Reply in Support of Defendants' Plea to the Jurisdiction and Plea in Abatement¶

Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-03-18 · PDF

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Filed 3/18/2026 3:29 PM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas

CAUSE NO. DC-2025-CV-1817
KEVIN N. BASS,
Plaintiff,
vs.
DARRIN D’AGOSTINO, D.O., M.P.H.,
M.B.A., in his official capacity as Provost
and Executive Vice President of
Academics of Texas Tech
University Health Sciences Center; and
AMANDA McSWEEN, in her official
capacity as Managing Director of
Enrollment Services and University
Registrar of Texas Tech University
Health Sciences Center,
Defendants.

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IN THE DISTRICT COURT

OF LUBBOCK COUNTY, TEXAS

237th JUDICIAL DISTRICT

DEFENDANTS’ REPLY IN SUPPORT OF PLEA TO THE JURISDICTION OR, IN THE
ALTERNATIVE, PLEA IN ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, DARRIN D’AGOSTINO, D.O., M.P.H., M.B.A., in his official capacity as
Provost and Executive Vice President of Academics of Texas Tech University Health Sciences
Center, and AMANDA McSWEEN, in her official capacity as Managing Director of Enrollment
Services and University Registrar of Texas Tech University Health Sciences Center (collectively,
“Defendants”) in the above-entitled and numbered cause, and file this Reply in Support of their
Plea to the Jurisdiction or, in the alternative, Plea in Abatement, and would respectfully show the
Court as follows:
I.

INTRODUCTION

Plaintiff’s Fourth Amended Petition narrows its rhetoric but not its substance. Although
Plaintiff now repeatedly characterizes this case as “procedure-only,” the relief he seeks would

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require this Court to supervise how a public university administers its education-record processes
in connection with an academic dismissal. Sovereign immunity does not permit such intrusion.
Plaintiff’s theory rests on the premise that Texas Government Code § 559.004 and
TTUHSC’s internal policy, HSC OP 77.13, convert record-inspection logistics into purely
ministerial duties enforceable by injunction. They do not. Section 559.004 requires a governmental
body to establish a reasonable procedure, and TTUHSC has done so. Plaintiff’s dissatisfaction with
how that procedure was applied to his situation does not transform discretionary administrative
judgment into ultra vires conduct.
Because Plaintiff challenges discretionary acts rather than conduct taken without legal
authority, sovereign immunity bars this suit. Even if jurisdiction existed, abatement remains
warranted due to the parallel federal action involving the same disciplinary nucleus and the same
officials. Accordingly, the Plea should be granted.
II.
A.

REPLY

Plaintiff Has Not Alleged Ultra Vires Conduct
The ultra vires exception to sovereign immunity is narrow. Under City of El Paso v.

Heinrich, sovereign immunity does not bar suits seeking prospective relief against officials who
act without legal authority or who fail to perform a purely ministerial duty. 1 284 S.W.3d 366, 37273 (Tex. 2009). The exception does not permit courts to control discretionary governmental
conduct, nor does it authorize judicial supervision of administrative implementation mechanics
simply because a plaintiff labels them “procedural.”
Plaintiff’s reliance on Hensley v. State Commission on Judicial Conduct, 692 S.W.3d 184 (Tex. 2024), is misplaced.
Hensley addressed statutory limits that expressly constrained the Commission’s authority to take specific disciplinary
action—not discretionary implementation of broadly worded procedural language. Id. at 195-97. Here, by contrast,
§ 559.004 does not prescribe specific implementation mechanics for record inspection or amendment; it requires only
that a governmental body establish a reasonable procedure. Determining what is reasonable necessarily involves
administrative judgment. Hensley does not transform discretionary implementation of a broadly worded statute into a
purely ministerial duty.

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Plaintiff does not allege that Defendants lacked authority over education records. To the
contrary, his Petition confirms that TTUHSC maintains his records and administers a published
inspection and amendment procedure. His complaint concerns how inspection sessions were
structured, how scheduling was handled, and how his amendment request was processed. Those
allegations, even if taken as true, concern the exercise of administrative judgment within the scope
of Defendants’ authority. To the extent Plaintiff references transcript review or correction, those
allegations likewise implicate discretionary academic and administrative judgment, not the failure
to perform a ministerial duty.
Ultra vires jurisdiction turns on the absence of legal authority—not disagreement with how
that authority is exercised. Plaintiff’s live pleading does not allege conduct outside Defendants’
statutory or institutional authority. It therefore fails to satisfy Heinrich’s threshold requirement.
Plaintiff challenges discretionary implementation rather than unauthorized action. The ultra vires
exception therefore does not apply.
B.

