the Texas Education Agency Mike Morath, Commissioner of Education in His Official Capacity And Doris Delaney, in Her Official Capacity v. Houston Independent School District

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, Appellants

v.

Houston Independent School District, Appellee

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY, NO. D-1-GN-19-003695,

THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

MEMORANDUM OPINION

Appellee Houston Independent School District (HISD) filed suit for injunctive

and declaratory relief against Appellants the Texas Education Agency (TEA), the Commissioner

of Education (the Commissioner), and Conservator Doris Delaney (collectively, Appellants).

Appellants filed a plea to the jurisdiction contending that the suit is barred by sovereign

immunity, and the district court implicitly denied the plea by granting a temporary injunction in

favor of HISD. For the following reasons, we affirm the district court’s order granting the

temporary injunction.

BACKGROUND

Beginning in 2016 and continuing through 2019, Appellants took and threatened

to take various actions against HISD under Chapters 39 and 39A of the Texas Education Code.

See Tex. Educ. Code §§ 39.001–.413 (Chapter 39, “Public School System Accountability”),

39A.001–.907 (Chapter 39A, “Accountability Interventions and Sanctions”). These actions,

which we discuss in more detail below, included appointing Delaney as a conservator for HISD,

suspending HISD’s search for a superintendent, initiating a Special Accreditation Investigation

(SAI) against HISD based on alleged violations of the Texas Open Meetings Act and other laws,

and threatening to lower HISD’s accreditation status and replace HISD’s elected Board of

Trustees with an appointed board of managers.

In 2019, HISD filed suit against Appellants, seeking declaratory and injunctive

relief. HISD sought declarations that: (1) the Commissioner has no legal authority to replace the

elected Board of Trustees with a board of managers; (2) Delaney has no legal authority to direct

HISD’s Board of Trustees and administration to suspend the superintendent search; (3) the

Commissioner has no legal authority to grant Delaney authority to oversee the governance of the

district; and (4) the Commissioner has no legal authority to impose any sanctions or interventions

on HISD based on the SAI. HISD also challenged the validity and applicability of TEA Rule

97.1061(g), which authorizes the Commissioner to order the appointment of a board of managers

to a school district if a campus within the district is assigned an “unacceptable” rating for a fifth

consecutive year. See 19 Tex. Admin. Code § 97.1061(g) (2020) (TEA, Interventions and

Sanctions for Campuses). HISD further sought a temporary injunction prohibiting: (1) the

Commissioner from appointing a board of managers, (2) Delaney from acting outside her lawful

authority, and (3) the Commissioner from imposing any sanctions or interventions on HISD

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based on the SAI. Finally, HISD asked the district court to deny any attempt by Appellants to

supersede the injunction on appeal.

Appellants filed a plea to the jurisdiction, asserting that HISD failed to plead any

valid ultra vires claims that would waive Appellants’ sovereign immunity from suit. Following a

hearing, the district court granted the temporary injunction, prohibiting: (1) the Commissioner

from appointing a board of managers to oversee the operations of HISD, (2) Delaney from acting

outside her lawful authority, and (3) the Commissioner from imposing any sanctions or

interventions on HISD based on the SAI. This interlocutory appeal followed.1

Plea to the jurisdiction

In their first issue, Appellants assert that the district court erred in denying their

plea to the jurisdiction because sovereign immunity bars HISD’s claims. According to

Appellants, “HISD tried to plead ultra vires claims, but these claims lack merit as a matter of

law, and some of the claims seek impermissible retrospective relief or are barred by statutory

finality provisions.”

Standard of review

“Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction

and thus is properly asserted in a plea to the jurisdiction.” Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). “The trial court must determine at its earliest

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The district court also denied the Commissioner the right to supersede the temporary

injunction during the pendency of this appeal. In this Court, the Commissioner filed a Rule 24.4

motion challenging that decision, see Tex. R. App. P. 24.4, and HISD filed a Rule 29.3 motion

requiring Appellants to comply with the temporary injunction while the appeal remains pending,

see id. R. 29.3. This Court granted both motions. See Texas Educ. Agency v. Houston Indep.

