whether Heinrich’s
pension payments have been reduced in violation of state law, her claims for
prospective declaratory and injunctive relief against the Board members and the
mayor in their official capacities may go forward, but we dismiss her retrospective
claims against them. All of her claims against the City, Fund, and Board, however,
are barred by governmental immunity, and we dismiss them. Finally, we hold that the
Board members have not been sued in their individual capacities, and to the extent
the court of appeals held otherwise, we reverse its judgment. We affirm in part and
reverse in part the court of appeals’ judgment and remand this case to the trial court
for further proceedings. Tex. R. App. P. 60.2(a), (d).
THE CITY OF EL PASO, ET AL. v. LILLI M. HEINRICH; from El Paso County;
8th district (08-05-00203-CV, 198 SW3d 400, 07-20-06)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
Chief Justice Jefferson delivered the opinion of the Court. [pdf version here]
View Briefs on-line
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)
Argued November 13, 2007
Chief Justice Jefferson delivered the opinion of the Court.
“Sovereign immunity protects the State from lawsuits for money damages.” Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). But “an action to determine or protect a private party’
s rights against a state official who has acted without legal or statutory authority is not a suit against the
State that sovereign immunity bars.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
Today we examine the intersection of these two rules. We conclude that while governmental immunity
generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive remedies in
official-capacity suits against government actors who violate statutory or constitutional provisions. We affirm
in part and reverse in part the court of appeals’ judgment and remand this case to the trial court for further
Lilli M. Heinrich is the widow of Charles D. Heinrich, a member of the El Paso Police Department who died in
August 1985 from wounds received in the line of duty. Shortly after Charles died, the El Paso Firemen &
Policemen’s Pension Fund began paying Heinrich monthly survivor benefits equal to 100% of the monthly
pension her husband had earned. The parties contest how those payments were apportioned. The City
of El Paso, the El Paso Firemen & Policemen’s Pension Fund (“the Fund”), the Fund’s Board of Trustees
(“the Board”), and the individual board members contend that the Fund’s bylaws assigned only two-thirds of
this payment to Heinrich, the other third being paid to her on behalf of her then-minor child. Heinrich, on the
other hand, contends that, notwithstanding the bylaws, the Board voted to award her 100% of Charles’
pension benefits in her own right, as more fully explained below.
Accordingly, when in 2002 the Board reduced the monthly payments to Heinrich by one-third after Heinrich’s
son turned 23, Heinrich filed this lawsuit, alleging that petitioners violated the statute governing the Fund by
reducing her benefits retroactively. Heinrich sought both declaratory relief and an injunction restoring
Heinrich to the “status quo from [the] date of the illegal act.” Petitioners filed pleas to the jurisdiction
asserting that governmental immunity shielded the governmental entities from suit and that the individual
board members enjoyed official immunity. The trial court denied the pleas, and petitioners filed an
The court of appeals affirmed, holding that “a party may bring a suit seeking declaratory relief against state
officials who allegedly act without legal or statutory authority and such suit is not a ‘suit against the state.’”
198 S.W.3d 400, 406. The court acknowledged that, if successful, Heinrich would be entitled to past and
future benefits, but held that Heinrich’s suit made a valid claim for her vested right to pension benefits
rather than money damages. Id. at 407. We granted the petition for review in order to clarify the types of
relief that may be sought without legislative consent. 50 Tex. Sup. Ct. J. 910 (June 22, 2007).
A Ultra Vires Claims
Petitioners contend that although Heinrich requests declaratory and equitable relief, her claim is essentially
for past and future money damages, and that governmental immunity therefore bars her suit. As we said in
Reata Construction Corp. v. City of Dallas, “‘[s]overeign immunity protects the State from lawsuits for money
damages.’ Political subdivisions of the state . . . are entitled to such immunity—referred to as governmental
immunity—unless it has been waived.” Reata, 197 S.W.3d 371, 374 (Tex. 2006) (citations omitted); see also
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). We have said repeatedly that the
Legislature is in the best position to waive or abrogate immunity, “because this allows the Legislature to
protect its policymaking function.” IT-Davy, 74 S.W.3d at 854 (citations omitted) (collecting cases).
