IN THE

TENTH COURT OF APPEALS

No. 10-15-00035-CV

TEXAS A&M UNIVERSITY, MARK HUSSEY, PH.D.

IN HIS OFFICIAL CAPACITY AS INTERIM PRESIDENT 

OF TEXAS A&M AND DAVID VAUGHT, PH.D., 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS 

DEPARTMENT HEAD OF DEPARTMENT HISTORY,

Appellants

v.

ERNEST STARKS, PH.D.,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 14-001701-CV-272

O P I N I O N

In this accelerated appeal, Texas A&M University, Mark Hussey, Ph.D., in his 

official capacity as Interim President of Texas A&M University, and David Vaught, Ph.D., 

individually and in his official capacity as Department Head of the Department of 

History, appeal the trial court’s interlocutory order denying their plea to the jurisdiction 
Tex. A&M Univ. v. Starks Page 2

and motion for summary judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5), 

(8) (West Supp. 2015). We will affirm in part and reverse in part.

Background

Ernest Starks, Ph.D., has sued TAMU, Hussey, and Vaught, alleging the following:

He is an African-American male over the age of forty and a full professor in TAMU’s 

history department; he has been a TAMU faculty member for nearly twenty years. As a 

faculty member, he has spoken out regarding TAMU’s “unwillingness to establish a 

workplace that reflects equal and fair opportunity for African-Americans within its 

faculty and administrative ranks.” He has spoken out at faculty meetings and to faculty 

colleagues about the lack of racial and ethnic diversity within the Department of History 

specifically. Furthermore, as a TAMU professor, he has experienced the following 

“recent acts of discrimination and retaliation”:

 On April 12, 2013, Starks applied for the position of Faculty Ombuds Officer at 

TAMU, and the job announcement indicated that the position was to be filled 

by a full professor. At the time, Clare Gill, a younger white female, was an 

associate professor. In September 2013, Gill was promoted to full professor, 

and TAMU then announced that she had been selected for the Faculty Ombuds 

Officer position. “The decision to select a less qualified, white, younger, female 

over Starks, was an act of discrimination and retaliation towards him.” 

 On August 30, 2013, in “an act of discriminatory animus,” Vaught issued a 

written reprimand to Starks, falsely accusing him of violating departmental 

guidelines regarding the preparation of syllabi. Starks tried to discuss the 

matter with Vaught, but Vaught instead prepared another written document

that he then circulated to other administrators and faculty. The document 

reiterated the false allegations about the syllabi, threatened Starks’s future 

teaching of certain courses, and stated that Starks’s conduct would be 

considered in future performance reviews. This reaction to a problem with 

syllabi was unprecedented.
Tex. A&M Univ. v. Starks Page 3

 After filing his Texas Workforce Commission charge of discrimination against 

TAMU, Starks received an unfairly negative Annual Merit Review and 

Evaluation for the 2013 Academic Year. To correct his work performance 

record, Starks provided the Department with a written rebuttal to the Review 

and made a request that Vaught retract the inaccurate portions of the Review. 

Vaught refused and continued to take steps to discredit Starks, harm his 

reputation, and prevent advancement to a high-level position in TAMU 

administration.

 Because of his “animus towards African-Americans,” Vaught has refused to 

appoint Starks to any departmental committees or programs, despite Starks’s 

willingness to serve and despite other non-African-American faculty members 

being appointed to serve on multiple committees in an academic year. “Not 

being allowed to serve in such a role negatively impacts [Starks’s] ability to 

earn merit increases and be considered for advancement to top tier 

administrative positions.”

Based on the foregoing allegations, Starks has asserted causes of action against 

TAMU, Hussey, and Vaught for employment discrimination and retaliation in violation 

of sections 21.051 and 21.055 of the Labor Code. Starks has also asserted free-speech 

retaliation claims against Hussey and Vaught. Starks seeks monetary damages from 

TAMU and equitable relief from Hussey and Vaught.

TAMU, Hussey, and Vaught (collectively, Appellants) filed a plea to the 

jurisdiction and motion for summary judgment, which the trial court denied. 

TAMU’s Plea to the Jurisdiction

In Appellants’ first issue, TAMU contends that the trial court erred in denying its 

plea to the jurisdiction because it demonstrated that Starks presented no admissible 

evidence establishing that he timely exhausted his administrative remedies. More 

specifically, TAMU argues that it demonstrated that (1) the only allegation by Starks that 

qualifies as an “adverse employment action” and could therefore potentially support 
Tex. A&M Univ. v. Starks Page 4

Starks’s discrimination claim is the denial of the Faculty Ombuds Officer position and (2) 

Starks failed to establish that he filed a charge of discrimination within 180 days of being 

informed of the denial of the Faculty Ombuds Officer position. 

We review a trial court’s ruling on a plea to the jurisdiction de novo. 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 

When a party has filed a plea to the jurisdiction challenging the pleadings, 

a reviewing court must construe the pleadings liberally in favor of the 

pleader and look to the pleader’s intent. See id. If the facts alleged 

affirmatively demonstrate the trial court’s jurisdiction to hear the cause, the 

plea to the jurisdiction must be denied. See id. If the pleadings do not 

contain sufficient facts to affirmatively demonstrate the trial court’s 

jurisdiction, but do not affirmatively demonstrate incurable defects in the 

jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should 

be afforded the opportunity to amend. See id. If the pleadings affirmatively 

negate the existence of jurisdiction, then a plea to the jurisdiction may be 

granted without allowing an opportunity to amend. See id. at 227.

If in its plea to the jurisdiction a party challenges the existence of 

jurisdictional facts, the reviewing court considers relevant evidence 

submitted by the parties when necessary to resolve the jurisdictional issues 

raised, as the trial court is required to do. See id. If the evidence creates a 

fact question regarding the jurisdictional issue, then the plea to the 

jurisdiction must be denied. See id. at 227-28. However, if the relevant 

evidence is undisputed or fails to raise a fact question on the jurisdictional 

issue, then the court rules on the plea to the jurisdiction as a matter of law. 

Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider 

the merits of the parties’ claims. See id. at 226-28; County of Cameron v. 

Brown, 80 S.W.3d 549, 555 (Tex. 2002).

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3-4 (Tex. App.—Houston 

[14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010). 