Sch. Dist., 609 S.W.3d 569, 578 (Tex. App.—Austin 2020, order [mand. pending]) (per curiam).

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opportunity whether it has the constitutional or statutory authority to decide the case before

allowing the litigation to proceed.” Id. Whether a trial court has subject-matter jurisdiction is a

question of law that we review de novo. Klumb v. Houston Mun. Emps. Pension Sys., 458

S.W.3d 1, 8 (Tex. 2015). “We construe the pleadings liberally in favor of the plaintiffs and look

to the pleaders’ intent” and “consider relevant evidence submitted by the parties when necessary

to resolve the jurisdictional issues raised, as the trial court is required to do.” Miranda, 133

S.W.3d at 226–27. Mirroring the standard of review in summary judgments, we take as true all

evidence favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts in its favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (2009).

Sovereign immunity “does not prohibit suit against a state official if the official’s

actions are ultra vires.” Honors Acad., Inc. v. Texas Educ. Agency, 555 S.W.3d 54, 68 (Tex.

2018) (citing Heinrich, 284 S.W.3d at 372). “To state an ultra vires claim, the plaintiff must

allege and prove that the named officials acted without legal authority or failed to perform a

ministerial act.” Id. (citing Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017)). “The fact that

the official has some limited discretion to act under the applicable law does not preclude an ultra

vires claim if the claimant alleges that the official exceeded the bounds of that authority, or the

conduct conflicts with the law itself.” Id. (citing Houston Belt & Terminal Ry. Co. v. City of

Houston, 487 S.W.3d 154, 163 (Tex. 2016)). “‘Ultra vires claims depend on the scope of the

state official’s authority,’ not the quality of the official’s decisions.” Honors Acad., Inc., 555

S.W.3d at 68 (citing Hall, 508 S.W.3d at 234). “Thus, it is not an ultra vires act for an official to

make an erroneous decision within the authority granted.” Id. Only when the decision is

unauthorized does an official act ultra vires. Hall, 508 S.W.3d at 243.

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Claims involving Delaney

We begin with HISD’s claims involving Delaney. In 2016, the Commissioner

sent a letter to HISD officials notifying them that the Commissioner was appointing Delaney as a

conservator to HISD “to ensure and oversee district-level support for Kashmere High School

(‘campus’) and implementation of the targeted improvement plan” for that campus, which had

received unacceptable performance ratings for several years. The letter indicated that Delaney’s

role as conservator would include: “[e]nsuring that a comprehensive needs assessment of the

campus is performed”; “[e]nsuring that an evaluation of the efficacy of the district’s resource

allocation to the campus for school years 2015–2016 and 2016–2017 is performed”; and

“[o]verseeing instructional delivery at the campus for school year 2016–2017.”

The Commissioner continued Delaney’s appointment as a conservator for

Kashmere High School in 2017, 2018, and 2019. However, on March 25, 2019, the

Commissioner sent HISD officials a letter purporting to “clarify” Delaney’s powers and duties,

including: “[e]nsuring and overseeing district-level support to low-performing campuses within

the district”; “[e]nsuring and overseeing the implementation of the district’s turnaround efforts to

support its low-performing campuses”; “[a]ttending board meetings and overseeing the

governance of the district”; and “[s]ubmitting monthly reports, including any special reports

requested by the Texas Education Agency.” On the same date that the Commissioner notified

HISD of Delaney’s expanded authority, Delaney sent the following “Conservator Directive” to

HISD officials, ordering HISD to temporarily suspend its “Superintendent search activities”:

Pursuant to Texas Education Code § 39A.003(c)(1), I am directing the Houston

Independent School District Board of Trustees and the administration of the

Houston ISD to immediately suspend its Superintendent search activities until the

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Agency has completed its special accreditation investigation (SAI # INV2019-10-

034). I am directing the Houston ISD Board of Trustees to take no further action

regarding the selection of a new Superintendent until the Board receives written

authorization from the Conservator to resume the search activities.

