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

NO. 03
- 21
- 00671
- CV

Michael Motheral in his Official Capacity as Chair of the University Interscholastic League ’ s State Executive Committee; Johanna Denson in her Official Capacity as Vice Chair of the UIL SEC; Paul Galvan in his Official Capacity as a member of the UIL SEC; and Daryl Wade in his Official Capacity as a member of the UIL SEC , Appellant s

v. Jennifer Black, individually, and A.B., a minor, by and through his guardian, Jennifer Black , Appe l lee s

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 21
- 006732 , THE HONORABLE MARIA CANTÚ HEXSEL , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Jennifer Bl ac k, indivi d ually, and A.B., a minor, by and through his guardian Jennifer Bl a ck (co llectively , “ Plaintiffs ” ) sued the following individuals in the ir of ficial capacities as membe r s of o ne of the University I nterscholastic League ’ s State E xecutive Commit tee s : Michael Motheral as Chair , Johanna Denson as Vice Chair , Paul Galvan as a

m ember , and Dary l Wade as a member (collectively , “ UIL Defendants ” ) , alleging that the UIL Defendants violated the Plaintiffs ’ constitutional rights to due course of law , equa l protection, and free speech during a hearing regarding A.B. ’ s eligibilit y to pl a y high school vars ity spo rts , seeking declaratory relief regarding the v alidity of one of the UIL ’ s rules, and s eeking a temporary injunction allowing A.B. to parti cipate in high school athletic competitions pending

re solution of the unde rl ying t rial. T h e UIL Defendants filed a response to the reque s t for a2

temporary in

ju nction asserting that the requirements for a temporary injun ction had not been met and filed a plea to the ju risdiction asserting that the trial court did not have jurisdiction over the
P l ai ntiff s ’ claims . After a hearing, the trial court issued an orde r denying the UIL Defendant s ’ plea to the jurisdicti on an d granting the Plaintiff s ’ request for a temporary i njunction . The UIL Defendants have appealed the trial court ’ s order. We will a f firm the portion s of t he trial court ’ s

o rder granting the temporary injunction and denying the plea to the jurisdiction re garding the Plaintiffs ’ due

- course - of

- law claim , r everse the remaining portions of the order denying the plea, and render judgment di s missing for want of jurisdiction t he P laintiffs ’ equal

- protection claim, free

- s peech claim, and requ est for declaratory relief regarding the UIL rule

.
BACKGROUND 1
Jennifer Black an d Terry Black were married in 2004 and later had two sons : A.B. and B. B

. Je nnifer alleg ed that Terry abused her during their marri age, including threat ening to kill her. Because of the alleged abuse, Jennifer separated from Terry, and they divorce d in 2011

. As part of the divorc e decre e , Je nnifer was given the right to de t er mine the residence for the
coup le ’ s two children within T arrant County or any co ntiguous co unty

. Although the couple divor ced, Terry continued to follow Jennifer and make efforts to e xe rt cont rol over her life

.

After the divorce, Jenn ifer move d with h er t wo children to Coppell, Texas, where her children att ended school and participated in school sports programs. A.B

. played on the high s chool basketbal l team during his freshman, sophomore , and j unior years (2018

- 2021) under Coach Clint Schnell

. In 2 0 18 , Jennifer b egan dating David Peavy, a high school coach i n

1 These fac ts are drawn from the evidence presente d at the hearing bef ore the trial court as well as evidence pres ente d during the hearing s before the U niversity Interscholas tic League committee s occ urring before and forming the basis for the tempo rary - injunction hea ring.3

Duncanville, Texas. As the rela tionship progressed, Peavy moved into Jennifer ’ s C oppell home , wh ere the coup le lived together for more than two years

. Jen nifer an d Peavy ha ve co - parented
Jenn i fer ’ s childre n, and the couple got engaged in April 2021. A f ter Jennifer an d Peavy began dating , Terry harassed the couple and threatened violence a gainst th em , including th reatening to b low up their hou se .

Before A.B. st arted his senior year in Copp e ll , Terr y beg an pressuring him to transfer to a Florida ac ademy to get ready to play basketball in c ollege. However , A.B. did no t
want to transfer because he did no t want to leave his family a nd friends, and A.B. intended to play basketball in Co ppell fo r his sen ior y ear. Terry di d not agree with A.B. ’ s choice a nd became angry about the situation. In August 2021, while A.B. and his brothe r were at a basketball tournament in L as Vegas, Nevada, Terry shouted at A.B. while he was on the court and later app r oache d A .B. w hile he was on the bench, grabbed him by the hai r, dragged him outside , and punched or pushed A. B. ’ s face.

Follow ing this incident, Jennifer asked he r younger son ’ s coach to cancel B.B. ’ s scheduled game because she was a fra id that T erry m i ght cause an o ther incident , and the coach agreed to c ancel the team ’ s scheduled game an d offere d to help Jennifer

. Because Jenn ifer was frightened by T erry ’ s ag gres sive beha vior toward A.B. , she contacted a n attorney , seeking help obtaining a restraining order agains t Terry

. W orried that the re straining order might take s ome
t ime to go into e ff

ect, Jennifer also made t he dec ision to mov e her family from their home in Coppell to another hom e unknown to Terry , an d she asked her children to turn off their l o cation
apps o n their phones to prevent Terry from discovering the location of their new home

. After talking with Pe avy , Jennifer decided to move to Duncanville , where Peavy worked and which is in a county contiguous with Tarrant County as the divorce dec r ee required

. O n ce the fa mily4

moved to D uncanville, Jenn ifer enrolled her children in the local high school , and A.B. joined the new school ’ s basketball team. When Jennifer info rmed Coach Sc hnell about he r de ci sion to

move away from Coppell, he told her t hat he suppo rted he r decisi on. Furthe r, Schnell sent A.B. a text message stating that he wished A.B. “ all the best ” and knew he was “ in good hands. ”

Following Jennifer ’ s decision to move, T erry contacted Coach Schnell and Kit Pehl, who was the ath let i c director for t he Coppell school district. In his discuss ions with Sch nell and Pehl, Terry encouraged them to challenge Jennifer ’ s decision to move her family and provi ded the m with information that he argued showed that A.B. was being transferr ed for

a n improper athlet ic purpose and had been re cruited . Pehl was surprised by Terry ’ s decision to become involved in the matte r because he thought that Terry would have s upported A. B. , knowing that Terry ’ s suggested challenge could result in A.B. not being al l owed to play bas ketball during his senior year , and because he had never heard of another parent ever se eking to cha llenge a school transfer on the ground that the other parent had moved with the child for an athletic purpose

.

A f ter talking with Terry , Pehl helped Schnell fill out a Previous Ath letic Participation Form ( “ PAPF ” ) . The University Interscholasti c Leagu e ( “ UIL ” ) requir es that the
PAPF be filled out i n circumstances like those present he re where a student transfers to a new school and h ad p r eviously part icipate d in sports

. As filled out, t he PAPF alleged that there was dissatisfaction or conflict among A.B., his par ents, and the a thletic supervisors at the school; that
A.B. was recruited to attend Duncanville High School or had been subject e d to undue inf luence encouraging him to change schools; and that A.B. was changing schools for athletic purposes. Approx imately one mo nth a fter Director Pehl submitted the PAPF to t he UIL, a hearing before a
UIL D i strict E xecutive Committee ( “ DEC ” ) was s c hed uled

.5 Before the D EC hearing, Pehl texted T e rry to say that he and Schnell “ want [ed] to collabor ate with ” Terry abou t how to frame thei r arguments at the hearing. Ov er the next two months, Pehl , Sch nell, and Terry talked on the phone and met in pers o n multiple times to dis cuss A.B. ’ s transfer

. Moreover , T erry agreed t o testify as a witness against the transfer even th ough Pehl could not remember any other DEC hearing in which a witness had been called to testi fy against a student

.

At the DEC heari ng in S eptember 2021, the Plaintiffs were not repres ented by counsel. During the hearing, Schnell testi f ied that h e belie v ed that A.B. had been recruited to play for Duncanville Hi gh School and that A.B. wanted to move to D uncanville to get more exposure to recruiters . Further, S chnell emphasized that Jennifer and Peavy were dating but

w ere not married

. Terry testi f ied that A.B. expressed a desire to move to Duncanville months before t he move and that Peavy had onl y liv ed with Jennifer for a few months. D u ring Peavy ’ s
test imony, one of the DEC members asked whether he was married to Je nnifer, and Peavy explained that they were engaged and had lived together for more than two ye ars. Si milarly, Jennife r testified that she had been in a long

- te rm relations hi p with Peavy. Furt her, she related
t hat she decided to move for A.B. ’ s best intere sts after there had been “ some con frontation between [A.B.] and [ Terry] this summer

. ” In his testi mo ny, A.B. stated that he was having a n issue with his father ri ght now. A t the end of the hearin g, the DEC voted unanimously that A.B. moved for athletic purposes , which rendered A.B. ineligible to play varsity sp orts at Duncanville High School for one y ear .

After t he DEC hearing, Terry show ed up at J ennifer ’ s new home uninv i ted , unannounced , and wit hout havin g been given he r new address. Upon arriving at t he house, Terry texted he r photos of her new house, said that he was outside, and stated that he was there to pick6

up his sons ev en though he had stopp ed picking up the ch i ldren more than a year be fore when
A

. B. got his driver ’ s license. Wh ile Terry was o utside, B .B. called Jennifer because he was scared. Jennifer ’ s attorney sent a letter to Terry r equesting that he no t attend B .B. ’ s basketball
gam es because o f B .B. ’ s anx i ety and that Terry pa rtic ipate in counseli ng to address the recent conflict s , including the Las Vegas incident

.

Jennifer and A.B. appealed the DEC ’ s dec ision , and a hearing was scheduled be fore a UIL Sta te Executive Co mmi ttee ( “ SEC ” ) in October 2021. Jen n ifer filed wi th th e SEC

a decla ration setting out the abusive nature of her relationship with Terry and the events in
Las Ve gas. Before the SEC hearing, Coach Sch nell obtained a copy o f th e exhibits tha t ha d bee n submitted for the hearing and s uggested t h at Director Pehl send the documents to Terry and inform him about the abuse allegations to allow him to prepare a response. Pehl agreed a nd sent Terry the exhibits so that he could “ see Je nnif er ’ s new agenda , ” later admitting that he wanted to help prepa r e Terry to testify ab out the alle gations and identif ied topics that Terry should discuss.
Ar ound that time , Terry sent Pehl a photo of A.B. pla ying bas ketball at a non

- UIL even t and ask ed whether somethi ng sho uld b e done about A.B. ’ s partici pation

.

