                   NUMBER 13-16-00253-CV

                   COURT OF APPEALS
              THIRTEENTH DISTRICT OF TEXAS
               CORPUS CHRISTI – EDINBURG


EDINBURG CONSOLIDATED INDEPENDENT                     Appellants,
SCHOOL DISTRICT, SILVIA LEDESMA, AND
CARLOS GUZMAN,

                               v.

SOBEYDA I. SMITH, DANIEL REBOLLAR,
AND MARIELY REBOLLAR,                                 Appellees.


            On appeal from the 398th District Court
                  of Hidalgo County, Texas.


                   NUMBER 13-16-00254-CV

                   COURT OF APPEALS
              THIRTEENTH DISTRICT OF TEXAS
               CORPUS CHRISTI – EDINBURG


   IN RE SOBEYDA I. SMITH, DANIEL REBOLLAR, AND MARIELY
                         REBOLLAR


               On Petition for Writ of Injunction.
                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
       In our cause number 13-16-00253-CV, appellants Edinburg Consolidated

Independent School District (“ECISD”), Sylvia Ledesma, and Carlos Guzman appeal (1)

an order granting a temporary injunction rendered in favor of plaintiffs below and

appellees herein Sobeyda I. Smith, Daniel Rebollar, and Mariely Rebollar, and (2) an

order denying their plea to the jurisdiction. Intervenor below, Lydia Elizondo Mount,

individually and as next friend of Michael Edward Reed, has also appealed the order

granting the temporary injunction. In our cause number 13-16-00254-CV, the appellees

filed a petition for writ of injunction and an emergency motion for temporary relief pending

determination of the merits of the petition.      The central issue presented in these

proceedings is whether appellants possess governmental or official immunity for their

determination that a computer science class does not count as a weighted class for

purposes of class ranking at Robert Vela High School in Edinburg, Texas. ECISD (Local)

Policy provides that the “District shall include in the calculation of class rank semester

grades earned in high school credit courses . . . in the following subject areas only:

English, languages other than English, mathematics, science, and social studies.”

       We have received the clerk’s and reporter’s records in the appeal and have

requested and received responses to the petition for writ of injunction from appellants and

intervenor. Given the urgent and extraordinary nature of the issues presented herein, the

appeal will be submitted to the Court without briefs. See TEX. R. APP. P. 28.3; In re Tex.


                                             2
Natural Res. Conservation Comm’n, 85 S.W.3d 201, 207 (Tex. 2002); In re J.S., 136

S.W.3d 716, 717 (Tex. App.—El Paso 2004, no pet.). However, in our consideration of

the appeal, we are guided by the motions filed in the appeal and all pleadings filed in the

original proceeding.1

        We conclude that ECISD, Ledesma, and Guzman are immune from suit.

Accordingly, we reverse the trial court’s order granting the temporary injunction and

dissolve the temporary injunction, and we reverse the trial court’s denial of the pleas to

the jurisdiction and render judgment dismissing the appellees’ claims against ECISD,

Ledesma, and Guzman for lack of jurisdiction. We dismiss the petition for writ of injunction

as moot.2

                                                  I. BACKGROUND

        Under ECISD (Local) Policy, “eligible courses” are categorized and weighted for

purposes of calculating numerical grade point averages depending on whether the course

is designated as an “AP” course, a “dual enrollment” course, a “Pre-AP” course, an




        1  Plaintiffs have filed a motion to consolidate the original proceeding in cause number 13-16-00254-
CV with the accelerated appeal pending in cause number 13-16-00253-CV, and to apply the previously-
issued injunction in the original proceeding to the accelerated appeal. The motion is opposed by appellants
and intervenor. Given the intertwined substantive issues raised in the appeal and the original proceeding,
the complexity of the issues presented, and the urgency of the matters herein, we consider it advisable to
consolidate these matters for purposes of judicial efficiency. Accordingly, we GRANT the motion to
consolidate, in part, insofar as the appeal and original proceeding will be treated as a consolidated matter
for all purposes in this Court. The motion is DENIED in all other respects.

        2 ECISD, Ledesma, and Guzman have filed an “Amended Motion to Modify or Clarify Emergency
Order issued May 6, 2016,” through which they and the plaintiffs propose that Mariely and Michael should
participate in graduation as the two highest ranked students in their graduating class, without either student
being designated as valedictorian, and prohibiting ECISD from designating either as valedictorian or issuing
an Honor Graduate Certification to either student until after the final conclusion of the underlying litigation
and any and all related appeals or original proceedings. The motion states that the appellants have been
unable to confer with the intervenor and we should deem that she is opposed to the relief sought. Given
our disposition of the appeal and the matters herein, we DISMISS this motion as moot.
                                                      3
“honors” course, or an “advanced” course.” “AP” courses and “dual enrollment” courses

are weighted the highest, receiving an additional “plus 10” points to the grade that the

student earns on a 100 point scale.

       During the 2015-2016 school year, student Mariely Rebollar was advised by her

counselor, Reynaldo Garza, that one of the courses available at her school, 2904 Dual

Enrollment Computer Science, would be weighted and included for grading purposes in

class ranking as a “plus 10” class. The class was new and had first been available during

the previous school year. It had been weighted for class ranking purposes that year,

affecting a student who took the class and graduated ranked number nine during the

2014-2015 school year. Mariely’s father, Daniel Rebollar, a teacher at Robert Vela,

taught the class, which was primarily taken by freshmen and sophomores. Mariely, a

senior, took the class and made a grade of 100. Thus, she anticipated that she would

receive an additional ten points to that grade that would be included in the class rank

calculations.

       After Mariely completed the class, ECISD determined that the class did not

constitute a core class, i.e., “a class in English, languages other than English,

mathematics, science, and social studies,” and the grade in that class could not be used

for ranking purposes. On January 19, 2016, Ledesma, principal of the high school, issued

a letter to the students who had enrolled in the class stating that the dual enrollment

computer science course would not be counted in calculating the class rankings for the

2016 graduating class. This determination affected approximately seventy to eighty

students who had taken the class.



                                           4
       On February 5, 2016, Mariely and her parents, Daniel Rebollar and Sobeyda I.

Smith, filed a grievance asserting that ECISD employees told them, before Mariely

registered for and attended the class, that this course would be included as a “weighted

class” in calculating the class rank. They asserted that they relied on these statements

in deciding to take the class and that the same class had counted as a weighted class

during the previous school year. Their grievance asked ECISD to include the computer

science class in calculating the 2016 class rank.

       On March 4, 2016, Ledesma issued the Level I decision denying the appellees’

grievance. The basis for the decision was the ECISD (Local) Policy stating that: “The

district shall include in the calculation of class rank semester grades earned in high school

credit courses taken in grades 9-12 in the following subject areas only:            English,

languages other than English, mathematics, science, and social studies.”

       The appellees filed a Level II appeal. On April 7, 2016, Carlos Guzman, the High

School Area Director for ECISD, denied that appeal in a four-page detailed opinion. The

opinion gave several rationales which can be summarized as follows:

       First, Guzman reiterated that the computer science class did not qualify under

ECISD (Local) Policy as a ten-point weighted dual credit class because it did not fall within

one of the qualifying subject matters.

       Second, the 2015-2016 ECISD course catalog did not include the 2904 computer

science class but did include a different class, 2903 computer science, listed under the

subject of mathematics. Guzman stated that the catalog did not address the specific

course under consideration and that the catalog, created and drafted by administrative

staff, was not a binding document, contained no representations that the content reflected
                                             5
district policy, and was intended to be utilized only as a planning tool for the students’

parents. Guzman asserted that ECISD was bound to follow the ECISD (Local) Policy

“regardless of what the administration chooses to publish in the course catalog.”

