
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00377-CV


Catherine E. Scott-Nixon, Appellant

v.

Texas Higher Education Coordinating Board and the University of Texas at Arlington,
Appellees




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-002477, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

	Catherine Scott-Nixon was admitted into a graduate program at the University of
Texas at Arlington (the "University") and applied for a tuition exemption found in the education
code.  See Tex. Educ. Code Ann. § 54.203 (West Supp. 2011).  The University denied her the
exemption because it determined that the exemption does not apply to courses in the graduate
program that admitted her.  After being denied the exemption, Scott-Nixon sought administrative
review of the University's decision with the Texas Higher Education Coordinating Board (the
"Board"), but the Board agreed with the University's determination.  In response to the Board's
decision, Scott-Nixon filed a declaratory-judgment action against the University and the Board
alleging that the University and the Board were misinterpreting or misapplying the provisions of
the education code governing the tuition exemption.  She also sought injunctive relief.  Subsequent
to Scott-Nixon filing suit, the University and the Board filed a joint plea to the jurisdiction and
motion for summary judgment.  Shortly thereafter, Scott-Nixon filed her own motion for summary
judgment.  After reviewing the motions, the district court granted the University and the Board's
plea to the jurisdiction as well as their motion for summary judgment and denied Scott-Nixon's
motion.  Scott-Nixon appeals the district court's rulings.  We will affirm the district court's dismissal
for lack of subject-matter jurisdiction.

BACKGROUND
	In 2007, Scott-Nixon was admitted into the Executive MBA Program at the
University.  The Executive Program is one of four MBA masters programs offered by the University.
According to the University, unlike the other three programs, the Executive Program is a self-funded
program, meaning that the program is paid for by the tuition and fees collected from the students and
does not receive any funding from the State.
	Once she was admitted into the Executive Program, Scott-Nixon applied for what is
commonly referred to as a Hazelwood exemption.  The exemption is codified in section 54.203 of
the education code, which states that "[t]he governing board of each institution of higher learning
shall exempt" honorably discharged service members who served in the military during particular
periods of time "from the payment of tuition, dues, fees, and other required charges."  Tex. Educ.
Code Ann. § 54.203.
	After Scott-Nixon applied for the exemption, the University determined that although
Scott-Nixon generally met the requirements for the exemption, the exemption cannot be applied to
courses in the Executive Program.  Essentially, the University concluded that because the Executive
Program is a self-funded, continuing-education program, the exemption may not be claimed by
students in the Executive Program.  See id. § 54.545 (West Supp. 2011) (describing fees colleges
may charge for continuing-education courses).  The Board agreed with the University's determinations.
	In response to the University's decision, Scott-Nixon filed a declaratory-judgment
action against the University and the Board.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West
2008) (allowing person whose rights are affected by statute to "have determined any question of
construction or validity arising under the" statute).  Specifically, Scott-Nixon sought a declaration
that she qualifies for a Hazelwood "exemption of all tuition for all courses of the" Executive
Program.  Scott-Nixon also sought a permanent injunction preventing the University from charging
her "tuition while she attends every class of every course of the Executive MBA Program."  After
Scott-Nixon filed suit, the Board and the University filed a plea to the jurisdiction asserting that
Scott-Nixon did not have standing to file the suit and that Scott-Nixon's claims did not "establish
a cause of action that confer[red] jurisdiction on the" district court.  The plea also contained a motion
for summary judgment alleging that Scott-Nixon was not entitled to the Hazelwood exception as a
matter of law.  In response, Scott-Nixon filed a joint response to the plea, response to the motion for
summary judgment, and motion for summary judgment. (1)
	The district court granted the University and the Board's plea and motion for
summary judgment and denied Scott-Nixon's motion for summary judgment.

