Opinion issued December 31, 2018




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00867-CV
                          ———————————
                       IVAN VILLARREAL, Appellant
                                      V.
    TEXAS SOUTHERN UNIVERSITY; DANNYE HOLLEY, IN HIS
  INDIVIDUAL & OFFICIAL CAPACITIES; EDWARD MALDONADO
  (A/K/A SPEARIT), IN HIS INDIVIDUAL & OFFICIAL CAPACITIES;
     GABRIEL AITSEBAOMO, IN HIS INDIVIDUAL & OFFICIAL
                      CAPACITIES, Appellees


                   On Appeal from the 164th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-64945


                                OPINION

      Former law student Ivan Villarreal appeals from a trial court order

dismissing with prejudice his claims against Texas Southern University and three
members of its faculty. Villarreal argues that the trial court improperly granted a

plea to the jurisdiction on his constitutional claims, his breach-of-contract claim,

and his claims directed at the university employees in their official and personal

capacities. We conclude that under governing precedents, Villarreal has alleged

viable constitutional claims, and we reverse the trial court’s judgment in part and

remand for further proceedings.

                                     Background

      As required by the standard of review applicable to this appeal, we construe

the pleadings liberally and accept factual allegations as true unless proved

otherwise by undisputed evidence.1

      Appellant Ivan Villarreal enrolled in the Thurgood Marshall School of Law

at Texas Southern University as a first-year student in August 2014. The university

divided all first-year students into four sections. Villarreal was in Section 4. All but

one of the first-year classes were graded on a curve. For those classes subject to a

curve, a student’s final grade was made up of two parts. The first part was an exam

score that was scaled against all other first-year student scores in all sections; the

second was a score assigned by the professor that was scaled against other student

scores in the same section. Each of those scores accounted for half of each


1
      See Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26
      (Tex. 2004).

                                           2
student’s grade. The students’ total scores in each class were once again curved to

produce final grades. Using a typical system of grade-point averages, the university

had a policy of dismissing any student who failed to maintain a GPA of 2.0 (a C

average) after the completion of the first two semesters.

      The university had another policy prohibiting professors from leading

classroom teaching sessions during the reading period between the last day of

classes and final exams. Professor Maldonado, the criminal-law professor for

Section 2 who uses the “professional name” of “SpearIt,” proposed review sessions

during the reading period. But Assistant Dean Gabriel Aitsebaomo instructed

Professor Maldonado not to conduct classroom-style teaching, on or off campus,

during the reading period.

      Professor Maldonado held review sessions anyway. The times and locations

were disseminated by email. At the review sessions, Professor Maldonado showed

students at least thirteen questions that were materially identical to questions that

later appeared on the sixty-question uniform criminal-law exam that was used for

all four sections of students. Some students left the review sessions with copies of

the previewed questions.

      Shortly after first-semester grades were posted, rumors circulated among the

first-year class that “a handful of students,” predominantly from Professor

Maldonado’s Section 2 criminal-law class, had received pre-exam access to a


                                          3
number of exam questions during off-campus study sessions. By early February

2015, university administrators were aware of Professor Maldonado’s unauthorized

review sessions. Dean Dannye Holley identified thirteen exam questions that were

accessed by an undetermined number of students before the exam and

commissioned a statistical analyst to determine the effect of Professor

Maldonado’s review sessions. The statistician sought clarification that the

university administrators were “quite sure” that the thirteen identified questions

were the “only items that might have been compromised,” as he planned to “use

the non-compromised items as the ‘control’” for his analysis. Dean Aitsebaomo

responded: “There is a likelihood that the other items may potentially be

compromised but the items you have are the ones we were provided evidential

proof of.” The statistician was instructed to assume that only thirteen questions

were compromised and that Section 2 was the only section that received prior

access to the questions.

      In early March, Dean Holley informed the entire first-year class by email

that the matter had been investigated and the exam results had been submitted to a

“national expert,” whose “key finding” was:

      Most importantly, the overall mean difference between the alleged
      compromised items(13)[C] and the Non-compromised items(4)[NC]
      in Fall 2013 students was to be no different from the one observed in
      2014. Further a comparison of the NC TO C item set performance
      difference between sections again showed no significant difference


                                        4
      between sections. This finding confirms that the differences between
      sections are most likely random occurrences.

