                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 SONIA HERRERA MARQUEZ,                          §
 CLAUDIA GARCIA, AND ALICIA                                       No. 08-13-00092-CV
 GOMEZ, FOR AND ON BEHALF OF                     §
 THEIR MINOR CHILDREN,                                              Appeal from the
                                                 §
                              Appellants,                         205th District Court
                                                 §
 v.                                                             of El Paso County, Texas
                                                 §
 CLINT INDEPENDENT SCHOOL                                       (TC# 2012-DCV-05582)
 DISTRICT,                                        §

                              Appellee.

                                            OPINION

       On behalf of their minor children, Appellants, Sonia Herrera Marquez, Claudia Garcia, and

Alicia Gomez, (Parents) filed suit against Appellee, Clint Independent School District, alleging

violations of the Texas Constitution and seeking declaratory and injunctive relief. Parents appeal

from the trial court’s order granting the school district’s motion to dismiss and plea to the

jurisdiction. We reverse.

                                          BACKGROUND

       Parents filed a petition seeking a declaratory judgment, temporary injunction, and

permanent injunction against the school district for its alleged violations of Article VII, Section 1

and Article I, Section 3 of the Texas Constitution. In their second amended petition, Parents
assert the school district violated, and continues to violate, the rights and equal rights of their

children, and those similarly situated, as granted by the Texas Constitution. According to

Parents, the school district’s intra-district funding: (1) is inequitable and disparate; (2) denies

equal access and opportunity to some students; (3) fails to meet constitutional or statutory

standards: (4) unreasonably renders unequal the opportunities and access to programs and services

for students at certain middle and high schools within the school district; (5) thwarts the

Legislature’s implementation of its constitutional mandate “to establish and make suitable

provision for the support and maintenance of an efficient system of public free schools [sic]” for

the purpose of guaranteeing a “general diffusion of knowledge . . . essential to the preservation of

the liberties and rights of the people;” (6) fails the Texas Constitution’s mandates of equal rights

and equal protection through its differential treatment of students in certain middle and high school

communities within the district without a rational basis therefor; and (7) has denied Parents’

children, and those similarly situated, access to an equal education and has harmed their

educational outcomes.

       Appellants allege they are entitled to a declaratory judgment and relief:

       [C]oncerning [the school district’s] violations of the Texas Constitution, specifying
       the rights of their children, namely, that [the school district] has failed and refused,
       and continues to fail and refuse, to provide [Parents’] children and those similarly
       situated with equal education funding for all students at a comparable grade level,
       appropriately weighted according to the state funding formula, and thereby has
       denied, and continues to deny, those children their right to a suitable and efficient
       system of public free schools and their right to equal protection under the Texas
       Constitution[.]”

       As a result of the school district’s alleged ongoing violations of their children’s rights,

Parents contend they are entitled to temporary and permanent injunctive relief against the school

district “from failing and refusing to provide their children and those similarly situated with equal

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education funding for all students at comparable grade levels, appropriately weighted according to

the state funding formula.”      Noting that their action against the school district “involves

intangible constitutional rights to an education and to equal education opportunity that directly

affects their lives now and in the future,” Parents assert their children and those similarly situated

will suffer probable, imminent, immediate, and irreparable injury in the interim for which no

compensation may be made absent the imposition of injunctive relief. Appellants contend the

school district will suffer no harm if it is compelled to provide an equal amount of education

funding as provided for all students at a comparable grade level, appropriately weighted according

to the state funding formula, and assert that they have shown a probable right to relief.

       In response to Parents’ petition, the school district filed a motion to dismiss and plea to the

jurisdiction. The school district asserted that it is immune from suit, complained that Appellants

were required, but had failed, to exhaust administrative remedies available to them, alleged that

Parents’ complaints under the Education Clause of the Texas Constitution are properly brought

against the State and not the school district, and suggested that Parents’ suit constitutes a

misdirected attack on the school district for the sole purpose of promoting Parents’ political

agenda.

