Michael Motheral in His Official Capacity as Chair of the University Interscholastic League's State Executive Committee Johanna Denson in Her Official Capacity as Vice Chair of the UIL SEC Paul Galvan in His Official Capacity as a Member of the UIL SEC And Daryl Wade in His Official Capacity as a Member of the UIL SEC v. Jennifer Black, Individually, and A.B., a Minor, by and Through His Guardian, Jennifer Black ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00671-CV
Michael Motheral in his Official Capacity as Chair of the University Interscholastic
League’s State Executive Committee; Johanna Denson in her Official Capacity as Vice
Chair of the UIL SEC; Paul Galvan in his Official Capacity as a member of the UIL SEC;
and Daryl Wade in his Official Capacity as a member of the UIL SEC, Appellants
v.
Jennifer Black, individually, and A.B., a minor,
by and through his guardian, Jennifer Black, Appellees
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-21-006732, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING
MEMORANDUM OPINION
Jennifer Black, individually, and A.B., a minor, by and through his guardian
Jennifer Black (collectively, “Plaintiffs”) sued the following individuals in their official
capacities as members of one of the University Interscholastic League’s State Executive
Committees: Michael Motheral as Chair, Johanna Denson as Vice Chair, Paul Galvan as a
member, and Daryl Wade as a member (collectively, “UIL Defendants”), alleging that the UIL
Defendants violated the Plaintiffs’ constitutional rights to due course of law, equal protection,
and free speech during a hearing regarding A.B.’s eligibility to play high school varsity sports,
seeking declaratory relief regarding the validity of one of the UIL’s rules, and seeking a
temporary injunction allowing A.B. to participate in high school athletic competitions pending
resolution of the underlying trial. The UIL Defendants filed a response to the request for a
temporary injunction asserting that the requirements for a temporary injunction had not been met
and filed a plea to the jurisdiction asserting that the trial court did not have jurisdiction over the
Plaintiffs’ claims. After a hearing, the trial court issued an order denying the UIL Defendants’
plea to the jurisdiction and granting the Plaintiffs’ request for a temporary injunction. The UIL
Defendants have appealed the trial court’s order. We will affirm the portions of the trial court’s
order granting the temporary injunction and denying the plea to the jurisdiction regarding the
Plaintiffs’ due-course-of-law claim, reverse the remaining portions of the order denying the plea,
and render judgment dismissing for want of jurisdiction the Plaintiffs’ equal-protection claim,
free-speech claim, and request for declaratory relief regarding the UIL rule.
BACKGROUND1
Jennifer Black and Terry Black were married in 2004 and later had two sons: A.B.
and B.B. Jennifer alleged that Terry abused her during their marriage, including threatening to
kill her. Because of the alleged abuse, Jennifer separated from Terry, and they divorced in 2011.
As part of the divorce decree, Jennifer was given the right to determine the residence for the
couple’s two children within Tarrant County or any contiguous county. Although the couple
divorced, Terry continued to follow Jennifer and make efforts to exert control over her life.
After the divorce, Jennifer moved with her two children to Coppell, Texas, where
her children attended school and participated in school sports programs. A.B. played on the
high school basketball team during his freshman, sophomore, and junior years (2018-2021)
under Coach Clint Schnell. In 2018, Jennifer began dating David Peavy, a high school coach in
1
These facts are drawn from the evidence presented at the hearing before the trial court
as well as evidence presented during the hearings before the University Interscholastic League
committees occurring before and forming the basis for the temporary-injunction hearing.
2
Duncanville, Texas. As the relationship progressed, Peavy moved into Jennifer’s Coppell home,
where the couple lived together for more than two years. Jennifer and Peavy have co-parented
Jennifer’s children, and the couple got engaged in April 2021. After Jennifer and Peavy began
dating, Terry harassed the couple and threatened violence against them, including threatening to
blow up their house.
Before A.B. started his senior year in Coppell, Terry began pressuring him to
transfer to a Florida academy to get ready to play basketball in college. However, A.B. did not
want to transfer because he did not want to leave his family and friends, and A.B. intended to
play basketball in Coppell for his senior year. Terry did not agree with A.B.’s choice and
became angry about the situation. In August 2021, while A.B. and his brother were at a
basketball tournament in Las Vegas, Nevada, Terry shouted at A.B. while he was on the court
and later approached A.B. while he was on the bench, grabbed him by the hair, dragged him
outside, and punched or pushed A.B.’s face.
Following this incident, Jennifer asked her younger son’s coach to cancel B.B.’s
scheduled game because she was afraid that Terry might cause another incident, and the coach
agreed to cancel the team’s scheduled game and offered to help Jennifer. Because Jennifer was
frightened by Terry’s aggressive behavior toward A.B., she contacted an attorney, seeking help
obtaining a restraining order against Terry. Worried that the restraining order might take some
time to go into effect, Jennifer also made the decision to move her family from their home in
Coppell to another home unknown to Terry, and she asked her children to turn off their location
apps on their phones to prevent Terry from discovering the location of their new home. After
talking with Peavy, Jennifer decided to move to Duncanville, where Peavy worked and which is
in a county contiguous with Tarrant County as the divorce decree required. Once the family
3
moved to Duncanville, Jennifer enrolled her children in the local high school, and A.B. joined
the new school’s basketball team. When Jennifer informed Coach Schnell about her decision to
move away from Coppell, he told her that he supported her decision. Further, Schnell sent A.B.
a text message stating that he wished A.B. “all the best” and knew he was “in good hands.”
Following Jennifer’s decision to move, Terry contacted Coach Schnell and Kit
Pehl, who was the athletic director for the Coppell school district. In his discussions with
Schnell and Pehl, Terry encouraged them to challenge Jennifer’s decision to move her family
and provided them with information that he argued showed that A.B. was being transferred for
an improper athletic purpose and had been recruited. Pehl was surprised by Terry’s decision to
become involved in the matter because he thought that Terry would have supported A.B.,
knowing that Terry’s suggested challenge could result in A.B. not being allowed to play
basketball during his senior year, and because he had never heard of another parent ever seeking
to challenge a school transfer on the ground that the other parent had moved with the child for an
athletic purpose.
After talking with Terry, Pehl helped Schnell fill out a Previous Athletic
Participation Form (“PAPF”). The University Interscholastic League (“UIL”) requires that the
PAPF be filled out in circumstances like those present here where a student transfers to a new
school and had previously participated in sports. As filled out, the PAPF alleged that there was
dissatisfaction or conflict among A.B., his parents, and the athletic supervisors at the school; that
A.B. was recruited to attend Duncanville High School or had been subjected to undue influence
encouraging him to change schools; and that A.B. was changing schools for athletic purposes.
Approximately one month after Director Pehl submitted the PAPF to the UIL, a hearing before a
UIL District Executive Committee (“DEC”) was scheduled.
4
Before the DEC hearing, Pehl texted Terry to say that he and Schnell “want[ed] to
collaborate with” Terry about how to frame their arguments at the hearing. Over the next two
months, Pehl, Schnell, and Terry talked on the phone and met in person multiple times to discuss
A.B.’s transfer. Moreover, Terry agreed to testify as a witness against the transfer even though
Pehl could not remember any other DEC hearing in which a witness had been called to testify
against a student.
At the DEC hearing in September 2021, the Plaintiffs were not represented by
counsel. During the hearing, Schnell testified that he believed that A.B. had been recruited to
play for Duncanville High School and that A.B. wanted to move to Duncanville to get more
exposure to recruiters. Further, Schnell emphasized that Jennifer and Peavy were dating but
were not married. Terry testified that A.B. expressed a desire to move to Duncanville months
before the move and that Peavy had only lived with Jennifer for a few months. During Peavy’s
testimony, one of the DEC members asked whether he was married to Jennifer, and Peavy
explained that they were engaged and had lived together for more than two years. Similarly,
Jennifer testified that she had been in a long-term relationship with Peavy. Further, she related
that she decided to move for A.B.’s best interests after there had been “some confrontation
between [A.B.] and [Terry] this summer.” In his testimony, A.B. stated that he was having an
issue with his father right now. At the end of the hearing, the DEC voted unanimously that A.B.
moved for athletic purposes, which rendered A.B. ineligible to play varsity sports at Duncanville
High School for one year.
After the DEC hearing, Terry showed up at Jennifer’s new home uninvited,
unannounced, and without having been given her new address. Upon arriving at the house, Terry
texted her photos of her new house, said that he was outside, and stated that he was there to pick
5
up his sons even though he had stopped picking up the children more than a year before when
A.B. got his driver’s license. While Terry was outside, B.B. called Jennifer because he was
scared. Jennifer’s attorney sent a letter to Terry requesting that he not attend B.B.’s basketball
games because of B.B.’s anxiety and that Terry participate in counseling to address the recent
conflicts, including the Las Vegas incident.