We begin with the contention that Starks failed to establish that he filed a charge 

of discrimination within 180 days of being informed of the denial of the Faculty Ombuds

Officer position. Section 21.202 of the Labor Code states, “A complaint under this 

subchapter must be filed not later than the 180th day after the date the alleged unlawful 
Tex. A&M Univ. v. Starks Page 5

employment practice occurred.” TEX. LAB. CODE ANN. § 21.202 (West 2015). The timely 

filing of a complaint is mandatory, and when the defendant is a governmental entity, the 

failure to timely file is a jurisdictional bar to suit. Prairie View A & M Univ. v. Chatha, 381 

S.W.3d 500, 514 (Tex. 2012). The 180-day limitations period begins when the employee is 

informed of the allegedly discriminatory employment decision. Specialty Retailers, Inc. v. 

DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996). 

Starks was informed that he was not awarded the Faculty Ombuds Officer position 

on June 29, 2013. The 180-day limitations period thus ended on December 26, 2013. In 

support of their plea to the jurisdiction, Appellants submitted a copy of Starks’s formal 

“Charge of Discrimination” that shows that it was received by the Texas Workforce 

Commission, Civil Rights Division, on December 31, 2013. TAMU has therefore shown 

that Starks did not file his formal “Charge of Discrimination” within 180 days of being 

informed of the denial of the Faculty Ombuds Officer position. 

The supreme court has held, however, that, to satisfy the timeliness requirement, 

a sworn charge of discrimination filed outside the 180-day limitations period can relate 

back to the date that the plaintiff filed the employment intake questionnaire. See Hennigan 

v. I.P. Petroleum Co., 858 S.W.2d 371, 373 (Tex. 1993) (verified complaint related back to 

and satisfied any deficiencies in unverified questionnaire that was timely filed); Tex. Tech 

Univ. v. Finley, 223 S.W.3d 510, 515 (Tex. App.—Amarillo 2006, no pet.) (charge deemed 

timely even though dated after deadline because plaintiff’s initial complaint letter, which 

satisfied requirements of proper complaint, filed before deadline). Starks claims that the 
Tex. A&M Univ. v. Starks Page 6

evidence shows that although his formal “Charge of Discrimination” was not filed until 

December 31, 2013, his original complaint was filed on or about November 4, 2013. 

After Appellants filed their plea to the jurisdiction and motion for summary 

judgment, Starks filed his first amended petition with exhibits attached. See State v. BP 

Am. Prod. Co., 290 S.W.3d 345, 349-50 (Tex. App.—Austin 2009, pet. denied) (“In resolving 

the jurisdictional challenges presented by the plea, we may ... consider evidence that the 

pleader has attached to its petition or submitted in opposition to the plea.”). Starks also 

filed a response to the plea to the jurisdiction and motion for summary judgment, with 

exhibits attached, and a sur-reply to the Appellants’ reply to his response to the plea to 

the jurisdiction and motion for summary judgment, with exhibits attached. Starks points 

in part to the following evidence in the exhibits to show that his complaint was filed on 

or about November 4, 2013:

(1) a transmittal letter, dated November 4, 2013, from Starks’s counsel to “Intake 

Officer, Texas Workforce Commission, Civil Rights Division, 101 East 15th

Street, #144T, Austin, TX 78778-0001,” stating that it was sent via email to 

EEOIntake@twc.state.tx.us and via certified mail, return receipt requested. The 

letter states, “Re: Dr. Ernest Starks – Texas A&M University Department of 

History – Revised.” The letter also states, “Please find enclosed Dr. Starks’s 

Intake Questionnaire and Charge of Discrimination. A Charge was submitted 

on behalf of Dr. Starks on Friday, November 1, 2013. Please replace that Charge 

with this document.” 

(2) the “Employment Discrimination Complaint Form” from the Texas Workforce 

Commission, Civil Rights Division, which lists Starks as the complainant. The 

form states that it is to be returned by email to EEOIntake@twc.state.tx.us. It 

lists the mailing address as 101 East 15th Street, #144T, Austin, TX 78778-0001. 

A document entitled “Charge of Discrimination,” dated October 31, 2013, is 

incorporated and attached to the “Employment Discrimination Complaint 
Tex. A&M Univ. v. Starks Page 7

Form.” The “Charge of Discrimination” details Starks’s discrimination 

complaints against TAMU and is signed by Starks.1 

(3) the USPS “green card” addressed to “Intake Officer, Texas Workforce 

Commission, Civil Rights Division, 101 East 15th Street #144T, Austin, TX 

78778-0001” that shows something was received by the Texas Workforce 

Commission on November 7, 2013. 

TAMU responds that this evidence does not establish that Starks filed anything 

within the requisite time limit because: 

(1) “the November 4, 2013 transmittal letter, which states that the law firm has 

‘enclosed Dr. Starks’ Intake Questionnaire and Charge of Discrimination,’ does 

not include the certified mail article number found on the ‘green card’, nor does 

it include a date stamp from the TWCCRD”;

(2) while the “green card” “shows that a TWCCRD Intake Officer received 

something on or about November 7, 2013, nothing on that ‘green card’ or the 

certified mail receipt demonstrates that it was an intake questionnaire from 

Starks”; and 

(3) “the ‘Employment Discrimination Complaint Form,’ that allegedly 

accompanied the November 4, 2013 transmittal letter, does not include any 

information in the section entitled, ‘DATE RECEIVED’ which would 

demonstrate exactly when the form was received by the TWCCRD.” 

As support for its argument, TAMU also relies on Tex. Dep’t of Pub. Safety v. 

Alexander, 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied). In Alexander, the sixteen 

plaintiffs were required to file their charges of discrimination no later than May 29, 2002. 

Id. at 70. In response to a plea to the jurisdiction, the plaintiff in question presented as 

evidence: (1) a copy of her intake questionnaire, signed by her and dated on May 21, 

2002, and (2) an affidavit stating that she “filed a charge of discrimination” concerning 

 

1 This is not the formal “Charge of Discrimination” mentioned above that the Texas Workforce 

Commission, Civil Rights Division, received from Starks on December 31, 2013.
Tex. A&M Univ. v. Starks Page 8

the alleged discriminatory action on or before May 21, 2002. Id. at 75. The court held that 

this evidence was insufficient to show that the plaintiff filed her questionnaire before the 

180-day deadline. Id. at 76. The court stated, “[T]here must be something else in the 

record to create a logical bridge between the completed intake questionnaire and the 

timely filing of that questionnaire.” Id.

