1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-15-00321-CV



### _________________ JOANN COMPTON, Appellant V. PORT ARTHUR INDE PENDENT SCHOOL DIST RICT, JOHNNY E. BROWN, AND EMILY KING, Appellees

________________________________________________________________________ On Appeal from the 136th Judicial District Court Jefferson County, Texas Trial Cause No. D-193,803

________________________________________________________________________ MEMORANDUM OPINION Appellant Joann Compton appeals the tr ial court’s orders dismissing her claims against the Port Arthur Independe nt School District (the District); the District’s superintendent, Johnny E. Brow n; and Compton’s supervisor, Emily King. By four appellate issues, Compton argues th at: (1) the trial cour t erred in granting the District’s plea to the jurisdiction for failure to state a viable claim, (2) the injunction sought by Compton was not m oot, (3) Brown and King were not entitled2 to immunity under the Texas Tort Claims Ac t, and (4) the District Court’s award of attorney’s fees to Brown and King was improper. We overrule Co mpton’s issues and affirm the trial court’s orders dismissing her claims and awarding attorney’s fees. I. Background In this suit, Compton complains that th e Defendants violated her right to free speech. Compton began working as a Speech Language Pathologist for the District in August, 2009. In that capacity, she prov ided speech therapy to students at three campuses within the school district. At some point during her first year of employment with the District, Compton co mplained to her supervisors, King and Sharon Boutte 1 , that student reports she printed from one school were being routed to a printer that was located in a public hallway at another school and that she believed such open access to the reports to be a problem with regard to federal student privacy rights. Compton alleges th at after she made this complaint and attempted to have the printer set-up correct ed through the District’s IT department, King created a hostile work environment by giving Compton an “exhausting and

1 Compton named Sharon Boutte as a defe ndant in her original pleadings, but omitted Boutte as a party in her amended petition. B outte filed a plea to the jurisdiction jointly with Brown, King, and the District, and the trial court’s order granting the plea to the jurisdiction dismi ssed Compton’s claims against Boutte with prejudice. On appeal, Compton does not ch allenge the dismissal of her claims against Boutte. On December 8, 2015, Compt on notified this Court that Boutte was dropped as a party.3 rigorous schedule of meetings” in late Fall 2010, and then initiating an investigation against Compton based on “false accusations of Medicaid fraud.” The fraud investigation concerned Comp ton’s documentation of services delivered to students. One of Compton’ s duties as a speech therapist was to accurately record and report the services she provided to each student so that the District could be reimbursed by Medicaid. Due to discrepancies in Compton’s documentation regarding the da tes and times of services rendered to particular students, the District was never able to submit any of Compton’s paperwork to the federal government for reimbur sement. In October 2010, th e District commenced an investigation into the documentation a nomalies, and Compton was placed on administrative leave while the inves tigation was pending. Following the investigation, Compton requested, and wa s granted, a reassignment as a content mastery teacher. 2 After being granted her reassignment to the teaching position, Compton filed this suit seeking a declaratory judgment th at her constitutional right of free speech had been violated and an injunction agains t future violations, as well as costs and attorney’s fees. Brown, King, Boutte, and the District all responded to the suit by

2 The record before this court is unc lear as to the timeline between the conclusion of the investigation and Co mpton’s commencement of her reassigned position; however, the precise timeline is not relevant to the dispositive issues herein.4 filing a plea to the jurisdiction with thei r original answer, followed by a separate Plea to the Jurisdiction, or, Alternatively, Motion to Dismiss, alleging that the trial court did not have jurisdiction over the s ubject matter. Specifically, Brown, King, and Boutte sought dismissal based on the pr ofessional immunity provided in section 22.0511 of the Texas Educa tion Code, as well as under the election of remedies doctrine of the Texas TortClaims Act (“TTCA”). See Tex. Educ. Code Ann. § 22.0511(a) (West 2012); Tex. Civ. Prac. & Rem. Code § 101.10 6 (West 2011). The District sought dismissal based on gove rnmental immunity, asserting that Compton’s claims did not fall within any waiver of that immunity. The District subsequently supplemented its plea to asse rt that Compton’s cl aims were moot in light of her having transfe rred at her own reque st. The District then supplemented its plea a second time to expand on its claim th at official and governmental immunity