University of Texas at Austin President Jay Hartzell v. S.O.

Supreme Court of Texas

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No. 20-0811

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University of Texas at Austin President Jay Hartzell, et al.,

Petitioners,

v.

S.O.,

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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~ consolidated for oral argument with ~

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No. 20-0812

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Texas State University President Denise M. Trauth, et al.,

Petitioners,

v.

K.E.,

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

═══════════════════════════════════════

Argued September 20, 2022

JUSTICE LEHRMANN delivered the opinion of the Court, in which

Chief Justice Hecht, Justice Busby, Justice Bland, Justice Huddle, and

Justice Young joined.

JUSTICE BOYD filed an opinion concurring in the judgment.

JUSTICE BLACKLOCK filed a dissenting opinion, in which Justice

Devine joined.

The principal issue in these two ultra vires suits, which we

consolidated for oral argument, is whether state university officials have

the statutory authority to revoke a former student’s degree upon

concluding that the former student engaged in academic misconduct in

pursuit of that degree. The same court of appeals held in both suits that

no such authority exists and affirmed the trial courts’ denials of the

university officials’ jurisdictional pleas as to the pertinent claims. We

disagree and reverse those portions of the court’s judgments. Because

no other claims remain pending in 20-0811, we dismiss that case for lack

of jurisdiction. However, we agree with the court of appeals that the

due-process claims in 20-0812 may continue. Accordingly, we affirm

that judgment in part and remand the case to the trial court for further

proceedings.

I. Background

A. 20-0812

K.E. is a former graduate student at Texas State University. She

enrolled in the doctoral program of the University’s biology department

in 2006. Her dissertation involved analyzing data collected in the field

2

using a leaf gas analyzer called a LiCor instrument. K.E. presented and

successfully defended her dissertation, and in May 2011 the University

conferred on K.E. a Doctor of Philosophy (Ph.D.) with a major in aquatic

resources.

After K.E. graduated, while she and her doctoral advisor were

collaborating on a journal article, the advisor found inconsistencies in

K.E.’s dissertation research data that led the advisor to believe K.E. had

manipulated the data. Unsatisfied with K.E.’s explanations for both the

discrepancies and some missing original LiCor data files, the advisor

notified Dr. Michael Blanda, Assistant Vice President for Research and

Federal Relations, of her suspicion that K.E. had falsified the data and

the basis for that suspicion. K.E. submitted a response to Dr. Blanda

through her attorney. Based on those submissions, the University

commenced an investigation into the advisor’s allegations of academic

misconduct. That investigation proceeded as follows:

• Dr. Blanda appointed a three-member Committee of Inquiry.

• The committee held a meeting with K.E., whose attorney and

forensic expert were present. K.E. submitted additional

documentation to the committee after the meeting.

• The committee submitted a detailed report recommending a

full investigation, and K.E. submitted a written response to

the report.

• Based on those submissions, the University formally charged

K.E. with “misconduct in research and scholarship” while a

student at the University.

• K.E. was sent written notice of the formal charges, the

procedures to be followed by the three-member Investigating

Committee, and K.E.’s right to appeal.

• The Investigating Committee conducted a two-day hearing

with a court reporter present. K.E. was represented by

3

counsel, called witnesses, cross-examined witnesses, and

submitted written documents for the committee’s

consideration.

• The Investigating Committee found by a preponderance of the

evidence that K.E. committed misconduct in research and

scholarship by falsifying and fabricating data in her

dissertation, and it recommended that the University revoke

her Ph.D.

• K.E. appealed the findings to University President Denise M.

Trauth, who affirmed the decision and recommended to the

Texas State University System Board of Regents that it revoke

K.E.’s degree at its quarterly meeting.

• K.E. submitted a written dispute of the recommendation to the

Board, and at her attorney’s request the Board heard the

appeal in executive session.

• The Board affirmed Trauth’s recommendation to revoke K.E.’s

degree.

Following the Board’s action, Trauth notified K.E. that a notation

of that action had been placed on her transcript, and Trauth requested

that K.E. cease representing herself as holding a Ph.D. from the

University and return her doctoral diploma to the registrar. K.E. then

sued Trauth, Blanda, the registrar, and the members of the Board of

Regents in their official capacities. 1 In her live pleading, she asserted

ultra vires claims against the University officials based on their alleged

lack of authority to revoke her degree. She further claimed that the

process the University officials employed to revoke the degree did not

1 K.E. sued several other defendants that she later nonsuited.

4

afford her due course of law under the Texas Constitution. 2 She sought

declaratory and injunctive relief, including an order requiring the

University officials to reinstate her degree. 3

The University officials filed a plea to the jurisdiction on

sovereign-immunity grounds, arguing that they had legal authority to

revoke K.E.’s degree for cause and that K.E. failed to plead a viable

constitutional claim in light of the process she was afforded. In

response, K.E. asserted that Texas law does not authorize revocation of

her degree “outside of a court of competent jurisdiction” and that the

University officials must seek contractual remedies in court “because a

Ph.D. is a protected property and liberty interest.” She alternatively

argued that, even if the University officials had authority to revoke her

degree, she was subjected to “fundamentally flawed proceedings” that

2 Specifically, K.E. alleged that: the degree-revocation process was

“conducted in an ad hoc manner” that did not give her adequate notice as to

how the proceedings against her would be handled; two of the three members

of the Investigating Committee were not impartial, or at least their presence

created the appearance of impropriety; the University “failed to preserve

forensically sound evidence and have in place a coherent system to centralize

the data that was at issue in this case”; the burden of proof—preponderance of

the evidence—was too low; the hearing included no criteria for the

admissibility of evidence; and the appellate review process was insufficient.

