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University of Texas at Austin President Jay HARTZELL; University of Texas at Austin Registrar Mark Simpson; University of Texas Dean of Students Soncia Reagins-Lilly; University of Texas Regents Kevin Paul Eltife, R. Steven Hicks, Christina Melton Crain, Jodie Lee Jiles, David J. Beck, Kelcy L. Warren, Janiece M. Longoria, Nolan Perez, and James Conrad Weaver, in their official capacities, Appellants, S. O., Cross-Appellant v. S. O., Appellee, University of Texas at Austin President Jay Hartzell; University of Texas at Austin Registrar Mark Simpson; University of Texas Dean of Students Soncia Reagins-Lilly; University of Texas Regents Kevin Paul Eltife, R. Steven Hicks, Christina Melton Crain, Jodie Lee Jiles, David J. Beck, Kelcy L. Warren, Janiece M. Longoria, Nolan Perez, and James Conrad Weaver, in their official capacities 1, Cross-Appellees
S.O. sued the University of Texas at Austin President Jay Hartzell; University of Texas at Austin Registrar Mark Simpson; University of Texas Dean of Students Soncia Reagins-Lilly; and University of Texas Regents Kevin Paul Eltife, R. Steven Hicks, Christina Melton Crain, Jodie Lee Jiles, David J. Beck, Kelcy L. Warren, Janiece M. Longoria, Nolan Perez, and James Conrad Weaver, all in their official capacities (collectively, the University officials) seeking declaratory and injunctive relief prohibiting the University officials from holding an internal disciplinary proceeding for the purpose of deciding whether to revoke S.O.'s doctoral degree in organic chemistry that was conferred by the University of Texas at Austin (the University) in 2008. The University officials filed a plea to the jurisdiction, which the trial court granted in part and denied in part. In this appeal, the University officials challenge the trial court's denial of their plea to the jurisdiction seeking dismissal of S.O.'s claims that the University officials' conduct is ultra vires based on sovereign immunity. We will affirm.
S.O. earned her doctoral degree in organic chemistry from the University of Texas at Austin in 2008. In 2012, the University instituted a disciplinary investigation into allegations of academic misconduct related to S.O.'s dissertation and, in 2014, attempted to revoke S.O.'s degree.2 The University informed S.O. that her degree had been revoked on February 12, 2014. Two days later, S.O. filed suit against certain University officials (the first lawsuit) asserting that the University's procedures related to its investigation and decision regarding her degree did not comport with the minimum constitutional standards guaranteed by the Texas Constitution's due course of law provision. See Tex. Const. art. I, § 19. That day, S.O. and the University entered into a Rule 11 agreement specifying that the University would restore S.O.'s degree “subject to further discussions regarding additional process.” The University officials then filed a plea to the jurisdiction in which they argued that, because the University had restored S.O.'s degree and initiated a student disciplinary proceeding to consider the allegations against her, S.O. had been provided all the relief she sought in her lawsuit, rendering it moot. The trial court granted the plea to the jurisdiction, and this Court affirmed. See Orr v. The University of Tex. at Austin, No. 03-14-00299-CV, 2015 WL 5666200, at *1 (Tex. App.—Austin Sept. 23, 2015, no pet.).
After dismissal of the first lawsuit, the University proceeded with its investigation and, in January 2016, informed S.O. that it intended to hold a disciplinary hearing concerning allegations that S.O. had violated the University's “Institutional Rules,” which could subject her to disciplinary sanctions. S.O. then brought the underlying proceeding in which she sought declaratory and injunctive relief prohibiting the University officials from holding an internal disciplinary proceeding for the purpose of deciding whether to revoke her Ph.D. degree. S.O. alleged that such action was ultra vires conduct and a violation of her constitutional rights to due process and equal protection. S.O. also sought a temporary injunction to prevent the University from conducting any proceedings related to her Ph.D. degree pending resolution of her claims. The University officials filed a plea to the jurisdiction in which they asserted that the trial court lacked jurisdiction over S.O.'s claims because they were not ripe. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (“The ripeness doctrine prevents premature adjudication of hypothetical or contingent situations.”).
In February 2016, the trial court held a hearing on S.O.'s request for a temporary injunction and on the University officials' plea to the jurisdiction. The trial court did not at that time grant temporary injunctive relief nor did it rule on the University officials' plea. In March 2016, S.O. filed a motion for summary judgment. While that motion was pending, the University informed S.O. that it would conduct its disciplinary hearing on October 21, 2016.3 When the University did not go forward with the proceeding on October 21, 2016, the trial court signed an order reciting that S.O.'s claims were not ripe for review and granting the University officials' plea to the jurisdiction. The trial court dismissed S.O.'s claims, and S.O. appealed the dismissal to this Court. S.O. argued that (1) the trial court erred in concluding that her request for a declaratory judgment that the University officials were acting ultra vires was not ripe for review and dismissing it for lack of subject matter jurisdiction, and (2) assuming the University officials' actions were not ultra vires, the rules the University intended to apply to the disciplinary proceeding would not provide her with adequate due process protection given the nature of the interest at risk and were, for that reason, unconstitutional. This Court held that, of the two issues presented, only the first was properly before it. See S.O. v. University of Texas at Austin President Gregory L. Fenves, No. 03-16-00726-CV, 2017 WL 2628072, at *2 (Tex. App.—Austin June 15, 2017, no pet.) (mem. op.) (hereinafter “S.O. 2017”) (“The trial court made no ruling on the merits of S.O.'s complaints regarding whether the internal disciplinary hearing rules afford her due process.”). This Court held that S.O.'s claims for a declaration under the Uniform Declaratory Judgments Act that the University officials' conduct is ultra vires were ripe for adjudication, id. at * 4, reversed the trial court's order granting the plea to the jurisdiction, and remanded the cause to the trial court.
On remand, S.O. filed an amended petition in which she sought the same declaratory relief as in her original petition.4 The University officials filed a second plea to the jurisdiction asserting that they “have authority to conduct an internal process to determine whether the allegations of misconduct are substantiated and, if so, what sanction is proper.” Thus, they argued, their conduct was not ultra vires, and S.O.'s ultra vires claims were barred by sovereign immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 369-70 (Tex. 2009) (sovereign immunity extends to state officials acting in their official capacity). The University officials also asserted that S.O.'s constitutional challenges to any future disciplinary hearing were not ripe and, to the extent her claims constituted efforts to establish the procedures applicable to a disciplinary proceeding, those claims sought to control state action and were barred by sovereign immunity. S.O. filed a motion for summary judgment asserting that she was entitled to summary judgment on her requests for eight declarations because each declaration involved only a question of law. After a hearing on the plea and the motion, the trial court signed an order granting the University officials' plea to the jurisdiction “as to declarations attempting to establish and/or challenge the procedures applicable to her disciplinary proceeding” and denying the plea “as to [S.O.'s] ultra vires claim regarding whether Defendants are acting without authority to revoke a degree.” The trial court signed a separate order that granted S.O.'s motion for summary judgment as it pertained to her request for declaratory relief regarding the University officials' authority to revoke her degree, i.e., the ultra vires claims. The University officials perfected this appeal and, in two issues, challenge the trial court's denial of their plea to the jurisdiction as to S.O.'s claims that the University officials' actions are ultra vires. The University officials argue that because they are not acting ultra vires—i.e., because they have the authority to conduct a disciplinary hearing to determine whether to revoke S.O.'s degree—S.O.'s claims for declaratory relief as to whether they are acting without authority to revoke a degree are barred by sovereign immunity. S.O. filed a cross-appeal challenging the trial court's ruling on two of her requests for declarations unrelated to her ultra vires claims and the trial court's denial of her request for attorneys' fees pursuant to the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009.
