### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00783- CV

Wallace L. Hall, Jr., in h is Of fi cial Capacity as a Rege nt for the University of Texas System , Appellan t

v. William H. Mc Raven, in hi s Of fi cial Capacity as Chancellor of the University of Texas System , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 5-0 0247 3, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

O P I N I O N

Wallace Hall, in his officia l capa city as a Reg ent for the University of Texas Sy stem,
appea ls the trial court’s order g ranting the plea to the jurisdiction of Wil liam McRaven, in his officia l
capa city as Chance llor for the University o f T ex as S y s tem. This interlocutory appea l is the culmination of a dispute conce rning Hall’s asser ted rig ht, as a Reg ent for the UT Sy stem, to revie w

cer tain rec ords containi ng confide ntial student information. A majority of the Boa rd of Reg ents voted to provide the rec ords to Hall but with reda ctions to keep personally identifiable student information confidential. Hall see ks the rec ords in unreda cted form and asserts that McRaven, as Chance llor, is committing an ultra vires act by not provi d i n g t h e records to him. Be cause we conclude that Hall has not established that the ultra vires exception to sovere ign immunit y applies in this case, we will affirm the tria l court’s orde r.BACK GR OUND

Statutory ove rview

We beg in by providing an overvie w of the org an i z at i o n o f the UT Sy stem and the
power s and authorities of the various parties involved beca use the scope of McRaven’ s authority is

a pivotal issue in this case . The Texa s Constit ution g ives the Texas L eg islature the duty and authori t y t o provide for the maintenanc e, support, and direc tion of The University of Texas. See Tex. Const. art. VI I , § 10. The L eg islature in t u rn cre ated the UT Sy stem, a g overnme ntal entity composed of a number of h i gh er -e d u cation instit utions in the State of Texas. See generally Tex. Educ. Code §§ 65.01-79

. 1 0

. The L eg islature has deleg ated the power and authority to g overn, opera te, support, and maintain the UT Sy stem and the educa tional instit utions within the UT Sy stem, including The University o f T ex as at Austin, to the Boa rd of Reg ents, which is composed of nine member s. Id. §§ 51.352, 65.11, 65.31, 67.02.

The L eg islature has also g iven the Boa rd of Reg ents the “author ity to promulg ate and enfor ce such other rules and reg ulations for the opera tion, control, and manag ement of the university

s y s t em . . . as the board may deem either nece ssary or desirable .” Id. § 65.31(c)

. The Boa rd o f R egents’ Rules and Reg ulations have the same forc e as statutes. University of Houston v. B a r t h , 403 S.W .3d 851, 855 (Tex. 2013); see also The Unive rsity of Texas Sy s., Rules & Reg ulations of the Bd. of Reg ents (“Reg ents’ Rules”), Rule 10101: B d. Authority & D uties, § 1 (Authority of the Bd.)

. “The board by rule may deleg ate a power or duty of the board to a committee, o ff icer , 1 employ ee, or other ag ent of the board.” Tex. Educ. Code § 65.31(g ). One of the Boa rd’s power s and

Unless otherw ise noted, the Reg ents’ Rules cited a re the curr ent ver sion of the Rules. 1 2duties established by the Educa tion Code is the power and duty to “set campus admission standards

consistent with the role and mission of the instit ution and considering the admission standards of simil ar institutions nationwide having a similar role a nd mission.” Id. § 51.352(d)( 4). The duties and responsib i l ities of eac h individual Reg ent include being “knowledg eable in some detail reg arding the oper ations, manag ement, fina nces, and eff

ectivene ss of the aca demic, rese arc h, and public service prog rams of the U.T. Sy stem.” Reg ents’ Rules, Rule 10101: Bd. Authority & Duties, § 3 (Duties & Responsibili ties of Eac h Reg ent), at 3.1. Eac h Reg ent has t he right and authority to inform himself as t o his duties, responsibilities, and obli g ations. Id. “Membe rs of the Boa

rd of Reg ents are to be provided acc ess to such information as will enable them
to fulfill their duties and responsibilities as Reg ents of the U.T. Sy stem.” Id. An individual Reg ent’s
reque st for information is to be proce ssed in compliance with Reg ents’ Rule 10801, which we will discuss in more detail later. Id. at 3.2

. A Reg ent with conce rns about opera tions, acc ountability ,

co m p l i an ce, or the need for an investiga tion must bring those conce rns to the Chance llor, th e Chairman, the B oard, or

an appr opriate Committee of the B oard. Id. at 3.4. As Chance llor, McRaven is the curr ent chief executive office r of the UT Sy stem, and he is a ppointed by the Boa

rd of Reg ents. See Tex. Educ. Code §§ 51.352(d)( 2), 65.16(b); see also Reg ents’ Rules, Rule 20101: Chancellor, § 1 ( Role). The Educ ation Code provides that:
Subject to the power and authority of the boar d , t h e chief executive office r is responsible for the g ener al manag ement of the university sy stem within the policies of th e board and for making rec ommendations to the board conce rning the org anization of the university sy stem and the appointment of the chief administrative office r for

eac h component instituti on within the sy stem.

