In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-25-00079-CV
SULPHUR SPRINGS INDEPENDENT SCHOOL DISTRICT, DEANA STEEBER, PAT LEBER, BRAD MOUGHON, JUSTIN COWART, AND SASHA POSEY, Appellants
V.
CARY BARNETT, Appellee
On Appeal from the 62nd District Court Hopkins County, Texas
Trial Court No. CV45726
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
Appellee, Cary Barnett, sued Sulphur Springs Independent School District (SSISD) and several of its administrators after his employment as a certified peace officer with SSISD was terminated. Appellants, SSISD, Deana Steeber, Pat Leber, Brad Moughon, Justin Cowart, and Sasha Posey, filed a plea to the jurisdiction, which the trial court denied as moot. On appeal, Appellants challenge the trial court’s decision on the merits. For reasons set forth below, and on terms set forth herein, we remand to the trial court. I. Background, Hearing, and Trial Court Ruling A. Factual Background As alleged by Barnett’s live petition,1 Barnett was employed by SSISD as a campus-
peace officer. Barnett observed that Posey, a primary school principal, allowed “doors to the school to be propped open without supervision when students were present.” Barnett brought this practice to Posey’s attention. Barnett believed this practice to be in violation of Section 61.1031 of the Texas Administrative Code.2 See 19 TEX. ADMIN. CODE § 61.1031. (Tex. Educ. Agency, School Safety Requirements). Posey did not change the practice. Barnett reported his observations to Leber, the SSISD police chief. Leber did not change the practice. Barnett
1 This is done for purposes of our review of issues raised by Appellants at the outset of the case. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012) (“We construe the plaintiff’s pleadings liberally, taking all factual assertions as true, and look to the plaintiff’s intent.”); TexAmericas Ctr. v. Hooks Indep. Sch. Dist., No. 06- 25-00067-CV, 2026 WL 516453, at *3 (Tex. App.—Texarkana, Feb. 25, 2026, pet. denied) (mem. op.) (“We construe the pleadings liberally in favor of the pleader.” (quoting Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024) (per curiam))). 2 This regulation of the Texas Education Agency “implements Senate Bill 838 and House Bill (HB) 3, 88th Texas Legislature, Regular Session, 2023, and clarifies requirements for school safety to ensure a safe and secure environment in Texas public schools.” 49 Tex. Reg. 5769, 5769 (2024) (effective Aug. 11, 2024).
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reported his observations to Cowart, the SSISD assistant superintendent. Cowart did not change the practice. Leber and Cowart, however, told Posey that Barnett had spoken to them about Posey. Posey then began to harass Barnett. Barnett reported Posey’s harassment, and Leber’s and Cowart’s failure to correct Posey, to the Region VIII Education Service Center3 Auditor and to the Texas Education Agency (TEA).4 Barnett was later terminated by Steeber, the SSISD superintendent. Barnett initiated a grievance. Leber denied Barnett’s grievance at the first level of review. Moughon, another SSISD assistant superintendent, denied Barnett’s grievance at the second level of review. The SSISD school board then denied the appealed grievance yet again.
B. Procedural Background In his original petition of November 27, 2024, Barnett sued SSISD and the Individual Defendants (Posey, Leber, Cowart, Moughon, and Steeber) for violation of the Texas Whistleblower Act,5 denial of due process under Section 614.023 of the Texas Government Code, and denial of free speech. See TEX. GOV’T CODE ANN. 614.023. Barnett sought reinstatement, damages under the Whistleblower Act, and attorney’s fees.
3 “Education Service Centers . . . are the middle rung of Texas’s three-tiered education system, situated between local school districts and the Texas Education Agency and State Board of Education.” Educ. Serv. Ctr. Region 2 v. Global Spectrum, LP, No. 13-21-00071-CV, 2022 WL 2348059, at *3 (Tex. App.—Corpus Christi–Edinburg June 30, 2022, no pet.) (mem. op.) (citing San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex. 1996); TEX. EDUC. CODE ANN. §§ 8.001–.124). “The state is divided into twenty regions, and each Education Service Center (ESC) serves the various school districts within its region.” Id. (citing TEX. EDUC. CODE ANN. § 8.001). 4 What those reports led to, if anything, is not in our record.
