                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                          No. 04-18-00421-CV

       Pedro MARTINEZ, Superintendent of San Antonio Independent School District;
Patti Radle, President of Board of Trustees for San Antonio Independent School District; Arthur
 V. Valdez, Vice-President of Board of Trustees for San Antonio Independent School District;
 Debra Guerrero, Secretary of Board of Trustees for San Antonio Independent School District;
 Steven Lecholop, Trustee of Board of Trustees for San Antonio Independent School District;
  James Howard, Trustee of Board of Trustees for San Antonio Independent School District;
   Ed Garza, Trustee of Board of Trustees for San Antonio Independent School District; and
                              Democracy Prep Public Schools, Inc.
                                           Appellants

                                                  v.

      SAN ANTONIO ALLIANCE OF TEACHERS AND SUPPORT PERSONNEL,
                               Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2018-CI-08318
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Irene Rios, Justice
                  Beth Watkins, Justice

Delivered and Filed: April 10, 2019

REVERSED AND RENDERED

           Appellee San Antonio Alliance of Teachers and Support Personnel (the “Alliance”) filed

the underlying lawsuit alleging a contract entered into between the San Antonio Independent

School District (“SAISD”) and Democracy Prep Public Schools, Inc. (“Democracy Prep”)
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pursuant to section 11.174 of the Texas Education Code is void. 1 The appellants are Democracy

Prep and the superintendent and all of the members of the board of trustees of SAISD, who were

sued in their official capacities. In their briefs, the appellants present four alternative bases for

holding the trial court erred in denying their pleas: (1) SAISD’s superintendent and trustees did

not engage in the ultra vires act alleged by the Alliance in approving and signing the contract; (2)

the Alliance failed to exhaust its administrative remedies; (3) the Alliance lacks associational

standing; and (4) the Alliance’s claims are moot. Because we hold SAISD’s superintendent and

trustees did not engage in the alleged ultra vires act, we reverse the trial court’s order and render

judgment dismissing the underlying lawsuit. We do not address the appellants’ alternative

arguments. See TEX. R. APP. P. 47.1.

                                                   BACKGROUND

         P.F. Stewart Elementary School is a public school campus within SAISD. Because the

campus received a rating of Improvement Required for four consecutive years, SAISD was

notified the Commissioner of Education (“Commissioner”) intended to impose sanctions on

SAISD after the end of the 2017-2018 school year unless some action was taken to improve the

rating. In response, pursuant to section 11.174 of the Code, SAISD entered into a contract with

Democracy Prep to operate the campus. Under the terms of the contract, Democracy Prep was to

begin operating the campus on July 1, 2018.

         On May 4, 2018, the Alliance filed the underlying lawsuit seeking declaratory and

injunctive relief. The Alliance alleged the contract was void because SAISD failed to consult with

campus personnel regarding the provisions to be included in the contract before the contract was

entered into as required by section 11.174(c) of the Code.


1
  In its second amended petition, the Alliance noted it was not seeking relief from Democracy Prep but included it as
a party “because it may claim an interest relating to the subject of this action,” presumably an interest in the contract.


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       On May 24, 2018, SAISD’s superintendent and trustees filed a first amended plea to the

jurisdiction and brief in support, asserting the trial court did not have jurisdiction to consider the

Alliance’s claims. The Alliance filed a response to the plea on May 31, 2018. That same day,

Democracy Prep also filed a plea to the jurisdiction.

       On June 1, 2018, the trial court held a hearing on the pleas and the Alliance’s request for a

temporary injunction. On June 4, 2018, the trial court signed an order denying the pleas and the

request for temporary injunction. The appellants timely appealed the provisions in the trial court’s

order denying their pleas.

                         STANDARD OF REVIEW AND ULTRA VIRES ACTS

       “Appellate courts reviewing a challenge to a trial court’s subject matter jurisdiction review

the trial court’s ruling de novo.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex.