Heinrich concedes that the City, Fund, and Board enjoy governmental immunity from suit, but argues that
because her claim alleges a reduction in her benefits that was unauthorized by law, it is not barred. This is
so, she says, because “[p]rivate parties may seek declaratory relief against state officials who allegedly act
without legal or statutory authority.” Id. at 855 (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex.
1994) (suit challenging state officials’ construction of compulsory school-attendance law)); see also Fed.
Sign., 951 S.W.2d at 404 (“A private litigant does not need legislative permission to sue the State for a state
official’s violations of state law.”) (citations omitted)). We explained the rationale behind this exception to
governmental immunity in Federal Sign:
A state official’s illegal or unauthorized actions are not acts of the State. Accordingly, an action to determine
or protect a private party’s rights against a state official who has acted without legal or statutory authority is
not a suit against the State that sovereign immunity bars. In other words, we distinguish suits to determine a
party’s rights against the State from suits seeking damages. A party can maintain a suit to determine its
rights without legislative permission.
Fed. Sign, 951 S.W.2d at 404 (citations omitted).
On this basis, Heinrich argues that rather than money damages, she seeks only equitable and injunctive
relief under the Uniform Declaratory Judgment Act. That Act is a remedial statute designed “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex.
Civ. Prac. & Rem. Code § 37.002(b). It provides: “A person . . . whose rights, status, or other legal relations
are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of
construction or validity arising under the . . . statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a). The Act, however, does
not enlarge a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not alter a suit’s
underlying nature. IT-Davy, 74 S.W.3d at 855; State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). It is
well settled that “private parties cannot circumvent the State’s sovereign immunity from suit by
characterizing a suit for money damages . . . as a declaratory-judgment claim.” IT-Davy, 74 S.W.3d at 856
(citing W. D. Haden Co. v. Dodgen, 308 S.W.2d 838, 842 (Tex. 1958)).
Heinrich relies on State v. Epperson, 42 S.W.2d 228, 231 (Tex. 1931), in which we held that a suit against a
tax collector for the recovery of money (alleged to be due under a contract and withheld unlawfully) was not
barred by immunity. There, we noted that the tax collector had no discretion under the governing law to
deny payment on Epperson’s contract:
By legislative act the state has constituted the tax collector of the county its agent to receive delinquent
taxes collected under such contract, and it is the duty of such officer to pay all fees and commissions
lawfully incurred in the collection thereof to the various parties who may be entitled thereto. Under such
circumstances, the tax collector’s duty with reference to money belonging to persons who are entitled under
valid contracts to receive the same from him is purely ministerial. If he withholds the payment of such funds
when a person is lawfully entitled to receive same, he has failed to discharge a duty imposed upon him by
law and his act is a wrongful one.
Epperson, 42 S.W.2d at 231. We therefore concluded that although the trial court would “not possess
jurisdiction to enforce the specific performance of the contract relied upon by Epperson or to award
damages for any breach of said contract,” Epperson’s suit was “simply an action to compel an officer, as
agent of the state, to pay over funds to a party who claims to be lawfully entitled thereto.” Id.
Thus, the rule arising out of Epperson is that while suits for contract damages against the state are
generally barred by immunity, where a statute or the constitution requires that government contracts be
made or performed in a certain way, leaving no room for discretion, a suit alleging a government official’s
violation of that law is not barred, even though it necessarily involves a contract. We explained this
distinction in W. D. Haden Co. v. Dodgen:
[A]lthough [Epperson] ar[ose] out of [a] contract transaction . . .[it] appears to fall into the class of cases
projected by United States v. Lee, [106 U.S. 196 (1882)]. In that class of cases it is held that suits for
property alleged to be unlawfully or wrongfully withheld from the rightful owner by officers of the state are
not suits against the sovereign itself and may be maintained without permission of the sovereign.
308 S.W.2d 838, 841 (Tex. 1958). In other words, where statutory or constitutional provisions create an
entitlement to payment, suits seeking to require state officers to comply with the law are not barred by
immunity merely because they compel the state to make those payments. This rule is generally consistent
with the letter and spirit of our later caselaw. In IT-Davy, we distinguished permissible declaratory-judgment
suits against state officials “allegedly act[ing] without legal or statutory authority” from those barred by
immunity: “In contrast [to suits not implicating sovereign immunity], declaratory-judgment suits against state
officials seeking to establish a contract’s validity, to enforce performance under a contract, or to impose
contractual liabilities are suits against the State. That is because such suits attempt to control state action
by imposing liability on the State.” 74 S.W.3d at 855–56 (citations omitted) (emphasis added).