HISD acknowledges that the Commissioner had authority to appoint Delaney as a

campus-level conservator for Kashmere High School. However, in its second and third ultra

vires claims, HISD alleges that the Commissioner did not have authority to appoint Delaney as a

district-level conservator and that Delaney, consequently, did not have authority to suspend

HISD’s superintendent search. We agree.

Section 39A.002 of the Education Code provides that the Commissioner may

appoint a conservator to oversee the operations of a school district if the district is “subject to

commissioner action under Section 39A.001.” Tex. Educ. Code § 39A.002(7). A school district

is “subject to commissioner action under Section 39A.001” if the district fails to satisfy:

(a) certain accreditation criteria, (b) academic performance standards, or (c) any financial

accountability standard as determined by commissioner rule. Id. § 39A.001(1). It is undisputed

that HISD did not fail to satisfy any of those standards. Accordingly, the Commissioner lacked

authority under Section 39A.001 to appoint Delaney to oversee the operations of the entire

school district.

Nevertheless, Appellants contend that the Commissioner appointed Delaney not

under Section 39A.001 but under Sections 39A.101 and 39A.102, which allow for the

appointment of a campus-level conservator if a campus within a school district has been

identified as unacceptable for two consecutive school years. See id. §§ 39A.101, .102.

However, the Commissioner may appoint a campus-level conservator to “ensure and oversee

district-level support to low-performing campuses and the implementation of the updated

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targeted improvement plan” for those campuses. See id. § 39A.102(b). There is no statute that

grants a conservator appointed under Sections 39A.101 and 39A.102 the authority to oversee the

governance of an entire school district.

Similarly, there is no statute that gives a campus-level conservator the authority to

suspend a school district’s superintendent search. Appellants assert that Delaney has authority to

suspend the search under Section 39A.003, which provides that a conservator “may direct an

action to be taken by the principal of a campus, the superintendent of the school district, or the

board of trustees of the district.” Id. § 39A.003(c)(1). However, that section applies to district-

level conservators appointed under Section 39A.001, and as indicated above, the Commissioner

did not have authority to appoint a conservator under that section.

Prospective versus retrospective relief

Appellants also assert that the district court should have dismissed HISD’s second

and third claims involving Conservator Delaney because those allegations “challenge past

official conduct” and seek retrospective rather than prospective relief. See Morath v. Progreso

Indep. Sch. Dist., No. 03-16-00254-CV, 2017 WL 6273192, at *3 (Tex. App.—Austin Dec. 7,

2017, pet. denied) (mem. op.) (explaining that one jurisdictional requirement for maintaining

ultra vires suit is that “the remedy must be prospective in nature—i.e., compelling legal

compliance going forward, as opposed to awarding retrospective relief to remedy past

violations”). We disagree.

Sovereign immunity does not bar ultra vires suits that challenge past conduct by

government officials, so long as the relief requested seeks to bring those officials into

prospective compliance with statutory or constitutional provisions. See, e.g., Chambers–Liberty

Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 345, 349-55 (Tex. 2019) (challenging decision

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by government official to enter into lease agreement); Houston Belt & Terminal Ry. Co., 487

S.W.3d at 161, 164, 169 (challenging determinations by government officials that certain

railroads owed drainage charges); Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588

(Tex. 2015) (challenging government officials’ “clear and extended refusal” to accept

responsibility for repayment of phone company’s relocation costs); Texas Parks & Wildlife Dep’t

v. Sawyer Tr., 354 S.W.3d 384, 393–94 (Tex. 2011) (challenging government’s taking control of

streambed based on determination by government officials that streambed was navigable;

explaining that “the remedy of compelling return of land illegally held is prospective in nature”);

Heinrich, 284 S.W.3d at 369, 376–77 (challenging government officials’ decision to reduce

survivor benefits to widow of deceased police officer). In this case, HISD, in its second and

third ultra vires claims, is seeking injunctive relief to prohibit the Commissioner from directing

Delaney to oversee the governance of HISD and to prohibit Delaney from directing HISD to

suspend its search for a superintendent. Although these actions have already occurred, HISD is

seeking to prevent the Commissioner and Conservator Delaney from taking any further

unauthorized action against HISD and to comply with the law moving forward. Thus, the

requested relief is prospective rather than retrospective in nature and is not barred by sovereign

immunity. See Heinrich, 284 S.W.3d at 376–77.

