Kent Scribner and Fort Worth Independent School District AND Jason Smith, Individually and as Next Friend of S.S. v. Jennifer Treger, for Herself and as Next Friend of M.T. and T.T. Todd Daniel, for Himself and as Next Friend of His Minor Children Jane Doe, for Herself and as Next Friend of Her Minor Children Kerri Rehmeyer, for Herself and as Next Friend of Her Minor Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00277-CV
___________________________

KENT SCRIBNER AND FORT WORTH INDEPENDENT SCHOOL DISTRICT,
Appellants

V.

JENNIFER TREGER, FOR HERSELF AND AS NEXT FRIEND OF M.T. AND
T.T.; TODD DANIEL, FOR HIMSELF AND AS NEXT FRIEND OF HIS MINOR
CHILDREN; JANE DOE, FOR HERSELF AND AS NEXT FRIEND OF HER
MINOR CHILDREN; AND KERRI REHMEYER, FOR HERSELF AND AS NEXT
FRIEND OF HER MINOR CHILDREN, Appellees

AND
JASON SMITH, INDIVIDUALLY AND AS NEXT FRIEND OF S.S., Appellant

V.

JENNIFER TREGER, FOR HERSELF AND AS NEXT FRIEND OF M.T. AND
T.T.; TODD DANIEL, FOR HIMSELF AND AS NEXT FRIEND OF HIS MINOR
CHILDREN; JANE DOE, FOR HERSELF AND AS NEXT FRIEND OF HER
MINOR CHILDREN; AND KERRI REHMEYER, FOR HERSELF AND AS NEXT
FRIEND OF HER MINOR CHILDREN, Appellees

On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-327449-21

Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Bassel

2
 MEMORANDUM OPINION

I. Introduction

This interlocutory appeal involves a policy established by a school district that

required all persons on its campuses to wear a face covering and that was put into

place in response to the COVID-19 pandemic. The school district established its

policy after Governor Abbott had issued his Executive Order GA-38 that prohibited

mask mandates by school districts.

Two notices of appeal were filed, and each brings distinct sets of issues. In one

appeal, the Appellants are Fort Worth Independent School District and its

Superintendent, Kent Scribner; we will refer to these Appellants collectively as the

District unless some need requires otherwise. The District was sued by Appellees

Jennifer Treger, for herself and as next friend of M.T. and T.T.; Todd Daniel, for

himself and as next friend of his minor children; Jane Doe, for herself and as next

friend of her minor children; and Kerri Rehmeyer, for herself and as next friend of

her minor children (collectively, the Parents). The children of the Parents attend the

District’s schools. The Parents sued the District to challenge the mask policy that it

had instituted, alleging causes of action for a violation of the Texas Open Meetings

Act (TOMA), declarations under the Texas Uniform Declaratory Judgments Act

(UDJA), and temporary and permanent injunctive relief.

The trial court conducted an evidentiary hearing on the Parents’ request for

temporary injunctive relief and also received evidence and argument by written

3
submission. The trial court entered a temporary-injunction order restraining the

District from denying “any student or parent access to [District] facilities based on a

face covering.” The injunction order specifically states that the District policy “was

made without authority and is contrary to and in violation of [Governor] Abbott’s

Executive Order GA-38.” The trial court reserved ruling on whether the Parents’

TOMA claim warranted injunctive relief. The District also filed a plea to the

jurisdiction, which the trial court denied.

The District brings three issues on appeal. Those issues contend that the trial

court (1) erred by denying the District’s plea to the jurisdiction, (2) abused its

discretion by entering a temporary injunction, and (3) erred by entering a temporary

injunction that was too broad and vague. Our resolution of this appeal turns on the

District’s first issue and is as follows:

• We deny the District’s jurisdictional challenge to the Parents’ TOMA

claim and hold that the challenges raised by the District should be

resolved not as a jurisdictional issue but on the merits.

• We grant the District’s jurisdictional challenge to the Parents’ UDJA

claim because the Parents have not brought a viable claim under the

UDJA. Though other remedies might have provided the Parents with

relief, the Parents disavowed that they were bringing an ultra vires claim

of the type that might have challenged a governmental official’s acts.

4
 Further, though the Parents claim that there is a constitutional violation,

they failed to specifically plead the nature of the constitutional right

being violated. We will remand this matter to the trial court to accord

the Parents an opportunity to replead.

• We deny the District’s present jurisdictional challenge asserting that the

Parents failed to exhaust their administrative remedies before bringing

suit against the District.

Because of our outlined resolution of the District’s jurisdictional issues and

because the injunction was not based on an alleged TOMA violation, we dissolve the

temporary-injunction order entered by the trial court. Also, because of our resolution,

we do not reach the District’s second and third issues attacking the entry of the

injunction and its form.

Our resolution also impacts the appeal brought by Appellant Jason Smith,

individually and as next friend of S.S. Smith (whom we refer to as Intervenor Smith)

intervened in the trial court on behalf of himself and his child, who is a student in the

District. Intervenor Smith advocated to uphold the District’s mask policy and

challenged the Governor’s authority to prohibit mask mandates. On appeal,

Intervenor Smith raises three issues challenging the entry of the temporary-injunction

order regarding (1) whether the District’s mask policy is valid and enforceable,

(2) whether the trial court erred by permitting the Parents’ expert witnesses to testify,

and (3) whether the Parents presented legally and factually sufficient evidence to

5
support a finding of irreparable harm. Because we dissolve the temporary injunction

on the basis of the District’s jurisdictional challenges, we do not reach the issues

raised by Intervenor Smith as such issues are now moot.

II. Factual and Procedural Background

On July 29, 2021, the Governor issued Governor’s Executive Order GA-38,

relying on the authority of the Texas Disaster Act (TDA) of 1975, codified in Chapter

418 of the Texas Government Code. See Tex. Gov’t Code Ann. §§ 418.001–.307.

The Governor’s order mandates that “[n]o governmental entity, including a county,

city, school district, and public health authority, and no government official may

require any person to wear a face covering or to mandate that another person wear a

face covering.”

On August 10, 2021, the District sent a district-wide email that stated a District

policy at odds with GA-38:

At the August 10th Board of Education meeting Superintendent Kent
Scribner announced that, effective immediately, all students, staff[,] and
visitors to all Fort Worth ISD indoor facilities will be required to wear
facemasks. This will include all staff and students who ride District
school buses. The Fort Worth ISD will open to 100% in-person classes
on Monday, August 16. Masks will be required for everyone.

Within two days of the distribution of the District’s email, the Parents filed suit

against the District and the Superintendent. The Parents’ petition noted the

Governor’s prohibition on mask mandates. The petition also challenged the

vagueness of the mask policy referenced in the email we have quoted, asserted that its

6
adoption was politically motivated, challenged the need for its adoption, and asserted

that mask wearing is detrimental physically and psychologically to children. The

petition also claimed that the District’s Board had not voted to approve the mask

policy and that it appeared that the Superintendent had made the decision to issue it

unilaterally. Attached to the petition were various items of evidence, including

declarations from the Parents, internal communications of the District regarding a

mask policy, and declarations of experts outlining the negative physical and

psychological effects of mask wearing by children.

In a preliminary section of their petition introducing their specific causes of

action, the Parents noted the Governor’s declaration (stating that it had “the force and

effect of law”), the provisions of TOMA, and the mandamus relief that the Governor

had sought when a court in Dallas County had issued a restraining order that

prevented enforcement of the Governor’s prohibitions against mask mandates. With

respect to their specific cause of action, the Parents alleged that the District had

violated TOMA because the District had adopted a mask policy without conducting a

Board vote or seeking public input. The Parents sought a declaration that “the

District’s mask policy is void for illegality and thus unenforceable.” Finally, they

sought temporary and permanent injunctive relief.

The District filed a combined answer and response to the Parents’ request for

injunctive relief. The District’s response challenged the wisdom of the Governor’s

prohibition on mask mandates and noted the same restraining order that the Parents

7
had referenced in their petition operated to restrain the Governor state-wide “from

enforcing the paragraphs of GA-38 that purport to prevent local school districts from

enforcing mask requirements.” The District’s pleading went on to assert that the

Parents could not obtain injunctive relief because (1) their suit was a collateral attack

on the Dallas County restraining order; (2) the Parents sought to alter the status quo;

(3) the parents could not show a probable right to relief under TOMA; (4) the Parents

could not show a probable right to declaratory relief because no matter GA-38, the

District had the legal right to impose its mask policy, the TDA did not give the

Governor the ability to contravene that power, and his effort to do so was

unconstitutional. Finally, the District challenged the Parents’ ability to establish

irreparable harm.

The trial court issued a temporary restraining order, finding that the District’s

mask policy “was made without authority and [was] actually an illegal act under

[Governor] Abbott’s Executive Order GA-38” and “[was] an apparent violation of

[TOMA].” The trial court also found that the Parents would suffer irreparable harm

if injunctive relief were not granted and that such relief preserved the status quo. The

temporary restraining order imposed the following restraint on the District: “[The

District] shall not deny any student or parent access to Fort Worth Independent

8
School District facilities based on a face covering, nor act in derogation of any right

enjoyed by a person wearing a face covering.” 1

After the issuance of the restraining order, Intervenor Smith filed his petition in

intervention. In essence, the intervention petition took the position that the District’s

“requirement that students and staff wear masks at school is lawful and enforceable.”

Intervenor Smith later amended his petition.

The District next filed a plea to the jurisdiction and a brief in opposition to the

Parents’ temporary-injunction request. The plea reiterated many of the arguments

raised in response to the Parents’ request for a restraining order. The jurisdictional

challenges made in the plea to the jurisdiction that were carried forward to this appeal

are that the Parents (1) failed to exhaust their administrative remedies, (2) did not

have standing to pursue their declaratory-judgment claim, (3) failed to allege a valid

declaratory-judgment claim, and (4) failed to allege a valid TOMA claim. The Parents

responded to the plea to the jurisdiction. Most of the arguments that the Parents

raised in their response to the plea to the jurisdiction are also raised in their appellate

brief, so we will detail those arguments in our analysis.