We believe that, in this case, the transmittal letter and USPS “green card” provide 

the necessary connection. The transmittal letter states that “Dr. Starks’s Intake 

Questionnaire” and “Charge of Discrimination” were sent to the Intake Officer at the 

Texas Workforce Commission, Civil Rights Division, on November 4, 2013 via email and 

certified mail, return receipt requested. The email and mailing addresses listed on the 

transmittal letter for the Intake Officer at the Texas Workforce Commission, Civil Rights 

Division, are the same email and mailing addresses provided on the “Employment 

Discrimination Complaint Form” as the proper addresses for where to send the 

completed form. The USPS “green card” then shows that something was received via 

certified mail, return receipt requested, at that proper mailing address by the Texas 

Workforce Commission on November 7, 2013. While this evidence may not conclusively 

establish that Starks’s “Employment Discrimination Complaint Form,” along with the 

incorporated and attached “Charge of Discrimination,” were received and filed by the 

Texas Workforce Commission, Civil Rights Division, on November 7, 2013, the evidence

certainly creates a fact question regarding it. Cf. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 

1987) (explaining that Texas Rule of Civil Procedure 21a regarding service sets up 
Tex. A&M Univ. v. Starks Page 9

presumption that letters and notices, when properly addressed, stamped, and mailed, are 

presumed to have been duly received by addressee).

We therefore conclude that based on the relation-back doctrine, the evidence 

creates a fact question as to whether a “complaint” was filed within the 180-day 

limitations period. Because there is a fact issue, the trial court did not err in denying

TAMU’s plea to the jurisdiction based on the ground that Starks failed to timely exhaust 

his administrative remedies on his discrimination claim. See Kirby Lake Dev., Ltd., 321 

S.W.3d at 4 (“If the evidence creates a fact question regarding the jurisdictional issue, then 

the plea to the jurisdiction must be denied.”). We need not reach Appellants’ argument 

that the only allegation by Starks that qualifies as an “adverse employment action” and 

could therefore potentially support Starks’s discrimination claim is the denial of the 

Faculty Ombuds Officer position. We overrule Appellants’ first issue.

Hussey’s and Vaught’s Plea to the Jurisdiction

In Appellants’ second issue, Hussey and Vaught contend that the trial court erred 

in denying their plea to the jurisdiction because Starks’s free-speech retaliation claim

against them in their official capacities is barred by sovereign immunity. 

Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit 

in which a party has sued the State or a state agency, unless the Legislature has consented 

to suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). A suit 

against a government employee in his official capacity is a suit against his government 

employer; therefore, an employee sued in his official capacity has the same governmental 

immunity, derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367, 
Tex. A&M Univ. v. Starks Page 10

382-83 (Tex. 2011). But there is an exception: an action alleging that the government 

employee acted ultra vires. Id. An ultra vires action is one in which the plaintiff seeks 

relief against a government employee in his official capacity who allegedly has violated 

statutory or constitutional provisions by acting without legal authority or by failing to 

perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 

(Tex. 2009). Ultra vires suits do not attempt to exert control over the State—they attempt 

to reassert the control of the State. Id. at 372.

When a plaintiff alleges that a government employee in his official capacity acted

ultra vires, we must examine whether the plaintiff’s petition sufficiently pleaded his 

claims to defeat the government’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 226. 

While a plea to the jurisdiction “does not authorize an inquiry so far into the substance 

of the claims presented that plaintiffs are required to put on their case simply to establish 

jurisdiction,” the plaintiffs must do more than merely name a cause of action against the 

state official and assert the existence of a constitutional violation. Id. at 223; see Andrade 

v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering merits of equal-protection 

claim against Secretary of State in reviewing ruling on plea to jurisdiction and explaining 

that Secretary retained immunity from suit unless plaintiffs pleaded “viable claim”); City

of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.—Texarkana 2011, pet. denied) (noting 

that governmental defendant remains immune from suit absent plaintiff’s pleading of 

viable claim). To state a claim within the waiver of sovereign immunity, the plaintiff 

must plead a facially valid constitutional claim. See City of Houston v. Johnson, 353 S.W.3d 

499, 504 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Tex. A&M Univ. v. Starks Page 11

We begin with Starks’s allegations against Hussey. In his first amended petition, 

Starks states that he is bringing a state constitutional free-speech retaliation claim against 

Hussey for which he is seeking equitable relief. Starks alleges, “In retaliation for speaking 

out, Dr. Starks was denied a promotion, excluded from departmental leadership, and 

given undeserved negative reviews. Dr. Starks has also been kept out of leadership roles 

at the university.” Hussey argues that these pleadings “fell well short of what is required 

to proceed.” Hussey claims that Starks has failed to plead an ultra vires claim against him

and that, even if Starks has pleaded an ultra vires claim against him, Starks has failed to 

plead a viable free-speech retaliation claim against him. 

The proper defendants in an ultra vires action are those officials whose acts or 

omissions allegedly violated the plaintiff’s rights. Montrose Mgmt. Dist. v. 1620 

Hawthorne, Ltd., 435 S.W.3d 393, 413 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) 

(citing Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)). Here, even though 

Starks states that he is bringing a state constitutional free-speech retaliation claim against 

Hussey, he does not allege in his pleading that Hussey was involved at all in any of the 

alleged unconstitutional retaliatory conduct against him. In other words, Starks alleges 

that in retaliation for speaking out, he was denied a promotion, excluded from 

departmental and university leadership, and given undeserved negative reviews, but

Starks does not allege that Hussey had any involvement in the denial of a promotion to 

him, his exclusion from departmental or university leadership, or his being given

undeserved negative reviews. Starks has therefore failed to plead an ultra vires claim 

against Hussey. See id.; see also Heinrich, 284 S.W.3d at 372 (stating that to fall within ultra 
Tex. A&M Univ. v. Starks Page 12

vires exception, suit must allege, and ultimately prove, official acted without legal 

authority or failed to perform purely ministerial act).

