                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-08-00355-CV

CANDICE SOSSAMON, INDIVIDUALLY AND
AS NEXT FRIEND OF KATELYN KIRKLAND,
KATELYN KIRKLAND, AND JEFFREY S. DAVIS,
                                                               Appellants
v.

CLEBURNE INDEPENDENT SCHOOL DISTRICT
BOARD OF TRUSTEES AND JAMES WARLICK,
INTERIM SUPERINTENDENT,
                                                               Appellees



                        From the 413th District Court
                           Johnson County, Texas
                         Trial Court No. C200800320


                        MEMORANDUM OPINION


      Candice Sossamon and her daughter Katelyn Kirkland filed suit against the

Cleburne Independent School District Board of Trustees and Interim Superintendent

James Warlick (collectively, “Cleburne ISD”) after Sossamon was informed that

Kirkland would not be receiving a high school diploma from Cleburne High School

(“CHS”) and would not be allowed to participate in the CHS graduation ceremony. The
trial court denied Sossamon’s and Kirkland’s request for a temporary injunction and

later granted a motion for sanctions filed by Cleburne ISD.        The court ordered

Sossamon and Kirkland to pay $7,500 in costs and attorney’s fees under section 11.161

of the Education Code and ordered Sossamon, Kirkland and their attorney Jeffrey S.

Davis to pay an additional $3,500 as sanctions under Rule of Civil Procedure 13 and

section 10.004 of the Civil Practice and Remedies Code.

       Appellants contend in three issues respectively that the court abused its

discretion by imposing sanctions under Rule 13, section 10.004, and section 11.161. We

will reverse and render.

                                         Background

       During the 2007-2008 school year, Kirkland was a senior at CHS on track to

graduate, except that she was failing her English class. She hid several report cards

from Sossamon and finally revealed her predicament by leaving a letter on Sossamon’s

pillow. School officials advised Sossamon that the only way Kirkland would be able to

graduate was to transfer to the TEAM School, an accelerated learning program.

Sossamon and Kirkland completed the paperwork for the TEAM School.                 One

document they signed concerned high school graduation and reads:

             We understand that all students from the Cleburne Independent
       School District who complete their credits from the TEAM School will be
       provided a graduation exercise and diploma from the TEAM School. We
       also understand that should it be our desire to graduate from Cleburne
       High School, we may transfer to that school at the beginning of the last
       semester of our senior year.




Sossamon v. Cleburne Indep. Sch. Dist.                                            Page 2
       Kirkland finished her coursework promptly and sought to transfer back to CHS

so she could graduate with her class. Cleburne ISD officials advised that she would not

be permitted to do so and referred them to the document they had signed regarding the

TEAM School graduation. Sossamon and Kirkland sought administrative review and

ultimately filed a grievance which was to be heard by the school board. However,

because the grievance was not filed until May 7, they were advised that it would not be

included on the agenda for the board’s May 12 meeting. During the public comment

section of the meeting, Sossamon presented her complaint to the school board, which

advised that they would confer with Superintendent Warlick on the matter.

       By letter dated May 16, Warlick advised Sossamon that Kirkland would not be

permitted to graduate from CHS. Sossamon filed a second grievance which the school

board placed on its agenda for the June 9 meeting.          However, graduation was

scheduled for May 30.

       Sossamon and Kirkland filed suit on the afternoon of May 29. They alleged that

Cleburne ISD failed to provide the notice required by section 28.022 of the Education

Code to be given to the parent or guardian of a student whose performance in a subject

“is consistently unsatisfactory.” See TEX. EDUC. CODE ANN. § 28.022(a)(3) (Vernon 2006).

They sought a temporary injunction prohibiting the defendants from preventing

Kirkland from participating in CHS graduation ceremonies the following day and an

order directing that she be given a CHS diploma. The court held an emergency hearing

on May 30 and, after hearing Sossamon’s testimony, denied the requested injunction.




Sossamon v. Cleburne Indep. Sch. Dist.                                            Page 3
       The court granted Sossamon’s and Kirkland’s motion for non-suit on July 3.

Cleburne ISD filed a motion for sanctions claiming that the “suit is groundless, brought

in bad faith, misrepresented facts, and lacks basis in law and fact” because:

           Sossamon and Kirkland were aware before filing suit that Kirkland could not
           satisfy the local requirements necessary to receive a diploma from CHS and
           thus was not entitled to such a diploma;

           state and federal law is “very clear” that students do not have a fundamental
           right to participate in high school graduation ceremonies; and

           their claim that Kirkland should be awarded a diploma from CHS and
           allowed to participate in the CHS graduation ceremonies because of the
           defendants’ alleged violations of the Education Code “is without support in
           Texas law.”