Jennifer and A.B. appealed the DEC’s decision, and a hearing was scheduled
before a UIL State Executive Committee (“SEC”) in October 2021. Jennifer filed with the SEC
a declaration setting out the abusive nature of her relationship with Terry and the events in
Las Vegas. Before the SEC hearing, Coach Schnell obtained a copy of the exhibits that had been
submitted for the hearing and suggested that Director Pehl send the documents to Terry and
inform him about the abuse allegations to allow him to prepare a response. Pehl agreed and sent
Terry the exhibits so that he could “see Jennifer’s new agenda,” later admitting that he wanted to
help prepare Terry to testify about the allegations and identified topics that Terry should discuss.
Around that time, Terry sent Pehl a photo of A.B. playing basketball at a non-UIL event and
asked whether something should be done about A.B.’s participation.
At the SEC hearing, the Plaintiffs were represented by attorneys. When one of
their attorneys attempted to provide an opening statement and attempted to discuss the abuse
allegations, one of the UIL Defendants repeatedly interrupted before telling the attorney to stop
talking and warning the attorney about continuing to speak on the topic. During Jennifer’s
testimony, she was asked by one panelist about whether she was dating Peavy, and she testified
that they had been dating for more than three years and living together for two years. When
Jennifer started to explain how after Terry assaulted A.B. in Las Vegas she moved her family to
6
Duncanville to protect the mental and physical health of her children,2 one UIL Defendant stated
that they were aware of the allegation but were “not gonna press . . . hard on that issue.”
Following that exchange, the UIL Defendants questioned Jennifer and Peavy
about the PAPF, about when they moved to Duncanville, about how they met, about tweets by
Duncanville coaching staff congratulating A.B. about his basketball performance, and about
whether A.B. knew any students at Duncanville High School. Peavy testified that Jennifer did
not express dissatisfaction with Schnell’s coaching but only with A.B.’s placement on the second
all-district team as a sophomore and explained that A.B. continued to play in Coppell for his
junior year. Later, Jennifer mentioned the Las Vegas incident and explained that she would not
have moved had the incident not occurred, that Terry was the one who was unhappy with
Schnell’s coaching, and that she had turned down offers from sponsors and elite leagues seeking
to enroll A.B. to play basketball. Following his mother’s testimony, A.B. stated that Terry
stopped reaching out to him and B.B. after the Las Vegas incident and that he has not talked with
Terry since Las Vegas except at the DEC hearing. During the SEC hearing, one of the Plaintiffs’
attorneys requested that the UIL Defendants ask Jennifer and A.B. about the abuse, but the
UIL Defendants did not follow up with any questions other than to ask when the Las Vegas
incident occurred.
At the SEC hearing, Coach Schnell acknowledged that Jennifer and Peavy
were dating but believed that Jennifer, Terry, and A.B. had discussed the possibility of A.B.
transferring to Duncanville in 2019. Schnell admitted that he sent a text to Jennifer in which he
stated that he was disappointed that A.B. was leaving Coppell but wished A.B. “all the best.”
2
During Jennifer’s testimony, Terry, Schnell, and Pehl texted among one another
regarding her statements. In one of those communications, Pehl told Terry, “She moved 28
miles. If all this is true (ha-ha), how did that make her safe? You live in Fort Worth.”
7
Schnell emphasized that Peavy and Jennifer are not married so the move cannot be justified
on that basis. Terry testified that he was blindsided by the decision to move A.B. Terry
acknowledged that he yelled at and “pushed [A.B.] in the head” in Las Vegas, and he stated that
A.B. had been unhappy at Coppell High School and discussed going somewhere else.
During the closing argument by one of the Plaintiffs’ attorneys, one UIL
Defendant repeatedly interrupted and told the attorney to wrap up the argument. At the end of
the hearing, the panel unanimously voted to deny the appeal.
Following the ruling by the SEC, the Plaintiffs sued the UIL Defendants in
their official capacities as SEC members. In their petition, the Plaintiffs sought a temporary
injunction enjoining the UIL Defendants from enforcing against A.B. UIL Rule 443, which
renders students ineligible to participate in UIL athletics if they transfer for athletic purposes,
and from enforcing the SEC decision declaring A.B. ineligible to participate in athletics in
Duncanville. Further, the Plaintiffs sought a declaration that the UIL Defendants violated the
due-course-of-law provision of the Texas Constitution by failing to provide a fair hearing in front
of the SEC. See Tex. Const. art. I, § 19. In addition, the Plaintiffs sought a declaration regarding
the constitutionality of UIL Rule 443. The Plaintiffs also sought a declaration that the UIL
Defendants violated their right to free speech under the Texas Constitution by considering
whether they previously criticized or expressed frustration with the Coppell coaches when
deciding if A.B. transferred for an athletic purpose. See id. art. I, § 8. Finally, the Plaintiffs
sought a declaration that the UIL Defendants violated the equal-protection provision of the Texas
Constitution by treating them differently based on Jennifer’s marital status. See id. art. I, § 3.
The UIL Defendants filed a response to the request for a temporary injunction and
a plea to the jurisdiction. The UIL Defendants asserted that the Plaintiffs failed to plead viable
8
constitutional claims against them, that the alleged facts and attached evidence did not suggest
any constitutional violations, and that, therefore, Jennifer’s claims were barred by sovereign
immunity. Accordingly, the UIL Defendants urged the trial court to grant their plea to the
jurisdiction and dismiss the Plaintiffs’ claims. Building on those assertions, the UIL Defendants
also asserted that the Plaintiffs’ request for a temporary injunction should be denied, arguing that
the Plaintiffs could not establish probable, imminent, and irreparable injuries entitling them to
injunctive relief. The Plaintiffs then filed a response in opposition to the plea to the jurisdiction,
contending that the trial court had jurisdiction over their claims.
The trial court held a hearing to consider the Plaintiffs’ request for a temporary
injunction and the UIL Defendants’ plea to the jurisdiction. At the hearing, several witnesses
testified, including Jennifer, A.B., Peavy, and one of Jennifer’s friends, and portions of a
deposition by Director Pehl were read into the record. In addition, the trial court admitted into
evidence multiple exhibits offered by the Plaintiffs, including transcripts of the DEC and SEC
hearings, the transcript of Pehl’s deposition, the PAPF, and copies of text messages from
Jennifer, Terry, and Schnell.
Jennifer testified regarding her reasons for divorcing Terry, the abuse that Terry
inflicted on her during their marriage, the threats that Terry made to her and her family after the
divorce, the incident in Las Vegas, her decision to move to Duncanville following that incident
for the safety of her children, and the incidents that occurred after the move. Further,
Jennifer discussed how Coach Schnell focused on her marital status during the SEC hearing.
Additionally, Jennifer mentioned that the UIL Defendants did not ask her any questions about
Terry’s abuse. Jennifer also characterized the SEC hearing as unfair because she and A.B. were
only given a limited opportunity to speak, because her attorneys were prevented from making an
9
opening statement and from questioning witnesses, and because the SEC panel relied on her
marital status when considering the appeal. Finally, Jennifer testified that the SEC decision and
ensuing media coverage called into question her reputation in the community and implied that
she lied about the abuse and the reason for the move, and the trial court admitted into evidence a
newspaper article that had been written about the SEC hearing.
A.B. similarly testified about the incident in Las Vegas, about how he had
intended to finish his senior year in Coppell, about how Jennifer decided to move the family to
protect them from Terry, about how Peavy did not attempt to recruit him, about how the UIL
Defendants did not question Terry about the abuse, about how they were not allowed to question
Terry about the abuse, and about how he did not really have an opportunity to speak during the
SEC hearing. Additionally, A.B. explained that he believed that the decision by the SEC would
have been different if he had been given the opportunity to explain that the move was for safety
reasons and that he believed Jennifer’s marital status and their family status played a role in
the SEC panel’s eligibility determination. Further, A.B. testified that his reputation as a loyal
and honest person has been undermined by the SEC determination and various resulting news
articles. One of Jennifer’s friends testified similarly regarding Jennifer’s and A.B.’s reputations
for loyalty and honesty and regarding how the SEC’s decision and ensuing media coverage
portrayed them as dishonest and disloyal.
Peavy testified regarding the incidents of abuse involving Terry and threats that
Terry made to him and his family. Additionally, Peavy explained that the family intended for
A.B. to go to Coppell High School his senior year before the incident in Las Vegas. Further,
Peavy denied recruiting A.B. or pressuring Jennifer to move so that A.B. could play at
Duncanville High School and related that A.B. had been happy playing basketball in Coppell.
10
After considering the testimony, evidence, and argument presented during the
hearing, the trial court issued an order denying the UIL Defendants’ plea to the jurisdiction and
granting the Plaintiffs’ request for a temporary injunction.
