No. 03-17-00338-CV

In the Court of Appeals

for the Third Judicial District

Austin, Texas

Mike Morath, Commissioner of Education;

The Texas Education Agency; and The Texas

State Board of Education, 

 Appellants, 

v.

La Feria ISD; Joaquin ISD; and The Equity Center, 

 Appellees. 

On Appeal from the

261st Judicial District Court, Travis County

REPLY BRIEF FOR APPELLANTS

 

Ken Paxton

Attorney General of Texas

Jeffrey C. Mateer

First Assistant Attorney General

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548 

Tel.: (512) 936-1700

Fax: (512) 474-2697

Scott A. Keller

Solicitor General

Beth Klusmann

Assistant Solicitor General

State Bar No. 24036918 

beth.klusmann@oag.texas.gov

Counsel for Appellants

ACCEPTED

03-17-00338-CV

21306123

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/14/2017 4:33 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/14/2017 4:33:18 PM JEFFREY D. KYLE Clerk
ii

Table of Contents

Page

Index of Authorities...............................................................................................iii

Introduction............................................................................................................ 1

Argument................................................................................................................ 1

I. The Court Lacks Jurisdiction Over Claims Regarding the 2016-

2017 School Year and the Former Proposed Rule. ..................................... 1

A. Because the 2016-2017 school year is over, no relief for that 

year can be granted..............................................................................2

B. Because TEA has proposed and adopted a new rule, any 

previous rule-based challenges are moot. ............................................3

II. Plaintiffs’ Alleged Injuries Are Too Attenuated from the 

Commissioner’s Recapture Decision to Satisfy the Standing 

Requirements. ...........................................................................................4

A. Plaintiffs will not suffer any injury unless multiple events, 

controlled by multiple third parties, occur...........................................5

B. Case law does not support finding that Plaintiffs have 

standing. .............................................................................................8

III. Plaintiffs Have Not Demonstrated That Their Claims Regarding 

Future Years Are Ripe............................................................................. 11

IV. Plaintiffs Have Not Identified a Waiver of Sovereign Immunity. ............. 12

A. Texas Government Code section 2001.038 does not waive 

sovereign immunity for Plaintiffs’ claims. ......................................... 13

B. Because the Commissioner acted within his discretion, 

Plaintiffs cannot demonstrate an ultra vires claim. ............................ 16

C. The UDJA does not waive sovereign immunity in this case............... 19

V. Plaintiffs Have Not Demonstrated Their Entitlement to the 

Temporary Injunction. ............................................................................ 21

Prayer ...................................................................................................................23

Certificate of Service.............................................................................................24

Certificate of Compliance .....................................................................................24
iii

Index of Authorities

Page(s)

Cases

Butnaru v. Ford Motor Co.,

84 S.W.3d 198 (Tex. 2002).............................................................................. 21

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009).................................................................. 2, 16, 20

El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n,

247 S.W.3d 709 (Tex. 2008)............................................................................ 14

Fin. Comm’n of Tex. v. Norwood,

418 S.W.3d 566 (Tex. 2013)......................................................................... 9, 10

Fleming Foods of Tex., Inc. v. Rylander,

6 S.W.3d 278 (Tex. 1999)................................................................................. 19

Good Shepherd Med. Ctr., Inc. v. State,

306 S.W.3d 825 (Tex. App.—Austin 2010, no pet.)...........................................8

Hall v. McRaven,

508 S.W.3d 232 (Tex. 2017)............................................................................. 16

Heckman v. Williamson Cty.,

369 S.W.3d 137 (Tex. 2012) ...............................................................................5

Humble Oil & Ref. Co. v. Calvert,

414 S.W.2d 172 (Tex. 1967) ............................................................................. 19

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)............................................................................................5

M.D. Anderson Cancer Ctr. v. Novak,

52 S.W.3d 704 (Tex. 2001) ................................................................................4

Patel v. Tex. Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015)............................................................................... 11

Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,

971 S.W.2d 439 (Tex. 1998)............................................................................. 12

Pub. Util. Comm’n v. City of Austin,

728 S.W.2d 907 (Tex. App.—Austin 1987, writ ref’d n.r.e.)...................... 19, 20
iv

State Bd. of Ins. v. Deffebach,

631 S.W.2d 794 (Tex. App.—Austin 1982, writ ref’d n.r.e.)..............................8

Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170 (Tex. 2004)........................................................................18, 19

Tex. Dep’t of Pub. Safety v. Moore,

985 S.W.2d 149 (Tex. App.—Austin 1998, no pet.)................................... 19, 20

Tex. Dep’t of State Health Servs. v. Balquinta,

429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d).............................. 9, 10

Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011) (per curiam).........................................................20

Tex. Dep’t of Transp. v. Sunset Transp., Inc.,

357 S.W.3d 691 (Tex. App.—Austin 2011, no pet.)..........................................20

Tex. Dep’t of Transp. v. Tex. Weekly Advocate,

No. 03-09-00159-CV, 2010 WL 323075 

(Tex. App.—Austin Jan. 29, 2010, no pet.)........................................................4

Tex. Mun. Power Agency v. Pub. Util. Comm’n,

100 S.W.3d 510 (Tex. App.—Austin 2003, pet. denied) ............................ 19, 20

Tex. Nat. Res. Conservation Comm’n v. IT–Davy,

74 S.W.3d 849 (Tex. 2002)................................................................................2

Tex. Dep’t of State Health Servs. v. Balquinta,

429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d).............................. 9, 10

Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000)......................................................................... 11, 12