To the extent that Appellants rely on this Court’s opinion in Progreso, that case

involved a school district’s attempts to undo already-final decisions by the Commissioner to

lower the district’s accreditation status for a prior school year and to appoint a board of managers

to oversee the district. 2017 WL 6273192, at *3. In this case, on the other hand, HISD filed suit

and obtained a temporary injunction before the Commissioner issued his final decision regarding

the district’s accreditation status and the appointment of a board of managers. As for the actions

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that had already occurred prior to the injunction, they are distinguishable from the actions in

Progreso that could not be undone. The Commissioner appointed Delaney to be a campus-level

conservator in 2016, and that appointment has been continued every year since then. We see no

legal impediment to allowing Delaney to remain in her lawful role as a campus-level

conservator, minus the expanded powers and duties that the Commissioner unlawfully assigned

to her in 2019. Similarly, Delaney suspended but did not terminate HISD’s superintendent

search. This action too can be undone. Injunctive relief would require her simply to lift the

suspension and allow the search to proceed. As HISD observes, to hold that prospective

injunctive relief is not available under these circumstances would “send[] the Commissioner the

clear message that he can—for any reason or no reason—appoint a conservator to oversee the

operations of any school district in Texas and simply ignore the Legislature’s requirements in

Section 39A.001 because his unlawful appointment would be unreviewable by any Texas court.”

Accordingly, we conclude that these claims are not barred by sovereign immunity.

Claims involving the appointment of a board of managers and the imposition of

sanctions against HISD

In January 2019, the Commissioner launched a SAI into HISD based on

complaints that members of HISD’s Board of Trustees “may have violated The Open Meetings

Act by deliberating district business prior to a regularly scheduled board meeting.” In March

2019, the Commissioner amended the SAI to add a complaint that HISD’s Board of Trustees

“may have violated the contract procurement process, competitive bidding, awarding, and

management of contracts.” Following the investigation, the Commissioner decided to lower

HISD’s accreditation status to “accredited-warned” and appoint a board of managers to HISD “to

exercise the powers and duties of the district’s board of trustees.” In HISD’s first and fourth

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ultra vires claims, it alleges that the Commissioner has no legal authority to appoint a board of

managers to HISD or impose any sanctions or interventions against the district based on the SAI.

We agree.

First, appellants contend that the Commissioner has authority to appoint a board

of managers based on Section 39A.906 of the Education Code, which provides that if a campus

within the district receives an unacceptable performance rating for the 2013–2014, 2014–2015,

and 2015–2016 school years, and if the campus further receives “an unacceptable performance

rating for the 2016–2017 and 2017–2018 school years, the commissioner shall apply the

interventions and sanctions authorized by Section 39A.111.” See Tex. Educ. Code

§ 39A.906(a), (b). Section 39A.111, in turn, provides that “[i]f a campus is considered to have

an unacceptable performance rating for three consecutive school years after the campus is

ordered to submit a campus turnaround plan under Section 39A.101,” the Commissioner shall

order either the appointment of a board of managers or closure of the campus. Id. § 39A.111.

The campus in question was Wheatley High School, which received an

unacceptable performance rating for the 2013–2014, 2014–2015, 2015–2016, and 2016-2017

school years. However, it is undisputed that Wheatley received no rating for the 2017–2018

school year.2 Thus, according to the plain language of the statute, Section 39A.906 does not give

the Commissioner authority to appoint a board of managers.3 Additionally, it is undisputed that

2

In 2018, the Commissioner decided not to assign accountability ratings to certain

schools that may have been affected by Hurricane Harvey.

