     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                   NO. 03-13-00387-CV



   Bridgeport Independent School District, Abilene Independent School District, Denton
Independent School District, Grapevine-Colleyville Independent School District, Copperas
Cove Independent School District, Stephenville Independent School District, Grand Saline
       Independent School District, Groesbeck Independent School District, Hallsville
 Independent School District, Rule Independent School District, Alice Independent School
    District, Alvarado Independent School District, Alvord Independent School District,
  Ballinger Independent School District, Beckville Independent School District, Blackwell
    Consolidated Independent School District, Brownsboro Independent School District,
     Bruceville-Eddy Independent School District, Bullard Independent School District,
    Calallen Independent School District, Carlisle Independent School District, Carthage
     Independent School District, Castleberry Independent School District, Chapel Hill
      Independent School District (Tyler), Chico Independent School District, Chireno
Independent School District, Coleman Independent School District, Colorado Independent
   School District, Cross Plains Independent School District, Decatur Independent School
District, Diboll Independent School District, Eagle Mountain-Saginaw Independent School
 District, Eula Independent School District, Everman Independent School District, Fabens
       Independent School District, Floresville Independent School District, Floydada
      Independent School District, Frankston Independent School District, Gainesville
    Independent School District, Garner Independent School District, Gary Independent
School District, Godley Independent School District, Harleton Independent School District,
  Hawkins Independent School District, Hawley Independent School District, Henderson
     Independent School District, Hudson Independent School District, Hughes Springs
Independent School District, Huntington Independent School District, Jarrell Independent
    School District, Jourdanton Independent School District, Keene Independent School
District, Kerens Independent School District, La Vernia Independent School District, Lake
    Worth Independent School District, Laneville Independent School District, Leonard
  Independent School District, Linden-Kildare Consolidated Independent School District,
Lingleville Independent School District, Lipan Independent School District, Little Cypress-
    Mauriceville Consolidated Independent School District, Lorena Independent School
  District, Monahans-Wickett-Pyote Independent School District, Nordheim Independent
School District, Palestine Independent School District, Pecos-Barstow-Toyah Independent
   School District, Perryton Independent School District, Petersburg Independent School
   District, Pewitt Consolidated Independent School District, Ponder Independent School
  District, Port Neches-Groves Independent School District, Quitman Independent School
  District, San Saba Independent School District, Seagraves Independent School District,
    Shallowater Independent School District, Silsbee Independent School District, Sinton
    Independent School District, Slidell Independent School District, Snook Independent
 School District, Spring Hill Independent School District, Springtown Independent School
   District, Sweetwater Independent School District, Tatum Independent School District,
  Taylor Independent School District, Three Rivers Independent School District, Tornillo
Independent School District, Trinity Independent School District, Valley View Independent
    School District (Valley View), Van Independent School District, Vernon Independent
    School District, Waskom Independent School District, White Settlement Independent
     School District, Winona Independent School District, Woodson Independent School
    District, Center Independent School District, Corrigan-Camden Independent School
  District, Crane Independent School District, Elgin Independent School District, Florence
   Independent School District, Gregory-Portland Independent School District, Groveton
    Independent School District, Iraan-Sheffield Independent School District, Mumford
 Independent School District, Needville Independent School District, Presidio Independent
     School District, Rio Hondo Independent School District, Smyer Independent School
     District, Southside Independent School District, Wells Independent School District,
                      Longview Independent School District, Appellants

                                                  v.

    Michael Williams, in his Official Capacity as the Commissioner of Education, and the
                             Texas Education Agency, Appellees


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
                     NOS. D-1-GN-12-003824, D-1-GV-13-000270,
             HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                                           OPINION


               The appellant school districts appeal from the trial court’s order of dismissal granting

the plea to the jurisdiction of appellees Michael Williams and the Texas Education Agency (TEA).

Because we conclude that appellants’ claims are not ripe, we affirm the trial court’s order.


                                         BACKGROUND

               The TEA receives federal grants under the federal No Child Left Behind Act (NCLB),

and then distributes the grants to local school districts. See Tex. Educ. Code § 7.031; see generally

                                                  2
20 U.S.C. §§ 6301–7941. The NCLB requires states to set accountability standards for schools and

to monitor compliance by schools and requires the schools to demonstrate “adequate yearly progress.”