3Tex. Educ. Code § 65.16(c)

. As McRaven summarized, h i s duties as CEO include providing

“strate g ic guidance and oversight of the i nstitut ions within the University of Texas Sy stem.” The Reg ents’ Rules g ive him direc t-line responsibility for all aspec ts of the UT Sy stem’s opera tions. See Reg ents’ Rules, R u l e 2 0 1 0 1 : C h ance llor, § 1 (Role). The Boa rd g overns the UT Sy stem, and McRaven r eports to and is re sponsible to the Boa rd. See id.

F actual background

The im me d ia te b a c k d r op of this dispute arose in connec tion with an investiga tion into admissions prac tices at T h e University of Texas at Austin that the prior Chance llor, Fr ancisc o Ciga rroa , commissioned to be conducte d for the UT Sy stem by Kroll Associates, I nc. The purpose 2

o f t h e Kr o l l investiga tion, as descr ibed in the “Scope of Work” section of the ag ree ment that the Sy stem executed with Kroll, was to “dete rmine if U.T. Austin admissions decisions are made for any

rea son other than an applicant’ s individual merit as measure d by aca demic achie vement and officia lly established persona l holisti c attributes,” and in particula r, whether applicants g ain an advanta g e by being rec ommended outside th e presc ribed admissions proce ss by an influential individual “who adds no new substantive information about the applicant’ s p er s onal merit.” As expl a in e d in th e K

r o ll Re port, which was issued following the investiga tion, the investiga

tion’s focus “wa s to evalua te the conduct of UT-Austin, UT-Sy stem, and UT-Sy stem Boa rd of Reg ents officia ls and employ ees in pe rfor

ming a dmissions service s, not on any external rec ommenders.”

This summary of the backg round fac ts, which are materia lly undisputed, is taken from the 2 evidenc e that the parties prese nted in support of or opposition to McRaven’ s plea to the jurisdiction and Ha ll’s summary -judg ment motion. 4Fo r p urposes of the investiga tion and compliance with the Family Educa tional

Records Privacy Act (“F ERPA”), a fede ral law that protec ts the privac y of student education rec ords, the UT Sy stem desig nated Kroll as its “Authorized Represe ntative” to conduct this evalua tion of the educational prog ram. See 20 U.S.C.A. § 1232g (b)( 3), (5) (West 2010) (allowing acc ess to student

rec ords nece ssary to evalua tion or audit of any fede ral- or state-f unded education prog ram); see also 34 C.F.R. §§ 99.3 (def

i n i n g “author ized repr esenta tive”), 99.31(a) (3) (allowing disclosure of protec ted educa

tional rec ords without prior student or pare nt consent to authorized repr esenta tive), 9 9

. 35 (allowing “State educational authority ,” such as UT Sy stem, to use protec ted educat i o n al

rec ords and to desig nate authorized repr esenta tive in connec tion with au d i t or evalua tion of any fede ral- or state-f

unded education prog rams that State educational authori t y o p er ates). The
ag reem en t wi t h Kr oll specifie d in the “Scope of Work” section that the Kroll investiga tors “may h ave acc ess to and/or use Educa tion Records and/or ‘Persona lly I dentifiable I nformation’ about students derive d from Educa tion Records (collec tively ‘F ERPA Records’ as permitted by and consistent with the Famil y E d u ca t i on Rights and Privacy Act (‘F ERPA,’ 20 USC Sec. 1232g , 34 CFR Part 99)).” The ag ree ment further specifie d that the final repor t prepa red by Kroll was to contain no persona lly identifiable student information “d er i v ed from FERPA Records” that wer e

acc essed by Kroll. Kroll delivere d its “F inal Report to the Offic e of the Chance llor of the University of Texas Sy stem” on F ebrua ry 6, 2015 (“K

roll Report”). McRaven, who beg an serving as Chance llor in J anuar y 2015, revie wed the finding s in the Kroll Report and, among other actions, informed the Boa rd that he was convening a committee
to revie w Kroll’s rec ommendations for improving the admissions proce ss. McRaven subsequently

5asked a panel of former chanc ellors and university presidents to revie w the admissions proce ss and

make rec ommendations. The panel issued a re p o rt o n Ap ri l 13, 2015, with rec ommendations to chang e the admissions proce ss. The Boa rd considere d and adopted a new admissions policy for all UT Sy stem aca demic instituti ons on Aug ust 20, 2015.

I n the m eantime, in ear ly Marc h 2015, Hall re quested that he be allowed to revie w all information, “conf

idential and otherwise,” rela ted to the Kroll investiga tion. As we will addre ss in more detail below, the Boa rd considere d his reque st and McRaven’ s rec ommen d a ti o n f o r h andling that reque st and then ult i m at el y ap p roved a two-step proce ss for Hall’s revie w of the documents. Under the Boa

rd-a pproved two-step proce ss, H all would (1) revie w all confide ntial and nonpublic documents g ather ed by Kroll with information deeme d to be protec ted by FERPA and other privac y laws reda cted and (2) identify and discuss further with the Chairman of the Boa rd, Paul Foster , and the Chance llor any specific reda cted private informa t i o n t h at he believes “nec essar y for him to revie w in order to satisfy an articula ted, specific need rela ted to his officia l responsibilities and duties

as a Reg ent.” The Boa

rd also voted to deleg ate to Chairman Foster , in consultation with the Boa rd’s Vice C h ai rm en an d its Gene ral Counsel, the authority to deter mine whether a specific need for information is relate d to the officia l responsibiliti es and duties of a Reg ent. Hall did not ag ree to the two-step proce ss first offe red to him throug h dis cu ssions with McRaven and the Sy stem’s Offic e of Gene ral Counsel and ultimately approve d by the Boa rd. On J une 22, 2015, he filed the underlying lawsuit seeking decla ratory , mandamus, and injunctive relief and contending that McRaven is acting ultra vires by ref using to p ro v i d e al l of the Kroll records in unreda cted form for Hall’s revie w. I n response , McRaven challeng ed subject-matter

