## IN THE SUPREME COURT O F TEX AS

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. 16-0773

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### W A L L A C E 

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. H A L L 

### , J R


### . , IN H IS O F F IC IA L C A P A C IT Y A S A 

### R E G E N T F O R 

### T H E



### U N IV E R S IT Y O F 

### T E X A S 

### S Y S T E M 

### , P E T IT IO N E R 

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v . 

### W IL L IA M 

### H

. M C 

### R A V E N 

### , IN H IS O F F IC IA L C A P A C IT Y A S 

### C H A N C E L L O R F O R 

### T H E



### U N IV E R S IT Y O F 

### T E X A S 

### S Y S T E M 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R D D I S T R I C T O F T E X A S

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Argued January 11, 2017

J U S T I C E D E V I N E delivere d the opinion of the Court.
J U S T I C E W I L L E T T filed a c oncurr ing opinion.
J U S T I C E G U Z M A N filed a c oncurr ing opinion.
J U S T I C E L E H R M A N N filed a c oncurr ing opinion.
J U S T I C E B R O W N filed a c oncurr ing opinion, in which J U S T I C E G R E E N joined.

Wallace Ha ll, a reg ent for T he University of Texas Sy stem, sued the Sy stem’s Chance llor, Wil liam McRaven, for McRaven’ s ref usal to g rant Hall complete acc ess to records containing student-admissions information. At the hear t of the case are issues centr al to g overna nce in highe r ed u cation. Does a university reg ent have an inhere nt rig ht to acc ess information? I f so, howunfetter ed is that rig ht? Can an instit ution in v o k e fede ral privac y law, namely the Family

Educa tional Rights and Privac y Act (F ERPA), to redac t information and limit a reg ent’s quest for complete acc ess? These are important questions, but befor e a court can rea ch them, a plaintiff must

overc ome the state’s sovere ign immunit y . Absent a statutory waiver of immunit y by the L eg islature, Hall can proce ed only if McRaven’ s actions in reda cting the rec ords wer e ultra vires —without state authority

. The court s below held that McRaven’ s conduct was not ultra vires and that sovere ign immunit y require d dismiss al. We ag ree and af firm.
I Ultra vires claims depend on the scope of a state officia l’s authority

. The natura l starting point in this case , there fore , is the g overning structure of the UT Sy stem. The authority and duties of the leade rs of UT come from various source s, eac h with an incre asing level of specific ity

. First, the Texas Constit ution instructs the L eg islature to “orga n i z e an d provide for the maintenanc e, support and dire ction of a U niversity of the first class, to be loc ated by a vote of the people of

this State, and sty led, ‘The University of Texas.’” T E X
. C O N S T
. art. VI I , § 10. Acting on that direc tive, the L eg islature established the UT Sy stem and vested g overning power in a nine-membe r Boa rd of Reg ents. T E X
. E D U C
. C O D E § 65.11. Eac h reg ent is appointed by the Gover nor with the advice and
consent of th e Senate. Id. The L eg islature g ave expansive authority to the Boa rd to “g overn,
opera te, support, and maintain” the Sy stem. Id. § 65.31(a)

. The Boa rd must also “provide the policy direc tion” for eac h respe ctive instit ution within the UT Sy stem. Id. § 51.35 2 (b ) (assig ning responsibilities to all g overning boards of instit utions of highe r education in Texas). The Boa rd also

2bear s more s p ec ific statutory responsibilities, such as to “set campus admission standards.” Id

. §

51.352(d)( 4). The Boa rd is not expected to run the entire UT Sy stem by itself. I nstead, the L eg islat u re authorized the Boa

rd to promulg ate rules and to use those rules to “dele g ate a power or duty of the board to a committee, office r, employ ee, or other ag ent of the board.” Id. § 65.31(c) , (g ). These rules, the Reg ents’ Rules, have the s ame force as an “ena ctment of legislature .” Univ. of Hous. v. Barth , 403 S.W .3d 851, 855 (Tex. 2013). The L egis l ature also direc ts the Boa rd to appoint the Chance llor “or other chief executive office r of the sy stem.” T E X
. E D U C
. C O D E . § 51.352(d)( 2). B ut the Educa tion Code sa y s litt le else about the Chanc ellor’s duties, save the following : Subje ct t o t h e power and authority of the board, the chief executive office r is responsible for the g ener al manag ement of the university sy stem within the policies of the board and fo r making rec ommendations to the board conce rning the org anization of the university sy stem and the appointment of the chief administrative office r for

eac h component instituti on within the sy stem. Id. § 65.16(c)

. As a result, the specific responsibiliti es o f C h ance llor McRaven—w hich are of
utmost importance to th i s lawsuit—come from the rules and resolutions of the Boa rd, which we consider in the c ontext of this dispute betwee n the Sy stem’s Chance llor and one of its reg ents.
I I The underly

ing di s p u t e beg an in 2013, when Reg ent Hall raised conce rns about potential improprieties in the admissions proce ss of UT Austin, one of the 15 instit utions that comprise the
UT S y stem. I n response , then-Ch an ce l l o r Francisco Cigar roa ordere d an int erna l inquiry into the admissions prac tices. That inquiry reve aled a common prac tice of leg islators, alumni, reg ents, and

