                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
  EL PASO INDEPENDENT SCHOOL
  DISTRICT,                                      §
                                                                 No. 08-11-00329-CV
                         Appellant,              §
                                                                      Appeal from
  v.                                             §
                                                                  327th District Court
  MICHAEL McINTYRE AND                           §
  LAURA McINTYRE, INDIVIDUALLY                                 of El Paso County, Texas
  AND ON BEHALF OF THEIR MINOR                   §
  CHILDREN, K.M., L.M., C.M.M, M.M.,                               (TC # 2007-3210)
  AND L.M.,                                      §

                         Appellees.              §

                                          OPINION

       In 2007, the El Paso Independent School District (EPISD) initiated truancy related criminal

charges against Michael and Laura McIntyre, and three of their children, under the then existing

mandatory school attendance statute. The charges were eventually dropped by the district attorney.

Before us today are remnants of a multi-count civil action that the McIntyres originally filed

against EPISD, its then superintendent (Dr. Lorenzo Garcia), an administrator (Mark Mendoza),

several of the McIntyre’s relatives, and other EPISD employees. During the decade-long litigation

path, which we describe in more detail below, the superintendent, the administrator, the EPISD

employees, the relatives, along with several of the causes of action have fallen by the wayside.
         The McIntyres have pending below a 42 U.S.C. § 1983 action that claims EPISD violated

their constitutional rights in how its employees inquired about their homeschooling curriculum,

and later initiated criminal charges against them. That claim is not the subject of this appeal and

awaits our remand, so the parties can litigate it to some conclusion. Before us today is only the

question of whether the McIntyres also state a claim for declaratory and injunctive relief that

overcomes EPISD’s governmental immunity, and the mootness doctrine. We conclude the

equitable claims before us should be dismissed.

                                                BACKGROUND

         This case returns to us on remand from the Texas Supreme Court. McIntyre v. El Paso

Indep. Sch. Dist., 499 S.W.3d 820 (Tex. 2016). The Supreme Court’s opinion, and our earlier

opinion, comprehensively set out the facts of the case. El Paso Indep. Sch. Dist. v. McIntyre, 457

S.W.3d 475, 480-82 (Tex.App.--El Paso 2014), aff’d in part, rev’d in part, 499 S.W.3d 820, 821,

830-31. We repeat only so much of the background as is needed to understand the issues before

us.

         Since the fall of 2004, Michael and Laura McIntyre have homeschooled their minor

children. They initially did so out of an empty space in a motorcycle dealership that Michael and

his twin brother, Tracy, ran. Michael, Laura, and Tracy, however, became embroiled in a dispute

over the ownership and management of the dealership. Michael and Laura McIntyre allege that

other family members, as a pretext to take over the family business, questioned the legitimacy of

the McIntyres’ homeschooling. In January 2006, which would have been during the time of the

dispute, the EPISD received an anonymous complaint that the McIntyres’ children were not being

educated.1


1
 The McIntyres contest whether the complaint was truly anonymous. Whether it was anonymous or not is unimportant
to our resolution of the remaining issues in this case. Likewise, EPISD has filed a motion to strike several paragraphs

                                                          2
         Following the complaint, EPISD sent a truant officer to make an initial home visit, and

according the McIntyres, confirmed with them that homeschooling was acceptable, and directed

the McIntyres where to call to confirm with the EPISD that their children were being appropriately

homeschooled. After a series of follow-up calls, they assumed the issue was closed.

         In September 2006, the McIntyres’ seventeen-year-old daughter, Tori, ran away from home

and began living with an aunt and uncle. She was unhappy about not being able to attend school.

Her aunt enrolled her in a high school within the EPISD system. Because Tori declined to take

any placement tests, and her grade level could not be otherwise confirmed, she was initially put in

the 9th grade. In December 2006, Gene and Shirene McIntyre, who are Michael’s parents, and

grandparents to the five McIntyre children at issue here, met with Mark Mendoza, EPISD’s

designated attendance officer. They expressed concerns over the previous homeschooling of Tori

and the education of their other grandchildren.

         EPISD then had a representative from one of its middle schools visit the McIntyre home

and inquire about the curriculum used to teach the children. The McIntyres answered the door,

but Laura said only that she was tired of being harassed and would call her attorney. Another

EPISD employee from an elementary school was also asked to go to the McIntyre home and obtain

a signed homeschool verification form. The McIntyres allege below that the form goes beyond

the requirements of Texas law and asks parents to commit to the Texas Education Association’s

approved curriculum. The McIntyres’ counsel reviewed the form and advised them not to sign it.

The lawyer sent a letter dated January 5, 2007 to EPISD claiming that the children were being

homeschooled in a bona fide manner and “in full compliance” with Texas law (that is, utilizing a



and footnotes from the McIntyres’ brief on remand, and then a separate motion to strike portions of the response that
the McIntyres filed to the motion to strike. The challenged references pertain to an EPISD cheating scandal and a
newspaper article published after our original opinion. We overrule the motions to strike but conclude that none of
the objected to materials are germane to the issues before us.