deprived the court of subject-matter juri sdiction over Compton’s claims because Compton had failed to allege sufficient facts in her pleadings to demonstrate that she had any facially valid constitutional claims against the District or its employees. The trial court conducted a non-evidentia ry hearing on the defendants’ various jurisdictional challenges. Following the h earing, on April 23, 2015, the trial court entered an order dismissing Compton’s clai ms against Brown, Boutte, and King, and dismissed those individual defendants with prejudice. The court’s order did not5 specify the grounds upon which the dism issal was granted, although it did acknowledge the matter considered was bo th a Plea to the Jurisdiction and Motion to Dismiss filed pursuant to section 22.051 of the Texas Education Code and section 101.106 of the Civil Practices and Remedies Code. Shortly thereafter, on April 29, 2015, the trial court entered a second order, this one granting the District’s plea to the jurisdiction. In its order dismissing Compton’s claims against the District, the court found that Compton “failed to stat e a viable claim under the free expression clause which protects public employees engagi ng in free speech of public concern.” Compton filed a Motion for New Trial as to both orders, and Brown, Boutte, and King filed an application for attorney ’s fees pursuant to section 22.0511 of the Texas Education Code. The tr ial court held a hearing on Compton’s motion and the individual defendants’ application. Followi ng the hearing, the trial court issued a letter to all counsel setting fo rth its findings and opinions on the issues presented and advising of its intended rulings. In its lette r, dated June 24, 2015, the court elaborated on its specific findings that Compton’s speech was not protected because it was made pursuant to official duties and be cause it was made in a private context between employer and employee; therefore, Compton had failed to plead a proper constitutional violation, rendering the gr anting of the District’s plea to the jurisdiction appropriate. The court furt her found that dismissal for lack of6 jurisdiction was appropriat e because Compton’s request ed and granted transfer without any allegation of su bsequent retaliation either deprived the case of a justiciable issue or rendered the issue moot. 3 The letter also addressed the appli cation of the individual defendants for attorney’s fees, finding that all actions taken by Brown, Boutte , and King were “in fact, within the scope of and/or incident to their duties,” which entitled them to recovery of their collec tive attorney’s fees. Finally, with regard to the dismissal of the individual defendants, the court noted that section 22.0511 of the Texas E ducational Code provided the individuals immunity from liability, but “does not, howe ver, provide immunity from suit, and therefore, is not a proper basis for a Plea to the Jurisdiction.” The letter indicates that the order dismissing the individual defendants “should be vacated”; however, no order was ever entered vacating the dismissal order. To the contrary, on July 1, 2015, the trial court explicitly “affirm[ed] its [o ]rders dismissing Plaintiff’s claims against [the District and the individual defenda nts] with prejudice” in a written order denying Compton’s motion for new trial. That order also awarded attorney’s fees to

3 The trial court’s finding that Compton failed to plead a proper constitutional violation, as well as its findings regard ing justiciability and mootness, do not refer specifically or exclusively to the District, but rather to “the defendants” collectively.7 Brown and King, jointly and severally. Comp ton filed a timely no tice of appeal from the orders dismissing her claims. II. Analysis Compton’s first two issues on appeal ch allenge the trial court’s dismissal of her claims for lack of subject-matter ju risdiction; her third issue challenges the dismissal of Brown and King, arguing that those individuals were not entitled to professional immunity. Compton’s fourth issue challenges the court’s award of attorney’s fees to Brown and King. A. Dismissal of Compton’s Claims Against the District In filing its pleas to the jurisdiction, the District challenged the trial court’s subject-matter jurisdiction over the claims in Compton’s pleadings, asserting that the District was protected from suit by governmental immunity. The doctrine of governmental immunity from suit operates like sovereign immunity to defeat a trial court’s subject matter jurisdiction over a claim against a political subdivision, like a school district, unless the state ha s expressly consented to suit. Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004). As such , governmental immunity may be properly raised in a pl ea to the jurisdiction. Id . Whether a trial court has subjectmatter jurisdiction over a claim is a ques tion of law, which we review on appeal de

