Rubalcaba v. Isd, NUMBER 13-14-00224-CV

• Decision Date: 31 March 2016
• Docket Number: NUMBER 13-14-00224-CV
• Parties: RAFAEL RUBALCABA, III AND RAFAEL RUBALCABA, JR., AS REPRESENTATIVE AND NEXT FRIEND OF RAFAEL RUBALCABA, III, Appellants, v. RAYMONDVILLE ISD, CRISELDA FLORES, AS PRINCIPAL OF RAYMONDVILLE HIGH SCHOOL AND JOHNNY PINEDA, AS SUPERINTENDENT FOR RAYMONDVILLE ISD, Appellees.
• Court: Texas Court of Appeals

RAFAEL RUBALCABA, III AND RAFAEL RUBALCABA, JR.,AS REPRESENTATIVE AND NEXT FRIEND OF RAFAEL RUBALCABA, III, Appellants, v. RAYMONDVILLE ISD, CRISELDA FLORES, AS PRINCIPAL OF RAYMONDVILLE HIGH SCHOOLAND JOHNNY PINEDA, AS SUPERINTENDENT FOR RAYMONDVILLE ISD, Appellees.

NUMBER 13-14-00224-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 31, 2016

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 Wittig¹

Rafael Rubalcaba III,² ("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.³ 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.⁴ 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 fullyear 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,⁵ 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 matterjurisdiction 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 governmentalbodies. 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...