                                                         3
written curriculum including reading, spelling, grammar, math, and good citizenship). Mendoza,

however, did not believe the letter resolved the matter because it did not appear to be based on the

lawyer’s personal knowledge.

        In January 2007, EPISD delivered several “Notice of Absences and Request for

Conference” forms to the McIntyres.            The McIntyres did not respond to the requests for

information or agree to a meeting. EPISD through its employees then filed criminal truancy

complaints in a justice court against Michael and Laura McIntyre, and three of the McIntyre

children. The children were charged with failing to attend school, and the McIntyre parents were

charged with criminal negligence in failing to require their children to attend school. The charging

instruments state, however, that the McIntyres have “not met home school verification

requirement.”

        Mendoza claims he initiated the charges relying on information provided by the children’s

grandparents, his confirmation of information regarding Tori’s inability to describe her

homeschool education, and the refusal of the McIntyres to provide the EPISD with any written

assurance regarding the curriculum they were using.               After the complaints were filed, the

McIntyres’ attorney sent a second letter to EPISD personnel. The letter was essentially identical

to the first letter, but it also included a threat to file a lawsuit.

        The McIntyres entered pleas of not guilty to the truancy charges and requested a separate

jury trial for each. They allege that they made several phone calls to resolve the matter with

EPISD, but the employees they spoke with were either unfamiliar with the charges or could not

identify what paperwork was required to meet the verification requirement. They also allege that

they spoke with Mark Mendoza who demanded copies of curriculum and progress reports, and




                                                      4
told them that he knew they were not breaking the law.2 Conversely, the State’s prosecutor, Matt

Moore, testified that he would have dismissed the charges if the McIntyres would have signed a

letter he prepared that attested that they were educating their children in compliance with the Texas

Supreme Court’s decision in Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994). He

testified that they refused to do so.

           In October 2007, prosecutor Moore contacted Tori and asked if she would vouch for the

fact that her parents were using a curriculum and providing a bona fide education, but Tori declined

to get involved. Moore decided to dismiss the truancy complaints, and filed a motion to dismiss

stating that the State’s essential witness (Lori) refused to testify. The justice court formally

dismissed all the charges on December 3, 2007.

                                               The Lawsuit Below

           During the pendency of the criminal charges, Michael and Laura McIntyre, along with five

of their children ranging in age from seven to fifteen, filed this civil lawsuit against EPISD,

Dr. Lorenzo Garcia (in his official capacity), Mark Mendoza, three other named EPISD

employees, and several of their own family members (Gene, Shirene, and Tracy McIntyre). By

the time of their Third Amended Petition--the last live pleading--the three-other named EPISD

employees had been dropped from the suit.

           The Third Amended Petition asserts six counts, and one unnumbered claim for injunctive

relief. The various claims include:

               •    Count 1, Declaratory Relief. The McIntyres seek declaratory relief in part under
                    TEX.CIV.PRAC.&REM.CODE ANN. § 110.005 (West 2011). The count seeks various
                    declarations, including that the McIntyres were innocent of all the charges made by
                    EPISD, and that Mendoza was acting outside the scope of his authority by filing a
                    criminal charge for a “non-existent crime.”



2
    That call was recorded; EPISD disputes the McIntyres’ characterization of Mendoza’s statements.

                                                          5
          •   Count 2, Equal Protection. The McIntyres alleged that they have been treated
              differently from other families that homeschool, or that send their children to
              private schools. They allege that EPISD did so by exceeding its legal right to
              inquire about the curriculum used by the McIntyres and filing charges for a
              “fabricated crime.”

          •   Count 3, Due Process under the Texas and Federal Constitutions. The McIntyres
              allege that EPISD’s custom and policy is to use the threats of, or actual prosecution,
              to compel compliance with EPISD demands. In doing so, EPISD reverses the
              burden of proof on homeschooling families.

          •   Count 4, Privacy. Here, the McIntyres allege that through “defamatory
              accusations” of “non-existent crimes” their privacy rights under the Texas
              Constitution were violated.

          •   Count 5, Malicious Prosecution. Under this count, the McIntyres sought money
              damages against the family member defendants under state law and pleaded a claim
              for malicious prosecution under 42 U.S.C. § 1983 against EPISD and its employee
              defendants.

          •   Count 6, Religious Liberty. The McIntyres allege a violation of the Texas Religious
              Freedom Restoration Act (TRFRA), claiming that EPISD burdened their free
              exercise of religion.