The University Officials' Appeal
In their second issue, the University officials argue that the trial court erred in concluding that the University lacks the legal authority to revoke a previously conferred degree and, consequently, their conduct was not ultra vires and S.O.'s claim was barred by sovereign immunity. Our analysis of whether S.O.'s claim 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 claim of ultra vires acts by the University officials, allegations of fact that would demonstrate that they 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 plea to the jurisdiction challenges the sufficiency of the pleadings rather than any of the jurisdictional facts alleged by the plaintiff, the court should make the jurisdictional determination as a matter of law based solely on the facts alleged, which are taken as true and construed liberally in favor of jurisdiction. First-Citizens Bank & Tr. Co. v. Greater Austin Area Telecommc'ns Network, 318 S.W.3d 560, 564 (Tex. App.—Austin 2010, no pet.); 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 the burden is a question of law, which we review de novo. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally, taking them as true, and look to the pleader's intent. Id.
Sovereign immunity extends to state officials acting in their official capacity. See Heinrich, 284 S.W.3d at 369-70. An exception to sovereign immunity applies when a party alleges that the government officer acted “without legal authority or failed to perform a purely ministerial act.” Id. at 372. To fall within this exception to immunity, however, “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. An officer acts without legal authority if he “exceeds the bounds of his granted authority or if his acts conflict with the law itself.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). If the plaintiff alleges, or ultimately can prove only acts within the officer's legal authority and discretion, the claim seeks “to control state action” and is barred by sovereign immunity. Id.; KEM Tex., Ltd. v. Texas Dep't of Transp., No. 03-08-00468-CV, 2009 WL 1811102, at *2 (Tex. App.—Austin June 26, 2009, no pet.) (mem. op.).
In her live pleadings, S.O. sought a declaration pursuant to the Uniform Declaratory Judgments Act that the University officials' conducting an internal proceeding to decide whether to revoke her Ph.D. degree was unauthorized.5 S.O. has pleaded a cognizable ultra vires claim if her allegations establish that the University officials' conduct exceeded the bounds of their granted legal authority. See Houston Belt & Terminal Ry., 487 S.W.3d at 158. To determine whether S.O. has asserted a valid ultra vires claim that invoked the district court's subject-matter jurisdiction, we construe the provisions of the relevant statute that defines the scope of the University officials' legal authority, apply them to the facts that S.O. 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.).
The parties agree that the relevant statutory provision is section 65.31 of the Texas Education Code. See Tex. Educ. Code § 65.31. This section provides, in pertinent part:
(a) The board is authorized and directed to govern, operate, support, and maintain each of the component institutions that are now or may hereafter be included in a part of The University of Texas System.
(b) The board is authorized to prescribe for each of the component institutions courses and programs leading to such degrees as are customarily offered in outstanding American universities, and to award all such degrees. It is the intent of the legislature that such degrees shall include baccalaureate, master's, and doctoral degrees, and their equivalents, but no new department, school, or degree-program shall be instituted without the prior approval of the Coordinating Board, Texas College and University System.
(c) The board has authority to promulgate and enforce such other rules and regulations for the operation, control, and management of the university system and the component institutions thereof as the board may deem either necessary or desirable. The board is specifically authorized and empowered to determine and prescribe the number of students that shall be admitted to any course, department, school, college, degree-program, or institution under its governance.
Id. § 65.31(a), (b), (c).6 Section 65.31 further provides that the board may “by rule delegate a power or duty of the board to a committee, officer, employee, or other agent of the board.” Id. § 65.31(g) (emphasis added). The University officials also point to section 51.352(d)(4) of the Texas Education Code, which provides that the “governing boards”7 of institutions of higher education shall “set campus admission standards consistent with the role and mission of similar institutions nationwide having a similar role and mission, as determined by the coordinating board.” Id. § 51.352(d)(4). 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 this dispute, we begin our analysis be reviewing the pertinent statutory-construction principles. First Am. Title Ins. Co. 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 at the entire act in determining the Legislature's intent with respect to 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 to revoke a degree after it has been conferred on a former student. Notably, the specific statutory provision dealing with degrees, subsection 65.31(b), states that the board is authorized to “award” degrees 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. See Tex. Educ. Code § 65.31(b). Subsection 65.31(c) authorizes the board to promulgate and enforce rules and regulations for “the operation, control, and management of the university system and component institutions.” Id. § 65.31(c). This provision empowers the board to determine and enforce the manner in which the university system and its component institutions are operated, controlled, and managed. The provision says nothing about the board's authority to discipline a former student. Similarly, section 51.352(d)(4) addresses campus admission standards and does not speak to degrees or diplomas in any respect. Id. § 51.352(d)(4). 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); see also Public Util. Comm'n v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex. 1995) (“The agency may not, however, on a theory of necessary implication from a specific power, function, or duty expressly delegated, erect and exercise what really amounts to a new and additional power or one that contradicts the statute, no matter that the new power is viewed as being expedient for administrative purposes.” (quoting Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137-38 (Tex. App.—Austin 1986, writ ref'd n.r.e.)). An agency is “a creature of the legislature and has no inherent authority.” GTE-Sw., 901 S.W.2d at 406.
The University officials argue that the Board of Regents' Rules and Regulations, promulgated pursuant to the statutory grant of authority in Texas Education Code subsection 65.31(c), have the same force and effect as statutes. See Fazekas v. University of Houston, 565 S.W.2d 299, 304 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref'd n.r.e.) (“Since the Board of Regents of the University of Houston is authorized by statute to enact bylaws, rules and regulations necessary to the government of the University, its rules are of the same force as would be a like enactment of the legislature.”). The Board of Regents Rules and Regulations direct the University to adopt institutional rules. Thus, the University officials contend that the Board of Regents' own rules and regulations serve as a statutory grant of authority to the University officials to adopt institutional rules permitting the University to discipline a former student by revoking a previously conferred degree. As an initial matter, the premise that a Board of Regents rule has the same “force and effect” as a statute does not lead to the conclusion that the Board of Regents can augment its statutory grant of power, as circumscribed by the Legislature, by promulgating a rule. See Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008) (“An agency may adopt only such rules as are authorized by and consistent with its statutory authority.” (citing Railroad Comm'n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)); Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm'n, 452 S.W.3d 479, 482 (Tex. App.—Austin 2014, pet. dism'd) (“An agency's rules must comport with the agency's authorizing statute.”). The Board of Regents' Rule that the University officials rely on, Board of Regents Rule 50101, does not itself purport to authorize disciplining a former student. It simply directs the University to “adopt rules and regulations concerning student conduct and discipline.” See The University of Texas System Rules and Regulations of the Board of Regents, Rule 50101 (emphasis added). An institutional rule that addresses or authorizes disciplining former students would be beyond the scope of the very Board of Regents Rule that the University officials rely on. None of the statutes or rules relied on by the University officials constitute an express grant of authority for the University to revoke a degree after it has been conferred.
