I N THE C OURT OF A

PPEALS S ECOND A

PPELLATE D ISTRICT OF T EXAS A T F ORT W ORTH

____________________ _______ No. 02

- 20

- 00067

- CV

____________________ _ ______

On Appeal from the 153rd District C o urt Tarrant County, Texas Trial Court No. 153

- 315355

- 20

Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum O pinion by Justice Womack 

### N ORTHWEST 

### I NDEPENDENT 

### S CHOOL 

### D ISTRICT 

### , Appellant

V


### . K.R. AND 

### B .R., I NDIVIDUALLY AND AS 

### P ARENTS AND 

### N E XT 

### F RIENDS OF



### C.R., A 

### M INOR 

### C HILD 

### , Appellee s2 MEMORANDUM OPINION
I. I NTRODUCTION
K.R. and B.R. , I ndividu ally and as Parents and N ext F riends of C.R., a m inor child and student, f

iled suit challenging Northwest Independent School District’s assignment of C.R. to an alternativ e school and its dismiss al of her from the drill team
af ter what was allege d to b e marijuana was fou nd in her car in a high school parking
lot. In this accele rated appeal, 1 Northwest ISD com p lains of the denial of its plea to the jurisdiction. Be caus e the disciplinary decision is not appealable and the
constitutional claims are not viable , t he trial court lacked jurisdiction to hear the case.
Therefore , w e re verse the denial of Northwest ISD’s plea to the jurisdiction and render judgment dismiss i ng Parents ’ claims

. II. B ACKGROUND
O n February 14, 2020, a canine

- assisted se a rch te am foun d a substance alleged
to be marijuana in C. R. ’ s car, which was located in the parking lot of Eato n Hig h School, a part of Northwest ISD

. C. R. contends that she was not aware of the presence of the drug and had no intent to bring mariju a na onto the c ampu s. 2 Rather,
she allege s that the vehicle in which it was found had not been cleaned s ince it was purchased from an individual two months prior to the search and that “ the most likely

1 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) ; Tex. R . App. P. 28.1.

2 C.R. also contends t hat she took a drug test on February 15 , and the r esults were nega t

ive. She atta ched a copy of the test results to her pleadings.3

explanation for this material being under a back s eat of the ve hicl e was that it was
th e re when they purchased it

. ”
Northwest ISD adheres to a “z e ro tolerance” poli cy. As a result, C.R. was assigned to nine weeks in Northwest ISD’s Disciplinary Alternat ive Education Program (DAEP) , she lost h e r place on th e sc hool drill team , her access to communication acco unts as a drill team officer was revoked for the remainder of the
year, a nd she was deemed ineligib le to try out for a position on the drill team for the
2020

– 2021 school year. Place ment i n DAEP require s th at students serve a n out

- of

school suspensio n for three days be fore reporting to the prog r am. C.R. serv ed the suspension on February 14, 17, and 18. O n February 18, 2020, Parents submitted a level one appeal of the DAEP pla c emen t
. C.R. wa s to report for a meeting at DAEP on February 20 , 2020

. I nstead,
Parents filed suit seeking a temporar y rest raining order and tem po rary injunction on the basis that Northwest ISD unconstitutionally applied their disciplin ary p olic i es by

no t conside r

ing certain mitigating fa ctors, such as lack of inten t and the student’s disciplinary histo ry , when making th e decision to place C.R. in D AEP. Parents sought to enjoin Northwest ISD and its agents and employees from: (1) requiring
C. R. t o a ttend DAE P; (2) enforcing any policies which would exclud e C.R. from the
drill team for the 2019

– 2020 school year; (3) enfo r cing any policies wh ic h would exclude C.R. from participating in tryouts for the drill team for the 2020

– 2021 school
year; and (4) d e stro y

ing any evidence found in C.R.’s vehicle. Parents claimed that not4

gra nting injunctive re lief would cause irreparabl e harm becau se Northwest ISD’s actions and policies v

iolated the T e xas Constitution by depriving C.R. of rights
in c luding fr eedom o f s p eech, freedom of association, and procedural and substantive due process.
Northwest I SD filed a plea to the jurisdictio n a nd response to the r equest for a temporary restraining order