       On February 28, 2013, the trial court heard the school district’s motion, found Parents had

failed to exhaust their administrative remedies, and granted the school district’s motion to dismiss

Parents’ action.

                                           DISCUSSION

       In a single issue, Parents contend the trial court erred in dismissing their action and argue

they were excepted from exhausting administrative remedies because:                (1) they alleged


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irreparable harm caused by the school district’s disparate funding and sought injunctive relief,

which the Commissioner of Education has no authority to grant; (2) they alleged violations of the

Texas Constitution, for which the exhaustion of administrative remedies is not required to confer

jurisdiction upon a court; and (3) their claims present pure questions of law, which do not require

the exhaustion of administrative remedies.

                                         Standard of Review

          A plea to the jurisdiction challenges a trial court’s subject matter jurisdiction. State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000); Univ. of Texas at El Paso v. Ochoa, 410 S.W.3d 327, 330-31 (Tex.App. –El Paso

2013, pet. filed). Because the existence or absence of subject matter jurisdiction is a question of

law, we review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Ochoa, 410 S.W.3d at 330.

          In conducting our de novo review, we look to the plaintiff’s petition to determine whether

the facts as pled affirmatively demonstrate that jurisdiction exists. Holland, 221 S.W.3d at 642–

43; Ochoa, 410 S.W.3d at 330. We accept the allegations in the petition as true, construe them in

favor of the pleading party, and examine the pleader’s intent. University of Texas Health Science

Center at San Antonio v. Stevens, 330 S.W.3d 335, 337 (Tex.App. – San Antonio 2010, no pet.).

We consider any evidence relevant to jurisdiction without considering the merits of the claim

beyond the extent necessary to determine jurisdiction. Miranda, 133 S.W.3d at 227; Ochoa, 410

S.W.3d at 330-31. However, if the relevant evidence is undisputed or fails to raise a fact question

on the jurisdiction issue, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d

at 228.


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                                               Analysis

       Generally, Texas law directs that an aggrieved party whose claim relates to the

administration of school laws and involves disputed fact issues must exhaust administrative

remedies with the Commissioner of Education before turning to the courts for relief. Jones v.

Clarksville Indep. Sch. Dist., 46 S.W.3d 467, 471 (Tex.App. – Texarkana 2001, no pet.);

Caramanian v. Houston Indep. Sch. Dist., 829 S.W.2d 814, 816 (Tex.App. – Houston [14th Dist.]

1992, no pet.). Section 7.057(a) of the Texas Education Code specifies that a person may appeal

in writing to the Commissioner of Education if the person is aggrieved by (1) “school laws” of this

state, or (2) actions or decisions of a school district board of trustees that violate “school laws” of

this state or the provisions of a written employment contract between school district and school

district employee if that violation causes monetary harm to employee. See TEX. EDUC. CODE

ANN. § 7.057(a)(1)(2) (West 2012). “School laws” are defined as Titles 1 and 2 of the Texas

Education Code and the rules adopted under those titles.            See TEX. EDUC. CODE ANN. §

7.057(f)(2)(West 2012). Requiring exhaustion of administrative remedies is not meant to deprive

an aggrieved party of any legal rights, but rather to provide an orderly procedure by which

aggrieved parties may enforce those rights. Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d 792,

795 (Tex.App. – El Paso 2005, pet. denied).