       Third, the Texas Administrative Code provision stating that computer science may

be used to satisfy a “language other than English” (LOTE) requirement for graduation is

not dispositive that computer science is itself a language other than English class. See

TEX. ADMIN. CODE ANN. § 74.12 (West, Westlaw through 2015 R.S.) (specifying the

foundation high school program requirements). Under this section, a student may take

two credits in computer programming language as an alternative method for satisfying

LOTE requirements for graduation. Guzman stated that the “plain language” of the

statute provided that computer science courses “may” satisfy the LOTE requirement for

graduation, but that did not mean that computer science courses are to be classified as

LOTE for the purposes of the ECISD (Local) ten-point weight calculations for grading

purposes. According to Guzman, “[h]ad this been the case, the Code drafters could have

very simply used language stating that Computer Science courses constitute LOTE

courses, rather than the permissive ‘may be selected’ language that was actually used

instead.” Guzman stated that even if this section created an inference that computer

science classes might be classified as LOTE for the purposes of the ECISD (Local)

calculation, the inference was “simply too weak to pass muster in light of the classification

evidence put on by the District.”

       Fourth, Guzman stated that the subject matter categorization of 2904 computer

science is determined by the Texas Education Agency (“TEA”), and not by ECISD.

According to Guzman:
                                             6
      Edinburg CISD does not have the ability to label courses as mathematics
      or LOTE for the purposes of [ECISD (Local)] 10-point weight calculation.
      The subject matter of a course is determined by the Texas Education
      Agency (TEA). The TEA provides an individual Course ID for all of the
      courses offered by Texas public schools. For example, the TEA code
      corresponding to 2904 Computer Science is no. 03580200. The ID codes
      of all courses correspond to a subject matter chart TEA provides in order to
      provide Texas public school districts with the information required for
      districts to provide highly qualified teachers for that subject matter. The
      TEA subject matter chart for 2904 Computer Science is labeled “Table 22,”
      and is provided as Exhibit 2 to this document. Table 22 clearly defines
      course no. 03580200 as a Career and Technology course. As such, it does
      not qualify for [ECISD (Local)] 10-point calculations.

      Even if done under the best intentions, to alter or adjust the computer
      science course to calculate as a mathematics course for the purpose of
      [ECISD (Local)] would be a knowing and fraudulent violation of the District’s
      obligations of accurate reporting to the TEA. Edinburg CISD does not have
      the authority to override the course subject matter table that corresponds
      with the no. 03580200 course number provided by TEA. Similarly, because
      of the District’s obligations to accurately report grades and graduations to
      TEA’s PEIMS data center, Edinburg CISD does not have the authority to
      simply alter student [Mariely’s] GPA or award [Mariely] the weighted 10
      points. Therefore, as unfortunate as it is that student [Mariely] was
      mistakenly provided incorrect information regarding the GPA calculations of
      her 2904 Computer Science class, Edinburg CISD does not have the
      authority or the ability to grant the relief that [Mariely] seeks without violating
      the District’s obligations to the TEA. As a result of these findings, this
      grievance must be denied.

      The appellees filed a Level III appeal. On April 22, 2016, the ECISD Board of

Trustees denied that appeal.

      On April 18, 2016, the appellees filed suit against ECISD and Ledesma. That

same day, the trial court granted an ex parte temporary restraining order in favor of the

appellees which expired on May 2, 2016. On April 27, 2016, the intervenor filed an

intervention and a plea to the jurisdiction. On May 2, 2016, the appellees filed a third

amended petition, application for temporary restraining order, and request for temporary

injunction against ECISD, Ledesma, and Guzman, pleading common law tort claims, an
                                              7
ultra vires cause of action, and two constitutional claims. The appellees asserted that

they were damaged “because of [ECISD, Ledesma, and Guzman’s] refusal to include the

Dual Enrollment Computer Science Class 2904 in the grade point average for purposes

of ranking.” According to the appellees, it is the “policy of public universities in Texas that

the highest ranking student of each graduating class gets free tuition for the first year at

a public university,” and if the class is not included, “Mariely has no chance of becoming

the highest ranked and will lose the first year’s tuition.” They requested declaratory and

injunctive relief.3

        ECISD and Ledesma filed an original answer, plea to the jurisdiction, and special

exceptions to the appellees’ original petition.4 They asserted that they were protected by

official as well as sovereign and governmental immunity—Ledesma in her official capacity

and ECISD as a political subdivision of the State:

              In the four causes of action upon which this suit is based, Plaintiffs
        have pled various tort causes of action against Defendants. Edinburg


        3  We note that the appellees’ allegations regarding class ranking are speculative insofar as they
allege that they “believe that if the Computer Science Class is included in the rankings, Mariely will be
ranked as the number one student in the class,” and “[w]ithout the class, she does not have the chance to
be Valedictorian.” Appellees assert that it is “possible and/or likely that she will become the highest ranking
student” if the dual enrollment class were included for ranking purposes, but if not, she has “no chance” or
“opportunity” to become the highest ranked student.” An injunction is not proper when the claimed injury is
merely speculative; fear or apprehension of injury is not sufficient to support a temporary injunction. Frey
v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983); Washington DC Party
Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 742 (Tex. App.—Houston [14th Dist.] 2013, pet. denied);
Shor v. Pelican Oil & Gas Mgmt., LLC, 405 S.W.3d 737, 750 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

         4 The clerk’s record does not indicate that the ECISD defendants filed an amended answer or plea

to the jurisdiction after Guzman was made a party to the suit in the plaintiffs’ third amended petition.
However, although Guzman did not file a plea to the jurisdiction, a court may consider jurisdiction on its
own initiative. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000); Tex. Worker’s
Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517 n.15 (Tex. 1995); see also Fischer v. Klein, No. 03-10-
00310-CV, 2014 WL 5420405, at *2 (Tex. App.—Austin Oct. 23, 2014, no pet.) (mem. op.). Further, subject
matter jurisdiction may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993). Accordingly, we consider the trial court’s jurisdiction over Guzman in terms
of immunity in this appeal. See Tex. Ass’n of Bus., 852 S.W.2d at 445; Tex. Workers’ Comp. Com’n v.
Horton, 187 S.W.3d 282, 285 (Tex. App.—Beaumont 2006, no pet.).
                                                      8
      Consolidated Independent School District and Sylvia Ledesma affirmatively
      plead that pursuant to Texas Education Code § 22.051, a professional
      employee of a school district is not personally liable for any act that is
      incident to or within the scope of the employee’s position of employment
      and that involves the exercise of judgment or discretion on the part of the
      employee. All of the actions and/or failures to act alleged by Plaintiffs as
      the basis of their suit fall squarely within this statutory grant of immunity.
      Government officials and employees are entitled to official immunity from
      liability for the performance of their (1) discretionary duties, in (2) good faith
      as long as they are (3) acting within the scope of authority. See Kassen v.
      Harla, 887 S.W.2d 4, 9 (Tex. 1994); City of Lancaster v. Chambers, 883
      S.W.2d 650, 653 (Tex. 1994).

      ECISD and Ledesma further specially excepted as to claims against them in their

official capacities because “a party suing a governmental agency and/or governmental

actors, protected by sovereign immunity, must allege consent to suit either by reference

to a statute or express legislative permission,” and absent such consent and a pleading

of consent, the court lacks jurisdiction to hear the case. See, e.g., Tex. Dep’t of Transp.

v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Univ. of Tex. Med. Branch at Galveston v.

