1 

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

HOUSTON FEDERATION OF 

TEACHERS, TEXAS AMERICAN

FEDERATION OF TEACHERS, 

JACKIE ANDERSON, MAXIE 

HOLLINGSWORTH, AND DANIEL

SANTOS,

§

§ 

§ 

§ 

§ 

§

§

 Plaintiffs, §

v. § CAUSE NO. 5:20-CV-222-XR

§

THE TEXAS EDUCATION 

AGENCY; MIKE MORATH, 

COMMISSIONER OF 

EDUCATION, in his official 

capacity,

§

§ 

§ 

§ 

§

§

 Defendants. §

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS AND 

MOTION TO TRANSFER VENUE

Defendants the Texas Education Agency and Mike Morath, Commissioner of 

Education, in his official capacity, (“TEA”), file this Reply in further support of their 

Motion to Transfer Venue and Motion to Dismiss. Plaintiffs’ lengthy Response fails 

to explain why this case should not be transferred to the Austin Division of the 

Western District of Texas and subsequently dismissed. The case should be 

transferred to the Austin Division because the underlying facts have already been 

considered and adjudicated by Judge Yeakel. And the claims should be dismissed 

because no plaintiff has standing, sovereign immunity bars several claims, and 

Plaintiffs have failed to meet Rule 12 pleading standards.

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I. MOTION TO TRANSFER VENUE

Plaintiffs’ Response glosses over the most compelling reason that this Court 

should transfer venue to the Austin Division of the Western District of Texas – Judge 

Yeakel has already considered and addressed the underlying facts alleged in this 

lawsuit. See Houston Indep. Sch. Dist. v. Texas Educ. Agency, No. 1:19-CV-684-LY, 

2019 WL 6894474, at *1–3 (W.D. Tex. Dec. 18, 2019) (footnotes omitted). This fact 

alone is enough for transfer to the Austin Division. In addition, Plaintiffs do not and 

cannot rebut the fact that none of the relevant actors are located in San Antonio and 

none of the events at issue transpired in San Antonio. Plaintiffs have failed to present 

any compelling reason why this lawsuit should not be transferred to the Austin 

Division where Defendants are located, the relevant events occurred, and the 

underlying facts have already been presented to and adjudicated by Judge Yeakel. 

This case should be transferred to the Austin Division of the Western District of 

Texas.

II. MOTION TO DISMISS

Plaintiffs do not and cannot rebut the numerous reasons that this lawsuit must 

be dismissed under Federal Rules of Civil Procedure 12(b)(1), for lack of jurisdiction, 

and 12(b)(6), for failure to state a claim.

A. The Individual Plaintiffs Lack Standing.

Plaintiffs' allege that they “will be injured by the policy choices made by the 

board of managers in relation to [their] existing teacher contract[s].” Compl. ¶¶ 4–6. 

Plaintiffs offer no explanation of what those policy choices will be or how they will be 

injured by those policy choices. This allegation is purely speculative and simply 

Case 5:20-cv-00222-XR Document 13 Filed 05/27/20 Page 2 of 8
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insufficient to establish standing. See Galveston Open Gov’t Project v. U.S. Dep’t of 

Hous. & Urban Dev., 17 F. Supp. 3d 599, 606 (S.D. Tex. 2014) (“Unless and until 

someone who is going to be directly affected by the rebuilt public housing believes they 

are suffering an injury attributable to unlawful conduct, there is no ‘case’ or 

‘controversy’ to resolve.”). 

Plaintiffs’ Response focuses on an alleged “federally-protected right to vote for” 

their preferred candidates. Compl. ¶¶ 4–6. However, Plaintiffs fail to recognize that 

neither the federal Constitution nor state law confers a specific right-to-vote for 

Plaintiffs’ preferred candidates for the HISD board. See Rodriguez v. Popular 

Democratic Party, 457 U.S. 1, 9 (1982); Tex. Educ. Code § 39A.201. Nor do Plaintiffs 

address the fact that Supreme Court decisions authorize “appointive rather than 

elective” selections of school board members. See Sailors v. Bd. of Ed. of Kent Cty., 387 

U.S. 105, 109 (1967). The individual plaintiffs have failed to allege a “concrete and 

particularized” injury-in-fact that would confer standing for them to bring their 

claims. Their claims should be dismissed.

B. The Teacher Organizations Lack Standing.

Plaintiffs cannot bring their claims through the teacher organizations because 

they have not identified any member who has suffered the requisite harm to have 

standing to sue individually. See Hunt v. Washington State Apple Advert. Comm’n, 

432 U.S. 333 (1977); Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009); 

N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 237 (5th Cir. 2010) (requiring evidence 

of “a specific member”). The teacher organizations also lack standing to sue in their 

own right because they have not established that the organization has injury-in-fact, 

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causation, and redressability. The teacher organizations have not explained “how the 

activities it undertakes in response to the defendant’s conduct differ from its ‘routine 

[] activities,’” nor do they “identify ‘specific projects that [it] had to put on hold or 

otherwise curtail in order to respond to’ the defendant’s conduct.” Def. Distributed v. 

United States Dep't of State, No. 1:15-CV-372-RP, 2018 WL 3614221, at *4 (W.D. Tex. 

July 27, 2018) (quoting N.A.A.C.P., 626 F.3d at 238). There are no allegations in the 

Complaint explaining how the policies of the new board of managers will harm the 

interests of its members. Because the teacher organizations lack standing, their 

claims should be dismissed.

C. The Court Should Abstain from Deciding Plaintiffs' Claims.

This lawsuit involves important questions of state law that are currently being 

litigated in the pending state court lawsuit brought by similar plaintiffs against TEA. 