6jurisdiction on the g rounds of sovere ign immunit y , mootness, stan ding, and (as it rela tes to

jurisdi ct i on) capa city

. Hall filed a summary -judg ment motion and response to the plea to the jurisdiction, advanc ing his asser tions that he has a rig ht to rec eive the unreda cted student rec ords as

a matter of law beca

use privac y laws do not prohibit Reg ents from revie win g c o n f id e n tial admissions information, and there fore , that McRaven is acting ultra vires in withholding the Kroll information. Following a hear ing on McRaven’ s plea to the jurisdiction a nd Hall’s summary -judg ment motion, the trial cour t grante d McRaven’ s plea to the jurisdiction and dismiss ed the case without specify ing the g rounds on whi ch it relied. The order did not ref er to or purport to rule on Hall’s
summary -judg ment motion. This appeal followed.

DISCUSSIO N Hall asserts three issues on appea l challeng ing the trial court’s order g ranting McRaven’ s plea to the jurisdiction. Hall arg ues that (1) he proper ly invoked jurisdiction throug h the ultra vi res ex ception to sovere ign immuni ty , (2) the case is not moot, and (3) he h as s t an d i n g and
capa city to vindicate his re sponsibili ties as a Reg ent. The pa rties agr ee that the evidence material to these issues is undisputed.

Stand ard of review

Subject-matter jur isdiction is a question of law; there fore , we revie w a trial c ourt’s ruling on a plea to the jurisdiction de novo. See Te xa s Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). The initial burden is on the plaintiff to aff irmatively demonstrate the trial cour

t’s jurisdiction. Id. When analy zing a plea

to the jurisdiction, we beg in with the live

7pleading s. Hec kman v. W illiamson Cty. , 369 S.W .3d 137, 150 (Tex. 2012). We construe the plaintiff’s pleading s liberally , taking all fac tual asser tions as true, and look to his intent. Id. “Mer e unsupported leg al conclusions do not suffice .” Bacon v. Texas Historical Comm’n , 411 S.W .3d 161, 170 (Tex. App.—Austin 2013, no pet.). “We may also consider evidence submitt ed to neg ate the exis tence of jurisdiction—and we must consider su ch evidenc e when nece ssary to resolve the jurisdictional issue.” Hec kman , 369 S.W .3d at 150.

I n this case , McRaven prese nted evidenc e in his plea to the jurisdiction to neg ate the exis tence of jurisdictional fac ts alleg ed in Hall’s pleading s, which we would otherwise presume to be true. See Miranda , 133 S.W .3d at 227. I f the re levant evidenc e is undisputed or fails to r aise a fac t question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. Be cause the parties ag ree in this case that the relevant evidence is undisputed,

our ultimate inquiry is wh et h er t he trial court corr ectly deter mined that it lacke d subject-matter jurisdiction as a matter of law. See id.
Sovereign im m uni ty

Sovereig n or g overnme ntal immunit y deprive s Texas courts o f subject-matter jurisdiction over any suit ag ainst the Stat e, its ag encie s or ag ents, and in some instances,
g overnme ntal subdivisions , absent the State’s consent. See i d

. at 2 24; see also Texas Nat. Res. Conservation Comm’n v. IT-Davy , 74 S.W .3d 849, 853-54 (Tex. 2002) (stating that only L eg islature
may waive or abrog ate sovere ign immunit y either by statute or by resolution); Harris Cty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004) (explaining that g overnme ntal immunit y opera tes like sovere ign immunit y to af

fo rd s i milar protec tion to subdivisions of the State). The modern justifications

8for the doctrine are p ro t ec ting the public trea sury from the costs of litigation and prese rving

separ ation-of- power s principles beca use the doctrine preve nts the judiciary from interfe ring with the le g is la ti v e p r e r o g a

ti v e to a ll o c a

te ta x d o ll a r s . B r o wn & G a

y E n g ’ g , I n c
. v
. O li v a r e

s , 4 6 1 S. W. 3 d 1 1 7 , 1 21 (Tex. 2015). “[S] overe ign immunit y g ener ally shields our state g overn me n t’ s ‘ im p r o v id e n t a c ts ’

. . . ag ainst the litigation and judicial reme dies that would be available if the sam e acts wer e committed by private persons.” Bacon , 411 S.W .3d at 172. This same immunit y g ener ally extends
to a state officia l who is sued in his officia l capa city , as is the case here with McRaven. See City of El Paso v. Heinrich , 284 S

. W

. 3 d 366, 373 (Tex. 2009) (noting that suit ag ainst state officia l is

mere ly another way to plead suit ag ainst entity for which officia l is ag ent). Hall rec og nizes that his claims would potentially implicate this immunit y but relies on the ultra vires exception to invoke the trial court’ s jurisdiction.

