Flour Bluff Independent School District v. Robin Sutton, as Next Friend of Hannah Sutton

                              NUMBER 13-05-623-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

FLOUR BLUFF INDEPENDENT

SCHOOL DISTRICT,                                                                        Appellant,

                                                             v.                               

R. S., AS NEXT FRIEND

OF H. S.^[1],                                                                                         Appellee.

       On appeal from the 94th District Court of Nueces County, Texas.

                               MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez. and Garza

                            Memorandum Opinion by Justice Garza          

Appellant, Flour Bluff Independent School District (the ADistrict@), appeals from the trial court=s denial of its plea to the jurisdiction and temporary injunction enjoining it from prohibiting  H.S. from participating in the functions and activities associated with the Varsity Cheerleading squad for the 2005-06 school year.^[2]  This appeal is accelerated.  See Tex. R. App. P. 28.1; Tex. Civ. Prac. & Rem. Code Ann. '51.014(a)(4), (8) (Vernon Supp. 2005) (authorizing accelerated appeals from temporary injunctions and pleas to the jurisdiction granted or denied by district courts). By three issues the District contends (1) the district court lacks jurisdiction to review its decision to place H.S. in the District=s alternative education program for 36 days; (2) it did not conduct a search in violation of article I, section 9 of the Texas Constitution, see Tex. Const. art. I, ' 9; and (3) the trial court lacks jurisdiction to award the relief requested because there is no fundamental right to participate in extracurricular activities.  We reverse the trial court's order denying the District's plea to the jurisdiction, set aside all orders pertaining to the temporary injunction and dismiss the appeal as it relates to the temporary injunction.

I.  Background

On March 31, 2005, a District paraprofessional found a purse in a foyer near the school cafeteria. After several efforts to determine the owner of the purse, the paraprofessional turned the purse over to Lance Howard, a District security and truant officer.  Assistant principal Mike Trudeau joined Howard in the attempt to locate the owner.  In an effort to determine ownership of the purse, Howard unzipped the purse and pulled out a wallet.  He found a student athletic pass bearing H.S.=s name. Howard decided to seek a secondary form of identification to verify ownership of the purse.  Howard unzipped a side pocket of the wallet and discovered a pill.  At this time, H.S. approached Howard and Trudeau and informed them that the purse was hers.  Howard and Trudeau returned the purse to H.S., but kept the pill to determine whether it was a prohibited drug under the District=s zero-tolerance drug policy.  District officials determined the drug was hydrocodone, a prohibited controlled substance and dangerous drug.^[3] 

Pursuant to the mandates of section 37.007(b)(2)(A) of the Texas Education Code and the District=s discipline policies, H.S. was proposed for expulsion for possessing the pill.  See Tex. Educ. Code Ann. ' 37.007(b)(2)(A) (Vernon Supp. 2005).^[4]  The District conducted a due process hearing, where H.S. and her parents were allowed to testify.  During the hearing, H.S. stated that the pill may have belonged to her father, her sister, or the parent of one of her friends.  At the hearing, the District=s hearing officer concluded that the pill most likely belonged to the friend=s parent. After the hearing, the hearing officer found that H.S. possessed a dangerous drug or controlled substance on school property as defined in the District=s student code of conduct.  However, H.S. was not expelled for the offense; instead, she was placed in the District=s alternative education program for 36 school days.  Tex. Educ. Code Ann. ' 37.006(a)(2)(C) (Vernon Supp. 2005).^[5]  On June 16, 2005, H.S.=s parents filed a grievance with the District=s Board of Trustees (the ABoard@).  See Tex. Educ. Code Ann. ' 37.009(b) (Vernon Supp. 2005).  The Board heard and denied the grievance.  H.S. successfully completed her 36-day assignment in the alternative program.               

On March 30, 2005, one day before the hydrocodone pill was discovered in H.S.=s purse, H.S. and her mother, C.S., signed a ACheerleader Constitution.@  Under the terms of the Constitution, and State law, a cheerleader must relinquish her position on the cheerleader squad if she is placed in the District=s alternative education program at any time during the cheerleader year.  See Tex. Educ. Code Ann. ' 37.006(g) (Vernon Supp. 2005) (stating, AThe terms of a placement under this section must prohibit the student from attending or participating in a school-sponsored or school-related activity@).  H.S. was forced off the cheerleading squad for the 2005-06 school year. 

On August 12, 2005, H.S. sought and received an ex parte temporary restraining order from the trial court compelling the District to place her back on the cheerleading squad.^[6]  A hearing on H.S.=s request for temporary injunction was held in September 2005.  At the hearing, the trial court denied the District=s plea to the jurisdiction and granted H.S.=s request for a temporary injunction.  This accelerated appeal ensued.

