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 v. Pecos-Barstow-Toyah Independent School District, Crandall Independent School District, Forney Independent School District, Fort Stockton Independent School District, and Kingsville Independent School District

Opinion

ACCEPTED 15-24-00109-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/11/2025 1:37 PM NO. 15-24-00109-CV CHRISTOPHER A. PRINE CLERK ____________________________________________________ FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS 3/11/2025 1:37:03 PM FOR THE FIFTEENTH DISTRICT OF TEXAS AT AUSTIN CHRISTOPHER A. PRINE Clerk ____________________________________________________

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 ____________________________________________________

Plaintiff-Appellee School Districts’ Brief and Motion to Dismiss ____________________________________________________

Kevin O’Hanlon O’HANLON, DEMERATH & CASTILLO kohanlon@808west.com 808 West Ave. Benjamin Castillo Austin, Texas 78701 bcastillo@808west.com (512) 494-9949 Nick Maddox (512) 494-9919 (fax) nmaddox@808west.com Edward Smith Counsel for Plaintiff-Appellee esmith@808west.com School Districts

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................iv

Statement of Jurisdiction ............................................................................................ 1 Issues Presented ......................................................................................................... 4

1. Can School Board Intervenors that are not parties to the lawsuit bring an interlocutory appeal to this Court? ............................. 4

2. Did the trial court act within its discretion in dismissing the School Board Intervenors for lack of justiciable interest?.................................................................................................. 4 3. Is the School Board Intervenors’ request for relief moot given that they have already received the Texas A–F ratings they seek? .................................................................................. 4 4. Unbriefed: Whether the trial court abused its discretion in granting temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and School Districts did not demonstrate that any action of the Commissioner would harm the School Districts................................... 4

Statement of Facts ...................................................................................................... 5 Summary Argument ................................................................................................... 9

Standard of Review .................................................................................................. 11 Argument.................................................................................................................. 14

1. The School Board Intervenors are not parties before this Court and their appeal of the temporary injunction should be treated as an amicus curiae. ............................................................ 14

a. The School Board Intervenors are not parties because they failed to properly challenge their

~ ii ~ dismissal for want of prosecution in the trial court. ................. 14

b. The School Board Intervenors are not parties before this Court because they failed to give notice and properly contest their dismissal in the court of appeals. ...................................................................................... 18 c. Because the litigation is stayed, this Court lacks the authority to remand the School Board Intervenors’ dismissal to the trial court for reconsideration.......................... 20

2. The trial court properly exercised its discretion in dismissing the School Board Intervenors for want of a justiciable interest. ............................................................................... 21 a. The trial court properly exercised its discretion in dismissing the School Board Intervenors for lack of a justiciable interest because they could not bring the case in their own name. ....................................................... 21

b. The trial court properly exercised its discretion in dismissing the School Board Intervenors because they bring separate and unrelated issues to the case. ................................................................................................... 22

3. The School Board Intervenors’ request for relief is moot because they have already received the Texas A–F ratings they seek. ............................................................................................. 24 PRAYER .................................................................................................................. 26

CERTIFICATE OF COMPLIANCE ....................................................................... 28 CERTIFICATE OF SERVICE ................................................................................ 28

~ iii ~ INDEX OF AUTHORITIES

Cases Abdullatif v. Erpile, LLC, 460 S.W.3d 685 (Tex. App.—Houston [14th Dist.] 2015, no pet.) .....................12

Bryant Law Firm v. Walker, No. 14-22-00789-CV, 2024 WL 2150099, *2 (Tex. App.—Houston [14th Dist.] May 14, 2024) (mem. op.)....................................................................................19 Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928 (Tex. App.—Houston [14th Dist.] 2008) ..................................19

City of McAllen v. Ramirez, 875 S.W.2d 702 (Tex. App. –Corpus Christi 1994, orig. proceeding) ................15 Clark v. Yarbrough, 900 S.W.2d 406 (Tex. App.—Texarkana 1995, writ denied) ....................... 15, 17

Gamboa v. Alecio, 604 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2020, no pet.). ....................11

Gilbert v. Huber, Hunt, Nichols, Inc., 671 S.W.2d 869 (Tex.1984) ...................................................................... 2, 15, 16

Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex.1990) .............................................................. 11, 12, 21, 22

Guest v. Dixon, 195 S.W.3d 687 (Tex. 2006) ................................................................................15

Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. 1965). .................................................................................2

Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) ................................................................................24

In re Ford Motor Co., 442 S.W.3d 265 (Tex. 2014) ................................................................................13

~ iv ~ In re Geomet Recycling LLC, 578 S.W.3d 82 (Tex. 2019) ..................................................................................20 In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718 (Tex. 2006) ..................................................................................2

In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) ................................................................... 11, 13, 21

Kenneth D. Eichner, P.C. v. Dominguez, No. 14-20-00358-CV, 2022 WL 364070, *3 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.) ..................................................................................... 11, 12

