Appellant's Brief (the court's file-stamped copy)¶
Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-08-24 · PDF
Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.
ACCEPTED
15-26-00132-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
8/24/2026 11:58 PM
MICHAEL A. CRUZ
CLERK
ORAL ARGUMENT REQUESTED
No. 15-26-00132-CV
FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS
8/24/2026 11:58:40 PM
MICHAEL A. CRUZ
Clerk
IN THE FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
KEVIN N. BASS,
Appellant,
v.
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,
Appellees.
On Appeal from the 237th Judicial District Court
Lubbock County, Texas
Trial Court Cause No. DC-2025-CV-1817
Honorable Les Hatch, Judge Presiding
APPELLANT'S BRIEF
Kevin N. Bass
Appellant pro se
(512) 333-4092
kbassphiladelphia@gmail.com
1
IDENTITY OF PARTIES AND COUNSEL
Appellant (plaintiff below):
Kevin N. Bass, pro se
(512) 333-4092
kbassphiladelphia@gmail.com
Appellees (defendants below):
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
Amanda McSween, in her official capacity as Managing Director of Enrollment
Services and University Registrar of Texas Tech University Health Sciences
Center
Counsel for Appellees (trial and appellate):
Scott D. Smith
State Bar No. 24011874
Assistant Attorney General, General Litigation Division
Office of the Attorney General of Texas
2
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
scott.smith@oag.texas.gov
Other parties to the trial court's judgment: Lori Rice-Spearman, Lauren Cobbs,
Tamara Mancini, Simon Williams, Mia Myers, and John C. DeToledo were named
as defendants and were nonsuited on January 22, 2026 (CR 41–42). They are not
parties to this appeal.
TABLE OF CONTENTS
Identity of Parties and Counsel ........................................ 2
Index of Authorities ................................................... 4
Statement of the Case .................................................. 6
Statement Regarding Oral Argument ...................................... 7
Issues Presented ....................................................... 8
Statement of Facts ..................................................... 9
Summary of the Argument ............................................... 17
Argument .............................................................. 21
I. Failed service of the reply and proposed judgment; missing submission
notice ................................................................. 21
II. The May 21 proceeding did not cure the earlier exclusion ........... 28
III. No-notice authorities and ordinary harm ........................... 30
3
IV. One opportunity for a materially narrower official-duty claim ..... 34
Prayer ................................................................ 39
Certificate of Compliance ............................................ 40
Certificate of Service ................................................ 40
Appendix ............................................................... 41
INDEX OF AUTHORITIES
Cases
Armstrong v. Manzo, 380 U.S. 545 (1965) ............................. 32
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ............. 34
Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987) ........................ 24
Cruz v. Sanchez, 528 S.W.3d 104 (Tex. App.—El Paso 2017, no pet.) ... 20, 23
Etheredge v. Hidden Valley Airpark Ass'n, 169 S.W.3d 378 (Tex. App.—Fort
Worth 2005, pet. denied) .......................................... 31
Fraley v. Texas A&M University System, 664 S.W.3d 91 (Tex. 2023) .... 38
Hall v. McRaven, 508 S.W.3d 232 (Tex. 2017) ......................... 35
Hensley v. Salinas, 583 S.W.2d 617 (Tex. 1979) (per curiam) ..... 29–30
Houston Belt & Terminal Railway Co. v. City of Houston, 487 S.W.3d 154 (Tex.
2016) .......................................................... 34
LBL Oil Co. v. International Power Services, Inc., 777 S.W.2d 390 (Tex. 1989)
(per curiam) .............................................. 19, 30–31
4
Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc.,
143 S.W.3d 538 (Tex. App.—Austin 2004, no pet.) ......... 19, 31
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ................... 30
Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809 (Tex. 2012) ... 31
Matzen v. McLane, 659 S.W.3d 381 (Tex. 2021) ................ 20, 38–39
Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (per curiam) ... 24, 27, 33
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) .... 30
Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) ... 15–16, 30–31, 33
Sharma v. Texas Tech University Health Sciences Center El Paso, No. 15-2500007-CV (Tex. App.—15th Dist. Apr. 24, 2025) (mem.
op.) ............................................................................... 38
State v. Hodges, 92 S.W.3d 489 (Tex. 2002) .......................... 30
Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984) ..................... 21
Texas A&M University Department of Transportation, Parking Services
Department v. Reeves, No. 15-24-00069-CV (Tex. App.—15th Dist. Jan. 30, 2025,
no pet.) (mem. op.) .......................................... 38
Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.
2004) ......................................................... 34, 37, 39
Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644 (Tex. App.—San Antonio
2002, pet. denied) ........................................... 18, 28, 30
5
Union Carbide Corp. v. Moye, 798 S.W.2d 792 (Tex. 1990) ............ 19, 28
Constitutional Provisions
U.S. Const. amend. XIV ................................................. 30
Statutes
Tex. Gov't Code § 559.004 ............... 6, 9, 11, 16, 25, 34–35, 37
Rules
Tex. R. App. P. 26.1 ................................................... 7
Tex. R. App. P. 33.1 .................................................. 25
Tex. R. App. P. 44.1 ...................................... 20, 26–27, 33
Tex. R. Civ. P. 21 ........................ 8, 18, 21–22, 24
Tex. R. Civ. P. 21a ....................... 8, 15, 18, 21–25
Tex. R. Civ. P. 21d ........................................... 8, 18, 22
Tex. R. Civ. P. 305 ........................ 8, 18, 21, 24–25, 33
Tex. R. Civ. P. 306a .............................. 7, 13–15, 24
Tex. R. Civ. P. 329b ......................................... 7, 13
STATEMENT OF THE CASE
This is a suit for prospective injunctive relief against two state university officials
in their official capacities, seeking to compel performance of the record-correction
procedure that Tex. Gov't Code § 559.004 requires every state governmental body
to establish and that Texas Tech University Health Sciences Center has published
6
as HSC OP 77.13 (CR 103–19) (Fourth Amended Verified Original Petition, filed
Mar. 3, 2026). Appellant sought no damages and no ruling on the accuracy of any
record. Appellees filed a plea to the jurisdiction (CR 43–102); Appellant responded
with a seventy-eight-page response (CR 120–97). The trial court granted the plea
and dismissed the case by order signed March 26, 2026 (CR 214–15). The trial
court struck the order's alternative plea-in-abatement paragraph, so the order
disposed of the case rather than abating it (CR 214). Appellant filed a timely sworn
motion under Rule 306a(5) and motion for new trial under Rule 329b on April 3,
2026 (CR 218–70). After a hearing on May 21, 2026 at which the trial court
declined to receive evidence (RR 5, 13), the court denied the motion by a reasoned
order signed May 27, 2026 (CR 435–36). Appellant timely perfected this appeal on
June 24, 2026 (CR 438–41) — the ninetieth day after the judgment, the timely
motion for new trial having extended the deadline. Tex. R. App. P. 26.1(a)(1).
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. The record establishes that an appearing party
did not receive a dispositive paper-submission setting, Appellees' proposed
judgment, or Appellees' reply, yet had previously filed a substantial response to the
plea. That combination does not fit neatly within either the default-judgment cases
or the cases holding that a full postjudgment hearing can cure missing prejudgment
notice. The Court would benefit from argument on three focused questions: which
7
service and notice rules govern a paper-only submission; whether the May 21
proceeding cured the earlier exclusion when the court refused evidence and
declared that a surreply would not have been considered; and whether losing the
chance to seek leave to answer Appellees' application of their defenses to the live
pleading probably affected the jurisdictional ruling. The reporter's record is only
fifteen pages, allowing the Court to examine the rulings in full.
ISSUES PRESENTED
Issue One. Appellant did not receive the paper-submission notices, Appellees'
filed reply, or Appellees' proposed judgment. Rule 305 unquestionably required
service of the proposed judgment, and Rules 21(a) and 21a governed the filed
reply. Rule 21(b)'s application to a paper-only submission is less certain because it
incorporates Rule 21d's definition of a court proceeding as an appearance before
the court. Did the trial court apply the governing service rules and ordinary-harm
standard correctly?
Issue Two. Appellant timely moved for a new trial, filed sworn proof, and asked to
offer exhibits and testimony concerning nonreceipt, fault, and the opportunity lost.
The court refused all evidence (RR 7, 12–13). Did the May 21 proceeding cure the
earlier lack of notice when it did not reopen the plea submission or recreate the
opportunity to seek leave to answer the reply before judgment?
8
Issue Three. Texas cases require notice of dispositive settings, including paper
summary-judgment proceedings, while recognizing that some notice defects may
be cured by a full postjudgment hearing. Appellant received and answered the
original plea and anticipated several defenses, but did not receive the submission
setting or Appellees' first paper applying those defenses and futility to the live
petition. On this record, did the exclusion violate due process or, at minimum,
constitute harmful ordinary error?
Issue Four. Section 559.004 requires a state governmental body to establish a
reasonable record-correction procedure that may not unduly burden its user. Both
the live petition and a postjudgment proposed Fifth Amended Petition requested
implementation details that may exceed an ultra vires court's role. If the pleadings
did not identify a sufficiently discrete duty of a proper official, should the cause be
remanded for one materially narrower amendment limited to the policy's writtendisposition step, with operational details and the substantive result left to
TTUHSC?
STATEMENT OF FACTS
The suit. Appellant sued two TTUHSC officials in their official capacities, seeking
prospective injunctive relief only. The Fourth Amended Verified Original Petition
pleads that Tex. Gov't Code § 559.004 obliges each state governmental body to
"establish a reasonable procedure under which an individual is entitled to have the
9
state governmental body correct information about the individual," and that the
"procedure may not unduly burden an individual using the procedure"; that
TTUHSC published HSC OP 77.13 as its education-records procedure; and that the
procedure, as implemented after Appellant's December 30, 2025 request, was not
workable within its own time limits (CR 104–05, 111–14) (Fourth Am. Pet. ¶¶ 4–
8, 31–37, filed Mar. 3, 2026). The petition disclaims damages and any request that
the court decide the accuracy of a record or the merits of an academic decision (CR
105, 112–13) (id. ¶¶ 7, 33, 36). Its prayer nevertheless asks for detailed
implementation terms, including deadlines, scheduling, organization, pagination,
an inventory, tolling, preservation, and a compliance notice (CR 115–16).
Appellant addresses that breadth candidly in Part IV.
The plea and the submission setting. Appellees filed a plea to the jurisdiction, or
in the alternative a plea in abatement, on February 9, 2026 (CR 43–102). Appellant
filed a seventy-eight-page response on March 3, 2026 (CR 120–97), the same day
he filed the Fourth Amended Petition (CR 103–19).
On March 13, 2026, Appellees filed a notice of submission and, the same day, an
amended notice of submission (CR 198–200, 201–03). The first setting was
defective: as the trial court explained on the record, it "was actually set for hearing
before the order setting hearing was signed. So, that couldn't have happened," and
"somebody on behalf of the Defendants realized that and promptly submitted . . .
10
an amended order setting hearing, setting it for hearing again, by submission, at a
date after the order setting hearing" (RR 8). Appellees also tendered a proposed
order granting the plea, which the trial court later signed (CR 214–16). On March
18, 2026, Appellees filed a reply in support of the plea (CR 204–13). The
submission date was March 19, 2026, which closed the paper record.
The timing made the reply material, but not because every subject was new. The
February 9 plea preceded the live Fourth Amended Petition and did not analyze §
559.004 or HSC OP 77.13 (CR 43–102). Bass's March 3 response presented the
statutory theory and anticipated several defenses, including discretion, internalpolicy status, academic deference, access, ripeness, proper officials, and leave to
amend (CR 121–44). The March 18 reply did not originate those subjects; it
sharpened Appellees' answers to the live pleading and asserted futility as applied to
it (CR 205–10). The dismissal order states that the court considered the reply (CR
214).
The challenged papers were not received. Appellant did not receive the notice of
submission, the amended notice, the proposed order, or the reply. His correct
address appears in his filed papers, on the clerk's record cover (CR 1), and in the
certificate of service Appellees' counsel typed on the notice of submission itself
(CR 199), but the automated service entries for these documents use
kbassphiladelphi@gmail.com—one character short of
11
kbassphiladelphia@gmail.com. The certificates report ERROR on the Notice of
Submission (CR 200), ERROR on the Amended Notice of Submission (CR 203),
and ERROR on the proposed order (CR 216). The March 18 reply is reported
SENT (CR 213), but the reported destination is still the truncated address, not
Appellant's. That entry is the outlier: from March 3 forward, every other automated
service entry for the truncated address in the record reports ERROR — on
Appellant's own filings (e.g., CR 119, 197, 274, 312, 396), on Appellees' filings
(CR 283, 405), and on the court's orders, including the order setting the May 21
hearing (CR 400) and the order denying the new-trial motion (CR 437). The trial
court later acknowledged that the papers were not received because of the emailaddress issue (RR 7–8).
Appellant does not conceal the diligence fact Appellees emphasized below. His
postjudgment reply states that on March 3 he received two automated
undeliverable-service notices displaying the truncated address, but he did not then
understand that the e-service contact itself was wrong (CR 294). Knowledge of that
warning bears on fault and remedy; it did not give actual notice of filings made ten
and fifteen days later. The record also shows that Appellees' counsel possessed and
used Appellant's correct email address outside the automated contact (CR 294, 313
–90).
The trial court stated the fact of non-receipt in its own words from the bench:
12
"What you didn't get, because of the email address issue, you didn't
get the notice of the hearing on the plea, which was by submission,
not oral argument. You didn't get the proposed order granting the plea.
You didn't get the Defendants' reply to your response to the plea."
(RR 7.) The court then itself identified the fourth item — the second of the two
orders setting hearing — and recited that "those were two documents you didn't
get, and then the proposed order granting the plea to the jurisdiction and then the
reply by the Defendants to your response" (RR 8).
The judgment. The trial court signed the order granting the plea to the jurisdiction
on March 26, 2026, dismissing Appellant's claims (CR 214–15). The alternative
abatement paragraph is visibly struck through on CR 214. The clerk issued a Rule
306a(3) notice dated April 2; it is addressed to eight recipients—the two Appellees
and six nonsuited defendants—but not Appellant (CR 217; nonsuit at CR 41–42).
Appellant nevertheless learned of the order on April 2 and filed his sworn Rule
306a(5)/new-trial motion on April 3, within Rule 329b(a)'s thirty-day window (CR
218–70; erratum CR 271–74). Appellees responded (CR 275–83). On April 14,
Appellant filed a notice of correction of case contact information, identifying the
truncated entry and stating that his own eFileTexas profile had at all relevant times
reflected the correct address (CR 284–87); the automated certificates nevertheless
continued to report ERROR at the truncated address through the May 27 order (CR
400, 405, 434, 437). Appellant replied (CR 288–312), with Exhibits A–L (CR 313–
90). That reply tendered a proposed Fifth Amended Petition (CR 304, 366–89). It
13
attempted to sharpen the official-capacity theory, but its prayer still requested
implementation details—including scheduling, organized and paginated
presentation, response deadlines, an inventory, tolling, preservation and logging,
and a compliance notice (CR 386–88). Appellant does not ask this Court to
approve that version or order it refiled. Rule 306a did not restart any deadline
because Appellant learned of the order within twenty days; this appeal does not
challenge that conclusion.
The request for an evidentiary hearing. On April 28, 2026, Appellant moved to
set an evidentiary hearing (CR 391–96). Appellees did not oppose disposition "for
hearing or submission at the Court's convenience"; if a hearing was set, they asked
that it be limited to the Rule 306a issues of notice and actual knowledge (CR 401–
02). They did not affirmatively agree that live evidence should be taken on the
new-trial grounds. The court set the matter for May 21 (CR 397–400), and
Appellant requested an official reporter (CR 432–34).
The May 21 hearing. The court opened by announcing that it would not reach the
evidence. "[B]efore we have an evidentiary hearing on the 306a motion as to when
the Plaintiff got notice of the . . . order granting the plea to the jurisdiction, the
Court finds that 306a does not apply because the Plaintiff, pursuant to his
pleadings, acknowledges notice of the order granting the plea to the jurisdiction
14
within either seven or eight days . . . and that 306a(4) only applies if you did not
receive notice within 20 days" (RR 4). The court continued:
"As a result of that finding by the Court, the Court finds that whether
or not the Plaintiff received notice and why he didn't receive it of the
order granting the plea to the jurisdiction is irrelevant because the
Motion for New Trial was filed, I think, on day eight of the signing of
the order granting the plea to the jurisdiction."
(RR 4.) It then denied the Rule 306a(5) motion "without hearing evidence" (RR 5),
and added:
"And I know, Dr. Bass, that you're ready to put on all kinds of
evidence about when you received the notice, and — and I know that
the Defense is ready to argue why you should have corrected the
reason why you didn't receive the notice earlier. But for purposes of
the 306a motion, the Court finds none of that to be relevant, and that
the Plaintiff has timely perfected the ability to complain about the
order granting the plea to the jurisdiction."
(RR 5.)
Appellant excepted on the record: "for the record, I respectfully except to the
denial of the Rule 306a motion to have an evidentiary hearing" (RR 6). He then
argued the motion for new trial on two grounds — that under Peralta a judgment
entered without notice and without an opportunity to be heard cannot stand, and
that service under Rule 21a was defective — and asked the court to receive
evidence: "these are contested factual questions. I ask the Court to take evidence
on them today, to admit my exhibits and hear my testimony" (RR 7).