3

Appellants contend that without the so-called “Harvey Provision,” Wheatley would

have received an unacceptable academic performance rating for the 2017–2018 school year.

Thus, appellants urge that we should look beyond the plain language of the statute to the

legislative intent, which appellants claim is focused not on the particular years in which a

campus received unacceptable performance ratings but on whether those years were

“consecutive.” However, “[w]e must enforce the statute ‘as written’ and ‘refrain from rewriting

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Wheatley High School was never ordered to submit a campus turnaround plan, which is a

statutory prerequisite for appointing a board of managers based on a campus receiving three

consecutive years of unacceptable performance ratings. See id. § 39A.111.

Next, appellants assert that the Commissioner has authority to appoint a board of

managers under Section 39A.006, which provides that “[i]f for two consecutive school years,

including the current school year, a school district has had a conservator or management team

assigned, the commissioner may appoint a board of managers to exercise the powers and duties

of the board of trustees of the district.” Id. § 39A.006(b). According to the Commissioner,

because Delaney served as a conservator for more than two consecutive school years, the

Commissioner had authority to appoint a board of managers to the district. However, as

explained above, Delaney was assigned in 2016 specifically to Kashmere High School, not to the

entire school district. Section 39A.006, which is found in the same subchapter as the previously

discussed Sections 39A.001 and 39A.003, applies to district-level conservators, not campus-level

conservators such as Delaney. Accordingly, Section 39A.006 does not give the Commissioner

the authority to appoint a board of managers in this case.

Finally, appellants assert that the Commissioner is authorized to appoint a board

of managers and impose sanctions and interventions against the district (including the

appointment of Delaney as a district-wide conservator) under Section 39.057(d), which provides

that “[b]ased on the results of a special accreditation investigation, the commissioner may:

text that lawmakers chose.’” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)

(plurality op.) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009));

King v. Paxton, 576 S.W.3d 881, 889 (Tex. App.—Austin 2019, pet. denied). In Section

39A.906(b), the legislature chose to require that a campus receive an unacceptable performance

rating for both the “2016–2017 and 2017–2018 school years” before a board of managers could

be appointed. That did not occur here.

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(1) take appropriate action under Chapter 39A; (2) lower the school district’s accreditation status

or a district’s or campus’s accountability rating; or (3) take action under both Subdivisions

(1) and (2).” Id. § 39.057(d). We disagree.

Section 39.057(d) authorizes the Commissioner to take “appropriate” action under

Chapter 39A. Thus, we must look to that chapter to determine what actions are appropriate. The

dissent relies on Section 39A.001, which provides that “[t]he commissioner shall take any of the

actions authorized by this subchapter to the extent the commissioner determines necessary if . . .

the commissioner considers the action to be appropriate on the basis of a special accreditation

investigation under Section 39.057.” Id. § 39.001(2). However, for the appointment of a board

of managers to be “authorized by this subchapter,” the requirements of Section 39A.004 must be

satisfied. That section provides for the appointment of a board of managers only if the district

meets at least one of three prerequisites: (1) a current accreditation status of accredited-warned or

accredited-probation, (2) a failure to satisfy any standard under Section 39.054(e) (relating to

annual performance reviews), or (3) a failure to satisfy financial accountability standards as

determined by commissioner rule. Id. § 39A.004. None of those prerequisites has been satisfied

in this case. Although the Commissioner has threatened to lower HISD’s accreditation status to

“accredited-warned,” based on the results of the SAI, that action has not yet occurred.