From this rationale, it is clear that suits 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
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. Compare Epperson, 42 S.W.2d at 231 (“the tax
collector's duty . . . is purely ministerial”) with Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706
(Tex. 2003) (newly elected commissioners court immune from suit where it “acted within its discretion to
protect the perceived interests of the public” in rejecting contract approved by predecessor), and Dodgen,
308 S.W.2d at 842 (suit seeking “enforcement of contract rights” barred by immunity in the absence of any
“statutory provision governing or limiting the manner of sale”). Thus, ultra vires suits do not attempt to exert
control over the state—they attempt to reassert the control of the state. Stated another way, these suits
do not seek to alter government policy but rather to enforce existing policy.
Further, while “[a] lack of immunity may hamper governmental functions by requiring tax resources to be
used for defending lawsuits . . . rather than using those resources for their intended purposes,” Reata
Constr. Corp., 197 S.W.3d at 375, this reasoning has not been extended to ultra vires suits, see Fed. Sign,
951 S.W.2d at 404 (citing Dir. of the Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264,
265-66 (Tex. 1980) (legislative consent not required for suit for injunctive relief against state agency to halt
unauthorized printing equipment and printing activities), Tex. Highway Comm’n v. Tex. Ass’n of Steel Imps.,
Inc., 372 S.W.2d 525, 530 (Tex. 1963) (legislative consent not required for declaratory judgment suit
against Highway Commission to determine the parties’ rights), and Cobb v. Harrington, 190 S.W.2d 709,
712 (Tex. 1945) (legislative consent not required for declaratory judgment suit against State Comptroller to
determine parties’ rights under tax statute)). Further, extending immunity to officials using state resources in
violation of the law would not be an efficient way of ensuring those resources are spent as intended. This is
particularly true since, as discussed below, suits that lack merit may be speedily disposed of by a plea to
the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
B Proper Parties
Nonetheless, as a technical matter, the governmental entities themselves—as opposed to their officers in
their official capacity—remain immune from suit. We have been less than clear regarding the permissible
use of a declaratory remedy in this type of ultra vires suit. Must it be brought directly against the state or
its subdivisions? Or must it be brought against the relevant government actors in their official capacity?
Compare Fed. Sign, 951 S.W.2d at 404 (“A private litigant does not need legislative permission to sue the
State for a state official’s violations of state law.”) (citations omitted), with IT-Davy, 74 S.W.3d at 855
(“Private parties may seek declaratory relief against state officials who allegedly act without legal or
statutory authority.”) (citations omitted). It seems to us, however, that because the rule that ultra vires suits
are not “suit[s] against the State within the rule of immunity of the State from suit” derives from the premise
that the “acts of officials which are not lawfully authorized are not acts of the State,” Cobb, 190 S.W.2d at
712, it follows that these suits cannot be brought against the state, which retains immunity, but must be
brought against the state actors in their official capacity. This is true even though the suit is, for all
practical purposes, against the state. See Brandon v. Holt, 469 U.S. 464, 471-72 (1985) (“[A] judgment
against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of
course, the public entity received notice and an opportunity to respond.”); Tex. A&M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 844 (Tex. 2007) (“It is fundamental that a suit against a state official is merely ‘another
way of pleading an action against the entity of which [the official] is an agent.’”) (quoting Kentucky v.
Graham, 473 U.S. 159, 165 (1985)).
C Permissible Relief
But the ultra vires rule is subject to important qualifications. Even if such a claim may be brought, the
remedy may implicate immunity. Cf. 13 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 3524.3 (under federal immunity law, an ultra vires suit may be brought but “if the defendant is a state
officer, sovereign immunity bars the recovery of damages from the state treasury in a private suit”). This is
a curious situation: the basis for the ultra vires rule is that a government official is not following the law, so
that immunity is not implicated, but because the suit is, for all practical purposes, against the state, its
remedies must be limited. Cf. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982) (“There
is a well-recognized irony in Ex parte Young; unconstitutional conduct by a state officer may be ‘state action’
for purposes of the Fourteenth Amendment yet not attributable to the State for purposes of the Eleventh.”).