3other influent i al i n d i v i duals rec ommending students for admission to UT Austin outside of the

established procedure s for submi tting such rec ommendations. These f indings spurr ed Chanc ellor Ciga rr oa to commission another investiga tion into the UT Austin admissions proce ss: an independe nt, ext erna l investiga tion perfor med by Kroll Associate s, I nc. I n the midst of Kroll’s investiga tion, McRaven took over as Chance llor of the UT Sy stem. Kroll then rele ased its finding s in a 101-pag e repor t. The “Kr oll Report” outlined a prac tice of UT Austin’s President—base d on rec ommendations from influential persons—to exercise signific ant oversig ht and discretion in the admissions proce ss. Such oversig ht sometimes resulted in the admission of underqua lified students over t he objection of admissions officia ls. Whil e Kroll deter mined this prac tice might not be a violation of any exis ting rules or laws, it did “not appea r in UT-Austin’s public repr esenta tions.” Chance llor McRaven rec eived the Kroll Report, revie wed its finding s, and conclude d that disciplinary action was not war rante d ag ainst the President or any other admissions official.
T h e fi ndings of the Kroll Report beca me available to the public. L ikewise, the names o f those influential persons who wrote letters of rec omme n d at i o n beca me available to the public in
response to r equests made under the Texas Publi c I nformation Ac t. But neither the public nor the
reg ents wer e given acce ss to the hundre ds of thousands of pag es of documents containing student

rec ords t hat Kroll revie wed in coming to its conclusions. Hall wanted to revie w t hose underly ing

rec ords to, among other things, assess the involvement of specific school officia ls, identify pressure s put on admissions officia ls, and deter mine whether Kroll omitted any signific ant information from the re port.

4Ha l l reque sted acc ess t o this information from the C hance llor’s office in Marc h 20 1 5 , b u t

McRaven resisted the reque st. Reg ents’ Rule 10801 go v er n s t h e proce dure for dealing with information reque sts of this ty pe and provides a proce ss for when the Chance llor’s “conc erns about a Reg ent’s re quest” re main unresolved. T he Univ. of Te x . Sy s., Rules and Reg ulations of the B d. of Reg ents (“Reg ents’ Rules”), Rule 10801 § 5.4.5. As of April 2015, Section 5.4.5 provided that, the matter will be prese nted to the Boa rd as quickly as possible, but in no event later than 21 day s from the date of the rec eipt of the reque st. For the purpose of a Boa rd vote on this issue, the vot e of any two or m ore Rege nts in support of t he request i s sufficie nt to direct that the re quest will be filled without delay

. Id. (Apr. 8, 2015 ). On Ap ri l 8 , the Boa rd held a meeting under Section 5.4.5. Three reg ents (including Hal l) voted to g rant the reque st. But, importantly , the two reg ents joining Hall conditioned their votes on the Chance llor’s office eng ag i n g i n a revie w to deter mine which information was pr otected by FERPA.
FERPA is a fede ral privac y law that withholds fede ral funding from instit utions that have a “p o l i cy or prac tice of permitting the rele ase of education rec ords

. . . or persona lly iden t i fi ab l e information.” 20 U.S.C. § 1232g (b)( 1). F ERPA, however , permits the rele ase of these re cords to “other school officia ls

. . . who have been deter mined by such ag ency or instit ution to have leg itimate educational interests.” Id. § 1232g (b)( 1)(A)

. At the time of the April vote, no Reg ents’ Rule g overne d how the Chance llor’s office would conduct a FERPA review

. Ho we v er, in the following month, the Boa rd adopted Section 5.4.6 to Reg ents’ Rule 10801, which specific ally outlines the Chance llor’s role in this revie w. Reg ents’ Rule 10801 § 5.4.6 (ef

fec tive May

14, 2015). Section 5.4.6 dele g ates the f ollowing duty :

5[T] he Chance llor, in consultation with the U.T. Sy stem Ge n eral Counsel, shall

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

mine whether a Reg ent may revie w i n fo rm ation that is protec ted by [FERPA]

. . . . Id. When the board members adopted Section 5.4.6, they also amende d Section 5.4.5 to require a
vote of a majority of the Boa rd—not just two regents—to approve an unresolved reque st for information. Id. § 5.4.5 (ef fec tive May

14, 2015).
I n the meantime, Hall ag ain reque sted comp l et e acc ess, providing a list of rea sons that he
arg ued g ave him a “leg itima t e ed u ca t i onal interest” under FERPA. McRaven ref used to provide

acc ess t o the complete rec ords, whil e si multaneously proposing a two-step proce ss by which Hall could s eek acc ess t o specific reda cted infor mation. First, t he C hance llor’s office would reda ct all information protec ted by FERPA and other privac y laws. These reda ctions applied to inf ormation such as s tudents’ names, g rade point aver ag es, social secur ity numbers, and other identify ing information. See 20 U.S.C. § 1232g (a) (4)( A) (identify ing rec o rd s which “conta in information direc tly re l ated to a student” as cover ed by FERPA). Then, if Hall identified specific private information and articula ted a specific need, the Sy stem’s Gene ral Counsel could revie w that reque st. Unsatisfied with this proposal, Hall sued Mc Raven—in his officia l capa city as Chance llor of the UT Sy stem—for continuing to wi t h h o ld acc ess to the unreda cted rec ords. Hall soug ht a d ec l ar atory judgme nt that McRaven acte d ultra vires in ref using to provide the unreda cted information. Hall also soug ht a writ of mandamus or injunction to compel McRaven to provide the

rec ords.