       At the sanctions hearing, the court heard argument of counsel and admitted in

evidence a transcription of the injunction hearing. At the conclusion of the hearing, the

court took the matter under advisement and asked each side to submit a proposed

order. The court signed its order granting sanctions about a month later.

       The court ruled that the suit was groundless because: (1) “there is no remedy for

a violation of Texas Education Code § 28.022”; and (2) the court was “without the

authority to grant Plaintiffs their requested remedy.” The court ruled that the suit was

brought in bad faith for the purpose of harassing Cleburne ISD because Sossamon and

Kirkman were aware before filing suit that: (1) Sossamon had received the notice

required by section 28.022; and (2) they “were informed throughout their attempt to

receive a diploma and graduate with [CHS] that Kirkland had not, could not, and did

not meet all necessary requirements to so receive a diploma from and participate in

graduation ceremonies with [CHS].”


Sossamon v. Cleburne Indep. Sch. Dist.                                             Page 4
                                         Standard of Review

       We review an order imposing sanctions under an abuse-of-discretion standard.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d

331, 347 (Tex. App.—San Antonio 2006, no pet.).

       An appellate court may reverse the trial court’s ruling only if the trial
       court acted without reference to any guiding rules and principles, such
       that its ruling was arbitrary or unreasonable. To determine if the
       sanctions were appropriate or just, the appellate court must ensure there
       is a direct nexus between the improper conduct and the sanction imposed.
       Generally, courts presume that pleadings and other papers are filed in
       good faith. The party seeking sanctions bears the burden of overcoming
       this presumption of good faith.

Low, 221 S.W.3d at 614 (citations omitted).

                                         Rule 13 Sanctions

       Appellants contend in their first issue that the court abused its discretion by

imposing sanctions against them under Rule 13.

       "The imposition of Rule 13 sanctions involves the satisfaction of a two-part test.

First, the party moving for sanctions must demonstrate that the opposing party’s filings

are groundless, and second, it must be shown that the pleadings were filed either in bad

faith or for the purposes of harassment.” R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d

694, 707 (Tex. App.—Waco 2008, pet. denied) (quoting Estate of Davis v. Cook, 9 S.W.3d

288, 297 (Tex. App.—San Antonio 1999, no pet.)).

       “’Groundless’ for purposes of this rule means no basis in law or fact and not

warranted by good faith argument for the extension, modification, or reversal of

existing law.” TEX. R. CIV. P. 13. “The trial court uses an objective standard to



Sossamon v. Cleburne Indep. Sch. Dist.                                                  Page 5
determine if a pleading was groundless: did the party and counsel make a reasonable

inquiry into the legal and factual basis of the claim?” R.M. Dudley Constr., 258 S.W.3d at

708. In doing so, “the trial court must examine the facts available to the litigant and the

circumstances existing when the litigant filed the pleading.” Id.

       Here, the trial court ruled that the suit was groundless because: (1) “there is no

remedy for a violation of Texas Education Code § 28.022”; and (2) the court was

“without the authority to grant Plaintiffs their requested remedy.”

       Generally, a party whose claim concerns a violation of school laws must exhaust

the statutorily provided administrative remedies with the Commissioner of Education

before seeking judicial relief. Guerra v. Santa Rosa Indep. Sch. Dist., 241 S.W.3d 594, 599-

600 (Tex. App.—Corpus Christi 2007, pet. denied); Dotson v. Grand Prairie Indep. Sch.

Dist., 161 S.W.3d 289, 291(Tex. App.—Dallas 2005, no pet.); see TEX. EDUC. CODE ANN. §

7.057 (Vernon 2006) (providing for administrative appeal). One exception to this rule

applies when the party will suffer irreparable harm and the Commissioner is unable to

provide relief. Houston Fed’n of Teachers, Local 2415 v. Houston Indep. Sch. Dist., 730

S.W.2d 644, 646 (Tex. 1987); Dotson, 161 S.W.3d at 291; Harlandale Indep. Sch. Dist. v.

Rodriguez, 121 S.W.3d 88, 92 (Tex. App.—San Antonio 2003, no pet.); see Guerra, 241

S.W.3d at 600.

       Therefore, the court’s conclusions are incorrect as a matter of law. See R.M.

Dudley Constr., 258 S.W.3d at 708 (failure to analyze or apply law correctly is abuse of

discretion).     Here, Sossamon and Kirkland had a statutory right to pursue

administrative relief for the alleged violation of section 28.022. See TEX. EDUC. CODE


Sossamon v. Cleburne Indep. Sch. Dist.                                                Page 6
ANN. § 7.057. And because the Commissioner is not authorized to award injunctive

relief and Kirkland would not otherwise have been able to receive a CHS diploma and

participate in the CHS graduation ceremonies, it was within the trial court’s authority to

grant injunctive relief if Sossamon and Kirkland otherwise established their entitlement

to it. See Houston Fed’n of Teachers, 730 S.W.2d at 646.