          •   Equitable Relief. The McIntyres, pursuant to the Texas Civil Practices and
              Remedies Code and the Texas Constitution, seek an order from the court “enjoining
              Defendants from pursuing further the vexatious and/or harassing litigation which
              has violated Plaintiffs rights under Texas law.” Under 42 U.S.C. § 1983, the
              McIntyres also seek an order “enjoining Defendants from pursuing further the
              violations of Plaintiffs constitutional rights under color of state law.” Without
              reference to what statute it was sought under, they also seek an injunction
              precluding EPISD from “interfering with directing the education of their children.”


                                Proceedings in the Trial Court

       Through various filings, EPISD, Dr. Lorenzo Garcia, and Mark Mendoza sought dismissal

based on the McIntyres’ failure to exhaust administrative remedies, governmental immunity, and

the failure to provide statutory notice of the TRFRA claim. Dr. Garcia and Mark Mendoza

additionally sought dismissal of the claims against them based on the election of remedies

provision in Section 101.106 of the Texas Civil Practice & Remedies Code, official immunity as


                                                6
to the McIntyres’ state law claims, and qualified immunities as to the McIntyres’ 28 U.S.C. § 1983

federal claims. The trial court denied the various motions. EPISD, Dr. Lorenzo Garcia, and Mark

Mendoza filed an interlocutory appeal of those rulings.

                                    Parties and Claims Resolves Below

         The McIntyres’ dispute with their relatives over the business was tried and eventually

settled in a different proceeding. Mr. Yamaha, Inc. v. McIntyre, 08-11-00295-CV, 2012 WL

225697, at *1 (Tex.App.--El Paso Jan. 25, 2012, no pet.)(mem. op.).

         In the prior appeal before this Court, EPISD urged, and the McIntyres conceded, that the

TRFRA claim should be dismissed based on a lack of a statutorily required notice letter. El Paso

Indep. Sch. Dist. v. McIntyre, 457 S.W.3d at 484.

         We also sustained issues in the earlier appeal that resulted in the dismissal with prejudice

of the claims “of any nature” against the Dr. Lorenzo Garcia and Mark Mendoza. In part, both

sought dismissal under Section 101.106(a) of the Texas Civil Practices and Remedies Code, which

requires a plaintiff to make an election--sue either the entity or the employee, but not both.

TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(c)(West 2011). We held that because the McIntyres

sued both, the state law claims against these individuals must be dismissed. McIntyre, 457 S.W.3d

at 492. The McIntyres did not appeal that holding and it has become final for this case.3

         We further disposed of the federal law claims against Mendoza based on qualified

immunity. To defeat the qualified immunity defense, a plaintiff must show in part that the state

actor violated a right that was “clearly established at the time of the challenged conduct.” Id. at

493, citing Ashcroft v. al-Kidd, 563 U.S.731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).


3
 See Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation Dist. No. 1ex rel., 263 S.W.3d
910, 918 (Tex. 2008)(noting that when an appellant abandons in their petition for review an issue decided in the court
of appeals, the court of appeals’ judgment as to that issue remains in effect). Accordingly, we have dropped Dr.
Lorenzo Garcia and Mark Mendoza from the style of this appeal.

                                                          7
We concluded that each of the constitutional claims failed to raise a fact issue with respect to the

violation of a clearly established constitutional right. McIntyre, 457 S.W.3d at 495-99. The

McIntyres appealed that holding to the Texas Supreme Court as to their substantive due process

claim. The supreme court affirmed our decision in that respect. McIntyre, 499 S.W.3d at 828.

       Finally, we held that the balance of the claims before us should be dismissed because the

McIntyres had failed to exhaust their administrative remedies within EPISD’s system for resolving

disputes. McIntyre, 457 S.W.3d at 490. The Texas Supreme Court concluded that we erred in that

holding. Administrative remedies are available for a person “aggrieved by either (1) the school

laws themselves or (2) a school board’s violation of the school laws.” McIntyre, 499 S.W.3d at

826. The McIntyres, however, were not aggrieved by the school laws of Texas, or by the EPISD’s

attendance officer’s authority to investigate or file criminal charges against a parent who

contributes to truancy. Id. Rather, they were complaining of EPISD and its attendance officer’s

“alleged decision to file charges merely because their ‘homeschool verification requirements’ were

not met . . . [and they] unconstitutionally investigated them and filed criminal complaints against

them.” Id. The court then remanded for our resolution of the parties’ remaining jurisdictional

arguments. Id. at 828-29.

                               The Remaining Issues on Remand

       EPISD frames three issues in this remand. In Issue One, it attacks the McIntyres’ claim

for declaratory judgment because it does not allege that any statute or ordinance is invalid.