6The Boa rd held a specia l meeting a few wee ks later to “ef fec t a clea r and open statement of the position of the Boa

rd of Reg ents rela ted to” Hall’s pending litigation. A majority of the Boa rd voted on J uly 8, 2015, to endorse McRaven’ s two-step offe r of acc ess. The Boa rd char acte rized that
proce ss as follows: 1) acc ess to revie w all confide ntial and nonpublic documents g ather ed by Kroll, with reda ctions only for those documen t s an d information protec ted by the Family Educa tional Rights and Privacy Act (F ERPA), the Hea lth I nsuranc e Portability and Acc ountability Act (HI PAA), or other privac y laws, as deter mined applicable by the Vice Chance llor and Gene ral Coun s e l in c o n s u lt a ti o n w it h th e Sy stem Administration Privacy Offic er a nd Sy stemwide Privacy

Coordinator, and 2) the opportunity for Reg ent Hall to identify an d t o d iscuss further , with the Chairman and the Chance llor, specific , reda cted private information protec ted by FERPA, HI PAA, or other pri vacy laws in those documents which he believes are nece ssary to revie w in order to satisfy an articula ted, specific need re l at ed t o his officia l responsibiliti es and duties a s a Reg ent. The Boa rd also voted to “dele g ate to the Chairman, in consultation with th e Vi ce Chairmen and
Gene ral Counsel,” the authority to make the decision under step two: whether or not Hall articula ted
a spec ific nee d. Following the Boa

rd’s J uly vo te, McRaven filed a plea to the jurisdiction, claiming that

sovere ign immunit y barr ed Hall’s suit and that the ultra vires exception did not apply

. Hall responde d to McRaven’ s plea to the jurisdiction and moved for summary judgme nt, claiming a rig ht
to the unreda cted rec ords as a matter of law. Hall asser ted that as a reg ent he possessed an inhere nt rig ht under Texas law—as outl i n ed b y an opinion from the Texas Attorney Gene ral—to acc ess

rec ords pertinent to his duties. See Tex. Att’y Gen. Op. No. KP-0021, 4 (2015) (addr essing whether Hall has a rig ht to the unreda cted rec ords). He submitt ed that one such duty was to se t a dmissions

7standards, which invoked his inhere nt rig ht to acc ess student information unless state or fede ral law

required o t h er wi s e. Id. FERPA, he arg ued, could not be the basis for withholding these rec ords beca use his status as a reg ent imbued him with a “leg itimate educational interest” in the information. Hall conclude d that McRaven’ s actions in deny ing him complete acc ess wer e u ltra vires beca use McRaven had no authority to misapply FERPA and wrong fully withhold the rec ords. The trial court held a hear ing on the two motions, g ranting McRaven’ s plea to the jurisdiction a nd dismiss ing the

case with prejudice

. Hall appea led, and the court of appea ls aff irmed. ___ S.W .3d ___, 2016 WL 4979576, at *1 (Tex. App.—Au s t in 2016). We g rante d Hall’s petition for revie w and expedited briefing and ora l arg ument.
I I I Sovereig n immunit y require s the state’s consent befor e it c an be sued. Tex. Dep’ t of Parks
& W ildlif e v. Miranda , 133 S.W .3d 217, 224 (Tex. 20 0 4 ). S o v ereig n immunit y develope d as a common-law doctrine in rec og nition of the courts’ limit ed authority over the sovere ign cre ating them. B r o w n & Gay Eng’g, Inc. v. Olivares , 461 S.W .3d 117, 121 (Tex. 2015). I ts justification continues today

as a means to pr otect the public trea sury . Id. Consequently , the doctrine opera tes
to “shield the public from the costs and conseque nces of improvident actions of their g overnme nts.” Tooke v. City of Me

xia , 197 S.W .3d 325, 332 (Tex. 2006). The sovere ign may , howeve r, waive or limit its immunit y . But the L eg islature has not wai v ed i m m unity for suits like Hall’s. Neve rtheless, in cer tain narr ow instances, a suit ag ainst a state official can proce ed even i n the absence of a waiver of immunit y if the o ff i ci al ’s ac t i o ns are ultra vires

. City of El Paso, v. Heinrich , 284 S.W .3d 366, 372 (Tex. 2009). An ultra vires action