Constitutional Provisions, Statutes, and Rules

Tex. Civ. Prac. & Rem. Code:

§ 37.003 .............................................................................................................2

§ 37.006 ...........................................................................................................20

Tex. Educ. Code:

§ 7.057 ............................................................................................................. 14

ch. 41 ............................................................................................................... 13
v

§ 41.001(2)....................................................................................................... 16

§ 41.013(a)....................................................................................................... 14

§ 41.013(c)............................................................................................ 13, 14, 15

§ 41.013(d)....................................................................................................... 15

§ 42.2517........................................................................................................ 3, 7

§ 42.252(a) ...................................................................................................... 16

§§ 42.2521-24................................................................................................ 3, 7

§ 42.2522...........................................................................................2, 16, 17, 18

§ 42.2522(a)..................................................................................................... 17

§ 42.2528....................................................................................................... 3, 7

§ 42.253(h) ....................................................................................................2, 6

§ 46.003(a) ...................................................................................................... 16

Tex. Gov’t Code:

§ 403.302(d) .................................................................................................... 16

§ 403.302(d)(2)................................................................................................ 16

§ 403.302(j) ..................................................................................................... 18

ch. 2001 ...................................................................................................... 13, 14

§ 2001.003(6) .................................................................................................. 14

§ 2001.038 ................................................................................................... 2, 13

§ 2001.038(a).....................................................................................................2

Tex. Tax Code § 11.13(n)...................................................................................... 16

42 Tex. Reg. 4187 (2017)..............................................................................3, 15, 22

42 Tex. Reg. 5747 (2017).........................................................................................4

42 Tex. Reg. 6663 (2017) ...................................................................................3, 15

Other Authorities

Act of May 30, 1999, 76th Leg., R.S., ch. 396, § 1.36, 

1999 Tex. Gen. Laws 2471 ............................................................................... 18

Conf. Comm. Report, S.B. 1, 85th Leg., R.S. (2017), available at 

http://www.lbb.state.tx.us/Documents/Appropriations_Bills/85/Conference_Bills/SB1_Conference_Bill.pdf.............................6
Introduction

Plaintiffs’ brief fails to demonstrate that this Court has jurisdiction over Plaintiffs’ claims. Plaintiffs do not dispute the key facts related to the standing and ripeness arguments, namely that multiple contingent events, controlled by multiple third 

parties, will all determine whether the Commissioner’s decision to use property values reduced by the local-optional homestead election (LOHE) will ever impact Plaintiffs. Without an imminent impact on their interests, Plaintiffs cannot challenge Defendants’ treatment of other school districts. Sovereign immunity also bars Plaintiffs’ claims because Plaintiffs have not identified a statute that would allow them to 

bring Defendants into court. Neither Texas Government Code section 2001.038 nor 

the Uniform Declaratory Judgments Act applies in this case. Moreover, the Commissioner was correct in his interpretation of the law, and Plaintiffs offer no textual 

arguments to the contrary. The Court should reverse the ruling of the trial court and 

dismiss this case for lack of jurisdiction or, alternatively, reverse the temporary injunction.0F

1

Argument

I. The Court Lacks Jurisdiction Over Claims Regarding the 2016-2017 

School Year and the Former Proposed Rule.

Since Defendants filed their opening brief, at least two significant events have 

occurred that impact the arguments in this case. First, the 2016-2017 school year has 

 1 Because Plaintiffs’ brief makes no attempt to demonstrate any claim against the 

State Board of Education or identify any allegedly improper action taken by the 

Board, the Board should be dismissed regardless of the outcome of the remainder of 

the appeal.
2

ended with no shortage of Foundation School Program (FSP) funding. And second, 

TEA withdrew the proposed rule that was challenged in this case and adopted a new 

rule with a more descriptive fiscal note. Both events eliminate claims originally 

brought by Plaintiffs.

A. Because the 2016-2017 school year is over, no relief for that year 

can be granted.

As Plaintiffs note, the 2016-2017 school year finished with a surplus of FSP funding. Appellees’ Br. 13. TEA, therefore, was not required to prorate FSP funding, see

Tex. Educ. Code § 42.253(h), and each district received the amount to which it was 

entitled. The surplus funding was not, however, distributed to districts under Texas 

Education Code section 42.2522 to compensate for their LOHEs.

For purposes of this litigation, then, 2016-2017 is no longer at issue. None of 

Plaintiffs’ potential causes of action permit retroactive relief against the State. Texas 

Government Code section 2001.038 and the Uniform Declaratory Judgments Act do 

not permit retroactive relief, but allow only declaratory judgments. Tex. Gov’t Code 

§ 2001.038(a); Tex. Civ. Prac. & Rem. Code § 37.003; see also Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 856 (Tex. 2002) (“[P]rivate parties cannot circumvent the State’s sovereign immunity from suit by characterizing a suit for 

money damages. . . as a declaratory-judgment claim.”). Likewise, a plaintiff bringing 

an ultra vires claim may seek only prospective injunctive relief. City of El Paso v. Heinrich, 284 S.W.3d 366, 375-76 (Tex. 2009). Plaintiffs have not identified any waiver of 

immunity that would permit a court to order the Commissioner or TEA to collect 
3

recapture for a previous year.1F

2 Consequently, there is no jurisdiction over claims regarding the 2016-2017 school year. This brief will, therefore, focus on claims in 2017-

2018 and beyond.

B. Because TEA has proposed and adopted a new rule, any previous 

rule-based challenges are moot.

