Memorandum Opinion by Justice Wittig

On appeal from the 197th District Court of Willacy County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Wittig
Memorandum Opinion by Justice Wittig

Rafael Rubalcaba III, ("Rubalcaba"), appellant, challenges the trial court's dismissal of his claims on jurisdictional grounds and an award of sanctions against him. His lawsuit is against Raymondville ISD, Criselda Flores as Principal of Raymondville High School, and Johnny Pineda as Superintendent for Raymondville ISD, (collectively "Raymondville"), appellees. During Rubalcaba's counsel's argument before the trial judge, he conceded that the trial court could grant appellees' pleas to the jurisdiction on several due process and constitutional issues. He sought relief only on his issues pertaining to his claims for declaratory relief and alleged violations of the Open Meetings Act. We affirm in part, and we reverse and render in part.

I. BACKGROUND

In ninth grade, Rubalcaba transferred to Raymondville ISD from another district during school year 2009-2010. Prior to his transfer, he had taken regular level algebra in eighth grade. After his transfer, he enrolled in geometry in ninth grade while his Raymondville contemporaries took algebra. At the time, Raymondville did not offer eighth grade algebra. In the summer of 2010, the school offered advanced placement (AP) geometry. This AP course provided additional weight for GPA purposes to the students' AP geometry grades, according to District Policy EIC. Unfortunately for Rubalcaba, he was not eligible to take the AP course because he had already completed the regular geometry course. Rubalcaba's father argued unsuccessfully that his son should have received higher weight for his transferred math course and because he attended a full year of geometry versus a six-week summer AP course. The resulting lower GPA moved Rubalcaba down to the rank of thirteenth in his graduating class and out of the top ten percent. This purportedly cost him at least one scholarship and the ability to gain admission to some of the state's top colleges and universities.

Rubalcaba filed suit on July 31, 2013, after his graduation. He did not formally file a grievance pursuant to District Policy FNG, allowing for a formal grievance complaint at level one within fifteen days of knowledge of the action giving rise to the compliant. Nor did Rubalcaba or his representatives request to be placed on the school Board's agenda for discussion. Rather, Rubalcaba, his father, and his attorney informally raised the grading policy issue with school authorities. At its May 14, 2013 meeting, the Board did discuss its EIC policy and took the discussion into closed session to consult with its attorney. No apparent action was taken in the closed session. At its July 16, 2013 meeting, it heard the grievance of another student concerning his or her own GPA calculation, and went into closed session. No votes were taken concerning Rubalcaba, his GPA, course weights, or class rank. Appellant points to no pleading or proof in the record that Rubalcaba himself or his GPA/ranking were discussed.

Raymondville filed a plea to the jurisdiction on the basis of sovereign immunity. The trial court granted the plea, dismissed the suit with prejudice, and at a subsequent hearing granted sanctions against Rubalcaba. This appeal resulted.

II. STANDARD OF REVIEW

A plea to the jurisdiction challenges a trial court's subject-matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)). Whether a court has subject matter jurisdiction is a question of law that we review de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In a de novo review, the trial court's decision is given absolutely no deference. Ascendant Anesthesia PLLC v. Abazi, 348 S.W.3d 454, 458 (Tex. App.—Dallas, 2011, no pet.).

When conducting a de novo review, the reviewing tribunal exercises its own judgment and redetermines each issue of fact and law. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) (citing Key W. Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 846 (Tex. 1961); Lone Star Gas Co. v. State, 153 S.W.2d 681, 692 (Tex. 1941); Ysleta Ind. Sch. Dist. v. Meno, 933 S.W.2d 748, 751 n.5 (Tex. App.—Austin 1996, writ denied)).

The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs' claims should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). "This does not mean that evidence cannot be offered on a dilatory plea; on the contrary, the issues raised by a dilatory plea are often such that they cannot be resolved without hearing evidence." Id. "And because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with the case." Id.