The court asked Appellant "[w]hat would you have done differently had you had
notice of those four documents?" (RR 8). Appellant answered specifically: as to the
15
notice of submission, he would have objected and requested oral argument; as to
the proposed order, he would have objected to form and substance; as to the reply,
he would have moved for leave to file a surreply; and before the March 19
submission closed the record, he would have filed that surreply (RR 8–9). He
added that under Peralta no such showing is required at all (RR 9).
The postjudgment papers also identified the response he had been prepared to
make: § 559.004 itself supplies an external statutory limit; the claim sought
implementation of a correction procedure rather than adjudication of academic
merits; and the live pleading alleged specific unperformed steps despite the access
sessions Appellees invoked (CR 299–304). HSC OP 77.13 identifies one concrete
later-stage step: after the written amendment request and custodian statement, the
Executive Vice President for Academic Affairs or designee "will provide written
notification" whether TTUHSC will implement the requested change and, if not,
notify the student of the right to a hearing (CR 154–55). The question here is not
whether Bass had an absolute right to a surreply. It is whether denying him notice
also denied him a meaningful chance to seek leave to answer the closing paper or
tender a materially narrower amendment before judgment.
Appellees argued that the seventy-eight-page response was itself the notice and
opportunity to be heard; that there is no right to file a surreply absent leave; and
16
that a motion for new trial "requires showing that the alleged error . . . probably
caused the rendition of an improper judgment" (RR 9–10).
The court closed by ruling that it would receive no evidence at all: "I think the
Court has discretion as to whether or not to entertain evidence at a Motion for New
Trial hearing. The Court finds that the Plaintiff has sufficiently briefed everything
that's necessary to support his argument here today . . . that there's no factual
evidence that would bolster or be germane to the Motion for New Trial. It's a
procedural issue. . . . And the Court finds that evidence is — is not necessary and
will not entertain evidence" (RR 12–13). No witness was sworn and no exhibit was
admitted; the reporter's certificate reflects that the volume contains all proceedings
requested (RR 14).
The court denied the motion by written order signed May 27, 2026, giving four
numbered grounds (CR 435–36). The certificate of service on that order reports the
transmission to Appellant — again at the truncated address — as ERROR (CR
437). Appellant filed his notice of appeal on June 24, 2026 (CR 438–41).
SUMMARY OF THE ARGUMENT
This appeal does not claim a right to oral argument in the trial court or an
automatic right to file a surreply. Appellant received Appellees' original plea, filed
a substantial response, and anticipated several defenses. The narrower error is that
17
he did not receive the paper-submission notices, the proposed judgment, or
Appellees' closing reply applying those defenses and futility to the live petition.
The ordinary rules supply the starting point. Rule 305 unquestionably required
service of the proposed judgment, and Rules 21(a) and 21a governed the filed
reply. Rule 21(b) presents an additional but unsettled question because it
incorporates Rule 21d's definition of a court proceeding as an "appearance before
the court," while the March 19 setting was expressly by submission without oral
hearing. Tex. R. Civ. P. 21(b), 21d(a). Appellant therefore does not claim a square
holding that Rule 21(b) itself covers this paper-only setting. The submission notice
nevertheless mattered because it identified when the paper record would close.
CR 200, 203, and 216 report ERROR to an address that is not Appellant's; the
reply went to that same wrong address; and the trial court acknowledged
nonreceipt (RR 7–8). Rule 21a(b)(3)'s completion-on-transmission provision does
not make a wrong address the address "of the party" under Rule 21a(a)(1). Rule
21a(e), however, is discretionary: upon proof of nonreceipt, the court may grant
relief it deems just. The claim is not that subsection (e) mandates a new trial, but
that the acknowledged failure, Rule 305's command, cure, and material harm had
to be evaluated under the correct framework.
The May 21 proceeding did not recreate the omitted opportunity. Texas Sting, Ltd.
v. R.B. Foods, Inc., 82 S.W.3d 644, 648–50 (Tex. App.—San Antonio 2002, pet.
18
denied), recognizes that a full post-dismissal hearing while plenary power remains
can cure missing predismissal notice. Here the court refused all evidence (RR 7, 12
–13), did not reopen the plea submission, and later stated that a surreply would not
have been considered (CR 435–36). Union Carbide Corp. v. Moye, 798 S.W.2d
792, 793–94 (Tex. 1990), is not factually identical, but confirms that a last-minute
switch to a paper record cannot deprive a party of a reasonable opportunity to
supplement what the court will decide.
The default and summary-judgment notice cases are also not identical. They
supply a principle and close paper-disposition analogies, not an automatic result:
an appearing party is entitled to notice of a dispositive setting, LBL Oil Co. v.
International Power Services, Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per
curiam); a wrong electronic address does not establish service, Cruz v. Sanchez,
528 S.W.3d 104, 110–14 (Tex. App.—El Paso 2017, no pet.); and due-process
notice principles extend to a default no-evidence summary judgment, Limestone
Construction, Inc. v. Summit Commercial Industrial Properties, Inc., 143 S.W.3d
538, 543–45 (Tex. App.—Austin 2004, no pet.).
Ordinary harm is the safer route. Bass's March 3 response already presented the
statutory theory and anticipated several defenses (CR 121–44). The unseen reply
did not originate those subjects; it sharpened Appellees' application of them to the
live pleading and asserted futility (CR 205–10). The order says the court
19
considered that reply (CR 214). The record therefore permits a finding of probable
harm from closing the paper record before Bass could seek leave to answer that
formulation or tender a materially narrower amendment. Tex. R. App. P. 44.1(a)
(1).
On jurisdiction, candor requires confronting both prayers. The Fourth Amended
Petition sought court-managed implementation details (CR 115–16), and the
postjudgment proposed Fifth Amended Petition remained overbroad (CR 304, 366
–89, 386–88). Bass does not seek appellate approval of either prayer. He seeks, at
most, one opportunity to identify the proper official and request only prospective
performance of the written-disposition step assigned in HSC OP 77.13, leaving
procedure, timing, record accuracy, and the substantive result to TTUHSC (CR
154–55). Matzen v. McLane, 659 S.W.3d 381, 396 & n.18 (Tex. 2021), makes the
amendment history a serious obstacle. The exact one-step formulation was not in
the tendered Fifth; Bass's answer is that it is a reduction of the same pleaded
statutory transaction, not a new claim, and that the live defects were sharpened
only in the unreceived closing reply.
The Court should reverse and remand for a noticed adjudication of the plea or,
alternatively, permit that single materially narrower amendment.
20
ARGUMENT
I. The failed service of the reply and proposed judgment violated Rules 21, 21a,
and 305; the missing submission notice independently bears on due process and
harm.
Standard of review. A trial court's ruling on a motion for new trial is reviewed for
abuse of discretion, which means discretion exercised with reference to guiding
rules and principles. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
Whether the court applied the governing rules correctly is a legal component of
that review.
A. The filed reply and proposed judgment were subject to direct service
duties; Rule 21(b)'s application to the paper-only setting is uncertain. Rule
21(a) requires service of a filed pleading, plea, motion, or application to the court
for an order, and Rule 21a supplies the method. Those provisions governed
Appellees' filed reply in support of their plea. Rule 305 addresses the exact
document that became the judgment:
"Each party who submits a proposed judgment for signature shall
serve the proposed judgment on all other parties to the suit who have
appeared and remain in the case, in accordance with Rule 21a."
Tex. R. Civ. P. 305. The rule cautions that noncompliance does not alter the
appellate timetable; Appellant does not claim otherwise. But that limitation does
not erase the mandatory word "shall" or the right to service before signature.
Rule 21a supplies the method. An electronically filed document must be served
through the electronic filing manager if "the email address of the party or attorney
21
to be served is on file." Tex. R. Civ. P. 21a(a)(1). Electronic service is complete
upon transmission to the serving party's provider, id. 21a(b)(3), while subsection
(e) preserves proof that the document was not received and authorizes the court,
"upon so finding," to grant relief it deems just.
Rule 21(b) separately requires advance service of notice of a "court proceeding, as
defined in Rule 21d(a)." Rule 21d(a) defines a court proceeding as "an appearance
before the court, such as a hearing or trial." The March 19 setting was expressly by
submission without oral hearing, and no one appeared. Appellant has found no
square holding that Rule 21(b) covers that paper-only event and does not ask the
Court to assume one. If the setting qualifies, the three-day command applies. If it
does not, the absence of notice still matters under the paper-disposition authorities
because Bass otherwise did not know when the record would close.
B. The record establishes failed service and nonreceipt. Appellant's correct
email appears on his filed papers and CR 1. The challenged automated certificates
instead use kbassphiladelphi@gmail.com. The contrast is visible within a single
filing: on the notice of submission, counsel's typed certificate of service lists the
correct kbassphiladelphia@gmail.com (CR 199), while the automated certificate
for the same document reports ERROR at the truncated address (CR 200). The
automated certificates likewise report ERROR for the amended notice and the
proposed order (CR 203, 216). The reply's certificate reports SENT, but the listed
22
destination is still the truncated address, not Appellant's (CR 213). The trial judge
acknowledged the resulting nonreceipt:
"What you didn't get, because of the email address issue, you didn't
get the notice of the hearing on the plea, which was by submission,
not oral argument. You didn't get the proposed order granting the plea.
You didn't get the Defendants' reply to your response to the plea."
(RR 7.) The court then identified the second submission notice as another
document Appellant did not receive (RR 8). This is not an inference from a
certificate alone.
Cruz v. Sanchez is the closest confirmed electronic-service authority. It holds that a
movant did not establish service when he attempted service at an incorrect email
address and could not show actual or constructive notice. 528 S.W.3d 104, 110–14
(Tex. App.—El Paso 2017, no pet.). Cruz involved parties who did not receive the
summary-judgment motion at all, while Appellant received the original plea here.
That difference affects remedy and harm; it does not make service to a wrong
address proper. Rule 21a(a)(1) refers to the address "of the party," and Cruz treats
receipt as an element of service. Id. at 111–12.
Rule 21a(b)(3) does not change that conclusion. It fixes the time at which properly
directed electronic service is complete. Reading it to make any transmission
service on anyone—regardless of destination—would sever subsection (b)(3) from
subsection (a)(1)'s addressee requirement and subsection (e)'s express treatment of
nonreceipt. At minimum, the ERROR certificates, the unbroken pattern of ERROR
23
entries surrounding the reply's lone SENT notation (CR 119, 197, 200, 203, 216,
274), and the trial court's own recital rebut any prima facie showing of receipt. See
Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (the Rule 21a presumption
vanishes upon contrary proof); Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.
2005) (per curiam) ("we cannot presume that notice was properly sent").
C. Rule 21a(e) is discretionary, but the discretion must address the right
question. Appellant does not contend that Rule 21a(e)'s word "may" means
"must," that subsection (e) compels a finding whenever proof is tendered, or that it
automatically requires a new trial. It permits a just remedy after nonreceipt is
found. The relevant complaint is that the court acknowledged nonreceipt but did
not analyze the failed service of the reply under Rules 21(a) and 21a, Rule 305's
direct command, the missing submission setting, and material harm together.
The separate Rule 306a ruling was correct. Appellant learned of the signed order
within twenty days, so Rule 306a(4) did not restart any deadline; the trial court
expressly limited its irrelevance finding to "purposes of the 306a motion" (RR 5).
But a correct ruling about the postjudgment clock did not resolve the separate newtrial complaint concerning service before judgment. The May 27 order did address
that complaint through four grounds (CR 435–36). Those grounds, rather than Rule
306a alone, must be tested against the service rules, cure, and harm.
24
D. The complaint was preserved in substance. The sworn motion did not cite
Rule 305 by number. It did, however, identify the unreceived proposed order,
allege the defective Rule 21a service mechanism, explain the lost chance to object,
and request that the March 26 judgment be vacated and a new trial granted (CR
218–27). At the hearing Appellant again identified the proposed order, said he
would have objected to form and substance, and requested evidence and new-trial
relief (RR 6–9). Thus the factual complaint and requested ruling were presented;
Rule 305 supplies the governing law for that preserved complaint. Tex. R. App. P.
33.1(a).
E. The record permits a finding of probable harm without pretending the
reply introduced wholly new subjects. Appellant does not base harm on a
supposed absolute right to oral argument or a surreply. The original plea preceded
the Fourth Amended Petition and did not analyze its § 559.004/OP 77.13 theory
(CR 43–102). But Bass's March 3 response had already presented the statutory
theory and anticipated several defenses, including discretion, internal-policy status,
academic deference, access, ripeness, proper officials, and leave to amend (CR 121
–44). The unseen reply did not originate those subjects. It was nevertheless
Appellees' first focused application of them to the live pleading:
1. the words "reasonable" and "unduly burden" preserve discretion (CR 205–
07);
25
2. OP 77.13 is internal policy, not enabling law (CR 207);
3. administration of academic records warrants deference (CR 208);
4. the access already offered defeated the pleaded ripeness and burden
theory (CR 208–09); and
5. further amendment would be futile (CR 210).
The order granting the plea says the court considered Appellees' reply (CR 214).
Appellant's postjudgment papers supplied the answers he would have sought leave
to present before submission: the statute itself is the external legal limit; the claim
concerns a correction procedure rather than an academic merits decision; and the
live petition alleges specific unperformed procedural steps despite the access
sessions (CR 299–304). They also tendered an amendment, but its continuing
breadth is a weakness, not something to hide (CR 304, 366–89, 386–88). The court
later declared that no surreply "was necessary and would not have been
considered" (CR 436). That statement confirms that the court did not reopen the
prejudgment submission to receive a focused answer or consider leave for a
narrower cure.
Rule 44.1(a)(1) asks whether the error probably caused an improper judgment, not
whether Appellant can prove in advance that the answer would prevail. On a plea
decided from competing papers, the combination of a material closing reply, the
order's express consideration of it, and the lost chance to seek leave to address
26
futility supports a finding that the error probably affected the decision. The
proposed-judgment violation is cumulative: the record identifies no particular
wording objection that by itself probably changed the jurisdictional result. It
corroborates the exclusion but is not an independent shortcut around Rule 44.1.
The March 3 warning does not disappear from the analysis. Appellant
acknowledged that two automated notices on that date displayed the truncated
contact, though he did not understand that the e-service profile was wrong (CR
294). A factfinder could weigh that warning against diligence. It is not actual
notice of the later documents, and it does not negate that Appellees' counsel
possessed the correct address (CR 294, 299, 313–90) or that the later certificates
themselves show failure. Nor did the warning stand uncorrected: Appellant's April
14 notice of correction identified the truncated entry and stated that his own
eFileTexas profile had at all relevant times reflected the correct address (CR 284–
87), yet the automated certificates continued to report ERROR at the truncated
address — including on the May 27 order denying relief (CR 434, 437). The
absence of findings on intentional evasion or fault makes categorical blame
inappropriate. And even where a party bears a duty to keep an address current,
"unless noncompliance was intentional rather than a mistake, due process requires
some lesser sanction than trial without notice or an opportunity to be heard."
Mathis, 166 S.W.3d at 746.
27
II. The May 21 proceeding did not cure the earlier exclusion because it did not
recreate the lost opportunity.
Appellees' strongest answer is cure. Texas Sting, Ltd. v. R.B. Foods, Inc. held that a
post-dismissal hearing while the court retained plenary power remedied lack of
notice of a dismissal setting. 82 S.W.3d 644, 648–50 (Tex. App.—San Antonio
2002, pet. denied). The post-dismissal hearing there gave the plaintiffs the same
opportunity and burden they would have had before dismissal: to present evidence
of diligent prosecution and good cause. Id. at 648–50. That authority must be
confronted, not ignored.
Union Carbide Corp. v. Moye illustrates the fair-opportunity principle outside the
default setting. The trial court led a party to expect a live evidentiary hearing, then
on the hearing date switched to decision on a written record and denied a
continuance to supplement it. The Supreme Court held that the party had not
received a reasonable opportunity to develop the record. 798 S.W.2d 792, 793–94
(Tex. 1990). The differences matter: the court itself created the expectation there,
the governing venue rule expressly supplied a discovery right, and Bass had
already filed a seventy-eight-page response. Union Carbide therefore does not
dictate reversal. It does show that calling a proceeding a "hearing" is not curative if
the party lacks a reasonable chance to supply the material the court will decide.
The May 21 proceeding was materially different from the curative hearing in Texas
Sting. Appellant requested that the court admit his exhibits and hear testimony on
28
disputed matters including the service contact, fault, diligence, and the practical
opportunity lost (RR 7). The court refused: "there's no factual evidence that would
bolster or be germane," and it would "not entertain evidence" (RR 12–13). The
sworn papers already documented much of nonreceipt, so Appellant does not claim
every issue required live proof. But to the extent the court or Appellees relied on
what Appellant should have corrected—an issue the judge recognized at RR 5—
the requested factual opportunity was not supplied.
Nor did the court reopen the plea submission. The written order says Appellant had
been "heard" through his March 3 response, that a surreply would not have been
considered, and that inability to object to the proposed order did not warrant a new
trial (CR 435–36). The order states that Appellant's reply was considered, but it
does not explain whether the statutory answers or tendered amendment could cure
the jurisdictional defects; it instead concludes that a prejudgment surreply would
not have been considered (CR 435–36). That did not recreate the omitted chance to
seek leave before the record closed.
