Fourth Court of Appeals San Antonio, Texas OPINION

No. 04-22-00178-CV

WEBB CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellant v. Robert MARSHALL and Amy Marshall, Appellees

From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2020CVK001053C1 Honorable Hugo Martinez, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice

Delivered and Filed: December 13, 2023

AFFIRMED

Pursuant to subsection 11.1512(c-2) of the Texas Education Code, former school board members Robert Marshall and Amy Marshall (collectively, “the Marshalls”) 1 filed suit against appellant Webb Consolidated Independent School District (“Webb CISD”) seeking injunctive relief to access documents they believed were withheld by Webb CISD following multiple requests for the documents. Webb CISD appeals the trial court’s order denying its plea to the jurisdiction, 04-22-00178-CV no-evidence summary judgment motion that “there is no evidence that [the Marshalls] have not been provided with the information, documents, or records maintained by the school district that they requested.”

In their response to the plea to the jurisdiction, the Marshalls argued subsection 11.1512(c-2) allows them to file suit in the courts for appropriate injunctive relief to obtain the requested information without having to first exhaust their administrative remedies.

They also argued that Amy Marshall’s suit is not moot because she was a school board member

“at all relevant times when the [s]tatutory [r]equests were made and when the [l]awsuit was filed.”

In response to the summary judgment motions, the Marshalls attached their various 2019 and 2020 documents requests and their own affidavits attesting to the documents they aver Webb CISD has withheld.

On March 22, 2022, the trial court denied Webb CISD’s plea to the jurisdiction and denied its no-evidence and traditional motions for summary judgment. Webb CISD appeals.

MOOTNESS

We first address Webb CISD’s third issue because it implicates our jurisdiction to entertain this appeal. In its third issue, Webb CISD argues the Marshalls’ suit is moot because the Marshalls are no longer school board members.

In its opening brief, Webb CISD asserted Amy Marshall is no longer a school board member. The Marshalls do not dispute this assertion. In a filing on February 1, 2023, Webb CISD

requests we take judicial notice that Robert Marshall is no longer a school board member as of November 15, 2022. We have the power, “on affidavit or otherwise,” to “ascertain the matters of fact that are necessary to the proper exercise of [our] jurisdiction[,]” even if evidence establishing those facts is not in the appellate record. See TEX. GOV’T CODE ANN. § 22.220(c); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 6–7 (Tex. 2018) (holding a reviewing court may look at 04-22-00178-CV election results outside the appellate record to determine whether an issue is moot due to an elected official leaving office). Here, Webb CISD’s February 1, 2023 filing states the school board

canvassed election results on November 15, 2022, included a link to the agenda for the November 15, 2022 board meeting, and a link to Webb CISD’s website showing the current school board members. Robert Marshall is not listed as a current school board member. The Marshalls did not file a response disputing Webb CISD’s assertion that Robert Marshall is no longer a school board member. Because we have the power to ascertain matters of fact necessary to the proper exercise of our jurisdiction, we take notice that Robert Marshall is no longer a school board member of Webb CISD. See Best, 562 S.W.3d at 7.

Webb CISD contends subsection 11.1512(c) provides only current school board members with the inherent right of access to information, documents, and records maintained by the school district. Because Robert and Amy Marshal are not current school board members, Webb CISD argues the Marshalls’ suit for injunctive relief to obtain this information is moot.

“A case becomes moot when there ceases to be a justiciable controversy between the parties or when the parties cease to have ‘a legally cognizable interest in the outcome.’” Best, 562 S.W.3d at 6 (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). “Mootness occurs when events make it impossible for the court to grant the relief requested or otherwise affect the parties’ rights or interests.” Best, 562 S.W.3d at 6 (internal quotation marks omitted). “When a case becomes moot, the court loses jurisdiction and cannot hear the case, because any decision would constitute an advisory opinion that is ‘outside the jurisdiction conferred by [article II, section 1 of] the Texas

Constitution . . . .’” Id. (quoting Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418

(Tex. 2016)). But “[a] case is not rendered moot simply because some of the issues become moot during the appellate process.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) 04-22-00178-CV

(orig. proceeding). “If only some claims or issues become moot, the case remains ‘live,’ at least as to other claims or issues that are not moot.” Best, 562 S.W.3d at 6.