Consequently, the claim fails to overcome EPISD’s governmental immunity. Issue Two attacks

the claim for injunctive relief. The issue as stated claims the McIntyres fail to “make a viable

claim that they face irreparable injury to vested property rights by virtue of threatened enforcement

of an unconstitutional statute” and accordingly fails to overcome EPISD’s immunity. As we



                                                 8
explain below, this argument has morphed into a claim that there is a defect in parties. Finally, in

Issue Three EPISD contends that because of changes in the law, and changes in the way that it

now handles truancy matters, the claims for prospective declaratory and injunctive relief are moot.

We address this last issue first.4

                                                   MOOTNESS

         A case is rendered moot when: (1) it appears that a party seeks to obtain a judgment upon

some controversy, when none exists; or (2) a party seeks a judgment upon some matter which

cannot have a practical legal effect upon a then existing controversy. Beltran v. Beltran, 324

S.W.3d 107, 110 (Tex.App.--El Paso 2010, no pet.). An actual controversy no longer exists

between the parties when “the decision of an appellate court would be a mere academic exercise.”

Beltran, 324 S.W.3d at 110, quoting Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex.App.--El Paso

1994, no writ). The mootness doctrine implicates our jurisdiction to decide a controversy.

Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442

(Tex. 1998)(justiciability doctrines such as ripeness, as well as standing and mootness, lie in the

prohibition on advisory opinions, which in turn stem from the separation of powers doctrine set

forth in Article 2, Section 1 of the Texas Constitution).

         Mootness can arise from events occurring after a case is appealed. Olson v. Comm’n for

Lawyers Discipline, 901 S.W.2d 520, 522 (Tex.App.--El Paso 1995, no pet)(death of litigant

seeking reinstatement of law license mooted appeal). Accordingly, we may take note of events

occurring after a case arrives at this Court which affects our jurisdiction. See TEX.R.EVID. 201;



4
  EPISD raised a mootness challenge in its Response to the Petition for Review at the Texas Supreme Court. We
disagree with the McIntyres’ contention that the supreme court has already overruled the mootness challenge. Nothing
in its opinion suggests that it decided the question, and instead, it remanded the “remaining jurisdictional challenges”
back to this Court. McIntyre, 499 S.W.3d at 829. Nor did the supreme court necessarily decide the issue. We are not
cited to any case law from that court requiring that among the various challenges to a court’s jurisdiction, it always
decides a mootness challenge first.

                                                           9
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).

       In part, the McIntyres seek an injunction against further “vexatious and/or harassing

litigation which has violated [the McIntyres’] rights under Texas law.” They sought a declaration

(1) allowing them to educate their children “free from fabricated civil/criminal charges” and (2)

that the “mandatory prosecution policy” of the EPISD is unlawful. By the time of the hearing

below, the truancy related charges against both the McIntyre parents and children had been

dismissed by the district attorney. Mark Mendoza testified below that EPISD “has no intention of

filing this same case against this particular set of parents.” On deposition, he was challenged about

that statement, and asked “If this conduct was criminal in [2007], why wouldn’t it be in [2010]?”

Mendoza responded:

       Sir, one of the internal procedures is to review the case with the assistant district
       attorney. The assistant district attorney has dismissed these charges, and so
       therefore, filing the same type of charge unless there is some credible evidence that
       something has changed dramatically in the household, would be moot.
EPISD repeats essentially the same claim in its answer, stating that it has “no intention of

instituting any new truancy cases against any of the Plaintiffs, barring any unforeseen significant

change in the facts or the law.” And by the time this dispute was heard by the trial court, EPISD

had already changed its procedures such that a truancy related charge would not be brought without

consultation with the district attorney’s office. Additionally, while this case has been on appeal,

the legislature has changed the way truancy charges would be brought today.

       Effective September 1, 2015, the legislature repealed, amended, or added various

provisions of the Education Code, Family Code, Government Code, Local Government Code, and

Code of Criminal Procedure that fundamentally change the way truancy is handled in Texas. Act


                                                 10
of May 30, 2015, 84th Leg., R.S., ch. 935, 2015 TEX.GEN.LAWS 3224. As a part of that change,

the legislature repealed Section 25.094 of the Education Code, that previously had made the failure

to attend school by a person within the compulsory school attendance age a Class C misdemeanor.

Id. at § 41(2), 2015 TEX.GEN.LAWS at 3255. That section had served as the basis for the truancy

complaints that had been filed in 2007 against the McIntyre children.

       The new act deals with truancy in a decidedly different manner. Truancy filings for

students are now exclusively a civil matter handled in specialized truancy courts. Id. at § 26, 2015

TEX.GEN.LAWS at 3235 (amending by adding TEX.FAM.CODE § 65.001 et. seq.). “An adjudication

of a child as having engaged in truant conduct is not a conviction of crime. An order of adjudication

does not impose any civil disability ordinarily resulting from a conviction . . . .” Id. (amending by

adding TEX.FAM.CODE ANN. § 65.009 (a)). A school district may refer a student to a truancy

court, but only if it has first unsuccessfully applied statutory “truancy prevention measures.” Id.

at § 8, 2015 TEX.GEN.LAWS at 3227-29 (amending TEX.EDUC.CODE ANN. § 25.091 (a) and (b),

and adding § 25.0915). If there is a referral, a “truant conduct prosecutor” then reviews the facts

described in the referral and decides whether to file a petition with the truancy court. Id. at § 27,

2015 TEX.GEN.LAWS at 3239 (adding TEX.FAM.CODE ANN. § 65.053). The truancy court itself

has the authority to excuse absences, whether they have been excused by school officials. Id.

