Summary
noting that under Ohio law, as stated in Waliga , a power of a state agency may be implied from an express power "where it is reasonably related to the duties of an agency"
Summary of this case from Univ. of Tex. v. S.O.Opinion
NO. 03-19-00212-CV
09-04-2020
Texas State University President Denise M. TRAUTH; Texas State University Assistant Vice President for Research and Federal Relations Michael Blanda; Texas State University Registrar Louis E. Jimenez, Jr.; and Texas State University Regents William F. Scott, David Montagne, Charlie Amato, Duke Austin, Garry Crain, Veronica Muzquiz Edwards, Dionicio Flores, Nicki Harle, and Alan L. Tinsley, In their Official Capacities, Appellants v. K. E., Appellee
OPINION
Texas State University President Denise M. Trauth; Texas State University Assistant Vice President for Research and Federal Relations Michael Blanda; Texas State University Registrar Louis E. Jimenez, Jr.; and Texas State University Regents William F. Scott, David Montagne, Charlie Amato, Duke Austin, Garry Crain, Veronica Muzquiz Edwards, Dionicio Flores, Nicki Harle, and Alan L. Tinsley, who were all sued in their official capacities (collectively, the University officials), challenge the trial court's order denying their plea to the jurisdiction in which they asserted that K.E.'s claims for declaratory and injunctive relief were barred by sovereign immunity. We will affirm.
BACKGROUND
K.E. is a former student and graduate of Texas State University (the University). In May 2011, the University Board of Regents conferred on K.E. a Doctor of Philosophy (PhD) with a major in aquatic resources. K.E.'s dissertation research involved the in-field collection of leaves using a leaf gas analyzer called a LiCor instrument. K.E. collected the data in 2008 and relied on that data in completing her dissertation. After the conferral of K.E.'s degree, K.E.'s doctoral advisor raised a concern about K.E.'s 2008 data collection using the LiCor instrument and ultimately submitted a written statement to Assistant Vice President for Research and Federal Relations Michael Blanda conveying her suspicion that K.E. had falsified her research data. Blanda then informed K.E. that there would be a formal inquiry by an "Inquiry Committee" into the allegation of research misconduct. In January 2013, the Inquiry Committee issued a report recommending that the University proceed with a full investigation. In March 2014, the University's Investigative Panel concluded that K.E. had committed misconduct in research and scholarship and recommended that the University revoke the PhD degree conferred three years earlier.
K.E. appealed the Investigative Panel's findings and recommendations to the University President, Denise M. Trauth, who upheld the findings and recommendations and submitted to the Board of Regents her recommendation that K.E.'s degree be revoked. In August 2014, the Board of Regents conducted a hearing on the matter, affirmed Trauth's recommendation to revoke K.E.'s degree, and ordered Trauth to "take such actions as are reasonable and necessary" to effect the revocation. As a result, the University noted the revocation on K.E.'s transcript and asked that she return her diploma to the Registrar. Trauth also requested that K.E. cease representing herself as having received a PhD from the University.
In January 2015, K.E. sued the University officials complaining that the University officials' actions had violated her constitutional right to due process. K.E. amended her petition to allege that the University officials did not have the legal authority to revoke her degree. K.E. sought declaratory relief and injunctive relief seeking an order that the University officials take the actions necessary to reinstate her degree and remove any notation from the University's records that "states or suggests that [her] degree was revoked." K.E. also requested that the court order the Registrar to reinstate her degree.
The University officials filed a plea to the jurisdiction in which they asserted that K.E.'s claims against them were barred by sovereign immunity. While acknowledging that sovereign immunity is not implicated when a suit is brought against a state official in his official capacity if it seeks to enjoin the official's ultra vires conduct, the University officials asserted that they had the legal authority to revoke K.E.'s degree and, consequently, she had failed to allege a viable ultra vires claim within the court's subject-matter jurisdiction.
After a hearing, the trial court denied the University officials' plea to the jurisdiction. The University officials perfected this appeal and, in two issues, argue that the trial court erred in concluding that K.E. had alleged a viable ultra vires claim and denying their plea to the jurisdiction.
DISCUSSION
In their second issue, the University officials assert that the trial court erred by denying their plea to the jurisdiction because K.E.'s claims against them are barred by sovereign immunity. Our analysis of whether K.E.'s suit is within the trial court's jurisdiction begins with her live pleadings. See Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause—in this case, with respect to her claims of ultra vires acts, allegations of fact that would demonstrate that the University officials acted without legal authority or failed to perform a purely ministerial act. See id. (citing Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993) ). When, as here, the facts relevant to jurisdiction are undisputed, the court should make the jurisdictional determination as a matter of law based solely on those undisputed facts. University of Tex. v. Poindexter , 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.) (citing Miranda , 133 S.W.3d at 226 ). Whether the plaintiff has met this burden is a question of law, which we review de novo. Id. We construe the pleadings liberally, taking them as true, and look to the pleader's intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded an opportunity to amend. Miranda , 133 S.W.3d at 226-27. If, however, the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to replead. Id. at 227.
Sovereign immunity extends to state officials acting in their official capacity. See City of El Paso v. Heinrich , 284 S.W.3d 366, 369-70 (Tex. 2009). Sovereign immunity does not, however, bar claims alleging that a government actor acted ultra vires , or without legal authority, in carrying out his or her duties. Houston Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 157-58 (Tex. 2016). To assert a valid ultra vires claim, the plaintiff "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." Heinrich , 284 S.W.3d at 372. Conversely, if the plaintiff alleges only facts demonstrating acts within the officer's legal authority and discretion, the claim seeks to control state action and is barred by sovereign immunity. Id. ; Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Envt'l Quality , 307 S.W.3d 505, 516 (Tex. App.—Austin 2010, no pet).
In her live pleadings, K.E. complains of the University officials' "revocation" of her degree, asserting that such action was unauthorized and violated her constitutional right to due process. K.E. has pleaded a cognizable ultra vires claim if her allegations establish that the University officials exceeded the bounds of their granted legal authority by "revoking" her degree. See Houston Belt & Terminal Ry. , 487 S.W.3d at 158. To determine whether K.E. has asserted a valid ultra vires claim that invokes the district court's subject-matter jurisdiction, we construe the provisions of the relevant statutes that define the scope of the University officials' legal authority, apply them to the facts that K.E. has alleged, and ascertain whether those facts constitute acts beyond the University officials' legal authority. See Heinrich , 284 S.W.3d at 372-73 ; Texas Dep't of Transp. v. Sunset Transp., Inc. , 357 S.W.3d 691, 701 (Tex. App.—Austin 2011, no pet.).
Texas State University is included within the Texas State University System. See Tex. Educ. Code § 96.41 (providing that Texas State University is coeducational institution of higher education under management and control of Texas State University System Board of Regents). The University's authority derives from the Texas Education Code, which provides for the Texas State University System. See id. § 95.01-.06 (provisions governing administration of Texas State University System). Broadly, the Education Code confers on the University's Board of Regents certain general responsibilities and authority:
(a) The board is responsible for the general control and management of the universities in the system and may erect, equip, and repair buildings; purchase libraries, furniture, apparatus, fuel, and other necessary supplies; employ and discharge presidents or principals, teachers, treasurers, and other employees; fix the salaries of the persons employed; and perform such other acts as in the judgment of the board contribute to the development of the universities in the system or the welfare of their students.
