Wallace L. Hall, Jr., in His Official Capacity as a Regent for the University of Texas System v. William H. McRaven, in His Official Capacity as Chancellor for the University of Texas System

IN THE SUPREME COURT OF TEXAS
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NO . 16-0773
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WALLACE L. HALL, JR., IN HIS OFFICIAL CAPACITY AS A REGENT FOR THE
UNIVERSITY OF TEXAS SYSTEM, PETITIONER,
v.

WILLIAM H. MCRAVEN, IN HIS OFFICIAL CAPACITY AS CHANCELLOR FOR THE
UNIVERSITY OF TEXAS SYSTEM , RESPONDENT

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued January 11, 2017

JUSTICE DEVINE delivered the opinion of the Court.

JUSTICE WILLETT filed a concurring opinion.

JUSTICE GUZMAN filed a concurring opinion.

JUSTICE LEHRMANN filed a concurring opinion.

JUSTICE BROWN filed a concurring opinion, in which JUSTICE GREEN joined.

Wallace Hall, a regent for The University of Texas System, sued the System’s Chancellor,

William McRaven, for McRaven’s refusal to grant Hall complete access to records containing

student-admissions information. At the heart of the case are issues central to governance in higher

education. Does a university regent have an inherent right to access information? If so, how
unfettered is that right? Can an institution invoke federal privacy law, namely the Family

Educational Rights and Privacy Act (FERPA), to redact information and limit a regent’s quest for

complete access? These are important questions, but before a court can reach them, a plaintiff must

overcome the state’s sovereign immunity. Absent a statutory waiver of immunity by the Legislature,

Hall can proceed only if McRaven’s actions in redacting the records were ultra vires—without state

authority. The courts below held that McRaven’s conduct was not ultra vires and that sovereign

immunity required dismissal. We agree and affirm.

I

Ultra vires claims depend on the scope of a state official’s authority. The natural starting

point in this case, therefore, is the governing structure of the UT System. The authority and duties

of the leaders of UT come from various sources, each with an increasing level of specificity. First,

the Texas Constitution instructs the Legislature to “organize and provide for the maintenance,

support and direction of a University of the first class, to be located by a vote of the people of this

State, and styled, ‘The University of Texas.’” TEX . CONST . art. VII, § 10. Acting on that directive,

the Legislature established the UT System and vested governing power in a nine-member Board of

Regents. TEX . EDUC. CODE § 65.11. Each regent is appointed by the Governor with the advice and

consent of the Senate. Id. The Legislature gave expansive authority to the Board to “govern,

operate, support, and maintain” the System. Id. § 65.31(a). The Board must also “provide the policy

direction” for each respective institution within the UT System. Id. § 51.352(b) (assigning

responsibilities to all governing boards of institutions of higher education in Texas). The Board also

2
bears more specific statutory responsibilities, such as to “set campus admission standards.” Id. §

51.352(d)(4).

The Board is not expected to run the entire UT System by itself. Instead, the Legislature

authorized the Board to promulgate rules and to use those rules to “delegate a power or duty of the

board to a committee, officer, employee, or other agent of the board.” Id. § 65.31(c), (g). These

rules, the Regents’ Rules, have the same force as an “enactment of legislature.” Univ. of Hous. v.

Barth, 403 S.W.3d 851, 855 (Tex. 2013).

The Legislature also directs the Board to appoint the Chancellor “or other chief executive

officer of the system.” TEX . EDUC. CODE . § 51.352(d)(2). But the Education Code says little else

about the Chancellor’s duties, save the following:

Subject to the power and authority of the board, the chief executive officer is
responsible for the general management of the university system within the policies
of the board and for making recommendations to the board concerning the
organization of the university system and the appointment of the chief administrative
officer for each component institution within the system.

Id. § 65.16(c). As a result, the specific responsibilities of Chancellor McRaven—which are of

utmost importance to this lawsuit—come from the rules and resolutions of the Board, which we

consider in the context of this dispute between the System’s Chancellor and one of its regents.

II

The underlying dispute began in 2013, when Regent Hall raised concerns about potential

improprieties in the admissions process of UT Austin, one of the 15 institutions that comprise the

UT System. In response, then-Chancellor Francisco Cigarroa ordered an internal inquiry into the

admissions practices. That inquiry revealed a common practice of legislators, alumni, regents, and

3
other influential individuals recommending students for admission to UT Austin outside of the

established procedures for submitting such recommendations. These findings spurred Chancellor

Cigarroa to commission another investigation into the UT Austin admissions process: an

independent, external investigation performed by Kroll Associates, Inc.