II.  Assignment to Alternative Education Program

In its first issue, the District claims that the trial court has no jurisdiction to review its decision to place H.S. in an alternative education program.  We hold judicial review is precluded under these circumstances. 

Chapter 37 of the education code establishes the disciplinary consequences for specific conduct and the procedural due process entitled to any student punished under this chapter.  Aledo Indep. Sch. Dist. v. Reese, 987 S.W.2d 953, 956 (Tex. App.BFort Worth 1999, pet. denied).  The Texas Education Code provides in relevant part: 

' 37.009. Conference, Hearing, Review

. . . .

(b) If a student=s placement in an alternative education program is to extend beyond 60 days or the end of the next grading period, whichever is earlier, a student=s parent or guardian is entitled to notice of and an opportunity to participate in a proceeding before the board of trustees of the school district or the board=s designee, as provided by policy of the board of trustees of the district.  Any decision of the board or the board=s designee under this subsection is final and may not be appealed.

. . . .

(f) Before a student may be expelled under Section 37.007, the board or the board=s designee must provide the student a hearing at which the student is afforded appropriate due process . . . If the decision to expel a student is made by the board=s designee, the decision may be appealed to the board.  The decision of the board may be appealed by trial de novo to a district court of the county in which the school district=s central administrative office is located. 

Tex. Educ. Code Ann. ' 37.009(b), (f) (Vernon Supp. 2005) (emphasis added).         

Because H.S.=s placement in the alternative education program was not an expulsion, review of the District=s decision is governed by section 37.009(b).  See Aledo, 987 S.W.2d at 958-59;  see also Hankins v. P.H., 1 S.W.3d 352, 354 (Tex. App.BCorpus Christi 1999, pet. denied).  The record reflects that grades are issued in six-week intervals.^[7]  Consequently, H.S. was entitled to appeal the District=s decision to the Board.  See Aledo, 987 S.W.2d at 958.  The record reflects that H.S.=s parents appealed the District=s decision to the Board of Trustees and that the Board upheld the District=s decision to place H.S. in the alternative education program.  Section 37.009(b) expressly states that the Board=s decision under this subsection is final and may not be appealed.  Tex. Educ. Code Ann. ' 37.009(b). Therefore, the trial court has no jurisdiction to consider H.S.=s claims as they relate to the District=s decision to place H.S. in the alternative education program and its decision to keep records of the incident.^[8]  The District=s first issue is sustained.

III.  Temporary Injunction

In its second and third issues, the District complains that H.S. was not entitled to issuance of a temporary injunction because the District did not conduct a search in violation of article I, section 9 of the Texas Constitution, see Tex. Const. art. I, ' 9, and because there is no fundamental right to participate in extracurricular activities.

Our jurisdiction is restricted to actual controversies.  See Spring Branch Indep. Sch. Dist. v. Reynolds, 764 S.W.2d 16, 17 (Tex. App.CHouston [1st Dist.] 1988, no writ).  We must avoid rendering advisory opinions in cases in which no actual controversy exists. See id.  In Univ. Interscholastic League v. Jones, for example, the trial court issued an injunction that allowed Jones to play football during the 1985 football season.  Univ. Interscholastic League v. Jones, 715 S.W.2d 759, 760 (Tex. App.CDallas 1986, writ ref=d n.r.e.). The University Interscholastic League appealed to the Fifth Court of Appeals, which explained that, for purposes of subject matter jurisdiction, an actual controversy no longer existed regarding the trial court=s injunction.  Id. at 761.  The court=s opinion pointed out that, while the appeal was pending, Jones had been allowed to play football.  Id. at 760.  In fact, the 1985 football season ended while the appeal was pending.  Id. at 760B61.  Because the trial court=s injunction only affected the 1985 football season, and because Jones had also graduated while the appeal was pending, the court ruled that no controversy existed and dismissed the case as moot.  Id.

Similarly, in this case, the temporary injunction issued by the trial court is no longer a basis for actual controversy because it only affected the 2005B06 cheerleading year, which ended while the appeal was pending.^[9]  H.S. was allowed to participate as a cheerleader.  Although H.S. has not graduated from school, the parties appear to agree that the incident giving rise to this lawsuit will not affect her eligibility to participate in cheerleading during the 2006B07 cheerleading year or her eligibility for any other extracurricular activity.  The District nevertheless complains that the district court had no jurisdiction to enter the temporary injunction.

 Even if this Court were to agree with the District, we would be unable to remedy the injury claimed by the District because the temporary injunction has no legal effect.  Regardless of this Court=s opinion, the fact remains that the trial court allowed H.S. to participate in cheerleading during the 2005B06 cheerleading year over the District=s objections. Vacating or reversing the injunction would have no effect on what has already occurred and the parties have not raised any controversy over what may happen in the 2006B07 cheerleading year.  Accordingly, we dismiss the District=s second and third issues regarding the temporary injunction. 

