IN THE SUPREME COURT OF TEXAS

CHARLES N. TAYLOR, JR.Petitioner

V.

DEE MARGO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIESAND

MICHAEL WILLIAMS, IN HIS INDIVIDUAL AND OFFICIALCAPACITIES

Respondents

On Petition for Review from theEighth Court of Appeals at El Paso, Texas

Cause No. 08-14-00066-CV

PETITION FOR REVIEW

Charles N. Taylor, Jr., Pro se4501 Croton CircleEl Paso, Texas 79924-6826(915) 757-2335 Home & Faxchucktaylor3964@sbcglobal.net

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Petitioner: Counsel:

Charles N. Taylor, jr. Pro se4501 Croton Cir.El Paso, TX 79924Home: (915) 757-2335Fax (915) 757-2335

Respondents: Counsel for Respondents:

Michael Williams Melissa R. HolmanTexas Education Agency General Litigation Division1701 North Congress Ave. P.O. Box 12548, Capitol StationAustin, Texas 78701-1494 Austin, Texas 78711-2548

Office (512) 463-2120 Fax (512) 320-0667

Dee Margo S. Anthony Safi201 E. Main Suite 1603 Mounce, Green, Myers, Safi & GalatzanEl Paso, Texas 79901 P.O. Box 1977

El Paso, Texas 79999-1977Office (915) 532-2000 Fax (915) 541-1548

i

TABLE OF CONTENTS

Identity of Parties and Counsel...............................................................i

Index of Authorities................................................................................iv

Statement of the Case..............................................................................vi

Statement of Jurisdiction.........................................................................vii

Issues Presented......................................................................................viii

Statement of Facts...................................................................................1

Summary of Argument............................................................................4

Argument................................................................................................6

I. Actors serving a state agency in an official capacitycannot violate state law.....................................................................6

II. There exists no law to protect innocent parties frombeing punished for the acts of others................................................8

A. The Legislature has not provided an avenue to protect newlyelected officials from receiving a punishment meant for anotherparty nor does there exist any court precedent on-point...............10

B. This cause is not moot for the TEA can suspend a board underfraudulent pretenses, can violate stipulations in the Elections code,and punish innocent parties for the wrongs of others...................12

Prayer......................................................................................................15

ii

Certificate of Compliance.......................................................................16

Certificate of Service..............................................................................17

Appendix.................................................................................................18

iii

INDEX OF AUTHORITIES

Case Cites:

Bejarano v. Hunter,899 S.W. 2d 346 (Tex. App.-El Paso 1995)...........................................13

Connell v. Shoemaker,555 F. 2d 483 (TX 1978)........................................................................12

Dallas Area Rapid Transit v. Whitley,104 S.W.3d 540, 542 (Tex. 2003)...........................................................6

Fed. Sign v. Tex. S. Univ.,951 S.W.2d 401, 404 (Tex. 1997)...........................................................6

Goode v. Shoukfeh,943 S.W.2d 441, 446 (Tex. 1997)...........................................................7

Iron Arrow Honor Soc'y v. Heckler,464 U.S. 67, 72, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983)...........................13

Lakey v. Taylor ex rel. Shearer,278 S.W.3d 6, 12 (Tex.App.-Austin 2008, no pet.)................................12

Powell v. McCormack,395 U.S. 486, 497, 89 S. Ct. 1944, 23 L. Ed. 2D 491 (1969).................13

Robinson v. Neeley,192 S.W.3d 904, (Tex.App.-Dallas 2006, no pet. h.).............................11

Texas Dept. of Public Safety v. LaFleur,32 S.W. 2d 911 (Tex. App.-Texarkana 2000)........................................13

University Interscholastic League v. Buchanan,848 S.W. 2d 298 (Tex. App.-Austin 1993).............................................14

iv

Texas Statutes:

Texas Education Code............................................................................app.

Texas Election Code...............................................................................app.

Texas Administrative Code....................................................................app.

Texas Penal Code....................................................................................app.

Other:

Texas State Constitution.........................................................................app.

v

STATEMENT OF THE CASE

Nature of the Case: Charles Taylor sought an injunction against Michael Williams and Dee Margo to restrain them from the continued violation of the TexasElection Code and misguided use of the Texas Education Code.

Trial Court: The Honorable Javier Alvarez and Susan Larsen,County Court at Law #3,El Paso County, Texas.

Trial Court’s Disposition: Denied temporary injunction and dismissed case holding the court did not have subject-matter jurisdiction.

Parties in the Court of Appeals: Appellant Charles N. Taylor, jr.Appellees Dee Margo and Michael Williams

Court of Appeals: Eighth Court of Appeals, El Paso. Chief Justice McClure, joined by Justices Rivera andRodriguez.

Court of Appeals’ Disposition: Rendered the controversy as moot and affirmed trial court’s judgment with Taylor filing a motion for rehearing.

vi

STATEMENT OF JURISDICTION

The Court has jurisdiction because the court of appeals committed an error

of law of such importance to the state’s jurisprudence that it requires correction.

See Tex. Gov’t Code 22.001(a)(6).

The Court also has jurisdiction because this case involves the construction of

a statute necessary to the determination of the case. See id. at 22.001(a)(2).

vii

ISSUES PRESENTED

1. Did the court of appeals analyze and apply the law correctly regarding

immunity for state officials from injunctive relief?

2. Did the court of appeals err by assuming the cause was moot?

a. Did the legislature intend to circumvent the purpose of the Election

Code?

b. Did the court of appeals consider the exceptions to the mootness

doctrine?

viii

STATEMENT OF FACTS

The lower court of Appeals correctly states the basic facts underlying this

case.

The El Paso Independent School District was embroiled in controversy

involving Lorenzo Garcia, former Superintendent, and several others who

committed acts of fraud. On two occasions the Texas Education Agency cleared

EPISD of all wrong-doing. Taylor sought office in an interest to rebuild the district

and restore public confidence in the district.

After the arrest of Garcia by the Federal Bureau of Investigation the TEA

redirected its focus on EPISD and began efforts to take over the district. The

Commissioner first appointed a monitor in August of 2012 to oversee district

operations and report back to the TEA. Then in December of 2012 the

Commissioner announced that he was appointing a Board of Managers to run

EPISD. Taylor, in the midst of campaigning, figured that upon election he would

assume one of the positions within the Board of Managers. He was not given any

documentation to the contrary.

Upon receiving federal pre-clearance Williams appointed the Board of

Managers and suspended the then current board of trustees. Days later the

constituents elected four new trustees with Taylor winning District #5.

1

Upon the canvassing of the election as dictated by the Texas Election Code

Taylor did not receive the Certificate of Election as mandated by the Election

Code. Taylor was told by Margo that he, Taylor, was a common citizen with no

rights. Taylor then sought answers from the TEA and was told the matter was

closed. Taylor filed suit seeking an injunction to enjoin Williams and Margo from

further violation of the Election Code .

The trial court presided by Alvarez denied the temporary restraining order

and noted a hearing would be held once the defendants filed their answers. The

court failed to schedule such hearing upon the filings, but did so after Taylor

inquired to the matter.

At the hearing Taylor argued his right to office and the disfranchisement of

the constituents who elected him to office. The defendants argued that Taylor

could not take office because under the Education Code he was suspended. The

trial court decided later that it did not have proper jurisdiction to hear the matter.

Taylor asked for Findings of Fact and Conclusions of Law with the court saying it

had discretion and did not have to file in such a matter.

Taylor appealed arguing the trial court had jurisdiction and having found

new evidence discovered the appointment of the Board of Managers and

suspension of the board of trustees was done fraudulently.