Hensley v. Salinas provides supporting context when a properly requested newtrial hearing presents a material factual question and facts that, if true, would
entitle the movant to relief. 583 S.W.2d 617, 618–19 (Tex. 1979) (per curiam).
Appellant requested evidence in writing (CR 391–96), renewed the request in a
written reply (CR 406–14), and asked again in open court (RR 7). But no witness
29
was sworn, no exhibit was marked and rejected, and no formal offer of proof
itemized the proposed testimony. That preservation gap makes Hensley a weak
stand-alone route to reversal. The refusal is stronger as part of the cure analysis:
unlike Texas Sting, the later proceeding neither reopened the plea record nor
supplied the process Bass says he lost.
III. The no-notice authorities support relief by close analogy, and ordinary harm
is independently shown.
Standard of review. Constitutional questions are reviewed de novo. State v.
Hodges, 92 S.W.3d 489, 494 (Tex. 2002).
A. Due process protects the pending cause of action and a meaningful
opportunity to be heard. A cause of action is a species of property protected by
the Fourteenth Amendment, and civil litigants may not be denied established
adjudicatory procedures without constitutionally adequate notice and opportunity.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428–30 (1982). At minimum,
adjudicatory deprivation must be preceded by notice and an opportunity
"appropriate to the nature of the case." Id. at 428 (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). That identifies the
protected interest missing from a bare invocation of Peralta.
Texas applies the principle to dispositive settings. "Once a defendant has made an
appearance in a cause, he is entitled to notice of the trial setting as a matter of due
process." LBL Oil Co. v. International Power Services, Inc., 777 S.W.2d 390, 390–
30
91 (Tex. 1989) (per curiam). In a post-answer-default case, the Texas Supreme
Court later used the broader formulation "trial setting or dispositive hearing."
Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012). The
March 26 order disposing of the case on the papers was the dispositive event here,
but Mabon itself was still a default case. In a paper-disposition setting, the Austin
Court extended the no-notice principle to a default no-evidence summary judgment
where an affidavit established that the nonmovant received neither the motion nor
hearing notice. Limestone Construction, Inc. v. Summit Commercial Industrial
Properties, Inc., 143 S.W.3d 538, 543–45 (Tex. App.—Austin 2004, no pet.).
Etheredge v. Hidden Valley Airpark Ass'n likewise held that proper notice of a
summary-judgment hearing is a prerequisite to judgment and reversed when actual
and constructive notice were absent. 169 S.W.3d 378, 381–84 (Tex. App.—Fort
Worth 2005, pet. denied).
B. The analogy is close but not exact. Peralta, LBL Oil, Mabon, Limestone, and
Etheredge concern defaults or parties who did not receive the dispositive motion.
Appellant did receive the original plea and filed a seventy-eight-page response.
That distinction means the cases do not mechanically command automatic reversal
here, and Appellant does not present the extension as settled.
The analogy remains substantial because the live target changed after the original
plea. Appellant filed the Fourth Amended Petition and response on March 3 (CR
31
103–97). The original February 9 plea did not address the statute and policy on
which the live pleading relied (CR 43–102). Bass's response anticipated defenses,
but Appellees then set the matter for dispositive submission, filed their first
focused application of those defenses and futility to the live statutory theory, and
submitted a proposed judgment (CR 198–216). Appellant received none of those
items (RR 7–8). In a paper proceeding, notice of when the record closes and
service of the material closing paper are the practical means of being heard "at a
meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545,
552 (1965).
The court's four written grounds do not eliminate that distinction:
1. The March 3 response meant Appellant was heard on the then-existing
papers and anticipated several defenses, but it did not answer Appellees' later
application of those defenses and futility to the live pleading (CR 121–44, 205–10,
214, 435).
2. Appellant does not challenge the court's discretion to use submission
rather than oral argument; he challenges lack of notice of the submission
proceeding (CR 435–36).
3. The statement that no surreply was necessary and would not have been
considered confirms that the court assessed the lost paper retrospectively rather
than offering leave to answer (CR 436).
32
4. The statement that inability to object to the proposed order warranted no
relief does not address Rule 305's service command or the combined harm (CR
436).
C. Appellant does not rely exclusively on categorical structural error. In true
no-notice defaults, Peralta rejects a requirement to prove a meritorious defense: it
is no answer that due process might have produced the same result. 485 U.S. 80, 86
–87 (1988). Mathis applies that rule when a defaulted party lacked notice of trial.
166 S.W.3d at 744. If this Court holds that exclusion from the dispositive
submission here is constitutionally equivalent, that rule supports reversal without a
separate merits showing.
But the Court need not take that step. The comparison of Bass's anticipatory
response at CR 121–44, Appellees' application of those issues and futility at CR
205–10, and Bass's postjudgment answer and attempted amendment at CR 299–
304 permits a probable-harm finding under Rule 44.1(a)(1). The reply was
material, the order says it was considered, and Bass lost a timely chance to seek
leave to answer its formulation or propose a narrower cure. This ordinary-error
route respects the factual distinction from the default cases and avoids making
constitutional harmlessness the sole path to relief.
33
IV. If the Court reaches jurisdiction, the proper relief is one opportunity to plead
a materially narrower official-duty claim.
Standard of review. Subject-matter jurisdiction is reviewed de novo. When a plea
challenges the pleadings, the court construes them liberally in the pleader's favor
and looks to the pleader's intent. Texas Department of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). If the pleadings affirmatively
negate jurisdiction, dismissal without amendment is proper; if the defect is curable,
the plaintiff should be afforded an opportunity to amend. Id. at 227.
A. The statute supplies an external legal limit. Section 559.004 provides:
"Each state governmental body shall establish a reasonable procedure
under which an individual is entitled to have the state governmental
body correct information about the individual that is possessed by the
state governmental body and that is incorrect. The procedure may not
unduly burden an individual using the procedure."
Tex. Gov't Code § 559.004. The provision plainly leaves judgment in what is
"reasonable" and what constitutes an undue burden. The existence of some
judgment, however, does not automatically foreclose an ultra vires claim. An
officer with limited discretion may act without legal authority by exceeding the
bounds of the governing law or acting in conflict with it. Houston Belt & Terminal
Railway Co. v. City of Houston, 487 S.W.3d 154, 158, 163–64 (Tex. 2016). Ultra
vires jurisdiction is absent when the law grants absolute discretion or when the
claim merely challenges a lawful discretionary choice. Id. at 163–64; City of El
Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
34
Hall v. McRaven supplies the limiting comparison. There, a Regents' Rule gave the
UT Chancellor an otherwise unconstrained duty to determine whether FERPA
restricted a regent's access, so his legal interpretation remained within his authority
even if erroneous. 508 S.W.3d 232, 241–43 (Tex. 2017). Section 559.004 is
different as pleaded: it is not collateral law that an official has unlimited authority
to interpret; it directly requires a reasonable procedure that "may not unduly
burden" its user. But that statutory boundary runs to the governmental body,
making identification of the responsible official a real issue rather than a detail the
Court may assume.
The strongest version of Appellant's claim therefore rests on § 559.004 itself, not
on treating OP 77.13 as independent "enabling law." The policy is evidence of the
procedure TTUHSC chose to establish and the roles it assigned; an internal policy
alone cannot enlarge statutory jurisdiction. The external constraint is the statute's
command that the established correction procedure be reasonable and not unduly
burdensome.
B. Both tendered prayers were overbroad, and the proper-official problem is
real. The Fourth Amended Petition alleges that McSween had a role in transcriptrelated inspection logistics and that D'Agostino had the policy's assistance role
when a student is uncertain which office maintains records (CR 103–04). It alleges
four escorted review days for roughly 1,600 items and a fourteen-hour video,
35
restrictions that prevented meaningful documentation, identified records not
produced, and no written disposition of the Step-2 request (CR 107–13). It
disclaims an order deciding whether the transcript notation is accurate (CR 105,
112–13).
But the statute imposes its express duty on the governmental body, so the pleading
must connect the requested act to a proper official. The January 26 Step-2 request
went to Dr. Erin Justyna, not either Appellee, although both were copied (CR 109).
The Fourth Amended Petition sought court-set deadlines, scheduling, organization,
pagination, an inventory, tolling, preservation, and a compliance notice (CR 115–
16). The proposed Fifth Amended Petition tendered after judgment still sought
sessions and deadlines, organized and paginated presentation, an inventory, tolling,
preservation and logging, and a compliance notice (CR 304, 366–89, 386–88).
Those terms invite the conclusion that the suit asks a court to administer
discretionary operations. Appellant does not defend them here.
C. The proposed cure is one proper official, one written-disposition step, and
no court-managed operations. HSC OP 77.13—the procedure TTUHSC chose—
assigns a concrete role after a student submits a written amendment request. The
Executive Vice President for Academic Affairs or designee must request a written
statement from the records custodian and then "will provide written notification to
36
the Student whether or not TTUHSC will implement the change"; if TTUHSC will
not do so, the student is notified of the right to a hearing (CR 154–55).
A materially narrower amendment would identify the EVPAA or designee who
received or is responsible for the January 26 request—substituting or adding the
correct official if neither present Appellee holds that role—and seek only
prospective provision of that written disposition and any associated notice of a
hearing right. It would leave record accuracy, the result of the request, format,
timing, scheduling, access logistics, and record management to TTUHSC. OP
77.13 would identify the procedure and responsible role TTUHSC selected; it
would not be pleaded as independent enabling law. The external constraint would
remain § 559.004.
This is a proposed cure, not proof that the current pleading already establishes
jurisdiction. Miranda permits dismissal without amendment if the pleadings
affirmatively negate jurisdiction; otherwise a curable pleading defect ordinarily
warrants an opportunity to amend. 133 S.W.3d at 227. The question is whether the
one-step official-duty theory is legally impossible, not whether the broader prayers
should survive.
D. The amendment history is the strongest jurisdictional obstacle. This Court
remanded where missing jurisdictional allegations did not foreclose the possibility
that the plaintiff could plead them. Texas A&M University Department of
37
Transportation, Parking Services Department v. Reeves, No. 15-24-00069-CV, slip
op. at 11–12 (Tex. App.—15th Dist. Jan. 30, 2025, no pet.) (mem. op.). It affirmed
dismissal with prejudice where a plaintiff had notice of the defect for several
months and amended immediately before the hearing without curing it. Sharma v.
Texas Tech University Health Sciences Center El Paso, No. 15-25-00007-CV, slip
op. at 4 (Tex. App.—15th Dist. Apr. 24, 2025) (mem. op.). Fraley likewise denied
another amendment after four petitions, an amendment responding to the plea,
twenty-two months, and extensive discovery. Fraley v. Texas A&M University
System, 664 S.W.3d 91, 101–02 (Tex. 2023).
Matzen v. McLane is more direct still. Although Matzen did not request remand,
the Court said it would have denied that relief because he had already repleaded
three times to no avail and his briefing advanced no viable theory. 659 S.W.3d
381, 396 & n.18 (Tex. 2021). Bass amended four times and then tendered a
proposed fifth amendment whose prayer remained broad. That history may
persuade this Court that another chance would serve no purpose.
The narrower answer is procedural and specific. Bass filed the Fourth Amended
Petition the same day as his response to a plea directed at an earlier pleading.
Appellees' application of futility to the live theory arrived in an unreceived reply
one day before submission (CR 103–10, 198–210). The exact one-step formulation
was not in the postjudgment proposed Fifth, which strengthens Appellees' Matzen
38
argument. But the amendment now described does not depend on new historical
facts; it strips the pleaded remedy down to one proper official, one writtendisposition step, and prospective compliance only. If the Court concludes even that
claim is legally impossible—or that the prior amendments already supplied a
reasonable opportunity—Matzen supports affirmance. If it is potentially viable and
no reasonable opportunity to plead it followed Appellees' live-pleading futility
argument, Miranda supports one remand, not serial amendment.
PRAYER
For these reasons, Appellant Kevin N. Bass respectfully prays that this Court:
1. Reverse the trial court's May 27, 2026 order denying Appellant's motion
for new trial and the March 26, 2026 dismissal order;
2. Remand for a noticed adjudication of the plea in which Appellant has a
reasonable opportunity to seek leave to answer the material reply grounds;
3. Alternatively, remand once under Miranda to permit a materially
narrower amendment identifying the proper official and seeking only prospective
performance of the written-disposition step, with operational details and the
substantive result left to TTUHSC; and
4. Grant Appellant all other relief to which he may be justly entitled.
Respectfully submitted,
/s/ Kevin N. Bass
39
KEVIN N. BASS
Appellant pro se
(512) 333-4092
kbassphiladelphia@gmail.com
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the typeface and length requirements of
Tex. R. App. P. 9.4. Relying on the word count of the computer program used to
prepare it, this document contains 7,370 words, excluding the portions excepted by
Rule 9.4(i)(1). It is printed in a conventional 14-point typeface, with footnotes in
no smaller than 12-point typeface.
/s/ Kevin N. Bass
KEVIN N. BASS
CERTIFICATE OF SERVICE
I certify that on August 24, 2026, a true and correct copy of this Appellant's Brief
was served on counsel for Appellees through the electronic filing manager and by
electronic mail:
Scott D. Smith
Assistant Attorney General, General Litigation Division
40
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
scott.smith@oag.texas.gov
/s/ Kevin N. Bass
KEVIN N. BASS
APPENDIX
Tab A — Order on Defendants' Plea to the Jurisdiction, signed March 26, 2026
(CR 214–15), reproduced from the record so the strike-through of the alternative
plea-in-abatement paragraph is visible
Tab B — Order Denying Plaintiff's Sworn Motion Under Rule 306a(5) and Motion
for New Trial, signed May 27, 2026 (CR 435–36)
Tab C — Tex. Gov't Code § 559.004
Tab D — Tex. R. Civ. P. 21, 21a, 21d, 305, 306a, and 329b; Tex. R. App. P. 33.1
and 44.1
Tab E — U.S. Const. amend. XIV, § 1
Tab F — Excerpts from the Reporter's Record of the May 21, 2026 hearing (RR 4–
5, 7–9, 12–13)
Tab G — TTUHSC HSC OP 77.13 (Student Education Records) (CR 149–57)
Tab H — Appellees' reply addressing the live statutory theory (CR 204–10)
41
Tab I — Appellant's postjudgment answers to the reply grounds (CR 299–304)
Tab J — Service certificates for the submission notices, reply, proposed order, and
new-trial order (CR 200, 203, 213, 216, 437)
Tab K — Clerk's Rule 306a(3) Notice of Judgment, April 2, 2026 (CR 217)
42
APPENDIX TAB A
Order on Defendants' Plea to the Jurisdiction
Signed March 26, 2026 — CR 214–15. Reproduced from the clerk's record so the
visible strike-through on CR 214 is preserved.
No. 15-26-00132-CV
Filed 3/26/2026 3:49 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.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
TB
IN THE DISTRICT COURT
OF LUBBOCK COUNTY, TEXAS
237th JUDICIAL DISTRICT
ORDER ON DEFENDANTS’ PLEA TO THE JURISDICTION OR,
IN THE ALTERNATIVE, PLEA IN ABATEMENT
On this day the Court considered Defendants’ Plea to the Jurisdiction or, in the Alternative,
Plea in Abatement (the “Motion”). The Court, having considered the Motion, Plaintiff’s response,
Defendants’ reply, the pleadings on file, and the applicable law, finds that the Motion should be
GRANTED.
IT IS THEREFORE ORDERED that Defendants’ Plea to the Jurisdiction is GRANTED.
The Court finds that it lacks subject-matter jurisdiction over Plaintiff’s claims. Accordingly,
Plaintiff’s claims are DISMISSED without prejudice.
IT IS FURTHER ORDERED that, in the alternative, Defendants’ Plea in Abatement is
GRANTED. Accordingly, all proceedings in this case are ABATED pending final disposition of
the parallel civil action in the U.S. District Court for the Northern District of Texas styled Kevin
N. Bass v. Texas Tech University Health Sciences Center, et al., Civil Action No. 5:25-cv-00244H-BV (the “federal action”). The parties shall notify the Court within fourteen (14) days after the
federal action has been finally disposed.
214
March 26
SIGNED on ___________________,
2026
______________________________
HONORABLE LES HATCH
2
215
APPENDIX TAB B
Order Denying Sworn Rule 306a(5) Motion and Motion for New
Trial
Signed May 27, 2026 — CR 435–36. These pages are scans in the clerk's
record.
No. 15-26-00132-CV
Lubbock County - 237th District Court
TB
CAUSE NO. DC-2025-CV-1817
§
Filed
Filed 5/27/2026
5/27/2026 2:23
2:23 PM
PM
Sara
Sara L.
L. Smith
Smith
§
Lubbock County 237th District Court
Lubbock
County, Texas
Texas
Lubbock County,
TB
KEVIN N. BASS,
§
IN THE DISTRICT COURT
§
Plaintiff,
§
§
§
vs.
OF LUBBOCK COUNTY, TEXAS
§
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.