Id. § 95.21(a) (general responsibilities and authority of Board of Regents). Section 95.21(b) empowers the Board to carry out its responsibilities by promulgating and enforcing rules, regulations, and orders, providing:
(b) The board has authority to promulgate and enforce such rules, regulations, and orders for the operation, control, and management of the university system and its institutions as the board may deem either necessary or desirable.
Id. § 95.21(b).
More specifically, the Education Code authorizes the Board of Regents to determine the conditions on which students may be admitted to the University, the grades of certificates issued, the conditions for the award of certificates and diplomas, and the authority by which certificates and diplomas are signed. Id. § 95.24. The parties join issue as to whether these statutes, when properly construed, authorize the University to revoke a former student's degree after it has been conferred.
Because statutory construction is at the heart of the dispute, we begin our analysis by reviewing the pertinent statutory-construction principles. First Am. Title Ins. v. Combs , 258 S.W.3d 627, 632 (Tex. 2008). Statutory construction presents a question of law that we review de novo. Id. We discern legislative intent primarily from the statute's language because it is " ‘the truest manifestation’ of what lawmakers intended...." Id. (quoting Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson , 209 S.W.3d 644, 651-52 (Tex. 2006) ). If statutory language is unambiguous, we will interpret and apply the statute according to its plain meaning unless a different meaning is apparent from the context or the plain meaning leads to absurd results. In re Ford Motor Co. , 442 S.W.3d 265, 280 (Tex. 2014) (orig. proceeding). In determining a statute's meaning, we construe the statute as a whole rather than construing specific provisions in isolation. Id. We look to the entire act in determining the legislature's intent regarding specific provisions. Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 628 (Tex. 2011). Undefined terms are afforded their ordinary meaning unless a different or more precise definition is apparent from the context of the statute, see Tex. Gov't Code § 311.011(a) ; TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011), because we cannot give an undefined term a meaning that is disharmonious or inconsistent with other provisions in the statute, see Texas Dep't of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002).
With these principles in mind, we determine whether the relevant statutory provisions authorize the University officials to revoke a degree after it has been conferred on a former student. Notably, the specific statutory provision dealing with diplomas and certificates states that the University officials may determine "the conditions for the award of certificates and diplomas" but includes nothing that could reasonably be construed as an express grant of authority to strip a former student of a diploma or degree after it has been conferred. The University officials urge, however, that such authority is found in the Rules and Regulations that the University's Board of Regents created, one of which purports to authorize decree revocation. The University officials may not, however, promulgate rules in excess of or inconsistent with the relevant statutory provisions. See Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm'n , 452 S.W.3d 479, 481-82 (Tex. App.—Austin 2014, pet. dism'd). The University's rules must comport with its authorizing statute. Id. A state agency has only the authority expressly provided by statute or necessarily implied to carry out the express powers the Legislature has given it. See Public Util. Comm'n v. City Pub. Serv. Bd. , 53 S.W.3d 310, 315 (Tex. 2001). The University officials cannot point to rules promulgated by the Board itself as the source of an authority that is not either expressly provided by the Education Code or necessarily implied in order to carry out an express power given by the Legislature.
The rule created by the University's Board of Regents provides that when the Board "determines that a degree, certificate, diploma, or admission to the institution and/or the academic program was obtained through fraud, mistake, or academic dishonesty, the Board may revoke the degree, certificate, or diploma, provided the Component has afforded the degree, certificate, or diploma recipient due process of law."
The University officials assert that the rule authorizing degree revocation is consistent with the legislative grant of authority found in subsection 95.21(b) to promulgate "such rules, regulations, and orders for the operation, control, and management of the university system and its institutions as the board may deem either necessary or desirable." See Tex. Educ. Code § 95.21(b). The grant of authority to promulgate rules found in subsection 95.21(b) must, however, be read in conjunction with and with reference to the contours of the legislative grant of authority found in the preceding subsection 95.21(a). See id. § 95.21(a). That subsection outlines the general responsibilities and authority of the Board with respect to the "general control and management of the universities in the system" and provides examples of what such control and management might entail, including erecting and repairing buildings, purchasing furniture, hiring and firing teachers and other employees, and fixing their salaries. Thus, properly construed, section 95.21 is concerned with the day to day operations of the university and the management of its personnel. While the phrases "general control and management of the universities in the system" and "contribute to the development of the universities" are purposefully broad, their breadth is inherently limited to interests that are material to the purpose of section 95.21, which is to authorize the Board of Regents to manage the operations and development of the university system. To construe the term without the limitations of the context in which it is found would result in a grant of authority so broad as to render unnecessary any further statutory grants of authority. Such a construction of section 95.21 would render superfluous section 95.24, the statute that specifically addresses diplomas, as well as several other provisions found in subchapter B. See, e.g., id. §§ 95.28 (authorizing Board to disburse funds appropriated by Legislature); .31 (authorizing Board to acquire land); .34 (permitting Board to accept donations, gifts, grants, and endowments). We must reject a construction of a statute that renders some statutory language unnecessary when another construction is possible. See City of San Antonio v. City of Boerne , 111 S.W.3d 22, 29 (Tex. 2003) (rejecting construction that would render some statutory language unnecessary and citing Spence v. Fenchler , 107 Tex. 443, 180 S.W. 597, 601 (1915), for proposition that "[i]t is an elementary rule of construction that, when possible to do so, effect must be given to every sentence, clause, and word of a statute so that no part thereof be rendered superfluous or inoperative"). We must, instead, read the statute contextually and consider the relevant language in the context of the statute as a whole, rather than as isolated provisions, and endeavor to give effect to every word, clause, and sentence, so that none of the language is rendered superfluous. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 390 (Tex. 2014) ; In re Office of Attorney Gen. , 422 S.W.3d 623, 629 (Tex. 2013) ; TGS-NOPEC Geophysical , 340 S.W.3d at 439. We conclude that section 95.21(a) does not empower the University officials to revoke a degree the University had previously conferred on a former student. Correlatively, the authority to promulgate and enforce rules contained in section 95.21(b) is not so broad as to permit the University officials to create a rule that purports to authorize revocation of a degree conferred on a former student.
The University officials also argue that, even if the Legislature did not expressly authorize revocation of a degree after it has been conferred, such authority may be implied from Texas Education Code section 95.24, which provides that the University officials may "determine [ ] the conditions for the award of certificates and diplomas, and the authority by which certificates and diplomas are signed." Tex. Educ. Code § 95.24. The University officials assert that the authority to revoke a diploma is a "necessary corollary" to a university's right to issue the diploma.