Dean Holley thus stated:

      Hence our expert concluded no section received an advantage that
      made a difference in the performance between sections. The section
      which performed better on the thirteen items also performed better on
      the remaining 47, and the section which performed worst on the
      thirteen items also performed worst on the remaining 47. We must
      conclude therefore that even if the C items were previewed to a
      section, they did not impact the exam outcomes for those students, or
      the students in other sections[.]

      The university advised students to file individual petitions with the

Academic Standards Committee to review their individual exam scores by

March 15, 2015, if they wished to preserve challenges to their grades. Villarreal

relied on this email’s conclusion that the review sessions had no effect on student

scores in deciding not to challenge the C+ grade he received in criminal law.

      Still concerned about the “optics” of the scenario, the university

implemented a “class-wide remedy.” The exam was re-scored without the thirteen

compromised questions. The university then allowed students the option of

accepting the new score if it was higher than the original score. The university

claimed that this remedy did not result in any student’s final letter grade being

reduced, but in a later email to the entire first-year class, the class president stated

that “at least one student’s grade was lowered.”




                                           5
      At the end of the second semester, the law school’s registrar emailed

Villarreal and informed him that he was being dismissed from the law school. His

GPA was 1.98, below the minimum 2.0 GPA. Villarreal filed three petitions with

the Academic Standards Committee, requesting review of his grades. He met with

the committee, Dean Aitsebaomo, and Dean Holley. All stated that Villarreal

missed the opportunity to challenge his criminal-law grade, with the committee

noting that the university already “addressed administratively the issue of the

alleged cheating in Criminal Law.” Villarreal was then dismissed from the law

school.

      Villarreal sued the university, Dean Holley, Professor Maldonado, and Dean

Aitsebaomo. He alleged that his substantive and procedural “due course of law”

rights under the Texas Constitution were violated in multiple ways: by the

unauthorized review sessions; by the university’s failure to provide “suitable and

appropriate remediation of the gross violation of his rights” with respect to the

criminal-law exam and the determination of his cumulative GPA; by the

university’s actions misrepresenting the statistician’s conclusions, withholding his

full report, and “covering up the affair”; and by his dismissal from law school. He

also alleged breach of contract. Villarreal’s petition specifically stated it was

“based solely on claims arising under Texas law” and that he “expressly disavows

any federal claims.”


                                         6
      While discovery was ongoing, the appellees filed a plea to the jurisdiction

based on sovereign immunity and supported by evidence challenging some of

Villareal’s factual allegations. Villarreal filed a response, asking the trial court to

deny the plea or, in the alternative, refrain from ruling until sufficient discovery

could be conducted. After a hearing, the trial court granted the jurisdictional plea

and dismissed Villarreal’s claims with prejudice. Villarreal then filed a motion for

a new trial that the trial court denied.

      Villarreal appeals.

                                           Analysis

      Villarreal contends that the trial court erred by dismissing his case. In their

jurisdictional plea, the appellees argued that they were immune from suit.

Sovereign immunity protects the State and its employees from suit and will defeat

a trial court’s subject-matter jurisdiction unless the plaintiff establishes the State’s

consent to suit or pleads a viable constitutional claim.2 Subject-matter jurisdiction

implicates questions of law that this court reviews de novo.3




2
      Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
      2002).
3
      Id.

                                              7
      A plea to the jurisdiction may be supported by evidence challenging the

existence of jurisdictional facts necessary to support a claim.4 A trial court reviews

the relevant evidence and determines whether there is a dispute regarding a

jurisdictional fact.5 When such a fact question exists, a trial court should not grant

the plea, and when none exists, a trial court may rule on the jurisdictional issue as a

matter of law.6 As with a traditional motion for summary judgment, a party

asserting a plea to the jurisdiction must conclusively negate a jurisdictional fact

before the burden shifts to the nonmovant to present evidence raising a question of

fact.7 If a jurisdictional deficiency can be cured by allowing the nonmovant to

amend his pleadings, he should be afforded that opportunity.8

I.    Due-course-of-law claims

      Villarreal contends that the trial court improperly granted the university’s

plea to the jurisdiction because he stated viable due-course-of-law claims that

defeated the appellees’ claim to sovereign immunity. Section 19 of the Texas Bill

of Rights provides: “No citizen of this State shall be deprived of life, liberty,
4
      See, e.g., Miranda, 133 S.W.3d at 227.
5
      Id. at 227–28.
6
      Id.
7
      Id.; Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st
      Dist.] 2009, pet. denied).
8
      Id. at 226–27.