(amending by adding TEX.FAM.CODE ANN. § 65.003(c)). Though the matter is civil, the State

carries the burden to prove truant conduct “beyond a reasonable doubt.” Id. (amending by adding

TEX.FAM.CODE ANN. §§ 65.010, 65.101(f)).

       The criminal charge made against Michael and Laura McIntyre still exists but is

reclassified from a “Class C” misdemeanor to a misdemeanor “punishable by fine only.” Id. at

§ 11, 2015 TEX.GEN.LAWS at 3231 (amending TEX.EDUC.CODE ANN. § 25.093(c)). Additionally,



                                                 11
a school district may now only file a complaint against a parent under that Section “if the school

district provides evidence of the parent’s criminal negligence.”                 Id. at § 13, 2015 s at

TEX.GEN.LAWS 3231-32 (amending TEX.EDUC.CODE ANN. § 25.0951(b)). The court retains the

discretion to dispose of the charge; it “may dismiss a charge against” a parent “if the court finds

that a dismissal would be in the interest of justice” because “sufficient justification exists for the

failure to attend school.”       Id. at § 3, 2015 TEX.GEN.LAWS at 3225 (amending TEX.CODE

CRIM.PROC.ANN. § 45.0531(b)).

        For most Texas counties, including El Paso, school districts were required to adopt uniform

truancy policy through a committee with representation from the county judge, the mayor of the

largest municipality in the county, the juvenile courts, the municipal courts, the justice courts, the

school districts and charter schools, the district attorney’s office, and the public. Id. at § 10, 2015

TEX.GEN.LAWS at 3230 (amending TEX. EDUC. CODE ANN. § 25.0916). Such a new plan was

adopted in El Paso County in 2015.5

        Given the underlying facts, and the intervening change in the law, we agree that the

injunctive relief seeking a restraint on filing new criminal charges is moot, as are those declarations

specific to the filing of criminal charges. Not only have the procedures changed, but the standards

for filing charges have changed. We layer on to that change in the law four other considerations:

(1) much of EPISD’s angst was the McIntyres’ refusal to identify, or acknowledge use of a

curriculum, but the existence and use of a curriculum was confirmed by Laura McIntyre through

an affidavit she filed in this litigation; (2) three of the McIntyre children have aged out from the

ambit of the mandatory attendance policy; (3) the familial dispute that led to the “anonymous” and




5
 El Paso County, Texas Truancy Prevention Plan” available https://tx02201707.schoolwires.net/cms/lib/TX02201707
/Centricity/Domain/165/Truancy_Prevention_Plan-_with_Signatures.pdf (last visited January 29, 2018).

                                                      12
other complaints have been resolved; and (4) EPISD’s disclaimer of an intent to pursue future

criminal charges.

        The parties spar over whether this last fact--EPISD’s voluntary disclaimer of any intent to

pursue the matter--is truly dispositive to the mootness inquiry.6 “A defendant’s cessation of

challenged conduct does not, in itself, deprive a court of the power to hear or determine claims for

prospective relief.” Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416,

418 (Tex. 2016). Rather, a dispute is only mooted by subsequent events that make “absolutely

clear that the [challenged conduct] could not reasonably be expected to recur.” Id., quoting Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708, 145

L.Ed.2d 610 (2000). The burden of persuasion in this regard is a “heavy” one. County of Los

Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).

        The McIntyres stress that EPISD’s disclaimer was subject to a proviso for “unforeseen

significant change in the facts or the law.” Equivocation by a governmental entity in changing a

policy or practice cuts against the absolute clarity required in a mootness challenge. In Matthews,

for instance, the Texas Supreme Court found a school district’s post-lawsuit policy change

insufficient to moot a controversy. The case arose over a school district that bared religious

messages on student prepared banners used at football games. Matthews, 484 S.W.3d at 417.

Despite the school district’s claim that it would no longer prohibit the signs based on their religious

content, the school district expressly retained “the right to restrict the content of school banners.”

Conversely, in Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), aff’d sub




6
  The McIntyres also invoke the “capable of repetition, yet evading review” exception to the mootness doctrine. One
element of that exception asks whether there is a reasonable expectation that the same complaining party would
be subjected to the same action again. See City of Cleveland v. Keep Cleveland Safe, 500 S.W.3d 438, 453-55
(Tex.App.--Beaumont 2016, no pet.). In that sense, the exception folds back into the merits of the mootness issue and
turns on whether EPISD would ever refile the criminal charges it previously pursued.