Martinez v. El Paso County, 218 S.W.3d 841 (Tex.App. —El Paso 2007, pet. stricken) .................................19 Mendez v. Brewer, 626 S.W.2d 498 499 (Tex. 1982) .............................................12 Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422 (Tex. App.—Dallas 2009, no pet.); ...........................................15 Rainbow Grp., Ltd. v. Wagoner, 219 S.W.3d 485 (Tex. App.—Austin 2007) ........................................................18

Sierra Club v. Texas Comm’ on Environmental Quality, 188 S.W.3d 220 (Tex. App.–Austin 2005, no pet.) .................................. 2, 15, 16 State v. Naylor Eyeglasses, 466 S.W.3d 78 (Tex. 2015). ...................................................................................2 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). .................................................................................1 Thomas v. Thomas, No. 14-02-01286-CV, 2003 WL 1088220, *1-2 (Tex. App. – Houston [14th Dist.] March 13, 2003, no pet.) (mem. op.). ........................................................19

Williams v. Lara, 52 S.W.3d 171(Tex. 2001) ...................................................................................24

Young v. Di Ferrante, 553 S.W.3d 125 (Tex. App.—Houston [14th Dist.] 2018) ..................................15

~v~ Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App.—Austin 2007, pet. denied) ....................................................................................................................... 11, 22

Rules

TEX. CIV. PRAC. & REM. CODE § 51.014......................................................... 3, 5, 20

TEX. CIV. PRAC. & REM. CODE § 51.014(b) .............................................................20

Tex. R. App. P. 38.1.................................................................................. 5, 8, 19, 20

Tex. R. App. P. 25.1(f) .........................................................................................5, 18

TEX. R. CIV. P. 60 .......................................................................................................5

TEX. R. CIV. P. 165a ......................................................................................... passim

TEX. R. CIV. P. 329b(a) ............................................................................. 2, 6, 14, 17

~ vi ~ STATEMENT OF JURISDICTION

The School Districts disagree with the School Board Intervenors’ Statement

of Jurisdiction.

The School Board Intervenors are not parties to the lawsuit. They were

dismissed by the trial court and did not properly challenge their dismissal. (CR 540-

41). Even though they are not parties to this lawsuit, they now seek an interlocutory

appeal of the trial court’s declaratory judgment order preventing the Commission of

Education from taking ultra vires action. (CR 539). Specifically, in their Notice of

Accelerated Interlocutory Appeal, the School Board Intervenors state:

School Board Member Intervenors desire to and hereby give notice of their appeal of the trial court’s Order Granting Plaintiffs’ Application for Temporary Injunctive Relief entered on September 18, 2024

(CR 594-95).

Because they were dismissed and are not parties to the lawsuit, and did not

appeal the trial court’s dismissal order, this Court lacks jurisdiction over the School

Board Intervenors’ claims on appeal. Their claims should be dismissed by this Court

for want of jurisdiction.

Standing is a component of subject-matter jurisdiction. Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Appellate standing is

typically afforded only to parties of record. Gunn v. Cavanaugh, 391 S.W.2d 723,

724–725 (Tex. 1965). An appeal filed by an improper party must be dismissed. Id.

~1~ Texas appellate courts consistently hold that only parties to the trial court

proceedings may pursue an appeal, and a party dismissed by the trial court must

properly challenge their dismissal in the trial court to preserve appellate standing.

See, In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723-24 (Tex. 2006) (holding

that a party dismissed from litigation must timely seek reinstatement or appeal the

dismissal to retain standing); State v. Naylor Eyeglasses, 466 S.W.3d 783, (Tex.

2015). If an intervenor fails to file a motion for reinstatement in the trial court, under

Texas Rules of Civil Procedure 165a or otherwise challenge their dismissal in the

trial court, they forfeit their ability to participate in appellate proceedings.

In the case at hand, in the trial court, after their dismissal for want of

prosecution, the School Board Intervenors did not file the required motion to

reinstate. TEX. R. CIV. P. 165a; Sierra Club v. Texas Comm’ on Environmental

Quality, 188 S.W.3d 220, 222 (Tex. App.–Austin 2005, no pet.) (holding a motion

for reinstatement is the only remedy available to a party whose case has been

dismissed for want of prosecution). Nor did they file a motion to modify the

judgment. TEX. R. CIV. P. 329b(a); see, Gilbert v. Huber, Hunt, Nichols, Inc., 671

S.W.2d 869, 870 (Tex.1984) (holding reinstatement of cause following dismissal for

want of prosecution is governed by rules).

The School Board Intervenors were dismissed from the case by the trial court

and they failed to properly appeal their dismissal through a motion to reinstate. In

~2~ addition, the School Board Intervenors did not challenge their dismissal in this

Court. They are no longer a party to the litigation and lack standing to appeal to this

Court under Texas Civil Practice & Remedies Code § 51.014.

