Supreme Court of Texas
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No. 20-0811
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University of Texas at Austin President Jay Hartzell, et al.,
Petitioners,
v.
S.O.,
Respondent
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On Petition for Review from the
Court of Appeals for the Third District of Texas
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~ consolidated for oral argument with ~
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No. 20-0812
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Texas State University President Denise M. Trauth, et al.,
Petitioners,
v.
K.E.,
Respondent
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On Petition for Review from the
Court of Appeals for the Third District of Texas
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JUSTICE BOYD, concurring.
The dissenting opinion correctly observes that two questions are
“essential to a proper understanding of the issue” these cases present:
“First, what is a college degree? And second, what does it mean to revoke
a degree?” Post at ___. The dissenting opinion also correctly answers the
first question: a college degree is “in some ways property,” it is
“intangible property held by the graduate as the fruit of a bilateral
transaction with the university,” and it “change[s] hands” when it is
conferred, and thereafter belongs to one who receives it. Post at ___.
But the proper resolution of these ultra-vires claims ultimately
depends on the second question. The Court’s majority and dissenting
opinions appear to disagree over what it means to “revoke” a degree,
probably because “revoke” could refer to many different actions a
university could take. See Revoke, Black’s Law Dictionary (11th ed.
2019) (defining “revoke” to mean to “annul or make void by taking back
or recalling,” to “cancel, rescind, repeal, or reverse,” or to “recant”). To
resolve these claims, however, we need not explore all the possible
meanings of “revoke.” Instead, we need only consider what the
universities actually did or expressed an intent to do and decide whether
they had the authority to do it. See City of El Paso v. Heinrich, 284
S.W.3d 366, 372 (Tex. 2009) (explaining that an ultra-vires claim must
“allege, and ultimately prove, that the officer acted without legal
authority or failed to perform a purely ministerial act”).
In S.O.’s case, we know only that the University of Texas informed
S.O. that it intended to hold a disciplinary hearing to decide whether
she had violated university rules and that S.O. filed this suit in response
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seeking a declaration that the university lacks authority to “revoke” her
degree. We don’t know what the university would have done (or would
have asserted the right to do) if it had concluded that S.O. violated
university rules or decided to “revoke” her degree. We do know the
answer to that question in K.E.’s case: after the Texas State University
board ordered its president to “revoke” K.E.’s degree, the president took
three discrete actions: (1) she placed a notation on K.E.’s transcript that
the University had revoked her degree; (2) she requested that K.E. no
longer represent that she holds the degree; and (3) she requested that
K.E. return her diploma.
Whatever it may mean to “revoke” a degree, the universities
possess authority to take the three actions Texas State took in K.E.’s
case. Even the dissenting Justices agree that the universities possess
unilateral authority “to add a notation to a student’s file or transcript—
documents within the university’s control—indicating a finding of fraud
or deceit in the achievement of the degree.” Post at ___ n.3. And no one
disputes that the universities have authority to request that K.E. return
her diploma and no longer represent that she holds the degree. What
they likely do not possess is unilateral authority to physically take her
diploma or force her to stop making such representations.
Perhaps the university could ask a court to order K.E. to comply
with the University’s requests, perhaps K.E. could ask a court to order
the university to set aside any finding of a disciplinary violation, or
perhaps K.E. could ask a court to declare that the university’s placement
of a notation in her file declaring her degree void has no legal effect. Or
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perhaps sovereign immunity or another defense would bar one or more
of those claims.
In their current posture, however, these cases don’t present those
issues. See Post at ___ n.3. For present purposes, we need only decide
whether the universities acted ultra vires by scheduling a disciplinary
hearing to decide whether S.O. violated university rules, noting on
K.E.’s transcript that her degree had been revoked, and requesting that
K.E. return her diploma and no longer represent that she holds the
degree. Because the universities had authority to take those actions, I
agree with the Court that S.O. and K.E. have failed to allege valid ultra-
vires claims.
Jeffrey S. Boyd
Justice
OPINION FILED: March 31, 2023
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