Mullins, 57 S.W.3d 653, 656 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

      On May 2, 2016, intervenor Mount filed an amended intervention and plea to the

jurisdiction with a request to dissolve the temporary restraining order. She asserted that

she and her son had a justiciable interest in the case because the addition of ten points

to the grade that Mariely earned for the computer science dual enrollment 2904 class

could affect her son Michael’s rank in the 2016 graduating class such that he would not

serve as valedictorian.     She asserted that the appellees’ claims were barred by




                                              9
governmental immunity. She further asserted that Sobeyda and Daniel lacked standing

because Mariely was no longer a minor child.5

        The trial court held hearings on April 25, April 27, and May 3, 2016 on the pleas to

the jurisdiction and the merits of the request for a temporary injunction. The court heard

testimony from Mariely and her parents, Mount, Ledesma, Garza, Guzman, and the

superintendent of ECISD, Dr. Rene Gutierrez. Most of the testimony centered on and

reiterated the rationales previously mentioned during the grievance process for ECISD’s

actions in refusing to count the class for grading purposes and class ranking.

        Mariely testified that she confirmed with her counselor prior to taking the computer

science class that it would count towards her grade point average. Garza, her counselor,

testified that Mariely was already enrolled in the class when he told her that the computer

science class would count for class rankings. Garza testified that he checked with the

early college counselor, the head counselor, and the registrar regarding whether the class

counted for ranking purposes. The appellees generally pointed out that the course

catalog included a similar computer science class under the topic of “mathematics,” and

Mariely’s transcript similarly listed the 2904 dual enrollment class under that topic.

        In contrast, ECISD’s witnesses repeatedly admitted that they had made a mistake

in treating computer science as a weighted course for purposes of class rank, but they

had to correct the error and follow their policies and TEA rules and statutes. Specifically,

Gutierrez, Guzman, and Ledesma testified that they are required to follow ECISD (Local)



         5 The parties included allegations regarding the exhaustion of administrative remedies in their

pleadings; however, the parties conceded that the plaintiffs had exhausted their remedies at the hearings
in this matter. Given our disposition of this appeal and original proceeding, we need not address the
intervenor’s allegations regarding standing as it pertains to Mariely’s parents.
                                                   10
Policy, and that policy requires that weighted classes must be in the core subject areas.

The Public Education Information Management System, which is a state-wide reporting

program, has identified the computer science course as one that is not weighted, and that

standard, which is universal across the state, is unequivocal and is the “final authority” for

how a course is classified. Further, Mariely’s graduation plan defines computer science

classes as an elective credit under career and technology education rather than a “core”

class, as identified in the policies as English, languages other than English, mathematics,

science, and social studies. Guzman testified that the ECISD (Local) Policy regarding

the calculation of class ranking regarding core classes was consistent with the Texas

Administrative Code. Gutierrez testified that the course catalog, which listed a similar

computer science class under the topic of “mathematics,” was not a binding legal

document but was merely an “information item for the parents.”

       On May 5, 2016, the trial court denied the appellants’ and intervenor’s pleas to the

jurisdiction and issued a temporary injunction at 10:05 a.m. which prohibited appellants

from excluding the disputed course and not giving it a ten-point weight in calculating class

rank, and prohibited it from issuing class rankings without the inclusion of the disputed

course until trial on the merits, which is not set until October 17, 2016. The temporary

injunction provided that it would become effective on posting a $500 bond.

       Also on May 5, 2016, at approximately noon, the appellants perfected their appeal

and announced that they would proceed with class rankings because they were entitled

to an automatic stay of the temporary injunction under Texas Rule of Appellate Procedure

29.   See TEX. R. APP. P. 29.1(b) (“Perfecting an appeal from an order granting

interlocutory relief does not suspend the order appealed from unless . . . the appellant is
                                             11
entitled to supersede the order without security by filing a notice of appeal.”); TEX. CIV.

PRAC. & REM. CODE ANN. § 6.004 (West, Westlaw through 2015 R.S.) (“A school district

may institute and prosecute suits without giving security for cost and may appeal from

judgment without giving supersedeas or cost bond.”).

       In the early morning hours of May 6, 2016, the appellees filed their petition for writ

of injunction with this Court. However, on the morning of May 6, 2016, the appellants

proceeded with ranking the students. Michael’s transcript was released, the registrar told

him that he was the valedictorian, and Ledesma told him he was valedictorian and to start

preparing his speech. The other top ten-ranked students were also informed of their class

ranking.   Shortly thereafter, the appellees posted the $500 bond required by the

temporary injunction.

       That afternoon, after these events, this Court issued its temporary order effectively

reinstating the temporary injunction. We further ordered appellants, or any others whose

interest would be directly affected by the relief sought, to file a response to the petition for

writ of injunction. See TEX. R. APP. P. 52.4, 52.8. We have now received a response to

the petition for writ of injunction from ECISD, Ledesma, and Guzman. They request that

this Court dissolve its emergency order and then dismiss or deny the petition for writ of

injunction, or alternatively, issue an order “prohibiting [them] from making any decision on

the class ranking of the Relator or Intervenor student, for purposes of the students’

participation in the graduation ceremony scheduled on June 4, 2016; and prohibit [them]

from producing, and/or from delivering an ‘Honor Graduation Certificate,’ or equivalent

document . . . until the final resolution of the underlying litigation.”



                                               12
       The Court has also received a response from the intervenor. She contends that

this Court lacks jurisdiction to issue injunctive relief; that injunctive relief is not warranted;

and that the petition should be denied as moot because “[f]inal grades were calculated

and the top ten students on May 6, 2016, were notified of their class ranks and the

valedictorian (Michael) and salutatorian (Mariely) were named.” The intervenor has now

also filed a notice of appeal regarding the temporary injunction.

                             II. PETITION FOR WRIT OF INJUNCTION

       A court of appeals may grant injunctive relief for the purpose of protecting its

jurisdiction over a pending appeal and to preserve the subject matter of the litigation so

that the appeal does not become moot. See Dallas Morning News v. Fifth Ct. of Apps.,

842 S.W.2d 655, 658 (Tex. 1992) (orig. proceeding); Becker v. Becker, 639 S.W.2d 23,

24 (Tex. App.—Houston [1st Dist.] 1982, orig. proceeding) (stating that an appellate court

has jurisdiction to grant injunctive relief to protect its jurisdiction over pending appeal, but

not merely to preserve the status quo or prevent loss or damage to a party); see also TEX.

GOV’T CODE ANN. § 22.221(a) (West, Westlaw through 2015 R.S.) (“Each court of appeals

or a justice of a court of appeals may issue a writ of mandamus and all other writs

necessary to enforce the jurisdiction of the court.”). However, the threat of jurisdictional

interference must be real; the writ will not be issued to prevent the mere possibility of

interference. In re Castle Tex. Prod. Ltd. P’ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler

2006, orig. proceeding).

                                 III. PLEA TO THE JURISDICTION

       A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction over

a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Pineda v. City
                                               13
of Houston, 175 S.W.3d 276, 279 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Subject-

matter jurisdiction is required for a court to have authority to decide a case and is never

presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.

1993). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a

cause of action without regard to the merits of the claim. Bland Indep. Sch. Dist., 34

S.W.3d at 554. Thus, when a court analyzes a plea to the jurisdiction, the court must not

weigh the merits of the claim but should consider only the plaintiff’s pleadings and the

evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d

549, 555 (Tex. 2002).