See 20 U.S.C. § 6311. To comply with this requirement, TEA adopted section 97.1004, which sets

accountability standards and performance monitoring for determining Texas schools’ “Adequate

Yearly Progress” “in accordance with the [NCLB].” See 19 Tex. Admin. Code § 97.1004 (Texas

Education Agency, Adequate Yearly Progress (AYP)). The section currently states that the

“determination of AYP for school districts and charter schools in 2012 is based on specific criteria

and calculations, which are described in excerpted sections of the 2012 AYP Guide provided in this

subsection.”1 Id. § 97.1004(b). The AYP Guide provides an appeals process for a school district to

challenge an AYP designation determination. See id.

               Appellants sued TEA and Michael Williams in his official capacity as the

Commissioner of Education for injunctive and declaratory relief under section 2001.038 of the

Administrative Procedure Act (APA), see Tex. Gov’t Code § 2001.038, and section 37.003 of the

Uniform Declaratory Judgments Act (UDJA). See Tex. Civ. Prac. & Rem. Code § 37.003. They

challenged the validity of the AYP Guide, arguing that TEA did not have statutory authority to adopt

it. Appellants also asserted claims of ultra vires actions and violations of Article I, section 3 of the




        1
           Section 97.1004 was first adopted in 2005 and has been amended annually through 2012 to
 set AYP standards for each year. See 30 Tex. Reg. 3995 (adopted to be effective July 14, 2005);
 30 Tex. Reg. 7036 (amended to be effective Nov. 3, 2005); 31 Tex. Reg. 7988 (amended
 to be effective Sept. 20, 2006); 32 Tex. Reg. 4753 (amended to be effective Aug. 8, 2007);
 33 Tex. Reg. 8167 (amended to be effective Sept. 30, 2008); 34 Tex. Reg. 5912 (amended to be
 effective Sept. 1, 2009); 35 Tex. Reg. 9500 (amended to be effective Oct. 31, 2010);
 36 Tex. Reg. 4799 (amended to be effective Aug. 2, 2011); 37 Tex. Reg. 6592 (amended to be
 effective Sept. 2, 2012).

                                                   3
Texas Constitution. See Tex. Const. art. I, § 3 (equal protection clause); City of El Paso v. Heinrich,

284 S.W.3d 366, 372–77 (Tex. 2009) (describing ultra vires claims).

               Further, ninety-two appellants sought judicial review of preliminary 2012 AYP

designation determinations under section 7.057 of the Education Code and section 2001.171 of the

APA. See Tex. Educ. Code § 7.057(d); Tex. Gov’t Code § 2001.171. The school districts appealed

pursuant to the procedure provided in the AYP Guide and sought relief based on their contention that

the AYP Guide was an “improperly adopted rule.” TEA denied the appeals. Although the school

districts’ claims were referred to the State Office of Administrative Hearings, no contested hearing

was conducted. After a prehearing conference, the Administrative Law Judge dismissed the claims

for “failure to state a claim for which relief can be granted.” The school districts filed motions for

rehearing, but TEA determined that “[n]o action was necessary” because the school districts “did not

properly invoke the Commissioner’s contested case jurisdiction.” The suit for judicial review was

consolidated with appellants’ suit asserting claims for injunctive and declaratory relief.

               Appellees filed a plea to the jurisdiction. They challenged the trial court’s jurisdiction

to consider any of appellants’ claims. They argued that appellants had failed to allege facts to

establish that they had “any legal right or privilege that has been interfered with or impaired” as

required by section 2001.038 of the APA and that appellants’ pleadings did not meet the requirements

of the UDJA because the UDJA was not an independent grant of jurisdiction. They also challenged

appellants’ standing, raised sovereign immunity, and urged that, to the extent appellants’ claims were

moot or not ripe, appellants were seeking an advisory opinion.




                                                   4
               Appellants filed a response as well as a motion for summary judgment with evidence.

The parties also filed additional briefing with the trial court. Following a hearing on appellants’

motion for summary judgment and appellees’ plea to the jurisdiction, the trial court granted the plea

without stating the grounds for its ruling and dismissed appellants’ claims. This appeal followed.


