                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-14-00280-CV

TEXAS A&M UNIVERSITY, DAVE PARROTT,
AND BRIGADIER GENERAL JOE RAMIREZ,
                                                                    Appellants
    v.

GUSTAVO CARAPIA,
                                                                    Appellee


                            From the 272nd District Court
                                 Brazos County, Texas
                           Trial Court No. 14-002220-CV-272


                                          OPINION


         Gustavo Carapia is a student at Texas A&M University. He sued the University

and University officials Dave Parrott and Brigadier General Joe Ramirez alleging a

violation of due process and requested a temporary injunction. We collectively refer to

the University and the officials as “TAMU.” TAMU filed a plea to the jurisdiction. The

trial court denied the plea to the jurisdiction and granted a temporary injunction. 1


1The hearing on the plea to the jurisdiction took place over the course of two days. On the second day
and less than an hour before the scheduled hearing, Carapia amended his petition to include the
Because the trial court erred in both determinations, the trial court’s orders are reversed

and judgment is rendered that Carapia’s suit is dismissed for want of jurisdiction.

BACKGROUND

        A disciplinary procedure was instituted against Carapia during his junior year at

the University. After notice to Carapia and his attendance at an investigation meeting,

a disciplinary “Information Session,” and a disciplinary hearing, Carapia was placed on

conduct probation from the date of the disciplinary decision until his graduation from

the University. He was also immediately suspended from the Corps of Cadets until

December 14, 2014. Beginning December 15, 2014 and extending through May 15, 2015,

Carapia was placed on Corps conduct probation.

SOVEREIGN IMMUNITY

        In its first issue on appeal, TAMU contends that Carapia’s due process claim is

barred by sovereign immunity. Specifically, TAMU argues that although an ultra vires

claim is an exception to sovereign immunity, Carapia did not properly plead that type

of claim against the University officials and cannot plead that type of claim against the

University itself.

Ultra Vires

        Generally, sovereign immunity deprives a trial court of jurisdiction over a



University officials. The parties then argued the plea to the jurisdiction as if it was a plea by both the
University and the officials. No one argues on appeal that the plea did not include the officials added by
the amended petition.

Texas A&M University v. Carapia                                                                    Page 2
lawsuit in which a party has sued the State or a state agency unless the Legislature has

consented to suit. Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.

2011). A suit against a government employee in his official capacity is a suit against his

government employer, and an employee sued in his official capacity has the same

governmental immunity, derivatively, as his government employer. Franka v. Velasquez,

332 S.W.3d 367, 382-83 (Tex. 2011).

       Suits to require state officials to comply with statutory or constitutional

provisions are not prohibited by sovereign immunity. City of El Paso v. Heinrich, 284

S.W.3d 366, 372 (Tex. 2009). To fall within this “ultra vires” exception, a suit must not

complain of a government officer's exercise of discretion, but rather must allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a

purely ministerial act. Id. Ultra vires suits do not attempt to exert control over the

State—they attempt to reassert the control of the State. Id. Further, these types of suits

cannot be brought against the State, which retains immunity, but must be brought

against the State actors in their official capacity. Id. at 373.

       Carapia argues that he did not make an ultra vires claim. That is, he did not bring

a suit to require TAMU to comply with a statutory or constitutional provision.

However, in his first amended petition, along with his claims that the University and

the named officials violated his right to due course of law under the Texas Constitution,

his claims for equitable relief in the form of an injunction because of that violation, and


Texas A&M University v. Carapia                                                      Page 3
his request for a declaration that the Student Conduct Code is unconstitutional, Carapia

also asked that he be given due process by participating in a new disciplinary hearing

in which Carapia could have counsel represent him. That request is a claim to require

TAMU to comply with a constitutional provision, the due course of law provision, and

thus, is an ultra vires claim.

       Because Carapia raises an ultra vires claim, the University, as the State agency, is

immune from such a suit. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009).

Accordingly, the trial court erred in denying the plea to the jurisdiction as to the

University.

Due Process

       Our review does not end here, however. TAMU also contends that immunity

was not waived because Carapia did not plead a viable due process claim. Specifically,

TAMU argues Carapia could not demonstrate a cognizable property or liberty interest

and even if he could, he received all the process he was due.

       Suits for "equitable remedies for violation of constitutional rights are not

prohibited" by immunity. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007) (quoting

City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). Thus, "suits for injunctive

relief" may be maintained against governmental entities to remedy violations of the

Texas Constitution.      Id.     However, if the plaintiff fails to plead a viable claim, a

governmental defendant remains immune from a suit for alleged constitutional


Texas A&M University v. Carapia                                                      Page 4
violations. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering

substance of equal protection claim against Secretary of State in reviewing ruling on

plea to jurisdiction and explaining that Secretary retained immunity from suit unless

plaintiffs pleaded "viable claim"); City of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex.

App.—Texarkana 2011, pet. denied) (noting that governmental defendant remains

immune from suit absent plaintiff's pleading of viable claim).