~3~ ISSUES PRESENTED

1. Can School Board Intervenors that are not parties to the lawsuit bring an interlocutory appeal to this Court?

2. Did the trial court act within its discretion in dismissing the School Board Intervenors for lack of justiciable interest? 3. Is the School Board Intervenors’ request for relief moot given that they have already received the Texas A–F ratings they seek? 4. Unbriefed: Whether the trial court abused its discretion in granting temporary injunction because the evidence only showed the Commissioner’s compliance with the law, and School Districts did not demonstrate that any action of the Commissioner would harm the School Districts.

~4~ STATEMENT OF FACTS

The School Districts disagree with the School Board Intervenors’ Statement

of Fact.

The School Board Intervenors are not parties to the lawsuit. Because they

are not parties to the lawsuit, this Court lacks jurisdiction over the School Board

Intervenors appeal of the temporary injunction order. Their claims should be

dismissed by this Court for want of jurisdiction. TEX. CIV. PRAC. & REM. CODE §

51.014.

On August 13, 2024, the School Districts filed an Original Verified Petition

for Declaratory Judgment and Application for Temporary Restraining Order and

Temporary Injunctive Relief, seeking to prevent the Texas Commissioner of

Education from acting ultra vires by implementing the 2024 A–F accountability

ratings in violation of provisions in the Texas Education Code. (CR 5-31).

On August 23, 2024, Brandon Hodges, individually and in his official

capacity as Trustee of Midland ISD, filed an Original Petition in Intervention

pursuant to Texas Rules of Civil Procedure 60. (CR 99-109). On September 13,

2024, two trustees from Round Rock ISD joined Mr. Hodges in the suit by filing a

First Amended Verified Petition in Intervention, collectively forming the School

Board Intervenors. (CR 391-413). The School Districts did not object to or move to

strike the School Board Intervenors’ participation.

~5~ On September 16-17, 2024, the trial court held an in-person hearing on the

School Districts’ motion for temporary injunctive relief. (CR 536-39). The School

Board Intervenors failed to appear at the hearing or otherwise participate. (CR 540).

On September 18, 2024, the trial court granted the School Districts’ application for

a temporary injunction, restraining the Commissioner of Education from taking ultra

vires actions. (CR 536-39). On the same day, the trial court sua sponte dismissed the

School Board Intervenors without prejudice for want of prosecution, citing the

following reasons:

1. Want of Prosecution – The School Board Intervenors did not attend the

September 16-17, 2024 hearing and were dismissed for want of prosecution.

(CR 540).

2. Lack of Justiciable Interest – The School Board Intervenors sought different

relief than the School Districts and did not assert any of the School Districts’

ultra vires claims against the Commissioner. (CR 540).

3. Improper Expansion of Litigation – Allowing the School Board Intervenors

to proceed would inject new and distinct issues beyond those raised by the

School Districts. (CR 541).

Despite their dismissal, the School Board Intervenors failed to file the

required motion for reinstatement under Texas Rules of Civil Procedure 165a or any

other motion contesting their removal. See, TEX. R. CIV. P. 329b(a). On September

~6~ 19, 2024, and one day after the trial court signed the Order Granting Plaintiffs’

Application for Temporary Injunctive Relief, the School Board Intervenors filed a

Second Amended Verified Petition in Intervention. (CR 552-574). However, in this

filing, the School Board Intervenors did not address all of the trial court’s reasons

for dismissing them, nor did they file the required motion to reinstate. The trial

court took no action on the School Board Intervenors Second Amended Verified

Petition in Intervention and the School Board Members remained non-parties

to the litigation.

On October 8, 2024, the School Board Intervenors filed a School Board

Member Intervenors Notice of Accelerated Interlocutory Appeal with the trail court.

(CR 549-597). Importantly, in their notice of appeal to this Court the School Board

Intervenors did not challenge their dismissal by the trial court for want of

prosecution; instead, their notice only contested the trial court’s grant of the

temporary injunction in favor of the School Districts. Id. Specifically, in their Notice

of Accelerated Interlocutory Appeal, the School Board Intervenors state:

School Board Member Intervenors desire to and hereby give notice of their appeal of the trial court’s Order Granting Plaintiffs’ Application for Temporary Injunctive Relief entered on September 18, 2024

(CR 594-97).

~7~ The School Board Intervenors do not appeal the trial court’s order of

dismissal, nor do they challenge the trial court’s order of dismissal before this Court.1

See Appellants’ Brief, pg. 13. As they are not parties to this lawsuit, the School Board

Intervenors Appellant’s Brief before this court functions solely as an amicus curiae

submission, as they lack standing to seek relief from this Court.

1 The School Board Intervenors state, in a footnote, that the trial court’s dismissal of their petition in intervention “does not affect this analysis” but issues raised only in a footnote are not properly preserved and are inadequately briefed. Appellants Brief, pg. 29, fn4. See Tex. R. App. P. 38.1.

~8~ SUMMARY ARGUMENT

The School Board Intervenors are not parties to this lawsuit. This Court

should dismiss the School Board Intervenors for lack of jurisdiction.

