the Texas Education Agency Mike Morath, Commissioner of Education in His Official Capacity And Doris Delaney, in Her Official Capacity v. Houston Independent School District

Supreme Court of Texas
══════════
No. 21-0194
══════════

The Texas Education Agency; Mike Morath, Commissioner of
Education in His Official Capacity; and Doris Delaney, in her
Official Capacity,
Petitioners,

v.

Houston Independent School District,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued October 6, 2022

JUSTICE BLAND delivered the opinion of the Court.

When a school district fails to meet statewide expectations
designed to ensure the effective education of Texas schoolchildren, the
Education Code authorizes the Texas Education Agency Commissioner
to assist in improving the district’s performance through a variety of
remedial measures. This appeal from a temporary injunction concerns
the circumstances under which the Commissioner may supervise the
Houston Independent School District, either through a conservator or a
board of managers.
In granting a temporary injunction in favor of the District, the
trial court found that the District made a sufficient showing that the
Commissioner’s planned actions to address the District’s performance
failures were ultra vires—outside the lawful authority the Education
Code grants him. The trial court prohibited the Commissioner and his
appointed conservator from continuing to supervise the school district
pending a final trial. The court of appeals affirmed, with one justice
dissenting.1 The Commissioner petitioned our Court for review.
Ultra vires suits, like the District’s in this case, do not address
past conduct. Rather, such suits are available to require a government
actor to comply with the law in the future. While the Commissioner’s
petition for review to this Court was pending, the 87th Legislature
rewrote the Education Code sections that govern the parties’ dispute,
and these amended provisions became law.
Given that the remedy an ultra vires suit seeks is prospective
compliance with the law, we evaluate the appropriateness of the trial
court’s injunction under the new law. Applying that law, we hold that
the District failed to demonstrate that the Commissioner and his
conservator’s planned conduct violates the law. Thus, the District is not
entitled to injunctive relief. We remand the case to the trial court,
however, to permit the parties to fully develop the record in light of
intervening legal and factual changes. Accordingly, we reverse the court

1 ___ S.W.3d ___, 2020 WL 7757365 (Tex. App.—Austin Dec. 30, 2020).

2
of appeals’ judgment, vacate the temporary injunction, and remand the
case to the trial court for further proceedings consistent with this
opinion.
I
A
The events giving rise to the Agency’s remedial oversight of the
District began with two failing high schools and disarray among the
District’s then-governing board of trustees. In September 2016, the
Commissioner named Dr. Doris Delaney as “a conservator to the
[District] to ensure and oversee district-level support for Kashmere High
School.” The Commissioner identified the reason: Kashmere’s
unacceptable academic accountability ratings for every year save one
since 2009. The Commissioner tasked Delaney—a Kashmere High
School graduate herself—to oversee a needs assessment for Kashmere,
evaluate the District’s resource allocation to Kashmere, and supervise
Kashmere’s instructional delivery. About a year later, the
Commissioner rejected a turnaround plan for the school and continued
Delaney’s appointment.
Meanwhile, the District began a search for a new superintendent.
Deep divisions among board members about the process for conducting
the search emerged. At an October 2018 board meeting, a trustee moved
to replace the interim superintendent, kicking off a heated public
exchange between board members, including accusations of corruption
of the search process by other board members and violations of the Open
Meetings Act.

3
 In March 2019, the Commissioner notified the District that
Delaney’s role as a conservator would include “overseeing the
governance of the district.” The same day, Delaney issued a directive
ordering the District to suspend its superintendent search.
Kashmere High School received an acceptable performance rating
in 2019. Delaney remained a conservator at the District at least through
the 2019–2020 school year.
While the District grappled with the superintendent search and
challenges at Kashmere High School, it also struggled to achieve
acceptable performance at Wheatley High School. Wheatley’s
preliminary rating for 2019 was unacceptable. The Commissioner
warned the District that a final unacceptable rating would require him
“to order either campus closure or the appointment of a board [of]
managers.” A transitional intervention statute authorized these
consequences for a campus that received unacceptable performance
ratings for five consecutive years, if they included “the 2016–2017 and
2017–2018 school years.”2 Neither Wheatley nor any other District