III. OPEN MEETINGS VIOLATIONS

Rubalcaba seeks to defeat the jurisdictional challenge under the authority of the Texas Open Meetings Act (TOMA). If sovereign immunity has been waived, the trial court possesses jurisdiction. TOMA requires governmental entities to conduct their meetings and deliberations in public. See Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298, 300 (Tex. App.—Austin 1988, writ denied). TOMA generally waives immunity for violations of the act and authorizes suits against governmental bodies. Riley v. Commissioners Court of Blanco Cnty., 413 S.W.3d 774, 777 (Tex. App.—Austin 2013, pet. denied). However, we note that in Riley, it was not only alleged that the three closed meetings did not fall under the statutory exception allowing closed meetings under certain circumstances when the meeting concerns the purchase of real property, but also Riley sought mandamus and injunctive relief to "stop, prevent, or reverse past, present, and future violations" of the open meetings act. See id.; see also TEX. GOV'T CODE ANN. § 551.072 (West, Westlaw through 2015 R.S.). In contrast, Rubalcaba complained only about two prior Board meetings' alleged violations and did not specifically seek to reverse any prior action, nor did he seek to prevent future actions.

Appellees point out that Rubalcaba did not seek injunctive relief. It should also be noted that Rubalcaba did not sign up to address the Board, had no pending formal written complaint, and although the EIC grading procedures may have been discussed, the July 2013 discussion concerned another student's grades. Raymondville asserts that votes concerning EIC grading and the other student's complaint about class ranking took place in open forum and Rubalcaba does not plead otherwise. In Cornyn, the Austin Court held that a claim relating only to improper notices of past meetings suffers from "apparent mootness." Cornyn v. City of Garland, 994 S.W.2d 258, 267 (Tex. App.—Austin 1999, no pet.). Legal sufficiency of any required notice would depend on its particular content, and because such a notice has not yet been composed or posted, its content can only be a matter of speculation and conjecture. Id. The court is without power to give advisory opinions. Id. The court also noted that any "interested person, including a member of the news media," has the right of immediate judicial review by way of an application for writ of "mandamus or injunction to stop, prevent, or reverse a violation or threatened violation" of the notice requirement. Id.; see Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 761 (Tex. App.—Fort Worth 2010, pet. denied) (stating that an issue is moot when "one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy") (citations omitted). We also note that even if Board members expressed opinions in closed session, or closed session with counsel in violation of the Act's exception and notice provisions, if the final vote occurred in open session, no voidable final action was taken. Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751, 764-65 (Tex. App.—Austin, 2012 no pet.) (citing United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 128 (Tex. App.—San Antonio 1995, writ denied) (op. on reh'g) (holding no TOMA violation occurred when a vote took place in open session after any alleged violation occurred in closed session)).

Raymondville acknowledges a somewhat less restrictive case law approach was taken in Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 380 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that a TOMA violation is not rendered moot simply because it occurred in the past, but remains a live controversy insofar as it supports a future remedy; the claims of past TOMA violations and threatened future violations are, in fact, inextricably intertwined). But the Houston court majority only held that the pleadings met minimum requirements, not that there was a TOMA violation. See id. "Kessling's pleadings are sufficient to make a claim . . . in that she explicitly alleged a pattern and practice of certain kinds of TOMA violations and requested injunctive and mandamus relief to prevent future violations of the same nature." Id. Rubalcaba wholly fails by comparison. Furthermore, our supreme court has held: "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citing Bexar-Medina-Atascosa Cntys. Water Control & Improvement Dist. No. 1 v. Medina Lake Protection Ass'n, 640 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1982, writ ref'd n.r.e.)).

Appellees also cite City of Farmers Branch v. Ramos, 235 S.W.3d 462, 470 (Tex. App.—Dallas 2007, no pet.), which, like Kessling, allowed a request for a declaration that appellants violated the statute in the past but was coupled with the "demand to disclose to the public all transcripts, minutes, recordings, and other evidence of closed meetings as well as require appellants to comply with TOMA in the future." Ramos, 235 S.W.3d at 469. This in turn established that the issue was not moot. Id. at 470. Indeed, "a review of the requested relief will aid in determining whether his appeal is moot." Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 760 (Tex. App.—Fort Worth 2010, pet. denied).