The trial court properly dismissed the Schol Board Intervenors without

prejudice for want of prosecution after they failed to appear at the temporary

injunction hearing. (CR 540-41). After their dismissal, the School Board Intervenors

did not take the necessary steps to contest their removal by the trial court, such as

filing the required motion for reinstatement or any other appropriate motion. By

failing to do so, they waived any argument regarding their dismissal and are no

longer parties to this litigation.

Importantly, in their notice of appeal to this Court they did not challenge their

dismissal by the trial court for want of prosecution; instead, their notice only

contested the trial court’s grant of the temporary injunction in favor of the School

Districts. Id. Specifically, in their Notice of Accelerated Interlocutory Appeal, the

School Board Intervenors state:

School Board Member Intervenors desire to and hereby give notice of their appeal of the trial court’s Order Granting Plaintiffs’ Application for Temporary Injunctive Relief entered on September 18, 2024

(CR 594-95).

~9~ Alternatively, this court should affirm the trial court’s order dismissing the

School District Intervenors from the case. The trial court acted within its discretion

in dismissing the School Board Intervenors, for the following reasons:

First, the School Board Intervenors did not appear at the trial court’s

temporary injunction hearing and were dismissed for want of prosecution. After

dismissal, they did not file the proper motion for reinstatement with the trial court.

(CR 540).

Second, the trial court did not abuse its discretion in determining the School

Board Intervenors lack a justiciable interest in this litigation.

Third, the trial court did not abuse its discretion in determining that their

intervention would introduce new and inappropriate claims.

Finally, the School Board Intervenors seek their 2024 Texas A–F ratings,

which they already possess, rendering their claims moot.

As the trial court did not abuse its discretion in dismissing the School

Board Intervenors, the trial court’s dismissal order should be affirmed.

~ 10 ~ STANDARD OF REVIEW

An appellate court reviews an order dismissing for want of prosecution under an

abuse of discretion standard. Gamboa v. Alecio, 604 S.W.3d 513, 515 (Tex. App.—

Houston [14th Dist.] 2020, no pet.). “A trial court abuses its discretion if it acts

without reference to any guiding rules or principles or acts in an arbitrary or

unreasonable manner.” Id.

Texas Rules of Civil Procedure 60 provides that “[a]ny party may intervene by

filing a pleading subject to being stricken out by the court for sufficient cause on the

motion of any party.” Kenneth D. Eichner, P.C. v. Dominguez, No. 14-20-00358-

CV, 2022 WL 364070, *3 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.)

(mem. op.). Only a party with a justiciable interest in a pending suit to intervene in

the suit. Id.; In re Union Carbide Corp., 273 S.W.3d 152, 154-55 (Tex. 2008); Guar.

Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).

The justiciable interest requirement is of “paramount importance” as it protects

pending cases from having interlopers disrupt the proceedings. In re Union Carbide

Corp., 273 S.W.3d at 155. Whether an intervenor possesses a present justiciable

interest is determined by the facts alleged in the petition in intervention, which also

should be construed along with the allegations of fact set forth in the pleadings of

the other parties. Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App. – Austin

2007, pet. denied).

~ 11 ~ The standard of review for determining whether a trial court properly struck a

petition in intervention for lack of a justiciable interest is abuse of discretion.

Kenneth D. Eichner, P.C. v. Dominguez, No. 14-20-00555-CV, 2022 WL 364070,

*3 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.) (mem. op.); Guar. Fed.

Sav. Bank, 793 S.W.2d at 657. The test for whether a trial court abused its discretion

is whether the trial court acted without reference to any guiding rules and principles,

i.e., whether the act was arbitrary or unreasonable. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

It is well settled Texas law that a trial court has broad discretion in striking an

intervenor for lack of a justiciable interest. Guar. Fed. Sav. Bank, 793 S.W.2d at

657; Mendez v. Brewer, 626 S.W.2d 498 499 (Tex. 1982). (“It is settled law that a

motion to strike an intervention is addressed to the sound discretion of the trial

court.”). Once an intervenor has been stricken, the burden shifts to the intervenor to

show a justiciable interest in the lawsuit. 2 Mendez, 626 S.W.2d 499; Guar. Fed. Sav.

Bank, 793 S.W.2d at 657.

2 An intervention is usually challenged by a motion to strike in the trial court. See Abdullatif v. Erpile, LLC, 460 S.W.3d 685, 694 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“Absent a motion to strike, one who files a petition in intervention generally becomes a party to the suit for all purposes.”). Once a motion to strike has been filed, the burden shifts to the intervenor to show a justiciable interest in the lawsuit. Mendez, 626 S.W.2d 499. Here, after the School District Intervenors failed to appear at the trial court’s hearing on the temporary restraining order, the trial court sue sponte ordered dismissal of the School Board

~ 12 ~ The trial court may strike the intervenor without abusing its discretion if the

intervenor: (1) could not have brought the same action, or any part thereof, in his

own name or, if the action had been brought against him, he would be able to defeat

recovery, or some part thereof, or (2) the intervention will complicate the case by an

excessive multiplication of the issues, or (3) the intervention is not essential to

effectively protect the intervenor’s interest. 3 Id.

intervenors for want of prosecution and lack of a justiciable interest. (CR 540-41). After this order by the trial court, the School Board Intervenors bore the burden to file a motion to reinstate. Mendez, 626 S.W.2d 499. They failed to do so. 3 Notably, this is the abuse of discretion standard for reviewing a trial court’s holding on appeal of plaintiff-intervenors, and not necessarily defendant-intervenors.

