No. 03-16-00254-CV

In the Court of Appeals

for the Third Judicial District

Austin, Texas

Michael Morath, in his Official Capacity as Texas 

Commissioner of Education; and Michael Berry, in his 

Official Capacity as Deputy Commissioner of Education,

 Appellants, 

v.

PROGRESO INDEPENDENT SCHOOL DISTRICT, 

 Appellee.

On Appeal from the

354th Judicial District Court, Travis County

REPLY BRIEF OF APPELLANTS

 

Ken Paxton

Attorney General of Texas

Jeffrey C. Mateer

First Assistant Attorney General

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548 

Tel.: (512) 936-1700

Fax: (512) 474-2697

Scott A. Keller

Solicitor General

Kristofer S. Monson

Assistant Solicitor General

State Bar No. 24037129 

kristofer.monson@oag.texas.gov

Counsel for Appellants

 

ACCEPTED

03-16-00254-CV

13895060

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/21/2016 9:51:21 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/21/2016 9:51:21 AM JEFFREY D. KYLE Clerk
ii

Table of Contents

Page(s)

Index of Authorities...............................................................................................iv

Argument................................................................................................................2

I. The Commissioner’s Actions Are Not Subject to Judicial Review.............3

II. There is No Ultra Vires Jurisdiction...........................................................6

A. The Management Team’s Two-Year Tenure Triggers section 

39.102(b), Regardless of Whether the Commissioner Initialed 

a Series of Circulation Labels. .............................................................6

1. The quarterly-reports issue is a red herring. .................................7

2. The quarterly-reports issue exemplifies the unconstitutional 

scope of the District’s view of the ultra vires cause of action.

.....................................................................................................8

B. The Three Governance Failures Support the Commissioner’s 

Exercise of Discretion. ...................................................................... 10

C. Sections 39.057 and 39.102 Also Preclude an Ultra Vires

Claim. ............................................................................................... 10

1. The 2015 amendments to section 39.057(d)(2) apply in this 

case. ........................................................................................... 10

2. There are No Procedural Requirements to render an SAI 

valid............................................................................................ 12

a. The document on which the District relies does not 

govern SAIs. ........................................................................ 13

b. Even if it did control, there would be no procedural 

defect that subjected the Commissioner’s actions to 

collateral judicial attack........................................................ 14

D. The Finality Provisions Are Independently Dispositive of the 

Claim. ............................................................................................... 16

E. The District’s Various Arguments Regarding the Scope of the 

Ultra Vires Cause of Action Fail........................................................ 17

F. The District’s remaining procedural arguments fail..........................22

III. The Rights of the District are Not Implicated by the 

Commissioner’s Actions and Cannot Support a Finding of Harm. ..........23
iii

IV. The District is Not Entitled to a Remand to Raise New Legal 

Theories..................................................................................................25

Prayer ...................................................................................................................26

Certificate of Service.............................................................................................27

Certificate of Compliance .....................................................................................27
iv

Index of Authorities

Page(s)

Cases

AEP Tex. Commercial & Indus. Retail Ltd P’Ship v. Pub. Util. Comm’n,

436 S.W.3d 890 (Tex. App.—Austin 2014, no pet.)......................................... 17

Bacon v. Tex. Historical Comm’n,

411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.)............................................9

Brewster v. Roicki,

468 S.W.3d 134 (Tex. App.—San Antonio 2015, no pet.) ................................20

City of Austin v. Central Appraisal District,

No. 03-16-00038-CV, 2016 WL 6677937 (Tex. App.—Austin 

November 10, 2016, no pet. h.)........................................................................24

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009)............................................................. 6, 18, 19, 20

City of New Braunfels v. Tovar,

463 S.W.3d 913 (Tex. App.—Austin 2015, no pet.)..........................................20

Clint Indep. Sch. Dist. v. Marquez,

487 S.W.3d 538 (Tex. 2016).............................................................................25

Combs v. City of Webster,

311 S.W.3d 85 (Tex. App.—Austin 2009, pet. denied)..................................... 21

Continental Cas. Ins. Co. v. Functional Restoration Assocs.,

19 S.W.3d 393 (Tex. 2000)..........................................................................21-22

County of La Salle v. Weber,

No. 03-14-00501-CV, 2016 WL 1084100 (Tex. App.—Austin 2016, 

no pet.) (mem. op.).......................................................................................... 18

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envt’l Quality,

307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.)......................................... 19

Federal Sign v. Texas Southern University,

951 S.W.2d 401 (Tex. 1997) ........................................................................ 17, 19

Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Authority,

96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied).................................... 15

Gattis v. Duty,

349 S.W.3d 193 (Tex. App.—Austin 2011, no pet.)............................................6
v

Gen. Servs. Comm’n v. Little-Tex Insulation Co.,

39 S.W.3d 591 (Tex. 2001)............................................................................... 18

Houston Belt & Terminal Railway Co. v. City of Houston,

487 S.W.3d 154 (Tex. 2016)........................................................................17, 18

In re Office of the Att’y Gen.,

456 S.W.3d 153 (Tex. 2015) ............................................................................. 19

Klumb v. Houston Mun. Emps. Pension Sys.,

458 S.W.3d 1 (Tex. 2015)............................................................................12, 18

Livingston v. Beeman,

408 S.W.3d 566 (Tex. App.—Austin 2013), aff’d 468 S.W.3d 534 

(Tex. 2015) ........................................................................................................9

Marks v. United States,

430 U.S. 188 (1977)..................................................................................... 16-17

Merritt v. Cannon,

No. 03-10-00125-CV, 2010 WL 3377778 (Tex. App.—Austin 2010) 

(mem. op.)................................................................................................. 19, 20

Morath v. La Marque Indep. Sch. Dist.,

No. 03-16-00062-CV, 2016 WL 3517955 (Tex. App.—Austin 2016, 

no pet.) (mem. op.)................................................................... 4-5, 12, 16, 18, 19

Morath v. Sterling City Indep. Sch. Dist.,

No. 14-0986, 2016 WL 3537025 (Tex. 2016).................................................... 16

N. Alamo Water Supply Corp. v. Tex. Dep’t of Health,

839 S.W.3d 455 (Tex. App.—Austin 1992, writ denied) ..................................20

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.,

176 S.W.3d 746 (Tex. 2005)........................................................................23-24

Pharmserv, Inc. v. Tex. Health & Human Servs. Comm’n,

No. 03-13-00526-CV, 2015 WL 1612006 (Tex. App.—Austin 2015, 

no pet.) (mem. op.).......................................................................................... 15