2Act of May 18, 2017, 85th Leg., R.S., ch. 324, § 21.001, sec. 39A.906,
2017 Tex. Gen. Laws 840, 922–23 (expired Sept. 1, 2020). The transitional
intervention statute provided:
(a) For a campus that received an unacceptable performance
rating for the 2013–2014, 2014–2015, and 2015–2016 school
years, the commissioner may apply the interventions and
sanctions authorized by Chapter 39 as that chapter existed on
January 1, 2015, to the campus.
(b) If a campus described by Subsection (a) receives an
unacceptable performance rating for the 2016–2017 and 2017–
2018 school years, the commissioner shall apply the

4
school received a rating in 2018, however, due to Hurricane Harvey. The
Commissioner nevertheless informed the District that, in his view,
Wheatley’s 2019 unacceptable rating, coupled with more than five years
of unacceptable academic ratings before 2018, satisfied the statute.
In the aftermath of the October 2018 board meeting, the Agency
began to receive complaints that the District was “not in compliance
with the laws relating to governance of an Independent School District,”
in particular, the Open Meetings Act.3 In response, the Commissioner
opened a special accreditation investigation.
In August 2019, the Special Investigations Unit issued its
preliminary report. It found that the District’s board of trustees had
failed to comply with the Open Meetings Act, exceeded the scope of its
authority, and violated contract procurement rules. As a result, the
report recommended that the Commissioner lower the District’s
accreditation level, appoint a conservator, and install a board of
managers to replace the then-serving board of trustees.
The District disagreed with much of the preliminary report, and
it requested an informal review under then-existing Education Code
Section 39.058(b).4 After considering the District’s objections, the

interventions and sanctions authorized by Section 39A.111 to
the campus.
3 Tex. Gov’t Code §§ 551.001–.146.
4 At the time, the Education Code provided: “Before issuing a report
with its final findings, the agency must provide a person or entity the agency
finds has violated a law, rule, or policy an opportunity for an informal review
by the commissioner or a designated hearing examiner.” Act of May 31, 2015,
84th Leg., R.S., ch. 1046, § 8, sec. 39.058(b), 2015 Tex. Gen. Laws 3649, 3655
(amended 2021) (current version at Tex. Educ. Code § 39.004(h)).

5
Agency issued its final report, largely approving the recommendations
of the preliminary report. The final report stated: “Pursuant to a
delegation from the Commissioner of Education, Dr. Jeff Cottrill,
Deputy Commissioner of Governance and Accountability completed the
informal review and approved this final report on October 30, 2019.”
Based on the investigation’s results, the Commissioner notified
the District in November 2019 that the Agency planned to lower the
District’s accreditation status to “Accredited-Warned,” and to appoint a
board of managers for the District.
Shortly after the Commissioner warned of this plan, the District
filed suit and obtained this temporary injunction, stopping the
Commissioner’s planned actions from taking place. Voters since have
elected several new board members, and the District has named a
permanent superintendent.
B
This suit began as part of the District’s opposition to the
Commissioner’s planned measures to redress the District’s performance
issues. The District filed its original petition in Travis County, seeking
a temporary injunction barring the Commissioner “from taking any
regulatory actions” against the District based on the accreditation
investigation.5 The District alleged that the Education Code did not
authorize the Commissioner’s planned remedial measures.

5 Based on the District’s federal First Amendment claim, the
Commissioner removed the case to federal court. The federal district court
denied the District’s application for a preliminary injunction, dismissed the
District’s federal claims with prejudice, and remanded its remaining claims to
state court, where these proceedings continued.

6
 In response, the Commissioner filed a jurisdictional plea, arguing
that the Education Code authorized the Agency to lower the District’s
accreditation and appoint a board of managers for three reasons:
(1) Delaney’s service as a conservator for more than two consecutive
school years;6 (2) the findings of the accreditation investigation;7 and
(3) Wheatley’s seventh consecutive unacceptable performance rating,
notwithstanding the lack of a rating for 2018.8
The trial court did not rule on the plea to the jurisdiction. Instead,
in January 2020, it temporarily enjoined (1) Delaney from “acting
outside her lawful authority to ensure and oversee district-level support
to low-performing campuses and the implementation of the updated
targeted improvement plan,” and (2) the Commissioner from appointing
a board of managers or imposing other sanctions or interventions based
on the results of the accreditation investigation. The Commissioner
appealed, and the court of appeals issued temporary relief leaving the

