A judge’s order temporarily halting the replacement of Houston ISD’s elected trustees should remain in place largely because Texas Education Commissioner Mike Morath did not follow laws and procedures that would give him the authority to strip power from the school board, a state appellate court ruled Wednesday.
In a 2-1 decision, justices from the Third District Court of Appeals found that HISD has a “probable right to relief” in its lawsuit seeking to stop Morath’s move to oust the members of the elected board. Morath said in November 2019 that chronically low academic performance at HISD’s Wheatley High School, multiple findings of misconduct among trustees and the continued presence of a state-appointed conservator in the district warranted the board’s replacement.
“Absent an injunction, the commissioner would be able to immediately and irreparably remove the elected board of trustees and appoint a board of managers to govern the district,” Justice Gisela Triana wrote.
The ruling delivered a victory to HISD in its effort to stave off major state sanctions, but the ultimate outcome remains uncertain.
Texas Education Agency officials said they plan to appeal Wednesday’s ruling to the Texas Supreme Court, which is made up of nine Republican justices and generally favors state agencies more than the appellate courts do.
“While the agency is disappointed with the split ruling from the Third Court of Appeals, this is only a temporary setback,” TEA officials said in a statement. “We are confident that the Texas Supreme Court will uphold the commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”
HISD and TEA officials also could still argue the merits of the case in a Travis County court, where a judge issued the temporary injunction in January.
Kevin O’Hanlon, a lawyer representing HISD trustees, said the ruling validated the district’s position that state officials did not clear legal hurdles for replacing board members.
“The court didn’t say (TEA) is prohibited from taking action, but rather that before they do, statutory requirements have to be met,” O’Hanlon said.
Lawyers for HISD have argued that Morath abused his powers and failed on multiple occasions to take the proper steps ahead of his decision to replace HISD’s board — a position affirmed Wednesday by Chief Justice Jeff Rose, a Republican, and Triana, a Democrat.
To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019.
The law, passed in 2017, is intended to punish districts with campuses receiving failing grades in five consecutive years. However, Morath’s decision not to issue state accountability ratings in 2018 due to Hurricane Harvey created confusion over when Wheatley might trigger the law.
Morath attempted to clarify the uncertainty through an administrative rule, declaring that any district with a campus scoring five straight failing grades must be sanctioned. Lawyers for HISD argued that legislators did not give Morath that power.
“We conclude that these allegations are sufficient to confer jurisdiction on the district court to consider the merits of HISD’s rule challenge,” Triana wrote.
The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.
State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which hasn’t yet been met.
Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation. Morath had cited this as a third reason for replacing HISD’s board.
Through a special accreditation investigation, TEA officials concluded that five trustees violated state open-meetings laws in 2018 when they secretly coordinated ahead of their since-reversed vote to replace Interim Superintendent Grenita Lathan. Investigators also found that multiple trustees overstepped their governance role; that then-board members Diana Dávila and Wanda Adams improperly interfered with vendor contracts; and that Dávila and then-trustee Sergio Lira made false statements during the inquiry.
The five board members denied breaking the Texas Open Meetings Act, while Adams, Dávila and Lira refuted the allegations against them. Some trustees criticized the investigation as biased and incomplete, noting that TEA investigators had refused to disclose the names of individuals making anonymous allegations.
The justices did not comment on the quality of the investigation, but took issue with the TEA’s process for allowing HISD officials to respond to the claims. Before issuing final findings, state law requires that the TEA must provide “an opportunity for an informal review by the commissioner or a designated hearing examiner.”
State lawyers argued that the TEA met the standard when Deputy Commissioner of Governance and Accountability Jeff Cottrill conducted the informal review. However, the two justices ruled Cottrill does not qualify as a “hearing examiner.” While the term is not defined in state education law, the justices said the phrase is “considered synonymous with the term ‘administrative law judge.’”
Rose and Triana also argued that HISD was entitled to an in-person review, which did not occur.
“We conclude that the statute requires some form of hearing in which HISD can examine and challenge the evidence against it, particularly where, as here, (the state alleges) that HISD’s Board of Trustees should be removed for violating the law,” Triana wrote.
In his dissent, Justice Thomas Baker argued that the state’s administrative code allows a “TEA representative,” such as Cottrill, to conduct the informal review. Baker also said neither state law nor administrative rules require an in-person hearing as part of the review.
“When the legislature intends to require a hearing in agency proceedings, as opposed to merely informal review of agency decisions, it has amply demonstrated its ability to do so in unambiguous language,” Baker wrote.
O’Hanlon said Rose’s support of the district’s position left him more optimistic about the case if it reaches the Texas Supreme Court.
“He’s ruled for the state virtually every time he’s been on the bench, so we were pleased to see him rule for us,” O’Hanlon said.