Under Texas law, intervenors can be classified as either “plaintiff-intervenors” or “defendant- intervenors,” depending on the claims asserted and the relief sought. See, In re Ford Motor Co., 442 S.W.3d 265, 274–75 (Tex. 2014). However, courts rarely categorize intervenors as defendant-intervenors, as intervention generally involves a party seeking affirmative relief rather than defending against a claim. Id.

In this case, both the School Districts and the trial court treated the School Board Intervenors as plaintiff-intervenors because, (1) while the School District Intervenors identify a controversy between the School Districts and the School Board Intervenors, the School Board Intervenors did not assert in their pleadings—either at the trial court level or before this Court—that they sought to intervene as defendant-intervenors (CR 397); and (2) they did not appear at the trial court’s temporary injunction hearing asserting a defensive posture as intervening-defendants. In its judgment dismissing the School Board Intervenors, the trial court applied the legal standard for plaintiff-intervenors. See, In re Union Carbide Corp., 273 S.W.3d at 157.

Because the School Board Intervenors neither plead nor argued in the trial court or this Court that they were intervening-defendants, or that the trial court applied the incorrect standard or abused its discretion, for this appeal, the School Districts will continue to apply the legal standard for plaintiff-interventors. Id.

~ 13 ~ ARGUMENT

1. The School Board Intervenors are not parties before this Court and their appeal of the temporary injunction should be treated as an amicus curiae.

The School Board Intervenors failed to preserve their dismissal in both the trial

court and on appeal. In the trial court, they did not file the required motion to

reinstate after being dismissed for want of prosecution. TEX. R. CIV. P. 165a. Nor

did they file a motion to modify the trial court’s order dismissing their case. TEX. R.

CIV. P. 329b(a). By failing to file these motions, the trial court was denied an

opportunity to reconsider its dismissal. In this Court, they also failed to notice or

properly contest the trial court’s order of their dismissal, instead they only appealed

the trial court’s temporary injunction order. (CR 594-97). Having failed to preserve

their dismissal at trial court or at the appellate level, they are not parties to this case

and should be dismissed for want of jurisdiction and their brief treated as an amicus

curiae.

a. The School Board Intervenors are not parties because they failed to properly challenge their dismissal for want of prosecution in the trial court.

The School Board Intervenors failed to properly preserve their challenge to the

trial court’s dismissal for failure to prosecute their claims. As a result, they are not

parties to this litigation.

~ 14 ~ A trial court has the authority to sua sponte dismiss a case for want of prosecution

pursuant to Texas Rules of Civil Procedure 165a or its inherent powers. Oliphant

Fin. LLC v. Angiano, 295 S.W.3d 422, 424 (Tex. App.—Dallas 2009, no pet.); Clark

v. Yarbrough, 900 S.W.2d 406, 408 (Tex. App.—Texarkana 1995, writ denied). A

trial court may dismiss a case for want of prosecution if the party seeking relief fails

to appear for any hearing or trial of which the party was noticed, for noncompliance

with time standards, or for lack of due diligence. Clark, 900 S.W.2d at 408. The

different kinds of dismissals are cumulative and independent. Id.

Under Rule 165a of the Texas Rules of Civil Procedure, a party dismissed for

want of prosecution (DWOP) must file a motion to reinstate in order to intervene in

the case after dismissal. See Gilbert, 671 S.W.2d at 870 (holding reinstatement of

cause following dismissal for want of prosecution for whatever reason is governed

by rules); Sierra Club, 188 S.W.3d at 222 (holding a motion for reinstatement is the

only remedy available to a party whose case has been dismissed for want of

prosecution); see, also City of McAllen v. Ramirez, 875 S.W.2d 702, 704–05 (Tex.

App. –Corpus Christi 1994, orig. proceeding); Guest v. Dixon, 195 S.W.3d 687, 687-

88 (Tex. 2006); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex. App.—Houston

[14th Dist.] 2018) (holding a motion to reinstate stands as the only remedy available

to a party when the trial court has dismissed the case for want of prosecution).

~ 15 ~ Filing a motion to reinstate is a critical procedural step, as courts are required to

follow reinstatement timetables and procedures. See, e.g., Gilbert, 671 S.W.2d 869,

870. To request reinstatement of a dismissed case, the movant or their attorney must

submit a verified motion to reinstate with the clerk within 30 days of the dismissal

order being signed. Id.; TEX. R. CIV. P. 165a.

In this case, the trial court conducted a hearing on the temporary injunction order

– where the School Board Intervenors failed to appear – and thereafter, the trial court

dismissed the School Board Intervenors for “want of prosecution.” (CR 540-41).