DISCUSSION
	Scott-Nixon raises two issues on appeal.  In her first issue, Scott-Nixon argues that
the district court erred by granting the Board's plea to the jurisdiction.  In her second issue, Scott-Nixon contends that the district court erred by granting the University and the Board's motion for
summary judgment and by denying hers.
	During oral argument and in post-submission briefing, the University and the Board
allege a new jurisdictional argument that was not contained in the Board's plea to the jurisdiction.
See University of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam) (explaining that
subject matter jurisdiction may be raised for first time on appeal). Specifically, the University and
the Board urge that Scott-Nixon's suit is barred because Scott-Nixon is alleging an ultra vires cause
of action but failed to name as defendants government officials acting in their official capacity.  As
support for this assertion, the University and the Board refer to various supreme court cases,
including Texas Department of Insurance v. Reconveyance Services, Inc. and City of El Paso v.
Heinrich.  306 S.W.3d 256 (Tex. 2010); 284 S.W.3d 366 (Tex. 2009) (respectively).
	In Heinrich, the widow of a slain police officer filed a declaratory-judgment
action against the City of El Paso seeking declaratory relief as well as the issuance of an injunction. 
284 S.W.3d at 369.  When considering whether the widow's claims were barred by governmental
immunity, the supreme court determined that "while governmental immunity generally bars suits
for retrospective monetary relief, it does not preclude prospective injunctive remedies in
official-capacity suits against government actors who violate statutory or constitutional provisions."
Id. at 368-69; see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)
(explaining that political subdivisions of State, including cities, are entitled to immunity similar to
sovereign immunity that is called governmental immunity).  However,  the court also concluded that
"governmental entities themselves--as opposed to their officers in their official capacity--remain
immune from suit."  Heinrich, 284 S.W.3d at 372-73; see Texans Uniting for Reform & Freedom v.
Saenz, 319 S.W.3d 914, 920 (Tex. App.--Austin 2010, no pet.) (explaining that if suit seeking
declaratory or prospective injunctive relief is not filed against government officials, suit implicates
"sovereign immunity because it seeks to control state action").
	Stated differently, for claims that seek to restrain actions that allegedly violate or
exceed authority under a statute but do not challenge the validity of the statute, the suit "cannot be
brought against the state, which retains immunity, but must be brought against the state actors
in their official capacity."  Heinrich, 284 S.W.3d at 373 & n.6; see Saenz, 319 S.W.3d at 920
(explaining that ultra vires suits bind State through its agent and may seek prospective injunctive
or declaratory relief to restrain agent from violating statutory or constitutional provisions); Mr. W.
Fireworks, Inc. v. Comal County, No. 03-06-00638-CV, 2010 Tex. App. LEXIS 2384, at *9
(Tex. App.--Austin Mar. 31, 2010, no pet.) (mem. op.) (explaining that ultra vires claims are not
barred "because the claim alleges not that a governmental officer erred in exercising his or her
discretion, but rather that the officer acted without legal authority or failed to perform a purely
ministerial act").
	The supreme court applied this distinction in another recent case.  See Texas Lottery
Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010).  In that case, various parties
interested in the final payments of a winning lottery ticket filed a declaratory-judgment action against
the Lottery Commission seeking, among other things, a declaration invalidating the government code
provision prohibiting prize winners from assigning their final two payments.  Id. at 633.  On appeal,
the supreme court concluded that because the claim did not address a government officer's actions
and instead only challenged the statute, it was "not an ultra vires claim to which a government
officer should have been made a party."  Id. at 635.
	In Reconveyance, the supreme court also expounded upon what qualifies as an
ultra vires suit.  In that case, Reconveyance filed a declaratory-judgment action asserting that the
Department of Insurance (the "Department") "acted beyond its statutory authority in attempting to
prevent Reconveyance from offering its services through title agencies."  306 S.W.3d at 258.  In
determining whether the case should be dismissed, the court concluded that although Reconveyance
did not specifically state that the Department acted ultra vires, the requested declarations were "in
substance ultra vires claims."  Id. at 258-59.  Moreover, because Reconveyance only sued the
Department and did not sue "Department officials acting in their official capacities," the court
determined that the Department retained "its sovereign immunity" and dismissed the suit for want
of jurisdiction.  Id. at 259.
	In light of these cases, the University and the Board argue that the district court's
dismissal of Scott-Nixon's suit for want of jurisdiction should be upheld because she is pursuing an
ultra vires claim but failed to name any state officials in her lawsuit.  Scott-Nixon, on the other
hand, urges that the failure to name government officials in her suit is not a jurisdictional defect
under the circumstances of this case.  Specifically, she asserts that unlike the plaintiffs in cases like
Reconveyance, she has not requested relief "involving solely ultra vires actions."  On the contrary,
she argues that unlike the plaintiffs in those other cases, she has requested a declaration regarding
"the construction of an ambiguous statute."  See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a).
Accordingly, she insists that the district court's jurisdictional ruling should not be upheld on the
basis asserted by the University and the Board.
	Although Scott-Nixon does not use the phrase "ultra vires" in her petition, the
relief that she ultimately seeks--compelling a state agency to comply with what she asserts is
a statutory requirement--distinguishes hers as an ultra vires claim.  In her petition, Scott-Nixon
does not challenge the validity of any of the statutes at issue.  To the contrary, she contends that the
Hazelwood exemption contained in section 54.203 of the education code is effective, that she
qualifies for the exemption, and that the education code does not authorize the University or the
Board to deny "an exemption of tuition for the Executive MBA Degree Program."  In addition,
Scott-Nixon sought injunctive relief restraining the University and the Board from denying her the
exemption from tuition.  In other words, although the declaration sought is written in terms of
whether Scott-Nixon qualifies for the statutory exemption, such relief, at most, would be incidental
to her ultimate remedy of compelling the University and the Board to act within her view of the law.
Hers is thus an ultra vires claim.  See Heinrich, 284 S.W.3d at 372 (explaining that suits seeking to
force compliance with statutory provision fall within ultra vires exception to sovereign immunity).
	Because Scott-Nixon was pursuing an ultra vires claim, she was required to bring
the suit "against the state actors in their official capacity."  Id. at 373.  However, Scott-Nixon only
filed suit against the University and the Board.  For that reason, her suit is barred by sovereign
immunity. See Reconveyance, 306 S.W.3d at 259; Heinrich, 284 S.W.3d at 373.  Moreover,
although plaintiffs are sometimes given an opportunity to replead their claims when their
petitions do not establish jurisdiction, see State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007), we
have previously determined that the supreme court has not extended "the opportunity to amend
pleadings to cure a jurisdictional defect . . . 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," University Interscholastic League v. Southwest Officials Ass'n,
Inc., 319 S.W.3d 952, 965 (Tex. App.--Austin 2010, no pet.); see Reconveyance, 306 S.W.3d
at 259 (dismissing ultra vires suit for want of jurisdiction where state entity, rather than state
official, was sole defendant); see also Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
227 (Tex. 2004) (stating that if "the pleadings affirmatively negate the existence of jurisdiction,
then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity
to amend").
	In light of the preceding, we conclude that the district court did not have subject
matter jurisdiction over Scott-Nixon's declaratory action.  Consequently, we affirm the district
court's dismissal for want of subject-matter jurisdiction and need not consider Scott-Nixon's
other arguments on appeal.