At t he S EC hearing, the Plaintif fs were represented by attorne ys. When one of their attorneys attempted to provide an opening statement and attempted to discuss the abuse all egations, one of the UIL Defendan ts repeatedly interrupt ed before telling the attorn e y to stop talking a nd warnin g the attorney about continuing to speak on th e topic. During Jennifer ’ s testimony, she was asked by one panelist about whether she was dating Peavy , and she testifi ed that they had been dating for more than three years and li v in g together for two years. Whe n Jennifer started to e xp lain how after Terry assaulted A.B. in Las Vegas she mo v ed her family to7

Duncanville to protect the mental and physical health of her c hildren , 2 on e UIL Defend ant stated that they were awar e of the a llegation but were “ not gonn a press . . . hard on that issue

. ”

Followi ng that exchange, the UIL Defendants questioned Jennifer and Pea vy about the PAPF, about when they moved to D unc an ville, about h ow they met, about tweets by
Dun canville coa ch ing staff congratulating A.B. about his baske tball performance, and about whether A.B. knew any students at Dun canville High School

. Peavy testified that Jennifer did not express dissatisf

action with Schne ll ’ s coaching but only w ith A.B. ’ s placement on the second

a ll

- d istrict team as a sophomo r e and explain ed that A. B. continued to p lay in Coppell for his junior year. Lat er, Jennifer mentioned the Las Vegas incident and e xplained that she would not have mov ed had the incident not occurred , that Terry was the one w h o wa s unhappy with Schnell ’ s c oaching , and that she had turned down of fers from sponsors and e lite leagues seeking
to enroll A.B. to play basketball

. Followin g his mother ’ s testimony, A .B. stated that T erry stopped reaching out to him and B.B. after the L as V eg as in cident and that he has not talk e d with Terry since Las V egas except at the DEC hearing. During the SEC hearing, one of the Plaintiffs ’ attorneys r equest ed tha t the UIL Defend ants ask Je nnifer and A.B. about the abuse, but the
UIL Defendants di d not follo w up with any questi ons other than to ask when the Las Vegas incident occurred

.

A t the SEC hearing , Coach Sch nell acknowledged that Jenni fer and Peavy

were dating but beli eved that Je nnifer, Terry, and A.B. had discus sed the possibility of A. B.
trans ferring to Duncanville in 2019. Schnell adm itte d that he sent a text to Jennifer in which he stated that he was disappointed that A.B. was leaving Coppell but wished A.B. “ all the best. ”

2 During Jennifer’s testi mo ny, Te rry, Schnell, and Pehl texted amon g one another regarding her statements. In one of tho se communica tions, Pehl told Terry, “She moved 28 miles. If all thi s is true (ha

- ha), how did that make her safe ? You live in F ort Worth .”8

Schnell emphasized that P eavy and Jennifer are not m arried so the mo ve cannot be justified

on that basis. T erry te s tified t hat he was blindsided by t he decis ion to move A.B. Terry ackno wledged that he yelled at and “ pushed [A.B.] in the head ” in Las Vegas, and he sta ted that A.B. had been unhappy a t Coppell High School and discussed going somewh ere else.

During the closing argumen t by one of the Pla intiffs ’ attorneys, one UIL Defendant repeatedly interrupted and told the attorney to wrap up the argument

. A t the end of th e hearing, the panel unanimously voted to de ny the appeal.

Foll owin g the rul ing by the SEC, the P laintiffs sued the UIL Defe ndants in the ir official capacities as SEC members

. In their petition, the Plaintiffs sought a te mporary injunction enjoin ing the UIL D ef endants from enfor cing against A .B. U IL Rule 443, which renders stude nts ineligible to par t icipate in UIL athletics if t hey tra nsfer for athletic purposes, and from enforcing the SEC decision declaring A.B . in eligible to participate in athletics in Duncanville . Fu rther, the Plain tiffs s ought a declaration that the UIL D efe ndan ts violated the d u e - course - of

- law provision of the T e xas Constitution by failing to provide a fair hearing in front of the SEC. See Tex. C onst. art. I, § 19. In addition, the Plaintiffs sought a declaration r egard ing the constitutionality of UIL Rule 443

. T he Plaintiffs also sought a declaration that th e UIL Defe nd ants violated their right to free speech under th e Texas Constitution by consider ing whether they previously criticize d or expressed frust ration with th e Coppe l l coaches when de ciding if A. B. transferred f or an athletic purpose. See id. art. I , § 8 . Finally, the Plaintiffs sought a declaration that the UIL D efendants violated the equal

- prot ection p rovision of the Texa s Constituti on by treating th em diff erently ba sed on Jennifer ’ s marital s tatus. See id. art. I , § 3.
T he UIL D efendant s filed a response to the request for a temporar y injunction and a plea to the jurisdiction. T he UIL D efendants asserted that the Plaintiffs failed to ple ad viable9

con s t itutional claim s against them , that the alleged facts and attached evidence did not suggest
any constit uti onal violation s , and that , therefore, Jennifer ’ s claims were b arred by sovereign immunity

. Accordingly , the UIL D efendants urged the t rial court to grant t heir plea to the ju ris diction and dismiss the Plain t iffs ’ claims

. B uilding on those asse rtions , the UIL D ef endants also asserted that the Plaintiffs ’ request for a te mporary injunction should be denied , arguing that the Plaintiffs could not establish probable, imminent, and irreparable in j ur ies entitl ing t hem to injunctive relief

. The Plaint if fs the n filed a response in o pposition to the plea to the juri sdiction , contending that the trial cou rt ha d jurisdiction over their claims.

The trial court held a hearing to consider the Plaintiffs ’ request for a t e mpo rary injunct ion and the UIL D efendan t s ’ plea to the jurisdiction

. At the hearing, several witnesses testified, in cl uding Jennifer, A.B., Peav y , and one of Jennifer ’ s friends , and portions of a deposition by Director Pehl w ere read into the record

. In addition, the trial court admitted into evidence multip le exhibits offered by the Plaintiffs, including transcripts of the DEC a nd SEC hear ings, the transcript of Pehl ’ s deposition , the PAPF , and copies of text messag es from Jennifer, Terry , and Schnell

.

Jennifer te stified regarding her reaso ns for divorc ing Terry, t he abuse that Terry inflicted on her d uring their ma rriage , the threats that Terry made to her and her family after th e di vorce , the in cident in Las Vegas, her d ecision to move t o Duncanville following that incid ent for the safety of her c hildren , and the incidents that occurred after the move

. Fur ther,
Je nnifer discussed how Coach Schnell focused on her marital status during the SEC hearing

. Additionally, Jennifer mentioned that the UIL Def e ndants d id not a sk her any questions about Terry ’ s abuse. Jen nifer also characterized the SEC hearing as unfair because sh e and A.B. were only given a limited opportunity to speak, because her attorney s w ere prevented from making an10

opening s tat ement and from question ing witnesses , and because th e SEC panel relied on her marital status when considering the ap peal. Finally , Jennifer testified that the SEC decision and ensuing medi a coverage called into question her rep u tation in the community and im plied t hat she lied abo ut th e abuse and th e reas o n for the move , and the trial court admitted into evidence a

new spaper article that had been written about the SEC hearing

.

A.B. similarly testified about the incident in Las Vegas, about how he had
in tended to f

inish his senior year in Coppe ll, a bout how Jennifer decided to move the family to protect t hem from Terry, a bout how Peavy did not attempt to recruit him, about how the UIL
D efendants did not question Terry abo ut the abuse, about how they were not allowed to q uestion Terry about the ab use, and about ho w he did not really have an opportunity t o speak during th e SE C hearing . Addit ionally, A.B. explained that he believed that the decision by the SE C w ould have been dif

ferent if he had been given t he opportunity t o explain that the move wa s for safety

reaso ns and that he believed Jenni fer ’ s marit al statu s and the ir family status played a role in the SEC panel ’ s eligibility determination

. Further, A.B. t esti fied that his reputation as a loyal and ho nest person has been undermined by the SEC determination and various resulting news articles. O n e of Jennifer ’ s friends t estified similarly regarding J enn ifer ’ s and A.B. ’ s reputation s for loyalty and honesty and regarding how the SEC ’ s deci sion and ensuin g medi a coverag e
p ortrayed th em as dishonest and disloyal.

P eav y testified re garding th e incidents of abuse invol ving T erry and threats that Terry made to him and his f a mily. Additionally, P eavy explained that the family intended for A.B. to go to Coppe ll High School hi s senior y ear befor e the inci dent in Las Vega s. Further, Peavy de nied rec rui ting A.B. or pressuring Jennifer to move so that A.B. cou ld play at Duncanville Hi gh School a nd related that A.B. had been happy playing basketball in Coppell.11 Afte r considering th e testimony , evidence , and a rgument presente d durin g the hearing, the trial court i ssu ed an or der denying the UIL D ef endan t s ’ plea to the jurisdiction and granting the Plaintiffs ’ request for a temporary injunction.

DISCUSSION
In their f irst issu e on appeal, the UIL Defendants contend that the tr ial court erred by denying their plea to the jurisdiction

. Essentially, t he UIL Defendants a rgued that the Plaintiffs ’ claims are barred by s overeign immunity because the claim s are not viable an d because the evidenc e did not create a fact issue about whe ther the claims were barred b y immunity. In their second issue o n appeal, the UI L Defendants assert that the trial court abused
i ts discretion when it granted Pla i ntiffs ’ request for a temporary injunctio n .
Plea to the Jurisdiction Standard of R e view

A p lea to the juris diction is a pro cedur al mechanism “ through whic h a party may challenge a trial court ’ s a u thority to decide the subject matter ” of a cause of action. Texas D ep ’ t of State Health Se rvs. v. Balquinta , 429 S.W.3d 726, 737 (Tex. App.

— Austin 201 4 , pet. dism ’ d). A plea to the jurisdiction “may challenge the pleadings, the existence of jurisdictiona l facts, or both.” Al amo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018 ). Ap p ellate
courts review de novo a trial court ’ s ruli ng o n a plea to the jurisdicti on . Texas Dep ’ t of Ins. v. Texas As s ’ n of Health Pl ans , 598 S.W.3d 417 , 420 ( Tex. App.

— Austin 2020, no pet.).