The trial court then held a hearing on the Parents’ application for a temporary

injunction. The trial court heard testimony from a number of witnesses who offered

the parties’ clashing positions on the efficacy of masks in slowing the spread of

COVID-19 and the effects that mask wearing has on children. The trial court

1
The trial court later extended the temporary restraining order.

9
admitted a number of declarations and affidavits submitted by the parties. The trial

court was unable to complete the hearing, and the parties submitted a number of

affidavits and declarations bearing on their respective positions. The parties also

presented written closing arguments addressing whether the trial court should issue a

temporary injunction.

While the litigation progressed, so did the District’s actions on its mask policy.

The same day the trial court conducted the live portion of the temporary-injunction

hearing, the District’s Board met (on August 26, 2021) and passed a resolution that

provided in part as follows:

2. Subject to the provisions of Paragraph 3, below, Fort Worth
Independent School District staff, students, parents, and all visitors at
Fort Worth Independent School District facilities are henceforth
required to wear protective facemasks, unless expressly excused from
such requirement for medical reasons. A medical exemption request
should be accompanied by written documentation from a licensed
physician regarding the medical need.

3. The directives in Paragraph 2 of this Resolution are hereby
made subject to any restrictions or judicial orders issued by the court in
Cause No[.] 352-327449-21, pending in the 141st District Court of
Tarrant County, styled Treger, et al v Scribner, et al, which currently has
resulted in a court order or court orders [that] may constrain the ability
of the Fort Worth Independent School District to implement and/or
enforce the directive contained in this Resolution. It is the intent of the
Fort Worth Independent School District Board of Trustees that the
District Administration vigorously enforce the directives contained in
this Resolution to the fullest extent possible, so long as such
enforcement does not violate the terms of an enforceable [o]rder in the
above-referenced suit, or any other [o]rder issued by a court in the State
of Texas [that] has jurisdiction over the Fort Worth Independent School
District.

10
 In the same time frame as the other filings described above, the Parents filed

two amended petitions; the second filed included material inadvertently omitted from

the first. The amended petition maintained the same structure of the Parents’ causes

of actions as the Parents’ first petition regarding a TOMA violation, declaratory relief,

and injunctive relief but added “new facts” apparently to support a contention that

the District’s Board had violated TOMA by conducting an improper closed meeting

before the Superintendent announced the August 10 mask policy that prompted the

Parents’ lawsuit. The District sought to strike the corrected petition; the trial court

denied that request but noted that it “did not consider the Corrected First Amended

Petition in any other rulings made this day.”

Based on the filings described above, the trial court denied the District’s plea to

the jurisdiction and granted the Parents’ request for temporary injunctive relief. The

injunction order stated that the trial court had granted relief because the trial court

had found “that [the District’s] face-covering rule as described by [the Parents] was

made without authority and is contrary to and in violation of [Governor] Abbott’s

Executive Order GA-38.” The injunction order, however, stated that the trial court

did not base its order of injunctive relief on a TOMA violation and reserved “ruling

on the requested injunctive relief regarding [the Parents’ TOMA] arguments.”

Continuing, the injunction order concluded that the Parents’ children “face[d]

irreparable harm, including significant and irreparable damage to their right to a

healthful environment while they receive a free and appropriate public education free

11
of activity sanctioned by the Fort Worth Independent School District which

[Governor] Abbott’s Executive Order GA-38 specifically prohibits.” Noting a recent

order from the Texas Supreme Court, the injunction order concluded that the status

quo was the state created by the Governor’s prohibition of mask mandates in GA-38

and accordingly found that it was acting to preserve that status quo. The injunction

order then imposed the following restraint:

NOW, THEREFORE, good cause appearing, the [c]ourt GRANTS the
application, and ORDERS . . . Scribner and the Fort Worth Independent
School District . . . and its agents to cease enforcement actions of the
face-covering rule described in the Application, pending the adjudication
of [the Parents’] claims in the present case, as follows:

[The District] shall not deny any student or parent access to
Fort Worth Independent School District facilities based on a face
covering, nor act in derogation of any right enjoyed by a person
wearing a face covering.

Further, [the District] shall inform its employees of this
Temporary Injunction and its contents, giving them notice that
violations of this Temporary Injunction are sanctionable.

The District perfected an appeal from the trial court’s denial of its plea to the

jurisdiction and the order granting the temporary injunction. Intervenor Smith filed a

notice of appeal with respect to the temporary-injunction order.

III. Analysis

A. We set forth the standard of review and the procedural process that
we utilize when addressing a plea to the jurisdiction.

“Governmental units, including school districts, are immune from suit unless

the [S]tate consents.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770

12
(Tex. 2018). “Because the assertion of sovereign immunity implicates the courts’

jurisdiction, immunity is properly raised in a plea to the jurisdiction.” Matzen v.

McLane, No. 20-0523, 2021 WL 5977218, at *3 (Tex. Dec. 17, 2021).2 A failure to

exhaust administrative remedies may also be raised in a plea to the jurisdiction. See

Watson v. City of Southlake, 594 S.W.3d 506, 524 (Tex. App.—Fort Worth 2019, pet.

denied) (considering the issue of the failure to exhaust administrative remedies, which

was raised in a plea to the jurisdiction).

“Where a government entity challenges jurisdiction on the basis of immunity,

‘the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid

waiver of immunity.’” Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927

(Tex. 2015) (quoting Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.

2003)). “Whether sovereign immunity defeats a trial court’s subject-matter

jurisdiction is a question of law . . . .” Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 904

(Tex. 2021). “We review orders on pleas to the jurisdiction de novo.” Matzen, 2021

WL 5977218, at *3.

Resolution of a plea to the jurisdiction may be on the pleadings or an

evidentiary record; “[a] plea to the jurisdiction ‘may challenge the pleadings, the

“Governmental immunity is the derivative form of sovereign immunity that
2

may extend to political subdivisions of the [S]tate, including school districts.” White
Deer Indep. Sch. Dist. v. Martin, 596 S.W.3d 855, 863 (Tex. App.—Amarillo 2019, pet.
denied).

13
existence of jurisdictional facts, or both.’” Tex. Dep’t of Crim. Just. v. Rangel, 595

S.W.3d 198, 205 (Tex. 2020) (quoting Clark, 544 S.W.3d at 770).

When a plea to the jurisdiction attacks the pleadings, the following principles

apply:

• “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.’” Id.

• “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)).

• “If the pleadings do not contain sufficient facts to affirmatively

demonstrate the trial court[’]s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency[,] and the plaintiffs should be afforded the opportunity to

amend.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–

27 (Tex. 2004).

• “If the pleadings affirmatively negate the existence of jurisdiction, then a

plea to the jurisdiction may be granted without allowing the plaintiffs an

opportunity to amend.” Id. at 227.

14
 The following principles apply to a plea to the jurisdiction that goes beyond a

facial challenge to the pleadings:

• When “the plea challenges the existence of jurisdictional facts, we must

move beyond the pleadings and consider evidence when necessary to

resolve the jurisdictional issues, even if the evidence implicates both

subject-matter jurisdiction and the merits of a claim.” Clark, 544 S.W.3d

at 770–71.

• When a plea to the jurisdiction requires the consideration of evidence,

we use a process that mirrors a traditional motion for summary

judgment. Id. at 771. Thus, the following shifting burdens apply:

o “Initially, the defendant carries the burden to meet the

summary[-]judgment[-]proof standard for its assertion that

the trial court lacks jurisdiction.” Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).

o “If [the defendant carries that burden], the plaintiff is then

required to show that a disputed material fact exists

regarding the jurisdictional issue.” Id.

o “If a fact issue exists, the trial court should deny the plea.”

Id.

15
 o “But if the relevant evidence is undisputed or the plaintiff

fails to raise a fact question on the jurisdictional issue, the

trial court rules on the plea as a matter of law.” Id.

o “In determining whether a material fact issue exists, we

must take as true all evidence favorable to the plaintiff,

indulging every reasonable inference and resolving any

doubts in the plaintiff’s favor.” Clark, 544 S.W.3d at 771.

o Finally, a trial court may defer the decision on a plea to the

jurisdiction: “[w]hether a determination of subject-matter

jurisdiction can be made in a preliminary hearing or should

await a fuller development of the merits of the case must

be left largely to the trial court’s sound exercise of

discretion.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000).

We address the question of whether there is jurisdiction on a claim-by-claim

basis. Amador v. City of Irving, No. 05-19-00278-CV, 2020 WL 1316921, at *7–8 (Tex.

App.—Dallas Mar. 20, 2020, no pet.) (mem. op.) (“[T]he Supreme Court has made

clear that ‘a plaintiff must demonstrate that the court has jurisdiction over . . . each of

his claims; the court must dismiss those claims (and only those claims) over which it

lacks jurisdiction.’” (quoting Heckman v. Williamson Cnty., 369 S.W.3d 137, 152–53

(Tex. 2012))).

16
 B. The trial court properly denied the District’s plea to the
jurisdiction directed at the Parents’ TOMA claim because its
challenge to those claims should be resolved on the merits rather
than as a jurisdictional challenge.

The District initially claims that the trial court erred by denying its plea to the

jurisdiction directed at the parents’ TOMA claim. The District’s argument is that the

Parents make no open-meetings challenge to the August 26 meeting at which the

existing mask policy was adopted, and thus, “[t]his action by the Board remedies any

alleged TOMA violation regarding allegations that past actions regarding the mask

policy did not comply with TOMA.” The Parents respond that the District’s

argument is a merits-based attack and not an attack that would deprive the trial court

of jurisdiction. We agree with the Parents that the question of whether the Board’s

alleged ratification remedies the TOMA violation does not implicate the trial court’s

jurisdiction.

No one challenges that the District’s Board is subject to TOMA. Indeed,

TOMA applies to “a school district board of trustees.” See Tex. Gov’t Code Ann.