                                          8
property, privileges or immunities, or in any manner disfranchised, except by the

due course of law of the land.”9 The Supreme Court of Texas has looked to federal

authorities applying the Fourteenth Amendment as persuasive authority when

interpreting the analogous due-course-of-law clause in the Texas Constitution.10

This court must analyze Villarreal’s due-course-of-law claims and determine

whether the trial court properly concluded that some element of the claims had

been shown conclusively to be lacking.11

A.    Procedural due-course-of-law claims

      As a threshold issue for any procedural due-course-of-law claim, the

claimant must allege that the state deprived him of a constitutionally protected

interest.12 Whether such a protected interest exists is a question of law this court

reviews de novo.13 The university contends that Villarreal has failed to satisfy this


9
      TEX. CONST. art. I, § 19.
10
      See, e.g., Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929
      (Tex. 1995) (“in matters of procedural due process, we have traditionally
      followed contemporary federal due process interpretations of procedural due
      process issues”); see also Alcorn v. Vaksman, 877 S.W.2d 390, 396 (Tex.
      App.—Houston [1st Dist.] 1994, writ denied) (en banc) (“[I]f a federal due
      process violation was proved, the evidence will prove a state violation, as
      well.”).
11
      See Miranda, 133 S.W.3d at 228.
12
      See Than, 901 S.W.2d at 929.

13
      See id. at 929–31.
                                           9
element and the trial court therefore appropriately granted its plea to the

jurisdiction. We disagree.

      Villarreal alleged generally that the university deprived him of the liberty

interest students have in “continuing graduate education.” In University of Texas

Medical School at Houston v. Than,14 the Supreme Court of Texas has held that a

graduate student dismissed for academic dishonesty held a “constitutionally

protected liberty interest in his graduate education that must be afforded procedural

due process.”15 And because Villarreal alleges that the appellees’ handling of the

exam controversy resulted in his criminal-law grade being depressed and

ultimately caused his year-end GPA to dip just below the 2.0 cutoff to remain

enrolled, and that he faces serious damage to his reputation and the loss of his

chosen profession as a lawyer, his allegations sufficiently implicate the liberty

interest in a graduate education as recognized in Than and precedents of this court.

      The appellees contend that Villarreal’s pleadings do not sufficiently allege

that he was deprived of his liberty interest in continuing a graduate education

without due course of law. A “flexible standard” that focuses on the “practical




14
      901 S.W.2d 926 (Tex. 1995).

15
      Id. at 930; see also Alcorn, 877 S.W.2d at 396.

                                         10
requirements of the circumstances” applies to determine what process was due.16

Considerations include the private interest affected by official action; the risk that

the procedures used will result in an erroneous deprivation of that interest; “the

probable value, if any, of additional or substitute procedural safeguards”; and “the

government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement

would entail.”17

      Villarreal claims that he was denied due process when the university acted in

bad faith by misleading students about the effect of Professor Maldonado’s review

sessions on criminal-law exam scores. After the university informed Villarreal of

its decision to dismiss him, he attempted to challenge his criminal-law grade. The

university told him he missed his opportunity to challenge the grade from the

previous fall semester, noting that it already “addressed administratively the issue

of the alleged cheating in Criminal Law.” Villarreal alleges that he did not

challenge his grade earlier because he relied on Dean Holley’s email sent to the

entire first-year class that stated “our expert concluded no section received an

advantage that made a difference in the performance between sections.” Villarreal

contends that the email was misleading because it quoted a portion of the

16
      Than, 901 S.W.2d at 930.
17
      Id.

                                         11
statistician’s report concluding that any “differences between sections are most

likely random occurrences,” but it left out other portions of the report that

suggested otherwise, such as the conclusions that there was a “statistically

significant difference” between section scores and that it was “unclear from the

data available whether this difference was due to the [compromised] item set being

inherently easier or the fact that student’s received pre-testing information on them

which would have enhanced their performance.”

      This court previously held that when a graduate student’s dismissal results

from a university’s bad faith, that student’s procedural due-course-of-law rights are

violated. In Alcorn v. Vaksman, a doctoral candidate in history was dismissed for

nominally academic reasons.18 On appeal from a judgment in the student’s favor

after a bench trial, the university relied upon the U.S. Supreme Court’s decision in

Board of Curators of University of Missouri v. Horowitz19 to argue that its

academic judgments were due “great respect” from the court.20 This court agreed

with that principle21 but noted that the rule “assumes, of course, that the academic


18
      877 S.W.2d at 393–95.
19
      435 U.S. 78, 98 S. Ct. 948 (1978).
20
      Alcorn, 877 S.W.2d at 397.
21
      See id. (citing Clements v. Cty. of Nassau, 835 F.2d 1000, 1005 (2nd Cir.
      1987)).