Nonetheless, without expressing an opinion on the propriety of the injunction, we note that the Texas Supreme Court has repeatedly held that participation in extracurricular activities is not a fundamental right.  See In re Univ. Interscholastic League, 20 S.W.3d 690, 692 (Tex. 2000); Eanes Indep. Sch. Dist. v. Logue,  712 S.W.2d 741, 742 (Tex. 1986); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 559 (Tex. 1985).  We agree with the supreme court=s statement in Eanes that judicial intervention in matters such as these often does more harm than good.  Eanes Indep. Sch. Dist., 712 S.W.2d at 742; see also Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365, 373 (Tex. 1997); Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 451 (Tex. 1995).  We share the view expressed by the court in Piwonka, that cases such as the one before us should be dismissed Aas asinine on its face@ and that courts should not  Awaste [their] valuable time and limited resources on exploring the constitutional implications of whether or not someone gets to be a cheerleader.@  See Piwonka v. Tidehaven Indep. Sch. Dist., 961 F. Supp. 169, 171 (S.D. Tex. 1997).

IV. Conclusion

We reverse the trial court's order denying the District's plea to the jurisdiction, set aside all orders pertaining to the temporary injunction and dismiss the appeal as it relates to the temporary injunction.^[10]

_______________________

DORI CONTRERAS GARZA,

Justice                  

Memorandum Opinion delivered and

filed this the 13th day of April, 2006.

---

^[1] To protect the privacy of H.S., a minor, we identify R.S. and H.S. by initials only.

^[2] According to the Texas Civil Practices and Remedies Code, a governmental unit may appeal an interlocutory order that grants or denies a plea to the jurisdiction.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (a)(8) (Vernon Supp. 2005).  The District=s plea to the jurisdiction questioned the trial court's subject matter jurisdiction by alleging that it lacked jurisdiction to review the District=s decision to place H.S. in the alternative program.  Thus, this Court has jurisdiction over the interlocutory appeal.  See Harlandale Indep. Sch. Dist. v. Hernandez, 994 S.W.2d 257, 258 (Tex. App.BSan Antonio 1999, no pet.).

^[3] The Texas Department of Public Safety verified that the pill was hydrocodone.

^[4] Section 37.007(b)(2)(A) provides, in relevant part, that a student may be expelled if the student, while on or within 300 feet of school property, possesses a controlled substance, as defined by Chapter 481 of the Health and Safety Code.  Tex. Educ. Code Ann. ' 37.007(b)(2)(A) (Vernon Supp. 2005) (emphasis added).  Hydrocodone is a controlled substance as defined by section 481.002 of the Texas Health and Safety Code and is listed in schedule II of section 481.032 of the health and safety code.  See Tex. Health & Safety Code Ann. '' 481.002(5), 481.032 (Vernon Supp. 2005). 

^[5] Section 37.006(a)(2)(c) provides, in relevant part, that a student shall be removed from class and placed in a disciplinary alternative education program as provided by section 37.008 if the student, while on or within 300 feet of school property, possesses a controlled substance, as defined by Chapter 481 of the Health and Safety Code.  Tex. Educ. Code Ann. ' 37.006(a)(2)(c)(Vernon Supp. 2005) (emphasis added).

^[6] In addition to seeking a temporary injunction, H.S. sought a declaratory judgment that (1) the search of her purse violated article I, section 9 of the Texas Constitution, and (2) her punishment should be reversed; and a permanent injunction enjoining FBISD from (1) prohibiting her from being in the cheerleading squad for the 2005-2006 year, and (2) from keeping records of the incident. Given our disposition of the appeal, the only controversy remaining for the trial court to decide is whether the search was unconstitutional.   

^[7] A six-week grading period consists of 30 days.  H.S.=s placement in alternative education was for 36 days and extended beyond the next grading period.  See Tex. Educ. Code. Ann. ' 37.009(b) (Vernon Supp. 2005).

^[8] However, we do note that constitutional claims, whether state or federal, are not claims under Texas school laws.  See Tex. Educ. Agency v. Cypress‑Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992).  Further, the education code does not provide for review of constitutional claims.  Id.  Therefore, the trial court is not precluded from addressing the merits of the constitutional claim raised in the declaratory judgment action.

^[9] The record reflects that the cheerleading year runs from March of one year to March of the next year.

^[10] When an appeal is from an order granting a temporary injunction, and that part of the case becomes moot on appeal, "the proper order is to set aside all orders pertaining to the temporary injunction and dismiss that portion of the case, leaving the main case still pending."  Guajardo v. Alamo Lumber Co., 317 S.W.2d 725, 726 (Tex. 1958) (citing Service Fin. Corp. v. Grote, 131 S.W.2d 93, 94 (Tex. 1939)).