DISCUSSION
In their first issue on appeal, the UIL Defendants contend that the trial court
erred by denying their plea to the jurisdiction. Essentially, the UIL Defendants argued that the
Plaintiffs’ claims are barred by sovereign immunity because the claims are not viable and
because the evidence did not create a fact issue about whether the claims were barred by
immunity. In their second issue on appeal, the UIL Defendants assert that the trial court abused
its discretion when it granted Plaintiffs’ request for a temporary injunction.
Plea to the Jurisdiction
Standard of Review
A plea to the jurisdiction is a procedural mechanism “through which a party may
challenge a trial court’s authority to decide the subject matter” of a cause of action. Texas Dep’t
of State Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d).
A plea to the jurisdiction “may challenge the pleadings, the existence of jurisdictional facts, or
both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). Appellate
courts review de novo a trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Ins. v.
Texas Ass’n of Health Plans, 598 S.W.3d 417, 420 (Tex. App.—Austin 2020, no pet.).
“If a plea ‘challenges the pleadings, we determine if the pleader has alleged facts
that affirmatively demonstrate the court’s jurisdiction to hear the cause.’” Texas Dep’t of Crim.
Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020) (quoting Texas Dep’t of Parks & Wildlife v.
11
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). “In determining whether the plaintiff has met that
burden, ‘we liberally construe the pleadings, taking all factual assertions as true and looking to
[the plaintiff’s] intent.’” Id. (quoting City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589,
590 (Tex. 2015)). “[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do.” Miranda, 133 S.W.3d at 227
(citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). “[I]n a case in which
the jurisdictional challenge implicates the merits of the plaintiffs’ cause of action and the plea to
the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a
fact issue exists.” Id. “If the evidence creates a fact question regarding the jurisdictional issue,
then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by
the fact finder.” Id. at 227-28. “[I]f the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law.” Id. at 228.
“Sovereign immunity implicates a trial court’s subject matter jurisdiction and
‘thus is properly asserted in a plea to the jurisdiction.’” Rangel, 595 S.W.3d at 205 (quoting
Miranda, 133 S.W.3d at 226). Generally speaking, sovereign immunity deprives courts of
subject-matter jurisdiction over suits against the State or its agencies. See Balquinta, 429 S.W.3d
at 738. In other words, there is no right to judicial review of an order by a governmental entity
“unless a statute provides a right or unless the order adversely affects a vested property right or
otherwise violates a constitutional right.” Continental Cas. Ins. Co. v. Functional Restoration
Assocs., 19 S.W.3d 393, 397 (Tex. 2000). “Sovereign immunity extends to state officials acting
in their official capacity.” Machete’s Chop Shop, Inc. v. Texas Film Comm’n, 483 S.W.3d 272,
12
278 (Tex. App.—Austin 2016, no pet.). If a state official files a plea to the jurisdiction, the
official may invoke the sovereign immunity held by the government itself because a suit against
a state official is merely an alternative way of filing suit against the entity to which the official
belongs. Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007).
“[I]n certain narrow instances, a suit against a state official can proceed even in
the absence of a waiver of immunity if the official’s actions are ultra vires.” Hall v. McRaven,
508 S.W.3d 232, 238 (Tex. 2017). Under the ultra vires exception to sovereign immunity, a
plaintiff may file suit to compel a government official “to comply with statutory or constitutional
provisions” through prospective declaratory or injunctive relief. City of El Paso v. Heinrich,
284 S.W.3d 366, 372, 376 (Tex. 2009); see LMV-AL Ventures, LLC v. Texas Dep’t of Aging &
Disability Servs., 520 S.W.3d 113, 125 (Tex. App.—Austin 2017, pet. denied). To fall within
this exception, the plaintiff must allege “that the officer acted without legal authority or failed to
perform a purely ministerial act.” Heinrich, 284 S.W.3d at 372.
An allegation that a government official violated an individual’s constitutional
rights is “an allegation that the officer acted ultra vires, that is, in conflict with the law
constraining his discretion.” Caleb v. Carranza, 518 S.W.3d 537, 542 (Tex. App.—Houston
[1st Dist.] 2017, no pet.). If a plaintiff seeks to vindicate a constitutional right, “immunity from
suit is not waived if the constitutional claims are facially invalid.” Klumb v. Houston Mun.
Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015). “[I]f the claimant is attempting to restrain
a state officer’s conduct on the grounds that it is unconstitutional, it must allege facts that
actually constitute a constitutional violation.” Creedmoor-Maha Water Supply Corp. v. Texas
Comm’n on Env’t Quality, 307 S.W.3d 505, 516 (Tex. App.—Austin 2010, no pet.). “A court
has no jurisdiction over an ultra vires claim that fails as a matter of law.” McLane v. Thomas,
13
No. 03-18-00439-CV, 2020 WL 1073775, at *9 (Tex. App.—Austin Mar. 6, 2020, pet. denied)
(mem. op.).
Due Course of Law
In their live petition, the Plaintiffs asserted that the UIL Defendants violated the
due-course-of-law provisions of the Texas Constitution, which provide that “[n]o citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disenfranchised, except by the due course of the law of the land.” Tex. Const. art. 1, § 13; see
also id. art. 1, § 19 (explaining that and that “[a]ll courts shall be open, and every person for an
injury done him, in his . . . reputation, shall have remedy by due course of law”). Essentially, the
Plaintiffs contended that their liberty interests were implicated by the UIL Defendants’
determination regarding A.B.’s eligibility, that they were denied a fair hearing before the SEC,
and that procedural safeguards could have been employed that would not have a substantial
impact on future UIL determinations. In response, the UIL Defendants argued that the UIL
determination did not implicate the Plaintiffs’ liberty interests, that the Plaintiffs received
adequate due process, and that any procedural defect would not have entitled A.B. to be eligible
to play.
Although the Texas Constitution refers to “due course of law” rather than “due
process” as in the federal Constitution, courts have recognized that those terms do not have a
meaningful distinction and, therefore, follow contemporary cases addressing federal due-process
issues. Mosley v. Texas Health & Hum. Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019). In
reviewing a due-process challenge, courts must determine if the claimants have a property or
liberty interest that warrants procedural due-process protection and, if so, what process is due.
14
Id. Liberty interests include the right to “establish a home and bring up children,” Board of
Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972) (noting that term “‘liberty’ must be
broad indeed”), as well as “a person’s good name, reputation, honor, or integrity,” University of
Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995).
As highlighted by the UIL Defendants, courts have determined that parents have
rights regarding the type of education that their children receive but do not have liberty interests
in “particular components of that education, such as participation in interscholastic athletics.”
Cornerstone Christian Sch. v. University Interscholastic League, 563 F.3d 127, 136 (5th Cir.
2009); see Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir. 2005). However,
the Plaintiffs did not assert a liberty interest in an education component and instead pleaded that
Jennifer has a liberty interest in determining the care, custody, and control of her children and
the right to control their education. “[T]he interest of parents in the care, custody, and control
of their children—is perhaps the oldest of the fundamental liberty interests recognized by”
courts. Troxel v. Granville, 530 U.S. 57, 65 (2000). Further, the Plaintiffs pleaded that the UIL
Defendants’ decision implicated their liberty interests in their good name, reputation, honor, and
integrity. See Roth, 408 U.S. at 573 (observing that where person’s name, reputation, honor, or
integrity is impacted by what government is doing, opportunity to be heard is essential); see also
Goss v. Lopez, 419 U.S. 565, 575 (1975) (noting that suspension deprived students of liberty
interest to their reputation with their fellow students and their teachers).
During the hearing in the trial court, Jennifer testified regarding Terry’s abusive
behavior toward her and her family and regarding how she decided to move to keep her children
safe after Terry abused A.B. in Las Vegas. Similarly, A.B. testified at the hearing that Jennifer
decided to move because she felt as though her children’s “safety was jeopardized with [Terry]
15
knowing where” the family lived and wanted to move her family away from Terry to keep them
safe. Peavy also testified that Jennifer did not want to move prior to the Las Vegas incident.
At the hearing, Jennifer explained that the SEC determination as reflected in the
ensuing media coverage indicated that the UIL Defendants did not believe her claims about her
desire to move because of Terry’s abusive conduct and that she lied about her reason for the
move. Similarly, A.B. testified that the UIL Defendants’ decision injured his reputation for
loyalty and honesty and that news articles written about the case made his family seem like
liars. Further, one of Jennifer’s friends testified that Jennifer had been portrayed as dishonest
and disloyal. At the hearing, the trial court admitted into evidence an article by a Texas
newspaper describing her testimony about the abuse and explaining that the UIL Defendants
were “not sway[ed]” by her “[c]laims of domestic violence” and concluded that A.B. moved for
athletic purposes.