5 See TEX. GOV’T CODE ANN. §§ 554.001–.010.
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SSISD and the Individual Defendants answered Barnett’s original petition on February 17, 2025. They generally denied Barnett’s petition. They asserted that Barnett had been terminated for reasons other than those set forth in Barnett’s petition.6 Their answer included a plea to the jurisdiction.7 They asserted that Barnett had failed to exhaust administrative remedies with the TEA prior to filing suit. SSISD and the Individual Defendants sought dismissal of Barnett’s case in its entirety.
On June 23, 2025, Barnett responded to SSISD and the Individual Defendants’
jurisdictional plea. In addition, Barnett filed a first amended petition. The amended petition added claims under 42 U.S.C. Section 1983. See 42 U.S.C. § 1983. Barnett’s first amended petition linked his Section 1983 claim to his claims based on Texas law. For example, Bennett states in his first amended petition, “Plaintiff’s wrongful termination was ratified by the governing body of Defendant [SSISD] in violation of Texas Constitution, Art. I, § 8 and 42 U.S.C. § 1983.”
After filing an amended petition, Barnett filed a supplemental response to the jurisdictional plea. Barnett urged that, in light of his new petition, the plea to the jurisdiction should be denied as moot.
C. Hearing in the Trial Court On August 18, 2025, the trial court held a non-evidentiary hearing on SSISD and the Individual Defendants’ plea to the jurisdiction.
6 Again, factual disputes are not before us at this stage. See Heckman, 369 S.W.3d at 150.
7 Their answer also included a motion to dismiss under Rule 91a of the Texas Rules of Civil Procedure, which is not at issue here. See TEX. R. CIV. P. 91a.
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During the hearing, SSISD and the Individual Defendants urged that “what [Barnett has]
done here is . . . taken a wrongful termination claim and turned it into a constitutional law claim or a Whistleblower Act claim to try to circumvent that administrative exhaustion requirement.” To some extent, SSISD and the Individual Defendants acknowledged that Barnett’s new petition had changed things: “[Barnett is] right on you can make constitutional law claims.” Nonetheless, SSISD and the Individual Defendants urged that “if [Barnett is] trying to seek the same thing he could have gotten in an administrative appeal then he was required to go through the exhaustion requirement.” SSISD and the Individual Defendants urged that applied to all of Barnett’s claims: “[I]t doesn’t matter whether it’s coming under constitutional law claim or a state law claim or whistleblower law claim.”
The trial court probed that contention by asking, “Can you get monetary damages from the Commissioner[ meaning the TEA]?” SSISD and the Individual Defendants responded, “It’s not called that. No, Your Honor. I’ll tell you no.”
Barnett argued that SSISD and the Individual Defendants had not filed a new plea to the jurisdiction to address his new petition. Barnett claimed the plea to the jurisdiction was moot. Barnett asserted that the scope of claims subject to administrative exhaustion at the TEA is narrow, and that the claims asserted by Barnett are not subject to that requirement. Barnett asserted that “government[al] immunity doesn’t apply to the state law claims under the Constitution because we’re not seeking damages.” Barnett also urged that governmental immunity “does not preclude prospective injunctive remedies in official capacity suits against government actors who violate statutory or constitutional provisions.” Barnett urged, “[Y]ou
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cannot terminate a police officer for speaking out on a matter of public concern, and locking school doors two years ago was a matter of enormous public concern.”
On August 19, 2025, the trial court denied SSISD and the Individual Defendants’ plea to the jurisdiction, specifically ordering that “Defendants’ Plea to the Jurisdiction should be and is hereby denied as moot.”
On August 25, 2025, SSISD and the Individual Defendants filed a “supplemental brief”
in the trial court regarding the already-denied plea to the jurisdiction.
From the August 19 order, SSISD and the Individual Defendants appeal.8 II. Standard of Review “The trial court’s ruling on a plea to the jurisdiction is a question of law we review de novo.” Herrera v. Mata, 702 S.W.3d 538, 541 (Tex. 2024) (per curiam) (citing Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016)); see City of Houston v. Gomez, 716 S.W.3d 161, 164 (Tex. 2025) (per curiam) (“We review the denial of a plea to the jurisdiction de novo.”) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)).
That said, the steps involved in conducting that review can vary depending on the allegations and how they were addressed in the trial court. See Miranda, 133 S.W.3d at 226–29 (discussing review under various situations, including when “a plea to the jurisdiction challenges the pleadings,” as well as when “a plea to the jurisdiction challenges the existence of
8 Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code allows an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Supp.). School districts are governmental units. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B).
