ACCEPTED 15-24-00109-CV FIFTEENTH COURT OF APPEALS January 22, 2025 AUSTIN, TEXAS 1/22/2025 10:05 PM ORAL ARGUMENT NOT REQUESTEDA. PRINE CHRISTOPHER CLERK NO. 15-24-00109-CV RECEIVED IN 15th COURT OF APPEALS AUSTIN, TEXAS 1/22/2025 10:05:15 PM IN THE COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE FIFTEENTH DISTRICT OF TEXAS Clerk AT AUSTIN
BRANDON HODGES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS TRUSTEE OF DISTRICT FOR MIDLAND ISD, ET AL.,
Appellants,
v.
PECOS-BARSTOW-TOYAH INDEPENDENT SCHOOL DISTRICT, ET AL.,
Appellees.
Accelerated Appeal from the 201st Judicial District Court Travis County, Texas Cause No. D-1-GN-24-005018
APPELLANTS’ BRIEF
Byron K. Henry State Bar No. 24008909 byron.henry@solidcounsel.com Walker Steven Young State Bar No. 24102676 walker.young@solidcounsel.com SCHEEF & STONE, L.L.P. 2600 Network Boulevard, Suite 400 Frisco, Texas 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150 ATTORNEYS FOR APPELLANTS IDENTITY OF PARTIES AND COUNSEL
Appellants: Appellate Counsel: Brandon Hodges, individually and in Byron K. Henry his official capacity as Trustee of byron.henry@solidcounsel.com District for Midland ISD Walker Steven Young walker.young@solidcounsel.com Dr. Mary Bone, individually and in SCHEEF & STONE, LLP her official capacity as a Trustee of 2600 Network Blvd. Suite 400 Round Rock ISD, and Frisco, TX 75034 Telephone: (214) 472-2100 Danielle Weston, individually and in Facsimile: (214) 472-2150 her official capacity as a Trustee of Round Rock ISD Trial Counsel: Joseph A. Baker joe.baker@solidcounsel.com SCHEEF & STONE, LLP 2600 Network Blvd. Suite 400 Frisco, TX 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150
Appellees: Trial and Appellate Counsel Pecos-Barstow-Toyah Independent David Campbell School District dcampbell@808west.com Athens Independent School District Kevin O’Hanlon kohanlon@808west.com Beeville Independent School District O’HANLON DEMERATH & CASTILLO Ben Bolt Independent School District 808 West Avenue Austin, Texas 78701 Brownsville Independent School (512) 494-9949 District Canutillo Independent School District Connally Independent School District Crandall Independent School District Crane Independent School District
2 Crowley Independent School District Forney Independent School District Fort Stockton Independent School District Hays Independent School District Hearne Independent School District Hereford Independent School District Jarrell Independent School District Karnes City Independent School District Kingsville Independent School District Lasara Independent School District Lockhart Independent School District Manor Independent School District Mansfield Independent School District Nacogdoches Independent School District Plainview Independent School District Plano Independent School District Quinlan Independent School District Red Oak Independent School District Splendora Independent School District Sweetwater Independent School District Temple Independent School District Terrell Independent School District Westwood Independent School District Wills Point Independent School District
3 TABLE OF CONTENTS
Identity of Parties and Counsel .............................................................................. 2
Table of Contents ................................................................................................... 4
Index of Authorities ............................................................................................... 7
Statement of the Case............................................................................................11
Statement Regarding Oral Argument ....................................................................12
Issue Presented .....................................................................................................13
I. The trial court abused its discretion in granting Appellees’ temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and Appellees did not demonstrate that any action of the Commissioner would harm Appellees. .....................................................................13
Statement of Facts .................................................................................................14
I. Factual Background ..........................................................................14
A. To ensure accountability in public education, the Legislature requires the Commissioner to grade school performance. ................................................................15
B. As part of a transparent process, the Commissioner releases an accountability manual explaining the metrics and standards for the accountability ratings. ............... 16
C. The accountability manual relies on cut scores to ensure every school or district can achieve an A grade and looks back to the preceding year’s data when necessary so that the manual can be published timely. ................................................................................................18
D. Since the STAAR test is a crucial element of the Commissioner’s accountability grades, it undergoes extensive and independent review to ensure consistency and reliability. ......................................................19
4 1. The Texas Technical Advisory Committee, an independent group of experts, advises the TEA concerning the STAAR test’s validity and reliability. .....................................................................20
2. To reduce costs and save time, an automated scoring system is used to review written answers on the STAAR test, and its accuracy is subject to rescoring....................................................21
II. Procedural History ............................................................................23
Summary of the Argument ....................................................................................25
Argument and Authorities .....................................................................................26
I. The trial court abused its discretion in granting Appellees’ temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and Appellees did not demonstrate that any action of the Commissioner would harm Appellees. .....................................................................26
A. Standard of Review .................................................................26
B. Applicable Law .......................................................................27
1. Temporary injunctions should only be issued to preserve the status quo after an applicant has presented evidence of a probable right to the relief sought and imminent harm if the extraordinary relief is not granted. ................................ 27
2. A governmental official does not act ultra vires by making an erroneous decision within his authority, and the only relief available for an ultra vires claimant is prospective relief to make the governmental official comply with statutory or constitutional provisions. ........................... 28
C. Discussion ..............................................................................29
5 1. Appellees did not demonstrate that they were likely to succeed on the merits because the evidence shows no ultra vires acts................................. 29
a. The Commissioner provided timely notice and Appellees’ arguments to the contrary require the Court to add words to the statute. .......................................................29
b. The Commissioner did not act ultra vires in relying on the only available data to calculate CCMR rates and that data did not make it mathematically impossible for districts to receive an A grade........................ 32
c. The Commissioner followed the law in having the TTAC, an independent third party, confirm the validity and reliability of the STAAR test...............................................34
d. The evidence shows no action by the Commissioner outside his authority in administering the STAAR test. ........................... 36
2. Regardless, Appellees offered no evidence of imminent and irreparable harm. .................................... 39
Conclusion and Prayer ..........................................................................................39
Certificate of Compliance .....................................................................................42
Certificate of Service ............................................................................................43
Index to Appendix ................................................................................................44
6 INDEX OF AUTHORITIES
Cases Page(s)
Bell v. Craig, 555 S.W.2d 210 (Tex. App.—Dallas 1977, no writ) ........................................29
Chambers-Liberty Cntys. Nav. Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ............................................................................29
City of Denton v. Grim, 694 S.W.3d 210 (Tex. 2024), reh’g denied (Aug. 30, 2024)............................. 33
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ............................................................................28
Davis v. Huey, 571 S.W.2d 859 (Tex. 1978) ............................................................................27
Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137 (Tex. Civ. App.—Dallas 1974, no writ) ................................. 27
Fuentes v. Fuentes, 656 S.W.3d 703 (Tex. App.—El Paso 2022, no pet.) .......................................39
Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990) ............................................................................30
Gunn v. McCoy, 554 S.W.3d 645 (Tex. 2018) ............................................................................31
Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017) ...................................................................... 28, 29
Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178 (Tex. 2023) ............................................................................31
Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018) ........................................................................ 28, 29
Hous. Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154 (Tex. 2016) ............................................................................28
7 Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916 (Tex. 1985) ............................................................................27
Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593 (Tex. App.—Amarillo 1995, no writ) .................................... 27
Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio 1997, pet. denied) ......................... 28
Neeley v. W. Orange-Cove Consol. ISD, 176 S.W.3d 746 (Tex. 2005) ............................................................................14
Pedernal Energy v. Bruington Eng’g, 536 S.W.3d 487 (Tex. 2017) ............................................................................31
Rodriguez v. Doe, 614 S.W.3d 380 (Tex. App.—Houston [14th Dist.] 2020, no pet.) ................... 30
State v. Walker, 679 S.W.2d 484 (Tex. 1984) ............................................................................26
Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex. 1968) ............................................................................27
Tex. Aeronautics Comm’n v. Betts, 469 S.W.2d 394 (Tex. 1971) ............................................................................28
Tex. Educ. Agency v. Houston Indep. Sch. Dist., 660 S.W.3d 108 (Tex. 2023) ................................................................ 29, 35, 38
Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993) .................................................................. 26, 27, 28
Statutes
19 TEX. ADMIN. CODE chs. 110-13 ........................................................................14
19 TEX. ADMIN. CODE § 97.1001 ..........................................................................17
TEX. CIV. PRAC. & REM. CODE § 37.001, et seq. ....................................................24
TEX. EDUC. CODE § 4.001(a) .................................................................................14
TEX EDUC. CODE § 11.151(b)(2) ...........................................................................24
8 TEX EDUC. CODE § 11.151(b)(4) ...........................................................................24
TEX EDUC. CODE § 11.151(b)(5) ...........................................................................24
Tex Educ. Code § 11.151(b)(6) .............................................................................24
TEX. EDUC. CODE § 11.1516(c) .............................................................................24
TEX. EDUC. CODE § 39.021 ...................................................................................14
TEX. EDUC. CODE § 39.023(a) ...............................................................................14
TEX. EDUC. CODE § 39.023(a-11) .............................................................. 19, 34, 35
TEX. EDUC. CODE § 39.053(a) ...............................................................................17
TEX. EDUC. CODE § 39.053(a-1)(1)(B) ............................................................ 19, 32
TEX. EDUC. CODE § 39.053(c) ...............................................................................19
TEX. EDUC. CODE § 39.053(c)(3) .................................................................... 15, 16
TEX. EDUC. CODE § 39.053(f) ......................................................................... 17, 33
TEX. EDUC. CODE § 39.054....................................................................................31
TEX. EDUC. CODE § 39.054(a) ............................................................. 15, 17, 23, 30
TEX. EDUC. CODE §39.054(a-1) .............................................................................16
TEX. EDUC. CODE § 39.054(a-3) ............................................................................16
TEX. EDUC. CODE § 39.054(b) ......................................................................... 18, 33
TEX. EDUC. CODE § 39.0241..................................................................................38
TEX. EDUC. CODE § 39.0541..................................................................................17
TEX. EDUC. CODE § 39.0542............................................................................ 30, 31
TEX. EDUC. CODE § 39.0542(a) ....................................................................... 18, 30
TEX. EDUC. CODE. § 39.0542(b) ............................................................................18
TEX. EDUC. CODE § 39.02302(a) ...........................................................................20
9 TEX. EDUC. CODE § 39.02302(c) ...........................................................................20
Other Authorities
48 Tex. Reg. 6593, 6593-605 (Nov. 10, 2023) ......................................................18
49 Tex. Reg. 951, 951-55 (Feb. 23, 2024) .............................................................17
49 Tex. Reg. 3280, 3280-85 (May 10, 2024).........................................................17
TEX. CONST. art. VII., § 1......................................................................................14
TEX. EDUC. CODE. § 39.023(a-1) ..................................................................... 36, 38
TEX. R. APP. P. 9.4 ................................................................................................42
TEX. R. APP. P. 9.4(i)(1) ........................................................................................42
TEX. R. APP. P. 9.5 ................................................................................................43
10 STATEMENT OF THE CASE
Nature of the case: After a handful of school districts brought suit against Mike Morath, in his official capacity as the Commissioner of Education (the “Commissioner”) to prevent him from releasing school district accountability ratings, which the law requires, Appellants Brandon Hodges, individually and in his official capacity as Trustee of District for Midland ISD, Dr. Mary Bone, individually and in her official capacity as a Trustee of Round Rock ISD, and Danielle Weston, individually and in her official capacity as a Trustee of Round Rock ISD (collectively “Appellants”), intervened in support of the Commissioner. (CR 5-31, 486-516, 99-108, 391-411.)
Course of proceedings: The school districts sought a temporary injunction. (CR 506-509.) The trial court held a two-day evidentiary hearing. (1RR-4RR.) Just before the temporary injunction hearing started, twenty-eight school districts joined the lawsuit, bringing the total number of school districts to thirty-three (collectively “Appellees”). (CR 486-516.)
Trial court’s The trial court granted the temporary injunction. (CR disposition: 536-539.) Later that day, without any motion from Appellees, notice of hearing, or argument, the trial court dismissed Appellants’ claims without prejudice. (CR 540-541.) Appellants filed their second amended petition in intervention the next day. (CR 552-572.)
11 STATEMENT REGARDING ORAL ARGUMENT
Normally, Appellants would request oral argument given the complex and
important issues before the Court. However, Appellants recognize that in a similar
appeal involving the Commissioner and Appellees, Case No. 15-24-00101-CV,
these same arguments are likely to be raised and decided in oral argument before
this appeal is submitted. Thus, if the Court believes that its resolution of this case’s
specific issues would benefit from oral argument, then Appellants will gladly offer
it. But, given the unique nature of these dual appeals, Appellants do not believe oral
argument is necessary under these circumstances.
12 ISSUE PRESENTED
I. The trial court abused its discretion in granting Appellees’ temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and Appellees did not demonstrate that any action of the Commissioner would harm Appellees.
13 STATEMENT OF FACTS
I. Factual Background
The Texas Constitution mandates that the Legislature establish a public
education system to ensure the “general diffusion of knowledge.” TEX. CONST. art.
VII., § 1. The Legislature has defined this right as ensuring that all Texas children
have access to quality education that enables them “to achieve their potential and
fully participate now and in the future in the social, economic, and educational
opportunities of our state and nation.” TEX. EDUC. CODE § 4.001(a). In more than
1,200 school districts and across approximately 8,000 campuses, Texas educators
strive to meet that goal. (3RR29.)
The Legislature’s framework for Texas’ public education system has four
pillars: (1) a state curriculum, (2) a standardized test to measure the quality of the
curriculum being taught, (3) accreditation standards to hold schools accountable for
their performance, and (4) sanctions and remedial measures to ensure those
accreditation standards are met. Neeley v. W. Orange-Cove Consol. ISD, 176 S.W.3d
746, 764 (Tex. 2005). The State Board of Education sets forth standards for essential
knowledge and skills, known as TEKS, which is short for Texas Knowledge and
Essential Skills, and the STAAR test measures whether these standards are being
taught effectively. See TEX. EDUC. CODE § 39.021; 19 TEX. ADMIN. CODE chs. 110-
13; TEX. EDUC. CODE § 39.023(a).
14 But to ensure that school districts are held accountable for their performance,
the Legislature has enacted an annual grading system, which the Commissioner
oversees and makes public. TEX. EDUC. CODE § 39.054(a). This system allows
school districts to measure their performance against their peers and improve
deficient areas. (3RR28.) It also allows parents and taxpayers to understand how the
schools they fund and send their children to measure up. (3RR231-33.)
