Texas Education Agency and Mike Morath, Commissioner of Education, in His Official Capacity v. American Youthworks, Inc., D/B/A American Youthworks Charter School Honors Academy, Inc., D/B/A Honors Academy And Azleway Inc., D/B/A Azleway Charter School

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ACCEPTED 03-14-00283-CV 10529045 THIRD COURT OF APPEALS AUSTIN, TEXAS June 9, 2016 5/9/2016 2:09:20 PM JEFFREY D. KYLE CLERK RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS SHELLEY N. DAHLBERG P5/9/2016 HONE: (512) 936-1864 2:09:20 PM Associate Deputy for Civil Litigation FAX: (512) 320-0667 JEFFREY D. KYLE EMAIL: Shelley.Dahlberg@texasattorneygeneral.gov Clerk May 9, 2016 TO THE HONORABLE CHIEF JUSTICE ROSE AND JUSTICES PEMBERTON AND FIELD: Honors Academy and Azleway, Appellees, each recently filed lengthy post-submission briefs rehashing many of the arguments they already made either in their briefing or during argument. This letter responds to only those arguments raised in these recent filings that were not addressed previously. Honors Academy suggests in its letter brief that the Texas Supreme Court’s recent decision in Houston Belt & Terminal Railway Co. v. City of Houston, No. 14-0459, 2016 WL 1312910 (Tex. Apr. 1, 2016) undermines the Commissioners arguments in this case. However, Houston Belt is wholly consistent with the Commissioner’s argument that he has acted according to the statutory authority granted to him by the Legislature, thus precluding all Appellees’ claims against him. In Houston Belt, the City argued that its employee’s limited discretion barred all ultra vires concerning his actions. Id. at *3. The Court rejected that proposition and held that whether a governmental employee acts ultra vires must be determined by looking at the scope of that employee’s discretion or authority. Id. at *6 (stating that whether an ultra vires suit is barred “is dependent upon the grant of authority at issue in a particular case). The scope of the Commissioner’s authority was effectively ministerial and required him to use the performance ratings for the school years listed in Texas Education Code section Post Submission Response Brief Page 1 12.115(c-1). Appellant’s Br. 14-17. Because the Commissioner acted consistently with his statutory authority, the Appellees’ ultra vires claims are barred. Azleway similarly contends that this Court’s opinion in Texas State Board of Veterinary Medical Examiners v. Jefferson, No. 03-14-00774-CV, 2016 WL 768778 supports its argument that the Commissioner’s application of section 12.115(c-1) to it “contravene[s] the statutes and impose[es] regulations inconsistent with them.” Post Oral Argument Br. 14-15. Notwithstanding that Jefferson involves a challenge to agency rules, and to the extent its analysis regarding whether an agency rule contravenes statutory authority is relevant, it supports the Commissioner’s required use of 12.115(c-1)’s school year data. Appellant’s Br. 14-17. Neither Honor’s nor Azleway’s post submission briefing adds anything meaningful to the arguments before the Court. The Court should reject these new arguments, dismiss the Appellees’ ultra vires claims, and vacate the temporary injunction. Sincerely, /s/ Shelley Nieto Dahlberg Shelley Nieto Dahlberg Attorney for Defendants TEA and Williams trm Post Submission Response Brief Page 2 CERTIFICATE OF SERVICE I hereby certify that on the 9th day of May, 2016, the foregoing document was filed electronically and sent to the following counsel of record via email and/or ECF Notification: Robert A. Schulman Kevin O'Hanlon SCHULMAN, LOPEZ& HOFFER, L.L.P. Leslie McCollom Joseph E. Hoffer 808 West Avenue 517 Soledad Street Austin, Texas 78701 San Antonio, Texas 78205-1508 kohanlon@808west.com rschulman@slh-law.com lmccollom@808west.com jhoffer@slh-law.com Attorneys for Plaintiff-Intervenor Honors Academy, Inc. Cris Feldman 3355 West Alabama Street, Suite 1220 Susan G. Morrison Houston, Texas 77098 The Fowler Law Firm, PC cris.feldman@thefeldmanfirmpc.com 919 Congress Ave. Suite 900 Attorneys for Plaintiff Austin, TX 78701 smorrison@thefowlerlawfirm.com Attorneys for Plaintiff- IntervenorAzleway Charter School /s/ Shelley N. Dahlberg SHELLEY N. DAHLBERG Assistant Attorney General Post Submission Response Brief Page 3 CERTIFICATE OF COMPLIANCE Pursuant to TRAP 9.4(i)(3), the undersigned Assistant Attorney General hereby certifies that the preceding document complies with the type- volume limits in TRAP 9.4. 1. Excluding the exempted portions in TRAP 9.4(i)(1), the brief contains: 370 words, and; 2. has been prepared using: Microsoft Word in 14 pt Times New Roman conventional typeface Font with 12 pt footnotes. The undersigned understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in TRAP 9.4, may result in the court's striking the brief and prohibiting the party from filing further documents of the same kind. /s/ Shelley N. Dahlberg SHELLEY N. DAHLBERG Assistant Attorney General Post Submission Response Brief Page 4 ________________________________________________________________________________ SHELLEY N. DAHLBERG PHONE: (512) 936-1864 Associate Deputy for Civil Litigation FAX: (512) 320-0667 EMAIL: Shelley.Dahlberg@texasattorneygeneral.gov May 9, 2016 Jeffrey D. Kyle, Clerk Court of Appeals Third District of Texas P. O. Box 12547 Austin, Texas 78711-2547 Re: Court of Appeals Number: 03-14-00283-CV; 03-14-00360-CV Trial Court Case Number: D-1-GN-14-000672 Texas Education Agency and Michael L. Williams, Commissioner of Education, in his Official Capacity v. American YouthWorks, Inc. d/b/a American YouthWorks Charter School Texas Education Agency and Michael L. Williams, Commissioner of Education, in his Official Capacity v. American YouthWorks, Inc. d/b/a American YouthWorks Charter School; Honors Academy, Inc. d/b/a Honors Academy Charter School and Azleway Charter School Dear Mr. Kyle: Please circulate this post-submission letter brief to Chief Justice Rose, Justice Pemberton and Justice Field for their consideration in the above-referenced case. Please also file this document with the Court. Sincerely, /s/Shelley Nieto Dahlberg Shelley Nieto Dahlberg Attorney for Defendants TEA and Williams P os t Of fic e B ox 12548 , Aust in, Texa s 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • www. t exa satt or n eygen era l. gov