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jurisdictional facts”); City of Austin v. Powell, 704 S.W.3d 437, 447–48 (Tex. 2024) (a plea to the jurisdiction may “be like a no-evidence motion,” or it “may mirror a traditional motion for summary judgment,” or it “may be like a hybrid motion for summary judgment”).
A. Overview for Purposes of Assessing the Process of Review To determine the appropriate steps to take in our de novo review, we conduct an overview of the appeal. See id. In three issues, Appellants challenge the merits of the trial court’s denial of their plea to the jurisdiction. Appellants claim Barnett’s causes of action are barred because (1) “[t]he Texas Tort Claims Act bars [Barnett’s] complaints against the individually named defendants in both their individual and official capacities,” (2) his “Civil Conspiracy complaint does not create an independent cause of action,” and (3) his “Claims are barred because he failed to exhaust his administrative remedies.”9 Though the trial court denied Appellants’ plea to the jurisdiction as moot, the Appellants do not address whether their plea to the jurisdiction was mooted by Barnett’s amended petition.10 Regarding Appellants’ second issue, the Appellants’ arguments regarding Barnett’s civil conspiracy claims are outside of the plea to the jurisdiction in the trial court. Barnett’s amended petition alleged, among other things, that “Defendants conspired in violation of [Section] 1983 to infringe on Plaintiff’s civil rights.” Appellants’ plea to the jurisdiction, however, makes no
9 Notably, Barnett’s response to Appellants’ plea and motion states that he brought no claims under the Texas Tort Claims Act, and Barnett’s conspiracy claim was not raised until his first amended petition, as a claim under Section 1983 for conspiracy to deprive him of his civil rights. On August 25, 2025, the Appellants filed a “supplemental brief” in the trial court regarding the already-denied plea to the jurisdiction. 10 The terms “moot” and “mooted” do appear in Appellants’ brief, but not in relation to Appellants’ plea to the jurisdiction. Instead, Appellants assert that it is Barnett’s claims that would have been mooted, if he had pursued administrative remedies, and won in an administrative hearing.
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mention of conspiracy or Section 1983. Nonetheless, Appellants argue against Barnett’s civil conspiracy allegations.
Regarding Appellants’ third issue, they assert administrative exhaustion-of-remedies grounds not raised in the trial court, including exhaustion under the Texas Commission on Human Rights Act and the Whistleblower Act. See TEX. LAB. CODE ANN. § 21.001(4); TEX. GOV’T CODE ANN. §§ 554.002–.006.
Barnett defends the trial court’s mootness finding. Barnett asks that this Court find briefing waiver against Appellants for their failure to address the trial court’s order on its own terms. See TEX. R. APP. P. 38.1. Regarding Appellants’ second issue, Barnett asserts, “The trial court simply did not address any arguments on the civil conspiracy claim.” Barnett asks that Appellants’ second issue “be remanded to the trial court for initial consideration.”
B. Immunity-from-Suit Inquiry As noted above, we conduct a de novo review of jurisdictional matters. Herrera, 702 S.W.3d at 541. Not only is our review de novo, but regarding immunity from suit, it can be sua sponte. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 743 (Tex. 2019).11 “Immunity from suit recognizes the judiciary’s limited authority over its sovereign creator and thus implicates the courts’ subject-matter jurisdiction to resolve a dispute against the state.” Id. at 746.12
11 The Texas Supreme Court held, “because RDC’s appellate arguments assumed its immunity from suit—a matter implicating subject-matter jurisdiction—the court considered sua sponte whether RDC actually enjoys such immunity.” Rosenberg Dev. Corp., 571 S.W.3d at 743. 12 “Political subdivisions of the state—such as counties, cities, and school districts—are not sovereign entities, but under the governmental-immunity doctrine, they share the state’s immunity when performing governmental
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C. Mootness Inquiry At the time of the trial court’s hearing, Barnett had filed an amended petition and had asserted in his supplemental response that the Appellants’ plea to the jurisdiction (which had been filed against Barnett’s original petition) was “moot.” Likewise, on appeal, Barnett asserts that the Appellants’ plea to the jurisdiction is moot.