§
237th JUDICIAL DISTRICT
ORDER DENYING PLAINTIFF·S SWORN MOTION UNDER RULE 306a(5) AND
MOTION FOR NEW TRIAL
On May 21, 2026, the Court considered Plaintiff·s Sworn Motion Under Rule 306a(5)
and Motion for New Trial Under Rule 329b (the ·Motion·), Defendants· Response,
Plaintiff·s Reply, the pleadings on file, oral argument, and the applicable law.
As to Plaintiff·s 306a(5) Motion, the Court finds it inapplicable as the Plaintiff had
notice of the Order on Defendants· Plea to the Jurisdiction within 20 days of the Court signing
same.
As to Plaintiff·s Motion for New Trial, the Court finds that Plaintiff failed to establish
entitlement to the relief requested in the Motion and further failed to demonstrate grounds
warranting a new trial under Rule 329b. First, Plaintiff was ·heard· on Defendants· Plea to the
Jurisdiction by way of his Response to same filed March 3, 2026, which the Court considered.
Second, it was within the Court·s discretion to consider Defendants· Plea to the Jurisdiction by
435
435
submission as the Plea was based solely on uncontroverted pleadings and facts--Plaintiff's claim
that he was deprived of oral argument on same does not entitle him to a new trial. Third, no surreply to Defendants' Reply to Plaintiff's Response to Plea in Abatement was necessary and would
not have been considered by the Court. Fourth, Plaintiff is not entitled to a new trial based on his
inability to object to Defendants' proposed order granting the Plea to the Jurisdiction.
IT IS THEREFORE ORDERED that Plaintiff's Sworn Motion Under Rule 306a(5)
and Motion for New Trial Under Rule 329b is DENIED in its entirety.
IT IS FURTHER ORDERED that all relief requested in the Motion and not expressly
granted herein is DENIED.
IT IS SO ORDERED.
SIGNED this 27th day of May, 2026.
JUDGE PRESIDING
436
436
APPENDIX TAB C
Texas Government Code § 559.004
No. 15-26-00132-CV
TEXAS GOVERNMENT CODE § 559.004
Sec. 559.004. RIGHT TO CORRECTION OF INCORRECT INFORMATION.
Each state governmental body shall establish a reasonable procedure under which an
individual is entitled to have the state governmental body correct information about the
individual that is possessed by the state governmental body and that is incorrect. The
procedure may not unduly burden an individual using the procedure.
Added by Acts 2001, 77th Leg., ch. 1059, Sec. 1, eff. Sept. 1, 2001.
Texas Legislature Online, Government Code ch. 559 (current through 89th Leg., 2d C.S., 2025)
APPENDIX TAB D
Rules Relied On
Texas Rules of Civil Procedure 21, 21a, 21d, 305, 306a, and 329b; Texas
Rules of Appellate Procedure 33.1 and 44.1.
No. 15-26-00132-CV
RULE 20. MINUTES READ AND SIGNED
On the last day of the session, the minutes shall be read, corrected and signed in open court by the
judge. Each special judge shall sign the minutes of such proceedings as were had by him.
RULE 21. FILING AND SERVING PLEADINGS AND MOTIONS
(a)
Filing and Service Required. Every pleading, plea, motion, or application to the court for
an order, whether in the form of a motion, plea, or other form of request, unless presented
during a hearing or trial, must be filed with the clerk of the court in writing, must state the
grounds therefor, must set forth the relief or order sought, and at the same time a true copy
must be served on all other parties, and must be noted on the docket.
(b)
Service of Notice of Court Proceeding. An application to the court for an order and notice
of any court proceeding, as defined in Rule 21d(a), not presented during a court proceeding,
must be served upon all other parties not less than three days before the time specified for
the court proceeding, unless otherwise provided by these rules or shortened by the court.
Notice of any court proceeding must contain the information needed for participants, as
defined in Rule 21d(a), to participate in the proceeding, including the location of the
proceeding or instructions for joining the proceeding electronically, the court’s designated
contact information, and instructions for submitting evidence. A court must publish the
information needed for participants to participate in its proceedings.
(c)
Multiple Parties. If there is more than one other party represented by different attorneys,
one copy of each pleading must be served on each attorney in charge.
(d)
Certificate of Service. The party or attorney of record, must certify to the court
compliance with this rule in writing over signature on the filed pleading, plea, motion, or
application.
(e)
Additional Copies. After one copy is served on a party, that party may obtain another
copy of the same pleading upon tendering reasonable payment for copying and delivering.
(f)
Electronic Filing.
(1)
Requirement. Except in juvenile cases under Title 3 of the Family Code and
truancy cases under Title 3A of the Family Code, attorneys must electronically file
documents in courts where electronic filing has been mandated. Attorneys
practicing in courts where electronic filing is available but not mandated and
unrepresented parties may electronically file documents, but it is not required.
(2)
Email Address. The email address of an attorney or unrepresented party who
electronically files a document must be included on the document.
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(3)
Mechanism. Electronic filing must be done through the electronic filing manager
established by the Office of Court Administration and an electronic filing service
provider certified by the Office of Court Administration.
(4)
Exceptions.
(A)
Wills are not required to be filed electronically.
(B)
The following documents must not be filed electronically:
(C)
(5)
(i)
documents filed under seal or presented to the court in camera; and
(ii)
documents to which access is otherwise restricted by law or court
order.
For good cause, a court may permit a party to file other documents in paper
form in a particular case.
Timely Filing. Unless a document must be filed by a certain time of day, a
document is considered timely filed if it is electronically filed at any time before
midnight (in the court’s time zone) on the filing deadline. An electronically filed
document is deemed filed when transmitted to the filing party’s electronic filing
service provider, except:
(A)
if a document is transmitted on a Saturday, Sunday, or legal holiday, it is
deemed filed on the next day that is not a Saturday, Sunday, or legal holiday;
and
(B)
if a document requires a motion and an order allowing its filing, the
document is deemed filed on the date that the motion is granted.
(6)
Technical Failure. If a document is untimely due to a technical failure or a system
outage, the filing party may seek appropriate relief from the court. If the missed
deadline is one imposed by these rules, the filing party must be given a reasonable
extension of time to complete the filing.
(7)
Electronic Signatures. A document that is electronically served, filed, or issued by
a court or clerk is considered signed if the document includes:
(A)
a “/s/” and name typed in the space where the signature would otherwise
appear, unless the document is notarized or sworn; or
(B)
an electronic image or scanned image of the signature.
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(8)
Format. An electronically filed document must:
(A)
be in text-searchable portable document format (PDF);
(B)
be directly converted to PDF rather than scanned, if possible;
(C)
not be locked; and
(D)
otherwise comply with the Technology Standards set by the Judicial
Committee on Information Technology and approved by the Supreme
Court.
(9)
Paper Copies. Unless required by local rule, a party need not file a paper copy of
an electronically filed document.
(10)
Electronic Orders, Notices, and Other Documents From the Court.
(A)
Except as provided in (B), the clerk must send orders, notices, and other
documents to the parties electronically through an electronic filing system
approved by the Supreme Court. A court seal may be electronic.
(B)
The clerk need not send orders, notices, or other documents electronically:
(i)
when sealed or when access is otherwise restricted by law or court
order; or
(ii)
when an unrepresented party has not provided an e-mail address.
(11)
Non-Conforming Documents. The clerk may not refuse to file a document that
fails to conform with this rule. But the clerk may identify the error to be corrected
and state a deadline for the party to resubmit the document in a conforming format.
(12)
Original Wills. When a party electronically files an application to probate a
document as an original will, the original will must be filed with the clerk within
three business days after the application is filed.
(13)
Official Record. The clerk may designate an electronically filed document or a
scanned paper document as the official court record. The clerk is not required to
keep both paper and electronic versions of the same document unless otherwise
required by local rule. But the clerk must retain an original will filed for probate in
a numbered file folder.
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Notes and Comments
Comment to 2013 Change: Rule 21 is revised to incorporate rules for electronic filing, in
accordance with the Supreme Court’s order - Misc. Docket No. 12-9206, amended by Misc.
Docket Nos. 13-9092 and 13-9164 - mandating electronic filing in civil cases beginning on January
1, 2014. The mandate will be implemented according to the schedule in the order and will be
completed by July 1, 2016. The revisions reflect the fact that the mandate will only apply to a
subset of Texas courts until that date.
Comment to 1990 change: To require filing and service of all pleadings and motions on all
parties and to consolidate notice and service Rules 21, 72 and 73.
Comment to 2023 changes: Rule 21(b) is amended to clarify requirements for notices. Rule
21(f)(10) is amended to implement section 80.002(b) of the Government Code. Clerks are
encouraged to coordinate and work with other court staff to effectuate this rule. Nothing in Rule
21(f)(10) prohibits the court from sending orders, notices, and documents to parties by additional
methods and the clerk is strongly encouraged to use additional methods when a party is
unrepresented. If a party has not provided an e-mail address and consequently compliance with
Rule 21(f)(10) is impossible, then the clerk should use an alternative method to send orders,
notices, and documents to that party.
RULE 21a. METHODS OF SERVICE
(a)
Methods of Service. Every notice required by these rules, and every pleading, plea,
motion, or other form of request required to be served under Rule 21, other than the citation
to be served upon the filing of a cause of action and except as otherwise expressly provided
in these rules, may be served by delivering a copy to the party to be served, or the party's
duly authorized agent or attorney of record in the manner specified below:
(1)
Documents Filed Electronically. A document filed electronically under Rule 21
must be served electronically through the electronic filing manager if the email
address of the party or attorney to be served is on file with the electronic filing
manager. If the email address of the party or attorney to be served is not on file
with the electronic filing manager, the document may be served on that party or
attorney under subparagraph (2).
(2)
Documents Not Filed Electronically. A document not filed electronically may be
served in person, by mail, by commercial delivery service, by fax, by email, or by
such other manner as the court in its discretion may direct.
Page 18
(b)
When Complete.
(1)
Service by mail or commercial delivery service shall be complete upon deposit of
the document, postpaid and properly addressed, in the mail or with a commercial
delivery service.
(2)
Service by fax is complete on receipt. Service completed after 5:00 p.m. local time
of the recipient shall be deemed served on the following day.
(3)
Electronic service is complete on transmission of the document to the serving
party's electronic filing service provider. The electronic filing manager will send
confirmation of service to the serving party.
(c)
Time for Action After Service. Whenever a party has the right or is required to do some
act within a prescribed period after the service of a notice or other paper upon him and the
notice or paper is served upon him by mail, three days shall be added to the prescribed
period.
(d)
Who May Serve. Notice may be served by a party to the suit, an attorney of record, a
sheriff or constable, or by any other person competent to testify.
(e)
Proof of Service. The party or attorney of record shall certify to the court compliance with
this rule in writing over signature and on the filed instrument. A certificate by a party or an
attorney of record, or the return of the officer, or the affidavit of any other person showing
service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall
preclude any party from offering proof that the document was not received, or, if service
was by mail, that the document was not received within three days from the date that it was
deposited in the mail, and upon so finding, the court may extend the time for taking the
action required of such party or grant such other relief as it deems just.
(f)
Procedures Cumulative. These provisions are cumulative of all other methods of service
prescribed by these rules.
Notes and Comments
Comment to 2013 Change: Rule 21a is revised to incorporate rules for electronic service
in accordance with the Supreme Court's order - Misc. Docket No. 12-9206, amended by Misc.
Docket Nos. 13-9092 and 13-9164 - mandating electronic filing in civil cases beginning on January
1, 2014.
Comment to 1990 change: To allow for service by current delivery means and
technologies.
2024 Comment: The Estates Code provides for other methods of service and citation, and
proof thereof, in estate and guardianship proceedings and governs those proceedings.
Page 19
(1)
designating the document as containing sensitive data when the document is
electronically filed; or
(2)
if the document is not electronically filed, by including, on the upper left- hand
side of the first page, the phrase: “NOTICE: THIS DOCUMENT CONTAINS
SENSITIVE DATA.”
(e)
Non-Conforming Documents. The clerk may not refuse to file a document that contains
sensitive data in violation of this rule. But the clerk may identify the error to be corrected
and state a deadline for the party to resubmit a redacted, substitute document.
(f)
Restriction on Remote Access. Documents that contain sensitive data in violation of this
rule must not be posted on the Internet.
Notes and Comments
Comment to 2013 Change: Rule 21c is added to provide privacy protection for documents
filed in civil cases.
RULE 21d. APPEARANCES AT COURT PROCEEDINGS
(a)
(b)
Definitions.
(1)
“Court proceeding” means an appearance before the court, such as a hearing or trial.
(2)
“Participant” means any party, attorney, witness, court reporter, or juror who
participates in a court proceeding.
Participant Method of Appearance.
(1)
Unless the notice of court proceeding states otherwise, a person who participates in
a court proceeding does so by physical presence in the courtroom. Upon appropriate
notice by a party or the court, a court may allow or require a participant to appear
at a court proceeding by videoconference, teleconference, or other available
electronic means, except as otherwise provided in (2).
(2)
A court must not require:
(A)
a party or lawyer to appear electronically for a court proceeding in which
oral testimony is heard, absent good cause or the agreement of the parties;
or
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(B)
a lawyer, party, or juror to appear electronically for a jury trial, absent the
agreement of the parties.
(c)
Judge Method of Appearance; Location. A judge may appear at a court proceeding by
videoconference, teleconference, or other available electronic means. However, even if
appearing electronically, a judge must conduct the court proceeding from a location
required by law.
(d)
Objection. A party may object to any method of appearance, stating good cause for the
objection. The objection must be made within a reasonable time after the party receives
notice of the appearance. The court may, but is not required to, conduct a hearing on the
objection. Before proceeding by the objected-to method of appearance, the court must rule
on the objection and timely communicate the ruling to the parties in a written order or on
the record.
(e)
Factors. In determining good cause under this rule, the court should consider factors such
as:
(f)
(1)
case type;
(2)
court proceeding type;
(3)
the number of parties and witnesses;
(4)
the complexity of the legal and factual issues;
(5)
the type of evidence to be submitted, if any;
(6)
technological restrictions such as lack of access to or proficiency in necessary
technology;
(7)
travel restrictions such as lack of transportation, distance, or inability to take off
work;
(8)
whether a method of appearance is best suited to provide necessary language access
services for a person with limited English proficiency or accommodations for a
person with a disability; and
(9)
any previous abuse of a method of appearance.
Open Courts. If a court conducts a court proceeding in which all participants appear
electronically, the court must:
(1)
provide reasonable notice to the public of how to observe the court proceeding; and
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(2)
provide the public the opportunity to observe the court proceeding, unless the court
has determined that it must close the court proceeding to protect an overriding
interest, considered all less-restrictive alternatives to closure, and made findings on
the record adequate to support closure.
Notes and Comments
Comment to 2023 change: New Rule 21d clarifies procedures for appearances at court
proceedings. Paragraph (a) defines “court proceeding” and “participant.” Paragraph (b) governs a
participant’s method of appearance. Certain statutes expressly prohibit or further permit electronic
appearances, in which case the governing statute applies. Paragraph (c) provides that the judge
may appear by electronic means, but it requires the judge to appear electronically from a location
required by law. See, e.g., TEX. CONST. art. V, § 7(d); TEX. GOV’T CODE §§ 24.030(a), 26.002(c).
Nothing in paragraph (c) permits the judge to conduct a proceeding away from a location required
by law. Paragraph (d) addresses objections to any method of appearance, and paragraph (e)
addresses good-cause factors. Paragraph (f) recognizes the public’s right to reasonable notice of
and access to a fully electronic proceeding unless there is an overriding interest. A court should
rarely close a court proceeding from public observation, and in such an exceptional case, the court
must use the least restrictive measure to protect the overriding interest.
SECTION 2.
INSTITUTION OF SUIT
RULE 22. COMMENCED BY PETITION
A civil suit in the district or county court shall be commenced by a petition filed in the office of
the clerk.
RULE 23. SUITS TO BE NUMBERED CONSECUTIVELY
It shall be the duty of the clerk to designate the suits by regular consecutive numbers, called file
numbers, and he shall mark on each paper in every case the file number of the cause.
RULE 24. DUTY OF CLERK
When a petition is filed with the clerk he shall indorse thereon the file number, the day on which
it was filed and the time of filing, and sign his name officially thereto.
RULE 25. CLERK'S FILE DOCKET
Each clerk shall keep a file docket which shall show in convenient form the number of the suit,
the names of the attorneys, the names of the parties to the suit, and the nature thereof, and, in brief
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The judgment of the court shall conform to the pleadings, the nature of the case proved and the
verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled
either in law or equity. Provided, that upon motion and reasonable notice the court may render
judgment non obstante veredicto if a directed verdict would have been proper, and provided further
that the court may, upon like motion and notice, disregard any jury finding on a question that has
no support in the evidence. Only one final judgment shall be rendered in any cause except where
it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against
one or more of several plaintiffs, and for or against one or more of several defendants or
intervenors.
RULE 302. ON COUNTERCLAIM
If the defendant establishes a demand against the plaintiff upon a counterclaim exceeding that
established against him by the plaintiff, the court shall render judgment for defendant for such
excess.
RULE 303. ON COUNTERCLAIM FOR COSTS
When a counterclaim is pleaded, the party in whose favor final judgment is rendered shall also
recover the costs, unless it be made to appear on the trial that the counterclaim of the defendant
was acquired after the commencement of the suit, in which case, if the plaintiff establishes a claim
existing at the commencement of the suit, he shall recover his costs.
