### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00025
- CV

The Texas Education Agency; Mike Morath, Commissioner of Education in his Official

Capacity; and Doris Delaney, in her Official Capacity, Appellant s

v. Houston Independent School D i strict, Appellee

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 19
- 003695, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

D I S S E N T I N G O P I N I O N

I believe that the C ommissioner is authorized to take the actions H ouston
In d e pendent School District (HISD) has challenged; therefore , I cannot join the Court ’ s opinion
and must respec tfully diss ent . I woul d reverse the trial court ’ s order, vacate the temporary injunction, and render judgment dismissing HISD ’ s claims.

The Com mi s sioner “ se rve[s] as the educ ation leader of the st ate ” and t he

e xecutive o fficer of the TEA and is charged with “ carry[ing] out the duties impos ed on [him] by
the [State Board of Education ] or the legislature , ” including th ose dut ies “ in connection with t h e public school ac coun tabili ty system as prescribed by Chapters 39 a nd 39A ” of the Education
Code. Tex. Educ. Code § 7.055 ; see also id. §§ 39.001

– . 41 3 ( Chapter 39, “ Public School System Accountability ” ), 39A.001

– .907 ( Chapte r 39A, “ Accountability I nte rv e ntions and Sanctions ” ).
Actin g w ithin his broad power s and duties , the Commissioner may authorize special accreditation2

investigations ( SAI s ) conducted under statutorily enumerated circu m stances as well as when the
Commissioner , in his discretion , “ oth erw i se determi nes [one is] nec essary. ” See id. § 39.05 7 (a).
A completed SAI allows the Commissioner to m ake disc retionary interventions and impose
sanctions on a school district under th e express language o f the Education Code :

Based on th e res ults of a [S AI ] , t he comm issioner may : ( 1) take app r opriate action under Chapter 39A ; (2) lower the schoo l district ’ s accreditation st atus or a d istrict ’ s o r campus ’ s accountability rat ing ; or (3) take action under both S ubdi visions (1) and (2).

I d. § 39.057 (d). In tur n , t he firs t sectio n i n C hapter 39A p rov ide s , “ T he commissioner shall take any of the actions authorized by this subchapter [A] t o the extent the commissioner determines

nece ssary if

. . . the commissioner considers the ac tion to be appro priate on the basi s of a [S AI]
unde r section 39.057. ” Id. § 39A.00 1 ( emphases added)

. T hese sections, read to gether, provide
the Commissioner b road discretion to apply whic hever Subchapter A inter ventions and sanctions

t he Com mission er con siders “ necessa ry ” and “ a ppr opria t e ” based on SAI results as well as the
power to contemporaneously lower a district ’ s accreditation statu s. See id. § § 39.057 , 39A.001

.

S ubchapter A , in turn, expressly aut horizes t he appo in tment of a board of managers :

T he comm issi o ner m ay a ppoint a bo a rd of ma nagers to exercise the powers and duties of a school district ’s board of trustees if the distr ict is subject to commissioner action under Section 39A.00 1 and: (1) h as a current accreditation status of a ccredited

- wa r ned or ac c redited

p robation ; ( 2) fails to satisfy any standar d under Section 39.054 ( e) ; or3 (3) fails to satisfy financial accountabilit y standards as determined by commissioner rule.

I d. § 39A.004

. Whi le it is true , as HISD contends and the Co urt notes , that ap pointing a board of

ma n agers under section 39 A.004 requires the dis trict to meet at least one of three enum erated conditions, the first of those conditions is that the district have an accreditation statu s of

“ accredited

- wa rned ” or “ accredited

- probation

. ” See id. I n a Novembe r 6, 2019 letter citing
the SAI results , t he Commissioner informed HISD that he would take that very action and
lower HISD ’ s accreditation statu s to “ Accredited

- W a rned

. ” Und er section 39 .057(d)(3 ) , the
Commissioner has the aut hori ty both to lo wer the di s tric t ’ s accreditatio n sta tu s a nd “ take appropriate action ” und er Chapter 39A based on SAI results

. See id. § 39.057(d)(3). Therefore,
the C ommissione r is expressly authorized to lower HISD ’ s accr editation st a tus

— which he ha d
threa t ened t o do

— a nd th e n, b a sed on that lowered accredita tion, to appoint a bo ard of m anagers under section 39A.004 , which he also ha d t hreatened to do

. S ee id

. §§ 39.057(d)(3), 39A.001,
39A.004. S ection 39 A.004 does n ot require that the school district ha ve ha d a “ wa rne d ” or

“ pro b ation ” accreditation status for a ny minimum period before the appointment of a board of
managers. See id. § 39A.004.