A more technical, but cumbersome, way to say it would be that the earlier plea has become “procedurally outdated” by the amended petition so as to require a new analysis. This is for two reasons. First, “[w]hen assessing a plea to the jurisdiction, our analysis begins with the live pleadings.” Heckman, 369 S.W.3d at 150 (emphasis added). Second, an amended petition does not automatically nullify a prior plea to the jurisdiction but instead creates the need to compare the new petition to the earlier plea. Harris Cnty. v. McFarland, No. 01-24-00331-CV, 2025 WL 51847, at *5 (Tex. App.—Houston [1st Dist.] Jan. 9, 2025, pet. denied) (mem. op.) (“Because McFarland’s Third Amended Petition did not advance any new claims not previously addressed in Harris County’s Plea, we hold the Plea was not moot.”); Edcouch-Elsa Indep. Sch. Dist. v. Cabrera, No. 13-21-00365-CV, 2022 WL 3257377, at *2 (Tex. App.—Corpus Christi–
functions as the state’s agent.” Id. at 746 (footnote omitted) (citation omitted). This immunity “extends to those government officers who are acting consistently with the law, which includes those who act within their granted discretion.” Houston Belt & Terminal Ry., 487 S.W.3d at 164. “Whether governmental immunity has been waived in a given case implicates subject-matter jurisdiction.” Herrera, 702 S.W.3d at 541 (quoting San Jacinto River Auth. v. City of Conroe, 688 S.W.3d 124, 130 (Tex. 2024)). “In Texas, the immunity doctrine has two aspects: (1) immunity from suit even when the sovereign’s liability is not disputed and (2) immunity from liability even though the sovereign has consented to the suit.” Rosenberg Dev. Corp., 571 S.W.3d at 746. “One component of such immunity—immunity from suit—implicates a court’s subject matter jurisdiction and is thus properly raised in a plea to the jurisdiction.” Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 182 (Tex. 2023) (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex. 2023)). “A court that raises a jurisdictional issue does not aim to serve the interests of one side or the other. Instead, such a court discharges its duty to ensure that the court itself is functioning in an authorized and properly judicial capacity.” Sampson, 500 S.W.3d at 384.
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Edinburg Aug. 11, 2022, no pet.) (mem. op.) (describing the question presented as whether the live petition “cure[d]” the earlier plea).13 If the outcome of the comparison is that the new petition cures the jurisdictional defects alleged in the earlier plea, then it can be said that the earlier plea has been rendered moot. See Harris Cnty., 2025 WL 51847, at *5; Edcouch-Elsa, 2022 WL 3257377, at *2. Complicating matters, an amended petition can cure some defects set forth in an earlier plea to the jurisdiction, but not others. City of San Antonio v. Reyes, No. 04- 16-00748-CV, 2017 WL 3701772, at *4 (Tex. App.—San Antonio Aug. 23, 2017, no pet.) (mem. op.).14 Again, we conduct a de novo review of jurisdictional matters. Herrera, 702 S.W.3d at 541. Our mootness inquiry, therefore, is a de novo assessment of whether the amended petition cured the jurisdictional defects set forth in the earlier plea to the jurisdiction. See Harris Cnty., 2025 WL 51847, at *5; Edcouch-Elsa, 2022 WL 3257377, at *2; City of San Antonio, 2017 WL 3701772, at *4.
13 The Thirteenth Court of Appeals held, “Because EEISD’s plea to the jurisdiction addresses the same claims which exist in the live petition—and for reasons discussed below, the amended petition did not allege facts which would cure EEISD’s challenge—EEISD’s plea to the jurisdiction was not rendered moot by Cabrera’s amended petition.” Edcouch-Elsa, 2022 WL 3257377, at *2. 14 In City of San Antonio, the court held,
Reyes and Aguirre assert the City’s plea to the jurisdiction became moot when they amended their pleading to cure any pleading defects, thereby requiring a new plea to the jurisdiction to challenge the existence of jurisdictional facts.
When Reyes and Aguirre amended their petition, they cured only the first challenge. That is, they alleged facts sufficient to assert waiver of the City’s governmental immunity. The amendment did not address or cure the City’s second challenge—that the trial court lacked jurisdiction because it was entitled to the emergency exception to any waiver of immunity.
City of San Antonio, 2017 WL 3701772, at *4.
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D. Manner of Review As noted above, de novo review of immunity can be done in any number of ways. See Miranda, 133 S.W.3d at 226–29. Neither Appellants nor Barnett argue in their briefs which way should be used here. III. Analysis We begin with the immunity-from-suit inquiry.