RULE 304. JUDGMENT UPON RECORD
Judgments rendered upon questions raised upon citations, pleadings, and all other proceedings,
constituting the record proper as known at common law, must be entered at the date of each term
when pronounced.
RULE 305. PROPOSED JUDGMENT
Any party may prepare and submit a proposed judgment to the court for signature.
Each party who submits a proposed judgment for signature shall serve the proposed judgment on
all other parties to the suit who have appeared and remain in the case, in accordance with Rule
21a.
Failure to comply with this rule shall not affect the time for perfecting an appeal.
Notes and Comments
Comment to 1990 change: To clarify the practice for proposed judgments and notice to other
parties.
Page 202
RULE 306. RECITATION OF JUDGMENT
The entry of the judgment shall contain the full names of the parties, as stated in the pleadings, for
and against whom the judgment is rendered. In a suit for termination of the parent-child
relationship or a suit affecting the parent-child relationship filed by a governmental entity for
managing conservatorship, the judgment must state the specific grounds for termination or for
appointment of the managing conservator.
RULE 306a. PERIODS TO RUN FROM SIGNING OF JUDGMENT
1.
Beginning of Periods. The date of judgment or order is signed as shown of record shall
determine the beginning of the periods prescribed by these rules for the court's plenary
power to grant a new trial or to vacate, modify, correct or reform a judgment or order and
for filing in the trial court the various documents that these rules authorize a party to file
within such periods including, but not limited to, motions for new trial, motions to modify
judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate
judgment and requests for findings of fact and conclusions of law; but this rule shall not
determine what constitutes rendition of a judgment or order for any other purpose.
2.
Date to Be Shown. Judges, attorneys and clerks are directed to use their best efforts to
cause all judgments, decisions and orders of any kind to be reduced to writing and signed
by the trial judge with the date of signing stated therein. If the date of signing is not recited
in the judgment or order, it may be shown in the record by a certificate of the judge or
otherwise; provided, however, that the absence of a showing of the date in the record shall
not invalidate any judgment or order.
3.
Notice of Judgment. When the final judgment or other appealable order is signed, the
clerk of the court must immediately send the judgment or order to the parties as provided
in Rule 21(f)(10). If the judgment awards monetary damages, the judgment must state: “If
you are an individual (not a company), your money or property may be protected from
being taken to pay this judgment. Find out more by visiting
www.texaslawhelp.org/exempt-property. / Si usted es una persona física (y no una
compañía), su dinero o propiedad pudieran estar protegidos de ser embargados como
pago de esta deuda decretada en juicio en contra suya. Obtenga mayor información
visitando el sitio www.texaslawhelp.org/exempt-property.” Failure to comply with the
provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule,
except as provided in paragraph (4).
4.
No Notice of Judgment. If within twenty days after the judgment or other appealable
order is signed, a party adversely affected by it or his attorney has neither received the
notice required by paragraph (3) of this rule nor acquired actual knowledge of the order,
then with respect to that party all the periods mentioned in paragraph (1) shall begin on the
date that such party or his attorney received such notice or acquired actual knowledge of
the signing, whichever occurred first, but in no event shall such periods begin more than
ninety days after the original judgment or other appealable order was signed.
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5.
Motion, Notice and Hearing. In order to establish the application of paragraph (4) of
this rule, the party adversely affected is required to prove in the trial court, on sworn motion
and notice, the date on which the party or his attorney first either received a notice of the
judgment or acquired actual knowledge of the signing and that this date was more than
twenty days after the judgment was signed.
6.
Nunc Pro Tunc Order. When a corrected judgment has been signed after expiration of
the court's plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of
this rule shall run from the date of signing the corrected judgment with respect of any
complaint that would not be applicable to the original document.
7.
When Process Served by Publication. With respect to a motion for new trial filed more
than thirty days after the judgment was signed pursuant to Rule 329 when process has been
served by publication, the periods provided by paragraph (1) shall be computed as if the
judgment were signed on the date of filing the motion.
Notes and Comments
Comment to 1988 change: Amend to reflect repeal of Rule 317.
RULE 306b. ADVICE OF RIGHT TO APPEAL IN ORDERS CERTIFYING A CHILD
TO STAND TRIAL AS AN ADULT
When a juvenile court issues an order under Family Code section 54.02 certifying a child to stand
trial as an adult, the court must inform the child and the child’s attorney, orally on the record and
in writing in the certification order, that:
(a)
the child may immediately appeal the certification order under Family Code section
56.01; and
(b)
the appeal is accelerated under Texas Rule of Appellate Procedure 28.1.
Notes and Comments
Comment to 2023 change: This rule is adopted to implement Texas Family Code section
56.01(h-1).
RULE 306c. PREMATURELY FILED DOCUMENTS
No motion for new trial or request for findings of fact and conclusions of law shall be held
ineffective because prematurely filed; but every such motion shall be deemed to have been filed
on the date of but subsequent to the time of signing of the judgment the motion assails, and every
such request for findings of fact and conclusions of law shall be deemed to have been filed on the
date of but subsequent to the time of signing of the judgment.
Page 204
(a)
The court may grant a new trial upon petition of the defendant showing good cause,
supported by affidavit, filed within two years after such judgment was signed. The
parties adversely interested in such judgment shall be cited as in other cases.
(b)
Execution of such judgment shall not be suspended unless the party applying
therefor shall give a good and sufficient bond payable to the plaintiff in the
judgment, in an amount fixed in accordance with Appellate Rule 47 relating to
supersedeas bonds, to be approved by the clerk, and conditioned that the party will
prosecute his petition for new trial to effect and will perform such judgment as may
be rendered by the court should its decision be against him.
(c)
If property has been sold under the judgment and execution before the process was
suspended, the defendant shall not recover the property so sold, but shall have
judgment against the plaintiff in the judgment for the proceeds of such sale.
(d)
If the motion is filed more than thirty days after the judgment was signed, the time
period shall be computed pursuant to Rule 306a(7).
RULE 329a. COUNTY COURT CASES
If a case or other matter is on trial or in the process of hearing when the term of the county court
expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent
term of court and no motion or plea shall be considered as waived or overruled, because not acted
upon at the term of court at which it was filed, but may be acted upon at any time the judge may
fix or at which it may have been postponed or continued by agreement of the parties with leave of
the court. This subdivision is not applicable to original or amended motions for new trial which
are governed by Rule 329b.
RULE 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or
reform judgments (other than motions to correct the record under Rule 316) in all district and
county courts:
(a)
A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment
or other order complained of is signed.
(b)
One or more amended motions for new trial may be filed without leave of court before any
preceding motion for new trial filed by the movant is overruled and within thirty days after
the judgment or other order complained of is signed.
(c)
In the event an original or amended motion for new trial or a motion to modify, correct or
reform a judgment is not determined by written order signed within seventy-five days after
the judgment was signed, it shall be considered overruled by operation of law on expiration
of that period.
Page 212
(d)
The trial court, regardless of whether an appeal has been perfected, has plenary power to
grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days
after the judgment is signed.
(e)
If a motion for new trial is timely filed by any party, the trial court, regardless of whether
an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify,
correct, or reform the judgment until thirty days after all such timely-filed motions are
overruled, either by a written and signed order or by operation of law, whichever occurs
first.
(f)
On expiration of the time within which the trial court has plenary power, a judgment cannot
be set aside by the trial court except by bill of review for sufficient cause, filed within the
time allowed by law; provided that the court may at any time correct a clerical error in the
record of a judgment and render judgment nunc pro tunc under Rule 316, and may also
sign an order declaring a previous judgment or order to be void because signed after the
court's plenary power had expired.
(g)
A motion to modify, correct, or reform a judgment (as distinguished from motion to correct
the record of a judgment under Rule 316), if filed, shall be filed and determined within the
time prescribed by this rule for a motion for new trial and shall extend the trial court's
plenary power and the time for perfecting an appeal in the same manner as a motion for
new trial. Each such motion shall be in writing and signed by the party or his attorney and
shall specify the respects in which the judgment should be modified, corrected, or
reformed. The overruling of such a motion shall not preclude the filing of a motion for new
trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to
modify, correct, or reform.
(h)
If a judgment is modified, corrected or reformed in any respect, the time for appeal shall
run from the time the modified, corrected, or reformed judgment is signed, but if a
correction is made pursuant to Rule 316 after expiration of the period of plenary power
provided by this rule, no complaint shall be heard on appeal that could have been presented
in an appeal from the original judgment.
Notes and Comments
Comment to 1988 change: Amended to conform with repeal of Rule 317.
Page 213
(m) the name, mailing address, telephone
number, fax number (if any), email address,
and Certified Shorthand Reporter number of
each court reporter responsible for preparing
the reporter’s record;
(A) stated the grounds for the ruling that
the complaining party sought from
the trial court with sufficient
specificity to make the trial court
aware of the complaint, unless the
specific grounds were apparent
from the context; and
(n) (1) the dates of filing of any motion and
affidavit of indigence;
(B) complied with the requirements of
the Texas Rules of Evidence or the
Texas Rules of Civil or Appellate
Procedure; and
(2) the date of any hearing;
(3) the date of any order; and
(4) whether the motion was granted or
denied; and
(2) the trial court:
(A) ruled on the request, objection, or
motion, either expressly or
implicitly; or
(o) any other information the appellate court
requires.
32.3. Supplemental Statements
(B) refused to rule on the request,
objection, or motion, and the
complaining party objected to the
refusal.
Any party may file a statement supplementing or
correcting the docketing statement.
32.4. Purpose of Statement
(b) Ruling by Operation of Law. In a civil case,
the overruling by operation of law of a
motion for new trial or a motion to modify the
judgment preserves for appellate review a
complaint properly made in the motion,
unless taking evidence was necessary to
properly present the complaint in the trial
court.
The docketing statement is for administrative
purposes and does not affect the appellate court's
jurisdiction.
Notes and Comments
Comment to 1997 change: The rule is new.
(c) Formal Exception and Separate Order Not
Required. Neither a formal exception to a
trial court ruling or order nor a signed,
separate order is required to preserve a
complaint for appeal.
Comment to 2023 change: Rule 32.1 is amended
to implement Texas Family Code section 56.01(h-1).
Comment to 2024 change: Rule 32.1 is amended
to remove the list of requirements of what information
must be included in the docketing statement in favor
of a form approved by the Office of Court
Administration.
(d) Sufficiency of Evidence Complaints in Civil
Nonjury Cases. In a civil nonjury case, a
complaint regarding the legal or factual
insufficiency of the evidence - including a
complaint that the damages found by the
court are excessive or inadequate, as
distinguished from a complaint that the trial
court erred in refusing to amend a fact finding
or to make an additional finding of fact - may
be made for the first time on appeal in the
complaining party’s brief.
Rule 33. Preservation of Appellate Complaints
33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a
complaint for appellate review, the record
must show that:
33.2. Formal Bills of Exception
(1) the complaint was made to the trial court
by a timely request, objection, or motion
that:
To complain on appeal about a matter that would
not otherwise appear in the record, a party must file a
formal bill of exception.
46
appeals and costs for preparation of the record. The
court of appeals may tax costs otherwise as required
by law or for good cause. But the judgment must not
require the payment of costs by a party who was
entitled to proceed without payment of costs under
Rule 20.1, and a provision in the judgment purporting
to do so is void.
controversy and that part is separable without
unfairness to the parties, the judgment must
be reversed and a new trial ordered only as to
the part affected by the error. The court may
not order a separate trial solely on
unliquidated damages if liability is contested.
44.2. Reversible Error in Criminal Cases
43.5. Judgment Against Sureties in Civil Cases
(a) Constitutional Error. If the appellate record
in a criminal case reveals constitutional error
that is subject to harmless error review, the
court of appeals must reverse a judgment of
conviction or punishment unless the court
determines beyond a reasonable doubt that
the error did not contribute to the conviction
or punishment.
When a court of appeals affirms the trial court
judgment, or modifies that judgment and renders
judgment against the appellant, the court of appeals
must render judgment against the sureties on the
appellant's supersedeas bond, if any, for the
performance of the judgment and for any costs taxed
against the appellant.
43.6. Other Orders
(b) Other Errors. Any other error, defect,
irregularity, or variance that does not affect
substantial rights must be disregarded.
The court of appeals may make any other
appropriate order that the law and the nature of the
case require.
(c) Presumptions. Unless the following matters
were disputed in the trial court, or unless the
record affirmatively shows the contrary, the
court of appeals must presume:
Notes and Comments
Comment to 1997 changes: Former Rules 80(a) (c) and 82 are merged. Paragraph 43.2(e) allows the
court of appeals to vacate the trial court’s judgment
and dismiss the case; paragraph 43.2(f) allows the
court of appeals to dismiss the appeal. Both provisions
are new but codify current practice. Paragraph 43.3(a)
is moved here from former Rule 81(c). Paragraph
43.3(b), allowing a remand in the interest of justice, is
new. Subdivisions 43.4 and 43.5 are from former Rule
82.
(1) that venue was proved in the trial court;
(2) that the jury was properly impaneled
and sworn;
(3) that the defendant was arraigned;
(4) that the defendant pleaded to the
indictment or other charging instrument;
and
Rule 44. Reversible Error
(5) that the court's charge was certified by
the trial court and filed by the clerk
before it was read to the jury.
44.1. Reversible Error in Civil Cases
(a) Standard for Reversible Error. No judgment
may be reversed on appeal on the ground that
the trial court made an error of law unless the
court of appeals concludes that the error
complained of:
44.3. Defects in Procedure
A court of appeals must not affirm or reverse a
judgment or dismiss an appeal for formal defects or
irregularities in appellate procedure without allowing
a reasonable time to correct or amend the defects or
irregularities.
(1) probably caused the rendition of an
improper judgment; or
(2) probably prevented the appellant from
properly presenting the case to the court
of appeals.
44.4. Remediable Error of the Trial Court
(a) Generally. A court of appeals must not affirm
or reverse a judgment or dismiss an appeal if:
(b) Error Affecting Only Part of Case. If the error
affects part of, but not all, the matter in
64
APPENDIX TAB E
United States Constitution, Amendment XIV, § 1
No. 15-26-00132-CV
U.S. CONST. AMEND. XIV, § 1
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
United States Constitution, Amendment XIV, Section 1
APPENDIX TAB F
Reporter’s Record Excerpts — May 21, 2026
RR 4–5, 7–9, and 12–13.
No. 15-26-00132-CV
Hearing on Motion for New Trial
May 21, 2026
1
P R O C E E D I N G S
2
THE COURT: The Court calls
3
Cause No. DC-2025-CV-1817. This is Dr. Bass vs.
4
Rice-Spearman, et al. And we are here on Plaintiff's
5
306a motion to extend the applicable periods of time
6
from the signing of the judgment. We're also here on
7
Plaintiff's Motion for New Trial pursuant to Rule 329b.
8
The Court -- before we have an
9
evidentiary hearing on the 306a motion as to when the
10
Plaintiff got notice of the -- the order granting the
11
plea to the jurisdiction, the Court finds that 306a does
12
not apply because the Plaintiff, pursuant to his
13
pleadings, acknowledges notice of the order granting the
14
plea to the jurisdiction within either seven or eight
15
days, for sure by eight days, and that 306a(4) only
16
applies if you did not receive notice within 20 days.
17
As a result of that finding by the Court,
18
the Court finds that whether or not the Plaintiff
19
received notice and why he didn't receive it of the
20
order granting the plea to the jurisdiction is
21
irrelevant because the Motion for New Trial was filed, I
22
think, on day eight of the signing of the order granting
23
the plea to the jurisdiction.
24
25
And the -- again, the Plaintiff
acknowledges knowledge, actual knowledge of the order
4
Hearing on Motion for New Trial
May 21, 2026
1
granting the plea to the jurisdiction within eight days,
2
which is within 20 days; and, therefore the -- the 306a
3
motion to extend the appellate deadline is not
4
applicable in this case.
5
So, the court denies the Plaintiff --
6
without hearing evidence, the Court denies the
7
Plaintiff's 306a motion to extend the periods of time.
8
And by -- as a result of such denial, the Plaintiff is
9
required to comply with the deadlines as if he had
10
knowledge of the order when it was signed.
11
And I know, Dr. Bass, that you're ready
12
to put on all kinds of evidence about when you received
13
the notice, and -- and I know that the Defense is ready
14
to argue why you should have corrected the reason why
15
you didn't receive the notice earlier.
16
But for purposes of the 306a motion, the
17
Court finds none of that to be relevant, and that the
18
Plaintiff has timely perfected the ability to complain
19
about the order granting the plea to the jurisdiction.
20
And, so, the Court now moves to
21
Plaintiff's Rule 329 Motion for New Trial, would call on
22
Dr. Bass to argue that.
MR. BASS: Could I have a short break to
23
24
25
orient myself?
THE COURT: Sure.
5
Hearing on Motion for New Trial
May 21, 2026
1
date that closed the paper record. I had notice of none
2
of them.
3
Second, Rule 21a, service to me was
4
defective. The certificates of error in this case
5
record serviced me as error or as sent to an address
6
that does not exist in one particular case.