On appeal, the UIL Defendants contend that the Plaintiffs’ reputational claims
fail as a matter of law and did not plead a deprivation of a protected liberty interest in their
reputations because the UIL Defendants did not publicly make a false charge that would give
rise to a “badge of infamy” or subject the Plaintiffs to “public scorn.” See Blackburn v. City of
Marshall, 42 F.3d 925, 936 (5th Cir. 1995) (quoting Wells v. Hico Indep. Sch. Dist., 736 F.2d 243,
256 & n.16 (5th Cir. 1984)). Instead, the UIL Defendants contend that they simply declared that
the Plaintiffs had failed to meet their burden of establishing that the transfer was not for athletic
purposes. Further, the UIL Defendants contend that the contents of the newspaper story were the
16
reporter’s interpretation of the SEC determination and did not reflect any commentary by the
UIL Defendants.3
However, the Plaintiffs are not alleging that the UIL Defendants made a public
statement or comment to a newspaper about them; rather, the Plaintiffs are alleging that the
UIL Defendants failed to provide adequate due process during the SEC hearing, resulting in a
determination contradicting the Plaintiffs’ alleged basis for transferring schools and injuring their
liberty interests. The Texas Supreme Court has determined that similar agency determinations
made without sufficient due process implicate protected liberty interests. See Than, 901 S.W.2d
at 930 (concluding that medical student charged with academic dishonesty had “a constitutionally
protected liberty interest in his graduate education that must be afforded procedural due
process”). Moreover, the Plaintiffs do not base their due-process claim on the alleged
reputational injury alone but also on how the stigma stemming from the UIL’s decision
implicated Jennifer’s “ability to make decisions about child rearing”—including ensuring the
safety of her children—“education, and family relationships without government intrusion.” See
University Interscholastic League v. Hatten, No. 03-03-00691-CV, 2004 WL 792328, at *2 (Tex.
App.—Austin Apr. 15, 2004, no pet.) (mem. op.) (discussing in temporary-injunction context
3
In their brief, the UIL Defendants urge that one of our sister courts of appeals rejected a
claim that the type of injury alleged in this case warranted protection. See Hatten v. University
Interscholastic League, No. 13-06-00313-CV, 2007 WL 2811833 (Tex. App.—Corpus Christi-
Edinburg Sept. 27, 2007, pet. denied) (mem. op.). In that case, our sister court did not determine
that reputational injuries stemming from UIL rulings regarding eligibility determinations could
not support a due-process claim; instead, the court determined (1) that the appeal was moot
because one of the students had graduated and because the other student’s period of ineligibility
had expired and (2) that the collateral-consequences exception to the mootness doctrine did not
apply because the consequences from the UIL’s ruling on the students’ eligibility determination
were minor when compared with the stigmatizing effects in other contexts that have supported a
conclusion that the exception should apply. Id. at *4.
17
how claim regarding “stigmatizing effect of the UIL’s actions” when ruling student ineligible
implicated parents’ liberty interests).
Based on the preceding, we conclude that the Plaintiffs pleaded a liberty interest
that warrants due-process protection. Cf. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150,
157 (5th Cir. 1961) (concluding that students expelled from state university for misconduct have
interest in continuing education at college at which they were in good standing that is entitled to
due process), abrogation on other grounds recognized by Walsh v. Hodge, 975 F.3d 475 (5th Cir.
2020). Having made that determination, we must now address the Plaintiffs’ claims regarding
the process that was due.
At a minimum, due process requires notice and an opportunity to be heard in a
meaningful manner and at a meaningful time. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
The process due is a flexible standard that depends on the requirements of the circumstances. Id.
at 334. The following three factors are considered in this flexible standard:
(1) the private interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and (3)
the government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
Than, 901 S.W.2d at 930.
Regarding the private interest that will be affected, as discussed earlier, the
Plaintiffs alleged that the UIL Defendants’ determination impacted the Plaintiffs’ fundamental
liberty interest regarding their reputations and regarding the care of their family, see Troxel,
530 U.S. at 65, including Jennifer’s right to provide for the safety of her children without
government interference, see Hatten, 2004 WL 792328, at *2.
18
Regarding the risk of an erroneous deprivation of that right, the Plaintiffs pleaded,
among other things, that the UIL Defendants failed to comply with the procedural requirements
found in the UIL’s rules for SEC hearings and that this noncompliance deprived the Plaintiffs of
the opportunity to be heard in a meaningful manner. See Than, 874 S.W.2d 839, 851 (Tex.
App.—Houston [1st Dist.] 1994) (noting that failure to comply with agency rules is not per se
violation of due process but observing that failure to follow rules can result in due-process
violation). For example, the Plaintiffs noted that UIL Rule 100 allows parties to be represented
by counsel during an SEC hearing and allows attorneys representing parties to, among other
things, request that the SEC panel “pose certain questions or lines of inquiry to another party or
witnesses” and “make opening and closing statements on behalf of their client(s).” Further,
the Plaintiffs asserted that the UIL Defendants failed to comply with the requirements of that
Rule by refusing to ask the Plaintiffs about the assault by Terry despite the request from their
attorney, by prohibiting the Plaintiffs’ attorney from making an opening statement, and by
curtailing the Plaintiffs’ attorney’s closing arguments. Additionally, the Plaintiffs contended that
the process provided by the UIL Defendants in this case prohibited the Plaintiffs from an
opportunity to be meaningfully heard on the issue of whether they moved for reasons other
than an athletic purpose.
As support for these assertions, the Plaintiffs referred to portions of the transcript
from the SEC hearing. At the beginning of the hearing, the Plaintiffs’ attorney attempted to
provide an opening statement regarding the history of domestic abuse in the family, but one of
the UIL Defendants repeatedly interrupted the attorney and directed the attorney to stop speaking
on the matter and explained that he was “warning” the attorney about continuing to speak.
Moreover, during the closing argument by one of the Plaintiffs’ attorneys, one UIL Defendant
19
repeatedly told the attorney to wrap up the argument. Further, one of the Plaintiffs’ attorneys
asked the UIL Defendants to question Jennifer and A.B. about the allegations of abuse, including
the incident in Las Vegas, and about how the abuse formed the basis for the transfer, but the UIL
Defendants posed no questions to either of the Plaintiffs or to Terry about the details of the abuse
other than to ask when the Las Vegas incident occurred. Cf. Flaim v. Medical Coll. of Ohio,
418 F.3d 629, 636 (6th Cir. 2005) (noting in expulsion context that accused student generally
has right to respond and defend, including ability to make statement and present evidence).
Additionally, when Jennifer tried to explain the nature of the abuse and how it prompted her
decision to move, one UIL Defendant suggested that the panel was not going to give much
weight to the subject matter.
Turning to the government’s interest, we note that the mission of the UIL is
best served by ensuring that an accurate determination is made regarding whether a student
transferred for athletic purposes. Cf. In re L.N.C., 573 S.W.3d 309, 322 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied). Moreover, as set out above, the Plaintiffs alleged, among
other things, that their due-process rights were violated because the UIL Defendants did not
comply with the process required by the UIL Rules and, accordingly, did not provide the
Plaintiffs with a meaningful opportunity to be heard. Requiring the UIL Defendants to comply
with those requirements would not impose additional fiscal or administrative burdens. Further,
the Plaintiffs alleged that any additional safeguards that might be deemed necessary would
not impose significant burdens. Consistent with that proposition, the Plaintiffs referred to a
Sunset Advisory Commission report explaining that additional procedural safeguards for
UIL determinations would not have a fiscal impact and could be accomplished with existing
UIL resources. See Sunset Advisory Commission, Staff Report with Final Results: University
20
Interscholastic League (July 2015), at 22, available at https://www.sunset.texas.gov/public/
uploads/files/reports/Final%20Results%20UIL%20book.pdf (last visited April 29, 2022).
In light of the preceding, we conclude that the Plaintiffs pleaded a facially valid
claim that the process provided by the SEC hearing was insufficient and that the evidence
presented before the trial court established that there is a fact question regarding whether the
process that was provided was sufficient.
On appeal, the UIL Defendants contend that the Plaintiffs’ complaints about the
SEC hearing must fail because that was the second hearing, because due process need only
be provided once, and because the Plaintiffs did not raise any procedural issue with the DEC
hearing, referring to the appeal before the SEC as a gratuitous hearing that requires no process.
As support for this proposition, the UIL Defendants refer to an opinion by our sister court of
appeals that we believe is distinguishable because it explains that due-process complaints
regarding an initial hearing can be cured if due process is provided at a subsequent hearing. See
United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 126-27 (Tex. App.—San Antonio 1995,
writ denied).4 The Gonzalez court did not determine that due-process violations in the final
review of an initial decision may not serve as a basis for a due-process claim and did not suggest
that a trial court would have no jurisdiction to consider those types of violations. In any event,
that case is not binding on this Court, see HWY 3 MHP, LLC v. Electric Reliability Council of
Tex., 462 S.W.3d 204, 211 n.4 (Tex. App.—Austin 2015, no pet.) (explaining that analysis from
4
The UIL Defendants also refer to several federal circuit decisions addressing due-
process rights in the high-school-suspension and college-expulsion contexts. See, e.g., Brewer v.