An agency's implied powers are limited to those "necessary to carry out the express responsibilities given to it by the Legislature." Public Util. Comm'n v. City Pub. Serv. Bd. , 53 S.W.3d 310, 315 (Tex. 2001) (citing Public Util. Comm'n v. GTE-Sw., Inc. , 901 S.W.2d 401, 407 (Tex. 1995) ). The law prohibits agencies from exercising what is effectively a new power, or a power contradictory to the statute, based merely on a claim that the power is expedient for the agency's purposes. Id. (citing GTE-Southwest , 901 S.W.2d at 407 ). The test is not whether the power is a necessary "corollary" but, rather, whether the power is necessary for the University to perform a function or duty that the legislature has required of it in express terms. The critical question to be answered is whether the power must be implied in order to allow the University officials to effectively carry out the functions that have been specifically assigned to them. See Texas Mun. Power Agency v. Public Util. Comm'n , 253 S.W.3d 184, 192-93 (Tex. 2007) (noting that "agency's powers are limited" to those "expressly conferred by the Legislature" and those implied that are reasonably necessary to carry out agency's express responsibilities); City Pub. Serv. Bd. v. Public Util. Comm'n , 9 S.W.3d 868, 873-74 (Tex. App.—Austin 2000) (explaining that it is "axiomatic that" agency "has no inherent power, but only such powers as are delegated to it by the legislature in clear and express statutory language, together with any implied power that may be necessary ... to perform a function or duty that the legislature has required of the agency in express terms" and that agency powers "must be construed narrowly when they are claimed to authorize governmental interference with established or traditional property rights"), aff'd , 53 S.W.3d 310, 312, 325 (Tex. 2001). May we imply the power to revoke a degree on the ground of necessity to accomplish the University's express power to award certificates and diplomas? We may not make such an implication unless the grant of authority to award certificates and diplomas will itself be defeated absent an attendant authority to revoke the certificate or diploma at a later date. See GTE Sw., Inc. v. Public Util. Comm'n , 10 S.W.3d 7, 12-13 (Tex. App.—Austin 1999, no pet.) (providing that grants of power to agencies must be construed narrowly when claimed to interfere with property rights and that power may be implied only if express powers could be defeated in absence of implied powers). Even the University officials do not contend that that is the case. Moreover, familiar rules of statutory construction reject such an implication. Statutory grants of power to administrative agencies must be construed narrowly when they are claimed to authorize governmental interference with established or traditional property rights. See 3 Norman J. Singer & J.D. Shambie Singer, Statutes & Statutory Construction § 65:2 (7th ed. 2008). This is particularly true when the power claimed to be implied necessarily raises, as it does here, substantial constitutional questions regarding due process. See Rust v. Sullivan , 500 U.S. 173, 190-91, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991).
The University officials point to courts in other jurisdictions that have found that their state's universities have the implied right to revoke a degree "irrespective of statutory language," and maintains that these other cases are "persuasive." This Court is not, however, tasked with surveying other jurisdictions and considering how courts in other states have resolved the question of their institutions' authority to revoke conferred degrees. Rather, our job is to discern the Legislature's intent as expressed in the plain language of the Texas Education Code. That cases from other jurisdictions are inapposite to our analysis is highlighted by jurisprudential differences in interpreting agency authority. For example, the University officials rely heavily on Waliga v. Board of Trustees of Kent State University , 22 Ohio St.3d 55, 488 N.E.2d 850 (Ohio 1986), an Ohio Supreme Court case holding that Kent State University had the "authority and power" to revoke degrees. The court stated:
Any action which is necessary for the proper maintenance and successful operation of a state university is authorized, unless it is prohibited by statute. In the event that a degree is procured through fraud, or a degree is awarded erroneously, it is certainly within the implied authority of the university to revoke it. A power of a state agency may be fairly implied from an express power where it is reasonably related to the duties of the agency.
Waliga , 488 N.E.2d at 851 (citations omitted) (emphases added). While an Ohio court apparently may imply any powers "reasonably related" to an agency's duties, we are constrained to imply only those powers necessary for the performance of powers expressly authorized. See Texas Mun. Power Agency , 253 S.W.3d at 192-93 ; cf. Hand v. Matchett , 957 F.2d 791, 795-96 (10th Cir. 1992) (applying New Mexico law and relying on Waliga to conclude that ability to revoke degrees is "necessary corollary" to power to confer those degrees). Cases from other jurisdictions interpreting different statutes and employing different rules of statutory construction are not relevant to our analysis.
While the University officials also cite to Gati v. University of Pittsburgh of Commonwealth System of Higher Education , 91 A.3d 723 (Pa.Super. 2014), as persuasive authority, we note that the majority did not decide the issue of degree revocation but suggested that such relief might be sought in connection with litigation on the merits concerning the former student's entitlement to permanent injunctive relief. Gati , 91 A.3d at 735 n.1 (Wecht, J., concurring). But see Goodreau v. Rector & Visitors of Univ. of Va. , 116 F. Supp. 2d 694, 703 (W.D. Va. 2000) (citing Waliga and concluding that power to revoke degree must be implied because, in court's view, it is reasonably necessary to effectuate power to confer degrees and regulate student discipline).
The University officials also rely on Crook v. Baker , 813 F.2d 88 (6th Cir. 1987), which is analytically distinguishable. In that case, the court noted that Michigan is "one of the few states to give independent constitutional status to its universities" and the Michigan constitution provides that "the University is a separate constitutional ‘body corporate known as the Regents of the University of Michigan’ which Regents have ‘general supervision’ of the University." Based on that unique status, the court held that the University of Michigan has the authority to revoke degrees in the absence of contraindicative constitutional, statutory, or case law. In Texas, however, the opposite is the case—as an agency of the State, the University officials have only the powers expressly granted by the Legislature along with those powers that may properly be implied.
K.E.'s pleadings have alleged an ultra vires claim against the University officials, specifically, that they acted without legal authority when they purported to revoke her degree. Thus, her claims do not implicate sovereign immunity, and the trial court properly concluded that it had subject-matter jurisdiction over her claim. It was not error for the trial court to deny the University officials' plea to the jurisdiction. We overrule the University officials' second issue.
In their first issue, the University officials argue that the trial court lacked subject-matter jurisdiction over K.E.'s ultra vires claim because, in their view, K.E. seeks only retrospective relief. An otherwise proper ultra vires claim can also independently implicate the sovereign's immunity to the extent it seeks relief that goes beyond prospective injunctive or declaratory relief restraining the government's ultra vires conduct, such as through claims that would establish a right to retrospective monetary relief from the government principal, impose liability upon or interfere with the government's rights under a contract, or otherwise control state action. See Heinrich , 284 S.W.3d at 373-76 (otherwise proper ultra vires claims implicate immunity to extent remedy has effect of retrospective monetary relief); Texas Nat. Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855-56 (Tex. 2002) (contrasting permissible ultra vires claims with "suits against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities," which "are suits against the State ... because [they] attempt to control state action by imposing liability on the State"); see also Texas Parks & Wildlife Dep't v. Sawyer Tr. , 354 S.W.3d 384, 388 (Tex. 2011) (observing that "sovereign immunity will bar an otherwise proper [ultra vires ] claim that has the effect of establishing a right to relief against the State for which the Legislature has not waived sovereign immunity" (citing City of Houston v. Williams , 216 S.W.3d 827, 838-39 (Tex. 2007) (per curiam) )); City of Austin v. Utility Assocs., Inc. , 517 S.W.3d 300, 311-13 (Tex. App.—Austin 2017, pet. denied) (otherwise proper ultra vires claim would implicate governmental immunity to extent remedy would "undo" previously executed government contract, invalidate already-executed contract, reopen previously concluded procurement process, and compel state to re-award contract to different party). By contrast, an otherwise proper ultra vires claim does not implicate sovereign immunity when the claimant seeks prospective relief, such as to recover possession of property unlawfully claimed by a state official, Sawyer Tr. , 354 S.W.3d at 393, or to prospectively enjoin a lease, Chambers-Liberty Counties Navigation Dist. v. State , 575 S.W.3d 339, 354-55 (Tex. 2019) (immunity did not bar ultra vires claim to prospectively enjoin lease whose terms exceeded statutory authority of state signatory).