We recently held that retired firefighters could not pursue a declaratory judgment action against the City to
recover amounts allegedly previously withheld from lump-sum termination payments in violation of the Local
Government Code. City of Houston v. Williams, 216 S.W.3d 827, 828 (Tex 2007). Without discussing
Epperson, we applied the rule from IT-Davy and Dodgen that the declaratory judgment act cannot be used
to circumvent immunity, noting that “[t]he only injury the retired firefighters allege has already occurred,
leaving them with only one plausible remedy—an award of money damages.” Id. at 829. Williams stands for
the proposition, then, that retrospective monetary claims are generally barred by immunity.
We also stated that “in every suit against a governmental entity for money damages, a court must first
determine the parties’ contract or statutory rights; if the sole purpose of such a declaration is to obtain a
money judgment, immunity is not waived.” Id. This does not mean, however, that a judgment that involves
the payment of money necessarily implicates immunity. Drawing the line at monetary relief is itself
problematic, as “[i]t does not take much lawyerly inventiveness to convert a claim for payment of a past due
sum (damages) into a prayer for an injunction against refusing to pay the sum, or for a declaration that the
sum must be paid, or for an order reversing the agency’s decision not to pay.” Bowen v. Massachusetts,
487 U.S. 879, 915-16 (1988) (Scalia, J., dissenting) (discussing section 702 of the Administrative Procedure
Act, which waives sovereign immunity in actions against federal agencies as long as the plaintiff seeks
“relief other than money damages”) (quoting 5 U.S.C. 702 (2000)).
Parsing categories of permissible relief in cases implicating immunity inevitably involves compromise. See, e.
g., Douglas Laycock, Modern American Remedies 482 (3d ed. 2002) (“The law of remedies against
governments and government officials is a vast and complex body of doctrine, full of technical distinctions,
fictional explanations, and contested compromises.”). The United States Supreme Court has held that,
under federal immunity law, claims for prospective injunctive relief are permissible, while claims for
retroactive relief are not, as such an award is “in practical effect indistinguishable in many aspects from an
award of damages against the State.” Edelman v. Jordan, 415 U.S. 651, 668 (1974). This rule originated in
Ex parte Young, 209 U.S. 123 (1908), in which the Court held that an action to restrain a government official
from unconstitutional conduct was not barred by immunity. Later, in Edelman, the Court recognized that the
distinction between prospective and retrospective relief “will not in many instances be that between day and
night” and cautioned that a fiscal impact on the State did not necessarily implicate immunity:
The injunction issued in Ex parte Young was not totally without effect on the State’s revenues, since the
state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties
against railroads which did not conform to its provisions. Later cases from this Court have authorized
equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte
Young. In Graham v. Richardson, 403 U.S. 365 (1971), Arizona and Pennsylvania welfare officials were
prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v.
Kelly, 397 U.S. 254 (1970), New York City welfare officials were enjoined from following New York State
procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But
the fiscal consequences to state treasuries in these cases were the necessary result of compliance with
decrees which by their terms were prospective in nature. State officials, in order to shape their official
conduct to the mandate of the Court's decrees, would more likely have to spend money from the state
treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect
on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex
parte Young, supra.
Id. at 667-68 (footnote omitted). The retroactive portion of the Edelman district court’s decree was different,
however, as “[i]t require[d] payment of state funds, not as a necessary consequence of compliance in the
future with a substantive federal-question determination, but as a form of compensation to those whose
applications were processed on the slower time schedule at a time when petitioner was under no court-
imposed obligation to conform to a different standard.” Id. at 668.