Starks acknowledges as much in his brief, and, citing City of Dallas v. England, 846 

S.W.2d 957, 960 (Tex. App.—Austin 1993, writ dism’d w.o.j.), states that Hussey is a party 

because he is one of the officials in authority at TAMU with the power to act on the 

injunctive relief that Starks requests from the trial court. England, however, does not 

support Hussey’s being a proper party even though Starks does not assert that he was 

involved in any of the alleged unconstitutional retaliatory conduct. Instead, England

merely supports the general rule that “actions of a state official that are unconstitutional, 

illegal, wrongful, or beyond statutory authority are not immunized by governmental 

immunity” and that the proper remedy is for the party to sue the official who committed 

the actions that are unconstitutional, illegal, wrongful, or beyond statutory authority, not 

the governmental unit itself. See id. Accordingly, the trial court erred in denying 

Hussey’s plea to the jurisdiction because Starks’s free-speech retaliation claim against 

him in his official capacity is barred by sovereign immunity.

We now turn to Starks’s allegations against Vaught. Starks makes the same 

allegations against Vaught as he did against Hussey. Likewise, as with Hussey, Vaught

argues that Starks has failed to plead an ultra vires claim against him and that, even if 

Starks has pleaded an ultra vires claim against him, Starks has failed to plead a viable freespeech retaliation claim against him.

As stated above, the proper defendants in an ultra vires action are those officials 

whose acts or omissions allegedly violated the plaintiff’s rights. Montrose Mgmt. Dist., 
Tex. A&M Univ. v. Starks Page 13

435 S.W.3d at 413. In this case, Starks alleges that his state constitutional free-speech 

rights were violated when, in retaliation for speaking out, he was denied a promotion,

excluded from departmental and university leadership, and given undeserved negative 

reviews. For Starks’s allegations to implicate Vaught in the violation of his free-speech 

rights, Starks must have alleged that Vaught was involved in the denial of a promotion

to Starks, his exclusion from departmental and university leadership, and his being given

undeserved negative reviews.

Starks does not allege that Vaught had any involvement in the denial of a 

promotion to him. Starks does not allege that Vaught was involved at all in anything

regarding the Faculty Ombuds Officer position. Therefore, Starks has not pleaded an 

ultra vires claim against Vaught by alleging that Starks’s state constitutional free-speech 

guarantees were violated when he was denied a promotion in retaliation for speaking out

regarding a matter of public concern. See id.; see also Heinrich, 284 S.W.3d at 372. Starks 

does allege, however, that Vaught was involved in refusing to appoint him to any 

departmental committees or programs. Starks has therefore pleaded an ultra vires action 

against Vaught by alleging that Starks’s state constitutional free-speech guarantees were 

violated when he was excluded from departmental and university leadership in 

retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt. 

Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372. Similarly, although Starks 

does not allege that Vaught affirmatively acted in giving Starks undeserved negative 

reviews, Starks does allege that Vaught was involved by refusing to retract inaccurate 

portions of his annual performance review. Therefore, we assume that Starks has 
Tex. A&M Univ. v. Starks Page 14

pleaded an ultra vires action against Vaught by alleging that Starks’s state constitutional 

free-speech guarantees were violated when he was given undeserved negative reviews 

in retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt. 

Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372.

Having concluded that Starks has pleaded an ultra vires claim against Vaught, we 

next turn to Vaught’s contention that Starks has failed to plead a viable free-speech 

retaliation claim against him in his official capacity. The parties agree that to establish a 

free-speech retaliation claim against a government defendant, a plaintiff must prove the 

following elements: (1) the plaintiff suffered an adverse employment action, (2) the 

plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in 

speaking outweighed the governmental defendant’s interest in promoting efficiency, and 

(4) the protected speech motivated the defendant’s conduct.2 See Juarez v. Aguilar, 666 

F.3d 325, 332 (5th Cir. 2011); Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 244 (Tex. 

App.—El Paso 2012, no pet.). Vaught challenges the first and fourth elements.

Vaught first argues that Starks has failed to allege any adverse employment action 

sufficient to support a free-speech retaliation claim. Vaught contends that the Fifth 

Circuit has limited “adverse employment actions” to “discharges, demotions, refusals to 

hire, refusals to promote, and reprimands” and that none of the alleged adverse 

 

2 Starks claims that Vaught violated his right to free speech under the Texas Constitution; however, neither 

party has argued that the elements of a free-speech retaliation claim under the Texas Constitution differ 

from the elements of a federal First Amendment retaliation claim. We will therefore use federal 

constitutional precedent in analyzing Starks’s claim. See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) 

(“Where, as here, the parties have not argued that differences in state and federal constitutional guarantees 

are material to the case, and none is apparent, we limit our analysis to the First Amendment and simply 

assume that its concerns are congruent with those of article I, section 8.). 
Tex. A&M Univ. v. Starks Page 15

employment actions cited by Starks rise to that level. See Pierce v. Tex. Dep’t of Criminal 

Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994) (“Adverse employment actions 

are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”). 

Starks responds that the U.S. Supreme Court has instead defined an “adverse 

employment action” as one that a reasonable employee would find to be “materially 

adverse,” i.e., “the employer’s actions must be harmful to the point that they could well 

dissuade a reasonable worker from making or supporting a charge of discrimination” 

under federal law. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 

2405, 2409, 165 L.Ed.2d 345 (2006) (“[T]he [antiretaliation] provision [of Title VII of the 

Civil Rights Act of 1964] covers those (and only those) employer actions that would have 

been materially adverse to a reasonable employee or job applicant. In the present context 

that means that the employer’s actions must be harmful to the point that they could well 

dissuade a reasonable worker from making or supporting a charge of discrimination.”). 

Starks argues that, under this standard, he has pleaded an adverse employment action or 

that there is at least a fact issue concerning whether a “reasonable employee” would find 

the actions of which he complains “materially adverse.” We disagree.

Burlington did not address the standard for adverse employment actions in First

Amendment retaliation cases; instead, it involved Title VII’s antiretaliation provision. See 

id. at 56-57, 126 S.Ct. at 2408-09. The Fifth Circuit has not yet determined whether the 

Burlington standard for adverse employment actions applies to First Amendment 

retaliation cases. See Gibson v. Kilpatrick, 734 F.3d 395, 400 n.4 (5th Cir. 2013), vacated on 

other grounds, 134 S.Ct. 2874 (2014). Likewise, the Texas Supreme Court has not addressed 
Tex. A&M Univ. v. Starks Page 16

the issue. Cf. Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007) (adopting

Burlington standard with appropriate modifications to define what qualifies as “adverse” 

personnel action within meaning of Texas Whistleblower Act). We therefore apply the 

Fifth Circuit’s precedent that, for purposes of First Amendment retaliation claims, 

“adverse employment actions” are discharges, demotions, refusals to hire, refusals to 

promote, and reprimands.3 See Juarez, 666 F.3d at 332 (citing Sharp v. City of Houston, 164 

F.3d 923, 933 (5th Cir. 1999)); Pierce, 37 F.3d at 1149.

