Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 4 of 17

6/27/2019 4:10 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-19-003695 D-1-GN-19-003695
CAUSE NO. ___________________
Ruben Tamez

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HOUSTON INDEPENDENT SCHOOL § IN THE DISTRICT COURT

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DISTRICT §

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Plaintiff §
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§ 459TH
THE TEXAS EDUCATION AGENCY § _______ JUDICIAL DISTRICT

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and MIKE MORATH, COMMISSIONER §

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OF EDUCATION, in his official capacity, §

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Defendants § TRAVIS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION FOR DECLARATORY

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JUDGMENT, INJUNCTIVE RELIEF, AND MOTION TO DENY

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SUPERSEDEAS ON APPEAL OF ANY INJUNCTIVE RELIEF GRANTED

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AGAINST DEFENDANTS

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TO THE HONORABLE JUDGE OF SAID COURT: tri
Plaintiff Houston Independent School District (“Houston ISD” or “the District”) brings this
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action against Defendants Mike Morath, Commissioner of Education, in his official capacity
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(“Commissioner Morath”) and the Texas Education Agency (“TEA”) and would show the Court
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the following:
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I.
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DISCOVERY CONTROL PLAN

1. Plaintiff intends to conduct discovery under Level 2 pursuant to Texas Rule of Civil
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Procedure 190.3.
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II.
PARTIES
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2. Plaintiff Houston Independent School District, is a school district in the state of

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Texas located in Harris County, Texas.

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Houston ISD v. TEA and Morath
Orig. Pet. for Dec. J., Inj. Relief, and Mtn to Deny Supersedeas
 
 
 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 5 of 17

3. Defendant Mike Morath is the Texas Commissioner of Education, is named in his

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official capacity. The Commissioner may be served with process at the Texas Education Agency,

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1701 North Congress Avenue, Austin, Texas 78701. Issuance of citations is requested at this time.

4. The Texas Education Association (the “TEA”) is a state agency and may be served

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with process at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.

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Issuance of citations is requested at this time.

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III.
JURISDICTION AND VENUE

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5. Texas courts have jurisdiction to declare the rights, status, and other legal relations

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whether or not further relief is or could be claimed. TEX. CIV. PRAC. & REM. CODE §§ 37.002–.003.

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Lawsuits against governmental entities are permitted when a pleading alleges (1) a statutory grant
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of judicial authority, (2) a claim related to a vested property right, or (3) another constitutional
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interest. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001); Cont’l
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Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000).

IV.
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FACTS
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6. The Houston ISD Board of Trustees consists of nine board members; therefore, a
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group of five board members is required to form a quorum.

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Houston ISD v. TEA and Morath
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 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 6 of 17

A. In 2016, TEA appoints a conservator to oversee Kashmere High School.

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7. On September 2, 2016, the District received correspondence from TEA appointing

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a conservator1 to ensure and oversee district-level support for Kashmere High School.

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8. After working with the District on a turnaround plan for Kashmere High School,

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TEA approved this modified campus turnaround plan for Kashmere High School in 2017. Despite

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the approval of the turnaround plan, TEA did not notify the District that it was removing the

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conservator.2

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9. During the more than two years since the conservator’s appointment regarding

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Kashmere High School, there have been significant gaps of more than 90 days between quarterly

reports indicating that the Commissioner has reviewed the need for the conservator and determined
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that the conservator’s continued appointment is necessary.
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B. In 2018, Houston ISD appoints an interim superintendent and begins a

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superintendent search.

10. Early in 2018, Houston ISD appointed an interim superintendent after the departure
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of its previous superintendent. In 2018, Houston ISD also began a superintendent search.
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11. On multiple occasions during 2018, some Houston ISD board members had
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discussions with each other in groups of less than a quorum. On one or more of these occasions,
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there may have been discussions regarding the District’s search for a superintendent.
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The Commissioner claimed that the conservator’s appointment was made pursuant to sections 39.102(a)(7) and
39.107(c) of the Texas Education Code.
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The Commissioner is required to review the need for a conservator every 90 days and must determine whether
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the continued appointment is necessary for effective governance or delivery of instructional services. TEX. EDUC.
CODE § 39A.003(b).
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Houston ISD v. TEA and Morath
Orig. Pet. for Dec. J., Inj. Relief, and Mtn to Deny Supersedeas
 
 
 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 7 of 17

C. Houston ISD receives notice from TEA of a special accreditation investigation

(SAI # INV2019-10-034).

