Tammie Y. Moore and Madison A. Moore-Lynch v. Kenn Franklin, Matt Calvert, and New Caney Independent School District

• Court: Court of Appeals of Texas
• Decided: September 14, 2023
• Docket: 09-21-00102-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00102-CV __________________

TAMMIE Y. MOORE AND MADISON A. MOORE-LYNCH, APPELLANTS

V.

KENN FRANKLIN, MATT CALVERT, AND NEW CANEY INDEPENDENT SCHOOL DISTRICT, APPELLEES __________________________________________________________________

On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 20-06-06608-CV __________________________________________________________________

MEMORANDUM OPINION

Tammie Y. Moore and Madison A. Moore-Lynch appeal the trial court’s order

dismissing their suit against New Caney Independent School District (“District”),

Superintendent Kenn Franklin, and its Deputy Superintendent, Matt Calvert, with

prejudice. The Moores sued the defendants for allegedly violating district policy by

issuing Madison a diploma without a magna cum laude distinction. The defendants

filed a Plea to the Jurisdiction, alleging governmental immunity defeated the trial

1 court’s authority to hear the case. For the reasons discussed below, we affirm the

trial court’s order.

BACKGROUND

In 2020, Madison graduated from a District high school in the top 10% of her

class. That year, the District recognized honor graduates by issuing them a diploma

with either magna cum laude (top 5%) or cum laude (top 15%) distinction. Madison

received a diploma with cum laude distinction. In preceding years, the District

recognized three distinction levels: summa cum laude (top 5%), magna cum laude

(top 10%), and cum laude (top 15%). Prior to graduation, Tammie, Madison’s

mother, complained to the administration that Madison’s academic achievement

mandated magna cum laude distinction.

On February 5, 2021, the Moores filed “Plaintiffs’ Original Complaint” suing

the District, Franklin, and Calvert; however, said Complaint did not allege or plead

any jurisdictional basis. The Moores alleged “district policy” mandated Madison

receive magna cum laude distinction for graduating in the top 10% of her class. The

Moores claimed Franklin and Calvert “negligently carried out their discretionary

powers,” or acted ultra vires, by issuing Madison a diploma with a cum laude

distinction. Thereafter, the defendants filed “Defendants’ Plea to the Jurisdiction”,

alleging governmental immunity defeated the trial court’s subject-matter jurisdiction

over the suit. The defendants alleged that neither the Texas Tort Claims Act

2 (“TTCA”) nor any other statute waived the District’s immunity from the suit. The

defendants also alleged that Franklin and Calvert maintained immunity in their

official capacities because the Moores failed to plead or set forth any facts to allege

a valid ultra vires claim.

In response to the Plea to the Jurisdiction, the Moores filed “Plaintiffs’ First

Amended Petition” addressing subject matter jurisdiction for the first time, and

alleging immunity had no application to the suit relying upon the Discretionary

Powers pursuant to Section 101.056. More specifically, the Moores alleged the

defendants exercised their discretionary function by issuing Madison a diploma with

cum laude distinction. Therefore, the Moores argued the trial court’s subject-matter

jurisdiction over the suit was proper under the TTCA’s discretionary function

exception. See Tex. Civ. Prac. & Rem. Code Ann. § 101.056. In addition, and in the

alternative, the Moores alleged that Franklin’s and Calvert’s actions constituted ultra

vires acts, which prevents them from relying on a claim of official immunity,

because they failed to act within the scope of their authority when they failed to

“carry out the District’s policy with respect to" awarding the proper Latin Honors.

Prior to the plea hearing, the Moores asked for a continuance based on the

lack of discovery, but the defendants argued discovery would be futile because the

Plaintiffs’ First Amended Petition contained “incurable defects in subject matter

jurisdiction.” During the hearing, the trial court refused to address the Moores’

3 discovery request for procedural reasons. The trial court ultimately signed an “Order

Concerning Plea to the Jurisdiction”, granting the plea as to each defendant and

dismissing the suit with prejudice, for lack of subject-matter jurisdiction.

ANALYSIS

In six issues, the Moores challenge the trial court’s order dismissing their suit

with prejudice. Specifically, the Moores question whether: (1) the trial court erred

in failing to examine governmental immunity in the context of property right

protections and due process; (2) the trial court erred in failing to allow them the

opportunity to amend their property right claims to the extent they were allegedly

deficient; (3) protection of “property rights” pierce governmental immunity and

confers jurisdiction and whether the District’s policy of awarding Latin honors

creates a property right; (4) the modification of privileges/benefits associated with a

property right in a diploma should be afforded due process protections; (5) fact

questions precluded granting the plea to the jurisdiction; and (6) there are sufficient

fact questions in the record to preclude a dismissal of their ultra vires claims. For

convenience, we consolidate the Moores’ appeal into two overriding issues: whether

the Moores’ pleadings affirmatively demonstrate the trial court’s subject matter

jurisdiction, and, if not, whether the trial court erred in granting the plea without

allowing time for discovery or another opportunity to amend.