Under the ultra vires exception, sovere ign immunit y does not bar suit ag ainst a state officia l acting in his officia l capa city when that suit seeks prospec tive injunctive or decla ratory relief
to compel the state officia l’s compliance with statutory or constitutional provisions. Id. at 372-75. Sovereig n immunit y does not bar such claims beca use “extending immunit y to officia ls using state

resour ces in violation of the law would not be an eff icient way of ensuring those resour ces are spent

as intended.” Id. at 372. To fa ll within t he exception, the suit “must alleg e, and ultimately prove, that the offi ce r ac t ed without leg al authority or failed to perf orm a purely minist eria l act.” Id. Ministerial acts leave nothing to the exercise of discretion or judgme nt by the g overnme ntal office r. Southwestern Bell Tel. v. Emme tt , 459 S.W .3d 578, 587 (Tex. 2015). But immunit y “does not protec t eve ry act by a g overnme nt of fice r that re quires some e x erc ise of judg ment—a g overnme nt

9office r with some discretion to interpre t and apply a law may nonetheless act ‘without leg al

authority ,’ and thus ultra vires , if he exceeds the bounds of his g rante d authority or if his acts conflict with the law itself.” Houston Belt & T er mi n a l R y. C o. v. City of Houston , 487 S.W .3d 154, 158 (Tex. 2016). Acc ording ly , to deter mine whether Hall has asser ted a valid ultra vires claim that invokes the trial court’s subject-matter jurisdicti o n , w e mu s t c o n s tr ue the provisions of the Educa tion Code and the Reg ents’ Rules that define the scope of McRaven’ s deleg ated authority as Chance llor,
compar e these para

meters to the fac ts alleg ed by Hall and the ev i d en ce materia l to McRaven’ s actions, and analy

ze whether any ple a d e d a

n d u nneg ated fac ts demonstrate that McRaven took action outside of his leg al authority or establish his failure to perf orm a purely minist eria l act. See Houston Belt , 487 S.W .3d at 164-68 (dete rm ining whether plaintiffs alleg ed viable ultra vires claims by examining lang uag e of rele vant ord i n an ce that g rante d city officia l authority and some discretion to act) ; see also Southwest Pharmacy Sols., Inc. v. Texas Health & Human Servs. Comm’n , 408 S.W .3d 549, 557 (Tex. A pp.—Austin 2013, pe t. denied). “ Although only exercises of absolute discretion are absolutely protec t ed , wh ether a suit attacking an exercise of limit ed discretion will be barr ed is depende nt upon the g rant of authority at issue in any par t i cu l ar ca s e.” Houston Belt , 487 S.W .3d at 164.
Statutory c onstruction

I n this case, a lthough ne ither par ty challeng es the mea

ning of the statutes or Rules,

we must analy

ze them to deter

mine whether McRaven took a ction outside of his le g al authority or failed to perf

orm a purely minist eria l act. W e review issues of statutory construction de novo.
10Texas Lottery Comm’n v. F i r s t S t a t e Bank of DeQue en , 325 S.W .3d 628, 635 (Tex. 2010). As noted ea rl i er, the Reg ents’ Rules have the same forc e as statutes. Barth , 403 S.W .3d at 855; cf. TGS-NOPEC Geophy

sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011) (noting that courts “interpr et administrative rules, like statutes, under traditional principles of statutory construction”)

. The Boa rd’s officia l in t erpretation place d upon a Rule “bec omes a part of the rule.” Foley

v. Bene dict , 55 S.W .2d 805, 808 (Tex. 1932). Our primary objective when construing statutes or rules is to g ive ef

fec t to the enac ting body ’s intent, which we se ek first a nd fore most in t he text of the statute or rule. See First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631-32 (Tex. 2008). The plain meaning of the text is the best expression of intent, unless a differ ent meaning is appar ent from the context or application of the plain lang uag e would lead to a bsurd results. Molinet v. Kimbrell , 356 S.W .3d 407, 411 (Tex. 2011). “[W ]e ‘re ad the statute as a whole and interpre t it t o gi v e eff ect to ever

y part.’” State v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002) (quoting Jones v. Fowler , 969 S.W .2d 429, 432 (Tex. 1998)). Consequently , when interpreting provisions of t he Education C o d e and the Reg ents’ Rules, we must consider their role in the broade r statutory scheme

. See 20801, Inc. v. Parker , 249 S.W .3d 392, 396 (Tex. 2008). Wit h these principles in mind, we turn to consideration of the scope of McRaven’ s leg al authority

.

McR aven’s legal authority

Hall asser ts tha t he has proven as a matter of law that McRaven is acting ultra vires by ref using to provide the entire Kroll file in unreda cted form to Hall. Hall contends that he has, as

a Reg ent, an absolute rig ht to revie w any information that he reques ts unless revie w of that information is pr ohibited by law, and acc ording ly , that the question of law for this Court to de cide

11is whether his re view of the reque sted information is pr ohibited by law. He contends that FERPA

and other privac y laws do not prohibit his revie w and that the Boa rd’s lack of appro v al for an independe nt investiga tion by Hall is irrele vant. The question of law for this Court to decide , as fra med by the proce eding s below, is
not w hether Hall’s reque st for unreda cted persona lly identifiable student information is pr ohibited by privac y laws such as FERPA. The question of law for this Court to decide is whether McRaven’ s ref usal to provide Hall with the unreda cted documents exceeds the scope of his leg al authority or is

a failure to perf

orm a purely minist eria l act. We turn firs t t o t h e question of whether McRaven’ s ref usal to provide Ha ll with the unredac ted documents is ac tion outsi de of his leg al authority

.