While “[t]he line between prospective and retrospective remedies is neither self-evident nor self-executing,”
Laycock, Modern American Remedies at 483, the Supreme Court shed further light on the issue in Milliken
v. Bradley, 433 U.S. 267, 269 (1977), a case involving desegregation of the Detroit school system. The
Supreme Court upheld a trial court’s order requiring state officials to spend $6 million on education to
remedy effects of segregation. Milliken, 433 U.S. at 290. The Court held that this relief was permissible
under Edelman: “That the programs are also ‘compensatory’ in nature does not change the fact that they
are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school
system.” Id.; see also 13 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3524.3
(noting that, under Edelman, “[i]njunctions requiring expenditure of state funds are acceptable, so long as
the order is prospective” but “[r]etroactive relief, including compensatory damages from state funds are
This compromise between prospective and retroactive relief, while imperfect, best balances the government’
s immunity with the public’s right to redress in cases involving ultra vires actions, and this distinction “appear
[s] in the immunity of the United States, and in the law of most states’ immunity from state-law claims.”
Laycock, Modern American Remedies at 482. It also comports with the modern justification for immunity:
protecting the public fisc. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006) (observing that
immunity “shield[s] the public from the costs and consequences of improvident actions of their
governments”); Federal Sign, 951 S.W.2d at 417 (Enoch, J., dissenting) (noting that suits against the state
would deplete treasury resources and tax funds necessary to operate the government). Moreover, it is
generally consistent with the way our courts of appeals have interpreted Williams. See, e.g., City of Round
Rock v. Whiteaker, 241 S.W.3d 609, 633-34 (Tex. App.—Austin 2007, pet. denied) (approving, under
Williams, dichotomy between declaratory and injunctive claims regarding past statutory violations and those
seeking only to compel the city to follow the law in the future; the government was immune from the former
but not the latter); Bell v. City of Grand Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, no pet.)
(holding that, under Williams, firefighters’ requested declaration regarding past statutory violation was
barred, but to the extent the requested declaration concerned future violations, the claim was not barred,
providing the firefighters did not seek an award of money damages). And finally, it ensures that statutes
specifically directing payment, like any other statute, can be judicially enforced going forward.
This approach is inconsistent with Epperson, however, in which we held that, if successful, Epperson would
be entitled to “the sum of $93,000 which belonged to him as his commission for services rendered.”
Epperson, 42 S.W.2d at 229. In that respect, Epperson conflicts with Williams, in which we implied that
prospective remedies might not be barred even though retrospective monetary ones were. Williams, 216 S.
W.3d at 829 (noting that “[t]he only injury the retired firefighters allege has already occurred, leaving them
with only one plausible remedy—an award of money damages” and that “they assert no right to payments
from the City in the future”). The best way to resolve this conflict is to follow the rule, outlined above, that a
claimant who successfully proves an ultra vires claim is entitled to prospective injunctive relief, as measured
from the date of injunction. Cf. Edelman, 415 U.S. at 669 (using entry of injunction to distinguish
retrospective from prospective relief). Thus, while the ultra vires rule remains the law, see Federal Sign, 951
S.W.2d at 404, Epperson’s retrospective remedy does not.
But this rule is not absolute. For example, a claimant who successfully proves a takings claim would be
entitled to compensation, and the claim would not be barred by immunity even though the judgment would
require the government to pay money for property previously taken. Gen. Servs. Comm'n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (noting that governmental immunity “does not shield the
State from an action for compensation under the takings clause”); cf. Wright & Miller, Federal Practice &
Procedure § 3524.3 (“If the state cannot invoke its immunity, retroactive relief against it is allowed.”).
Heinrich has not alleged a takings claim. In the trial court, Heinrich alleged only that “a suit for equitable
relief against a governmental entity for violation of a provision of the Texas Bill of Rights is excepted from . .
. sovereign immunity under Texas Constitution article [I], section 29" without specifying which provision of
the Bill of Rights had been violated. In the court of appeals, however, she clarified that her constitutional
complaint was a “violation of Article 1, section 16.” Tex. Const. art. I, § 16 (“No bill of attainder, ex post facto
law, retroactive law, or any law impairing the obligation of contracts, shall be made.”). Petitioners contend
that she waived this argument by failing to raise it in the trial court. See Tex. Dep't of Protective &
Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (“‘[A]s a rule, a claim, including a
constitutional claim, must have been asserted in the trial court in order to be raised on appeal.’") (citations
omitted). Even if Heinrich’s constitutional argument was properly presented, however, it has no merit.