A. To ensure accountability in public education, the Legislature requires the Commissioner to grade school performance.
This grading system follows the familiar “A” through “F” letter grade rubric,
with an “A” grade representing exemplary performance and an “F” grade meaning
the school’s performance is unacceptable. Id. § 39.054(a). The Legislature also
requires the Commissioner to assign “A” through “F” ratings across three domains:
(1) student achievement, (2) school progress, and (3) closing the gaps. 1
Id. §§ 39.053(c)(1)-(3), .054(a).
The grading of these domains varies based on school level. In elementary and
middle schools, the only measure of student achievement is the STAAR test.
(2RR83.) But for high schools, the formula for student achievement is different:
• 40% is measured by the STAAR test,
1 For this last domain, which measures differences in performance between students of different racial, ethnic, and socio-economic groups, schools are measured under a variety of metrics aligned with federal standards. (2RR187.)
15 • 40% is measured by college, career, and military readiness (“CCMR”), and
• 20% is measured by graduation rate. (2RR83.)
School progress is also measured differently based on school level. Once again, for
elementary and middle schools, the only measure is the STAAR test. (2RR185.) For
high schools, the measure is a blend of the STAAR test and CCMR. (Id.)
The Legislature requires that overall accountability ratings be measured under
the following rubric:
• 70% comes from a campus’s student achievement or school progress
domain, whichever is higher, and
• 30% comes from the school or district’s progress in closing the gaps.
See TEX. EDUC. CODE §39.054(a-1); (2RR82-83.) A proportionality formula is used
to measure school district performance based on their campus’s performance.
(2RR84; 4RR813.) To ensure accountability, the Legislature requires that the
Commissioner release these accountability ratings each year on or before August 15.
TEX. EDUC. CODE § 39.054(a-3).
B. As part of a transparent process, the Commissioner releases an accountability manual explaining the metrics and standards for the accountability ratings.
These accountability ratings are not arbitrary, nor are their criteria secret. The
Legislature requires that the Commissioner apply indicators of learning and
achievement, define, establish, and modify state standards, and adopt rules
16 evaluating campus and district performance. See TEX. EDUC. CODE § 39.053(a), (f);
TEX. EDUC. CODE § 39.054(a). These indicators, standards, and rules may be adopted
“at any time during a school year before the evaluation of a school district or
campus.” Id. § 39.0541.
Before the accountability ratings are released, the Commissioner publishes an
accountability manual that explains “all of the details” of the accountability system,
including what indicators are applied, how they are calculated, and the scores needed
to reach a grade, otherwise known as “cut scores.” (3RR31-32.) The 2023-2024
academic year accountability manual was 300 pages and was published in the Texas
Register as a proposed rule in February 2024, 49 Tex. Reg. 951, 951-55 (Feb. 23,
2024), which was far earlier than previous years. (3RR32-33.) After being submitted
to the Secretary of State and published, the accountability manual became effective
on May 14. 49 Tex. Reg. 3280, 3280-85 (May 10, 2024); 19 TEX. ADMIN. CODE §
97.1001.
Unlike some previous years, the 2024 accountability manual did not change
the standards for student performance. (2RR199; 3RR33-34.) Though the
Legislature requires the Commissioner to periodically raise accountability standards,
TEX. EDUC. CODE § 39.053(f), these standards are no longer increased annually so
that schools can better compare their year-on-year performance. (3RR33-35.) So for
the 2024 accountability manual, schools knew the standards that would be applied
17 in November 2023, when the 2023 accountability manual was adopted.
See 48 Tex. Reg. 6593, 6593-605 (Nov. 10, 2023).
To make this data more accessible to the public, the Legislature requires that
the Commissioner provide districts with a document that “explains the
accountability performance measures, methods, and procedures that will be applied
for that school year.” TEX. EDUC. CODE § 39.0542(a). The document must also be
provided in a format that districts may easily distribute to parents of students and
interested members of the public. Id. § 39.0542(b). This year, the Commissioner
circulated this document in March 2024. (CR 212; 4RR810-14.)
C. The accountability manual relies on cut scores to ensure every school or district can achieve an A grade and looks back to the preceding year’s data when necessary so that the manual can be published timely.
In 2017, the Legislature required that it be mathematically possible for all
campuses and districts to achieve an A grade. TEX. EDUC. CODE § 39.054(b);
(3RR37.) This meant the Commissioner could no longer use a bell-curve system,
otherwise, regardless of performance, some schools and districts would fail.
(3RR37-38.) Instead, the Commissioner uses a “cut score” system, whereby any
school or district reaching a certain threshold receives a certain letter grade, no
matter how many do. (3RR38.)
The accountability manual also relies on the prior year’s scores to determine
CCMR rates since that data, which includes, among other things, ACT/SAT scores
18 and military enlistments, is not finalized until after the August 15th deadline to
publish the accountability manual. TEX. EDUC. CODE § 39.053(a-1)(1)(B). (2RR194-
195; 3RR86-87, 240-41.)
D. Since the STAAR test is a crucial element of the Commissioner’s accountability grades, it undergoes extensive and independent review to ensure consistency and reliability.
To measure student performance consistently, the Texas Education Agency
(“TEA”) uses the STAAR test as its “assessment instrument.” See (3RR39-40); TEX.
EDUC. CODE § 39.053(c). The Legislature requires that before such “assessment
instruments” are administered, they are determined “to be valid and reliable by an
entity that is independent of the agency and of any other entity that developed the
assessment instrument.” Id. § 39.023(a-11).
Before a question is included on the STAAR test, it undergoes a development
process that lasts 1.5-2 years. (CR283; 3RR53.) The review is completed by an
independent group of teachers to ensure all questions are grade-level appropriate and
aligned with the TEKS. (3RR52, 75.) Questions are also tested by a representative
sample of students, and the results are then analyzed to ensure no question exhibits
bias toward any specific group. (3RR52-53.)
19 1. The Texas Technical Advisory Committee, an independent group of experts, advises the TEA concerning the STAAR test’s validity and reliability.
The Legislature requires the Commissioner to appoint a technical advisory
committee to provide advice on “the development of valid and reliable assessment
instruments.” TEX. EDUC. CODE § 39.02302(a). Committee members must be experts
in educational assessments and psychometrics, id., and may compensated or
reimbursed for their work, id. § 39.02302(c). The Texas Technical Advisory
Committee (“TTAC”) serves that function.
Its nine members include university professors, researchers, and other field
experts in psychometrics, standard setting, assessing special populations, design and
interpretation of assessments, and content-area expertise. (CR 216-17; 2RR96.)
None of the members are employed by the State, TEA, or any of TEA’s vendors.
(2RR96.) They are “not beholden to” the TEA or shy about giving their opinions.
(3RR58-59.) The TTAC does not “develop” the STAAR test; it is “developed” by
the TEA’s vendors and the TEA. (3RR68-69.) However, the TTAC does assist in
determining that the STAAR test is valid and reliable. (3RR68-69.)
The TTAC holds semi-annual, two-day meetings, with its members reviewing
a number of documents and reports in advance. (2RR98-99.)2 During these
2 The TTAC members receive daily stipends of approximately $1,500, commensurate with the stipends of other technical advisory committee members in other states. (2RR93-94.)