Stone v. Tex. Liquor Control Bd.,

417 S.W.2d 385 (Tex. 1967) .............................................................................22

Tex. Educ. Agency v. Amer. Youthworks, Inc.,

496 S.W.3d 244 (Tex. App.—Austin 2016, pet. filed)...................................... 18

Tex. Logos, LP v. Tex. Dep’t of Transp.,

241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.)......................................... 15
vi

Tex. Parks & Wildlife Dep’t v. The Sawyer Trust,

354 S.W.3d 384 (Tex. 2011)............................................................................. 19

Univ. of Tex. Med. Branch at Galveston v. York,

871 S.W.2d 175 (Tex. 1994).............................................................................. 16

Constitutional Provisions, Statutes, and Rules 

Tex. Const., art. II, § 1 .................................................................................8, 9

Tex. Const., art. VII, § 1 .................................................................................25

Tex. Educ. Code:

§ 39.057 ....................................................................................................... 4, 11

§ 39.057(a)(15)...................................................................................................5

§ 39.057(d)................................................................................................. 10, 21

§ 39.057(d)(2)................................................................................................ 2, 5

§ 39.057(e)....................................................................................................... 10

§ 39.058(b) ...................................................................................................... 14

§ 39.102(a).........................................................................................................5

§ 39.102(a)(9) ................................................................................................4, 6

§ 39.111(b)...................................................................................................... 7, 8

Tex. Gov’t Code § 2001.038 .........................................................................25

19 Tex. Admin. Code:

§ 97.1053(b)..................................................................................................... 10

§ 97.1055(b)(2)(B)(ii).......................................................................................22

§ 97.1059(b)(4) ..................................................................................................2

§ 97.1059(b)(1)(E)(2).......................................................................................22

§ 97.1059(b)(1)(G)....................................................................................... 5, 22

§ 97.1073(e) .....................................................................................................22

Other Authorities

Act of May 31, 2015, 84th Leg., R.S. ch. 1046, § 9, 2015, Tex. Gen. 

Laws 3649.................................................................................................... 4, 11

Act of May 31, 2015, 84th Leg., R.S., ch. 1094, § 25(a), 2015 Tex. 

Gen. Laws 3744................................................................................................ 11

Black’s Law Dictionary 1398 (10th ed. 2014)........................................... 16
No. 03-16-00254-CV

In the Court of Appeals

for the Third Judicial District

Austin, Texas

Michael Morath, in his Official Capacity as Texas

Commissioner of Education; and Michael Berry, in his 

Official Capacity as Deputy Commissioner of Education,

Appellants,

v.

PROGRESO INDEPENDENT SCHOOL DISTRICT,

Appellee.

On Appeal from the

354th Judicial District Court, Travis County

REPLY BRIEF OF APPELLANTS

To the Honorable Third Court of Appeals:

The nub of the District’s argument is that there was no evidence of a 

continuation of the defects identified in the first Special Accreditation Investigation 

(“SAI”) that could trigger the sanction of imposing a board of managers under any 

procedural scenario. But the Commissioner’s authority to issue sanctions is not 

limited to rectifying the contents of the SAI report. And, tellingly, the District says 

next to nothing about the three instances of failure to follow applicable governance 
2

policies identified in the separate documents submitted by the management team.

See Appellant’s Br. at 5-7 (detailing contents of management-team reports).

Regardless of whether the power to impose a board of managers derives from the 

two-year tenure of the management team, or from the downgraded accreditation 

rating based on the management team reports, there is no basis to assail the 

Commissioner’s actions as being outside his statutory authority. 

There is no common-law right to have a court reweigh the evidence considered 

by the Commissioner and substitute its own notions of public policy for the 

Commissioner’s statutory charge to trigger an SAI, Tex. Educ. Code

§ 39.057(d)(2), and to impose the relevant sanctions to remedy harm “to the public 

interest,” 19 Tex. Admin. Code § 97.1059(b)(4). There is, thus, no basis for 

jurisdiction.

Argument

The District has abandoned some arguments. See Appellee’s Br. at 27

(disclaiming any substantive-due-process claim for inherent judicial review). And it 

has limited or recast others. E.g., Appellee’s Br. at 32-33 (reframing argument that 

section 39.102(b) has not been triggered to hinge on whether the Commissioner 

initialed the ‘routing sheet’ on the management team’s quarterly reports). Not one 

of the District’s arguments—even as reframed—provides a mechanism to affirm the 
3

district court’s baseless order, which fails to satisfy the minimum requirements for 

allowing an ultra vires claim to proceed to trial.

I. The Commissioner’s Actions Are Not Subject to 

Judicial Review.

To recap the Commissioner’s position, the district court’s order must be 

reversed on three theories: (1) that the management team has been in place for two 

school years under § 39.102(b), seeAppellant’s Br. at 34-35; (2) that the accreditation 

rating change validly triggered the imposition of a board of managers, based on the 

Commissioner’s consideration of the second SAI report together with the 

management team’s reports, see Appellant’s Br. at 29-31; and (3) that the language

of the Education Code and relevant rules forecloses judicial review of the 

Commissioner’s actions by giving him plenary authority to decide policy for the 

Texas system of public schools, see Appellant’s Br. at 23-25, 27-28.

1. The management team has been in place for two entire academic years. The 

District concedes that this fact obviates its counter-textual partial-year argument, see

Appellee’s Br. at 13, 46 (although nonetheless still makes that argument, see

Appellee’s Br. at 46-48). Now, however, it argues that the tenure of the management 

team does not trigger section 39.102(b) because the Commissioner did not put his 

initials on a ‘routing sheet’ on the management team’s reports. See Appellee’s Br. 

at 25-26; see, e.g., PX.14 at 1 (example routing sheet). As explained below, not only is 

that argument untenable in light of the plain text of the Education Code, but it would 

undermine the separation of powers for a court to second-guess executivedepartment decision making based on extrapolation from internal executive-
4

department memoranda that are not subject to any particular statutory or rule-based 

procedural requirements. See infra, Part II.C.

2. Likewise—apart from attempting to avoid the necessary implication of the legal 

principles undergirding the Education Code and the ultra vires cause of action by 

repeatedly distinguishing those cases on their facts, e.g., Appellee’s Br. at 18 n.5, 

(attempting to distinguish reasoning of Morath v. La Marque Indep. Sch. Dist., No. 