2018). The resolution of the jurisdictional inquiry in this case involves statutory construction,

which we also review de novo. Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 513 S.W.3d

487, 493 (Tex. 2017). Our primary objective in statutory construction is to give effect to the

Legislature’s intent. Id. We seek that intent “first and foremost” in the statutory text. Lexington

Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). “Where text is clear, text is determinative

of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (op. on

reh’g). Because we presume the Legislature chose the language in a statute deliberately and

purposefully, we “endeavor to interpret each word, phrase, and clause in a manner that gives

meaning to them all.” Levinson Alcoser Assocs., L.P., 513 S.W.3d at 493. “We accordingly read

statutes as a whole so as to render no part inconsistent, superfluous, or devoid of meaning.” Id.

                               IMMUNITY AND ULTRA VIRES ACTS

       “Although governmental entities and officers are generally immune from liability absent

the government’s waiver or consent, such immunity does not prohibit suit against a state official


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if the official’s actions are ultra vires.” Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54,

68 (Tex. 2018). “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. “‘Ministerial

acts’ are those where the law prescribes and defines the duties to be performed with such precision

and certainty as to leave nothing to the exercise of discretion or judgment.” City of Hous. v. Hous.

Mun. Employees Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018) (internal quotation omitted).

                                         SECTION 11.174

       The Alliance contends SAISD’s superintendent and trustees engaged in an ultra vires act

by approving the contract with Democracy Prep because section 11.174(c) of the Code required

SAISD to consult with campus personnel regarding the provisions to be included in the contract

before entering into the contract. SAISD’s superintendent and trustees respond section 11.174(c)

only requires such consultation if the contract is between a school district and an open-enrollment

charter school, and it is undisputed that Democracy Prep is not an open-enrollment charter school.

In resolving this dispute, we are bound by the plain language of the governing statutes.

       The Texas Education Code provides for the following three classes of charters under

Chapter 12 of the Code: (1) a home-rule school district charter as provided by Subchapter B; (2) a

campus or campus program charter as provided by Subchapter C; and (3) an open-enrollment

charter school as provided by Subchapter D. TEX. EDUC. CODE ANN. § 12.002. Under section

11.174 of the Code, a school district campus that receives an overall performance rating of

unacceptable can qualify for an exemption from the sanctions the Commissioner could otherwise

impose if the board of trustees of the district contracts to partner to operate the district campus

with: (1) “the governing body of an open-enrollment charter school;” or (2) “on approval of the

Commissioner, an entity granted a charter by the district under Subchapter C, Chapter 12, that is




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eligible to be awarded a charter under Section 12.101(a).” Id. § 11.174(a), (f). Section 11.174(c)

provides:

            Before entering into a contract as provided by this section, a school district must
        consult with campus personnel regarding the provisions to be included in the
        contract between the school district and the open-enrollment charter school. All
        rights and protections afforded by current employment contracts or agreements may
        not be affected by the contract entered into between the school district and an open-
        enrollment charter school under this section.

Id. § 11.174(c) (emphasis added). Given that section 11.174(a) permits contracts under section

11.174 to be entered into with entities having two different classes of charters, and section

11.174(c) refers to only one of those classes, the clear text of the statute supports the position of

SAISD’s superintendent and trustees that the legislature intended to require consultation under

section 11.174(c) only if the contract is between a school district and an open-enrollment charter

school. Entergy Gulf States, Inc., 282 S.W.3d at 437 (“Where text is clear, text is determinative

of [legislative] intent.”).

        This position is further bolstered when section 11.174 is read as a whole. Levinson Alcoser

Assocs., L.P., 513 S.W.3d at 493 (“we read statutes as a whole so as to render no part inconsistent,

superfluous, or devoid of meaning”). Subsections (k), (l), and (m) further differentiate between

contracts under Subsection (a)(1) with the governing body of an open-enrollment charter school

and contracts under Subsection (a)(2) with an entity granted a charter under Subchapter C as

follows:

            (k) A district proposing to enter into a contract under Subsection (a)(2) shall
        notify the commissioner of the district’s intent to enter into the contract. The
        commissioner by rule shall establish the procedures for a district to notify the
        commissioner under this subsection, including the period within which the
        notification is required before the school year in which the proposed contract would
        take effect, and for a district and, if necessary, an entity to submit information as
        required by the commissioner. The commissioner shall notify the district whether
        the proposed contract is approved not later than the 60th day after the date the
        commissioner receives notice of the proposed contract and all information required
        by the commissioner to be submitted. If the commissioner fails to notify the district


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       that the proposed contract has been approved or denied within the period prescribed
       by this subsection, the proposed contract is considered approved.