Heinrich does not challenge the governing statute or bylaws, but rather the Board’s actions under those
provisions. Indeed, Heinrich argues that “[t]he Pension Board and its individual members acted outside their
authority and in violation of the Texas Constitution when they reduced [Heinrich’s] benefits.” Because
Heinrich does not allege that any law sanctioned the retroactive reduction in her benefits, her constitutional
As we have repeatedly noted, the Legislature is best positioned to waive immunity, and it can authorize
retrospective relief if appropriate. See, e.g., Tex. Local Gov’t Code § 180.006 (enacted after Williams and
waiving immunity for firefighter and police officer claims for back pay and civil penalties). There are cases in
which prospective relief is inadequate to make the plaintiff whole, but the contours of the appropriate
remedy must be determined by the Legislature.
Thus, Heinrich’s claims for prospective relief may be brought only against the appropriate officials in their
official capacity, and her statutory claims for future benefits against the City, Fund, and Board must be
dismissed. Heinrich’s pleadings are unclear as to the capacity or capacities in which she has sued the
individual Board members. The United States Supreme Court has observed that, “[i]n many cases, the
complaint will not clearly specify whether officials are sued personally, in their official capacity, or both.”
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); see also United States ex rel. Adrian v. Regents of
Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004). In these cases, “‘[t]he course of proceedings’ in such cases
typically will indicate the nature of the liability sought to be imposed.” Graham, 473 U.S. at 167 n.14
Here, the injunctive relief Heinrich seeks would necessarily come from the Board, rather than the individual
members. Considering “the nature of the liability sought to be imposed,” id., and construing Heinrich’s
pleadings liberally, Miranda, 133 S.W.3d at 226, we conclude that she has sued the Board members in their
official capacities, and her claims are therefore not automatically barred by immunity. To the extent that
the court of appeals held that the suit is against the Board members in their individual capacities, we
reverse that portion of its judgment.
D Evidence That Petitioners Acted Ultra Vires
In their second issue, petitioners argue that governmental immunity prohibits Heinrich’s suit because
Heinrich has offered no evidence that the reduction in her benefits was illegal or unauthorized. We
conclude, however, that Heinrich has presented evidence raising a fact question on this issue.
“When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause. We construe the pleadings liberally in
favor of the plaintiffs and look to the pleaders’ intent.” Miranda, 133 S.W.3d at 226 (citations omitted).
Here, Heinrich alleges that petitioners violated article 6243b, section 10A(b) of the Texas Revised Civil
Statutes when they reduced her benefits. Thus, if Heinrich’s allegations are true, her suit would fall within
the ultra vires exception to governmental immunity as described above.
This is not the end of our analysis, however: “if a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do.” Id. at 227. If there is no question of fact as to
the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law. Id. at 228.
If, however, the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to
the jurisdiction, and the issue must be resolved by the fact finder. Id. at 227–28. This standard mirrors our
review of summary judgments, and we therefore take as true all evidence favorable to Heinrich, indulging
every reasonable inference and resolving any doubts in her favor. Id. at 228.
Petitioners argue that, in accordance with the governing bylaws, the payments to Heinrich were reduced
when her son ceased to be eligible to receive them, and asserts that the statutory provisions Heinrich relies
upon are “inapplicable.” Conversely, Heinrich alleges that she was awarded 100% of her husband’s pension
in accordance with these provisions, and that petitioners’ subsequent retroactive reduction of her benefits
violated, among others, article 6243b, section 10A(a)(1) of the Texas Revised Civil Statutes. The relevant
portions of article 6243b, section 10A provide:
(a) Notwithstanding anything to the contrary in other parts of this Act and subject to Subsections (b) and (c)
of this section, the Board of Trustees may, by majority vote of the whole board, make from time to time one
or more of the following changes, or modifications:
(1) modify or change prospectively or retroactively in any manner whatsoever any of the benefits provided
by this Act, except that any retroactive change or modification shall only increase pensions or benefits;
(b) None of the changes made under Subsection (a) of this section may be made unless all of the following
conditions are sequentially complied with:
(1) the change must be approved by a qualified actuary selected by a four-fifths vote of the Board; the
actuary’s approval must be based on an actuarial finding that the change is supported by the existing
funding status of the fund; the actuary, if an individual, must be a Fellow of the Society of Actuaries or a
Fellow of the Conference of Actuaries in Public Practice or a Member of the American Academy of
Actuaries; the actuary, if an actuarial consulting firm, must be established in the business of providing
actuarial consulting services to pension plans and have experienced personnel able to provide the
requested services; the findings upon which the properly selected and qualified actuary's approval are
based are not subject to judicial review;
(2) the change must be approved by a majority of all persons then making contributions to the fund as
employees of a department to which the change would directly apply, voting by secret ballot at an election
held after ten (10) days’ notice given by posting at a prominent place in every station or substation of a
department to which the change would directly apply and in the city hall;
Tex. Rev. Civ. Stat. art. 6243b, § 10A (emphasis added).