. In addition to arguing why inj u nctive re lief was inappro pri a te, Northwest ISD conte nded that the trial court d i d not have jur isdiction
be ca use (1) Parents could not appeal disciplinary d ecis i ons pursuant to Chapter 37 of
the T exas Education Code, and (2 ) Parents failed to plead constit u tionally viable

ca uses of ac t

ion

. The trial court granted Parents ’ temporary restrain ing order a nd entered an

or der prohibiting Northwest ISD fr om (1) requir i ng C.R. to attend DAEP rather than Eaton High School ; (2) enforcing any policies so as to exclud e C.R. fr om participating
in dr ill team during th e 2019

– 20 20 sc hool year ; and (3) destroying any evidence found
in C. R.’s ve hicle w hich form ed a b asis of North w est ISD ’ s disciplinary actions against
her

. I n the same order, the trial c o urt noted that the court had considered Northwest
ISD ’ s pl e a to the juri sdiction and concluded that it “ does have jurisdiction to consider
whether m inor [

] C.R. ’ s consti tu t

ional r i ghts have be e n viola ted. ” Therefore, the plea
to the jurisdiction w as denied

. This appeal followed. 3

3 Aft er submission to this court , Northwest ISD ’ s counsel filed a lett er stating th at its B oard of Trustees had h e ard the l evel t hree a ppeal

. “ Following presen tations5 III. D ISCUSSION
In three issues o n appeal, Northwest ISD co ntends that the trial court erred in deny in g its plea to the jurisdiction because the t ria l court lacked subject

- matter jurisdiction over the a l leged vio lations o f the Texas Constit ution and student
dis c iplinary deci sions. Parents respond that they “ sought protection from the co ur t system ” to prevent the school district from viol ating its own p olicies as well as the
Education Co d e. In addition, Paren ts state th at they are permitted to seek judicial
relief b ecause Northwest ISD violated their constitutional right s . Howeve r, i f the order denying the plea to the jurisdiction is re ver sed, they r e q uest th e op p or tunity to

r eplead.
A. Standard of Revie w A tr ial court’s ability to hear a case lies in its subject

- matter jurisdiction. Bland Indep. Sch. Di

st . v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). “A plea to the jurisdiction is a dilatory plea t h a t seek s dis missal of a case f or lack of subject

- mat ter j urisd icti on.”
Harris C ty

. v. Sykes , 136 S.W.3 d 635, 638 (Tex. 2004) ( citing Bland , 34 S.W.3d at 554

).
A plea to the jurisdiction may be used to as sert governme ntal immunity and defeat a by the [Parents], the D istr ict ’ s admi nistra tion, and Board deliberations, ” the Board vote d to modi fy t he “ L evel Two Decis ion ” and allow C.R. to try out fo r the 2020

– 2021 drill team. However, if she m akes the drill tea m, C.R. ma y only fully partici pate in drill team acti vi t

ies a fter February 14, 20 21

. In addition , according to the lett er, C.R. has successfully compl e ted her DAEP assignment and will return to Eaton High Scho o l c ampus in the fall. While it is arguabl e that any is sue regard ing th e DAEP assignment is moo t, we will address the as signme nt be cause counsel ’ s letter i s not part of th e appellate record. See Tex. R. App. P. 34.1.6

cour t’s s ubj e ct

- ma tter ju risdiction. Id. A trial cour t ’ s ruling on a plea to the jurisdiction is reviewed de novo. Su arez v. City of Tex. City , 465 S.W.3d 623, 632 (T ex . 2015). If a plea to the jurisdiction challen ges the exist ence of jurisdictional facts, w e

co n si de r rel evant evidence submitted by the part ies when necessary to resolve t he juri sdictional issues raised, just as the trial court must do. Tex. D ep ’ t of Park s & W

ildlife
v. Miranda , 133 S.W.3d 217 , 227 ( T ex. 2004); B land

, 34 S.W.3d at 555. If the evi d en ce

crea tes a fact question on the j urisdict ional issue, then the trial court cannot gran t the plea to the jurisdiction, and the factfinder will resolve the que st ion