7
Your Honor, these are contested factual
8
questions. I ask the Court to take evidence on them
9
today, to admit my exhibits and hear my testimony,
10
because Peralta requires findings of facts, and findings
11
cannot be made on papers alone. Today is where the
12
record, I hope, gets built.
THE COURT: Okay. So, I do have a
13
14
question. You received the plea to the jurisdiction
15
that was filed by the Defendants, because you filed a
16
response to that plea.
17
What you didn't get, because of the email
18
address issue, you didn't get the notice of the hearing
19
on the plea, which was by submission, not oral argument.
20
You didn't get the proposed order granting the plea.
21
You didn't get the Defendants' reply to your response to
22
the plea.
23
24
25
And what was the fourth thing that you
didn't get?
MR. BASS: The -- the March 19th
7
Hearing on Motion for New Trial
May 21, 2026
1
submission date that closed the paper record.
2
THE COURT: That's -- so, there was --
3
there were two orders setting hearing that you didn't
4
get. One of them I looked up last night, and it was
5
actually set for hearing before the order setting
6
hearing was signed. So, that couldn't have happened.
7
And, so, somebody realized that --
8
somebody on behalf of the Defendants realized that and
9
promptly submitted me an amended order setting hearing,
10
setting it for hearing again, by submission, at a date
11
after the order setting hearing.
12
And, so, those were two documents you
13
didn't get, and then the proposed order granting the
14
plea to the jurisdiction and then the reply by the
15
Defendants to your response.
16
What -- what would you have done
17
differently had you had notice of those four documents?
18
MR. BASS: One moment, Your Honor. So,
19
for the -- so, Your Honor, for the 3-13th, the notice of
20
submission, plus submitted notice of submission, I would
21
have objected, requested an oral argument. For 3-13,
22
the pre-drafted proposed order, I would have objected to
23
form and substance. 3-18, for the reply through the
24
arguments, ripeness futility, and academic deference, I
25
would have moved for a leave to file surreply.
8
Hearing on Motion for New Trial
May 21, 2026
1
And, then, for the -- for the 3-19 one, I
2
would have filed a surreply answering the -- the 3-18
3
before the submission closed.
4
And to add onto that, however, I would
5
also say, or at least it is my understanding that
6
Peralta forecloses the same result argument entirely,
7
independent of what I might have done.
8
As Peralta says, for 85 U.S. 80 at 86 to
9
87, it is no answer saying that in his particular case
10
due process of law would have led to the same result
11
because he had no adequate defense on the merits.
12
And, so, independent of what I might have
13
done, the lack of notice and opportunity was itself the
14
Peralta violation. No showing of a different outcome is
15
required.
16
THE COURT: All right. Thank you.
17
Mr. Smith?
18
DEFENDANT'S ORAL ARGUMENT
19
MR. SMITH: Yes, Your Honor.
20
So, the first point I want to make is
21
that Mr. Bass was not deprived of any due process
22
rights. He had his notice and opportunity to be heard,
23
which is evidenced by his comprehensive 78-page response
24
addressing Defendants' plea to the jurisdiction.
25
Mr. Bass's assertion that he didn't
9
Hearing on Motion for New Trial
May 21, 2026
1
is the futility argument under Miranda that Defendants'
2
original plea was fundamentally jurisdictional, and so a
3
dismissal for lack of subject matter jurisdiction. And,
4
so, the -- by simply arguing that any amendment is
5
futile. That -- that all the Defendants were arguing is
6
that Plaintiff had already amended, repeatedly, the
7
defect was legal rather than factual. So, further
8
amendment could not convert discretionary conduct into
9
administerial duties.
10
That's it. It's not a new jurisdictional
11
ground. There's no new arguments that are raised.
12
Simply, what Plaintiff is seeking is a second
13
opportunity to litigate issues that have already been
14
fully briefed. So, Defendants would respectfully submit
15
that his Motion for New Trial be denied. Thank you.
16
COURT'S CLOSING COMMENTS
17
THE COURT: Okay. All right. So, I
18
think the Court has discretion as to whether or not to
19
entertain evidence at a Motion for New Trial hearing.
20
The Court finds that the Plaintiff has sufficiently
21
briefed everything that's necessary to support his
22
argument here today on the Motion for New Trial, that
23
there's no factual evidence that would bolster or be
24
germane to the Motion for New Trial. It's a procedural
25
issue.
12
Hearing on Motion for New Trial
May 21, 2026
1
2
And the Court finds that evidence is -is not necessary and will not entertain evidence.
3
So, the Court will consider the Motion
4
for New Trial based on the pleadings and the arguments
5
by the Plaintiff here today and the response by the
6
Defense. And the Court will let the parties know of its
7
ruling on the Motion for New Trial probably, oh, say,
8
Wednesday or so of next week.
9
All right. Thank you very much.
10
MR. BASS: Thank you, Your Honor.
11
THE COURT: All right. Bye-bye.
12
(Proceedings adjourned)
13
14
15
16
17
18
19
20
21
22
23
24
25
13
APPENDIX TAB G
TTUHSC HSC OP 77.13 — Student Education Records
CR 149–57.
No. 15-26-00132-CV
TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER
Operating Policy and Procedure
77.13,
This Health Sciences Center Operating Policy and Procedure (HSC OP) is intended to
implement the provisions of the Family Educational Rights and Privacy Act (FERPA) (20
U.S.C. § 1232g; 34 CFR Part 99) and other federal and state laws governing access to
and confidentiality of records and information pertaining to Students. To the extent that
there is any dispute regarding the terms and conditions of this policy, the provisions of
FERPA will prevail in each instance, notwithstanding anything in this policy which may
provide otherwise.
This HSC OP will be reviewed on March 1 of every odd-numbered year (ONY) by the
TTUHSC Registrar and the Senior Associate General Counsel, with recommendations for
revisions forwarded to the Executive Vice President for Academic Affairs by May 1.
1.
a. Directory Information. “Directory Information” is information in a Student’s Education Record
that would not generally be considered harmful or an invasion of privacy if disclosed.
(1) The following information is designated by TTUHSC as Directory Information:
(a) Student’s name, address, previous institution(s) attended, major field of study, dates
of attendance, enrollment status (e.g., undergraduate or graduate, part-time or fulltime), classification, degree(s) conferred, date(s) of degree(s) (including degrees
from previous institutions), honors and awards (including scholarships), participation
in officially recognized activities, and postgraduate training/clinical sites for R.N., M.D.
or Ph.D. graduates and degree candidates.
(2) “Dates of Attendance” means the period of time during which a Student attends or
attended TTUHSC, such as an academic year, a spring semester, or a first quarter. The
term does not include specific daily records of a Student’s attendance at TTUHSC.
b. Education Records. “Education Records” are records that are directly related to a Student
and that are maintained by TTUHSC or by a party acting for TTUHSC. The term does not
include:
(1) Records of instructional, administrative and educational personnel that are kept in the
sole possession of the maker, are used only as a personal memory aid, and are not
accessible or revealed to any other person except a temporary substitute for the maker of
the record;
(2) Records of the Texas Tech Police Department, subject to the provisions of 34 C.F.R.
99.8;
(3) Records relating solely to an employee of TTUHSC in his/her capacity as an employee
that are not available for any other purpose, unless the Student is employed as a result of
his/her status as a Student;
(4) Student medical and counseling records created, maintained, and/or used only in
connection with providing medical treatment or counseling to the Student, that are not
disclosed to anyone other than the individuals providing the treatment; and,
(5) Alumni records or other records that contain information about an individual after he/she
is no longer a Student at that agency or institution (e.g., information gathered on the
accomplishments of alumni).
149
c.
Eligible Student. An “Eligible Student” is a Student who has reached the age of 18 or is
attending an institution of postsecondary education.
d. Legitimate Educational Interest. A “University Official” has a “Legitimate Educational Interest”
if the official is:
(1) Performing a task that is specified in his/her position description or responsibilities
designated by contract or state law;
(2) Performing a task related to a Student’s education;
(3) Performing a task related to the discipline of a Student; or,
(4) Providing a service or benefit relating to the Student or Student’s family, such as health
care, counseling, job placement, or financial aid.
Questions regarding “Legitimate Educational Interest” should be referred to the Registrar or
the Dean of the school in which the Student is enrolled. Instances of dispute regarding
“Legitimate Educational Interest” will be resolved by the Executive Vice President for
Academic Affairs.
e. Records Custodian. TTUHSC office or individual responsible for maintaining a specific
Education Record.
f.
Student. A “Student” is any individual who is or has been in attendance at TTUHSC, either
full-time or part-time, pursuing undergraduate, graduate or professional studies, and
regarding those individuals for whom TTUHSC maintains Education Records, but specifically
excluding School of Medicine House staff.
(1) “Attendance” means enrollment in a course that is taken in person, by correspondence,
electronic distance education or other means.
(2) An individual who is or has been enrolled in one component unit of TTUHSC and applies
for admission to a second unit, has no right to inspect the records accumulated by the
second unit until enrolled therein.
g. University. “University” means Texas Tech University Health Sciences Center (TTUHSC),
inclusive of all regional sites and their components.
h. “University Official.” A “University Official” includes:
(1) A person employed by TTUHSC in an administrative, supervisory, academic, research, or
support staff position, including, but not limited to, law enforcement unit personnel and
health staff;
(2) A person or organization with whom TTUHSC has contracted, such as an attorney,
auditor, or collection agent;
(3) A Student serving on an official committee, such as a disciplinary or grievance
committee, or assisting another school official in performing his/her tasks;
(4) A person serving on the Texas Tech Board of Regents; or,
(5) A person or organization acting as an agent of TTUHSC and performing a business
function or service on behalf of the University.
2.
a. Subject to Sections 2(b)-(c) and (3) below, a Student may request that his/her Directory
Information be withheld at any time by:
(1) Submitting a written request to the TTUHSC Registrar’s Office to withhold the
information; or,
(2) Changing the Directory Information release indicator via http://webraider.ttuhsc.edu.
150
b. A request to withhold Directory Information may take up to one (1) business day to process
and may not be effective until such time.
c.
A Student’s notification to restrict the release of Directory Information will remain in effect until
the Student either:
(1) Submits written notice to the TTUHSC’s Registrar’s Office to release the information; or,
(2) Changes the Directory Information release indicator via http://webraider.ttuhsc.edu .
d. If an “Unlisted in Web Directory” is indicated in Banner for a Student, that Student’s name will
not appear in the commencement bulletin and other University publications, and employers,
credit card companies, loan agencies, friends, parents, relatives, news media and the like will
be denied any Directory Information.
e. TTUHSC may disclose Directory Information about a former Student, unless the Student, at
his or her last opportunity as a Student, requested that Directory Information not be disclosed
and the Student has not informed TTUHSC, either electronically or in writing, to the contrary.
3.
a. TTUHSC will disclose information from a Student’s Education Records only with the written
consent of the Student (Student Consent to Release Education Records form, Attachment A),
except for disclosures in the following situations.
(1) University Officials. University Officials determined by TTUHSC to have a Legitimate
Educational Interest in the records.
(2) Agents of TTUHSC. Agents acting on behalf of TTUHSC (e.g., Clearinghouses,
degree/enrollment verifiers, etc.)
(3) Officials of Another School. Officials of another school in which a Student seeks or
intends to enroll.
(4) U.S. Government Officials. Certain officials of the U.S. Department of Education, the
Comptroller General, and state and local educational authorities in connection with an
audit, authorized representatives of the U.S. Attorney General, or certain state or
federally supported education programs.
(5) Financial Aid. Individuals needing this information to determine the eligibility of a Student
for financial aid, the amount or conditions of a Student’s financial aid, or to enforce the
terms and conditions of a Student’s financial aid.
(6) State and Local Officials. State and local officials and authorities to whom disclosure is
specifically allowed pursuant to state statute adopted:
(a) before November 19, 1974, if the allowed disclosure concerns the juvenile justice
system and that system’s ability to effectively serve the Student whose records are
released; or,
(b) after November 19, 1974, if the allowed disclosure concerns the juvenile justice
system and that system’s ability to serve effectively, prior to adjudication, the Student
whose records are released, and if the officials to whom the information is disclosed
certify in writing to TTUHSC that the information will not be disclosed to any other
party without the Student’s written consent, except as provided under state law.
(7) Organizations Conducting Studies. Organizations conducting certain studies for or on
behalf of the University for those functions set forth in 34 CRF 99.31.
(8) Accrediting Organizations. Accrediting organizations to carry out their functions.
(9) Parents of Dependent. Parents, as defined in 34 CFR 99.3, of an Eligible Student who
claims the Student as a dependent for income tax purposes, provided that the parent
provides adequate written documentation of the dependent status.
(10)Subpoena or Judicial Order. Individuals requiring such information by means of a judicial
order or a lawfully issued subpoena, provided that TTUHSC makes a reasonable attempt
to inform the Student in advance of compliance with the order or subpoena. TTUHSC’s
151
notice to the Student will be in writing and inform the Student that it has received an order
or a subpoena, that it intends to comply (if it does) 14 calendar days from the date of the
notice, and that a motion to quash by the Student must be filed before the date TTUHSC
intends to comply with the order or subpoena. However, TTUHSC will not inform the
Student when:
(a) A federal grand jury subpoena and the court have ordered that the existence or the
contents of the subpoena, or the information furnished in response to the subpoena,
not be disclosed; or,
(b) Any other subpoena issued for a law enforcement purpose and the court or other
issuing agency has ordered that the existence or the contents of the subpoena, or
the information furnished in response to the subpoena, not be disclosed.
If a Records Custodian or other University Official receives a court order, a subpoena, or
similar document, such individual should immediately contact the Office of General
Counsel and the respective Dean’s Office.
(11)Health and Safety. Appropriate parties in a health or safety emergency, subject to 34
CFR 99.36.
(12)Directory Information. Individuals requesting a Student’s “Directory Information,” unless
the Student has requested such Directory Information be withheld. Refer to Section 7
above, Release of Directory Information.
(13)Parent (when Student is under 18). Parent of a Student who is not an Eligible Student.
(14)Victims – Violence or Non-forcible Sex Offenses. Alleged victims of any crime of violence
or a non-forcible sex offense, subject to the requirements in 34 CFR 99.39. The
disclosure may only include the final results of any disciplinary proceeding related to the
alleged crime or offense, regardless of whether TTUHSC concluded a violation was
committed. As used herein, the term "crime of violence" means arson, assault offenses,
burglary, criminal homicide, destruction/damage/vandalism of property,
kidnapping/abduction, robbery and forcible sex offenses, as those terms are defined by
29 CFR 99.39, and the term "non-forcible sex offense" means statutory rape or incest.
The term "final results" means a decision or determination made by any entity or
individual authorized to resolve disciplinary matters. Disclosure of final results may
include the name of the student who is the alleged perpetrator, any violation committed
and any sanction imposed (including description of disciplinary action, date imposed and
the sanction's duration).
(15)Third Parties – Violence or Non-forcible Sex Offenses. Third parties regarding the final
results of any disciplinary proceeding against a Student who is an alleged perpetrator of
any crime of violence or non-forcible sex offense, if on or after October 7, 1998, the
Student is found responsible for violating the University’s rules or policies with respect to
such crime or offense. Such disclosure shall include only the name of the Student, the
violation committed, and any sanction imposed by TTUHSC on that Student. Such
disclosure may include the name of any other Student, such as a victim or witness, only
with the written consent of that other Student.
(16)Parent or Legal Guardian – Alcohol or Drugs Violations. Parent or legal guardian of a
Student regarding information with respect to a violation of federal, state or local law, or
of any rule or policy of the University, governing the use or possession of alcohol or a
controlled substance, regardless of whether that information is contained in the Student’s
Education Records, if the Student is under the age of 21 at the time of disclosure to the
parent, and TTUHSC determines that the Student is responsible for a disciplinary
violation with respect to such use or possession.
(17)Legal Action by TTUHSC against Parent or Student. TTUHSC may disclose to the court,
without a court order or subpoena, if TTUHSC initiates legal action against a parent or
Eligible Student. TTUHSC may disclose the Education Records of a Student that are
relevant for TTUHSC to precede with legal action. In addition, if a parent or Eligible
Student initiates legal action against TTUHSC, TTUHSC may disclose to the court,
without a court order or subpoena, the Student's Education Records that are relevant for
TTUHSC to defend itself. The Office of General Counsel should be consulted before
TTUHSC discloses Education Records to a court pursuant to this section.
152
(18)Student Exchange Visitor Information System. The Department of Homeland Security
(DHS), Immigration and Customs Enforcement (ICE) for the purpose of complying with
Request Form ICE relative to TTUHSC’s participation in Student Exchange Visitor
Information System (SEVIS).
(19)Military Recruiters. Military recruiters who request “Student Recruiting Information” for
recruiting purposes only (Solomon Amendment, 10 U.S.C. § 983; 32 C.F.R. Part 216),
unless the Student has elected to withhold this information under Section 2 above.
Student Recruiting Information is name, address, telephone listing, age (or year of birth),
class level, major, degrees received and most recent educational institution of enrollment.
(20)Internal Revenue Service. The Internal Revenue Service (IRS) for purposes of
complying with the Taxpayer Relief Act of 1997.
(21)Veterans Affairs. Authorized representatives of the Department of Veterans Affairs for
Students receiving educational assistance from the agency.
b. When personally identifiable information is disclosed from a Student’s Education Records
pursuant to his/her written consent, the Student may, upon request, obtain a copy of the
information disclosed.
c.