                                            ANALYSIS

               Appellants raise 12 issues on appeal. They state their issues as follows:


       1.      Are Appellees creatures of state law, or do they have additional powers
               granted to them by the United States Congress to adopt and enforce state rules
               to implement federal law?

       2.      Did the Texas Legislature strip Appellees of authority to adopt rules regulating
               federal grant applications in a 1995 re-write of the Education Code?

       3.      Are the rules, orders and acts of Appellees ultra vires?

       4.      Are the rules of Appellees among “the school laws of this state” within the
               meaning of Education Code Section 7.057(a)?

       5.      Do the rules, orders and acts of Appellees aggrieve the Appellants?

       6.      Do federal laws, rules or grant terms establish the rules needed to apply AYP
               ratings to Appellants?

       7.      Are Appellants’ injuries redressable by order of the trial court?

       8.      Does sovereign immunity bar Appellants’ claims?

       9.      Have Appellees improperly applied rating standards that were never proposed
               or adopted as rules?

       10.     Have Appellees violated state law by applying their 2012 AYP Guide to
               student performance after only one test administration?




                                                  5
       11.     Do the well-pleaded facts and summary-judgment evidence establish a lack of
               subject-matter jurisdiction over Appellants’ claims?

       12.     Did the trial court err in dismissing this case?


Appellants primarily attack the 2012 AYP Guide, its “bridge study” methodology,2 and the use of

single test administration to determine AYP designations.

               In their briefing, appellees argue that appellants’ issues are moot because the United

States Department of Education (USDE) granted TEA a waiver in September 2013 from the

requirement that it issue AYP designation determinations. See 20 U.S.C. § 7861 (authorizing

waivers of statutory and regulatory requirements of NCLB); In re Kellogg Brown & Root, Inc.,

166 S.W.3d 732, 737 (Tex. 2005) (noting that case becomes moot if controversy ceases to exist on

appeal); William v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that “a controversy must exist

between the parties at every stage of the legal proceeding, including the appeal” for plaintiff to have

standing and that, if controversy ceases to exist, case becomes moot); Texas Health Care Info.

Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied)

(“A case becomes moot when: (1) it appears that one seeks to obtain a judgment on some

controversy, when in reality none exists; or (2) when one seeks a judgment on some matter which,

when rendered for any reason, cannot have any practical legal effect on a then-existing controversy.”).




        2
        The “bridge study” methodology converts test result data between the State of Texas
Assessments of Academic Readiness and the Texas Assessment of Knowledge and Skills.

                                                  6
                Appellees include in their appendix to their brief, among other documents, a letter

from TEA to the school district administrators dated November 1, 2013.3 TEA notified the

administrators that, in September 2013, the USDE “granted the State of Texas a conditional waiver

for specific provisions of the Elementary and Secondary Education Act of 1965 (ESEA), as

reauthorized by the [NCLB].” TEA further stated:


       A key change resulting from the NCLB waiver is the elimination of the AYP
       designation . . . . With the granting of the NCLB waiver, AYP has been superseded
       to allow for a more flexible, state-specific approach to identifying schools in need of
       intervention.


TEA also noted that the waiver was conditional until “USDE reviews and approves Texas’s proposed

guidelines for teacher and principal evaluation and support systems, which will be submitted in

Spring 2014.”

                Appellants argue that their claims are not moot because USDE’s waiver is “an

extremely complicated, short-lived, and conditional agreement” that “expires in May, of its own

terms.”4 While the parties join issue with whether the conditional waiver moots appellants’ claims,

we view the controlling issue “more precisely as one of ripeness.” See Patterson v. Planned

Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). The ripeness doctrine “emphasizes the need for a



        3
         Although the letter is not in the appellate record, we take judicial notice of undisputed facts
contained in the letter because they impact our jurisdictional inquiry. See Tex. R. Evid. 201;
Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623–24 (Tex. 2012) (citing Texas Rule of
Evidence 201 and noting that appellate courts may take judicial notice of relevant facts outside
record to determine jurisdiction).
        4
          Appellants do not dispute the USDE’s waiver or the elimination of AYP standards
and designations.