. Miranda , 133 S.W.3d at 227

– 28. But if the relevant evidence is undi sputed or fail s to ra is e a f act q uestion on the jurisdictional i ssue, the trial court rules on the plea as a matter of
law. Id . at 228. The standar d mirrors our review of summary j udgments , where we
take as true all evidence favorable to the non

- movant , indulgin g every re a s o nab le
in feren ce and resolving any doubts in the non

- movant ’ s favor. City of El Paso v.
He inrich , 284 S.W.3d 366, 378 (Tex. 2009).
B. Applicable Law Chapte r 3 7 of the Texas Education Code establishes the d isci plinary consequences for specific conduc t a n d the proc edural due process to which any student pun ished under the chapter is entitled. Aledo Indep. Sch. Dist. v. Reese , 987 S.W.2d 953, 956 (T ex . App.

— Fort Wo rth 1999, pet. denied). A student can be pla ced in DAEP, which is a disciplinary option wit h o u t e xp uls ion, if the student7

possesses, uses, or is under the influence of an illegal controlled substance or dangerous drug as those te rms are used in the Heal th and Safety Code. Stephens v. Trinity Ind ep. Sch . Dist. , No. 12

- 12

- 00094

- CV, 2012 W L 528 934 6 , at *2 (T ex. App.

— Tyler Oct. 24, 2012, no pet.) (mem. op.)

. The Texas Education Code provides for notice and various hearings and appeals

. See Tex. Educ

. Code An n. § 37.009(a)

– (b). “ If school district poli cy allows a student to appeal to the board o f t r u s tee s o r the board ’ s designee a decision of the

c ampus behavior coordinator or other appropriate administrator,

. . . the decision of
the board or the board ’ s d es ignee is final and may not be appealed. ” I d. § 37.009(a

).
If a student ’ s placement in D A EP is to extend beyond sixty days or the end of the next grading period, whichever is earlier, “ a student ’ s parent o r guardian is entitled to notice of and an oppor tu nity to participate in a proceeding before the board of
trustees of the school distric t o r t he board ’ s designee, as prov ided by policy of th e board of trustees of the dis trict. ” I d. § 37.009(b). Any decision of the board o r the
board ’ s designee under t hi s subsection is also “ final and may not be appe aled. ” I d.
Even if there is no ju r

isdi c tion to review complaints arising ou t of the statutory rights in Chapter 37 of the T exas Education Code, an appellate court has jurisdiction
to determine whether the c om plain ed of action violates t he stu dent ’ s constitutional rights. Stephens , 201 2 W L 5289 346 , at *3

. Suits for i njunc tive relief may be
maintained against governmental entit ies to remedy violations of the Texas
Constitution. City of Elsa v. M.A.L , 226 S. W. 3 d 390 , 392 (Tex. 2007) (citing City of8

Bea umont v. Bouill

ion , 896 S.W.2d 143, 14 9 (Tex . 199 5 ) )

. But for a court to have jurisdiction of constitutional claim s against a governmental entity, the constitutional
claim s must be “ viable

. ” Andrade v. NAACP o f Austin , 345 S.W.3d 1, 11 ( Tex. 2011)

. T his means that the claim s “ must be properly ple a ded i n order to b e maintained , not that such claims must be viable on their me rits to negate immunity. ” Patel v. Tex

. Dep ’ t of Licen sing & Reg

. , 469 S.W .3d 69, 77 (T ex . 2015). While sovereign immunity does

not bar a suit to vindicate consti tuti onal righ t s, i mmu nity from suit i s not waived if the
constitutional claims are facially invalid. Klumb v. Houston Mun

. E mp s. Pension Sys

. , 458 S.W.3d 1 , 1 3 (Tex. 2015).
C. Ap pl ication of Law to Facts In their pleadings, P ar ent s 4 state that the y are “ pu rsuing a g rieva n ce p rocess wi thin [Northwest

] ISD , but by the time that process concludes, C.R. will have been depriv ed of her Constitutionally

- protected liberty and property int er ests without due
proce ss . ” At the time the suit was filed, a l ev el o ne a ppea l had a lread y b een submitted

