Opinion issued March 17, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00595-CV
                           ———————————
                    CHARLES THIELEMANN, Appellant
                                        V.
                  BLINN BOARD OF TRUSTEES, Appellee


                   On Appeal from the 335th District Court
                        Washington County, Texas
                        Trial Court Case No. 35485


                       MEMORANDUM OPINION

      Charles Thielemann appeals the trial court’s order sanctioning him for filing

a frivolous suit against the Blinn Board of Trustees pursuant to section 11.161 of

the Texas Education Code. In his sole issue, Thielemann argues that the trial court

abused its discretion when it imposed sanctions against him. We reverse the trial
court’s award of sanctions against Thielemann and render judgment that the Blinn

Board of Trustees take nothing.

                                      Background

      Charles Thielemann filed suit, pro se, against the Blinn Board of Trustees

(“the Board”) alleging that the Board, acting in its official capacity as the

governing board of Blinn College, violated Education Code section 130.0032(d)(2)

when it set out-of-district tuition rates for students because the rates caused

Thielemann and the other taxpayers of Washington County to shoulder a

disproportionate amount of the cost. 1 Thielemann argued that, in addition to

violating section 130.0032, the Board’s refusal to comply with this mandatory

provision of the Education Code also amounted to an abuse of official capacity in

violation of Texas Penal Code section 39.02. See TEX. PENAL CODE § 39.02 (West

2011). Thielemann argued that the Board did not believe that it was required to

comply with section 130.0032(d) and he asked the court to interpret this section

using the general rules of statutory construction and order the Board to refund

approximately $870,000 in “illegal taxes” to the taxpayers of Washington County

for past violations of section 130.0032(d), and order the Board to comply with
1
      Section 130.0032(d) provides that “[t]he governing board of a junior college
      district shall establish the rate of tuition and fees charged to a student who resides
      outside the district by considering factors such as . . . the extent to which the rate
      will ensure that the cost to the district of providing educational services to a
      student who resides outside the district is not financed disproportionately by the
      taxpayers residing within the district.” TEX. EDUC. CODE ANN. § 130.0032(d)(2)
      (West Supp. 2014).

                                            2
section 130.0032(d) when setting tuition rates in the future. Thielemann

acknowledged that the Board claimed that his suit was barred by the doctrine of

governmental immunity and argued that “there is no Government Immunity when

Public Servants violate a law.”

      The Board filed a motion to dismiss for lack of jurisdiction on the basis that

no private civil cause of action existed under the Education Code or Penal Code

and that Thielemann had failed to affirmatively demonstrate sufficient facts to

waive the Board’s governmental immunity. After the court granted the Board’s

motion to dismiss, the Board filed a motion for sanctions pursuant to Education

Code section 11.161 seeking reimbursement of its attorney’s fees and costs. After

conducting a non-evidentiary hearing on the sanctions motion, the trial court

granted the Board’s motion and awarded the Board $9,055.50 in attorney’s fees

and costs. This appeal followed.

                                    Sanctions

      In his sole issue, Thielemann argues that the trial court abused its discretion

by granting the Board’s motion for sanctions filed pursuant to section 11.161 of the

Texas Education Code.

      We review the trial court’s award of sanctions pursuant to section 11.161 for

an abuse of discretion. Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 793 (Tex.

App.—Dallas 2012, pet. denied) (reviewing award of attorney’s fees under section



                                         3
11.161 of Education Code for abuse of discretion); Kessling v. Friendswood Indep.

Sch. Dist., 302 S.W.3d 373, 387 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied) (same). “The test for an abuse of discretion is not whether, in the opinion

of the reviewing court, the facts present an appropriate case for the trial court’s

action, but ‘whether the court acted without reference to any guiding rules and

principles.’” Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004) (quoting

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The trial court’s ruling should be reversed only if it was arbitrary or unreasonable.

Downer, 701 S.W.2d at 242.

      Sanctions are reserved for “those egregious situations where the worst of the

bar uses our honored system for ill motive without regard to reason and the guiding

principles of the law.” Thielemann v. Kethan, 371 S.W.3d 286, 295 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (quoting Dyson Descendant Corp. v. Sonat

Exploration Co., 861 S.W.2d 942, 951 (Tex. App.—Houston [1st Dist.] 1993, no

writ)). A trial court may not base sanctions solely on the legal merit of a pleading

or motion. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts–Brown, 103

S.W.3d 664, 668 (Tex. App.—Dallas 2003, no pet.)). Instead, the trial court must

examine the facts available to the litigant and the circumstances existing at the time

the pleading was filed. Id.