We agree that any outstanding requests for information under subsection 11.1512(c) and pending request for injunctive relief under subsection 11.1512(c-2) have been rendered moot by the expiration of the Marshalls’ respective terms as school board members because they no longer have an inherent right of access to the information, and the school district is no longer required to produce the outstanding information, if any. However, the Marshalls’ request for attorney’s fees and court costs in its live pleadings presents an issue that is separate from the request for information.

The Texas Supreme Court recently recognized, in some cases, “a claim for attorney’s fees

‘breathes life’ into a suit that has become moot in all other respects.” Best, 562 S.W.3d at 7.

“Whether an attorney’s-fees claim breathes life into an otherwise moot appeal depends first on whether the claimant seeks the fees under a statute that authorizes fees only for a prevailing party or, alternatively, under a statute that permits fees based on equitable principles regardless of who prevails.” Id.

When the party seeks attorney’s fees under a prevailing-party statute, the determination of whether the attorney’s-fees claim is moot depends on whether the movant prevailed before the underlying substantive claim became moot. O’Hern v. Mughrabi, 579 S.W.3d 594, 600 (Tex.

App.—Houston [14th Dist.] 2019, no pet.) (citing Best, 562 S.W.3d at 7.). “[I]f the party prevailed before the substantive claim became moot, the party’s claim for attorney’s fees under a prevailing- party statute remains a live controversy and a court must consider the claim’s merits to determine whether the party properly prevailed.” Best, 562 S.W.3d at 7; see also Camarena v. Tex. Emp’t

Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (concluding when the claimants prevailed in the trial court before their underlying claims became moot, their claim for attorney’s fees as prevailing 04-22-00178-CV parties remained live even though the underlying claims were moot). “[I]f the party did not prevail before the substantive claim became moot, the party’s claim for attorney’s fees is also moot

because the party can never prevail and thus can never be entitled to attorney’s fees.” Best, 562 S.W.3d at 7–8; see also Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d

227, 229–30 (Tex. 1993) (holding an attorney’s-fees claim under a prevailing-party statute had become moot along with the underlying claim because the claimant had not prevailed before mootness occurred).

Subsection 11.1512(c-2) of the Texas Education Code entitles a prevailing school board member to recover court costs and reasonable attorney’s fees. See TEX. EDUC. CODE ANN.

§ 11.1512(c-2) (“A [school board] member who prevails in a suit under this subsection is entitled

to recover court costs and reasonable attorney’s fees.”). Thus, the determination of whether the claim for court costs and attorney’s fees “breathes life” into this otherwise moot case depends on whether the Marshalls prevailed before their substantive claims for injunctive relief became moot.

Here, the trial court granted the Marshalls’ request for injunctive relief under subsection

11.1512(c-2)—for at least some of the information requested—on September 15, 2020. Robert and Amy Marshall attached affidavits to their response to Webb CISD’s plea to the jurisdiction and motions for summary judgment. Robert’s affidavit, signed November 23, 2021, states that

Robert was a current board member of Webb CISD as of that date. Amy’s affidavit states that

Amy was a school board member serving Webb CISD “from November 2008 through

November 2020.” Because the Marshalls prevailed on their claim for injunctive relief—at least for the information in the trial court’s temporary injunction order—before either of the Marshalls’ departure from the school board rendered their pending claims for information moot, we conclude the Marshalls’ claims for attorney’s fees and court costs breathe life into this appeal. See Best, 562 S.W.3d at 8.

04-22-00178-CV

Accordingly, we overrule Webb CISD’s third issue.

PLEA TO THE JURISDICTION: ADMINISTRATIVE REMEDIES

Initially, Webb CISD argues the trial court did not have jurisdiction over the Marshalls’ suit because they failed to first exhaust their administrative remedies before seeking judicial review. In its first issue, Webb CISD argues the Marshalls were required to seek administrative relief from the Commissioner of Education before they could file suit regarding the 2020 requests for information. In its second issue, Webb CISD argues the Marshalls properly sought

administrative relief from the Commissioner of Education regarding the 2019 requests for information, but the Marshalls failed to appeal to a Travis County district court the Commissioner’s decision denying relief. See TEX. EDUC. CODE ANN. § 7.057(d) (“A person aggrieved by an action of the agency or decision of the commissioner may appeal to a district court in Travis County.”). Because Webb CISD’s first two issues hinge on whether a party must exhaust administrative remedies before filing suit for injunctive relief under subsection 11.1512(c-2), we address these two issues together.