Next, TEA has withdrawn the proposed rule challenged by Plaintiffs, which removed references to section 42.2522 from the Manual for Districts Subject to 

Wealth Equalization (the “Wealth Equalization Manual”), along with its allegedly 

insufficient fiscal note. 42 Tex. Reg. 4187, 4271 (2017). Instead, TEA has proposed 

and adopted a nearly identical rule with a more descriptive fiscal note. 42 Tex. Reg. 

6663, 6793-94 (2017); 42 Tex. Reg. 4187, 4222-24 (2017). The new rule took effect 

on December 5, 2017. 42 Tex. Reg. at 6794.

As explained in the new fiscal note, the new rule will not have a fiscal impact on 

state and local governments because it merely tracksthe statutes enacted by the Legislature. 42 Tex. Reg. at 4223. It is the statutes that cause any fiscal impact, not the 

rule. Id. Regardless, TEA also clarified in its fiscal note that there will be a reduction 

in recapture as a result of TEA modifying its practices to conform with the statute, 

 2 But even that order would not necessarily result in relief for Plaintiffs, as the Legislature must then be given a chance to sweep the additional recapture back into General Revenue. 2.RR.179. If funds were left with the Commissioner, he must first 

spend them on video surveillance in special-needs classes. Tex. Educ. Code 

§ 42.2528. He then has multiple options, including payment for LOHEs, on how to 

spend the funds. 2.RR.180; Tex. Educ. Code §§ 42.2517, .2521-24.
4

which is the information Plaintiffs claim was missing from the original fiscal note. 

Id.; CR.111-12. 

Although Defendants contend that the Commissioner’s decisions in this area 

are not required to be adopted by rule, see infra at 13-15, any procedural questions

regarding the rule-making process have been mooted by the withdrawal of the old 

proposed rule and adoption of a new rule. Tex. Dep’t of Transp. v. Tex. Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *2 (Tex. App.—Austin Jan. 29, 

2010, no pet.). Plaintiffs’ rule-based challenge must, therefore, focus solely on any 

alleged deficiencies in the new rule.2F

3

II. Plaintiffs’ Alleged Injuries Are Too Attenuated from the Commissioner’s Recapture Decision to Satisfy the Standing Requirements.

Plaintiffs do not have standing because they lack a sufficient stake in the outcome 

of this litigation. See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 

(Tex. 2001). They do not explain how the Commissioner’s collection of recapture 

from other school districts harms Plaintiffs in a way that is actual, imminent, and redressable by a favorable ruling; instead, Plaintiffs simply assert that they will be injured. Plaintiffs’ attempts to compare their alleged injury to other cases in which 

courts have found standing fall short, as none of those cases involves the multiple 

contingencies, many of which are outside of Defendants’ control, that this case does. 

 3 TEA has also published proposed Wealth Equalization Manuals for 2017-2018 and 

2018-2019 in the Texas Register. 42 Tex. Reg. 5747, 5825-26 (2017). Both Manuals 

follow the updated 2016-2017 Manual with respect to LOHEs and section 42.2522. 
5

Plaintiffs do not dispute that standing generally requires showing an injury-infact that is “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012) 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted)); Appellees’ Br. 11-12. Nor do they dispute that the alleged injury must be caused by the defendant’s conduct and that it will likely be redressed 

by a favorable decision. Heckman, 369 S.W.3d at 154-55. But Plaintiffs fail to show 

how their allegations satisfy these standards, either factually or legally.

A. Plaintiffs will not suffer any injury unless multiple events, controlled by multiple third parties, occur.

Plaintiffs allege a monetary injury—either there will be insufficient FSP funding, 

resulting in proration of FSP amounts, or there will be a smaller FSP surplus, lessening their chance at receiving additional funding. CR.108-09. They assert that there 

was “uncontroverted evidence of severe fiscal impact to school districts statewide.” 

Appellees’ Br. 12. There was not. Rather, Defendants explained (and Plaintiffs did 

not contest) the lengthy and speculative chain of events that must take place before 

Plaintiffs could possibly feel the effect of the Commissioner’s recapture decision.

1. As described in Defendants’ opening brief, proration of FSP funding is a last 

resort, should other measures fail to produce sufficient FSP funds. Appellants’ Br. 

7. First, there must be an insufficient amount of FSP funding, meaning all of the 

sources of FSP, combined, fall short of what is necessary. 2.RR.176-78 (describing 

the sources of FSP funding, which include legislative appropriations, tax revenues, 
6

and lottery proceeds, in addition to recapture). Plaintiffs did not demonstrate that 

this was likely.

Even so, if there is shortfall, Plaintiffs may not be harmed. If the shortfall is in 

the first year of the biennium, Defendants may use funding from the second year of 

the biennium to make up the gap. If the shortfall is in the second year of the biennium, the Legislature has the option to make a supplemental appropriation to cover 

the gap. Tex. Educ. Code § 42.253(h). With a single exception in the 1980s, the Legislature has always provided supplemental funding when necessary. 2.RR.142-43. 

Only if the Legislature chooses not to act will FSP funding be prorated before being 

repaid in full the next year. Tex. Educ. Code § 42.253(h) (“The following fiscal year: 

(1) a district’s or school’s entitlement under this section is increased by an amount 

equal to the adjustment made under this subsection . . . .”).