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12. On January 22, 2019, TEA issued a Notice of Special Accreditation Investigation

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(SAI # INV2019-10-034) (“SAI Notice”). Later that day, TEA issued an amended Notice of

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Special Accreditation Investigation (SAI # INV2019-10-034) (“First Amended SAI Notice”) that

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was substantially similar to the original notice.

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13. The First Amended SAI Notice was issued by Jason Hewitt, Director Special

Investigations Unit and listed a single complaint.

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14. The investigation involved whether the Houston ISD Board of Trustees may have

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violated The Open Meetings Act by deliberating district business prior to a regularly scheduled

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board meeting regarding the potential removal of the current interim superintendent and the
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installation of a new interim superintendent.
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15. The investigation also involved whether this alleged conduct violated Texas
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Education Code §§ 11.051 and 11.1511 and Chapter 551 of the Texas Government Code.

16. The First Amended SAI Notice included requests for production of documents and
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a witness list of individuals who might be interviewed.

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17. The investigation was purportedly being conducted pursuant to the authority
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provided in Texas Education Code § 39.057 (a)(6), (16).

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18. The complaint described in the notices is false and is unsupported by any evidence.
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A majority of Houston ISD board members did not meet to discuss either the potential removal of
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the current interim superintendent or the installation of a new interim superintendent prior to a
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regularly scheduled board meeting.

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Houston ISD v. TEA and Morath
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 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 8 of 17

19. Regarding the Special Accreditation Investigation (SAI # INV2019-10-034), TEA

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conducted an onsite investigation, reviewed documents, and conducted interviews with board

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members and the District’s administration and staff.

20. On February 8, 2019, the District received notice that the documents requested in

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the First Amended SAI Notice should be provided by February 22, 2019. The District provided

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all requested documents in a timely manner and cooperated fully with the investigation.

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D. The Conservator directs Houston ISD to take no action regarding its superintendent
search.

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21. On or about March 25, 2019, the conservator directed the Board of Trustees and

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administration of Houston ISD to immediately suspend its search for a superintendent until

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(1) TEA completes the Special Accreditation Investigation (SAI # INV2019-10-034) and (2) the
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Board receives written authorization from the conservator to resume the search activities.
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22. The status of the Special Accreditation Investigation (SAI # INV2019-10-034) is

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still pending. TEA has not issued a preliminary report regarding this SAI.

E. The Texas Attorney General issues an advisory opinion

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23. On February 27, 2019, the Texas Court of Criminal Appeals issued an opinion
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holding that one provision of the Texas Open Meetings Act (i.e., section 551.143) was
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unconstitutionally vague.3 Section 551.143 made it illegal for board members to meet in numbers
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of less than a quorum for the purpose of “secret deliberations in violation of this chapter.” 4
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3
State v. Doyal, No. PD-0254-18, 2019 Tex. Crim. App. LEXIS 161 (Tex. Crim. App. Feb. 27, 2019).
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See id. at *2.
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Houston ISD v. TEA and Morath
Orig. Pet. for Dec. J., Inj. Relief, and Mtn to Deny Supersedeas
 
 
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24. On April 24, 2019, in the wake of the Doyal decision, the Commissioner requested

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an advisory opinion from the Texas Attorney General addressing the following issues:

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Given the ruling in the Doyal case, if a quorum of a governmental body
subject to the Texas Open Meetings Act deliberates about an item of public

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business by meeting successively in numbers less than a quorum outside an
authorized meeting, does the governmental body violate the Texas Open

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Meetings Act, and, if so, are civil remedies still available? If civil remedies

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are available, does this include regulatory actions based on a [sic] such a
violation?

