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Appellees' Brief

Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-09-23 · PDF

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ACCEPTED
15-26-00132-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/23/2026 5:46 PM
No. 15-26-00132-CV
MICHAEL A. CRUZ
CLERK
_____________________________________________
FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS
9/23/2026 5:46:44 PM
MICHAEL A. CRUZ
Clerk

In the Court of Appeals
for the Fifteenth Judicial District, Austin, Texas
_____________________________________________
KEVIN N. BASS,
Plaintiff-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,
Defendants-Appellees.
_____________________________________________
On Appeal from the 237th Judicial District Court
Lubbock County, Texas
Trial Court Case Number: DC-2025-CV-1817
_____________________________________________
APPELLEES’ BRIEF
_____________________________________________
KEN PAXTON
Attorney General

SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
Office of the Attorney General of Texas
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 917-3132

BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General

i

WILLIAM WASSDORF
Division Fax: (512) 477-2348
Deputy Attorney General for Civil Litigation Email: scott.smith@oag.texas.gov
COUNSEL FOR DEFENDANTSAPPELLEES

KIMBERLY GDULA
Chief, General Litigation Division

ORAL ARGUMENT NOT REQUESTED

ii

IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellees
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, provide this Court with the following list of parties and the names
and addresses of all trial and appellate counsel:
Plaintiff-Appellant:
Kevin N. Bass, pro se
kbassphiladelphia@gmail.com
Defendants-Appellees:
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 Defendants-Appellees:
Scott D. Smith
Assistant Attorney General
Texas Bar No. 24011874
iii

Office of the Attorney General of Texas
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
scott.smith@oag.texas.gov
Other parties in the trial court:
Lori Rice-Spearman, Lauren Cobbs, Tamara Mancini, Simon Williams, Mia Myers,
and John C. DeToledo were named as defendants but were nonsuited on January 22,
2026. They are not parties to this appeal.

iv

TABLE OF CONTENTS

ORAL ARGUMENT NOT REQUESTED ............................................................... ii
IDENTITY OF PARTIES AND COUNSEL ........................................................... iii
TABLE OF CONTENTS ...........................................................................................v
INDEX OF AUTHORITIES .................................................................................. viii
STATEMENT OF THE CASE...................................................................................x
STATEMENT REGARDING ORAL ARGUMENT .............................................. xii
STATEMENT OF THE ISSUES PRESENTED.................................................... xiii
STATEMENT OF FACTS .........................................................................................1
A. Bass’s claims concerning TTUHSC’s education-record procedures...............1
B. Appellees’ Plea to the Jurisdiction and Bass’s response .................................2
C. The trial court grants Appellees’ Plea to the Jurisdiction ................................3
D. Bass’s post-judgment motion and the May 21 hearing ...................................4
SUMMARY OF THE ARGUMENT .........................................................................6
ARGUMENT AND AUTHORITIES ........................................................................9
I.

Standard of Review. .........................................................................................9

II. The trial court did not abuse its discretion in denying Bass’s motion for new
trial. .......................................................................................................................11
A. Bass received the dispositive Plea and had a meaningful opportunity to
respond to the jurisdictional grounds for dismissal. .............................................12
B. Bass had no absolute right to oral argument or to file a sur-reply.................14
C. Nonreceipt of the proposed order does not establish reversible error. ..........16
D. The failure to receive notice of the paper-submission date does not establish
that the denial of a new trial was an abuse of discretion. .....................................17
E. The May 21 hearing gave the trial court an opportunity to consider Bass’s
claimed prejudice while it retained plenary power...............................................18
v