6Prior to 2021, Education Code Section 39A.006(b) authorized the
Commissioner to appoint a board of managers if “a school district has had a
conservator or management team assigned” for two consecutive years. Act of
May 18, 2017, 85th Leg., R.S., ch. 324, § 21.001, sec. 39A.006, 2017 Tex. Gen.
Laws 840, 909, amended by Act of May 29, 2021, 87th Leg., R.S., ch. 1046,
§ 2.12.
7The Commissioner cited Education Code Section 39.057(d), which was
transferred to Section 39.003(d) in 2021. Act of May 29, 2021, 87th Leg., R.S.,
ch. 1046, § 2.04, sec. 39.003.
8The Commissioner cited a transitional intervention provision that has
since expired. Act of May 18, 2017, 85th Leg., R.S., ch. 324, § 21.001, sec.
39A.906, 2017 Tex. Gen. Laws 840, 922–23 (expired Sept. 1, 2020).

7
injunction in place, eventually triggering a mandamus petition and
culminating in our decision in In re Texas Education Agency.9
A divided court of appeals affirmed.10 Based on its reading of
then-existing Education Code provisions, the court of appeals held that
the Code limited Delaney’s authority as a conservator to supervision of
low-performing campuses.11 Delaney consequently lacked district-level
conservatorship authority, which the court of appeals held Section
39A.002 required for district-level governance decisions like the
District’s superintendent search.12 While appointment of a district-level
conservator could serve as a precursor to the appointment of a board of
managers, in the court of appeals’ view, the appointment of a
campus-level conservator did not.13 Further, the Commissioner was not
authorized to appoint a board of managers, despite years of
unacceptable performance ratings at Wheatley High School, because
Wheatley received no rating for the 2017–2018 school year and the

619 S.W.3d 679 (Tex. 2021). Ordinarily, the State is not required to
9

supersede a trial court judgment or order to prevent its execution during the
State’s appeal. See Tex. Civ. Prac. & Rem. Code § 6.001; Tex. R. App. P. 29.1(b).
In In re Texas Education Agency, we upheld the court of appeals’ authority to
grant temporary relief while it considers the case. 619 S.W.3d at 689–90. After
the court of appeals issued its decision affirming the trial court’s injunction,
neither party sought relief from this Court to either continue or vacate the
court of appeals’ temporary relief.
10 2020 WL 7757365, at *9.
11 Id. at *3 (citing Tex. Educ. Code § 39A.101 and § 39A.102 (amended
2021)).
12 Id.
13 Id. at *5 (citing Tex. Educ. Code § 39A.006 (amended 2021)).

8
transitional intervention provision in the Education Code required an
unacceptable performance for that specific school year.14
As to the accreditation investigation, the court of appeals held
that Cottrill lacked authority to review the District’s objections to the
preliminary report. He was neither the “commissioner [n]or a
designated hearing examiner,” as the court concluded Education Code
Section 39.058(b) required.15 Finally, the court of appeals held, while
Section 39.057(d) authorized the Commissioner to take “appropriate
action under Chapter 39A,” that chapter did not permit the
Commissioner to appoint a board of managers absent specific
district-wide failures under Section 39A.004.16

14Id. The transitional intervention provision expired on September 1,
2020. Act of May 18, 2017, 85th Leg., R.S., ch. 324, § 21.001, sec. 39A.906, 2017
Tex. Gen. Laws 840, 922–23 (“If a campus . . . receives an unacceptable
performance rating for the 2016–2017 and 2017–2018 school years, the
commissioner shall apply the interventions and sanctions authorized by
Section 39A.111 to the campus.”).
15 2020 WL 7757365, at *6 (citing Act of May 31, 2015, 84th Leg., R.S.,
ch. 1046, § 8, sec. 39.058, 2015 Tex. Gen. Laws 3649, 3655 (amended 2021)
(current version at Tex. Educ. Code § 39.004(h)) (“Before issuing a report with
its final findings, the agency must provide a person or entity the agency finds
has violated a law, rule, or policy an opportunity for an informal review by the
commissioner or a designated hearing examiner.”)).
16Id. Prior to 2021, Section 39A.004 provided that the Commissioner
may appoint a board of managers if the district “(1) has a current accreditation
status of accredited-warned or accredited-probation; (2) fails to satisfy any
standard under Section 39.054(e); or (3) fails to satisfy financial accountability
standards as determined by commissioner rule.” Act of May 18, 2017, 85th
Leg., R.S., ch. 324, § 21.001, sec. 39A.004, 2017 Tex. Gen. Laws 840, 908,
amended by Act of May 29, 2021, 87th Leg., R.S., ch. 1046, § 2.11.