3 In addition to declarations that the University officials lacked

authority to revoke her degree and violated her due-process rights, K.E. sought

declarations that: the 2006 University Catalog in effect when K.E. was a

graduate student constitutes a binding contract with the University; the

provisions of that catalog governing disciplinary procedures are

unconstitutional; and the University may not enforce any rules amended,

modified, or adopted after she graduated. The court of appeals did not discuss

these specific requests, nor do the parties independently address them in this

Court. Accordingly, neither will we.

5

denied her due course of law. The trial court denied the plea, and the

University officials appealed. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8) (authorizing an interlocutory appeal from an order that

grants or denies a governmental unit’s plea to the jurisdiction).

A divided court of appeals affirmed, holding that K.E.’s pleadings

alleged an ultra vires claim against the University officials that was not

barred by sovereign immunity. 613 S.W.3d 222, 232 (Tex. App.—Austin

2020). Examining the statutes governing the Texas State University

System, the court of appeals held that they neither expressly nor

impliedly authorize revocation of a student’s degree after it has been

conferred. Id. at 228–31. 4 The court also rejected the University

officials’ argument that K.E. sought only retrospective relief, which

would foreclose an otherwise proper ultra vires claim. Id. at 231–32.

Justice Kelly dissented, opining that the Board “has the authority to

revoke a former student’s degree for academic dishonesty so long as, as

relevant here, it affords due process under the United States

Constitution and due course of law under the Texas Constitution.” Id.

at 233 (Kelly, J., dissenting).

B. 20-0811

S.O. enrolled in The University of Texas in 2003 as a graduate

student working toward a Ph.D. in chemistry. Her dissertation research

involved efforts to develop multistep synthetic routes to natural

products, including lundurine products. S.O. presented and successfully

4The court of appeals did not address the University officials’ argument

that K.E. failed to plead a valid constitutional claim.

6

defended her dissertation, and in May 2008 the University conferred on

S.O. a Ph.D.

In 2012, S.O.’s graduate advisor, Professor Stephen Martin,

brought a complaint against her for academic misconduct relating to

some of the data reported in her dissertation. 5 The University formed a

committee to investigate the allegations, and the committee concluded

2–1 that S.O. engaged in scientific misconduct. The committee’s

findings were referred to S.O.’s dissertation committee to, “at a

minimum, ensure that the dissertation reflects the actual results of her

research.” With one member declining to participate, the dissertation

committee determined that S.O.’s degree was improperly awarded and

should be revoked. According to S.O., she “was not accorded notice of

the cause or causes presented to the dissertation committee,” “was not

provided with the materials that the dissertation committee considered

in reaching its decision,” and “was not provided the opportunity to be

heard by the dissertation committee to address and defend the integrity

of her dissertation.”

In February 2014, S.O. was informed of the decision to revoke her

degree and immediately filed suit, alleging that the University’s actions

violated her constitutional rights and seeking a temporary restraining

5 According to S.O.’s petition, in 2011, Martin submitted a journal

article for publication that used S.O.’s research as well as a post-doctoral

researcher’s related work; Martin was listed as lead author, and S.O. and the

post-doc were listed as co-authors. Another graduate student later conducted

experiments indicating that some of the reported data in the article were

inaccurate, ultimately leading Martin to retract the article and make the

complaint against S.O.

7

order to prevent any disciplinary action against her. Before the TRO

hearing, the parties entered into a Rule 11 agreement specifying that

the University would restore S.O.’s degree while the parties discussed

“additional process.” Shortly thereafter, the University notified S.O.

that it was initiating the student-discipline process to address the

investigative committee’s findings and the dissertation committee’s

subsequent recommendation. Included with the notice was a copy of the

University’s rules pertaining to student conduct and discipline. The

University then filed a plea to the jurisdiction on mootness grounds, the

trial court granted the plea, and the court of appeals affirmed. [S.O.] v.

Univ. of Tex. at Austin, No. 03-14-00299-CV, 2015 WL 5666200, at *5

(Tex. App.—Austin Sept. 23, 2015, no pet.).

The University subsequently notified S.O. that a disciplinary

hearing was scheduled for January 29, 2016. The notice stated that S.O.

was charged with violating sections of the Board of Regents’ and the

University’s Rules and Regulations governing academic dishonesty

based on allegations that she “falsified data and modified Nuclear

Magnetic Resonance (NMR) spectra” by “underreporting and

misreporting NMR signals for three compounds . . . in [her] doctoral

dissertation.” The information contained in the notice included:

• an advisory that S.O. was entitled to a private hearing, to

appear in person and have an advisor present, to challenge the

persons designated to hear the charges, to know the identity

of adverse witnesses and to cross-examine those witnesses, to

present witnesses and evidence on her own behalf, and to

appeal under Section 11-804 of the University’s Institutional

Rules;

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• the identity of the members of the Student Conduct Board

Panel designated to hear the charges and S.O.’s right to

challenge any of the members for lack of fairness or objectivity;

• the identity of the witnesses the University may call to testify;

• a list of the documentary evidence the University may furnish

in the proceeding; and

• the deadline for S.O. to furnish the Dean of Students with a

list of witnesses who would testify on her behalf and copies of

evidence she would offer at the hearing.

After the hearing was rescheduled for March 4, 2016, S.O. filed

this suit against several University officials for declaratory and

injunctive relief. 6 In pertinent part, S.O. sought declarations that the

officials “are not authorized to revoke a degree” and that the University’s

rules governing disciplinary proceedings do not satisfy due process. She

also sought an injunction preventing the University from proceeding

with the disciplinary hearing. The University officials responded with

a plea to the jurisdiction. After a combined hearing, the trial court

entered an agreed order providing that the disciplinary hearing would

be held before a single hearing officer and that “Defendants will abate

any formal action resulting from a decision in the disciplinary process

for thirty (30) days to provide Plaintiff an opportunity to request

additional injunctive relief, should she choose to do so, at the conclusion

of the internal appeal of the disciplinary process.” The court expressly

reserved ruling on the plea to the jurisdiction.