F. Bass has not demonstrated reversible harm under Rule 44.1. .......................22
III. Bass was not denied due process because he received notice of the
dispositive Plea and a meaningful opportunity to respond. .................................23
A. Bass received notice that Appellees sought dismissal and was heard before
the trial court ruled. ..............................................................................................23
B. Bass’s no-notice authorities are materially distinguishable. .........................25
C. The May 21 proceedings further distinguish this case from Bass’s no-notice
authorities. ............................................................................................................28
D. Bass’s procedural complaints do not transform this case into a no-notice dueprocess violation. ..................................................................................................30
IV. The trial court properly granted the Plea to the Jurisdiction because Bass
failed to plead an ultra vires claim. ......................................................................30
A. The ultra vires exception does not permit courts to control an official’s
exercise of lawful discretion. ................................................................................31
B. Section 559.004 requires TTUHSC to establish a reasonable correction
procedure, but it does not prescribe the ministerial acts Bass sought to compel. 32
C. HSC OP 77.13 does not transform TTUHSC’s administration of student
records into a series of judicially enforceable ministerial duties. ........................35
D. The relief requested in Bass’s Fourth Amended Petition confirms that his
claims sought judicial control over discretionary administrative matters............37
E. Bass’s narrower appellate characterization cannot supply jurisdiction that his
live pleading did not invoke. ................................................................................39
V. Bass is not entitled to another opportunity to amend his pleadings. .............40
A. A plaintiff is not entitled to repeated opportunities to amend after failing to
cure identified jurisdictional defects. ...................................................................40
B. Bass had repeated opportunities to plead a viable ultra vires claim..............42
C. Bass admittedly did not plead the narrow “one-step” theory he now
proposes. ...............................................................................................................44
D. The service issues do not entitle Bass to another amendment. .....................45
vi

E. The trial court properly dismissed without granting another opportunity to
replead...................................................................................................................47
PRAYER ..................................................................................................................48

vii

INDEX OF AUTHORITIES
Cases
Armstrong v. Manzo,
380 U.S. 545, 552 (1965) ....................................................................................24
B. Gregg Price, P.C. v. Series 1—Virage Master LP,
661 S..3d 419, 423--25 (Tex. 2023)......................................................................28
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000) ..........................................................................10
City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009) ........................................................................10
Etheredge v. Hidden Valley Airpark Ass’n,
169 S.W.3d 378, 381-84 (Tex. App.--Fort Worth 2005, pet. denied) ...................26
Exxon Mobil Global Services v. State Office of Administrative Hearings,
727 S.W.3d 590, 597--98 (Tex. App.--15th Dist. 2025) .......................................38
Fraley v. Texas A&M University System,
664 S.W.3d 91, 101--02 (Tex. 2023) ....................................................................42
Hall v. McRaven,
508 S.W.3d 232, 238 (Tex. 2017 .................................................................. passim
Hamilton v. Williams,
298 S.W.3d 334, 338 (Tex. App.--Fort Worth 2009, pet. denied)………………20
Harris County v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004) .........................................................................42
Hensley v. Salinas,
583 S.W.2d 617 (Tex. 1979), ...............................................................................20
Houston Belt & Terminal Ry. Co. v. City of Houston,
487 S.W.3d 154, 158, 163 (Tex. 2016) ................................................................32
In re Commitment of Jones,
602 S.W.3d 908, 913–14 (Tex. 2020) .................................................................. 11
In re Marriage of Rangel & Tovias-Rangel,
580 S.W.3d 675, 680–81 (Tex. App.—Houston [14th Dist.] 2019, no pet.) .......21
LBL Oil Co. v. International Power Services, Inc.,
777 S.W.2d 390, 390--91 (Tex. 1989) (per curiam) ............................................25
viii

Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc.,
143 S.W.3d 538, 543-45 (Tex. App--Austin 2004, no pet.) .................................26
Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007) ........................................................................ 11
Mabon Ltd. v. Afri-Carib Enterprises, Inc.,
369 S.W.3d 809, 812-13 (Tex. 2012) ............................................................ 25, 26
Martin v. Martin, Martin & Richards,
Inc., 989 S.W.2d 357, 359–60 (Tex. 1998) (per curiam).....................................14
Mathis v. Lockwood,
166 S.W.3d 743, 744 (Tex. 2005) (per curiam) ....................................................27
Matzen v. McLane,
659 S.W.3d 381, 388 (Tex. 2021) .........................................................................10
Peralta v. Heights Med. Ctr., Inc.,
485 U.S. 80, 84 (1988) ........................................................................................24
Sharma v. Texas Tech University Health Sciences Center El Paso,
No. 15-25-00007-CV, 2025 WL 1203502, at *2 (Tex. App--15th Dist. Apr. 24,
2025, no pet.) (mem. op) ......................................................................................42
Sw. Bell Tel., L.P. v. Emmett,
459 S.W.3d 578, 587 (Tex. 2015) ........................................................................32
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004) ..........................................................................9
Tex. Dep’t of Transp. v. Ramirez,
74 S.W.3d 864, 867 (Tex. 2002) ..........................................................................10
Texas A&M University Department of Transportation, Parking Services
Department v. Reeves,
708 S.W.3d 312, 320--21 (Tex. App.--15th Dist. 2025, no pret.)..........................42
Texas Sting, Ltd. v. R.B. Foods, Inc.,
82 S.W.3d 644, 648–49 (Tex. App.—San Antonio 2002, pet. denied) ................19
Union Carbide Corp. v. Moye,
798 S.W.2d 792, 793--94 (Tex 1990) ...................................................................27
Waffle House, Inc. v. Williams,
313 S.W.3d 796, 813 (Tex. 2010) ........................................................................ 11
Statutes
Tex. Gov’t Code § 559.004 ....................................................................... 1, 7, 32, 34
ix