“ If a plea ‘ challenges the pleadings, we determine if the p leader has alleged facts that affirmatively demonstrate the cou rt ’ s jurisdi ction to he ar the cause. ’ ” Texas De p ’t of Crim

. J ust. v. Rangel , 595 S.W.3d 198, 205 (Tex. 2020) (quoting Tex as Dep ’ t of Parks & Wil dlife v.12

Miranda , 133 S.W.3d 217, 226 (Tex. 2004 ) )

. “ I n determining whether the plaintiff has met that burd en, ‘ we liberally construe the pleadings, taking all factua l a ssertions as true and looking to [the plaintiff ’ s] intent. ’ ” Id. ( q uoting City of Ing lesi de v. City of Corp us Christi , 469 S.W.3d 589 , 590 ( Tex. 2015) ). “[I]f a plea to the jurisdiction challe nges the existence of juri sdictional facts, we consider rel eva nt evidence submitted by the parties when necessary to resolve the jurisdict ional issu es raised, as the tria l court is required to do. ” Mir a nda , 133 S.W.3d at 227 (citing Bland Indep. Sch. Dist . v. Blue , 34 S.W.3d 547, 555 (Tex. 2000)). “[I]n a case in w hich the jurisdictional challenge implicates the merits of the plaintiffs ’ cau se of act ion and the plea to the jurisdiction includes e videnc e , the trial court reviews the relevant evidence to de termine if a fact issue ex ists.” Id. “If the evidence cr eate s a fact question regarding the jurisdictional issue, then the trial court cannot gra nt the plea to the ju risdiction, and the fact iss ue wil l be resolved by the fact finder.” Id. at 227

- 28. “ [ I]f the relevant evidence is undisputed or fails to raise a fa ct question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law

. ” Id. at 2 28.

“ So vere i gn immunity implicates a trial court ’ s subject matt er j urisdiction and

‘ thus is properly asserted in a p lea to the jurisdiction. ’ ” Rangel , 595 S.W.3d at 205 (quoting Miranda , 133 S.W.3d at 226 )

. Generally speakin g, sovereign immunity deprives courts of

s ubject

- matter jurisdiction over suits against t he S t ate or its agenc ies. See B alquinta , 429 S.W.3d
at 738. In oth er word s, there is no right to judicial review of an order by a governmental entity

“ unless a statute provide s a right or unless the ord er a d versely affects a vested property right or otherwise vi ol ates a cons titutional ri ght.” Continental Cas. Ins. Co. v. Functional Restoration
Assocs. , 19 S.W.3d 393, 397 (Tex. 2000)

. “ Sovereign immunity extends to state offic ials acting in their offici al c a pacity

. ” Machete ’ s Chop Shop, Inc. v. Texas Film Comm ’ n , 483 S.W. 3d 272,13

278 (T e x. App.

— Au stin 2016, no pet.). If a s tate official files a plea to the jurisdiction, the official may invoke the sovereign immunity held by th e government itself because a s u it against a state official is merely an alter native wa y of filing suit agains t t he entity to wh ich the official belo ngs. Texas A & M Univ. Sys

. v. Koseoglu , 233 S.W.3d 835, 844 (Tex. 2007).

“ [I] n certain narrow instances, a suit against a state offi cial can proceed even in the absence of a w aiver of immunity if the official ’ s actions are ultra vires

. ” Hall v. McRaven , 508 S.W.3d 232, 238 (Tex. 2017)

. Under the ultra vires exception to sovereign immunity, a plaintiff may file sui t to compel a govern ment official “ to comply with statut ory or constitutio nal
pr ovisions ” through pro spect ive declaratory or injunctive relief

. City of El Paso v. Heinrich , 284 S.W.3d 366, 372 , 376 (Tex. 2009) ; see LMV

- AL Ventures, LLC v. Te xas Dep ’ t o f Aging & Disability Se rvs. , 520 S.W.3d 113, 12 5 (Tex. App.

— Au stin 20 17, pet. denie d). To fall within this e xception, the pla intiff must allege “ that the officer acted wit hout legal authority or failed to
pe rform a purely ministerial act. ” Heinrich , 284 S.W.3d at 3 72.

An alleg at i on that a government off icial violated an individual ’ s co nstitutiona l rights is “ an allegati on that the officer acted ultra vires , that is, in con flict wit h the law constraining his di scretion. ” Cal eb v. Carranza , 518 S.W.3d 5 37, 542 (Tex. App.

— Houston [ 1 st Dist.] 2017, no pet.). If a plaintiff seeks to vindic ate a constitutional rig ht, “ immuni ty from suit is not waive d if the constitutional claims are fac ially invalid. ” Klumb v. Houston Mun. Emps. Pens ion Sys

. , 45 8 S.W.3d 1, 13 (Tex. 2015). “ [I]f th e c laimant is attempting to restrain

a state officer ’ s condu ct on the grounds that i t is uncons titutional, it must alleg e facts that actually constitute a con stitutional violation

. ” Creedmoor

- Maha Wat er Sup ply Corp. v. Texas
Comm ’ n on Env ’ t Quality , 307 S .W

. 3d 505, 516 (T ex. App.

— Austin 2010, no pet.). “ A court
h as no jurisdiction over an ultra vi res claim that fails as a matter of law. ” McLane v. Thomas ,14

No. 03

- 18

- 00439

- CV, 2020 WL 1073775, at * 9 (Tex. App.

— Austin Mar. 6, 2020, pet. denied) (mem. op.)

.

Du e Course of La w

In their live petition, the Plaintiffs a sserted that the UIL Def endants v iolate d the due

- course - of

- l aw provision s of the Te xas Constitution, which provide that “ [ n]o citi zen of this State shall be deprived of li fe, liberty, property, pr i v i l eges or immunities, or in any manner dise nfranchised, ex cept by the due course o f the law of the land

. ” Tex. Const. a rt. 1, § 13 ; se e also id. a rt. 1 , § 19 (explaining that and that “ [a] ll courts shall be open, and every person for an injur y done him, in his

. . . reputati on, shall have remedy by due course of law ” )

. Essentially, the Plaintiffs contended that their liberty int eres ts were i mplicated by the U IL Defendant s ’ determination regardi ng A.B. ’ s eli gi bi lity , that the y were denied a fair hea ring before the SEC , and that procedura l safeguards could have been emplo yed that would not have a substantial impact on future UIL determinations

. In response, the UIL Defendants argue d that the UIL determination d id not implicate the Plaintiffs ’ liberty int e res ts , tha t the Plaintiffs received adequate due process, and that a ny procedural defect w ould not have ent itled A.B. to be eligible to play

. Al though the Texas Constitution refers to “ due course of law ” rat her than “ due
process ” as in the federal Con st i tution, c ourts have re cognized that those terms do not have a meanin gful di stinction and , therefore, foll ow contemporary cases addressing fed eral due

- process i ssues. Mosley v. Texas Health & Hum

. Servs. Comm ’ n , 5 9 3 S.W.3d 250, 264 (T ex. 2019). In

rev iewi ng a due

- process challenge, courts must determine if the claimants h ave a property or liberty interest t hat warr ants pro cedural due

- process prote ction and, if so, what process is due.15

Id

. Liberty interest s include the right to “ establish a home and b rin g up chil d ren, ” Board of Regen ts of S t ate Colls. v. Roth , 408 U.S. 564 , 572 (1972) (noting that term “ ‘ li berty ’ must be br oad indeed ” ) , as we ll as “ a person ’ s good name, reputation, honor, or inte grity, ” Un iversity o f Tex. Med. Sch. at H

ous . v. Than , 901 S.W .2d 926 , 930 (T e x. 1995)

. As high lighted by the U IL Defendants , co urt s have determined that par en ts have rights regarding the type of education that their ch ildren receive b ut do not h ave liberty intere s ts in “ particular components of that education, su c h as p artici pation in interscho lastic ath letics

. ”
C ornerstone Christ ian Sch. v. University Intersc holastic League , 563 F.3d 127, 136 ( 5 th Cir

. 2009); see Blau v. Fort Thoma s Pub . Sch. Dist. , 401 F.3d 381, 395

- 96 ( 6 th Cir. 2 005). However, the Plaintiffs di d no t asser t a liberty interest in an education compo nent and instea d ple aded that Jennifer ha s a liberty interest in det ermining the care, custody, and control o f her children and the right to control their education. “ [T] he interest of parents in the ca re, c ustody, and control of their children

— is per haps the oldest of the f undamental liberty interests recognized by ”

co ur ts. Trox el v. Granville , 530 U.S. 57, 65 (2 00 0) . Further, the Plaintiffs pleaded that the UIL Defend ants ’ deci sion implicat ed thei r l iber t y interests in their good name, reputation, honor, and integrit y . See Roth , 408 U.S. at 573 (observing that whe re person ’ s n ame, reputation, honor , or integrity is impacted by what government is doing, opportunity to be h eard is essential ); see also
Goss v. L opez , 419 U.S. 565, 575 (1975) (noting that suspension de p r ived students of liberty interest to their reputa tion with the ir fellow students and their teachers).

During the hearing in the trial court , Jennif er testifie d regarding Terry ’ s abus ive be h avior toward her and her family and regarding how she decid ed to move to keep her children safe after Terry abused A.B. in L as Vega s . Similarly, A. B. testifi ed at the h earing that Jennifer decided to move bec ause she felt as though her children ’ s “ safe ty was jeopardized with [Ter ry]16

knowing wh ere ” the family lived and wanted t o move h er family away from T erry to keep them

s afe. Peavy also testified tha t Jennifer did not want to move prior to the Las V egas incident.

At the hearing, Jennifer explained t h at the SEC de termination as reflected in the ensuing media coverage in dicated tha t the UIL Defend ants did not believe her cl aims about her de sire to move because of Terry ’ s abusive conduct and that she lied about her reason for the

move. Similarly, A. B. t est ified that the UIL Defe ndants ’ decision injured his re putation f o r loy alty and hon esty and that news articles written about the case made his family seem like liars. Further, one of Jennifer ’ s friends testified that Jennifer h ad been portrayed as dish o nes t and disl oyal. At the hearing, t he trial court admitted into ev idence an arti cle by a T exas newspaper describing her testimony about the abuse and explaining that the UIL De fendants

were “ not sway[ed] ” by her “ [c]laims of dom estic violence ” and concl u ded that A.B. moved for athletic purposes.