                                           12
decision was made in good faith,” because if it was made in bad faith, the

university was “not entitled to the deferential standard of review used in cases of

good faith academic dismissals.”22 After reviewing the trial court’s findings, this

court concluded that there was sufficient evidence that the student’s dismissal was

not due to academic deficiencies, but instead was a result of the university’s “bad

faith or ill will unrelated to performance.”23

      In this case, Villarreal contends that the university engaged in a cover-up by

tailoring its investigation to reach a specific conclusion. According to Villarreal,

the university did this by refusing to investigate the number of students who

accessed the review-session questions, by refusing to ascertain the actual number

of questions that were disclosed to students in advance of the exam, by providing

incomplete information to the statistician who analyzed the review sessions’ effect

on student scores, and finally by revealing to students only selected quotes from

the statistician’s report in an attempt to mislead them to conclude that the review

sessions had no effect on their grades.

      The university, relying on declarations of its employees, contends that its

decisions to investigate the allegations, to hire an expert to evaluate the exam, and

to present its findings to the first-year class are undisputed evidence that

22
      Id. (citing Ikpeazu v. Univ. of Neb., 775 F.2d 250, 253 (8th Cir. 1985)).
23
      Id. at 400 (quoting Ikpeazu, 775 F.2d at 253).

                                          13
conclusively demonstrates that it did not act in bad faith. We disagree. “Bad faith,

like motive and other such ultimate facts constituting state of mind, must, of

necessity, usually be established as an inference flowing from words, acts and

conduct proved.”24 Although “the nature of the words, acts and conduct proved

might be such as to authorize and justify a court in taking a case from the jury and

in drawing the ultimate fact inference as a matter of law . . . that can rarely be

so.”25 The retention of a statistician and communications with the first-year class

are not conclusive proof that the university did not act in bad faith.26

      Applying our court’s precedents, we conclude that Villareal adequately

alleged a procedural due-course-of-law claim based on his allegation of the

university’s bad-faith mismanagement of an exam-grading controversy, which

allegedly caused him to miss the GPA cut-off by two one-hundredths of a grade

point and thereby jeopardized his reputation and intended career path.27


24
      Kone v. Sec. Fin. Co., 313 S.W.2d 281, 284 (Tex. 1958); see also Alcorn,
      877 S.W.2d at 400.
25
      Kone, 313 S.W.2d at 284; see also Alcorn, 877 S.W.2d at 400 (noting that
      where bad faith, a state of mind, is the critical issue and strong evidence
      exists to support the plaintiff’s case, summary judgment is generally
      inappropriate).
26
      See Kone, 313 S.W.2d at 284.
27
      See also Alanis v. Univ. of Tex. Health Sci. Ctr., 843 S.W.2d 779, 784 (Tex.
      App.—Houston [1st Dist.] 1992, writ denied) (“If the dismissal was based
      upon academic grounds, the school’s decision is not to be disturbed unless it
                                          14
B.    Substantive due-course-of-law claims

      Villarreal also argues that the trial court improperly granted the plea to the

jurisdiction on his substantive due-course-of-law claim. A court reviewing a

student’s challenge to his dismissal from a publicly funded university may not

override the faculty’s professional judgment with respect to an academic dismissal

unless that judgment reflects such “a substantial departure from accepted academic

norms as to conclusively demonstrate that the person or committee responsible did

not actually exercise professional judgment.”28

      Even if we assume, as suggested by the appellees, that Villarreal’s dismissal

was the result of a purely academic decision, to justify deference to the decision




      was motivated by bad faith or ill will unrelated to academic performance, or
      was based on arbitrary and capricious factors not reasonably related to
      academic criteria.”).
28
      Alanis, 843 S.W.2d at 789 (quoting Regents of the Univ. of Mich. v. Ewing,
      474 U.S. 214, 225, 106 S. Ct. 507, 513 (1985)). Although Ewing made a
      point of characterizing the case as one involving an academic judgment, it
      said nothing about how and if the standard changes in disciplinary cases, see
      474 U.S. at 225, 106 S. Ct. at 513, despite the clear difference the distinction
      has in procedural due-process cases. Compare Goss v. Lopez, 419 U.S. 565,
      579, 95 S. Ct. 729, 738 (1975) (stating procedural due process requires
      students dismissed for disciplinary reasons be afforded “some kind of
      notice” and “some kind of hearing”), with Horowitz, 435 U.S. at 85–86, 98
      S. Ct. at 953 (noting that procedural due-process requirements for an
      academic decision are “far less stringent,” do not include a hearing, and may
      be satisfied by an informal process culminating in a “careful and deliberate”
      academic assessment).