6 The named defendants in S.O.’s live pleading, all sued in their official

capacities, are the President of the University, the University Registrar, the

Dean of Students, and the members of the UT System’s Board of Regents.

9

The disciplinary hearing was rescheduled several times but

ultimately never commenced. As a result, in October 2016 the trial court

granted the University officials’ plea to the jurisdiction on the ground

that S.O.’s claims were not ripe for review. The court of appeals reversed

in part, holding that a justiciable controversy exists with respect to

S.O.’s claim for a declaratory judgment that the University officials are

acting ultra vires because they lack authority to revoke her degree. S.O.

v. Fenves, No. 03-16-00726-CV, 2017 WL 2628072, at *4 (Tex. App.—

Austin June 15, 2017, no pet.).

On remand, S.O. filed an amended petition seeking several

declarations, including declarations that the University officials lack

express or implied authority to revoke a former student’s degree. 7 She

also filed a motion for summary judgment, arguing that she was entitled

to the requested declaratory relief as a matter of law. The University

officials responded with a second plea to the jurisdiction, arguing that

they “have implied authority to revoke a diploma that a student obtains

in violation of their Institutional Rules, as long as [they] afford adequate

due process.” The officials contended that S.O.’s other claims for

declaratory relief were also barred by sovereign immunity.

7 S.O. also requested declarations that S.O. has a constitutionally

protected property and liberty interest in her Ph.D.; the 2003 University

Catalog in effect when S.O. was a graduate student constitutes a binding

contract with the University; enforcement against S.O. of any rules amended,

modified, or adopted after she graduated would be unconstitutional; and the

2003 University Catalog as written for disciplinary proceedings is

unconstitutional because it does not satisfy due process or provide S.O. equal

protection under the law.

10

The trial court denied the plea to the jurisdiction “as to [S.O.’s]

ultra vires claim regarding whether [the officials] are acting without

authority to revoke a degree” but granted the plea as to all other claims

for relief. The trial court also granted S.O.’s motion for summary

judgment as to the requests for a declaratory judgment that the officials

lack express and implied authority to revoke her degree. Finally, the

trial court denied S.O.’s motion for attorney’s fees.

As in 20-0812, the same divided court of appeals affirmed, holding

that S.O. asserted a cognizable ultra vires claim against the University

officials—specifically, that they acted without legal authority by

instituting an internal proceeding to decide whether to revoke her

degree—that is not barred by sovereign immunity. 613 S.W.3d 244, 256

(Tex. App.—Austin 2020). Examining the statutes governing The

University of Texas System, the court of appeals held that they neither

expressly nor impliedly authorize revocation of a student’s degree after

it has been conferred. Id. at 253–56. The court also rejected the

University officials’ contention that the ultra vires claims are not ripe

unless and until S.O.’s degree is revoked. Id. at 256–58. 8 Justice Kelly

8 S.O. argued on cross-appeal that the trial court abused its discretion

in failing to award her attorney’s fees and erred in denying her motion for

summary judgment on the two requests for declaratory relief involving

whether the 2003 University Catalog was a binding contract with the

University and whether the University could enforce against S.O. any

disciplinary rules enacted or amended after her graduation. The court of

appeals overruled both issues, 613 S.W.3d at 259–60, and S.O. does not seek

review of those rulings in this Court. As to the trial court’s grant of the

University officials’ plea to the jurisdiction on S.O.’s constitutional claims, S.O.

did not challenge those portions of the trial court’s judgment in the court of

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again dissented, opining that the System’s Board of Regents “has the

authority to revoke a former student’s degree for academic dishonesty

so long as, as relevant here, it affords due process under the United

States Constitution and due course of law under the Texas

Constitution.” Id. at 260–61 (Kelly, J., dissenting). The dissent also

agreed with the University officials that S.O.’s claims regarding the

officials’ authority to revoke her degree are unripe. Id. at 261.

We granted the University officials’ petitions for review in both

20-0811 and 20-0812 and consolidated the cases for oral argument.

II. Ultra Vires Framework

Although sovereign immunity generally bars lawsuits against

state officials acting in their official capacities, the doctrine does not

apply to suits seeking to require such officials to comply with the law.

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). To

maintain an ultra vires suit, the claimant must “allege, and ultimately

prove, that the officer acted without legal authority or failed to perform

a purely ministerial act.” Id. On meeting that burden, the claimant is

entitled to “prospective injunctive relief, as measured from the date of

injunction.” Id. at 376. Retrospective relief, however, remains barred

by immunity absent a legislative waiver. Id. at 376–77. Whether a

claimant has alleged a valid ultra vires claim is a question of law that

we review de novo. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927,

929 (Tex. 2010).

appeals, which recognized that the constitutional claims were not before it. Id.

at 252 n.5.

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III. Statutory Authority

The University officials, as officials of the Texas State University

System and Texas State University (20-0812) and of The University of

Texas System and The University of Texas at Austin (20-0811), derive

their “legal authority” from the statutes establishing and governing the

Systems and their component institutions. The Systems in turn may

exercise “powers that the Texas Legislature has expressly conferred

upon [them] and those implied powers that are reasonably necessary to

carry out [their] statutory duties.” Tex. State Bd. of Exam’rs of Marriage

& Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017)

(generally describing the scope of a state administrative agency’s

authority). Relatedly, they may adopt rules that “are authorized by and

consistent with [their] statutory authority.” Id. (citations omitted).