Plaintiffs do not discuss section 42.253 or proration anywhere in their brief, so it 

appears that they have abandoned this argument. Regardless, Plaintiffs have not 

shown that reducing recapture will cause FSP funding to fall short of FSP entitlements in any future year. Excluding recapture payments and federal funds, the Legislature has appropriated approximately $21 billion for school finance for the 2017-

2018 school year. Conf. Comm. Report, S.B. 1, 85th Leg., R.S. (2017).3F

4 There is no 

showing that this amount will be insufficient. Consequently, any injury to Plaintiffs

under this theory is not actual and imminent, but rather speculative, as it depends on 

 4 http://www.lbb.state.tx.us/Documents/Appropriations_Bills/85/Conference_ 

Bills/SB1_Conference_Bill.pdf (see art. III, p. 247).
7

the performance of other sources of FSP funding and the Legislature’s appropriation 

decisions. 

2. Plaintiffs’ other argument is that they “could be” awarded “additional 

funding” in the event of a surplus and that the Commissioner’s decision makes that 

possibility less likely. Appellees’ Br. 13. But Plaintiffs do not have an entitlement to 

additional funding under section 42.2522—only a possibility of funding, should 

other contingencies fall into place. Appellants’ Br. 8. If there is a surplus in FSP 

funding (which, again, depends on a variety of factors including lottery proceeds, 

taxes, and legislative appropriations), the Legislature may choose to sweep that surplus back into General Revenue, as it has done in the past. 2.RR.179. If the Legislature leaves the surplus with the Commissioner, he must first pay for video surveillance in special-needs classrooms. Tex. Educ. Code § 42.2528; 2.RR.180. If there is 

funding left after that, the Commissioner has multiple options on which to spend the 

surplus, one of which is payment for LOHEs under section 42.2522. 2.RR.180; see, 

e.g., Tex. Educ. Code §§ 42.2517, .2521-2524. 

In other words, even if a surplus existed, section 42.2522 does not require the 

Commissioner to use that surplus to pay Chapter 42 districts for their LOHEs. Plaintiffs have not, then, been “den[ied] . . . a monetary benefit to which they would otherwise be legally entitled.” Appellees’ Br. 12. At most, the Commissioner’s recapture decision has lessened the possibility that someday the Commissioner might 

choose to distribute surplus funds under section 42.2522.

Plaintiffs cannot demonstrate the requisite actual and imminent harm that they 

will incur as a result of the Commissioner’s conduct towards other districts. Multiple 
8

events, controlled by multiple non-party actors, must occur before Plaintiffs could 

possibly feel any impact (for better or worse) of the Commissioner’s recapture decision. Moreover, given that many of the contingencies, such as the performance of 

certain taxes, income from lottery proceeds, and legislative decisions, are outside of 

Defendants’ control, it is impossible to redress Plaintiffs’ alleged injuries with an 

order in this case. See Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825, 836-37 

(Tex. App.—Austin 2010, no pet.). The alleged harms are too attenuated from the 

Commissioner’s conduct to give Plaintiffs a stake in the outcome of this litigation.

Plaintiffs do not have standing.

B. Case law does not support finding that Plaintiffs have standing.

Plaintiffs’ attempts to compare themselves to plaintiffs in other cases in which 

standing was found fall short. In those cases, the plaintiffs were directly injured, or 

very likely to be injured, by the actions of the government agency. There was not a 

series of contingent events that had to first occur before any harm would be felt. And 

enjoining the governmental action in those cases would have unquestionably redressed the problem.

For example, in State Board of Insurance v. Deffebach, the State Board of Insurance promulgated rules setting presumptively reasonable insurance rates. 631

S.W.2d 794, 797 (Tex. App.—Austin 1982, writ ref’d n.r.e.) (cited in Appellees’ Br. 

12). An insurance agent sued because the presumptive rates acted as a cap on the 

amount of commission he could earn. Id. This Court determined that the agent had 

standing, as he would suffer financial injury. Id.
9

Plaintiffs assert that their alleged future financial injury is, likewise, sufficient to 

confer standing. It is not. The presumptive rates in Deffebach would necessarily reduce commissions to the plaintiff; no speculation was required. For the reasons explained above, however, it is possible—and perhaps likely—that Plaintiffs will never 

suffer a legal injury as a result of the Commissioner’s actions. Deffebach is not similar.

Plaintiffs attempt the same reasoning with Finance Commission of Texas v. Norwood, 418 S.W.3d 566 (Tex. 2013), and Texas Department of State Health Services v. 

Balquinta, 429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d), claiming that the 

financial injuries in those cases are similar to Plaintiffs’ own purported injury. Appellees’ Br. 14. But the circumstances are not comparable. In Norwood, the plaintiffs 

were individual homeowners who challenged government agencies’ interpretations 

of law regarding home equity loans. 418 S.W.3d at 574-75. The parties agreed that 

the interpretations would affect the plaintiffs, should they seek home equity loans in 

the future, as the interpretations would increase the amount the plaintiffs would have 

to pay. Id. at 582-83. The only question was whether the plaintiffs had sufficiently 

pleaded that they intended to take out such loans in the future. Id. The Texas Supreme Court held that the plaintiffs had adequately pleaded that they intended to 

seek home equity loans in the future. Id. at 583. Thus, unlike this case, the Norwood

plaintiffs’ injury was non-speculative and not dependent on a chain of events unrelated to the defendants’ actions.

Plaintiffs also cite the Norwood majority’s statement that “greater specificity is 

unreasonable,” which it made in response to the dissent’s argument that the plaintiffs’ pleadings were too general. Appellees’ Br. 16 (citing Norwood, 418 S.W.3d at 
10

584). As the Supreme Court explained, the specifics of any particular home equity 

loan would not be known until it was effectively too late to obtain a judicial remedy. 