4 Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction

and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Whether a trial court has subject

matter jurisdiction is a question of law we review de novo. City of Elsa v. Gonzalez,

325 S.W.3d 622, 625 (Tex. 2010). When a plea challenges the pleadings, as it does

here, we determine whether the plaintiff pleaded facts that affirmatively demonstrate

the trial court’s subject matter jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d

137, 150 (Tex. 2012) (citation omitted). In doing so, we construe the pleadings

liberally, taking all factual assertions as true, and look to the plaintiff’s intent. Id.

(citation omitted). If the pleadings fail to affirmatively demonstrate jurisdiction but

do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of

pleading sufficiency and the plaintiff should be afforded the opportunity to amend.

Miranda, 133 S.W.3d at 226–27 (citation omitted). However, if the pleadings

affirmatively negate jurisdiction, the plea may be granted without allowing the

plaintiff an opportunity to amend. Id. at 227.

Sufficiency of the Pleadings

In their Plea, the defendants argued governmental immunity barred the Moores’

claims. Governmental immunity protects political subdivisions (like the District)

from suits seeking damages unless the Legislature waives immunity by clear and

unambiguous language. Chambers-Liberty Ctys. Navigation Dist. v. State, 575

5 S.W.3d 339, 344 (Tex. 2019) (citations omitted). In similar fashion, official

immunity protects government employees (like Franklin and Calvert) sued in their

official capacities absent ultra vires acts. Franka v. Velasquez, 332 S.W.3d 367, 382–

83 (Tex. 2011). Government employees may assert official immunity from suit

arising “‘from the performance of their (1) discretionary duties in (2) good faith as

long as they are (3) acting within the scope of their authority.’” Id. at 383 (quoting

City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). Therefore, the

defendants enjoy immunity from the Moores’ suit unless the Moores plead facts

affirmatively demonstrating a waiver of immunity.

The TTCA, for instance, waives governmental immunity for three types of

claims when the statutory requirements are met: (1) property damage, personal

injury, and death caused by the operation or use of a motor-driven vehicle or motor-

driven equipment, (2) personal injury and death caused by a condition or use of

tangible personal property, and (3) personal injury and death caused by premises

defects. Tex. Civ. Prac. & Rem. Code Ann. § 101.021; Sampson v. Univ. of Tex. at

Austin, 500 S.W.3d 380, 384 (Tex. 2016). But the TTCA waives a school district’s

immunity only to the extent the school district’s liability arises from the operation

or use of a motor-driven vehicle. Tex. Civ. Prac. & Rem. Code Ann. § 101.051

(“Except as to motor vehicles, this chapter does not apply to a school district or to a

junior college district.”). Because the Moores alleged the defendants’ liability arose

6 from issuing Madison a diploma with cum laude distinction (not from operating or

using a motor-driven vehicle), the Moores failed to allege facts affirmatively

demonstrating the defendants waived immunity under the TTCA.

To be sure, the Moores alleged the defendants “negligently carried out their

discretionary powers” in issuing Madison’s diploma, so they argue the trial court’s

subject-matter jurisdiction over the suit was proper under the TTCA’s discretionary

function exception enumerated in Section 101.056. However, their reliance on the

discretionary function exception is misplaced because it provides that the TTCA’s

limited waiver of immunity “does not apply to a claim arising from a governmental

unit’s performance or nonperformance of an act if the law leaves performance or

nonperformance to the governmental unit’s discretion.” Christ v. Tex. DOT, 664

S.W.3d 82, 88 (Tex. 2023); see Tex. Civ. Prac. & Rem. Code Ann. § 101.056. Since

the Moores alleged their damages arose from the defendants carrying out

“discretionary powers,” the discretionary function exception preserved (rather than

waived) the defendants’ immunity. Id. The Moores’ pleadings fail to affirmatively

demonstrate a viable claim under the TTCA, which means the pleadings failed to

invoke the trial court’s jurisdiction over any negligence claim.

We note that a governmental unit’s immunity does not preclude a suit against a

government official in his official capacity if the plaintiff successfully alleges the

official engaged in ultra vires conduct. Chambers-Liberty, 575 S.W.3d at 344

7 (citation omitted). However, “[t]o fall within this ultra vires exception, a suit must

not complain of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act.” Schroeder v. Escalera Ranch Owners’ Ass’n, 646

S.W.3d 329, 332 (Tex. 2022) (citation omitted). Governmental immunity bars ultra

vires suits complaining of a government officer’s exercise of absolute discretion

(i.e., free decision-making without any constraints) and suits complaining of a

government officer’s failure to perform a ministerial act or his exercise of judgment

or limited discretion without reference to or in conflict with the constraints of the

law authorizing the official act. Hous. Belt & Terminal Ry. Co. v. City of Hous., 487

S.W.3d 154, 161–63 (Tex. 2016).