2

The court of appeals rendered the controversy as moot and dismissed the

cause affirming the trial court decision.

3

Summary of the Argument

A case becomes moot if there is no longer a live case or controversy in

dispute between the parties. In an injunction cause this may happen when a

defendant voluntarily ceases the conduct complained of or ends the continued

violation of a law that impedes, prevents, or harms the plaintiff in some way.

Here the court of appeals rendered the cause as moot suggesting that Taylor

had received the exact items he had asked for, yet this decision is impractical and

does not have any impact to prevent the complained of conduct from ever

occurring again.

While the defendants did painstakingly provide the Certificate of Election

this conduct could be repeated and there is no protection to safeguard or prevent

this exact scenario from repeating.

Also while Taylor is now fully in office he lost two years of his elected term

with no avenue to restore said loss and worse the loss was due to the failings of

other parties. The law allows an innocent party to suffer for the wrongdoings of

others and this should not be so.

Finally, the TEA committed a huge fraud in the suspension of the original

trustees and the law does not provide an avenue to address said fraud. The law

4

itself aids and abets the commission of a crime by the TEA for it does not allow

anyone to challenge TEA orders.

The TEA can once again fabricate evidence, make false statements, and

suspend a board of trustees upon a whim and the incoming trustees cannot

challenge the TEA decision.

The TEA is allowed to misuse and violate the law, repeating the exact same

conduct with impunity. The controversy is even greater than it was before and this

honorable court needs to step in and prevent this conduct from repeating.

Accordingly, this Court should grant this petition for review and reverse the

decision of the court of appeals.

5

ARGUMENT

I. Actors serving a state agency in an official capacity cannot violate state

law.

The trial court's dismissal holding that it did not have subject-matter

jurisdiction gives a state actor the ability to violate the law and when called into

court to answer for that violation escape adjudication with governmental immunity.

There exists no law to support such an outcome.

However the opposite is quite well founded.

While “[i]n the absence of a waiver of governmental immunity, a court has

no subject matter jurisdiction to entertain a suit against a governmental unit.”

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). “A party

can maintain a suit against a governmental unit to obtain an equitable remedy or to

determine its legal rights without legislative permission.” Fed. Sign v. Tex. S.

Univ., 951 S.W.2d 401, 404 (Tex. 1997).

In Fed. Sign, 951 S.W.2d at 404 this court stated quite well that “[a] state

official’s illegal or unauthorized actions are not acts of the State. Accordingly, an

action to determine or protect a private party’s rights against a state official who

has acted without legal or statutory authority is not a suit against the State that

sovereign immunity bars.”

6

Taylor did not seek money damages against the state. He sought only to

have Williams and Margo comply with the Texas Election Code and the T.E.C.

provided the proper avenue to do so.

If this court has held that injunctions are not barred by sovereign immunity

then the trial court's decision is not based on any guiding principles and must be

ruled as arbitrary. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).

Even more so now that Taylor is fully in office he has discovered that the

TEA committed an egregious fraud in suspending the former trustees. Under Texas

law it is a felony to enter false statements in a government record. It is a 2nd degree

felony to use said record to defraud another party of their rights.

The TEA in ordering the suspension of the former trustees accused them of

failing to revise specific board policies which they had actually revised without

being asked to do so. The TEA accused them of failing to terminate employees

when in fact they had begun the process of terminating those employees.

The evidence is quite strong the TEA committed a penal felony and through

governmental immunity does not have to answer nor be enjoined from such

conduct, but that's not the law nor does the law support such a conclusion.

7

By keeping Taylor out of office the true nature of the TEA's actions have

gone unanswered and if this court takes no action then the TEA escapes

adjudication and is allowed to repeat the exact same conduct again with impunity.

II. There exists no law to protect innocent parties from being punished for

the acts of others.

Under the Education Code the Commissioner is authorized to suspend a

school district's board of trustees under specific stipulations provided by the law.

The Commissioner can appoint a Board of Managers, again under specific

stipulations, who then assume all power and duties of the district's board of

trustees. This Board can remain in office at most two years within which time an

election must be called by the Commissioner to elect a board to resume

management of the district.

The problem is when the Commissioner takes such action on the eve of an

election. As in this case it was almost without question that the constituents would

elect new officials due to the highly publicized scandal within the district. The

public was quite displeased with the board and more than likely would not re-elect

any incumbents.

Which indeed is what the constituents chose to do and elected four new

personnel to those four trustee positions.

8

The commissioner made no effort to notify the newly elected trustees that

the suspension would be passed on to them nor gave them any opportunity to

challenge the then given suspension nor does the law allow them this right to due

process.

Further under the Education Code a majority of trustees can remove or

vacate a trustee position. Therefore had Williams waited or at least considered that

the four new trustees would likely remove the remaining three former trustees.

However this did not occur, Williams chose to pass on the punishment, for

under the law it is a sanction, to the newly elected trustees who obviously were not

responsible nor culpable for the failings of the prior board and there exists no law

to protect them as such.

If the public has entrusted the power of running the school district to

officials of their choosing then the TEA should not be allowed to silence the

people’s vote.

The TEA should be enjoined from suspending a board within days of an

election that would wrongly punish any newly elected personnel for in effect the

Commissioner's not punishing the actual perpetrators and thus the wrong people

receive the brunt and full weight of that punishment.

9

A. The Legislature has not provided an avenue to protect newly elected

officials from receiving a punishment meant for another party nor does

there exist any court precedent on-point.

The Election Code gives the public the opportunity to elect officials of their

choosing. The T.E.C. protects that right and provides through statute for an

injunction to prevent anyone from being harmed by the violation of the Election

Code.

Yet once the TEA Commissioner takes use of the Education Code to remove

a board, replace them with a TEA appointed group, and does not allow any newly

elected official into office then it would appear that the Election Code has been

violated with the official not receiving the office and the people not getting their

duly elected official.

Further the Texas Administrative Code does not allow any party to appeal a

TEA order. Under the TAC after a Record Review challenge the order made is

final and is not appealable. Therefore if, as here, it has been discovered that the

order is mostly fictitious there exists no available arena to challenge the TEA

order.

A private person cannot challenge the order. Only the board of trustees as a

whole can challenge the order and therein lies the problem. With a Board of

10

Managers in place and having no power or duties the board of trustees cannot

challenge the order. So the TEA can engage in fraud and never answer for it.

The defendants rely on Robinson v. Neeley, 192 S.W.3d 904, (Tex.App.-

Dallas 2006, no pet. h.) as court precedent. Yet the situation in Robinson is not

particularly exact as the matter presented here. In Robinson the trustees were

suspended after the election of the new trustees. In this cause the suspension

occurred shortly before the election of new trustees.

In Robinson the newly elected trustees had the opportunity to challenge the

TEA decision under a Record Review. The new trustees were in office and had

full rights to a challenge. In this cause the newly elected trustees did not have the

rights or powers of office and could not challenge their suspension.

To the contrary the only thing on-point about Robinson involves standing

which the Court of Appeals ruled on and in Robinson the court held a “person has

�standing if:   (4) the challenged action has caused him some injury in fact, either

economic, recreational, environmental, or otherwise;  or (5) he is an appropriate

party to assert the public's interest in the matter, as well as his own.” Id at 907.

So under Robinson Taylor had standing for he was injured, suffered harm

due to the violation of the Election Code, suffered an injustice due to the fraud

11

committed by the TEA passed on to him, and he being the duly elected

representative can assert the public's interest in the matter.