. Since the filing of the suit, l evel t wo and t hr ee a ppeals have occurred. In addition to pursuin g th e grievance process, Parents allege that the disciplinary actions t aken by Northwest ISD impl i c ate various constitutional rights. First, th ey claim that Northwest ISD violated C.R. ’ s “ right to free speech and freedom
of association , as secured by Artic l e I , Section 8 of the Texas Constit ution ” b y

4 We note, as did Northwest IS D in its brief , tha t t he pleadings asse rt certain claims on behalf of “ P lai nti ffs ” c ollectively.9

“ depriving her of access to the ability to contact o t her drill team members or to participate wit h o thers in p lanned events as a drill tea m officer. ” Second, they allege
that Northwest ISD violated C.R

. ’ s “ rights to procedural and substanti ve due process,
as secured by Article I, Sect ion 19 o f the Texas Consti tution ” by “ failing and refusing
to take i nt o account m itigating factors, including bu t not limited to lack of intent, and by f a i ling to provi de a ppropriate due process before impos ing the discipline of assignmen t to DAEP. ” With r e gar d to thei r second constitutional claim, Parents
further state tha t N orthwes t I SD “ impinged, deprive d, and/or improperly
dimi ni shed ” Parents ’ and C.R. ’ s ( 1) l ib erty interest in attending C.R. ’ s customar y high
schoo l and in par ticipa ting in extr a curricu l a r dri ll team a ctivities and her normal classes; (2) liberty inte res t in C.R. ’ s good na me and repu tation; (3 ) property right in their monetary investment in d rill team membership and participation; and (4) p roperty interest in N orthwest ISD ’ s pol icies and proc edure s as set f orth in the
student handbook.
1. Education Cod e Claims
B ecause C.R. was assigned to DAEP, Section 37.009 of the Texas Education
Cod e governs. See T ex. Educ. Code Ann. § 37.009

. The s ection states that a disciplinary boar d’ s decisions are final and cannot be appealed. See id. § 37.009 (a), ( b ).

“ Te x as courts have interpreted this sectio n to mean just what it says

— district and

a ppe l late courts have no jurisdiction to review the decision to place a student i n DAEP. ” Stephe n s

, 2012 WL 5289346 , at *2 . We agree and hold that the trial court10

had no j uri s diction t o consider C.R. ’ s claims as they relat e to Northwest ISD ’ s decisi on to place C.R. in DAEP. See Flour Bluff Indep. Sch . Dis t. v. R.S. , No. 13

- 05

- 623

- CV, 2006 WL 94 9968 , at *2 ( T e x. App.

— Corpus Chr isti Ap r. 13, 2006, no pet. ) (mem. op.).
2. C onst i tutio nal Claims

a . F ree Speech a nd Free dom of Association
To su pport their cl ai ms of violation of their right to free speech and fr ee dom
of as sociation, Parents com plain of C .R. ’ s in a b ility to participate in certai n drill team
activities. Neither Pa rent s nor C.R. make s any factual allega tions that C.R. was engaged in public sp ee ch o r was denied the ability to associate with members of the
d rill te am. T he Texas Consti tution pro vides in p art that “ [e]very person shall be at liberty to speak, write o r p ubli s h his opinions on any subject, bei ng responsible for the abuse
of that privi lege

. ” Te x. Const. art. I , § 8. The Texas Constitution provid es gr eater rights of free e xpression than its f ederal co unterpart. Davenport v. Garcia , 8 34 S.W.2d 4, 10 (Te x. 1992 )

. F o r speech to be prote cted, it must address a matter of public

con cern. Alco rn v. Vaksman , 877 S.W.2d 390, 401

– 02 (Tex. App.

— Houston [ 1 st
D ist.] 1994 , writ denie d

). Similarly, f

r e e dom of association for the p urpose of advancing ideas and airi ng g riev a nces is a funda mental liber ty guara nteed by the First
A mendment. In re B ay Are a Citi zens A gainst Lawsuit Abuse , 982 S.W.2d 371, 375 (T e x. 1998 ).11

Howeve r, s tudents d o not possess a co n s titutionally

- protected interest in their participation in extr acur ricu l ar ac tivities. Spring Bran ch I.S.D . v. Stamos , 695 S.W .2d 556, 561 (T ex . 1 985) . Mor e partic ul arly, par ticipation in drill team is not a First
Amend ment righ t. Flo u r Bluff , 2006 WL 9 4 9968, at *3