In the midst of Kroll’s investigation, McRaven took over as Chancellor of the UT System.

Kroll then released its findings in a 101-page report. The “Kroll Report” outlined a practice of UT

Austin’s President—based on recommendations from influential persons—to exercise significant

oversight and discretion in the admissions process. Such oversight sometimes resulted in the

admission of underqualified students over the objection of admissions officials. While Kroll

determined this practice might not be a violation of any existing rules or laws, it did “not appear in

UT-Austin’s public representations.” Chancellor McRaven received the Kroll Report, reviewed its

findings, and concluded that disciplinary action was not warranted against the President or any other

admissions official.

The findings of the Kroll Report became available to the public. Likewise, the names of

those influential persons who wrote letters of recommendation became available to the public in

response to requests made under the Texas Public Information Act. But neither the public nor the

regents were given access to the hundreds of thousands of pages of documents containing student

records that Kroll reviewed in coming to its conclusions. Hall wanted to review those underlying

records to, among other things, assess the involvement of specific school officials, identify pressures

put on admissions officials, and determine whether Kroll omitted any significant information from

the report.

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 Hall requested access to this information from the Chancellor’s office in March 2015, but

McRaven resisted the request. Regents’ Rule 10801 governs the procedure for dealing with

information requests of this type and provides a process for when the Chancellor’s “concerns about

a Regent’s request” remain unresolved. The Univ. of Tex. Sys., Rules and Regulations of the Bd.

of Regents (“Regents’ Rules”), Rule 10801 § 5.4.5. As of April 2015, Section 5.4.5 provided that,

the matter will be presented to the Board as quickly as possible, but in no event later
than 21 days from the date of the receipt of the request. For the purpose of a Board
vote on this issue, the vote of any two or more Regents in support of the request is
sufficient to direct that the request will be filled without delay.

Id. (Apr. 8, 2015). On April 8, the Board held a meeting under Section 5.4.5. Three regents

(including Hall) voted to grant the request. But, importantly, the two regents joining Hall

conditioned their votes on the Chancellor’s office engaging in a review to determine which

information was protected by FERPA.

FERPA is a federal privacy law that withholds federal funding from institutions that have a

“policy or practice of permitting the release of education records . . . or personally identifiable

information.” 20 U.S.C. § 1232g(b)(1). FERPA, however, permits the release of these records to

“other school officials . . . who have been determined by such agency or institution to have legitimate

educational interests.” Id. § 1232g(b)(1)(A).

At the time of the April vote, no Regents’ Rule governed how the Chancellor’s office would

conduct a FERPA review. However, in the following month, the Board adopted Section 5.4.6 to

Regents’ Rule 10801, which specifically outlines the Chancellor’s role in this review. Regents’ Rule

10801 § 5.4.6 (effective May 14, 2015). Section 5.4.6 delegates the following duty:

5
 [T]he Chancellor, in consultation with the U.T. System General Counsel, shall
determine whether State or federal law restricts compliance with the request.
Accordingly, the Chancellor, in consultation with the U. T. System General Counsel,
shall determine whether a Regent may review information that is protected by
[FERPA] . . . .

Id. When the board members adopted Section 5.4.6, they also amended Section 5.4.5 to require a

vote of a majority of the Board—not just two regents—to approve an unresolved request for

information. Id. § 5.4.5 (effective May 14, 2015).

In the meantime, Hall again requested complete access, providing a list of reasons that he

argued gave him a “legitimate educational interest” under FERPA. McRaven refused to provide

access to the complete records, while simultaneously proposing a two-step process by which Hall

could seek access to specific redacted information. First, the Chancellor’s office would redact all

information protected by FERPA and other privacy laws. These redactions applied to information

such as students’ names, grade point averages, social security numbers, and other identifying

information. See 20 U.S.C. § 1232g(a)(4)(A) (identifying records which “contain information

directly related to a student” as covered by FERPA). Then, if Hall identified specific private

information and articulated a specific need, the System’s General Counsel could review that request.

