IN THE SUPREME COURT OF TEXAS
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No. 09-0999
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TEXAS A&M UNIVERSITY - KINGSVILLE, PETITIONER,
v.
MELODY YARBROUGH, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
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Argued January 4, 2011
CHIEF JUSTICE JEFFERSON delivered the opinion of the Court, joined by JUSTICE MEDINA,
JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE LEHRMANN.
JUSTICE WILLETT delivered a dissenting opinion, joined by JUSTICE HECHT, JUSTICE
WAINWRIGHT, and JUSTICE JOHNSON.
An associate professor contends that her application for tenure was undermined by a
department chair’s summary of a performance evaluation in which the professor received an
“exceptional” numerical rating. Although she was given the opportunity to rebut the summary, the
professor asserts that the university prevented her from filing an official grievance. The professor
was granted tenure before she filed the present suit requesting a declaration that the university’s
action violated Government Code section 617.005. We must decide whether her complaint about
the university’s grievance process survives her status as a tenured professor. Because we conclude
that this case presents no live controversy, we reverse the court of appeals’ judgment and render
judgment dismissing the case.
After receiving a performance narrative that she believed contradicted her exceptional
numerical score, Melody Yarbrough, an associate professor at Texas A&M University-Kingsville
(TAMUK), sought to contest it. She complained to the faculty grievance committee that the
narrative would be prejudicial to her upcoming tenure application. While the committee initially
indicated it would implement formal grievance procedures, TAMUK ultimately quashed the
grievance because procedures set out in the TAMUK Faculty Handbook and Texas A&M University
System Regulations do not address complaints based upon an allegedly negative performance
review. These procedures, formally adopted by either the Texas A&M University System Board
of Regents under section 85.21(a) of the Education Code or by TAMUK under authority delegated
by the board, are at the heart of Yarbrough’s complaint. Yarbrough contends that the procedures
violate section 617.005 of the Government Code1 because they do not provide a minimally adequate
opportunity to present her grievance. She sought a declaratory judgment to that effect.
TAMUK moved for summary judgment arguing, among other things, that Yarbrough’s
complaint about her negative evaluation was mooted when TAMUK gave her tenure. Yarbrough
disagreed, contending that because TAMUK had not changed its policy, TAMUK continued to
violate her right to present grievances. The trial court granted TAMUK’s motion without stating
1
See TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public employees to present
grievances concerning their wages, hours of employment, or conditions of work either individually or through a
representative that does not claim the right to strike.”).
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the grounds therefor. Yarbrough appealed but did not mention the mootness issue. See TEX. R. APP.
P. 38.1(f) (“The brief must state concisely all issues or points presented for review.”). Nonetheless,
the court of appeals held that the case was not moot because “a repetition of events in this case is
likely.” 298 S.W.3d at 370.
“Capable of repetition yet evading review” is a rare exception to the mootness doctrine.
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). It applies only when “the challenged act is of
such short duration that the appellant cannot obtain review before the issue becomes moot.” Gen.
Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (quoting Spring Branch I.S.D. v.
Reynolds, 764 S.W.2d 16, 18 (Tex. App.—Houston [1st Dist.] 1988, no writ)). There must also be
a reasonable expectation that the same action will occur again if the issue is not considered. Blum
v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983) (“[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally
only where the named plaintiff can make a reasonable showing that he will again be subjected to the
alleged illegality.”).
Here, Yarbrough complained that TAMUK’s policy prevented her from grieving portions
of the narrative that were less than flattering and were, she contended, a “setup for not getting
tenure.” But TAMUK then awarded her tenure.2 Yarbrough argues that TAMUK continues to
enforce its policy, violating her right to present future grievances. While Yarbrough may wish to
grieve some future action, there is no evidence that she would be precluded from seeking review of
TAMUK’s policy when (and if) those grievances arise—that is, there has been no showing that
2
The department chair who wrote the narrative approved Yarbrough for tenure.
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TAMUK’s enforcement of its policy was “of such short duration” that she would be unable to obtain
review before the issue becomes moot. Gen. Land Office, 789 S.W.2d at 571. Nor is there evidence
that Yarbrough will receive subsequent negative evaluations that she may wish to grieve. Cf.
Williams, 52 S.W.3d at 184-85 (holding that inmates did not satisfy the capable-of-repetition
requirement because “[w]hether and when [they] may be charged with a crime that would lead to
their incarceration . . . is speculative”). Although the parties continue to dispute the lawfulness of
TAMUK’s grievance procedures, “that dispute is no longer embedded in any actual controversy
about the plaintiffs’ particular legal rights.” Alvarez v. Smith, 130 S. Ct. 576, 580 (2009) (holding
that plaintiffs’ claims challenging state’s forfeiture procedures were mooted by resolution of
underlying property disputes).
The dissent, seizing upon an argument Yarbrough raised for the first time in this Court,
contends that the controversy survives because the evaluation remains part of Yarbrough’s file and
may be used against her in future employment decisions. This reasoning appears to be based on the
collateral consequences exception to mootness–that even though Yarbrough’s primary injury has
been resolved, she continues to suffer collateral legal consequences from negative aspects of the
narrative. See Gen. Land Office, 789 S.W.2d at 571. But the possibility that the “taint” of a negative
evaluation could lead to unspecified future harm does not present a “substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941) (emphasis added); Governor Wentworth Reg. Sch. Dist. v. Hendrickson, 201 F. App’x 7, *9
(1st Cir. 2006) (holding that case seeking declaration regarding constitutionality of student
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suspension was moot after student graduated; potential bearing on student’s prospective employment
possibilities lacked immediacy and reality required to support declaratory judgment); Pilate v.
Burrell (In re Burrell), 415 F.3d 994, 999 (9th Cir. 2005) (holding that controversy was moot despite
alleged enduring “taint” of lower court judgments); Sandidge v. Washington, 813 F.2d 1025, 1026
(9th Cir. 1987) (concluding that suit seeking declaration regarding legality of poor performance
evaluation of National Guard member was moot after plaintiff left the military, despite his
contention that the negative evaluation remained part of his record and could adversely affect his
future employment prospects).
We reverse the court of appeals’ judgment and render judgment dismissing the case. TEX.
R. APP. P. 60.2(c).
________________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: August 26, 2011
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