novo . Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004).8 The plaintiff bears the burden of pleading su fficient facts to affirmatively show that the trial court has jurisdic tion to hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When, as is the case here, a plea to the jurisdiction challenges the sufficiency of the plaintiff’s pleadings to establish a waiver of governmental immunity, and th ereby establish jurisdiction, we must determine whether the plaintiff has pled a facially valid constitutional claim

. See Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 13 (Tex. 2015) (citing City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009)); City of Houston v. Johnson , 353 S.W.3d 499, 504 (Tex . App.—Houston [14th Dist .] 2011, pet. denied). In doing so, we construe the pleadings liber ally in the plaintiff’s favor and look to her intent. Miranda , 133 S.W.3d at 226. If the pleadings fail to allege sufficient facts to demonstrate jurisdiction, but the defici ency is curable, the plaintiff “should be afforded the opportunity to amend.” Id

. at 226–27. If, on the other hand, “ the pleadings affirmatively negate the existenc e of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id . at 227. 1. Failure to State a Claim Compton argues that the trial court’s grant of the District’s plea to the jurisdiction for failure to st ate a claim was improper beca use Compton’s speech was,9 as a matter of law, protected under th e Texas Constitution. Although Compton argues that the protections afforded to he r under article I, section 8 of the Texas Constitution are greater than those of the freedom of speech clause in the First Amendment of the United States Constitutio n, we note that Texas courts have generally refused to hold th at the Texas Constitution’s fr ee-speech clause affords a plaintiff greater rights than does the First Amendment except in terms of prior restraint. See generally Tex. Dep’t of Transp. v. Barber , 111 S.W.3d 86, 106 (Tex. 2003) (quoting Operation Rescue–Nat’l v. Pl anned Parenthood of Houston & Se. Tex., Inc. , 975 S.W.2d 546, 557–60 (Tex. 1998)). Recognizing this authority, Compton attempts to distinguish her case from Barber with a “historical and textual basis for a more expansive reading of [a]rticle 1, [s]ect ion 8 of the Texas Constitution”; however, in doing so, she fails to cite any author ity supporting that the elements of a free-speech claim under the Texas Constitution are different than the elements that must be pled under a Fi rst Amendment claim, in the context of prior restraint or otherwise, nor does sh e demonstrate how such differences “are material to [her] case.” See Bentley v. Bunton , 94 S.W.3d 561, 579 (Tex. 2002); see also Operation Rescue , 975 S.W.2d at 559 (noting that “[t]he text, history, and purposes of [a]rticle 1, [s]ection 8 have been thoroughly examined by [the Texas Supreme Court]” and finding, even in cases of prior restraint, nothing to suggest that10 injunctions restricting speech should be judged “by a different standard under the state constitution than the First Amendment”); Ex parte Tucci, 859 S.W.2d 1, 32 (Tex. 1993) (Phillips, C.J., conc urring) (articulating that “nothing in the language or purpose of the Texas Free Expr ession Clause authorizes us . . . to abandon the notion of accommodating competing interests . . . or even to afford greater weight in the balancing of interests to free expression than we would under the First Amendment . . . .”). Accordingly, we apply federal cases when anal yzing Compton’s claim, and find that Compton’s pleadings fail to allege sufficient facts to show that her speech was protected under either article I, sec tion 8 of the Texas C onstitution or under the Freedom of Speech Clause in the First Am endment. U.S. CONST. amend. I; Tex. Const. art. I, § 8. In order to plead a facially valid cl aim that her free speech rights were violated, Compton was required to allege fa cts that, if true, would show that: (1) Compton’s “speech involved a matter of public concern”; (2) her interest in speaking on such matters outweighed the District’s in terest in promoting efficiency; and (3) her speech was the motivating factor in an adverse employment action taken against her. Thompson v. City of Starkville, Miss. , 901 F.2d 456, 460 (5th Cir. 1990) (quoting Frazier v. King , 873 F.2d 820, 825 (5th Cir. 1989)). As the trial court based its dismissal of Compton’s claims against th e District on an express finding that11 Compton’s speech was not a matter of “ public concern,” we address only that element of the claim. As a general matter, speech made pursuant to a speaker’s official duties is not constitutionally protected because “[r]estric ting speech that owes its existence to a public employee’s professional responsibilitie s does not infringe any liberties the employee might have enjoyed as a private citizen.” Turner v. Perry , 278 S.W.3d 806, 816 (Tex. App.