We add resse d ear lier in this opinion the broad para meters of the authority of the Boa rd, the individual Reg ents, and the Chance llor, as established by statute and the Reg ents’ Rules. We now turn to the specific s of Reg ents’ Rule 10801, which addre sses the proce ss for handling an individual Reg ent’s reque st f or UT Sy stem information. See Reg ents’ Rules, Rule 10801: Policy 3

on Transpa

renc y , Acc ountability , & Acc ess to I nformation, § 5.4 (Requests by Members of the Bd. of Reg ents & Chance llor). Section 5.4 of the Rule establishes the responsibilities of the Chairman of the Boa

rd and the Chance llor when an individual Reg ent reque sts “sig nificant quantities” of information from the U T Sy stem. Id. at 5.4.3. Section 5.4.2 of the Rule state s:

Ex cept f or a r equest proc essed under S ubsection 5.4.4 [ cover ing sma ller re quests], reque sts by an individual Reg ent for information shall be submitt ed to the Chance llor in writing by the reque sting Reg ent, with a copy to the Boa rd Chairman and Gene ral

The parties d o n o t dispute that on May 14, 2015, the Boa rd amende d Rules 10801 3 and 10101. 12Counsel to the Boa rd. An individual Reg ent’s written reque st for information shall identify , with specific ity , the need for the information reque sted and shall provide a reque sted dea dline for r esponse if the reque st is ti me-sensitive.

Hall initially reque s t ed all information “conf idential and otherwise” rela ted to the Kroll investiga tion from the Boa rd’s Gene ral Counsel. Acc ording to McRaven’ s brief, Hal l ’s
reque st encompa sses hundreds of thousands of pag es. The Kroll Report states that Kroll revie wed approximately 9500 internal emails, as well as data from the UT-Austin mai n fr am e and over 100 specific student application files. Hall’s initial reque st did n o t identify the need for the information re quested.

Section 5.4.3 of Rule 10801 require s the Chairman of the Boa rd and the Chance llor
to revie w i nformation requests seeking the compil ation of si gn i fi cant quantities of i nformation or data, and if nece ssary , to discuss the reque st with the Reg ent to deter mine the appropr iate scope of the reque st. Section 5.4.5 require s that “in the rar e circ umstance” when there are conce rns about a Reg ent’s reque st that are unresolved following discussion with the Reg ent, the matter must be
prese nted to the Boa

rd for a vote. After Hall made his reque st, the Chairman of t h e Boa rd, Paul Foster , called a specia l meeting of the Boa rd on April 8, 2015 to prese nt the reque st for a vote. During the April Boa

rd meeting , Hall made a motion reque sting to revie w all Kroll data, including “F ERPA data,” i.e., persona lly identifiable student information that would be subject
to FERPA. Hall’s motion passed with a minority vote, as permitted under the Rules in eff ect at that tim e. After the vote, Chairman Foster stated his understanding that “bec ause the motion includes FERPA dat a, t h at n o thing will happen immediately

. Mr. Sharphorn [t he UT Sy stem’s Vice C h an ce l l o r and Gene ral Counsel] will revie w the reque st and the information and make a
13deter

mination as to whether or not it is leg al to provide the information. ” Af t er the April Boa

rd meeting , Hall corr esponded with Sharphorn and the UT Sy stem’s Sy stemwide Privacy Offic er (who works in the Gene ral Coun s el ’s office ) to explain his asser ted educa

tional interest in the persona lly id enti fiable student information. Under FERPA, the instit ution deter mines whether “school o ff

i cials” have “leg itimate educational interests” in student education rec ords containing persona lly identifiable student information. 20 U.S.C.A. § 1232g (b)( 1)(A) (West 2010); 34 C.F.R. 99.31(a) (1)( i)(A)

. I f the school officia l is deter mined to have a leg itimate ed ucational interest in the rec ords, he or she can acc ess those student educa tion rec ords without prior student or pare nt consent. 20 U.S.C.A. § 1232g (b)( 1)(A) (West 2010); 34 C.F.R. 99.31(a) (1)( i)(A)

.

During the Apri l Board meeting , sever al Reg ents expressed their conce rn from an internal-g overna

nce standpoint that the then-e x isting Rule allowed only two Reg ents to overr ule the

rec ommendation of the Chance llor and the Chairman. Subsequently , in May 2015, the Boa rd voted
t o revise Rule 10801 to require a majority vote when a Reg ent’s reque st for information was prese nted to the B oard unde r Section 5.4.5. Section 5.4.5 as a mended pr ovides:

Wit hin 5 business day s of the rec eipt of a Reg ent’s information reque st, the Chance llor’s Offic e will provide the reque sting Reg ent with an estimated date for delivery or production. The Boa rd require s all U.T. Sy stem Administration and U.T. Sy stem instit utional employ ees to respond thoroug hly and appropr iately to reque sts for information from a member of the Boa rd or the Chance llor, without undue delay

. I n the rar e circ umstance when the Chairman or the Chance llor has conce rns about a Reg ent’s reque st, the matter will be discussed with the Reg ent within 5 business day s of rec eipt of the request. I f conce rns about a reque st for information or data are unresolved following discussion with the Reg ent, the matter will be prese nted to the Boa rd as quickly as possible, but in no event later than the next re gu l ar Boa rd meeting following the date of the rec eipt of the reque st. For the purpose of a Boa rd vote on this issue, the vote of a m ajority of the m em bers of the Board in sup port of the request is suf

fi cient to direct that the request wi ll be fi lled wi thout delay.