        Accordingly, the court abused its discretion by finding and concluding that

Sossamon’s and Kirkland’s suit was groundless. See R.M. Dudley Constr., 258 S.W.3d at

708. We sustain their first issue.

                                       Section 10.004 Sanctions

        Appellants contend in their second issue that the court abused its discretion by

imposing sanctions under section 10.004 of the Civil Practice and Remedies Code.

        According to section 10.004(a), “A court that determines that a person has signed

a pleading or motion in violation of Section 10.001 may impose a sanction on the person,

a party represented by the person, or both.” TEX. CIV. PRAC. & REM. CODE ANN. §

10.004(a) (Vernon 2002).

        The court’s determination that Sossamon’s and Kirkland’s claims were

“groundless” was based on its understanding that “there was no basis in law or fact,

nor was there a good faith argument for an extension, modification, or reversal of

existing law” with respect to their claims. This conclusion led to the imposition of

sanctions for violation of section 10.001(2).1 See id. § 10.001(2) (Vernon 2002). But we


1
        Section 10.001(2) provides in pertinent part that the signing of a pleading “constitutes a certificate
by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable
inquiry . . . each claim, defense, or other legal contention in the pleading or motion is warranted by


Sossamon v. Cleburne Indep. Sch. Dist.                                                                 Page 7
have already determined that the court abused its discretion by finding and concluding

that the suit was groundless.            Thus, the court abused its discretion by imposing

sanctions for violation of section 10.001(2).

        The court also determined that their claims were brought in bad faith for the

purpose of harassing Cleburne ISD because Sossamon and Kirkman were aware before

filing suit that: (1) Sossamon had received the notice required by section 28.022; and (2)

they “were informed throughout their attempt to receive a diploma and graduate with

[CHS] that Kirkland had not, could not, and did not meet all necessary requirements to

so receive a diploma from and participate in graduation ceremonies with [CHS].” This

conclusion led to the imposition of sanctions for violation of section 10.001(1).2 Id. §

10.001(1) (Vernon 2002).

                                         Section 28.022 Notice

        The first component of the court’s bad faith determination is grounded in its

Finding of Fact No. 5:

        The sole basis of Plaintiffs’ complaint against the District was that
        Plaintiffs were not provided with Notice, pursuant to Texas Education
        Code § 28.022, (“Notice”) informing Sossamon that her daughter, Katelyn
        Kirkland (“Kirkland”) was failing English. Plaintiffs were aware, prior to
        filing their Petition, that Sossamon received the Notice from the District
        made the sole basis of their complaint.




existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or
the establishment of new law.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(2) (Vernon 2002).

2
        According to section 10.001(1), the signing of a pleading certifies “that to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry . . . the pleading or motion is not
being presented for any improper purpose, including to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” Id. § 10.001(1) (Vernon 2002).


Sossamon v. Cleburne Indep. Sch. Dist.                                                             Page 8
Cleburne ISD contends that this finding is supported by the following statement made

by counsel for Sossamon and Kirkland during the sanctions hearing: “Yes, Katelyn was

provided with a note to take home to her mother, but it wasn’t the kind the Texas

Education Code said.”

       Statements of counsel do not generally constitute evidence unless made under

oath. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam); Russ v. Titus Hosp.

Dist., 128 S.W.3d 332, 338 (Tex. App.—Texarkana 2004, pet. denied).                       The oath

requirement can be waived if the opposing party fails to object when he knows or

should know that an objection is necessary. Id.

       In Banda, the attorney “was clearly attempting to prove the existence and terms

of the settlement agreement,” stating, for example, “this agreement that I’m testifying to

today before the court as an officer of the court, if Mr. Latham felt so strongly about it,

he is not present.” See Banda, 955 S.W.2d at 272. Here, however, counsel was not

offering evidence. Rather, counsel was presenting argument in response to Cleburne

ISD’s counsel with regard to the propriety of sanctions and, in particular, whether

Cleburne ISD had violated section 28.022.

       At the sanctions hearing, Cleburne ISD offered in evidence a transcription of the

injunction hearing.3 Aside from this transcription, the only other evidence arguably

offered and admitted at the hearing was counsel’s testimony regarding the amount of

attorney’s fees incurred.