On a ppeal , the UIL Defend ants contend that the Pl aintiffs ’ reputation al claims fail as a matter of law and did not plead a deprivation of a protected liberty interest in the ir
repu tation s because the UIL Defendan t s d id not pub licly make a false charge that would give
ri se to a “ ba dge of infamy ” or subject the Plaintiffs to “ publi c sc orn . ” S ee Blackburn v. City of Marshall , 42 F.3d 925, 936 (5th Cir. 1995) (quoting Wells v. Hico I ndep. S ch

. D ist. , 736 F.2 d 243 , 25 6 & n. 16 (5th Ci r. 1984)) . Instead , the UIL Defen dants contend that they simply declared that the Plaintiffs had failed to meet their b urden of establishing that the transfe r was not for athletic
purposes . Further, the UIL Defendants contend that the con t ents of t he new spaper s tory were the17

reporter ’ s interpretation of th e SEC determination and d id not re flect any commentary by the
UIL D efendants. 3

However, the Plaintiffs are not alleging that the UIL Defendants made a public
statement or comme nt to a n e ws pap er ab out t hem; rather, the Plaintiffs are alleging that the
UIL D efe ndants failed to pro vide ad equate due process durin g the SEC hearing , re sulting in a determination contradicting the Plaintiffs ’ alleged basis for transferring scho ols and in juring t h ei r liberty interests

. The Texas Supreme Court has determined that si milar agency det erminations made wit hout sufficient due process implicate protected liberty interests. See Than , 901 S.W.2d at 930 (concluding that medical student ch a rged with a cademi c d ishonesty had “ a cons titutional ly prot ected liberty interest in his graduate educati on that must be af fo rded procedural due
process ” ). Moreover, the Plaintiffs do not bas e their due

- process claim on the alleged reputational injury alo ne but als o on how th e stigma stemming fro m the UIL ’ s decision implicated Jennifer ’ s “ abi lity to make decision s about child rearin g ”

— including ensuring the

s afety of her children

— “ education, and family relationships without governm ent intru sion. ” See
Un iversity I

nterschola s ti c League v. Hatten , No. 03

- 03

- 00691

- CV, 2004 WL 792328, at * 2 (Tex. App.

— Austin Apr. 15, 2004, no pet.) (mem. o p.) (discussing in t emporary - injunction context

3 In the ir brief, the UIL D efendants urge that on e of our sist er courts of appeals rejected a claim tha t the type of injury alleged in this case warranted protection. See Hatten v. University Interscholastic League , No. 13

- 06

- 003 13

- CV, 2007 WL 28 11833 (T ex. App.

— Co rpus Christi

Edin burg S ept. 27, 2007, p et. den ied) ( mem. op.). In that case, our sister cour t did not determine that reputational injuries stemming from UIL rul i ngs regarding eli gibility determinations cou ld not support a d ue - process claim ; i nstead, the court determined ( 1) that the appeal was moot because one of the studen ts had gra duated and be cause the other student ’ s period of ineligibility had expired and (2 ) that the collateral

- consequences exception to the mootness doctrine did not apply because the consequences fro m th e UIL ’ s ruling on the studen t s ’ eli gibility d eterm ination were minor whe n compared with the stigmatiz ing effects in other contexts that have supported a conclusion that the exce ption should appl y. Id. at *4.18

how claim regarding “ stigmatizing effect of the UIL ’ s actions ” whe n ruling student i nel igible
i mp licated parents ’ l iberty interests ).

Based on the preceding, we conc lude that the Plaintiffs pleaded a liberty interest that warr an ts due

- process protection

. Cf. Dixon v. Alabama State Bd. of Educ. , 294 F.2d 150, 157 (5th Cir. 1961 ) (concludi ng that st u d e nts expelled from state university for misconduct have interest i n c ontinuing education at college at which they were in good standing that is entitled to due process ) , abrogation on other grounds recognized by Walsh v. Hodge , 975 F. 3d 475 (5t h Cir.
202 0 )

. Havi ng made that de termination, we must now address the Plaintiffs ’ claims regarding the process that was due.

At a minimum, due process requires notice and an opportunity to be h eard in a meaningful manner and a t a meaningful ti me. Mathe ws v. Eldr i dge , 424 U.S. 319, 333 (1976). The proce ss due is a flexible standard th at depends on th e requ irements of the circumst ance s. I d.
at 334. The following three facto rs are cons idered in this flexible standard:
(1) the private int erest that will be affect e d by the official actio n; (2) the risk of an erroneous deprivation of suc h interest through the procedures used, and th e probable value, if any, of additional or substitute procedural s afeguards; and (3) the government ’ s interest, incl uding the function i n volve d and the fiscal a nd administrative burdens that the additional or s ubstitute procedural requirement would entai l

.
Than , 901 S.W.2d at 930.

R e garding the private interest that will be affected, a s discussed ear lier, the Plaint iffs alleg ed that th e UIL De fendants ’ determination impacted the Plaintiffs ’ fundamental liberty interest regarding their repu tations and regarding the care of the ir family, see Troxel , 530 U.S. at 65, including Jennifer ’ s right to provide for the safety of her children witho u t
gover nment interference , see Hatten , 2004 WL 792328, at *2

.19 Regarding t he risk of an erroneous deprivation of that right, the Plaint iffs ple aded , among other things, that the UIL Defendants faile d to compl y with the proce dural requirements found in t he UIL ’ s rules for SEC hearings and that this noncompliance deprived the Plai ntiffs of the opportunity to be h eard in a meaningful manner

. See T han , 874 S.W.2d 839, 851 (Tex. App.

— Houston [1st Dist.] 1994) (noting that failure to comply wi th agency rules is not pe r se violation of due process but observing that failure to f ollow rules can res ult in due

- process violatio n). For example, the Plaintiffs noted that UIL Rule 100 allows parties to be represented by counsel during an SEC hearing a nd allows attorney s repre senting parties to , among oth e r things, request that the SEC panel “ pose certain questions or lines of inqu iry t o another party or witnesses ” and “ make op ening and closing statements o n beha lf of their client ( s). ” Further, the Pla inti ffs as serted that the UIL Defendants fa iled to com p ly with the requiremen ts of that Rule by refusing to ask the Plaintiffs about the a ssault by Terry des pite the request from the ir attorney , by prohibiting the Plaintiffs ’ attorney fr om making an opening s tatement, and by
curta iling the Plaintiffs ’ attorney ’ s closing arg uments. Additionally, the Pl ai ntiffs contended that the proce ss p rovid ed by the UIL Defendants in this cas e proh ibited the Plaintiffs from an opportunity to be mean ingfully heard on the iss ue of whet her the y mov ed for reasons other than an at h letic purpose.

As support for these a ssertions, the Plaintiffs referred to por tio ns of the transcript from the SEC hearing. At the begin ning of the hearing, the Plaintiffs ’ attorney attempted to
prov ide an ope ning statement regarding the hist ory of dom e stic abuse in the family , but one of the UIL Defendants rep eate dly interrupte d t he att orn ey and dir ecte d the attorney to stop sp eaking on the matter and explained that he was “ war ning ” the attorney abou t continui ng to s peak.
M oreo ver, during the closing a rgumen t by one of the Plaintiffs ’ attorney s , one UIL Defendant20

rep eatedly told th e attorney to wrap up the argument

. Fur the r, one of the Plaintiffs ’ attorney s asked the UIL Defendants to question Jenni fer and A. B. about the al legations of abuse, includin g the incident in Las Vegas, and about how the abuse formed the basis for the tra n sfer , but the UIL Defendant s posed no questions to either of the Plai ntiffs or to Te rry about the details of the abuse other th a n to ask when the Las Vegas incident occurred

. Cf. Flaim v. Me dical Coll

. of Oh io , 418 F.3d 62 9, 636 (6th Cir. 2005) (noting in expul sion cont ext that accused student generally has right to respon d and defend, inclu ding ability to make statement and present evi dence). Addi tionally, when Jennif er tri e d to exp lain the nature of the abuse and how it prompted her decision to move, one UIL Defend ant suggested that the panel was not going to give much weight to the s ubject matter.

Turning to the government ’ s int erest , we note tha t the mission of the U I L is bes t served by ensuri ng that an accurate determination is made r e garding whether a student transferred for a thletic purposes. Cf. In re L.N.C. , 573 S.W.3d 309, 322 (T ex. App.

— Houst on [14th Dist.] 2019, pet. de nied). Moreover, as set out above, the P laintiff s alleged , among

o ther things, that their due

- process rights w ere violated bec ause the UIL Defend ants did not comply with the process required by the UIL Rules and , accordin gly, did not pro vide the Plain tiff s with a meaningf

ul opportunity to be he a rd . Req uiring the UIL De f endants to comply with those r equ irements wo uld not impos e a dditional fiscal or administrative burdens

. Further, the Plaintiffs alleged that any additional safeguards that might be deemed necessary would

n ot impose signific a nt b u rdens. Consistent with th at proposition , the Plaintiffs referred to a
S unset A dvisory C ommission report explaining that additio nal procedural safeguards for
UIL determinations would not have a fiscal impact and cou ld be accomplishe d with existing
UI L res o urces. See Sunset Advisor y Commission, Staff Report with Final R e sult s: University21

I n t erscholastic League (July 2015), at 22, available at https://www.sunset.texas. gov/ public / uploads/files/

reports/Final%20Results%2 0UIL%20book.pdf (last visited April 29 , 2 0 22).
I n light of the pre ceding, we conclude that the Plaintiffs plea ded a facially valid claim that the proc ess provided by the SEC hearing wa s insufficient and t hat the evidence presented before the trial court e stablis hed that there is a fact question re garding whether the process that was provided was sufficient

.

O n appeal, the UIL Defendants contend that the Plaintiffs ’ complaints about the SEC hearin g must fai l becau se th at was the second hearing , be cause due proc ess need only be provi ded once, a nd because the Plainti ffs did not raise any procedur al issue with the DEC hearing , referring to the appeal before the SEC as a gratuitous hearing that requires no proce ss. As support fo r this prop osi tion, the UIL D efendan ts refer to an opinion by our sis t er court of appeal s tha t we believe is distinguishable because it expl ains that due

- process comp laints
regar ding an initial hearing can be cur ed if due proces s is provid ed at a subsequent hearin g. See United Indep. Sch. Dis t. v. Gonzalez , 911 S.W. 2d 118, 126

- 27 (Tex. App.

— San A n tonio 1995, writ denied). 4 The Gonzalez co urt did not determine that due

- proces s violations in the final

re view of an initial d ecision m ay not s erve as a b asis for a due

- process claim and di d not suggest that a trial court would h a v e no jurisdiction to c o n sider th ose types of violations

. In any event , that case is not binding on this Court, see HWY 3 MHP, LLC v. Electric Reliability Council of
Te x. , 4 62 S.W.3d 204, 211 n.4 (Tex. App.

— Austin 2015, no pet.) (explaining that a nalysis from

4 T he UIL Defend ants also refer to several federal circu it deci sions ad dress ing due

pro cess rights in the high

- school

- suspension and college

- expulsion context s . See , e.g. , B rewer v. Aust i n Indep. Sch. Dist. , 7 79 F.2d 26 0, 263 (5th Cir. 198 5) ; Sm i th v. Severn , 129 F.3d 419, 429 (7th Cir. 1997) ; Win n ick v. Manning , 460 F. 2d 545 , 54 9 n.5 ( 2d Cir. 1972) . However, those cas e s are not b indin g on this Court. See Charleston v. Allen , 420 S.W.3d 134, 137 n.6 (T ex . App.