The University officials suggest that if not express, such power may be implied. See Public Util. Comm'n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001) (agency's implied powers are limited to those “necessary to carry out the express responsibilities given to it by the Legislature”). 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-Sw., Inc., 901 S.W.2d at 407). The test is whether the power to be implied is necessary for the agency 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 agency to effectively carry out the functions that have been specifically assigned to it. 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). We may not, therefore, imply the power to revoke a degree on the ground that it is necessary to accomplish the University's express power to award degrees unless the express grant of authority would itself be defeated absent an attendant authority to revoke the degree 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). The University officials do not argue 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).
The University officials point to courts in other jurisdictions that have found that their state universities have the implied right to revoke a degree irrespective of statutory language and maintain 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 statutory 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 (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) (emphasis 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).8 Cases from other jurisdictions interpreting different statutes and employing different rules of statutory construction are not relevant to our analysis.9
S.O.'s pleadings alleged an ultra vires claim against the University officials, specifically, that they acted without legal authority by instituting an internal proceeding to decide whether to revoke her previously conferred degree. Thus, her claims do not implicate sovereign immunity, and the trial court properly concluded that it had subject-matter jurisdiction over her claims. It was not error for the trial court to deny the University officials' plea to the jurisdiction as to these claims. We overrule the University officials' second issue.
In their first issue, the University officials assert that the trial court lacked subject-matter jurisdiction because in S.O. 2017 this Court held that the issue before the trial court—whether the University officials were acting ultra vires—was not justiciable until revocation of S.O.'s degree had occurred. That was not this Court's holding. S.O. 2017 was an appeal from a trial court order granting the University officials' plea to the jurisdiction in which they asserted that S.O.'s claims that they were acting ultra vires were not ripe for review. The trial court agreed and dismissed the case for lack of subject-matter jurisdiction. The trial court's order stated that it had reserved ruling on the plea to the jurisdiction to allow for the University's internal disciplinary hearing to take place on March 4, 2016. The order states that on October 11, 2106, the parties informed the court that the hearing had not yet occurred but was scheduled to take place on October 21, 2016. The trial court informed the parties that it would rule on the plea to the jurisdiction if the hearing did not go forward as scheduled. When the parties later informed the court that the hearing would not go forward on October 21, 2016 after all, the trial court ruled on the plea to the jurisdiction. The trial court granted the plea to the jurisdiction, concluding that S.O.'s claims that the University officials were acting ultra vires and had violated her right to due process were not ripe for review and therefore the court lacked subject-matter jurisdiction. See S.O. 2017, 2017 WL 2628072, at *1-2.
S.O. then perfected an appeal in which she raised two issues. First, S.O. asserted that the trial court erred in concluding that her request for a declaratory judgment that the University officials were acting ultra vires was not ripe for review and dismissing that claim for lack of subject-matter jurisdiction. Second, S.O. asserted that, assuming the University officials' actions were not ultra vires, the rules the University intended to apply to the disciplinary hearing would not provide her with adequate due process protection given the nature of the interest at risk and, for that reason, were unconstitutional. This Court held that “[o]f these two issues, the only one properly before the Court is the first issue, which challenges the trial court's ruling that S.O.'s claims were not ripe.” Id. at *2. This Court reversed the trial court's judgment that S.O.'s ultra vires claims were not ripe for adjudication and remanded the cause to the trial court to address the merits of the ultra vires claims. This Court expressly stated that the controversy between S.O. and the University officials regarding their authority to conduct an internal disciplinary proceeding to determine whether to revoke her degree was justiciable, meaning that S.O. was not required to wait until the University had revoked her degree to assert a justiciable claim that their conduct was ultra vires. See id. at *3 (holding that S.O.'s claim of ultra vires conduct by University officials was ripe regardless of outcome of internal disciplinary proceeding). The Court held that the outcome of the disciplinary proceeding was not relevant to whether S.O. had pleaded a valid ultra vires claim and, consequently, S.O. was not required to wait until the conclusion of an internal disciplinary proceeding or wait until the University revoked her degree, to seek a declaration that conducting such a proceeding would be an ultra vires act by the University officials. See id. (“The nature of the controversy, therefore, is whether the University officials' act of conducting a disciplinary proceeding to consider revoking S.O.'s degree is ultra vires, regardless of its outcome.”). The Court identified the justiciable controversy as follows:
A declaration concerning whether the University officials are acting with or without legal authority will resolve S.O.'s UDJA claim. A justiciable controversy therefore exists regarding whether the University officials are acting beyond their statutory authority. That controversy provides a jurisdictional basis for a UDJA action seeking a declaration regarding the University officials' authority to conduct the internal disciplinary proceeding at issue in this case.
Id. The trial court's judgment squarely addressed and answered that precise question, concluding and declaring that the University officials had neither the express nor implied authority to revoke S.O.'s degree and thereby affirming that their conduct was ultra vires.
In sum, this Court reversed and remanded the case to the trial court precisely because the trial court erred when it determined that it did not have subject matter jurisdiction over S.O.'s ultra vires claim before the University officials actually revoked her degree. Footnote four of the Court's opinion,10 on which the University officials rely, does not state or imply that S.O.'s ultra vires claims are not justiciable until the University has revoked her degree. Instead, the Court was addressing the fact that S.O.'s pleadings included complaints about the manner in which the University had initially declared her degree “revoked” on February 12, 2014, and allegations that the University's procedures related to its investigation and decision regarding her degree did not comport with the minimum constitutional standards guaranteed by the Texas Constitution's due course of law provision. See id. at *1. Footnote four served to clarify this Court's holding on justiciability and did not purport to comment on the merits of due process complaints about the manner in which the University had conducted, or proposed to conduct in the future, any internal disciplinary proceeding that had or could result in revocation of S.O.'s degree.11 The Court's footnote advised the parties and the trial court that any due process complaints asserted by S.O. were premature unless and until the University actually conducted proceedings that resulted in revocation of her degree. See id. at *3 n.4. We overrule the University officials' first issue.