9
 The dissenting justice would have held that the Education Code
as it existed at the time supported the Commissioner’s actions.17 The
dissent rejected the majority’s dichotomy between campus- and
district-level conservators, observing that the Commissioner had
clarified that Delaney’s role included district-level supervision during
her appointment.18 Further, the investigation supported the imposition
of a board of managers. Education Code Section 39.057(d)(3)19
authorized the Commissioner to lower the District’s accreditation status
based on the investigation’s results, and lowering a district’s
accreditation satisfied the predicate for appointing a board of
managers.20 Finally, the dissent dismissed the District’s objections to
Cottrill’s review of the investigation, concluding that the Commissioner
had delegated that task to him, and the Education Code permitted such
a delegation.21
C
After the court of appeals issued its decision, Senate Bill 1365
substantially changed the statutes that govern this case. One change
answered a central question in this appeal, making it plain that

17 2020 WL 7757365, at *9 (Baker, J., dissenting).
18 Id. at *11–12.
Section 39.057 was amended and transferred to Section 39.003. Act
19

of May 29, 2021, 87th Leg., R.S., ch. 1046, § 2.04.
20 2020 WL 7757365, at *10 (citing Tex. Educ. Code § 39A.004 (amended
2021)).
21 Id.

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conservators may exercise coextensive powers and duties, whether
initially appointed to oversee a school campus or a district as a whole:
A conservator or management team may exercise the
powers and duties defined by the commissioner under
Subsection (a) or described by Subsection (c) regardless of
whether the conservator or management team was
appointed to oversee the operations of a school district in
its entirety or the operations of a certain campus within the
district.22
Further, either kind of conservator appointed for two consecutive years
is a sufficient prerequisite for appointing a board of managers:
(a) This section applies:
(1) regardless of whether a school district has satisfied the
accreditation criteria; and
(2) to a conservator or management team appointed under
any provision of this title, regardless of the scope or any
changes to the scope of the conservator’s or team’s
oversight.
(b) If for two consecutive school years, including the current
school year, a school district has had a conservator or
management team assigned to the district or a district
campus for any reason under this title, the commissioner
may appoint a board of managers to exercise the powers
and duties of the board of trustees of the district.23
The Legislature applied these changes “to a conservator or management
team assigned to a school district before, on, or after the effective date
of this Act.”24

Act of May 29, 2021, 87th Leg., R.S., ch. 1046, § 2.10 (codified at Tex.
22

Educ. Code § 39A.003(d)).
23 Id. § 2.12 (codified at Tex. Educ. Code § 39A.006).
24 Id. § 2.25(b).

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 The Legislature also addressed Agency investigations of school
districts, creating new procedures for conducting them and for reviewing
their recommendations.25 Should investigators recommend that the
Commissioner appoint a board of managers, institute alternative
management for a campus, or close a school campus or district, then the
district may request a contested-case hearing through the State Office
of Administrative Hearings, with a final review by the Commissioner:
(a) This section applies to a school district that is the
subject of a special investigation conducted under Section
39.003 that resulted in a final report in which the agency
recommends the appointment of a board of managers,
alternative management of a campus, or closure of the
district or a district campus.
(b) Except as provided by Subsection (c), not later than 15
days after the date on which the board of trustees of the
school district receives the final report of a special
investigation under Section 39.004(g), a board of trustees
of a school district to which this section applies may
request a hearing if the board of trustees disagrees with
the final report or a sanction or intervention recommended
by the agency in the report.
...
(d) If a board of trustees of a school district requests a
hearing under Subsection (b), the hearing shall be
conducted by the State Office of Administrative Hearings
unless the district and the agency agree in writing to the
appointment of another qualified person to conduct the
hearing.