— T exarkana 2012, no pet.) (recogniz ing that “ opinions of the federal circuits are not bi nding on state court s ”)

.22

sister court of ap peals is not binding preced ent) , and any persuasive authority stemming from this case is undermined by the fact that this Court has previously det ermin ed that similar alleg ations could support a due

- process claim, see Hatten , 2004 W L 792328, at *3

.

When ar guing that the Plaintiffs ’ claim f ails , the UIL Defendants conte nd tha t the claim and re quested declaratory relief are improper as a matter of law b ecause th e remedy for the denial of due p rocess is due process. As support for t h at prop osition, the UIL De f end ants refer to Tha n , in which a m edical student was dismissed from schoo l for acad emic dishonesty following disciplinary proceedings

. 901 S.W. 2d at 928. T he student then filed suit all eging that the me dic al school “ violated h is right to procedur al due process under the due course of law guarantee of the Texas Constitution

. ” Id. T he trial court issued a temporary injunction pending trial and u lt imately granted a permanent injunction fo llowing trial order i ng the med ical schoo l
to perfo rm certain acts r elated to the student ’ s status. I d. at 928, 929. O n appeal, the Texas Supreme Court co ncluded that the me dical school did not afford the student d ue process when making the disci plina ry d ecision to expe l him. Id. at 9 33. The S upre me Court then

co nclude d that the permanent injunction exceeded the proper reme dy of a fair hearing regar ding the disciplinary charges. Id. at 934. Although the Suprem e Court modified portions of the permanent injunction “ pen ding a new h earing on the char ge of academic d ishone sty, ” it vacated the remainder of the permanent injunction. Id.

We believe that the procedural posture of Than distingu ishes that case from the

o ne here. Than involved an appeal regardi ng the propriet y of a permanent injuncti o n . Here, no permanent i njun ction has been issued , and no trial h as yet been held. Moreover, we do not read Than as standing for the proposition that the failure to specific ally request at this prelimina ry juncture for the trial cou r t to order that a new SEC hearing or an other heari ng be held somehow23

deprives the trial court of jur isdiction over the Plain tiffs ’ ultra vires claim that the UIL Defendants violated their due

- cour se - of

- l aw rights

. Cf. Trauth v. K.E. , 61 3 S.W.3d 222, 225

- 2 6, 232 (T ex. App.

— Aus t in 2020, pet. granted ) ( noti ng that plaintiff sought declarations that univer sity official s ’ conduct w as ultra vires and violated her due

- process rights by revoking her
prev i ously awarded degree and co n cl uding that requested injunctiv e relief ordering off i cials to

re instate her degre e w as proper prospective injunctive relief limited to restraining ultra vires act and d id not implicate sovereign immunity)

.

For these reasons, we con clude that th e Plaintiffs have prop erly ple aded an ultra vires claim ag ains t the U IL Defend ants by allegin g that they violated the Plaintiffs ’ due

- course of

- law rights wh en making A.B. ’ s eligibility determination and that the evidence presented durin g the hearing befor e the trial court esta blishes a fact question regarding the ju r isdict ion al issue of whether t he UIL Defendants acted ultra vires

. Ac cord ingly, we con clude that the trial
court properly deter mined that it had jurisdiction over this claim a nd denied th e UIL Defendants ’ plea with respect to this claim.

Free S peech
In filing suit against the UIL De fend ants, the Plaintiffs alleged that the UIL Defendants violated the free

- speech provision of the Texas Constit ution , which guarante es that

“ [e]v ery perso n shall be at liberty to s peak, w r ite or pu bl ish his opinions on a n y s ubject ” and that

“ no law shal l ever b e passed cur tailing the liberty of speech

. ” See T ex. Const. art

. 1, § 8 . As support for this pro po sition, the Plaintiffs presented e videnc e showing that the PAPF reflected
t hat there was conflict among A.B. , his p a rents , and the athl etic supervisor s for Coppell High School and that Rule 443 lists unhappiness with former coach es as a common i nd icator of24

a transfer being for an ath letic pu rpo s e . Further, the Plaintiffs referen c e d Coach Sch nell ’ s testimony at the DEC that prior comments m a de by the P l aintiffs expressing dissatisfaction with his coaching showed that they int ended to move for an impermissible athletic purpose , pointi ng
to a text message that he rec eived from Jenn i fer during A.B. ’ s sophomore year in whic h she stated that she was “ disappoi nt[ed] ” by A.B. ’ s being placed on the second all

- district t eam . Additi onally, the Plaintiffs referenced Sche ll ’ s testimo ny before the DEC i n which he tes tifie d that he indicated on the PAPF that there was dissatisfaction because there was a “ constant cloud of dissatisfaction about [A.B. ’ s] role , ” about how he was being coached , ab out his lack of exposure, and about his lack o f offers while pl aying i n C oppell. In light of the preced ing, the Plaintiffs contend that to the e xtent that the UI L Defendants ’ deci sion regarding A.B. ’ s eligibility was based on prior expressions of dis satisfact ion, the UIL Defendants ’ actions burden ed Pla intiffs ’ “ free

- speech right s with respe ct to expressing those feeli ngs . ”

W hen alleging that their right to fre e speec h was imperm issibly burdened, the Plaintiffs did not assert that communic ations evidencing dissatisfaction with coachi ng staff or decision s by co achi ng staff ca n have no be aring on whet her a transfer was made for athletic
purposes ; in stead, the Plaintiffs essentially argue that the UIL Defendant s ’ consideration of those types o f s tatements as part of i ts decision making , even if relevant to the ult imat e questio n,
contrave ned the Plaintiffs ’ r ight to make them. In t heir ap pel lee s ’ b rief, the P la intiffs con cede that cer tain types of s tatements, such as ones directly asserting that a parent wi ll remove his or her child from school if the child does not ha ve mor e p laying time, could properly be c onsid ered when making eligibility determ i nation s ; however, they assert that th e communications at issue have no relationship to the mo ve and happened well before the move. Moreover, the Plainti ffs contend that the use of th ese types of communications coul d hav e a chilling effect on the ability25

o f parents a nd students to criticize c oaches as e vidence d by their testimony that they were hes itant to make any further c ritici sm regarding coaching decisions for fear that A .B. woul d be retali ated against

. I n resp onse , the UIL Defendants assert that eve n if the Plaintiffs ’ comments

were con sidered as part of the decision process, the use of spee ch as evidenc e of motive and intent does n ot improp e rly burden the right to free speech.

T he Supreme Court of the Unite d St ates has explained in the criminal c o ntext that the right to free speech “ doe s not prohibit the evidentia ry use of s peech . . . to pro ve motive or intent , ” Wis consin v. Mitchell , 508 U.S. 4 76, 489 (1993) , and f ederal court s have applied this legal pri nciple in the civil cont ext , s ee Whitake r v. Thompson , 353 F.3d 947 , 953 (D.C. Ci r. 2004) (rejec ting argument tha t claims abo ut product were protected speech and explaining that

“ the use of speech to infer intent . . . is const itutionally valid ” ); see also Smolla & Nimmer on Freedom o

f Speech § 1 3.5 (noting that spee ch may be used to e stablish existe nce of illegal

m ot ive regardi ng treatm ent of employee).

Even though the T e xas Supreme Court has commented that the free

- speech
prov ision of the Texas Const it ution can be b roader than the First Am e ndment in certain contexts ,

see Turner v. KTR K Televisi on, Inc. , 38 S.W.3d 103, 116 (Tex

. 2000) , it has also exp lained that nothing i n the language or purpose of the Texas pr ovis ion authorize s courts “ to afford grea te r weight in t he balanc ing of interests to free expression tha n [they] woul d under th e Fi rst Am endment , ” Bentley v. Bunton , 94 S.W.3d 561, 578 (Tex. 2002) (quoting Ex parte Tucci , 859 S.W.2d 1, 32 (Tex. 1993) (orig . p roceeding) ( Ph illips, C.J., con curring ) ) . Further, Texas

c ourts have ex plain e d t hat cases addressing the First Amendment ar e pe rsuasive authority for ad dressing claims under the T e x as provision

. See Davenport v. Garcia , 834 S.W.2d 4, 20 (T ex. 1992)

. T he Plaintiffs di d not attempt to show th at the state con stitutional provision af f ord s any26

greater pr otection than the First Am endment does , s ee Bentley , 94 S.W. 3d at 578 , and Te xas cases have e xplai ned that the cons titutional protection of free speech “ is not a per s e bar rier to the admission of evidence protected by it ” and that this type of evidence is “ admissi ble if it is show n to be relevant to the issues involved in the case , ” Martin v. St ate , 570 S.W.3d 426, 4 39 (Tex. App.

— Eastland 2019, pet. ref ’ d).

T h e statements at issue logically bear upon whether A.B. ’ s transfer was f o r athletic purposes by helping to pot entially esta blish , amon g other things, that he int ended to

sw itch school s to achiev e a better role or receive better treatment on a new team , and the UI L Defe ndants ’ alleged con sideration of that eviden ce for the limi t ed purpose of d etermining A.B. ’ s eligibilit y did n ot contravene the Plainti ffs ’ free

- s peech rights

. Acc ordingly, the Pla i ntiffs ’ alleg ations that the UIL Defendants contrave ned t heir free

- speech right s by consideri ng their prio r commun ications do not ple a d a fac ially valid constitutional cla im

. 5

For these reasons, we conclude tha t the trial court erred by denying the UIL Defenda nts ’ plea t o the jurisdiction as to the Plai ntiffs ’ free

- speech cl aim. Mo reover, bec ause the Plaintiffs had the opportu nity t o respond to the UIL Defendants ’ plea to the juris diction before the trial court ruled but still did not allege a faciall y vali d constit utional claim and because the Plaintif

fs have made no sugges tion as to how the jurisdic tional de fect could be cured or a sked for a n opport unity to replead , they are not e ntitled to an opp ortunity to r eplead this c laim. See Koseoglu , 233 S.W.3d at 84 0 ( determining that remanding for opportunity to r eplead would

5 On app eal, th e Plaintiffs refer to a recent ca s e by the Supr eme Court o f the United St ates as support for their argum e nt that the trial cour t had jurisdic tion over th eir free

- s pe ech claim

. See Mah anoy Area S ch . Dist. v. B.L. , 14 1 S. Ct . 2038 , 2 042

- 43 (2021)

. H owever , in that case, the Court determin e d that the suspension of a student from her cheerleadi ng team after sh e criticized the school and cheerleading team in Snapc hat s peech that “ took plac e outside of school hours and aw ay f

rom the school ’ s camp us ” viol ated her First Amendment rig hts. I d. Th e case before us presents entirely different facts and issues.27

ser ve no legitimate pu rpose because alleging additional facts w ill not overcome immunity from suit); Miranda , 133 S.W.3d at 22 7 , 231 ( noting that suit should be dismissed when pleadings demonstrate that suit incurably falls outside any waiver of immunity and observing that pa rt ies had opportunity to amend their plead i ngs and d id so and were n ot entitled to another op portunity to replead) ; see also Ogueri v. Te xas S. Un iv. , No. 01

- 10

- 00228

- CV , 2011 WL 1233568, at *6

n .6 (Tex. App.