—Houston [14th Di st.] 2009, pet. denied) (quoting Garcetti v. Ceballos , 547 U.S. 410, 421–22 (2006)). Further, even where the c ontent or subject matter of speech may implicate some degree of public concern, the form and context of a given statement must also be evalua ted in the context of the whole record. See id .; Connick v. Myers, 461 U.S. 138, 147–48, (1983). Speech that is made privately between the speaker and her employer or its employees, rather than “against the backdrop of public debate” is generally not deemed of “public concern.” See, e.g. , Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 817–18 (5th Cir. 2000) (holding that the fact that the plaintiff outlin ed concerns in internal grievances rather than in any public announcement weighed in favor of finding that her speech was not public in nature); Teague v. City of Flower Mound, Tex., 179 F.3d 377, 383 (5th Cir. 1999) (holding that, although police misconduct is generally an issue of public concern, the fact that plaintiff’s speech was made privately by way of internal12 grievance rather than in a publicized disput e lent to the conclusion that the speech was “of private concern” and not protected); Price v. Tex. Alcoholic Beverage
Comm’n , No. 01-12-01164-CV, 2014 WL 3408696, at *8 (Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied) (mem . op.) (finding that speech communicated only to a superior and in the context of an employment dispute was not of public concern); cf. Markos v. City of Atlanta, Tex., 364 F.3d 567, 571 (5th Cir. 2004) (holding that speech made to a newspape r reporter with clear understanding it would be published was of public form, and noting “the importance of the form in ascertaining whether speech is of public concern.”). In this case, the record indicates th at the speech upon which Compton’s claim is based concerned a single complaint: thatwhen she attempted to print student reports from one school, he r assigned printer resulted in the documents actually printing to a copier in an open hallway at another school, and that the disclosure of the information in the reports could violat e student privacy rights. Thus, the true content of her speech was a complaint that the way the District’s printers were installed could result in Compton herself disclosing private student information if she printed her Medicaid reports to a pa rticular location without having another employee there to retrieve them, and a reques t that the District’s IT personnel install the printers differently. Such matters dir ectly concerned Compton’s official duties13 in creating and submitting reports, and th e way printers were installed by the organization that employed her. See Turner , 278 S.W.3d at 816. Moreover, her pleadings do not allege, nor does the record as a whole reveal, that she ever spoke of this matter to anyone othe r than Boutte, King, and the District’s IT personnel. As a result, her pleadings do not allege sufficien t facts to show that she had engaged in any constitutionally protected speech re garding matters of “public concern.” See id. ; Teague, 179 F.3d at 383. Moreover, Compton ha s not requested an opportunity to plead additional facts to demonstrate jurisd iction. Accordingly, based on the record that was before the trial court, we hold th at the court did not err in finding that Compton failed to plead a facially valid constitutional claim ag ainst the District. Compton also complains on appeal th at the only proper mechanism for the District to seek dismissal of her claims for failure to plead a facially valid constitutional claim would ha ve been a motion to dismiss pursuant to Rule 91a of the Texas Rules of Civil Pro cedure, which Compton asserts that the District did not timely file. See Tex. R. Civ. P. 91a. Although Comp ton is correct that the District could have sought dismissal with such a motion, “Rule 91a is not the exclusive means that a defendant may use to test the validity of a plaintiff’s pleadings.” Jackson v. Port Arthur Indep. Sch. Dist. , No. 09-15-00227-CV, 2017 WL 1425589, at *5 (Tex. App.—Beaumont Apr. 20, 2017, no pet.) (mem. op.). A plea to the14 jurisdiction is also a proper way to challenge the facial validity of a constitutional claim against a political subdivision. See, e.g. , Johnson, 353 S.W.3d at 502. Accordingly, we find Compton’s argument re garding Rule 91a to be without merit. Finally, in her reply brief, Compton argue s that the trial court had jurisdiction over her claims because the Uniform De claratory Judgment Act (“DJA”) permits recovery of attorney’s fees even by a non-prevailing party. Although Compton’s first amended petition—her live pleading at the ti me of dismissal—does not allege any legal basis for recovery of attorney’s fees, her reply brief indicates that the claim is made pursuant to section 37.009 of the DJ A. The Texas Supreme C ourt has held that the DJA waives governmental immunity from suit for a claim for attorney’s fees under section 37.009 when the claim for attorn ey’s fees is made in connection with a claim for declaratory relief that falls within the limited waiver of immunity contained in section 37.006(b) of the DJA. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.006(b), 37.009 (West 2015); Tex. Educ. Agency v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994). However, Compton’s reque st for declaratory judgment does not fall within section 37.006(b)’s limited waiver of immunity because nothing in her claims challenges the validity of an ordinance, statute, or franchise. See Tex. Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 622 (Tex. 2011). Therefore, the DJA does not waive the District’s governmental imm unity from suit for Compton’s claim for15 declaratory relief, nor for her request for attorney’s fees. See id .; Montrose Mgmt. Dist. v. 1620 Hawthorne, Ltd. , 435 S.W.3d 393, 403–04 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 2. Failure to Plead a Justiciable Claim In her second issue, Compton argues thather request for injunctive relief was not moot because if she were ever to return to work as a speech language pathologist for the District, she would work under King again, at which point King “would immediately return to harassing her.” Sh e also argues that “mootness depends upon evidence and proof which ma y only surface outside the pleadings by the court’s exercise of jurisdictional authority,” alt hough she cites no legal authority in support of this assertion. Issues of justiciability, including m ootness and standing, are all threshold issues that implicate subject matter jurisdiction. See Heckman v. Williamson Cty. , 369 S.W.3d 137, 162 (Tex. 2012); Labrado v. Cty. of El Paso, 132 S.W.3d 581, 589 (Tex. App.—El Paso 2004, no pe t.). Justiciability, which is a component of standing, requires the existence of a liv e “controversy between the parties that will be actually resolved by the judicial relief sought.” State Bar of Tex. v. Gomez , 891 S.W.2d 243, 245 (Tex. 1994); see also Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex. 1995) (holding that “[t]o constitu te a justiciable controversy, there must exist a real16 and substantial controversy involving genuin e conflict of tangible interests and not merely a theoretical dispute.” (quoting Bexar-Medina-Atascosa Ctys. Water Control & Improvement Dist. No. 1 v. Medina Lake Prot. Ass’n , 640 S.W.2d 778, 779–80 (Tex. App.—San Antonio 1982 , writ ref’d n.r.e.)) Because mootness or the lack of a justiciable controversy deprives a court of subject matter juri sdiction, which is “essential to a court’s authority to dispose of cases,” it may be raised by any party, or the court sua sponte , at any time. City of El Paso v. Waterblasting Techs., Inc ., 491 S.W.3d 890, 904 (Tex. App. —El Paso 2016, no pet.). Compton argues that she is entitled to injunctive relief on the basis that she “wants to become a speech language pat hologist again” but would potentially face harassment from King in the event that she ev er returns to work as a speech therapist for the District in the future. Such a claim is insufficient to constitute a live controversy. Compton did not plead for rein statement of her old position as a speech therapist in the trial court, nor has she alle ged, either in the tr ial court or on appeal, that she has any legal or contractual right to return to that position. Without pleadings alleging an actual, continuing present inju ry, or even a reasonable expectation or likelihood that Compton will work as a speech therapist for the District again, any request for injunctive relief would be merely hypothetical , rendering judicial action an impermissible advisory opinion. See Robinson v. Alief Indep. Sch. Dist ., 29817 S.W.3d 321, 326 (Tex. App.—Houston [ 14th Dist.] 2009, pet. denied); see also Pate v. Edwards , No. 12-13-00231-CV, 2014 WL 1725 09, *2 (Tex. App.—Tyler Jan. 15, 2014, no pet.) (mem. op.) (plaintiff’s assertion that sh e could return to work for the school district after her resignation presented a “hypothetical or contingent controversy” over whic h a court, even as part of a declaratory judgment action, has no authority to resolve); Scurlock Permian Corp. v. Brazos Cty. , 869 S.W.2d 478, 487 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“Courts may not give advisory opinions or decide cases upon speculative, hypothetical, or contingent situations.”). Compton’s request for declaratory re lief likewise presents a nonjusticiable claim because her pleadings affirmatively negate the existence of continuing harm, and thus a live controversy. “Past expos ure to illegal conduct does not in itself amount to a present controversy for declaratory relief if unaccompanied by any continuing, present, adverse effects.” Robinson , 298 S.W.3d at 327; see also Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) (holding that a claim for declaratory relief is moot if the part y is no longer subjected to the alleged unconstitutional activity for which he seeks declaratory relief). Further, we disagree with Compton’ s complaint that mootness cannot be established based on the record before the trial court. In pertinent part, Compton’s18 pleadings and argument establish that sh e requested and received a reassignment away from King prior to filing this acti on, and that after the transfer, it was “impossible for Defendants’ [sic] to continue their harassment of her because she is no longer working with them.” The tria l court, acknowledging these undisputed facts, stated in its June 24 letter to counsel that “[r]egardless of whether this would be considered as depriving the case of a ju sticiable issue or rendering the issue moot, dismissal for lack of jurisdiction is warranted.” 4 The record, both before the trial court and in Compton’s own argument on app eal, affirmatively negates any need for additional evidence or proof, as it is undi sputed that Compton was no longer being subjected to any alleged harassm ent before she filed suit. Compton also argues for the first time in her reply brief that her claim for attorney’s fees under the DJA remains a live controversy even if the mootness doctrine prevents her from prevailing on her request for substantive relief. Even if Compton had presented this argument in her opening brief, it would not have

