Appellee Charles E. Amos brought suit in Travis County district court against appellants, the Texas Adjutant General’s Department and Daniel James, III, the Adjutant General (collectively the “Department”), for declaratory and injunctive relief, alleging that the Department had violated state law and had deprived him of due process of law under the Texas Constitution by convening an efficiency board whose recommendation led to Amos’s eventual discharge from the Texas Air National Guard (the “National Guard”). The Department appeals the trial court’s partial grant and partial denial of Amos’s motion for summary judgment, as well as the denial of the Department’s own motion for summary judgment, motion for new trial, and motion to modify, correct, or reform the judgment. Because we determine that Amos’s action is non-justiciable, we will vacate the trial court’s judgment and dismiss the cause.
BACKGROUND
Charles E. Amos joined the National Guard in 1975 and was an officer in 1996. On September 13, 1996, Daniel James, the Texas Adjutant General and Amos’s direct supervising officer, convened an efficiency board to consider evidence bearing on Amos’s fitness for continued service in the National Guard. Amos was given a Notification of Board Proceedings informing him that the Adjutant General had convened an efficiency board, that the board was being convened pursuant to then-effective section 431.042(b)(5) and section 431.089 of the Texas Government Code, and that the board proceedings would be guided by Air Force Instruction 36-3209 (“AFI 36-3209″), the military procedure governing the efficiency board. See Act of April 30, 1987, 70th Leg., R.S., ch. 147, � 1, sec. 431.042, 1987 Tex. Gen. Laws 316, 422 (Tex. Gov’t Code Ann. � 431.042, since amended); Tex. Gov’t Code Ann. � 431.089 (West 1998). The notification informed Amos of the issues that would be addressed at the hearing, the date of the proceedings, Amos’s right to consult with military counsel, and Amos’s right to retain private counsel at his own expense. The hearing was set for November 2, 1996.