           (l) Except as expressly provided by this section, the commissioner may not
       impose additional requirements on an open-enrollment charter school to be
       eligible for a contract under Subsection (a).

           (m) The commissioner shall adopt rules as necessary to administer this section,
       including requirements for an entity and the contract with the entity, including the
       standards required for an entity to receive approval under Subsection (a)(2).

TEX. EDUC. CODE ANN. § 11.174(k)-(l) (emphasis added).

       Despite the clear text of section 11.174 differentiating between contracts under Subsection

(a)(1) and contracts under Subsection (a)(2), the Alliance argues in its brief that section 12.0522(d)

of the Code equates an entity granted a charter under Subchapter C with an entity granted a charter

under Subchapter D. Section 12.0522(d) provides that Subchapter D, which governs open-

enrollment charter schools, applies to a campus granted a charter under Subchapter C “as though

the campus were granted a charter under Subchapter D, and the campus is considered an open-

enrollment charter school.” Id. § 12.0522(d). The Alliance’s argument ignores that section

12.0522(d) refers to a “campus” being considered an open-enrollment charter school and does not

equate the “governing body of an open-enrollment charter school” with an entity granted a

Subchapter C charter which is the differentiation made in Subsections (a)(1) and (a)(2) of Section

11.174. Furthermore, even if section 12.0522(d) is read to create an ambiguity in the distinction

drawn between the classes of charters referenced in section 11.174(a), section 12.0522(d) only

provides that Subchapter D applies to a campus granted a charter under Subchapter C, it does not

refer to section 11.174 which contains specific provisions governing contracts regarding the

operation of district campuses receiving unacceptable performance ratings. See TEX. GOV’T CODE

ANN. § 311.026 (providing specific provision prevails over general in the event of a conflict); State




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ex rel. Best v. Harper, 562 S.W.3d 1, 10 (Tex. 2018) (noting rule that specific prevails over general

applies only when the statutes at issue are ambiguous).

       The Alliance next argues the rules promulgated by the Commissioner do not differentiate

between the governing body of an open enrollment charter school and an entity granted a charter

under Subchapter C because the rules define “operating partner” to include both and require

contacts with an operating partner to include an assurance that the district has consulted with

campus personnel as required by section 11.174(c) of the Code. See 19 TEX. ADMIN. CODE

§ 97.1075(b)(1), (d)(10). We disagree. Just like section 11.174, the rules promulgated by the

Commissioner also differentiate between contracts under Subsection (a)(1) with the governing

body of an open-enrollment charter school and contracts under Subsection (a)(2) with an entity

granted a charter under Subchapter C. Specifically, section 97.1079 of the rules, which was

promulgated in furtherance of section 11.174(k), provides, “This section applies only to

independent school districts that intend to contract to partner to operate a campus and receive

benefits under Texas Education Code (TEC) § 11.174(a)(2).” 19 TEX. ADMIN. CODE § 97.1079(a).

Furthermore, section 97.1079(d)(1) of the rules requires the Commissioner to approve an

eligibility approval request form in furtherance of section 11.174(a)(2)’s requirement that a

contract between a school district and an entity granted a charter under Subchapter C must be

approved by the Commissioner. See TEX. EDUC. CODE ANN. § 11.174(a)(2) (providing for contract

to operate the district campus with “on approval by the commissioner, an entity granted a charter

by the district under Subchapter C, Chapter 12, that is eligible to be awarded a charter under