Unsatisfied with this proposal, Hall sued McRaven—in his official capacity as Chancellor

of the UT System—for continuing to withhold access to the unredacted records. Hall sought a

declaratory judgment that McRaven acted ultra vires in refusing to provide the unredacted

information. Hall also sought a writ of mandamus or injunction to compel McRaven to provide the

records.

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 The Board held a special meeting a few weeks later to “effect a clear and open statement of

the position of the Board of Regents related to” Hall’s pending litigation. A majority of the Board

voted on July 8, 2015, to endorse McRaven’s two-step offer of access. The Board characterized that

process as follows:

1) access to review all confidential and nonpublic documents gathered by Kroll, with
redactions only for those documents and information protected by the Family
Educational Rights and Privacy Act (FERPA), the Health Insurance Portability and
Accountability Act (HIPAA), or other privacy laws, as determined applicable by the
Vice Chancellor and General Counsel in consultation with the System Administration
Privacy Officer and Systemwide Privacy Coordinator, and

2) the opportunity for Regent Hall to identify and to discuss further, with the
Chairman and the Chancellor, specific, redacted private information protected by
FERPA, HIPAA, or other privacy laws in those documents which he believes are
necessary to review in order to satisfy an articulated, specific need related to his
official responsibilities and duties as a Regent.

The Board also voted to “delegate to the Chairman, in consultation with the Vice Chairmen and

General Counsel,” the authority to make the decision under step two: whether or not Hall articulated

a specific need.

Following the Board’s July vote, McRaven filed a plea to the jurisdiction, claiming that

sovereign immunity barred Hall’s suit and that the ultra vires exception did not apply. Hall

responded to McRaven’s plea to the jurisdiction and moved for summary judgment, claiming a right

to the unredacted records as a matter of law. Hall asserted that as a regent he possessed an inherent

right under Texas law—as outlined by an opinion from the Texas Attorney General—to access

records pertinent to his duties. See Tex. Att’y Gen. Op. No. KP-0021, 4 (2015) (addressing whether

Hall has a right to the unredacted records). He submitted that one such duty was to set admissions

7
standards, which invoked his inherent right to access student information unless state or federal law

required otherwise. Id. FERPA, he argued, could not be the basis for withholding these records

because his status as a regent imbued him with a “legitimate educational interest” in the information.

Hall concluded that McRaven’s actions in denying him complete access were ultra vires because

McRaven had no authority to misapply FERPA and wrongfully withhold the records. The trial court

held a hearing on the two motions, granting McRaven’s plea to the jurisdiction and dismissing the

case with prejudice. Hall appealed, and the court of appeals affirmed. ___ S.W.3d ___, 2016 WL

4979576, at *1 (Tex. App.—Austin 2016). We granted Hall’s petition for review and expedited

briefing and oral argument.

III

Sovereign immunity requires the state’s consent before it can be sued. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Sovereign immunity developed as a

common-law doctrine in recognition of the courts’ limited authority over the sovereign creating

them. Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015). Its justification

continues today as a means to protect the public treasury. Id. Consequently, the doctrine operates

to “shield the public from the costs and consequences of improvident actions of their governments.”

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

The sovereign may, however, waive or limit its immunity. But the Legislature has not

waived immunity for suits like Hall’s. Nevertheless, in certain narrow instances, a suit against a

state official can proceed even in the absence of a waiver of immunity if the official’s actions are

ultra vires. City of El Paso, v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). An ultra vires action

8
requires a plaintiff to “allege, and ultimately prove, that the officer acted without legal authority or

failed to perform a purely ministerial act.” Id.

We recently clarified what it means for an official to act “without legal authority.” See Hous.

Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). We said that “a

government officer with some discretion to interpret and apply a law may nonetheless act ‘without

legal authority,’ and thus ultra vires, if he exceeds the bounds of his granted authority or if his acts

conflict with the law itself.” Id. “Ministerial acts,” on the other hand, are those “where the law

prescribes and defines the duties to be performed with such precision and certainty as to leave

nothing to the exercise of discretion or judgment.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578,

587 (Tex. 2015) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).

The basic justification for this ultra vires exception to sovereign immunity is that ultra vires

acts—or those acts without authority—should not be considered acts of the state at all. Cobb v.

Harrington, 190 S.W.2d 709, 712 (Tex. 1945). Consequently, “ultra vires suits do not attempt to

exert control over the state—they attempt to reassert the control of the state” over one of its agents.

Heinrich, 284 S.W.3d at 372.