While the legislature has failed to protect or safeguard against such

situations this court can fashion a remedy that will ensure that all interests

especially that of the public is upheld and protected.

B. This cause is not moot for the TEA can suspend a board under

fraudulent pretenses, can violate stipulations in the Elections code, and

punish innocent parties for the wrongs of others.

Taylor challenged the suspension and violation of the Election Code as

unconstitutional. He claimed that under the law he had a right to office and with

such right, a due process right to be afforded a hearing to challenge the suspension.

“Where a policy is challenged as unconstitutional, voluntary cessation of such

policy, without an admission or judicial determination regarding its

constitutionality, is not sufficient to render the constitutional challenge moot.”

Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 12 (Tex.App.-Austin 2008, no pet.).

The Court of Appeals believes that because Taylor received the four requests

made in his initial pleading that the controversy has ended, but that is not the case.

It is possible for a “live” controversy to remain where some but not all issues in a

case have become moot. See Connell v. Shoemaker, 555 F. 2d 483 (TX 1978).

12

citing Powell v. McCormack, 395 U.S. 486, 497, 89 S. Ct. 1944, 23 L. Ed. 2D 491

(1969).

In Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 72, 104 S.Ct. 373, 78

L.Ed.2d 58 (1983) the United States Supreme Court held that a party while

voluntarily ceasing it's wrongful conduct would “simply be free to ‘return to [their]

old ways' after the threat of a lawsuit had passed....” So to establish mootness the

party must establish that “there is no reasonable likelihood that the wrong will be

repeated.”

There has been no point, statement, or otherwise to suggest or maintain that

the TEA will not repeat the same conduct. The TEA has not stated that it will

ensure that parties will receive their certificate of election “promptly” as dictated

by the law nor has the TEA sworn to a procedure to safeguard innocent newly

elected trustees from receiving the punishment meant for others nor has the TEA

even stated that the order made was fraudulent and that it would ensure that in

future proceedings the orders will be checked for its legality.

There exists an exception to the mootness doctrine that the court of appeals

seems to have overlooked. See Texas Dept. of Public Safety v. LaFleur, 32 S.W. 2d

911 (Tex. App.-Texarkana 2000); Bejarano v. Hunter, 899 S.W. 2d 346 (Tex.

App.-El Paso 1995).

13

Under the “capable of repetition, yet evading review” doctrine the court of

appeals failed to acknowledge that the conduct could in fact be repeated. While in

its final order the court stated that the motion for rehearing had been “duly

considered” there was no recognition that the TEA could repeat the same conduct.

Further noting that litigation is a time consuming endeavor each and every time the

TEA can repeat the same conduct within the time allotted by statute for its

sanctions and escape adjudication for at the end of the time period the matter

would then be moot.

This conduct does not have to be repeated against Taylor for under the

“public interest exception” the court is allowed to review a question of such public

importance where the conduct can be repeated against other members of the public

but for some reason evades appellate review. See University Interscholastic

League v. Buchanan, 848 S.W. 2d 298 (Tex. App.-Austin 1993).

The TEA can once again suspend any other board under practically false

pretenses and then rob any incoming trustees of their duly elected terms of office

without the opportunity of a hearing.

It is quite clear that the TEA will continue to act unlawfully and not be

restrained from doing so without judicial intervention. This court by reversing the

court of appeals decision will practically guarantee that the TEA will take its time

14

to make sure it follows every procedure by the law and make sure to protect the

rights of all individuals involved.

Prayer

The Court should grant this petition for review and reverse the decision of

the court of appeals.

Respectfully submitted,

Charles N. Taylor, Jr., Pro se4501 Croton CircleEl Paso, Texas 79924-6826(915) 757-2335

15

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), I hereby

certify that this petition contains 2,775 words, excluding the portions of the

petition exempted by Rule 9.4(i)(1).

___________________________ Charles N. Taylor, Jr.

16

CERTIFICATE OF SERVICE

I certify that a copy of the above PETITION FOR REVIEW was served on the 4th

day of January 2016, upon the following individuals via CM/RRR and e-mail.

S. Anthony Safi Melissa R. HolmanMounce, Green, Myers, Safi, Assistant Attorney GeneralPaxson & Galatzan,P.C. General Litigation DivisionP.O. Box 1977 P.O. Box 12548,Capitol StationEl Paso, Texas 79901 Austin, Texas 78711-2548Fax: 915-541-1548 (512) 463- 2120 Fax 320- 0667safi@mgmsg.com melissa.holman@texasattorneygeneral.gov

Charles N Taylor, Jr., Pro se4501 Croton CircleEl Paso, Texas 79924-6826(915) 757-2335chucktaylor3964@sbcglobal.net

17

APPENDIX

18

APPEENDIX

Trial Court Judgment..............................................................................Tab A

Court of Appeals Opinion.......................................................................Tab B

Texas Education Code.............................................................................Tab C

Texas Election Code................................................................................Tab D

Texas Administrative Code.....................................................................Tab E

Texas Constitution...................................................................................Tab F

TAB A

TAB B

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHARLES N. TAYLOR, JR.,

Appellant,

v.

DEE MARGO, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITIES, AND

MICHAEL WILLIAMS, IN HIS

INDIVIDUAL AND OFFICIAL

CAPACITIES,

Appellees.

§

§

§

§

§

§

§

No. 08-14-00066-CV

Appeal from

County Court at Law No. 3

of El Paso County, Texas

(TC # 2013-DCV-2873)

O P I N I O N

Charles Taylor, appearing pro se, appeals from an order dismissing his lawsuit against � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �President of the Board of Managers, who was appointed by Williams to manage the El Paso

Independent School District. For the reasons that follow, we affirm.

FACTUAL SUMMARY

This litigation stems from a corruption and cheating scandal involving former El Paso

Independent School District (EPISD) Superintendent Dr. Lorenzo Garcia and six unindicted co-

conspirators, wrongdoing committed by EPISD employees, and mismanagement by the EPISD

�

Board of Trustees.1 On June 13, 2012, Garcia pled guilty in federal court to conspiracy to

commit mail and wire fraud. The guilty plea related to charges that he defrauded the Texas

Education Agency (TEA) and the United States Department of Education by providing

fraudulent data regarding the grade classification and demographic makeup of students, which � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � to secure federal funding

under the No Child Left Behind program.2 Garcia created false demographics by discouraging

students from enrolling, improperly causing students to withdraw from school, denying foreign

students properly earned credits, and improperly reclassifying tenth grade students to the ninth or

eleventh grade by changing passing grades to failing and failing grades to passing and by

deleting earned student credits.3 It was later determined that the Board of Trustees did not take

immediate, decisi� � � � � � � � � � � � � � ! � � � � � � � � � � � � � � � � � � � � � � �Board immediately

and decisively modify the District policies that enabled the superintendent to engage in fraud.

On August 13, 2012, in response to the corruption at EPISD, the TEA lowered the � � � � � � � � " # $ $-

" # $ " � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �-

� � � � � � � % � & December 6, 2012, Commissioner Williams sent a letter to the school board president and

interim superintendent announcing his plan to appoint a Board of Managers to exercise the � ' � � � � � � � � � � � � � � � � � � � � � � Board of Trustees under the authority of TEX.EDUC.CODE

ANN. §39.102(a)(9) and pursuant to the requirements of TEX.ADMIN.CODE ANN. §§97.1073(e)

and 97.1059(b). The letter stated that TEA had requested preclearance from the United States (The plot was uncovered and vigorously pursued by former State Senator Eliot Shapleigh.