The trial court’s dismissal order apprised the School Board Intervenors of the basis

for their dismissal, including their failure to appear at the hearing, lack of justiciable

interest in the litigation, and inappropriate insertion of new issues. Id. Thereafter, the

School Board Intervenors’ only remedy under Texas law was to file a motion for

reinstatement. Sierra Club, 188 S.W.3d at 222 (holding rule 165a reinstatement

procedure applies to all dismissals for want of prosecution, regardless of whether

they are initiated by the court or motion of a party). The School Board Intervenors

did not file the required motion to reinstate or request a hearing as required by Texas

Rules of Civil Procedure 165a. Id. Instead, they filed a Second Amended Verified

Petition in Intervention, thereby forfeiting an opportunity to correct any alleged error

at the trial court level related to their dismissal for want of prosecution (CR 553-

574).

~ 16 ~ Their Second Amended Verified Petition in Intervention did not assert the trial

court abused its discretion in dismissing them for want of prosecution or otherwise

fully address the trial court’s reasoning for dismissing them from the case. Id. at 554;

(CR 540-41). Instead of addressing the trial court’s well-reasoned dismissal order,

the School Board Intervenors instead relied on a procedural notice argument to claim

they remained parties in the case. Id. at 554. However, their asserted notice issue

does not override the trial court’s clear determination and order that their

intervention was improper, nor did it reinstate their status as parties to the litigation.

TEX. R. CIV. P. 165a.

Additionally, the School Board Intervenors did not file a motion for

reconsideration or a motion to modify, correct, or reform the trial court’s dismissal

judgment under Rule 329b(a) of the Texas Rules of Civil Procedure, which allows a

party to challenge a dismissal within 30 days of the order. Thus, the trial court was

not provided with the opportunity to reconsider or rectify potential dismissal errors

before the case proceeded to this Court. See, Texas Rules of Civil Procedure

329b(a). Texas courts have consistently held that failing to raise an issue before the

trial court results in waiver on appeal. See, Clark, 900 S.W.2d at 409 (finding that a

party’s failure to move for reinstatement or otherwise challenge dismissal in the trial

court precluded appellate relief).

~ 17 ~ Because the School Board Intervenors did not take the procedural steps required

by Texas Rules of Civil Procedure Rule 165a and case law to challenge their

dismissal in the trial court, they failed to preserve their right to contest the trial

court’s dismissal ruling. Without a properly preserved issue, this Court lacks a basis

to review the dismissal on appeal. As a result, the School Board Intervenors are not

a party to this case, this Court lacks jurisdiction, and their claims cannot be

considered on appeal.

b. The School Board Intervenors are not parties before this Court because they failed to give notice and properly contest their dismissal in the court of appeals.

As the School Board Intervenors are not parties before this Court, their brief

should be treated by this court as an amicus curiae. Under Texas Rules of Appellate

Procedure 25.1(d), and Texas case law, a notice of appeal must identify the trial

court judgment or appealable order being challenged. While the rule does not require

specific grounds for appeal in the notice, failure to designate the correct judgment

results in the appellate court declining to consider the issue on appeal. See, Tex. R.

App. P. 25.1(f); Rainbow Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 491-93 (Tex.

App.—Austin 2007)(holding appellant could not alter its notice of appeal from

appealing one interlocutory order to appealing an entirely separate interlocutory

~ 18 ~ order after deadline); Thomas v. Thomas, No. 14-02-01286-CV, 2003 WL 1088220,

*1-2 (Tex. App. – Houston [14th Dist.] March 13, 2003, no pet.) (mem. op.).

In addition, it is well established that Texas Rule of Appellate Procedure 38.1(f)

requires an appellant to include clear legal arguments, citations to authority, and

references to the record in the appellate brief to preserve an issue for appellate

review. Bryant Law Firm v. Walker, No. 14-22-00789-CV, 2024 WL 2150099, *4

(Tex. App. – Houston [14th Dist.] May 14, 2024) (mem. op.); see Canton-Carter v.

Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App. – Houston [14th Dist.] 2008)

(holding plaintiff waived issues on appeal by failing to allege trial court error, cite

legal authority, or provide substantive legal analysis in appellate brief under Tex. R.

App. P. 38.1(f), (i)); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App.

– El Paso 2007, pet. stricken). If an appellant fails to adequately brief the issue, it is

waived on appeal. Tex. R. App. P. 38.1(f). (Appellant’s brief must concisely state

all issues or points presented for review).

Here, the School Board Intervenors failed to properly appeal their dismissal

from the case. Instead of filing a notice of appeal challenging the trial court’s

dismissal order, they filed a notice of appeal challenging only the trial court’s

temporary injunction order. (CR 594-597). Specifically, in their Notice of

Accelerated Interlocutory Appeal, the School Board Intervenors state:

~ 19 ~ School Board Member Intervenors desire to and hereby give notice of their appeal of the trial court’s Order Granting Plaintiffs’ Application for Temporary Injunctive Relief entered on September 18, 2024

(CR 594-95).