§ 551.001(3)(E) (defining “[g]overnmental body” to include “a school district board of

trustees”). The District acknowledges that the Parents have standing to assert a

TOMA claim. TOMA provides that “[a]n interested person, including a member of

the news media, may bring an action by mandamus or injunction to stop, prevent, or

reverse a violation or threatened violation of this chapter by members of a

governmental body.” See id. § 551.142. Finally, TOMA provides that “[a]n action

17
taken by a governmental body in violation of this chapter is voidable.” See id.

§ 551.141.

There is little focus in the briefing on how the Parents postured their TOMA

claim. In their first amended petition, the Parents did focus on the Board’s actions

with respect to a special meeting held on August 10. In essence, the petition alleged

that an eleventh-hour change in the agenda for the meeting allowed an executive

session of the Board that was not authorized by the provision of TOMA that permits

a closed meeting for consultation with an attorney. The petition then noted that the

Board actually adopted the mask policy at a meeting held on August 26. Based on the

facts pleaded, the Parents alleged a TOMA violation as follows:

53. Due to the absence of [a] public record regarding how and why the
school mask mandate was adopted, [the District has] failed to
demonstrate that [the mandate] is predicated on a rigorous scientific and
medical basis. Even the Governor’s expired mask mandates exempted
children, yet the District, at some point, some place[,] adopted some
policy that differed from the Governor’s guidance, though that policy
appears to have been developed without an open vote.

54. Emails attached as Exhibits 4, 5, and 6 show that District
trustees recognized:

a. they needed to vote on COVID-19 policies (Exh. 3, on
July 20, 2020),

b. at some point there was a policy established (Exh. 4, March 10,
20[21]), and

c. they must vote to change the established policy (Exh. 5, March
21, 2021).

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 55. The Board’s meeting minutes from May 25, 2021[,] confirm
the necessity of a vote, as the Board voted on COVID-19 policies.
Exhibits 9a, 9b.

56. Having adopted such a policy, a superintendent has no
authority to overrule the policy at his whim. Based on the illegal addition of
the executive session at the last minute on August 11, 2021,[3] [the Parents] allege
that the Board met with Scribner and held an illegal vote to change policy, which
Scribner carried out.

57. [The Parents] assert that any major change in school policy requires a
vote of the trustees that follows the requirements of the [TOMA]; an illegal meeting
where the Board of Trustees deliberate, reach consensus, and then instruct Scribner to
change the policy as though he has the authority to do so by himself is a violation of
the [TOMA].

58. Indeed, as shown, only the school district’s Board of Trustees
has the exclusive power and duty to govern and oversee the
management of the public schools of the district under Tex. Educ. Code
§ 11.151(b).

59. The Board cannot delegate that power, to a Superintendent or
otherwise, because Tex. Educ. Code § 11.253(a) explicitly requires that
each school district, rather than each Superintendent, maintain the
relevant policy. See Rivera v. Hous[.] Indep. Sch. Dist., 349 F.3d 244 (5th
Cir. . . . 2003).

60. Should the Court wonder why this matters - one can note
that school board members can be removed under § 87.012 of the Texas
Local Government Code for incompetence and misconduct, such as
breaking laws. Board members have duties as elected officials - the buck
stops with them. [Emphasis added.]

As we read the petition, the Parents rely on the TOMA violation to support

both their declaratory-judgment claim and their request for injunctive relief. Under

the claim for declaratory relief, the Parents allege that they “seek to challenge validity

3
It appears that the date referenced is a typo and should refer to August 10.

19
of the mask policy, as it appears to be an illegally deliberated policy adopted during a

secret vote in an illegally noticed executive session.” Under their claim for injunctive

relief, the Parents allege that they “are entitled to a TRO[] because [the District] can

show no harm to the ISD[] in granting the relief requested. [The District] violated the

legal process and [TOMA].”

The District makes only a glancing attack on the Parents’ allegations that the

Board violated TOMA with respect to the August 10 meeting. That attack comes in a

footnote in the District’s reply brief that states,

[a]s discussed elsewhere, discussion regarding a potential policy by the
Board would not create a TOMA violation because it is undisputed that
there was an agenda item for discussion of back[-]to[-]school policies.
Notably, although [the Parents] allege [that] there was “a secret vote in
an illegally noticed executive session” at the August 1[0] meeting, [the
Parents] concede that they do not know whether any such vote occurred
and do not believe that this allegation is relevant to their TOMA claim.
[Record reference omitted.]

This footnote offers a crabbed view of the Parents’ argument, which is more subtle

than the District acknowledges:

[The Parents] take the position that the Board and [the] District adopted
a policy without an open vote, a violation of [TOMA]. Whether a secret
vote occurred or not is not relevant; policies set by Board vote must be
amended by Board vote. As the illegal executive session that gave rise to
the disputed policy was closed, [the Parents] cannot state with certainty
that a vote occurred. They can be sure that, at the least, a consensus
occurred that allowed the District’s [S]uperintendent to walk out and
change the District’s policy that had been created by a formal Board
vote.

20
 We have detailed the Parents’ allegations and the District’s attack on their

substance to demonstrate that the Parents have alleged a TOMA violation and that

the District’s attack on those allegations does not negate the possibility that a TOMA

violation occurred on August 10.

Again, the District’s primary argument is one of no harm–no foul because the

Parents do not claim that there was a TOMA violation with respect to the August 26

meeting when the mask policy was adopted by the District’s Board. The Parents’

response to this argument is two-pronged: (1) the District’s contention is one that

should be resolved on the merits; and (2) the August 26 meeting cannot ratify an act

that resulted from the deliberations on August 10 when those deliberations were

conducted in violation of TOMA. We do not reach the second issue but agree with

the holding of our sister court in Dallas that the question raised in that issue is not a

jurisdictional question; thus, we agree with the Parents that the trial court properly

denied the District’s plea to the jurisdiction.

The Dallas Court of Appeals in City of Plano v. Hatch analyzed whether an attack

on the invalidity of a ratification argument, such as the one raised here, implicated the

trial court’s jurisdiction and concluded that it did not. 584 S.W.3d 891 (Tex. App.—

Dallas 2019, no pet.).4 Hatch involved an argument by the City of Plano in response

to a TOMA claim that parallels the District’s argument in response to the Parents’

TOMA claim—“the City argues that its subsequent ratification of the Ordinance on

The Parents erroneously cite Hatch as being an opinion out of this court.
4

21
December 8, 2014[,] deprived the trial court of jurisdiction over the Hatches’

complaints about the City’s actions prior to December 8.” Id. at 900.

The governmental entity in Hatch relied on a prior opinion from the Dallas

Court of Appeals, a case on which the District places strong reliance in the present

appeal. The case, City of Combine v. Robinson, held that a vote conducted at a

subsequent meeting of the city council ratified a vote taken at a prior meeting and

negated a justiciable controversy about the validity of the action at the prior meeting.

No. 05-10-01384-CV, 2011 WL 3570510, at *3 (Tex. App.—Dallas Aug. 16, 2011, no

pet.) (mem. op.). Hatch distinguished Robinson because the plaintiffs in Hatch “pleaded

that the City’s subsequent ratification was the result of the City’s TOMA violations.”

Hatch, 584 S.W.3d at 901. Hatch explained why it viewed the argument raised by the

City of Plano as one directed to the merits of the plaintiffs’ claims as follows:

Here, the City’s arguments that “TOMA does not make an ordinance
voidable when it was adopted in a legal, open meeting” go to the merits
of the Hatches’ claims. See Hays [Cnty. v. Hays Cnty. Water Plan. P’ship], 69
S.W.3d [253,] 259 [(Tex. App.—Austin 2002, no pet.)] (“In reality, Hays
County’s argument that no action was taken in violation of [TOMA]
goes to the merits of [the plaintiff’s] claims and thus is not the proper
subject of an interlocutory appeal.”); [City of Austin v.] Savetownlake.Org,
[No. 03-07-00410-CV,] 2008 WL 3877683, at *5 [(Tex. App.—Austin
Aug. 22, 2008, no pet.) (mem. op.)] (“[T]he City also argues that
Savetownlake does not make a valid [TOMA] claim to confer
jurisdiction on the trial court[] . . . because the City did not violate
[TOMA] as alleged by Savetownlake. . . . [T]his argument attacks
Savetownlake’s right to relief under the statute, not the trial court’s
subject[-]matter jurisdiction to award it.”).

22
Id. Hatch expressed no opinion on the merits of the ratification argument made by the

residents suing the City of Plano but merely “conclude[d] [that] the trial court did not

err by rejecting the City’s argument that the Council’s subsequent vote deprived the

trial court of jurisdiction.” Id. at 902.

Also, as other courts have noted, “TOMA expressly waives sovereign immunity

for violations of the Act.” Gillium v. Santa Fe Indep. Sch. Dist., No. 01-10-00351-CV,

2011 WL 1938476, at *7 (Tex. App.—Houston [1st Dist.] May 12, 2011, no pet.)

(mem. op.) (citing Tex. Gov’t Code Ann. § 551.142). In view of this waiver of

immunity, when a governmental entity’s arguments are couched in terms of whether a

claim has merit, those claims should be resolved on the merits. Id.

Here, the Parents’ allegations, though not using the term “ratification,” allege

that the District’s Board improperly met in secret to formulate a policy and allegedly

used the Superintendent to announce the secretly formulated policy as a cover for the

actions that they did not want to disclose. We express no opinion on the validity of

that claim and also note that the District, other than the glancing attack we referenced

above, did nothing to challenge that claim on appeal. Instead, the District relies on its

ratification theory. Based primarily on Hatch, we hold that the District’s argument is

one to be resolved on the merits. See 584 S.W.3d at 901–02. The trial court did not

err by denying the District’s plea to the jurisdiction attacking the Parents’ TOMA

claim, at least to the extent the claim sought injunctive relief.