                                          4
      Section 11.161 of the Education Code allows school districts to recover

reasonable attorney’s fees and costs 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 (West 2012). A “frivolous”

suit is generally understood to mean one that does not have a reasonable basis in

law or fact. See Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826

S.W.2d 124, 125 (Tex. 1991) (per curiam) (stating suit is not frivolous so long as it

has “reasonable basis in law and constituted an informed, good-faith challenge”);

see generally TEX. R. CIV. P. 13 (authorizing sanctions against party or party’s

attorney for filing “groundless” pleading; defining “groundless” pleading as one

that has “no basis in law or fact and [is] not warranted by good faith argument for

the extension, modification, or reversal of existing law.”).

      Under Texas law, a public community college, such as Blinn College, is a

political subdivision of the state and, thus, protected by governmental immunity.

See Lone Star Coll. Sys. v. Immigration Reform Coal. of Tex. (IRCOT), 418

S.W.3d 263, 267 n.7 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Wood v.

Coastal Bend Coll., 13-09-00253-CV, 2010 WL 2136621, at *2 (Tex. App.—

Corpus Christi May 27, 2010, pet. denied); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 101.001(3)(A) & (B) (West Supp. 2014). Additionally, an individual, such

as a trustee, sued in his official capacity enjoys the protections of governmental



                                           5
immunity to the same extent as those available to his employer. See City of El Paso

v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009). Therefore, if the governmental unit

would be immune due to governmental immunity, so is the governmental official

sued in his official capacity. See id.

      Governmental immunity, however, does not bar suits seeking to require state

officials to comply with statutory or constitutional provisions. See id. at 372; see

also Bell v. City of Grande Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas

2007, no pet.) (stating that request for injunction requiring “City’s officers to

follow the law in the future . . . is not barred by the City’s immunity to suit”). To

properly plead under this “ultra vires” exception to governmental immunity,

Thielemann was required to allege that a state official acted without legal authority

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

successful claimant in an ultra vires suit against a government official may obtain

prospective declaratory or injunctive relief, but it may not recover retrospective

relief, such as monetary damages. See id. at 373–76.

      Liberally construing Thielemann’s pleading, it is apparent that Thielemann

is asking for retrospective monetary damages based on the Board’s failure to

comply with Education Code section 130.0032(d) in the past, as well as

prospective injunctive relief (i.e., a court order requiring the Board to comply with




                                         6
Education Code section 130.0032(d) in the future). 2 See Washington v. Bank of

N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.) (stating that courts

liberally construe pro se pleadings and briefs). As the Board acknowledged in its

motion to dismiss, Thielemann’s pleading “does, in essence, seek declaratory

relief” from the trial court. Although Thielemann’s request for retrospective

monetary damages is barred by governmental immunity, his request for

prospective injunctive relief is not barred if Thielemann is able to satisfy the ultra

vires exception. See Heinrich, 284 S.W.3d at 373–76.

      Here, Thielemann alleged that the Board, acting in its official capacity, set

out-of-district tuition rates and fees without considering the disproportionate

impact the rates were having on district taxpayers, as set forth in section

130.0032(d)(2), and he asked the trial court to order the Board to comply with

section 130.0032(d)(2) in the future. See id. at 372–73 (holding ultra vires

exception applies only to state officials sued in their official capacities, not to

governmental entities). Section 130.0032(d) provides:

      The governing board of a junior college district shall establish the rate
      of tuition and fees charged to a student who resides outside the district
      by considering factors such as . . . the extent to which the rate will
      ensure that the cost to the district of providing educational services to


2
      Because Thielemann is not challenging the dismissal of his suit for lack of
      jurisdiction on appeal, we are considering Thielemann’s pleading for the limited
      purpose of evaluating the trial court’s finding that Thielemann’s suit was
      “frivolous, unreasonable, and without foundation.”

                                          7
      a student who resides outside the district is not financed
      disproportionately by the taxpayers residing within the district.

TEX. EDUC. CODE ANN. § 130.0032(d)(2) (West Supp. 2014) (emphasis added).