The adverse employment actions that Starks alleges in his free-speech retaliation 

claim are the denial of a promotion, his exclusion from departmental and university 

leadership, and his being given undeserved negative reviews.4 We need not determine 

whether the alleged denial of a promotion to Starks constitutes an adverse employment 

action; we have already concluded that because Starks has not alleged that Vaught was

involved in the denial of a promotion, Starks has not pleaded an ultra vires claim against 

Vaught regarding the denial of a promotion. Additionally, because Starks has not alleged

 

3 Some district courts in the Fifth Circuit have formally applied the Burlington standard to First Amendment 

retaliation claims. See, e.g., Peyton v. City of Yazoo City, 764 F.Supp.2d 831, 838 (S.D. Miss. 2011); Laredo 

Fraternal Order of Police v. City of Laredo, No. L-04-134, 2008 WL 678698, at *2 (S.D. Tex. Mar. 12, 2008). But 

others have not. See, e.g., Jackson v. Tex. S. Univ., 997 F.Supp.2d 613, 629, 638, 649-50 (S.D. Tex. 2014). Starks 

points out that one of our sister courts, in the context of a First Amendment retaliation claim, did generally 

define an “adverse employment action” using the Burlington standard. See Nairn, 366 S.W.3d at 244. There 

was no dispute in Nairn, however, about whether the conduct by the plaintiff’s employer against her was 

an adverse employment action; therefore, the Nairn court did not address the issue. See id. at 244-45.

4

In addition to these alleged retaliatory adverse employment actions, Starks alleges that Vaught was 

involved in issuing a written reprimand to him and then in preparing another written document that

Vaught circulated to administrators and faculty and that reiterated the allegations in the reprimand, 

threatened Starks’s future teaching of certain courses, and stated that Starks’s conduct would be considered 

in future performance reviews. Starks does not allege, however, that Vaught’s conduct regarding the 

reprimand and subsequent document occurred in retaliation for speaking out regarding a matter of public 

concern. Instead, Starks refers to this alleged conduct as “discriminatory.”
Tex. A&M Univ. v. Starks Page 17

that Vaught was involved in the denial of a promotion, Starks has not alleged facts to 

support the fourth element of a free-speech retaliation claim against Vaught regarding 

the denial of a promotion. See Juarez, 666 F.3d at 332. The fourth element would require 

Starks to prove that his speaking out on a matter of public concern motivated Vaught’s

conduct regarding the denial of a promotion. See id. But because Starks does not allege 

that Vaught was involved with the denial of a promotion, there is no alleged conduct by 

Vaught that could have been motivated by Starks’s speaking out on a matter of public 

concern. 

We therefore turn to Starks’s alleged exclusion from departmental and university 

leadership and his allegedly being given undeserved negative reviews. Regarding his 

exclusion from departmental and university leadership, Starks alleges that Vaught has 

refused to appoint him to any departmental committees or programs despite his 

willingness to serve and despite other non-African-American faculty members being 

appointed to serve on multiple committees in an academic year. Starks further alleges

that departmental program and committee work is an important part of his annual merit 

review consideration and that not being allowed to serve in such a role negatively 

impacts his ability to earn merit increases and to be considered for advancement to toptier administrative positions. Regarding his being given undeserved negative reviews, 

Starks states in his briefing that he is not complaining that the performance evaluation 

itself was an adverse employment action. Instead, Starks argues that the adverse 

employment action committed by Vaught was that he refused to correct alleged 

inaccuracies in the performance evaluation.
Tex. A&M Univ. v. Starks Page 18

The Fifth Circuit has held in the education context that “’decisions concerning 

teaching assignments, pay increases, administrative matters, and departmental 

procedures,’ while extremely important to the person who dedicated his or her life to 

teaching, do not rise to the level of a constitutional deprivation.” Harrington v. Harris, 118 

F.3d 359, 365 (5th Cir. 1997) (quoting Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 F.2d 

121, 123 (5th Cir. 1991)). The court in Dorsett stated:

We have neither the competency nor the resources to undertake to 

micromanage the administration of thousands of state educational 

institutions. Of all fields the federal courts “’should hesitate to invade and 

take over, education and faculty appointments at [the university] level are 

probably the least suited for federal court supervision.’”

Dorsett, 940 F.2d at 124 (citations omitted). We thus conclude that Vaught’s alleged 

conduct in Starks’s being excluded from departmental and university leadership and his

being given undeserved negative reviews does not qualify as an adverse employment 

action. Vaught’s alleged actions do not constitute discharges, demotions, refusals to hire, 

refusals to promote, or reprimands. Starks has not, therefore, pleaded a viable freespeech retaliation claim against Vaught in his official capacity. See Juarez, 666 F.3d at 332. 

Because Starks has not pleaded an ultra vires claim against Vaught in his official 

capacity regarding the denial of a promotion to Starks and has failed to otherwise plead 

a viable free-speech retaliation claim against Vaught in his official capacity, the trial court 

erred in denying Vaught’s plea to the jurisdiction because Starks’s free-speech retaliation 

claim against him in his official capacity is barred by sovereign immunity. We sustain 

Appellants’ second issue.
Tex. A&M Univ. v. Starks Page 19

Starks argues that he should nevertheless be afforded the opportunity to re-plead. 

If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial 

court’s jurisdiction, but do not affirmatively demonstrate incurable defects in the 

jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded 

the opportunity to amend. Miranda, 133 S.W.3d at 226. Hussey and Vaught argue that 

Starks’s pleadings regarding his constitutional free-speech retaliation claim have an 

incurable defect because Starks suffered no qualifying adverse employment action. 