20 meetings, the TTAC provides the TEA with recommendations on the development
and administration of the STAAR test, reviews the results of the test’s
administration, and provides suggestions for improvement. (2RR89.) The TTAC
also reviews changes to the STAAR test and its implementation and outcomes.
(2RR101-02.)
Following the meeting, TTAC prepares notes and recommendations for TEA.
(2RR99.) The TEA takes this independent body’s assessment of the STAAR test’s
validity and reliability seriously. (2RR101, 150.) If the TTAC counseled the TEA
that a change to the STAAR test would invalidate it, the TEA would not make that
change. (3RR58.)
2. To reduce costs and save time, an automated scoring system is used to review written answers on the STAAR test, and its accuracy is subject to rescoring.
The only substantive change for the STAAR test in the 2023-2024 academic
year was the introduction of a hybrid scoring system that automated certain written
responses. (3RR41-43; 2RR102; 3RR59.) Following legislative changes, the
STAAR test now includes some “constructed response” questions, through which
students provide written answers rather than selecting from a predefined list, such as
true/false or multiple-choice questions. (2RR104; 3RR50.) One or two “constructed
response” questions are found in reading/language arts, science, and social studies
tests; math has none. (3RR50-51.) Given that using human graders to score all
21 constructed-response questions would have cost an estimated $15-$20 million and
required significant time, TEA introduced and implemented an automated scoring
engine to assist with the scoring in the 2023-2024 academic year. (4RR774.)
The automated system grading these constructed responses is fed
approximately three thousand human-scored responses to set standards by which it
can identify which responses align with particular scores. (3RR188-89.) But the
system does not make assumptions. (3RR190.) If the engine encounters a response
that it cannot properly evaluate, it does not guess at a score; instead, it flags that
response for a human scorer to review. (3RR189-190.) Human scorers also provide
an additional safeguard by scoring 25% of the constructed responses, and their
scores are compared to the automated system’s results to ensure consistency.
(3RR223; 4RR1556-57; 3RR146-47.)
This is not new or untested technology. Automated scoring engines have been
used for about twenty years, and at least twenty other states use them. (2RR103-104,
161.) The TTAC advised the TEA that they be adopted to save time and money and
comparison with previous STAAR tests show consistent results. (2RR160-61;
4RR816-60.) Finally, there is a process that allows parents or districts to review
student answers and corresponding questions, and if they believe the scoring system
erred, the student’s answers can be resubmitted for human grading. (3RR61-62.)
22 II. Procedural History
Three days before the Commissioner was to release the statutorily required
accountability ratings on the statutorily required deadline, five school districts filed
suit to stop him. (CR5-31.) Subsequently, these school districts obtained a temporary
restraining order that prevented the Commissioner from publishing the ratings.
(CR32-35, 36-39.) Appellees’ suit alleged that the Commissioner acted ultra vires
in four respects:
1. The Commissioner did not give timely notice of the standards and measures by which their performance would be judged. (CR503-05.)
2. The Accountability Manual does not allow districts and campuses to earn an A rating because the Manual uses CCMR rates from the prior year. (CR491-92, 505-06.)
3. No independent entity has determined the STAAR test to be valid and reliable. (CR498-99, 501-02.)
4. The automated scoring systems for the STAAR test fails to produce reliable information about student performance. (CR499-502.)
After the Commissioner answered, Appellant Brandon Hodges, as Trustee for
District Five of Midland ISD, filed his petition in intervention. (CR99-107.) Hodges
sought declaratory relief that, among other things:
1. TEX. EDUC. CODE § 39.054(a) requires the Commissioner to release the accountability ratings and that Appellees’ actions had prevented him from doing so for all public schools, including those for which Hodges was responsible;
23 2. As a result, Appellees had prevented Hodges from comparing his district’s performance with comparable districts of similar sizes and racial and economic demographics, as required under TEX. EDUC. CODE § 11.1516(c);
3. Appellees had also prevented Hodges from performing his duties under Tex Educ. Code § 11.151(b)(2), and (4)-(6) because he could not develop comprehensive goals for his district without the accountability ratings that would determine his district’s relative performance.
(CR104-06, ¶24.)
On September 13, 2024, three days before the temporary injunction hearing
began, two trustees from Round Rock ISD joined Hodges’ suit in Appellants’ first
amended verified petition in intervention. (CR 391-413.) Appellants’ first amended
verified petition reiterated the declaratory relief sought in Hodge’s original petition
in intervention and likewise sought attorney’s fees under Chapter 37 of the Texas
Civil Practices and Remedies Code. (CR397-399.) Appellees filed no opposition to
or motion to strike Appellants’ first amended petition in intervention or suggested
that Appellants had no justiciable interest in the suit.
On the first day of the hearing, twenty-eight additional districts joined the
lawsuit. (CR486-516.) The hearing concluded on the following day, September 17,
2024. (3RR.) The next day, September 18, 2024, the trial court granted Appellees’
application for a temporary injunction. (CR536.) The trial court’s temporary
injunction concluded that implementing the A-F accountability system would be
24 ultra vires conduct that would harm Appellees, and enjoined the Commissioner from
issuing any accountability ratings. (CR536-39.)3
Subsequently, it sua sponte dismissed Appellants’ first amended petition in
intervention without prejudice to refiling. (CR540-41.) The court provided no notice
of its intention to dismiss, nor did it allow Appellants an opportunity to be heard on
the dismissal. On September 19, 2024, Appellants filed their Second Amended
Verified Petition in Intervention, asserting in part that the dismissal of the First
Amended Verified Petition in Intervention violated Appellants’ right to notice and a
hearing, and that the same was never opposed by any party. (CR554-55.) Appellants’
notice of appeal followed. (CR594-95.)
SUMMARY OF THE ARGUMENT
This case presents a simple but pivotal question affecting the advancement of
Texas schools. Did the Commissioner exceed his authority in simply following a law
that requires that he release accountability grades for Texas school districts?
Appellants intervened to support the Commissioner in enforcing the law because
they understand the importance of accountability in improving school performance.
The stakes at issue demand context for Appellees’ complaints. Appellees do
not challenge the constitutionality of the scheme or question its purpose. Appellees
3 This is the second year in a row that a group of school districts have sought (successfully) to enjoin the Commissioner from releasing the accountability ratings. (CR 395, ¶17, 556, ¶18.)
25 only offer qualms about the Commissioner’s methods and unsubstantiated
speculation about what greater accountability would demand from them. But neither
is evidence of ultra vires acts, much less resulting harm. Instead, Appellees attempt
to read into the statute nonexistent requirements to avoid the accountability the
Legislature has empowered the Commissioner to enforce.
The Court should reject this invitation to ignore applicable law and stymie the
advancement of Texas students and frustrate the ability of Trustees, like Appellants,
to evaluate their performance and improve their schools. Appellees lack any
evidence that the Commissioner acted outside his authority, and they lack evidence
that the release of the accountability ratings will harm them.
ARGUMENT AND AUTHORITIES
I. The trial court abused its discretion in granting Appellees’ temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and Appellees did not demonstrate that any action of the Commissioner would harm Appellees.
A. Standard of Review
Whether to grant or deny a temporary injunction is within the trial court’s
sound discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); State v.