14(Emphasis adde d.) Ha ll does not challeng e the Boar d’s authority to amend the Reg ents’ Rules by majority vote, and he has not asser ted a claim seeking to invalidate Section 5.4.5 as amende d. See 4 Reg ents’ Rules, Rule 10100: Rule on Rules and Reg ulations, § 1 (establishing that Reg ents’ Rules

m ay be amended by majority of t he Board)

. I n his briefing , Hall further st ates that his “ar g um en t does not rely

on the April 8 vote take n under the old rule.” Also in May , McRaven proposed to Hall the t wo-step proce ss for revie wing the documents that was ultimately approve d by the Boa rd, and Hall continued to asser t his claimed rig ht
to see the entirety of the documents in their unreda cted form. I n J une, Hall filed the underly ing suit. At the J uly Boa

rd meeting , “[i] n an eff

ort to eff ect a clea r and open statement of the position of the Boa rd of Reg ents rela ted to pending litigation conce rning acc ess to cer tain documents and rec ords,”

The Boa rd also added Section 5.4.6 to Rule 10801 when it revised t h e R u l e. S ec tion 4 5.4.6 provides: After consultation with the Chairman of the Boa rd , t h e Chance llor may adopt rea sonable proce dures with reg ard to the timing, copy ing, and proce ss for revie w of rec ords by a Reg ent, including prohibiting the copy ing of any confide ntial materia l. I n addition, the Chance llor, in consultation with the U.T. Sy stem Gene ral Counsel, shall deter

min e whether State or fede ral law restric ts compliance with the reque st. Acc ording ly , the Chance llor, in consultation with the U.T. Sy stem Gene ral Counsel, shall deter

mine whether a Reg ent may rev i ew i n fo rmation that is protec ted by the Family Educa tional Rights and Privacy Act (20 U.S.C. §1232g ; 34 CFR Part 99), by constitutional privacy , or by other State or f

eder al law. The parties do not addre ss Section 5.4.6 in their briefing

. Whil e this Section g rants authority to the Chance llo r, i n consultation with the Chairman and the U.T. Sy stem Gene ral Counsel, to make privac y deter

minations when a Reg ent reque sts information, it does not limit the Boa rd’s ability to make its own deter

minatio n i n “t h e rar e circ umstance when the Chairman or the Chance llor has conce rns about a R eg ent’s request,” and the req u es t i s p re s ented to the Board for a majority vote. See Reg ents’ Rules, Rule 10801: Policy on Transpa renc y , Acc ountability , & Acc ess to I nformation, § 5.4 (Requests by

Members of

the B d. of Reg ents & Chance llor), at 5.4.5.

15a majority of the Boa rd voted in favor of providing Hall acc ess to the Kroll documents subject to the two-step proc ess, which, a s it appear s in the Boa rd mee ting minutes, would allow Ha ll:

• acc ess to revie w all confide ntial and nonpublic documents g ather ed by Kroll, with reda ctions only for those documents and information protec ted by the Family Educa tional Rig hts a nd Privacy Act (F ERPA), the Hea lth I nsuranc e Portability and Acc ountability Act (HI PAA), or other privac y laws, as deter mined applicable by t h e Vi ce Chance llor and Gene ral Counsel in consultation with the Sy stem Administration Pr iv a c y O f f ic e r a n d Sy s te mw ide Privacy Coordinator, and

• the opportunity for Reg ent Hall to identify and to d i s cuss further , with the Ch a ir ma n a n d th e Ch a

n c e ll o r , s p e c if

ic , r edac ted private information protec ted by FERPA, HI PAA, or other privac y laws in those docume n t s which he believe s are nece ssary to revie w in order to satisfy an articula ted, specific need r elated to his off

icial re sponsibili ties and duties as a Reg ent.
(Emphasis i n orig inal.) I n addition, the Board voted to “dele g ate t o t he C hairman in consultation with the Vice Chairmen and Gene ral Counsel t o t he Boa rd, the authority to deter

mine whether a specific need for information is rela ted to the officia l respons i biliti es and duties of a Reg ent.” Acc ording ly , upon Hall’s identification of any specific , reda cted private information that he believes

nece ssary to revie w, Chairman Foster , in consultation with Vice Chairman Steven Hicks, Vice Chairman J eff

rey Hildebra

nd, and the Boa

rd’s Gene ral Counsel Fr ancie Fr eder ick, would have the authority to decide whether Hall had demonstrated a specific need for information rela ted to the officia l responsibiliti es and duties of a Reg ent. I n context, the parties’ i n t eractions in April, May , and J une, culminating in the Boa rd’s J uly motion and vote, show that the Boa rd reje cted Hall’s asser

tion that he had the “leg itimate educa

tional interest” require d by FERPA or was otherwise authorized to see confide ntial

