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