In her first issue on cross-appeal, S.O. asserts that the trial court abused its discretion by failing to award her attorneys' fees pursuant to the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009. Section 37.009, addressing costs and fees under the UDJA, provides that “[i]n any proceeding under this chapter, the court may award costs and reasonable attorney's fees as are equitable and just.” Id. The grant or denial of attorneys' fees in a declaratory judgment action lies within the discretion of the trial court, and its judgment will not be reversed on appeal absent a clear showing that it abused that discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). In the exercise of its discretion to award attorneys' fees in declaratory judgment actions, the trial court may award attorneys' fees to the prevailing party, may decline to award attorneys' fees to either party, or may award attorneys' fees to the nonprevailing party, regardless of which party sought declaratory judgment. See Ochoa v. Craig, 262 S.W.3d 29, 33 (Tex. App.—Dallas 2008, pet. denied). Whether to award or decline to award attorneys' fees is, however, entirely in the trial court's discretion, even if the party seeking fees has presented evidence that would support an attorneys' fee award should the trial court, in its discretion, decide to make such an award. See Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 515 n.5 (Tex. App.—Austin 2003, pet. denied) (“Therefore, we note that the trial court retains absolute discretion to decline to award attorney's fees under the UDJA․” (emphasis in original)). We do not disturb an award or denial of attorneys' fees under the UDJA absent a showing of abuse of discretion by the trial court. Georgiades v. Di Ferrante, 871 S.W.2d 878, 882 (Tex. App.—Houston [14th Dist.] 1994, writ denied). The trial court abuses its discretion when it acts without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
At the hearing on S.O.'s motion for attorneys' fees, the trial court stated:
I want to discuss this a little bit because I want everybody to understand I did consider attorney fees before I issued my orders. I believe that [S.O.] has been extremely well represented throughout many years of litigation in this Court, and I don't say that lightly. I think that she has had consistent, terrific representation. Nevertheless, there was a legitimate dispute about a question of law, and I truly believe that both parties were entitled to come and seek a determination by the Court.
[T]he fact that other courts and other states have looked at this certainly doesn't make it easy. It makes it perhaps even more difficult and provides certainly justification for a lot of work and a lot of time that was clearly provided in representation, and [S.O.] in what clearly was a very, very, very important issue to her and to the university as well.
And so I believe both sides needed to come and do what they did, and so both sides prevailed on significant issues, and I considered that. I believe that is, indeed, equitable and just, and many factors and considerations were considered in determining that that was the most equitable result, so the request for attorney fees is respectfully denied.
On appeal, S.O. emphasized that this litigation has been ongoing for a significant period of time and that she prevailed in significant and meaningful respects. S.O. also argues that the University officials have been acting ultra vires and that “principles of equity do not tolerate rewarding unauthorized and illegal conduct, nor do they incentivize it.” The record demonstrates that the trial court carefully considered the actions of both parties and, rather than find that the University officials had intentionally engaged in ultra vires conduct, the trial court noted that the legal question before it was both novel and difficult, and that both sides were justified in pursuing their competing positions. The declaratory judgment claims in this case presented issues of first impression requiring statutory interpretation. The trial court communicated its view that, having considered the circumstances, it was equitable and just for each party to bear their own attorneys' fees and costs. We cannot conclude that this constituted an abuse of the trial court's absolute discretion to decline to award attorneys' fees pursuant to section 37.009. See Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W.3d 728, 744 (Tex. App.—Austin 2004, no pet.). We overrule S.O.'s first issue on cross-appeal.
In her second issue on cross-appeal, S.O. asserts that the trial court erred by denying her motion for summary judgment on the two following requests for declaratory relief:
Declaration IV: the 2003 University Catalog in effect when S.O. was a graduate student constitutes a binding contract with the University.
Declaration V: for disciplinary proceedings against S.O., the University may not enforce any rules amended, modified, or adopted after S.O. graduated from the University, as doing so would be unconstitutional and contrary to Texas law.
In her brief, S.O. states that the trial court denied her request for these declarations in a February 11, 2019 summary-judgment order. A review of the court's order, however, makes it plain that the trial court did not dispose of S.O.'s request for these two declarations on summary judgment but, rather, determined that it did not have subject-matter jurisdiction to address the merits of the requested declarations. Specifically, the summary-judgment order states “As set forth in a separate Order of this Court, the Court lacks jurisdiction to grant relief under requests for Declarations II-VIII.” The separate order referred to is the trial court's order on the University officials' plea to the jurisdiction. The court's plea-to-the-jurisdiction order stated that “the Court is of the opinion that Defendants' Second Plea to the Jurisdiction should be denied as to the claims which fall under the ultra vires exception to sovereign immunity but granted as to all other claims for relief.” (Emphasis added). Thus, the trial court determined that S.O.'s requests for Declarations IV and V were barred by sovereign immunity. S.O.'s briefing does not address the trial court's conclusion that these requests for declaratory relief are barred by sovereign immunity. Instead, she addresses only the merits of her requested relief, which she characterizes as requests for declarations about “which is the governing contract between her and [the University].” The UDJA does not enlarge the trial court's jurisdiction but is “merely a procedural device for deciding cases already within a court's jurisdiction.” Texas Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). Accordingly, for the trial court to have jurisdiction, the underlying action must be one for which immunity has expressly been waived. Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011). Although the UDJA waives sovereign immunity in particular cases, S.O.'s request for a declaration regarding an alleged contract between the parties does not fall within the scope of those express waivers. For example, the state may be a proper party to a declaratory judgment action that challenges the validity of a statute. Heinrich, 284 S.W.3d at 373 n.6 (citing Tex. Civ. Prac. & Rem. Code § 37.006(b)); Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). But S.O. is not challenging the validity of a statute. Instead, she is seeking a declaration that the University is bound by a particular contract with her. See Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105, 120-21 (Tex. App.—Austin 2007, no pet.) (suits seeking to enforce performance under contract or to impose contractual liabilities are suits against the state barred by sovereign immunity). S.O. does not direct us to any provision of the UDJA or any other provision that expressly waives immunity for her claims. The trial court properly determined that S.O.'s request for Declarations IV and V were barred by sovereign immunity and did not err by dismissing them for lack of subject-matter jurisdiction. We overrule S.O.'s second issue on cross-appeal.
Having overruled the University officials' two appellate issues and having also overruled S.O.'s two issues on cross-appeal, we affirm the trial court's judgment.
CONCURRING AND DISSENTING OPINION
I respectfully dissent because I would hold that the University of Texas 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 thus sustain the University officials' second issue.
I would also sustain their first issue because S.O.'s claims that the University officials may not revoke her degree are unripe, and she lacks standing to bring them, because her degree has not been revoked. I respectfully dissent for this further reason.
I concur in the majority opinion's disposition of S.O.'s second cross-issue holding that the trial court lacked jurisdiction to grant her requested Declarations IV and V. However, because of my conclusions on the University officials' two issues, my analysis of S.O.'s first cross-issue would be postured differently from the majority opinion's. Thus, as to her first cross-issue, I concur only in the portion of the Court's judgment disposing of that issue.
I. UNIVERSITY AUTHORITY
In their second issue, the University officials contend that the trial court “erred in denying [their] Second Plea to the Jurisdiction because ․ the University of Texas at Austin has the power to revoke a degree conferred.” The trial court ruled that the University officials lack either express or implied authority to revoke S.O.'s degree, so any attempt by them to revoke her degree would be ultra vires. The University officials argue that revoking a degree for academic dishonesty is necessary to protect the University of Texas at Austin (UT): “awarding ․ a degree on a student who has not earned it hurts the reputation of the school in the broader academic and scientific community, thereby impairing its ability to attract qualified students.” They also argued that revoking a degree for academic dishonesty protects the welfare of current students, the value of former students' degrees, and UT's academic integrity.
The majority agreed with the trial court, and I respectfully dissent from the majority opinion's holding on this issue for two interrelated reasons: the majority opinion interprets the relevant statutory language too narrowly, and it mistakenly views universities as mere state agencies for all purposes. They are instead something unique in our law.