However, they may not “erect and exercise . . . a new and additional

power or one that contradicts the statute, no matter that the new power

is viewed as being expedient for administrative purposes.” Pub. Util.

Comm’n of Tex. v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex. 1995).

A. Governing Statutes and Board Rules

The Texas Education Code grants expansive authority to public

institutions of higher education and their governing boards to manage

their affairs and meet their educational obligations. Generally

speaking, a governing board “is expected to preserve institutional

independence,” “shall enhance the public image of each institution

under its governance,” and “shall nurture each institution under its

governance to the end that each institution achieves its full potential

within its role and mission.” TEX. EDUC. CODE § 51.352(a)(1), (2), (4).

13

Further, “each institution of higher education has the general

responsibility to serve the public and, within the institution’s role and

mission to,” among other things, “provide for scientific, engineering,

medical, and other academic research;” “protect intellectual exploration

and academic freedom;” and “strive for intellectual excellence.” Id.

§ 51.354(4)–(6).

Other statutes apply to specific university systems and their

respective component institutions. Relevant here, the Education Code

vests the “organization, control, and management” of the Texas State

University System in a nine-member Board of Regents. Id. § 95.01. The

Texas State Board “is responsible for the general control and

management of the universities in the system and may erect, equip, and

repair buildings; purchase libraries, furniture, apparatus, fuel, and

other necessary supplies; employ and discharge . . . employees; fix the

salaries of the persons employed; and perform such other acts as in the

judgment of the board contribute to the development of the universities

in the system or the welfare of their students.” Id. § 95.21(a). In

carrying out that responsibility, the Board may “promulgate and enforce

such rules, regulations, and orders for the operation, control, and

management of the university system and its institutions as the board

may deem either necessary or desirable.” Id. § 95.21(b). Among other

powers, the Board “may determine the conditions on which students

may be admitted to the universities, the grades of certificates issued, the

conditions for the award of certificates and diplomas, and the authority

by which certificates and diplomas are signed.” Id. § 95.24.

14

Similarly, the Education Code vests the government of the UT

System in a nine-member Board of Regents. Id. § 65.11. The UT Board

“is authorized and directed to govern, operate, support, and maintain

each of the [System’s] component institutions”; “to prescribe for each of

the component institutions courses and programs leading to such

degrees as are customarily offered in outstanding American

universities”; and “to award all such degrees.” Id. § 65.31(a)–(b). In

carrying out those responsibilities, the Board may “promulgate and

enforce such other rules and regulations for the operation, control, and

management of the university system and the component institutions

thereof as the board may deem either necessary or desirable.” Id.

§ 65.31(c).

Exercising their authority to delegate a power or duty to a

designated agent, id. §§ 65.31(g), 95.21(b), the UT and Texas State

Boards adopted rules relevant to these proceedings. The Texas State

System’s rules delegate to the president of each component institution

“authority to grant degrees, certificates and diplomas upon the

recommendation of the respective faculty, deans, and provosts.” Tex.

State Univ. Sys., Rules and Regulations, ch. 1, ¶ 2.41 (amended 2019).

The rules also expressly govern degree revocation in cases of “fraud,

mistake, or academic dishonesty”:

Revocation. The Board hereby provides notice that the

granting of any degrees, certificates or diplomas is

specifically conditioned upon the truth of representations

made by the student in the admission process and also

upon honesty in completion of his or her academic work.

When the Board determines that a degree, certificate,

diploma, or admission to the institution and/or the

academic program was obtained through fraud, mistake, or

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academic dishonesty, the Board may revoke the degree,

certificate, or diploma, provided the Component has

afforded the degree, certificate, or diploma recipient due

process of law.

Id. ¶ 2.42 (amended 2019). 9

The UT System’s rules direct each of the System’s component

institutions to adopt rules and regulations governing student conduct

and discipline in accordance with a model policy. See Univ. of Tex. Sys.,

Rules and Regulations of the Board of Regents, Rule 50101: Student

Conduct and Discipline (amended 2017). The University adopted such

rules, which include detailed provisions governing student disciplinary

proceedings. One of the authorized disciplinary sanctions is “revocation

of degree or withdrawal of diploma,” which “may be imposed when the

violation involves academic dishonesty or otherwise calls into question

the integrity of the work required for the degree.” 10

B. Analysis

In concluding that the above-described statutes do not authorize

the Boards to revoke a former student’s degree, the court of appeals first

held in K.E. that Section 95.21’s broad grant of authority with respect

to “the operation, control, and management” of the Texas State System

and its component institutions, construed in and limited by its context,

9 At the time of the administrative proceedings against K.E., the

pertinent rules were numbered 2.31 and 2.32, but they were substantively

identical to the rules currently in effect.

10The rules in effect when S.O. enrolled in 2003 and those in effect when

the investigation commenced in 2013 contain essentially identical language

with respect to degree revocation.

16

concerns “the day to day operations of the university and the

management of its personnel” and thus does not encompass degree-

revocation power. 613 S.W.3d at 228–29. Similarly, in S.O., the court

of appeals noted that the statute authorizing the UT Board to adopt

rules for “the operation, control, and management” of the System and

its component institutions “says nothing about the board’s authority to

discipline a former student.” 613 S.W.3d at 253–54. In both cases, the

court further rejected the argument that the power to revoke a degree

may be implied from the express power to award one, holding that the

former is not necessary to accomplish the latter. Id. at 255–56; 613

S.W.3d at 230. In so holding, the court of appeals in K.E. found

persuasive that “the power claimed to be implied necessarily

raises . . . substantial constitutional questions regarding due process.”