We agree with Raymondville that the Board satisfied TOMA at both the May 14 and July 16, 2013 meetings by taking a final action, decision, or vote in an open meeting. See Bass, 366 S.W.3d 764-65. Furthermore, Rubalcaba did not seek to have any specific Board action declared void and did not seek injunctive or other relief. In effect, Rubalcaba did not allege a violation of TOMA that would waive immunity. While a discussion may have taken place in executive session which may have been in violation of the Act, that any purported action was void or voidable does not follow. The only votes took place in open session after the alleged violations occurred. Therefore, the vote was not taken in violation of TOMA and Rubalcaba is not entitled to void the purported action. Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d 496, 504 (Tex. App.—Tyler 2006, no pet.); (United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 128 (Tex. App.—San Antonio 1995, writ denied) (op. on reh'g). Stated otherwise, Rubalcaba did not plead (or offer proof) that would satisfy the requirements to waive immunity. To establish that an alleged Board order violated the Act, it must be established that "the actual vote or decision" to adopt the orders was not made in open session. Bass, 366 S.W.3d at 764-65.

Finally, Rubalcaba presented no justiciable controversy under TOMA concerning his GPA or class rank. Additionally, his claims are moot now that he has graduated and enrolled in a college. Finally, there is no indication that the Board actually took any action regarding Rubalcaba. "A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome." See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005).

IV. DECLARATORY JUDGMENT ACT

Rubalcaba, while acknowledging sovereign immunity deprives the trial court of subject matter jurisdiction, nevertheless argues for waiver of immunity under the Uniform Declaratory Judgment Act. He admits that the Act does not include a general waiver of immunity and does not expand waivers of sovereign immunity granted in other statutes. See Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011) (stating that generally, the UDJA does not alter a trial court's jurisdiction; a litigant's couching its requested relief in terms of declaratory relief does not alter the underlying nature of the suit); see also Lower Colo. River Auth. v. City of Boerne, Tex., 422 S.W.3d 60, 64 (Tex. App.—San Antonio 2014, pet. denied) (stating that only "clear and unambiguous" language within a statute will be interpreted as waiving immunity, and it has long been recognized that the power to waive immunity from suit lies solely with the legislature). Rubalcaba also acknowledges: "that the UDJA does not waive the state's sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law." Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). Yet that is the specific remedy sought in part by Rubalcaba in his Second Amended Petition regarding his claims pertaining to: (1) violation of the Education Code; (2) violations of Board policies; (3) retaliation; (4) violation of the duty to establish policies and rules; (5) duties under TEA regulations; (6) failure to implement policy; and (7) failure to properly weight and certify summary courses offered to students, et cetera.

Rubalcaba argues that immunity is deemed waived if the UDJA action seeks a declaration that the statute or ordinance is invalid. City of McKinney v. Hank's Rest. Grp., L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas 2013, no pet.) (holding that the Act's waiver "is limited to claims challenging the validity of ordinances or statutes"). Liberally construing Rubalcaba's pleadings, we find no such claims. The essence of his claim is that the EIC policy was incorrectly applied to him, not that the policies were invalid. And as Raymondville points out, governmental immunity will bar an otherwise proper UDJA claim that has the effect of establishing a right to relief against a governmental entity for which the Legislature has not waived immunity. Montrose Mgmt. Dist. v. 1620 Hawthorne, Ltd., 435 S.W.3d 393, 403 (Tex. App.—Houston 2014, pet. denied) (citing Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Complaints about a governmental unit's actions, as opposed to construction of a statute, do not waive immunity under the UDJA. Montrose Mgmt., 435 S.W.3d at 404.