In the present case, K.E. sought declarations that the University officials' conduct was ultra vires and in violation of her constitutional right to due process. K.E. requested that the court order the University officials to "reinstate [her] degree" and "remove any notation that states or suggests [her] degree was revoked." K.E. also requested that the court order the University's Registrar to "remove any notation that states or suggests Plaintiff's degree was revoked; and [ ] order the Registrar to reinstate her degree." This requested relief is prospective injunctive and declaratory relief that does not go beyond restraining the University officials' ultra vires conduct of revoking her degree and, consequently, does not implicate sovereign immunity by seeking to control state action. See e.g., Chambers-Liberty Counties Navigation Dist. , 575 S.W.3d at 354-55 (plaintiff entitled to prospective relief seeking to invalidate and enjoin lease that exceeded authority of state signatory). We overrule the University officials' first issue.
CONCLUSION
We conclude that K.E. has alleged facts supporting a viable ultra vires claim within the trial court's subject-matter jurisdiction. Accordingly, we affirm the trial court's order denying the University officials' plea to the jurisdiction.
Concurring and Dissenting Opinion by Justice Kelly
CONCURRING AND DISSENTING OPINION
Chari L. Kelly, Justice
I respectfully dissent because I would hold that the Texas State University (TSU) System Board of Regents (the Board) has the authority to revoke a former student's degree for academic dishonesty so long as, as relevant here, it affords due process under the United States Constitution and due course of law under the Texas Constitution. I would sustain the University officials' second issue and dismiss K.E.'s authority-to-revoke claims.
I further respectfully dissent in part because K.E.'s requested declaratory and injunctive relief includes some retrospective remedies, which are barred by sovereign immunity. I would sustain in part and overrule in part the University officials' first issue, dismiss the retrospective-only remedies, and remand what remains for further proceedings.
I. UNIVERSITY AUTHORITY
The University officials contend that TSU may revoke a degree for academic dishonesty. The Board's rules base the authority on academic dishonesty and recognize the check of due process: "When the Board determines that a degree ... was obtained through fraud, mistake, or academic dishonesty, the Board may revoke the degree ..., provided the Component has afforded the degree ... recipient due process of law."
In the TSU president's letter to K.E. about the Board's final decision, the president confirmed that the Board restricted its claimed statutory authority to revoke to Education Code section 95.21 : "[P]ursuant to authority stated in Texas Education Code, Section 95.21 and Board Rules and Regulations, Chapter I, Paragraph 2.3, it was ordered that the recommendation of the President to revoke the degree of K.E. be affirmed." Because the Board restricted itself to Section 95.21, I will too.
Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, current Texas State University Regents Duke Austin, Garry Crain, Dionicio Flores, and Nicki Harle have been automatically substituted for former Regents Donna Williams, Jaime Garza, Rossanna Salazar, and Vernon Reaser as appellants.
Section 95.21(a) tasks the Board with "the general control and management of the universities in the system" and authorizes it to
erect, equip, and repair buildings; purchase libraries, furniture, apparatus, fuel, and other necessary supplies; employ and discharge presidents or principals, teachers, treasurers, and other employees; fix the salaries of the persons employed; and perform such other acts as in the judgment of the board contribute to the development of the universities in the system or the welfare of their students.
Two features of this statute apply here: (1) the authorities for the "general control and management of the universities in the system" and "perform[ing] such other acts as in the judgment of the board contribute to the development of the universities in the system" and (2) the authorization to "perform such other acts as in the judgment of the board contribute to ... the welfare of [the universities'] students."
A.
The majority opinion's analysis ignores the student-welfare authorization. When a state actor is authorized to perform certain acts without restriction on how the actor may perform them, the actor generally has unbounded discretion to perform the acts. See Hall v. McRaven , 508 S.W.3d 232, 241–43 (Tex. 2017). In Hall , the Supreme Court of Texas considered a University of Texas (UT) System Board of Regents grant of authority to the system's chancellor. The grant rested on the board's "expansive authority," conferred by statute, "to ‘govern, operate, support, and maintain’ the System." Id. at 235 (characterizing and quoting Tex. Educ. Code § 65.31(a) ). Under that statutory authority, plus those for providing policy direction to UT and setting admissions standards, the board authorized the chancellor to "determine whether a Regent may review information that is protected by [the Family Educational Rights and Privacy Act (FERPA)]." Id. at 242. The Court stated that the authorization was "unrestricted" regarding how the chancellor could make the FERPA determination: "[h]is discretion in making that determination is otherwise unconstrained." Id. ; see also id. at 239 ("An ultra vires claim based on actions taken ‘without legal authority’ has two fundamental components: (1) authority giving the official some (but not absolute) discretion to act and (2) conduct outside of that authority."). Because the authorization did not restrict how he could interpret federal privacy law—even by restricting him from applying the law erroneously—the chancellor's "discretion to interpret collateral federal privacy law [was] ‘absolute.’ " Id. at 242–43.
Here, the University officials argue that revoking a degree for academic dishonesty "contribute[s] to ... the welfare of [TSU's] students." See Tex. Educ. Code § 95.21(a). Their briefing quotes the United States Court of Appeals for the Tenth Circuit to argue that revoking a degree for academic dishonesty protects TSU's students from harms to their future degrees and TSU's graduates from harms to their degrees:
Academic degrees are a university's certification to the world at large of the recipient's educational achievement and fulfillment of the institution's standards. To hold that a university may never withdraw a degree, effectively requires the university to continue making a false certification to the public at large of the accomplishment of persons who in fact lack the very qualifications that are certified. Such a holding would undermine public confidence in the integrity of degrees, call academic standards into question, and harm those who rely on the certification which the degree represents.
Hand v. Matchett , 957 F.2d 791, 794–95 (10th Cir. 1992) (applying New Mexico law and quoting Waliga v. Board of Trs. of Kent State Univ. , 22 Ohio St.3d 55, 488 N.E.2d 850, 852 (1986) ). Their briefing also relies on Olsson v. Board of Higher Education , which both recognized that a degree is a university's "certifying to society that the student possesses all of the knowledge and skills that are required by his chosen discipline" and cautioned that guarding public confidence in degrees makes it "essential" to allow universities to exercise "the sound judgment of the professional educators" to monitor student achievement. 49 N.Y.2d 408, 426 N.Y.S.2d 248, 402 N.E.2d 1150, 1153 (1980). The University officials similarly argued that a degree amounts to a university's ongoing "representation to the academic community, to employers, and to the public that the recipient" met the academic requirements for the degree. Thus, they say, forbidding the Board from revoking a degree for academic dishonesty "would undermine public confidence in Texas State degrees." TSU's degrees are meaningful to the world only if TSU can enforce the conditions under which it granted the degree by revoking it if it was obtained by academic dishonesty.