03-16-00062-CV, 2016 WL 3517955, at *6 n.11 (Tex. App.—Austin 2016, no pet.) 

(mem. op.), on ground that it was based on annual-accreditation data1

)—the District 

attempts to sidestep the plain text of section 39.102 by arguing that the reference to 

SAI proceedings did not go into effect until the 2015 academic year, Appellee’s Br. 

at 33-34. But that bill went into effect immediately, apart from the academic-ratings 

provisions. Act of May 31, 2015, 84th Leg., R.S. ch. 1046, § 9, 2015 Tex. Gen. 

Laws 3649, 3655. As explained below, the District has no basis to contest the 

Commissioner’s power under the SAI and sanctions provisions of the Education 

Code. See infra, Part II.A.

3. Finally, there is no need to engage with the particular facts of this case. As the 

Court has already held, the phrase “to the extent the commissioner determines 

necessary” grants the Commissioner plenary authority. Morath, 2016 WL 3517955, 

 1 La Marque cannot be so distinguished, because it plainly states that it is the phrase “to the extent 

the commissioner determines necessary” in section 39.102(a)(9) that grants the Commissioner 

“absolute discretion,” 2016 WL 3517955, at *6 n.11. That same language is in section 39.057, which 

says that an SAI can result in a lowered accreditation status. Tex. Educ. Code § 39.057; see

Appellant’s Br. at 23-24. The facts are, of course different, La Marque arose from § 39.102(a)(9), 

which applies to annual accreditation data. See Tex. Educ. Code § 39.102(a)(9). But the legal 

principle involved is unambiguous and directly controlling.
5

at *6 n.11 (construing Tex. Educ. Code § 39.102(a)). He has the same authority

to initiate an SAI. Tex. Educ. Code § 39.057(a)(15) (“as the commissioner 

otherwise determines necessary”); see Appellant’s Br. at 23-24. An SAI, triggered 

by the Commissioner’s necessity determination, can result in a lowered 

accreditation status. Tex. Educ. Code § 39.057(d)(2). As a result, he may also 

impose any sanction available under section 39.102, which provides that the 

Commissioner “shall” issue sanctions “to the extent the commissioner determines 

necessary.” Id. § 39.102(a); see also Appellant’s Br. at 20-22. While the District 

implies that the action must be based on information in the SAI report, the rules 

implementing the statute expressly states that the ultimate sanctions determination 

may be made based on “other information,” 19 Tex. Admin. Code

§ 97.1059(b)(1)(G), which necessarily includes the management-team reports. Apart 

from challenging the use of the post-2015 version of § 39.102(a), the District makes

no argument regarding the plain meaning of the phrase “to the extent the 

commissioner determines necessary,” which occurs throughout the relevant 

statutes. See infra, Parts II.E, and .F.

Moreover, the relevant administrative rules make these determinations 

administratively final. Coupled with the lack of a provision for retroactive judicial 

review, that finality precludes any ultra vires claim on this type of sanction. See

Appellant’s Br. at 27-28. While the District arguesthat administrative finality cannot 

create a carve out from the ultra vires cause of action, see Appellee’s Br. 21-22, that 

position ignores Supreme Court precedent, see infra, Part II.D.
6

II. There is No Ultra Vires Jurisdiction.

While the District attempts to argue that neither the plaintiff nor the district 

court had a burden to identify an alleged ultra vires act, see Appellee’s Br. at 45, the 

test for ultra viresjurisdiction is whether the plaintiff has alleged, and can “ultimately 

prove,” an act outside a defendant official’s discretion. City of El Paso v. Heinrich, 

284 S.W.3d 366, 372 (Tex. 2009). The district court’s conclusory statement that 

there was a probability of success on the merits was not a proper analysis of the 

jurisdictional issues required to avoid dismissal. E.g., Gattis v. Duty, 349 S.W.3d 193, 

201 (Tex. App.—Austin 2011, no pet.). The easy answer in this case is that there can 

be no question that the Commissioner has authority to initiate an SAI and impose 

relevant sanctions, so it is impossible to plead that he has acted outside of his 

statutory and rule-based discretion.

A. The Management Team’s Two-Year Tenure Triggers section 

39.102(b), Regardless of Whether the Commissioner Initialed a 

Series of Circulation Labels.

The District now argues that the management team is illicit because the 

Commissioner has not met a supposed burden to marshal evidence that he reviewed 

the management team’s appointment on a quarterly basis.2 Appellee’s Br. at 25. 

That argument is simply wrong.

 2 Having acknowledged that there is no longer an argument available that the management team 

has been in place for less than two academic years, the District nonetheless renews its baseless 

argument that the Education Code applies only to complete academic years. Appellee’s Br. at 46-

48. As the Commissioner has already explained, section 39.102(b), by contrast to the provisions 

addressing annual accreditation review, expressly applies to partial academic years. See

Appellant’s Br. at 34-35 & n.14 (comparing § 39.102(b) with § 39.102(a)(9)). The District’s citation 

of various other contexts in which the relevant time period is the academic year makes no 

difference because those provisions are expressly based on data collected for each academic year. 
7

1. The quarterly-reports issue is a red herring.

The District states that it has “alleged and presented jurisdictional evidence that 

the Commissioner violated section 39.111(b) by maintaining the management team 

at the District without performing quarterly review mandated by the statute” and 

that the Commissioner’s actions are, if not taken in compliance with certain 

procedural requirements, “not considered a state action” and are, therefore, 

“void.” Appellees’ Br. at 25; see also id. at 32-34. But that is not, in fact, the allegation 

made in the petition, and the underlying legal theory is incorrect.

The relevant allegation is that “there is no evidence that the Commissioner 

conducted the quarterly reviews.” CR.1772 ¶ 131. This is not an allegation of fact, 

but an assertion of law.

3 The evidence on which the District relies for this argument 

addresses the fact that, while other officials at the Texas Education Agency signed a 

circulation label on documents being circulated within the agency, the 

 

And the reductio ad absurdum argument that sanctions might be imposed based on only two days of 

management-team oversight ignores both the text of the statute and the practicalities of running 

an entire Texas-wide system of free public education. While the District points to new 

administrative orders based on annual accreditation data, Appellee’s Br. at 47 n.15, like the orders 

it cited in the district court, these proceedings were based on annual accreditation review rather 

than SAIs and cannot support the assertion that an SAI must always be based on data from an 

annual review, see Appellant’s Br. at 35 n.14.