25 Id. §§ 2.04–.05 (codified at Tex. Educ. Code §§ 39.003–.007).

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 (e) Except as otherwise provided by this subchapter, a
hearing conducted under this section is a contested case
under Chapter 2001, Government Code.26
If investigators recommend less severe measures, then a district may
seek an informal review by the Commissioner or a designee:
Before the commissioner determines to order a sanction or
intervention based on a final report, other than a sanction
or intervention described by Section 39.005, the
commissioner or the commissioner’s designee shall provide
an informal review. An informal review provided under
this section is not a contested case for purposes of Chapter
2001, Government Code.27
These amendments further clarify that the Commissioner may
delegate review authority to agency staff: “Notwithstanding any other
law, the commissioner’s power to delegate ministerial and executive
functions under Subsection (b)(5) is a valid delegation of authority.”28
The changes to the investigation process, however, apply only to pending
and future investigations, not those finalized before September 1,
2021.29

26 Id. § 2.05 (codified at Tex. Educ. Code § 39.005).
27 Id. § 2.04 (codified at Tex. Educ. Code § 39.004(h)).
28 Id. § 1.01 (codified at Tex. Educ. Code § 7.055(d)). Subsection (b)(5)
provides that the “commissioner may delegate ministerial and executive
functions to agency staff and may employ division heads and any other
employees and clerks to perform the duties of the agency.” Tex. Educ. Code
§ 7.055(b)(5).
29 Act of May 29, 2021, 87th Leg., R.S., Ch. 1046, § 2.25(a) (“[The
amendments] apply to a special investigation authorized, initiated, opened, or
finalized on or after the effective date of this Act. A special investigation
authorized or initiated by the Texas Education Agency under Section 39.057,
Education Code, before the effective date of this Act that is open and not

13
 Finally, with respect to Wheatley High School, the amendments
authorize the Commissioner to appoint a board of managers when “a
campus is considered to have an unacceptable performance rating for
five consecutive school years,”30 and a year in which there is no rating is
“not included in calculating consecutive school years of unacceptable
performance ratings and is not considered a break in consecutive school
years of unacceptable performance ratings.”31
In sum, the Legislature abrogated much of the court of appeals’
interpretation of the Education Code provisions that govern this case.
II
A
An ultra vires suit, like the one the District pleads, “seeks to bring
government officials into compliance with statutory or constitutional
provisions.”32 Only prospective relief is available.33 Ultra vires suits “do
not attempt to exert control over the state”—instead, they claim that
state actors have planned conduct that is unlawful.34 Ultra vires relief

finalized on the effective date of this Act, shall be continued as if authorized by
[the amendments] and proceed subject to [them].”).
30 Id. § 2.18 (codified at Tex. Educ. Code § 39A.111).
31 Id. § 2.06 (codified at Tex. Educ. Code § 39.054(a-5)).
32 Chambers-Liberty Cntys. Nav. Dist. v. State, 575 S.W.3d 339, 348
(Tex. 2019) (permitting claims against navigation district’s commissioners to
proceed, where the State alleged that the commissioners acted ultra vires in
entering commercial oyster lease).
33 Id.
34 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)
(permitting prospective declaratory and injunctive relief claims regarding

14
thus does not alter government policy but enforces existing law.35 A
party has no vested right to secure an official’s future compliance with
a law no longer in effect. Accordingly, the District must demonstrate
that the Commissioner’s actions it challenges are unlawful under
current law.
We examine each aspect of the trial court’s injunction for an abuse
of discretion.36 A trial court has no discretion to misapply the law,
however, and thus we review its legal determinations de novo, based on
current law.37 To obtain a temporary injunction, an applicant must
prove: “(1) a cause of action against the defendant; (2) a probable right
to the relief sought; and (3) a probable, imminent, and irreparable injury
in the interim.”38
B
The first part of the temporary injunction confines Delaney’s
authority to district-level support for low-performing campuses. The
District does not challenge the Commissioner’s authority to appoint
Delaney as a conservator in 2016 to address performance issues at
Kashmere High School. Instead, it argues that her continuing
appointment as a “campus-level” conservator did not authorize Delaney
to exercise more sweeping “district-level” conservator powers. Further,

apportionment of survivor benefits to proceed, where widow alleged a
reduction in benefits violated state statutes).
35 Id.
36 Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
37 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
38 Butnaru, 84 S.W.3d at 204.