The state law questions are of substantial public import as the lawsuit interferes with 

the proceedings of TEA, a state agency, by asking for injunctive relief that would 

prohibit TEA from appointing a board of managers for HISD. Thus, the Burford 

abstention doctrine requires the Court to abstain from hearing this case. New Orleans 

Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (quotations 

omitted).

D. Sovereign Immunity Bars Plaintiffs' Claims.

Sovereign immunity bars all of Plaintiffs' claims against TEA with the 

exception of their VRA claim. It is well settled that Plaintiffs cannot bring claims 

against TEA since it is a state agency and benefits from the same sovereign immunity 

the State itself has. See, e.g., City of Austin v. Paxton, 943 F.3d 993, 1004 (5th Cir. 

Case 5:20-cv-00222-XR Document 13 Filed 05/27/20 Page 4 of 8
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2019) (dismissing claim against the Texas Workforce Commission and concluding that 

the claim could not be brought under Ex parte Young). Plaintiffs federal and state-law 

constitutional claims against TEA (Counts II, III, and IV) must be dismissed.

Sovereign immunity also bars all of Plaintiffs state-law constitutional claims 

against Commissioner Morath in his official capacity. The Ex parte Young exception 

to sovereign immunity is “inapplicable in a suit against state officials on the basis of 

state law.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 

900, 79 L. Ed. 2d 67 (1984). Plaintiffs’ state-law claims against Commissioner Morath 

in his official capacity are thus barred by immunity and should be dismissed.

E. Plaintiffs' Have Failed to State a Claim.

Plaintiffs' Voting Rights Act and Fifteenth Amendment claims fail because the 

VRA and Fifteenth Amendment do not apply where the State changes the school 

board system to an appointive rather than an elective scheme. See Searcy v. Williams, 

656 F.2d 1003, 1010 (5th Cir. 1981), aff'd sub nom. Hightower v. Searcy, 455 U.S. 984, 

102 S. Ct. 1605, 71 L. Ed. 2d 844 (1982) (noting that in “an appointive rather than an 

elective scheme,” the district court correctly found that the VRA and the Fifteenth 

Amendment did not apply); Phillips v. Snyder, 836 F.3d 707, 720–21 (6th Cir. 2016) 

(holding Section 2 does not apply to a Michigan law allowing emergency managers to 

take over municipalities or public school systems); Moore v. Detroit Sch. Reform Bd., 

293 F.3d 352, 354 (6th Cir. 2002) (upholding state takeover of local school board under 

Section 2). Plaintiffs VRA and Fifteenth Amendment claims fail as a matter of law. 

See, e.g. Quinn v. Illinois, 887 F.3d 322, 324 (7th Cir. 2018) (Easterbrook, J.) (“The 

Voting Rights Act has been on the books for 53 years, and as far as we are aware no 

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court has understood § 2 to require that any office be filled by election.”).

Even if the VRA applied, Plaintiffs VRA and Fifteenth Amendment claims fail 

because every voter in HISD, regardless of race, is affected equally by the 

appointment of the board of managers. See Ross v. Texas Educ. Agency, 2008 WL 

4746773, at *7 (S.D. Tex. Oct. 27, 2008) (“By Plaintiffs[’] own admission, every voter 

in the NFISD electorate, regardless of race, is affected equally by the appointment of 

the board of managers, and there has been no evidence that a particular minority 

group within the NFISD electorate has had their voting power diluted when compared 

to non-minority voters in the NFISD electorate.”). Plaintiffs fail to address the holding 

and reasoning from Ross v. TEA, where the Southern District of Texas considered the 

appointment of a board of managers for a Texas school district and dismissed claims 

that were nearly identical to those alleged by Plaintiffs here. Id. Like in Ross v. TEA, 

Plaintiffs have not offered any plausible, non-conclusory allegations that TEA’s 

decision to appoint a board of managers was “on account of race or color.” 52 U.S.C. § 

10301(a); see Ross, 2008 WL 4746773, at *7. Accordingly, Plaintiffs have failed to state 

claims that TEA or Commissioner Morath violated the VRA or the Constitution.

III. CONCLUSION

Plaintiffs' claims should be transferred to the Austin Division and thereafter 

be dismissed.

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Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

RYAN L. BANGERT

Deputy First Assistant Attorney General

DARREN MCCARTY

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief, General Litigation Division

/s/ Andrew B. Stephens 

ANDREW B. STEPHENS

Texas Bar No. 24079396

Attorney-in-Charge

Assistant Attorney General

MICHAEL R. ABRAMS

Assistant Attorney General

Texas Bar No. 24087072

Office of the Attorney General

General Litigation Division

300 West 15th Street 

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2120 (phone)

(512) 320-0667 (fax)

Attorneys for Defendants 

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CERTIFICATE OF SERVICE

 

I certify that on May 27, 2020, this document was served through the Court’s 

CM/ECF Document Filing System or through electronic mail, upon the following 

counsel of record: 

Martin Golando 

GARZA GOLANDO MORAN, PLLC

405 N. St. Marys, Suite 700

San Antonio, TX 78205

Phone: 210-892-8543 

martin.golando@gmail.com

Jose Garza 

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, TX 78209

210-392-2856

jgarza@trla.org

Martha Powell Owen 

Deats, Durst & Owen, PLLC

1204 San Antonio St., Suite 203

Austin, TX 78701

512-474-6200

mowen@ddollaw.com

/s/ Andrew B. Stephens

ANDREW B. STEPHENS

 Assistant Attorney General

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