The statutory language specific to UT and relevant here is from Education Code section 65.31(a) and (c). It provides that the Board “is authorized and directed to govern, operate, support, and maintain each of the component institutions” of the system and “has authority to promulgate and enforce such other rules and regulations for the operation, control, and management of ․ the component institutions ․ as the board may deem either necessary or desirable.” Tex. Educ. Code § 65.31(a), (c). Texas courts have interpreted this very language, with implications for this suit.
The Supreme Court of Texas has located extraordinarily broad academic authority in this statute's predecessor, which authorized the Board to “make and enact all such by-laws, rules, and regulations necessary for the successful management of” UT. See Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 806, 808 (Tex. [Comm'n Op.] 1932) (orig. proceeding) (citing Act effective May 4, 1895, 24th Leg., R.S., ch. 111, § 1, sec. 8, 1895 Tex. Gen. Laws 169, 169, repealed and recodified in Education Code by Act of May 22, 1971, 62nd Leg., R.S., ch. 1024, §§ 1, 37, sec. 65.31, 1971 Tex. Gen. Laws 3072, 3145, 3360 (current version at Tex. Educ. Code § 65.31)); id. at 810 (Supreme Court adopted Foley opinion). As explained in Foley, under the statutory authorization to make rules to run UT, the Board enacted rules for expelling medical students who fell short of certain academic criteria. See id. at 806. An expelled medical student sought a writ of mandamus directing UT officials to reinstate him. Id. The Court located the Board's academic authority to expel in a statute that nowhere refers to any such authority:
The Legislature of this state not having provided who shall be admitted to the University, and having delegated the power to make rules and regulations necessary to the government of the University, to the board of regents, they are invested with the power of determining what classes of persons shall be admitted to the University, provided that the rules and regulations in that regard must be reasonable and not arbitrary. The authorities sustain certain general rules with regard to the government of institutions supported and maintained by the state. ․ The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discretion, or a violation of law.
Id. at 808 (emphasis added; internal citation and quotation omitted). Because the authority to expel was implied by the statutory authorization to make rules to run UT, the Court denied mandamus. Id. at 810.
A decision from our sister court of appeals interpreted Section 65.31 just as broadly. In Eiland v. Wolf, another medical student sued for reinstatement, this time to the University of Texas Medical Branch at Galveston (UTMB), and the First Court of Appeals rendered judgment against him. 764 S.W.2d 827, 828–29, 834, 836, 839 (Tex. App.—Houston [1st Dist.] 1989, writ denied). The court of appeals noted that the Board's statutory authority to prescribe degree programs permitted it to create an academic catalog and that its statutory authority “to promulgate university rules and regulations” allowed the catalog to stipulate when students could be academically expelled, though the statute says not a word about expulsion. See id. at 837 (citing Tex. Educ. Code § 65.31). The court in Eiland also 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 Board of Curators v. Horowitz, 435 U.S. 78, 90, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978)); 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))).
Foley and Eiland demonstrate that Section 65.31 empowers the Board to do more than the majority opinion recognizes.
The breadth of university boards' authority to make rules to run their universities is not confined to the University of Texas System, which is evident from two cases. The First Court of Appeals located similarly broad authority in the University of Houston (UH) system's statutory authorization that “[t]he governance, control, jurisdiction, organization, and management of the University of Houston System is hereby vested in the” UH board. Tex. Educ. Code § 111.20(c), cited in Alcorn v. Vaksman, 877 S.W.2d 390, 403 n.5 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (en banc) (“The dismissal of students at the University of Houston is within the appellants' scope of authority. Tex. Educ. Code Ann. § 111.20(c).”). Whether to expel a graduate student under this general 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.”).
According to the Seventh Court of Appeals, a statutory authorization to make rules to run a university authorized a student's expulsion for drinking; speeding; and, after being prohibited from bringing his car back to campus, doing just that. See Cornette v. Aldridge, 408 S.W.2d 935, 937, 940–42 (Tex. Civ. App.—Amarillo 1966, no writ) (per curiam). The court reversed a writ of mandamus in the student's favor because of statutory language authorizing then-West Texas State University's board to make rules to run the university: “[T]he legislature has vested in the Board of Regents of the subject institution broad and general power and authority to control and manage the school and establish such rules and regulations as shall be deemed necessary for the efficient administration of the institution.” Id. at 937. The court even relied on Foley's analysis of “the same textual authority to the effect that” university boards may condition students' attendance on “reasonable rules, regulations and requirements.” Id. at 938–39 (quoting and applying Foley).
In sum, Section 65.31(a) and (c) authorize the Board to do more than the majority opinion recognizes. This was recognized as early as 1932, in Foley, and continues today for UT and for other state universities with similar statutory authorizations. Just as the Supreme Court and sister courts of appeals have located university boards' academic authority to expel a student in the statutory authorizations to make rules to run a university, I would locate in that broad authority the Board's authority to revoke a degree for academic dishonesty.2
The expulsion cases expose one of the weaknesses in the majority opinion's approach. Its view of university authority as limited virtually only to express statutory language would prevent UT from expelling anyone. Nothing in UT's authorizing statutes authorizes expulsion. See Tex. Educ. Code §§ 65.01–.461, 67.01–.71. So too with UTMB. See id. §§ 74.001–.008. UT's and UTMB's authorizing statutes refer only to admitting students, including medical students like those in Foley and Eiland. See id. §§ 65.31(c), 65.41, 74.202; see also id. § 51.352(d)(4) (admissions authority for all state university boards). The majority opinion's approach therefore would have required opposite conclusions from those reached in Foley and Eiland—both of which involved Section 65.31's language—rejecting any authority to expel because the statute did not expressly mention expulsion. Cf. ante at 253–54 (rejecting Board's authority to revoke degrees for academic dishonesty because Board expressly may only award degrees); but see 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 majority opinion is thus out of step with the Supreme Court's and sister courts of appeals' longtime treatment of Section 65.31 and similar university statutes.
The Section 65.31 authority to make rules to run UT is bound up in a body of law in Texas and elsewhere discussing what “academic decisions” a university is empowered to make. See, e.g., 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 University officials argue that revoking a degree for academic dishonesty is just such an academic decision. They say that it implicates the Board's other statutory authorities to “enhance the public image of each institution under its governance,” see Tex. Educ. Code § 51.352(a)(2), or to “strive for intellectual excellence,” see id. § 51.354(6). They liken S.O.'s marshaling of scientific data in her dissertation to the public presentation of scientific data in Pugel v. Board of Trustees of the University of Illinois, which warranted academic sanction by a university:
A scientific presentation is connected directly with the University's mission of intellectual enrichment and research. Moreover, the public presentation of false data by a graduate-level student affiliated with the University has significant ramifications on the discipline and rigor of the University's intellectual enterprise and, as a result, on the University's reputation in the broader academic and scientific community.