Thielemann alleged that although the Board was required to consider this factor

when it set tuition rates and fees, it failed to do so. Such allegations are arguably

sufficient to plead an ultra vires exception to governmental immunity. See

Heinrich, 284 S.W.3d at 372. Therefore, we cannot say that Thielemann’s suit

lacked a reasonable basis in law. See Gen. Elec. Credit Corp., 826 S.W.2d at 125

(stating suit is not frivolous so long as it has “reasonable basis in law and

constituted an informed, good-faith challenge”); Dyson Descendant Corp, 861

S.W.2d at 951 (stating sanctions should only be assessed “in those egregious

situations where the worst of the bar uses our honored system for ill motive

without regard to reason and the guiding principles of the law”). Although the

Board argued in its motion for sanctions that Thielemann’s declaratory judgment

action was barred by governmental immunity because the acts that he was

complaining about were, in the Board’s opinion, “clearly discretionary,” there is no

case law expressly addressing the question of whether the duties imposed by

section 130.0032(d) are discretionary in nature and the statute’s use of the term

“shall” arguably lends some support to Thielemann’s alternate interpretation. 3


3
      The Board also argued that Thielemann’s declaratory judgment action was barred
      because he was seeking retrospective damages, not prospective injunctive relief.

                                          8
      The Board argues that this case is similar to Davison v. Plano Independent

School District, a case in which the Dallas Court of Appeals upheld the award of

sanctions pursuant to section 11.161 because the record demonstrated that the

plaintiff knew before she filed suit that a state agency had previously dismissed her

claims for failure to exhaust her administrative remedies and that the school

district’s counsel had specifically notified the plaintiff that her claims were barred

by immunity and the failure to exhaust her administrative remedies. No. 05-12-

01308-CV, 2014 WL 1018212, at *8 (Tex. App.—Dallas Feb. 20, 2014, no pet.).

Like in Davison, the Board argued in its sanctions motion that it provided

Thielemann with case law regarding the issue of immunity when Thielemann filed

a petition for presuit discovery and that appellees’ counsel “repeatedly told

[Thielemann] that the College and its Board members are protected by

governmental immunity in telephone conversations and again” during a meeting

with Thielemann that was held before the Board filed its motion to dismiss. The

Board argued that the fact that Thielemann “continued to litigate this matter even

after he was provided considerable authority proving that claims against the Board

[were] barred by immunity which has not been waived is ample evidence that

[Thielemann’s] lawsuit was frivolous, unreasonable and without foundation.”

      As previously discussed, Thielemann’s petition sought both forms of relief. See
      Heinrich, 284 S.W.3d at 372 (“[I]t is clear that suits to require state officials to
      comply with statutory or constitutional provisions are not prohibited by sovereign
      immunity, even if a declaration to that effect compels the payment of money.”).

                                           9
      Unlike in Davison, however, none of these arguments were supported by

evidence offered at the hearing. The sanctions hearing consisted entirely of

arguments of Thielemann and counsel; no testimony or exhibits were admitted into

evidence during the hearing. Motions and arguments of counsel do not constitute

evidence for purposes of a sanctions proceeding. See Thielemann, 371 S.W.3d at

295. At the conclusion of the non-evidentiary hearing, the trial court took judicial

notice of “the filings” and the Board’s attorney’s affidavit attesting only to the

amount and reasonableness of attorney’s fees incurred. The “filings” in this case,

however, do not include Thielemann’s Rule 202 petition or the Board’s complete

response to that petition which were filed under a different trial court case number.

See TEX. R. CIV. P. 202 (authorizing presuit discovery in civil cases under limited

circumstances). Thielemann attached documents to his petition that generally

referenced the Rule 202 petition and the Board’s response, as well as one page

from the Board’s response. While the page from the Board’s response addressed

the issue of immunity, it did not address Thielemann’s declaratory judgment action

or the ultra vires exception to governmental immunity.

      More importantly, unlike in Davison, Thielemann’s requested declaratory

judgment relief seeking interpretation of section 130.0032(d) and an order

requiring the Board to comply with section 130.0032(d) is arguably supported by

case law as an attempt to require state officials to comply with statutory or



                                         10
constitutional provisions. See Heinrich, 284 S.W.3d at 372; see also Bell, 221

S.W.3d at 325. Accordingly, Davison is distinguishable on its facts.

      Having determined that Thielemann’s declaratory judgment claim had an

arguably reasonable basis in law, we hold that the court abused its discretion when

it sanctioned Thielemann for filing suit against the Board and awarded the Board

attorneys’ fees and costs pursuant to section 11.161. See Thielemann, 371 S.W.3d

at 295 (reversing sanctions against party for filing groundless pleading because,

although party did not prevail, case law arguably supported party’s claims); see

also GTC Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993)

(holding trial court abused discretion in awarding sanctions when no proof that

party before filing pleading was aware of evidence discrediting pleading); Elkins,

103 S.W.3d at 669 (holding trial court abused discretion in granting sanctions

when movant did not “put on any evidence at the hearing”).

                                   Conclusion

      We reverse the trial court’s award of sanctions against Thielemann and

render judgment that the Board take nothing.




                                               Russell Lloyd
                                               Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


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