Each Records Custodian shall maintain with the Student’s Education Records documentation
for each disclosure request that he/she receives and each disclosure, except the following
disclosures:
(1) To the Student himself or herself;
(2) Pursuant to the written consent of the Student;
(3) To University Officials with Legitimate Educational Interest(s);
(4) Pursuant to a law enforcement subpoena and the issuing court or other issuing agency
has ordered that the existence or the contents of the subpoena or the information
furnished in response to the subpoena shall not be disclosed or the order concerns an
authorized investigation or prosecution of domestic or international terrorism; or,
(5) Directory Information. (34 C.F.R. 99.32).
4.
a. Education Records Subject to Inspection. With certain exceptions, a Student has the right to
inspect and review his/her Education Records.
b. Education Records
Subject to Inspection (34 C.F.R. 99.12). Some records related to a
Student may be “Education Records”, but are not subject to inspection by the Student.
TTUHSC reserves the right to refuse the inspection and review of certain records, including,
but not limited to:
(1) Financial information submitted by the Student’s parents, if applicable;
(2) Confidential letters and statements of recommendations associated with admissions,
employment or job placement, or honors, to which the Student has waived rights of
inspection and review;
(3) Confidential letters and statements of recommendation placed in the Education Records
of the Student prior to January 1, 1975, as long as the statements are used solely for the
purposes for which they were specifically intended; and,
(4) Education Records containing information regarding more than one Student, in which
case TTUHSC will permit access only to the part of the record that pertains to the
inquiring Student.
c.
Student Requests for Access of Education Records.
(1) A Student’s request for access to his/her Education Records should be made by
completing a Student Request for Access to His/Her Education Records form
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(Attachment B) and returning the form to the Records Custodian. The Student must
identify as precisely as possible the record(s) the Student wishes to inspect.
(2) Although principal locations for Student Education Records are referenced below, a
Student is in the best position to determine which offices or officials are likely to possess
his/her Education Records. If a Student is uncertain as to what office maintains the
records at issue, the Student shall submit a written request for assistance to the
Executive Vice President for Academic Affairs.
(3) Proper photographic identification must be presented to the Records Custodian before
the documents may be reviewed.
(4) Records authorized to be disclosed under FERPA will be made available to the Student
within forty-five (45) days from the Records Custodian’s receipt of the written request. If
the records are not excepted from access, and are covered by FERPA, the Records
Custodian will make arrangements for access and notify the Student of the time and
place the records may be inspected.
(5) Copies of all written requests are to be maintained in the Student file in which the
requested educational record is maintained.
d. Principal Locations for Student Education Records. Any TTUHSC office or official may
possess an Education Record regarding a Student. A Student is in the best position to
determine which offices or officials are likely to have his/her Education Records. Records
Custodians include, but are not limited to, the following offices and/or officials:
(1) Academic Records
(a) Registrar’s Office – admission records, basic scholastic records, and disciplinary
records when a Student is placed on suspension or is dismissed;
(b) Dean’s Office for each School – academic progress and disciplinary records; or,
(c) Admissions Office for each School – admission records.
(2) Student Services Records
(a) Registered Student organizations records;
(b) Disabled Student Records (ADA); or
(c) Disciplinary records.
(3) Financial Records.
(a) Student Business Services – Student tuition and fees; or,
(b) Student Financial Aid – Student loans.
e. Copies of Education Records (34 CFR 99.10(d)).
(1) Generally, if the Education Record is covered under FERPA, the Student may inspect or
review the Education Record at the office of the Records Custodian, but does not have
the right to receive copies of the Education Record unless a Student is effectively
prevented from onsite inspection or review of his/her Education Record. The Student
may then have a right to receive copies of the Education Record at the Student’s
expense after evaluation of the circumstances by the Records Custodian.
(2) Official copies of academic records or transcripts will not be released for Students who
have a delinquent or unpaid financial obligation to the University, have a “hold” at the
University, or have an unresolved disciplinary action pending at the University, provided
that applicable law does not otherwise require disclosure of the records.
(3) While TTUHSC is not required to give student access to treatment records under FERPA
(see section 1(b)(4) above), a Student may request in writing that those records be
reviewed by a physician or other appropriate professional of the student's choice.
5.
a. Informal Discussion. A Student who believes that his/her Education Records are inaccurate
or misleading, or that the records violate his/her privacy rights, must first request an informal
discussion regarding the questionable item with the Records Custodian, who may or may not
honor the request.
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b. Written Request to Amend Records. If the result of the informal discussion with the Records
Custodian is not satisfactory to the Student, and the Student still wishes to have the record
corrected, the Student should submit a Student Request to Amend Education Records form
(Attachment C) to the Executive Vice President for Academic Affairs or designee. The
request shall clearly identify the part of the record the Student believes should be changed,
and specify why it should be changed, i.e., why the Student believes the record is inaccurate,
misleading or in violation of his/her privacy rights.
c.
Review by the Executive Vice President for Academic Affairs. After receiving the written
request from the Student for a change in his/her Education Records, the Executive Vice
President for Academic Affairs (“EVPAA”) or designee shall request, and the Records
Custodian shall provide, a written statement that explains why the request for the change in
the Education Record was denied at the informal stage. After reviewing the request by the
Student and the response of the Records Custodian, the EVPAA or designee will provide
written notification to the Student whether or not TTUHSC will implement the change. If not,
the EVPAA or designee will notify the Student of the right to a hearing to challenge the
information believed by the Student to be inaccurate, misleading, or in violation of the
Student's rights.
d. Hearing Procedures (34 C.F.R. 99.22). Upon receiving a written request from the Student for
a hearing, the EVPAA or designee shall arrange for a hearing and provide written notice to
the Student reasonably in advance of the date, time and place of the hearing. The hearing
will be conducted according to the following procedures:
(1) The hearing shall be conducted by a hearing official or committee appointed by the
President or designee. Such individual(s) must have no direct interest in the outcome of
the case and shall decline to serve if a conflict of interest, or an appearance of a conflict
of interest, exists with either the Student or the Records Custodian.
(2) At least five (5) days prior to the date scheduled for the hearing, the Student and the
Records Custodian, shall submit to each other, as well as to the hearing official or
committee, any and all pertinent documents and a list of witnesses and advisors who are
to be involved in the hearing process. The Student may, at his/her own expense, be
assisted or represented by one or more individuals of his/her own choice, including an
attorney. If the Student has an advisor, the Office of General Counsel shall represent the
University. The Student and the Records Custodian are each responsible for presenting
relevant information. Therefore, the advisors and/or attorneys for the Parties are not
permitted to speak or participate directly in the hearing.
(3) At the hearing, the Student shall have the opportunity to present evidence to support
his/her position that the content of the relevant educational record is inaccurate,
misleading and/or otherwise in violation of the privacy rights of the Student.
(4) Any additional information regarding the hearing procedures will be provided to the
Student when notified of the right to a hearing.
(5) Within seven (7) business days after the conclusion of the hearing, the hearing officer or
chair of the hearing committee, if applicable, will transmit the decision in writing to the
Student, the Records Custodian, and the EVPAA or designee. The decision must include
a summary of the evidence and the reasons for the decision. If, as a result of the
hearing, the hearing official or committee determines that the information in the Education
Record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the
Student, the Student will be notified of the right to place a statement in the record
contesting the information in the record or stating why the Student disagrees with the
155
decision of the agency or institution, or both. Any statement provided by the Student
shall be maintained with the contested portion of the record for as long as the record is
maintained. In the event the contested portion of the record is later requested, the
statement shall be disclosed with the record to the extent it pertains to the contested
portion.
6.
Students will be notified of their FERPA rights annually through the TTUHSC Student Handbook /
Code of Professional and Academic Conduct, the TTUHSC orientation process, and the Office of
the Registrar website located at http://www.ttuhsc.edu/registrar . The TTUHSC Student
Handbook and this operating policy and procedure are available in hard copy to all Students who
request it. In addition to this notice, individual TTUHSC schools may annually notify Students of
their rights under FERPA.
7.
Students shall maintain an accurate, local physical address, with the TTUHSC Registrar’s Office.
These addresses are used for official notifications including, but not limited to, grade reports,
billing, and notification of university requirements and other correspondence. In addition,
Students may provide current telephone numbers to the Registrar’s Office.
8.
A Student has the right to file a complaint within 180 days of the alleged violation with the U.S.
Department of Education concerning alleged failures by TTUHSC to comply with the
requirements of FERPA. The name and address of the office that administers FERPA is:
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, DC 20202-4605.
9.
a. Banner is an integrated online and web-based student information system that includes
admissions, student records and financial aid information.
b. Each individual requesting access must complete the FERPA training referenced below and
the Confidentiality Agreement (Attachment D) and request access at
http://team.texastech.edu. The individual must select the “Request Access to Banner” link
and complete the required steps provided. Each School will have their Student Security
Administrator evaluate the request, determine whether access should be granted, and
forward their approval to the TTUHSC Registrar to grant the appropriate access level, if any.
c.
Each individual given access to Banner will be assigned a user name and password. In all
transactions, employees shall use their own user name and passwords. Each employee shall
keep his/her password confidential.
d. When additional access is needed, the employee shall make a request for additional access
to the School Student Security Administrator.
e. If a personnel change occurs, the Department Head/Supervisor shall notify the School
Student Security Administrator, and they will inform the TTUHSC Registrar to modify access
when an employee terminates employment or transfers to another department or campus.
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10.
a. As part of the general orientation of all new employees, the TTUHSC Office of Human
Resources will provide a brief introduction to FERPA and reference this policy.
b. In addition to the brief introduction for all employees, all new and existing faculty, staff and
volunteers who have access to Education Records shall receive detailed training regarding
FERPA and this policy. This training will be administered through the TTUHSC Registrar’s
Office.
c.
All training shall be documented in the Registrar’s Office. New employees (faculty and staff)
must complete the online FERPA training before obtaining BANNER Student access,
including access to the faculty and/or advisor portal in Webraider or grade course section
access. FERPA training will be required every two years for all faculty and staff. FERPA
compliance will be reviewed by the Office of the Registrar quarterly. All faculty and staff who
are not compliant will be notified by the Registrar and have 7-10 working days to become
compliant. After 10 working days, all access to the student information system will be
removed until training is completed and the Office of the Registrar is notified through the
TEAM site requesting access.
11.
a. An individual who uses or discloses information from an Education Record, or allows access
to an Education Record by another individual, in violation of this policy and/or state or federal
laws and regulations may be subject to disciplinary action, including, but not limited to,
dismissal/termination from TTUHSC.
b. Inappropriate use or misuse of Student Education Records is also a violation of federal and
state laws and regulations and could result in criminal and/or civil prosecution.
12.
TTUHSC reserves the right to interpret, change, modify, amend or rescind any policy in whole or
in part at any time without the consent of employees, faculty or Students.
: Attachment A, Student Consent to Release Education Records
Attachment B, Student Request to Access His/Her Education Records
Attachment C, Student Request to Amend Education Records
Attachment D, Confidentiality Agreement
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APPENDIX TAB H
Appellees’ Reply Addressing the Live Statutory Theory
CR 204–10.
No. 15-26-00132-CV
Filed 3/18/2026 3:29 PM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas
TB
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.”
1
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
5
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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
6
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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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APPENDIX TAB I
Appellant’s Postjudgment Answers to the Reply Grounds
CR 299–304.
No. 15-26-00132-CV
· March 13, 2026, 4:40 p.m. · Amended Notice of Submission (Envelope ID
112418015): ERROR. Defendants corrected a defect in the original Notice of
Submission within fifty-eight minutes by amendment; they did not correct the serviceto-Plaintiff defect that the eFileTexas system was simultaneously flagging on the face
of the paper.
· March 18, 2026, 3:29 p.m. · Reply in Support of the Plea (Envelope ID 112584730):
SENT to the nonexistent truncated address. Exhibit D.
· April 14, 2026, 3:28 p.m. · Response in Opposition: ERROR. Response at 9.
Three features of this record compound the defect. First, the Proposed Order ERROR certificate · on the document this Court signed · remained ERROR for the thirteen days between
filing and signing; the certificate was re-refreshed by re:SearchTX at 4:09 p.m. on March 26 and
still reported ERROR. Exhibit C, page 3. Defendants had thirteen days to correct or redirect service of the very document that became the judgment. They did neither. Second, on the face of
the March 13, 2026 Notice of Submission itself, Defendants· counsel hand-typed a Certificate of
Service listing Plaintiff·s correct email ·kbassphiladelphia@gmail.com,· while on the same page,
immediately below, the eFileTexas Automated Certificate of eService reported service to Plaintiff·s
truncated ·kbassphiladelphi@gmail.com· as ERROR. Exhibit B. Counsel thus typed the correct address by hand on the same document, on the same page, where the automated system simultaneously
reported failed delivery to the incorrect address. Third, on March 13, 2026 at 3:17 p.m. · nineteen minutes before Defendants filed the Notice of Submission through the eFileTexas system that
recorded ERROR · Defendants· counsel emailed Plaintiff at his correct address, kbassphiladelphia@gmail.com, about the FERPA-records subject matter of this state-court case. Exhibit F-2.
Counsel held the correct address, was actively using it, and typed it by hand on the face of the very
filing whose electronic service the system was flagging as failed.
Defendants· counsel·s asymmetric conduct is controlling. Counsel had Plaintiff·s correct
email address throughout and used it for direct correspondence with Plaintiff on a continuing
basis · beginning well before the March 3 service defect arose and continuing through March
30, 2026. On January 26, 2026, AAG Scott D. Smith emailed Plaintiff directly at kbassphiladel-
phia@gmail.com in this state case (DC-2025-CV-1817) regarding Plaintiff·s courtesy copy of the
Amended Petition and Notice of Nonsuit, expressly writing: ·Service via this email is fine.· Exhibit K (Gmail Message ID 19bfc077acc15dc1; subject ·Re: DC-2025-CV-1817 · Courtesy copy
of today·s eFiled Amended Petition and Notice of Nonsuit·). Counsel continued to use the correct
address on March 12 and March 13, 2026 concerning the FERPA-records subject matter of this
state-court action and on March 22 and March 30, 2026 concerning the parallel federal case (Bass
v. TTUHSC, No. 5:25-cv-00244-H-BV). Exhibits F-1 through F-4. Plaintiff·s Motion ¶ 40 and
Exhibit F summary-list at Motion page 12 referred to counsel·s January 26, 2026 email as the most
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299
recent use of Plaintiff·s correct address; that reference was correct as to the January 26 email·s exis-
tence and content but erroneous as to recency, because counsel continued to use the correct address
in the months following. The four March emails from counsel are re-tendered with this Reply as
Exhibits F-1 through F-4. The January 26, 2026 email is tendered with this Reply as Exhibit K, authenticated by its Gmail Message ID, with the original .eml preserved and available for the Court·s
or Defendants· forensic inspection upon request.
On April 15, 2026 at 12:06 p.m. Central Time · the day after filing the Response in Opposition, and twenty days after this Court signed the Order on Defendants· Plea · Karla Gutierrez of the
Office of the Attorney General transmitted the Response to Plaintiff by direct email at kbassphiladelphia@gmail.com, with Assistant Attorney General Scott D. Smith copied, under the subject line
·Courtesy Copy of Filed Response to Motion.· Exhibit I (Gmail Message ID 19d921bfa9f0f0ab).
The same direct-email channel, with the same two counsel, was available on March 13 (Notice of
Submission, Amended Notice of Submission, Proposed Order), March 18 (Reply in Support), and
April 2 (Clerk·s Notice of Judgment). Defendants declined to use it for any filing that would have
permitted Plaintiff to be heard before the Order was signed. They used it the day after the Order
secured them their relief.
A party that knows its chosen method of service is failing, holds the opposing party·s correct
address, and continues to rely on the failing method until after dispositive relief is obtained has not
served by a method reasonably calculated to apprise the opposing party of the pendency of the
proceedings. See Ewton v. Gayken, 130 S.W.3d 382, 384·85 (Tex. App.·Beaumont 2004, pet.
denied) (court clerk erred by relying on address of record when a correct forwarding address was
known); see also Mathis, 166 S.W.3d at 746 (citing Ewton as contrary authority to duty-to-keep-
current-address rule). Defendants· Argument C · that Rule 21a imposed no duty on them to
verify or troubleshoot Plaintiff·s profile · is beside the point. The question is not whether Rule
21a required Defendants to maintain Plaintiff·s profile; it is whether Rule 21a permitted Defendants
to rely on service they knew was failing. It did not. Cruz, 528 S.W.3d at 110 (·Failure to provide
proper notice results in a due process violation and mandates reversal.·).
VI.
PERALTA, LOPEZ, AND MATHIS REQUIRE NEW TRIAL
Defendants argue (Response § III.D) that ·due process is satisfied where a party is afforded a
meaningful opportunity to present his case· and that because Plaintiff filed a 78-page response to
the Plea, the opportunity was afforded. Response at 5 (citing Peralta, 485 U.S. at 84·86). That
reading inverts Peralta.
