     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                            ON MOTION FOR REHEARING



                                   NO. 03-13-00387-CV



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

                                                 v.

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


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



                                           OPINION


               We withdraw our opinion issued on May 23, 2014, and substitute this one in its place.

We overrule the appellant school districts’ motion for rehearing.




                                                 2
               The appellant school districts appeal from the trial court’s order of dismissal granting

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

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


                                         BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

challenge an AYP designation determination. See id.


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

                                                  3
                 In September 2012, most of the school districts administratively appealed their 2012

AYP designation determination, pursuant to the procedure provided in the AYP Guide and

sought relief based on their contention that the AYP Guide was an “improperly adopted rule.”2 In

December 2012, Williams, in his capacity as the Commissioner of Education (the Commissioner),

denied these appeals, explaining that his decisions were final.

                 Around the time that the Commissioner denied these appeals, the school districts sued

TEA and Michael Williams in his official capacity as the Commissioner for injunctive and declaratory

relief under section 2001.038 of the Administrative Procedure Act (APA), see Tex. Gov’t Code

§ 2001.038, and section 37.003 of the Uniform Declaratory Judgments Act (UDJA). See Tex. Civ.

Prac. & Rem. Code § 37.003. They challenged the validity of the AYP Guide, arguing that TEA did

not have statutory authority to adopt it. Appellants also asserted claims of ultra vires actions and

violations of Article I, section 3 of the Texas Constitution. See Tex. Const. art. I, § 3 (equal

protection clause); City of El Paso v. Heinrich, 284 S.W.3d 366, 372–77 (Tex. 2009) (describing ultra

vires claims).

                 Several weeks later, the school districts filed an amended petition to add claims by

the school districts seeking judicial review of the denial of their appeals of their preliminary 2012

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

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




        2
          The school districts also filed a petition for review of the AYP Guide with TEA in
November 2012, seeking declaratory relief that was not specific to any particular school district.
They sought an order rescinding all actions and directives issued under the guide. According to the
school districts, this petition is not part of this case.

                                                  4
also filed a motion for rehearing with TEA at that time. In March 2013, the school districts filed

a separate suit, bringing the same claims as their initial suit. The two suits were consolidated in

April 2013.

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

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

facts to establish that they had “any legal right or privilege that has been interfered with or

impaired” as required by section 2001.038 of the APA and that appellants’ pleadings did not meet

the requirements of the UDJA because the UDJA was not an independent grant of jurisdiction.

They also challenged appellants’ standing, raised sovereign immunity, and urged that, to the extent

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

               Appellants filed a response as well as a motion for summary judgment with

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

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

granted the plea without stating the grounds for its ruling and dismissed appellants’ claims. This

appeal followed.


                                           ANALYSIS

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


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




                                                 5
       2.     Did the Texas Legislature strip Appellees of authority to adopt rules
              regulating federal grant applications in a 1995 re-write of the Education
              Code?

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

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

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

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

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

       8.     Does sovereign immunity bar Appellants’ claims?

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

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

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

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


Appellants primarily attack the 2012 AYP Guide, its “bridge study” methodology,3 and the use of

single test administration to determine AYP designations.

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

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




        3
        The “bridge study” methodology converts test result data between the State of Texas
Assessments of Academic Readiness and the Texas Assessment of Knowledge and Skills.

                                                6
requirement that it issue AYP designation determinations. See 20 U.S.C. § 7861 (authorizing

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

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

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

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

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

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

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

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

matter which, when rendered for any reason, cannot have any practical legal effect on a

then-existing controversy.”).

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

from TEA to the school district administrators dated November 1, 2013.4 TEA notified the

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

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

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


       A key change resulting from the NCLB waiver is the elimination of the AYP
       designation . . . . With the granting of the NCLB waiver, AYP has been superseded


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

                                                  7
       to allow for a more flexible, state-specific approach to identifying schools in need
       of intervention.


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

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

submitted in Spring 2014.”