378 F.3d 659, 668 (7th Cir. 2004). They cite another court's statements that “plagiarizing a doctoral thesis is ․ significant” and “risks impugning a university's integrity,” Jaber v. Wayne State University Board of Governors, 487 F. App'x 995, 997 (6th Cir. 2012), and that “[a]warding degrees ․ to students who have not earned them[ ] will decrease the value of degrees in general” because “it will hurt the reputation of the school and thereby impair its ability to attract other students willing to pay tuition, as well as its ability to raise money,” United States v. Frost, 125 F.3d 346, 367 (6th Cir. 1997). And they argue that inspecting the scientific work for which a degree was granted “is an academic matter that should be resolved in the university setting.”
In each instance—making rules to run UT, under Section 65.31; enhancing a university's public image, under Section 51.352(a)(2); and striving for intellectual excellence, under Section 51.354(6)—the statutory authorization does not limit the Board's discretion. 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 Board grant of authority to the UT 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. That 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.”). The authorization required the chancellor to interpret federal privacy law. Because it did not restrict how he could do so—such as by restricting him from applying federal privacy law erroneously—the chancellor's “discretion to interpret collateral federal privacy law [was] ‘absolute.’ ” Id. at 243.
Here, the University officials' argue that the Board's authorities (1) to make rules to run UT, (2) enhance the university's public image, and (3) strive for intellectual excellence must be viewed with Hall's instructions about officials' discretion in mind. The University officials argue that revoking a degree for academic dishonesty serves each of these three authorities. Because the Board enjoys unrestricted discretion to exercise them, the Hall-compliant view is that the Board may revoke a degree for academic dishonesty to exercise these authorities. See 508 S.W.3d at 241–43; see also Goodreau v. Rector & Visitors of Univ. of Va., 116 F. Supp. 2d 694, 703 (W.D. Va. 2000) (applying Virginia law) (“Because degree revocation is reasonably necessary to effectuate the Board's power to confer degrees and to regulate student discipline, that power must be implied, giving the Board the authority to revoke a degree for good cause and after due process.”). The judiciary should resist interfering with this academic decision, see Alcorn, 877 S.W.2d at 397 (“[U]niversity administrators, not judges, should make academic decisions needed to run a university.” (quoting Clements, 835 F.2d at 1005)); Eiland, 764 S.W.2d at 833 (“[A]cademic evaluations of a student are not readily adapted to judicial and administrative review.” (citing Horowitz, 435 U.S. at 90, 98 S.Ct. 948)); 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))), until some constitutional or statutory limit thwarts it. There are no such limits in Education Code sections 51.352(a)(2), 51.354(6), or 65.31(a) or (c). Viewing those statutes through Hall's prism, and with the guidance afforded by Alcorn and Eiland and the “academic decisions” body of law, I conclude that the Board enjoys the statutory authority to revoke a degree for academic dishonesty.
Specific statutes aside, 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 S.O. argues that UT is no mere state agency. She tells us that “UT is Not a Statutorily Defined ‘State Agency,’ ” arguing that the Texas Administrative Procedure Act does not treat universities like it treats state agencies. The same topic arose before the trial court:
The Court: Isn't there a ․ case that provides that [the court] can't grant attorney fees against ․ a state agency on a declaratory judgment claim?
[S.O.'s counsel]: Um, they are not a state agency, though, under the APA so ․ I'm not familiar with the case you're referring to, Your Honor. I can look into that further if you want.”
Longstanding Texas law shows that a university enjoys authorities inherent in its status as a university, for three reasons.
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. (internal citation omitted) (quoting predecessor statute to Tex. Educ. Code § 65.31); 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 v. Board of Trs. of Kent State Univ., 22 Ohio St.3d 55, 488 N.E.2d 850, 852–53 (1986) (reviewing university's “inherent” authority to revoke degrees and noting that courts refuse to interfere with “fundamental university functions”).
Next, Texas law has recognized inherent university authority in private universities, which, unlike state universities, do not exist or enjoy authority because of statutes. For example, the Second Court of Appeals affirmed a take-nothing summary judgment rendered against a Texas Christian University (TCU) student who 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 inherent in 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”).
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.
For example, all agree that UT may grant degrees, but we might differ on why. The majority opinion apparently would locate that authority only in the words of Section 65.31(b), which authorizes the Board to award all “degrees as are customarily offered in outstanding American universities.” We know this because of the reasoning by which the opinion rejects the University officials' revocation argument from the same statute. Cf. ante at 253–54. That is, while the University officials say that revoking a degree for academic dishonesty is necessary to accomplish the award of degrees, the majority opinion rejects this argument by saying that the grant of authority to award degrees is not “defeated absent an attendant authority to revoke the degree at a later date.” Ante at 255. 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–.170.3
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.
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 UT, for universities' “self-evident ․ inherent authority to revoke an improperly awarded degree.” 488 N.E.2d at 852. First was a 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 v. Matchett, 957 F.2d 791, 794–95 (10th Cir. 1992);
• 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);4
• Vermont, see Merrow v. Goldberg, 672 F. Supp. 766, 771–74 (D. Vt. 1987); and
• Virginia, see Goodreau, 116 F. Supp. 2d at 703.
Texas's state universities are no less heirs of England's than our sister states' universities are. This might be why the Supreme Court in Foley and the Seventh Court in Cornette surveyed other jurisdictions' decisions, just like the University officials ask us to do here. See Foley, 55 S.W.2d at 809–10; Cornette, 408 S.W.2d at 941 & n.6. When our Legislature creates a university, it creates an entity that inherently may grant degrees and revoke them for academic dishonesty.
In their first issue, the University officials contend that the trial court “incorrectly denied [their] Second Plea to the Jurisdiction after this Court correctly held that the issue decided by the trial court is not yet justiciable because revocation has not occurred.” Sustaining this issue, they say, should lead this Court to render judgment “that the issue of whether [the University officials] have authority to revoke a degree is not justiciable.” The University officials argue that it is not justiciable because (1) it is not ripe, under applicable authorities, and (2) S.O. lacks standing to challenge a degree revocation that has not occurred and might not occur, under other applicable authorities.
To support those arguments, the University officials rely not only on the parties' 2017 appeal, S.O. v. Fenves, No. 03-16-00726-CV, 2017 WL 2628072 (Tex. App.—Austin June 15, 2017, no pet.) (mem. op.) [hereinafter “S.O. 2017”], but also on other decisions from this Court and from the Supreme Court of Texas. Standing made up no part of this Court's opinion in S.O. 2017. See generally 2017 WL 2628072.
Yet the majority opinion confines its analysis under the University officials' first issue to S.O. 2017 and its statements on ripeness alone, declining to address standing. See ante at 254–56. S.O. 2017 and ripeness alone are not the University officials' only justiciability arguments under their first issue. The majority opinion thus declines to analyze fully the University officials' first issue. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”), 47.1 (requiring that opinions “address[ ] every issue raised and necessary to final disposition of the appeal”); Heckman v. Williamson Cnty., 369 S.W.3d 137, 152 (Tex. 2012) (“[T]he court must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges when that issue is before the court.”); Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000) (“Because standing and ripeness are components of subject matter jurisdiction, the court of appeals erred in failing to consider [party]'s jurisdictional challenge.”).