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it argues, the Commissioner lacked authority to later expand Delaney’s
role to a district-level conservator.39 Thus, the District argues, the trial
court properly prohibited Delaney from taking district-level actions
similar to her order directing the District to pause its superintendent
search. The Commissioner responds that the Education Code’s then-
existing statutory framework did not support the District’s
interpretation or the District’s proposed limitation on the
Commissioner’s authority to expand Delaney’s role.
Any distinction that may have existed as a basis for the trial
court’s injunctive relief exists no longer. Under the recent amendments
to the Education Code, a conservator “may direct an action to be taken
by . . . the board of trustees of the district” “regardless of whether the
conservator . . . was appointed to oversee the operations of a school
district in its entirety or the operations of a certain campus within the
district.”40
The temporary injunction restricts Delaney’s authority to
low-performing campuses. Current law grants the Commissioner
significantly more latitude in defining Delaney’s role. Accordingly, the
District has not shown that the Commissioner authorized Delaney to

39 In the District’s view, the former law authorized the appointment of
a district-level conservator upon a special investigation or if the school district
did not satisfy (1) the accreditation criteria under then-Section 39.052, (2) the
academic performance standards under then-Sections 39.053 or 39.054, or
(3) any financial accountability standard. See Act of May 18, 2017, 85th Leg.,
R.S., ch. 324, § 21.001, sec. 39A.001, 2017 Tex. Gen. Laws 840, 907, amended
by Act of May 29, 2021, 87th Leg., R.S., ch. 1046, § 4.08. Because the special
investigation was not complete, the Commissioner had no authority at the time
to expand Delaney’s role.
40 Tex. Educ. Code § 39A.003(c)–(d).

16
engage in ultra vires actions under the new law or that she plans to do
so. Without such a showing, there is no probable right to relief and no
basis to affirm the trial court’s injunction against Delaney.41
C
The second part of the injunction prohibits the Commissioner
from appointing a board of managers. Under the current version of the
Education Code, the Commissioner may appoint a board of managers in
several situations, including:
• Under Section 39A.006, if “for two consecutive school years,
including the current school year, a school district has had a
conservator or management team assigned to the district or a
district campus for any reason under this title,” “regardless of
whether a school district has satisfied the accreditation
criteria”;
• Under Section 39A.004(1), “if the district is subject to
commissioner action under . . . Section 39A.001(1)” and
“(A) has a current accreditation status of accredited-warned or
accredited-probation; (B) fails to satisfy any standard under
Section 39.054(e); or (C) fails to satisfy financial accountability
standards as determined by commissioner rule”;
• Under Section 39A.004(2), if “the commissioner considers the
action to be appropriate on the basis of a special
investigation”;42 and
• Under Section 39A.107(c), if the commissioner “does not
approve a campus turnaround plan.”

41 Abbott v. Anti-Defamation League Austin, Sw. & Texoma Regions, 610
S.W.3d 911, 917 (Tex. 2020) (observing that the lack of a probable right to relief
is dispositive of a temporary injunction order).
The District’s more specific complaint that Delaney had no authority to
pause its search for a superintendent is moot. During the pendency of this
appeal, the District elected a replacement superintendent.
42 Tex. Educ. Code § 39A.001(2).

17
In addition to these, the commissioner shall appoint a board of managers
or order closure of the campus if “a campus is considered to have an
unacceptable performance rating for five consecutive school years.”43
To show a probable right to relief, the District must demonstrate
that not one of these paths was available to the Commissioner. We
conclude that the record satisfies at least one. The Commissioner
appointed Delaney in 2016. At the time the trial court entered its
temporary order, she had served for at least two consecutive years,
including the current year.44
To counter, the District relies on its argument that Delaney’s
appointment did not qualify as a prerequisite under the earlier version
of Section 39A.006. The question, however, is whether the evidence
shows that the Commissioner will act ultra vires under current law. The
answer is no, because current law removes any distinction between
campus and district conservators for the purpose of appointing a board
of managers,45 and the amendment applies to conservators appointed
before the law took effect.46
The District also disputes Delaney’s continued appointment
because it claims the Commissioner did not timely review her

43 Id. § 39A.111.
44 See id. § 39A.006 (permitting appointment of a board of managers
after a conservator has been assigned to a district or campus for two
consecutive years).
45 Tex. Educ. Code § 39A.003(d).
46 Act of May 29, 2021, 87th Leg., R.S., ch. 1046, § 2.25(b).