Nonethele ss, HISD contends

— and the Court agrees

— that the SAI did not comply with the requirements of section 39.05 8 and may not, ther ef o re, support the Commissioner ’ s
t h reatened sanctions or complete d actions because : ( 1 ) the Commissioner himself or a designated hearing examiner did not conduc t the i nformal review , and ( 2 ) HI SD was not pr ovided a hearing
at which HISD could ex amin e the ev i dence gather ed during the SAI

. See id. § 39.058 (b) ( “ B ef ore issuing a [ SAI] report with it s final findings, the agency must provide a person or entity the agency finds has viola ted a law, rule, or policy an oppo rtunity for an informal review by the4

com mi s s ioner or a designa ted hearing examiner

. ” ). As to t he fi rst contention, howe ver, the Commissioner is statutorily authorized to delegate executive functions to his staff , s ee id. § 7.055(b)(5) ( “ The commissi oner may delegate ministerial and ex e cuti ve func t i ons to agency
staf f and may employ division hea ds and an y other employees and clerks to perform the duties of the agency. ” ) , and the final report issued by TEA after informal review recites that Dr . Cottril l , Deputy Commissioner of Governance and Account a b ility for TEA , “ co mpleted the informal
review and appr ov ed th[e] final report ” “ pursuant to a delegation from the Commissioner. ”

Additionall y, the ap pl icable TEA rule

— promulgated under authority of the
Education Code

— specifically provides for in formal r evie w by a “ T EA r epresentative , ” imply ing that, in prom ulg ating the rule, the Commissioner delegated such authority to staff and supporting
the fina l report ’ s statement that Dr. Cottrill conducted the review pursuant to the Commissioner ’ s de legation

. See 19 Te x. Admin . Code § 157.1123 ( b ) ( Tex. Ed uc. Agenc y, Informal Review ) ( “ A written request for informal review must be addressed to the designated T exas Education Agency (TEA) representative

. ” ), (f) ( “ Following the informal review by the TEA represe ntativ e , a final rep ort, assi gnment, determination, or dec isi on will be issue d. ” ) ; se e also Tex. Educ. Code § 39.058(a) ( “ The agency shall adopt w ritten pr ocedures for conducting [SAIs] under th is
sub chapter . . . [and] shall make the procedures av ailable on the agency In tern et website. ” ).

As t o HISD ’ s second con t ention that a hearing was required , HISD cites no

au thority requi ring that a school district be provided a hearing as part of a n i nformal review or be
appr ised of the evidence up on which the TEA suppor t s i ts SAI reports , and I h ave found no su ch authority

. C

f. Tex. Educ. Code § 39 .058 ( requiring TE A to adopt written procedures for conduct
of SAI s and for informal review of pre liminary findings, but not requiring hearing or disclo su re of evidence re lied upon by TEA) ; 1 9 Tex. Admin. Code § 157 .1123(c) (prov iding that for5

informal rev iew of non

- renewal of char ter of o pen
- enrollment char ter school , revo cation of such
school ’ s c harter, or reconstitution of such school ’ s governing board, TEA re pres entativ e “ a t the request ” o f such school “ shall mee t with [such s cho ol ’ s ] representatives ” a nd that such meeting

“ is not a contested case hearing ” ). Moreover, when the legislature intends to require a h earin g in agency proceedings , as opposed to merel y informal revi e w o f agency dec isions , it has amply
demonstrated its ab ility to do so in unambiguous language

. See, e.g

. , Te x. Educ. Code § § 12.116 (provi ding for “ hearin g ” when teacher under continuing contract is discharged or su spended without pay ) , 39 A.301 (provid in g for “ hearing ” at State Office of Administrative Hear ings to
review Commissioner ’ s d ecision to close school district , distr ict campus, or open

- enrollment charter school) ; Tex. Tax Code § 111.1042 (specifying that comptroller ’ s “ informal rev iew ” of

tax

- ref u nd claim is “ no t a hearing or contes ted case ” ); Tex. Hum. Res. Code § 32.039 (distinguishing “ informal review ”

— to be conducted by commission, after which review “ notice
of the results ” are to be provided to person charged with filing fraudu lent claim

— from subsequent op ti onal request for “ hearing ” )

. The Cour t expresses a due

- process concern but does

not identify what life, liberty, or p roperty interest is at stake . However, even if s uch an interest

were at stake , the proper avenue for relie f would be a ch a llen ge to the constitu tionality of the applicable statute, which HISD has not a sserted

.