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25. On May 24, 2019, the Texas Attorney General issued an advisory opinion (KP-

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0254) stating the following conclusions regarding these issues:

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If a quorum of a governmental body deliberates about public business
within the jurisdiction of the body outside of a meeting authorized by the

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Texas Open Meetings Act, through multiple communications each
involving fewer than a quorum, the governmental body violates the Act.
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Action taken by a governmental body in violation of the Act is voidable. In
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addition, any interested person may bring an action by mandamus or

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injunction to stop, prevent , or reverse a violation or threatened violation of

the Act by members of a governmental body.
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If the Texas Education Agency conducts an investigation as authorized by

section 39.057 of the Education Code and concludes that members of a
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school district board of trustees violated their duty to comply with the Act,
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it could take appropriate civil action authorized by subsection 39.057(d) of

the Education Code.
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V.
CAUSES OF ACTION
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26. Plaintiff incorporates by reference all of the preceding paragraphs.

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27. Pursuant to the Uniform Declaratory Judgment Act, Texas courts have jurisdiction
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to declare rights, status, and other legal relations whether or not further relief is or could be
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claimed. TEX. CIV. PRAC. & REM. CODE § 37.003. The purpose of the Act is to afford relief from
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uncertainty and insecurity with respect to rights, status, and other legal relations. Id. § 37.002.
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Houston ISD v. TEA and Morath
Orig. Pet. for Dec. J., Inj. Relief, and Mtn to Deny Supersedeas
 
 
 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 10 of 17

28. The Commissioner’s Special Accreditation Investigation (SAI # INV2019-10-034)

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of Houston ISD and the Texas Attorney General’s opinion both threaten Houston ISD with

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potential penalties for board members’ exercise of their First Amendment rights and chills the

exercise of the board members’ First Amendment freedoms. See, e.g., Colson v. Gohman, 174

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F.3d 498, 509–10 (5th Cir. 1999) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). This

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leaves Houston ISD and its board members in a state of uncertainty and insecurity with respect to

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their First Amendment rights. See TEX. CIV. PRAC. & REM. CODE §§ 37.002–.003.

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VI.

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REQUEST FOR TEMPORARY INJUNCTION PURSUANT TO RULE 681

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29. Plaintiff incorporates by reference all preceding paragraphs.

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Plaintiff requests that, after notice and hearing, Defendants be temporarily enjoined
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from taking any regulatory actions against Houston ISD and/or its Board of Trustees based on
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either the Special Accreditation Investigation (SAI # INV2019-10-034) or Texas Attorney General
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Opinion KP-0254.

31. If Defendants are permitted to impose penalties based on the Special Accreditation
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Investigation (SAI # INV2019-10-034), Houston ISD would be immediately and irreparably

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harmed because Defendants could impose penalties on Houston ISD that may not be able to be
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undone.
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32. Plaintiff will demonstrate, at the hearing on its request for a temporary injunction,
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that it will probably prevail on final trial on the merits as to one or more of the grounds asserted
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above.
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33. Defendants cannot show that granting this temporary injunction would result in any
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harm to the public welfare.

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Houston ISD v. TEA and Morath
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 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 11 of 17

VII.
MOTION TO DENY SUPERSEDEAS TO DEFENDANTS IN CASE OF APPEAL OF

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ANY INJUNCTIVE RELIEF

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34. Plaintiff moves the Court to issue an order denying Defendants the right to suspend

any temporary injunction issued against Defendants and in favor of Plaintiff, upon Defendants’

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filing of a notice of appeal as to any such temporary restraining order or temporary injunction,

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conditioned on posting by Plaintiff of security in an amount and by the method to be determined

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by the Court. State agencies have a pattern and practice of taking appeals from adverse rulings of

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trial court orders awarding injunctive relief against them and consistently claim a right to suspend

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the enforcement of orders granting injunctive relief against them, including but not limited to

temporary or permanent injunctions. The effect of superseding judicial injunctive relief is to deny
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the party obtaining such relief from obtaining any effective judicial relief in the future. This is
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because the damage from the actions to be prevented by the award of injunctive relief is
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irreparable, even when the injunctive relief is only temporary.

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35. The trial court has discretion to deny any attempt by Defendants to supersede any
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temporary injunction this Court grants. TEX. R. APP. P. 24.2(a)(5), 29.1, 29.2. The relevant
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appellate rules provide Defendants with an adequate remedy for any abuse of judicial discretion
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denying supersedeas on appeal. TEX. R. APP. P. 29.2 (“If the trial court refuses to permit the
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appellant to supersede the order, the appellant may move the appellate court to review the decision
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for abuse of discretion.”). Similarly, Rule 24.2(a)(5) provides for appellate review of the trial
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court’s determination on whether or not to suspend enforcement of temporary injunctive relief.

