Court of Appeals of Texas, Third District, Austin
S. O., Appellant
University of Texas at Austin President Gregory L. Fenves; University of Texas at Austin Registrar Vincent Shelby Stanfield; University of Texas Dean of Students Soncia Reagins-Lilly; University of Texas at Austin Professor Jeana Lungwitz; and University of Texas Regents Paul L. Foster, R. Steven Hicks, Jeffery D. Hildebrand, Ernest Aliseda, David J. Beck, Sara Martinez Tucker, Kevin Paul Eltife, Janiece M. Longoria, and James Conrad Weaver, In their Official Capacities, Appellees 
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-16-000517, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice.
challenges the trial court's order granting the plea to
the jurisdiction filed by appellees University of Texas at
Austin President Gregory L. Fenves; University of Texas at
Austin Registrar Vincent Shelby Stanfield; University of
Texas Dean of Students Soncia Reagins-Lilly; University of
Texas at Austin Professor Jeana Lungwitz; and University of
Texas Regents Paul L. Foster, R. Steven Hicks, Jeffery D.
Hildebrand, Ernest Aliseda, David J. Beck, Sara Martinez
Tucker, Kevin Paul Eltife, Janiece M. Longoria, and James
Conrad Weaver, who were all sued in their official capacities
(collectively, the University officials). The trial court
concluded that S.O.'s claims against the University
officials were not ripe for review and dismissed the case for
lack of subject-matter jurisdiction. We will reverse and
earned her doctoral degree in organic chemistry from the
University of Texas at Austin (the University) in 2008. In
2012, the University instituted a disciplinary investigation
into allegations of academic misconduct and, in 2014,
attempted to "revoke" S.O.'s degree. The
University informed S.O. that her degree had been revoked on
February 12, 2014. Two days later, S.O. filed suit against
certain University officials (the first lawsuit) asserting
that the University's procedures related to its
investigation and decision regarding her degree did not
comport with the minimum constitutional standards guaranteed
by the Texas Constitution's due course of law provision.
See Tex. Const. art I, § 19. That day, S.O. and
the University entered into a Rule 11 agreement specifying
that the University would restore S.O.'s degree
"subject to further discussions regarding additional
process." The University officials then filed a plea to
the jurisdiction in which they argued that, because the
University had restored S.O.'s degree and initiated a
student disciplinary proceeding to consider the allegations
against her, S.O. had been provided all the relief she sought
in her lawsuit, rendering it moot. The trial court granted
the plea to the jurisdiction, and this Court affirmed.
dismissal of the first lawsuit, the University proceeded with
its investigation and, in January 2016, informed S.O. that it
intended to hold a disciplinary hearing concerning
allegations that S.O. had violated the University's
"Institutional Rules, " which could subject her to
disciplinary sanctions. S.O. then brought the underlying
proceeding in which she sought declaratory and injunctive
relief prohibiting the University officials from holding an
internal disciplinary proceeding for the purpose of deciding
whether to revoke her Ph.D. degree. S.O. alleged that such
action was ultra vires conduct and a violation of
her constitutional rights to due process and equal
protection. S.O. also sought a temporary injunction to
prevent the University from conducting any proceedings
related to her Ph.D. degree pending resolution of her claims.
The University officials filed a plea to the jurisdiction in
which they asserted that the trial court lacked jurisdiction
over S.O.'s claims because they were not ripe. See
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851
(Tex. 2000) ("The ripeness doctrine prevents premature
adjudication of hypothetical or contingent
February 2016, the trial court held a hearing on S.O.'s
request for a temporary injunction and on the University
officials' plea to the jurisdiction. The trial court did
not at that time grant temporary injunctive relief nor did it
rule on the University officials' plea. In March, S.O.
filed a motion for summary judgment. While that motion was
pending, the University informed S.O. that it would conduct
its disciplinary hearing on October 21, 2016. When the
University did not go forward with the proceeding on October
21, 2016, the trial court signed an order reciting that
S.O.'s claims were not ripe for review and granting the
University officials' plea to the jurisdiction. The trial
court dismissed S.O.'s claims, and S.O. perfected this
appeal. In two issues S.O. argues that (1) the
trial court erred in concluding that her request for a
declaratory judgment that the University officials were
acting ultra vires was not ripe for review and
dismissing it for lack of subject-matter jurisdiction, and
(2) assuming the University officials' actions were not
ultra vires, the rules the University intends to
apply to the disciplinary hearing do not provide her with
adequate due process protection given the nature of the
interest at risk and are, for that reason, unconstitutional.
Of these two issues, the only one properly before the Court
is the first issue, which challenges the trial court's
ruling that S.O.'s claims were not ripe. The trial court
made no ruling on the merits of S.O.'s complaints
regarding whether the internal disciplinary hearing rules
afford her due process.
trial court's subject-matter jurisdiction may be
challenged through a plea to the jurisdiction. See Texas
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004); Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The determination
of whether a trial court has subject-matter jurisdiction
begins with the pleadings. See Miranda, 133 S.W.3d
at 226. The pleader has the initial burden of alleging facts
that affirmatively demonstrate the trial court's
jurisdiction to hear the cause. Id. (citing
Texas Ass'n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993)). Whether the pleader has met
this burden is a question of law that we review de novo.