By failing to designate the dismissal order as the subject of their appeal or make

any legal arguments regarding their dismissal to this Court, the School Board

Intervenors waived their right to contest their removal from the case in this Court.

See Tex. R. App. P. 38.1(f).

c. Because the litigation is stayed, this Court lacks the authority to remand the School Board Intervenors’ dismissal to the trial court for reconsideration.

Under Texas Civil Practice & Remedies Code § 51.014(b), an interlocutory

appeal of a temporary injunction automatically stays all trial court proceedings

related to the appealed order. See, In re Geomet Recycling LLC, 578 S.W.3d 82, 86-

87 (Tex. 2019) (“Neither section 51.014 nor any other statute to which we are

directed authorizes a court of appeals to lift the stay, whether altogether or for a

limited purpose.”). As a result, this Court lacks the authority to remand the School

Board Intervenors dismissal from the litigation to the trial court for further

consideration by the trial court until after this Court decides the temporary

injunction. Furthermore, the School Board Intervenors have neither properly briefed

nor formally requested such relief in this Court.

~ 20 ~ 2. The trial court properly exercised its discretion in dismissing the School Board Intervenors for want of a justiciable interest.

The trial court did not abuse its discretion in striking the School Board

Intervenors because the Intervenors do not have a justiciable interest in this

litigation. In re Union Carbide Corp., 273 S.W.3d at 155; Guar. Fed. Sav. Bank,

793 S.W.2d at 657. The trial court’s order dismissing the School Board Intervenors

from the case should be upheld.

a. The trial court properly exercised its discretion in dismissing the School Board Intervenors for lack of a justiciable interest because they could not bring the case in their own name.

The trial court properly exercised its discretion in dismissing the School Board

Intervenors. In its dismissal order, the court correctly found that the Intervenors lack

a justiciable interest in the lawsuit, as they did not assert any of the ultra vires claims

brought by the School Districts and are not requesting the same relief sought by the

School Districts. (CR 540-41). As a result, they are not parties to this litigation and

their claims should be dismissed.

Under Texas law, an intervenor must establish a justiciable interest by

demonstrating that they could have independently initiated the lawsuit and obtained

at least part of the relief sought by the School District’s in the original action. In re

Union Carbide Corp., 273 S.W.3d at 155. Here, the School Board Intervenors do

not seek the relief sought by the School Districts. The School Board Intervenors seek

~ 21 ~ declaratory relief requiring the Commissioner to assign A–F ratings. (CR 558-59).

Their position directly conflicts with the School Districts’ claims, which seek to

enjoin the Commissioner from implementing the ratings on the grounds that his

actions are ultra vires. (CR 25).

Because the School Board Intervenors are not asserting ultra vires claims and do

not challenge the Commissioner’s authority, they are not proper parties to this

dispute and the trial court did not abuse its discretion in dismissing them.

b. The trial court properly exercised its discretion in dismissing the School Board Intervenors because they bring separate and unrelated issues to the case.

The trial court acted within its discretion in dismissing the School Board

Intervenors because their participation would introduce separate and unrelated issues

into the case. (CR 540). As a result, they are not parties to this litigation and their

claims should be dismissed.

A trial court has broad discretion to deny intervention when the proposed

intervenor’s claims introduce new and distinct issues that diverge from those raised

by existing parties. See, Guar. Fed. Sav. Bank, 793 S.W.2d at 657. If an intervenor’s

claims are speculative or unrelated to the core legal dispute, their intervention is

properly denied. Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App. – Austin 2007,

pet. denied). The trial court correctly found that the School Board Intervenors’

~ 22 ~ claims would introduce separate and unrelated issues that diverge from those raised

by the Plaintiff School Districts and the Commissioner of Education. (CR 541).

The School Districts’ claims seek to prevent the Commissioner of Education

from exceeding his authority by implementing A–F performance ratings without

adhering to statutory requirements. (CR 25-26). In contrast, the School Board

Intervenors seek declaratory relief affirming that the Commissioner has a statutory

duty to release the ratings and request the rating release. (CR 558-59). These

conflicting positions shift the focus of the case from whether the Commissioner

acted unlawfully to whether he is legally obligated to proceed with the ratings.

Because the Intervenors do not share the same legal claims or objectives as the

School Districts, their participation would broaden the scope of the litigation,

thereby complicating the proceedings and introducing extraneous issues.

In addition, the School Board Intervenors and the Commissioner of Education

present distinct legal and policy arguments in this litigation. The School Board

Intervenors emphasize their role as elected officials who rely on A–F accountability

ratings to oversee school performance, allocate resources, and ensure transparency

for parents and communities. (CR 102-105). By contrast, the Commissioner focuses

on defending his compliance with statutory requirements and refuting the School

District’s claims regarding notice, College, Career, and Military Ready (CCMR)

data, and STAAR scoring.