       It is the plaintiff’s burden to allege facts that affirmatively establish the trial court’s

subject matter jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. In determining whether

the plaintiff has met this burden, we look to the allegations in the plaintiff’s pleadings,

accept them as true, and construe them in favor of the plaintiff. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). While we must construe the

allegations in favor of the plaintiff, we are not bound by legal conclusions.             City of

Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

Questions regarding whether the plaintiff has alleged facts that affirmatively demonstrate

a trial court’s subject matter jurisdiction and whether undisputed evidence of jurisdictional

facts establishes a trial court’s lack of jurisdiction are both questions of law which an

appellate court reviews de novo. Miranda, 133 S.W.3d at 226. The trial court may

consider evidence in ruling on a plea to the jurisdiction and must consider evidence when

necessary to resolve the jurisdictional issues raised. Vernco Constr., Inc., v. Nelson, 460

S.W.3d 145, 149 (Tex. 2015).
                                               14
                               IV. GOVERNMENTAL IMMUNITY

        The doctrine of governmental immunity bars suit against the state and its

governmental units unless the state waives immunity. Tex. Adjutant Gen.’s Office v.

Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013). It protects the state and its subdivisions

from lawsuits that would “hamper governmental functions by requiring tax resources to

be used for defending lawsuits and paying judgments rather than using those resources

for their intended purposes.” Id. (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 655–56 (Tex. 2008)). Governmental immunity protects school districts from

suit and liability. See Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex.

2011); Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions

Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006); see TEX. CIV. PRAC. &

REM. CODE ANN. § 101.001(3)(B) (West, Westlaw through 2015 R.S.) (defining

governmental unit as including “a political subdivision of this state” including a school

district).

        A governmental entity’s employee, acting within the course and scope of his

employment, has the same immunity as the governmental entity. City of N. Richland Hills

v. Friend, 370 S.W.3d 369, 373 (Tex. 2012); Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d

783, 790 (Tex. App.—Dallas 2012, pet. denied); see also Bates v. Dallas Indep. Sch.

Dist., 952 S.W.2d 543, 551 (Tex. App.—Dallas 1997, writ denied) (“Trustees and agents

of a school district, while acting in an official capacity, enjoy the same governmental

immunity as does the school district.”).

        Whether a governmental entity is immune from tort liability for a particular claim

depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v.
                                            15
Bossley, 968 S.W.2d 339, 341 (Tex. 1998); Ollie, 383 S.W.3d at 790. The Texas Tort

Claims Act (“TTCA”) provides a limited waiver of immunity for certain suits against

governmental entities and caps recoverable damages. See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 101.021, 101.023 (West, Westlaw through 2015 R.S.). To the extent that liability

arises from the “use of a motor-driven vehicle or motor-driven equipment” or from “a

condition or use of tangible personal or real property,” the TTCA effects a waiver of

liability. Id. § 101.021.

         For a school district, however, the TTCA’s waiver of immunity is more limited and

includes “only tort claims involving the use or operation of motor vehicles.” Mission

Consol. Indep. Sch. Dist., 253 S.W.3d at 656; see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.051 (West, Westlaw through 2015 R.S.) (“Except as to motor vehicles, this chapter

does not apply to a school district or to a junior college district.”); see also Newman v.

Bryan, No. 06-13-00063-CV, 2013 WL 5576369, at *4 (Tex. App.—Texarkana Oct. 9,

2013, no pet.) (mem. op.). Finally, the TTCA provides that the State does not waive

immunity for claims arising out of intentional torts, including a tort involving disciplinary

action by school authorities. See TEX. CIV. PRAC. & REM CODE ANN. § 101.057(2) (West,

Westlaw through 2015 R.S.); City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex.

2014). A claim for misrepresentation is an intentional tort claim. See City of Friendswood

v. Horn, No. 01-15-00436-CV, __ S.W.3d __, __, 2016 WL 638471, at *9 (Tex. App.—

Houston [1st Dist.] Feb. 11, 2016, no pet.); Ethio Express Shuttle Serv. v. City of Houston,

164 S.W.3d 751, 757–58 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of Fort

Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex. App.—Fort Worth 2001, no

pet.).
                                             16
       The Uniform Declaratory Judgment Act (“UDJA”) is not a general waiver of

sovereign immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). Stated

otherwise, “state agencies . . . are immune from suits under the UDJA unless the

Legislature has waived immunity for the particular claims at issue.” Tex. Dep’t of Transp.

v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). Section 37.006(b) of the UDJA provides a

limited waiver of immunity for claims challenging the validity or constitutionality of

ordinances or statutes. TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West, Westlaw

through 2015 R.S.); see Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69,

76 (Tex. 2015); Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.

2011); Heinrich, 284 S.W.3d at 373 n.6.          However, the UDJA waiver of sovereign

immunity is limited or narrow. Tex. Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d

726, 746 (Tex. App.—Austin 2014, pet. dism’d) (describing UDJA waiver of sovereign

immunity as “limited”); see also Harvel v. Tex. Dep’t of Ins.-Div. of Workers’ Comp., No.

13-14-00095-CV, __ S.W.3d __, __, 2015 WL 3637823, at *3 (Tex. App.—Corpus Christi

June 11, 2015, pet. denied) (describing UDJA waiver of sovereign immunity as “narrow”).

The UDJA does “not waive the state’s sovereign immunity when the plaintiff seeks a

declaration of his or her rights under a statute or other law.” Sefzik, 355 S.W.3d at 621;

see Heinrich, 284 S.W.3d at 372–73.

       Governmental entities retain immunity from claims for injunctive relief based on

allegations that government officials are violating the law or exceeding their powers under

the law. Heinrich, 284 S.W.3d at 372–73. Such claims must be brought against the

responsible government actors in their official capacities. See id.

                                       V. ANALYSIS
                                            17
       We begin our analysis by reviewing the appellees’ live pleading to determine if they

met their burden to allege facts that affirmatively establish the trial court’s subject matter

jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at 446. We accept the appellees’

allegations as true and construe them in favor of the appellees, but we are not bound by

any legal conclusions asserted in the pleadings. See Miranda, 133 S.W.3d at 226; City

of Pasadena, 260 S.W.3d at 95.

       In the third amended petition, application for temporary restraining order, and

request for temporary injunction, which was the live pleading at the time the trial court

issued the orders subject to appeal in this case, the appellees brought suit against ECISD,

Ledesma, and Guzman.         The appellees sued Ledesma and Guzman in both their

individual and official capacities. The appellees asserted causes of action for fraudulent

misrepresentation, negligent misrepresentation, general negligence, and intentional

infliction of emotional distress.     They asserted that the appellants violated their

constitutional rights under article I, sections 13 and 19 of the Texas Constitution, and

committed a violation of board policy “by not counting a class that is not specifically

excluded under their local policy.”

       In terms of issues pertaining to jurisdiction, the appellees asserted that Ledesma

and Guzman exceeded their authority and did not comply with ECISD’s policies as it

relates to class ranking, and that they lost their immunity when they acted outside the

scope of their employment. The appellees specifically asserted the ultra vires exception

to sovereign immunity:

             Sovereign immunity protects the State from lawsuits for money
       damages. City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), citing
       Tex. Nat. Res. Conservation Cmm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.
                                             18
      2002). But an “action to determine or protect a private party’s rights against
      a state official who has acted without legal or statutory authority is not a suit
      against the State that sovereign immunity bars.” City of El Paso v. Heinrich,
      284 S.W.3d 366 (Tex. 2009), citing Fed. Sign v. Tex. S. Univ., 951 S.W.2d
      401, 405 (Tex. 1997).

             Under the “ultra-vires exception” to sovereign immunity, such
      immunity is not considered to be implicated by a suit against a state officer
      in his or her official capacity (thereby binding the State through its agent)
      for prospective injunctive or declaratory relief to compel compliance with
      statutory or constitutional provisions. Bacon v. Tex. Historical Comm’n, 411
      S.W.3d 161, 173 (Tex. App.—Austin 2013, no pet.) (citing City of El Paso
      v. Heinrich, 284 S.W.3d 366, 372–80 (Tex. 2009)).