CONCLUSION
	Having determined that the district court did not have jurisdiction over this case,
we affirm the district court's dismissal of Scott-Nixon's suit for want of jurisdiction.

					__________________________________________
					David Puryear,  Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed:   May 4, 2012
1.   In her motion for summary judgment, Scott-Nixon requested that the district court issue
three additional declarations that were not contained in her petition.  First, Scott-Nixon sought a
declaration that section 54.545 of the education code, which governs fees for continuing-education
courses, does not pertain to the University's Executive Program.  See Tex. Educ. Code Ann. § 54.545
(West Supp. 2011).  Second, Scott-Nixon wanted a declaration that the University wrongfully
denied her a Hazelwood exemption.  Finally, Scott-Nixon requested a declaration that the Board
"wrongfully refused to enforce" the provision providing the Hazelwood exemption "by agreeing
with and approving [the University's] denial of" her Hazelwood exemption.  However, as mentioned
above, these declarations were not found in Scott-Nixon's petition.  See Murray v. O&A Express, Inc.,
630 S.W.2d 633, 636 (Tex. 1982) (stating that purpose of pleadings is to define issues at trial); see
Tex. R. Civ. P. 166a(c) (stating that summary judgment shall be rendered if "pleadings, admissions,
affidavits, stipulations of the parties, and authenticated or certified public records . . . show that . . .
there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law" (emphasis added)).  Even assuming that the three additional declaratory requests were
properly before the district court, we would conclude that the jurisdictional defect ultimately barring
consideration of the declaration requested in Scott-Nixon's petition would also have prevented the
district court from properly addressing the declarations requested in her motion for summary judgment.