3 Similarly, the District makes the off-hand suggestion that it has alleged and presented evidence 

that the sanctions were based on an “unlawful special accreditation investigation.” Appellees’ Br. 

at 26. In fact, the allegation is that (1) a document called the “Special Investigation Procedures” 

governed the activities of the Division of Financial Compliance and (2) that these procedures 

applied “in conducting the second SAI.” CR.1773-74 ¶¶ 136-138. That is not an allegation of fact; 

it is two assertions of law. As testimony elicited at the hearing showed, the “Special Investigation 

Procedures” were never applied to accreditation proceedings. 2.RR.79:19-81:18; see infra, Part 

II.C.2.a. As such, compliance with them is legally irrelevant. And, as explained below, there is no 

enforceable limitation on the SAI power in the applicable statutes and rules that could be the basis 

for an ultra vires claim. 
8

Commissioner’s initials are not present on some routing sheets. 2.RR.117:12-135:8. 

At most, then, the record suggests that the Commissioner did not initial a piece of 

paper. No statute requires the Commissioner to initial a circulation document to 

justify the activities of a given management team. 

The District’s legal theory (which the Court must addresses de novo) is 

untenable. The statute states:

(b) At least every 90 days, the commissioner shall review the need for the 

conservator or management team and shall remove the conservator or 

management team unless the commissioner determines that continued 

appointment is necessary for effective governance of the district or delivery 

of instructional services.

Tex. Educ. Code § 39.111(b). The Commissioner did not remove the 

management team, which is sufficient evidence that the Commissioner did not deem 

it necessary to remove the team based on the quarterly records. Nothing in the 

Education Code requires the Commissioner to manifest such an intent in writing, or 

by checking a box on a form. Accordingly, the District’s appellate briefing fails to 

articulate a valid legal argument that the tenure of the management team triggered 

the Commissioner’s authority to impose a board of managers.

2. The quarterly-reports issue exemplifies the unconstitutional scope 

of the District’s view of the ultra vires cause of action.

As explained in the Appellant’s Br., see Appellant’s Br. at 32-34, the District’s 

arguments would create an unconstitutional grant of judicial review authority to the 

courts contrary to the text of the Education Code and Article II, § 1 of the Texas 

Constitution. The quarterly-report issue lays bare the core problem with the 
9

District’s approach: it would graft judge-made procedural requirements onto the 

internal decision-making processes of an executive-department entity. By that view, 

after discovery, any executive-department action could be subjected to judicial 

review if it had been arrived at orally, after internal consultation, rather than in 

written documents. The District offers no limiting construction to its legal theory 

that the absence of a written internal memorandum renders the Commissioner’s 

actions retroactively void. And this newly-created judicial power could have no 

practical limitation, because it depends on the proof of a negative. Courts could 

always create post hoc procedural hurdles for the executive department, then hold 

that executive actions were void for failure to comply with these newly discovered 

internal paperwork requirements. 

That is not how the Texas Constitution conceives of the relationship between 

the executive and judiciary departments. Tex. Const. art. II, § 1; Bacon v. Tex. 

Historical Comm’n, 411 S.W.3d 161, 173 (Tex. App.—Austin 2013, no pet.). The 

limitation on declaratory relief protects the “policy judgments embodied in the 

constitutional or statutory delegations that define the parameters of an officer’s 

discretionary authority and the decisions the officer makes within the scope of that 

authority.” Livingston v. Beeman, 408 S.W.3d 566, 572-73 (Tex. App.—Austin 

2013), aff’d 468 S.W.3d 534, 538 (Tex. 2015) (“whether Livingston’s actions were 

ultra vires depends on whether the statute required anything of him”).
10

B. The Three Governance Failures Support the Commissioner’s 

Exercise of Discretion.

The three instances of poor governance processes articulated in the 

management reports, see Appellant’s Br. at 5-7; see also id. at 14 (pointing out that 

District has never argued that it followed appropriate governance practices), are a 

sufficient basis to impose all the sanctions at issue in this appeal, independent of the 

two-year tenure of the management team. An SAI order can result in sanctions or a 

lowering of the accreditation rating, or both, Tex. Educ. Code § 39.057(d). And 

the Commissioner has authority to impose a board of managers if it is necessary “to 

improve any area of a district’s . . . performance,” id. § 39.057(e); see also 19 Tex. 

Admin. Code § 97.1053(b). The repeated failure to comply with traditional 

governance norms, based either on the SAI or continued poor performance on 

governance issues, is a matter of public interest that justifies the sanctions imposed.

C. Sections 39.057 and 39.102 Also Preclude an Ultra Vires Claim.

The District does not assert that the three governance failures identified by the 

management team were properly handled by the Board. But see Appellee’s Br. at 6

(asserting that hiring Cuellar as Superintendent was appropriate because he had 

adequate experience as a matter of fact). Instead, it presumes (without basis) that 

these occurrences cannot support the sanctions imposed because they were not 

included at some point in the SAI paperwork. That is wrong.

1. The 2015 amendments to section 39.057(d)(2) apply in this case.

The District attempts to circumscribe the Commissioner’s power by arguing 

that the current version of section 39.102 does not apply in this case. Appellee’s Br. 
11

at 33-34. This assertion doesn’t make a difference: it is merely another shade of the 

argument that an SAI can’t result in sanctions that aren’t justified by an entire year’s 

accreditation reporting. See Appellant’s Br. at 38-39 & n. 15. The old version of the 

statute is subject to the same practical concerns regarding implementation.

Nonetheless, the 2015 language applies to this lawsuit because it went into effect 

and governed the scope of the Commissioner’s powers, without reservation, from 

the moment it was passed by a supermajority. Act of May 31, 2015, 84th Leg., R.S., 

ch. 1046, § 20, 2015 Tex. Gen. Laws 3649, 3662. The District focuses on a separate 

provision stating that the changes go into effect for “academic performance ratings” 

performed in 2015. Appellee’s Br. at 34 (discussing section 19 of HB 1842). A Special 

Accreditation Investigation is not an “academic performance rating;” it is an 

investigation into all aspects of a district’s accreditation, taken outside the annualreview process.4 Tex. Educ. Code § 39.057; see also Appellant’s Br. at 22-24, 38-

40 (explaining that SAIs are, necessarily, different from the ordinary annual 

accreditation process). The relevant language of § 39.102 went into effect 

immediately and apply to these proceedings.