Section 559.004 Does Not Create a Purely Ministerial Duty
Plaintiff’s central argument is that Texas Government Code § 559.004 imposes a

mandatory, ministerial obligation that Defendants have failed to perform. The statute provides that
a state governmental body “shall establish a reasonable procedure” under which an individual may
seek correction of information and that the procedure “may not unduly burden” the individual.
That language does not eliminate discretion.
The Legislature did not prescribe a specific format for inspection, copying, recording, or
third-party attendance. It did not define what constitutes a “reasonable” procedure or what qualifies
as an “undue burden.” By employing flexible terms such as “reasonable” and “unduly burden,”
the Legislature necessarily entrusted implementation to the governmental body. Determining what

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is reasonable in this context requires administrative judgment. A duty is ministerial only when “the
law clearly spells out the duty to be performed…with such certainty that nothing is left to the
exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). Section
559.004 does not meet that standard.
TTUHSC has established a procedure—OP 77.13. Plaintiff’s disagreement with how
inspection was conducted does not demonstrate that Defendants failed to establish a procedure. At
most, it reflects disagreement with how that procedure was administered. That is not a ministerial
omission. Section 559.004 leaves room for institutional judgment; it does not support ultra vires
jurisdiction.
C.

OP 77.13 Does Not Transform Administrative Discretion into Enforceable Ministerial
Duties
Plaintiff further argues that TTUHSC’s internal policy, OP 77.13, functions as “enabling

law” and therefore constrains discretion in a manner enforceable under Houston Belt & Terminal
Ry. Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016). That analogy fails.
Houston Belt involved a municipal ordinance defining the parameters of a drainage fee and
statutory limits on its imposition. It did not involve internal academic policy governing record
administration. An internal university policy outlining procedural steps does not eliminate
administrative discretion in implementation, nor does it waive sovereign immunity. Even when
policies employ mandatory language, the existence of procedural steps does not render every
aspect of their administration ministerial. See Southwestern Bell Telephone, L.P. v. Emmett, 459
S.W.3d 578 (Tex. 2015) (recognizing that statutory “shall” language does not eliminate discretion
where implementation requires judgment).
Plaintiff’s allegations concern inspection format, copying restrictions, recording, and
scheduling. Those are administrative judgments committed to institutional discretion. Nothing in
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OP 77.13 strips Defendants of that discretion or converts those decisions into mechanical duties
enforceable by injunction. OP 77.13 governs process but does not eliminate discretion in its
administration. Ultra vires relief is therefore unavailable.
D.

Academic Record Administration Is Entitled to Judicial Deference
The transcript notation at issue arises from academic disciplinary proceedings. Courts

consistently recognize that academic determinations and related record administration fall within
the discretionary authority of educational institutions. See Regents of the University of Michigan
v. Ewing, 474 U.S. 214, 225 (1985); University of Texas Medical School at Houston v. Than, 901
S.W.2d 926, 931 (Tex. 1995); Alcorn v. Vaksman, 877 S.W.2d 390, 403 (Tex. App.—Houston [1st
Dist.] 1994, writ denied).
Although Plaintiff insists that he does not challenge the merits of the disciplinary decision,
the relief he seeks would require this Court to supervise the manner in which TTUHSC administers
education records associated with that decision. Judicial intrusion into those administrative
mechanics would undermine the deference courts afford academic institutions in disciplinary
matters. Academic record administration falls within institutional discretion. It is not subject to
ultra vires control by this Court.
E.