Walker, 679 S.W.2d 484, 485 (Tex. 1984). A reviewing court should reverse an
order granting injunctive relief only if the trial court abused that discretion. Walling,
863 S.W.2d at 58; Walker, 679 S.W.2d at 485. The reviewing court must not
substitute its judgment for the trial court’s judgment unless the trial court’s action
26 was so arbitrary that it exceeded the bounds of reasonable discretion. Johnson v.
Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex. 1985); Davis v. Huey, 571 S.W.2d
859, 861–62 (Tex. 1978).
B. Applicable Law
1. Temporary injunctions should only be issued to preserve the status quo after an applicant has presented evidence of a probable right to the relief sought and imminent harm if the extraordinary relief is not granted.
A temporary injunction’s purpose is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits. Walling, 863 S.W.2d at 57;
Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. Civ. App.—Dallas
1974, no writ). A temporary injunction is an extraordinary remedy and does not issue
as a matter of right. Walling, 863 S.W.2d at 57. To obtain a temporary injunction,
the applicant must plead and prove three specific elements: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim. Walling, 863 S.W.2d at 57; Sun Oil
Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).
A probable right of success on the merits is shown by alleging a cause of
action and presenting evidence that tends to sustain it. Miller Paper Co. v. Roberts
Paper Co., 901 S.W.2d 593, 597 (Tex. App.—Amarillo 1995, no writ).
A trial court cannot award the ultimate relief sought in the suit via a temporary
injunction. The sole purpose of a temporary injunction is to maintain the status quo
27 pending a resolution of the merits at a trial. Walling, 863 S.W.2d at 58; Munson v.
Milton, 948 S.W.2d 813, 815 (Tex. App.—San Antonio 1997, pet. denied). The
status quo is the last actual peaceable, noncontested status that preceded the
controversy. Tex. Aeronautics Comm’n v. Betts, 469 S.W.2d 394, 398 (Tex. 1971).
2. A governmental official does not act ultra vires by making an erroneous decision within his authority, and the only relief available for an ultra vires claimant is prospective relief to make the governmental official comply with statutory or constitutional provisions.
“Although governmental entities and officers are generally immune from
liability absent the government’s waiver or consent, such immunity does not prohibit
suit against a state official if the official’s actions are ultra vires.” Honors Acad., Inc.
v. Tex. Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018) (citing City of El Paso v.
Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). “To state an ultra vires claim, the
plaintiff must allege and prove that the named officials acted without legal authority
or failed to perform a ministerial act.” Id. (citing Hall v. McRaven, 508 S.W.3d 232,
238 (Tex. 2017)). “The fact that the official has some limited discretion to act under
the applicable law does not preclude an ultra vires claim if the claimant alleges that
the official exceeded the bounds of that authority, or the conduct conflicts with the
law itself.” Id. (citing Hous. Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d
154, 163 (Tex. 2016)). Thus, ultra vires “claims ‘depend on the scope of the state
official’s authority,’ not the quality of the official's decisions.” Id. (quoting Hall, 508
28 S.W.3d at 234). In other words, “it is not an ultra vires act for an official to make an
erroneous decision within the authority granted.” Id. (quoting Id. at Hall, 508 S.W.3d
at 242).
The only relief for an ultra vires claimant is to bring the governmental official
“into compliance with statutory or constitutional provisions.” Tex. Educ. Agency v.
Houston Indep. Sch. Dist., 660 S.W.3d 108, 116 (Tex. 2023) (quoting Chambers-
Liberty Cntys. Nav. Dist. v. State, 575 S.W.3d 339, 348 (Tex. 2019)). Thus, “only
prospective relief is available.” Id.
C. Discussion 4
1. Appellees did not demonstrate that they were likely to succeed on the merits because the evidence shows no ultra vires acts.
a. The Commissioner provided timely notice and Appellees’ arguments to the contrary require the Court to add words to the statute.
At the temporary injunction hearing, Appellees’ counsel only identified one
provision about which the Commissioner allegedly failed to give Appellees timely
4 To the extent there is any challenge to Appellants’ right to appeal the trial court’s decision, Appellants preemptively note that their petition in intervention was filed before the trial court’s order granting Appellees’ temporary injunction. (CR391-411.) Thus, Appellants were parties to the temporary injunction proceedings. See Bell v. Craig, 555 S.W.2d 210, 212 (Tex. App.—Dallas 1977, no writ) (“Since the petition in intervention was filed before the trial court entered its order granting the temporary injunction, it was, absent an order striking the intervention, sufficient to make Bell a party to the temporary injunction proceedings.”) And although the trial court’s injunction does not personally enjoin Appellants, it “effectively prevents [them] from proceeding with [their petition in intervention], which seeks the release of the accountability ratings at issue in the trial court’s injunction, so they also have standing to appeal. Id. The trial court’s subsequent
29 notice. (2RR18, 52.) This was section § 39.0542, which requires the Commissioner
to provide districts with a “document in a simple, accessible format that explains the
accountability performance measures, methods, and procedures that will be applied
for that school year.” TEX. EDUC. CODE § 39.0542(a).
But there is no debate that the Commissioner provided this document to
Appellees in March 2024. (CR 212; 4RR810-14.) Appellees’ complaint is instead
that the Commissioner did not adopt the document as a rule and that it was not
provided timely. (CR505; 2RR18.) These fail for the same reason: the statute does
not require what Appellees wish.
Unlike section 39.054(a), which requires the 2024 Accountability Manual to
be adopted as a rule, section 39.0542 has no provision for this explanatory summary.
Appellees’ invitation to read into the statute a non-existent requirement should be
summarily rejected, and to the extent that the trial court enjoined the Commissioner
on this basis, it abused its discretion. See Rodriguez v. Doe, 614 S.W.3d 380, 383
(Tex. App.—Houston [14th Dist.] 2020, no pet.) (“We cannot rewrite a statute in the
guise of interpreting it. We can neither add to nor subtract from statutory language.”)
sua sponte dismissal of Appellants’ petition in intervention without prejudice, while errant, does not affect this analysis, as Appellants have since refiled an amended petition in intervention. (CR552-572.) See Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657–58 (Tex. 1990) (holding that “the court [may not] deny a potential litigant the right to intervene if there has been no objection to intervention based on sufficient cause”).
30 (citing Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018); Pedernal Energy v.
Bruington Eng’g, 536 S.W.3d 487, 492 (Tex. 2017)).
The same is true for Appellees’ argument that the Commissioner’s provision
of these explanatory materials was untimely (2RR118) because the statute has no set
date. It only requires disclosure of the standards before those standards are applied:
a) Each school year, the commissioner shall provide each school district a document in a simple, accessible format that explains the accountability performance measures, methods, and procedures that will be applied for that school year in assigning each school district and campus a performance rating under Section 39.054.
TEX. EDUC. CODE ANN. § 39.0542.
Again, it is undisputed that the Commissioner did so. The summary
documents were provided in March 2024. (CR212). If the Legislature wished for
this action to occur at the beginning of “each school year,” it could have surely used
those words. But, in the absence of such a requirement, the trial court abused its
discretion to the extent it enjoined the Commissioner on this ground. 5
5 But even if the temporary injunction could be supported on this basis, the trial court still got the remedy wrong. Instead of preventing the Commissioner from releasing this year’s accountability ratings, the trial court should have simply ordered him to prospectively comply with either the (nonexistent) rulemaking or publication dates. See Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 183 (Tex. 2023) (“[S]overeign immunity does not prohibit a suit . . . seeking only prospective relief requiring the official’s compliance with the law.”). The trial court has no discretion to prohibit what the Legislature has mandated on these grounds.