                                                         13
nom. Sossamon v. Texas, 563 U.S. 277 (2011), the Fifth Circuit dismissed part of a prisoner’s

claim over access to the prison sanctuary based on the affidavit of a prison administrator attesting

that the contested prison policy had been changed to allow exactly what the plaintiff demanded.

Nonetheless, the disclaimer in this case, joined with the fundamental way in which truancy is now

handled, convinces us that the prospect of future criminal charges is speculative at best, and the

relief in that regard is moot.

        The McIntyres also respond to the mootness challenge, however, by noting that they seek

an injunction going beyond just the initiation of criminal charges. They also fear that EPISD will

continue to seek improper verification of homeschooling curriculum. And even with the changes

in the truancy law, school districts still have truancy enforcement officers who are empowered to

investigate truancy matters, including the authority to make home visits. See TEX.EDUC.CODE

ANN. § 25.091(a)(West Supp. 2017). Without addressing the merits of whether EPISD would use

that authority to make future curriculum inquiries, much less improper ones, we conclude the

change in the truancy laws do not moot this aspect of their claim. See Heckman v. Williamson

County, 369 S.W.3d 137, 167 (Tex. 2012)(changes in policy did not automatically moot

controversy when gist of claims was the defendants’ actions and behavior, and not its written

policies). Nor do EPISD’s pleadings or Mendoza’s statements make “absolutely clear” that EPISD

would not make further inquiries into curriculum matters. EPISD’s pleadings state it has no

intention of “instituting new truancy cases” or “criminal proceedings” against the McIntyres

[Emphasis added]. Mendoza’s testimony focuses only on the criminal charges. Neither disclaimer

addresses inquiries short of criminal charges. EPISD does not concede that any improper inquiries

were made, nor does it suggest it has altered its policy or practice in confirming whether a

homeschool is providing a bona fide education or not. See Matthews, 484 S.W.3d at 419 (in



                                                14
rejecting mootness challenge, noting as important factor the absence of admission of past improper

conduct by governmental entity).

         Accordingly, we sustain the mootness challenge as it relates to the injunctive and

declaratory relief regarding the filing of future criminal charges, but otherwise overrule Issue

Three.

                  PROSPECTIVE RELIEF AND GOVERNMENTAL IMMUNITY

         EPISD’s plea to the jurisdiction contends that its governmental immunity bars the courts

from entertaining the declaratory and injunctive relief sought in this case.

                                    Governmental Immunity

         Governmental entities, including school districts such as EPISD, are generally immune

from suit unless the legislature expressly waives that immunity. Manbeck v. Austin Indep. Sch.

Dist., 381 S.W.3d 528, 530 (Tex. 2012); Connally v. Dallas Indep. Sch. Dist., 506 S.W.3d 767,

775-76 (Tex.App.--El Paso 2016, no pet.). A governmental unit’s immunity implicates a trial

court’s subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc., 514 S.W.3d

746, 751 (Tex. 2017). As such, an appellate court has an obligation to address a governmental

immunity argument even when raised for the first time on appeal. Rusk State Hosp. v. Black, 392

S.W.3d 88, 91 (Tex. 2012)(argument raised for first time to court of appeals); Manbeck, 381

S.W.3d at 530 (immunity argument raised for first time before Texas Supreme Court).

         “Where a government entity challenges jurisdiction based on immunity, the plaintiff must

affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Ryder

Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015)(citations omitted).

A governmental entity may challenge that allegation of a valid waiver through a plea to the

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004);



                                                 15
Univ. of Texas at El Paso v. Ochoa, 410 S.W.3d 327, 330 (Tex.App.--El Paso 2013, pet. denied).

The plea might attack the face of the pleading, but it may also include evidence which thereby

places into issue the existence of a jurisdictional fact. Miranda, 133 S.W.3d at 226-27; College of

the Mainland v. Glover, 436 S.W.3d 384, 391 (Tex.App.--Houston [14th Dist.] 2014, pet. denied).

In this case, both parties presented evidence at the hearing on the plea to the jurisdiction.

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 226. “If there is no question

of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a

matter of law.” City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). “If, however, the

jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the

jurisdiction, and the issue must be resolved by the fact finder.” Id. “This standard mirrors our

review of summary judgments” where the reviewing court takes as true all evidence favorable to

the non-movant, indulging every reasonable inference and resolving any doubts in the non-

movant’s favor. Id. We review the issue of whether a trial court has subject matter jurisdiction de

novo. Miranda, 133 S.W.3d at 226-27; State ex rel. Dep’t of Highways and Public Transp. v.

Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

                                   The Injunctive Relief Claim

       The McIntyres assert a state law claim for injunctive relief, seeking two specific orders:

       105. [T]he issuance of an order enjoining Defendants from pursuing further the
       vexatious and/or harassing litigation which has violated [the McIntyres’] rights
       under Texas law.
       107. [A] permanent injunction against defendants enjoining them from interfering
       with directing the education of their children.
       As we previously decided, the claim stated in paragraph 105 is moot. EPISD contends the

other claim does not overcome its governmental immunity.


                                                 16
       Governmental immunity is waived when a plaintiff challenges a statute or ordinances’

validity. See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 77 (Tex. 2015)

(sustaining constitutional due process challenges to licensing rules and regulations). Conversely,

a governmental entity retains immunity from claims for injunctive relief that are based on

allegations that a government official has violated the law or has failed to perform a ministerial

act. City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009). For such a claim, the

aggrieved party is not without recourse, but any suit must name the government official as a party.

Patel, 469 S.W.3d at 76 (“[S]uits complaining of ultra vires actions may not be brought against a

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

official capacity.”); Heinrich, 284 S.W.3d at 372-73 (“Nonetheless, as a technical matter, the

governmental entities themselves--as opposed to their officers in their official capacity--remain

immune from suit.”); Texas Dep’t of Ins. v. Reconveyance Services, Inc., 306 S.W.3d 256, 258

(Tex. 2010)(“We conclude[ ] that suits complaining of ultra vires action may not be brought

against a governmental unit possessed of sovereign immunity, but must be brought against the

allegedly responsible government actor in his official capacity.”)

       In its opening brief on remand, EPISD cites Heinrich, but its primary argument contends

that the only “litigation” and “interference” that the McIntyres seek to enjoin are the criminal

charges which have by now all been dropped. It adds that a court cannot enjoin the enforcement

of a penal statute unless the statute is unconstitutional and there is a threat of irreparable injury to

some vested property rights. See State v. Morales, 869 S.W.2d 941, 945 (Tex. 1994). Because

the McIntyres make no claim that the criminal statute (or any other statute) is unconstitutional, and

our prior opinion concluded there was no irreparable injury (at least regarding a prosecution under




                                                  17
the former statute), EPISD argued the injunctive relief claim does not overcome EPISD’s

immunity.

       The McIntyres responded by pointing to two cases they read to allow injunctive relief to

remedy violations of the Texas Constitution. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex.

2007)(per curiam) and City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). In its

Reply brief, EPISD shifts the focus of its argument to address City of Elsa and Bouillion. In part,

EPISD contends that the most recent decisions from the Texas Supreme Court firmly entrench the

rule that equitable relief is available only to challenge the constitutionality of a statute, and the

McIntyres are only complaining of the acts of individual employees applying facially valid rules

and procedures. And when a party complains of a governmental official’s acts in applying a statute

which is otherwise constitutional, the claim is against the official in their official capacity.

       As the argument has evolved, we agree with the EPISD. The jurisdictional evidence shows

that the McIntyres are complaining of the acts of EPISD employees in administering uncontested

statutes and court rulings pertaining to truancy and homeschooling. The McIntyres do not claim

the mandatory attendance law itself violates any Texas Constitutional provision. Both parties

agree with the Texas Supreme Courts’ decision in Texas Educ. Agency v. Leeper that

homeschooled children taught in a bona fide manner from a curriculum designed to meet basic

education goals (reading, spelling, grammar, mathematics and good citizenship) comply with the

mandatory attendance laws. 893 S.W.2d 432, 443 (Tex. 1994). As the Texas Supreme Court’s

decision in this case made clear, the McIntyres do not challenge the school laws of the State.

Rather, they contend that EPISD employees acted inappropriately by demanding information

about their homeschool curriculum, then improperly initiated criminal charges when they would




                                                  18
not provide information about that curriculum. These claims would be addressed by injunctions

against the EPISD employees in their official capacity, and not against the EPISD.

       The McIntyres reliance on City of Elsa is unavailing. In that case, after several police

officers resigned, they claimed the City disseminated confidential medical information about them

to the media, all in violation of state statutes and privacy protections in the Texas Constitution.

They sought an injunction to prevent the City “from taking any further action that would

jeopardize” their employment and liberty interests. 226 S.W.3d at 391. The intermediate court of

appeals concluded that the officers failed to plead a facially valid claim, because plaintiffs pleaded

only “mere fear or apprehension of possible injury” in the future. Id. The intermediate court

remanded the case to allow the officers to replead. But the City filed a petition for review, claiming

in part that because the officers named only the City, and not the officials alleged to have

committed unauthorized acts, the claim should have been dismissed. Id. The supreme court

disagreed. It restated language from Bouillion that “‘suits for injunctive relief’ may be maintained

against governmental entities to remedy violations of the Texas Constitution.” Id., quoting

Bouillion, 896 S.W.2d at 149. Bouillion itself decided that there was no private cause of action

for violations of the Texas Constitution. 896 S.W.2d at 149. Rather, a litigant could seek equitable

relief to invalidate a statute in conflict with the Texas Constitution. Id.