8require s a plaintiff to “alleg e, and ultimately prove, that the office r acte d without leg al authority or

failed to pe rfor

m a pure ly

minist eria l act.” Id.
We rec ently clar ified what it means for an officia l to act “without leg al authority .” See Hous. Belt & Terminal Ry. Co. v. City of Houston , 487 S.W .3d 154, 158 (Tex. 2 0 1 6 ). W e said that “a
g overnme nt office r with some discretion to interpre t and apply a law may nonetheless act ‘without leg al authority ,’ and thus ultra vires , if he exceeds the bounds of his g rante d authority or if his acts conflict wi t h t h e l aw i t self.” Id. “Ministerial acts,” on the other hand, are those “whe re the law
presc ribes and def

i nes the duties to be perf ormed with such prec ision and cer tainty as to leave nothing to the exercise of discretion or judgme nt.” Sw. Bell Tel., L.P. v. Emme tt , 459 S.W .3d 578, 587 (Tex. 2015) (quoting City of L ancaster v. Chambe rs , 883 S.W .2d 650, 654 (Tex. 1994)). The basic justification for this ultra vires exception to sovere ign immunit y is that ultra vires
acts—or those acts without authority —should not be considere d ac t s of the state at all. Cobb v. Harrington , 190 S.W .2d 709, 712 (Tex. 1945). Consequently , “ ultra vires suits do not attempt t o
exert control over the state—they attempt to rea ssert the control of the state” over one of its ag ents. Heinrich , 284 S.W .3d at 372.
I V The court of appea ls held that McRaven acte d within his leg al authority when he continued
to withhold unreda cted rec ords from Hall. ___ S.W .3d at ___, 2016 WL 4979576, at *9. Acc ording
to the court, this was “bec ause it was the Boa rd, throug h its [J uly ] majority vote, who ultimately ref used to allow Hall full acc ess to the Kroll file without reda ction.” Id. More specific ally , the court viewed the J uly vote as showing that the Boa rd “i m p l icitly deter

mined that Hall does not have a
9leg itimate educa tional interest in the information and that it may be protec ted by other privac y laws.” Id. Essentially , beca

use t he Board endorsed McRaven’ s proce ss, and because McRaven serves at the behest of the Boa

rd, McRaven was within his authority in ref using full acc ess. See id. Both Hall and McRaven char acte rize this holding as indicating that McRaven was not the “prope r party ” to this ultra vires suit. Heinrich is our only case to speak about a proper party in the context of an ultra vires suit.
284 S.W .3d at 372–73. There we clar ified that the g overnme ntal entities themselves wer e not proper parties to an ultra vires suit. Id. I nstead, a plaintiff m ust sue t he relevant officer s in their official
capa cities. Id. Of course , that is not an issue in this lawsuit. Hall sued McRaven, a state office r, in
McRaven’ s officia l capa city , and McRave n is unquestionably a prope r party

to the ultra vires suit
in Heinrich ’s sense of the term. But here , the parties arg ue about proper parties in an entirely differ ent sense: a s a mea

ns of horizontal sele ction—pinpointing which officia l has the duty to act. An ultra v ires claim based on a ctions taken “without leg al authority ” has two fundame ntal component s : (1) authority g iving the officia l some (but not absolute) discretion to act and (2) conduct outside of that authority

. Hous. Belt , 487 S.W .3d at 158. The proper -par ty plea by a state offici al i s another way of say ing a highe r power has deprive d the officia l of all of his or her discretion. I n other words, the highe r authority has cre ated a ministerial (nondiscre tionary ) duty for the subordinate officia l to eng ag e in conduct the plaintiff claims is wrong ful. Thus, the proper -par ty question is nothing fore ign; it g oes to the first component of Houston Belt ’s clar i fi ca t i o n o f a “without leg al authority ” claim. Id. T h e court of appea ls’ discussion adher es t o this fra mework.
See ___ S.W .3d at ___, 2016 WL 4979576, at *9.

1 0I n that context, we must decide whether the Boa rd’s J uly vote deprived McRaven of all discretion. Hall arg ues it did not. We a g ree , at least with r espec t to a narr ow course of action: the Chance llor’s interpre tation of fede ral privac y law. On J uly 8, the Boa rd endorse d McRaven’ s twostep offe r of acc ess. The first of those steps, as char acte rized by the Board, left in place the understanding that questions of law rela ting to FERPA would rema in “as deter mined applicable ” by the C hance llor’s office

. This was made all the m ore clear during questioning of the UT Sy stem’s
Gene ral Counsel, Dan Sharphorn, at the trial court’s jurisdictional he aring

. When a sked about the eff ect of the J uly endorse ment, Sharphorn ag ree d that “the vote in J uly direc ted the chanc ellor to provide all of the informati o n , re d ac t ing only what is require d to be reda cted by privac y law.” Sharphorn also ag ree d that “the vote in J uly still left open the question [of] what data in the Kroll file, i f any , it was lega l to provide to Reg ent Hall.” S h ar p h o rn el ab orate d that his mission was to make sure i t wa s leg al to provide the information and that “the subsequent vote by the Boa rd of Reg ents in J uly didn’t chang e that mi ssion.” I f the July vote conc lusively

deprive d McRaven a

nd his top leg al advisor of any discretion to decide leg al questions under FERPA, it was not Sharphorn’ s understanding

. Finally , that the Boa rd continued to deleg ate the duty of interpre ting FERPA to the Chance llor’s office is no surprise. After all, just two months prior, the Boa rd amende d the Reg ents’ Rules to assig n that prec ise duty to the Chance llor. See Reg ents’ Rule 10801 § 5.4.6 (dele g ating to the Chance llor—in consultation with the Gene ral Counsel—the duty to “dete rmine whether a reg ent
may revie w information that is protec ted” by FERPA). The court of appea ls’ opinion implies that McRaven and his subordinates had no discretion
to decide the threshold question of law under FERPA beca use those questions wer e authoritatively

