Tyler Epstein, trustee of the Elmwood Revocable Trust, sued the Polk County Judge, Sydney Murphy, and four county commissioners, Guylene Robertson, Ronnie Vincent, Milt Purvis and Charles Thomas Overstreet, over a road he says was established as a public county road by the Polk County Commissioners Court in 1908 and has been obstructed. His Fifth Amended Petition, filed October 20, 2023, pleads violations of the Equal Protection Clause, substantive due process, and procedural due process under 42 U.S.C. § 1983, plus nuisance, negligence per se, tortious interference, intentional interference with property rights and civil conspiracy, against each defendant in both personal and official capacities.¹ The officials respond that the duties Epstein invokes, including the Transportation Code duty to clear public roads of obstructions, can be performed only by the commissioners court acting as a body, so the claims can only be official-capacity claims.²

The officials filed a second plea to the jurisdiction on November 13, 2023 that challenged only the claims against them in their official capacities. Epstein nonsuited the official-capacity claims on November 29, 2023, stating the individual-capacity claims remained live, and argued the plea was moot; the 411th District Court of Polk County (Judge Paul E. White, by assignment) denied the plea and a related standing challenge.¹ On interlocutory appeal, the Ninth Court of Appeals (Wright, J., joined by Golemon, C.J., and Chambers, J.) reversed and rendered judgment for the officials, holding Epstein's claims could be asserted only against them in their official capacities and that he had not pleaded viable section 1983 claims. Murphy v. Epstein, No. 09-24-00021-CV, 2025 WL 555459 (Tex. App.⁠—Beaumont Feb. 20, 2025).² Epstein petitioned for review on May 7, 2025 (corrected May 12, 2025); the officials responded urging denial without further briefing, and the Court later requested briefs on the merits (Docket).

Petition for review from the Ninth Court of Appeals, which reversed an interlocutory order denying a second plea to the jurisdiction and rendered judgment dismissing claims against county officials. The Court has requested briefs on the merits but has not yet granted the petition.

1. Whether the court of appeals lacked jurisdiction to consider the denial of a plea to the jurisdiction when only claims against public officials in their individual capacities were at issue. 2. Whether the court of appeals erred by dismissing all individual-capacity claims when the officials did not seek summary judgment on those claims or prove their affirmative defenses in the trial court.¹ The respondents restate the issues as whether the court of appeals properly exercised jurisdiction because Epstein alleged only official-capacity actions, and whether it properly rendered judgment because he pleaded no facts stating a viable claim against any official personally.²

Petitioner (Tyler Epstein, Trustee of the Elmwood Revocable Trust): The officials' plea challenged only the suit against a governmental entity and official-capacity claims, which were nonsuited before the appeal, so section 51.014(a)(8) gave the court of appeals no jurisdiction and section 51.014(a)(5) does not save it, and an amended notice of appeal could not create it. Even with jurisdiction, the court could not dismiss individual-capacity claims the officials never challenged: they could have moved for summary judgment on official immunity as in Texas A&M University System v. Koseoglu, or moved under section 101.106(f) and proved its elements as in University of Texas Health Science Center v. Bailey, but did neither and first mentioned section 101.106 on appeal, so Epstein never had a chance to present evidence. He argues official and sovereign immunity are distinct, officials can be personally liable for failing to perform ministerial duties and for ultra vires acts, treating all their conduct as "official" would create absolute immunity from federal section 1983 claims contrary to the Supremacy Clause, and dismissal without notice and an opportunity to respond denied him due process.¹

Respondents (Sydney Murphy, Guylene Robertson, Ronnie Vincent, Milt Purvis, and Charles Thomas Overstreet): The court of appeals properly exercised jurisdiction because the claims, however labeled, rest on alleged failures to perform statutory duties that county officials can perform only in their official capacities. No constitutional provision or Chapter 251 of the Transportation Code gives an individual commissioner or the county judge independent authority over county roads, and the court of appeals found nothing in the record showing they acted outside the scope of their authority in a way not barred by governmental immunity. The court also properly held Epstein failed to plead facts stating section 1983 claims, because he did not allege the commissioners court voted or made an official decision, so there was no action under color of law for equal protection, substantive due process, or procedural due process.²

Epstein says the holding upsets long-standing principles of appellate review and governmental immunity and conflicts with and misinterprets the Texas Constitution, presenting questions important to the state's jurisprudence under Texas Government Code section 22.001(a) and (b). He also argues the decision would let officials escape individual-capacity claims, including federal claims, without ever having to prove an immunity defense.¹ The respondents answered that the case applies well-settled principles to undisputed facts and presents no novel issue.²

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