                                                                                            ACCEPTED
                                                                                        03-14-00283-CV
                                                                                              10529045
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
June 9, 2016                                                                        5/9/2016 2:09:20 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK




                                                                      RECEIVED IN
                                                                 3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
 SHELLEY N. DAHLBERG                                            P5/9/2016
                                                                 HONE: (512) 936-1864
                                                                          2:09:20 PM
 Associate Deputy for Civil Litigation                          FAX: (512) 320-0667
                                                                   JEFFREY D. KYLE
 EMAIL: Shelley.Dahlberg@texasattorneygeneral.gov                        Clerk

                                      May 9, 2016

 TO   THE     HONORABLE CHIEF JUSTICE ROSE          AND   JUSTICES PEMBERTON   AND


 FIELD:

      Honors Academy and Azleway, Appellees, each recently filed
 lengthy post-submission briefs rehashing many of the arguments they
 already made either in their briefing or during argument. This letter
 responds to only those arguments raised in these recent filings that were
 not addressed previously.

       Honors Academy suggests in its letter brief that the Texas Supreme
 Court’s recent decision in Houston Belt & Terminal Railway Co. v. City
 of Houston, No. 14-0459, 2016 WL 1312910 (Tex. Apr. 1, 2016)
 undermines the Commissioners arguments in this case. However,
 Houston Belt is wholly consistent with the Commissioner’s argument
 that he has acted according to the statutory authority granted to him by
 the Legislature, thus precluding all Appellees’ claims against him.

       In Houston Belt, the City argued that its employee’s limited
 discretion barred all ultra vires concerning his actions. Id. at *3. The
 Court rejected that proposition and held that whether a governmental
 employee acts ultra vires must be determined by looking at the scope of
 that employee’s discretion or authority. Id. at *6 (stating that whether
 an ultra vires suit is barred “is dependent upon the grant of authority at
 issue in a particular case). The scope of the Commissioner’s authority
 was effectively ministerial and required him to use the performance
 ratings for the school years listed in Texas Education Code section


 Post Submission Response Brief
 Page 1
12.115(c-1). Appellant’s Br. 14-17. Because the Commissioner acted
consistently with his statutory authority, the Appellees’ ultra vires
claims are barred.

      Azleway similarly contends that this Court’s opinion in Texas State
Board of Veterinary Medical Examiners v. Jefferson, No. 03-14-00774-CV,
2016 WL 768778 supports its argument that the Commissioner’s
application of section 12.115(c-1) to it “contravene[s] the statutes and
impose[es] regulations inconsistent with them.” Post Oral Argument Br.
14-15. Notwithstanding that Jefferson involves a challenge to agency
rules, and to the extent its analysis regarding whether an agency rule
contravenes statutory authority is relevant, it supports the
Commissioner’s required use of 12.115(c-1)’s school year data.
Appellant’s Br. 14-17.

     Neither Honor’s nor Azleway’s post submission briefing adds
anything meaningful to the arguments before the Court. The Court
should reject these new arguments, dismiss the Appellees’ ultra vires
claims, and vacate the temporary injunction.


                                 Sincerely,

                                 /s/ Shelley Nieto Dahlberg

                                 Shelley Nieto Dahlberg
                                 Attorney for Defendants TEA and Williams
trm




Post Submission Response Brief
Page 2
                                 CERTIFICATE OF SERVICE

       I hereby certify that on the 9th day of May, 2016, the foregoing document
was filed electronically and sent to the following counsel of record via email
and/or ECF Notification:

 Robert A. Schulman                         Kevin O'Hanlon
 SCHULMAN, LOPEZ& HOFFER, L.L.P.            Leslie McCollom
 Joseph E. Hoffer                           808 West Avenue
 517 Soledad Street                         Austin, Texas 78701
 San Antonio, Texas 78205-1508              kohanlon@808west.com
 rschulman@slh-law.com                      lmccollom@808west.com
 jhoffer@slh-law.com                        Attorneys for Plaintiff-Intervenor
                                            Honors Academy, Inc.
 Cris Feldman
 3355 West Alabama Street, Suite 1220       Susan G. Morrison
 Houston, Texas 77098                       The Fowler Law Firm, PC
 cris.feldman@thefeldmanfirmpc.com          919 Congress Ave. Suite 900
 Attorneys for Plaintiff                    Austin, TX 78701
                                            smorrison@thefowlerlawfirm.com
                                            Attorneys for Plaintiff-
                                            IntervenorAzleway Charter School



                                               /s/ Shelley N. Dahlberg
                                              SHELLEY N. DAHLBERG
                                              Assistant Attorney General




Post Submission Response Brief
Page 3
                                 CERTIFICATE OF COMPLIANCE

            Pursuant to TRAP 9.4(i)(3), the undersigned Assistant Attorney
General hereby certifies that the preceding document complies with the type-
volume limits in TRAP 9.4.

1.       Excluding the exempted portions in TRAP 9.4(i)(1), the brief contains:

         370 words, and;

2.   has been prepared using: Microsoft Word in 14 pt Times New Roman
conventional typeface Font with 12 pt footnotes.

       The undersigned understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in TRAP 9.4, may
result in the court's striking the brief and prohibiting the party from filing further
documents of the same kind.




                                               /s/ Shelley N. Dahlberg
                                               SHELLEY N. DAHLBERG
                                               Assistant Attorney General




Post Submission Response Brief
Page 4
   ________________________________________________________________________________
SHELLEY N. DAHLBERG                                                                                    PHONE: (512) 936-1864
Associate Deputy for Civil Litigation                                                                  FAX: (512) 320-0667
EMAIL: Shelley.Dahlberg@texasattorneygeneral.gov

                                                               May 9, 2016


Jeffrey D. Kyle, Clerk
Court of Appeals
Third District of Texas
P. O. Box 12547
Austin, Texas 78711-2547

        Re:        Court of Appeals Number: 03-14-00283-CV; 03-14-00360-CV
                   Trial Court Case Number: D-1-GN-14-000672

                   Texas Education Agency and Michael L. Williams, Commissioner of Education, in his
                   Official Capacity v. American YouthWorks, Inc. d/b/a American YouthWorks Charter
                   School

                   Texas Education Agency and Michael L. Williams, Commissioner of Education, in his
                   Official Capacity v. American YouthWorks, Inc. d/b/a American YouthWorks Charter
                   School; Honors Academy, Inc. d/b/a Honors Academy Charter School and Azleway
                   Charter School

Dear Mr. Kyle:

Please circulate this post-submission letter brief to Chief Justice Rose, Justice Pemberton and
Justice Field for their consideration in the above-referenced case. Please also file this document
with the Court.

                                                                   Sincerely,

                                                                   /s/Shelley Nieto Dahlberg

                                                                   Shelley Nieto Dahlberg
                                                                   Attorney for Defendants TEA and Williams




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