)No Child Left Behind (NCLB) was an extension of the Elementary and Secondary Education Act (ESEA)

legislation passed by the United States Congress in 1965. NCLB, enacted in 2002 as an extension of ESEA, provided for funding for K-12 education. *

According to an October 5, 2012 article in the El Paso Times, Dr. García also was ordered to pay $180,000 in

restitution to the school district and to pay a $56,500 fine to the government, which federal authorities determined was the total amount he had received in bonuses for good student performance on state exams.

+

Department of Justice, and that upon receipt of preclearance, the powers of the current Board of

Trustees would be suspended, and the Board of Managers would exercise all of the powers and

duties assigned to the � � � � � � � �

Board of Trustees by law, rule, or regulation, pursuant to

TEX.EDUC.CODE ANN. §§39.112(a), (b). In the interim period before the installation of the

Board of Managers, a conservator was appointed to oversee operations of the district. , � � � � ' � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �6th letter announcing the

appointment of a Board of Managers, EPISD requested a record review of the proposed action.

A record review is a meeting under TEX.ADMIN.CODE ANN. §1037(e) wherein TEA

representatives meet with the superintendent and/or representatives of the District to receive oral

and written information relative to a proposed order by TEA. After the record review in this case,

the designee of the Commissioner of Education found that Commissioner Williams had legal

authority on several grounds to appoint a Board of Managers. The designee also noted that the

Board of Trustees failed to � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

intentional, unethical, and illegal acts � � � � � � � � � � � � � � � � � � � % �

The designee emphasized � � � � � � � � � � � � � � � � � - � � . / � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �superintendent and his co-conspirators were extremely serious and were the worst that the

agency's governance senior � � � � � � � � � � � � � � � � � � � � � � � � � � % �

The designee thus held that � - . / � � � � � � � � review challenging of the appointment of the Board of Managers should be

denied.

The designee further ordered that the Board of Managers assume the title, duties, and

authority of a Board of M� � � � � ' � � � � � � � � � � � � � � � � � � � � � � � � � � - . / � % - � � � � � � �

TEX.EDUC.CODE ANN. §39.112(e), the designee ordered that not later than the second

anniversary of the date the Board of Managers is appointed, at the direction of the

0

Commissioner, the Board of Managers shall order an election of members of the District Board

of Trustees, and that thereafter the Board of Trustees would resume all powers and duties

assigned to them by law.

On April 26, 2013, the Department of Justice provided preclearance for the appointment

of a Board of Managers. On May 7, 2013, the members of the Board of Managers were sworn

into office. On May 11, 2013, an election was held for four EPISD trustee seats. This election

was ordered by the Board of Trustees prior to the Board of Managers being sworn into office.

Following a run-off election on June 15, 2013, Charles Taylor was elected to the Board of

Trustees for District #5. He filed this lawsuit on July 22, 2013 against Commissioner Williams

and the President of the Board of M� � � � � � � � � � � � � � � � � � � � %

In his original petition, Taylor sought injunctive relief alleging:

6.1 The underlying suit arises out of actions by Defendants for failure to complete Post Election Procedures as outlined in the Texas Election Code, violations of statutory law under the Texas Education Code and the Texas Constitution, and violation of Due Process and Deprivation of Liberty as guaranteed by the Fourteenth Amendment of the United States Constitution. 6.2 On May 7, 2013, Mr. Williams officially installed a Board of Managers headed by Mr. Margo suspending the elected board of trustees in an effort to stabilize the operations of EPISD. 6.3 Pursuant to Sec. 39.112(e) the Board of Managers must order an election of the Board of Trustees within two (2) years of their appointment. 6.4 An election was held May 11, 2013 where new members for the Board of Trustees were elected satisfying the mandatory statutory requirements of Sec. 39.112(e) well within the two (2) year requirement. 6.5 Plaintiff was successfully elected to the EPISD Board of Trustees, District #5 following a runoff election June 15, 2013. 6.6 On June 25, 2013 EPISD pursuant to Sec. 67.001 through 67.017 Tex. Elec. Code did canvass the vote declaring the results of the runoff election.

6.7 Following the canvass Defendants have failed to complete the certificate of election as mandated by Sec. 67.016 Tex. Elec. Code.

1

6.8 Defendants continue to deprive Plaintiff the execution of the Officer's Statement as mandated by Art XVI (1)(b) of the Texas Constitution. 6.9 As a result of depriving Plaintiff of completing the Officer's Statement and without the certificate of election Plaintiff is ultimately deprived of taking the oath of office thus barring Plaintiff from the duties of the office pursuant to Sec.11.061(a) Tex. Educ. Code.

* * * * * * 10.1 WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants Mr. Margo and Mr. Williams, individually and officially, be cited according to law to appear and answer herein; that before notice and hearing an Ex Parte

TEMPORARY RESTRAINING ORDER be issued; that after due notice and hearing a TEMPORARY INJUNCTION be issued; that this matter be set for trial; and upon final hearing a PERMANENT INJUCTION be issued restraining and enjoining Defendants, their successors, assigns, officers, agents, servants, employees, and representatives from making representations, doing the acts, and engaging in the unlawful practices set out in the preceding paragraphs within El Paso County, Texas as follows:

A. Depriving Plaintiff of his duly elected office as district# 5 Board of Trustee in EPISD.

1. Deprivation of certificate of election. 2. Deprivation of officer's statement. 3. Deprivation of Oath of office. 4. Deprivation of right to office.

Margo sent Taylor the Certificate of Election on December 3, 2013, which Taylor

complains was 160 days late. Taylor was instructed where to obtain the requisite Statement of

Officer and the Oath of Office. Taylor signed the former on December 5, 2013 and the latter on

December 6, 2013. Although it is not entirely clear from the pleadings, his reference to the � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �onstrued by Appellees as failing to allow him to

officially take office because the Board of Managers was still in control. In a nutshell, Taylor

claims that the 2013 election ended the B� � � � � � � � � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � �

office as a Board Trustee after the appropriate canvassing of the election. Appellees respond that

the Board of Managers remained in control of the District until the May 2015 election. The

presiding judge of County Court at Law No. Three, the Honorable Javier Alvarez, denied the

2

request for temporary restraining order on July 30, 2013. Taylor filed an amended petition and

the temporary restraining was denied again by Judge Alvarez on August 21, 2013.

Both Williams and Margo filed pleas to the jurisdiction. On December 18, 2013, the trial

court, with Judge Susan Larsen presiding, entered an order granting Margo�

� � � � � � � � � � � � �

to the jurisdiction and dismissed the case with prejudice. The portion of the order dismissing the

case with prejudice was in error, because Margo still maintained a counterclaim against Taylor � � � � � � � � � � � � � � . Margo filed a motion to modify the judgment and on January 17, 2014, Judge

Larsen entered a modified order granting � � � � � � � � � � � � � � � �

leas to the jurisdiction.

Taylor filed a request and a reminder request for findings of fact and conclusions of law. He does � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � % 4 Moreover, findings of fact are not

authorized when a case is dismissed for want of subject matter jurisdiction without an

evidentiary hearing. Zimmerman v. Robinson, 862 S.W.2d 162 (Tex.App.-Amarillo 1993, no

writ). No evidentiary hearing was held below, but the record contains the Commissioner's

December 6, 2012, letter Appointing a Board of Managers to El Paso Independent School

District (35 pages); the Decision of the Designee of the Commissioner of Education on Record

Review of the Appointment of a Board of Managers and an Information Review of the

Appointment of a Conservator, TEA Docket No. 028-RS-12-2012 (27 pages); and the United

States Department of Justice letter regarding Temporary Transfer of Powers (1 page), all

tendered by Isabel Lozoria Camarillo, a custodian of official records of the Texas Education

Agency.