— Houston [1st Dist.] Mar. 31, 2 011, no pet.) (mem. op.) ( observing tha t plaintiff did not ask for opp ortunity t o replead on appeal and, therefore , not addressing whether plaintiff should be given opportunity to replead); Haddix v. American Zurich Ins. Co. , 253 S.W.3d 339, 347 (T ex. App.

— Eastland 2008, no pet.) ( concluding th at trial court did not err by failing to give plaintiff opportunity to replead where he nev er explained “ what he cou ld plead that would address any of the jurisdictional challenges ” )

. Equal Protection

At the trial c ourt, t he Plaintiffs also urge d a claim under the equal

- protection provision of the T exas Const itu tion, whi ch provides that all pe o ple “ have equal rights, and no

man , or set of men, is entitl ed to exclusive separate public emoluments, or privileges. ” Tex. Con st. a rt. 1, § 3. “ To state a viabl e equal

- protection claim under the Texas Const itution, the Petitione rs must show they have b een ‘ treated differently from others similarly situated. ’ ” Klumb , 458 S.W.3d at 13 (quoting Tex as Dep ’ t of Transp. v. City o f Sunset Valley , 146 S.W.3d 637, 647 (T ex. 2004) )

. The Plai ntiffs alleg ed that t he UI L Defendants relied on their statuses as a di v orced and not

- yet remarried moth er and a child of divorced paren ts and treated them differently because of those statuses whe n determining A.B. ’ s eligibility

. A s s upport fo r this28

allegation, the Plaintif

f s pointed to portions of th e record fr om the DE C h ea ring in which Coach
S chnell noted multiple times that Jennifer and Peavy had a d ating relationship but were not married and in which one of the DEC pane lists asked Peavy if he was ma rried to Jennifer aft e r Peavy describ ed A.B. as h is stepson. Ne xt, th e Plaintiffs r eferred to portions of the record from the SEC hearing in which Sch nell re peated similar statements about ho w Jenn ifer and Peavy were not married. Furth er, the Plain t iffs noted that during th e SEC hearing one of the UIL Defend ants asked Jenn if er how long she had dat ed and lived with Peavy and late r responded ,

“ Okay, ” after Schnell finished a portion of his testimony stating that Jennifer and Pea vy were no t married and respo nded, “ Might y good, ” s hortly thereafter when Dire ctor Pehl sta ted that h e did
not have any thing to add to Schnell ’ s testim o ny.

As an initial matter, we note that most of the evidence high lighted b y the Plaintiffs involved conduct by indi viduals oth er than the UIL Defend ants. S ee Gonzalez , 911 S.W. 2d at 12 4 ( noting that plaint iff ’ s claims addressed actions by school empl oyees and did not address conduct of reviewing board or implicate board ’ s d ecisio n - m aking process ) ; see also Republican Party of Tex. v. Dietz , 94 0 S.W.2d 86, 9 1 , 93 (Tex. 1997) ( noting t h at state action is
requ ired for claim regardin g deprivation of right secured by equal

- rig hts guarantee )

.

A lthough one of the UIL Defendants did ask J ennifer how long she had dated Peavy when obtaining background informa tion, n o thing in that exchange indi cated that Jennifer ’ s ans wer served as a basis for the SEC ’ s decision or that the decision wou ld have been different if she had been married to P eavy. Additionally , even t hough one of t he UIL Defendant s responded, “ Okay, ” after Schnell finished a po rtion of his testimony discussi ng how Peavy an d Jenni fer were not married, Schnell testified on other top ics related to the transfer as well , and the panelis t regularly responded , “ Ok ay , ” after witnesses answered a question, including one time in29

which he t hank e d Jennifer for her testi m ony . Simila rly , although that UIL Defendant resp onded,

“ Might y good, ” when Pehl indicated that he did not have anything to ad d , he made the s ame

r esponse when ano ther witness explained that he also had n othing to ad d. Moreo ver, n othing in the record from the SEC hea rin g indicates that the UIL Defendants improperly based their d ecision on the Plaintiffs ’ family status or treated them differentl y fro m others similar ly situat ed

. Cf. Texas Utils. Elec. Co. v. Public Ut il. Com m ’ n , 881 S.W.2d 387, 391 (Tex. App

. — Austin 19 94 ) ( recogniz ing “ a presumption of honesty and integrity in those serving as adjudi cators ” ) ,

rev ’ d in part on other grounds , 935 S.W.2d 109 (Tex. 199 6)

. 6 Additionally , the letter the U IL Def e ndants sent to Jenn if

er inf orming her of their decisi on did not ind icate that t he Plaintiffs ’ family status was something they considered when ma king their determination or that t he
Pl aintiffs were t reated different ly f r om others similarl y situated

. In l ight of the p recedi ng , we c onclude that the evidence fa ils to cr eat e a fact question regarding whether the UIL Defendants acted ultra vires by violat ing th e Plaintiffs ’ equal

- protec tion right s and, a ccordingly, that the trial court erred by denying the UI L Defendants ’ plea to the j u risdiction with respect to t he Plaintiff s ’ e qua l

- protection claim. Cf. Texas Dep ’ t of Aging & Disability Servs. v. Loya , 491 S.W.3d 92 0, 928 (T ex. App.

— E l Paso
2 016, no pe t.) (determining that plaintiff failed to present eviden c e raising fact issue and

re ver sing trial court ’ s order denying plea t o jurisdiction). Moreover, be cause the Plaintiffs had

6 The P l aintiffs contend on appeal that the UIL Defendants should not be entitled to a presum ption of regularity like t he age ncy members in Texas Ut il it ie s Elec tric Co. v. Public Ut il ity Com m is sion because the agency members in that case were subject to the Admin i strative Procedure Act and because the UIL Defendants are not. See 881 S.W.2d 387, 3 90 (Tex. App.

— Austin 1994) , rev ’ d in part on o ther grou nds , 935 S.W.2d 109 (Tex. 199 6) ; see Universi ty Interscholastic League v. Southwest Off s . Ass ’n, Inc. , 319 S.W.3d 9 5 2, 9 65 (Tex. App.

— Austin 2010, no pet.)

. However , nothin g in Tex as Utilities would appear to compel a dete rmin ation th at the pres u mption does n ot apply to adjudicators outside the cont ext of the Administr ati ve Procedure Act.30

the opportunity to respond to the UIL Defendants ’ plea to th e jurisdiction before the trial court ruled but did not allege addition a l fact s o r attach evidence c reating a fact issue and be cause the Plaintiffs ha ve made no suggestion regarding ho w the jurisdictional defect could be cured or asked for an opportunit y to replead , they are not entitle d to an opp ortunity to replead this c lai m . See Koseoglu , 233 S.W.3d at 840; Miranda , 133 S.W.3d at 231 ; Ogueri , 2011 WL 1233568,
at *6 n .6 ; Haddix , 253 S.W.3d at 347 ; se e also City of Paris v. Ab bott , 360 S.W.3d 567, 583

n .13 (Tex. App.

— Texarkana 2011, pet . de nied) (providing that when the r e are “ no facts demonstrating an equal protection cau se of action have been . . . asserted, ” plaintiff is not entitled
to opportuni ty to re plead claim )

. Challenge s to Rule 443

In their live petition, the Plaintiffs soug ht as part of their due

- course - of

- law an d
fr ee - spee ch claims declarations that Rule 4 43 i s unconstit utionally vague, a rbitrary, and

ca pricious ; is not rationally related to its purported p urpose ; and impermissibly burden s the

exe rcise of free speech. Esse nti ally, the Plaintiffs argue that Rul e 443 p rovi des insufficient guidance regarding wh at is a prohibite d athletic purpose and im properly allows UIL committees to consider wh ether students or paren ts have expressed dissat isf action with prior coach es as part

o f th e determination regarding whether a t r ansfer wa s for athletic p urposes. 7 Origin ally, t he Plainti ffs filed suit against the UIL Defendants and the UIL, but their liv e pleading, including their second amended petiti on and their supplemen t to their second amended peti tion , and their

re sponse to the UIL Defendants ’ plea to the j urisdiction omi tted the UI L as a defendant. See

7 In the portion of its live p leading addressing Rule 443, the Plaintiffs repeat their assertion s th at the UIL Defendants relied on Jen nifer ’ s mar ital status w hen making th eir determination about A.B. ’ s e ligibilit y .31

Watanabe v. Summit Path Part ners, L L C , __ S.W.3 d __, 2021 WL 3501542, at * 14 (Tex. App.

— Housto n [1st Dist .] Aug. 10, 2021, no pet.) ( explaining that parties are dismissed fr o m suit by omi ssion of their names from amended pleading); s ee also Te x. R. Civ. P. 65 ( stating that if substituted instrum ent is filed, “ the instrument for whic h it is submitte d shall no longer be regarded as a part of the pleading in the re cord of the ca u s e ” )

. On appeal, the UIL Defendant s contend that the Plain t iffs we re not entitled t o declarations regarding the co nstitut ionalit y of Rule 443

. Unlike the Plaintiffs ’ other c laims challenging the UIL Defendants ’ action s as being ultra vi res, the claim her e challe nges the propriety of Rul e 443 , which was passed t hrough procedures in itiated by the UIL and not by the U IL Defendants , and th e Plaintiffs have made no argument that t he procedures used to promulgate Rule 443 were not followed

. See Tex. Educ.
C ode § 33.0 84 (setting out me mbe rs of UIL advisory council and specifying that advisory

coun cil reviews UIL rules ) ; s ee also id. § § 33

. 0831 ( providing limi ts on rules that would r esult in additional co sts to member s chool), .081 (providing that stu dents en r olled in school distr i cts are

s ubject to UIL rules governing extracurricular a ct ivities)

. Accord ingly, to s urvive a jurisdiction al challenge, the Plaintiffs ’ rule challenge must fall within a waiver of sovereign im munity authorized by the Texas Legislatu r e. Cf. Tooke v. City of Mexia , 197 S.W.3d 325, 342

- 43 (Tex. 2006) (holding that immunity is not w aived absent clear legislative intent to do so)

.