IV

The court of appeals held that McRaven acted within his legal authority when he continued

to withhold unredacted records from Hall. ___ S.W.3d at ___, 2016 WL 4979576, at *9. According

to the court, this was “because it was the Board, through its [July] majority vote, who ultimately

refused to allow Hall full access to the Kroll file without redaction.” Id. More specifically, the court

viewed the July vote as showing that the Board “implicitly determined that Hall does not have a

9
legitimate educational interest in the information and that it may be protected by other privacy laws.”

Id. Essentially, because the Board endorsed McRaven’s process, and because McRaven serves at

the behest of the Board, McRaven was within his authority in refusing full access. See id. Both Hall

and McRaven characterize this holding as indicating that McRaven was not the “proper party” to this

ultra vires suit.

Heinrich is our only case to speak about a proper party in the context of an ultra vires suit.

284 S.W.3d at 372–73. There we clarified that the governmental entities themselves were not proper

parties to an ultra vires suit. Id. Instead, a plaintiff must sue the relevant officers in their official

capacities. Id. Of course, that is not an issue in this lawsuit. Hall sued McRaven, a state officer, in

McRaven’s official capacity, and McRaven is unquestionably a proper party to the ultra vires suit

in Heinrich’s sense of the term. But here, the parties argue about proper parties in an entirely

different sense: as a means of horizontal selection—pinpointing which official has the duty to act.

An ultra vires claim based on actions taken “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. Hous. Belt, 487 S.W.3d at 158. The proper-party plea by a state

official is another way of saying a higher power has deprived the official of all of his or her

discretion. In other words, the higher authority has created a ministerial (nondiscretionary) duty for

the subordinate official to engage in conduct the plaintiff claims is wrongful. Thus, the proper-party

question is nothing foreign; it goes to the first component of Houston Belt’s clarification of a

“without legal authority” claim. Id. The court of appeals’ discussion adheres to this framework.

See ___ S.W.3d at ___, 2016 WL 4979576, at *9.

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 In that context, we must decide whether the Board’s July vote deprived McRaven of all

discretion. Hall argues it did not. We agree, at least with respect to a narrow course of action: the

Chancellor’s interpretation of federal privacy law. On July 8, the Board endorsed McRaven’s two-

step offer of access. The first of those steps, as characterized by the Board, left in place the

understanding that questions of law relating to FERPA would remain “as determined applicable” by

the Chancellor’s office. This was made all the more clear during questioning of the UT System’s

General Counsel, Dan Sharphorn, at the trial court’s jurisdictional hearing. When asked about the

effect of the July endorsement, Sharphorn agreed that “the vote in July directed the chancellor to

provide all of the information, redacting only what is required to be redacted by privacy law.”

Sharphorn also agreed that “the vote in July still left open the question [of] what data in the Kroll

file, if any, it was legal to provide to Regent Hall.” Sharphorn elaborated that his mission was to

make sure it was legal to provide the information and that “the subsequent vote by the Board of

Regents in July didn’t change that mission.” If the July vote conclusively deprived McRaven and

his top legal advisor of any discretion to decide legal questions under FERPA, it was not Sharphorn’s

understanding. Finally, that the Board continued to delegate the duty of interpreting FERPA to the

Chancellor’s office is no surprise. After all, just two months prior, the Board amended the Regents’

Rules to assign that precise duty to the Chancellor. See Regents’ Rule 10801 § 5.4.6 (delegating to

the Chancellor—in consultation with the General Counsel—the duty to “determine whether a regent

may review information that is protected” by FERPA).

The court of appeals’ opinion implies that McRaven and his subordinates had no discretion

to decide the threshold question of law under FERPA because those questions were authoritatively

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settled by the Board’s July vote. ___ S.W.3d at ___, 2016 WL 4979576, at *9 (finding that the

Board’s July vote “implicitly determined that Hall does not have a legitimate educational interest in

the information and that it may be protected by other privacy laws”). The language of the July

resolution, Sharphorn’s testimony, and the explicit delegation of authority via the Regents’ Rules

belie any such implication. McRaven retained discretion to interpret FERPA, and, with respect to

the legitimate exercise of that discretion, McRaven would remain subject to ultra vires principles.