Liberally construing the live pleadings in Starks’s favor, however, we believe that while 

the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court’s 

jurisdiction over Starks’s claims against Hussey and Vaught in their official capacities, 

neither do they affirmatively demonstrate incurable defects in jurisdiction. The trial court 

ruled in Starks’s favor, so Starks had no occasion in the trial court to ask for an 

opportunity to amend his pleadings to cure any defect. The proper course of action is to 

reverse the trial court’s order as to Starks’s claims against Hussey and Vaught in their 

official capacities and remand with instructions for the trial court to give Starks a 

reasonable opportunity to amend his pleadings in an attempt to properly plead these 

claims. See Lazarides v. Farris, 367 S.W.3d 788, 804 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.).
Tex. A&M Univ. v. Starks Page 20

Vaught’s Motion for Summary Judgment

In Appellants’ third issue, Vaught contends that the trial court erred in denying 

his motion for summary judgment based on official immunity.

The standard of review in traditional summary judgment cases is well settled. The 

issue on appeal is whether the movant met its summary judgment burden of establishing 

that no genuine issue of material fact exists and that it is entitled to judgment as a matter 

of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). 

A defendant may meet this burden by conclusively negating an essential element of the 

plaintiff’s case or conclusively establishing all of the necessary elements of an affirmative 

defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

We take as true all evidence favorable to the nonmovant. Rhone-Poulenc, Inc. v. 

Steel, 997 S.W.2d 217, 223 (Tex. 1999); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 

911 (Tex. 1997). We indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor. Rhone-Poulenc, Inc., 997 S.W.2d at 223; Science Spectrum, Inc., 941 

S.W.2d at 911. When the trial court does not specify the grounds upon which it ruled, the 

summary judgment may be affirmed if any of the grounds stated in the motion is 

meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

Vaught first argues within this issue that, regardless of the capacity in which he

was sued, Starks was required to plead a facially viable claim of a constitutional violation 

and that Starks has failed to plead such a violation because he has failed to allege that he 

suffered an adverse employment action that was substantially motivated by his protected 
Tex. A&M Univ. v. Starks Page 21

speech. Vaught argues more specifically that Starks’s performance evaluation is not an 

adverse employment action under free-speech retaliation law.

Government employees sued in their individual capacities may not rely on the 

defense of sovereign immunity. Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—

Austin 2007, no pet.). Instead, they may move for summary judgment and establish their 

entitlement to judgment as a matter of law by conclusively negating an essential element 

of the plaintiff’s case or conclusively establishing all of the necessary elements of an 

affirmative defense, including official immunity. See Cathey, 900 S.W.2d at 341; Cloud, 228 

S.W.3d at 333-34. But a summary judgment may not be granted on grounds that are not 

raised in the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 

S.W.2d 337, 341 (Tex. 1993).

Here, Vaught, in his individual capacity, did not move for summary judgment on 

the ground that he could conclusively negate an essential element of Starks’s free-speech 

retaliation claim, i.e., that he could conclusively establish that Starks suffered no adverse 

employment action. Thus, the trial court could not have properly granted Vaught’s 

motion for summary judgment on this ground, and we cannot therefore hold that the trial 

court erred in denying Vaught’s motion for summary judgment on this ground.

Vaught next argues that the trial court erred in denying his motion for summary 

judgment because he conclusively established that he was entitled to official immunity. 

Official immunity is an affirmative defense that protects government employees from 

personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A 

governmental employee is entitled to official immunity: (1) for the performance of 
Tex. A&M Univ. v. Starks Page 22

discretionary duties; (2) within the scope of the employee’s authority; (3) provided the 

employee acts in good faith. Id. Because official immunity is an affirmative defense, to 

obtain summary judgment on official immunity, the governmental employee must 

conclusively prove each element of the defense. Id.

We begin with whether Vaught conclusively proved that he was engaged in the 

performance of discretionary duties. Whether an act is discretionary or ministerial 

depends on whether it involves personal deliberation or simple adherence to an order. 

Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004). “Ministerial acts are 

those for which ‘the law prescribes and defines the duty to be performed with such 

precision and certainty as to leave nothing to the exercise of discretion or judgment.’” Id. 

(quoting Comm’r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). If the public 

official has no choice but to obey an order, the act is ministerial. Id. (citing City of Lancaster 

v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). If an action involves personal deliberation, 

decision, and judgment, however, it is discretionary. Id.

In his free-speech retaliation claim against Vaught, Starks alleges that he was given 

undeserved negative reviews in retaliation for speaking out regarding a matter of public 

concern. Starks alleges that Vaught was involved in Starks’s being given undeserved 

negative reviews because Vaught refused to retract inaccurate portions of Starks’s annual 

performance review.

Vaught argues that the evidence conclusively establishes that he was undertaking 

discretionary duties in reconsidering Starks’s performance evaluation. To support his

argument, Vaught points in part to his own affidavit in which he states that in 2012, the 
Tex. A&M Univ. v. Starks Page 23

Department of History approved the “Procedures and Criteria for Annual Merit 

Performance Evaluation and Review.” In the attached “true and correct copy” of the 

document, the detailed “Procedures” for conducting the annual performance evaluation 

include in pertinent part:

Approximately six weeks after the beginning of the succeeding calendar 

year, the department’s executive committee will evaluate the faculty with 

the objective of locating each member in the appropriate category of 

performance using a five-point scale: 4 = Superior; 3 = Excellent; 2 = 

Commendable; 1 = Satisfactory; 0 = Unsatisfactory. Typically, areas of 

responsibility will be weighted as follows: Research 60%, Teaching 20%, 

Service 20%. . . .

Upon the completion of the evaluations, the department head will notify 

each member of the faculty in writing of the executive committee’s 

assessment of his/her performance, including individual scores and 

rankings in research, teaching, and service and overall ranking and 

weighted composite score. This memorandum constitutes the faculty 

member’s annual review. The department head will also include an 

assessment of each faculty member’s progress in research, teaching, and 

service, which will vary from rank to rank. . . .

Faculty members, upon indicating receipt by signing a copy of the 

document, will be given the opportunity to question their rankings in 

writing to the department head, who will consult the executive committee 

when reconsidering the evaluation. In such a case, the department head will 

issue to the faculty member a final written notification explaining the 

decision. Additional meetings between the department head and the 

faculty member may be held at either’s request to discuss expectations 

and/or professional progress. . . . [Emphasis added.] 