31 b. The Commissioner did not act ultra vires in relying on the only available data to calculate CCMR rates and that data did not make it mathematically impossible for districts to receive an A grade.
Appellees also presented no evidence of ultra vires acts concerning their
argument that by relying on CCMR rates from the prior year, the 2024
Accountability Manual made it “mathematically impossible” for every district to
receive an A grade. (CR 506.) This argument presumes the Commissioner’s
awareness that not all schools had an 88% CCMR rate in 2022-2023, which is the
threshold for an A grade in that element. (2RR198.) Appellees misconstrue this
provision, which the Commissioner faithfully followed.
To recap, the Legislature’s “mathematically possible” mandate required that
the previously used bell-curve grading formula be discontinued; otherwise, it would
be mathematically impossible for all districts to obtain an A grade. (3RR37-38.) So,
the Commissioner uses “cut scores,” which allow every district to obtain an A, if
they meet a certain, consistent threshold. (3RR38.) Additionally, the Commissioner
could not use this year’s CCMR rate because that data is not available yet. (3RR86-
87, 240-41.) So, to follow the Legislature’s requirement of including CCMR rates
in his accountability ratings, the Commissioner must use the most recently available
data. (3RR86; TEX. EDUC. CODE § 39.053(a-1)(1)(B.)) Finally, the Commissioner
must “modify standards to continuously improve student performance” to make
32 Texas a national leader in preparing students for postsecondary success. TEX. EDUC.
CODE § 39.053(f).
This cannot be done if the Commissioner is forced to lower the requirements
for CCMR rates to ensure that it is factually possible for every school to obtain an
A grade based on the preceding year’s data. If Appellees’ interpretation were the
law, then the improvement of educational standards would be held hostage by the
lowest performing districts. That cannot be what the Legislature intended. If it were,
the Legislature would not have required the Commissioner to “modify standards to
continuously improve student performance.” City of Denton v. Grim, 694 S.W.3d
210, 215 (Tex. 2024), reh’g denied (Aug. 30, 2024) (“We presume the Legislature
enacts statutes with full knowledge of the existing law.”).
Context also demands that conclusion because the “mathematical[ly]
possible” requirement only applies to a district’s overall accountability ratings, not
its CCMR rate, which is just one component of the overall accountability ratings.
See TEX. EDUC. CODE § 39.054(b); (2RR83, 185; 3RR239-40.) To that point,
Appellees offered no evidence that because of their CCMR score, it would be
mathematically impossible for them to achieve an A grade. So, to the extent that the
Court granted the temporary injunction on this basis, it abused its discretion, as there
is no evidence of any ultra vires act. Rather, there is only evidence that the
Commissioner followed the statute’s requirements.
33 c. The Commissioner followed the law in having the TTAC, an independent third party, confirm the validity and reliability of the STAAR test.
Appellees also accuse the Commissioner of acting ultra vires in relying on the
TTAC to confirm the validity and reliability of the STAAR test, but the evidence
fails to show any action outside of his authority. Again, Appellees’ contentions are
rooted in misconceptions about the statute’s requirements.
The first concerns Appellees’ misconception that the TTAC develops the
STAAR test and, therefore, is not independent. (2RR60-61.) Section 39.023(a-11)
requires that an entity independent of the TEA or its vendors that developed the
assessment instrument confirm its validity and reliability. TEX. EDUC. CODE
§ 39.023(a-11). The Legislature’s intention here is obvious: neither the TEA nor its
vendors should grade their own work in developing the assessment instrument; that
should be left to an independent party. The evidence shows the Commissioner has
followed this requirement, and Appellees’ attempt to conflate the TTAC’s advisory
role with the development of the STAAR test should be rejected.
To be clear, the TEA and its vendors develop the STAAR test. (3RR68.) The
TTAC has no role in that process. (2RR122-23; 3RR68.) And its members have no
financial incentive since they are not employed by the TEA or its vendors. (2RR96,
92-93, 96, 116, 152.) Thus, the TTAC satisfies section 39.023(a-11)’s independent
entity requirement because it, not the TEA or its vendors who created the test,
34 determines the STAAR test’s validity and reliability. To the extent the trial court
relied on this ground to enjoin the Commissioner from issuing the accountability
ratings, it abused its discretion since there is no evidence that he acted outside his
authority.
The second misconception concerns Appellees’ belief that a validity study is
required every time the STAAR test is changed. (2RR174-76.) This argument, again,
adds language to the statute. The statute only requires that an independent entity
determine an instrument’s validity and reliability. TEX. EDUC. CODE § 39.023(a-11).
That has been done for this year. (3RR55-59, 66-67.) It does not require that a formal
“study” be completed whenever changes are made to the STAAR test. (3RR66-67.)
If the Legislature intended a study to be completed in such a context, it could have
easily said so. However, since it did not, the Commissioner exercised his discretion
in relying on the TTAC to confirm the validity and reliability of the STAAR test.
But assuming arguendo that the Commissioner acted beyond his authority in
these respects, the trial court had no authority to enjoin the release of the
accountability ratings because Appellees’ only relief is prospective. See Tex. Educ.
Agency v. Houston Indep. Sch. Dist., 660 S.W.3d at 116. The STAAR test has
already been administered for this year, so the only way to bring the Commissioner
back into compliance, assuming that was necessary, would be to order him to make
35 changes for the forthcoming year. Thus, even if the Commissioner acted ultra vires
in these respects, the trial court’s injunction must still be dissolved.
d. The evidence shows no action by the Commissioner outside his authority in administering the STAAR test.
Appellees’ final challenge claims that the Commissioner acted outside his
authority by using an automated scoring system for the STAAR test. (CR499-501.)
But Appellees offer no evidence that the automated system is unreliable or that its
implementation was an ultra vires act. Finally, even if Appellees are correct, the
remedy is to order the Commissioner to rectify this issue for future assessments, not
to prohibit him from following the law.
Appellees’ challenge is rooted in section 39.023(a-1), which provides that the
TEA “develop assessment instruments . . . in a manner that allows, to the extent
practicable . . . the score a student receives to provide reliable information relating
to a student’s satisfactory performance.” They claim that using the automated
scoring system threatens the reliability of the information concerning student
performance. But Appellees only offer speculation, not evidence, regarding reasons
for variations in test scores.
Indeed, Appellees only offered unconnected data points without any statistical
analysis that these deviations resulted from the automated scoring system. For
instance, Appellees pointed to a decline in fifth-grade science scores despite there
only being one constructed response question on that test, and offered no evidence
36 that this single question affected these scores. (3RR51.) Appellees also pointed to an
increase in the number of zeroes given on the constructed response questions without
acknowledging that higher scores also increased and blamed the automated scoring
system. (3RR179.) However, Appellees offered no comparative analysis showing
that the difference in these scores was attributable to the automated scoring system
and not other factors, like changes in the grading rubric. (3RR178-182.) To put a
finer point on it, Appellees cited no evidence that, due to automated scoring, a single
student received a zero on a constructed response instead of some other grade.
(3RR61.)