But to the extent Hall’s lawsuit implicates a broader indictment, we agree with the court of

appeals that the Board would be to blame, not McRaven. Hall claims an unfettered right to

access—one free from limits other than disclosures that would violate other laws. Hall argues

further that FERPA is categorically inapplicable to a regent’s request for information he finds

necessary to fulfill his job. If Hall is right about those legal questions, the Board has restricted that

right in two ways. First, the Board amended Section 5.4.5 of Rule 10801 to require a majority of

regents to approve a request for information. Second, the Board created a governance scheme in

which the Chancellor’s discretionary determination of federal law can lead to redactions of

information. See Regents’ Rule 10801 § 5.4.6.

These are concrete limits on Hall’s claimed right to complete access. But they are limits

imposed by the Board—not McRaven. Hall did not explicitly challenge these rules in his ultra vires

suit. Nor could he by suing McRaven alone. By its very definition, an ultra vires suit against

McRaven can only seek to compel him to follow his governing authority, not to change that

governing authority. Heinrich, 284 S.W.3d at 372 (explaining that ultra vires “suits do not seek to

alter government policy but rather to enforce existing policy”). Because Hall chose to sue McRaven,

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his complaint must necessarily be a limited one: McRaven made an allegedly incorrect determination

under FERPA and that erroneous interpretation resulted in an unlawful redaction of records.

But before considering the merit of the ultra vires claim, we must consider Hall’s alternative

argument regarding McRaven’s proper-party status. Hall claims that McRaven, as the highest-

ranking officer of the UT System, is the proper “nominal defendant” in a suit that is functionally

directed at UT as an entity. If this were true, McRaven would be the proper defendant with respect

to complaints about the above decisions: ones that are attributable to the Board and no one else. For

that matter, McRaven would be the proper defendant for any ultra vires complaint against any UT

officer. But Hall’s argument misunderstands the ultra vires exception.

Hall correctly argues that a suit against a state official in his official capacity “is merely

‘another way of pleading an action against the entity of which [the official] is an agent.’” Tex. A&M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham, 473 U.S.

159, 166 (1985)). Yet equally clear is the notion that “ultra vires suits do not attempt to exert

control over the state—they attempt to reassert the control of the state.” Heinrich, 284 S.W.3d at

372. To reassert such control, an ultra vires suit must lie against the “allegedly responsible

government actor in his official capacity,” not a nominal, apex representative who has nothing to do

with the allegedly ultra vires actions. Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d

69, 76 (Tex. 2015). Therefore, an ultra vires claim against McRaven must be confined to conduct

pursuant to his authority: the duty to interpret and apply FERPA to information requests.

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 V

And so we reach the dispositive issue: whether McRaven’s alleged misinterpretation of

FERPA constitutes an ultra vires act. We hold that it does not.1 More globally, this case implicates

every mistake of law by a state official and whether such errors are always ultra vires, particularly

in light of our opinion in Houston Belt.

Heinrich clarified two general means of proving an ultra vires claim: (1) an action “without

legal authority” or (2) failure to “perform a purely ministerial act.” 284 S.W.3d at 372. In Houston

Belt, we addressed what it means to act without legal authority in the context of a particular type of

ultra vires claim: an allegation that an official has exceeded his or her granted authority to “interpret

and apply a law.” 487 S.W.3d at 158, 160–63. We concluded that sovereign immunity “bars suits

complaining of an exercise of absolute discretion but not suits complaining of . . . an officer’s

exercise of judgment or limited discretion without reference to or in conflict with the constraints of

the law authorizing the official to act.” Id. at 163 (emphasis in original). Although not directly

applicable, we quoted for comparative purposes the rule that a public officer generally lacks

discretion or authority to misinterpret the law. Id. (quoting In re Smith, 333 S.W.3d 582, 585 (Tex.

2011) (orig. proceeding)).2

1
W e do not decide what constitutes a “legitimate educational interest” under FERPA or any other questions
of federal privacy law. For purposes of addressing whether Hall’s ultra vires claim is proper, we assume for the sake
of argument that McRaven and his legal advisors incorrectly interpreted FERPA.

2
Smith did not concern an ultra vires exception to sovereign immunity because a statute in that case expressly
waived the state’s immunity, and the issue was whether the officer had erroneously calculated the compensation due
under the statute. 333 S.W .3d at 585–87.