Moreover, we agree with HISD that the SAI in this case cannot be used to impose

sanctions on HISD, including the lowering of HISD’s accreditation status, the appointment of a

board of managers, and the appointment of Delaney as a district-wide conservator. Section

39.058 requires the adoption of “written procedures for conducting special accreditation

investigations,” and agency staff “must follow the procedures in conducting the special

accreditation investigation.” Id. § 39.058(a). One such procedure is that “[b]efore issuing a

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report with its final findings, the agency must provide a person or entity the agency finds has

violated a law, rule, or policy an opportunity for an informal review by the commissioner or a

designated hearing examiner.” Id. § 39.058(b). The informal review in this case was neither

conducted by the Commissioner, nor did he designate a hearing examiner to conduct this

informal review. Instead, it was conducted by Dr. Jeff Cottrill, Deputy Commissioner of

Governance and Accountability for TEA. However, the statute does not provide for an informal

review by the Commissioner’s delegate or other representative. The informal review must be by

the “commissioner or a designated hearing examiner.” Id. The Education Code defines

“Commissioner” as “the commissioner of education.” Id. § 5.001(3). Cottrill is not the

commissioner of education.

Nor is Cottrill a “designated hearing examiner.” The Education Code does not

define the term “designated hearing examiner.” However, the term “hearing examiner” is

considered synonymous with the term “administrative law judge.” See Administrative Law

Judge, Black’s Law Dictionary (11th ed. 2019) (“An official who presides at an administrative

hearing and who has the power to administer oaths, take testimony, rule on questions of

evidence, and make factual and legal determinations.” . . . “Also termed hearing examiner;

hearing officer; trial examiner”); see also Slama v. Landmann Jungman Hosp., 654 N.W.2d 826,

828 (S.D. 2002) (“The term ‘hearing examiner’ has a plain meaning identical to the term

“administrative law judge.”). Moreover, hearing examiners, in order to be certified to conduct

hearings, must be licensed to practice law in the State of Texas. See 19 Tex. Admin. Code

§ 157.41 (2020) (TEA, Certification Criteria for Independent Hearing Examiners); cf. Tex. Educ.

Code § 21.252(a) (providing that hearing examiner certified under separate chapter of Education

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Code “must be licensed to practice law in this state”). Cottrill is not a lawyer and thus is not

licensed to practice law.

Additionally, HISD claims that Cottrill “provided no hearing at which the

evidence regarding TEA’s preliminary report could [be] examined” and that “TEA has refused to

disclose much of the evidence it claims it has to support the allegations in its preliminary and

final reports.” The dissent believes that no such hearing is required. However, by providing that

an informal review must be conducted by either the Commissioner or a “designated hearing

examiner,” we conclude that the statute requires some form of hearing in which HISD can

examine and challenge the evidence against it, particularly where, as here, Appellants allege that

HISD’s Board of Trustees should be removed for violating the law. Cf. Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a

deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing

appropriate to the nature of the case.’” (quoting Mullane v. Central Hanover Bank & Tr. Co.,

339 U.S. 306, 313 (1950))). Taking as true HISD’s allegations that the SAI did not comply with

the requirements of Section 39.058, we conclude that HISD has alleged a viable ultra vires claim

regarding the Commissioner’s use of the SAI to impose sanctions on HISD and thus the claim is

not barred by sovereign immunity.

Statutory finality provisions

Appellants further assert that the Commissioner’s decisions to lower HISD’s

accreditation status and appoint a board of managers are “insulated” from judicial review

because of what appellants characterize as “statutory finality provisions,” i.e., laws passed by the

legislature “to limit judicial review of executive actions.” See Morath v. Sterling City Indep.

Sch. Dist., 499 S.W.3d 407, 412 (Tex. 2016) (plurality op.). Appellants cite to three provisions:

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Section 157.1123(f) of the Administrative Code, Section 39.151 of the Education Code, and

Section 39A.116 of the Education Code.

Section 157.1123, which applies to SAIs, provides that “[a] final report,

assignment, determination, or decision issued following an informal review is final and may not

be appealed, except as provided by law or rule.” 19 Texas Admin. Code § 157.1123(f) (2020)

(TEA, Informal Review). However, as HISD observes, this provision is an agency rule, not a

statute passed by the legislature. Although the legislature has authority to limit the scope of

judicial review of agency actions, see Sterling City, 499 S.W.3d at 412, we cannot conclude that

an administrative agency has that same authority over the judiciary, see In re State Bd. for

Educator Certification, 452 S.W.3d 802, 808–09 (Tex. 2014) (orig. proceeding) (discussing

importance of separation of powers).