Finally, Rubalcaba seeks to invoke the ultra-vires exception to sovereign immunity. Under the so called "ultra-vires exception" to sovereign immunity, such immunity is not considered to be implicated by a suit against a state officer in his or her official capacity (thereby binding the State through its agent) for prospective injunctive or declaratory relief to compel compliance with statutory or constitutional provisions. Bacon v. Tex. Historical Comm'n, 411 S.W.3d 161, 173 (Tex. App.—Austin 2013, no pet.) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372-80 (Tex. 2009)). First, we note Rubalcaba's admission that this exception was not pled. As the claimant, Rubalcaba bears the burden of pleading facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. City of McKinney v. Hank's Rest. Grp., L.P., 412 S.W.3d 102, 109 (Tex. App.—Dallas 2013, no pet.). While it is true that appellant's response to Raymondville's plea to the jurisdiction mentions the Principal and Superintendent, the allegations were that these administrators acted without authority and did not act in good faith. Our Supreme Court in Heinrich, which sought to add some clarity to this evolving area of the law, observed: "The best way to resolve this conflict is to follow the rule, outlined above, that a claimant who successfully proves an ultra-vires claim is entitled to prospective injunctive relief, as measured from the date of injunction." 284 S.W.3d at 376; cf. Edelman v. Jordan, 415 U.S. 651, 669 (1974) (using entry of injunction to distinguish retrospective from prospective relief). "Thus, while the ultra-vires rule remains the law . . . Epperson's retrospective remedy does not." Heinrich, 284 S.W.3d at 376; State v. Epperson, 42 S.W.2d 228, 231 (Tex. 1931) (internal citations omitted). Because Rubalcaba sought only such a retrospective remedy, his claims do not fall within this exception. See Heinrich, 284 S.W.3d at 376.

V. ADMINISTRATIVE REMEDIES, PLEADINGS, AND DISCOVERY

Rubalcaba had extensive administrative remedies under the Texas Education Code. The law clearly requires the exhaustion of all administrative remedies prior to filing suit. Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 241 (Tex. App.—El Paso 2012, no pet.) (stating that Texas law requires an aggrieved party to exhaust all remedies provided under the applicable administrative scheme if the party's claim: (1) concerns the administration of school laws, and (2) involves questions of fact). Whether the grievance of a party is against a professional employee of the school district or against the school district itself, a complainant must exhaust his administrative remedies in order to facilitate settlement before resorting to the judiciary for resolution. Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex. App.—Tyler 1997, pet. denied).

Rubalcaba complains his administrative remedies were not explained to him and he believed the matter was being addressed. Evidence of his attempts include a letter from his attorney to the Superintendent in April 2013 and an affidavit from Rubalcaba's father that he spoke with four different school personnel. Raymondville responds Rubalcaba did not meet his obligation to plead an exception to the requirement establishing that the trial court had jurisdiction. Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 323-24 (Tex. App.—Houston [1st Dist.] 1997, writ denied) (stating that one is required to exhaust administrative remedies before resorting to the courts, unless an exception to this requirement applies). The Education Code provided Rubalcaba a right of appeal to the Commissioner of Education if he claimed to be aggrieved by the school laws of the state or actions or decision of any school board of trustees that violate the school laws or a provision of a written employment contract if that violation caused monetary harm. TEX. EDUC. CODE ANN. § 7.057 (West, Westlaw through 2015 R.S.). "Requiring exhaustion of administrative remedies is not meant to deprive an aggrieved party of any legal rights. It is meant, rather, to provide an orderly procedure by which aggrieved parties may enforce those rights." El Paso Indep. Sch. Dist. v. McIntyre, 457 S.W.3d 475, 485 (Tex. App.—El Paso 2014, pet. granted).

Raymondville also argues that Rubalcaba failed to present his complaints to the school board itself. He did not sign up to speak to the Board, and he admitted he proceeded directly with his lawsuit after the Board's discussion on the application of EIC grading procedures. As a rule, a party to an administrative proceeding is not entitled to judicial review until the party has pursued correction through the prescribed administrative process. Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90 (Tex. 1992). We hold that Rubalcaba failed to exhaust his administrative remedies, i.e., he did not appeal to the Commissioner of Education, filed no formal complaint, and did not sign up to present his challenge with the Board.

Rubalcaba asserts he should be allowed to replead. First, we note he took the opportunity to replead two times in apparent responses to Raymondville's pleas to the jurisdiction. In cases such as presented here, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We hold that the jurisdictional defects are incurable.