        Carapia alleged in his first amended petition that TAMU violated his right to

procedural due process under the due course of law guarantee of the Texas

Constitution because he was not warned of his right to remain silent during the initial

investigation of the misconduct and was denied the opportunity to be heard when he

was denied counsel during the disciplinary hearing.2 See TEX. CONST. art. I, § 19.3

        While the Texas Constitution is textually different than the United States

Constitution in that it refers to "due course" rather than "due process," those terms are

regarded as without meaningful distinction. Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d

926, 929 (Tex. 1995); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (Tex.

1887). As a result, in matters of procedural due process, we follow contemporary

federal due process interpretations of procedural due process issues. Id. A review of a


2 Carapia argues in his brief that he was also not provided adequate notice. That ground was not raised
in his first amended original petition. Thus, that argument is not properly before us. See Spring Branch
I.S.D. v. Stamos, 695 S.W.2d 556, 559 (Tex. 1985).

3“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any
manner disfranchised, except by the due course of the law of the land.”

Texas A&M University v. Carapia                                                                      Page 5
due course of law claim requires a two-part analysis: (1) whether the plaintiff has a

liberty or property interest that is entitled to procedural due process protection; and (2)

if so, what process is due. Than, 901 S.W.2d at 929.

       TAMU argues that Carapia cannot demonstrate the existence of a cognizable

property or liberty interest that is entitled to procedural due process protection.

Carapia was suspended from participation in the Corps of Cadets. TAMU contends

that Carapia’s suspension does not involve a constitutionally protected property or

liberty interest because a student has no interest in participating in extracurricular

activities, such as the Corps of Cadets.

       In 1985, the Texas Supreme Court noted federal courts had made it clear that the

federal constitution's due process guarantees did not protect a student's interest in

participating in extracurricular activities. Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556,

561 (Tex. 1985). The Court then analyzed the Texas Constitution to determine whether

its due process guarantees extended to a student's desire to participate in school-

sponsored extracurricular activities.      It held the Texas Constitution did not.       Id.

(“Nothing in either our state constitution or statutes entitles students to an absolute

right to participation in extracurricular activities. We are in agreement, therefore, with

the overwhelming majority of jurisdictions that students do not possess a

constitutionally protected interest in their participation in extracurricular activities.”).

The holding in Stamos has been validated by the Texas Supreme Court and extended to


Texas A&M University v. Carapia                                                       Page 6
college students. See NCAA v. Yeo, 171 S.W.3d 863, 865 (Tex. 2005) (“We conclude that

the rule in Stamos applies….”); In re University Interscholastic League, 20 S.W.3d 690, 692

(Tex. 2000) (per curiam); Eanes Indep. Sch. Dist. v. Logue, 712 S.W.2d 741, 742 (Tex. 1986).

       Carapia does not contest that the Corps of Cadets is an extracurricular activity at

the University. He instead argues that TAMU’s reliance on the Texas Supreme Court’s

opinion in Yeo, which extended the Stamos holding to college students, is misplaced

because Yeo did not involve a disciplinary hearing. This makes no difference. It is the

nature of the interest at stake that determines its due process protection; nothing else.

See Yeo, 171 S.W.3d at 869 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564,

570-571, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). The nature of the interest at stake here is

participation in extracurricular activities. It does not change because of a disciplinary

hearing.    Thus, because there is no due process protection for participating in

extracurricular activities, there is no due process protection at a disciplinary hearing

which affects participation in extracurricular activities.

       Carapia further argues that because he faced possible expulsion when he was

placed on conduct probation, he was entitled to due process. Courts have held a

student has a property or liberty interest in receiving a primary/secondary, collegiate, or

graduate education. See e.g. Goss v. Lopez, 419 U.S. 565, 574-575, 95 S. Ct. 729, 736 (1975)

(primary/secondary—property and liberty); Dixon v. Alabama State Board of Education,

294 F.2d 150, 157 (5th Cir. 1961) (collegiate—property); Univ. of Tex. Med. Sch. v. Than,


Texas A&M University v. Carapia                                                         Page 7
901 S.W.2d 926, 930 (Tex. 1995) (graduate—liberty).       These interests, however, are

present when a student is prevented from receiving an education, such as when the

student is suspended or expelled. See id. Carapia was not prevented from receiving an

education. He was neither expelled nor even suspended from the University. Instead,

he was placed on conduct probation and suspended only from the Corps of Cadets

which, we have held, is not a protected interest. Further, although he argues his pursuit

of higher education may be affected in the future, there is no indication in the record

that Carapia has been or will be prevented from pursuing a post-graduate degree

because of being placed on conduct probation. Carapia has provided no authority, and

we have found none, that holds there is a protected property or liberty interest in

possibly being expelled from school and possibly not getting an education. It is Carapia’s

burden to plead a viable due process claim, and he has not done so.

       Accordingly, Carapia cannot demonstrate the existence of a property or liberty

interest that is entitled to procedural due process protection, and the University and the

officials remain immune from suit.        Because we determine that Carapia cannot

demonstrate the existence of a property or liberty interest that is entitled to procedural

due process protection, we need not discuss whether or not Carapia received all the

process that was due.