As for Sections 39.151 and 39A.116 of the Education Code, neither of those

statutes applies to the Commissioner’s decisions in this case. Section 39.151 provides

procedures for challenging Commissioner decisions “relating to an academic or financial

accountability rating,” Tex. Educ. Code § 39.151(a), and provides that such decisions, once final,

may not be challenged or appealed, id. § 39.151(d), (e). The section does not apply to the

Commissioner’s decisions regarding a district’s accreditation status, which is governed by

Section 39.052. Section 39A.116 applies to the subchapter relating to campus turnaround plans

and provides that “[a] decision by the commissioner under this subchapter is final and may not

be appealed.” Id. § 39A.116. HISD is not challenging any decision by the Commissioner

relating to campus turnaround plans. Thus, section 39A.116 is also inapplicable here.

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Rule challenge

TEA Rule 97.1061(g) provides, “If a campus is assigned an unacceptable rating

. . . for a fifth consecutive year, the commissioner shall order the appointment of a board of

managers to govern the district or closure of the campus.” 19 Tex. Admin. Code § 97.1061(g).

HISD alleges that the threatened application of this rule would impose “unlawful sanctions and

interventions” on the district because the rule “conflicts with the limitations the Texas

Legislature placed on the Commissioner in Texas Education Code §§ 39A.111, 39A.906.”

The dissent concludes that the district court did not have jurisdiction over HISD’s

rule challenge because “the challenged rule and its threatened application do not interfere with or

impair any legal rights or privileges of HISD as a matter of law.” See Tex. Gov’t Code

§ 2001.038(a) (providing that district court has jurisdiction to consider rule challenge if “the rule

or its threatened application interferes with or impairs, or threatens to interfere with or impair, a

legal right or privilege of the plaintiff”). This claim was not made by Appellants in their plea to

the jurisdiction and thus HISD did not have an opportunity to address it in the court below.

Nevertheless, to the extent it implicates the district court’s subject-matter jurisdiction and may be

raised for the first time on appeal, we find it to be without merit.

Section 39A.111 requires the Commissioner to appoint a board of managers to

govern a school district if a campus within the district “is considered to have an unacceptable

performance rating for three consecutive school years after the campus is ordered to submit a

campus turnaround plan.” Tex. Educ. Code § 39A.111. This provision applies only “to the

academic performance ratings issued to public school campuses beginning with the 2015–2016

school year.” Act of May 31, 2015, 84th Leg., R.S., ch. 1046, § 19, 2015 Tex. Gen. Laws 3649,

3662. For a campus turnaround plan to be ordered, the campus must be “identified as

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unacceptable for two consecutive school years.” Tex. Educ. Code. 39A.101. Thus, under

Section 39A.111, the earliest that the Commissioner could appoint a board of managers to

govern a school district would have been after the 2019–2020 school year, assuming that: (1) a

campus received an unacceptable performance rating in the 2015–2016 and 2016–2017 school

years, (2) a campus turnaround plan was immediately ordered, and (3) the campus received

unacceptable performance ratings the following three consecutive school years (2017–2018,

2018–2019, and 2019–2020). When the above requirements are not satisfied (for example, if a

campus received unacceptable performance ratings for consecutive school years that began prior

to 2015 or only two consecutive school years after 2015), Section 39A.906 of the Education

Code provides for less severe “transitional” interventions and sanctions to be applied to the

underperforming campus rather than the entire school district. See id. § 39A.906.