23
 Though the trial court properly denied the District’s jurisdictional challenge to

the Parents’ TOMA-violation claim, we again note that the trial court did not

predicate its injunction on a TOMA violation. Thus, we cannot sustain the injunction

on the basis of a TOMA violation. Also, though no party raises the issue, we must

also note that the Parents cannot plead a declaratory-judgment claim against the

District on the basis of a TOMA violation in view of the Texas Supreme Court’s

holding that TOMA does not waive governmental immunity for anything other than a

mandamus or injunction action.5

C. The trial court erred by denying the District’s plea to the
jurisdiction directed at the Parents’ UDJA claim. With respect to
other potential claims that might challenge the District’s mask
policy, the Parents disavowed that they were bringing an ultra
vires claim, and though their pleading references a constitutional
violation, it does not specify the right being violated.

The District launches a multi-prong attack against the Parents’ UDJA claim.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011. Our task in resolving this issue

is complicated by the fact that the Parents’ briefing is conclusory and is unsupported

by any authority. Though left to our own devices, we resolve the District’s arguments

5
The Parents seek declaratory relief based on the District’s alleged TOMA
violation. The District mentions the supreme court’s opinion in Town of Shady Shores v.
Swanson, 590 S.W.3d 544 (Tex. 2019). But no one discusses its holding that the waiver
of immunity found in TOMA is limited because TOMA “goes on to state very clearly
the authorized mechanism to obtain that result: a suit ‘by mandamus or injunction to
stop, prevent, or reverse a violation or threatened violation’ of the Act. Tex. Gov’t
Code §§ 551.141–.142(a).” Id. at 554–55; see also Carowest Land, Ltd. v. City of New
Braunfels, 615 S.W.3d 156, 158 (Tex. 2020) (op. on reh’g) (“In Swanson, this Court held
that ‘[TOMA] does not waive governmental immunity from suit for [declaratory-
judgment] claims as a matter of law.’”).

24
as follows: (1) we reject the District’s standing challenge to the UDJA claim; (2) we

accept the District’s argument that, as presently postured, the Parents have not alleged

a viable UDJA claim but conclude that the Parents attempted to allege a viable claim

to support injunctive relief; and (3) we reject the District’s argument that the Parents

should have exhausted administrative remedies before bringing suit. The upshot of

these resolutions is that, because the trial court specifically stated that it was not

relying on the Parents’ TOMA claim as a basis for the injunction, the cause of action

that formed the basis of the trial court’s injunction was not viable and thus we

dissolve the injunction. However, we remand this matter to the trial court to accord

the Parents an opportunity to replead.

1. We reject the District’s standing challenge to the Parents’
UDJA claim.

In its first argument, the District argues that the Parents “do not have standing

to bring a UDJA claim challenging the lawfulness of governmental actions or seeking

to enforce laws against a governmental entity.” This argument paints with too broad

a brush. The District plucks broad language from one opinion it cites and leverages

that language into a general proposition. But the cases that the District cites and the

other principles that it references in its brief acknowledge that there are a host of

means to launch a challenge to the actions of public officials.

It is a truism that there is a lack of standing to launch an abstract attack on

governmental action. The District makes this point by highlighting a quote from the

25
Texas Supreme Court’s discussion in a case involving taxpayer standing. See Williams

v. Lara, 52 S.W.3d 171, 180 (Tex. 2001). Williams noted the limitations in taxpayer-

standing principles because “‘[g]overnments cannot operate if every citizen who

concludes that a public official has abused his discretion is granted the right to come

into court and bring such official’s public acts under judicial review.’” Id. But even

the case from which this quote is plucked noted that in certain circumstances a

taxpayer may have standing. Id. One of the other cases cited by the District involved

voter standing and stated the principle that the standing inquiry turns on “whether the

plaintiffs sue solely as citizens who insist that the government follow the law.”

Andrade v. NAACP of Austin, 345 S.W.3d 1, 8 (Tex. 2011). The case then concluded

that the voters before it had standing to raise their challenge. Id. at 11.

Thus, the cases cited by the District demonstrate that the standing question is

far more nuanced than the District’s suggestion that there is a blanket prohibition on

citizen challenges to a government official’s exercise of discretion. Indeed, the

District acknowledges that “the [Texas] Legislature may grant private standing to

bring such actions, but it must do so clearly.” Brown v. De La Cruz, 156 S.W.3d 560,

566 (Tex. 2004).

The District also cites our opinion in Schmitz v. Denton County Cowboy Church and

its holding that a private party could not seek an injunction to enforce a town’s zoning

laws against another property owner. 550 S.W.3d 342, 359–60 (Tex. App.—Fort

Worth 2018, pet. denied) (mem. op. on reh’g). We held in Schmitz that the

26
complaining property owner had no standing to assert such a claim because the

relevant statutory provision governing zoning enforcement “empowered only the

[t]own to enforce its zoning ordinances, divesting the trial court of jurisdiction over

Appellants’ private-enforcement attempt based on their lack of standing.” Id. at 360.

Here, the Parents are not acting as a private attorney general to take on a role assigned

to government to enforce a law. Instead, they are challenging the impact of the

District’s actions on their children. How the principle of Schmitz applies in this

circumstance is not explained by the District.

As an abstraction, the District’s argument that citizens do not have a

generalized right of standing to challenge every law they disagree with is correct. But,

whether by design or not, the District is not making the actual standing argument that

could impact the Parents’ claim, i.e., a claim that would have to be predicated on the

assertion that the Parents lack standing to challenge a policy that impacts the

education of their children. The true substance of the District’s argument is that the

Parents have not invoked the remedy that overcomes governmental immunity, i.e.,

their declaratory-judgment claim asserting that the District’s mask policy violates the

Governor’s order or the failure of the Parents to meet a precondition to making that

challenge—the Parents’ alleged failure to exhaust their administrative remedies. Thus,

we reject the District’s abstract standing challenge, but we will analyze the District’s

arguments in the specific context in which they fall.

27
 2. The trial court erred by denying the District’s jurisdictional
challenge to the Parents’ UDJA claim.
We frankly struggle to unravel the Parents’ allegations and their arguments on

appeal on their UDJA claim.6 Because the trial court’s basis for its temporary-

injunction order appears to be grounded on the claim that sought a declaration that

the District’s mask policy violated GA-38, we set out the Parents’ allegations in detail.

Outside a claim of a TOMA violation, the sum total of the Parents’ allegations under

the other cause of action that they allege—their UDJA claim—are as follows:

63. [The Parents] seek a declaration that the District’s mask policy is
void for illegality and thus unenforceable, based on their own standing
and special injuries they are suffering, including bullying, isolation, etc.,
as described above.

64. [The Parents] seek to challenge validity of the mask policy, as
it appears to be an illegally deliberated policy adopted during a secret
vote in an illegally noticed executive session. [The Parents] assert a claim
under the [UDJA] to allow them to seek a determination of a question of validity
arising under the face-covering policy in light of GA-38.

65. [The Parents] seek to clarify their legal relations with regard to
these “legal relations” as they are referenced by Tex. Civ. Prac. & Rem.
Code § 37.004(a).

66. [The Parents] do not seek only to challenge the lawfulness of
District actions, but they also seek a declaration of rights regarding the

6
As we have noted, the trial court’s order with respect to the District’s motion
to strike the Parents’ corrected first amended petition stated that “the [c]ourt did not
consider the Corrected First Amended Petition in any other rulings made this day.”
The order with the quoted provision was signed the same day as the temporary-
injunction order. No one argues that the quoted provisions of the order denying the
motion to strike left the Parents without a pleading to support their request for
injunctive relief.

28
 District’s mask policy, which when implemented is depriving children of
a constitutional right to education.

67. As described in the Petition for Writ of Mandamus filed in
the Fifth District Court of Appeals, styled In Re: Greg Abbott, Cause No.
05-21-00687-CV, [Governor] Abbott’s GA-38 constitutes state law, and
cannot be trumped by a local despot, no matter how much he wants to
do something other than follow the law.

68. Also, in Cause No. 21-0720, the Texas Supreme Court has
recently stayed an injunction to stop enforcement of GA-38 in Bexar
County. This action should be a clear indication that [Governor] Abbott
is going to win these challenges to his authority. [The Parents] are not
obligated to wait. [Emphasis added.] [Exhibit references omitted.]

The clarity of the Parents’ UDJA claim is not improved with their description

of that claim in their response to the District’s plea to the jurisdiction:

10. [The Parents], unlike [the District], are not challenging GA-38 or
any other Texas law for that matter, and so they need not implicate the
State’s immunity; they seek a declaration with regard to the District - can a school
district adopt a militant mask policy without infringing upon a student’s right to a
free and appropriate education, and does such a policy violate rights which GA-38
protects?

11. As both the Original and First Amended Petition make clear,
the mask rule is vague. Because it is based on political science instead of
medical science, it has no specification - can the mask be made of cheese
cloth, table tennis netting, or is only an N95 sufficient? [The Parents]
have not stated that the District may not implement any mask covering
under any conditions whatsoever[] but seek a declaration regarding what
rights they have, as expressed above. [The Parents] seek to determine if
a vague rule comports with their rights, or is the mask rule completely
invalid? [Emphasis added.]

Thus, the emphasized portions of the Parents’ allegations and contentions turn on a

declaration of the Parents’ rights predicated on the claim that the District mask policy

contravenes GA-38.

29
 And, again, the claim—that the District acted in violation of the Governor’s

order—appears to be the basis for the trial court’s temporary injunction as reflected in

its statement that “[t]he [c]ourt FINDS that the [District’s] face-covering rule as

described by [the Parents] was made without authority and is contrary to and in

violation of [Governor] Abbott’s Executive Order GA-38.” Other than the vague

reference to the lack of authority, it is clear that the basis of the injunction is that the

District’s mask policy contravenes the Governor’s prohibition on the imposition of

such a mandate.

On appeal, the Parents’ briefing provides us with no substantive explanation of

why they contend that they have a valid UDJA claim. The portion of the Parents’

brief arguing why jurisdiction exists cites no authority and does little more than parrot

the allegations in their petition:

46. [The Parents] are not challenging GA-38 or any other Texas law[,]
and so they need not implicate the State’s immunity; they seek a
declaration: can a school district adopt a militant mask policy without
infringing upon a student’s right to a free and appropriate education, and
does such a policy violate rights which GA-38 protects?

