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Editor’s Note: The following guest commentary reflects the views and opinions of the author alone and does not necessarily represent the official views of Texas Policy Research, its staff, board, or affiliated organizations. Guest submissions are lightly edited for grammar, formatting, clarity, and length while preserving the author’s voice and arguments.
Cristina Esparza has been fighting Edinburg Consolidated Independent School District for nine years. A principal at Barrientes Middle School, she was fired in 2016 after a private photograph she had sent to her husband was disseminated against her will by a third party. Esparza was the victim of a crime. The district fired her anyway. Nine years later, after three rounds of interlocutory appeals all the way to the Texas Supreme Court, she still has not received a trial on the merits of her case.
The taxpayers of Edinburg have paid for her former employer’s legal defense at every step. Esparza has paid for her own. The school district has the time, the money, and the procedural tools to outlast her. Ordinary Texans do not have any of those things. That is not an accident of how the cases turned out. It is what the current rules still allow any government defendant in Texas to do in 2026.
The Texas Constitution makes local governments creatures of the Legislature — entities with only the powers the Legislature grants them, exercised within the constraints the Legislature sets. That structure is meant to keep government accountable to the people through their elected representatives. In practice, when statutes grant authority without specifying how it can be enforced against citizens, local governments invent their own enforcement methods. When citizens push back, the same governments use procedural defenses, sequential interlocutory appeals, and the simple weight of their legal departments to make the cost of vindication higher than most citizens can bear.
Esparza’s case is one example. There are others. The pattern is the same.
The Gap Between Promise and Enforcement
Texas law gives citizens several theoretical paths to challenge unlawful action by a governmental unit. In practice, each of those paths has been narrowed or weakened by procedural barriers that make them effectively unavailable to ordinary Texans.
The ultra vires doctrine allows citizens to sue individual government officials for action taken without legal authority, but only for prospective relief, without attorney’s fees, and only against the individual rather than the entity. The Uniform Declaratory Judgments Act, meant to let citizens ask a court to declare their rights, does not waive sovereign immunity. Mandamus, the writ a citizen can use to compel a government to perform a legal duty, is treated as an extraordinary remedy and provides no fee recovery. For an ordinary Texan with a meritorious claim, each of these paths leads to the same destination: a long fight, with no fees recoverable even if you win, against a defendant that pays for its lawyers with your tax dollars.
What makes the situation worse is not the substantive law. It is the procedural framework that sits on top of it. Governmental units in Texas can file pleas to the jurisdiction, motions arguing the court lacks authority to hear the case, and the denial of those pleas triggers an automatic right to interlocutory appeal. While the appeal is pending, the case below is stayed. Once that appeal concludes, the same defendant can file a separate jurisdictional motion based on summary judgment evidence, triggering another stay and another appeal. Each round can take a year or more. The cumulative effect is that a citizen with a strong case can spend tens or hundreds of thousands of dollars on appellate procedure before any court ever hears the merits of what actually happened to them.
Cristina Esparza’s nine-year fight is what that framework produces. She is not unusual. She is what the system is currently designed to produce.
A Judge Has Called for Legislative Action
Texas appellate courts have noticed the problem. In June 2024, Justice Charles Spain of the Fourteenth Court of Appeals wrote a concurring opinion in City of Houston v. Boodoosingh that named the dynamic directly. Section 51.014(a)(8) of the Civil Practice and Remedies Code grants Texas appellate courts jurisdiction over interlocutory appeals from orders granting or denying a plea to the jurisdiction. Justice Spain pointed out, accurately, that the plain text of the statute does not give appellate courts jurisdiction over the denial of a Rule 91a motion to dismiss, yet the Texas Supreme Court has effectively read that jurisdiction into the statute through case law.
Spain’s concurrence is measured but pointed. He wrote that “the legislature should amend section 51.014(a)(8) and not passively acquiesce to judicial rewrites of statutes that serve to expand our subject-matter jurisdiction.” He observed that the appellate courts have, at times, suggested legislative changes to existing statutes, but that those suggestions “fall on deaf ears” in part because no one in the legislative department is tasked with summarizing significant statutory-construction opinions and presenting them to the appropriate committees.
When a sitting Texas appellate judge writes that the Legislature should fix a statute, in a published concurrence with citations to prior cases where the same problem has surfaced, that is a signal worth taking seriously. The procedural framework that traps citizens like Cristina Esparza in nine-year appellate cycles is not a bug of an otherwise functional system. It is the result of statutes the Legislature has the authority to amend, paired with a procedural environment that the Legislature can structure differently. The diagnosis has been made. What remains is the legislation.