             This suit is brought specifically for the purpose of enjoining Sylvia
      Ledesma, Principal at Robert Vela High School from excluding the class for
      ranking purposes and/or enjoining Carlos Guzman from directing Sylvia
      Ledesma or any other person at Robert Vela High School from excluding
      the class for class rank purposes.

             Sylvia Ledesma and Carlos Guzman have testified, under oath, that
      they are following Board Policy of ECISD in their decision to exclude the
      class at issue for purposes of class ranking. Plaintiffs, under cross
      examination and other evidence presented, have argued that the
      Defendants violated Board policy and acted without legal authority. The
      Supreme Court has stated when there is evidence that has been presented,
      there is a fact issue on the case and the plea to the Jurisdiction must be
      denied. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

As stated previously, the appellants and intervenor asserted generally and specifically

that the appellees’ claims were barred by governmental and official immunity.

                             A. Individual Capacity Claims

      We first address the appellees’ claims against Ledesma and Guzman in their

individual capacities. A plaintiff may sue a government employee in his or her official

capacity, individual capacity, or both. Heinrich, 284 S.W.3d at 373 n.7. A suit against a

government employee in his or her official capacity is a suit against the governmental

employer. Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011). Conversely, a suit

                                             19
against a government employee in his or her individual capacity seeks to impose personal

liability on the individual. Aguilar v. Frias, 366 S.W.3d 271, 273 (Tex. App.—El Paso

2012, pet. denied).

        The filing of a suit against a governmental unit constitutes an irrevocable election

by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff

against any individual employee of the governmental unit regarding the same subject

matter. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 401 (Tex. App.—

Fort Worth 2008, no pet.); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West,

Westlaw through 2015 R.S.); City of Webster v. Myers, 360 S.W.3d 51, 58 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied); see also Kirk v. Plano Indep. Sch. Dist., No. 03-

15-00211-CV, 2016 WL 462742, at *2 (Tex. App.—Austin Feb. 3, 2016, no pet.) (mem.

op.) (rejecting the contention that school district employees were not entitled to official

immunity where they allegedly acted outside the scope of their official duties because the

plaintiff “has foreclosed the possibility of suing only the employees in their individual

capacities by suing both them and the School District”).6




        6 A governmental employee defendant is entitled to dismissal under the Texas Tort Claims Act
(“TTCA”) section 101.106(f) upon proof that the plaintiff's suit (1) was based on conduct within the scope of
the defendant's employment with a governmental unit and (2) could have been brought against the
governmental unit under the TTCA. See Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011). Under
Franka, claims which “could have been brought against the governmental unit” include all common law tort
claims and not just those that fall within the statutory waiver of immunity found in the TTCA. See id. The
TTCA defines “scope of employment” as “the performance for a governmental unit of the duties of an
employee's office or employment and includes being in or about the performance of a task lawfully assigned
to an employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West, Westlaw
through 2015 R.S.). Additionally, “public officials act within the scope of their authority if they are
discharging the duties generally assigned to them.” Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,
424 (Tex. 2004). That is, an employee's scope of authority extends to job duties to which the official has
been assigned, even if the official errs by completing the task. Id.

                                                    20
        In the case at bar, the appellees do not allege any facts illustrating that their claims

against Ledesma or Guzman are based on conduct outside of their general scope of

employment with the school district, or that their determinations in this case are not based

on the exercise of discretion in good faith. Nor do the plaintiffs seek to impose any

element of personal liability on the individual defendants. See Aguilar, 366 S.W.3d at

273. In fact, the appellees made the same allegations against ECISD that they did against

Ledesma and Guzman, and have sued ECISD for the same claims, suggesting that

plaintiffs sued Ledesma and Guzman solely in their official capacities. See Nueces Cnty.

v. Ferguson, 97 S.W.3d 205, 216 (Tex. App.—Corpus Christi 2002, no pet.) (relying in

part on the similarity of claims alleged against a governmental unit and an employee to

conclude that employee had been sued solely in his official capacity). Accordingly, the

appellees’ claims against Ledesma and Guzman in their individual capacities are barred.7

                                          B. Ultra Vires Claims




         7 ECISD and Ledesma further “affirmatively plead that pursuant to Texas Education Code § 22.051,

a professional employee of a school district is not personally liable for any act that is incident to or within
the scope of the employee’s position of employment and that involves the exercise of judgment or discretion
on the part of the employee” and assert that “[a]ll of the actions and/or failures to act alleged by Plaintiffs
as the basis of their suit fall squarely within this statutory grant of immunity.” See TEX. EDUC. CODE ANN. §
22.051 (West, Westlaw through 2015 R.S.) (defining a professional employee of a school district as
including, inter alia a superintendent, a principal, and any other person employed by a school district whose
employment requires certification and the exercise of discretion); id. § 22.0511 (West, Westlaw through
2015 R.S.) (“A professional employee of a school district is not personally liable for any act that is incident
to or within the scope of the duties of the employee's position of employment and that involves the exercise
of judgment or discretion on the part of the employee, except in circumstances in which a professional
employee uses excessive force in the discipline of students or negligence resulting in bodily injury to
students.”); see also Rivera v. Port Arthur Indep. Sch. Dist., No. 13-14-00214-CV, 2016 WL 1613285, at *7
(Tex. App.—Corpus Christi Apr. 21, 2016, no. pet. h.) (mem. op.) (construing these provisions as providing
immunity from liability rather than immunity from suit). We note that government officials and employees
are entitled to official immunity from liability for the performance of their (1) discretionary duties, in (2) good
faith as long as they are (3) acting within the scope of authority. See Kassen v. Hatley, 887 S.W.2d 4, 9
(Tex. 1994); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). In light of our conclusion,
we need not determine whether Ledesma and Guzman are entitled to immunity under education code
section 22.051.
                                                       21
       The appellees contend that their claims against ECISD and Ledesma and Guzman

are not barred by governmental or official immunity based on the ultra vires doctrine.

While governmental immunity shields “the public from the costs and consequences of

improvident actions of their governments,” Tooke v. City of Mexia, 197 S.W.3d 325, 332

(Tex. 2006), this pragmatic rationale supporting governmental immunity also helps to

delineate its limits—“extending immunity to officials using state resources in violation of

the law would not be an efficient way of ensuring those resources are spent as intended.”

Heinrich, 284 S.W.3d at 372. Thus, governmental immunity does not bar claims alleging

that a government officer acted ultra vires, or without legal authority, in carrying out his or

her duties. Id. at 371–72; see Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332

S.W.3d 395, 401 (Tex. 2011).         Although frequently described as an “exception” to

governmental immunity, this terminology may be deceptive because “when a

governmental officer is sued for allegedly ultra vires acts, governmental immunity does

not apply from the outset.” Houston Belt & Terminal Ry. Co. v. City of Houston, No. 14-

0459, __ S.W.3d __, __, 2016 WL 1312910, at *1 n.1 (Tex. Apr. 1, 2016). In short, to fall

within the ultra vires doctrine, a suit must not complain of a government officer's exercise

of discretion, but rather must allege, and ultimately prove, that the officer acted without

legal authority or failed to perform a purely ministerial act. Heinrich, 284 S.W.3d at 372.

