Mike Morath in His Official Capacity as the Commissioner of Education v. Kingsville ISD
Opinion
ACCEPTED
15-24-00007-CV
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
12/13/2024 5:58 PM
No. 15-24-00007-CV CHRISTOPHER A. PRINE CLERK
FILED IN
15th COURT OF APPEALS
IN THE FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 12/13/2024 5:58:29 PM
OF TEXAS
CHRISTOPHER A. PRINE
Clerk
Michael Morath, in his Official Capacity as Texas Commissioner of Education
Appellant
v.
Kingsville Independent School District, et al.
Plaintiff-Appellee School Districts
and
Pflugerville Independent School District, et al.
Intervenor-Appellee School Districts
On Appeal from the 419th District Court of Travis County
Appellee School Districts’
Joint Brief Regarding Jurisdiction
TO THE HONORABLE COURT:
The Appellee School Districts respectfully submit this supplemental brief requested by the Court on the issue of whether Section 39.151 of the Education Code deprives the trial court of jurisdiction.
Appellees recognize that jurisdictional issues may be raised for the first
time on appeal. See, e.g., Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018). But it is telling that the Commissioner, who has been ably represented by experienced legal counsel throughout this case, has never argued that Section 39.151 deprives the courts of jurisdiction in this case. There are at least six reasons why such an argument lacks merit and cannot be adopted by this Court.
First, the exhaustion of administrative remedies doctrine does not apply to ultra vires claims. Lazarides v. Farris, 367 S.W.3d 788, 798 (Tex. App.— Houston [14th Dist.] 2012, no pet.); see also City of Houston v. Williams, 99 S.W.3d 709, 717 (Tex. App.–Houston [14th Dist.] 2003, no pet.) (explaining the related principle that exhaustion of administrative remedies is also not required when an agency attempts to exercise authority beyond its statutorily conferred powers); Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 401 (Tex. App.—Houston [14th Dist.] 1999, no writ) (same).; Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex. App.—Dallas 1994, writ denied) (same). That makes sense because properly understood, ultra vires claims are not exceptions to immunity; “rather, when a governmental officer is sued for allegedly ultra vires acts, governmental immunity does not apply from the outset.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 n.1 (Tex. 2016). Here, Appellees have alleged ultra vires claims. The
Legislature could have written a single statute that said, “The Commissioner may assign A-F Ratings whenever and however he would like to do so.” The Legislature did not create that scenario for unfettered bureaucratic discretion in the A-F ratings process. (In other words, the Legislature did not declare Calvinball “rules” for such an important process.) Instead, the Legislature adopted a detailed A-F ratings process that requires the Commissioner to implement the accountability system by adopting rules in a manner that provides a transparent, effective, and fair system. See Tex. Educ. Code §§ 39.001–39.408.
Second, exhaustion of administrative remedies is not required when the case is “controlled by pure questions of law.” Clint Ind. Sch. Dist. v. Marquez, 487 S.W.3d 538, 545–46 (Tex. 2016). If there were fact questions in this case regarding the temporary injunction or plea to the jurisdiction, the Court would be required to defer to the trial court’s resolution of any conflicting evidence, see Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002), and “indulge every reasonable inference and resolve any doubts in” favor of the school districts. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229 (Tex. 2004). But in this case, the Commissioner has not disputed any of the evidence. The issues in this case present pure questions of law that can be decided based on the undisputed evidence in the record.
Third, even if the exhaustion doctrine did apply, the text of the statute forecloses any exhaustion of administrative remedies argument. Section 39.151 provides no avenue to challenge the Commissioner’s actions in this case. Section 39.151(a) states that the Commissioner “by rule shall provide a process for a school district or open-enrollment charter school to challenge an agency decision made under this chapter relating to an academic or financial accountability rating that affects the district or school, including a determination of consecutive school years of unacceptable performance ratings.” Tex. Educ. Code § 39.151(a) (emphasis added). Appellees are unaware of any rule the Commissioner adopted for the 2022–23 school year that provided any process for them to challenge the Commissioner’s actions described in the pleadings in this case. The Commissioner has not identified any such rule.
Fourth, even if the exhaustion doctrine applied and the Commissioner had adopted rules, the rules would not have allowed school districts to challenge the Commissioner’s ultra vires actions. At the time of the hearing no accountability rules for the 2022–23 school year had been adopted. However, the Commissioner had published proposed rules, which were later adopted, and those rules do not provide an administrative appeal that would have allowed school districts to challenge the Commissioner’s adoption or
implementation of the accountability system. 3 RR 1023 (Intervenors’ Exh. 16). The proposed 2023 Accountability Manual (Plaintiffs’ Exhibit 7), which had not been adopted at the time of the underlying hearing, contemplated an appeals process that would not have allowed school districts to challenge the Commissioner’s ultra vires actions. Indeed, the proposed rules state that “a successful accountability appeal is usually limited to such rare cases as a data or calculation error attributable to the testing contractor(s), a regional education service center (ESC), or the Texas Education Agency (TEA). 3 RR 252 (P7, 000244). The proposed manual further states that “[t]he basis for appeals should be a data or calculation error attributable to TEA, an ESC, or the testing contractor(s).” 3 RR 253 (P7, 000245).1 Fifth, even if the exhaustion doctrine applied and the Commissioner had adopted rules that would have allowed school districts to raise the issues in this lawsuit in that administrative appeal, exhaustion would not be required
1 Indeed, at oral argument, the Commissioner, consistent with these past representations, stated that the appeals process under his rules is “usually sort of a mathematical” and is “not usually a constitutional challenge or anything like that.” The Commissioner further explained that it “is a process that districts can go through if they think that something had been incorrectly done with their ratings.” It is not a process that would allow school districts to challenge whether the Commissioner had acted ultra vires in his adoption and implementation of rules (or his failure to adopt and implement rules) regarding the accountability system.
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