3 4 5 6 7 8 9 : ; < = > 8 7 ? @ A : 9 ; > 8 6 7 = B : C 6 A 9 D E 9 D F @ > G = D 8 6 H > 6 @ 7 B > @ 7 I 6 : 7 7 : < C 6 E I J G = 9 D 7 = A 6 8 8 = 8 = D : G G 6 : ; = 8 7 5 6complaint is waived. In Interest of Hidalgo, 938 S.W.2d 492 (Tex.App.--Texarkana 1996, no writ); Perry v. Brooks, 808 S.W.2d 227, 229-30 (Tex.App.--Houston [14th Dist.] 1991, no writ); Belcher v. Belcher, 808 S.W.2d 202, 206 (Tex.App.--El Paso 1991, no writ).

K

ASSERTED GROUNDS FOR PLEAS TO THE JURISDICTION

� � � � � � � � � � � � � � � � L � � � � � � � � � ' � � � � � � � � � � � M $ N � � � O � � � � � � � P M " N � L � � � � � �

relief could not be obtained against Williams in his individual capacity; and (3) claims against

Williams in his official capacity are barred by sovereign immunity% � � � � � � � � � � � � � � � � M $ N

lack of standing; (2) failure to exhaust administrative remedies; (3) official immunity; (4)

mootness; (5) quo warranto is the exclusive remedy; and (6) Taylor has no liberty or property

interest in his board member position.

ISSUES PRESENTED � � ' � � � � � � � � Q � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � � � � � � � � � Original Brief and

Reply Brief which considerably simplified his claims.

Election Code: Did the trial court hold that, contrary to the election code, Section $ % # # " M � N M � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � N � � � � � � � �

supersedes a conflicting statute outside this code unless the code the outside statute

� � � � � � � � � � � � � � � � � ' � � R � M � � � � � � � � � � � � N

Election Code: Did the trial court hold that, contrary to the Tex. Elec.Code, SUB � S � - � % / � � % " T U % # V $ M � � � � N � � � � � ' � � � � � � � � � � � � � W � �

a violation of this code is (not) entitled to appropriate injunctive relief to prevent the violation (by government defendants)

� � � � � � � � � � � W R � M � � � � � � � added). See Cahill

v Bertuzzi, No. 13-09-00183-CV, 2010 Tex. App. LEXIS 3951, at *17 - *18 (Tex.

App.-Corpus Christi May 27, 2010, pet. filed)(mem. op) (stating that Section

273.081 of the election code gives the trial jurisdiction to enjoin violations of the X Y X Z [ \ ] ^ Z ] _ X ` a

Election Code/Injunction: Did the trial court assess the asserted right of the Appellant to seek injunctive relief and an adequate remedy at law for equitable relief ? Causal Relationship: Did the trial

� � � � � � � � � � � � � � � � � � � � � � � � � � � b � � � O � � � � � � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � � � � � � � R / � � � � � � � � � � � � � � � �

Sec. 219(1) of the Restatement which sets out the central principle of agency law: � � master is subject to liability for the torts of his servants committed while

acting in � � � � � � � � � � � � � � � � � � � � � % �

See Burlington Industries Inc. v.

Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

c

. � � � � � � d � � � � � � � � � � � � � � � � � � � � � � Q � � e � f � � � � � � � � � � � � � � � � � � � � � � � , � � � � � � � � � � � � � � � � � � � � � � � � ' � � ' � � � � � � � � � � � � � � � � � � � � % �

Tompkins

v. City of El Paso, 449 F. 2d 842 (5th Cir. 1971)? Immunity: Did the trial court consider the defendants have violated state statutory and constitutional laws and U.S. constitutional guarantees; therefore, they have waived their rights to immunities claimed? See Heinrich, 284 S.W. 3d at 372 � / � � � � � � � g � � � � � � � � � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � � � � � � � � � � � �provisions

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � % �

Plea to

� � � h � � � � � � � � � d � � � � � � � � � � � � � � � � � � � � � � W � � � � � � � � � � � � � � � � �

deserves a reasonable opportunity to amend defective pleadings unless the � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � L � � � � � � � � � R �

Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). - � � � � � � � � h � � � � � � � � � d � � � � � � � � � � � � � � � � W � � � � � � � � � � � � � � � � � � � � � � � � � �

� � � � � � � � � � � � � � � � � � � � � � O � � � � � � � � � � � � � � � � R � i X j k l m X n o [ ] p q k r s l t

Wildlife v. Miranda, 133 S.W. 3d 217, 226 (Tex. 2004). Did the court find evidence that created a fact issue on the jurisdiction question and

� � � � O � � � b � � � � � � � � � � � � � � � � � � � � � � � � � � RMiranda, 133 S.W 3d 227-28

(Tex. 2004). Plea to the Jurisdiction: Did the trial court require Appellees to meet summary judgment standard of proof for its assertion that the trial court lacks jurisdiction? Miranda, 133 S.W. 3d at 228; see Tex. R. Civ.P. 166a (c).

Standing: Did the trial court evaluate each of the 3-elements that constitute b / � � � � � � R $ N

Injury u Appellant still suffering under restrictive measures; 2) Causation u Injury was directly caused by defendants; and, 3) Redressability u A favorable court decision is likely to redress the situation. Administrative Remedies: Did the trial court c

� � � � � � � � � W �Texas courts do not

demand the exhaustion of administrative remedies but instead extend jurisdiction � � � � � � � � � � � � � � � � � � � � � � L � � � � � � � � � � � � � � � � � � � � � � � R � M v NMcQueen v.

Bullock, w # T , % " � $ x y y M x � � � � � $ w w # N % � � � � W & � � �t compelled to

exhaust � � � � � � � � � � � � � � � � � � � � � � � � � � � � g � � � � � � W � � � � � � � � � W �

Southwestern Bell Telephone Co. v. Public Utility Comm. of Texas, 618 S.W. 2d 130, 134 (Tex.Civ.App. 1981). Counterclaim: Did the trial court fully evaluate the validity of Appellees motion to modify an order and its subsequent grant for Appellees to file a counterclaim? Did the trial recognize the granting would be void due to its contradiction of law? The trial court granted plea to the jurisdiction and at the same time recognized � � � � � � � � � � � � � � � � � W � � � � � � � � � � � � � � � ' � � � � � � � � � � � � � � � � � � � �

z

� � � � � � � � � ' � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � % � / � �Reata Constr. Co.

v.City of Dallas, 197 S.W. 3d 371, 376 u 77 (Tex. 2006). Counterclaim: Did the trial court recognize the failure of Appellees timely filing of the counterclaim? Due October 9, 2013; filed December 11, 2013 u some 70-days late; therefore, untimely. Tex. Rules of Civ. Proc., Rule 99. Mootness: Did the trial court consider that moot refers to an issue that remains unsettled, open to argument or debatable? Did the trial court decide that the case was resolved by a court of law? Did the trial court use the Mootness Doctrine when evaluating the mootness claim? u see U.S. Const., Art. III.

In his { � � � | � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � d

1. Does any Section of the Education Code supersede the Election Code?

2. Did the trial court analyze and apply the law correctly concerning Sec.

273.081 of the Election Code entitling injunctive relief to a person being harmed by violations of the Election Code?

3. Did the trial court analyze and apply the law correctly concerning standing?

4. Is immunity afforded in causes seeking equitable relief?

5. Did the trial court find the summary judgment standard when granting the plea to the jurisdiction?

6. Did the trial court analyze and apply the law correctly concerning the exhaustion of administrative remedies?

7. Did the trial court analyze and apply the law correctly concerning the issue of mootness?

8. Did Appellee Margo seek affirmative relief and thereby waive sovereign immunity?

} ~ Was the trial court's judgment based on fraud?