       The trial court should have granted TAMU’s plea to the jurisdiction as to




Texas A&M University v. Carapia                                                     Page 8
Carapia’s due process claim. TAMU’s first issue is sustained.4

UNIFORM DECLARATORY JUDGMENTS ACT

        Carapia also stated a claim pursuant to the Uniform Declaratory Judgments Act

(UDJA). In its second issue, TAMU contends sovereign immunity also bars this claim.

        The UDJA generally permits a person who is interested in a deed, or whose

rights, status, or other legal relations are affected by a statute, to obtain a declaration of

rights, status, or other legal relations thereunder.            TEX. CIV. PRAC. & REM. CODE §

37.004(a) (West 2008); Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388

(Tex. 2011).     And while the UDJA waives immunity for certain claims, such as

challenges to the validity of a municipal ordinance or statute, it is not a general waiver

of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2008); Sawyer Trust,

354 S.W.3d at 388; City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). In

other words, there is no general right to sue a state agency for a declaration of rights.

Sawyer Trust, 354 S.W.3d at 388. Thus, immunity will bar even an otherwise proper

UDJA suit that has the effect of establishing a right to relief against the State or its

political subdivisions for which the Legislature has not waived immunity. Id.

        Carapia challenged the constitutionality of the University’s Student Conduct

4 TAMU asks us to render a judgment in its favor if we sustain its issues regarding its plea to the
jurisdiction. A plaintiff deserves "a reasonable opportunity to amend" his petition unless the pleadings
affirmatively negate the existence of jurisdiction. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839
(Tex. 2007); Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). After reviewing Carapia’s first
amended petition, we determine that the jurisdictional defects cannot be cured; and Carapia has not
suggested any way that they could be. See id. Accordingly, a remand would serve no purpose because
there is no violation of due process claim that could be alleged under these facts. See id.

Texas A&M University v. Carapia                                                                  Page 9
Code. He did not challenge the validity of a statute or ordinance as described by the

UDJA. Further, he has presented nothing to suggest that the Student Conduct Code is

the equivalent of a statute or ordinance so that immunity could be waived.                It is

Carapia’s burden to plead facts establishing jurisdiction, and he has not done so. See

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Accordingly,

the trial court erred in denying TAMU’s plea to the jurisdiction as to Carapia’s

declaratory judgment claim.

       TAMU’s second issue is sustained.

TEMPORARY INJUNCTION

       To the extent the temporary injunction remains viable after our disposition of

TAMU’s first issue, we discuss TAMU’s third issue. In that issue, TAMU contends the

temporary injunction is void because it was not specific enough as required by Rule 683

of the Texas Rules of Evidence and did not contain a bond fixed by the trial court as

required by Rule 684 of the Texas Rules of Evidence.

       Rule 683 provides:

       Every order granting an injunction and every restraining order shall set
       forth the reasons for its issuance; shall be specific in terms; shall describe
       in reasonable detail and not by reference to the complaint or other
       document, the act or acts sought to be restrained….
                                             ***
       Every order granting a temporary injunction shall include an order setting
       the cause for trial on the merits with respect to the ultimate relief sought.

TEX. R. CIV. P. 683.


Texas A&M University v. Carapia                                                         Page 10
       The requirements of Rule 683 are mandatory and must be strictly followed.

When a temporary injunction order does not adhere to the requirements of Rule 683 the

injunction order is subject to being declared void and dissolved. Interfirst Bank San

Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986). In this case, the only

document evidencing an intent to have a temporary injunction is the trial court’s order

granting Carapia’s request for a temporary injunction signed on September 12, 2014.

This order contains none of the requirements of Rule 683.       For these reasons, the

temporary injunction is void.

       Further, Rule 684 is clear and specific in its requirements for the issuance of a

temporary injunction:

       In the order granting any temporary restraining order or temporary
       injunction, the court shall fix the amount of security to be given by the
       applicant. Before the issuance of the temporary restraining order or
       temporary injunction the applicant shall execute and file with the clerk a
       bond to the adverse party, …

TEX. R. CIV. P. 684.

       The provisions of Rule 684 are also mandatory, and an order of injunction issued

without a bond is void. Ex parte Lesher, 651 S.W.2d 734, 736 (Tex. 1983). The intent of

the Texas Supreme Court in promulgating Rule 684 was to require a bond payable to a

party against whom a temporary restraining order or injunction is issued before the

order may lawfully issue. Id. Without such a bond the order is void. Id.

       The order granting Carapia’s request for temporary injunction in this case does


Texas A&M University v. Carapia                                                     Page 11
not include a bond. Thus, for this additional reason, the temporary injunction is void.

       TAMU’s third issue is sustained.

CONCLUSION

       Having sustained each of TAMU’s issues on appeal, we reverse the trial court’s

Order Overruling Plea to Jurisdiction and its Order Granting Plaintiff’s Request for a

Temporary Injunction. Because Carapia cannot amend his petition to bring his claim

within a waiver of immunity, we render a judgment dismissing Carapia’s lawsuit for

want of jurisdiction.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed May 28, 2015
[CV06]




Texas A&M University v. Carapia                                                   Page 12