3
        We assume without deciding that the court took judicial notice of the testimony from the prior
hearing. See Davis v. State, 293 S.W.3d 794, 797 (Tex. App.—Waco 2009, no pet.).


Sossamon v. Cleburne Indep. Sch. Dist.                                                         Page 9
       Sossamon and Kirkland claimed that Cleburne ISD failed to give the notice

required by section 28.022, which provides in pertinent part:

       (a) The board of trustees of each school district shall adopt a policy that:

                (1) provides for a conference between parents and teachers;

              (2) requires the district, at least once every 12 weeks, to give written
       notice to a parent of a student's performance in each class or subject; and

              (3) requires the district, at least once every three weeks, or during
       the fourth week of each nine-week grading period, to give written notice
       to a parent or legal guardian of a student's performance in a subject
       included in the foundation curriculum under Section 28.002(a)(1) if the
       student‘s performance in the subject is consistently unsatisfactory, as
       determined by the district.

       (b) The notice required under Subsections (a)(2) and (a)(3) must:

                (1) provide for the signature of a student’s parent; and

                (2) be returned to the district.

TEX. EDUC. CODE ANN. § 28.022(a), (b) (Vernon 2006).

       Their claim focused on the notice required by subsection (a)(3).4 According to

the statute, written notice must: (1) be given to the parent or legal guardian; (2) provide

for the parent’s (or, presumably, the guardian’s) signature; and (3) be returned to the

district. Id.

       The only evidence offered regarding whether a proper notice was given is

Sossamon’s testimony at the injunction hearing.                 She testified that Kirkland first

received a failing grade in English during the third six-weeks’ grading period in the fall

of 2007. Kirkland had failing marks in the fourth and fifth grading periods as well but

4
       Cleburne ISD does not dispute that it was required to send notice under section 28.022.


Sossamon v. Cleburne Indep. Sch. Dist.                                                           Page 10
did not tell Sossamon until sometime during the fifth grading period that she was

failing English. Sossamon testified that Kirkland received progress reports for each

grading period but never showed them to Sossamon, instead making excuses for being

unable to do so. She testified unequivocally that she “never received anything to sign

and return back to the school.”

       There is no evidence in the record that the progress reports given to Kirkland

either provided for a parent’s or guardian’s signature or indicated that they must be

returned to CHS. Thus, the record contains no evidence that “Sossamon had received

the notice required by section 28.022.” The trial court abused its discretion in ruling

otherwise. See Unifund CCR Partners v. Villa, 53 Tex. Sup. Ct. J. 57, 60, 2009 Tex. LEXIS

823, at *12 (Tex. Oct. 23, 2009) (per curiam) (trial court abuses its discretion in imposing

sanctions “when its decision is contrary to the only permissible view of probative,

properly-admitted evidence”).

                            Compliance with Graduation Requirements

       The second component of the court’s bad faith determination is grounded in its

Findings of Fact Nos. 6 through 9 in which the court found:

       6. Kirkland did not meet the state and local requirements to graduate and
       receive a diploma from Cleburne High School.

       7. Plaintiffs were aware, prior to filing their Petition, that Kirkland did not
       meet the state and local requirements in order to graduate and receive a
       diploma from Cleburne High School.

       8. Plaintiffs were aware, as early as April 16, 2008, that Kirkland would
       not be awarded a diploma from nor be allowed to participate in
       graduation ceremonies at Cleburne High School.



Sossamon v. Cleburne Indep. Sch. Dist.                                                   Page 11
       9. By exhausting all administrative remedies before filing the Petition,
       Plaintiffs had numerous conversations with District personnel and were
       aware that they could not receive the remedy they requested.

From these findings, the court reached the conclusion that Sossamon and Kirkland

“were informed throughout their attempt to receive a diploma and graduate with

[CHS] that Kirkland had not, could not, and did not meet all necessary requirements to

so receive a diploma from and participate in graduation ceremonies with [CHS].”

       Cleburne ISD argued and the court ruled that a student must satisfy both state

and local requirements to graduate from CHS. Cleburne ISD cited section 28.025 of the

Education Code, section 101.4001(a) of title 19 of the Texas Administrative Code, and

Cleburne ISD Board Policy EIF(LEGAL) to support this assertion.                 However, these

provisions say nothing about compliance with “local requirements” as a prerequisite for

graduation.

       Section 28.025 provides in pertinent part that “a student may graduate and

receive a diploma only if the student successfully completes the curriculum

requirements identified by the State Board of Education under Subsection (a) and

complies with Section 39.025.” TEX. EDUC. CODE ANN. § 28.025(c)(1) (Vernon Supp.