K.E.'s own arguments dovetail with these. She views her revoked degree as an ongoing harm because of TSU's ongoing relationship with the degrees that it confers:
The University's continued disavowal of the degree's legitimacy constitutes an ongoing harm to K.E. for which prospective reinstatement thereof would serve to make K.E. whole again.
....
... Enforcing the University's acknowledgement of K.E.'s doctoral degree as valid serves to place the world on notice that she has achieved certain academic milestones and that her qualifications are at the highest level when evaluated by prospective employers.
....
... [I]t is not the University's singular, past act of revoking K.E.'s degree, but, rather, the continuing representation to the outside world that her degree is illegitimate....
Because of these competing arguments, the majority opinion should not ignore Section 95.21(a)'s student-welfare authorization.
I believe the proper view of that authorization is that it includes authority to revoke a degree for academic dishonesty. That is because the statute does not limit the Board's discretion in performing acts simply that "contribute" to TSU's students' welfare, instead making the authority answerable only to "the judgment of the board" itself. See Tex. Educ. Code § 95.21(a) ; see also Splawn v. Woodard , 287 S.W. 677, 681–82 (Tex. Civ. App.—Austin 1926, no writ) (considering it "clear" that "full discretionary powers over the buildings" at UT had been vested in UT's board by legislative grants of authority merely to "spend[ ] the income from the permanent fund for ‘permanent improvements to be erected on the campus of [UT]’ " and to "mak[e] contracts with ‘architects, planmakers, landscapers, or draftsmen,’ ... concerning ‘all contracts for the construction or erection of such permanent improvements’ "). The student-welfare authorization is an unrestricted one, which Hall says a state actor may therefore pursue with full discretion. See 508 S.W.3d at 241–43. The University officials have persuasively argued that the law must allow TSU to revoke degrees for academic dishonesty if doing so, in "the judgment of the board," "contribute[s] to" TSU's students' "welfare" by protecting the value of their degrees. See Tex. Educ. Code § 95.21(a).
B.
The only part of the majority opinion that might speak to this is its concern about the outer edges of Section 95.21(a)'s broad grants of authority. This part of the majority opinion specifically addresses the other statutory language that applies here—the authorities for the "general control and management of the universities" and "perform[ing] such other acts as in the judgment of the board contribute to the development of the universities." See id.
The majority opinion says that these authorizations are only "general responsibilities" that only "concern[ ] ... the day to day operations of the university and the management of its personnel" and that they are thus "limited to interests that are material to the purpose of section 95.21, which is to authorize the Board of Regents to manage the operations and development of the university system." Ante at 229. The majority opinion asserts that interpreting the authorizations to mean anything more would make superfluous Section 95.24, which involves the authority to grant degrees, and other statutes. Ante at 229–30. The majority opinion also assumes that Texas state universities are mere state agencies for all purposes, thus imposing on the universities all the same limits on authority that restrain state agencies. See ante at 228–30. 1.
There are three problems with this analysis. First, its statement that the purpose of Section 95.21(a) is "limited to ... manag[ing] the operations and development of the university system" reads out of the statute "the universities." The statute provides that the Board may "perform such other acts as in the judgment of the board contribute to the development of the universities in the system." Tex. Educ. Code § 95.21(a). Section 95.21(a) is not merely about System "general responsibilities." It is about each of the System's universities too.
2.
Second, whatever the outer edges of Section 95.21(a) may be, the heart of the authority conferred involves TSU's authority to make academic decisions. As the University officials note, a body of law in Texas and elsewhere has developed around what "academic decisions" a university is empowered to make.
The University officials argue that a university's decision-making about whether to revoke a degree is inherently "an academic decision." In their post-submission brief, they further addressed the academic considerations involved: "In a revocation determination, the ultimate issue is not simply whether the degree-holder committed fraud, but rather, in light of the fraud, whether she has met the university's standard of educational achievement in order to possess a degree." They insist that K.E. broke standards of academic achievement when she "falsified empirical, field research data, which formed the bases for [her] doctoral dissertation in a hard science," and they rely on Merrow v. Goldberg , among other cases, as support for courts deferring to academic decisions: "The decision made by [state college] ..., that plaintiff had not done sufficient work to earn the credits previously awarded him, was an academic decision and we evaluate it as such." 672 F. Supp. 766, 772 (D. Vt. 1987).
In Texas, the "academic decisions" that statutes have impliedly authorized universities to make shows that generalized statutory grants of authority to universities are extraordinarily broad. Three cases illustrate the point. In Alcorn v. Vaksman , a student sued certain University of Houston (UH) officials for dismissing him from UH's history doctoral program. 877 S.W.2d 390, 393 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (en banc). The First Court of Appeals affirmed a ruling that the student suffered a denial of due process but concluded that UH's dismissal authority came from its general statutory authorization that "[t]he governance, control, jurisdiction, organization, and management of the University of Houston System is hereby vested in the" UH board. See Tex. Educ. Code § 111.20(c), cited in Alcorn , 877 S.W.2d at 403 n.5 ("The dismissal of students at the University of Houston is within the appellants' scope of authority. Tex. Educ. Code Ann. § 111.20(c).").
The determination whether to dismiss the student under this generalized statutory authorization, in good faith and while respecting due process, was an "academic decision": " ‘[W]hen courts review the substance of academic decisions ... they should show great respect for the teacher's professional judgment.’ This sound rule is based on the belief that university administrators, not judges, should make academic decisions needed to run a university." Alcorn , 877 S.W.2d at 397 (internal citation omitted) (quoting Clements v. County of Nassau , 835 F.2d 1000, 1005 (2d Cir. 1987) ); see also Mahavongsanan v. Hall , 529 F.2d 448, 449–50 (5th Cir. 1976) ("[W]e know of no case which holds that colleges and universities are subject to the supervision or review of the courts in the uniform application of their academic standards.").
In Eiland v. Wolf , a student sued over his dismissal, for low grades and a low score on a national exam, from the University of Texas Medical Branch at Galveston (UTMB). 764 S.W.2d 827, 828–29, 834, 836 (Tex. App.—Houston [1st Dist.] 1989, writ denied). The First Court of Appeals rendered a take-nothing judgment against the student because there was "some evidence showing an academic basis for the [officials'] exercise of professional judgment in dismissing" him. Id. at 836, 839. The court said that dismissing him was an academic decision, which courts "are not readily adapted to ... review." Id. at 833 (citing Board of Curators v. Horowitz , 435 U.S. 78, 90, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) ). The court cautioned judges to "accord great deference" to academic decisions lest they unwisely "further enlarge the judicial presence in the academic community." Id. (citing and quoting Horowitz , 435 U.S. at 90, 98 S.Ct. 948 ); see also University of Tex. Med. Sch. v. Than , 901 S.W.2d 926, 931 (Tex. 1995) ("Judicial interposition in the disciplinary decisions of state supported schools raises problems requiring care and restraint." (citing Epperson v. Arkansas , 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) )); Olsson , 426 N.Y.S.2d 248, 402 N.E.2d at 1153 ("Th[e] judicial reluctance to intervene in controversies involving academic standards is founded upon sound considerations of public policy."). The only statutory language identified as supporting the "academic decision" of dismissal was the board's authority "to prescribe degree programs and to promulgate university rules and regulations," see Eiland , 764 S.W.2d at 837, which today's majority opinion would consider too general to allow for the dismissal of a student.