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Under separation of powers principles, this Court must have the discretion to prevent
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administrative or executive action taken in violation of law or established rights, subject to judicial
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Houston ISD v. TEA and Morath
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 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 12 of 17

review for abuse of discretion. This is the only effective remedy when an administrative or

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executive act, if not temporarily restrained by the judiciary, will become a fait accompli prior to

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final adjudication of the litigation contesting that action.

VIII.

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PERMANENT INJUNCTION AND MOTION TO DENY SUPERSEDEAS ON APPEAL
OF PERMANENT INJUNCTION

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36. After full trial on the merits, Plaintiff requests the Court enter a permanent

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injunction prohibiting Defendants from taking any regulatory actions against Houston ISD and/or

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its Board of Trustees based on either Special Accreditation Investigation (SAI # INV2019-10-034)

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or Texas Attorney General Opinion KP-0254.

37. Plaintiff further requests the Court issue an order to deny supersedeas to Defendants
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on appeal of any permanent injunction entered by this Court.
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38. Plaintiff hereby incorporates by reference its Motion to Deny Supersedeas

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regarding any temporary injunction granted in this action, as to any permanent injunction this
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Court may issue after final trial on the merits, as set forth above.
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IX.
CONCLUSION AND REQUESTS FOR RELIEF
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For the foregoing reasons, Plaintiff respectfully requests that Defendants be cited to appear
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and answer and that the Court take the following actions and grant the following relief:
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A. After notice and hearing on Plaintiff’s Request for Temporary Injunction, issue a
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temporary injunction pursuant to Rule 681 of the Texas Rules of Civil Procedure,
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prohibiting Defendants from taking any regulatory actions against Houston ISD
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 Case 1:19-cv-00684-LY Document 1-4 Filed 07/03/19 Page 13 of 17

and/or its Board of Trustees based on either Special Accreditation Investigation

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(SAI # INV2019-10-034) or Texas Attorney General Opinion KP-0254.;

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B. After notice and hearing on Plaintiff’s Motion to Deny Supersedeas on Appeal of

Any Temporary Injunction issued by this Court, upon posting by Plaintiff of such

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security as the Court may require;

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C. After trial on the merits:

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1. Declare that the Texas Open Meetings Act does not prohibit board members

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from meeting in groups of less than a quorum to discuss issues relating to

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Houston ISD;

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2. Declare that the Texas Education Agency may not take regulatory actions
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against Houston ISD because board members have met in groups of less
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than a quorum to discuss issues relating to Houston ISD;

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3. Grant a permanent injunction preventing Defendants from taking any

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regulatory actions against Houston ISD and/or its Board of Trustees based
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on either Special Accreditation Investigation (SAI # INV2019-10-034) or

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Texas Attorney General Opinion KP-0254.;

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4. Issue an order denying supersedeas on appeal to Defendants as to any final

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order or judgment issued by this Court, upon the posting by Plaintiff of such
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security as the Court may require;

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5. Award Plaintiff an amount that reflects the reasonable and necessary

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attorneys’ fees incurred by Plaintiff in an amount the Court finds to be

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equitable and just to be paid by Defendants to Plaintiff;

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6. Award Plaintiff court costs as the court finds to be equitable and just to be

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paid by Defendants to Plaintiff; and

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7. Any other or further relief, in law or equity, that the Court determines the

Plaintiff is entitled to receive.

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Respectfully submitted,

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By: /s/ David Campbell

David J. Campbell

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dcampbell@808west.com
State Bar No. 24057033

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Kevin O’Hanlon
kohanlon@808west.com

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State Bar No. 15235500
Benjamin Castillo
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bcastillo@808west.com
State Bar No. 24077194
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O’HANLON, DEMERATH &

CASTILLO
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808 West Avenue

Austin, Texas 78701
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Tel: (512) 494-9949

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Fax: (512) 494-9919

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Counsel for Plaintiff Houston ISD

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Houston ISD v. TEA and Morath
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