We are mindful that Taylor is a pro se litigant and we have construed his brief liberally as

required by Rule 38.9. Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 572 (Tex.App.-El

Paso 2014, no pet.); TEX.R.APP.P. 38.9. When a party appears pro se, he is held to the same

standards as a licensed attorney and must comply with all applicable laws and rules of procedure.

� �

Robb v. Horizon Communities Improvement Ass'n, Inc., 417 S.W.3d 585, 590 (Tex.App.-El Paso

2013, no pet.), citing Serrano v. Francis Properties I, Ltd., 411 S.W.3d 661 (Tex.App.-El Paso

2013, no pet. h.); Viasana v. Ward County, 296 S.W.3d 652, 654 (Tex.App.-El Paso 2009, no

pet.); Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.-El Paso 2007, no pet.); Sweed v. City of

El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.). If pro se litigants were not

required to comply with applicable rules of procedure, they would be given an unfair advantage

over parties represented by counsel. Viasana, 296 S.W.3d at 654.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea by which a party challenges the court's

authority to determine the subject matter of the action. Harris County v. Sykes, 136 S.W.3d 635,

638 (Tex.2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The

burden is on the plaintiff to allege facts affirmatively demonstrating that the trial court has

subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587

(Tex.2001); City of El Paso v. Mazie's, L.P., 408 S.W.3d 13, 18 (Tex.App.-El Paso 2012, pet.

denied). Whether a party has alleged facts that affirmatively demonstrate a trial court's subject

matter jurisdiction is a question of law which is subject to de novo review. Miranda, 133 S.W.3d

at 226; Mazie's, 408 S.W.3d at 18. Likewise, whether undisputed evidence of jurisdictional facts

establishes a trial court's jurisdiction is also a question of law subject to de novo review.

Miranda, 133 S.W.3d at 226.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, the

appellate court considers relevant evidence on that issue even where those facts may implicate

the merits of the cause of action. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.2009);

Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence

� �

� � � � � � � � � � � � � � � � � � � � � � � � � � � � L � � � � � � � � � �Texas Rule of Civil Procedure 166a(c)

% �Miranda, 133 S.W.3d at 228. Under this standard, when reviewing a plea in which the pleading

requirement has been met, we credit as true all evidence favoring the non-movant and draw all

reasonable inferences and resolve any doubts in the non-movant's favor. Id. The movant must

assert the absence of subject-matter jurisdiction and present conclusive proof that the trial court

lacks subject-matter jurisdiction. Id. If the movant discharges this burden, the non-movant must

present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will

be sustained. Id. If the evidence creates a fact question regarding the jurisdictional issue, then the

trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by the

fact finder. Id. at 227u 28. The trial court rules on the plea to the jurisdiction as a matter of law if

the relevant jurisdictional evidence is undisputed or it fails to raise a fact question on the

jurisdictional issue. Id. at 228. Such is the case here.

THE 2013 ELECTION

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � " # $ U � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

Board of Managers because four of the existing trustees were voted out of office. For purposes of � � � � � � � � � � � � � � � � � � � � � ' � ' � � � � � � � � � � � � � � � � � � � their respective positions. � � � � � � � � � � � � � � � � � � � � � � � � �

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � " # $ U � � � � � � � � � � � � � � � � � � � � � � � � � �present, EPISD has been operating under the control of a Board of Managers. Thus, all of the

powers normally vested in the Board of Trustees have been transferred to the Board of

Managers. Pursuant to Texas Education Code, the designee ordered that not later than the second

anniversary of the date the Board of Managers was appointed at the direction of the

Commissioner, the Board of Managers shall order an election of members of the District Board

� �

of Trustees, and that thereafter the Board of Trustees would resume all powers and duties

assigned to them by law. On May 7, 2013, the members of the Board of Managers for EPISD

were sworn into office. A mere four days later, on May 11, 2013, an election was held for four

EPISD trustee seats. Id. This election was ordered by the Board of Trustees and it was not the

election contemplated by TEX.EDUC.CODE ANN. §39.112(e) or the TEA decision. Until � � � � � � � � � � � � � � � � � � O � � � � � � � � � � � � � � � � � | � � � � � � � � � � � � � � � � � � � � � � | � � � � � tenure will conclude after the May 2015 trustee election. � � � � � � � � � � � � � � � �

Taylor responds that Williams cannot use §§39.112(a) and (b) to negate the requirements

of §39.112(e) u the election was called and Taylor was elected on a uniform election date on

which an election of district trustees may be held. The Board of Managers, having assumed all

duties and responsibilities, must then complete the election procedures. By allowing the election

to be held, Williams and Margo allowed the voters to elect the representative of their choice and

then deprived the voters of their elected representation. Appellees had the authority to cancel the

election, but chose not to and thus were mandated to fully comply with the election code.

Accordingly, if Williams sought federal preclearance to suspend the previous board regarding

the Voting Rights Act, then by allowing the election to occur and giving the voters their choice,

Williams must have (or should have) sought federal preclearance to suspend the newly elected

trustees.

PROPRIETY OF THE PLEAS

To prevail on appeal, Taylor must successfully attack all of the grounds which could

support the order granting the pleas to the jurisdiction. These include standing, immunity,

mootness, requirement of a quo warranto proceeding, and failure to exhaust administrative

� +

remedies. Because Issues Three and Seven are determinative, we overrule Issues One, Two,

Four, Five, Six, Eight, and Nine.

Mootness

An appellate court is prohibited from deciding a moot controversy. See National

Collegiate Athletic Association v. Jones, 1 S.W.3d 83, 86 (Tex.1999). This prohibition is rooted

in the separation of powers doctrine in the Texas and United States Constitutions that prohibits

courts from rendering advisory opinions. See National Collegiate, 1 S.W.3d at 86. The mootness

doctrine dictates that courts avoid rendering advisory opinions by only deciding issues that � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � %City of Farmers Branch v. Ramos, 235

S.W.3d 462, 469 (Tex.App.-Dallas 2007, no pet.), citing Camarena v. Tex. Employment

Commission, 754 S.W.2d 149, 151 (Tex.1988). An issue becomes moot when (1) it appears that

one seeks to obtain a judgment on some controversy, which in reality does not exist or (2) 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. City of Farmers Branch, 235 S.W.3d at 469.

Thus, an issue may be moot if it becomes impossible for the court to grant effectual relief for any

reason. In re H & R Block Financial Advisors, Inc., 262 S.W.3d 896 (Tex.App.-Houston [14th

Dist.] 2008, orig. proceeding); see Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001).