The detailed “Criteria” that the department’s executive committee was to use in 

determining the appropriate category of performance for each faculty member includes

assessing such things as whether the faculty member had “a significant and productive 

research agenda” or a “highly productive research agenda,” whether the faculty member 

had “demonstrated competence in the classroom” or “extraordinary teaching,” etc. It 
Tex. A&M Univ. v. Starks Page 24

could be reasonably inferred that the department head, in reconsidering the evaluation, 

also had to make such assessments and therefore performed actions involving personal 

deliberation, decision, and judgment. In fact, Vaught states in his affidavit that as the 

Head of the Department of History in the College of Liberal Arts at TAMU, a faculty

member may appeal his evaluation scores to him. Vaught further states that Starks filed 

an appeal of his evaluation and that, “In ranking Dr. Starks’s teaching efforts, I reviewed 

his self-evaluation and personally deliberated on the appropriate ranking. Issuing a 

ranking of Dr. Starks’ teaching was not a ministerial duty, but involved discretion on my 

part to determine the most appropriate ranking.” 

Starks responds that performing a complete review of the performance evaluation 

was a ministerial duty because the review process does not leave room for the department 

head to pick and choose which portions of the evaluation he will reconsider. But Starks 

does not allege in his free-speech retaliation claim against Vaught that Vaught failed to 

perform a complete review of Starks’s performance evaluation in retaliation for speaking 

out. Instead, as stated above, Starks alleges that, in retaliation for speaking out, he was 

given undeserved negative reviews, which happened at least in part because Vaught 

refused to retract inaccurate portions of Starks’s annual performance review. Therefore, 

it is this conduct, the conduct that is alleged in Starks’s free-speech retaliation claim, for 

which Vaught seeks to establish official immunity and for which he must therefore 

establish constitutes discretionary duties. In light of Vaught’s evidence, we conclude that 

Vaught conclusively established that he was undertaking discretionary duties in 

reconsidering Starks’s performance evaluation. See id.
Tex. A&M Univ. v. Starks Page 25

We next turn to whether Vaught conclusively established that he was acting 

within the scope of his authority. Vaught states that Starks does not dispute that Vaught 

was acting within the scope of his authority regarding actions Vaught took concerning 

Starks’s evaluation. But a nonmovant has no burden to respond to a summary judgment 

motion unless the movant conclusively establishes its cause of action or defense. RhonePoulenc, Inc., 997 S.W.2d at 222-23. “The trial court may not grant summary judgment by 

default because the nonmovant did not respond to the summary judgment motion when 

the movant’s summary judgment proof is legally insufficient.” Id. at 223. A movant must 

establish its right to summary judgment on the issues expressly presented to the trial 

court by conclusively proving all elements of the movant’s cause of action or defense as 

a matter of law. Id. Accordingly, the burden was on Vaught to conclusively prove that 

he was acting within the scope of his authority.

A public official acts within the scope of his authority if he is discharging duties 

that are generally assigned to him. Ballantyne, 144 S.W.3d at 424. In the “Procedures and 

Criteria for Annual Merit Performance Evaluation and Review” discussed above, the 

department head is assigned to reconsider the evaluation. Vaught, as the head of the 

department, was therefore acting within the scope of his authority when he reconsidered 

Starks’s performance evaluation. We conclude that Vaught conclusively established that 

he was acting within the scope of his authority in reconsidering Starks’s performance 

evaluation.

Finally, we address whether Vaught conclusively established that he was acting in 

good faith in reconsidering Starks’s performance evaluation. To establish the element of 
Tex. A&M Univ. v. Starks Page 26

good faith, a public official must conclusively prove that “a reasonably prudent official, 

under the same or similar circumstances, could have believed that his conduct was 

justified based on the information he possessed when the conduct occurred.” Id. at 426. 

The test for good faith turns not on “’what a reasonable person would have done,’” but 

rather on “’what a reasonable [person] could have believed.’” Id. (quoting Telthorster v. 

Tennell, 92 S.W.3d 457, 465 (Tex. 2002)). The official “must prove only that a reasonably 

prudent [official], under similar circumstances, might have [acted the same way].” 

Telthorster, 92 S.W.3d at 465. If the official meets this burden, the nonmovant “must show 

that ‘no reasonable person in the defendant’s position could have thought the facts were 

such that they justified defendant’s acts.’” Chambers, 883 S.W.2d at 657.

As stated above, the “Procedures and Criteria for Annual Merit Performance 

Evaluation and Review” for the Department of History provide:

Upon the completion of the evaluations, the department head will notify 

each member of the faculty in writing of the executive committee’s 

assessment of his/her performance, including individual scores and 

rankings in research, teaching, and service and overall ranking and 

weighted composite score. This memorandum constitutes the faculty 

member’s annual review.

 

Accordingly, Vaught states in his affidavit that after the Executive Committee conducted 

their review, he would notify each faculty member in writing of the Committee’s 

assessment of performance. 

Vaught states that, in an April 12, 2014 memo, he notified Starks of the 

Committee’s assessment of his performance for 2013. In the memo, Vaught notified 

Starks that the Executive Committee evaluated his 2013 performance as follows:
Tex. A&M Univ. v. Starks Page 27

Research: Unsatisfactory (vote: 5-0 + 1 abstention)

Teaching: 6 abstentions

Service: Unsatisfactory (vote: 5-0 + 1 abstention)

Overall evaluation: Unsatisfactory 

Vaught then gave Starks a lengthy explanation for his evaluation based on the 

“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the 

Department of History:

As stated in the department’s revised “Procedures and Criteria for Annual 

Merit Performance Evaluation and Review” (2012), to earn a satisfactory 

ranking in research, a faculty member needs to provide tangible evidence 

of a significant and productive research agenda—one demonstrating 

progress, trajectory, and sustainability—over a three year period (pp. 3-4). 

Evidence of such an agenda consists of single-authored research 

monographs, edited volumes of scholarly essays, peer-reviewed articles in 

disciplinary or area-specific journals, essays published in edited volumes, 

significant translations, external grants and fellowships, and article or book 

awards (pp. 3-4). The Executive Committee found that your research 

productivity over the three year period 2011-2013 does not meet the criteria 

for a satisfactory ranking. On your 2013 Annual Report Form,5 you cited 

only a reprinted scholarly essay first published in 2003. Note, however, that 

our annual review guidelines deem reprinted articles “unlikely to be 

considered for merit” or evidence of a significant and productive research 

agenda. Under “status of long-term research projects,” you mention three 

manuscripts in various stages of development, but the Executive 

Committee, in accordance with the guidelines, did not consider works in 

progress as criteria for making satisfactory progress. The Executive 

Committee also notes that with regard to research, the pertinent sections on 

your previous two annual review forms (2011 and 2012) are entirely blank. 