To be sure, it is hypothetically possible for a school district to raise a claim that 

HB 1842 could not apply retroactively consistent with the due-course-of-law 

 4 The District highlights the fact that the language on which it relies applies only to the portions of 

H.B. 1842 that apply to academic accreditations by paraphrasing the effective date language of a 

related bill, HB 2804. Appellee’s Br. at 34 n.12. That provision provides that the entire relevant act 

went into effect for the 2016-17 school year. Act of May 31, 2015, 84th Leg., R.S., ch. 1094, § 25(a), 

2015 Tex. Gen. Laws 3744, 3757. If the Legislature intended to delay the addition of a sanctions 

power based on an SAI, it would have delayed the effective date of the entirety of H.B. 1842, just 

as it did H.B. 2804. 
12

provision. E.g., Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 

2015)). Not here. Such a claim would require the District to establish a vested 

property right in the outcome of these proceedings. Id. In response to the 

Commissioner’s argument that the District is incapable of forming such a property 

interest, see Appellant’s Br. at 18-21, the District has chosen not to brief the issue.

At any rate, the Court addressed and rejected a similar argument in La Marque, 

which involved a change to the financial-accountability standards, 2016 WL 3517955, 

at *6. The Court properly held that the provision in question applied retroactively 

because the district lacked any vested property interest in its accreditation status, or 

the relevant standards, and therefore could not meet the test. Id. at *8 (remarking 

that to bring a retroactivity claim, “like all constitutional claims, a [plaintiff] must 

have a liberty or property interest that is entitled to constitutional protection. A 

constitutionally protected right must be a vested right, which is ‘something more 

than a mere expectancy based upon an anticipated continuance of an existing law.’” 

(quoting Klumb, 458 S.W.3d at 15)). Just as La Marque Independent School District 

lacked a vested property interest on which to base a retroactivity claim, Progreso 

Independent School District cannot now argue that §39.102’s amended language did 

not apply to this litigation from the moment it went into effect.

2. There are No Procedural Requirements to render an SAI valid.

As the Commissioner explained in his opening brief, the Education Code’s 

procedural requirements for an investigation and accreditation determination are 

quite simple and have been complied with, as demonstrated in the record. See

Appellant’s Br. at 26-27. Appellees suggest that there are specific requirements set 
13

out in a document governing “Special Investigation Procedures,” and that any 

deviation from those formal requirements renders any resulting executivedepartment action void. Appellees’ Br. at 38-39. The specified requirements do not 

apply to this proceeding; they apply to something else.

a. The document on which the District relies does not govern 

SAIs.

The “Special Investigation Procedures” document, as explained in the record, 

2.RR.65:24-66:2 (Q: “Your testimony is that these documents were not attached to 

the letter that you sent? A: Not to the letter I signed. I would have signed the letter 

with the first two pages.”), was not applied to the SAIs but was instead produced as 

part of the separate attendance-audit that has triggered parallel litigation, see

2.RR.68:11-:13 (“These documents were produced . . . in the other residency 

litigation”). It was an artifact of a prior investigatory regime governing financialcompliance issues. 2.RR.77:16-78:4. As Dr. Dawn-Fisher testified at the hearing, 

accreditation investigations were previously handled on an ad hoc basis by an 

individual named Emi Johnson; Dr. Dawn-Fisher’s unit did not use these rules in 

performing the SAIs in this case. 2.RR.79:19-81:18 (explaining that the SAI 

procedures are in a separate document called the “Special Procedures Manual”).

The document is irrelevant to the legal question whether the live petition describes 

an ultra vires act.
14

b. Even if it did control, there would be no procedural defect that 

subjected the Commissioner’s actions to collateral judicial 

attack.

Even if they were relevant, the very nature of the supposed procedural defects 

on which the District relied would make them an improper basis for an ultra vires

suit. The District suggests that (1) “only the Commissioner can expressly authorize 

an SAI,” (2) that the District must receive written notice, and (3) that the 

preliminary report include “any recommendation of sanctions.” Appellees’ Br. at 

38-39. The District further suggests that it was not given an opportunity for an 

informal review. Appellees’ Br. at 39. The record satisfies these requirements, and 

any procedural defect cannot render the sanctions ultra vires.

It is unclear how the Commissioner could better manifest his authorization of an 

investigation than by instituting that investigation. The District apparently believes 

that the form of an internal communication can void all subsequent investigatory 

proceedings. As explained in the opening brief, that type of formal review is improper 

outside the scope of a statutory grant of judicial review imposing particular 

procedural requirements. Appellant’s Br. at 39-40.

The allegation in the live petition is that the Commission never provided written

notice of the onsite investigation work tied to the second SAI. CR.1737 ¶ 30. That is 

not the same thing as an asserted lack of any notice. Appellee’s Br. at 44 (“there was 

no notice”). The Education Code requires only notice and a subsequent 

administrative proceeding, not a specific form of notice tied to the SAI itself. Tex. 

Educ. Code § 39.058(b).
15

Moreover, the record includes a produced copy of the notice of the SAI, albeit

not the notice actually served on the District. 2.RR.97:4-23. And the letters setting 

up the formal and informal review before Dr. Berry independently provide notice of 

the sanctions, with an opportunity to be heard, DX.9 at 4 (explaining challenge 

procedures after providing notice of suggested sanctions), and resulted in the full 

process contemplated by the Code and administrative rules, DX.14 at 1-2.

5 Given 

that the District opposed the sanctions and participated in the hearing before Deputy 

Commissioner Berry, the ultra vires claim is based on the absence of a signed written 

notice in the record rather than a substantive failure to provide notice. The 

undisputed fact that the District formally opposed the sanctions and participated in 

the proceeding before Dr. Berry cures any picayune procedural problem regarding 

the form of notice of the sanctions to be imposed. 

Even assuming the lack of a written notice occurred as alleged, it cannot lead to 

a determination that all the coordinate proceedings are void. As the Commissioner 

explained in his opening brief, procedural defects are not an appropriate basis for 

ultra vires claims.6 See Appellant’s Br. at 18, 31. The District does not deny this; 

 5 These exhibits can be found at tabs J and M in the appendix to the State’s opening brief.

6 The District attempts to limit the relevant cases to their facts. See Appellee’s Br. at 26 n.10 

(discussing Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Authority, 96 S.W.3d 519 (Tex. 