2009).5 Subsection (a) of this statute refers to the statewide curriculum requirements

specified in section 28.002. See id. §§ 28.002, 28.025(a) (Vernon Supp. 2009). Section




5
        Subsection (c)(2) of this statute applies to any student who “successfully completes an
individualized education program under Section 29.005.” TEX. EDUC. CODE ANN. § 28.025(c)(2) (Vernon
Supp. 2009). This subsection does not apply to Kirkland.



Sossamon v. Cleburne Indep. Sch. Dist.                                                     Page 12
39.025 requires a satisfactory score in end-of-course assessments for “each subject in the

foundation curriculum.”6 Id. § 39.025 (Vernon Supp. 2009).

       Section 101.4001 of title 19 provides in pertinent part, “All students must pass

exit-level assessments in English language arts, mathematics, science, and social studies

to qualify for a high school diploma from a Texas public school.” 19 TEX. ADMIN. CODE

§ 101.4001(a) (2009) (Tex. Educ. Agency, Testing Requirements for Graduation); see also

id. § 101.7(a) (2009) (Tex. Educ. Agency, Testing Requirements for Graduation) (“To be

eligible to receive a high school diploma, a student must demonstrate satisfactory

performance as determined by the State Board of Education (SBOE) on the assessments

required for graduation as specified in the Texas Education Code (TEC), Chapter 39,

Subchapter B.”).7

       Cleburne ISD Board Policy8 EIF(LEGAL) provides:

       A student may graduate and receive a diploma only if the student
       successfully completes:

       1.      The curriculum requirements identified by the State Board of
               Education [see STATE GRADUATION REQUIREMENTS, below]
               and has performed satisfactorily on the exit-level assessments [see
               EKB]; or

6
        The “foundation curriculum” includes English language arts, mathematics, science, and social
studies. TEX. EDUC. CODE ANN. § 28.002(a)(1) (Vernon Supp. 2009).

7
       Section 101.4001 provides for “alternative exit-level assessments” by which a student may be
exempt from taking the TAKS exit-level assessment in English and/or mathematics with a sufficient score
on the SAT or ACT. See 19 TEX. ADMIN. CODE § 101.4001 (2009) (Tex. Educ. Agency, Testing
Requirements for Graduation); see also TEX. EDUC. CODE ANN. § 39.025(a-1) (Vernon Supp. 2009).
Conversely, section 101.7 applies to high school students generally. See id. § 101.7 (2009) (Tex. Educ.
Agency, Testing Requirements for Graduation).

8
         Cleburne ISD’s Board Policies are available on line at the website of the Texas Association of
School Boards.        See CLEBURNE INDEP. SCH. DIST., CLEBURNE ISD BOARD POLICY MANUAL,
http://www.tasb.org/policy/pol/private/126903/ (last visited Dec. 3, 2009).


Sossamon v. Cleburne Indep. Sch. Dist.                                                         Page 13
       2.      An individualized education program (IEP) developed under
               Education Code 29.005.

This local policy appears to be nothing more than a local version of section 28.025(c) of

the Education Code. Cf. TEX. EDUC. CODE ANN. § 28.025(c). And like section 28.025 and

the cited provisions of the Texas Administrative Code, this local policy makes no

reference to local graduation requirements.9

       The court found that Kirkland did not satisfy all state and local requirements to

graduate and receive a diploma from CHS, that Sossamon and Kirkland were aware of

this before they filed suit, and that they were aware as early as April 16, 2008 that

Kirkland would not be permitted to graduate or receive a diploma from CHS.

However, Cleburne ISD has not identified a single requirement which Kirkland did not

satisfy. Cleburne ISD focuses on the fact that Kirkland earned her final English credit at

the TEAM school rather than at CHS. The TEAM School Graduation document states

that a TEAM student who wishes to graduate from CHS “may transfer to that school at

the beginning of the last semester of our senior year.” It does not provide for or

prohibit transfers during the last semester of the senior year.

       At the injunction hearing, Sossamon and Kirkland offered in evidence a May 16,

2008 letter from Superintendent Warlick denying their request for Kirkland to graduate

with CHS. Warlick cited two reasons for his decision: (1) the above quoted TEAM

School Graduation document “clearly states that Katelyn and you understood that


9
       By contrast, Board Policy FMH(LOCAL) provides, “Students shall meet all state and local
graduation requirements, including all applicable exit-level testing, to be eligible to participate in
commencement activities and ceremonies.”


Sossamon v. Cleburne Indep. Sch. Dist.                                                        Page 14
Katelyn must graduate from TEAM school and could not graduate from [CHS]”; and (2)

page 3 of the TEAM School Handbook provides that a student in Kirkland’s position

must graduate from the TEAM School and cannot “go back to [CHS] for graduation.”