Norwood, 418 S.W.3d at 584. But the fact of an injury, if not its complete scope, was 

still apparent. Id. Again, that is different from the situation here. Plaintiffs’ failure to 

demonstrate standing does not stem from a failure to identify precise dollar amounts, 

but rather from their inability to identify if, when, and how the Commissioner’s recapture decision will affect them.

In Balquinta, various Planned Parenthood entities sued when new state rules 

prohibited them from participating in a government-created health-care market. 429 

S.W.3d at 735, 740. This injury was not remote or speculative, but actual and imminent. The State was not creating an incidental impact on the plaintiffs by regulating 

other entities, but was directly regulating the plaintiffs’ ability to participate in the 

market. Id. at 740. Those plaintiffs’ claims are not comparable to Plaintiffs’ claims

here, which are based on decisions regarding other school districts.

All of Plaintiffs’ arguments stem from the theory that any impact on FSP funding could someday impact Plaintiffs. If that theory is correct, then Plaintiffs would 

have standing to sue regarding any source of FSP funding, be it tax decisions made 

by the Comptroller or decisions of the Texas Lottery Commission. Standing cannot 

stretch that far. There is no limiting principle to Plaintiffs’ position, and they do not 

attempt to identify one. Plaintiffs’ alleged harm is too far removed from the actions 

of the Commissioner in collecting recapture and will not be redressed by a favorable 

decision. The Court should dismiss Plaintiffs’ lawsuit for lack of standing.
11

III. Plaintiffs Have Not Demonstrated That Their Claims Regarding Future Years Are Ripe.

Other than citing the legal standard for ripeness, Plaintiffs make no argument 

that their claims regarding future years are ripe. Appellees’ Br. 12. A claim is ripe 

when “at the time a lawsuit is filed, the facts are sufficiently developed so that an 

injury has occurred or is likely to occur, rather than being contingent or remote.” 

Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015) (internal 

quotation marks and emphasis omitted). But for the reasons described above, Plaintiffs’ claims are entirely contingent on uncertain future events, many of which are 

not within the Commissioner’s control. Speculating about events that may or may 

not come to pass is not constitutionally permissible, nor a good use of judicial resources. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000) (explaining that ripeness doctrine prevents advisory opinions and avoids premature adjudication of issues).

Several decisions from the Texas Supreme Court demonstrate that Plaintiffs’ 

claims are not ripe. In Gibson, Waco ISD adopted a policy that required students to 

pass certain standardized tests before being promoted to the next grade. Id. at 850.

Parents sued over this policy, claiming that it would disproportionately harm minority students, id., but the Court held that the case was not ripe.

At the time suit was filed, the test results had not been released, no student had 

been retained, and no harm had occurred. Id. at 852. Absent an existing injury, the 

Court considered whether the plaintiffs had shown that injury was likely in the future. Id. The Court concluded that there was insufficient evidence in the record that 
12

minorities would fail all three testing opportunities in disproportionate numbers, 

meaning the case was based on speculation and conjecture. Id. at 852-53. Thus, the 

Court dismissed the case. Id. at 853. Likewise here, Plaintiffs have not yet been 

harmed, and there is insufficient evidence that they are likely to suffer harm in the 

future.

The Court reached a similar conclusion in Patterson v. Planned Parenthood of 

Houston & Southeast Texas, Inc., 971 S.W.2d 439 (Tex. 1998). There, several Planned 

Parenthood entities sued regarding the future implementation of a budget rider that 

might have resulted in a loss of federal family planning funds in Texas. Id. at 440-41. 

But the evidence showed that the state agency had not yet decided how to implement 

the rider, and there was no evidence regarding the federal government’s plans to 

continue funding. Id. at 444. The Supreme Court concluded that these contingencies 

prevented the claim from being ripe. Id.

As in Patterson, “[t]his is precisely the kind of case in which resolution of the 

claim presented depends on the occurrence of contingent future events that may not 

occur as anticipated or may not occur at all.” Id. Tax revenues, lottery proceeds, 

appropriations, legislative discretion, and more will all determine whether the Commissioner’s recapture decision will ever impact Plaintiffs. And none of that information can be known now. Plaintiffs’ claims are not ripe and should be dismissed.

IV. Plaintiffs Have Not Identified a Waiver of Sovereign Immunity.

Even if the Court determines that Plaintiffs have established standing and that 

their claims are ripe, their suit is still barred by sovereign immunity. None of the 

statutes identified by Plaintiffs permits this lawsuit, and any ultra vires claim is 
13

barred because the Commissioner’s actions are in compliance with the law. Thus, 

for this additional reason, Plaintiffs’ claims should be dismissed.

A. Texas Government Code section 2001.038 does not waive sovereign immunity for Plaintiffs’ claims.

Plaintiffs attempt to bring a rule challenge under Texas Government Code section 2001.038, but section 2001.038 does not apply in these circumstances. The Legislature has decreed that Chapter 2001 of the Texas Government Code does not apply to the Commissioner’s decisions under Chapter 41 of the Texas Education Code. 

Tex. Educ. Code § 41.013(c) (stating that Chapter 2001 of the Texas Government 

Code “does not apply to a decision of the [C]ommissioner” under Chapter 41). Relevant here, Chapter 2001 contains the procedures for contested-case hearings, the 

rule-making process, and section 2001.038, which permits certain challenges to administrative rules.