47. [The Parents] did not state that the [District] may not
implement any mask rules under any conditions whatsoever[] but seek a
declaration regarding what rights they have, as expressed above.

48. [The Parents] believe that FWISD cannot delegate the
creation of district-wide rules to a superintendent’s general authority,
especially when those rules have an impact on the education of small
children.[7]

This allegation appears to have been a leftover from a prior pleading of the
7

Parents because the Parents acknowledge that the Board has adopted a policy.

30
 49. [The Parents] have asserted that a militant mask rule that
masks children unnecessarily is a violation of the constitutional right to
an education provided in the least restrictive environment and that this
right cannot be cavalierly abridged by a school district acting without
authority. That constitutional right predates GA-38 and will continue
long after GA-38 is no longer an issue.

50. [The Parents] take the position that the Board and [the]
District adopted a policy without an open vote, a violation of [TOMA].
Whether a secret vote occurred or not is not relevant; policies set by
Board vote must be amended by Board vote. As the illegal executive
session that gave rise to the disputed policy was closed, [the Parents]
cannot state with certainty that a vote occurred. They can be sure that,
at the least, a consensus occurred that allowed the District’s
[S]uperintendent to walk out and change the District’s policy that had
been created by a formal Board vote.

51. [The Parents] therefore fall completely into the allowed
declarations described by [the District]: they seek a declaration regarding
their rights and status with respect to the District’s mask rule[] and the
constitutional validity of that rule.

52. A last-minute executive session during which the Board of
Trustees purportedly discussed GA-38 took place. Directly following
that executive session, Scribner announced the new policy. [The
Parents] assert that what occurred was an illegal deliberation culminating
in either an illegal vote for the new policy or a new policy illegally
implemented without a vote.

The remaining paragraphs of the Parents’ brief discuss a TOMA violation.

Thus, other than the TOMA violation, as we parse the Parents’ allegations, it

appears that they seek declarations that (1) the District’s mask policy violates GA-38

because of the Governor’s prohibition on mask mandates, (2) the mask policy

deprives their children of a right to a free and appropriate education, and (3) the

District’s mask policy is defective because it is vague and has no rational basis.

31
 Turning first to the claim that the District’s mask policy contravenes GA-38,

the District challenges the trial court’s denial of its plea to the jurisdiction because

“[t]he trial court should also have dismissed [the] Parent[s’] . . . UDJA [claim] because

the UDJA does not waive immunity for claims that a local governmental entity is

violating the law or challenging local policies adopted by governmental entities.” We

agree that, in essence, the Parents are arguing for a declaration of their rights based on

the claim that the District is violating the law established by GA-38 and that the trial

court granted temporary injunctive relief based on that claim. The District is correct

that the UDJA does not waive governmental immunity for such a claim.

A concise summary of the relevant principles governing what type of claim may

be asserted against a governmental entity under the UDJA is found in City of New

Braunfels v. Carowest Land, Ltd.:

The UDJA gives Texas courts the power to “declare rights, status, and
other legal relations whether or not further relief is or could be claimed.”
Tex. Civ. Prac. & Rem. Code [Ann.] § 37.003(a). “A person interested
under a . . . written contract . . . may have determined any question of
construction or validity arising under the . . . contract . . . and obtain a
declaration of rights, status, or legal relations thereunder.” Id.
§ 37.004(a). The UDJA, however, does not create or augment a trial
court’s subject[-]matter jurisdiction—it is “merely a procedural device
for deciding cases already within a court’s jurisdiction.” Tex[.] Ass’n of
Bus. v. Tex[.] Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see Tex[.]
Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) . . . (noting
that [the] Texas Supreme Court has consistently stated that [the] “UDJA
does not enlarge the trial court’s jurisdiction but is ‘merely a procedural
device for deciding cases already within a court’s jurisdiction’”).
Accordingly, the UDJA “is not a general waiver of sovereign immunity”
but only waives “immunity for certain claims.” Tex[.] Parks & Wildlife
Dep’t v. Sawyer Tr[.], 354 S.W.3d 384, 388 (Tex. 2011); McLane Co. v. Tex[.]

32
 Alcoholic [Beverage] Comm’n, 514 S.W.3d 871, 876–77 (Tex. App.—Austin
2017, pet. [denied]); see Ex [p]arte Springsteen, 506 S.W.3d [789,] 798–99
[(Tex. App.—Austin 2016, pet. denied)] (“[T]he UDJA’s sole feature that
can impact trial-court jurisdiction to entertain a substantive claim is the
statute’s implied limited waiver of sovereign or governmental immunity
that permits claims challenging the validity of ordinances or statutes.”
(citing Tex[.] Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d
628, 634–35 (Tex. 2010) (citing Tex. Civ. Prac. & Rem. Code [Ann.]
§ 37.006(b)))).

Further, the UDJA does not waive immunity “when the plaintiff
seeks a declaration of his or her rights under a statute or other law.”
Sefzik, 355 S.W.3d at 621; see City of El Paso v. Heinrich, 284 S.W.3d 366,
372–73 (Tex. 2009) (explaining that “government entities themselves—
as opposed to their officers in their official capacity—remain immune
from suit” against claims brought under [the] UDJA that challenge [the]
government’s actions taken under law); McLane Co., 514 S.W.3d at 876–
77 (concluding that “[the] UDJA does not waive sovereign immunity for
‘bare statutory construction claims’”). Such a claim asserted directly
against the governmental entity is barred by immunity unless the [Texas]
Legislature has expressly waived immunity elsewhere as to that particular
claim. Sefzik, 355 S.W.3d at 621–22; see Sawyer Tr[.], 354 S.W.3d at 388
(explaining that “sovereign immunity will bar an otherwise proper
[U]DJA claim that has the effect of establishing a right to relief against
the State for which the [Texas] Legislature has not waived sovereign
immunity” (citing City of Hous. v. Williams, 216 S.W.3d 827, 828–29 (Tex.
2007) . . .)). “And a litigant’s couching its requested relief in terms of
declaratory relief does not alter the underlying nature of the suit.” Sawyer
Tr[.], 354 S.W.3d at 388 (citing Heinrich, 284 S.W.3d at 370–71; Tex[.]
Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)).

549 S.W.3d 163, 170–71 (Tex. App.—Austin 2017), vacated on other grounds by 615

S.W.3d 156 (Tex. 2020).

We have also explained why there is no waiver of immunity for a UDJA claim

that seeks construction of a statute or seeks a declaration of parties’ rights under a

statute:

33
The UDJA’s waiver of immunity is limited to challenges to a statute or
an ordinance’s validity. [Hegar v. CSG Forte Payments, No. 03-19-00325-
CV, 2020 WL 7233605, at *3 (Tex. App.—Austin Dec. 9, 2020, no pet.)
(mem. op.)]. As the Austin court has explained, the UDJA does not
waive immunity on the questions of statutory construction or a
declaration of rights:

As the Texas Supreme Court has clarified, the UDJA’s sole
feature that can affect a trial court’s jurisdiction to entertain
a substantive claim is the statute’s implied limited waiver of
sovereign immunity for claims challenging the validity of
ordinances or statutes. See Tex[.] Lottery Comm’n[ . . . ], 325
S.W.3d [at] 634–35 . . . (citing Tex. Civ. Prac. & Rem. Code
[Ann.] § 37.006(b); Tex[.] Educ. Agency v. Leeper, 893 S.W.2d
432, 446 (Tex. 1994)). It has squarely repudiated the once
widespread notion that the UDJA confers some broader
right to sue the government to obtain “statutory
construction” or a “declaration of rights.” See Sefzik, 355
S.W.3d at 621–22 (“The UDJA does not waive the [S]tate’s
sovereign immunity when the plaintiff seeks a declaration
of his or her rights under a statute or other law.”); . . .
Sawyer Tr., 354 S.W.3d [at] 388 . . . (“there is no general
right to sue a state agency for a declaration of rights” in
light of limited scope of UDJA’s immunity waiver).

Id.; see also Town of Shady Shores . . . , 590 S.W.3d [at] 552–53 . . . (“[T]he
UDJA does not contain a general waiver of sovereign immunity,
providing only a limited waiver for challenges to the validity of an
ordinance or statute. UDJA claims requesting other types of declaratory
relief are barred absent a legislative waiver of immunity with respect to
the underlying action.” (citations omitted)); City of San Antonio v. San
Antonio Park Police Officers Ass’n, No. 04-20-00213-CV, 2021 WL
2942531, at *5–6 (Tex. App.—San Antonio July 14, 2021, [pet. filed])
(mem. op.) (holding that the UDJA does not waive immunity for a claim
seeking a declaration of rights under Local Government Code Chapter
143); Pidgeon v. Turner, 625 S.W.3d 583, 598 (Tex. App.—Houston [14th
Dist.] 2021, [pet. filed]) (“Appellants, in their amended petition, request
declarations to address violations of state law; none challenge a statute or
[an] ordinance. Because appellants seek only to enforce existing law, this
exception to governmental immunity is not available.” (footnote
omitted)).

34
Arlington Pro. Firefighters v. City of Arlington, No. 02-19-00156-CV, 2021 WL 4205012, at

*25 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (mem. op.).

Here, the Parents assert that they are seeking some generalized declaration of

what their rights are. But by taking harbor in this level of generality, they are

attempting to camouflage the declaration that they really seek—a declaration that GA-

38 has the force of law and that a proper construction of the disaster declaration

prohibits the District’s imposition of a mask mandate. The Parents want to enforce

an existing law in the form of GA-38. That is simply not a declaratory-judgment

claim for which governmental immunity has been waived. Thus, the trial court erred

by denying the District’s challenge to the Parents’ UDJA claim.

3. The Parents disavowed that they were bringing an ultra vires
claim.
Of course, the lack of a declaratory-judgment claim does not mean that a party

who claims that a governmental official is violating the law is without a remedy; the

law permits ultra vires claims against government officials who flaunt the law.