Under this statute, while benefits may be increased if certain procedures are followed, the Board has no
discretion to retroactively lower pensions. Petitioners, however, cite the provisions of the 1980 bylaws,
under which the reduction would be proper due to Heinrich’s son’s age. They therefore suggest that
Heinrich erroneously relies on 1985 changes to the bylaws that increased the surviving spouse’s share but
were prospective only in nature and do not apply to Heinrich.
Heinrich submitted an affidavit from John Batoon, former Assistant City Attorney for El Paso. Batoon’s
I was serving as an Assistant City Attorney for the City of El Paso in 1985. I reviewed and approved the
award to Ms. Lilli M. Heinrich of 100% of her deceased husband’s, Charles D. Heinrich, benefits from The El
Paso Firemen & Policemen’s Pension Fund. All procedures were followed according to the Plan and
according to law. The membership voted and approved of the benefits awarded Ms. Heinrich as was
required by the Plan. Because Mr. Heinrich had been an outstanding police officer for the City of El Paso
and because he was killed in the line of duty, the Board of Trustees and the membership voted to award
Ms. Heinrich 100% of Mr. Heinrich’s benefits.
Consideration of the amount of benefits awarded Ms. Heinrich was not based, in any way, on the fact that
she had a minor child at that time. Ms. Heinrich was awarded 100% of the benefits because Mr. Heinrich
had been a well-loved officer and his death was a terrible loss for the police department. It was the Board of
Trustees and the membership’s way of paying tribute to a fallen officer.
Along with this sworn testimony, the evidence included a pair of October 16, 1985 letters from the chief of
police, one signed by the then-Board members, stating that “Mrs. Heinrich will receive 100% of her husband’
s final pension amount,” and one unsigned, stating that 100% would go to “Mrs. Heinrich and her
dependent children.” The minutes of the November 20, 1985 Board meeting also indicate that the
membership had previously voted to change benefits so that surviving spouses’ benefits would increase
from 66 2/3 to 100% of the pension amount. The Board contends that these bylaw changes do not apply to
Heinrich, but even if they do not, Batoon’s affidavit and the letters raise a fact question as to whether
Heinrich’s individual benefits were increased to 100% of her husband’s pension payments under the
provisions of article 6243b and subsequently reduced in violation thereof. We conclude that the trial court
correctly denied that portion of the plea to the jurisdiction challenging Heinrich’s claims against the
individuals in their official capacities. Miranda, 133 S.W.3d at 227–28.
E The Individuals’ Immunity
In their final issue, petitioners assert that the trial court erred in denying the individual board members’ plea
to the jurisdiction based on governmental and official immunity. With the limited ultra vires exception
discussed above, governmental immunity protects government officers sued in their official capacities to the
extent that it protects their employers. See Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 776 (Tex.
App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Because of this exception, however, governmental
immunity does not bar Heinrich’s claims against the individuals in their official capacities. Official immunity,
by contrast, is an affirmative defense protecting public officials from individual liability. See Telthorster v.
Tennell, 92 S.W.3d 457, 459-60 (Tex. 2002). Because we hold that Heinrich has not sued the Board
members in their individual capacities, official immunity is inapplicable here.
In sum, because there is a question of fact as to whether Heinrich’s pension payments have been reduced
in violation of state law, her claims for prospective declaratory and injunctive relief against the Board
members and the mayor in their official capacities may go forward, but we dismiss her retrospective claims
against them. All of her claims against the City, Fund, and Board, however, are barred by governmental
immunity, and we dismiss them. Finally, we hold that the Board members have not been sued in their
individual capacities, and to the extent the court of appeals held otherwise, we reverse its judgment. We
affirm in part and reverse in part the court of appeals’ judgment and remand this case to the trial court for
further proceedings. Tex. R. App. P. 60.2(a), (d).