However, the quoted document does not “clearly state” this information and the TEAM

School Handbook is not in the record.

        During cross-examination of Sossamon at the injunction hearing, Cleburne ISD’s

counsel asked whether it was a district policy “that if a student goes in to TEAM School

the last semester of their senior year, they must graduate from TEAM School.”

Sossamon replied that she did not know. Cleburne ISD did not introduce evidence of

this alleged policy at the injunction hearing and none appears in the record.

                                         Improper Motive10

        In Finding of Fact No. 9, the court found that Sossamon and Kirkland were

aware before filing suit that they could not obtain the remedy sought. According to

Cleburne ISD, it may be inferred that they harbored an “improper motive” in filing this

suit because “[t]he relevant law available to Appellants before they filed the Petition

was that: (i) in order to graduate from CHS, Kirkland must meet all state and local

graduation requirements; and, (ii) a Texas court is without authority to grant

Appellant’s requested relief.”

        We have already discussed how the record contains no evidence of a local

graduation policy with which Kirkland failed to comply. We now turn our attention to



10
        A party seeking sanctions must show improper motive if it seeks to obtain sanctions on the basis
of bad faith. Parker v. Walton, 233 S.W.3d 535, 540 (Tex. App.—Houston [14th Dist.] 2007, no pet.).


Sossamon v. Cleburne Indep. Sch. Dist.                                                          Page 15
Cleburne ISD’s contention that a Texas court is without authority to grant the relief

sought, namely, to compel Cleburne ISD to permit Kirkland to participate in the CHS

graduation ceremony and give her a CHS diploma. However, the law in this area is not

as settled as Cleburne ISD contends, particularly with regard to the nature of a student’s

interest in receiving a high school diploma or participating in a graduation ceremony.

       The Fifth Circuit has concluded that a high school student has a constitutionally

protected property interest in receiving a high school diploma.

       It is clear that in establishing a system of free public education and in
       making school attendance mandatory, the state has created an expectation
       in the students. From the students’ point of view, the expectation is that if
       a student attends school during those required years, and indeed more,
       and if he takes and passes the required courses, he will receive a diploma.
       This is a property interest as that term is used constitutionally.

Debra P. v. Turlington, 644 F.2d 397, 403-04 (5th Cir. Unit B May 1981); see GI Forum v.

Tex. Educ. Agency, 87 F. Supp. 2d 667, 682 (W.D. Tex. 2000) (“The Court has previously

found, and reiterates here, that the State of Texas has created a protected interest in the

receipt of a high school diploma.”).

       The late federal Judge William Wayne Justice applied Debra P. in the case of three

students who failed the TAAS exam and were told they could not participate in their

high school’s graduation ceremony.

       It hardly needs emphasizing that high school graduation ceremonies are
       an occasion to celebrate profound personal achievement and hope for the
       future. A student’s high school graduation is the source of fond memories
       and treasured mementos and photographs that cannot be replaced.
       Unquestionably, plaintiffs will suffer irreparable harm if they are denied
       the opportunity to participate in their graduation ceremony.




Sossamon v. Cleburne Indep. Sch. Dist.                                                 Page 16
Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 554 (E.D. Tex. 1992). Judge Justice

granted two of the students11 injunctive relief, ordering the school district to permit

them “to participate fully” in the graduation exercises. Id. at 557. Thus, Judge Justice at

least implicitly concluded that the right to participate in a particular graduation

ceremony is a constitutionally protected interest on the same level as the right to receive

a diploma.12

        Eleven days after the Crump decision, Judge Sam Sparks of the Western District

of Texas came to a different conclusion in a case involving another student who failed

the TAAS exam.

        While the Court recognizes that high school graduation is an important
        and memorable occasion in a young person’s life, “walking across the
        stage” certainly does not rise to the level of a constitutionally protected
        property interest any more than attending one’s high school prom, which
        most young people also expect to do after completing twelve years of
        public school. It is the actual high school diploma which is the property
        interest described in Debra P. v. Turlington. There is no accompanying
        constitutional right to receive that diploma at a specific graduation
        ceremony.

Williams v. Austin Indep. Sch. Dist., 796 F. Supp. 251, 255 (W.D. Tex. 1992) (citation

omitted). Judge Sparks denied Williams’s request for injunctive relief. Id. at 256. In the

concluding paragraph of his opinion, he took the opportunity to express his difference

of opinion with Judge Justice regarding the interests at issue.

11
       The two students in whose favor the judge ruled established that they had satisfied all
requirements for graduation other than passing the TAAS exam. The third student failed to make this
showing. See Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 557 (E.D. Tex. 1992).