The Supreme Court of Texas has similarly recognized universities' broad authorities to make "academic decisions," especially regarding academic dishonesty. In Than , a trial court ruled that the UT Medical School violated due process in the hearings it held to dismiss a student for academic dishonesty. 901 S.W.2d at 929. The trial court enjoined the school to change the student's "F" grade to a "B," "treat [him] as a student who graduated in good standing," and issue him a diploma. Id. The Supreme Court pared down the trial court's injunction because of the school's need to make "academic decisions" on its own and held that much of the injunctive relief granted by the trial court impermissibly encroached on UT's academic decisions. Id. at 933–34. So the Court limited the injunction to simply removing the "F" and removing any expulsion notations:
[T]he injunctive relief represents unwarranted judicial interference with the educational process. The courts should tread lightly in fashioning remedies for due process violations that affect the academic decisions of state-supported universities. What grade should be awarded and whether UT issues Than a diploma should be determined by university officials after notice and hearing.
Id. at 934 ; see also Mahavongsanan , 529 F.2d at 450 (stating that universities must enjoy "wide latitude and discretion afforded by the courts to educational institutions in framing their academic degree requirements" (citing Militana v. University of Miami , 236 So.2d 162, 164 (Fla. Dist. Ct. App. 3d Dist. 1970) (per curiam))); Cieboter v. O'Connell , 236 So.2d 470, 471–73 (Fla. Dist. Ct. App. 1st Dist. 1970) (denying mandamus sought by graduate student against University of Florida president because president and faculty were within their academic authority, "free[ ] from interference from other noneducational tribunals," to require graduate student to receive personal counseling for unspecified "misconduct" before considering student's dissertation (citing Connelly v. University of Vt. & State Agric. Coll. , 244 F. Supp. 156, 160 (D. Vt. 1965) )). The Court required the remanded due-process-compliant hearing to take place within the school, rather than in the courts, thus recognizing universities' capacity to afford due process in their hearings. See Than , 901 S.W.2d at 934 ; see also Merrow , 672 F. Supp. at 773 ("As for the composition of the [credit-revocation] tribunal, ‘[a] graduate or professional school is, after all the best judge of its students' academic performance and their ability to master the required curriculum.’ " (quoting Horowitz , 435 U.S. at 85–86 n.2, 98 S.Ct. 948 )).
In all, Than , Eiland , and Alcorn show Texas courts' history of acknowledging generalized statutory grants as giving universities extraordinarily broad academic authorities, while still bounded by due process.
It is no distinction to say that Than , Eiland , and Alcorn cannot speak to degree revocation because a degree involves a property interest while pre-degree participation in an academic program does not. Whether a plaintiff is asserting a property interest is part of a due-process analysis. See, e.g., Board of Curators v. Horowitz , 435 U.S. 78, 82, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) ; University of Tex. Med. Sch. v. Than , 901 S.W.2d 926, 929 (Tex. 1995). I do believe that due process restricts universities' authority to revoke a degree for academic dishonesty.
3.
Third, the majority opinion assumes that state universities are mere state agencies for all purposes. They are not. See, e.g. , Tex. Gov't Code § 2001.003(7)(E) (no "institution of higher education" is a "state agency" under the Texas Administrative Procedure Act). They are unique entities with corresponding authorities inherent in their status as a university.
Even K.E. argues that TSU is no mere state agency. She argues that "[i]f the Legislature had intended for the University to be such [a state] agency, it would have made it one." Longstanding Texas law likewise shows that universities have authorities inherent in their status as universities, for three reasons.
a.
First and most notably, this Court has recognized universities' inherent authorities. In Morris v. Nowotny , a former student sued UT for barring him from readmission to the university and from the campus. 323 S.W.2d 301, 302, 304–05, 308 (Tex. Civ. App.—Austin 1959, writ ref'd n.r.e.). This Court examined whether UT could bar the student's readmission, including from the campus premises, and located UT's relevant authority either by implication from the UT statute's "management and government of the University" or in the university's inherent authority:
The government of the University of Texas is vested in a Board of Regents with authority to "enact such by-laws, rules and regulations as may be necessary for the successful management and government of the University." We are not advised as to the nature of rules and regulations, if any, adopted under the authority of these statutes but without such knowledge it is our opinion that the above statutes imply the power and if they do not so imply then that the power is inherent in University officials to maintain proper order and decorum on the premises of the University and to exclude therefrom those who are detrimental to its well-being.
Id. at 312 (internal citation omitted) (quoting predecessor statute to Tex. Educ. Code § 65.31 ). Rather than holding that UT, as a public landowner, had the right to bar certain people from public grounds, this Court held that UT's relevant authority was implied by the "rules and regulations" statute or inherent in its status as a university. See also Esteban v. Central Mo. State Coll. , 415 F.2d 1077, 1089 (8th Cir. 1969) ("We ... hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct; that, as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded ...; and that the courts should interfere only where there is a clear case of constitutional infringement."); Waliga , 488 N.E.2d at 852–53 (reviewing university's "inherent" authority to revoke degrees and noting that courts refuse to interfere with "fundamental university functions").
b.
Next, Texas law has recognized inherent university authority by recognizing academic authorities in private universities, which do not exist or enjoy authority because of statutes like state universities do. For example, the Second Court of Appeals affirmed a take-nothing summary judgment rendered against a Texas Christian University (TCU) student who had sued TCU officials for negligence for alleged abuse and mistreatment at the nursing school. Guinn v. Texas Christian Univ. , 818 S.W.2d 930, 931 (Tex. App.—Fort Worth 1991, writ denied). The court concluded that the student had alleged no "recognized cause of action against an educational institution. " Id. at 933–34 (emphasis added). It reached this conclusion by recognizing in TCU the familiar "academic decision" authorities that state universities enjoy. The court declined "to intrude into a university's educational process, and to meddle in its student evaluation procedures and decision-making" because courts "should show great respect for a faculty's professional judgment" in what "is genuinely an academic decision" and refuse to "override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Id. (citing Horowitz , 435 U.S. at 92, 98 S.Ct. 948 ). The court then cited Eiland as an example of a court following the "mandate" to defer to universities' academic decisions. Id. at 933–34.