In contrast, multiple witnesses from the TEA and TTAC, including a
psychometrician, testified that the automated scoring systems reliably grade student
responses. (2RR102-07, 148, 155-167; 3RR207, 209-25.) They also explained that
this is not some unproven technology; rather, it has been used for twenty years, and
at least twenty other states use it. (2RR103-04, 161.) Finally, they testified that the
decision to implement the automated scoring system was not taken lightly. The
TTAC advised the TEA that it should be adopted, and the TEA rigorously tested and
refined the system until the TTAC was satisfied that it produced comparable scores
to human graders. (2RR160-61; 4RR816-60, 821, 828-29; 2RR106.) Appellees
offered no evidence that the automated system was deficient in any way, only
inductive speculation.
37 Nor did Appellees demonstrate how this conduct constituted an ultra vires act
since the statute gives the Commissioner some discretion in developing the
assessment:
(a-1) The agency shall develop assessment instruments required under Subsection (a) in a manner that allows, to the extent practicable:
(1) the score a student receives to provide reliable information relating to a student's satisfactory performance for each performance standard under Section 39.0241; and
TEX. EDUC. CODE. § 39.023(a-1) (emphasis added). The Commissioner thus has at
least some discretion in determining the practicability of the STAAR test’s
development and the reliability of the scores its grading system produces.
Regardless, Appellees did not offer evidence that the Commissioner’s decision to
use a strenuously tested and reliable method of grading student scores that saves
millions annually, which independent experts have recommended the TEA adopt,
was an ultra vires act in these respects.
In any event, if a remedy is required, it is not to stop the Commissioner from
doing what the Legislature has mandated. If any “prospective” relief is warranted, it
would require changes to the STAAR test’s grading, not stopping the release of the
accountability ratings. See Tex. Educ. Agency v. Houston Indep. Sch. Dist., 660
S.W.3d at 116. If the converse were the rule, any minor deviation from the statute,
real or imagined, would allow courts to override the Legislature’s mandates. That
38 would be a dysfunctional way to run the TEA, and it would no doubt provide a
disservice to Texas students, their parents, and taxpayers.
2. Regardless, Appellees offered no evidence of imminent and irreparable harm.
Although Appellees offered no evidence that would justify any ultra vires
finding, the Court could avoid resolving those questions and reverse the trial court
on the sole ground that Appellees offered no evidence that releasing the
accountability ratings would harm them. Appellees offered a parade of horribles—
bad ratings could lead to funding cuts and eventually school takeovers—but offered
no evidence that any of them would receive lower ratings due to the Commissioner’s
challenged acts. (CR 507-08.) See, e.g., Fuentes v. Fuentes, 656 S.W.3d 703, 714
(Tex. App.—El Paso 2022, no pet.) (“Showing probable and imminent injury is not
satisfied by evidence that the harm or injury is ‘possible’ or ‘feared.’”) (quotation
omitted). So, assuming that some schools would receive lower accountability ratings
due to the Commissioner’s changes, the evidence does not establish that they were
before the trial court, and it had no discretion to issue the temporary injunction on
behalf of non-litigants.
CONCLUSION AND PRAYER
Appellees’ complaints against the Commissioner boil down to complaints
about how he exercised his discretion in carrying out his statutorily required task.
Right or wrong, those actions are not ultra vires. And, in any event, Appellees have
39 offered no evidence showing they would likely suffer harm. Their hypothetical harm
is reason alone to dissolve the trial court’s temporary injunction.
This is the second consecutive year that a small group of school districts have
sought and succeeded in preventing the Commissioner from following the law and
fulfilling the Texas Constitution’s promise. With thirty-three school districts joining,
Appellees represent roughly 2.75% of Texas school districts. By granting them a
temporary injunction, the trial court has established a tyranny of the minority, on the
flimsiest of grounds, that only encourages further attacks on the Commissioner’s
discretion and will only further limit the educational outcomes for young Texans.
Accordingly, Appellants respectfully pray that the Court dissolve the trial
court’s temporary injunction and grant Appellants any further relief to which they
may be entitled.
Respectfully submitted,
By: _____________________________ BYRON K. HENRY State Bar No. 24008909 byron.henry@solidcounsel.com WALKER STEVEN YOUNG State Bar No. 24102676 walker.young@solidcounsel.com
40 SCHEEF & STONE, L.L.P. 2600 Network Boulevard, Suite 400 Frisco, Texas 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150
ATTORNEYS FOR APPELLANTS
41 CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that, in accordance with Rule 9.4 of the
Texas Rules of Appellate Procedure, this document contains 6,197 words as
determined by Microsoft Word for Office 365, which is the software used to generate
the document. This word count does not include words contained in the sections of
the Brief excluded from the word limit by Rule 9.4(i)(1).
______________________________ BYRON K. HENRY
42 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellants’ Brief has been
delivered pursuant to TEX. R. APP. P. 9.5 to all counsel as indicated below on January
22, 2025:
Via Electronic Filing/Service
David Campbell dcampbell@808west.com Kevin O’Hanlon kohanlon@808west.com O’HANLON DEMERATH & CASTILLO 808 West Avenue Austin, Texas 78701 (512) 494-9949
Attorneys for Appellees
43 INDEX TO APPENDIX
Order Granting Appellees’ Temporary Injunction ......................................... Tab 1
Order Dismissing Appellants’ First Amended Petition in Intervention without Prejudice ....................................................................................................... Tab 2
44 Appx. Tab 1 09/18/2024 11:39:07AM Velva L. Price District Clerk Travis County D-1-GN-24-005018
CAUSE NO. D-1-GN-24-005018
Pecos-Barstow-Toyah Independent § IN THE DISTRICT COURT OF School District, § Crandall Independent School District, § Forney Independent Schoo! District, § Fort Stockton Independent School § District, and § Kingsville Independent School District, §
Plaintiffs, TRAVIS COUNTY, TEXAS : v. § § Mike Morath, in his official § capacity as § Commissioner of Education, § 201ST JUDICIAL DISTRICT § Defendant.
ORDER GRANTING PLAINTIFFS' APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF On September 16-17, 2024, the Court heard Plaintiffs' Original Application for Temporary
Injunctive Relief (Plaintiffs' Application) filed on August !2, 2024. Attorneys David Campbell and
Kevin O' Hanlon appeared for Plaintiffs Pecos-Barstow-Toyah ISD, Crandall ISD, Forney ISD, Fort
Stockton ISD, and Kingsville ISD. Attorneys Kelsey Warren and Marlayna Ellis (OAG) and Matthew
Tiffee (TEA) appeared for Defendant Commissioner Mike Morath.
After considering the evidence, including all admitted exhibits and witness testimonies
presented by the parties during this hearing, and the arguments of counsel, the Court FINDS that
Plaintiffs have made a sufficient showing of a probable right to relief on their claims pleaded and
proved against Defendant Mike Morath, in his official capacity, because Defendant's conduct and/or
threatened conduct is without legal authority and is ultra vires. Plaintiffs have shown a probable right
to relief on the merits of their claims.
ORDER GRANTING PLAINTIFFS' APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF Page | of 4 Cause No. D-1-GN-24-005018
536 Appx. Tab 1
The Court FINDS that Plaintiffs have made a sufficient showing of a probable right to relief
on their contention that, under a proper construction of Chapter 39 of the Texas Education Code,
Defendant Mike Morath, in his official capacity, is not authorized to assign A-F performance ratings
for the 2023-2024 school year.