Id. We construe the pleadings liberally in favor of
the plaintiff and look to the pleader's intent.
Id. If the pleadings do not contain sufficient facts
to affirmatively demonstrate the trial court's
jurisdiction but do not affirmatively demonstrate incurable
defects in jurisdiction, the issue is one of pleading
sufficiency, and the plaintiff should be afforded the
opportunity to amend. Id. at 227. When, as here, the
plea to the jurisdiction challenges the sufficiency of the
pleadings rather than any of the jurisdictional facts alleged
by the plaintiff, we take as true the facts alleged and
construe them liberally in favor of jurisdiction.
Id. at 226; First-Citizens Bank & Trust Co.
v. Greater Austin Area Telecomms. Network, 318 S.W.3d
560, 564 (Tex. App.-Austin 2010, no pet.) ("When a plea
to the jurisdiction challenges the pleadings, we determine
whether the plaintiff has alleged sufficient jurisdictional
facts to show the trial court's subject-matter
jurisdiction, using a liberal construction in favor of the
University officials' plea to the jurisdiction asserted
that S.O.'s claims are not ripe. Ripeness implicates
subject-matter jurisdiction and emphasizes the requirement of
a concrete injury in order to present a justiciable claim.
Gibson, 22 S.W.3d at 851; Patterson v. Planned
Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). Ripeness is
concerned with when an action can be brought and seeks to
conserve judicial time and resources for real and current
controversies rather than hypothetical or remote disputes.
Gibson, 22 S.W.3d. at 851. A claimant is
not required to show that an injury has already occurred,
provided the injury is imminent or sufficiently likely.
Id. at 852; Patterson, 971 S.W.2d at 442.
"Ripeness concerns not only whether a court can
act-whether it has jurisdiction-but prudentially, whether it
should." Perry v. Del Rio, 66 S.W.3d
239, 249-50 (Tex. 2001) (emphasis in original). "In
addition to restraining courts from issuing unconstitutional
advisory opinions, ripeness also has a pragmatic, prudential
aspect that aims to conserve 'judicial time and resources
for real and current controversies, rather than abstract,
hypothetical or remote disputes.'" Texas Court
Reporters Certification Bd. v. Esquire Deposition Servs.,
L.L.C., 240 S.W.3d 79, 92 (Tex. App.-Austin 2007, no
pet.). These prudential concerns are foundational to the
court's determination of ripeness, in which it considers
(1) the fitness of the issues for judicial decision, and (2)
the hardship occasioned to a party by the court's denial
of judicial review. See City of Waco v. Texas Nat. Res.
Conservation Comm'n, 83 S.W.3d 169, 177 (Tex.
App.-Austin 2002, pet. denied) (citing Office of Pub.
Util. Counsel v. Public Util. Comm'n, 843 S.W.2d
718, 724 (Tex. App.-Austin 1992, writ denied)); see also
Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 857 (Tex.
App.-Austin 2004, no pet.) ("In addition to its
constitutional roots, the prohibition against issuing
advisory opinions has a pragmatic, prudential aspect based on
the desire to conserve judicial time and resources 'for
real and current controversies, rather than abstract,
hypothetical or remote disputes' and to avoid making bad
law." (citing Patterson, 971 S.W.2d at 443)).
suit sought a declaration pursuant to the Uniform Declaratory
Judgments Act that, by conducting a hearing for the purpose
of determining whether to revoke her Ph.D. degree, the
University officials are acting beyond their statutorily
conferred authority and are violating her constitutional
rights to due process and equal protection. See Tex.
Civ. Prac. & Rem. Code §§ 37.001-.011 (UDJA). A
declaratory judgment action under the UDJA is available if
(1) a justiciable controversy exists and (2) the controversy
can be resolved by court declaration. Bonham State Bank
v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). "[A]
person seeking a declaratory judgment need not have incurred
actual injury; a declaratory judgment action will lie if the
facts show the presence of 'ripening seeds of a
controversy.'" City of Waco, 83 S.W.3d at
175 (citing Texas Dep't of Banking v. Mount Olivet
Cemetery Ass'n, 27 S.W.3d 276, 282 (Tex. App.-Austin
2000, pet. denied) (quoting Texas Dep't of Pub.
Safety v. Moore, 985 S.W.2d 149, 153-54 (Tex.
App.-Austin 1998, no pet.))). A justiciable controversy is
one in which a real and substantial controversy exists
involving a genuine conflict of tangible interest and not
merely a theoretical dispute. Moore, 985 S.W.2d at
154. Jurisdiction under the UDJA "primarily depends on
the nature of the controversy; whether the controversy is
merely hypothetical or rises to the justiciable level."
S.O.'s pleadings in her favor, as we must, she alleges
that the University does not itself have the authority to
divest one of its graduates of a conferred degree through its
internal disciplinary proceedings. S.O. complains not simply
of the actual revocation of her degree, should that occur,
the fact that the University has put the status of her degree
in question and is requiring her to defend it in a proceeding
that she alleges the University officials are not authorized
to conduct. Thus, S.O.'s pleadings seek a declaration
that the University officials' conduct is ultra
vires, not a declaration that under the facts and
circumstances presented revocation is not warranted. The
nature of the controversy, therefore, is whether the
University officials' act of conducting a disciplinary
proceeding to consider revoking S.O.'s degree ...