Austin Indep. Sch. Dist., 779 F.2d 260, 263 (5th Cir. 1985); Smith v. Severn, 129 F.3d 419, 429
(7th Cir. 1997); Winnick v. Manning, 460 F.2d 545, 549 n.5 (2d Cir. 1972). However, those
cases are not binding on this Court. See Charleston v. Allen, 420 S.W.3d 134, 137 n.6 (Tex.
App.—Texarkana 2012, no pet.) (recognizing that “opinions of the federal circuits are not
binding on state courts”).
21
sister court of appeals is not binding precedent), and any persuasive authority stemming from
this case is undermined by the fact that this Court has previously determined that similar
allegations could support a due-process claim, see Hatten, 2004 WL 792328, at *3.
When arguing that the Plaintiffs’ claim fails, the UIL Defendants contend that the
claim and requested declaratory relief are improper as a matter of law because the remedy for
the denial of due process is due process. As support for that proposition, the UIL Defendants
refer to Than, in which a medical student was dismissed from school for academic dishonesty
following disciplinary proceedings. 901 S.W.2d at 928. The student then filed suit alleging that
the medical school “violated his right to procedural due process under the due course of law
guarantee of the Texas Constitution.” Id. The trial court issued a temporary injunction pending
trial and ultimately granted a permanent injunction following trial ordering the medical school
to perform certain acts related to the student’s status. Id. at 928, 929. On appeal, the Texas
Supreme Court concluded that the medical school did not afford the student due process
when making the disciplinary decision to expel him. Id. at 933. The Supreme Court then
concluded that the permanent injunction exceeded the proper remedy of a fair hearing regarding
the disciplinary charges. Id. at 934. Although the Supreme Court modified portions of the
permanent injunction “pending a new hearing on the charge of academic dishonesty,” it vacated
the remainder of the permanent injunction. Id.
We believe that the procedural posture of Than distinguishes that case from the
one here. Than involved an appeal regarding the propriety of a permanent injunction. Here, no
permanent injunction has been issued, and no trial has yet been held. Moreover, we do not read
Than as standing for the proposition that the failure to specifically request at this preliminary
juncture for the trial court to order that a new SEC hearing or another hearing be held somehow
22
deprives the trial court of jurisdiction over the Plaintiffs’ ultra vires claim that the UIL
Defendants violated their due-course-of-law rights. Cf. Trauth v. K.E., 613 S.W.3d 222, 225-26,
232 (Tex. App.—Austin 2020, pet. granted) (noting that plaintiff sought declarations that
university officials’ conduct was ultra vires and violated her due-process rights by revoking her
previously awarded degree and concluding that requested injunctive relief ordering officials to
reinstate her degree was proper prospective injunctive relief limited to restraining ultra vires act
and did not implicate sovereign immunity).
For these reasons, we conclude that the Plaintiffs have properly pleaded an ultra
vires claim against the UIL Defendants by alleging that they violated the Plaintiffs’ due-course-
of-law rights when making A.B.’s eligibility determination and that the evidence presented
during the hearing before the trial court establishes a fact question regarding the jurisdictional
issue of whether the UIL Defendants acted ultra vires. Accordingly, we conclude that the trial
court properly determined that it had jurisdiction over this claim and denied the UIL Defendants’
plea with respect to this claim.
Free Speech
In filing suit against the UIL Defendants, the Plaintiffs alleged that the UIL
Defendants violated the free-speech provision of the Texas Constitution, which guarantees that
“[e]very person shall be at liberty to speak, write or publish his opinions on any subject” and that
“no law shall ever be passed curtailing the liberty of speech.” See Tex. Const. art. 1, § 8. As
support for this proposition, the Plaintiffs presented evidence showing that the PAPF reflected
that there was conflict among A.B., his parents, and the athletic supervisors for Coppell High
School and that Rule 443 lists unhappiness with former coaches as a common indicator of
23
a transfer being for an athletic purpose. Further, the Plaintiffs referenced Coach Schnell’s
testimony at the DEC that prior comments made by the Plaintiffs expressing dissatisfaction with
his coaching showed that they intended to move for an impermissible athletic purpose, pointing
to a text message that he received from Jennifer during A.B.’s sophomore year in which she
stated that she was “disappoint[ed]” by A.B.’s being placed on the second all-district team.
Additionally, the Plaintiffs referenced Schell’s testimony before the DEC in which he testified
that he indicated on the PAPF that there was dissatisfaction because there was a “constant cloud
of dissatisfaction about [A.B.’s] role,” about how he was being coached, about his lack of
exposure, and about his lack of offers while playing in Coppell. In light of the preceding, the
Plaintiffs contend that to the extent that the UIL Defendants’ decision regarding A.B.’s eligibility
was based on prior expressions of dissatisfaction, the UIL Defendants’ actions burdened
Plaintiffs’ “free-speech rights with respect to expressing those feelings.”
When alleging that their right to free speech was impermissibly burdened, the
Plaintiffs did not assert that communications evidencing dissatisfaction with coaching staff or
decisions by coaching staff can have no bearing on whether a transfer was made for athletic
purposes; instead, the Plaintiffs essentially argue that the UIL Defendants’ consideration of those
types of statements as part of its decision making, even if relevant to the ultimate question,
contravened the Plaintiffs’ right to make them. In their appellees’ brief, the Plaintiffs concede
that certain types of statements, such as ones directly asserting that a parent will remove his or
her child from school if the child does not have more playing time, could properly be considered
when making eligibility determinations; however, they assert that the communications at issue
have no relationship to the move and happened well before the move. Moreover, the Plaintiffs
contend that the use of these types of communications could have a chilling effect on the ability
24
of parents and students to criticize coaches as evidenced by their testimony that they were
hesitant to make any further criticism regarding coaching decisions for fear that A.B. would be
retaliated against. In response, the UIL Defendants assert that even if the Plaintiffs’ comments
were considered as part of the decision process, the use of speech as evidence of motive and
intent does not improperly burden the right to free speech.
The Supreme Court of the United States has explained in the criminal context that
the right to free speech “does not prohibit the evidentiary use of speech . . . to prove motive or
intent,” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993), and federal courts have applied this
legal principle in the civil context, see Whitaker v. Thompson, 353 F.3d 947, 953 (D.C. Cir.
2004) (rejecting argument that claims about product were protected speech and explaining that
“the use of speech to infer intent . . . is constitutionally valid”); see also Smolla & Nimmer on
Freedom of Speech § 13.5 (noting that speech may be used to establish existence of illegal
motive regarding treatment of employee).
Even though the Texas Supreme Court has commented that the free-speech
provision of the Texas Constitution can be broader than the First Amendment in certain contexts,
see Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000), it has also explained that
nothing in the language or purpose of the Texas provision authorizes courts “to afford greater
weight in the balancing of interests to free expression than [they] would under the First
Amendment,” Bentley v. Bunton, 94 S.W.3d 561, 578 (Tex. 2002) (quoting Ex parte Tucci,
859 S.W.2d 1, 32 (Tex. 1993) (orig. proceeding) (Phillips, C.J., concurring)). Further, Texas
courts have explained that cases addressing the First Amendment are persuasive authority for
addressing claims under the Texas provision. See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex.
1992). The Plaintiffs did not attempt to show that the state constitutional provision affords any
25
greater protection than the First Amendment does, see Bentley, 94 S.W.3d at 578, and Texas
cases have explained that the constitutional protection of free speech “is not a per se barrier to
the admission of evidence protected by it” and that this type of evidence is “admissible if it is
shown to be relevant to the issues involved in the case,” Martin v. State, 570 S.W.3d 426, 439
(Tex. App.—Eastland 2019, pet. ref’d).
The statements at issue logically bear upon whether A.B.’s transfer was for
athletic purposes by helping to potentially establish, among other things, that he intended to
switch schools to achieve a better role or receive better treatment on a new team, and the UIL
Defendants’ alleged consideration of that evidence for the limited purpose of determining A.B.’s
eligibility did not contravene the Plaintiffs’ free-speech rights. Accordingly, the Plaintiffs’
allegations that the UIL Defendants contravened their free-speech rights by considering their
prior communications do not plead a facially valid constitutional claim.5
For these reasons, we conclude that the trial court erred by denying the UIL
Defendants’ plea to the jurisdiction as to the Plaintiffs’ free-speech claim. Moreover, because
the Plaintiffs had the opportunity to respond to the UIL Defendants’ plea to the jurisdiction
before the trial court ruled but still did not allege a facially valid constitutional claim and because
the Plaintiffs have made no suggestion as to how the jurisdictional defect could be cured or asked
for an opportunity to replead, they are not entitled to an opportunity to replead this claim. See
Koseoglu, 233 S.W.3d at 840 (determining that remanding for opportunity to replead would
5
On appeal, the Plaintiffs refer to a recent case by the Supreme Court of the United
States as support for their argument that the trial court had jurisdiction over their free-speech
claim. See Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2042-43 (2021). However, in that
case, the Court determined that the suspension of a student from her cheerleading team after she
criticized the school and cheerleading team in Snapchat speech that “took place outside of school
hours and away from the school’s campus” violated her First Amendment rights. Id. The case
before us presents entirely different facts and issues.