In their amended pleadings, the Moores alleged Franklin and Calvert

committed an ultra vires act by issuing Madison a diploma with a cum laude

distinction in violation of “district policy.” The District’s internal policies, however,

are not “laws” which limit Franklin’s or Calvert’s authority as superintendent and

deputy superintendent. See City of San Antonio v. Maspero, 640 S.W.3d 523, 530

(Tex. 2022) (stating that a police department’s internal policies, in and of

themselves, are not “laws”); City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.

2009) (asserting that a valid ultra vires claim seeks to require state officials to

comply with statutory or constitutional provisions); Alphonso Crutch Life Support

8 Ctr. v. Williams, No. 03-13-00789-CV, 2015 WL 7950713, at *8 (Tex. App.—

Austin Nov. 30, 2015, pet. denied) (mem. op.) (dismissing ultra vires claim based

on allegations that officials violated their own rules in reaching a decision). We

conclude that Franklin’s and Calvert’s alleged violation of “district policy” does not

equate to an ultra vires act as it does not show that Franklin or Calvert acted without

legal authority or failed to perform a purely ministerial act.

Moreover, a school district’s “superintendent is the educational leader and the

chief executive officer of the school district.” Tex. Educ. Code Ann. § 11.201(a). A

superintendent’s duties are statutorily defined in the Education Code. Id. §

11.201(d). The Moores did not identify any provisions in the Education Code

limiting a superintendent’s discretion to honor students graduating at the top of their

class, and we have not found any. Accordingly, we conclude the Moores failed to

plead facts affirmatively demonstrating the trial court’s jurisdiction over their ultra

vires claim.

Discovery and Opportunity to Amend

Having concluded the Moores’ pleadings fail to affirmatively demonstrate the

trial court’s jurisdiction over their claims, we now turn to whether the trial court

erred in granting their Plea without allowing time for discovery or another

opportunity to amend. A trial court has discretion to deny time for discovery when

the issues can be resolved on the pleadings. See Joe v. Two Thirty Nine Joint Venture,

9 145 S.W.3d 150, 161–62 (Tex. 2004); Miranda, 133 S.W.3d at 227. Here, the

defendants challenged the trial court’s jurisdiction by attacking the pleadings, not

the existence of jurisdictional facts, and the Moores failed to explain how discovery

would have influenced a jurisdictional determination on the pleadings.

Second, the trial court committed no error by granting the Plea without

allowing the Moores another opportunity to amend. “If a plaintiff has been provided

a reasonable opportunity to amend after a governmental entity files its plea to the

jurisdiction, and the plaintiff’s amended pleading still does not allege facts that

would constitute a waiver of immunity, then the trial court should dismiss the

plaintiff’s action.” Sykes, 136 S.W.3d at 639. Such cases should be dismissed with

prejudice because “a plaintiff should not be permitted to relitigate jurisdiction once

that issue has been finally determined.” Id.

The Moores’ Original Complaint failed to even address jurisdiction, but after

the defendants filed their Plea, the Moores amended their petition attempting to cure

the jurisdictional defects. Their attempt was futile, however, because the

jurisdictional bar on their suit arises from the nature of their claims. See Clint Indep.

Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (explaining plaintiff is not

entitled the right to amend when “jurisdictional bar arises not from a lack of factual

allegations but from the nature of the [plaintiff]’s claims”). Stated another way, the

Moores’ pleadings cannot be cured because they seek to hold the defendants liable

10 for discretionary policy decisions which governmental immunity protects. Nettles v.

GTECH Corp., 606 S.W.3d 726, 739 (Tex. 2020) (stating that immunity preserves

separation-of-powers principles by preventing the judiciary from interfering with

policy-making responsibilities committed to other government branches). We

conclude the trial court did not err in granting the plea without allowing the Moores

time for discovery or another opportunity to amend.

Additionally, we note that in their brief, the Moores argue the defendants

violated Madison’s due process rights by denying her a diploma with magna cum

laude distinction. However, the Moores failed to allege a due process claim in their

Amended Petition, and even if they had, their due process claim would not be viable

since Madison has no constitutionally protected right to magna cum laude distinction

for graduating in the top 10% of her class. See Honors Acad., Inc. v. Tex. Educ.

Agency, 555 S.W.3d 54, 61 (Tex. 2018) (stating that, to have a constitutionally

protected property interest, a person must have a “legitimate claim of entitlement”

rather than a mere “unilateral expectation,” and that a “vested right” is “something

more than a mere expectancy based upon an anticipated continuance of an existing

law”); Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015)

(stating that, before any substantive or procedural due-process rights attach, the

citizen must have a liberty or property interest that is entitled to constitutional

protection).

11 CONCLUSION We conclude that the Moores’ pleadings affirmatively negate the trial court’s

jurisdiction and that the trial court properly granted the defendants’ Plea to the

Jurisdiction and dismissed the Moores’ suit with prejudice. Accordingly, we

overrule the Moores’ issues on appeal and affirm the trial court’s order.

AFFIRMED.

W. SCOTT GOLEMON Chief Justice Submitted on October 14, 2022 Opinion Delivered September 14, 2023

Before Golemon, C.J., Horton and Wright, JJ.