Given the circumstances here, SSISD does not have immunity from suit regarding Barnett’s claims under the Texas Whistleblower Act. We examine this sua sponte because immunity from suit, and thus subject matter jurisdiction, is “interwoven” into the Whistleblower Act analysis. Tex. Health & Hum. Servs. Comm’n v. Pope, 674 S.W.3d 273, 280 (Tex. 2023) (citing State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009); TEX. GOV’T CODE ANN. §§ 554.003(a), 554.0035).15 As whistleblower facts, Barnett alleges he made good faith reports to the Auditor of the Region VIII Education Service Center and TEA. For argument’s sake, we treat Appellants’ general denial as being incorporated into the plea to the jurisdiction, and thus, as a challenge to Barnett’s whistleblower facts.16 That places a burden akin to traditional summary
15 “Although immunity from suit is a jurisdictional question generally distinct from immunity from liability, we have held the two are interwoven in the context of the Whistleblower Act, which requires plaintiffs to allege jurisdictional facts giving rise to an actual violation of the Act to qualify for the statutory waiver of immunity.” Tex. Health & Hum. Servs. Comm’n, 674 S.W.3d at 280 (citing Lueck, 290 S.W.3d at 881 (Tex. 2009); TEX. GOV’T CODE ANN. §§ 54.003(a), 554.0035). 16 “Typically, the plea challenges whether the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. However, a plea to the jurisdiction can also properly challenge the existence of those very jurisdictional facts.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (footnote omitted) (citation omitted).
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judgment on Appellants regarding those facts.17 SSISD’s plea to the jurisdiction was not supported by affidavit evidence. Nor did SSISD offer any evidence during the hearing in the trial court. We therefore find that, on de novo review, and using a process akin to traditional summary judgment, SSISD has not shown immunity from suit regarding Barnett’s Texas Whistleblower Act claims.
As for the Individual Defendants, given the circumstances here, the election of remedies provided for in the Texas Tort Claims Act does not bar Barnett’s claims. “Section 101.106 of [the Texas Civil Practice and Remedies Code,] the Tort Claims Act alters the common-law scheme by requiring plaintiffs to choose between suing the governmental unit under the Act and suing a responsible employee in an individual capacity.” Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.106). “Section 101.106 ‘force[s] a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.’” Id. (alteration in original) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)). “Under section 101.106(f), a
17 In Pope, the Texas Supreme Court held,
When a plea to the jurisdiction challenges the existence of alleged jurisdictional facts, such as those necessary to establish a claim under the Whistleblower Act, “we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim.”
Tex. Health & Hum. Servs. Comm’n, 674 S.W.3d at 281 (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770–71 (Tex. 2018)). “In those situations, a trial court’s review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion. Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction.” Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635 (footnote omitted) (citations omitted); see Tex. Health & Hum. Servs. Comm’n, 674 S.W.3d at 281 (“A defendant that files a plea to the jurisdiction has the initial burden of meeting the summary judgment standard of proof for its assertion that the courts lack jurisdiction . . . .”).
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governmental employee may move to dismiss a suit that is ‘considered to be against the employee in the employee’s official capacity only.’” Seward v. Santander, 713 S.W.3d 341, 353 (Tex. 2025) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f)). “By adopting [S]ection 101.106(f), the Legislature has effectively mandated that only a governmental unit can be sued for a governmental employee’s work-related tortious conduct.” Garza, 574 S.W.3d at 393–94. However,
[w]e held in Cannon that an employee’s right under [S]ection 101.106(e) to “immediately be dismissed” could not be effectuated without an order by the court, and before such an order issued, a plaintiff was not precluded from nonsuiting the tort claims to be dismissed and adding a claim not “under the Act”—in that case a federal civil-rights claim.
Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530, 537 (Tex. 2017) (quoting Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 416–18 (Tex. 2015)). “[S]ubsection 101.106(e) does not contemplate or require dismissal of [S]ection 1983 claims against individual government employees, or any other claim not brought under the Tort Claims Act.” Cannon, 453 S.W.3d at 416. Here, the trial court had not ruled on Appellants’ plea to the jurisdiction at the time of Barnett’s amended petition. Accordingly, Barnett was free to add Section 1983 and other claims falling outside the Tort Claims Act against the Individual Defendants. See id. This, however, leads to the mootness inquiry.