Though the Parents had such a remedy available to them, they did not bring that

claim as they could only bring that claim against a governmental official and not a

governmental entity, such as the District. To the extent that the Parents could have

lodged such a claim against the Superintendent, they disavowed that they were doing

so. Thus, as pleaded and on the basis of their statements, an ultra vires claim cannot

save the Parents’ claim from the District’s jurisdictional challenge.

35
 When a governmental official violates the law, an ultra vires claim may be

brought; that claim has the following parameters:

Sovereign immunity extends to state officials acting in their official
capacity. See Heinrich, 284 S.W.3d at 369–70. An exception to sovereign
immunity applies when a party alleges that the government officer acted
“without legal authority or failed to perform a purely ministerial act.” Id.
at 372. To fall within this exception to immunity, however, “a suit must
not complain of a government officer’s exercise of discretion[] but rather
must allege, and ultimately prove, that the officer acted without legal
authority or failed to perform a purely ministerial act.” Id. An officer
acts without legal authority if he “exceeds the bounds of his granted
authority or if his acts conflict with the law itself.” Hous[.] Belt &
Terminal Ry. Co. v. City of Hous[.], 487 S.W.3d 154, 158 (Tex. 2016). If the
plaintiff alleges[] or ultimately can prove only acts within the officer’s
legal authority and discretion, the claim seeks “to control state action”
and is barred by sovereign immunity. Id.; KEM Tex., Ltd. v. Tex[.] Dep’t
of Transp., No. 03-08-00468-CV, 2009 WL 1811102, at *2 (Tex. App.—
Austin June 26, 2009, no pet.) (mem. op.).

Hartzell v. S.O., 613 S.W.3d 244, 251–52 (Tex. App.—Austin 2020, pet. filed).

Alleging a governmental official has acted “‘without legal authority’ has two

fundamental components: (1) authority giving the official some (but not absolute)

discretion to act and (2) conduct outside of that authority.” Hall v. McRaven, 508

S.W.3d 232, 239 (Tex. 2017)).

The proper defendant for an ultra vires claim is not a governmental entity but

instead is a governmental official or an employee of a governmental entity. See

Heinrich, 284 S.W.3d at 372–73. “The basic justification for this ultra vires exception to

[governmental] immunity is that ultra vires acts—or those acts without authority—

should not be considered acts of the [entity] at all.” Hall, 508 S.W.3d at 238.

36
“Consequently, ‘ultra vires suits do not attempt to exert control over the [governmental

entity]—they attempt to reassert the control of the [governmental entity]’ over one of

its agents.” Id. (quoting Heinrich, 284 S.W.3d at 372).

Thus, the Parents cannot bring an ultra vires claim against the District, and they

did not sue the District’s Board members in their official capacities. Further, the

Parents appear to disavow that they are bringing an ultra vires claim against the

Superintendent. Specifically, their response to the District’s plea stated,

Thus, [the Parents] fall completely into the allowed declarations
described by [the District] - they seek a declaration regarding their rights
and status with respect to the District’s mask rule, and the constitutional
validity of that rule, and not a claim against Scribner for ultra vires
actions.

The Parents placed themselves between a rock and a hard place jurisdictionally;

they clung to their UDJA claim, which could not overcome the District’s immunity

and then disavowed the claim that might have provided them the relief that they

sought.

4. The Parents’ petition suggests that they seek an injunction
based on a constitutional violation but have failed to
articulate what constitutional provision has been violated.
There is another possible avenue of relief available to the Parents: an

injunction based on a constitutional violation. At present, because the Parents have

failed to articulate what constitutional violation that they claim has occurred, we are

unable to determine whether their claim is viable or not.

37
 With respect to the remedy of an injunction based on a constitutional violation,

this court has stated,

The Texas Supreme Court has explained that governmental entities do
not possess immunity for violations of the Texas constitution because

[t]he guarantees found in the Bill of Rights are excepted
from the general powers of government; the State has no
power to commit acts contrary to the guarantees found in the Bill of
Rights. Tex. Const. art. 1, § 29. Section 29 has been
interpreted as follows: any provision of the Bill of Rights is
self-executing to the extent that anything done in violation
of it is void. . . . Such a declaration [of voidness] is
different from seeking compensation for damages, or
compensation in money for a loss or injury. Thus, suits for
equitable remedies for violation of constitutional rights are
not prohibited. Section 29 does not support . . . a private
right of action for damages . . . under the Texas
[c]onstitution.

City of Beaumont v. Bouillion, 896 S.W.2d 143, 148–49 (Tex. 1995)
(emphasis added); see also, e.g., City of Elsa v. M.A.L., 226 S.W.3d 390,
391–92 (Tex. 2007) (recognizing that governmental entities may be sued
for injunctive relief under the Texas constitution); City of Arlington v.
Randall, 301 S.W.3d 896, 907 (Tex. App.—Fort Worth 2009, pet. denied)
(recognizing that governmental entities may be sued for equitable relief
under the Texas constitution); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d
464, 469 (Tex. App.—Fort Worth 1997, writ denied) (op. on reh’g)
(same); Harris [Cnty.] v. Going, 896 S.W.2d 305, 308–09 (Tex. App.—
Houston [1st Dist.] 1995, writ denied) (same).

City of Fort Worth v. Jacobs, 382 S.W.3d 597, 598 (Tex. App.—Fort Worth 2012, pet.

dism’d).

More recent supreme court authority has confirmed that when a claim is

directed at the constitutionality of a statute or a regulation, and not a governmental

official based on an ultra vires act, suit may be brought against the governmental

38
entity itself. Patel v. Dep’t of Licensing & Regul., 469 S.W.3d 69, 76–77 (Tex. 2015). In

Patel, the State acknowledged the Texas Supreme Court’s “decisions to the effect that

sovereign immunity is inapplicable when a suit challenges the constitutionality of a

statute and seeks only equitable relief.” Id. at 75–76. When the State claimed that the

supreme court had departed from the line of cases standing for this principle, the

supreme court confirmed that it had not. Id. at 76. Patel went on to explain that

[i]n this case, the [plaintiffs] did not plead that the Department and
Commission officials exceeded the authority granted to them; rather,
they challenged the constitutionality of the cosmetology statutes and
regulations on which the officials based their actions. The State
proposes that an official can act ultra vires either by acting inconsistently
with a constitutional statute or by acting consistently with an
unconstitutional one. It urges that the [plaintiffs’] claims fall within the
“acting consistently with an unconstitutional statute” category. But the
premise underlying the ultra vires exception is that the State is not
responsible for unlawful acts of officials. Heinrich, 284 S.W.3d at 372.
The State’s proposal would effectively immunize it from suits claiming a
statute is unconstitutional—an illogical extension of that underlying
premise.

Id.; see also El Paso Indep. Sch. Dist. v. McIntyre, 584 S.W.3d 185, 199 (Tex. App.—

El Paso 2018, no pet.) (stating that for the equitable rule to apply, the claim must be

directed not to the action of a governmental employee but to a rule or a statute).

But to invoke the rule permitting a party to seek equitable relief for a violation

of constitutional rights, there must be a pleading of a viable constitutional claim. As

the Dallas Court of Appeals recently explained,

The Texas Constitution’s Bill of Rights does not provide a private right
of action for damages for violations of constitutional rights, but suits for
equitable or injunctive relief may in some instances be brought to

39
 remedy violations of the Texas Constitution. See City of Elsa . . . , 226
S.W.3d [at] 391 . . . ; . . . Bouillion, 896 S.W.2d [at] 148–49 . . . ; City of
Hous[.] v. Downstream [Env’t], L.L.C., 444 S.W.3d 24, 38 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied). Even so, however, “this limited
waiver of immunity exists only to the extent the plaintiff has pleaded a
viable constitutional claim.” Downstream [Env’t], 444 S.W.3d at 38; City of
Hous[.] v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). The fact that a plaintiff alleges unconstitutional
conduct by an official does not alone mean it has avoided immunity and
invoked a trial court’s jurisdiction. Creedmoor–Maha Water Supply Corp.[ v.
Tex. Comm’n on Env’t Quality], 307 S.W.3d [505,] 515 [(Tex. App.—Austin
2010, no pet.)]. A plaintiff must still plead a valid constitutional
violation. See Patel . . . , 469 S.W.3d [at] 77 . . . (stating “principle that
claims against state officials—like all claims—must be properly pleaded
in order to be maintained”); Klumb v. Hous[.] Mun. [Emps.] Pension Sys.,
458 S.W.3d 1, 13 (Tex. 2015) (“While it is true that sovereign immunity
does not bar a suit to vindicate constitutional rights, immunity from suit
is not waived if the constitutional claims are facially invalid.”[ (citations
omitted))]; see also Creedmoor–Maha Water Supply Corp., 307 S.W.3d at 516;
Chisholm Trail SUD Stakeholders Grp. v. Chisholm Trail Special Util. Dist.,
No. 03-16-00214-CV, 2017 WL 2062258, at *6 (Tex. App.—Austin May
11, 2017, pet. denied) (mem. op.).

Brown v. Daniels, No. 05-20-00579-CV, 2021 WL 1997060, at *9 (Tex. App.—Dallas

May 19, 2021, no pet.) (mem. op.).

At present, the Parents’ petition makes a vague reference to a violation of

constitutional rights: “[The Parents] do not seek only to challenge the lawfulness of

[the] District[’s] actions, but they also seek a declaration of rights regarding the

District’s mask policy, which when implemented is depriving children of a

constitutional right to education.” In their brief, the Parents assert that the District’s

mask rule “is a violation of the constitutional right to an education provided in the

least restrictive environment.” However, in their request for a temporary and

40
permanent injunction, the Parents’ allegations do not directly mention but vaguely

reference a constitutional violation, though the present allegations offer more heat

than light:

82. Similarly, [the Parents] seek that this [c]ourt first temporarily enjoin,
and then permanently enjoin the [District], restraining it or anyone acting
on its behalf, including teachers, from enforcing its mask policy.