613 S.W.3d at 230.

As an initial matter, we find it helpful to make two clarifying

points. First, the court of appeals, as well as K.E. and S.O., conflates to

some extent what we view as two independent inquiries. The first is the

issue before us—whether the Boards have statutory authority to revoke

a previously conferred degree. If so, the second is whether the Boards

must afford the former student due process in doing so. But the answer

to the latter inquiry has no bearing on the answer to the former. 11

Indeed, there is no real dispute that K.E. and S.O. were entitled to due

11The dissent similarly focuses on a university degree as intangible

property belonging to the recipient. Post at 6–7 (Blacklock, J., dissenting).

That is certainly relevant to the due-process inquiry, but not the statutory-

authority inquiry.

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process under our precedent. 12 In University of Texas Medical School v.

Than, we held that the stigma associated with a medical student’s

dismissal for academic dishonesty implicated a protected liberty interest

“that must be afforded procedural due process.” 901 S.W.2d 926, 930

(Tex. 1995). 13 A University graduate confronting revocation of her

degree for academic misconduct faces similar reputational harm and

negative effects on her ability to practice her chosen profession. And

although K.E. claims the University’s disciplinary procedures failed to

satisfy due process, she also asserts the officials lacked authority to

revoke her degree regardless of how much process she received. In sum,

whether a former student has a constitutionally protected interest in

her degree is relevant not to the existence of a university’s statutory

authority to revoke that degree but to whether the student was

presented sufficient notice and opportunity to be heard before that

authority was exercised. See id. at 931 (holding that, in light of all the

surrounding circumstances, the student’s due-course-of-law rights were

violated by his exclusion from a portion of the evidentiary proceedings

against him).

Second, although the effect of K.E.’s and S.O.’s status as former

students to whom the Universities had already conferred degrees—as

opposed to current students facing expulsion—is at the heart of the

12In addition, the Texas State Board rule addressing degree revocation

expressly requires due process.

13 By contrast, we have held that a graduate student’s dismissal from a

state university for academic reasons does not carry sufficient stigma to impair

a protected liberty interest under the Texas Constitution. Tex. S. Univ. v.

Villareal, 620 S.W.3d 899, 907 (Tex. 2021).

18

parties’ dispute, the University officials rely solely on events that

transpired while K.E. and S.O. were students in pursuit of their

respective degrees as the basis for revoking those degrees. The

University officials do not claim, and for good reason, that they may take

such action against K.E., S.O., or any other former student based on

conduct occurring after a degree is conferred. Instead, they argue that

they may rescind a degree upon determining that it was not earned—

and thus should not have been awarded—in the first place. We thus

consider only whether the University officials may revoke the degrees of

former students who are found to have engaged in academic misconduct

while enrolled at the Universities. We hold that they have authority to

do so.

As the parties agree, the statutes governing the Systems make no

express mention of degree revocation. But they do task the Texas State

Board with “the general control and management of the universities in

the system,” empower the Board to “perform such other acts as in the

judgment of the board contribute to the development of the universities

in the system or the welfare of their students,” and authorize the Board

to “determine . . . the conditions for the award of certificates and

diplomas.” TEX. EDUC. CODE §§ 95.21, .24. Similarly, the statutes

authorize the UT Board to “govern, operate, support, and maintain each

of the [System’s] component institutions”; to prescribe the courses and

programs leading to various degrees; and “to award all such degrees.”

Id. § 65.31(a)–(b). And each Board may “promulgate and enforce such

rules, regulations, and orders for the operation, control, and

management of the university system and its institutions as the board

19

may deem either necessary or desirable.” Id. § 95.21; see also id.

§ 65.31(c). The language of these provisions, like provisions discussing

the powers and duties of other public university systems’ governing

boards, is expansive and lacking in detail, leaving it to the systems and

component institutions to fill in the gaps. Cf. Pruett v. Harris Cnty. Bail

Bond Bd., 249 S.W.3d 447, 453 (Tex. 2008) (“When a statute expressly

authorizes an agency to regulate an industry, it implies the authority to

promulgate rules and regulations necessary to accomplish that

purpose.”). And as the dissenting justice in the court of appeals noted

in K.E., the “heart” of that broad power involves the University’s

authority to make academic decisions. 613 S.W.3d at 236 (Kelly, J.,

dissenting).

To that end, the University officials unquestionably and

undisputedly have authority under these provisions to enact

disciplinary rules and policies regarding academic misconduct and to

conclude, upon providing sufficient process, that students who have

engaged in such misconduct should be expelled because they do not meet

the requisite conditions for the award of a degree. See Than, 901 S.W.2d

at 929; Foley v. Benedict, 55 S.W.2d 805, 809 (Tex. [Comm’n Op.] 1932)

(“A student who is admitted to the University receives the privilege of

attending that institution subject to the reasonable rules and

regulations promulgated by the board of regents and existing at the time

of his entrance into the school.”). And the only difference between

expelling a current student for academic misconduct and revoking the

degree of a former student for the exact same academic misconduct is

one of timing. That distinction is immaterial to the issue presented and

20

erroneously hinges the university’s bare authority to address its

students’ academic misconduct on when that misconduct is discovered.

Indeed, if timing were as significant as K.E. and S.O. suggest, we

struggle to determine when a university passes the point of no return.

Is it at the graduation ceremony? When the diploma memorializing the

conferral of the degree is printed? When the last box is checked on an

administrative form indicating that all requirements have been

satisfied? When a doctoral student completes the defense of her

dissertation? A degree is not merely a piece of paper; it is a “university’s

certification to the world at large of the recipient’s educational

achievement and fulfillment of the institution’s standards.” Waliga v.