The Court FINDS that Plaintiffs have made a sufficient showing that Defendant's
implementation of the A-F accountability system for the 2023-2024 school year is unlawful, ultra vires
conduct that violates Texas law and would cause probable, imminent, and irreparable injury or harm
to Plaintiffs.
The Court FINDS that Plaintiffs will have no adequate remedy at law unless Defendant Mike
Morath is temporarily enjoined from assigning A-F performance ratings for the 2023-2024 school year
pending further order of this Court or final trial on the merits of this suit, whichever event should first
occur.
The Court FINDS that the issuance of a temporary injunction will maintain the status quo
during the pendency of such order.
The Court FINDS that the balance of potential, irreparable harm that would be caused by a
denial of the requested temporary injunction outweighs any potential harm to Defendant, and that the
public interest is served by granting this temporary injunction. Absent this Order, the Commissioner
will engage in ultra vires conduct by assigning the 2023-2024 performance ratings and will disturb the
status quo, to the extent the assignment and publication of these performance ratings cannot be
judicially reviewed or undone.
Nothing in this Order shall prevent Commissioner Morath from using data from the 2023-
2024 school year to apply for and/or obtain federal funds to be used for low performing campuses or
from working with federal authorities to facilitate distribution of these federal funds to Texas school
ORDER GRANTING PLAINTIFFS' APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF Page 2 of 4 Cause No. D-1-GN-24-005018
537 Appx. Tab 1
districts. Additionally, nothing in this Order shall prevent Commissioner Morath from assigning
performance ratings of "Not Rated" for the 2023-2024 school year pursuant to Texas Education Code
section 39.054(a-4).
The Court FINDS that, during this hearing, Defendant informed the Court that he intends to
file an appeal of this Court's Order if Plaintiffs' request for temporary injunctive relief is granted.
Accordingly, in the event the Commissioner appeals this Order, the Court delays supersedeas until the
court of appeals decides whether to grant temporary orders under Rule 29.3 of the Texas Rule of
Appellate Procedure.
The Court FINDS that a $100 bond is sufficient security for any foreseeable harm or
compensable damages that could result from the granting of this temporary injunction until further
order of this Court or final judgment on the merits. This temporary injunction shall become effective
immediately.
IT IS THEREFORE ORDERED that Defendant Mike Morath, in his official capacity as
Commissioner of Education and his officers, agents, servants, representatives, attorneys, employees,
designees, and officials acting in concert with him or on his behalf, are prohibited from assigning,
issuing, and/or distributing A-F performance ratings for the 2023-2024 school year until this Court
issues a final judgment in the above-styled and numbered action, whichever event occurs first.
IT IS FURTHER ORDERED that trial on the merits of this case is set for February 10, 2025,
at 9:00 a.m. in Travis County, Texas.
IT IS FURTHER ORDERED that the Clerk of this Court shall forthwith issue this Order
Granting Plaintiffs' Application for Temporary Injunctive Relief and writ of temporary injunction in
conformity with the law and the terms of this Order.
ORDER GRANTING PLAINTIFFS' APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF Page 3 of 4 Cause No. D-1-GN-24-005018
538 Appx. Tab 1
IT IS FURTHER ORDERED that in the event an interlocutory appeal is filed by Defendant,
this Order will not be superseded until the court of appeals issues an order granting or denying a request
for temporary orders under Rule 29.3 of the Texas Rule of Appellate Procedure.
SIGNED AND ENTERED on this eighteenth day of September 2024, at {O: QO Am. in Travis County, Texas,
Ouse DANIELLA DESETA LYTTLE Judge Presiding, 261st District Court
11/21/2024 02:37:17
ORDER GRANTING PLAINTIFFS' APPLICATION FOR TEMPORARY INJUNCTIVE RELIEF Page 4 of 4 Cause No. D-1-GN-24-005018
539 09/18/2024 11:42:05AM Velva L. Price District Clerk Travis County D-1-GN-24-005018
Pecos-Barstow-Toyah Independent § IN THE DISTRICT COURT OF School District, § Crandall Independent School District, § Forney Independent School District, § Fort Stockton Independent School § District, and Kingsville Independent School District, § Plaintiffs, TRAVIS COUNTY, TEXAS : v. § § Mike Morath, in his official capacity as § Commissioner of Education, § § Defendant. 201ST JUDICIAL DISTRICT
ORDER DISMISSING THE SCHOOL BOARD MEMBER INTERVENORS' FIRST AMENDED VERIFIED PETITION IN INTERVENTION
On September 17, 2024, the Court considered the First Amended Verified Petition in
Intervention filed by Brandon Hodges, individually and in his official capacity as Trustee of District
for Midland ISD, and Mary Bone and Danielle Weston, individually and in their official capacities as
Trustees of Round Rock ISD, filed on September 13, 2024 (the School Board Member Intervenors).
The Court called the case on September 16, 2024, for an in-person hearing as set for this cause, and
there was no appearance for or by the School Board Member Intervenors.
After considering the evidence, all pleadings on file in this cause, and the arguments ofcounsel,
if any, the Court FINDS that the School Board Member Intervenors did not assert any of the ultra vires
claims brought by Plaintiffs originally. Therefore, the School Board Member Intervenors did not meet
the threshold of showing ajusticiable interest in this lawsuit, i.e., a showing that these intervenors could
have brought this lawsuit in their own names and recover at least a part of the relief sought in the
original suit.
ORDER DISMISSING THE SCHOOL BOARD MEMBER INTERVENORS' Page | of 2 FIRST AMENDED VERIFIED PETITION IN INTERVENTION Cause No. D-1-GN-24-005018
540 The Court FURTHER FINDS that allowing the School Board Member Intervenors'
intervention in this case would inject new issues into this case that are separate and different from
Plaintiffs' ultra vires claims asserted against Defendant Commissioner.
IT IS THEREFORE ORDERED that the School Board Member Intervenors' First Amended
Verified Petition in Intervention is DISMISSED WITHOUT PREJUDICE for want of prosecution.
Signed on this eighteenth day of September 2024,
PrhytHe DANIELLA DESETA LYTTLE Judge Presiding, 261 st District Court
ORDER DISMISSING THE SCHOOL BOARD MEMBER INTERVENORS' Page 2 of 2 FIRST AMENDED VERIFIED PETITION IN INTERVENTION Cause No. D-1-GN-24-005018
541 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Walker Young on behalf of Walker Young Bar No. 24102676 walker.young@solidcounsel.com Envelope ID: 96500867 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellants' Brief and Appendix in Support Status as of 1/23/2025 7:08 AM CST
Associated Case Party: Brandon Hodges, individually and in his official capacity as Trustee of District for Midland ISD
Name BarNumber Email TimestampSubmitted Status
Byron K.Henry byron.henry@solidcounsel.com 1/22/2025 10:05:15 PM SENT
Melissa Diaz melissa.diaz@solidcounsel.com 1/22/2025 10:05:15 PM SENT
Walker StevenYoung walker.young@solidcounsel.com 1/22/2025 10:05:15 PM SENT
Associated Case Party: Pecos-Barstow-Toyah Independent School District
Kevin O'Hanlon 15235500 kohanlon@808west.com 1/22/2025 10:05:15 PM SENT
David Campbell dcampbell@808west.com 1/22/2025 10:05:15 PM SENT