       Exceptions to this general exhaustion-of-administrative-remedies rule apply if: (1) the

aggrieved party will suffer irreparable harm and the Commissioner of Education is unable to

provide relief; (2) the claims are for a violation of a state or federal constitutional right; (3) the

cause of action involves pure questions of law and the facts are not disputed; (4) the Commissioner

of Education lacks jurisdiction over the claims; (5) the administrative agency acts without


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authority; or (6) the claims involve parties acting outside the scope of their employment with the

school district.   See Dotson v. Grand Prairie Indep. Sch. Dist., 161 S.W.3d 289, 291–93

(Tex.App. – Dallas 2005, no pet.), citing Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363,

366 (Tex.App. – San Antonio 2004, no pet.); Harlandale Indep. Sch. Dist. v. Rodriguez, 121

S.W.3d 88, 91–92 (Tex.App. – San Antonio 2003, no pet.); Jones v. Clarksville Indep. Sch. Dist.,

46 S.W.3d 467, 471 n.3 (Tex.App. – Texarkana 2001, no pet.); Jones v. Dallas Indep. Sch. Dist.,

872 S.W.2d 294, 296 (Tex.App. – Dallas 1994, writ denied); Mitchison v. Houston Indep. Sch.

Dist., 803 S.W.2d 769, 773–74 (Tex.App. – Houston [14th Dist.] 1991, writ denied); Houston

Fed’n of Teachers, Local 2415 v. Houston Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987)).

       We conclude the trial court erred in finding that it was without jurisdiction and dismissing

the Parents’ action for failing to exhaust administrative remedies. In reaching this conclusion, we

focus on the constitutional nature of Parents’ pleadings.

       In Jones, 46 S.W.3d at 473-74, the Sixth Court of Appeals in Texarkana observed that

constitutional issues are not appropriate for administrative appeal and may be taken directly to the

courts “if the constitutional claims stand alone as an attack on the policies or actions of the school

board, or if the claims are for constitutional violations that are reflected by those actions of the

board[.]” In its opinion, the Jones court also observed that constitutional claims which are

ancillary to and supportive of a complaint about the school board’s handling of an employment

contract or application of school laws, may be appropriately amenable to administrative review.

Jones, 46 S.W.3d at 474.

       In support of its assertion that Parents’ constitutional claims are ancillary to and supportive

of a complaint regarding the application of school laws, the school district directs us to a recent


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unpublished opinion wherein a contractual school district employee’s contract was not renewed.

See Houston Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at *1, *2-*3

(Tex.App. – Houston [1st Dist.] July 2, 2013, no pet.)(mem. op., not designated for publication).

In that case, as required by the Texas Education Code, Rose pursued an appeal to the

Commissioner of Education regarding the nonrenewal of her contract but failed to exhaust her

administrative remedies by seeking judicial review of the Commissioner of Education’s decision

before filing suit. See id. at *2-*3. In her lawsuit, Rose sought declaratory and injunctive relief

based upon her assertion that the school district violated her constitutional rights, specifically her

right of free speech. See id. at *2-*3. The trial court granted the school district’s plea to the

jurisdiction in part but did not dismiss Rose’s request for declaratory relief. See id. at *1.

       Upon the school board’s appeal, Rose argued that because her request for declaratory relief

was grounded in the alleged violation of her constitutional rights, she was not required to exhaust

her administrative remedies. See id. at *3-*4 (citations omitted). The Court of Appeals noted

that “[a] determination of the constitutionality of the district’s actions with respect to Rose

necessarily implicates the validity of the district’s actions affecting Rose’s employment status[.]”

See id. at *4. The court observed that school laws presumably comply with the state and federal

constitutions and determined that the Commissioner of Education is “authorized to consider the

constitutionality of the district’s non-renewal decision in determining whether its action complied

with the state school laws.” See id. at *4. Because that determination required the resolution of

disputed fact issues, the Court held Rose had not shown that the constitutional exception to the

exhaustion-of-administrative remedies doctrine applied to her claim. See id. at *4, citing Carrillo

v. Anthony Indep. Sch. Dist., 921 S.W.2d 800, 804 (Tex.App. – El Paso 1996, no writ)(as a general


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rule, teacher complaining of wrongful discharge must exhaust all available administrative

remedies if the subject matter involves questions of fact). 1 Although Houston Independent

School District constitutes persuasive authority, we conclude its facts are readily distinguishable

from those presented in Parents’ petition. See Penrod Drilling Corp. v. Williams, 868 S.W.2d

294, 296 (Tex. 1993)(opinions from any federal or state court may be relied on as persuasive

authority, but Texas appellate courts are obligated to follow only higher Texas courts and the

United States Supreme Court).