       Even though the ultra vires doctrine may allow a party to bring a lawsuit against a

governmental official, because the suit is still effectively against the governmental entity

itself, the remedies available must be limited so as not to implicate the doctrine of

governmental immunity. See id. at 373–75; City of El Paso v. Waterblasting Techs., Inc.,

No. 08-15-00130-CV, __ S.W.3d __, __, 2016 WL 1465691, at *12 (Tex. App.—El Paso
                                              22
Apr. 13, 2016, no. pet. h.). Thus, in an ultra vires action, a plaintiff may not seek money

damages, and further, the plaintiff may seek only “prospective” rather than “retrospective

remedies.” Heinrich, 284 S.W.3d at 373–74 (citing Edelman v. Jordan, 415 U.S. 651, 668

(1974) (noting that under analogous federal immunity law, claims for prospective

injunctive relief are permissible, while claims for retroactive relief are not, because such

an award is “in practical effect indistinguishable in many aspects from an award of

damages against the State”)).

       Suits complaining of ultra vires actions may not be brought against a governmental

unit, but must be brought against the allegedly responsible government actor in his or her

official capacity. Patel, 469 S.W.3d at 76; Heinrich, 284 S.W.3d at 373; see Tex. Dep’t of

Ins. v. Reconveyance Servs., Inc., 306 S.W.3d 256, 257 (Tex. 2010) (per curiam). If an

ultra vires claim is filed against both the government entity and the “appropriate officials

in their official capacity,” the court must dismiss the claims against the government entity

for lack of jurisdiction but allow the claims against the official in his or her official capacity

to go forward. Heinrich, 284 S.W.3d at 377; see Patel, 469 S.W.3d at 76. Here, because

appellees sued ECISD on an ultra vires theory, the trial court lacked jurisdiction over the

claims against ECISD, and we proceed to consider the claims against Ledesma and

Guzman in their official capacities. See Heinrich, 284 S.W.3d at 377; see Patel, 469

S.W.3d at 76

       Under the ultra vires doctrine:

       Governmental immunity bars suits complaining of an exercise of absolute
       discretion but not suits complaining of either an officer’s failure to perform a
       ministerial act or an officer’s exercise of judgment or limited discretion
       without reference to or in conflict with the constraints of the law authorizing
       the official to act.
                                               23
Houston Belt & Terminal Ry. Co., 2016 WL 1312910, at *5. In this context, 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 Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994); see Sw. Bell Tel., L.P. v.

Emmett, 459 S.W.3d 578, 587 (Tex. 2015). On the other hand, discretionary acts require

the exercise of judgment and personal deliberation. See Sw. Bell Tel., L.P., 459 S.W.3d

at 587; Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004).

       Last month, the Texas Supreme Court construed the breadth of the ultra vires

doctrine, clarified the ultra vires standard, and “reinforce[d] the narrow ultra vires

principles” that it has “repeatedly announced and endorsed.”          See Houston Belt &

Terminal Ry. Co., 2016 WL 1312910, at **1–6. The court held that a suit complaining of

a government officer’s exercise of limited discretion alleging that the officer acted without

legal authority is a viable ultra vires claim. Id. at *1; see Heinrich, 284 S.W.3d at 372.

Thus, while governmental immunity provides broad protection to the government and its

agents,

       [I]t does not protect every act by a government officer that requires some
       exercise of judgment—a government officer with some discretion to
       interpret and apply a law may nonetheless act without legal authority, and
       thus ultra vires, if he exceeds the bounds of his granted authority or if his
       acts conflict with the law itself.

Id. The court considered its previous holdings to address the meanings of “exercise of

discretion” and “without legal authority.” Id. at *3; see Sw. Bell Tel., L.P., 459 S.W.3d at

588–89 (concluding that the statutory authority granted to a government official created

a “purely ministerial duty,” thus an allegation that the officer violated that duty was

                                             24
sufficient to plead an ultra vires claim); Klumb v. Houston Mun. Employees Pension Sys.,

458 S.W.3d 1, 9–11 (Tex. 2015) (concluding that a pension board did not act ultra vires

when interpreting statutes given that there was “no manifest conflict” between the statutes

and the board had broad discretionary authority, but noting that “in appropriate

circumstances, a particular interpretation of the statute could be ultra vires”); Sawyer

Trust, 354 S.W.3d at 393–94 (concluding that a claim was ultra vires where the

governmental unit had the authority to make determinations as to navigability of streams

but its determination was “not conclusive of the question” because “the question of

navigability is, at bottom, a judicial one”); Heinrich, 284 S.W.3d at 369 (concluding that

affidavits raised a fact question regarding whether the governmental officers were acting

pursuant to, yet outside the limits of, a statutory grant of authority where the claimant

“alleged that the officers, making the type of determination which they had authority to

make, made that determination in a way the law did not allow”).

      After reviewing its jurisprudence, the Texas Supreme Court concluded as follows:

              These cases affirm that while the protections of governmental
      immunity remain robust, they are not absolute. As we said in Heinrich,
      governmental immunity protects exercises of discretion, but when an officer
      acts beyond his granted discretion—in other words, when he acts without
      legal authority—his acts are not protected. Thus, “discretion,” as we have
      used the term in this context, cannot mean limited discretion that is
      otherwise constrained by the principles of law. See, e.g., BLACK’S LAW
      DICTIONARY 565 (10th ed. 2014) (defining “judicial discretion” as “[t]he
      exercise of judgment . . . guided by the rules and principles of law”). Rather,
      our ultra vires caselaw uses the term in its broad sense. See, e.g., id.
      (defining “discretion” as “the power of free decision-making”). Accordingly,
      the principle arising out of Heinrich and its progeny is that governmental
      immunity bars suits complaining of an exercise of absolute discretion but
      not suits complaining of either an officer’s failure to perform a ministerial act
      or an officer’s exercise of judgment or limited discretion without reference
      to or in conflict with the constraints of the law authorizing the official to act.
      Only when such absolute discretion—free decision-making without any
                                             25
      constraints—is granted are ultra vires suits absolutely barred. And, as a
      general rule, “a public officer has no discretion or authority to misinterpret
      the law.” Cf. In re Smith, 333 S.W.3d 582, 585 (Tex. 2011) (orig.
      proceeding).

              To be sure, absolute protection would go against the rationale for
      governmental immunity in the first place. Governmental immunity is
      premised in part on preventing suits that attempt to control state action by
      imposing liability upon the state. See IT–Davy, 74 S.W.3d at 855–56. But
      “ultra vires suits do not attempt to exert control over the state—they attempt
      to reassert the control of the state.” Heinrich, 284 S.W.3d at 372. Thus,
      prohibiting ultra vires suits when an officer acts outside the bounds of his
      granted authority would run counter to the purposes behind immunity.
      Allowing such suits, on the other hand, encourages enforcement of existing
      policy. See id. And, while governmental immunity serves the pragmatic
      purpose of protecting public resources, we have recognized that extending
      immunity to officers who violate the law does not further that goal. See id.
      Accordingly, governmental immunity only extends to those government
      officers who are acting consistently with the law, which includes those who
      act within their granted discretion. See id.

             Because the ultra vires standard we clarify today hems closely to the
      purposes underlying governmental immunity and the ultra vires exception
      generally, it does not create a new vehicle for suits against the state to
      masquerade as ultra vires claims—indeed, our opinion merely reinforces
      the narrow ultra vires principles we have repeatedly announced and
      endorsed. See Heinrich, 284 S.W.3d at 372; Fed. Sign, 951 S.W.2d at 404;
      Dodgen, 308 S.W.2d at 842. Although only exercises of absolute discretion
      are absolutely protected, whether a suit attacking an exercise of limited
      discretion will be barred is dependent upon the grant of authority at issue in
      any particular case. And so many legislative grants of authority, although
      not absolute, will be broad enough to bar most, if not all, allegedly ultra vires
      claims. See, e.g., Klumb, 458 S.W.3d at 11.