Bd. of Trs. of Kent State Univ., 488 N.E.2d 850, 852 (Ohio 1986); see also

Doe v. Salisbury Univ., 107 F. Supp. 3d 481, 492 (D. Md. 2015) (“When

a school confers credentials, the school places its imprimatur on a

student; degrees and credits are a school’s implicit endorsement of

someone’s academic qualifications and personal character, whether they

be a current or former student.”). Here, the Texas State University

officials concluded that K.E. engaged in academic misconduct in pursuit

of her degree, such that she did not in fact meet the necessary conditions

to be awarded that degree and thus is not entitled to a certification that

she did. Their authority to do so, like the authority of the UT officials

to make that determination as to S.O. depending on the outcome of the

proceedings, fits comfortably within the governing statutes. 14

14The University officials argue that the Board rules, which we have

held carry “the same force as an ‘enactment of legislature,’” confer authority

21

While precedent on the specific issue presented is nonexistent in

Texas and sparse elsewhere, courts applying similarly worded grants of

authority have uniformly determined that public universities have

degree-revocation power. 15 For example, in Waliga, the Ohio Supreme

Court considered whether Kent State University, through its board of

trustees, could “revoke improperly awarded degrees” in light of

universities’ statutory authority to “confer” degrees and “do all things

necessary for the proper maintenance and successful and continuous

operation of such universities.” 488 N.E.2d at 851–52. Holding that the

university could do so “where (1) good cause such as fraud, deceit, or

on the University to revoke a degree independently of the governing statutes.

Hall v. McRaven, 508 S.W.3d 232, 235 (Tex. 2017) (quoting Univ. of Hous. v.

Barth, 403 S.W.3d 851, 855 (Tex. 2013)). We disagree. The Board cannot by

rule grant a power to itself that is outside the authority conferred on the Board

by the Legislature.

15 The dissent finds it telling that the first published opinion specifically

addressing this issue was decided relatively recently, in 1986. See post at 14

(Blacklock, J., dissenting) (“1986 seems a strange starting point for judicial

analysis of the ‘traditional and time-honored role’ of the governing boards of

universities.”). Of course, courts had no reason to opine on whether

universities have degree-revocation power until lawsuits were filed alleging

that they do not. Other sources indicate that degree revocation by public

universities, based on conduct occurring while the recipient was a student but

not discovered until later, is nothing new. See Tex. Att’y Gen. Op. ORD-477,

at 3–5 (1987) (addressing requests by the UT System, the Texas A&M

University System, and Texas Tech University for an opinion on whether the

Open Records Act shielded the identity of individuals whose degrees had been

rescinded since January 1, 1977); Crook v. Baker, 813 F.2d 88, 91 & n.2 (6th

Cir. 1987) (expressing “surprise[] at the dearth of case law dealing with . . . the

question whether court action is necessary [to rescind the grant of a degree]”

and noting the university’s contention “that the record shows that the

University of Michigan and many other universities have in fact rescinded the

grant of degrees”).

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error is shown, and (2) the degree-holder is afforded a fair hearing at

which he can present evidence and protect his interest,” the court

concluded that “[t]he power to confer degrees necessarily implies the

power to revoke degrees erroneously granted.” Id. at 852.

Other courts have followed suit. The United States District Court

for the Western District of Virginia, applying Virginia law, held that

“[b]ecause degree revocation is reasonably necessary to effectuate the

Board’s [express] power to confer degrees and to regulate student

discipline, that power must be implied, giving the Board the authority

to revoke a degree for good cause and after due process.” Goodreau v.

Rector & Visitors of Univ. of Va., 116 F. Supp. 2d 694, 703 (W.D. Va.

2000). The Supreme Court of North Dakota, applying a state

constitutional provision granting the State Board of Higher Education

“full authority to control and administer the State’s higher education

institutions,” explained that with such authority “comes the authority

to award academic degrees,” which in turn “naturally comes with the

implied authority to revoke an improperly awarded degree upon good

cause and a fair hearing.” Brown v. State ex rel. State Bd. of Higher

Educ., 711 N.W.2d 194, 198 (N.D. 2006). Courts applying New Mexico

law, Maryland law, Michigan law, and Tennessee law have reached

similar conclusions. See Hand v. Matchett, 957 F.2d 791, 794 (10th Cir.

1992) (applying New Mexico law) (holding that implicit in the New

Mexico State University Board of Regents’ power to confer degrees

“must be the authority to revoke degrees”); Doe, 107 F. Supp. 3d at 492

(applying Maryland law) (“Schools hold an implied power to control

school records and to revoke credentials conferred upon

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students . . . where such actions are in response to a former student’s

conduct that occurred during the student’s enrollment, and as long as

the school acts with good cause and after due process.”); Crook v. Baker,

813 F.2d 88, 91–92 (6th Cir. 1987) (applying Michigan law) (citing

Waliga and holding that the University of Michigan’s Board of Regents,

which has “general supervision” of the university under the Michigan

Constitution, has the power to rescind the grant of a degree); Faulkner

v. Univ. of Tenn., No. 01-A-01-9405-CH00237, 1994 WL 642765, at *5

(Tenn. Ct. App. Nov. 16, 1994).

The court of appeals here deemed these cases inapposite in light

of “jurisprudential differences in interpreting agency authority.” 613

S.W.3d at 230–31 (noting that under Ohio law, as stated in Waliga, a

power of a state agency may be implied from an express power “where it

is reasonably related to the duties of an agency”); 613 S.W.3d at 255–56

(same). We nevertheless find them persuasive for several reasons.