12
         It is also noteworthy that Judge Justice expressly authorized the school district to “have it
announced at ceremonies, if its officials so desire, that such plaintiffs have not yet [passed the TAAS
exam]” and held that the district “shall not be required to issue a diploma to either of such plaintiffs until
each, respectively has [passed the TAAS exam].” Id.


Sossamon v. Cleburne Indep. Sch. Dist.                                                               Page 17
       While the contentions and supporting evidence of these cases are
       obviously dissimilar, this Court is also in basic disagreement with Judge
       Justice. The right of a free public education in Texas is a Texas
       constitutional right, and the level of education and academic achievement
       necessary to obtain a diploma from a Texas high school is appropriately a
       judgment call for the persons elected for that state responsibility and those
       experienced persons responsible for educating and preparing students to
       achieve the established level of competence. Any interference in this
       process is simply destructive to the attempts by the state to salvage its
       educational system, and this includes interference by the federal judiciary.

Id.

       Judge David Hittner of the Southern District has reached the same conclusion as

Judge Sparks. See Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760, 767 (S.D. Tex.

2008) (Khan “has no legally protected property interest in attending or speaking at his

high school graduation ceremony”). He held that “due process guarantees do not

protect a student’s interest in participating in extra-curricular activities, such as a

graduation ceremony.” Id. at 764.

       The San Antonio Court of Appeals has taken the same position.

       [T]he law does not preclude each school district’s elected trustees and
       administrators from permitting their high school students to participate in
       graduation ceremonies despite the fact that they have failed to pass the
       TAAS test. The province and wisdom of such a decision rests squarely on
       the elected board of trustees and not on the courts of this state.

Edgewood Indep. Sch. Dist. v. Paiz, 856 S.W.2d 269, 271 (Tex. App.—San Antonio 1993, no

writ); see also Castro v. Northside Indep. Sch. Dist., No. 04-04-00836-CV, 2005 Tex. App.

LEXIS 9286, at *13 (Tex. App.—San Antonio Nov. 9, 2005, no pet.) (mem. op.) (“While

high school graduation may be an important occasion in a student’s academic career,




Sossamon v. Cleburne Indep. Sch. Dist.                                                 Page 18
participation in such a school function does not rise to a protected constitutional

property interest.”).

       Both Judge Hittner and the San Antonio Court have equated graduation

ceremonies with extracurricular activities in concluding that no constitutionally

protected interest is at stake. Cleburne ISD takes this view as well. The Supreme Court

of Texas has unequivocally held that a student has no constitutionally protected interest

to participate in extracurricular activities. Spring Branch Indep. Sch. Dist. v. Stamos, 695

S.W.2d 556, 561 (Tex. 1985) (“the federal constitution’s due process guarantees do not

protect a student’s interest in participating in extracurricular activities”). That Court

has not, however, held that a graduation ceremony constitutes an “extracurricular

activity.”

       The Commissioner of Education has defined “extracurricular activities” in the

Texas Administrative Code.

       (a) An extracurricular activity is an activity sponsored by the University
       Interscholastic League (UIL), the school district board of trustees, or an
       organization sanctioned by resolution of the board of trustees. The
       activity is not necessarily directly related to instruction of the essential
       knowledge and skills but may have an indirect relation to some areas of
       the curriculum. Extracurricular activities include, but are not limited to,
       public performances, contests, demonstrations, displays, and club
       activities, with the exception of public performances specified in
       paragraph (2) of this subsection.

       (1)      In addition, an activity shall be subject to the provisions for an
                extracurricular activity if any one of the following criteria apply:

             (A) the activity is competitive;
             (B) the activity is held in conjunction with another activity that is
             considered to be extracurricular;



Sossamon v. Cleburne Indep. Sch. Dist.                                                 Page 19
           (C) the activity is held off campus, except in a case in which adequate
           facilities do not exist on campus;
           (D) the general public is invited; or
           (E) an admission is charged.

19 TEX. ADMIN. CODE § 76.1001(a) (2009) (Tex. Educ. Agency, Extracurricular Activities).

       A graduation ceremony might arguably fit within this definition, yet graduation

ceremonies have been differentiated from extracurricular activities in some cases and in

the Education Code. For example, in Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th

Cir. 1995), the Fifth Circuit distinguished “extracurricular” basketball from a graduation

ceremony, which the court characterized as “a significant, once-in-a-lifetime event.” Id.

at 406-07. And in Bundick v. Bay City Indep. Sch. Dist., 140 F. Supp. 2d 735 (S.D. Tex.

2001), a federal magistrate judge addressed separately the due process guarantees

which attach to participation in extracurricular activities or in graduation. Id. at 739.