I th us conclude that th e Commis sioner is authorized to appoint a board of managers on the b asis of the SAI results and that, therefore, HISD ha s not alleged a val id u ltra
vires claim based on th e C ommissioner ’ s threatened appointment of a board of man ag ers to govern HISD because secti ons 39 .507 , 39A.001, and 39A.004 expressly authorize such actio ns under the facts alleged

.6 In its second ultra vires c laim, HI SD a l leg e s that the Com missioner did not have authority to di rect Delaney in March 2019 t o “ oversee th e governance of ” HISD when the
district “ was not subject to Commi ssioner a ction u nder Section 3 9A.001. ” See Tex. E duc.
Code § § 39A.001 (outlinin g pre re quisite s t h at authori ze interventions u nde r Sub chapte r A , including if Commissioner “ considers the action to b e appropriate on the b asis of a [SAI] ” ) , .002 ( “ If a s chool dis trict is subject to commissioner action under Section 39A.001, the commissio ner
may
. . . app o int a conservator to oversee t h e operat ions of the district ” ). HISD contends that,
while Delane y had been ap pointed as a “ campus
- level conser vator ” ov er Kashmere High Sch ool only, the Commissioner was unauthorized to “ expand ” her rol e to that of a “ di str i ct

- level

conservato r ” absent the prerequisites of section 39 A.001 b eing met. Un der HI SD ’ s contended framework, “ campus
- level ” (Sub chapter C) conserva tors have the aut hor ity merely to ov ersee

“ district

- l evel support ” to a particular c ampu s and to imple men t the campus ’ s targ et ed imp r ov ement plan , while “ district

- level ” (Sub ch ap ter A) conservators have the authority to
oversee opera tions of the entire district and issue directives to the superintendent and board of

trustees

. Compare id. § 3 9A. 003 (c) , wit h i d

. § 39 A. 102( b )

.

Ho we ve r, a ssuming that Chapter 39A conte mplates th e conse rvator

- le vel
distinction that HISD p osit s, g ranti ng HISD the relief it see ks on its claim challenging De laney ’ s appointment as a “ district

- le vel ” conservator w ould require t he c our t t o “ reach back in time to
und o the past exec utive action of the TE A , presu mably by ordering the Commissioner to ch ange his prior final and unappealable decision[] ” to appoint Delaney as a “ district

- level ” conservato r
. See Morath v. Progreso Indep. Sc h. D i st. , No. 0 3

- 16

- 00254

- CV, 2017 WL 6273192, at * 3 (Te x. A pp.

— A u stin Dec. 7, 201 7, pet. denied) (mem . op .). When the Commissioner allegedly

“ expanded ” De laney ’ s role to that of a district

- level conservator and appointed h er in such7

cap acity , s uch appoin tmen t was a final action , and H ISD has cited no authority providing for
the appeal thereof. See id. ( determining that Commiss ioner ’ s prior action of appointing board
of managers for school district was “ past executive action ” that could not be undon e an d wa s

“ final and unappealable ” ). “ We have pre viously he ld that such an ultra vires claim

— i.e., one that requests relief requiri ng the undoing of an already

- final administrative a ct of the
Commissioner

— is jurisdictionall y defective. ” Id. (citin g Texas Ed u c. Ag e n cy v. American Youthworks, Inc. , 496 S. W.3d 244, 265

– 6 7 (Tex. App

. — Austin 2016 ), aff ’ d sub nom. Honor s Acad., Inc. v. Tex as Educ. Agency , 555 S.W.3d 54 (T ex. 201 8).

However, n otwithstanding the rule outline d i n Progreso , an d as the Court

cor rectly not es , a party m ay indeed seek to enj oin purely pros pective conduc t despite its inability to challenge an already

- final action b y assertin g a via ble ultra vires claim

. See , e.g. , Chambers

Liberty C n t ys. Na vig ation Dist. v. State , 575 S.W.3d 339, 355 (Tex

. 2019 ) ( holding that state had
vi ab le ultra vires claims agai nst counties for exceeding their statutory authority by entering int o
oy ster

- harvesting lease with other governme nt entity and could maintain suit t o “ p rospectively

e njoi n ” lease ); City of El Pa so v. H einrich , 284 S.W.3d 366, 376 (Tex. 2009) ( h olding that ultra
vi res claims entitle plain tiff to pr ospective injunctive relie f , not re trospective relief , and thu s that plaintiff widow of police officer cou ld obtain future month ly survivor benefit s but not p a st payments under ultra vir es theory )

. A lthough such authority would generally permit HISD to challenge Delan ey ’ s authority going fo rward to oversee HISD ’ s operations and issue directives
to the board , that avenue of p urely prospective relie f was f ore clo s ed when the SAI conc luded with the final report and , based on that, t he Commissioner ’ s decision to appoint a distric t

- wide

conservator , which was an authorized intervention. See Tex. Educ. Code § 39A.00 2(7)

. In light
of the Com missio ner ’ s a uthoriz ed dec i sion to appoint Delan ey as a d istrict

- wide conservator8

based on the SAI , as a mat t er of law HISD is not entitled to any pros pective relief enjoining her

s tatutorily author ized powers

. Acco rd ingly, I wou ld hold that the trial court does no t h ave jur is dic t i o n over HISD ’ s u l tra vires cla im cha llenging the Commis sioner ’ s appo i nt ment of Delaney as a “ district

- level ” conservator to oversee governance of HISD , and th us that HISD has
no cause of acti on for any prospective relief enjo ining Delaney ’ s statutor y p owe r s as dis trict

wide conser vator.