First, the court of appeals went a step too far in describing Texas

law regarding agency authority, concluding that a power may not be

implied unless in its absence an express grant of authority “will itself be

defeated.” 613 S.W.3d at 230; see also 613 S.W.3d at 255. We have never

endorsed such a standard; rather, as discussed, an agency has those

“implied powers that are reasonably necessary to carry out its statutory

duties.” Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists, 511

S.W.3d at 33. Further, the breadth of the constitutional and statutory

grants of power to universities is remarkably similar among the states

whose courts have addressed degree revocation. And those courts are

united in the conclusion, as well as the reasoning behind it, that the

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power to revoke a degree for academic misconduct “naturally comes

from,” Brown, 711 N.W.2d at 198, is “necessarily implie[d by],” Waliga,

488 N.E.2d at 852, is “[i]mplicit in” and “a necessary corollary to,” Hand,

957 F.2d at 794–95, or is “reasonably necessary to effectuate” the

express power to grant one, Goodreau, 116 F. Supp. 2d at 703. 16

In the absence of supporting case law, K.E. and S.O. cite a 1969

Texas Attorney General opinion addressing whether the UT Board had

authority to “declare null and void” a previously conferred Ph.D. in the

face of findings that the graduate’s dissertation was, among other

things, “mainly plagiarism.” Tex. Att’y Gen. Op. No. M-466, at 1–2

(1969). The Attorney General concluded that because the Legislature

did not expressly “prescribe an administrative procedure whereby

degrees awarded students may be cancelled or rescinded by the

administrative board,” a degree “can only be set aside or annulled by a

Court of competent jurisdiction.” Id. at 9. Attorney General opinions

are persuasive, but not controlling, Holmes v. Morales, 924 S.W.2d 920,

924 (Tex. 1996), and we disagree with the opinion’s analysis for several

reasons.

16 The dissent deems such cases unpersuasive for a different reason

than the court of appeals: some of them cite a 1723 decision of the Court of

King’s Bench—erroneously, in the dissent’s view—to buttress their conclusion.

See, e.g., Waliga, 488 N.E.2d at 852 (discussing The King v. Univ. of Cambridge

(Bentley’s Case) (K.B.1723), 8 Modern Rep. (Select Cases) 148). Bentley’s Case

is irrelevant to the courts’ primary conclusion that the constitutional and

statutory provisions governing public universities give rise to the implied

authority to revoke an unearned degree. See, e.g., id.; Crook, 813 F.2d at 91;

Brown, 711 N.W.2d at 198; Hand, 957 F.2d at 794–95.

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First, the Attorney General referenced the statutory provision

granting the board authority to confer degrees and grant diplomas but

said nothing about the provision broadly authorizing the board to “enact

such by-laws, rules and regulations as may be necessary for the

successful management and government of the University.” See Act

approved Apr. 23, 1895, 24th Leg., R.S., ch. 111, § 1, 1895 Tex. Gen.

Laws 169, 169, reprinted in 10 H.P.N. Gammel’s The Laws of Texas

1822–1897, at 899 (Austin, Gammel Book Co. 1898) (amended and

recodified 1971). Second, the opinion relies on an at-best outdated view

of a state agency’s implied authority, concluding that the board could

not have implied authority to annul a degree once conferred because the

Legislature did not impose a “mandatory duty” to confer a particular

degree in the first place. See Corzelius v. R.R. Comm’n, 182 S.W.2d 412,

415 (Tex. App.—Austin 1944, no writ). To the extent some cases contain

language indicating that agency authority may be implied if reasonably

necessary to fulfill an express statutory duty but not an express

statutory power, it is by now well settled that an agency has those

powers “necessarily implied from the statutory authority conferred or

duties imposed.” Student Hous. Auth. v. Brazos Cnty. Appraisal Dist.,

460 S.W.3d 137, 143 (Tex. 2015) (emphases added); see also Stauffer v.

City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). The Attorney

General’s erroneous distinction between duties and discretionary

powers in this context significantly impacted its analysis.

Further, the Attorney General’s conclusion that a “[c]ourt of

competent jurisdiction” is the only appropriate forum for revocation of a

degree is inconsistent with our recognition that “[j]udicial interposition

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in the disciplinary decisions of state supported schools raises problems

requiring care and restraint.” Than, 901 S.W.2d at 931 (citing Epperson

v. Arkansas, 393 U.S. 97, 104 (1968)). The need for such restraint is

particularly acute when those disciplinary decisions involve the exercise

of academic judgment. Villareal, 620 S.W.3d at 907 (noting that “courts

are ill equipped to evaluate the academic judgment of professors and

universities”). 17 The Attorney General opinion also ignores the fact that

conferring a degree amounts to a continuing certification regarding the

recipient’s fulfillment of the university’s requirements. That

characteristic distinguishes revocation of a degree from rescission of

other transactions requiring court intervention, like a sale of property.

Crook, 813 F.2d at 93. Overall, we are unpersuaded by the Attorney

General opinion’s reasoning. 18

In sum, we hold that the Boards’ broad statutory authority to

govern and administer the Systems and their component institutions, to

determine the conditions for the award of degrees, and to award degrees

necessarily encompasses the authority to determine that a student did

not meet those conditions, and thus did not in fact earn a degree,

17 While not dispositive, the practical realities of the avenue

championed by the Attorney General opinion and the dissent cannot be

ignored. The result would effectively be that when a university concludes a

former student procured a degree by academic dishonesty—and thereby did

not in fact earn the degree—the university would have to file a lawsuit against

the former student for cheating.

18 As the University officials note, the Attorney General opinion

concludes by stating that a university may still “tak[e] the legal position that

by reason of the alleged fraud it will no longer recognize the degree in question

and insofar as it is concerned has cancelled the same.” M-466, at 9. The dissent

appears to agree. See post at 9 n.3 (Blacklock, J., dissenting).