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 Hall assumes that our mention of misinterpretations of the law in Houston Belt necessarily

means that any legal mistake is an ultra vires act. Not so. It is the mistake’s impact on the official’s

authority that carries dispositive weight for ultra vires purposes. In Houston Belt, we examined an

ultra vires claim against Houston’s Director of Public Works and Engineering. Id. at 158. The

plaintiff complained that the Director acted ultra vires in imposing a drainage fee based on an

unlawful determination of the permeability of the plaintiff’s property. Id. at 159. The ordinance

authorizing the Director to act commanded him to make that permeability determination “on the

basis of digital-map data . . . or other similar reliable data as shall be determined by the director.”

Id. Instead of using digital map data, or something similar, the Director looked at aerial photographs

to make his permeability determination. Id. We found that while the ordinance gave some discretion

to the Director, the discretion was not absolute. Id. at 168. Therefore, the Director’s

misinterpretation of his own limits in making a permeability determination was a valid basis for an

ultra vires claim. Id. at 169.

Like Houston Belt, this case involves an ultra vires claim based on a state official allegedly

exceeding his granted authority to “interpret and apply a law.” Id. at 158. But the ultra vires claim

in Houston Belt differs from Hall’s claim in two key respects. First, the Director’s misinterpretation

was of the requirements of his enabling law. Id. at 158, 165 (explaining that the limits of the

Director’s “authority [were] found in the authority-granting law itself—the ordinance”).

Consequently, when the Director misinterpreted the limits of the ordinance, he misinterpreted the

bounds of his own authority—exceeding the scope of what the City permitted him to do. See id.

Houston Belt synthesized several cases in reaching the conclusion that limited discretion can give

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rise to an ultra vires claim. Id. at 162–63. Every case3 involved an interpretation of the official’s

enabling authority. See id. Here, McRaven’s interpretation is not of his organic authority but rather

federal privacy law—a law collateral to McRaven’s authority. It is Section 5.4.6 of Regents’ Rule

10801, not FERPA, that supplies the parameters of McRaven’s authority:

[T]he Chancellor, in consultation with the U.T. System General Counsel, shall
determine whether State or federal law restricts compliance with the request.
Accordingly, the Chancellor, in consultation with the U. T. System General Counsel,
shall determine whether a Regent may review information that is protected by
[FERPA] . . . .

Regents’ Rule 10801 § 5.4.6. In order to act without legal authority in carrying out a duty to

interpret and apply the law, McRaven must have exercised discretion “without reference to or in

conflict with the constraints of the law authorizing [him] to act”: Section 5.4.6. Hous. Belt, 487

S.W.3d at 163. Without that showing, Hall would simply have no basis for “reassert[ing] control

of the state.” Heinrich, 372 S.W.3d at 372.

Admittedly, that begs the question of whether McRaven’s allegedly mistaken interpretation

of collateral law was nevertheless in violation of his enabling authority. This brings us to another

key difference between Houston Belt and the present case. In Houston Belt, the Director’s

determination was subject to explicit constraints, i.e., what to consider in reaching a permeability

3
See Heinrich, 284 S.W .3d at 369 (finding valid an ultra vires suit against a pension fund based on the fund
retroactively lowering the plaintiff’s pension in violation of its enabling statute); Klumb v. Hous. Mun. Emp’s. Pension
Sys., 458 S.W .3d 1, 9 (Tex. 2015) (finding invalid an ultra vires claim against a pension fund for allegedly acting
“without legal authority by expanding [the enabling statute’s] definition of ‘employee’ without the City’s approval and
in conflict with the plain language of the statute”); Emmett, 459 S.W .3d at 589 (finding valid an ultra vires claim against
the Harris County Commissioner’s Court for failing to authorize payments that the enabling statue— the W ater
Code— required the Commissioners to authorize); Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W .3d 384, 386, 393
(Tex. 2011) (implying an ultra vires claim might succeed against the Parks and W ildlife Department for a mistaken
application of the Parks and W ildlife Code).

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determination. 487 S.W.3d at 159. Neglecting one of those constraints was what made the

Director’s determination—whether right or wrong—ultra vires. See id. at 161. In other words, the

Director’s discretion was limited in how he reached a conclusion. See id. Here, McRaven is indeed

tasked with making a determination. But that is it. McRaven’s only duty is that he “shall determine

whether a Regent may review information that is protected by [FERPA].” Regents’ Rule 10801

§ 5.4.6. His discretion in making that determination is otherwise unconstrained.