In its third ultra v ires c laim, HISD all eges tha t Delaney was una uthorized to direct
HISD ’ s b oar d t o suspend its superintendent search . However, as explained above, Delaney ’ s appoin tmen t as a district

- wide conser va tor to over see HISD ’ s operations is authorized by the
SAI and is an already

- fin al action, and section 39 A.003 (c) (1) expressly g rants to conserva tors
the power to “ direct an action to be take n by the principal of a c ampus, the s uperinten dent of the
school d istric t , or the board of t ru stees. ” Id. § 39A.003 ( c) (1). Accor din gly, I would conc lude
that the trial court di d n ot ha ve juris dict ion over HISD ’ s u ltra vires claim challenging Del aney ’ s issuanc e of directives to H ISD

.

With re s pect to its rule challe nge , 1 HIS D asser t s that TEA rul e 9 7.1061(g), 2 on which the Com mission er partly re lied in “ threat ening to impose unlawful sanc tions and
interventions ” such as install ing a board of ma n ager s ove r the district, “ i s neith er valid nor applicab le b ecause it conf lic ts wit h

. . . T e xas Education Code §§ 39 A.111, 3 9A.90 6

. ” However,

1 Although appe llants did not assert in their plea to the jurisdiction th at the t rial court does not have jurisdi ction over HISD ’ s rul e chall enge , issues of subject

- matter jurisdiction may be r aised for t he fi rst time on appeal, a nd w e ar e o blig at ed to review sua sponte is sues aff ecting jurisdic tion

. S ee M.O. Dental Lab v. Rape , 139 S .W.3d 671, 673 ( Tex . 2004) (p e r curiam)

.

2 Rule 97.1061(g) prov ides, “ If a campus is assigned an unacc eptable rating under TEC, §39.054(e) , for a fift h cons ecu tive y ear, the commissioner sh all order the appointment of a board of managers to govern th e di s trict or closure of the campus. ” 19 Tex. Admin. Code § 97.1061( g) (2020) (Tex. Educ. Agency, Intervent ions and Sanctions f or Ca mpuses)

.9

w hether HI SD has alleged a valid rule challenge under section 20 01.038

— that is, our

“ jurisdictional inquiry ”

— depend s on whether it has alleged that the rule or it s threatened appli c ation in terfer e s with or imp airs its legal rights or privilege s
. Combs v. E ntertainm en t
Publ ’ n s, Inc. , 292 S.W.3d 712, 720 (T ex. App.

— Aust in 200 9, no pe t. ) ; see Tex. G ov ’ t Code § 2001.03 8. N either in its petition nor in its appellat e brief does HISD iden tify any legal right or priv i lege the rule all egedly interferes with or im pa irs , n or could it do so due to the Commissioner having the statutory authority, as explained above, to take the threatened actions and
interve ntions

. Therefo re, I conclude that the ch a lle nged r u le and its thre atened application do not
interfer e with or impair any leg al rights or privileges of HISD as a matter of law a nd would hold
that t he trial court, ther efore, did not have jur isdiction over HISD ’ s r ule chal l enge.

I further conclude t h at , be c ause the trial court lacked jurisdiction over all of
HISD ’ s claims, HIS D cannot establish either of the first two elements required to obtain a

te mporary in

junction (TI)

. See Butnaru v. Ford Motor Co. , 8 4 S.W. 3d 198, 204 (Tex. 2002) ( “ To obtain a t empo r a r y injunction, the applicant must plead and prove three sp e c ific ele ments: (1) a cause of action ag ainst the defendant; (2) a p robable right to the relief sou gh t; and (3) a probable, imminent, an d irrep ar a ble i nju ry i n the i nterim. ” ). Therefore, I w oul d c o nclude that
the trial court abused its discretion in iss uing the TI. See id.

For these reasons, I respectfully dissent from the Court ’ s op inion affirming the
trial court ’ s order issuing the TI and implicitly denyi ng appellants ’ plea to the j u risd iction

.10 _ _____________________ ____________________ Thomas J. Baker , Justice
Before Chief Justice Rose, Justices Baker and Triana
F i led: Decembe r 30, 2020