                                         15
the evidence submitted in support of the plea to the jurisdiction must conclusively

demonstrate the exercise of professional judgment.29

      Read liberally, Villarreal’s pleadings allege that the “class-wide remedy” for

irregularities in the criminal-law exam was arbitrary, implemented in bad faith, and

negatively affected his grades. Aside from Dean Holley’s declaration stating that

the remedy “fit the facts,” nothing in the record explains why the university

imposed the remedy that it did.30 Accordingly, we conclude that the appellees did

not conclusively demonstrate that the decision to implement the “class-wide

remedy” was an exercise of professional judgment entitled to judicial deference in

the context of a constitutional challenge.31 We therefore sustain Villarreal’s issue

challenging the dismissal of his substantive due-course-of-law claim.




29
      See Ewing, 474 U.S. at 225, 106 S. Ct. at 513; see also Miranda, 133
      S.W.3d at 228.
30
      Although the university contends that no student’s grade was lowered, that
      claim has been factually disputed to the extent the record includes an email
      sent by the class president in which he “confirmed that at least one student’s
      grade was lowered.”
31
      See Alanis, 843 S.W.2d at 789 (“to have a cause of action for substantive
      due process violations,” a dismissed graduate student must show that a
      university official’s actions “were arbitrary and capricious; that is, that there
      was no rational basis for the University’s decision, or that the decision to
      dismiss was motivated by bad faith or ill will unrelated to his academic
      performance” (citing Ewing, 474 U.S. at 220–26, 106 S. Ct. at 510–14)).

                                          16
II.    Breach-of-contract claim

       Villarreal also challenges the dismissal of his breach-of-contract claim. He

did not allege a contractual relationship with any party other than the university.

By “entering into a contract, the State does not waive its immunity from suit.” 32 It

is “the Legislature’s sole province to waive or abrogate the State’s immunity from

suit.”33 Therefore, even to the extent Villarreal had a contract with the university,

his failure to identify any legislative authority that would overcome sovereign

immunity from his breach-of-contract claim confirms that the trial court

appropriately dismissed the claim. Accordingly, we overrule Villarreal’s issue

regarding his breach-of-contract claim.

III.   Official- and personal-capacity claims

       Finally, Villarreal argues that the trial court improperly dismissed his claims

against Dean Holley, Dean Aitsebaomo, and Professor Maldonado in their official

and personal capacities. Every cause of action Villarreal raised against the

individual defendants alleged that they violated his rights under the due-course-of-

law clause. In light of our conclusion that Villarreal alleged a viable constitutional

claim, we sustain his issue challenging the erroneous dismissal of his official-




32
       IT-Davy, 74 S.W.3d at 856.
33
       Id.

                                          17
capacity claims.34 Villareal’s petition did not specifically allege any basis to hold

the individuals liable in their personal capacities for constitutional violations, and

his appellate brief sheds no additional light on the matter. We therefore overrule

the challenge to the dismissal of constitutional claims against the individual

defendants in their personal capacities.35 Because Villarreal failed to state a viable

personal-capacity claim against any of the named defendants, we conclude that the

trial court appropriately dismissed his personal-capacity claims.

                                     Conclusion

      We reverse the judgment of the trial court to the extent it dismissed

Villareal’s constitutional claims against all appellees. We affirm the judgment to

the extent it dismissed claims alleging the university’s breach of contract or

personal liability of the individual defendants for constitutional violations. We

remand the case to the trial court for further proceedings.




34
      See, e.g., Hall v. McRaven, 508 S.W.3d 232, 238–39 (Tex. 2017); City of El
      Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009).
35
      See, e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143, 147–49 (Tex.
      1995) (no implied cause of action for damages against government
      employees for violations of the Texas Constitution).

                                          18
                                 PER CURIAM

Panel consists of Justices Jennings, Higley, and Massengale.

Justice Jennings concurring in the judgment only.

Justice Massengale, concurring in the judgment.




                                        19