4 Neither the trial court’s order granti ng the plea to the jurisdiction nor the order denying a new trial and affirming the dismissal of all parties address the issue of mootness; however, the trial court’s le tter ruling explicitly id entified mootness or the absence of a justiciable issue as a basis supporting dismissal for lack of jurisdiction, and both parties have, in their respective briefs, treated the letter ruling as providing a basis of the court’s dismissal of all claims. Accordingly, we treat the trial court’s letter rulings as competent evidence of the trial court’s basis for dismissing the claims.19 supported reversal, as Compton’s case is fundamentally distinguishable from each of the cases upon which she relies in s upport of her argument. Specifically, Compton’s claim that her request for attorn ey’s fees remains a “live controversy” despite the mootness of her substantive clai ms ignores the subtle distinction between a case that la cked justiciability from the moment of pleading and a case wherein some event “extinguished wh at was initially a live contr oversy, a justiciable case between proper parties.” See Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 865 (Tex. 2010). In each of the cas es cited by Compton in supp ort of her argument, there existed a justiciable claim at the time of filing that wa s subsequently rendered moot by the occurrence of one or more inte rvening events during the pendency of litigation. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642–43 (Tex. 2005) (cross-claims brought between an insura nce company and its insured under the Declaratory Judgment Act fo r determination of rights under insurance policy were live controversies at the time of filing, rendered moot after th e underlying litigation by the insurance company’s ultimate provision of the requested defense); Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151–52 (T ex. 1988) (farm workers’ challenge to the constituti onality of the Texas Unemployment Compensation Act’s agricultural exemption was rendered moot by Legislat ure’s amendment of the Act after injunctive and declaratory relief had been granted by the trial court); Ward v.20 Lamar Univ. , 484 S.W.3d 440, 450 (Tex. App.— Houston [14th Dist.] 2016, no pet.) (employee resigned her position after the trial court dismissed her claims but before any party file d a brief on appeal); Pate , 2014 WL 172509, at *2 (employee voluntarily resigned to pursue other empl oyment opportunities three months after the trial court entered a temporary re straining order in employee’s favor); see also Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 774–75 (Tex. App.— Dallas 2011, no pet.) (“[A] cas e under the Declaratory Judgments Act remains a live controversy, even if all requests for substantive decl aratory relief become moot during the action’s pendency , as long as a claim for a ttorneys’ fees under the Act remains pending.”) (emphasis added). Compt on has cited no author ity, and we have likewise found no authority, for the propositi on that a claimant can seek attorney’s fees on a claim for which th ere was no justiciable issue, and therefore no standing, at the time the suit was filed. 5 We therefore reject Compton’s argument that her own

5 We recognize that in Devon Energy Prod. Co . v. KCS Res., LLC , our sister court has rejected the argument that mootness ab initio , as distinguished from intervening mootness, deprives a trial court of jurisdiction to award attorney’s fees under the DJA. 450 S.W.3d 20 3, 220–23 (Tex. App.—Hous ton [14th Dist.] 2014, pet. denied). We find Devon Energy to be distinguishable be cause that case affirmed the trial court’s jurisdiction to aw ard attorney’s fees to the party defending against a declaratory judgment action over which the trial court had determined that it lacks subject matter jurisdiction over the plaintiff’s claim. Id . at 220. We decline to extend that court’s reasoning to allow a claimant to continue to pursu e her own attorney’s fees when she lacked standing at the outse t to seek the underlying substantive relief.21 request for attorney’s fees under the DJA can “revive” a claim that was not a live controversy at its legal inception. B. Dismissal of Compton’s Claims Against the Individual Defendants In her third issue, Compton challenges th e trial court’s dismissal of her claims against Brown and King, individually. Speci