We have recently held that courts may take judicial notes of events which have occurred

during an appeal. See In re Estate of Sherman Hemsley, 460 S.W.3d 629 (Tex.App.-El Paso

2014, pet. denied) where we said:

At oral argument, counsel for the Thorntons proclaimed that the issue is not moot because the appellate record does not reflect that Hemsley has been buried. The Thorntons are correct that the record is silent regarding the burial, but an appellate court has the discretion to take judicial notice of adjudicative facts that are matters of public record on its own motion and for the first time on appeal. See TEX.R.EVID. 201(b), (c), (f); see Office of Public Utility Counsel v. Public Utility

� 0

Commission of Texas, 878 S.W.2d 598, 600 (Tex.1994). Generally, appellate courts take judicial notice of facts outside the record only to determine jurisdiction or to resolve matters ancillary to decisions which are mandated by law. In re R.A., 417 S.W.3d 569, 576 (Tex.App.-El Paso 2013, no pet.); SEI

Business Systems, Inc. v. Bank One Texas, N.A., 803 S.W.2d 838, 841 (Tex.App.-Dallas 1991, no writ); see Freedom Communications, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex.2012) (court determined it was appropriate to take judicial notice of facts in a plea agreement because they were relevant to determination whether trial court had jurisdiction). Appellate courts are reluctant to take judicial notice of matters which go to the merits of a dispute. In re R.A., 417 S.W.3d at 576; SEI Business Systems, 803 S.W.2d at 841. We take judicial of the obituary published in the El Paso Times from November 18, 2012 through November 25, 2012 which stated that the funeral service for Hemsley would be on Wednesday, November 21, 2012, at Cielo Vista Church in El Paso and interment would take place at Fort Bliss National Cemetery following the funeral service. See Hudson v. Markum, 931 S.W.2d 336, 337 n. 1 (Tex.App.-Dallas 1996, no writ) (appellate court took judicial notice of funeral and death announcement in Dallas Morning News). Further, we take judicial notice that it was widely reported on local, state, and national news that Hemsley was buried in El Paso on November 21, 2012 at Fort Bliss National Cemetery.

Id. at 638-39.

By his petition, Taylor sought injunctive relief against Commissioner Williams and

Board of Managers President Margo. Specifically he alleged he had been deprived of (1) the

Certificate of Election; (2) the Statement of Officer; (3) the Oath of Office; and (4) the right to

office. By December 6, 2013, he had obtained the relief he sought with the sole exception of the

right to office. Thus, the only justiciable issue at the time of the plea hearing was whether he

should have been seated following the run-off election in June 2013.

The Board of Managers returned the El Paso Independent School District to elected rule

on May 18, 2015 following a duly called election. Four men, including Taylor, and three women

were sworn in as District Trustees by County Judge Veronica Escobar. According to the El Paso

Times, the event was attended by more than 100 people, including Commissioner Williams.

Taylor has repeatedly stated his position that he did not seek money damages; he sought only

injunctive equitable relief. He has now received all relief he requested and his lawsuit is moot.

� 1

Because Margo predicated his plea to the jurisdiction on mootness, that ground is sufficient to

affirm the granting of his plea.

Standing

Standing is a component of subject matter jurisdiction, cannot be waived, and can be

raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

445u 46 (Tex.1993); Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 248 (Tex.App.-Dallas

2005, no pet.). When considering jurisdictional issues, we construe the petition in favor of the

party, and if necessary, we determine whether any evidence supports standing by reviewing the

entire record. Willis v. Marshall, 401 S.W.3d 689, 695 (Tex.App.-El Paso 2013, no pet.), citing

Tex. Ass'n of Bus., 852 S.W.2d at 446.

A plaintiff must have standing to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171

S.W.3d 845, 848 (Tex.2005). A court has no jurisdiction over a claim made by a plaintiff who

lacks standing to assert it. See Heckman v. Williamson County, 369 S.W.3d 137, 150u 51

(Tex.2012); see also Thomas v. Long, 207 S.W.3d 334, 338 (Tex.2006) (a trial court properly

dismisses claims over which it has no subject matter jurisdiction); Lovato, 171 S.W.3d at 849;

Tex. Ass'n of Bus., 852 S.W.2d at 443. Therefore, if a plaintiff is without standing to assert one of

his claims, the court lacks jurisdiction over that claim and is required to dismiss it. See Heckman,

369 S.W.3d at 150u 51 (also noting that plaintiff's whole action must be dismissed for want of

jurisdiction if plaintiff lacks standing to bring any of his claims); DaimlerChrysler Corp. v.

Inman, 252 S.W.3d 299, 304 (Tex.2008); Noell v. Air Park Homeowners Ass'n, Inc., 246 S.W.3d

827, 832 (Tex.App.-Dallas 2008, pet. denied).

Standing focuses on whether a party has a sufficient relationship with the lawsuit so as to

have a justiciable interest in its outcome. Lovato, 171 S.W.3d at 848. The general test requires

� 2

that there be a real controversy between the parties that will actually be determined by the

judicial declaration sought. Tex. Ass'n of Bus., 852 S.W.2d at 446; Lovato, 171 S.W.3d at 849.

Th� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � e � f L � � � � � � � � � � � � � � � � � � % �

Lovato, 171 S.W.3d at 849.

A person who is personally aggrieved by the alleged wrong has standing to sue. Nootsie

Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). A person has

standing if he (1) has sustained, or is immediately in danger of sustaining, some direct injury as a

result of the wrongful act of which he complains; (2) has a direct relationship between the

alleged injury and claim sought to be adjudicated; (3) has a personal stake in the controversy; (4)

has suffered some injury in fact, either economic, recreational, environmental, or otherwise; or

(5) is an appropriate party to assert the public's interest in the matter, as well as his own. Nauslar,

170 S.W.3d at 249.

To maintain its claims, a party must maintain standing throughout the proceedings,

even during the pendency of the appeal. See, e.g., Williams v. Lara, 52 S.W.3d 171, 184

(Tex.2001) M � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �� � � � � � N P

Trulock v. City of Duncanville, 277 S.W.3d 920, 924 (Tex.App.-Dallas 2009, no pet.). & � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � L � � � � � � � � � ' � � � � � � % � � � � � � � � � � � � �determined that the lawsuit became moot. Consequently, Taylor now lacks standing. Because

Williams predicated his plea to the jurisdiction on standing, that ground is sufficient to affirm the

granting of the plea.

Inasmuch as at least one ground � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �L � � � � � � � � � ' � � � � � � � � � � L � � � � � � � � � � ' % � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

court and we offer no advisory opinion on its merits.

� K

September 16, 2015

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Chew, C.J. (Senior)

Chew, C.J. (Senior), sitting by assignment

TAB C

EDUCATION CODE

TITLE 2. PUBLIC EDUCATIONSUBTITLE H. PUBLIC SCHOOL SYSTEM ACCOUNTABILITYCHAPTER 39. PUBLIC SCHOOL SYSTEM ACCOUNTABILITY

SUBCHAPTER E. ACCREDITATION INTERVENTIONS AND SANCTIONS

Sec. 39.102. INTERVENTIONS AND SANCTIONS FOR DISTRICTS. (a) If a school district does not satisfy the accreditation criteria under Section 39.052, the academic performance standards under Section 39.053 or 39.054, or any financial accountability standard as determined by commissioner rule, or if considered appropriate by the commissioner on the basis of a special accreditation investigation under Section 39.057, the commissioner shall take any of the following actions to the extent the commissioner determines necessary:

(1) issue public notice of the deficiency to the board of trustees;(2) order a hearing conducted by the board of trustees of the district for the purpose of

notifying the public of the insufficient performance, the improvements in performance expected by the agency, and the interventions and sanctions that may be imposed under this section if the performance does not improve;

(3) order the preparation of a student achievement improvement plan that addresses each academic achievement indicator under Section 39.053(c) for which the district's performance is insufficient, the submission of the plan to the commissioner for approval, and implementation of the plan;

(4) order a hearing to be held before the commissioner or the commissioner's designee at whichthe president of the board of trustees of the district and the superintendent shall appear and explain the district's low performance, lack of improvement, and plans for improvement;