What other source for TCU's authorities could there be? Not statutes. Not incorporation documents—we don't let corporations harm individuals simply because of their corporate status. As for contract, although private universities' relationships with their students ordinarily arise in contract, see, e.g., Eiland , 764 S.W.2d at 838 ("[T]he relationship between a private school and its student has by definition primarily a contractual basis."), nothing in Guinn sets forth the terms of TCU's contract with the student or applies any such terms. Instead, the court's by-now-familiar invocation of "academic decision" authorities, including citing Horowitz and Eiland , signals that it is something endemic to private and public universities alike—and not their kaleidoscope of course catalogs—that authorized TCU's acts. It was its status as a university. Guinn , 818 S.W.2d at 932–34 ; see also Mahavongsanan , 529 F.2d at 450 (applying private-university precedent, Militana , 236 So.2d at 164, to uphold public university's "wide latitude and discretion afforded by the courts to educational institutions in framing their academic degree requirements").
c.
The Legislature adheres to the inherent-authority view of universities. See, e.g. , Tex. Educ. Code § 51.352(a) ("It is the policy of this state that the governing boards of institutions of higher education ... shall exercise the traditional and time-honored role for such boards as their role has evolved in the United States and shall constitute the keystone of the governance structure."). The majority opinion's contrary view, limiting what Texas state universities may do to the bare nouns and verbs in their authorizing statutes, will have significant harmful ripple effects on the Legislature's structuring of the state's public universities, as noted by the University officials.
For example, all agree that TSU may grant degrees, but we might differ on why. The majority opinion apparently would locate that authority only in the words of Education Code section 95.24, which authorizes the Board to "determine ... the conditions for the award of certificates and diplomas, and the authority by which certificates and diplomas are signed." We know this because of the reasoning by which the opinion rejects the University officials' revocation argument from the same statute. Cf. ante at 229–30. That is, while the University officials say that revoking a degree for academic dishonesty "is a ‘necessary corollary’ to a university's right to issue the diploma," the majority opinion rejects this argument by saying that "the grant of authority to award certificates and diplomas" is not "defeated absent an attendant authority to revoke the certificate or diploma at a later date." Ante at 230. If the specific nouns and verbs are not in the statute, the majority opinion holds, then the university apparently cannot do it, unless its absence would defeat an express authorization.
What of other universities' authority to grant degrees? A university's express authorizations are not "defeated" if the university cannot grant degrees, for Texas state universities may offer non-degree-granting academic programs. See, e.g. , Tex. Educ. Code §§ 51.338(a), 51.340(a), 65.31(f), 130.0034(b), 135.52(c). Under the majority opinion's view then, a Texas state university may grant degrees only if a statute expressly allows it to.
These state universities enjoy no express statutory authorization to grant degrees:
• Texas A&M University, see id. §§ 85.01–.71, 86.01–.82;
• Midwestern State University, see id. §§ 103.01–.11;
• Texas Southern University, see id. §§ 106.01–.55; and
• Texas Tech University, see id. §§ 109.001–.170.
Compare to Angelo State University, part of the same university system, which does enjoy an express statutory authorization to grant degrees. Tex. Educ. Code §§ 109A.001 –.002.
The degrees of hundreds of thousands of Aggies, Mustangs, Tigers, and Red Raiders are in danger because the majority opinion views university authority as limited virtually to express statutory language alone.
As to TSU, the Board "may erect, equip, and repair buildings." Id. § 95.21(a). But the statute does not say that the Board may tear down buildings. This is the portion of the statute most specific to buildings, so the majority opinion apparently would consider the Board unable to tear down buildings. See ante at 228. ("Notably, the specific statutory provision dealing with diplomas and certificates states that the University officials may determine ‘the conditions for the award of certificates and diplomas' but includes nothing that could reasonably be construed as an express grant of authority to strip a former student of a diploma or degree after it has been conferred."). This leads to the absurd result that TSU may never tear down a building to build something else in its place. But see Splawn , 287 S.W. at 681–82 (considering it "clear" that "full discretionary powers over the buildings" at UT had been vested in UT's board by legislative grants of authority merely to "spend[ ] the income from the permanent fund for ‘permanent improvements to be erected on the campus of [UT]’ " and to "mak[e] contracts with ‘architects, planmakers, landscapers, or draftsmen,’ ... concerning ‘all contracts for the construction or erection of such permanent improvements’ ").
We must assume that the Legislature does not create absurdities. See City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) (prohibiting statutory interpretations that "lead[ ] to absurd results"); Texans Uniting for Reform & Freedom v. Saenz , 319 S.W.3d 914, 923 (Tex. App.—Austin 2010, pet. denied) (same). When it gave some universities an express statutory authority to grant degrees but did not give Texas A&M, Midwestern State, Texas Southern, and Texas Tech the same express authority, did it intend that those universities may not grant degrees? No. Those universities inherently may grant degrees.
Universities also inherently may revoke degrees for academic dishonesty. Inherent authority—not states' differing statutory-interpretation schemes—is the import of the precedents stemming from the Supreme Court of Ohio's Waliga. The court in Waliga provided two justifications, both of which apply to TSU, for universities' "self-evident ... inherent authority to revoke an improperly awarded degree." 488 N.E.2d at 852. First, and as discussed above as complementing TSU's student-welfare authorization, was the justification about "undermin[ing] public confidence in the integrity of degrees, call[ing] academic standards into question, and harm[ing] those who rely on the certification which the degree represents" because the degree is a university's ongoing representation to the world. Id. Second, English universities, precursors to America's, have enjoyed inherent power to revoke degrees since at least 1723. Id. (citing and quoting R v. University of Cambridge (1723) 8 Mod. Rep. (Select Cases) 148 (K.B.)). "The English common law provides precedential rules of decision in Ohio and other states." Id. Texas is one of them. See Tex. Civ. Prac. & Rem. Code § 5.001(a) ; Bush v. Lone Oak Club, LLC , 601 S.W.3d 639, 647–48 (Tex. 2020).
Courts outside Ohio have relied on Waliga to support degree revocation, or credit revocation, under the law of:
• Maryland, see Doe v. Salisbury University , 107 F. Supp. 3d 481, 492–93 (D. Md. 2015) ;
• New Mexico, see Hand , 957 F.2d at 794–95 ;
• North Dakota, see Brown v. State ex rel. State Board of Higher Education , 711 N.W.2d 194, 198 (N.D. 2006) ;
• Tennessee, see Faulkner v. University of Tennessee , No. 01-A-01-9405-CH00237, 1994 WL 642765, at *5–6 (Tenn. Ct. App. Nov. 16, 1994) ;
Tennessee, unlike Texas, appears to subject its universities to its state administrative-procedure act. Compare Faulkner v. University of Tenn. , No. 01-A-01-9405-CH00237, 1994 WL 642765, at *1 (Tenn. Ct. App. Nov. 16, 1994), with Tex. Gov't Code § 2001.003(7)(E).
• Vermont, see Merrow , 672 F. Supp. at 771–74 ; and
• Virginia, see Goodreau v. Rector and Visitors of the University of Virginia , 116 F. Supp. 2d 694, 703 (W.D. Va. 2000).
Texas's state universities are no less heirs of England's than our sister states' universities are. When our Legislature creates a university, it creates an entity that inherently may grant degrees and revoke them for academic dishonesty.