The Texas Legislature has waive d sovereign immunity regarding chall enges to a
state agency ’ s rules under th e A dministrative Procedure Act a nd set out the proc ess by which tho se rules may be challen ged, incl uding the requirem ent that the agency be named as a party in the case. See Tex. Gov ’ t Code § 2001.038

. The defin iti on for “ state agency ” under the Act incl u des many governmental entities but s pecifically excludes “ an i nstitution of higher learni ng. ”32

Id. § 2001.003(7). B y statute, th e UIL “ is a part of the University of Te xas at Aust in , ” T ex. Educ. Code § 33.083(b) , w hich is an institution of higher learnin g , see id. § 61.003 (including
U niversity of Te x as a t Austin wit hin meaning of instit ution of higher education)

.

T his Court ha s previously d etermined that “ the UIL is a go vernment al unit subject to sovereign immu nity ” but also expl ained that t he UIL ’ s s tatus as part of an institution o f higher learning means that the UIL is not subject to the limited waiver o f sover eign immunity for challenging agency rules found in the Administrat ive Pro cedure Act

. University In terscholastic Leagu e v. So uthwe st Offs. A ss ’ n , I nc. , 319 S.W.3d 952 , 962 , 965 (Tex. App.

— Austin 2010,

no p et.) ; see also Saenz v. Uni versity Intersch olastic League , 487 F

. 2d 1 026, 1027

- 28 ( 5th Cir. 1973) (noting that UIL wa s governmental entity , in part, b ecause emplo yees a re paid by
U n iversity o f Texas at Austi n )

. The le gisl ature has addressed suits against the UIL in section 67.26 of the Education C ode. See Tex. Educ. Code § 67.26. That provision is entitled

“ University Interscholastic League; V enue fo r Suits ” and lists the pro per venue f or s uits ag ainst the UIL and for suit s involving the UIL ’ s rules, but for suits involving UIL rules th at provisi on only me ntions s uit s “ involving the interpretation or enforcement of the rules ” and does not specifically ad dress suits challenging the propriety or legality of t hose rules. See id. ; s ee also Tooke , 197 S.W.3d at 342

- 43 ( explain ing t hat waiver of imm unity must be clear ). E ven if section 67 .26 can be read as waiving immunity for th e types o f rule chall enges presented here , we believe tha t the U IL i s a necessary party for that type of challen ge .

This constructi on is consistent w ith case law addressing challenges to UIL rules. Although neither ’ s case addressed the issue of sov ereign immunity, t he Te xas Supreme Court and one of our sis ter c ourts of appeals have addressed challenges to the UIL ’ s rules when the
UIL was a party to the suit

. Sullivan v. University Inter scholastic League , 616 S.W.2d 170 , 171,33

173 (Tex. 1981) ; Univer sity Interscholast ic L e ague v. Nor th Dallas Chamber o f Com. Soc c er Ass ’ n , 693 S.W.2d 513 , 514, 51 8 (Tex. App.

— Dallas 198 5, no writ ) ; see al so Cornerstone Christian Schs. , 563 F.3d at 135

- 40 (ad dressing constitutional challenges to UI L rule whe n UI L
was par ty ) ; Texas Dep ’ t o f Tra nsp. v. Sefzik , 355 S.W.3d 618, 622

- 23 ( T ex. 2011) ( noting distincti on bet ween governme ntal entity and offici als as parties in sovereig n - immunity conte xt )

. T hat requirem ent is consistent with legislative w aivers of immu nity auth orizi ng limited challe nges to other types of laws. See , e.g. , Tex. Civ. Prac. & R em . Code § 3 7.00 6 (b) (requiring that municipality be made part y to any proceeding challenging valid ity of mun ici pal ordinance or franchis e); Tex. Gov ’ t Code § 2001.0 38 (requiring that agency be na med a s party in case challenging agency rule)

.

T h e r equirement i s also consis tent with th is Co urt ’ s prior precedent add ressing whe n go ve rnmenta l entities are indispens a ble parties to a lawsuit. Under the Ru les of Civi l Procedure, a p ar ty is indispe nsable if “ in his absence comp lete relief cannot b e accorded among those already parties , ” a nd trial courts should de termine i f the case should be dismis sed if th e absent person i s “ indispensable

. ” Tex. R. C iv. P. 39(a) , (b ). The term “ [p ]er son includes

. . . go vernment or governmen t subdivisio n or ag e ncy. ” T ex. Gov ’ t Code § 311.005(2) ; see also
BASF Fina P etrochemicals Ltd. P ’ ship v. H.B. Zachry Co. , 168 S.W.3d 867, 871 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied ) (explaining that Code Construction Act app lies to Rules of Civil Procedure) . Alth o ugh it is rare, “ there are parties whose presence is so in di spensable to the resolution of a cause of action that their absence c an deprive a court of jurisdiction to determine such. ” Travis H

e ights Imp rovement Ass ’ n v. Small , 662 S.W.2d 406, 413 (Tex. A p p.

— Austin 1983, no writ ) ; see Preston State Bank v. Willis , 443 S.W .3d 428, 4 34 (Tex. App.

— Dallas 2014, pet. den ied) ; Gilmer I

nde p. Sc h. Dist. v. Dor

f man , 156 S.W.3 d 586 , 588 (Tex. App.

— Tyler34

20 03, no pet.)

. This Co urt h as previously determined that a cit y is “ an i ndispensable part y ” to suits seeking to challenge the v ali dity of t h e city ’ s ord inances and , therefore, that a trial cou rt lack ed “ jurisdictio n to adjudic ate the action ” when the city was not a p arty. Smal l , 6 62 S.W.2d
at 413 ; see also Dor

f man , 1 5 6 S.W

. 3d at 588 (concluding that trial court erred by denyin g plea to juris d iction because Commissioner of Education was indispen sab le party to suit seeking to dec lare certain chap ters of Edu c ation Code unconstit ut i ona l)

.

Simi lar to how a city has the authori ty to pass ordinances, the UIL has the authority to promulgat e rules g o verning extracurri cular activities and interscholas tic competi tion , including the rule at iss ue, and to impose sanct ions for noncompli anc e . See Tex. Ed uc. Code §§ 33.081, .083 , .091,

. 096, . 097,

. 203

. Acco rdingly , to the exten t that sovereign immunity h a s been waived regarding challenges to UIL rules , wh ich we do not decide, we con clude t hat the
UIL is a jurisdictiona l ly requi red party to a ny suit seeking to challenge its rules

. Cf. McLa ne , 2020 WL 10737 75, at * 1 1

- 12 (Good w in, J. , concurr ing) (explainin g that agency with authority to adopt rules was “ the proper party for appellees ’ purpor ted rule challen ges ” and agr ee i ng that appell ate c o urt correctly dismisse d claims against d i rector of agency in her officia l capacity for lack of sub

ject

- matter jur isdi c tion); see also Texas Dep ’ t of Pub. Safety v. Salaza r , 304 S.W.3d 896, 904 (Tex. App.

— Austin 2009 , no pet.) ( obse rvi ng that a gency, not st at e official, must b e party t o suit chal l enging valid ity of agency rule )

.

Therefore , we conclude that t he trial court lacked jurisdiction over the Plaintiffs ’ claim seek ing a declaration that Rule 443 is unconsti t utional and erred by denying the UIL Defen da nt s ’ plea to the jurisdiction with res p ect to th at claim

. M oreover, even if the le gisl ature has waived immunity in t his context, the Plaintiffs would not be entitled t o replead th ei r claim and n ame the UIL as a party. S ee In re K.G .S. , No. 14

- 12

- 00673

- CV, 2014 WL 8 0112 7, at * 935

(Tex. App.

— Ho u s ton [1 4th Dist.] Feb. 27, 2014, no pet.) (mem. op.) (explaining that “ ability to cure [juri sdictional] defects does not extend to suing new p arties ” and co nclu ding that rema nd to allo w opportuni ty to amend was not w arranted ); see also Ochoa v. Ci ty of Pal m view , No. 13

- 14

- 00021

- CV, 2014 WL 7404594, at *9 (Tex. App.

— Corpus Christi

- Ed i nburg June 19, 2014,

no pet.) (mem. op.) (explainin g that oppor tunity to repl ead to name state actor rather than

su b division of state in ultra vires claim was not warranted ) ; So u thwe s t Offs. A ss ’ n , 319 S.W.3d
at 965 (noting that opportunity to amend pleadings d oes not extend to opportunity to substitute
state e ntity with stat e actor for claim otherwise b arred by soverei gn immunity)

.

Fo r the reasons previously expressed , we s u stain t he portion of the UIL Defendants ’ first issue asserting that the t rial court err e d by denying the portions of their plea t o the jurisdict ion regarding the Plaintiffs ’ free

- speech claim, equal

- protection clai m , and request for de claratory re lief reg a rding Rul e 443, but we overrule the portion of the UIL Defend ants ’ first issue assertin g that the trial court shou ld have granted the portion of their plea asserting that th e trial court had no juris diction over the Plaint iffs ’ due

- co urse - of

- law claim.

T emporary Injunction

As set out above, the UIL Defendants contend in t heir second issue t hat the trial court erred by granting a te mporary injuncti on in favor of the Plaint iffs, wh ich enjoined the UIL Defend ants fr om enforcing Rule 443 against A.B., enf o r cing the SEC eligibility determination against A.B., and taking any other actions against the Plain tiffs related to Jennifer ’ s de ci sion to

m ove her family from Coppell to Du n canville

. Standard of R evie w36 “ A tempora ry injunction is an extraordinary remedy that does not issue as a matter of right. ” Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 ( T ex. 2002)

. “ A temporary injunction ’ s purpose is to prese rve the status quo of the litigat ion ’ s subject matter pending a tr ial on the merits. ” I

d. To obtain reli e f, the par ty applying for a temporary injunction “must plead and prove three specific eleme n ts: (1) a cause of action against the defendant; (2) a pr obable right to the relie f sought ; and (3) a probable , imminent, a nd ir reparable injury in the interim.”
A bbott v. An ti

- Defamation League Austin, Sw. & Texoma Regions , 610 S.W.3d 911, 916 (Tex.
2020 ) (quoting Butnaru , 84 S.W.3d at 204)

.