As to ripeness, the University officials argue that S.O.'s authority-to-revoke claims are not ripe because “[a] declaration regarding authority to revoke a degree is the precise example of ‘uncertain or contingent future events that may not occur as anticipated or may not occur at all,’ ” quoting Waco Independent School District, 22 S.W.3d at 852. They continue their argument by relying on two more decisions from the Supreme Court of Texas:
Texas courts “do not give advice or decide cases upon speculative, hypothetical or contingent situations.” Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). Because revocation of S.O.'s degree is speculative and contingent on multiple factors, the ․ declaration that State Appellants lack authority to revoke a degree is an improper advisory opinion. Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998) (“The courts of this state are not empowered to give advisory opinions.”).
I agree with the University officials. In their second plea to the jurisdiction, they confirmed that the outcome of any future academic proceeding against S.O. is simply uncertain. They attached to the plea evidence of notice to S.O. that she might be subject to a proceeding and unspecified “disciplinary sanction[s]” and of the rules that would apply in the proceeding, which allow for several possible sanctions besides revocation, including a “written warning,” “withholding of grades [or] official transcript,” and others “as deemed appropriate under the circumstances.” In response to the plea, S.O. confirmed that there are no disputed facts and that the trial court could rule on justiciability as a matter of law by asking the trial court to read her motion for summary judgment, which disclaimed any fact dispute.
It is thus factually undisputed that the University officials might simply impose a lesser sanction or even conclude that she has violated no academic rule at all. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.) (“If ․ 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.”). Under our Supreme Court's precedents, that makes S.O.'s authority-to-revoke claims unripe: we cannot yet know whether her degree will be revoked. See Waco Indep. Sch. Dist., 22 S.W.3d at 851–53 (holding that constitutional challenge to school district's student-retention policy was unripe because “no student ․ had been retained or given notice of retention under the challenged policy because the [standardized] test results were not yet available. ․ Thus, at the time this suit was filed, the alleged harm to the students caused by retention was still contingent on uncertain future events, i.e., the students' performance on the standardized tests and, if necessary, in WISD's remediation program”); Patterson, 971 S.W.2d at 444 (vacating trial court's judgment and dismissing as unripe suit that sought to enjoin State from enforcing state legislative rider that could endanger federal funding because State's enforcement hinged on its plan to enforce rider in way that would comply with federal law, thus preserving federal funding, and Court “simply d[id] not know what the federal government will do if the state carries out its plan”); Camarena, 754 S.W.2d at 151 (vacating injunction that prohibited Employment Commission from “denying, prejudicing, or detrimentally affecting” unemployment benefits for farm workers under newly enacted legislation because Commission “had not attempted to deny, prejudice or detrimentally affect the benefits conferred by [the legislation],” making suit unripe because it sought to redress “a hypothetical situation which might or might not arise at a later date”); see also Texas Educ. Agency v. Academy of Careers & Techs., Inc., 499 S.W.3d 130, 136–37 (Tex. App.—Austin 2016, no pet.) (holding that suit challenging future taking of property, which allegedly would flow from future revocation of school charter, was unripe because charter had not yet been revoked); cf. City of El Paso v. Caples Land Co., 408 S.W.3d 26, 33 (Tex. App.—El Paso 2013, pet. denied) (holding that building owner's challenge to city's remediation request was ripe because city had “warned [building owner] that noncompliance would result in the property's certificate of occupancy being revoked” (emphasis added)).
As for standing, I note first that standing and ripeness are different: “ ‘[r]ipeness, like standing, is a threshold issue that implicates subject matter jurisdiction, and like standing, emphasizes the need for a concrete injury for a justiciable claim to be presented.’ While standing focuses on the issue of who may bring an action, ripeness focuses on when that action may be brought.” Waco Indep. Sch. Dist., 22 S.W.3d at 851 (quoting Patterson, 971 S.W.2d at 442). “[I]f a plaintiff lacks standing to assert one of his claims, the court lacks jurisdiction over that claim and must dismiss it. ․ [T]he court must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges when that issue is before the court.” Heckman, 369 S.W.3d at 150, 152. “[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Id. at 153 (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)).
For a plaintiff to have standing to bring a particular claim, the plaintiff must clear three hurdles: (1) the plaintiff must have been personally injured, (2) the alleged injury must be “fairly traceable” to the defendant's conduct, and (3) the alleged injury must be “likely to be redressed by the requested relief.” Id. at 155. Under the first hurdle, the injury “must be concrete and particularized, actual or imminent, not hypothetical.” Id.
S.O. pleaded for eight declarations and other injunctive relief. The trial court awarded her only declaratory relief on only one claim, declaring that the University officials lack express or implied authority to revoke her degree.
The University officials argue that these declarations redress only a speculative injury: the possible revocation of S.O.'s degree, which might not result from any future academic proceeding. The evidence attached to the University officials' plea showed that revoking her degree is not a certainty in the not-yet-conducted proceeding, and her response to the plea disclaimed any fact dispute. Even if a proceeding to consider an academic sanction against S.O. might be imminent, the revocation of her degree is not. I thus conclude that she lacked the required injury to support standing to seek the authority-to-revoke declarations. See Heckman, 369 S.W.3d at 160 (holding that plaintiff lacked required injury for standing to bring claim that county and officials deprived him of constitutional right to open courts in criminal prosecution against him because plaintiff “has not alleged that he, personally, was suffering from a deprivation of his right to open-court proceedings at the time he filed suit, or that he faced an imminent deprivation of this right”).
Neither of these conclusions depends on S.O. 2017. As to S.O. 2017, I agree with the majority opinion's rejection of the University officials' position that S.O. 2017 affirmatively held that whether the University officials may revoke S.O.'s degree is not justiciable. As S.O. 2017 recognized, S.O. pleaded two kinds of claims—one about whether the University officials may revoke her degree and another about whether they may hold an academic proceeding against her. See 2017 WL 2628072, at *3 (“[S.O.] alleges that the University does not itself have the authority to divest one of its graduates of a conferred degree through its internal disciplinary proceedings. S.O. complains not simply of the actual revocation of her degree, should that occur, but the fact that the University has put the status of her degree in question and is requiring her to defend it in a proceeding that she alleges the University officials are not authorized to conduct.”). S.O. 2017 addressed only the claims about holding a proceeding; it reserved decision on the authority-to-revoke claims, reaching no holding about them:
The nature of the controversy, therefore, is whether the University officials' act of conducting a disciplinary proceeding to consider revoking S.O.'s degree is ultra vires, regardless of its outcome. ․ Once the University officials have conducted the hearing, S.O. may no longer have a claim for prospective relief to enjoin the hearing.
Id. at *3–4 (emphases added). The trial court denied relief on all but the authority-to-revoke claims.
I part with the majority opinion because it takes a further step, reading S.O. 2017 as affirmatively supporting S.O.'s position that her authority-to-revoke claims are ripe. The majority opinion says about S.O. 2017:
In sum, this Court reversed and remanded the case to the trial court precisely because the trial court erred when it determined that it did not have subject matter jurisdiction over S.O.'s ultra vires claim prior to the time that the University officials actually revoked her degree. Footnote four of the Court's opinion, on which the University officials rely, does not state or imply that S.O.'s ultra vires claims are not justiciable until the University has revoked her degree.