1 1s et t l ed by the Boa rd’s J uly vote. ___ S.W .3d at ___, 2016 WL 4979576, at *9 (finding that t h e Boa rd’s J uly vote “implicitly deter mined that Hall does not have a leg itimate educa tional interest in the information and that it may be protec ted by other privac y laws”)

. T h e l an gu age of the J uly resolution, Sharphorn’ s testimony , and the expli ci t d el egation of authority via t he R eg ents’ R ules belie any such implication. McRaven reta ined discretion to inter pret FERPA, and, with r espec t to the leg itimate exercise of tha t discretion, McRaven would rema in subje ct to ultra v ires principles.
But to the extent Hall’s lawsuit implicates a broade r indictment, w e ag ree with the court of
appea ls that the Boa

rd would be to blame, not McRaven. Hall claims an unfetter ed rig ht to

acc ess

— o n e fr ee from limit s other than disclosures that would violate other laws. Hall arg ues further that FE R P A i s cate g orica lly inapplicable to a reg ent’s reque st for information he finds

nece ssary to fulfill his job. I f Hall is rig ht about those leg al questions, the Boa rd has restric ted that rig ht in two way s. Fi rs t , t h e Boa rd amended S ection 5.4.5 of R ule 10801 to require a majority of
reg ents to approve a reque st for information. Second, th e Bo ar d cr ea t ed a g overna nce scheme in which the Chance llor’s d i s cr et ionary deter mination of fede ral law can lead to reda ctions of information. See Reg ents’ Rule 10801 § 5.4.6. These ar e concr ete limit s on Hall’s claimed rig ht to complete acc ess. But they are limit s imposed by the Boa

rd—not McRaven. Hall did not expli citly challeng e these rules in his ultra vires suit. Nor could he by suing McRaven alo n e. By i t s v er y definition, an ultra vires suit ag ainst
McRaven can only seek to compel him to follow his g overning au t h o ri ty , not to chang e that
g overning authority

. Heinrich , 284 S.W .3d at 372 (explaining that ultra vires “suits do not seek to alter g overnme nt policy but rathe r to enfor ce exis ting policy ”). Be cause Hall chose to sue McRaven,

1 2his complaint must nece ssar il y b e a li mited one: McRaven made an alleg edly incorre ct deter mination under F ERPA and that err oneous interpr etation re sulted in an unlawful r edac tion of rec ords.
But befor e considering the merit of the ultra vires claim, we must consider Hall’s alterna tive
argum en t reg arding McRaven’ s proper -par ty status. Hall claims that McRaven, as the highe stranking office r of the UT Sy stem, is the proper “nominal defe ndant” in a suit that is func t i o n ally direc ted at UT as an entity

. I f this wer e true, McRaven would be the proper defe ndant with respe ct
to complaints about the above decisions: ones that are attributable to the Boa rd and no one else. For that matter, McRaven would be the prope r defe ndant for any ultra v ires complaint ag ainst any UT office r. B ut Hall’s ar g ument misunderstands the ultra vires exception. Hall corr ectly arg ues that a suit ag ainst a state offi ci al in his officia l capa city “is mere ly ‘anothe r way of pleading an action ag ainst the entity of which [t he officia l] is an ag ent.’” Tex. A& M
Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham , 473 U.S. 159, 166 (1985))

. Ye t eq u all y clea r is the notion that “ ultra vires suits do not attempt to exert control ov er the s tate—they attempt to rea ssert t he control of t he st ate.” Heinrich , 284 S.W .3d at 372. To rea ssert such control, an ultra vires suit mu st lie ag ainst the “alleg edly responsible
g overnme nt actor in his officia l capa city ,” not a nominal, apex repr esenta tive who has nothing to do with the allege dly ultra vires actions. Patel v. Tex . Dep’ t of Licensing & Regulation , 469 S.W .3d 69, 76 (Tex. 2015)

. There fore , an ultra vires claim ag ainst McRaven must be confine d to c onduct pursuant to his authority : the duty to interpret a

nd apply FERPA to information re quests.

1 3V

And so we rea ch the dispositi ve issue: whether M cR aven’ s alleg ed misint erpr etation of
FERPA constitutes an ultra vires act. We hold that it does not. More g lobally , this case implicates 1

ever y mistake of law by a state officia l a nd whether such err ors are alway s ultra v ires , particula rly in light of our opinion in Houston Belt

. Heinrich clar ified two g ener al means of proving an ultra vires claim: (1) an action “without leg al authority ” or (2) failure to “per form a purely minist eria l act.” 284 S.W .3d at 372. I n Houston Belt , we addre ssed what it means to act without leg al authority in the context of a particula r ty pe of ultra vires claim: an alleg ation that an officia l has exceede d his or her g rante d authority to “interpr et and apply a law.” 487 S.W .3d at 158, 160–63. We conclude d that sovere ign immunit y “bar s suits complaining of an exercise of absolute discretion but not suits complaining o f