Wallace B. Jefferson
OPINION DELIVERED: May 1, 2009
 The City withheld a percentage of Charles’s compensation (and that of other officers) to fund the plan.
 The State of Texas and the Texas State Association of Fire Fighters submitted amicus curiae briefs.
 We recently dismissed a claim for declaratory and injunctive relief against the Houston Municipal Employees Pension
System in which the “plaintiffs . . . requested that the trial court issue an injunction directing the pension board to comply with
the trial court’s interpretation of Article 6243h,” the governing statute. Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.
W.3d 151, 158-59 (Tex. 2007). Under Article 6243h, the Houston board’s “interpretation of [the] Act [is] final and binding on
any interested party,” Tex. Rev. Civ. Stat. art. 6243h § 2(y), and we held that this language precluded judicial review. Ferrell,
248 S.W.3d at 158 (“There is no right to judicial review of an administrative order unless a statute explicitly provides that right
or the order violates a constitutional right.”) (citations omitted). Here, however, Article 6243b contains no language similar to
that in 6243h granting the Board exclusive authority to interpret the act, see Tex. Rev. Civ. Stat. art. 6243b, and, in any case,
Heinrich does not challenge petitioners’ interpretation of 6243b, but rather alleges that they have violated that statute under
an undisputed reading thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J., concurring) (“A different case might be presented if
the plaintiffs alleged the board was clearly violating some provision of the statute. Article 6243h gives the pension board
complete discretion to interpret the statute, but not to violate it.”).
 The Dodgen Court expressly declined to limit Epperson based on changes in federal immunity jurisprudence. Dodgen,
308 S.W.2d at 843.
 Because the policy embodied in the law extends only as far the amount wrongfully withheld, claims for amounts beyond
those alleged to be due under the relevant law, such as consequential damages, remain barred by immunity.
 For claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act requires that the
relevant governmental entities be made parties, and thereby waives immunity. Tex. Civ. Prac. & Rem. Code § 37.006(b) (“In
any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is
entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the
state must also be served with a copy of the proceeding and is entitled to be heard.”); see Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692, 697-698 (Tex. 2003) (“[I]f the Legislature requires that the State be joined in a lawsuit for which immunity
would otherwise attach, the Legislature has intentionally waived the State’s sovereign immunity.”); Tex. Educ. Agency v.
Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (“The DJA expressly provides that persons may challenge ordinances or statutes,
and that governmental entities must be joined or notified. Governmental entities joined as parties may be bound by a court’s
declaration on their ordinances or statutes. The Act thus contemplates that governmental entities may be—indeed, must be—
joined in suits to construe their legislative pronouncements.”). Here, Heinrich is not challenging the validity of the bylaws or
the governing statute, but rather petitioners’ actions under them.
 State officials may, of course, be sued in both their official and individual capacities. Judgments against state officials in
their individual capacities will not bind the state. See Alden v. Maine, 527 U.S. 706, 757 (1999) (“Even a suit for money
damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly
attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.”).
 Further, although the parties do not address it, we note that the reduction in Heinrich’s survivor payments occurred before
the effective date of article XVI, section 66 of the Texas Constitution (“Protected Benefits Under Certain Public Retirement
Systems”), and we do not consider whether it would otherwise apply in this case.
 While this case was pending on interlocutory appeal, the Legislature enacted 271.151-.160 of the Local Government
Code, waiving immunity from suit for certain claims against cities and other governmental entities. Heinrich does not argue
that her claims fall within these provisions, and we express no opinion on that subject.
 Because the mayor of El Paso, who is also a Board member, was named as a defendant in his official capacity, Heinrich
may seek liability from the City through that officer, although her claims against the City itself must be dismissed.
 The Fund, the Board, and the Board members objected to this evidence. The trial court did not explicitly rule on the
objections, and the petitioners do not raise any evidentiary issues on appeal.
 The court of appeals failed to draw this distinction, instead discussing the protections available to officials from
governmental immunity. 198 S.W.3d at 407. This conflict gives us jurisdiction over this interlocutory appeal. Tex. Gov’t Code §