 

5 The “Procedures and Criteria for Annual Merit Performance Evaluation and Review” provide:

On or about December 1, the department head will distribute blank “Faculty Member’s 

Annual Report” forms ... along with copies of this document. Each member of the faculty 

will be required to submit the completed report by January 20 of the succeeding year. The 

“Faculty Member’s Annual Report” will detail the academic activities of a calendar year 

(January 1 through December 31) and will serve as the primary basis for evaluating a 

faculty member’s professional progress. It is incumbent upon each faculty member to 

make the best case for his/her accomplishments on the form and to state, with clarity and 

purpose, his/her short and long term goals for professional development (teaching, 

research, and service) in the section at the end of the form.
Tex. A&M Univ. v. Starks Page 28

No publications, grants, or awards in the previous three years yields no 

tangible evidence of productivity—hence, the unsatisfactory ranking in 

research.

Because of your lack of any professional service over the three-year period, 

the Executive Committee, following the guidelines, also ranked you 

unsatisfactory in service. All six members abstained from evaluating your 

teaching due to your remarks under “courses taught” on the Annual Report 

Form. Note, however, that an overall unsatisfactory evaluation “results 

from a faculty member’s failure to meet departmental standards in one or 

more of the three areas of responsibility” (p. 3).

Vaught states in his affidavit that he “approved the Executive Committee’s rankings and 

assessment.”

The “Procedures and Criteria for Annual Merit Performance Evaluation and 

Review” for the Department of History provide, “Faculty members, upon indicating 

receipt by signing a copy of the document, will be given the opportunity to question their 

rankings in writing to the department head, who will consult the executive committee 

when reconsidering the evaluation.” Vaught states in his affidavit that Starks filed an 

appeal of the evaluation. Vaught then explains:

Because the six members of the Executive Committee abstained from giving 

Dr. Starks a score for teaching, I reviewed and evaluated the teaching 

contributions listed by Dr. Starks in his Annual Report. There are five 

categories of scores that can be given in the area of teaching: superior, 

excellent, commendable, satisfactory and unsatisfactory. . . . As stated in 

the Department criteria, “A satisfactory ranking reflects a faculty member 

having met departmental standards in all three areas of responsibility.” 

Based on my review of Dr. Starks’ Annual Report, I believed this ranking 

accurately reflected his teaching efforts for the 2013 calendar year. The 

Executive Committee reviewed this ranking and concurred.

. . . .

. . . Teaching efforts that demonstrate a “superior” ranking would 

include receipt of a University-level teaching award. . . . An “excellent” 
Tex. A&M Univ. v. Starks Page 29

ranking is awarded to those faculty members who contribute “substantially 

to the graduate program, as evidenced by chairing two or more committees 

and serving on more than four others; or contributing substantially to the 

undergraduate program with the award of three or more “commendable” 

teaching accomplishments. . . . To demonstrate efforts deserving of a 

“commendable” ranking, a faculty member must demonstrate “extra 

engagement in the classroom . . . beyond meeting basic expectations.” . . .

. . . The information produced by Dr. Starks in his Annual Report 

showed that he taught: three courses in the Spring 2013 semester, one 

course in the Summer 2013 semester and two courses in the Fall 2013 

semester. . . . Dr. Starks did not teach any independent study. He listed 

“none” under “Contributions to Undergraduate Education.” He stated that 

he was a committee member for one Ph.D candidate. Therefore, his efforts, 

as reflected in the Report that he prepared and submitted for review, did 

not . . . reflect the level needed for a ranking of “superior,” “excellent” or 

“commendable” effort.

Starks asserts that the foregoing evidence does not establish that Vaught was 

acting in good faith because Vaught swore that he reviewed only Starks’s evaluation in 

teaching. Starks argues that because he questioned the entirety of his evaluation, the

“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the

Department of History required Vaught to reconsider the entirety of his evaluation. 

Starks thus contends that because Vaught failed to follow the procedures and instead 

reviewed only a portion of Starks’s evaluation, a fact issue exists as to whether Vaught 

acted in good faith. We disagree.

Vaught does not state in his affidavit that he reconsidered only Starks’s evaluation 

in teaching. Rather, Vaught states, “I approved the Executive Committee’s rankings and 

assessment.” When Starks appealed, however, Vaught reviewed Starks’s evaluation in 

teaching because the six members of the Executive Committee abstained from giving 

Starks a score for teaching. Furthermore, Starks’s own evidence shows that Vaught did 
Tex. A&M Univ. v. Starks Page 30

not reconsider only Starks’s evaluation in teaching. Attached to Starks’s response to 

Appellants’ motion for summary judgment and plea to the jurisdiction is a memo from 

Vaught to Starks detailing Vaught’s “Reconsideration of [Starks’s] 2013 Annual Review.” 

Along with explaining why Starks earned a ranking of satisfactory in teaching, Vaught 

explained why he denied Starks’s appeal of his unsatisfactory ranking in service and 

research. The explanations are based on the “Procedures and Criteria for Annual Merit 

Performance Evaluation and Review” for the Department of History. 

Based on the foregoing, we conclude that Vaught met his burden of conclusively 

proving that a reasonably prudent official, under the same or similar circumstances, 

could have believed that Vaught’s conduct was justified based on the information he 

possessed when the conduct occurred. Vaught therefore conclusively established that he 

was acting in good faith in reconsidering Starks’s performance evaluation. See Ballantyne, 

144 S.W.3d at 426. Moreover, because we have concluded that Vaught met his burden of 

conclusively establishing all of the necessary elements of his affirmative defense of 

official immunity, we hold that the trial court erred in denying Vaught’s motion for 

summary judgment on official immunity. We sustain Appellants’ third issue.

Conclusion

We reverse that portion of the trial court’s order denying Vaught’s motion for 

summary judgment and render summary judgment in favor of Vaught in his individual 

capacity. We reverse that portion of the trial court’s order denying Hussey’s and 

Vaught’s plea to the jurisdiction and remand that portion of the case to the trial court 

with instructions for the trial court to give Starks a reasonable opportunity to amend his 
Tex. A&M Univ. v. Starks Page 31

pleadings in an attempt to properly plead those claims. We affirm the remaining portion 

of the trial court’s order.

 

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed in part/Reversed in part

Opinion delivered and filed July 27, 2016

[CV06]