. . . an office r’s exercise of judgme nt or limited discretion without ref ere nce to or in conflict with the constraints of the law authorizing the officia l to act.” Id. at 163 (empha sis in orig i n al ). Although not direc tly applicable , we q u o t ed for compar ative purposes the rule that a public office r g ener ally lacks discretion or authority to misint erpr et the law. Id. (quoting In re Smith , 333 S.W .3d 582, 585 (Tex. 2011) (or ig. pr ocee ding) ). 2

W e d o n o t d e c i d e w h a t c o n s t i t u t e s a “ l e g i t i m a t e e d u c a t i o n a l i n t e r e s t ” u n d e r F E R P A o r a n y o t h e r q u e s t i o n s 1
o f f e d e r a l p r i v a c y l a w . F o r p u r p o s e s o f a d d r e s s i n g w h e t h e r H a l l ’ s u l t r a v i r e s c l a i m i s p r o p e r , w e a s s u m e f o r t h e s a k e o f a r g u m e n t t h a t M c R a v e n a n d h i s l e g a l a d v i s o r s i n c o r r e c t l y i n t e r p r e t e d F E R P A

.

S m i t h d i d n o t c o n c e r n a n u l t r a v i r e s e x c e p t i o n t o s o v e r e i g n i m m u n i t y b e c a u s e a s t a t u t e i n t h a t c a s e e x p r e s s l y 2
w a i v e d t h e s t a t e ’ s i m m u n i t y , a n d t h e i s s u e w a s w h e t h e r t h e o f f i c e r h a d e r r o n e o u s l y c a l c u l a t e d t h e c o m p e n s a t i o n d u e u n d e r t h e s t a t u t e . 3 3 3 S

. W

. 3 d a t 5 8 5

– 8 7

. 1 4Hall assumes that our mention of misint erpr etations of the law in Houston Belt nece ssarily

means that any leg al mistake is an ultra vires act. Not so. I t is the mistake’s impact on the officia l’s authority that car

ries dispositi ve weig ht for ultra vires purposes. I n Houston Belt , we examined an ultra vires claim ag ains t Ho u s t o n ’s Direc tor of Public Works and Eng ineer ing. Id. at 158. The plaintiff complained that the Direc tor acte d ultra vires in imposing a d ra inag e fee based on an unl awf ul deter mination of the perme ability of the plaintiff’s proper ty

. Id

. at 159. The ordinanc e authorizing the Direc tor to act comm an d ed h im to make that perme ability deter mination “on the basis of dig ital-map data

. . . or other similar r eliable da ta as shall be de termined by the direc tor.” Id. I nstead of using digital map data, or something simil ar, the Direc tor looked at aer ial photogr aphs
to make his perme ability deter mination. Id. We found that while the ordinanc e g ave some discretion
to the Direc tor, the discretion was not absol ute. Id. at 168. There fore , the Direc tor’s misint erpr etation of his own limit s in making a perme ability deter mination was a valid basis for an ultra vires claim. Id. at 169.
L ike Houston Belt, this case involves an ultra vires claim based on a state officia l alleg edly exceeding his g rante d authority to “interpr et and apply a law.” Id. at 158. But the ultra vires claim
in Houston Belt differ s from Hall’s claim in two key respe cts. First, the Direc tor’s misint erpr etation

was of the require ments of his enabling law

. Id. at 158, 165 (explaining that the limit s o f the
Di re ct or’s “author ity [were] found in the authority -g ranting law itself—the ordinanc e”)

. Consequently , when the Di rec tor misint erpr eted the limit s of t he ordinance, he misint erpr eted the b o u n d s of hi s own authority —exceeding the s cope of what the City permitted hi m to do. See id

. Houston Belt sy

nthesized sever al ca ses in rea ching the conc lusion that limit ed dis cre tion can give

1 5rise to an ultra vires claim. Id. at 162–63. Every case involved an int erpr etation of the official’s 3 enabling authority

. See id

. Her e, McRaven’ s interpre tation is not of his org anic authority but rathe r fede ral privac y law—a law collateral to McRaven’ s authority

. I t is Section 5.4.6 of Reg ents’ Rule 10801, not FERPA, that supplies the para meters of McRaven’ s authority : [ T ] he Chance llor, in consultation with the U.T. Sy stem Gene ral Counsel, shal l deter mine whether State or fede ral law restric ts compliance with the req u est

. Acc ording ly , the Chance llor, in consultation with the U. T. Sy stem Gene ral Counsel, s h al l deter

mine whether a Reg ent may revie w information that is protec ted by [FERPA]

. . . . Reg ents’ Rule 108 0 1 § 5

. 4

. 6

. I n order to act without leg al authority in car ry ing out a duty to interpre t and apply the law, McRaven must have exercised discret ion “without ref ere nce to or in conflict with the constraints of the law authorizing [hi m ] t o act” : Section 5.4.6. Hous. Belt , 487
S.W .3d at 163. Wit hout that showing , Hall would simply have no basis for “rea ssert[ing] control of the state.” Heinrich , 372 S.W .3d at 372. Admittedly , that beg s the question of whether McRaven’ s alleg edly mistaken interpre tation of collate ral lawwas ne verthe less in violation of his enabling authority . This bring s us to another key differ ence betwee n Houston Belt and t h e p re s en t case . I n Houston Belt , the Direc tor’s deter mination was subject to expli ci t co n s t raints, i .e., what to consider in rea ching a permeability