The Texas Supreme Court·s recent framing of dispositive rulings entered without the non-
moving party·s participation forecloses Defendants· approach before it begins. Four months ago
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300
in Tabakman v. Tabakman, No. 24-0919 (Tex. Dec. 5, 2025) (per curiam), the Court restated the
governing principles from In re Lakeside Resort JV, LLC, 689 S.W.3d 916 (Tex. 2024): ·Default
judgments are ·greatly disfavor[ed]· under Texas law, consistent with the strong policy preference
for adjudicating cases on the merits.· Tabakman (slip op. at 3) (citing Lakeside Resort, 689 S.W.3d
at 921, 925). The ·adversarial clash· ·increases the likelihood that accurate and truthful results
will emerge· through the ·collision of evidence and ideas.· Lakeside Resort, 689 S.W.3d at 920.
·Accordingly, any doubts about a default judgment · not just doubts about service · ·must be
resolved against the party who secured the default.· · Tabakman (slip op. at 4) (quoting Lakeside
Resort, 689 S.W.3d at 922). Mabon·s ·dispositive hearing· formulation (discussed below) brings
the March 26 Order within the Lakeside Resort category: dispositive relief obtained without the
non-moving party·s participation. Any doubt about whether Plaintiff received the Rule 21a service
or the Peralta notice due process requires must be resolved against Defendants, not against Plaintiff.
The Texas Supreme Court has held · with binding effect on this Court · that ·[o]nce
a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a
matter of due process under the Fourteenth Amendment to the federal constitution.· LBL Oil
Co. v. International Power Services, Inc., 777 S.W.2d 390, 390·91 (Tex. 1989) (per curiam) (citing
Peralta, 485 U.S. 80, and Lopez, 757 S.W.2d at 723). LBL Oil applied that rule on facts materially
indistinguishable from these: a post-appearance defendant had been denied notice of the motion for
default judgment, ·which effectively was his trial setting since it was dispositive of the case.· Id. at
391. The Court reversed. Id. Here, Plaintiff was denied notice of every filing leading to the March
26 Order · the March 13 Notice of Submission, the March 13 Amended Notice of Submission,
the March 13 Proposed Order itself, and the March 18 Reply in Support of the Plea · and of the
Clerk·s April 2 Notice of Judgment. The Plea to the Jurisdiction was, like the default motion in
LBL Oil, dispositive of the case. LBL Oil controls.
Peralta reversed the Texas courts for denying relief from a judgment entered without notice.
·Failure to give notice violates ·the most rudimentary demands of due process of law.· · 485 U.S.
at 84 (quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965)). The ·meaningful opportunity·
language in Peralta summarizes the standard; it does not supply an exception that would have
required the Peralta Court to affirm. The rule Defendants derive · that a party who once filed may
thereafter be denied notice of subsequent dispositive filings without a due-process violation · is
the rule Peralta rejected.
Peralta·s rule is stated at the level of general due-process principle: ·An elementary and
fundamental requirement of due process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.· 485 U.S. at 84 (quoting
Mullane, 339 U.S. at 314). The Texas Supreme Court has applied that requirement beyond the
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301
default-judgment context to any dispositive ruling entered without adequate notice and opportunity
to be heard. See Union Carbide Corp. v. Moye, 798 S.W.2d 792, 794 (Tex. 1990) (·the court
effectively deprived Union Carbide of its fundamental due process right to notice and a hearing·;
reversing venue ruling entered after movant was misled about the form of proof at the hearing).
The Court reaffirmed and refined that principle in Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369
S.W.3d 809, 813 (Tex. 2012) (per curiam): ·Entry of a post-answer default judgment against a
defendant who did not receive notice of the trial setting or dispositive hearing constitutes a denial
of due process under the Fourteenth Amendment of the United States Constitution.· Mabon·s
·dispositive hearing· formulation is controlling on the facts of this case. The March 13 Notice of
Submission set Defendants· Plea to the Jurisdiction for submission on the papers; the March 26
Order disposing of the Plea is the ·dispositive hearing· within Mabon. Plaintiff received no notice
of the submission, of the March 18 Reply, of the Proposed Order, or of the Proposed Order·s signing.
The due-process rule applies and Mabon controls.
The Texas Supreme Court adopted Peralta for Texas in Lopez: ·[B]ecause the record here
establishes that Guadalupe had no actual or constructive notice of the trial setting, the lower courts
erred in requiring him to show that he had a meritorious defense as a condition to granting his motion
for new trial,· and imposing that requirement ·in the absence of notice, violates due process rights
under the Fourteenth Amendment to the federal constitution.· 757 S.W.2d at 723. Mathis extended
Lopez: ·When the first element [of Craddock] is established by proof that the defaulted party was
not given notice of a trial setting, we have dispensed with the second element for constitutional
reasons.· 166 S.W.3d at 744.
Mathis also addressed, and rejected, the argument Defendants make here. The court of
appeals below had reasoned that a litigant has a duty ·to keep the court and parties apprised of
their correct and current address.· 166 S.W.3d at 746. The Texas Supreme Court replied: ·[E]ven
assuming there is such a duty, unless noncompliance was intentional rather than a mistake, due
process requires some lesser sanction than trial without notice or an opportunity to be heard.· Id.
The eFileTexas truncation is a data-entry mistake. Defendants do not argue otherwise. Under
Mathis, even if Plaintiff had a duty to audit his eFileTexas profile, the sanction Defendants seek ·
a final judgment on the merits of the Plea without opportunity to respond to the Reply or contest
the form of the Order · is not constitutionally available.
This Court sits within the jurisdiction of the Seventh Court of Appeals, which has applied the
Peralta/Lopez rule in Texas, including in recent decisions on closely analogous facts. See McDaniel
v. Hale, 893 S.W.2d 652 (Tex. App.·Amarillo 1994, writ denied). The Seventh Court most
recently applied the Lopez first-prong rule in Strong v. Brooks: ·When a party receives no notice
of a trial setting, she satisfies the first prong of Craddock and does not have to meet the remaining
prongs of the test to be entitled to a new trial.· No. 07-21-00004-CV, 2022 Tex. App. LEXIS 562,
15
302
302
at *4 (Tex. App.·Amarillo Jan. 26, 2022, no pet.) (mem. op.) (citing Lopez, 757 S.W.2d at 723).
Strong reversed and remanded for no-notice where the Rule 21a-authorized method · certified
mail · had failed to effect receipt. The same rule forecloses Defendants· position here, where the
Rule 21a-authorized method · eFileTexas transmission to the service-contact list · affirmatively
reported its own failure to effect receipt on every envelope.
Defendants· Response (at 5) recasts Plaintiff·s position as a complaint that he was ·denied·
the right to file a sur-reply. That is not Plaintiff·s position. Plaintiff did not see the March 13
Notice of Submission, the March 13 Amended Notice of Submission, the March 13 Proposed Order,
or the March 18 Reply. The absence of notice is not the absence of sur-reply rights · it is the
absence of the notice on which every downstream procedural choice depends: whether to request
oral argument, whether to object to submission on the papers, whether to seek leave to file a surreply, and whether to object to the form of the Proposed Order Defendants had pre-drafted for the
Court·s signature.
Defendants· Response does not cite Mabon, Lopez, Mathis, Strong, or McDaniel.
VII.
THE CRADDOCK/STRACKBEIN HARM SHOWING IS NOT REQUIRED AND IS
SATISFIED
Defendants cite Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984), for a harm standard Lopez and
Mathis dispense with in no-notice cases. 757 S.W.2d at 723; 166 S.W.3d at 744. Strackbein itself,
moreover, is the wrong side of Defendants· own case: the Texas Supreme Court there affirmed the
court of appeals· reversal of the trial court and ordered new trial, holding that the uncontroverted
affidavits established the Craddock elements and required the grant of new trial. 671 S.W.2d at 39.
Defendants cite, as authority against new trial, a Texas Supreme Court case that granted new trial.
The harm showing, if it applied, is satisfied. Defendants· March 18 Reply introduced three
arguments Plaintiff·s March 3 Response did not address · because he did not see the March 18
Reply until April 3.
First, academic deference, elevated. The Plea cited Ewing, Than, and Alcorn in one para-
graph on sovereign immunity (Plea at 4·5). The March 18 Reply promoted the line into a titled
section · ·Academic Record Administration Is Entitled to Judicial Deference· (§ II.D) · and extended it for the first time to records administration. Plaintiff·s Fourth Amended Petition expressly
disclaims any challenge to academic or disciplinary determinations; he seeks ultra vires relief for
non-performance of Tex. Gov·t Code § 559.004 and OP 77.13 records procedures. A responsive
brief could have distinguished records administration from academic judgment and shown that the
Ewing line has never been extended by the Texas Supreme Court to immunize the failure to discharge § 559.004 procedures.
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303
Second, the FERPA-analogy ripeness argument. The Reply introduced for the first time the
argument that OP 77.13·s access language should be narrowly construed by analogy to FERPA, 20
U.S.C. § 1232g, and 34 C.F.R. § 99.10. Reply § II.E at 5·6. The Plea cited neither provision. A
responsive brief could have shown that TTUHSC·s refusal to amend, after the 45-day OP 77.13
window expired on February 13, 2026, is by its own terms a final and definitive position, and that
Texas Dep·t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex.
2004), is distinguishable on its face.
Third, the Miranda futility argument. The Reply invoked for the first time the argument
that further amendment would be ·futile· under Texas Dep·t of Parks & Wildlife v. Miranda, 133
S.W.3d 217 (Tex. 2004). Reply § II.G at 7. The Plea cited Miranda only for a general sovereign-
immunity proposition (Plea at 4). A responsive brief would have identified specific factual allegations, including records produced since the Fourth Amended Petition, that support a Fifth Amended
Petition directly addressing Miranda·s negation standard. To demonstrate concrete non-futility of
amendment, Plaintiff tenders with this Reply, as Exhibit L, a proposed form of Fifth Amended
Verified Original Petition for the Court·s inspection subject to granting of new trial and leave under
Tex. R. Civ. P. 63. Exhibit L is not filed as the operative pleading of this cause; it is tendered as an
exhibit so that the Court may inspect, under Miranda, the particularized allegations Plaintiff would
assert upon leave. The proposed form supplies, on its face, the particularized jurisdictional allegations responsive to Miranda, the ministerial-versus-discretionary distinction, the scope of academic
deference, the inapplicability of FERPA analogy, and the expiration of OP 77.13·s forty-five-day
window · defeating any assertion that amendment is futile.
Beyond the substantive rebuttal opportunity, Plaintiff was prevented from (i) objecting to
submission without oral hearing and requesting oral argument on the Plea; (ii) filing a sur-reply
responsive to the three new arguments Defendants introduced in the March 18 Reply; (iii) seeking
leave under Tex. R. Civ. P. 63 to file a Fifth Amended Petition with particularized allegations
addressing Miranda·s negation standard, including records produced since the Fourth Amended
Petition (a proposed form of which Plaintiff tenders with this Reply as Exhibit L, for the Court·s
inspection only · not as the operative pleading of this cause); (iv) moving to strike the portions of
the March 18 Reply that exceeded rebuttal by raising new matter; (v) filing supplemental evidence
and affidavits in opposition, including documents produced by Defendants and agency counsel
since the Plea was filed; (vi) moving for continuance of the submission date to permit preparation
of the foregoing; and (vii) objecting to the form of the Proposed Order Defendants had pre-drafted
on March 13 and tendered for the Court·s signature. Each of these steps was procedurally available
to a timely-notified opposing party; several would have been pursued as of right. The Court signed
that Proposed Order on March 26. Had Plaintiff been present · by direct email, as Defendants·
counsel has since demonstrated was possible · the record before the Court at signing would have
17
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304
APPENDIX TAB J
Electronic-Service Certificates
CR 200, 203, 213, 216, and 437.
No. 15-26-00132-CV
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: 112412497
Filing Code Description: NOTC - Notice
Filing Description: Notice of Submission
Status as of 3/13/2026 3:55 PM CST
Associated Case Party: Darrin D'Agostino
Karla Gutierrez
karla.gutierrez@oag.texas.gov
3/13/2026 3:42:10 PM
SENT
Scott D. Smith
scott.smith@oag.texas.gov
3/13/2026 3:42:10 PM
SENT
Associated Case Party: Kevin Bass
Kevin N. Bass
kbassphiladelphi@gmail.com
3/13/2026 3:42:10 PM
ERROR
200
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: 112418015
Filing Code Description: Amended Filing
Filing Description: Amended Notice of Submission
Status as of 3/13/2026 4:45 PM CST
Associated Case Party: Darrin D'Agostino
Karla Gutierrez
karla.gutierrez@oag.texas.gov
3/13/2026 4:40:34 PM
SENT
Scott D. Smith
scott.smith@oag.texas.gov
3/13/2026 4:40:34 PM
SENT
Associated Case Party: Kevin Bass
Kevin N. Bass
kbassphiladelphi@gmail.com
3/13/2026 4:40:34 PM
ERROR
203
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
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
Kevin N. Bass
kbassphiladelphi@gmail.com
3/18/2026 3:29:07 PM
SENT
213
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: 112411933
Filing Code Description: ORDR - Order
Filing Description: 20260313_Proposed Order
Status as of 3/26/2026 4:09 PM CST
Associated Case Party: Darrin D'Agostino
Karla Gutierrez
karla.gutierrez@oag.texas.gov
3/13/2026 3:36:55 PM
SENT
Scott D. Smith
scott.smith@oag.texas.gov
3/13/2026 3:36:55 PM
SENT
Associated Case Party: Kevin Bass
Kevin N. Bass
kbassphiladelphi@gmail.com
3/13/2026 3:36:55 PM
ERROR
216
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.
Envelope ID: 115396083
Filing Code Description: ORDM - Order To Deny Motion
Filing Description: DC-2025-CV-1817 - Order Denying Plaintiff's Sworn
Motion and Motion for New Trial
Status as of 5/27/2026 2:25 PM CST
Case Contacts
Tristan AGarza
tristan.garza@oag.texas.gov
5/27/2026 2:23:09 PM
SENT
Karla Gutierrez
karla.gutierrez@oag.texas.gov
5/27/2026 2:23:09 PM
SENT
Scott D. Smith
scott.smith@oag.texas.gov
5/27/2026 2:23:09 PM
SENT
Kevin N. Bass
kbassphiladelphi@gmail.com
5/27/2026 2:23:09 PM
ERROR
437
APPENDIX TAB K
Clerk’s Rule 306a(3) Notice of Judgment
CR 217.
No. 15-26-00132-CV
OFFICE OF THE DISTRICT CLERK
ROOM 105, COURTHOUSE
P O BOX 10536
LUBBOCK, TEXAS 79408-3536
(806) 775-1317
FAX (806) 775-7992
SARA L. SMITH
DISTRICT CLERK
ALEXANDRA GONGORA
CHIEF DEPUTY
April 02, 2026
Lauren Cobbs
3601 4th Street Room 2B440
Lubbock, TX 79415
3601 4th Street
Lubbock, TX 79415
John C. Detoledo, M.D.
3601 4th Street
Lubbock, TX 79430
Tamara Mancini
3601 4th Street
Lubbock, TX 79415
Amanda McSween
3601 4th Street
Lubbock, TX 79415
Mia Myers
3601 4th Street
Lubbock, TX 79430
Lori Rice-Spearman
3601 4th Street
Lubbock, TX 79415
Simon Williams
3601 4th Street
Lubbock, TX 79415
Re:
Cause No. DC-2025-CV-1817
In the 237th District Court of Lubbock County, Texas
Kevin Bass vs. Lori Rice-Spearman,Darrin D'Agostino,Amanda McSween,Lauren Cobbs,Tamara Mancini,Simon Williams,Mia
Myers,John DeToledo
JUDGMENT NOTICE
__x____
In compliance with Rule 306a(3) of the Texas Rules of Civil Procedure, you are hereby notified that an Order On
was signed in the above styled and
numbered cause on March 26, 2026 . If you are an individual (not a company), you
may have a right to claim exemptions to protect your property against seizure for
satisfaction of this judgment. Find out more by visiting TexasLawHelp.org.
______
In compliance with Rule 239(a) of the Texas Rules of Civil Procedure, you are
hereby notified that a default judgment was signed in the above styled and numbered
cause on . Judgment was entered in favor of Kevin Bass and
against Lori Rice-spearman.
______
NOTICE OF SIGNING OF FINAL DIVORCE DECREE. In compliance with Rule 306(a)(3) of the Texas Rules of
Civil Procedure or Section 6.710 of the Texas Family Code, you are hereby notified that Divorce Decree was signed in the
above styled and numbered cause on .
The original decree or order is on file in the office of the District Clerk of Lubbock County, Texas, and a copy can be obtained in the District
uest a copy by
emailing dcarchives@lubbockcounty.gov. Copy costs are $1.00 per page. Please bring payment with you in the form of cash, credit/debit card,
or money order. The total cost may be obtained by contacting the Archives Department at 806-775-1322.
Dated:
April 02, 2026
_______________________________________
Tammie Bell, Deputy District Clerk
217
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.
Envelope ID: 119036786
Filing Code Description: Brief Requesting Oral Argument
Filing Description:
Status as of 8/25/2026 7:20 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Scott Smith 24011874
scott.smith@oag.texas.gov
8/24/2026 11:58:40 PM
SENT
Kevin Bass
kbassphiladelphia@gmail.com 8/24/2026 11:58:40 PM
SENT