(5) arrange a monitoring review of the district;(6) appoint an agency monitor to participate in and report to the agency on the activities of the

board of trustees or the superintendent;(7) appoint a conservator to oversee the operations of the district;(8) appoint a management team to direct the operations of the district in areas of insufficient

performance or require the district to obtain certain services under a contract with another person;(9) if a district has a current accreditation status of accredited-warned or accredited-probation,

fails to satisfy any standard under Section 39.054(e), or fails to satisfy financial accountability standards as determined by commissioner rule, appoint a board of managers to exercise the powers and duties of the board of trustees;

(10) if for two consecutive school years, including the current school year, a district has received an accreditation status of accredited-warned or accredited-probation, has failed to satisfy any standard under Section 39.054(e), or has failed to satisfy financial accountability standards as determined by commissioner rule, revoke the district's accreditation and:

(A) order closure of the district and annex the district to one or more adjoining districts under Section 13.054; or

(B) in the case of a home-rule school district or open-enrollment charter school, order closure of all programs operated under the district's or school's charter; or

(11) if a district has failed to satisfy any standard under Section 39.054(e) due to the district's dropout rates, impose sanctions designed to improve high school completion rates, including:

(A) ordering the development of a dropout prevention plan for approval by the commissioner;

(B) restructuring the district or appropriate school campuses to improve identification of

and service to students who are at risk of dropping out of school, as defined by Section 29.081;(C) ordering lower student-to-counselor ratios on school campuses with high dropout

rates; and(D) ordering the use of any other intervention strategy effective in reducing dropout

rates, including mentor programs and flexible class scheduling.(b) This subsection applies regardless of whether a district has satisfied the accreditation criteria. If fortwo consecutive school years, including the current school year, a district has had a conservator or management team assigned, the commissioner may appoint a board of managers, a majority of whom must be residents of the district, to exercise the powers and duties of the board of trustees.

Sec. 39.112. BOARD OF MANAGERS. (a) A board of managers may exercise all of the powers and duties assigned to a board of trustees of a school district by law, rule, or regulation. This subchapter applies to a district governed by a board of managers in the same manner that this subchapter applies to any other district.(b) If the commissioner appoints a board of managers to govern a district, the powers of the board of trustees of the district are suspended for the period of the appointment and the commissioner shall appoint a district superintendent. Notwithstanding any other provision of this code, the board of managers may amend the budget of the district.(c) If the commissioner appoints a board of managers to govern a campus, the powers of the board of trustees of the district in relation to the campus are suspended for the period of the appointment and thecommissioner shall appoint a campus principal. Notwithstanding any other provision of this code, the board of managers may submit to the commissioner for approval amendments to the budget of the district for the benefit of the campus. If the commissioner approves the amendments, the board of trustees of the district shall adopt the amendments.(d) A conservator or a member of a management team appointed to serve on a board of managers may continue to be compensated as determined by the commissioner.(d-1) The board of managers appointed by the commissioner must, if possible, include community leaders, business representatives who have expertise in leadership, and individuals who have knowledge or expertise in the field of education.(d-2) The commissioner must provide each individual appointed to a board of managers with training in effective leadership strategies.

TAB D

ELECTION CODE

TITLE 6. CONDUCT OF ELECTIONSCHAPTER 67. CANVASSING ELECTIONS

Sec. 67.016. CERTIFICATE OF ELECTION. (a) After the completion of a canvass, the presiding officer of the local canvassing authority shall prepare a certificate of election for each candidate who is elected to an office for which the official result is determined by that authority's canvass.(b) The governor shall prepare a certificate of election for each candidate who is elected to an office for which the official result is determined by the canvass conducted by the governor.(c) A certificate of election must contain:

(1) the candidate's name;(2) the office to which the candidate is elected;(3) a statement of election to an unexpired term, if applicable;(4) the date of the election;(5) the signature of the officer preparing the certificate; and(6) any seal used by the officer preparing the certificate to authenticate documents that the

officer executes or certifies.(d) After the canvass of a presidential election, the secretary of state shall prepare a certificate of election for each presidential elector candidate who is elected.(e) The authority preparing a certificate of election shall promptly deliver it to the person for whom it is prepared, subject to Section 212.0331.(f) A certificate of election may not be issued to a person who has been declared ineligible to be elected to the office.(g) This section does not apply to the offices of governor and lieutenant governor.

TITLE 16. MISCELLANEOUS PROVISIONSCHAPTER 273. CRIMINAL INVESTIGATION AND OTHER ENFORCEMENT PROCEEDINGS

SUBCHAPTER E. INJUNCTION

Sec. 273.081. INJUNCTION. A person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring.

TAB E

Texas Administrative Code

TITLE 19 EDUCATIONPART 2 TEXAS EDUCATION AGENCYCHAPTER 97 PLANNING AND ACCOUNTABILITYSUBCHAPTER EE ACCREDITATION STATUS, STANDARDS, AND SANCTIONSRULE §97.1073 Appointment of Monitor, Conservator, or Board of Managers

(a) The commissioner of education shall appoint a monitor, conservator, management team, or board ofmanagers whenever such action is required, as determined by this section. Action under any other section of this subchapter is not a prerequisite to acting under this section.(b) The commissioner shall appoint a monitor under Texas Education Code (TEC), §39.102(a)(6), when:

(1) the deficiencies identified under §97.1059 of this title (relating to Standards for All Accreditation Sanction Determinations) require a monitor to participate in and report to the commissioner on the activities of the district's board of trustees and superintendent;

(2) the deficiencies identified under §97.1059 of this title are not of such severity or duration as to require direct Texas Education Agency (TEA) oversight of district operations;

(3) the district has been responsive to and generally compliant with previous commissioner sanctions and TEA interventions; and

(4) stronger intervention is not required to prevent substantial or imminent harm to the welfareof the district's students or to the public interest.

(c) The commissioner shall appoint a conservator under TEC, §39.102(a)(7) and §39.111, or a management team under TEC, §39.102(a)(8) and §39.111, when:

(1) the nature or duration of the deficiencies require that the TEA directly oversee the operations of the district in the area(s) of deficiency;

(2) the district has not been responsive to or compliant with TEA intervention requirements; or (3) such intervention is needed to prevent substantial or imminent harm to the welfare of the

district's students or to the public interest.(d) The decision whether to appoint a conservator or management team under subsection (c) of this section shall be based solely on logistical concerns, including the competencies required and the volume of work involved. Selecting a management team rather than a conservator does not reflect on the severity of the deficiencies to be addressed.(e) The commissioner may appoint a board of managers under TEC, §39.112, §39.102(a)(9) or (b), or §12.116(d)(1), as applicable, when:

(1) sanctions under subsection (b) or (c) of this section have been ineffective to achieve the purposes identified in §97.1057 of this title (relating to Interventions and Sanctions; Lowered Rating or Accreditation Status);

(2) the commissioner has initiated proceedings to close or annex the district; (3) the commissioner has initiated proceedings to close a campus, and such intervention is

needed to cease operations of the campus; or (4) such intervention is needed to prevent substantial or imminent harm to the welfare of the

district's students or to the public interest.

TITLE 19 EDUCATIONPART 2 TEXAS EDUCATION AGENCYCHAPTER 157 HEARINGS AND APPEALSSUBCHAPTER EE INFORMAL REVIEW, FORMAL REVIEW, AND REVIEW BY STATE OFFICE OF ADMINISTRATIVE HEARINGSDIVISION 2 FORMAL REVIEWRULE §157.1136 Final Order and Appeal

Following the formal review, a final order will be issued. The final order may include changes or additions to the proposed order and such modifications are not subject to another formal review procedure. A final order issued following a formal review is final and may not be appealed.

TAB F

THE TEXAS CONSTITUTION

ARTICLE 1. BILL OF RIGHTS

Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.