App.—Austin 2002, pet. denied), and Pharmserv, Inc. v. Tex. Health & Human Servs. Comm’n, No. 

03-13-00526-CV, 2015 WL 1612006 (Tex. App.—Austin 2015, no pet.) (mem. op.). But those 

cases say that a plaintiff must establish that a defendant official has acted “wholly outside their 

authority” to bring a claim that a defendant has exceeded statutory authority. Pharmserv, 2015 WL 

1612006, at *7; Friends of Canyon Lake, 96 S.W.3d at 528; see also Tex. Logos, LP v. Tex. Dep’t of

Transp., 241 S.W.3d 105, 121 (Tex. App.—Austin 2007, no pet.) (distinguishing ultra vires cases 

related to contracts to hold that ultra vires relief available only when defendant lacked authority to 

enter contract in first instance).
16

instead it argues that its positions regarding both the form of notice served and the 

presence or absence of Commissioner’s signature on a series of ‘routing sheets’ are 

substantive, rather than procedural, defects. SeeAppellee’s Br. at 24-26, 39, 49. That 

characterization is not credible. Under the ordinary definition of the term 

“procedural,” the defects about which the District complains are procedural. E.g., 

Black’s Law Dictionary 1398 (10th ed. 2014) (“procedural law: The rules 

that prescribe the steps for having a right or duty judicially enforced, as opposed to 

the law that defines the specific rights or duties themselves”).

D. The Finality Provisions Are Independently Dispositive of the 

Claim.

The District suggests that the administrative rules making the Commissioner’s 

actions final cannot foreclose an ultra vires suit because they are based on a plurality 

opinion and because they are found in an administrative rule. Appellees’ Br. at 21-

22; 39-41 (responding to Commissioner’s reliance on the plurality and concurring 

opinions in Morath v. Sterling City Indep. Sch. Dist., No. 14-0986, 2016 WL 3537025 

(Tex. 2016)). Not so; Sterling City controls. And as the Court stated in La Marque, 

retroactive relief is improper, 2016 WL 3517955, at *6 (calling injunction of an 

abatement order “an impermissible—and at this point impossible—request for 

retroactive relief”).

As the Commissioner has explained, a plurality opinion can be binding if a 

majority of the Supreme Court adopts a particular legal justification for its judgment, 

Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 176 (Tex. 1994), a 

rule that is consistent with United State Supreme Court practice, Marks v. United 
17

States, 430 U.S. 188, 193 (1977); see Appellants’ Br. at 27-28 n. 12. The District does 

not assert that Sterling City does not meet the York/Marks test: it merely assumes 

that plurality opinions can never be binding. York does not foreclose application of 

the Marks rule, 871 S.W.2d at 176 (plurality was not controlling where “no majority 

for the Court expressed a single rationale supporting the judgment rendered”). 

And while it is true that most finality-clause litigation involves statutory 

language, the Commissioner has rulemaking authority over the relevant procedures 

in these cases and has provided various levels of review for different levels of 

sanction. Rules are treated as statutes. AEP Tex. Commercial & Indus. Retail Ltd 

P’ship v. Pub. Util. Comm’n, 436 S.W.3d 890, 905-06 (Tex. App.—Austin 2014, no 

pet.). And the District has not challenged the validity of the finality rule.

E. The District’s Various Arguments Regarding the Scope of the 

Ultra Vires Cause of Action Fail.

Relying primarily on the Texas Supreme Court’s recent decision in Houston Belt

& Terminal Railway Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016), and on nowsuperseded language regarding declarations regarding “rights” in Federal Sign v. 

Texas Southern University, 951 S.W.2d 401 (Tex. 1997), the District suggests that 

there is no meaningful jurisdictional limitation on the ultra vires cause of action. See

Appellee’s Br. at 16-22. Simply not so. The ultra vires cause of action is narrowly 

tailored to avoid becoming a mechanism for the judiciary to substitute its policy 

preferences for those of the executive department whenever a district-court judge

sees fit to intervene in a policy dispute.
18

The District relies on Houston Belt for the proposition that a case can go to trial 

automatically if there is a limited exercise of discretion. Appellee’s Br. at 40 n.13. 

Again, not so. Courts often dismiss ultra vires claims involving limited grants of 

discretion. E.g., Tex. Educ. Agency v. Amer. Youthworks, Inc., 496 S.W.3d 244, 256-57 

& n.58 (Tex. App.—Austin 2016, pet. filed) (citing Houston Belt). And the Supreme

Court has performed the relevant inquiry subsequent to Houston Belt. E.g., Morath v. 

Sterling City Indep. Sch. Dist., No. 14-0986, 2016 WL 3537025, at *5 (Tex. June 24, 

2016). Houston Belt did not change the law; it merely rebutted the court of appeals’s 

conclusion that there could never be an ultra vires suit based on a limited grant of 

discretion, a position the Commissioner does not advance here. The mere fact that 

a defendant official has some discretion to act under a statute does not lead a fortiori 

to the conclusion that he has absolute discretion; that is why courts perform statutory 

construction in resolving ultra vires claims. See Klumb, 458 S.W.3d at 11.

Despite the District’s attempt to distinguish them on their facts, the cases do 

not contemplate general, common-law judicial review of executive-department 

action. E.g., Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex.

2001) (“Texas law recognizes no right to judicial review of an administrative order. 

. . .”).

7 City of El Paso v. Heinrich was expressly structured to avoid creating a general 

 7 Continuing the pattern of avoiding legal principles by reciting irrelevant facts, the District argues 

that Little-Tex cannot apply because it involved a contract. Appellee’s Br. at 20 & n.6. But LittleTex reaffirms longstanding precedent foreclosing common-law judicial review in the context of 

resolving a contract claim. That restatement of the law is pertinent to the legal resolution of the 

contract claim, but is not solely tied to that claim. And it has been applied in ultra vires suits. See, 

e.g., County of La Salle v. Weber, No. 03-14-00501-CV, 2016 WL 1084100, at *7 (Tex. App.—

Austin 2016, no pet.) (mem. op.) (applying Little-Tex’s statement to ultra vires claim). Likewise, 

other cases that the District attempts to cabin to their facts have been applied in the other relevant 
19

common-law right to judicial review, 284 S.W.3d at 372. The primary cases on which 

the District relies either predate Heinrich, see Appellees’ Br. at 19 (citing Federal 

Sign, 951 S.W.2d at 404), or involve the assertion of a right to property that was not 

arrived at following an exercise of statutory discretion, id. at 19-20, 21 (discussing 

Tex. Parks & Wildlife Dep’t v. The Sawyer Trust, 354 S.W.3d 384 (Tex. 2011). As the 

opening brief pointed out, Heinrich superseded Federal Sign’s discussion regarding 

declarations of rights, and ample authority makes clear that there is no common-law 

right to judicial review. Appellant’s Br. at 16 n.9. 