S e e H e i n r i c h , 2 8 4 S

. W

. 3 d a t 3 6 9 ( f i n d i n g v a l i d a n u l t r a v i r e s s u i t a g a i n s t a p e n s i o n f u n d b a s e d o n t h e f

u n d 3
r e t r o a c t i v e l y l o w e r i n g t h e p l a i n t i f f ’ s p e n s i o n i n v i o l a t i o n o f i t s e n a b l i n g s t a t u t e ) ; K l u m b v
. H o u s
. M u n
. E m p ’ s
. P e n s i o n S y s
. , 4 5 8 S

. W

. 3 d 1 , 9 ( T e x . 2 0 1 5 ) ( f i n d i n g i n v a l i d a n u l t r a v i r e s c l a i m a g a i n s t a p e n s i o n f u n d f o r a l l e g e d l y a c t i n g

“ w i t h o u t l e g a l a u t h o r i t y b y e x p a n d i n g [ t h e e n a b l i n g s t a t u t e ’ s ] d e f i n i t i o n o f

‘ e m p l o y e e ’ w i t h o u t t h e C i t y ’ s a p p r o v a l a n d i n c o n f l i c t w i t h t h e p l a i n l a n g u a g e o f t h e s t a t u t e ” ) ; E m m e t t , 4 5 9 S

. W

. 3 d a t 5 8 9 ( f i n d i n g v a l i d a n u l t r a v i r e s c l a i m a g a i n s t t h e H a r r i s C o u n t y C o m m i s s i o n e r ’ s C o u r t f o r f a i l i n g t o a u t h o r i z e p a y m e n t s t h a t t h e e n a b l i n g s t a t u e

— t h e W a t e r C o d e

— r e q u i r e d t h e C o m m i s s i o n e r s t o a u t h o r i z e ) ; T e x
. P a r k s & W i l d l i

f e D e p ’ t v
. S a w

y e r T r
. , 3 5 4 S

. W

. 3 d 3 8 4 , 3 8 6 , 3 9 3 ( T e x . 2 0 1 1 ) ( i m p l y i n g a n u l t r a v i r e s c l a i m m i g h t s u c c e e d a g a i n s t t h e P a r k s a n d W i l d l i f e D e p a r t m e n t f

o r a m i s t a k e n a p p l i c a t i o n o f t h e P a r k s a n d W i l d l i f e C o d e )

. 1 6d et er m ination. 487 S.W .3d at 159. Neg lecting one of those constraints was what m ad e t h e

Direc tor’s deter

mination—whether rig ht or wrong

— ultra vires

. See id. at 161. I n other words, the Direc tor’s discretion was limit ed in how he rea ched a conclusion. See id

. Her e, McRaven is indeed tasked with making a deter mination. But that is it. McRaven’ s only duty is that he “shall deter mine whether a Reg ent may

revie w information that is pr otected by [FERPA] .” Reg ents’ Rule 10801 § 5.4.6. His discretion in making that deter mination is ot herw ise unconstra ined. When the ul timate and unrestrained o b j ective of an official’s duty is to interpre t collater al law, a misint erpr etation is not overstepping such authority ; it is a compliant action even if ultimately

err oneous. Our intermediate courts of appea ls have repe atedly stated that it is not an ultra vires act for an officia l or ag ency to make an err oneous decision while stay ing within its authority

. I ndeed, 4

an ultra vires doctrine that require s nothing more than an identifiable mistake would not be a narr ow exception to immunit y : it would swallow immunit y . After all, do not all succe ssful lawsuits require

a leg al wrong ? As important as a mistake may be, sovere ign immunit y comes with a price ; it often allows the “improvident actions” of the g overnme nt to go unr edre ssed. See Tooke , 197 S.W .3d at

S e e , e
. g
. , E d i n b u r

g C o n s o l

. I

n d e p
. S c h

. D i s t

. v
. S m i t h , N o . 1 3

- 1 6

- 0 0 2 5 3

- C V , 2 0 1 6 W L 3 0 6 8 1 1 9 , a t * 1 3 ( T e x . 4 A p p . — C o r p u s C h r i s t i M a y 2 6 , 2 0 1 6 , n o p e t

. ) ( m e m . o p . ) ( e x p l a i n i n g t h a t i t i s “ c l e a r t h a t n o t a l l a l l e g e d e r r o r s i n i n t e r p r e t a t i o n o f l a w o r p o l i c y c o n s t i t u t e u l t r a v i r e s a c t s ” ) ; C r e e d m o o r - M a h a W a t e r S u p p l y C o r p
. v
. T e x
. C o m m ’ n o n E n v t l