16student rec ords. Had the Boa rd ag ree d with Hall that he was entitled to see all the documents in their unreda cted form, there would not be a need for the two-step proce ss. The second step of the proce ss reinfor ces the Boa

rd’s decision that Hall would not be g i ven acc ess to the Kroll documents in unreda cted form, but this step g ives him t h e o p p o rt u nity to demonstrate a leg itimate educational interest in particula

r documents or information. The Boa rd decide d that if, afte r rev i ew i n g t h e reda cted file, Hall could identify specific reda cted information that he wanted to se e in unr edac ted form, he would have the opportunity to further discuss those documents that he believes are

nece ssary to revie w in order t o s at i sfy an articula ted, specific need rela ted to his officia l responsibilities and duties as a Re gent. I n this “ra re circ umstance” requiring a Boa rd vote on a Reg ent’s reque st, the Boa rd deleg ated to Chairman Foster (not Chance llor McRaven) the authority
to deter mine whether the information rela ted to Hall’s duties as a Reg ent and to provide it to him in unreda cted f

orm. Ther e is no indication in the rec ord that Ha ll ever availed himself of the sec ond step of the B oard- approve d proce ss.

Hall does n o t contend that McRaven failed to follow the proce ss outlined in the Reg ents’ Rules for responding to a reque st fro m an individual Reg ent for a signific ant amount of information. Hall does not contend that McRaven acte d outside his authority by failing to implement the two-step proce ss or ref using to disc uss spe cific documents that had been reda cted. Whil e Hall attache d a sample of 27 pag es of reda cted rec ords for the trial cour t ’s benef it in the proce eding s below, he does not challeng e the reda ctions to those documents only , n o r is there evidenc e in the

rec ord that he discussed those 27 pag es with the Chairman of the Boa rd, as provided in the second step of the B oard- approve d proce ss.

17I nstead, Hall contends that, as a Reg ent, he is entitled to revie w the Kroll documents

based on the L eg islature’s assig nment to Reg ents “of both g ener al g overna nce responsibilities a

nd the specific duty to set admissions standards consistent with UT’s role and m i s s i o n , ” unless providing the reque sted information to him would violate another law. Acc ording ly , Hall contends, McRaven did not have leg al authority to “withhold from a [R ]ege nt information direc tly rele vant to the duties that Texas law require s the [R ]ege nt to perf orm.” The centr al premise of Hall’s arg ument is that he is entitled to see all persona lly identifiable student information in t h e Kroll file with no reda ctions beca

use the information rela tes to the Boa rd’s dut y to set appropr iate admissions standards, and thus, he has a “leg itimate educational interest” in the persona l inf ormation entitling him to acc ess under FERPA because he has a leg itimate educational interest in the topic to which it rela tes. At hear

t, Hall challeng es what he char acte rizes as McRaven’ s deter mination that FERPA

an d other privac y laws prec lude Hall from revie wing the documents in unreda cted fo rm an d McRaven’ s ref

usal to provide Hall with the unreda cted Kroll documents. On the rec ord befor e us, howeve r, it is the Board

—not McRaven—w ho denied Hall acc ess to the documents in unr edac ted form, having implicitl y deter mined that Hall does not have a leg itimate educa tional interest in the information and that it may be prote cted by

other priva cy

laws. 5

Hall testified that a majority of the Boa rd has never voted to let him s ee t h e Kroll 5 documents without reda ction of persona lly ident ifiable student information and that the Boa rd instructed McRave n to provide the Kr oll documents in redac ted form: [C ounsel] Q. All rig ht. I n passing on that motion at t he J uly 8th meeting ,

the Boa rd of Reg ents instructed the chanc ellor to provide y ou the Kroll documents reda cted in acc ordanc e with the privac y law, cor rec t?

18Whether the Boa rd’s deter mination in this reg ard is corr ect is not befor e us, and we take no position on whether that dec ision would be revie wable by this Court. What is befor e us is
t he lawsuit ag ainst McRaven in his officia l capa city and the exis tence or lack of subject-matt er jurisdiction. Consequently , what is specific ally befor e us to decide is whether McRav en ac ted outside the scope of

his leg al authority

. Ba sed on the rec ord befor e us, the Boa rd has deter

mined that Hall may only revie w the Kroll documents with reda ctions to comply with FERPA and other privac y laws. To the extent McRaven c an be said to ha ve taken any action since the J uly vote, McRave n has not ac ted outside the s cope of his leg al authority by withholding the unr edac ted documents. McRa ven is “[s] ubject
to the power and authority of the board,” and thus, he must comply with the Boa rd’s direc tives. Tex. Educ. Code § 65.16(c) ; see also Reg ents’ Rules, Rule 20101: Cha ncellor, § 1 (Role). The proce ss established by the Boa

rd allows Hall to revie w the reda cted documents, and if Hall identifies specific reda cted information and can articula te a specific need to see that information rela ted to his officia l

[Hall] A. Yes.