26
serve no legitimate purpose because alleging additional facts will not overcome immunity from
suit); Miranda, 133 S.W.3d at 227, 231 (noting that suit should be dismissed when pleadings
demonstrate that suit incurably falls outside any waiver of immunity and observing that parties
had opportunity to amend their pleadings and did so and were not entitled to another opportunity
to replead); see also Ogueri v. Texas S. Univ., No. 01-10-00228-CV, 2011 WL 1233568, at *6
n.6 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (observing that plaintiff
did not ask for opportunity to replead on appeal and, therefore, not addressing whether plaintiff
should be given opportunity to replead); Haddix v. American Zurich Ins. Co., 253 S.W.3d 339,
347 (Tex. App.—Eastland 2008, no pet.) (concluding that trial court did not err by failing to give
plaintiff opportunity to replead where he never explained “what he could plead that would
address any of the jurisdictional challenges”).
Equal Protection
At the trial court, the Plaintiffs also urged a claim under the equal-protection
provision of the Texas Constitution, which provides that all people “have equal rights, and no
man, or set of men, is entitled to exclusive separate public emoluments, or privileges.” Tex.
Const. art. 1, § 3. “To state a viable equal-protection claim under the Texas Constitution, the
Petitioners must show they have been ‘treated differently from others similarly situated.’” Klumb,
458 S.W.3d at 13 (quoting Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 647
(Tex. 2004)).
The Plaintiffs alleged that the UIL Defendants relied on their statuses as a
divorced and not-yet remarried mother and a child of divorced parents and treated them
differently because of those statuses when determining A.B.’s eligibility. As support for this
27
allegation, the Plaintiffs pointed to portions of the record from the DEC hearing in which Coach
Schnell noted multiple times that Jennifer and Peavy had a dating relationship but were not
married and in which one of the DEC panelists asked Peavy if he was married to Jennifer after
Peavy described A.B. as his stepson. Next, the Plaintiffs referred to portions of the record from
the SEC hearing in which Schnell repeated similar statements about how Jennifer and Peavy
were not married. Further, the Plaintiffs noted that during the SEC hearing one of the UIL
Defendants asked Jennifer how long she had dated and lived with Peavy and later responded,
“Okay,” after Schnell finished a portion of his testimony stating that Jennifer and Peavy were not
married and responded, “Mighty good,” shortly thereafter when Director Pehl stated that he did
not have anything to add to Schnell’s testimony.
As an initial matter, we note that most of the evidence highlighted by the
Plaintiffs involved conduct by individuals other than the UIL Defendants. See Gonzalez,
911 S.W.2d at 124 (noting that plaintiff’s claims addressed actions by school employees and did
not address conduct of reviewing board or implicate board’s decision-making process); see also
Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 91, 93 (Tex. 1997) (noting that state action is
required for claim regarding deprivation of right secured by equal-rights guarantee).
Although one of the UIL Defendants did ask Jennifer how long she had dated
Peavy when obtaining background information, nothing in that exchange indicated that
Jennifer’s answer served as a basis for the SEC’s decision or that the decision would have been
different if she had been married to Peavy. Additionally, even though one of the UIL Defendants
responded, “Okay,” after Schnell finished a portion of his testimony discussing how Peavy and
Jennifer were not married, Schnell testified on other topics related to the transfer as well, and the
panelist regularly responded, “Okay,” after witnesses answered a question, including one time in
28
which he thanked Jennifer for her testimony. Similarly, although that UIL Defendant responded,
“Mighty good,” when Pehl indicated that he did not have anything to add, he made the same
response when another witness explained that he also had nothing to add. Moreover, nothing in
the record from the SEC hearing indicates that the UIL Defendants improperly based their
decision on the Plaintiffs’ family status or treated them differently from others similarly situated.
Cf. Texas Utils. Elec. Co. v. Public Util. Comm’n, 881 S.W.2d 387, 391 (Tex. App.—Austin
1994) (recognizing “a presumption of honesty and integrity in those serving as adjudicators”),
rev’d in part on other grounds, 935 S.W.2d 109 (Tex. 1996).6 Additionally, the letter the UIL
Defendants sent to Jennifer informing her of their decision did not indicate that the Plaintiffs’
family status was something they considered when making their determination or that the
Plaintiffs were treated differently from others similarly situated.
In light of the preceding, we conclude that the evidence fails to create a fact
question regarding whether the UIL Defendants acted ultra vires by violating the Plaintiffs’
equal-protection rights and, accordingly, that the trial court erred by denying the UIL
Defendants’ plea to the jurisdiction with respect to the Plaintiffs’ equal-protection claim. Cf.
Texas Dep’t of Aging & Disability Servs. v. Loya, 491 S.W.3d 920, 928 (Tex. App.—El Paso
2016, no pet.) (determining that plaintiff failed to present evidence raising fact issue and
reversing trial court’s order denying plea to jurisdiction). Moreover, because the Plaintiffs had
6
The Plaintiffs contend on appeal that the UIL Defendants should not be entitled to a
presumption of regularity like the agency members in Texas Utilities Electric Co. v. Public
Utility Commission because the agency members in that case were subject to the Administrative
Procedure Act and because the UIL Defendants are not. See 881 S.W.2d 387, 390 (Tex. App.—
Austin 1994), rev’d in part on other grounds, 935 S.W.2d 109 (Tex. 1996); see University
Interscholastic League v. Southwest Offs. Ass’n, Inc., 319 S.W.3d 952, 965 (Tex. App.—Austin
2010, no pet.). However, nothing in Texas Utilities would appear to compel a determination that
the presumption does not apply to adjudicators outside the context of the Administrative
Procedure Act.
29
the opportunity to respond to the UIL Defendants’ plea to the jurisdiction before the trial court
ruled but did not allege additional facts or attach evidence creating a fact issue and because the
Plaintiffs have made no suggestion regarding how the jurisdictional defect could be cured or
asked for an opportunity to replead, they are not entitled to an opportunity to replead this claim.
See Koseoglu, 233 S.W.3d at 840; Miranda, 133 S.W.3d at 231; Ogueri, 2011 WL 1233568,
at *6 n.6; Haddix, 253 S.W.3d at 347; see also City of Paris v. Abbott, 360 S.W.3d 567, 583
n.13 (Tex. App.—Texarkana 2011, pet. denied) (providing that when there are “no facts
demonstrating an equal protection cause of action have been . . . asserted,” plaintiff is not entitled
to opportunity to replead claim).
Challenges to Rule 443
In their live petition, the Plaintiffs sought as part of their due-course-of-law and
free-speech claims declarations that Rule 443 is unconstitutionally vague, arbitrary, and
capricious; is not rationally related to its purported purpose; and impermissibly burdens the
exercise of free speech. Essentially, the Plaintiffs argue that Rule 443 provides insufficient
guidance regarding what is a prohibited athletic purpose and improperly allows UIL committees
to consider whether students or parents have expressed dissatisfaction with prior coaches as part
of the determination regarding whether a transfer was for athletic purposes.7 Originally, the
Plaintiffs filed suit against the UIL Defendants and the UIL, but their live pleading, including
their second amended petition and their supplement to their second amended petition, and their
response to the UIL Defendants’ plea to the jurisdiction omitted the UIL as a defendant. See
7
In the portion of its live pleading addressing Rule 443, the Plaintiffs repeat their
assertions that the UIL Defendants relied on Jennifer’s marital status when making their
determination about A.B.’s eligibility.
30
Watanabe v. Summit Path Partners, LLC, __ S.W.3d __, 2021 WL 3501542, at *14 (Tex.
App.—Houston [1st Dist.] Aug. 10, 2021, no pet.) (explaining that parties are dismissed from
suit by omission of their names from amended pleading); see also Tex. R. Civ. P. 65 (stating that
if substituted instrument is filed, “the instrument for which it is submitted shall no longer be
regarded as a part of the pleading in the record of the cause”). On appeal, the UIL Defendants
contend that the Plaintiffs were not entitled to declarations regarding the constitutionality of
Rule 443.
Unlike the Plaintiffs’ other claims challenging the UIL Defendants’ actions as
being ultra vires, the claim here challenges the propriety of Rule 443, which was passed through
procedures initiated by the UIL and not by the UIL Defendants, and the Plaintiffs have made no
argument that the procedures used to promulgate Rule 443 were not followed. See Tex. Educ.