When the ultimate and unrestrained objective of an official’s duty is to interpret collateral

law, a misinterpretation is not overstepping such authority; it is a compliant action even if ultimately

erroneous. Our intermediate courts of appeals have repeatedly stated that it is not an ultra vires act

for an official or agency to make an erroneous decision while staying within its authority.4 Indeed,

an ultra vires doctrine that requires nothing more than an identifiable mistake would not be a narrow

exception to immunity: it would swallow immunity. After all, do not all successful lawsuits require

a legal wrong? As important as a mistake may be, sovereign immunity comes with a price; it often

allows the “improvident actions” of the government to go unredressed. See Tooke, 197 S.W.3d at

4
See, e.g., Edinburg Consol. Indep. Sch. Dist. v. Smith, No. 13-16-00253-CV, 2016 W L 3068119, at *13 (Tex.
App.— Corpus Christi May 26, 2016, no pet.) (mem. op.) (explaining that it is “clear that not all alleged errors in
interpretation of law or policy constitute ultra vires acts”); Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on
Envtl. Quality, 307 S.W .3d 505, 517–18 (Tex. App.— Austin 2010, no pet.) (“These are allegations that [the agency]
reached an incorrect or wrong result when exercising its delegated authority, not facts that would demonstrate [the
agency] exceeded that authority.”); MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist. Review Bd.,
249 S.W .3d 68, 81 (Tex. App.— Houston [1st Dist.] 2007, pet. denied) (“Additionally, just because an agency
determination is wrongly decided does not render that decision outside the agency’s authority [because] an incorrect
agency determination rendered pursuant to the agency’s authority is not a determination made outside that authority.”)
(emphasis in original); Williams v. Hous. Firemen’s Relief & Ret. Fund, 121 S.W .3d 415, 430 (Tex. App.— Houston [1st
Dist.] 2003, no pet.) (“W illiams does not challenge the fact that the Fund has . . . this statutory authority. . . . [T]he crux
of W illiams’s argument is that the trustees interpreted the statute in a way they should not have. This is a complaint of
‘getting it wrong,’ not of acting outside statutory authority.”).

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332 (explaining that sovereign immunity functions “to shield the public from the costs and

consequences of improvident actions of their governments”). Only when these improvident actions

are unauthorized does an official shed the cloak of the sovereign and act ultra vires.

Based on the unrestricted nature of McRaven’s authority under Section 5.4.6, we find his

discretion to interpret collateral federal privacy law to be “absolute” under our framework from

Houston Belt. 487 S.W.3d at 163 (explaining that sovereign immunity bars suits targeting an

exercise of absolute discretion). As such, McRaven—whether right or wrong—was not without

legal authority in making that determination. Nor was he without authority in redacting information

once he made the legal conclusion. The Board instructed him to redact information he determined

protected under FERPA, and he did just that.

Finally, did McRaven violate a purely ministerial duty? See Heinrich, 284 S.W.3d at 372

(explaining that the other ground for an ultra vires suit is a failure to perform a “purely ministerial

act”). Perhaps it goes without saying, but if an official’s duty is discretionary, it is not also

nondiscretionary. The authority conferred by the Board onto McRaven is quite the opposite of

“where the law prescribes and defines the duties to be performed with such precision and certainty

as to leave nothing to the exercise of discretion or judgment.” Emmett, 459 S.W.3d at 587 (defining

a ministerial duty). Having failed to meet either of the bases for establishing an ultra vires action

under Heinrich, we conclude that Hall’s case was properly dismissed.

***

We are not unsympathetic to Hall’s plight, however. He seeks information to educate himself

and his fellow regents about issues of undeniable importance to the institution. Facts are the greatest

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ally of those, like Hall, who seek to change the minds of others. Yet the Board has instituted a

governance structure that leaves Hall at the mercy of the Chancellor’s discretionary legal

determination, at least in the first instance. Perhaps that scheme is unwise. Perhaps it elevates the

status quo above transparency. Perhaps it increases the likelihood that voices in the minority will

be stifled. And perhaps it presents none of those dangers. But those questions are beyond our reach;

the Legislature is the ultimate arbiter of policy at The University of Texas. In this suit we are simply

tasked with assessing whether Chancellor McRaven exceeded his authority. On this record, we

conclude that he did not. The judgment of the court of appeals is accordingly affirmed.

___________________________
John P. Devine
Justice

OPINION DELIVERED: January 27, 2017

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