. . . . [C ounsel] Q. The amende d Rule 10801 requires a m ajority vote to

authoriz e documents demande d by a reg ent when the issue has bee n raised be fore the boar d; is that corre ct? [Hall] A. Yes. [C ounsel] Q. A majority of the board has n ever voted to let y ou see the

Kroll documents without reda ction of persona lly identifiable student information protec ted by the privac y

laws, cor rec t? [Hall] A. Correc t. 19duties, he can discuss that specific information and his need to see it with the Chairm an and the

Chance llor. The Boa

rd then deleg ates to its Chairman—not Chance llor McRaven—in consultation with the Vice Chairmen and Gene ral Counsel to the Boa rd, t h e authorit y to deter

mine whether a

s p ecif ic need for information is rela ted to Hall’s officia l duties. Hall has not established t h at McRaven acte d outside of his g rante d authority under the Reg ents’ Rules to respond to a Reg ent’s
reque st by withholding the unreda cted documents, and there fore acte d ultra vires, beca use it was the Boa rd, t hroug h its majority vote, who ultimately ref used t o all ow Hall full acc ess t o the Kroll file without reda ction. See Houston Belt , 487 S.W .3d at 164 (sover ei gn i m m u n ity extends to those
g overnme ntal office rs who ac t within their gr anted discr etion).
Ministerial duty

Hall also asser

ts that McRaven’ s duty to provide a Reg ent w it h r equeste d information is nondiscretionar

y and thus minist eria l. Howeve r, as discussed above, the Reg ents’ Rules provide otherwise. See Reg ents’ Rules, Rule 10801: Policy on Transpa renc y , Acc ountability , & Acc ess to I nformation, § 5.4 (Requests by Members of the B d. of Reg ents & Chance llor), at 5.4.5 (re quiring majority vote of Boa

rd to approve signific ant information reque sts of conc er n t o Chance llor or Chairman). Hall arg ues that (1 ) McRaven must provide Hall with information he reque sts in his
capa city as R eg ent unl ess Hall’s revie w of that i n fo rm ation is prohibited by law; (2) the R eg ents’ statutory g overna

nce duties, including the duty to set admission standards, mean that Hall’s revie w of t he Kroll file would not v i o l ate privac y law; and (3) therefor e, McRaven has a mi nisterial dut y to provide Ha ll the Kroll file in its entirety in its unredacte d form.

20Ministerial acts are those for which “‘the law presc ribes and define s the duties to be

perf ormed with such prec ision and cer tainty as to l ea v e n o thing to the exercise of discretion or judgme nt.’” Emme tt , 459 S.W .3d at 587 (quoting City of Lancaster v. Chambers , 883 S.W .2d 650, 654 (Tex. 1994)). Hall arg ues that McRaven failed to perf orm the minist eria l act of providing him with the reque sted info rmation, beca use in Hall’s view, either McRaven had no discretion to deter mine that FERPA or other privac y laws prohibit Hall’s revie w of the information or McRaven misint erpr eted FERPA and other privac y laws, which he has no discretion to do, by deter mining that FERPA and other privac y laws prohibit Hall’s revie w of the information. Howeve r, as we have explained, the Boa

rd made the det e r

mi n a ti o n th a t Hall did not demonstrate the leg itimate educational interest require d under FERPA to all o w h im to see the entirety of the Kroll file and that the documents should be reda cted to comply with FERPA and other privac y laws for Hall’s revie w. Having been provided with a direc tive from the Boa rd afte r follo wi n g the proce ss set forth in the Reg ents’ R u les for responding to a Reg ent’s reque st for information, in this particula r situation McRaven only has authority to provide Hall with reda cted information unless the Boa rd, throug h its Chairman, dete rmines otherw ise.

Hall also contends that individual Reg ents have an absolute and inhere nt rig ht under Texas law to deter

mine which UT Sy stem rec ords they revie w. Hall, howeve r, like eac h of the other Reg ents, is subject to the Rules and Reg ulations promulg ated by the Boa rd, which have the same fo rce as statutes. The Reg ents’ Rules provide a proce dure by which the Boa rd as a wh o l e m ay consider and either approve or disapprov e b y m ajority vote an individual Reg ent’s reque st for a signific ant volume of information, a proce dure t h at Hall acknow ledg es was validly enac ted.

21Reg ents’ Rules, Rule 10801: Policy on Transpa renc y , Acc ountability , & Acc e s s to I n f o r ma tion, § 5.4 (Requests by

Members of

the B d. of Reg ents & Chance llor), at 5.4.5. Ha ll has not challeng ed the Boa rd’s authority to disapprove his reque st—instead, he arg ues that “McRave n violated his duty as

a university employ ee to provide rele vant information when officia lly reque sted by a member of the
g overning board.” I n this case , howeve r, it was the Boa rd majority that deter

mined wh at t y

pe of

acc ess Hall should have to the Kroll documents.

On this rec ord, the trial court did not have subject-matter jurisdiction under the ultra vires exception to sovere ign immunit y , and we overr ule Hall’s first issue. Be cause we hold that the trial court lacke d subject-matter jurisdiction for this rea son, we need not rea ch Hall’s issues rela ted to mootness and standing

. See Tex. R. App. P . 47.1.

CONCLUSION Having de te r

mi n e d th a t H a ll ’ s s u it a g a in s t M c Ra

ven is barr ed by sovere ign immunit y ,

we a ffirm the tria l court’s orde r g rantingMcRaven’ s plea to the jurisdiction.

__________________________________________ Cindy Olson Bour land, J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land Affir med Filed: September

16, 2016

22