. Q u a l i t

y , 3 0 7 S

. W

. 3 d 5 0 5 , 5 1 7

– 1 8 ( T e x . A p p . — A u s t i n 2 0 1 0 , n o p e t

. ) ( “ T h e s e a r e a l l e g a t i o n s t h a t [ t h e a g e n c y ] r e a c h e d a n i n c o r r e c t o r w r o n g r e s u l t w h e n e x e r c i s i n g i t s d e l e g a t e d a u t h o r i t y , n o t f a c t s t h a t w o u l d d e m o n s t r a t e [ t h e a g e n c y ] e x c e e d e d t h a t a u t h o r i t y . ” ) ; M H C B ( U S A ) L e a s i n g & F i n
. C o r

p
. v
. G a l v e s t o n C e n t

. A p p r a i s a l D i s t

. R e v i e w B d

. , 2 4 9 S

. W

. 3 d 6 8 , 8 1 ( T e x . A p p . — H o u s t o n [ 1 s t D i s t

. ] 2 0 0 7 , p e t

. d e n i e d ) ( “ A d d i t i o n a l l y , j u s t b e c a u s e a n a g e n c y d e t e r m i n a t i o n i s w r o n g l y d e c i d e d d o e s n o t r e n d e r t h a t d e c i s i o n o u t s i d e t h e a g e n c y ’ s a u t h o r i t y [ b e c a u s e ] a n i n c o r r e c t a g e n c y d e t e r m i n a t i o n r e n d e r e d p u r s u a n t t o t h e a g e n c y ’ s a u t h o r i t y i s n o t a d e t e r m i n a t i o n m a d e o u t s i d e t h a t a u t h o r i t y . ” ) ( e m p h a s i s i n o r i g i n a l ) ; W i l l i a m s v
. H o u s
. F i r e m e n ’ s R e l i e f & R e t

. F u n d , 1 2 1 S

. W

. 3 d 4 1 5 , 4 3 0 ( T e x . A p p . — H o u s t o n [ 1 s t D i s t

. ] 2 0 0 3 , n o p e t

. ) ( “ W i l l i a m s d o e s n o t c h a l l e n g e t h e f a c t t h a t t h e F u n d h a s . . . t h i s s t a t u t o r y a u t h o r i t y . . . . [ T ] h e c r u x o f W i l l i a m s ’ s a r g u m e n t i s t h a t t h e t r u s t e e s i n t e r p r e t e d t h e s t a t u t e i n a w a y t h e y s h o u l d n o t h a v e . T h i s i s a c o m p l a i n t o f

‘ g e t t i n g i t w r o n g , ’ n o t o f a c t i n g o u t s i d e s t a t u t o r y a u t h o r i t y . ” )

. 1 7332 (explaining that sovere ign immunit y functions “to shield the p u b l i c from the costs and

conseque nces of improvident actions of their g overnme nts”). Only when these improvident actions

are unauthorized

does an of

ficial shed the cloak of

the sovere ign a

nd act ultra vires

. Ba sed on the un re s tricted nature of McRaven’ s authority under Section 5.4.6, we find his discretion to interpre t collater al fede ral p ri vacy law to be “absolute” under our fra mework from
Houston Belt

. 4 8 7 S

. W .3d at 163 (explaining that sovere ign immunit y bars suits targ eting an exercise of absolute discretion). As such , McRaven—w hether rig ht or wrong —was not without leg al authority in making that deter mination. Nor was he without authority in reda cting information

once he made the leg al conclusion. The Boa rd instructed him to reda ct information he deter mined protec ted under

FERPA, and he did just t hat. Finally , did McRaven violate a purely minist eria l duty ? See Heinrich , 284 S.W .3d at 372 (explaining that the other g round for an ultra v ires suit is a failure to pe rfor m a “pure ly minist eria l
act” )

. Perhaps i t g oes without say ing, but if an officia l’s duty is discretionar y , it is not also nondiscretiona ry . T h e authorit y confe rre d by the Boa rd onto McRaven is quite the opposite of “whe re the law presc ribes and define s the duties to be perf ormed with such prec ision and cer tainty

as to leave nothing to the exercise of discretion or judgme nt.” Emme tt , 459 S.W .3d at 587 (def ining a mi nisterial dut y

). Having failed to meet either of the ba ses for e stablishing an ultra vires action under Heinrich , we c onclude that Ha ll’s case was prope rly dismiss ed.
* * *
We are n o t u

n s y mp a th etic to Hall’s plight, howeve r. He seeks information to educate himself and his fellow reg ents about issues of undeniable importance to the instit ution. Fa cts are the g rea test

1 8ally of those, like Hall, who seek to change t h e m i n d s of others. Yet the Boa rd has instit uted a
g overna nce structure that leaves Ha l l at the merc y of the Chance llor’s discretionar y leg al deter mination, at least in the first instance. Perhaps that scheme is unwise. Perhaps it eleva tes the
status quo above tr anspar ency . Perhaps it incre ases the likelihood that voices in the m inority will be stifled. And perha

ps it prese nts none of those dang ers. But those questions are bey ond our rea ch; the L eg islature is the ultimate arbiter of policy at The University of Texas. I n this suit we are simply tasked with assessing whether Chance llor McRaven exceede d his authority

. On this rec ord, we conclude that he did not. The judg ment of the c ourt of appe als is acc ording ly aff irmed.

___________________________ J ohn P. Devine J ustice

OPI NI ON DEL I VERED: J anuar y 27, 2017

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