Rubalcaba makes a similar argument maintaining he should have been allowed additional discovery by the trial court. There is no need to decide whether the trial court abused its discretion in ruling on the motion before discovery because Rubalcaba failed to show that the trial court had jurisdiction. See In re C.M.C., 192 S.W.3d 866, 873 (Tex. App.—Texarkana 2006, no pet.).

VI. SANCTIONS

We review the trial court's award of sanctions pursuant to section 11.161 of the Education Code for an abuse of discretion. Ollie v. Piano Indep. Sch. Dist., 383 S.W.3d 783, 793 (Tex. App.—Dallas 2012, pet. denied) (reviewing award of attorney's fees under section 11.161 of Education Code for abuse of discretion); Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 387 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (same).

The trial court did not originally award sanctions. However, after Rubalcaba moved for a new trial and sanctions, the court awarded sanctions against him in the amount of $1,500 based upon section 11.161 of the Texas Education Code. See TEX. EDUC. CODE ANN. § 11.161 (West, Westlaw through 2015 R.S.). In a civil suit brought under state law, against an independent school district or an officer of an independent school district acting under color of office, the court may award costs and reasonable attorney's fees if: (1) the court finds that the suit is frivolous, unreasonable, and without foundation, and (2) the suit is dismissed or judgment is for the defendant. See id.

It is well established, however, that a proceeding is "frivolous" when it "lacks an arguable basis either in law or in fact." De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no writ). Rubalcaba was informed that his class rank was seven. He applied for and received a $39,000 scholarship on that basis. Raymondville then changed his rank to thirteen, knocking him out of the top ten percent and costing him at least one scholarship. Logically, Raymondville either erred when it said his class rank was seven or it erred when it said his class rank was thirteen. Is it frivolous to point out this obvious miscalculation or to urge that a full year study of geometry should be worth similar points as a six week summer AP course in the same subject? The school's procedures reiterated that the student should use every effort to resolve any grievance informally. This he did. His father wrote to the superintendent and talked with four different school personnel. He attended two Board meetings that may have generally addressed the issue. Was he misled into believing his issue would be addressed? We don't know; the record is limited to a dilatory plea and further discovery was disallowed. But without an evidentiary hearing on the sanctions, it is challenging to find that Rubalcaba's seeking redress or clarification, however unsuccessfully, was frivolous, unreasonable, and without foundation.

Sanctions are reserved for "those egregious situations where the worst of the bar uses our honored system for ill motive without regard to reason and the guiding principles of the law." Thielemann v. Kethan, 371 S.W.3d 286, 295 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (quoting Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 951 (Tex. App.—Houston [1st Dist.] 1993, no writ)). A trial court may not base sanctions solely on the legal merit of a pleading or motion. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts-Brown, 103 S.W.3d 664, 668 (Tex. App.—Dallas 2003, no pet.)). Instead, the trial court must examine the facts available to the litigant and the circumstances existing at the time the pleading was filed. Id. Here, even the attorney for the school Board argued to the trial court that Rubalcaba's claims under TOMA were "almost frivolous." And other than counsel's argument about TOMA, we cannot find in the record where the court heard actual evidence about attorney's fees, ill motive, or other abuse of the system.

In Ollie, the school district specifically notified Ollie in response to her demand letter that her claims were barred and it would seek to recover its attorney's fees if Ollie proceeded in filing this suit. 383 S.W.3d at 793-94. The trial court found that, prior to filing suit, Ollie, a teacher, had specific knowledge of the legal bars to her claims and that this lawsuit was, therefore, frivolous, groundless, and/or brought for an improper purpose. Id. Here, a student with a legitimate concern failed to pursue the proper technical administrative appeals, notwithstanding his letter to the Superintendent and contact with four other school officials. We hold that the record does not support an implied finding that Rubalcaba's claims were frivolous, unreasonable, and without foundation.

VII. CONCLUSION

The January 21, 2014 judgment of the trial court is affirmed. That portion of the March 26, 2014 order granting sanctions is reversed and rendered.

/s/ Don Wittig

Don Wittig

ASSIGNED JUDGE Delivered and filed this the 31st day of March, 2016.