~ 23 ~ Since the School Board Intervenors’ claims introduce new and distinct issues

unrelated to the ultra vires claims asserted by the School Districts or the statutory

authority of the Commission of Education, the trial court properly exercised its

discretion in dismissing them from the case. The dismissal ensures that the litigation

remains focused on the core dispute without unnecessary expansion into legal

questions related to school boards.

3. The School Board Intervenors’ request for relief is moot because they have already received the Texas A–F ratings they seek.

The School Board Intervenors’ claims are moot because they have already

obtained the relief they seek – access to their A–F accountability ratings. As a result,

there is no live controversy, and this Court lacks jurisdiction over their claims.

A case becomes moot when there is no longer a justiciable controversy between

the parties, and courts lack jurisdiction over moot claims. Heckman v. Williamson

County, 369 S.W.3d 137, 162 (Tex. 2012) (“A suit can become moot at any time,

including on appeal, and the courts have an obligation to take into account

intervening events that may render a lawsuit moot.”). Likewise, when a party’s

requested relief has been provided through other means, the case ceases to present a

live dispute. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (holding that a case

is moot if “there ceases to be a live controversy between the parties”.)

~ 24 ~ Here, the School Board Intervenors seek to overturn the trial court’s temporary

injunction blocking the release of A–F ratings, arguing that these ratings are essential

for school governance, accountability, and compliance with state law. (CR 560-61).

However, they already have access to their A–F ratings through the Texas Education

Agency’s A–F Estimator Tool. Tex. Educ. Agency, 2024 Underlying Accountability

Subset Data Available in TEAL (Aug. 14, 2024), https://tea.texas.gov/about-

tea/news-and-multimedia/correspondence/taa-letters/2024-underlying-

accountability-subset-data-available-in-teal.

Because the TEA has provided a mechanism for school districts to obtain their

ratings and conduct performance assessments, the School Board Intervenors can

perform their governance duties without further judicial intervention. The

availability of the A–F Estimator Tool eliminates any ongoing controversy because

it grants school districts access to the precise information they seek. Courts have

consistently held that claims become moot when the requested relief is provided

through other means. Heckman, 369 S.W.3d at 162; Williams, 52 S.W.3d at 184.

Additionally, where a statute or agency policy is repealed or fundamentally altered,

the basis for the challenge no longer exists. Heckman, 369 S.W.3d at 162. Here, the

TEA’s provision of school performance data renders the School Board Intervenors’

claims unnecessary.

~ 25 ~ Because the School Board Intervenors have obtained access to their A–F

accountability ratings and no longer present a live controversy, their claims are moot.

As a result, this Court lacks jurisdiction, and their appeal should be dismissed.

PRAYER

For the reasons stated above, Plaintiff-Appellee School Districts respectfully

request that this Court: (1) Dismiss the School Board Intervenors’ claims as they are

not parties to the lawsuit, and therefore lack standing; or (2) Affirm the trial court’s

order dismissing the School Board Intervenors from the lawsuit, as the trial court did

not abuse its discretion in dismissing them for want of prosecution and lack of a

justiciable interest; or (3) Dismiss the School Board Intervenors’ appeal as moot,

given that they have already obtained the relief they seek and this Court lacks

jurisdiction over their claims.

Respectfully submitted, By: /s/ Kevin O’Hanlon Kevin O’Hanlon kohanlon@808west.com State Bar No. 15235500 Benjamin Castillo bcastillo@808west.com State Bar No. 24077194 Nick Maddox nmaddox@808west.com State Bar No. 24092739

~ 26 ~ Edward Smith esmith@808west.com State Bar No. 24037790

O’HANLON, DEMERATH & CASTILLO 808 West Ave. Austin, Texas 78701 (512) 494-9949 (512) 494-9919 (facsimile) Counsel for Plaintiff-Appellee School Districts

~ 27 ~ CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that

based on the word count of the computer program used to prepare the foregoing

document, the relevant sections of this document contain 4,919 words.

/s/ Kevin O’Hanlon Kevin O’Hanlon

CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. P. 9.5(e), an automated certificate of service will be

generated when this document is e-filed.

~ 28 ~ 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.

Lea Ohrstrom on behalf of Kevin O'Hanlon Bar No. 15235500 lohrstrom@808west.com Envelope ID: 98320842 Filing Code Description: Motion Filing Description: Plaintiff-Appellee School Districts??? Brief and Motion to Dismiss Status as of 3/11/2025 3:04 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Byron K.Henry byron.henry@solidcounsel.com 3/11/2025 1:37:03 PM SENT

Kevin O'Hanlon 15235500 kohanlon@808west.com 3/11/2025 1:37:03 PM SENT

Melissa Diaz melissa.diaz@solidcounsel.com 3/11/2025 1:37:03 PM SENT

Lea Ohrstrom lohrstrom@808west.com 3/11/2025 1:37:03 PM SENT

Walker StevenYoung walker.young@solidcounsel.com 3/11/2025 1:37:03 PM SENT

Edward Smith esmith@808west.com 3/11/2025 1:37:03 PM SENT