Sawyer Trust does not involve agency determinations, but rather incorporates 

longstanding case law involving a common law right to challenge the State’s 

assertion of title to property even though trespass-to-try-title claims are barred by 

sovereign immunity, 354 S.W.3d at 393-94. Indeed, the gravamen of Sawyer Trust’s 

reasoning is that the executive department defendant had not acted at all, but was 

nonetheless subject to suit based on an alleged improper exercise of ownership. Id.

And Heinrich itself draws a line between going back in time to undo a past act (which 

 

contexts. See, e.g., La Marque, 2016 WL 3517955, at *11 (citing In re Office of the Att’y Gen., 456 

S.W.3d 153, 157 (Tex. 2015) as basis for dismissing claim for judicial review of accreditation 

sanctions under Education Code). Nor are more recent cases distinguishable. See Appellee’s Br. 

at 22 n.8 (discussing American YouthWorks and Creedmoor-Maha Water Supply Corp. v. Tex. 

Comm’n on Envt’l Quality, 307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.). While American 

YouthWorks discussed a finality clause, it separately held that a charter school is limited to asserting 

inherent-review claims because there is no availability of judicial review under the Education Code 

sanctions provisions, 496 S.W.3d at 257. Creedmoor-Maha disallowed “injunctive relief restraining 

the order’s enforcement,” 307 S.W.3d at 514. And Creedmoor-Maha has never been read to be 

limited to finality-clause provisions. E.g., Merritt v. Cannon, No. 03-10-00125-CV, 2010 WL 

3377778, at *3 (Tex. App.—Austin 2010) (mem. op.) (citing Creedmoor-Maha for proposition that 

ultra vires claim asserting that agency made a wrong decision when exercising statutory authority 

and was not, therefore, subject to ultra vires suit).
20

would have been required for Heinrich to recover pension funds withheld in the past) 

and (potentially) requiring future pension payments as they came due, following a 

judgment requiring that payment, 284 S.W.3d at 372-75. But an ongoing pension

obligation is not “final”; by its very nature, it creates a new obligation every month, 

so it can be awarded prospectively. Allowing retroactive relief to undo already-final 

executive-department action would, in effect, broaden the ultra vires cause of action 

to encompass judicial review of every executive-department action.8

Finally, the District argues that its requested relief is prospective, and thus 

sidesteps the bar on common-law judicial review, because the board of managers has 

not yet sworn an oath. Appellee’s Br. at 23. Like the argument that the form of notice 

of the second SAI voids the Commissioner’s action, this assertion elevatesform over 

substance. If an ultra vires claim can result in an injunction against the results of an 

action, rather than the taking of the action in the first instance, the ultra vires claim 

 8 The District cites cases that, it asserts, properly enjoin the results of an already-final executivedepartment action. See Appellee’s Br. at 19-20 (discussing Brewster v. Roicki, 468 S.W.3d 134 (Tex. 

App.—San Antonio 2015, no pet.) and City of New Braunfels v. Tovar, 463 S.W.3d 913 (Tex. 

App.—Austin 2015, no pet.). But Roicki involved an injunction requiring one governmental entity 

to follow the final order of another governmental entity, 468 S.W.3d at 142 (pointing out that Texas 

Department of Motor Vehicles had no right of judicial review regarding county tax assessor’s 

determination). And the plaintiff in Tovar did not seek injunctive relief regarding the grade on his 

test, but rather an amendment to his personnel file on an ongoing basis because points had been 

left off that a statute required by included in the file, 463 S.W.3d at 920. The District further 

attempts to distinguish other cases. See Appellee’s Br. at 22-23 n.9 (attempting to distinguish 

Meritt and N. Alamo Water Supply Corp. v. Tex. Dep’t of Health, 839 S.W.3d 455 (Tex. App.—

Austin 1992, writ denied)). But Meritt is on all fours with this case, because it involved a challenge 

to a discretionary act based on a disagreement with the outcome, 2010 WL 3377778, at *3. And 

North Alamo says what it says: “The fact that the [executive-department defendant might decide 

‘wrongly’ in the eyes of an opposing party does not vitiate the [defendant’s] jurisdiction to make 

[the] decision,” 839 S.W.2d at 459.
21

will be transformed into a vehicle for common-law judicial review contrary to Texas 

Supreme Court precedent.

* * *

Not to put too fine a point on it, the District asserts that procedural irregularities 

in executive-department actions render them perpetually subject to collateral 

judicial attack. Appellee’s Br. at 19. And it argues that the use of the words 

“appropriate action” in a statute makes the Commissioner’s actions subject to 

judicial second-guessing based on a new-minted factual record in the district court 

because only a court can decide what action is “appropriate.” See Appellees’ Br. at 

31-32 (discussing Tex. Educ. Code § 39.057(d), and asserting that it is the 

courts’ role to decide what is “appropriate action” whenever the Commissioner 

acts). This argument boils down to a bare assertion of judicial power to second-guess 

executive-department policy determinations. Consistent with this impossibly broad 

view of the ultra vires case law, the District suggests that the ultra vires cause of action 

is itself a form of judicial review. Appellees’ Br. at 20 n.6 (asserting that ultra vires

claims “provide an exception to the rule precluding judicial review.”). That position 

cannot be squared with precedent or with the Constitution. E.g., Combs v. City of 

Webster, 311 S.W.3d 85, 91 (Tex. App.—Austin 2009, pet. denied) (“It is well 

recognized under Texas law that there is no right to judicial review of an 

administrative order unless a statute proves a right or unless the order adversely 

affects a vested property right or otherwise violates a constitutional right” (quoting 

Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 
22

2000) and citing Stone v. Tex. Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 

1967)). 