Appellate courts re view a trial court ’ s deci sion to grant a tem porary inj unction for an abuse of discretion. Bu tnar u , 84 S. W .3d at 204. “ A trial court abuses it s discretion if it

. . . acts arbitrarily or unreasonab l y. ” Tanglewood Homes Ass ’ n, Inc. v. Feld man , 43 6 S.W. 3d 48, 69 (T ex. App.

— Ho uston [14th D ist.] 2014, pet. deni ed). “ [W] h en reviewing such a decision, we must vi e w the evide nce in the light most favorable to the trial court ’ s order, indulging every

reaso n able inference in its favor, and det ermine whether the or der was so arbitrary that it exceeds the bounds of rea sonable dis cretion. ” Fo x v. Tropical Warehouses, I n c. , 121 S.W .3d 853, 857 (Tex. App.

— Fort Worth 2003, no pet.). Provided t hat there is some e v idence reasonably supporting the tri al court ’ s decision, the trial court did not a buse its dis cretion. But naru , 84 S.W.3d at 211.

Ca use o f A ction and Probable R ight to Rec overy For the reason s set out in their first issue , the UIL Defendants contend t hat the Plaintiffs failed to plead a cause of action agai nst them and a probable r ight to rec overy because the trial court did not have jurisdiction over any of t h e claims as serted.37 To meet the elements for a t em porary injunction , an applicant is not requ i red to establish that it will ulti mately prevail in the suit. See Transport Co. of Tex. v. Robertson
Tra nsp., Inc. , 261 S.W.2d 549, 552 (Tex. 1953). On the c o n trary, those elements are met if the applicant “ alleg [es] a cause of action and present [s] evi d ence tending to sustain it. ” Fox , 121 S.W.3d at 857

. Appellate courts “ will af firm the tr ial court ’ s de cision as lo ng as there are ground s to believe that the claim has merit. ” Yarto v. Gillilan d , 287 S.W.3d 83, 94 (T ex. App.

— Cor pus Christi

- Edinburg 20 0 9, no pet.).

Although we have dete rmined above th at the t rial court did not have jurisdicti on
over most o f the Plaintiff s ’ claims, we have also conclud ed that t h e trial court did have jurisdiction over the Plaintiffs ’ ultra vires claim asserting that the U IL Defendants violated their due

- c ourse - of

- law rights and that t he Plaintif fs pr esented e vidence in support of tha t clai m. Acc ordingly, we bel ie ve that the tri a l court reasonably could have concluded that the Plainti ffs had a probable right of recovery on this ultra vire s claim. See Hatt en , 2004 WL 792328, at * 3 (conclud ing “ that the Hattens have a pr obable ri ght to recov er on their claim that they have a due p r ocess interest under the Texas Constitution ” pertaining to stig matizing effects of eligibility d etermination and on their claim t hat they were denied due process )

.

I rreparable I

njury
In their appellant s ’ b rief, th e UIL Defendants asse rt that the tempora r y injunction did not prevent an irr eparable injury to th e Plaintiffs . Es sentially, the UIL Def e nd ants contend that any reputatio n al harm is not irreparab le because the Plaintiffs can refute the allegatio n i f38

they p revail on their due

- course - of

- law claim

. Further, the UIL Defendants assert that the inability to p lay spo rts is an injury to o minor to warrant injunctive r elief. 8

In this case, the Plaintiffs alleged harm to thei r liberty interests in their rep utation and community s tanding and to Jennifer’s liberty interest in the care , control, and custody of her children with the result of those vio l ations being that A.B. could not p lay sports for Duncanville High School absent inj unctive relief. T he trial c ourt cou ld have reasonabl y concluded that the al l eged reputation al injuries and injuries to family liberty interests would continue pending a
tr i al. Further , the trial court cou ld have reasonably conc luded b ased on the pleadi ngs and evidence th at these ty pes of i njuries c ould not be ade quately addresse d absent injunctive relief. Cf. Fox , 121 S.W.3d at 857 (di scussing when inju ry i s irreparab le). Accordingly, we believe that the trial co urt reasonably concluded that the Plaintiffs “ would likely suffer irre p arable injury

. ”
Hatten , 2004 WL 792328, at * 3

.
S tatus Quo

“ The purpose of a temporary injunction is to preserve the status quo unt il a trial

o n the merits. ” F

ox , 121 S.W. 3d at 857; see Butnaru , 84 S.W. 3 d at 204. “ The ‘ status quo ’ is th e

‘ last, actual, pea ceable , noncontested status which preced e d the pending controv ersy. ’ ” Texas
Ass ’ n of Bus. v . City of Austin , 565 S.W.3d 425, 437 (T ex. App.

— Austin 2018, pet. den ied) (qu oting In re Newton , 146 S.W.3d 648 , 651 (Tex. 2004) (orig. p roceeding) ).

On appe al , t he UIL Defendants contend that the tr i al court abused its di scretion by granting the temp orary injunction because the injunction alter ed ra t her than preserved the stat us

8 As support for this proposition, the UIL Defendants refer to multip l e cases from other states and from federal courts that are not binding on this Court. See Penrod Drilling Corp . v. Williams , 8 68 S.W.2d 294 , 296 (Tex. 1993)

.39

quo. Wh en making this arg ument, the UIL Defend ants asse r t that A.B. was never el ig ible to
par ticipate in UIL activ it ies at Duncanville High School . As support, the UIL Defend ants highli ght that by moving to Duncanville, A.B

. was presumed ineligible un der Rule 44 3 unless several requ irements were met, includi ng a representative from h is previous school ’ s signing a PAPF statin g that he did no t transfer for ath letic purposes , which did not occur in this case

. Accordingly, the U I L Defendants con tend that the last , peac eable, nonc on te sted status was that A.B. was i neligible to p lay for Dun c anville High School

. 9

T he Plaintif

fs have argued that A.B. was deemed inel igible and that the UIL Defendants ’ ultra vires actio ns prohibit ed th e m from being able to e stablish th at the r eason fo r the tran sfer was not for athletic purposes . See In re Ne wto n , 146 S.W.3d at 651 (explaining that

“ t he continuation of il legal conduct cannot be justified as preservation of the status quo ” )

. W hen conf ro n ted w ith a similar sit uation in which a n athletic director determined that a student ’ s transfe r had been mad e f or ath letic pu rposes and in w hich the DEC and SEC both agreed with the ath letic director , this Court u pheld a temporary injunction barring the e n forcement of tho se dec isions as preserving “ the status quo of the subject matter of th e suit pending a trial on the meri t s. ” Hatten , 2004 WL 792328 , at *1, *4. One of our sister courts of appeals confronted a

9 The UIL Defend a nts a lso assert that enjoining enforcement of Rule 443 canno t maintain the stat u s quo because that Ru le is longstanding and because th is Court recently explained that enjoining “ longstanding requirements ” do es not mainta i n the status quo. See Hughs v. Move Tex

. Action F und , No. 03

- 20

- 00497

- CV, 2020 WL 6265520, at *1

- 2 (Tex. App.

— Aus t in Oct. 23, 2020, order) (per curiam) . We find Hughs distinguishab le. In that case , a nonprofit corporation i nvolved in v oter registration asked this C o urt to reinstate an injunction under Rul e of Appel late Procedure 29.3 during the pendency of th e appeal. Id. at * 1 . The effect of that injunction would have prevented the T e xas Secretary of State from enforcing a ph ysician ’ s c e r t ificat e req uirement for l ate mail

- in ballots, change d longstandin g requirem ents governing late ballots, and risk ed voter confusion. Id. at *1, *2. Although the UIL Defendant s are correct that Rule 44 3 is longstanding, the temporary inju nction in this case only enjo ined th e appl i cation of the Ru le as to A.B. and there f ore d oes not in volve the risk of wi des pread confusion a mong a stat ewide po p ulation.40

si milar athletic ineligibility determinatio n and upheld a tria l cou rt ’ s injunction “ enjoining the defendants from enforcing the Com mittee ’ s ruling of ine lig ibility du ring the pend ency of the

su i t. ” University Inter

scholastic Le ague v. Green , 583 S.W.2d 907, 909 (T ex. App.

— Corpus Christi 1979, no w rit )

. I n light of this authority, we believe that the trial court could ha ve reasonably concluded that the pe ndi ng controversy concerned A.B. ’ s eligi b ility and that the temporary injunction would prese rve the statu s quo. See In re Motheral , No. 22

- 0106 (T e x. Feb. 18, 2022) (ori g. proceeding) ( denying request for mandamus relief asserting t hat injunction in this cas e altere d status q uo).

For all th e se reasons, we con clude that the trial court did no t abuse its discretion by ordering the temporary injuncti o n and ov errule the U IL Defendant s ’ se cond issue on
appea l. See State ex rel. Abney v. Miller , 128 S.W.2d 1134, 1 13 5 (Tex. 193 9) (noting that

“ tem p o rary injunction should remain in fo rce pending tri al ” if there is “ one ground ” supporting issuance of injun c tion ). 10

CONCLUSION

Having o verruled the UIL Defend ants ’ second issue and the por tion of their first iss ue as i t pertain s to the Plaintiffs ’ due

- course - of

- law claim, we affirm the portions of the trial
court ’ s order granting the temporary injunction and denying t he plea to the jur isdicti on as to the due

- course - of

- law claim. Having sus tained the remainder of the UIL Defendants ’ first issue, we

10 The UIL D efendants have s ubmitted a le tt er to this Court suggesting that the controvers y is moot because the bask etba ll season is now over for this year. However, the ruling by the SEC prohibit s A. B. from participating i n varsity sports for th e full academi c year , and there are sport s with seasons starting af ter the end of basketball season , including track . Furthe r, A.B. testi fied during t rial that he participated in track at his previous school. A ccording ly, we cann ot agree that the dispute is moot. M o reover, the UIL Defendants have not ot herwise moved to dismiss their appeal

.41

rev e rse the portions of the trial court ’ s order denying the plea to the jurisdiction as it pertained
to the Pla i ntiffs ’ free

- speech c laim, e qual

- pr otection claim, and requ est for declaratory relief

concern ing UIL Rule 4 43 a nd render judgme nt dismissing those c laims for want of jurisdiction.
See Tex. R. App. P. 43.2, .3; T e xas Parks & Wildlife Dep ’ t v. Ca llaway , 971 S .W.2d 145, 153 (T ex . App.

— Aus ti n 1998, no pet.)

. The case may resume in the trial court absent further a ction by the parties or by the Texas Sup r eme Court.

__________________________________________ Thomas J. Baker , Justice Before Just ices Goodwin, B aker, and Triana Concurring and Disse nting Opinion by Just ice Goodwin
Aff irmed in Part; Revers ed a nd Rend ered in Part Filed: May 6, 2022