The Texas Supreme Court on Friday took the unusual step of vacating a lower appeals court’s opinion in a dispute – now moot – over the state education agency’s failure to implement legislative revisions to standardized tests given to public school students in grades 3 through 8.
The Supreme Court agreed with Texas Attorney General Ken Paxton that it needed to do more than vacate the judgment of the Austin-based Third Court of Appeals because of the adverse precedent it set on the issue of when a state agency may be held accountable for not implementing legislation in the absence of an appropriation.
“The State is a frequent litigant. An adverse precedent in the court of appeals district where most suits against state officials are brought carries undeniable consequences for future litigation involving the State,” said the court in a per curiam opinion in Mike Morath v. Virginia Diane Lewis, et al.
The litigation centered on a 2015 law that requires the Texas Education Agency to shorten the STARR tests so that 85 percent of students in grades 3 through 5 could finish within 120 minutes and 85 percent of students in grades 6 through 8 could finish within 180 minutes. But the Legislature did not specifically appropriate the $800,000 that the education agency said it needed to pay for the redesign.
The test was shortened for its 2016 administration but did not meet the time limits required by the law, a group of six parents alleged in a lawsuit against the commissioner of education. The parents said their children had failed the test and suffered repercussions associated being labeled “at risk.”
A Travis County trial judge denied Commissioner Morath’s efforts to have the case dismissed on jurisdictional grounds, and the court of appeals in 2018 affirmed.
Morath appealed to the Supreme Court, saying that the Third Court’s opinion improperly expands the availability of ultra vires relief by requiring TEA to spend funds not appropriated by the Legislature. The parents initially responded to the appeal but then decided to cease pursuing their claims and moved to dismiss the appeal as moot.
Morath opposed the motion, saying the appeal should not be dismissed because it involves a matter of public concern. He also argued that if the appeal was dismissed, the Supreme Court should vacate the court of appeals’ opinion in addition to its usual practice, in moot cases, of vacating the lower court’s judgment.
The Supreme Court said its jurisdictional bounds are constitutionally limited to decide live controversies.
“If courts were empowered to ignore the usual limits on their jurisdiction, such as mootness, when matters of public concern are at stake, then we would no longer have a judiciary with limited power to decide genuine cases and controversies. We would have a judiciary with unbridled power to decide any question it deems important to the public.”
“The State points to no case where this Court or any other has required a party to continue litigating claims it has abandoned merely because there is public interest in the outcome. We will not do so here,’ the court said.
On the issue of vacating the lower court opinion, the court said declining to do so despite the state’s inability to challenge it would be an inequitable result that would not serve the public interest.
“We do not suggest Respondents in this case non-suited in hopes of preserving a favorable appellate precedent after this Court showed interest in reviewing it,” the court said. “But we cannot be blind to the possibility for such gamesmanship if court of appeals opinions on issues of public importance can be insulated from Supreme Court review by strategically timed non-suits.”
Scott Keller, the state’s former solicitor general, represented Morath. Keller now is a partner at Baker Botts where he serves as chair of the firm’s Supreme Court and Constitutional Law Practice. R. Scott Placek of Round Rock’s Arnold & Placek represented the parents.
Read the court’s opinion in Morath v. Lewis, et al. here.