       The Education Code arguably equates the receipt of a diploma, which Cleburne

ISD agrees to be a constitutionally protected interest, with graduation. See TEX. EDUC.

CODE ANN. § 28.025(c) (“a student may graduate and receive a diploma”). In addition,

Chapter 28 of the Education Code, which addresses “Courses of Study; Advancement”

(i.e., “academics”), even addresses the development of a “personal graduation plan” for

struggling students. Id. § 28.0212 (Vernon Supp. 2009).

       Federal district Judge Royal Furgeson summarized the state of the law best when

he opined that “whether a student has a property interest in graduation ceremonies

despite having failed to complete all academic requirements such as the [TAAS exam] is




Sossamon v. Cleburne Indep. Sch. Dist.                                                Page 20
by no means settled.” Riggan v. Midland Indep. Sch. Dist., 86 F. Supp. 2d 647, 654-55

(W.D. Tex. 2000).

       Contrary to the trial court’s unequivocal finding that “a Texas court is without

authority to grant Appellant’s requested relief,” we agree with Judge Furgeson that the

issue “is by no means settled.” In other words, Sossamon’s and Kirkland’s claim that

Cleburne ISD wrongfully denied Kirkland permission to participate in the CHS

graduation ceremony is a claim with arguable merit because the law is unsettled

regarding whether a student has a constitutionally protected interest in graduating

from a particular high school during a particular ceremony (i.e., with her fellow 12th

grade classmates).

       Conversely, the law appears settled (and Cleburne ISD appears to agree) that a

student has a constitutionally protected interest in a high school diploma. See Debra P.,

644 F.2d at 403-04; GI Forum, 87 F. Supp. 2d at 682; Crump, 797 F. Supp. at 554; Williams,

796 F. Supp. at 255. Part of the relief Sossamon and Kirkland sought was an order

directing that Kirkland be given a CHS diploma. As the Fifth Circuit stated in Debra P.,

“From the students’ point of view, the expectation is that if a student attends school

during those required years, and indeed more, and if he takes and passes the required

courses, he will receive a diploma.” 644 F.2d at 404. In Kirkland’s case, it seems clear

that, after attending the requisite years in Cleburne ISD schools, her expectation was to

receive a CHS diploma rather than a TEAM School diploma.

       In summary, we hold that the trial court abused its discretion by concluding that

Sossamon and Kirkland brought their suit in bad faith for the purpose of harassing


Sossamon v. Cleburne Indep. Sch. Dist.                                             Page 21
Cleburne ISD. See R.M. Dudley Constr., 258 S.W.3d at 708 (failure to analyze or apply

law correctly is abuse of discretion). Thus, the court erred by imposing sanctions under

section 10.004 of the Civil Practice and Remedies Code. We sustain their second issue.

                                    Section 11.161 Sanctions

       Appellants contend in their third issue that the court abused its discretion by

imposing sanctions under section 11.161 of the Education Code.

       Section 11.161 provides:

       In a civil suit brought under state law, against an independent school
       district or an officer of an independent school district acting under color of
       office, the court may award costs and reasonable attorney's fees if:

             (1) the court finds that the suit is frivolous, unreasonable, and
       without foundation; and

               (2) the suit is dismissed or judgment is for the defendant.

TEX. EDUC. CODE ANN. § 11.161 (Vernon 2006).

       We have determined that the trial court abused its discretion by concluding that

Appellants’ suit was groundless and brought in bad faith for purposes of harassment.

For the same reasons, we hold that the court abused its discretion to the extent it

concluded that the suit was “frivolous, unreasonable, and without foundation” under

section 11.161. See Cavazos v. Edgewood Indep. Sch. Dist., 400 F. Supp. 2d 948, 966 (W.D.

Tex. 2005), aff’d, 210 F. App’x 414 (5th Cir. 2006).

We sustain Appellants’ third issue.




Sossamon v. Cleburne Indep. Sch. Dist.                                                  Page 22
                                         Conclusion

       We reverse the trial court’s sanctions order and render judgment denying the

motion for sanctions filed by Cleburne ISD and Superintendent Warlick.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting with note)*
Reversed and rendered
Opinion delivered and filed January 20, 2010
[CV06]

*      (Chief Justice Gray dissents. A separate opinion will not issue. He notes,
however, that both the parent and the adult student had signed a document that would
allow the student to graduate from high school on time but would effectively prevent
her from graduating from CHS because she was transferring to TEAM after the start of
the final semester before graduation. Unless she can travel backwards in time, this
foreclosed her ability to transfer to CHS for graduation in the same semester.)




Sossamon v. Cleburne Indep. Sch. Dist.                                       Page 23