. In light of the fact that C.R.
does not have a r

ight to d rill team participation , her association w ith t he team does
not advanc e he r con stitutional rights. Therefore, neither C .R ’ s freedom of speech nor
her fr eedom of associa tion is implicate d by the d isc iplinary actions tak en by the high
school to rem ov e her f

rom t he drill team.
b. Procedural and Subst antive Due Process
P a rent s cla im t hat they have rights in (1) C.R

. ’ s attendance at her normal and

custo mary hi gh sc hool and classes ; (2) their monetary inve stment in drill team ; (3) C.R. ’ s go od name and rep utat i on ; a nd (4) the polici es and procedure s in the school district’s student ha ndbo ok. T hey claim that these prope rty rights were implicated
and deserve the consti tutional p rotecti o n of due p rocess. First, we address the claim that C.R. has a right t o at tend her “ customary high
sch ool. ” Students have a right to free pub lic ed ucatio n , a nd when that right is implicated, due process may be used to protect against the d eprivation of a student ’ s

acce ss to edu c ation

. Stafford Mun. Sch. Dist. v. L.P. , 64 S .W.3 d 55 9 , 562

– 63 (Tex. Ap p.

— Houst on [14th Di s t.] 2001, no pet .)

. However, transfer ring a student from
regu lar classe s to an al te rnative education program does not impact a protect e d property interes t implica t ing du e process concerns. Id. at 563.12

Here , C

. R

. was n o t ex cluded from the edu cational pro cess. Other than alleging
that C. R. wa s no t pro v

ided an education in her “ customary high school, ” Parents have not otherwise alleged tha t she was exclude d from th e education al process for the days
that she was in D AEP. Ther efore, the allegations do not rise to the level of a
pro perty intere st imp licating due proce ss concerns. Second, a side from claiming freedom

- of

- spee ch and association violations due

to C.R.’s r e moval fr om the drill team and revocation of her offi cer d uties , P arent s cl aim that they have a p rotected interest in their monetary inve stment in drill team. However, as set out above, ther e is no fundamen tal right to parti cipat e in

extracur ricular a c tivities. Spring B ranch , 695 S.W.2d at 561 ; Flour B luff , 20 0 6 WL 949968, at *3

. Because C.R.’s interest in drill team particip ation is not a cognizable property interest , Parents ’ monetary inve stment in the drill team does not rece ive
constitutional prote ction

. See N C A A v. Yeo , 1 71 S.W.3d 863, 870 (T ex. 2005 ) (h o lding that student

- athlete ’ s claimed “ interest in f uture fina ncial opportunit ies ” did not assert an interest protected by article I , section 19 of the Texas Constitution). Third, P arents claim C.R.’s ass ignment to DAEP impinged her right to he r good n am e a nd re putation. However, r eputation alone is no t en titled to due process
protect ion. B d. of Tr

s. of Galve ston Wharves v. O’ R ourke , 4 0 5 S .W.3d 228, 237

– 38 (Tex. App.

— Houston [ 1st Dist .] 2013 no pet.)

. Only when it is c oupled with a “more tangible int eres t such as employment” is it worthy of due proces s pr otection. Id. In the absence of any other deprivation of a prot ected pro perty or l iberty interest, a13

student has no liberty interest in hi s repu tation ent itled to d ue process pro tection

. Stafford , 64 S

. W.3 d at 564. Simila rly, P arents ’ claim in C.R. ’s g ood name and reputation , standing alone, is not a protect ed interest. See Yeo , 171 S.W.3d at 868 (noting that the “ United States Supreme Court [ Paul v. Davi

s , 424 U.S. 693, 701 , 96 S.
Ct. 1155 , 116 0

– 6 1 ( 1 976) ] has held that repu tation alone is not a protected l iber ty or property interest ” ).
Fourt h, P arent s claim C.R. has a protec ted interest in the policies and procedu res listed i n Northwest ISD’s st udent handbook. S pecifically, Parents state
that “ th e a p plicab le state statute and district policy require that c onsi deration be gi ven

to ‘ intent or lack of i n tent, ’ as w ell a s ‘ a studen t ’ s disciplinary history, ’ as mitigating
fact ors in any decisi on rega rding remov al to D AEP, ‘ regard less of wh ether the
dec isi o n conc erns a mandatory or discre tionary action. ’ ”
T he Education C ode specifically r equires s c hool districts to establish standards
for student conduc t and to spe cify the circumstances and c onditions under wh ich a student may be removed from a classro om a nd pla ced i n an alternative education program. T ex. Educ. Code Ann . § 37.001 ; Hankin s v. P.H. , 1 S.W.3d 352, 354 (Tex. App.