Code § 33.084 (setting out members of UIL advisory council and specifying that advisory
council reviews UIL rules); see also id. §§ 33.0831 (providing limits on rules that would result in
additional costs to member school), .081 (providing that students enrolled in school districts are
subject to UIL rules governing extracurricular activities). Accordingly, to survive a jurisdictional
challenge, the Plaintiffs’ rule challenge must fall within a waiver of sovereign immunity
authorized by the Texas Legislature. Cf. Tooke v. City of Mexia, 197 S.W.3d 325, 342-43 (Tex.
2006) (holding that immunity is not waived absent clear legislative intent to do so).
The Texas Legislature has waived sovereign immunity regarding challenges to a
state agency’s rules under the Administrative Procedure Act and set out the process by which
those rules may be challenged, including the requirement that the agency be named as a party in
the case. See Tex. Gov’t Code § 2001.038. The definition for “state agency” under the Act
includes many governmental entities but specifically excludes “an institution of higher learning.”
31
Id. § 2001.003(7). By statute, the UIL “is a part of the University of Texas at Austin,” Tex.
Educ. Code § 33.083(b), which is an institution of higher learning, see id. § 61.003 (including
University of Texas at Austin within meaning of institution of higher education).
This Court has previously determined that “the UIL is a governmental unit subject
to sovereign immunity” but also explained that the UIL’s status as part of an institution of higher
learning means that the UIL is not subject to the limited waiver of sovereign immunity for
challenging agency rules found in the Administrative Procedure Act. University Interscholastic
League v. Southwest Offs. Ass’n, Inc., 319 S.W.3d 952, 962, 965 (Tex. App.—Austin 2010,
no pet.); see also Saenz v. University Interscholastic League, 487 F.2d 1026, 1027-28 (5th Cir.
1973) (noting that UIL was governmental entity, in part, because employees are paid by
University of Texas at Austin). The legislature has addressed suits against the UIL in section
67.26 of the Education Code. See Tex. Educ. Code § 67.26. That provision is entitled
“University Interscholastic League; Venue for Suits” and lists the proper venue for suits against
the UIL and for suits involving the UIL’s rules, but for suits involving UIL rules that provision
only mentions suits “involving the interpretation or enforcement of the rules” and does not
specifically address suits challenging the propriety or legality of those rules. See id.; see also
Tooke, 197 S.W.3d at 342-43 (explaining that waiver of immunity must be clear). Even if
section 67.26 can be read as waiving immunity for the types of rule challenges presented here,
we believe that the UIL is a necessary party for that type of challenge.
This construction is consistent with case law addressing challenges to UIL rules.
Although neither’s case addressed the issue of sovereign immunity, the Texas Supreme Court
and one of our sister courts of appeals have addressed challenges to the UIL’s rules when the
UIL was a party to the suit. Sullivan v. University Interscholastic League, 616 S.W.2d 170, 171,
32
173 (Tex. 1981); University Interscholastic League v. North Dallas Chamber of Com. Soccer
Ass’n, 693 S.W.2d 513, 514, 518 (Tex. App.—Dallas 1985, no writ); see also Cornerstone
Christian Schs., 563 F.3d at 135-40 (addressing constitutional challenges to UIL rule when UIL
was party); Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622-23 (Tex. 2011) (noting
distinction between governmental entity and officials as parties in sovereign-immunity context).
That requirement is consistent with legislative waivers of immunity authorizing limited
challenges to other types of laws. See, e.g., Tex. Civ. Prac. & Rem. Code § 37.006(b) (requiring
that municipality be made party to any proceeding challenging validity of municipal ordinance or
franchise); Tex. Gov’t Code § 2001.038 (requiring that agency be named as party in case
challenging agency rule).
The requirement is also consistent with this Court’s prior precedent addressing
when governmental entities are indispensable parties to a lawsuit. Under the Rules of Civil
Procedure, a party is indispensable if “in his absence complete relief cannot be accorded among
those already parties,” and trial courts should determine if the case should be dismissed if the
absent person is “indispensable.” Tex. R. Civ. P. 39(a), (b). The term “[p]erson includes . . .
government or government subdivision or agency.” Tex. Gov’t Code § 311.005(2); see also
BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied) (explaining that Code Construction Act applies to Rules of
Civil Procedure). Although it is rare, “there are parties whose presence is so indispensable to the
resolution of a cause of action that their absence can deprive a court of jurisdiction to determine
such.” Travis Heights Improvement Ass’n v. Small, 662 S.W.2d 406, 413 (Tex. App.—Austin
1983, no writ); see Preston State Bank v. Willis, 443 S.W.3d 428, 434 (Tex. App.—Dallas 2014,
pet. denied); Gilmer Indep. Sch. Dist. v. Dorfman, 156 S.W.3d 586, 588 (Tex. App.—Tyler
33
2003, no pet.). This Court has previously determined that a city is “an indispensable party” to
suits seeking to challenge the validity of the city’s ordinances and, therefore, that a trial court
lacked “jurisdiction to adjudicate the action” when the city was not a party. Small, 662 S.W.2d
at 413; see also Dorfman, 156 S.W.3d at 588 (concluding that trial court erred by denying plea to
jurisdiction because Commissioner of Education was indispensable party to suit seeking to
declare certain chapters of Education Code unconstitutional).
Similar to how a city has the authority to pass ordinances, the UIL has the
authority to promulgate rules governing extracurricular activities and interscholastic competition,
including the rule at issue, and to impose sanctions for noncompliance. See Tex. Educ. Code
§§ 33.081, .083, .091, .096, .097, .203. Accordingly, to the extent that sovereign immunity has
been waived regarding challenges to UIL rules, which we do not decide, we conclude that the
UIL is a jurisdictionally required party to any suit seeking to challenge its rules. Cf. McLane,
2020 WL 1073775, at *11-12 (Goodwin, J., concurring) (explaining that agency with authority
to adopt rules was “the proper party for appellees’ purported rule challenges” and agreeing
that appellate court correctly dismissed claims against director of agency in her official
capacity for lack of subject-matter jurisdiction); see also Texas Dep’t of Pub. Safety v. Salazar,
304 S.W.3d 896, 904 (Tex. App.—Austin 2009, no pet.) (observing that agency, not state
official, must be party to suit challenging validity of agency rule).
Therefore, we conclude that the trial court lacked jurisdiction over the Plaintiffs’
claim seeking a declaration that Rule 443 is unconstitutional and erred by denying the UIL
Defendants’ plea to the jurisdiction with respect to that claim. Moreover, even if the legislature
has waived immunity in this context, the Plaintiffs would not be entitled to replead their claim
and name the UIL as a party. See In re K.G.S., No. 14-12-00673-CV, 2014 WL 801127, at *9
34
(Tex. App.—Houston [14th Dist.] Feb. 27, 2014, no pet.) (mem. op.) (explaining that “ability to
cure [jurisdictional] defects does not extend to suing new parties” and concluding that remand to
allow opportunity to amend was not warranted); see also Ochoa v. City of Palmview, No. 13-14-
00021-CV, 2014 WL 7404594, at *9 (Tex. App.—Corpus Christi-Edinburg June 19, 2014,
no pet.) (mem. op.) (explaining that opportunity to replead to name state actor rather than
subdivision of state in ultra vires claim was not warranted); Southwest Offs. Ass’n, 319 S.W.3d
at 965 (noting that opportunity to amend pleadings does not extend to opportunity to substitute
state entity with state actor for claim otherwise barred by sovereign immunity).
For the reasons previously expressed, we sustain the portion of the UIL
Defendants’ first issue asserting that the trial court erred by denying the portions of their plea to
the jurisdiction regarding the Plaintiffs’ free-speech claim, equal-protection claim, and request
for declaratory relief regarding Rule 443, but we overrule the portion of the UIL Defendants’
first issue asserting that the trial court should have granted the portion of their plea asserting that
the trial court had no jurisdiction over the Plaintiffs’ due-course-of-law claim.
Temporary Injunction
As set out above, the UIL Defendants contend in their second issue that the trial
court erred by granting a temporary injunction in favor of the Plaintiffs, which enjoined the UIL
Defendants from enforcing Rule 443 against A.B., enforcing the SEC eligibility determination
against A.B., and taking any other actions against the Plaintiffs related to Jennifer’s decision to
move her family from Coppell to Duncanville.
Standard of Review
35
“A temporary injunction is an extraordinary remedy that does not issue as a
matter of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). “A temporary
injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial
on the merits.” Id. To obtain relief, the party applying for a temporary injunction “must plead
and prove three specific elements: (1) a cause of action against the defendant; (2) a probable
right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”
Abbott v. Anti-Defamation League Austin, Sw. & Texoma Regions, 610 S.W.3d 911, 916 (Tex.
2020) (quoting Butnaru, 84 S.W.3d at 204).