                                                  7
concrete injury for a justiciable claim to be presented” and “examines when [an] action may be

brought.” Id. at 442. It “focuses on whether the case involves ‘uncertain or contingent future events

that may not occur as anticipated, or indeed may not occur at all.’” Id. (citation omitted). “By

maintaining this focus, the ripeness doctrine serves to avoid premature adjudication.” Id. Whether

claims are ripe is “determined at the time of adjudication.” Perry v. Del Rio, 66 S.W.3d 239, 250

(Tex. 2001); see id. (“Ripeness should be decided on the basis of all the information available to the

court. Intervening events that occur after decision in lower courts should be included, just as must be

done with questions of mootness.” (citation omitted)); see also Robinson v. Parker, 353 S.W.3d 753,

755 (Tex. 2011) (“Although a claim is not required to be ripe at the time of filing, if a party cannot

demonstrate a reasonable likelihood that the claim will soon ripen, the case must be dismissed.”

(citing Perry, 66 S.W.3d at 251)).

               We find the Texas Supreme Court’s analysis in Patterson instructive. In the context

of federally funded programs, a family planning service provider challenged the constitutionality of

a rider to the state’s “family planning appropriation” that declared “‘no state funds may be used to

dispense prescription drugs to minors without parental consent.’” 971 S.W.2d at 440 (quoting General

Appropriations Act, 75th Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535, 5675). The plaintiff’s

alleged injury was the loss of eligibility for federal funds. See id. at 441. In concluding that the

plaintiff’s injury remained contingent and that its challenge to the rider was not ripe, the court

recognized that the constitution is the foundation for the ripeness and other justiciability doctrines.

Id. at 442–43. The supreme court also explained the “pragmatic, prudential aspect” of the ripeness

doctrine in addition to the constitutional justiciability issues presented:



                                                   8
        Moreover, avoiding premature litigation prevents courts from “entangling themselves
        in abstract disagreements over administrative policies” while at the same time serving
        to “protect the agencies from judicial interference until an administrative decision has
        been formalized and its effects felt in a concrete way by the challenging parties.”


Id. at 443 (citations omitted). The court noted that the contingencies as to the plaintiff’s claims

included “what the federal government will do if the state carries out its plan” and “what exactly the

state will do.” Id. at 444.

                Similar to the noted contingencies in Patterson, whether the USDE’s waiver becomes

unconditional and what the state’s plan will be going forward if the waiver expires remain uncertain.

See id.; see also Brantley v. Texas Youth Comm’n, 365 S.W.3d 89, 102–03 (Tex. App.—Austin 2011,

no pet.) (concluding that claim challenging enactment was not ripe because plaintiff “neither alleged

nor presented evidence that [enactment] has had or is threatening to have any tangible impact on her”

and that plaintiff’s “asserted interest in declaratory and injunctive relief rests upon the sorts of

‘uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at

all’ that characterize unripe claims” (quoting Patterson, 971 S.W.2d at 442)).

                Informed by the supreme court’s analysis in Patterson, we conclude that appellants’

alleged injury remains contingent and that appellants’ claims are not ripe for review. See 971 S.W.2d

at 444. Thus, we would be issuing an advisory opinion were we to address appellants’ issues. See

Robinson, 353 S.W.3d at 756 (concluding that petitioners “failed to present a sufficiently ripe,

justiciable claim” because “no showing that Petitioners have suffered a concrete injury” and

expressing “no opinion on whether, even if case was ripe, [Petitioners] would have standing” because

“‘[t]he essence of the ripeness doctrine is to avoid premature adjudication . . . [and] to hold otherwise

                                                   9
would be the essence of an advisory opinion, advising what the law would be on a hypothetical set

of facts’” (quoting Patterson, 971 S.W.2d at 444)); Patterson, 971 S.W.2d at 443 (noting that “courts

of this state are not empowered to give advisory opinions” and that “[t]his prohibition extends to

cases that are not yet ripe”); see also Tex. Const. art. II, § 1 (separation of powers).


                                           CONCLUSION

                For these reasons, we affirm the district court’s order granting appellees’ plea to

the jurisdiction.



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: May 23, 2014




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