— Corpus Chris ti 1999, pet. denied). I n t his case, the student hand book
spe cifically states that “ [i]n de cid ing whether to place a s tudent in a DAEP, ” the
administrator “ shall take into con sideration ” certain things s uch as “ [ i ]ntent or lack of intent at the time the student engaged in the conduct ” and “ [t]he student ’ s di sciplinary history

. ” Despite this lim iting language, judicia l r e view o f school district disciplinary14

mea sure s that do not rise to the level of exp uls i on is limited. Hankins , 1 S.W. 3d

at 354. Disciplinary actions involving mere plac ement in an al ternative education
progra m are not reviewa b le by a court of law. Id

. A s in H

ankins , Parents have ci t ed

us to n o ca ses in which a trial court has been h eld t o have jurisdi cti on to review the disciplinary measures of a school distr ict that d o not rise to the level of exp uls ion, see id

. , an d we have f

ound no ne. Even in case s i n volvin g exp ulsion, being provided a hear ing and the ability to present evidence of prior condu c t or any mit igating circu m stances has been held to be sufficient due process t o satisfy the Fourteen th Amendment of th e Constitution.
G alveston I ndep. Sch. Dis t

. v. B oothe , 590 S.W.2d 553, 557

– 58 (Tex . Ap p.

— Houston [ 1st Dist.] 1979, no writ). Here, even though ther e was no exp ul sion, Parents and C.R. were provided a full hearing w hich included level one, two , and three appeals

. Parents cite to Hi

nterlong v. Arl

i ngton Indep endent Sch ool Dist rict as a “ zero

tole rance case which preceded the statutory requirement that intent be consi de red ” and as an example of the level of due process r equired b y this court but d enied to
C.R. No. 2

- 09

- 050

- CV, 2010 WL 522641, at *3

– 4 (Tex . App.

— Fort Worth Fe b. 11, 2010, p et. denied) (mem. op.)

. In that case, we upheld t h e trial court ’ s judgm ent for
the school district and against the student on his due process claim because the school
district “ provide d an escape mechanism in li eu o f stri ct applicati on o f the ze r o tolerance policy

– that is , Dr. Bernd testified that, if p r ovided with any of the reques ted evidence, he would have reversed the exp ul sion d ecision. ” Id. at *2. However,15

Hi nterl on g is inapplicable to th is case. Indeed, Hi n terlon g was decide d pr ior to the
amend ment to Section 37.001 of the Texas Education Code w hich re qui red that a
student code of con duct provide consideration to certain mitigating factors

. Id

. ; s ee Tex. Educ. Code Ann. § 37.001(a )(4). And it failed to re a ch the question of whe ther
there is a co g nizable property interest in cases such as this o ne where the re is no
exp ulsion

. 5 Hinterlong

, 20 1 0 WL 522641 , at *2.
If in this claim P arent s are alludi ng to the concept of procedural due proc ess, they must sho w t h at the re is a prot ecte d liberty interest at stake , and th en the court may determine wha t process is due. St afford , 64 S.W.3d at 563. The Stafford c ourt recognized tha t because a student’s transfer to an alternative educ ation pr ogram did not implicate du e proc e s s protectio n an d a liberty or property interest was no t taken,
fai lure to notify the s tudent of an appeals process di d not impinge on any protected
interest. Id. In this case, P arent s are a ware of the policies and procedu res and in fact have
al rea d y move d through th e ap peals proces s afforded to C.R. Like in Stafford , no liberty or p r operty interest h as been implicated by Northwest ISD bec ause it has
afforded P arent s and C.R. the ability to use those grievance me thods as o utlin ed in the
student han d book.