Plaintiff’s Ripeness Theory Does Not Create Jurisdiction
Plaintiff contends that his claims are ripe because OP 77.13’s 45-day window expired. Even

assuming arguendo that his allegations are true for jurisdictional purposes, a dispute over timing
does not create ultra vires jurisdiction. Failure to meet an internal administrative deadline, even if
it occurred, does not constitute action without legal authority.
Ripeness does not expand ultra vires jurisdiction beyond purely ministerial duties, and it
requires a final and definitive position that inflicts a concrete injury. See Texas Dep’t of Protective

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& Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004). OP 77.13’s
provisions governing access to education records are patterned after the Family Educational Rights
and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and its implementing regulations, which require
only that a student be given an “opportunity to inspect and review” education records. 34 C.F.R. §
99.10. Neither OP 77.13 nor FERPA defines what constitutes an “opportunity,” nor do they
mandate a minimum amount of time or prescribe the manner in which inspection must occur.
Plaintiff’s own pleading reflects ongoing administrative exchanges and multiple opportunities to
review the records at issue, including more than forty hours of access across seven days over a
three-month period. A disagreement over inspection logistics or the pace and structure of
administrative access does not create a justiciable ultra vires controversy. And even if Plaintiff
attempts to characterize TTUHSC’s position as a “final” determination, the complained-of conduct
still concerns discretionary implementation of a reasonable procedure—not the failure to perform
a purely ministerial duty.
Accordingly, the ultra vires exception does not apply, and Plaintiff’s ripeness theory fails.
Plaintiff’s theory improperly reframes discretionary administration as jurisdictional error.
F.

Abatement Remains Warranted
Even if this Court were to conclude that jurisdiction exists, abatement remains appropriate.

Defendants’ request is grounded not merely in Rule 93 but in this Court’s inherent authority to
prevent duplicative litigation and inconsistent rulings. See Wyatt v. Shaw Plumbing Co., 760
S.W.2d 245, 248 (Tex. 1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); Van Dyke v.
Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985).
The parallel federal action arises from the same disciplinary proceedings, challenges the
same transcript consequences, and names the same officials. Immunity defenses are pending in

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that forum. Permitting parallel litigation in two sovereign courts risks inconsistent rulings and
undermines the protection from litigation burdens that immunity is designed to provide. At a
minimum, orderly adjudication favors abatement pending resolution of the federal case.
G.

Amendment is Futile
Under Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004),

dismissal is proper where pleadings affirmatively negate jurisdiction. Plaintiff has amended
repeatedly. His Fourth Amended Petition narrows its phrasing but continues to challenge
discretionary administrative conduct. No additional amendment can convert that conduct into a
purely ministerial duty. The jurisdictional defect is legal rather than factual. Further amendment
would therefore be futile, and dismissal is proper.
III.

CONCLUSION AND PRAYER FOR RELIEF

Plaintiff’s increasingly refined procedural framing does not alter the governing analysis.
Section 559.004 requires a reasonable procedure, and TTUHSC has established one. Plaintiff’s
disagreement with how that procedure has been implemented does not constitute ultra vires
conduct. Sovereign immunity deprives this Court of subject-matter jurisdiction. Alternatively,
principles of comity and judicial economy warrant abatement pending resolution of the parallel
federal action.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court grant the Plea to the Jurisdiction and dismiss Plaintiff’s claims without prejudice or,
alternatively, grant the Plea in Abatement and stay these proceedings pending final disposition of
the federal action, and grant all other and further relief to which Defendants may be justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
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BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing instrument was served in
accordance with Rule 21a of the Texas Rules of Civil Procedure upon the party of record below
on this 18th day of March 2026.
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Karla Gutierrez on behalf of Scott Smith
Bar No. 24011874
karla.gutierrez@oag.texas.gov
Envelope ID: 112584730
Filing Code Description: Answer/Response
Filing Description: 20260318_Reply in Support of Defendants PTJ and
Plea in Abatement
Status as of 3/18/2026 3:48 PM CST
Associated Case Party: Darrin D'Agostino
Name

BarNumber Email

TimestampSubmitted Status

Karla Gutierrez

karla.gutierrez@oag.texas.gov

3/18/2026 3:29:07 PM

SENT

Scott D. Smith

scott.smith@oag.texas.gov

3/18/2026 3:29:07 PM

SENT

Associated Case Party: Kevin Bass
Name
Kevin N. Bass

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BarNumber

Email

TimestampSubmitted

Status

kbassphiladelphi@gmail.com

3/18/2026 3:29:07 PM

SENT