Appellate courts review a trial court’s decision to grant a temporary injunction for
an abuse of discretion. Butnaru, 84 S.W.3d at 204. “A trial court abuses its discretion if it . . .
acts arbitrarily or unreasonably.” Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69
(Tex. App.—Houston [14th Dist.] 2014, pet. denied). “[W]hen reviewing such a decision, we
must view the evidence in the light most favorable to the trial court’s order, indulging every
reasonable inference in its favor, and determine whether the order was so arbitrary that it exceeds
the bounds of reasonable discretion.” Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857
(Tex. App.—Fort Worth 2003, no pet.). Provided that there is some evidence reasonably
supporting the trial court’s decision, the trial court did not abuse its discretion. Butnaru,
84 S.W.3d at 211.
Cause of Action and Probable Right to Recovery
For the reasons set out in their first issue, the UIL Defendants contend that the
Plaintiffs failed to plead a cause of action against them and a probable right to recovery because
the trial court did not have jurisdiction over any of the claims asserted.
36
To meet the elements for a temporary injunction, an applicant is not required to
establish that it will ultimately prevail in the suit. See Transport Co. of Tex. v. Robertson
Transp., Inc., 261 S.W.2d 549, 552 (Tex. 1953). On the contrary, those elements are met if
the applicant “alleg[es] a cause of action and present[s] evidence tending to sustain it.” Fox,
121 S.W.3d at 857. Appellate courts “will affirm the trial court’s decision as long as there are
grounds to believe that the claim has merit.” Yarto v. Gilliland, 287 S.W.3d 83, 94 (Tex. App.—
Corpus Christi-Edinburg 2009, no pet.).
Although we have determined above that the trial court did not have jurisdiction
over most of the Plaintiffs’ claims, we have also concluded that the trial court did have
jurisdiction over the Plaintiffs’ ultra vires claim asserting that the UIL Defendants violated their
due-course-of-law rights and that the Plaintiffs presented evidence in support of that claim.
Accordingly, we believe that the trial court reasonably could have concluded that the Plaintiffs
had a probable right of recovery on this ultra vires claim. See Hatten, 2004 WL 792328, at *3
(concluding “that the Hattens have a probable right to recover on their claim that they have a
due process interest under the Texas Constitution” pertaining to stigmatizing effects of eligibility
determination and on their claim that they were denied due process).
Irreparable Injury
In their appellants’ brief, the UIL Defendants assert that the temporary injunction
did not prevent an irreparable injury to the Plaintiffs. Essentially, the UIL Defendants contend
that any reputational harm is not irreparable because the Plaintiffs can refute the allegation if
37
they prevail on their due-course-of-law claim. Further, the UIL Defendants assert that the
inability to play sports is an injury too minor to warrant injunctive relief.8
In this case, the Plaintiffs alleged harm to their liberty interests in their reputation
and community standing and to Jennifer’s liberty interest in the care, control, and custody of her
children with the result of those violations being that A.B. could not play sports for Duncanville
High School absent injunctive relief. The trial court could have reasonably concluded that the
alleged reputational injuries and injuries to family liberty interests would continue pending a
trial. Further, the trial court could have reasonably concluded based on the pleadings and
evidence that these types of injuries could not be adequately addressed absent injunctive relief.
Cf. Fox, 121 S.W.3d at 857 (discussing when injury is irreparable). Accordingly, we believe that
the trial court reasonably concluded that the Plaintiffs “would likely suffer irreparable injury.”
Hatten, 2004 WL 792328, at *3.
Status Quo
“The purpose of a temporary injunction is to preserve the status quo until a trial
on the merits.” Fox, 121 S.W.3d at 857; see Butnaru, 84 S.W.3d at 204. “The ‘status quo’ is the
‘last, actual, peaceable, noncontested status which preceded the pending controversy.’” Texas
Ass’n of Bus. v. City of Austin, 565 S.W.3d 425, 437 (Tex. App.—Austin 2018, pet. denied)
(quoting In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding)).
On appeal, the UIL Defendants contend that the trial court abused its discretion by
granting the temporary injunction because the injunction altered rather than preserved the status
8
As support for this proposition, the UIL Defendants refer to multiple cases from other
states and from federal courts that are not binding on this Court. See Penrod Drilling Corp. v.
Williams, 868 S.W.2d 294, 296 (Tex. 1993).
38
quo. When making this argument, the UIL Defendants assert that A.B. was never eligible to
participate in UIL activities at Duncanville High School. As support, the UIL Defendants
highlight that by moving to Duncanville, A.B. was presumed ineligible under Rule 443 unless
several requirements were met, including a representative from his previous school’s signing a
PAPF stating that he did not transfer for athletic purposes, which did not occur in this case.
Accordingly, the UIL Defendants contend that the last, peaceable, noncontested status was that
A.B. was ineligible to play for Duncanville High School.9
The Plaintiffs have argued that A.B. was deemed ineligible and that the UIL
Defendants’ ultra vires actions prohibited them from being able to establish that the reason for
the transfer was not for athletic purposes. See In re Newton, 146 S.W.3d at 651 (explaining that
“the continuation of illegal conduct cannot be justified as preservation of the status quo”). When
confronted with a similar situation in which an athletic director determined that a student’s
transfer had been made for athletic purposes and in which the DEC and SEC both agreed with
the athletic director, this Court upheld a temporary injunction barring the enforcement of those
decisions as preserving “the status quo of the subject matter of the suit pending a trial on the
merits.” Hatten, 2004 WL 792328, at *1, *4. One of our sister courts of appeals confronted a
9
The UIL Defendants also assert that enjoining enforcement of Rule 443 cannot maintain
the status quo because that Rule is longstanding and because this Court recently explained that
enjoining “longstanding requirements” does not maintain the status quo. See Hughs v. Move
Tex. Action Fund, No. 03-20-00497-CV, 2020 WL 6265520, at *1-2 (Tex. App.—Austin
Oct. 23, 2020, order) (per curiam). We find Hughs distinguishable. In that case, a nonprofit
corporation involved in voter registration asked this Court to reinstate an injunction under Rule
of Appellate Procedure 29.3 during the pendency of the appeal. Id. at *1. The effect of that
injunction would have prevented the Texas Secretary of State from enforcing a physician’s
certificate requirement for late mail-in ballots, changed longstanding requirements governing late
ballots, and risked voter confusion. Id. at *1, *2. Although the UIL Defendants are correct that
Rule 443 is longstanding, the temporary injunction in this case only enjoined the application of
the Rule as to A.B. and therefore does not involve the risk of widespread confusion among a
statewide population.
39
similar athletic ineligibility determination and upheld a trial court’s injunction “enjoining the
defendants from enforcing the Committee’s ruling of ineligibility during the pendency of the
suit.” University Interscholastic League v. Green, 583 S.W.2d 907, 909 (Tex. App.—Corpus
Christi 1979, no writ). In light of this authority, we believe that the trial court could have
reasonably concluded that the pending controversy concerned A.B.’s eligibility and that the
temporary injunction would preserve the status quo. See In re Motheral, No. 22-0106 (Tex.
Feb. 18, 2022) (orig. proceeding) (denying request for mandamus relief asserting that injunction
in this case altered status quo).
For all these reasons, we conclude that the trial court did not abuse its discretion
by ordering the temporary injunction and overrule the UIL Defendants’ second issue on
appeal. See State ex rel. Abney v. Miller, 128 S.W.2d 1134, 1135 (Tex. 1939) (noting that
“temporary injunction should remain in force pending trial” if there is “one ground” supporting
issuance of injunction).10
CONCLUSION
Having overruled the UIL Defendants’ second issue and the portion of their first
issue as it pertains to the Plaintiffs’ due-course-of-law claim, we affirm the portions of the trial
court’s order granting the temporary injunction and denying the plea to the jurisdiction as to the
due-course-of-law claim. Having sustained the remainder of the UIL Defendants’ first issue, we
10
The UIL Defendants have submitted a letter to this Court suggesting that the
controversy is moot because the basketball season is now over for this year. However, the ruling
by the SEC prohibits A.B. from participating in varsity sports for the full academic year, and
there are sports with seasons starting after the end of basketball season, including track. Further,
A.B. testified during trial that he participated in track at his previous school. Accordingly, we
cannot agree that the dispute is moot. Moreover, the UIL Defendants have not otherwise moved
to dismiss their appeal.
40
reverse the portions of the trial court’s order denying the plea to the jurisdiction as it pertained
to the Plaintiffs’ free-speech claim, equal-protection claim, and request for declaratory relief
concerning UIL Rule 443 and render judgment dismissing those claims for want of jurisdiction.
See Tex. R. App. P. 43.2, .3; Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 153
(Tex. App.—Austin 1998, no pet.). The case may resume in the trial court absent further action
by the parties or by the Texas Supreme Court.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Concurring and Dissenting Opinion by Justice Goodwin
Affirmed in Part; Reversed and Rendered in Part
Filed: May 6, 2022
41