83. Absent judicial intervention, [the Parents] face ongoing
requirements impacting their education[] and have no practical ability to
prevent the District from continuing to focus on ideological bullying and
songs about mask-wearing that would make Joseph Goebbels proud,
rather than the mundane work of education.

The Parents’ challenge to the form of the District’s mask policy hints as well at

a possible constitutional violation. The Parents’ claim is that the District’s mask

policy is vague and has no rational basis to stop the spread of COVID-19. What we

are to make of this allegation is another matter where we are left in the dark because it

is not mentioned in the Parents’ brief. We do not know if this is an allegation that the

policy is unconstitutionally vague or if it suffers from some other constitutional

defect. See A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 224–25 (5th Cir. 2009)

(analyzing whether school dress policy was unconstitutionally vague “if it (1) fails to

provide those targeted by the statute a reasonable opportunity to know what conduct

is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory

enforcement”); Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ., No. 3:21-cv-1661-YY,

2021 WL 6063672, at *6–15 (D. Or. Dec. 22, 2021) (op. and order) (analyzing

challenge to school district’s mask policy under federal and state constitutional

41
principles). The requirement for the Parents to state the basis for a claim that the

District’s mask policy violates a constitutional provision or principle is unsatisfied at

present.

D. Exhaustion of administrative remedies

The District argues that the trial court lacked jurisdiction because the Parents

did not exhaust their administrative remedies. We conclude that the trial court did

not err by denying the District’s exhaustion challenge to the Parents’ TOMA claim.

Next, although at this point we do not know the form of the claims that will be made

on remand, it appears that reconciling the clash of powers between the District and

the Governor on the question of mandating or prohibiting the mandating of the

wearing of masks is a legal question involving statutory construction for which

exhaustion is not required. Also, at present, we cannot answer whether there is an

exhaustion-of-remedies requirement for the Parents’ vaguely stated constitutional

claim. Some constitutional claims require exhaustion of administrative remedies, but

some apparently do not. Until the Parents specify the type of constitutional claim that

they are making, we cannot know which category it falls into.

1. We set forth the general principle of exhaustion of
administrative remedies.
The Texas Supreme Court has set out the basic tenets of the exhaustion of

administrative remedies as follows:

42
 • “When the [Texas] Legislature 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 [Texas] Legislature 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.

• “If the party files suit before exhausting exclusive administrative

remedies, the courts lack jurisdiction and must dismiss the case.” Id.

2. We set forth the administrative structure and the exhaustion-
of-remedies requirements for matters involving “school
law.”
As the Texas Supreme Court has also explained, Texas operates under the

following administrative scheme for public schools:

The Texas Constitution requires the [Texas] Legislature to “establish and
make suitable provision for the support and maintenance of an efficient
system of public free schools.” Tex. Const. art. VII, § 1. To fulfill this
duty, the [Texas] Legislature has established the Texas Education Agency
(TEA), the office of the Commissioner of Education, the State Board of
Education (SBOE), and local school districts throughout the state. The
TEA consists of the Commissioner and agency staff. Tex. Educ. Code
[Ann.] § 7.002. The SBOE must fulfill its duties “with the advice and
assistance of the commissioner.” Id. § 7.102(b). School districts “have
the primary responsibility for implementing the state’s system of public
education and ensuring student performance in accordance with [the

43
 Education Code],” id. § 11.002, while the Commissioner serves as “the
educational leader of the state,” id. § 7.055(b)(1).

Id. at 545 (footnote omitted).

A provision of the Education Code directs what decision should be appealed to

the Commissioner of Education as educational leader of the state:

(a) Except as provided by Subsection (e), 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.

Tex. Educ. Code Ann. § 7.057(a). Though the statute uses the term “may appeal,” the

supreme court has “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.

The body of Section 7.057 defines “school laws of this state” to mean “Title 1

and this title and rules adopted under those titles.” Tex. Educ. Code Ann.

§ 7.057(f)(2). This verbiage means “all of the provisions of [T]itles 1 and 2 of the

Education Code and the administrative rules adopted under those titles.” Marquez,

487 S.W.3d at 546. “In short, aside from employment-contract disputes, the

Education Code limits administrative appeals to cases [in which] a person is aggrieved

44
by Titles 1 or 2 of the Education Code or a school board’s violation of them.”

McIntyre v. El Paso Indep. Sch. Dist., 499 S.W.3d 820, 824 (Tex. 2016). From this

limitation flows the principle that “[a]dministrative appeals are only permitted when a

person is aggrieved by the school laws, a school board’s violation of the school laws,

or its violation of a written employment contract.” Id. at 825. “In all other cases, a

person may resort directly to the courts.” Id. Section 7.057’s exhaustion-of-remedies

requirement is also subject to exceptions found both within the body of the statute

and the common law; we discuss those exceptions below.

3. There is no exhaustion-of-remedies requirement for the
Parents’ TOMA claim.
To the extent that the District argues that the Parents were required to exhaust

their administrative remedies before asserting their TOMA claim, the District is

simply wrong.

One of the exceptions to the exhaustion-of-remedies requirement of Section

7.057 is found in the body of that section; Subsection 7.507(a–1) provides that “[a]

person is not required to appeal to the commissioner before pursuing a remedy under

a law outside of Title 1 or this title to which Title 1 or this title makes reference or

with which Title 1 or this title requires compliance.” Tex. Educ. Code Ann.

§ 7.057(a–1). As the Texas Supreme Court explained in Marquez, the Texas

Legislature enacted Subsection (a–1) specifically in response to cases holding that

45
there was an exhaustion-of-remedies requirement prior to bringing a TOMA claim.

487 S.W.3d at 553–54. As the supreme court explained,

The [Texas] Legislature enacted subpart (a–1) in response to a court of
appeals’ decision that required claimants to exhaust administrative
remedies under the Education Code when bringing a claim against
school officials for failure to comply with [TOMA]. See House Comm.
on Pub. [Educ.], Bill Analysis, Tex. H.B. 829, 81st Leg., R.S. (2009) (“A
recent court ruling interpreted the Education Code in a way that would
require an individual who has a cause of action arising from the open[-]
meetings laws to exhaust administrative remedies by taking his or her
complaint to the commissioner prior to filing a challenge in court.
[House Bill] 829 specifies that an individual with a complaint arising
from a law that is referenced but not codified in Titles 1 and 2 of the
Education Code is not required to first present the claim to the
commissioner before pursuing a judicial remedy . . . .”); see also Harrison v.
Neeley, 229 S.W.3d 745, 746 (Tex. App.—San Antonio 2007, pet. denied)
(holding that because [T]itle 2 requires school districts to comply with
[TOMA], [TOMA] was “incorporated . . . into the definition of a school
law of the state” such that the Education Code’s exhaustion-of-remedies
requirement applied to claims under the [A]ct).

Id.

The supreme court went on to explain that a TOMA violation exists outside

the school laws found in Titles 1 and 2 of the Education Code:

Under [TOMA], a school district is a “governmental body,” Tex. Gov’t
Code [Ann.] § 551.001(3)(E), and “[e]very regular, special, or called
meeting of a governmental body shall be open to the public, except as
provided by this chapter,” id. § 551.002. [TOMA] thus imposes a duty
directly on school districts, and it creates specific, independent
enforcement mechanisms and remedies for violations of its mandates.
See id. §[§] 551.141–.146. A claim for a violation of [TOMA] and
remedies for such a violation thus exist “outside” of the school laws of
this state, even though the school laws “reference” the [A]ct and
“require[ ] compliance” with it. See Tex. Educ. Code [Ann.] § 7.057(a–1).

Id. at 554.

46
 The District does not mention Subsection (a–1) or its impact on whether

exhaustion is required for a TOMA claim, nor does the District make any effort to

distinguish Marquez’s comments regarding that issue. As we have noted, we express

no opinion on the merit of the Parents’ TOMA claim (as the trial court did not

predicate its injunction on that claim and reviewing the merits of the claim is

premature), but that claim is not subject to the exhaustion-of-remedies requirements

of Section 7.057.

4. As presently couched by the parties, the question of the
District’s powers versus those of the Governor under the
TDA presents a question of law for which there is no
exhaustion-of-remedies requirement.
Another core controversy in this matter is whether the District’s mask policy

violates GA-38. The Governor’s power to issue GA-38 under the TDA presents a

question of law to which we apply a de novo standard of review and to which

exhaustion principles do not apply. We address it because it appears that this might

be a question arising on remand. See English v. English, 44 S.W.3d 102, 104 (Tex.

App.—Houston [14th Dist.] 2001, no pet.) (reviewing question that may arise on

remand for the sake of judicial economy).

Marquez addressed the exception to exhaustion principles for questions of law.

As Marquez noted, “[g]enerally, the doctrine of exhaustion of administrative remedies

does not apply when there are purely questions of law involved.” 487 S.W.3d at 557.

In Marquez, the supreme court concluded that the claim at issue did not involve a pure

47
question of law because the claim impacted questions of historical fact, constitutional

fact, and mixed questions of law and fact. Id. Because of the intertwining of these

factual issues in the question raised by the parents in Marquez, the question went

beyond a pure question of law and required exhaustion of remedies.

Here, everyone speaks of the clash between the powers of the Governor under

Chapter 418 of the Government Code and the powers of a school district as a legal

question. Intervenor Smith describes the issue as follows:

The [t]rial [c]ourt stated at the beginning of the temporary[-]injunction
hearing that this case was really about the Governor’s power to
super[s]ede the policies of school districts. Smith contends that the
[t]rial [c]ourt erred [by] concluding that the text of the statute granting
the Governor emergency power authorized the Governor to super[s]ede
the regulations of a school district. [Record reference omitted.]