The Commissioner has decided that he must use LOHE-reduced property values to determine the amount of recapture a Chapter 41 district must pay. Whether 

considered as a single decision or a series of individual decisions (one for each district

paying recapture), section 41.013(c) exempts the Commissioner’s decisionsfrom (1) 

contested-case proceedings, (2) the rule-making process, and (3) challenges under 

section 2001.038. Thus, section 2001.038 cannot be used to waive sovereign immunity in this case.

To avoid this outcome, Plaintiffs claim that the Commissioner’s decision is really a “rule” under Chapter 2001. Plaintiffs first argue that a “decision” as used in 
14

section 41.013(c) refers only to the result of a contested-case proceeding under Chapter 2001, and because there was no contested-case proceeding, the Commissioner’s 

action was not a decision, but a rule. Appellees’ Br. 18. But that argument fails as a 

textual and logical matter. Neither Texas Education Code Chapter 41 nor Texas 

Government Code Chapter 2001 define “decision.” But section 41.013(a) states that 

a “decision” of the Commissioner “under this chapter” can be appealed under 

Texas Education Code section 7.057. Section 7.057 does not require any contestedcase proceedings before an appeal may be taken. Assuming the word “decision” has 

the same meaning in subsection (a) of section 41.013 as it does in subsection (c), a 

“decision” does not require a contested-case proceeding. Thus, there is no textual 

support for Plaintiffs’ position. 

Nor is Plaintiffs’ argument supported by logic. Contested-case proceedings are 

governed by Chapter 2001 of the Texas Government Code, which expressly does not 

apply to the Commissioner’s decisions. It is unclear what would be reviewed in a 

contested-case proceeding, other than a decision of the Commissioner, in which case 

Plaintiffs’ reasoning is entirely circular.

Plaintiffs also argue that the Commissioner’s decision to use LOHE-reduced 

property values meets the definition of a “rule” in Texas Government Code section 

2001.003(6) and related precedent. Appellees’ Br. 19 (citing El Paso Hosp. Dist. v. 

Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709, 714 (Tex. 2008)). But, again, 

by exempting the Commissioner’s decisions from Chapter 2001, the Legislature also 

exempted them from the rule-making process found in Chapter 2001. Decisions that 

do not meet the definition of a “rule” are not subject to Chapter 2001 in the first 
15

place, so it would not be necessary for the Legislature to explicitly exempt them from 

Chapter 2001. The only way to give full effect to section 41.013(c) is to hold that it 

exempts the Commissioner’s decisions from the rule-making process, even when 

such decisions might otherwise be considered a “rule.”

TEA’s choice to amend its Wealth Equalization Manual through the rule-making process does not waive the protections of section 41.013(c). As it explained when 

adopting recent amendments to the manual, TEA did not intend to waive section 

41.013(c) or subject itself to Chapter 2001. 42 Tex. Reg. at 4223. TEA can choose to 

formalize and publicize its wealth-equalization policies through the Texas Register,

Tex. Educ. Code § 41.013(d), but it is not required to do so, id. § 41.013(c).

And even if the adoption of the Wealth Equalization Manual is a “rule” and not 

a decision, Plaintiffs’ challenge still does not fall within section 2001.038’s waiver of 

immunity. The amendments to the Wealth Equalization Manual simply removed 

references to LOHEs and section 42.2522. 42 Tex. Reg. at 6793-94. As adopted, the 

Manual does not require the use of LOHE-reduced property values for determining 

recapture, but instead is silent on the question. Because the Manual does not affirmatively state that LOHE-reduced property values should be used in calculating recapture, there is no rule regarding LOHE-reduced property values for Plaintiffs to 

challenge. Instead, it is the Commissioner’s decision (that was not adopted as a rule 

and was not required to be adopted as a rule) that they oppose. And that decision is 

exempt from challenge under section 2001.038. Plaintiffs must look elsewhere for a 

waiver of immunity.
16

B. Because the Commissioner acted within his discretion, Plaintiffs 

cannot demonstrate an ultra vires claim.

In order to demonstrate jurisdiction over an ultra vires claim, a plaintiff must 

plead and prove an act that is outside the scope of the government official’s authority. Hall v. McRaven, 508 S.W.3d 232, 234 (Tex. 2017); Heinrich, 284 S.W.3d at 372. 

In other words, if the government official is not violating the law, there is no jurisdiction over an ultra vires claim. Here, the Commissioner’s decision to limit the application of section 42.2522 to calculations under Chapter 42 is within his discretion 

because it is what the law requires.

Stated as simply as possible, using LOHE-reduced property values benefits a 

school district, regardless of whether it is a Chapter 41 or 42 district. Chapter 41 

districts pay less in recapture, and Chapter 42 districts receive additional state aid. 

Appellants’ Br. 5-6. But the Texas Legislature has limited the use of LOHE-reduced 

property values in Chapter 42 calculations. Tex. Educ. Code § 42.2522.

Chapters 41, 42, and 46 all refer to the “taxable value” of property, as “determined under Subchapter M, Chapter 403, Government Code.” See, e.g., Tex. Educ. 