         The school district also asserts that under Section 21.209 of the Texas Education Code,

“[t]he Commissioner’s jurisdiction extends to any appeals of a person aggrieved by actions of any

board of trustees,” and requires Parents to exhaust administrative procedures if their case concerns

administration of school laws and involves questions of fact. See TEX. EDUC. CODE ANN. §

21.209 (West 2012). We disagree with the school district’s assertion. Rather than applying to “a

person” as the school district has represented, we observe Section 21.209 expressly and

specifically applies to a teacher who is aggrieved by a decision of a board of trustees on the


1
   Carrillo involved breach of contract and federal constitution claims. Carrillo, 921 S.W.2d at 804. In addition to
that portion of our opinion cited by Houston Independent School District, we also observed in Carrillo that a proper
resolution of a Carrillo’s federal claims was predicated upon whether Carrillo’s employment contract was breached,
and that the question was integrally tied to whether Carrillo’s constitutional due process rights had been denied. Id.
If Carrillo’s claims had been separated, a similar factual development would be required in two different proceedings.
Id. We determined that if Carrillo’s federal claims were abated pending resolution of the breach of contract claim, an
inappropriate forum would develop the factual record necessary to the resolution of her federal claims and would be
contrary to the intention that those federal claims be exempt from administrative review. Id., citing Patsy v. Board of
Regents, 457 U.S. 496, 513-15, 102 S.Ct. 2557, 2566-67, 73 L.Ed.2d 172, 185-87 (1982)(exhaustion of administrative
remedies, whether federal or state, is not a prerequisite to an action under Section 1983). We ultimately concluded
that Carrillo was not required to exhaust her administrative remedies prior to filing suit in court, and that a contrary
holding would fly in the face of the federal constitution as interpreted by the United States Supreme Court. Id.




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nonrenewal of the teacher’s term. See TEX. EDUC. CODE ANN. § 21.209 (West 2012). Therefore,

the school district’s reference to Section 21.209 is not instructive.

       Parents do not allege that they are aggrieved by “school laws” in Titles 1 and 2 of the

Education Code, do not assert that the actions or decisions of the school district board of trustees

violate “school laws” of this state, nor assert any complaint related to any provisions of a written

employment contract between the school district and a school district employee. See TEX. EDUC.

CODE ANN. § 7.057(a)(1)(West 2012). Consequently, we conclude Section 7.057(a)(1) provides

the Commissioner of Education no jurisdiction over Parents’ claims. Id. Rather, Parents’ action

complains solely of violations of their children’s state constitutional rights. Parents’ live petition

presents constitutional claims attacking the school board’s past and ongoing policies or actions,

and also presents claims for constitutional violations that are reflected by the school board’s

actions. See Jones, 46 S.W.3d at 473-74. Therefore, resolution of the constitutional issues

advanced in Parents’ petition is properly within the jurisdiction of the trial court and not that of the

Commissioner of Education. See id.

       Because the general rule requiring exhaustion of administrative remedies under Section

7.057 does not apply to Parents, we need not address the applicability of any exceptions thereto.

Id. Because the trial court’s order dismissing Parents’ suit was based upon their failure to exhaust

administrative remedies under Section 7.057 of the Texas Education Code, we need not address

the parties’ arguments regarding governmental immunity or the justiciability of school funding

issues. See TEX. EDUC. CODE ANN. § 7.057(a)(1)(West 2012). Parents’ sole issue on appeal is

sustained.




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                                       CONCLUSION

       The trial court’s judgment is reversed and the case is remanded for further proceedings.



                                            ANN CRAWFORD McCLURE, Chief Justice
September 24, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating




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