The Third Court of Appeals held that no implied authority exists for actions of a state agency without a showing that the implied authority is required to effectively perform a statutorily expressed responsibility.
Special contributing author Laura Mueller, City Attorney for Dripping Springs
University of Texas at Austin President Jay Hartzell, et al. v. S.O., et al., No. 03-19-00131-CV (Tex. App.—Austin September 4, 2020).
In this ultra virus University case, the plaintiff sued University officials for exceeding their authority in attempting to revoke her Ph.D after she had already graduated from the University. The Court of Appeals held that the University did exceed its authority in attempting to revoke her earned degree because they do not have specific statutory authority to revoke degrees and the authority to revoke degrees is not essential to its statutory authority to award degrees.
The plaintiff was awarded a Ph.D in 2008. In 2012, the University conducted an investigation and attempted to revoke her Ph.D for academic misconduct in 2014. The plaintiff sued the University stating that her due process rights were violated by the University’s procedure. The University undid its revocation and instituted a different procedure to investigate the possibility of revoking the plaintiff’s degree again. In response to the University’s renewed efforts, the plaintiff sued the University in this suit as an ultra vires claim. The University defendants filed a plea to the jurisdiction arguing they had the authority to revoke the degree because its rules allowed it and because the authority to revoke degrees is implied with the authority to award degrees. This case has been through the appellate process once on the issue of ripeness. The appellate court held that her complaint was ripe and the case was sent back to the trial court. Upon return, the trial court granted-in-part and denied-in-part the plea. In this appeal, the issue is whether the University has the authority to revoke degrees, the basis of the plaintiff’s ultra vires claim.
An ultra vires claim waives immunity if the plaintiff can show that an official’s conduct exceeded their granted authority. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). State agencies, like the University, only have the authority that they are given by statute and may only adopt rules pursuant to their statutory authority. Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). State law gives a University the authority to “award” a degree, but not to revoke one. Tex. Educ. Code § 65.31(b). Authority can be implied if the agency needs the power in order to allow the agency to effectively carry out the functions necessary for its expressed authority. Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192-93 (Tex. 2007). The Court of Appeals held that the authority to award degrees does not require the authority to revoked degrees, and therefore revoking a degree after a student has earned it and graduated is an ultra vires act waiving sovereign immunity.
The Court also affirmed the trial court’s denial of attorney’s fees from the plaintiff. Even though the plaintiff prevailed, the legal questions were ones that needed to be decided and an appellate court gives a trial court wide discretion in determining attorney’s fees so long there is no abuse of discretion.
Justice Kelly issued a concurring and dissenting opinion stating that the University does have the authority to revoke a student’s degree, but that the claims are not ripe.
If you would like to read this opinion click here. Panel consists of Justices Goodwin, Baker, and Kelly. Opinion by Justice Thomas Baker. Concurring/dissenting opinion by Justice Kelly can be found here.