Section 1983 and conspiracy-to-violate-civil-rights claims are among the differences seen when comparing Appellants’ plea to the jurisdiction to Barnett’s amended petition. This squarely raises a question of whether the amended petition cured the jurisdictional complaints lodged in the plea to the jurisdiction. See Harris Cnty., 2025 WL 51847, at *5; Edcouch-Elsa,
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2022 WL 3257377, at *2; City of San Antonio, 2017 WL 3701772, at *4. This case, however, is now on appeal. Review is de novo. Herrera, 702 S.W.3d at 541. “But . . . a plaintiff may not have had fair opportunity to address jurisdictional issues by amending its pleadings or developing the record when the jurisdictional issues were not raised in the trial court.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex. 2000)). Barnett asks for such an opportunity. We believe that Barnett should have that opportunity. Accordingly, we address Appellants’ first and second issues by remanding for further proceedings consistent with this opinion.
That leaves Appellants’ third issue, administrative exhaustion. Here, by asserting new exhaustion grounds, Appellants present what amounts to an amended plea to the jurisdiction. Generally, “[i]f [a] party files suit before exhausting exclusive administrative remedies, the courts lack jurisdiction and must dismiss the case.” Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016) (citing City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam)). Under some circumstances, however, exhaustion can be waived. See Oncor Elec. Delivery Co. NTU, LLC v. Wilbarger Cnty. Appraisal Dist., 691 S.W.3d 890, 907 n.17 (Tex. 2024) (citing Tex. Disposal Sys. Landfill, Inc. v. Travis Cent. Appraisal Dist. by & through Crigler, 694 S.W.3d 752, 760 & n.40 (Tex. 2024)). As this was not examined in the trial court, this too warrants remand. See Rusk State Hosp., 392 S.W.3d at 96.
With one exception: exhaustion regarding “school law” claims was before the trial court.
The Texas Supreme Court, however, has spoken to what that exhaustion doctrine does, and does not cover. See McIntyre v. El Paso Indep. Sch. Dist., 499 S.W.3d 820, 823 (Tex. 2016). “[T]he
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Legislature intended the Commissioner of Education’s authority to be more limited. Employment-contract disputes aside, exhaustion is only required when a person is aggrieved by the school laws or a district’s violation of them.” Id. at 827. “The McIntyres’ grievance is not with the school laws, but with the District’s alleged violation of their constitutional rights. Exhaustion is not required.” Id. at 828. The Appellants were aware of McIntyre because Barnett cited it repeatedly in the trial court. Appellants, however, did not address McIntyre in their brief to this Court. Because exhaustion is generally jurisdictional, we conducted our own review. See Clint Indep. Sch. Dist., 487 S.W.3d at 544; Rosenberg Dev. Corp., 571 S.W.3d at 743. In McIntyre, the Texas Supreme Court gave examples as guidance on how to implement its holding. See McIntyre, 499 S.W.3d at 826–28. For example, suppose that “a school district suppressed student speech and engaged in viewpoint discrimination.” Id. at 827. “The Education Code broadly empowers school officials to maintain law and order . . . .” Id. (citing TEX. EDUC. CODE ANN. § 37.001–.313). But under that circumstance, “[t]he student would be aggrieved by the school district’s violation of the First Amendment, not by the Education Code’s authorization to maintain order.” Id. at 728. That is an apt analogy for the circumstances here. Assuming without deciding that Section 61.1031 constitutes a “school law,” Barnett alleges that he has been aggrieved by SSISD’s violation of the Texas Whistleblower Act, and by the Individual Defendants’ violations of his civil rights. Accordingly, we rule against Appellants regarding administrative exhaustion under the Education Code. As a result, we dispose of Appellants’ third issue by remanding for the trial court to consider Appellants’ new theories of administrative exhaustion, but only the new theories.
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We therefore affirm-in-part the trial court’s judgment. We also reverse-in-part, but not because we find error in the trial court’s judgment, but because it has been procedurally eclipsed by what amounts to an amended plea to the jurisdiction presented in the Appellants’ brief to this Court. IV. Conclusion For reasons set forth above, and on the terms set forth above, we affirm-in-part, reverse-
in-part, and remand to the trial court for further proceedings consistent with this opinion.
Jeff Rambin
Justice
Date Submitted: December 17, 2025 Date Decided: August 31, 2026