Houston Belt & Terminal Ry. Co., 2016 WL 1312910, at **5–6. Thus, only exercises of

absolute discretion—“discretion where no specific, substantive or objective standards

govern the exercise of judgment”—are absolutely protected by governmental immunity.

See id. at *3, *6; Henry v. Sullivan, No. 14-15-00161-CV, __, S.W.3d __, __, 2016 WL

1357584, at *5 (Tex. App.—Houston [14th Dist.] Apr. 5, 2016, no. pet. h.). Whether a suit

attacking an exercise of limited discretion will be barred is dependent upon the grant of
                                             26
authority at issue in any particular case. Houston Belt & Terminal Ry. Co., 2016 WL

1312910, at *6; see also City of Austin Firefighters’ & Police Officers’ Civil Serv. Comm’n

v. Stewart, No. 03-15-00591-CV, 2016 WL 1566772, at *2 (Tex. App.—Austin Apr. 14,

2016, no. pet. h.) (mem. op.).

       In this regard, governmental immunity protects officials who act “consistently with

the law, which includes those who act within their granted discretion.” Houston Belt &

Terminal Ry. Co., 2016 WL 1312910, at *6. We look to applicable rules, ordinances, and

statutes to determine whether an alleged act or failure to act fits within the narrow ultra

vires exception. See id.; Tex. Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691,

701–02 (Tex. App.—Austin 2011, no pet.); Creedmoor–Maha Water Supply Corp. v. Tex.

Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n.8 (Tex. App.–Austin 2010, no pet.);

Hendee v. Dewhurst, 228 S.W.3d 354, 368–69 (Tex. App.—Austin 2007, pet. denied);

see also Am. Sw. Ins. Managers, Inc. v. Tex. Dept. of Ins., No. 03-10-00073-CV, 2010

WL 4053726, at *5–6 (Tex. App.—Austin Oct. 15, 2010, no pet.) (mem. op.). Further,

merely asserting legal conclusions or labeling a defendant’s actions as ultra vires, illegal,

or unconstitutional is insufficient to plead an ultra vires claim—what matters is whether

the facts alleged constitute actions beyond the governmental actor’s statutory authority,

properly construed. Tex. Dept. of Transp., 357 S.W.3d at 701–02; Creedmoor–Maha

Water Supply Corp., 307 S.W.3d at 515–16 & nn. 7–8. To this extent, the jurisdictional

inquiry with respect to the appellees’ purported ultra vires claims may overlap with the

claims’ merits. Tex. Dept. of Transp., 357 S.W.3d at 702; Creedmoor–Maha Water

Supply Corp., 307 S.W.3d at 516 n.8.



                                             27
       In rendering its decision in April, the supreme court did not overrule any existing

case law regarding application of the ultra vires doctrine but instead clarified and

reinforced the narrow ultra vires standard previously pronounced by the court. Thus, we

look to existing law for examples of cases where an official’s interpretation of law or policy

is ultra vires or not, depending on the grant of statutory authority. It is clear that not all

alleged errors in interpretation of law or policy constitute ultra vires acts. See, e.g.,

Creedmoor–Maha Water Supply Corp., 307 S.W.3d at 517–18 (“These are allegations

that [the agency] reached an incorrect or wrong result when exercising its delegated

authority, not facts that would demonstrate [the agency] exceeded that authority.”); MHCB

(USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist. Review Bd., 249 S.W.3d

68, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“Additionally, just because an

agency determination is wrongly decided does not render that decision outside the

agency’s authority [because] an incorrect agency determination rendered pursuant to the

agency’s authority is not a determination made outside that authority.”); Williams v.

Houston Firemen’s Relief & Ret. Fund, 121 S.W.3d 415, 430 (Tex. App.—Houston [1st

Dist.] 2003, no pet.) (“Williams does not challenge the fact that the Fund has . . . this

statutory authority. Regardless of his phrasing it in terms of ‘authority’ . . . , the crux of

Williams’s argument is that the trustees interpreted the statute in a way they should not

have. This is a complaint of ‘getting it wrong,’ not of acting outside statutory authority.”);

Tex. Comm’n of Licensing & Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 292

(Tex. App.—Austin 1997, no writ) (“They had the undoubted authority to interpret the Act’s

provisions and to make a decision in that regard. That they ‘might decide ‘wrongly’ . . .

does not vitiate their authority to make a decision.”); N. Alamo Water Supply Corp. v. Tex.
                                             28
Dep’t of Health, 839 S.W.2d 455, 458–59 (Tex. App.—Austin 1992, writ denied) (same);

see also Cameron Cnty. Appraisal Dist. v. Rourk, No. 13-15-00026-CV, 2016 WL 380309,

at *4 (Tex. App.—Corpus Christi Jan. 28, 2016, no pet.) (mem. op.) (“Likewise, we

conclude that the substance of Rourk’s amended allegations are complaints about

Gomez’s interpretation of the tax code, not that he acted illegally or without controlling

authority. Rourk’s allegations that Gomez failed to ‘lawfully apply [a specific section of

the tax code]’ are analogous to a claim that he ‘got it wrong.’”).

       Further, the failure to perfectly comply with all of the intricacies of the administrative

process does not necessarily constitute extra-jurisdictional action by an agency.

Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d

413, 419 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding that an argument

that agency hearings were being conducted in a manner that did not fully comply with

statutory procedural requirements was not enough to invoke the ultra-vires exception);

Friends of Canyon Lake, Inc. v. Guadalupe–Blanco River Auth., 96 S.W.3d 519, 528 (Tex.

App.—Austin 2002, pet. denied) (holding that for an ultra vires exception to apply, “the

environmental group was required to allege that the agency had acted wholly outside its

jurisdiction, not merely that it had failed to meet certain statutory procedural

requirements”); Tex. Comm’n of Licensing & Regulation, 953 S.W.2d at 292 (explaining

that a claim that an agency had the authority to interpret a statute, but had interpreted a

provision incorrectly was insufficient to invoke ultra-vires exception because the fact that

it might interpret the provision incorrectly did not destroy its ability to make that

determination); see also Janek v. Gonzalez, No. 03-11-00113-CV, 2013 WL 1748795, at

*8 (Tex. App.—Austin Apr. 17, 2013, no pet.) (mem. op.) (“Although the Applicants
                                              29
challenge the manner in which the Commissioner performs his duties and the timeliness

of his actions, the complaints do not involve actions outside of the Commissioner’s

authority. Accordingly, allegations that the Commissioner is not fully complying with the

regulatory requirements when performing these authorized duties are insufficient to

invoke the ultra-vires exception.”).

       The appellees alleged ultra vires claims against Ledesma and Guzman because

“they are following Board Policy of ECISD in their decision to exclude the class at issue

for purposes of class ranking” and “the Defendants violated Board policy and acted

without legal authority.” As stated previously, merely asserting legal conclusions or

labeling the appellants’ actions as ultra vires does not raise an ultra vires claim—what

matters is whether the facts alleged constitute actions beyond the governmental actor’s

statutory authority, properly construed. See Tex. Dept. of Transp., 357 S.W.3d at 701–

02. Appellees do not allege any other acts by Ledesma or Guzman, other than excluding

the computer science class for class ranking purposes, that are beyond Ledesma and

Guzman’s authority and they do not complain of a failure to perform a ministerial act.

They do not argue that the defendants violated any policy or statute other than the ECISD

(Local) Policy.