       While seemingly helpful to the McIntyres, the Texas Supreme Court reconciled City of

Elsa, and Bouillion, and its more recent cases (Heinrich, and Reconveyance Services) in Patel.

While reaffirming City of Elsa and Bouillion, the court explained its newer rulings:

       In Heinrich we decided that sovereign immunity does not prohibit suits brought to
       require state officials to comply with statutory or constitutional provisions. But, to
       fall within this ‘ultra vires exception,’ a suit must allege that a state official acted
       without legal authority or failed to perform a purely ministerial act, rather than
       attack the officer’s exercise of discretion. The governmental entities themselves
       remain immune from suit, though, because unlawful acts of officials are not acts of


                                                  19
         the State. Thus, we concluded that suits complaining of ultra vires actions may not
         be brought against a governmental unit, but must be brought against the allegedly
         responsible government actor in his official capacity.

         We reconfirmed the point in Reconveyance, where we held that the trial court
         lacked jurisdiction to hear a suit against the Texas Department of Insurance. We
         concluded that the claims were substantively ultra vires claims because the
         pleadings alleged the Department of Insurance had acted beyond its statutory
         authority. That being so, the claims should have been brought against the
         appropriate state officials in their official capacities.

         In this case, the [plaintiffs] did not plead that the Department and Commission
         officials exceeded the authority granted to them; rather, they challenged the
         constitutionality of the cosmetology statutes and regulations on which the officials
         based their actions.
Patel, 469 S.W.3d at 76 (pinpoint citations omitted).

         Because the McIntyres’ claims at their core complain about EPISD employee actions, and

not particular rules or statutes, we conclude they cannot proceed against EPISD. We therefore

sustain EPISD’s second issue and dismiss the claim for future injunctive relief with prejudice.7

                                     No Viable Declaratory Relief Claim

         In Issue One, EPISD similarly contends that the McIntyres have failed to assert a viable

declaratory judgment claim because rather than challenge the validity of a statute or law (for which

immunity is waived), they seek declarations of their rights under the law (for which immunity is

not waived). See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011); Heinrich,

284 S.W.3d at 372-73. The McIntyres concede this issue. They do so, however, by agreeing that


7
  We recognize the paradox that the McIntyres initially brought claims against Mark Mendoza and Dr. Lorenzo Garcia
in their official capacities. During the course of this appeal, however, those claims have been dismissed, and the
dismissals are now final. The McIntyres never urged that Mendoza and Garcia should have remained in their official
capacity for the limited purpose of the injunctive relief claim, nor have they ever asked that the injunctive relief claim
be remanded for them to replead. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012)(remanding case to
allow plaintiffs opportunity to replead when they did not have a full and fair opportunity to respond to immunity claim
raised first time on appeal); but see U. Interscholastic League v. S.W. Officials Ass’n, Inc., 319 S.W.3d 952, 965
(Tex.App.--Austin 2010, no pet.)(“The opportunity to amend pleadings to cure a jurisdictional defect has not been
extended to the opportunity to substitute a state-entity defendant with a state actor acting in an official capacity in an
ultra vires claim that would otherwise be barred by sovereign immunity.”). Nor did any party raise TEX.R.APP.P.
7.2(a) before or after we issued our prior judgment which dismissed Dr. Garcia and Mark Mendoza from claims of
“any nature.”

                                                           20
“a state law claim for declaratory relief must be against the offending governmental employee

rather than the governmental entity” and our prior judgment dismissed Dr. Lorenzo Garza.

Consequently, the McIntyres state “[a]s a result, no state law claim for declaratory relief remains.”

We agree, but note the same conclusion falls with equal force on the McIntyres’ state law

injunctive relief claim. The plaintiff in Heinrich sought both declaratory relief and an injunction,

and the court did not distinguish the two in applying its immunity analysis. Heinrich, 284 S.W.3d

at 369. It required that “Heinrich’s claims for prospective relief may be brought only against the

appropriate officials in their official capacity” and concluded the claims against the City of El Paso

should be dismissed. Id. at 377. Likewise, we conclude that Issue Two should be granted and

dismiss the state law declaratory relief claims against EPISD.

                                          CONCLUSION

          We dismiss the declaratory and injunctive relief claims pertaining to future criminal

prosecution as moot under Issue Three, and otherwise overrule that issue. We sustain Issues One

and Two and dismiss the remaining state law declaratory and injunctive relief claims under

EPISD’s plea to the jurisdiction. The case is remanded to address the remaining 28 U.S.C. § 1983

issues.


September 28, 2018
                                       YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.
McClure, C.J., not participating




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