F. The District’s remaining procedural arguments fail.

The District clings to the purported absence of “persistent deficiencies” in the 

text of the second SAI as a basis for invalidating the sanctions. Appellees’ Br. at 29-

30 (discussing 19 Tex. Admin. Code § 97.1055(b)(2)(B)(ii)). This is smoke and 

mirrors. The sanctions do not have to be based on the SAI alone, but can be based 

on any “other information.” 19 Tex. Admin. Code § 97.1059(b)(1)(G). The 

management team reported three examples of persistent, systemic failure to 

maintain good governance processes. The continued failure to use good governance 

practices was a persistent failure that, evidently, was never adequately addressed.9

Moreover, contrary to the District’s assertions, section 97.1059 supports the 

Commissioner’s actions. See Appellees’ Br. at 30-31. That provision allows a 

lowered accreditation status based on “patterns of recurring deficiencies.” 19 Tex. 

Admin. Code § 97.1059(b)(1)(E)(2). The management-team reports show a 

recurring deficiency in governance practices, which was noted in every report 

starting with the initial SAI. See CR.179-299; CR.235-36; PX.1 at 94; see also

 9 The District implies, without citing authority, that it should be exempt from any sanction because 

it complied with its own self-created remediation plan. See Appellee’s Br. at 8. Nothing in the 

statute or the rules ties the availability of sanctions, including an accreditation downgrade or the 

imposition of a board of managers, to compliance with the particular requirements of an 

improvement plan. If that were so, a board of trustees like Progreso’s could sidestep any 

requirement that they actually carry out decision-making using traditional, open, predictable forms 

of public governance merely by ticking of checkmarks on a clipboard.
23

CR.160.

10 For the same reasons, section 97.0173’s recognition that a board of 

managers reflects an increased level of sanction and must be triggered by the 

ineffectiveness of prior interventions, 19 Tex. Admin. Code § 97.1073(e), cannot 

invalidate the Commissioner’s actions, see Appellee’s Br. at 36-37.

III. The Rights of the District are Not Implicated by the 

Commissioner’s Actions and Cannot Support a 

Finding of Harm.

The District recites the fact that the district court’s order mentions all the 

elements to support a temporary injunction, but it provides no legal basis for 

sustaining the issuance of the temporary injunction. Rather, the District argues that 

there is no need to conduct the relevant inquiry because it is a governmental entity 

that has standing (in limited circumstances) to bring constitutional challenges to 

statutes. Appellee’s Br. at 50-51. Standing to represent citizens is irrelevant to the 

question whether the District is actually harmed as an entity by the operations of a 

sanctions regime to which the District is subject by statute.

The District suggests that the citizens within the district, and the district itself, 

have a cognizable harm based on the replacement of the elected members of the 

Board. Appellee’s Br. at 49-51. It reaches this conclusion based on case law 

addressing governmental entity standing to bring constitutional claims based on 

harm to their constituents. Id. at 50 (citing Neeley v. West Orange-Cove Consol. Indep. 

 10 The District continues to assert that it is relevant that an accreditation standard can be lowered 

based on non-compliance with TEA orders. See Appellees’ Br. at 30-31. But that issue is irrelevant, 

because the Deputy Commissioner declined to make the predicate finding, and, as a result, the 

sanctions were not based on non-compliance. 
24

Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005)). The District’s argument 

misunderstands the nature of governmental-entity standing and, as a result, fails to 

make a valid argument related to the lack of a harm finding in the district court’s 

temporary-injunction order.

A governmental entity has standing to sue on behalf of its constituents when it 

is charged with implementing a potentially unconstitutional statute against their 

interests. E.g., West Orange-Cove, 176 S.W.3d at 774. That is irrelevant to the 

question whether removing an ineffective set of elected district members harms the 

district, as an entity, or the taxpayers in the district. This is not a constitutional 

challenge to a statute. Nor is there any cognizable harm to the district as an entity. 

The district itself remains unchanged; it would be run by different elected officials 

over time, in any event. And while the voters of the Progreso Independent School 

District may have an interest in the outcome of their choice of elected board 

members, this lawsuit is not brought by the taxpayers, but rather by the District itself. 

That the District might have standing to bring constitutional challenges to some 

statutes does not mean that it has a cognizable interest in all potential litigation 

involving oversight by the State of Texas. See City of Austin v. Central Appraisal 

District, No. 03-16-00038-CV, 2016 WL 6677937, at *6 (Tex. App.—Austin 

November 10, 2016, no pet. h.) (standing to sue limited to circumstances where local 

government required to implement allegedly unconstitutional statute).

* * *

While the District makes much of local control, it fails to cite any case suggesting 

that local control is paramount over the textual requirements of the Texas 
25

Constitution. The Constitution requires the establishment of “an efficient system of 

public free schools.” Tex. Const. art. VII, § 1. It does not say that local school 

districts can run themselves however they like. It is the accreditation provisions of 

the Education Code that allow the Commissioner to ensure that each district is, in 

its way, an appropriate part of an entire system of public education.

IV. The District is Not Entitled to a Remand to Raise 

New Legal Theories.

The District suggests that it is entitled to a remand so that it can articulate a 

challenge to the relevant administrative rules. Appellees’ Br. at 42. n.14. The Texas 

Supreme Court has expressly rejected that practice. Clint Indep. Sch. Dist. v. 

Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (“Generally, remand is a mechanism for 

parties, over whose claims the trial court may have jurisdiction, to plead facts tending 

to establish that jurisdiction, not for parties, over whose claims the trial court does 

not have jurisdiction, to plead new claims over which the trial court does have 

jurisdiction.”). It would be inappropriate to remand this case to turn it into a rule 

challenge under § 2001.038 of the Government Code.
26

Prayer

The Court should reverse the trial court’s judgment, vacate the temporary

injunction, and render judgment dismissing the lawsuit with prejudice.

Ken Paxton

Attorney General of Texas

Jeffrey C. Mateer

First Assistant Attorney General

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-1700

Fax: (512) 474-2697

Respectfully submitted.

Scott A. Keller

Solicitor General

Kristofer S. Monson

Assistant Solicitor General

/s/Kristofer S. Monson

Kristofer S. Monson

Assistant Solicitor General

State Bar No. 24037129

kristofer.monson@oag.texas.gov

Counsel for Appellants
27

Certificate of Service

On November 18, 2016, this document was served electronically on Darren G. 

Gibson, lead appellate counsel for Progreso Independent School District, via 

dgibson@808west.com. 

/s/ Kristofer S. Monson 

Kristofer S. Monson

Certificate of Compliance

Microsoft Word reports that this brief contains 7210 words, excluding the 

portions of the brief exempted by Rule 9.4(i)(1).

/s/Kristofer S. Monson

Kristofer S. Monson