In the trial court, the District in its plea to the jurisdiction posed the issue of

the clashing powers of the Governor and school districts as one of statutory

construction:

The Governor can only accomplish his statewide ban on mask
requirements by violating the disaster mitigation purposes of the TDA,
purporting to override or suspend school districts’ general statutory
authority to manage activities on campus and protect the health and
safety of their students. He purports to do so under the authority
granted him in Section 418.016 of the TDA by “suspend[ing]” several
sections of the TDA itself, entire chapters of the Texas Health and
Safety Code and Government Code, and finally “[a]ny other statute
invoked by any local governmental entity or official in support of a face-
covering requirement.” GA-38, ¶ 4(b). While the TDA allows the
Governor to suspend “certain” laws and rules, this authority is subject to
several specific limitations—most of which the Governor’s
interpretation reads out of the statute[] in contravention of the basic
rules of statutory construction and interpretation.

48
 Though not attempting to reconcile the powers of the Governor and those of

school districts, other courts have analyzed the Governor’s powers under Chapter 418

as a question of law involving statutory construction. Abbott v. Harris Cnty., No. 03-

21-00429-CV, 2022 WL 92027, at *4 (Tex. App.—Austin Jan. 6, 2022, pet. filed) (“To

the extent our review of the trial court’s temporary injunction turns on statutory

construction, we review these issues de novo.”); Abbott v. Jenkins, No. 05-21-00733-

CV, 2021 WL 5445813, at *9 (Tex. App.—Dallas Nov. 22, 2021, pet. filed) (mem. op.)

(analyzing powers of Governor versus county judge as one of statutory construction);

Abbott v. City of San Antonio, No. 04-21-00342-CV, 2021 WL 5217636, at *3 (Tex.

App.—San Antonio Nov. 10, 2021, pet. filed) (“The City and County’s ultra vires claim

requires construction of the [TDA]. Statutory construction is a question of law that

we review de novo.”); State v. El Paso Cnty., 618 S.W.3d 812, 819 (Tex. App.—El Paso

2020, orig. proceeding) (“The answer to our question lies in the text of the [TDA].

Statutory construction is a legal question that we review de novo.”).

Again, not knowing what claims may be made on remand, the core question of

the powers held by the Governor appears to present a legal question.

5. At present, we cannot determine whether there is an
exhaustion-of-remedies requirement for the Parents’
constitutional claim because, at present, we do not know
what that claim is.
As we have noted, the Parents’ current pleading makes an inchoate claim for a

declaration that “the District’s mask policy, which when implemented[,] is depriving

49
children of a constitutional right to education.” We will remand this matter to the

trial court to permit the Parents to at least attempt to articulate the nature of their

constitutional claim. Thus, at this point, we do not know whether the Parents will

amend to assert a constitutional claim, if any, and what form that might take. It is

premature to decide whether the Parents must exhaust their administrative remedies

before they have asserted a constitutional claim.

We will, however, briefly address what appears to be the District’s argument

that there is an unbending rule that would require exhaustion of remedies before filing

a constitutional claim. We disagree.

The District argues that

[i]n their live pleading, [the Parents] allege [that] their children are being
deprived of “a constitutional right to education.” Such a claim
necessarily asserts a violation of the school laws of the state because
school districts have no constitutional obligation to provide education.
In Article VII, [S]ection 1, the Texas Constitution requires the Texas
Legislature to “establish and make suitable provision for the support and
maintenance of an efficient system of public free schools.” Tex. Const.
art. VII, § 1; Marquez, 487 S.W.3d at 545. It places no duty on school
districts. See Tex. Const. art. VII, § 1; Marquez, 487 S.W.3d at 545.
School districts only have a responsibility for implementing the state’s
system of public education only because the [Texas] Legislature has —
by statute — delegated authority to local school districts throughout the
state. Marquez, 487 S.W.3d at 545 (citing Tex. Educ. Code [Ann.]
§ 11.002). [Record reference omitted.]

In response, we note that Marquez held that some constitutional claims may

require exhaustion of remedies and that some may not. The supreme court gave the

50
following guidance in distinguishing between constitutional claims that require

exhaustion of remedies and those that do not:

Although we need not articulate all of the parameters of the so-called
constitutional-claims exception to the exhaustion-of-remedies
requirement in this case, we draw two principles from these cases
relevant to school-law claims and with which we agree. First, when a
person complains that a school board’s conduct or decision violates only
the person’s state or federal constitutional rights, and the conduct or
decision does not violate the school laws of the state or an employment
contract, [S]ection 7.057(a) neither authorizes nor requires the
Commissioner to hear the appeal. See Tex. Educ. Code [Ann.]
§ 7.057(a). Under those circumstances, no “exception” to an exhaustion
requirement is needed. But if the constitutional claim is “ancillary to and
supportive of a complaint about the board’s handling of an employment
contract or application of school law,” such that the true nature of the
claim, although asserted as a constitutional violation, necessarily results
from a violation of school laws or an employment contract, then
[S]ection 7.057(a) authorizes and requires the Commissioner to hear the
appeal first, unless another exception to the exhaustion requirement
applies. [Jones v.] Clarksville [Indep. Sch. Dist.], 46 S.W.3d [467,] 474 [(Tex.
App.—Texarkana 2001, no pet.)]. In an appropriate case, the exception
for federal claims asserted in federal court, which the Supreme Court
recognized in McNeese and we acknowledged in Cypress–Fairbanks,
represents one such exception. See [Tex. Educ. Agency v.] Cypress–
Fairbanks [Indep. Sch. Dist.], 830 S.W.2d [88,] 91 n.3 [(Tex. 1992)] (citing
McNeese[ v. Bd. of Educ. For Cmty. Unit Sch. Dist. 187, Cahokia, Ill.], 373
U.S. [668,] 670–71, 83 S. Ct. 1433[, 1435 (1963)]).

Marquez, 487 S.W.3d at 552–53 (footnote omitted); see also McIntyre, 499 S.W.3d at 826

(“Nonetheless, the mere fact that [appellants’] claims ‘involve’ the school laws does

not mean they must exhaust administrative remedies. Rather, for administrative

remedies to be available, they must be aggrieved by either (1) the school laws

themselves or (2) a school board’s violation of the school laws.”).

51
 It is beyond our poor powers of prediction what constitutional claim, if any,

the Parents will raise. We address the District’s argument only to the extent that it

argues for a prophylactic rule of exhaustion of remedies, but the rule has more

subtlety that the District acknowledges.8

E. We set forth the resolution of this appeal.

The trial court did not err by denying the District’s plea to the jurisdiction

directed at the Parents’ claim for injunctive relief based on the District’s alleged

TOMA violation. The District makes a merits-based attack rather than a jurisdiction-

based attack on that claim, and there is no exhaustion-of-remedies requirement for a

TOMA claim. Again, the TOMA claim does not impact the validity of the temporary-

injunction order because the trial court made clear that it was not granting injunctive

relief based on the TOMA claim.

8
The Parents argue that they did not need to exhaust an administrative remedy
because they sought injunctive relief. The District does not respond to this argument
other than to argue that the Parents have identified no irreparable harm that they will
suffer from the District’s mask policy and to incorporate an argument from
Intervenor Smith’s brief on the issue. Marquez noted that under some circumstances,
a request for injunctive relief may obviate the need to exhaust administrative
remedies. 487 S.W.3d at 555 (stating that it held in Hous. Fed’n of Teachers, Local 2415 v.
Hous. Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987), that “the trial court had
jurisdiction to issue temporary injunctive relief before the teachers exhausted their
administrative remedies because the ‘Commissioner of Education is not authorized to
order immediate injunctive relief’ and the trial court’s finding that the teachers would
suffer irreparable harm in the absence of a temporary injunction was ‘undisturbed’ on
appeal.”). At this point, we are reversing the trial court’s injunction and remanding
this case to the trial court. As with so many of the arguments that have been
presented, what the showing of irreparable harm might be on remand is unknown,
assuming that the Parents formulate a viable claim.

52
 The trial court erred by granting injunctive relief based on the Parents’ UDJA

claim. As best we can discern, the trial court granted injunctive relief based on the

Parents’ UDJA claim that the District’s mask policy violated the Governor’s executive

order prohibiting mask mandates. That claim is not one for which the District’s

governmental immunity is waived. Further, the Parents could not bring a viable ultra

vires claim against the District and disavowed that they were bringing such a claim

against the Superintendent. At present, the Parents’ petition hints at a constitutional

violation but leaves unspecified the constitutional right that has been allegedly

violated. As a result of the lack of clarity regarding the constitutional claim, we

cannot determine whether the Parents must exhaust their administrative remedies

before bringing that claim or not. The upshot is that, at present, the claim that is the

apparent basis for the trial court’s injunctive order is not one for which the District’s

immunity is waived, and the Parents have not presently pleaded another claim that is

viable. Thus, we dissolve the trial court’s temporary-injunction order signed

September 3, 2021. See Tex. Educ. Agency v. Acad. of Careers & Techs., Inc., 499 S.W.3d

130, 138 (Tex. App.—Austin 2016, no pet.) (dissolving temporary injunction when

plaintiff failed to plead claims for which governmental immunity was waived).

But as we have also noted, “[i]f the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court[’]s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency[,]

[then] the plaintiffs should be afforded the opportunity to amend.” Miranda, 133

53
S.W.3d at 226–27. We apply this principle to remand this matter to the trial court to

accord the Parents an opportunity to replead.

Because we dissolve the temporary injunction based on the District’s claim of

immunity, we do not reach the issues raised by the District or Intervenor Smith that

challenge the Governor’s powers to prohibit the District’s mask policy through GA-

38, the evidentiary basis for the trial court’s issuance of the injunction order, or the

form of the injunction order.

IV. Conclusion

Having held that the trial court did not err by denying the District’s plea to the

jurisdiction directed to the Parents’ TOMA claim but that the trial court erred by

denying the District’s plea to the jurisdiction directed to the Parents’ UDJA claim, we

sustain the District’s first issue in part and overrule it in part. Because this issue is

dispositive of the appeal, we do not reach the District’s second and third issues nor

those raised by Intervenor Smith. Accordingly, we remand this case to the trial court

for further proceedings, and we vacate our September 13, 2021 order that reinstated

the trial court’s temporary-injunction order pending disposition of the District’s

accelerated appeal.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: March 10, 2022

54