II. RETROSPECTIVE REMEDIES
The University officials contend in their first issue that K.E.'s claims are barred because they seek only retrospective remedies. K.E. pleaded for seven declarations and three injunctions. She asked the trial court to declare that
1. she has a constitutionally protected property and liberty interest in her Ph.D.;
2. the University Officials acted without authority when they revoked it;
3. they are not authorized to revoke a degree;
4. the 2006 TSU catalog in effect when she was a graduate student constitutes a binding contract with TSU;
5. TSU may not enforce against her any rules amended, modified, or adopted after she graduated because doing so would be unconstitutional and unlawful;
6. the disciplinary-proceedings part of the 2006 catalog violates due process; and
7. the disciplinary proceedings against her violated due process.
As to the injunctions, she asked the trial court to
1. order the Board "to take whatever action is necessary to reinstate" her degree and to remove any notation suggesting that it was revoked;
2. "declare the [University officials] have ... deprived her of her liberty and/or property interests without the procedural due process protections she is entitled to under the Texas Constitution"; and
3. (i) declare that the TSU registrar did the same, (ii) order the registrar to reinstate her degree, and (iii) order the registrar to remove any notation suggesting that it was revoked.
The University officials argue that all of these requested remedies address only "[a]n already-complete, one-time government action"—the revocation of her degree for academic dishonesty; that they "seek[ ] to go back in time and undo past action, rather than to bring [the University officials] into compliance with statutory law"; and that they "reach[ ] back in time to create a legal norm that was not evident to the [University officials] at the time they acted."
A.
A retrospective remedy is barred by sovereign immunity even when the claim leading to that remedy is not otherwise immunity-barred. "A claim seeking to require a state official to comply with statutory or constitutional provisions"—an "ultra vires " claim—"is not prohibited by sovereign immunity." Texas Educ. Agency v. American YouthWorks, Inc. , 496 S.W.3d 244, 255–56 (Tex. App.—Austin 2016) (citing City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009) ), aff'd sub nom., Honors Acad., Inc. v. Texas Educ. Agency , 555 S.W.3d 54 (Tex. 2018). For a successful ultra vires claim, a court may award "prospective injunctive remedies ... against government actors who violate statutory or constitutional provisions." Heinrich , 284 S.W.3d at 369. However, even under a proper ultra vires claim, sovereign immunity still bars "retrospective relief, whether monetary or otherwise." American YouthWorks , 496 S.W.3d at 256 (citing Heinrich , 284 S.W.3d at 373–77 ); see also Rolling Plains Groundwater Conservation Dist. v. City of Aspermont , 353 S.W.3d 756, 760 (Tex. 2011) (per curiam) ("Generally, however, only prospective relief is available; retroactive relief dictated by a court is not."). Whether a remedy is prospective or retrospective is "measured from the date of injunction." Heinrich , 284 S.W.3d at 376.
In American YouthWorks , holders of school charters issued by the State sued the Commissioner of Education for revoking their charters based on their schools' low performance ratings, as the Commissioner calculated them. 496 S.W.3d at 252–55. The charter holders brought ultra vires claims, alleging that the Commissioner exceeded his authority under the statutes empowering him to revoke charters and to calculate performance ratings. Id. at 265–66. This Court held that sovereign immunity barred declaratory remedies stemming from these ultra vires claims because the remedies "seek or would require forms of relief that are retrospective in nature and [are], thus, impermissible." Id. at 265 (citing Heinrich , 284 S.W.3d at 376 ). This Court reasoned that the declarations would affect not only future charter revocations but also the Commissioner's already completed ratings calculations:
the actual relief they seek—ultimately that their charters not be revoked under this particular revocation decision, but also that they be allowed to challenge past accountability ratings on which that decision was based—necessarily requires somehow undoing or changing prior acts or events. The Charter Holders' ... claims ... would require changing—either by granting an additional review of the performance ratings or, in at least one instance, actually awarding a different performance rating—the Charter Schools' past performance ratings in the hope that the rating change would remove the school(s) from the mandatory revocation list. This is the necessary relief sought here because, unless the prior unacceptable or unsatisfactory performance ratings were to change, the Charter Schools remain subject to mandatory revocation under [statute].
Id. at 265–66.
In Heinrich , by contrast, immunity did not bar the requested injunction that would order municipal officials to calculate future pension benefits without reductions for the plaintiff's child's no longer being a minor. 284 S.W.3d at 369, 373–77, 380. It did, however, bar injunctive or declaratory relief that focused backwards in time to the alleged "date of the illegal act," when the officials first changed the benefits formula. Id. at 369, 380.
B.
In K.E.'s suit, Declarations 2 and 7 seek retrospective relief—declarations about the University officials' having acted without authority and having violated due process in their proceedings. A court may not award K.E. freestanding declarations on these topics because they apply only to past, completed acts. Those two declarations, then, are like the immunity-barred ones in American YouthWorks because they seek only to alter or declare the unlawfulness of past acts. See 496 S.W.3d at 265–66.
So too with Injunction 2 and the first portion of Injunction 3, which ask that the trial court "declare" that past actions by all the University officials, and by the registrar individually, deprived her of certain rights. These requested injunctions look only backwards to declare the alleged unlawfulness of past acts, so they are barred by immunity. See Heinrich , 284 S.W.3d at 369, 373–77, 380 ; American YouthWorks , 496 S.W.3d at 265–66.
The rest of the injunctions are different. Injunction 1, about reinstatement and the removal of any revocation notation, and the second and third portions of Injunction 3, about the same topics but aimed at the registrar, are prospective because they concern future matters as "measured from the date of injunction." See Heinrich , 284 S.W.3d at 376.
Those remedies are prospective even if Declarations 2 and 7, as stand-alone declarations, are themselves retrospective. Even if K.E. would have to prove that TSU does not have the authority to revoke a degree, a claim mirroring the remedy sought in Declaration 2, or that the University officials revoked her degree by proceedings that violated due process, a claim mirroring the remedy sought in Declaration 7, those are ultra vires claims that may lead to the prospective-only remedies sought by Injunction 1 or by the second and third portions of Injunction 3. They are thus like the Heinrich plaintiff's need to prove the claim that the officials miscalculated her benefits in the past to be entitled to an injunction ordering them to calculate correctly in the future. This was a permissible combination of claim and remedy even though immunity otherwise barred the Heinrich plaintiff from injunctive or declaratory remedies that, standing on their own, declared that the past benefits calculations had been incorrect.
I would sustain the University officials' first issue only in part and dismiss the requests for Declaration 2, Declaration 7, Injunction 2, and the first portion of Injunction 3.
CONCLUSION
Whether implied by statute or inherent in university status, TSU's Board has the authority to revoke a degree for academic dishonesty. That authority has constitutional due-process limits and may have other limits not raised here. So while K.E.'s authority-to-revoke claims should be dismissed, her due-process claims should be heard in court. Because the majority opinion and judgment conclude otherwise, I respectfully dissent.
K.E. otherwise seeks some retrospective remedies that are barred by sovereign immunity, which I would dismiss. Because the majority opinion and judgment do not do so, I respectfully dissent in part. But I concur in the conclusion that the rest of K.E.'s claims are prospective and, on that score, safe from sovereign immunity.
I respectfully concur in part and dissent in part.