fically, Compton argues that Brown and King were not entitled to immunity or dism issal under the TTCA because they were each acting ultra vires , outside the scope of their le gitimate duties, and because she sought only declaratory and injunctive re lief on constitutional grounds, rather than damages for tort. However, we need not address the merits of Compton’s claims, nor the applicability of the election of remedi es doctrine in light of the trial court’s factual finding that King and Brown were ac ting “within the scope of and/or incident to their duties,” because we find that Compton’s ultra vires claims against the individual defendants suffer fro m the same dispositive absence of a justiciable issue as her claims against the District, depr iving the trial court of subject matter jurisdiction. Although the trial court did state in its letter to counsel that dismissal of Compton’s claims for lack of jurisdiction was warranted for mootness or lack of a justiciable issue, none of the orders thatwere entered by the court dismissing the claims against the individual defendants specifically articulated the absence of a22 justiciable issue as the actual basis for dismissal, referencing instead only section 22.0511 of the Texas Education Code a nd section 101.106 of the Texas Civil Practices and Remedies Code. Nevertheless, as the existence of justiciable claim is a threshold component of subject matter jurisdiction, we consider Compton’s standing sua sponte as a ground upon which to affirm the trial court’s finding that it lacked jurisdiction over Compton’s claims. See Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517 n.15 (Tex. 1995); Tex. Ass’n of Bus. , 852 S.W.2d at 446. As we have already se t forth in response to Compton’s second issue above, even construed liberally a nd in her favor, Compton’s pleadings not only fail to allege, but rather affirmativ ely negate, the existence of any justiciable controversy against the District or the individual de fendants. Accordingly, the trial court’s dismissal of Compton’s claims against Br own and King for lack of jurisdiction was
proper. See Robinson , 298 S.W.3d at 327; Pate , 2014 WL 172509, at *2; Williams , 52 S.W.3d at 184. C. Award of Attorney’s Fees to Individual Defendants In her final point of error, Compton as serts that the trial court’s award of attorney’s fees to Brown and King should be reversed because th e description of the rendered legal services provide d in their claim for fees did not specify which services billed were for whom among Brown, King, and Boutte, individually.23 We review de novo both the availability of attorney’s fees under a particular statute and the need to segreg ate attorney’s fees, as such issues are questions of law. Jakab v. Gran Villa Townhous es Homeowners Ass’n, Inc., 149 S.W.3d 863, 867 (Tex. App.—Dallas 2004, no pet.) (discussing whether attorney’s fees are available under a particular statute is reviewed de novo ); Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 312–13 (Tex. 2006) (the need to segregate fees is a question of law). However, the extent to which attorney’s fees “can or cannot be segregated is a mixed question of law and fact.” CA Partners v. Spears , 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied ). On review of such mixed questions, we “defer to the trial court’s factual dete rminations if supported by the evidence but review its legal dete rminations de novo.” Titan Transp., LP v. Combs , 433 S.W.3d 625, 636 (Tex. App.—Austin 2014, pet. denied). The application for attorney’s fees at issue was filed jointly by Brown, King, and Boutte. The record does not cont ain a written response by Compton to the request; however, the record does indicate th at a hearing was held on the matter, at which time Compton argued that attorney’s fees were not available to the defendants because Compton had not pled a tort cause of action agains t them, and that attorney’s fees for Boutte were inappropriate becau se she was only named in the style, and24 never listed as a defendant or served with process. After the hearing, the trial court awarded attorney’s fees to Brown and King, jointly and severally. The individual defendants’ application fo r attorney’s fees did not segregate fees by party, nor did the trial court’s or der award fees by party; rather, the court found that “[t]he ma tters identified would have b een necessary for any and all defendants with the same amount of ti me having been expe nded.” On appeal, Compton acknowledges the trial court’s finding in this regard, yet offers no authority to support her contention that fees must nonetheless have been segregated among the individual defendants. A review of the record on appeal supports the trial court’s finding regarding the nature of the claimed fees, as all fees awarded were for work done on behalf of all of the individual de fendants collectively, asserting the same defenses and arguments to a singular set of facts, almost none of which involved Boutte individually and distinct from King and Brown. Accordingly, we find that there is evidence to support