We must decide whether a school board member is required to exhaust his or her

administrative remedies before filing a suit for injunctive relief to obtain information from the school district pursuant to subsection 11.1512(c-2) of the Texas Education Code. We have found no authority addressing this issue and the parties do not point us to any authority that is directly on point. Thus, this is an issue of first impression.

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject

matter of a specific cause of action. City of San Antonio v. Rogers Shavano Ranch, Ltd., 383 S.W.3d 234, 241 (Tex. App.—San Antonio 2012, pet. denied). Because subject matter 04-22-00178-CV jurisdiction presents a question of law, we review the trial court’s decision under a de novo standard of review. Id.

“In order to prevail, the party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiff’s pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff’s petition

to confer jurisdiction on the trial court.” Tex. Parks & Wildlife Dep’t v. Dearing, 150 S.W.3d 452, 457–58 (Tex. App.—Austin 2004, pet. denied). “When a defendant challenges jurisdiction, a court is not required to look solely to the pleadings but may consider evidence and must do so when

necessary to resolve the jurisdictional issues raised.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (internal quotation marks omitted).

We also review issues of statutory construction de novo. See Tex. Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).

B. The General Rule: Exhaustion of Administrative Remedies

“When the [l]egislature creates an administrative agency, it may grant the agency authority

to resolve disputes that arise within the agency’s regulatory arena.” Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016). “If the [l]egislature expressly or impliedly grants an agency sole authority to make an initial determination in such disputes, the agency has exclusive jurisdiction, and a party must exhaust its administrative remedies before seeking recourse through judicial review.” Id. (internal quotation marks omitted). When the outcome of the administrative process leaves the party dissatisfied, the party may file suit and have the courts review the agency’s decision. Id. However, “[i]f the party files suit before exhausting exclusive administrative remedies, the courts lack jurisdiction and must dismiss the case.” Id.

04-22-00178-CV

C. Administrative Remedies for School-Law Violations

To fulfill its duty to support and maintain an efficient system of public free schools, the legislature has established the Texas Education Agency, the office of the Commissioner of Education, the State Board of Education, and local school districts throughout the state. Id. at 545.

Regarding disputes that arise within the education system, the [l]egislature has provided that, with limited statutory exceptions . . . , a person may appeal in writing to the commissioner if the person is aggrieved by: (1) the school laws of this state; or (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of this state; or (B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee. Id. (quoting TEX. EDUC. CODE ANN. § 7.057(a)).

“School laws of this state” means the provisions of titles 1 and 2 of the Texas Education

Code and the administrative “rules adopted under those titles.” TEX. EDUC. CODE ANN.

§ 7.057(f)(2); see also Marquez, 487 S.W.3d at 546. Subsections 11.1512(c)–(c-2) are within title

2 of the Texas Education Code and are therefore considered “school laws of this state.” See TEX.

EDUC. CODE ANN. §§ 11.1512(c)–(c-2), 7.057(f)(2).

Although subsection 7.057(a) provides that a person “may” appeal to the Commissioner, the courts “have interpreted the statute to require a person who chooses to appeal to first seek relief through the administrative process.” Marquez, 487 S.W.3d at 545 (emphasis in original); see also

Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363, 366 (Tex. App.—San Antonio 2004, no pet.) (“Generally, under Texas law, an aggrieved party, whose claim relates to the administration of school laws and involves disputed fact issues, must exhaust his administrative remedies with the Commissioner of Education before turning to the courts for relief.”); Jones v. Clarksville Indep.