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

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

terms.”5 While the parties join issue with whether the conditional waiver moots appellants’ claims,

we view the controlling issue “more precisely as one of ripeness.”6 See Patterson v. Planned

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

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



        5
          Appellants do not dispute the USDE’s waiver or the elimination of AYP standards
and designations. In their response to the motion for rehearing, appellees include in an appendix a
letter from the USDE to the Commissioner dated September 19, 2014. We also take judicial notice
of undisputed facts contained in the letter. See Tex. R. Evid. 201; Freedom Commc’ns, Inc.,
372 S.W.3d at 623–24. In the letter, the USDE “extend[ed] Texas’ ESEA flexibílity request for one
year, through the end of the 2014-2015 school year.” According to the letter, the conditional
agreement did not expire in May and remains in effect.
        6
          In their motion for rehearing, appellants contend that the controlling issue is mootness
and that the panel misapplies the analysis of ripeness in Patterson v. Planned Parenthood,
971 S.W.2d 439 (Tex. 1998). They urge that the “2013 waiver simply cannot render 2012 claims
unripe,” and that the “contingencies” discussed in our original opinion “establish not a lack of
ripeness, but a failure to establish mootness.” This argument ignores the effect of the USDE’s
waiver and its elimination of AYP standards and designations. The waiver and elimination of AYP
standards and determinations rendered any judgment on the viability of appellants’ claims
challenging the AYP Guide and the 2012 AYP designations without “any practical legal effect on
a then-existing controversy.” See Texas Health Care Info. Council v. Seton Health Plan, Inc.,
94 S.W.3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied). Hence, the controlling issue is one
of ripeness.

                                                8
brought.” Id. at 442. It “focuses on whether the case involves ‘uncertain or contingent future

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

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

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

239, 250 (Tex. 2001); see id. (“Ripeness should be decided on the basis of all the information

available to the court. Intervening events that occur after decision in lower courts should be

included, just as must be done with questions of mootness.” (citation omitted)); see also Robinson

v. Parker, 353 S.W.3d 753, 755 (Tex. 2011) (“Although a claim is not required to be ripe at the

time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon ripen,

the case must be dismissed.” (citing Perry, 66 S.W.3d at 251)). “In the administrative-law context,

moreover, avoiding premature litigation over administrative determinations prevents courts from

‘entangling themselves in abstract disagreements over administrative policies’ while simultaneously

allowing the agency to perform its functions unimpeded.” Trinity Settlement Servs., LLC v. Texas

State Sec. Bd., 417 S.W.3d 494, 506 (Tex. App.—Austin 2013, pet. denied) (quoting Patterson,

971 S.W.2d at 443).

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

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

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

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

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

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



                                                  9
that the plaintiff’s injury remained contingent and that its challenge to the rider was not ripe, the

court recognized that the constitution is the foundation for the ripeness and other justiciability

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

the ripeness doctrine in addition to the constitutional justiciability issues presented:


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


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

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

the state will do.” Id. at 444.

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

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

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

App.—Austin 2011, no pet.) (concluding that claim challenging enactment was not ripe because

plaintiff “neither alleged nor presented evidence that [enactment] has had or is threatening to have

any tangible impact on her” and that plaintiff’s “asserted interest in declaratory and injunctive relief

rests upon the sorts of ‘uncertain or contingent future events that may not occur as anticipated, or

indeed may not occur at all’ that characterize unripe claims” (quoting Patterson, 971 S.W.2d

at 442)).




                                                  10
                Informed by the supreme court’s analysis in Patterson, we conclude that appellants’

alleged injury remains contingent and that appellants’ claims are not ripe for review. See

971 S.W.2d at 444. Thus, we would be issuing an advisory opinion were we to address appellants’

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

sufficiently ripe, justiciable claim” because “no showing that Petitioners have suffered a concrete

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

standing” because “‘[t]he essence of the ripeness doctrine is to avoid premature adjudication . . .

[and] to hold otherwise would be the essence of an advisory opinion, advising what the law would

be on a hypothetical set of facts’” (quoting Patterson, 971 S.W.2d at 444)); Patterson, 971 S.W.2d

at 443 (noting that “courts of this state are not empowered to give advisory opinions” and that

“[t]his prohibition extends to cases that are not yet ripe”); see also Tex. Const. art. II, § 1

(separation of powers).


                                         CONCLUSION

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

the jurisdiction.



                                              __________________________________________

                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed on Rehearing

Filed: November 12, 2014

                                                11