27

because of academic misconduct. Whether that determination occurs

before or after a degree has been formally conferred is immaterial so

long as the underlying conduct occurred during the student’s tenure at

the university and due process is provided. 19

IV. Prospective vs. Retrospective Relief in 20-0812

Notwithstanding our conclusion that the University officials have

statutory authority to revoke K.E.’s Ph.D., K.E. further alleges that the

disciplinary proceeding she underwent violated her due-process rights. 20

See Than, 901 S.W.2d at 929–30. She seeks injunctive relief ordering

the University officials to reinstate her degree and “remove any notation

19 In 20-0811, the University officials also argue that S.O.’s claims

should be dismissed as unripe. Because we hold that they are barred by

sovereign immunity, we dismiss them for that reason without addressing the

ripeness issue.

20 We note that K.E. has not challenged the revocation decision as

unsupported by substantial evidence. As the parties correctly recognize,

institutions of higher education are not state agencies under the

Administrative Procedure Act, which therefore provides no statutory

entitlement to judicial review of those institutions’ decisions. TEX. GOV’T CODE

§ 2001.003(7)(E). However, we have recognized an “inherent right of appeal”

in narrow circumstances, such as “[w]hen a vested property right has been

adversely affected by the action of an administrative body so as to invoke the

protection of due process.” Brazosport Sav. & Loan Ass’n v. Am. Sav. & Loan

Ass’n, 342 S.W.2d 747, 750 (Tex. 1961). We explained in Brazosport that such

a right includes the opportunity to prove that the agency’s “action was illegal

or without support in substantial evidence.” Id. at 752; see also Montgomery

Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000) (explaining that a

substantial-evidence review is limited to determining whether “more than a

mere scintilla” of evidence supports the agency’s determination). Whether

K.E. may pursue an ultra vires claim premised on a lack of substantial

evidence to support the revocation decision, and the proper outcome of such a

review, is not before us.

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that states or suggests [her] degree was revoked.” The University

officials argue that these claims remain barred by sovereign immunity

because K.E. seeks only “backwards-looking” retrospective relief to

rectify an “already-complete governmental action.” We disagree.

It is true that ultra vires claimants “may seek only prospective

injunctive remedies.” Chambers–Liberty Cntys. Navigation Dist. v.

State, 575 S.W.3d 339, 348 (Tex. 2019) (citing Heinrich, 248 S.W.3d at

369). But that is exactly what K.E. seeks. She asserts that the

University officials acted ultra vires in revoking her Ph.D. without

providing due process and requests restoration of her degree on a

forward-looking basis. If she succeeds on that claim, 21 she is entitled to

such relief. Indeed, the University officials’ position on this issue is

troublingly inconsistent with the arguments they make regarding their

authority to revoke K.E.’s degree in the first place. As discussed, we

agree with the University officials that academic degrees “are a

university’s certification to the world at large of the recipient’s

educational achievement and fulfillment of the institution’s standards.”

Waliga, 488 N.E.2d at 852. That “certification” is not an isolated event

but a continuing one. Just as a university need not continue making a

false certification “to the world at large” that a recipient earned a degree

when she in fact did not, it may not continue making a certification that

21The University officials do not argue in this Court that the due-

process claim is facially invalid. See Klumb v. Hous. Mun. Emps. Pension Sys.,

458 S.W.3d 1, 13 (Tex. 2015) (noting that “immunity from suit is not waived if

the constitutional claims are facially invalid”). We express no opinion on the

merits of the claim.

29

a recipient did not earn a degree when that conclusion has not been

made in accordance with the law.

Our opinion in Than, in which we held that a medical student

“was not afforded adequate procedural due process before his expulsion”

for cheating on an exam, supports this conclusion. 901 S.W.2d at 929.

There, we affirmed a permanent injunction ordering that, pending a new

hearing on the charge of academic dishonesty, the university remove

from the student’s transcript the “F” grade he received in the class and

remove from his records “the penalty of expulsion.” Id. at 934. Similarly

here, if the trial court determines that K.E. was not afforded adequate

procedural due process before the University officials revoked her

degree, an injunction ordering the degree reinstated and the penalty

removed from her records pending a new hearing would be appropriate.

See id.

V. Remaining Claims

As discussed, in 20-0811 the trial court denied the University

officials’ plea to the jurisdiction as to the declaratory-judgment claims

regarding the officials’ authority to revoke S.O.’s degree—and granted

summary judgment for S.O. on those claims—but the court granted the

jurisdictional plea as to S.O.’s other claims. The court of appeals

affirmed the order as to the subset of claims that S.O. appealed, and S.O.

does not seek review of those rulings here. Accordingly, no claims

remain to remand to the trial court. In the event that the University

officials pursue disciplinary proceedings against S.O. and ultimately

decide to revoke her degree, S.O. may seek judicial relief at that time if

she believes she was not afforded due process. See id. at 930 (holding

30

that the stigma associated with a medical student’s dismissal for

academic dishonesty implicated a protected liberty interest “that must

be afforded procedural due process”).

In 20-0812, however, the trial court denied the University

officials’ plea to the jurisdiction in its entirety, and the court of appeals

affirmed. Because we have held that K.E. seeks prospective relief with

respect to her due-process claims and the University officials offer no

other basis in this Court to disturb the court of appeals’ judgment as to

those claims, they remain pending and must be remanded for further

proceedings.

VI. Conclusion

We hold that the University officials have statutory authority to

revoke the degree of a former student for engaging in academic

misconduct while a student at the University. K.E.’s and S.O.’s claims

for declaratory relief to the contrary are thus barred by sovereign

immunity. Accordingly, we reverse the court of appeals’ judgments with

respect to those claims and dismiss them for lack of jurisdiction. In

20-0812, we affirm the court of appeals’ judgment with respect to K.E.’s

due-process claims and remand the case to the trial court for further

proceedings.

Debra H. Lehrmann

Justice

OPINION DELIVERED: March 31, 2023

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