04-22-00178-CV

Sch. Dist., 46 S.W.3d 467, 471 (Tex. App.—Texarkana 2001, no pet.) (“Subject to certain exceptions, Texas law requires a party whose claim concerns the administration of school laws and involves disputed fact issues to exhaust the statutorily provided administrative remedies with the [C]ommissioner of [E]ducation before turning to the courts for relief.”). “For well over one

hundred years, [the Texas Supreme Court has] held that persons complaining about the management of the school system or the administration of school laws must exhaust their administrative remedies before courts can exercise jurisdiction.” Marquez, 487 S.W.3d at 546

(internal quotation marks omitted).

D. Subsections 11.1512(c)–(c-2) of the Texas Education Code

Subsection 11.1512(c) of the Texas Education Code provides:

A member of the board of trustees of the [school] district, when acting in the member’s official capacity, has an inherent right of access to information, documents, and records maintained by the district, and the district shall provide the information, documents, and records to the member without requiring the member to submit a public information request . . . . The district shall provide the information, documents, and records to the member without regard to whether the requested items are the subject of or relate to an item listed on an agenda for an upcoming meeting.

TEX. EDUC. CODE ANN. § 11.1512(c). The school district is required to provide the member with the information, documents, and records requested within twenty business days after the school district receives the request. Id. § 11.1512(c-1). “If a district does not provide requested

information to a member of the board of trustees in the time required under [s]ubsection (c-1), the member may bring suit against the district for appropriate injunctive relief.” Id. § 11.1512(c-2).

In construing statutes, our primary objective is to give effect to the legislature’s intent.

First State Bank of DeQueen, 325 S.W.3d at 635. “We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is

apparent from the context, or the plain meaning leads to absurd results.” Id. “We presume the - 10 - 04-22-00178-CV [l]egislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.” Id. E. Analysis We begin by recognizing the general rule that when a person is aggrieved by a violation of the school laws of this state, the person must first exhaust their administrative remedies before he or she can seek relief from the courts. However, the supreme court has plainly stated there are limited statutory exceptions to the exhaustion-of-remedies requirement when certain school laws are violated. See Marquez, 487 S.W.3d at 545 (“Regarding disputes that arise within the education system, the [l]egislature has provided that, with limited statutory exceptions not at issue here, a person” must exhaust his or her administrative remedies). Such an exception exists in subsection 11.1512(c-2), which permits a school board member to seek injunctive relief directly from the courts when the school district does not comply with the statutory requirements to provide information maintained by the school district that is requested by the school board member. Subsection 11.1512(c) of the Texas Education Code states school board members have an inherent right of access to information, documents, and records maintained by the district. TEX. EDUC. CODE ANN. § 11.1512(c). It further provides the school district must provide requested information that is maintained by the school district without regard to whether the requested items are the subject of or relate to an item listed on an agenda for an upcoming school board meeting. Id. This is because the school board member is part of the governing body overseeing the school district and must make decisions affecting the school district. See generally id. §§ 11.1511, 11.1512. When making these decisions, the school board member should be well informed and able to exercise his or her judgment based on accurate, timely information. Accordingly, in subsection (c-1), the legislature enacted limitations on how long the school district can take to respond to the request for information. Id. § 11.1512(c-1) (providing the school - 11 - 04-22-00178-CV district shall respond to the request for information no later than the twentieth business day after the date the district receives the request and, even if compliance with the timing requirements would be unduly burdensome, the time to comply shall not exceed the thirtieth business day after the date the district receives the request to respond). Clearly, the legislature intended school board members to have access to requested information quickly. Looking at the plain language of subsection (c-2), we conclude the legislature provided for quick relief through the courts should the school district fail to comply with its duty to provide the requested information under subsection (c) or the timing requirements of subsection (c-1). See id. § 11.1512(c-2). The plain language of subsection (c-2) states “the [school board] member may bring suit against the [school] district for appropriate injunctive relief” if the school district does not provide the requested information to the school board member. The legislature used specific words in this statute that lead us to conclude it did not intend for school board members to exhaust their administrative remedies before seeking relief in the courts. First, the statute states the school board member “may bring suit against the district[.]” Id. When the legislature refers to a dispute being brought before the Commissioner of Education—or the dispute is otherwise subject to the exhaustion of administrative remedies—it has consistently used the word “appeal” rather than the word “suit.” 3 We find further support in the supreme court’s jurisprudence distinguishing between