HISD alleges that the requirements under Section 39A.111 for a board of

managers to be appointed to the entire district were not satisfied in this case. Thus, according to

HISD, Rule 97.1061(g), to the extent that it allowed the Commissioner to appoint a board of

managers to HISD, circumvents the above statutory requirements, thereby subjecting the district

to unlawful sanctions and interventions and infringing on its legal rights. We conclude that these

allegations are sufficient to confer jurisdiction on the district court to consider the merits of

HISD’s rule challenge. See Miranda, 133 S.W.3d at 226 (explaining that in jurisdictional

inquiries, courts are to “construe the pleadings liberally in favor of the plaintiffs and look to the

pleaders’ intent”); Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 743-45

(Tex. App.—Austin 2014, pet. dism’d) (discussing how “legal right or privilege” requirement in

section 2001.038(a) is construed broadly and in manner similar to standing requirement); see

also Hegar v. Ryan, LLC, No. 03-13-00400-CV, 2015 WL 3393917, at *6 (Tex. App.—Austin

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May 20, 2015, no pet.) (mem. op.) (rejecting assertion that plaintiffs failed to allege or prove that

challenged rule threatened its legal rights or privileges).

We overrule Appellants’ first issue.

Temporary injunction

In their second issue, Appellants assert that because the district court lacked

jurisdiction over HISD’s claims, it abused its discretion in granting a temporary injunction.

According to Appellants, “HISD failed to demonstrate a cause of action against any defendant, it

had no right of relief, and the actions HISD attempted to enjoin would help HISD achieve its

mission of serving students, not cause the district any harm.”

“A temporary injunction’s purpose is to preserve the status quo of the litigation’s

subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204

(Tex. 2002). Thus, “the applicant is not required to establish that [it] will prevail on final trial,

the only question before the trial court is whether the applicant is entitled to preservation of the

status quo pending trial on the merits.” Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)

(internal citations omitted). “To obtain a temporary injunction, the applicant must plead and

prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to

the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.” Butnaru,

84 S.W.3d at 204.

“Whether to grant or deny a temporary injunction is within the trial court’s sound

discretion.” Id. “A reviewing court should reverse an order granting injunctive relief only if the

trial court abused that discretion.” Id. A trial court abuses its discretion when it acts arbitrarily,

unreasonably, and without reference to guiding rules or principles, or misapplies the law to the

established facts of the case. See Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019); Walker v.

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Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241 (Tex. 1985).

Our analysis of the jurisdictional inquiry is dispositive of the first two elements.

As explained above, HISD has alleged viable ultra vires claims against Appellants and has a

probable right to the relief sought because Appellants’ proposed actions are not authorized by the

Education Code. Furthermore, HISD will suffer a probable, imminent, and irreparable injury in

the interim if Appellants take those actions. Appellants argue that there is no injury because

HISD is “struggling” under the status quo and the Commissioner’s actions will “assist” HISD in

fulfilling its duties. However, the injury to HISD stems from the loss of local control over the

governance of the district. The elected Board of Trustees “have the exclusive power and duty to

govern and oversee the management of the public schools of the district.” Tex. Educ. Code

§ 11.151(b). “All powers and duties not specifically delegated by statute to the agency or to the

State Board of Education are reserved for the trustees, and the agency may not substitute its

judgment for the lawful exercise of those powers and duties by the trustees.” Id. Absent an

injunction, the Commissioner would be able to immediately and irreparably remove the elected

Board of Trustees and appoint a board of managers to govern the district. The Commissioner

also would be able to immediately lower HISD’s accreditation status, and Delaney would be able

to continue the suspension of HISD’s search for a superintendent, which would cause further

injury to HISD. Accordingly, the third element for injunctive relief is also satisfied here. On

this record, we cannot conclude that the district court abused its discretion in granting the

temporary injunction.

We overrule Appellants’ second issue.

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CONCLUSION

For the above reasons, we conclude that the district court has subject-matter

jurisdiction over HISD’s ultra vires claims and rule challenge and that the district court did not

err in denying the plea to the jurisdiction or abuse its discretion in granting the temporary

injunction. Accordingly, we affirm the district court’s order.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Baker and Triana

Dissenting Opinion by Justice Baker

Affirmed

Filed: December 30, 2020

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