5 The cou rt ev e n noted that “ the is sue of whether a zer o tolerance policy that provides no escape mechanism would violate due process [was] not before us. ” Id. at *2, n.4

.16

3. Rig ht t o Re plead

In Parents ’ brief, they r equest the opportunity to reple a d in th e event we reverse the trial court ’ s ruling on No rth west ISD’s plea to the jurisdiction

. A party
deserv es a “ reasonable opp ortunity to a mend ” unless the pleadi ng s affi rm atively negate the e xistenc e of juris diction. T ex . A&M U

ni v . Sys. v . Koseog

lu , 233 S.W. 3d 835, 839 (Tex. 2007) ( ci t

ing Harris C

t y . v. Sykes , 136 S.W.3d 635, 639 (T ex. 2004 ) ); Miranda , 133 S.W.3d at 226

– 27; C

ty

. of Cam eron v. Bro wn , 80 S.W.3d 5 4 9 , 5 5 5 (T ex . 20 02). As is
the case with spe cial exception s, a pl e a der must be given an opportun ity to amend only if it i s p ossible to cure the pleading defect. Koseoglu , 233 S.W.3d at 8 40.
The K oseo glu c ourt held t hat w here ju risdictional defects are i n fac t curab le, the plaintiff has t he opportunity to re plead. Id

. Even though the Koseoglu c ourt upheld the reple adi ng standard, it ultimately foun d that the jurisdictional defects were n ot

c urab le

. Id. The c ourt rea son ed that allowing the p lai ntiff to r epl e ad and plead more
facts in fav or of his cont ract cl aim would not change the fact t hat the entity ha d immunity which deprive d the co urt of subject

- matter jurisdiction. Id. Where a plea to the juris diction challe n ges the suff iciency of the plaintiff

’ s p lea d ings t o establish a waiver of governmental immunity, and thereby establish jurisdiction , we must determine whether the pl aintiff has pled a facially valid
constitutio n al claim. Compton v. Port Arthur Indep. Sch. Di st. , No. 09

- 1 5

- 00321

- CV,
2017 WL 308 1 092 , at *3 (T e x. App.

— Beaumont Jul y 20, 20 17, no pet.) ( mem. op.)

.17

If the pleadings affirmatively negate the existence of jurisdiction, then a ple a to the jurisdiction may be grant e d without allowing the plaintiffs an opportun i ty to amend.
Id. Here, P ar e nt s have c omplain ed of the assignment of C.R. to DAEP and the accompanying loss of her drill team privileges. A s set out above, the disciplinary assignment is not appealable under t he Education Code, and th ere is no fundamenta l

r ight to participate in ex t rac u r ricul ar activities. 6 In their briefs, P arents have not suggested how they would replead to give the trial court jurisdiction

. If P arent s were allowed to replead, more fac t s would not mak e the claims viable or change the l aw

en act ed by the legislatu r e , t hereby giving the trial court subject

- matter jurisdiction to
hear the case. As a result, P arent s are not entitled to the opportunity to replead.
IV. C ONCLUSION
Because No r th west ISD’s disciplinary decisions are n ot a ppe al able under Chapter 37 of th e Te x as Ed ucatio n Code and Parents did not plead viable

cons titutional claims , the trial court did n ot have jurisdiction to h ear this matter

. Therefore, we reverse th e trial cou r t ’ s order denying N orthwest ISD ’ s plea to the ju ri sdictio n and render judgmen t di s missi ng Parents ’ clai ms .

6 In addition, we are mindful of the fact th at t he Texas Supreme Court has qu oted the followi ng co u nsel of the Un ited S tate s Supreme Court to the trial courts and courts of appeal : “ Courts do not and cannot intervene in th e resolution of conflicts which arise in the daily operation of school syst ems an d which do not directly and s h arpl y implicate basi c constitutiona l v alu es. ” Ye o , 171 S.W.3d at 870 ( quoting Epperson v. Arkansas , 393 U.S. 97, 104, 89 S. Ct. 266 , 270 (1968 )).18 /s/ Dana Womack
Dana Womack Justice Delivered: August 20 , 2020