18
appointment every ninety days.47 The statute, however, does not provide
for the dismissal of a conservator as a consequence of a late or missed
review.
Finally, the District observes that Delaney’s status at the District
after the injunction is undeveloped. We agree. Numerous intervening
events, including factual developments and changes to the law, require
remand to the trial court to allow the parties to reconsider their
positions. However, the District has not demonstrated a probable right
to relief on the record as it stands, and thus no basis exists to continue
the trial court’s temporary injunction against the Commissioner’s
appointment of a board of managers. Whether the Commissioner
intends to do so after evaluating changes in the facts and the law rests
with him. The judicial branch does not preliminarily restrain an
executive officer absent clear indication that planned future action is
unlawful.48
D
The final portion of the temporary injunction forbids the
Commissioner from implementing the recommendations of the
accreditation investigation, including appointing a board of managers

47 “At least every 90 days, the commissioner shall review the need for
the conservator or management team and shall remove the conservator or
management team unless the commissioner determines that continued
appointment is necessary for effective governance of the school district or
delivery of instructional services.” Tex. Educ. Code § 39A.003(b).
48See Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 77–78
(Tex. 2018) (acknowledging that judicial review in an ultra vires suit is limited
to whether the government actor’s action complies with the authority granted
by the Legislature).

19
and lowering the District’s accreditation status. As the District has not
shown a probable right to relief to bar appointment of a board of
managers based on Delaney’s conservatorship, we focus on the
Commissioner’s authority to lower the District’s accreditation.
The Commissioner may “lower the school district’s accreditation
status” as a result of a special investigation.49 Under the current law,
when a final report “recommends the appointment of a board of
managers, alternative management of a campus, or closure of the
district or a district campus,” a district is entitled to request a contested
case hearing conducted by the State Office of Administrative Hearings.50
After the hearing, the Commissioner “shall provide an opportunity for
the agency and the school district to present oral argument to the
commissioner,” and he must issue written findings of fact and
conclusions of law, and state any sanctions or interventions.51 A school
district then may appeal the Commissioner’s ruling, though an appeal
“does not affect or stay the enforcement of the commissioner’s written
decision.”52
In this instance, the new law does not apply. The new procedures
govern only those investigations authorized or finalized on or after
September 1, 2021.53 For investigations completed before September 1,
2021, a district’s remedy is limited to the presentment of the preliminary

49 Tex. Educ. Code § 39.003(d)(2).
50 Id. § 39.005.
51 Id. § 39.006.
52 Id. § 39.007.
53 Act of May 29, 2021, 87th Leg., R.S., ch. 1046, § 2.25(a).

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findings and “an opportunity for an informal review by the commissioner
or a designated hearing examiner.”54 Because the investigation in this
case became final before the effective date, the District is limited to the
remedies that existed before the law changed. The District challenges
the informal review of the investigation on the basis that it was not
conducted by the “commissioner or a designated hearing examiner.”55
The Education Code, however, authorized the Commissioner to delegate
ministerial and executive functions to the Agency’s staff, and the court
of appeals erred in concluding that the Commissioner lacked authority
to do so.56 Cottrill’s informal review was conducted “[p]ursuant to a
delegation from the Commissioner.” Accordingly, the District has not
shown that it has a probable right to relief on its challenge to the
investigation’s results. The trial court’s injunction prohibiting the
Commissioner from acting based on the investigation’s
recommendations, should he intend to in light of intervening events,
cannot be upheld on this record.
* * *
Under the governing law, the District’s claims do not support a
temporary injunction against the Commissioner of the Texas Education
Agency and his appointed conservator. We therefore reverse the court of
appeals’ judgment, vacate the temporary injunction, and direct the trial

54Act of May 31, 2015, 84th Leg., R.S., ch. 1046, § 8, sec. 39.058(b), 2015
Tex. Gen. Laws 3649, 3655 (amended 2021) (current version at Tex. Educ. Code
§ 39.004(h)).
55 Id.
See Act of May 27, 1995, 74th Leg., R.S., ch. 206, § 1, sec. 7.055(a)(5),
56

1995 Tex. Gen. Laws 2207, 2212 (codified at Tex. Educ. Code § 7.055(b)(5)).

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court to consider the Commissioner’s plea to the jurisdiction. We expect
the parties to reconsider their positions and supplement the record in
light of changes in the law and factual developments within the District.
We remand the case to the trial court for further proceedings consistent
with this opinion.

Jane N. Bland
Justice

OPINION DELIVERED: January 13, 2023

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