Section 12.101(a)”); 19 TEX. ADMIN. CODE § 97.1079(d)(1). Finally, section 97.1079(d)(2) of the

rules requires the Texas Education Agency to review eligibility approval requests submitted by

applicants. 19 TEX. ADMIN. CODE § 97.1079(d)(2). With regard to the eligibility approval request

submitted for the contract between SAISD and Democracy Prep, the performance contract


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evaluation form completed by TEA 2 noted the contract met the requirements of section 11.174(c),

explaining:

         To qualify for benefits under TEC §11.174, subsection (c) of that statute requires
         the district to consult with campus personnel regarding provisions to be included in
         a contract between the district and an open-enrollment charter school. This same
         subsection requires that the contract between a school district and an open-
         enrollment charter school not affect the rights and protections afforded by current
         employment contracts or agreements. TAC §97.1075(d)(10) requires an assurance
         that the district has consulted with campus personnel regarding the provisions
         included in the performance contract and that the rights and protections afforded by
         current employment contracts or agreements shall not be affected by this contract
         as required by TEC §11.174(c). Open-enrollment charter schools are authorized
         by TEC Chapter 12, Subchapter D “Open Enrollment Charter Schools.” Because
         this contract is between a school district and [an] entity granted a charter under TEC
         Chapter 12, Subchapter C “Campus or Campus Program Charter,” and not with an
         entity granted a charter under TEC Chapter 12, Subchapter D “Open Enrollment
         Charter Schools,” the requirements in TEC §11.174(c) and 19 TAC §97.1075(d)(1)
         do not apply to this application.

         Finally, the Alliance contends legislative history supports applying section 11.174(c) to all

eligible entities and cites revisions in the language of the senate bill as it made its way through the

legislative session and comments by three representatives. Legislative history, however, “cannot

be used to alter or disregard the express terms of a code provision when its meaning is clear from

the code when considered in its entirety.” Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,

284 (Tex. 1999). Furthermore, “[s]tatements made during the legislative process by individual

legislators or even a unanimous legislative chamber are not evidence of the collective intent of the




2
  We note TEA sent a letter to SAISD’s superintendent making the approval of the proposed contract with Democracy
Prep contingent on several modifications to the contract. Perhaps the Legislature imposed the consultation
requirement under section 11.174(c) only on open-enrollment charter schools because section 11.174(a)(2) requires
the Commissioner to approve contracts with entities granted a charter under Subchapter C. The Commissioner’s
approval under section 97.1079 of the rules is not required for contracts with open-enrollment charter schools. See
TEX. EDUC. CODE ANN. § 11.174(l) (“Except as expressly provided by this section, the commissioner may not impose
additional requirements on an open-enrollment charter school to be eligible for a contract under Subsection (a).”); 19
TEX. ADMIN. CODE § 97.1079(a) (“This section applies only to independent school districts that intend to contract to
partner to operate a campus and receive benefits under Texas Education Code (TEC) § 11.174(a)(2).”). Since this is
a just and reasonable result, the Legislature requires us to credit an interpretation that supports it. See TEX. GOV’T
CODE ANN. § 311.021(3).


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majorities of both legislative chambers that enacted a statute.” Molinet v. Kimbrell, 356 S.W.3d

407, 414 (Tex. 2011). In this case, section 11.174, when read in its entirety, clearly differentiates

between a Subsection (a)(1) contract with the governing body of an open-enrollment charter school

and a Subsection (a)(2) contract with an entity granted a charter under Subchapter C. We are not

at liberty to disregard a distinction the Legislature enacted. See Fort Worth Transp. Auth. v.

Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).

                                           CONCLUSION

       Because the plain text of section 11.174 establishes that the consultation requirement in

section 11.174(c) applies only to an open-enrollment charter school and Democracy Prep is not an

open-enrollment charter school, SAISD’s superintendent and trustees were not required to consult

with campus personnel before entering into the contract with Democracy Prep. Accordingly, the

Alliance has failed to allege an ultra vires claim. Therefore, the trial court erred in denying the

appellants’ pleas to the jurisdiction. The provisions of the trial court’s order denying the pleas are

reversed, and judgment is rendered dismissing the underlying lawsuit.

                                                  Beth Watkins, Justice




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