the court’s f actual determination that attorney’s fees could not be segregated. Compton next argues that the trial cour t should not have awarded fees under the Texas Education C ode because her case was not actually di smissed based on the professional immunity provision containe d in section 25.0511. Compton cites no25 authority in support of such a prerequisi te, nor can one be found in either section 22.0517 or 22.0511 of the Texas Educa tion Code. Section 22.0517 provides: In an action against a professional employee of a school district involving an act that is incidental to or within the scope of duties of the employee’s position of employment and brought against the employee in the employee’s individual capacity, the employee is entitled to recover attorney’s fees and court cost s from the plaintiff if the employee is found immune from liability under this subchapter. Tex. Educ. Code Ann. § 22.0517 (West 2012). In turn, Sec tion 22.0511, which establishes “immunity” for the pur poses of Chapter 22, provides: A professional employee of a school di strict is not personally liable for any act that is incident to or w ithin the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professi onal employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students. Id . § 22.0511(a). Nothing in section 22.0517 makes dismissal based on 22.0511 a prerequisite to recovery of attorney’s f ees; rather, read together, these provisions require only a finding or determination that a defendant is immune from liability as a professional employee in order to be entitled to receive fees. See Ward v. Theret , 346 S.W.3d 672, 675–76 (Tex . Civ. App.—El Paso 200 9, no pet.). Although Compton argues that King is not entitled to immunity because her actions were motivated by spite and were “not in furthera nce of the interests of [the District],” Compton neither pled nor argued that investigation of di screpancies in an26 employee’s documentation or setting an em ployee’s meeting schedule were outside the scope of King’s authority or her official duties as the speech pathology supervisor. Moreover, t he trial court explicitly found th at the actions allegedly taken by the individual defendants “were, in fact, within the scope of and/or incident to their duties” regardless of the individual s’ personal motivations. This finding is consistent with section 22.0511 of the Texas Education Code, which, unlike some other types of immunity, contains no “good faith” element or requirement. See Tex. Educ. Code A nn. § 22.0511; Robinson v. Brannon , 313 S.W.3d 860, 866 n.3 (Tex. App.—Houston [14th Di st.] 2010, no pet.); c.f. , City of Lancas ter v. Chambers , 883 S.W.2d 650, 653 (Tex. 1994) ( acknowledging “good faith” el ement as a requirement for affirmative defense of official immunity for public servants) . Accordingly, we conclude that the trial court did not err in awarding King and Brown attorney’s fees under section 22.0517. Tex. Educ. Code Ann. §§ 22. 0511, 22.0517. In her reply brief, Compton also asse rts that “[i]f the trial court lacked jurisdiction over Compton’s claims for attorney’s fees under the Declaratory Judgment Act, then it lacked jurisdiction to award attorney’s fees under that Act to Appellees as well.” Compton again cites no legal authority in support of her claim. We find that the argument is not only legally inaccurate, 6 it also ignores that the basis

6 See, e.g. , Devon Energy Prod. Co. , 450 S.W.3d at 222–24.27 for the trial court’s award of attorney’s fe es was not the DJA, but section 25.0517 of the Texas Education Code , as discussed above. Finally, Compton also complains for the first time in her reply brief that the individual defendants failed to segregate their claimed attorney’s fees between fees associated with the assertion of professi onal immunity and those associated with defending the suit on any other grounds. Compton did not raise this argument in the trial court when the individual defendants’ re quest for attorney’s fees was heard, nor in her opening brief. Accordingly, we find that this argument ha s been waived, and is not properly before the court. See Green Int’l, Inc. v. Solis , 951 S.W.2d 384, 389 (Tex. 1997) (holding that if a party fails to object in the trial court that the attorney’s fees are not segregated as to specific claims, then the objection is waived); see also Tex. R. App. P. 38.3; Private Mini Storage Realty, L. P. v. Larry F. Smith, Inc. , 304 S.W.3d 854, 859 (Tex. App.—D allas 2010, no pet.) (holding that a party may not raise a new issue in a reply brief); Green Light Co. v. Moore, 485 S.W.2d 360, 364 (Tex. Civ. App.—Houston [14th Dist.] 1972, no writ) (“The new grounds for reversal set forth in appellants’ second brief may not be considered.”). Having overruled each of Compton’s issues , we affirm the tr ial court’s orders dismissing Compton’s claims against all de fendants and awarding attorney’s fees to Brown and King.28 AFFIRMED.

______________________________ CHARLES KREGER Justice Submitted on July 5, 2016 Opinion Delivered July 20, 2017 Before McKeithen, C.J., Kr eger and Horton, JJ.