       In resolving this matter, we should be mindful that the Texas Supreme Court has

iterated that: “Courts do not and cannot intervene in the resolution of conflicts which arise

in the daily operation of school systems and which do not directly and sharply implicate

basic constitutional values.” Nat’l Collegiate Athletic Assn v. Yeo, 171 S.W.3d 863, 870

(Tex. 2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). This comports

with the general rule in Texas that courts do not interfere with the statutorily conferred
                                             30
duties and functions of an administrative agency.        Westheimer Indep. Sch. Dist. v.

Brockette, 567 S.W.2d 780, 785 (Tex.1978); Appraisal Review Bd. of Harris Cnty.

Appraisal Dist., 267 S.W.3d at 418–19.

       Under the relevant statutes, school boards have “the exclusive power and duty to

govern and oversee the management of the public schools of the district,” and under the

“statutory scheme a school board must be the ultimate interpreter of its policy, subject to

the limits established by the Legislature in its provisions for administrative and judicial

review.” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000); see

TEX. EDUC. CODE ANN. § 11.151(b) (West, Westlaw through 2015 R.S.) (“The trustees as

a body corporate have the exclusive power and duty to govern and oversee the

management of the public schools of the district. All powers and duties not specifically

delegated by statute to the agency or to the State Board of Education are reserved for

the trustees, and the agency may not substitute its judgment for the lawful exercise of

those powers and duties by the trustees.”). In this regard, the TEA has made it clear that

school districts set their own policy to determine class rank, it is a “local” decision, and

that agency has “absolutely no say” in determining class rankings. See Highest Ranking

Graduate, TEX. EDUC. AGENCY, http://tea.texas.gov/HRG (last visited May 25, 2016).

       In this case, the appellees have not specifically pleaded or offered evidence to

show that Ledesma or Guzman: lacked discretion to interpret and apply ECISD (Local)

Policy; acted without legal authority or exceeded the bounds of their authority; or acted in

conflict with the ECISD (Local) Policy or any other applicable law, policy, statute, or rule.

Gutierrez, Guzman, and Ledesma repeatedly testified that they were required to follow

ECISD (Local) Policy and that they lacked authority or discretion to count computer
                                             31
science as a core class which could be included for class ranking purposes. In this

regard, appellants conceded throughout the proceedings that they made a mistake when

they advised Mariely and the other students at Robert Vela High School that the computer

science dual enrollment 2904 class would count as a weighted class for purposes of class

ranking. The appellants further testified that the appellees’ requested relief of counting

the computer science class as a weighted class for purposes of class ranking would

require appellants to violate ECISD (Local) policy and other applicable laws.

      There is no manifest conflict between ECISD (Local) Policy requiring ECISD to

“include in the calculation of class rank semester grades earned in high school credit

courses taken in grades 9-12 in the following subject areas only: English, languages

other than English, mathematics, science, and social studies,” and any other provision of

the ECISD (Local) Policy, or any other statute or authority. See Klumb, 458 S.W.3d at 9–

11. Based on the pleadings and the record, there are no indications that Ledesma and

Guzman, in making the type of determination which they had authority to make, made

that determination in a way the law did not allow. Governmental immunity protects

exercises of discretion, and there is no factual pleading or evidence that Ledesma and

Guzman acted beyond their granted discretion or without legal authority. Further, on April

22, 2016, the ECISD board of trustees upheld the Level II grievance decision, thereby

determining that the 2904 computer science class should not be included for class ranking

purposes.

      Under these circumstances, where there is no manifest conflict between the

policies, statutes, and codes referenced in this case, where the governmental body

possesses broad discretionary authority to interpret its own policies, and the
                                           32
governmental body agrees and approves the official’s decisions and determinations, we

conclude that the appellees have not successfully pleaded an ultra vires claim which

would vest jurisdiction in the trial court.

       Finally, to the extent that the appellees contend that the appellants’ “mistake”

constituted an ultra vires act, such mistake is not actionable because the plaintiffs seek

relief for an act that has already been committed; that is, the relief they seek is

retrospective. See Heinrich, 284 S.W.3d at 374–77. The appellees request that the

appellants utilize the computer science dual enrollment class as a weighted class in

calculating class ranks. However, the appellants determined that the class was not

weighted, announced that determination to the students and parents, and have now

calculated the class rankings in accordance with that determination. The appellees

ultimately seek relief for acts that have already been committed. Thus, the ultra vires

exception does not apply to the facts of this case. See id.; see also Rubalcaba v.

Raymondville ISD, No. 13-14-00224-CV, 2016 WL 1274486, at *5 (Tex. App.—Corpus

Christi Mar. 31, 2016, no. pet. h.) (mem. op.).

                                VI. AMENDMENT OF PLEADINGS

       The Texas Supreme Court held in Miranda that if the pleadings do not contain

sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not

affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiffs should be afforded the opportunity to amend. Miranda, 133

S.W.3d at 226–27. We have considered whether or not we should remand this case to

the trial court to provide the appellees with an opportunity to attempt to cure the

jurisdictional deficiencies in their pleadings. However, a party is not entitled to the
                                              33
opportunity to cure a pleading defect when it is not possible to cure the defect. See Tex.

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Miranda, 133 S.W.3d

at 227; Tex. State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 707–

08 (Tex. App.—Austin 2013, no pet.); see also Sefzik, 355 S.W.3d at 623 (remanding to

allow plaintiff to replead to assert ultra vires claim in light of the supreme court's holding

in Heinrich, 284 S.W.3d 373).

       In this case, the appellees had amended their petition three times before the trial

court ruled on the pleas to the jurisdiction and had specifically alleged that Ledesma and

Guzman violated ECISD (Local) Policy, but pointed to no other law, policy, statute or

regulation which would delimit Ledesma and Guzman’s discretion or authority to act. The

evidence developed at the hearings in this matter was consistent with these allegations.

Under these circumstances, amendment would not cure the jurisdictional defects present

in this case. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); see also

Rubalcaba, 2016 WL 1274486, at *5 (concluding that plaintiff’s jurisdictional claims

against school district and officials for improperly weighting a course for grading and class

rank purposes were incurable).

                                      VII. CONCLUSION

       Based on the foregoing, we vacate the temporary order that we previously issued

in these causes requiring the trial court’s May 5, 2016 temporary injunction to remain in

effect. In cause number 13-16-00253-CV, we reverse the trial court’s order granting the

temporary injunction and dissolve the temporary injunction. We reverse the trial court’s

denial of the pleas to the jurisdiction and render judgment dismissing appellees’ claims



                                             34
against ECISD, Ledesma, and Guzman for lack of jurisdiction. In cause number 13-16-

00254-CV, we dismiss the petition for writ of injunction as moot.

       As a final matter, we congratulate the exemplary academic efforts of Mariely

Rebollar and Michael Reed and recognize these individuals as truly outstanding students.

We extend our admiration to their parents who have clearly supported and encouraged

these students in their commendable efforts.         We are cognizant of the feelings of

unfairness that are felt by both students and their families due to this unfortunate situation.

However, this Court’s power to act is not limitless. We are bound by the rule of law. See,

e.g., State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (“The very balance of state

governmental power imposed by the framers of the Texas Constitution depends on each

branch, and particularly the judiciary, operating within its jurisdictional bounds.”); Ex parte

Hughes, 129 S.W.2d 270, 273 (Tex. 1939) (“Under our judicial system our courts have

such powers and jurisdiction as are defined by our laws constitutional and statutory.”);

Messner v. Giddings, 65 Tex. 301, 309 (1886) (“There is no such thing as the inherent

power of a court, if, by that, be meant a power which a court may exercise without a law

authorizing it.”).


                                                   DORI CONTRERAS GARZA
                                                   JUSTICE


Delivered and filed the
26th day of May, 2016.




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