Ante at 257–58. The majority opinion then further characterizes its view of S.O. 2017's footnote four and its effect on the University officials' ripeness arguments 5 and then overrules the University officials' first issue without an analysis under the University officials' other cited authorities, including Waco Independent School District, Patterson, Camarena, and Heckman. See ante at 255–56. This ignores S.O. 2017's express limits. S.O. 2017 addressed only “whether the University officials' act of conducting a disciplinary proceeding to consider revoking S.O.'s degree is ultra vires, regardless of its outcome.” 2017 WL 2628072, at *3. It made no decision one way or the other about the justiciability of a challenge to the University officials' authority to revoke a degree. S.O. 2017, then, is not enough support on its own for overruling the University officials' first issue. When analyzing that issue under the Supreme Court of Texas's ripeness and standing precedents, as I have above, I conclude that S.O.'s authority-to-revoke claims are not yet justiciable. I would sustain the University officials' first issue.
S.O. pleaded several claims for relief, the trial court dismissed all but the authority-to-revoke claims, and S.O. did not cross-appeal the dismissals. On the merits, the trial court was incorrect to conclude that the Board may not revoke a degree for academic dishonesty. Whether implied under the several statutes empowering the Board or inherent in UT's status as a university, the Board has the authority to revoke a degree for academic dishonesty.
On justiciability, because S.O.'s authority-to-revoke claims are not justiciable either because they are unripe or because she lacks standing to bring them, I would reverse the trial court's judgment and render judgment dismissing those claims.
I respectfully concur in part and dissent in part.
2. According to her pleadings, S.O.'s dissertation involved studying the synthesis and analysis of organic molecules. S.O. alleged that she “was required to—and did—characterize the chemical compounds in her experiments with four different tests that were required by [her graduate advisor].” S.O. alleged that “[u]ltimately, [she] did not create natural products through her proposed method, nor was she required to do so to earn her degree.” S.O. alleged in her pleadings that with her graduate advisor's input and approval, she reported “the results from the synthetic routes towards the natural products in her dissertation and was awarded her degree.” S.O. alleged that her dissertation research had been scrutinized at many different points in time before the University awarded her degree. S.O. alleged that her data and conclusions were supported by overlapping experiments she performed under the supervision of her graduate advisor; that she presented and defended her dissertation to a committee of five professors from the University Chemistry Department; and that her work was presumably further scrutinized by her graduate advisor when he submitted a paper based in part on her work for publication in 2011. S.O. alleged that the allegations of academic misconduct arose after a different graduate student working with S.O.'s graduate advisor in 2012 reviewed the previously published work, along with S.O.'s data and the data of another graduate student, and then conducted experiments that “led him to believe that parts of the work submitted [by the graduate advisor] to the journal article was somehow erroneous or otherwise inaccurate.” S.O.'s pleadings allege that “once this graduate student questioned the data” in 2012, her graduate advisor brought a complaint to the University alleging that S.O. had engaged in scientific misconduct.
3. The hearing did not occur on October 21, 2016, and was rescheduled to take place on April 28, 2017.
4. S.O. dropped her request for a declaration that a particular professor not be permitted to participate in any proceedings against S.O. “because of an apparent conflict” that she alleged disqualified or otherwise made that professor “ineligible to participate with fairness or impartiality.”
5. S.O. also alleged that the University officials are violating her constitutional rights to due process and equal protection but, as previously noted, the trial court found that it lacked subject matter jurisdiction over any requested declarations attempting to establish or challenge the procedures applicable to the disciplinary hearing and granted the plea to the jurisdiction as to those declarations. S.O.'s constitutional claims are not before this Court.
6. The term “board” refers to a board consisting of nine regents appointed by the governor, which is authorized by statute to “provide for the administration, organization, and names of the institutions and entities in The University of Texas System in such a way as will achieve the maximum operating efficiency of such institutions and entities.” See Tex. Educ. Code § 65.11.
7. A “governing board” is defined by statute as “the body charged with policy direction of any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education, including but not limited to boards of directors, boards of regents, boards of trustees, and independent school district boards insofar as they are charged with policy direction of a public junior college.” Id. § 61.003(9).
8. 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 court 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).
9. 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 has only the powers expressly granted by the Legislature along with those powers that may properly be implied.
10. Footnote four states: “To the extent S.O.'s pleadings complain of or seek a declaration regarding the actual revocation of her degree, an event that has not occurred, that claim is not ripe.” S.O. v. University of Texas, No. 03-16-00726-CV, 2017 WL 2628072, at *3 (Tex. App.—Austin June 15, 2017, no pet.).
11. After the University purported to revoke S.O.'s degree in 2014, S.O. and the University officials entered into a Rule 11 Agreement specifying that the University would restore S.O.'s degree “subject to further discussions regarding additional process.”
1. Note that the Court mentioned admissions authority as within the authority to make rules to run UT while the Court was locating the expulsion power. This reasoning undermines the majority opinion's view that the authority to award degrees cannot include the authority to revoke them for academic dishonesty.
2. It is no distinction to say that Foley, Eiland, Alcorn, and Cornette cannot speak to degree revocation because a degree involves a property interest while dismissal from 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 the authority to revoke a degree for academic dishonesty. Cf. Heaton v. Bristol, 317 S.W.2d 86, 93, 96–98, 101 (Tex. Civ. App.—Waco 1958, writ ref'd) (reversing injunction and rendering judgment against women seeking admission to then-Agricultural & Mechanical College of Texas because College's board enjoyed statutory authorization to “govern[ ] the College, with power to make such by-laws, rules and regulations for the governing of the College as it may deem necessary and proper for that purpose,” but recognizing that state or federal constitutions may override board's statutory authority).Further, S.O. argues that UT can never afford anyone due process in proceedings held within the university. Than rebuts that argument because, there, although the university had violated a medical student's due-process rights when it expelled him, 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 v. Goldberg, 672 F. Supp. 766, 773 (D. Vt. 1987) (“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)).
3. 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.
4. 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).
5. I also disagree with the majority opinion's characterization of S.O. 2017's footnote four, even if footnote four does not resolve the University officials' first issue. S.O. 2017 distinguished S.O.'s claims about the authority to revoke her degree from her claims about the authority to hold an academic proceeding regardless of revocation: “The nature of the controversy, therefore, is whether the University officials' act of conducting a disciplinary proceeding to consider revoking S.O.'s degree is ultra vires, regardless of its outcome.” No. 03-16-00726-CV, 2017 WL 2628072, at *3 (Tex. App.—Austin June 15, 2017, no pet.) (mem. op.). Given this distinction, footnote four is referring to the authority-to-revoke claims' not being ripe and not the hearing claims' ripeness:S.O. complains not simply of the actual revocation of her degree, should that occur,4 but the fact that the University has put the status of her degree in question and is requiring her to defend it in a proceeding that she alleges the University officials are not authorized to conduct.․4 To the extent S.O.'s pleadings complain of or seek a declaration regarding the actual revocation of her degree, an event that has not occurred, that claim is not ripe.Id. at *3 & n.4.
Thomas J. Baker, Justice
Concurring and Dissenting Opinion by Justice Kelly
Response sent, thank you
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Docket No: NO. 03-19-00131-CV
Decided: September 04, 2020
Court: Court of Appeals of Texas, Austin.
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