What the Statutes Leave Out
The core problem is that Texas statutes routinely grant authority to local governments without specifying how that authority can be enforced, and routinely allow governmental units to deploy procedural defenses without any countervailing accountability mechanism. The result is a structural imbalance that favors well-funded government legal departments at every stage.
Three pieces are missing from the current framework.
First, statutes that grant local governments power do not generally specify the enforcement methods those governments are permitted to use against citizens. When the statute is silent, local governments invent. Coercive policies, pretextual permits, ad hoc sanctions, and selective enforcement all become available because nothing in the statute says they cannot be used. Citizens have no clear path to challenge an enforcement method that the statute does not explicitly authorize, because the statute also does not explicitly prohibit it.
Second, when a citizen does challenge a government’s action, there is no default remedy structure that provides notice, an opportunity to cure, equitable relief, and fee-shifting against the entity. Each of those pieces exists in some statutory contexts. None of them is the default. As a result, citizens face the full procedural fight even in cases where a brief pre-suit exchange could have resolved the matter.
Third, the procedural framework for jurisdictional defenses by governmental units is structured to maximize delay. Pleas to the jurisdiction can be filed sequentially rather than concurrently with other dispositive motions. Each denial triggers an automatic stay and an automatic right to interlocutory appeal. There is no requirement that the governmental defendant certify, under penalty of sanction, that the jurisdictional argument is grounded in controlling authority. There is no requirement that summary judgment evidentiary standards apply to jurisdictional disputes when the underlying facts are contested. The cumulative effect is that meritless procedural filings cost the government little and cost the citizen everything.
What Reform Would Look Like
The Legislature can address each of these gaps with targeted statutory changes. None of what follows is radical. All of it is consistent with the basic constitutional structure that makes local governments creatures of the Legislature operating within constraints the Legislature sets.
The Legislature should codify enforcement-method limits when granting authority to local governments. If a statute grants a local government the power to do X, the statute should specify the methods by which X may be enforced against citizens. Methods not specified should not be available. This restores the constitutional principle that local governments exercise only the powers actually granted.
The Legislature should establish a default remedy structure for citizen challenges to government action: pre-suit notice, an opportunity to cure, equitable relief if the cure is refused, and fee-shifting against the entity, not the individual official, when the citizen prevails. This gives both sides an incentive to resolve disputes early rather than litigate them indefinitely.
The Legislature should restructure the procedural framework for jurisdictional defenses. Governmental defendants should be required to file all jurisdictional defenses concurrently rather than sequentially, eliminating the multi-round appellate game. Summary judgment evidentiary standards should apply to jurisdictional motions when the underlying facts are contested. Counsel for governmental defendants should be required to certify, under appropriate sanctions, that jurisdictional arguments are grounded in controlling authority, not merely conceivable. Stays during interlocutory appeals should be conditioned on accountability measures, not granted automatically.
These reforms are not about choosing winners between citizens and local governments. They are about restoring the basic bargain the Texas Constitution sets up: that local governments exercise only the powers granted, that citizens can vindicate their rights without facing procedural attrition designed to outlast them, and that the cost of meritless government defense falls on the entity that filed it rather than on the citizen forced to litigate against it.
The Minimum Required
Cristina Esparza will eventually receive a ruling, one way or another, after a decade of procedural fighting that she did not choose and that no citizen should have to choose. Her case will become a published opinion and a docket number and a footnote in someone else’s case. The next Cristina Esparza is somewhere in Texas right now, dealing with the early stages of the same procedural environment that produced the first one.
Closing these gaps restores the original bargain between Texans and the local governments that serve them. It is not a comprehensive overhaul of Texas civil procedure. It is targeted reform of the specific statutory provisions that have allowed the procedural framework to drift away from the constitutional structure that limits government in the first place. It is the minimum required to keep government limited and accountable to the people.
About the Author: Tyler Epstein is an attorney based in Conroe, Texas. A 2008 graduate of Texas A&M University, he spent a decade in the oilfield, always a roughneck at heart, before attending law school as a second career. He now practices local government, constitutional, and real estate law, with a focus on civil rights and governmental immunity matters. He posts on Texas local government legal issues on X at @TexLocGovtAtty.
Disclosure: The author is an attorney based in Conroe, Texas, with active litigation in the Texas Supreme Court (SCOTX Cause No. 25-0267) on issues related to the procedural patterns described in this commentary. The case discussed in this commentary (Edinburg Consolidated ISD v. Esparza) is not one of his cases. The policy reforms he advocates would prospectively change the legal framework but would not affect the outcomes of his pending matters. He is not a registered lobbyist and reports no financial interest in the recommendations made here. The views expressed are his own.
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