Code §§ 41.001(2), 42.252(a), 46.003(a). Subchapter M of the Government Code 

contains only one definition for “taxable value”—found in section 403.302(d). In 

addition to other adjustments not relevant here, taxable value in Subchapter M is

“the market value of all taxable property less: . . . one-half of the total dollar amount 

of any residence homestead exemptions granted under Section 11.13(n), Tax Code, 

in the year that is the subject of the study for each school district.” Tex. Gov’t Code 

§ 403.302(d)(2). Thus, notwithstanding Plaintiffs’ suggestion, Appellees’ Br. 26, 
17

references to taxable value in Chapters 41, 42, and 46 refer to the LOHE-reduced 

property value.4F

5

Chapter 42, however, contains an exception to the use of LOHE-reduced property values found in section 42.2522. Plaintiffs do not dispute that, under that section, the Commissioner may not use the LOHE-reduced property value to “provide 

funding” unless (1) the Legislature specifically appropriates funds for that purpose, 

or (2) there is a surplus of FSP funding. Tex. Educ. Code § 42.2522(a). Section 

42.2522 is limited to the provision of funding under “this chapter,” which is Chapter 

42. Therefore, the limitation on the use of LOHE-reduced property values is only as 

to Chapter 42, not Chapters 41 and 46. The plain language of the text does not permit 

any other interpretation.5F

6

Similarly, the legislative history that Plaintiffs cite discusses “state aid.” Appellees’ Br. 6. Chapter 41 concerns recapture, in which districts send money to the 

State. It does not involve state aid or the provision of funding to districts. Because 

section 42.2522 does not impact Chapter 41, it makes sense that the legislative history of section 42.2522 does not refer to Chapter 41. The absence of any reference 

 5 For this reason, Plaintiffs are incorrect to claim that Joaquin ISD’s LOHE will not 

be considered. Appellees’ Br. 13. It will be considered for Chapter 46 funding, and 

Joaquin will receive additional funding as a result. 2.RR.69, 89.

6 The Commissioner denies Plaintiffs’ suggestion that he was seeking to favor 

wealthy school districts. Appellees’ Br. 1, 14. The Commissioner considered the 

comments of several districts and concluded that he had been misinterpreting the 

law. 2.RR.55, 59. That the Commissioner’s decision provides greater benefits to 

Chapter 41 districts is a function of the law the Legislature wrote, not some improper 

desire to benefit wealthy districts.
18

to recapture in the legislative history of section 42.2522 is not proof of what the Legislature intended when the statutory language is clear.

Plaintiffs point to former Texas Government Code section 403.302(j), Appellees’ Br. 25-26, which required the Comptroller to provide both total property values 

and LOHE-reduced property values to the Commissioner. Act of May 30, 1999, 76th 

Leg., R.S., ch. 396, § 1.36, 1999 Tex. Gen. Laws 2471, 2486. But that subsection explicitly referred to section 42.2522. Id. (stating “[f]or purposes of Section 

42.2522”). Because section 42.2522 gives the Commissioner the option, in certain 

circumstances, of providing funding based on either value, it makes sense to have 

both values prepared. Former section 403.302(j) did not refer to Chapters 41 or 46 

because those chapters refer to only one value—the LOHE-reduced property value.6F

7

Plaintiffs continue to argue that the doctrine of legislative acceptance binds the 

Commissioner to his previous (incorrect) interpretation of the Texas Education 

Code. Appellees’ Br. 27-28. That argument fails for two reasons. First, the statute at 

issue must be ambiguous before the doctrine applies. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). As just explained, there is no ambiguity about (1) the meaning of Chapter 41.001(2); or (2) the 

scope of section 42.2522. Moreover, the doctrine cannot be used to bind an agency 

 7 It is of no moment that former section 403.302(j) required the Comptroller to provide both values for all districts, which would include Chapter 41 districts. Appellees’ Br. 26. Despite the shorthand used in this case, all districts have their FSP entitlements calculated under Chapter 42. Rather than carving out districts that might 

not receive funding under Chapter 42 (an ever-changing subset), the Legislature 

simply included all districts in this requirement.
19

to an incorrect interpretation of a statute. See Fleming Foods of Tex., Inc. v. Rylander, 

6 S.W.3d 278, 282 (Tex. 1999).

Second, the statutes at issue (sections 41.001(2) and 42.2522(a)) have not been 

re-enacted, which is the second requirement for legislative acceptance. Mega Child, 

145 S.W.3d at 176. In Humble Oil and Refining Co. v. Calvert, the Supreme Court 

applied the legislative-acceptance doctrine when an entire statutory scheme had 

been codified with the same language. 414 S.W.2d 172, 180 (Tex. 1967). No such 

legislative act exists here. At most, portions of other statutes or subsections were 

amended, Appellees’ Br. 27-28, but the relevant sections never were. A decision not 

to amend a portion of a statute is different from affirmatively re-adopting the same 

language. The latter indicates an intent to accept the previous interpretation of that 

language, while the former indicates only a desire to alter different language.

The Commissioner was correct to interpret the statutes as he did. Because his

actions were within the scope of his discretion, there can be no ultra vires claim and 

no jurisdiction over the Commissioner. 

C. The UDJA does not waive sovereign immunity in this case.

Plaintiffs cite three cases from this Court to argue that the UDJA permits a plaintiff to sue a state agency to resolve dispute about the interpretations of law. Appellees’ Br. 21-22 (citing Tex. Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510, 

518 (Tex. App.—Austin 2003, pet. denied), Tex. Dep’t of Pub. Safety v. Moore, 985 

S.W.2d 149, 154 (Tex. App.—Austin 1998, no pet.), and Pub. Util. Comm’n v. City 

of Austin, 728 S.W.2d 907, 910-11 (Tex. App.—Austin 1987, writ ref’d n.r.e.)). But 

these cases all rested on the erroneous conclusion that sovereign immunity did not 
20

bar a plaintiff from suing the State for a determination of his rights under the law. 

Tex. Mun. Power Agency, 100 S.W.3d at 515; Moore, 985 S.W.2d at 154; City of Austin, 

728 S.W.2d at 911. The Supreme Court in Heinrich held to the contrary, stating that 

such claims are barred by immunity and must be brought against the individual in an 

ultra vires suit, not the entity. 284 S.W.3d at 371-72. The Court should not, therefore, give weight to the immunity discussions in those earlier cases.

Instead, the Court should look to the Texas Supreme Court’s decision in Heinrich, which explains why the UDJA does not waive immunity in this case. Id. at 373 

n.6. As described by the Court, the UDJA waives the government’s sovereign immunity only for challenges to the validity of a statute or ordinance. Id. (citing Tex. 

Civ. Prac. & Rem. Code § 37.006). There, the plaintiff was not challenging the validity of a statute or ordinance, but rather the actions of a board under an ordinance. 

Id. Therefore, the UDJA did not waive sovereign immunity. Id.

The same is true here. Plaintiffs are not challenging the validity of any statute. 

Instead, they challenge the Commissioner’s actions under a statutory scheme. This 

does not fall within the waiver of immunity, as defined by the Texas Supreme Court. 7F

8

Absent a challenge to the validity of a statute, the UDJA “does not enlarge the 

trial court’s jurisdiction but is merely a procedural device for deciding cases already 

within a court’s jurisdiction.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-

22 (Tex. 2011) (per curiam). Because Plaintiffs have not challenged the validity of a 

 8 To the extent Plaintiffs have pleaded a valid rule challenge, the UDJA claim should 

be dismissed under the redundant-remedies doctrine. Tex. Dep’t of Transp. v. Sunset 

Transp., Inc., 357 S.W.3d 691, 705 (Tex. App.—Austin 2011, no pet.).
21

statute, the UDJA does not provide jurisdiction, and Plaintiffs have identified no 

other potential waiver of immunity. The Court should, therefore, dismiss Plaintiffs’ 

claims as barred by sovereign immunity.

V. Plaintiffs Have Not Demonstrated Their Entitlement to the Temporary Injunction.

A. Plaintiffs are not entitled to a temporary injunction. All of the above arguments demonstrate why Plaintiffs have not shown a (1) cause of action against Defendants; (2) a probable right to the relief sought; or (3) a probable, imminent, and 

irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 

2002). 

Plaintiffs have not shown a cause of action against Defendants because their 

claims are moot and unripe, and Plaintiffs lack standing to complain about Defendants’ treatment of other school districts. See supra pp. 1-12. Moreover, their claims 

are also barred by sovereign immunity. See supra pp. 12-21.

Plaintiffs have also not demonstrated a probable right to the relief sought. The 

Commissioner correctly interpreted the law, which distinguishes between calculations under Chapter 41 and Chapter 42. See supra pp. 16-19. To the extent that TEA 

was required to follow the rule-making procedures in Chapter 2001, it has now done 

so. See supra pp. 3-4. Plaintiffs do not have a right to demand that the Commissioner 

collect millions of dollars in recapture from other school districts simply because 

there is a small chance that doing so might someday impact Plaintiffs.

Finally, Plaintiffs have not shown an imminent and irreparable injury. Indeed, 

the fact that the 2016-2017 year ended without an FSP deficit and no proration 
22

demonstrates that Plaintiffs were not about to suffer an irreparable injury. There is 

no evidence regarding whether FSP funding will come up short in future years and, 

therefore, no evidence of future injury. 

B. The temporary injunction entered by the trial court did not maintain the 

status quo as a factual matter. Appellees Br. 30-31. The injunction did not require 

Defendants to provide any funding to Plaintiffs—it required only that Defendants 

recapture additional funding from non-party districts. CR.228-29. For those districts, the “last, actual, peaceable, non-contested status” was using the LOHE-reduced property values. Indeed, the Commissioner had collected over half of the recapture due in 2016-2017 using those amounts at the time of the hearing. 2.RR.171. 

For those districts (the Chapter 41 districts with LOHEs), the temporary injunction 

would upend their settled expectations, whereas Plaintiffs would receive no additional funding. Thus, even if there is jurisdiction over this lawsuit, Plaintiffs have not 

shown their entitlement to a temporary injunction, and the trial court’s order should 

be reversed.8F

9

 9 The trial court’s order remanding the proposed rule is moot, as TEA withdrew that 

proposed rule. 42 Tex. Reg. at 4271. Therefore, that portion of the injunction should 

be vacated.
23

Prayer

The Court should reverse the rulings of the district court and dismiss the case 

for lack of subject-matter jurisdiction. Alternatively, the Court should reverse the 

district court’s grant of a temporary injunction.

Ken Paxton

Attorney General of Texas

Jeffrey C. Mateer

First Assistant Attorney General

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-1700

Fax: (512) 474-2697

Respectfully submitted.

Scott A. Keller

Solicitor General

/s/ Beth Klusmann 

Beth Klusmann

Assistant Solicitor General

State Bar No. 24036918

beth.klusmann@oag.texas.gov

Counsel for Appellants
24

Certificate of Service

On December 14, 2017, this document was served electronically on Richard E. 

Gray III, lead counsel for Appellees, via rick.gray@graybecker.com.

/s/ Beth Klusmann 

Beth Klusmann

Certificate of Compliance

Microsoft Word reports that this brief contains 6012 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).

/s/ Beth Klusmann 

Beth Klusmann