Rules
Tex. R. Civ. P. 21(b), 21d(a).....................................................................................17
Tex. R. Civ. P. 305 ....................................................................................................16
Tex. R. Evid. 103(a)(2) ............................................................................................21
Tex. R. App. P. 44.1(a)……………....………………………………….12,18,24,25
Tex. R. App. P. 33.1(a)…………………….………………………………………23
STATEMENT OF THE CASE
Nature of the Case:
Appellant Kevin N. Bass (“Bass”), proceeding pro se, brought this ultra vires
action against Appellees 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 (“TTUHSC”), and Amanda McSween, in her
official capacity as Managing Director of Enrollment Services and University
Registrar of TTUHSC. In his live Fourth Amended Verified Original Petition, Bass
alleged that Appellees failed to comply with duties he contends arise under Texas
Government Code section 559.004 and TTUHSC HSC OP 77.13 concerning access
to and correction of education records. CR 103–19.
Trial Court:
Cause No. DC-2025-CV-1817, in the 237th Judicial District Court of Lubbock
County, Texas, the Honorable Les Hatch presiding.

x

Course of Proceedings:
Appellees filed a Plea to the Jurisdiction or, in the Alternative, Plea in
Abatement, asserting that sovereign immunity barred Bass’s claims because the
challenged conduct did not fall within the ultra vires exception to immunity. CR 43–
102. On March 3, 2026, Bass filed his Fourth Amended Verified Original Petition
and a response to Appellees’ Plea to the Jurisdiction. CR 103–97. Appellees
thereafter filed a reply addressing the allegations in Bass’s live pleading. CR 204–
13. On March 26, 2026, the trial court granted Appellees’ Plea to the Jurisdiction and
dismissed Bass’s claims without prejudice for lack of subject-matter jurisdiction. CR
214–15.
Bass subsequently filed a sworn motion under Texas Rule of Civil Procedure
306a(5) and a motion for new trial. CR 218–70. Following a hearing on May 21,
2026, the trial court denied the motion for new trial by written order signed May 27,
2026. CR 435–36. Bass timely perfected this appeal.
Trial Court’s Disposition:
The trial court granted Appellees’ Plea to the Jurisdiction, found that it lacked
subject-matter jurisdiction over Bass’s claims, and dismissed those claims without
prejudice. CR 214–15. The trial court subsequently denied Bass’s motion for new
trial. CR 435–36.
xi

STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe oral argument is necessary. The dispositive issues
can be resolved by application of settled principles governing sovereign immunity,
ultra vires claims, preservation, and harmful error to the pleadings and procedural
record before the Court. Bass received Appellees’ Plea to the Jurisdiction and filed
a comprehensive response addressing the jurisdictional issues presented to the trial
court. The record therefore permits resolution of Bass’s appellate arguments without
oral argument. If the Court nevertheless determines that oral argument would assist
its consideration of the appeal, Appellees request the opportunity to participate and
answer the Court’s questions.

xii

STATEMENT OF THE ISSUES PRESENTED
1.

Did the trial court abuse its discretion in denying Bass’s motion for new

trial where Bass received Appellees’ Plea to the Jurisdiction, filed a comprehensive
response addressing the jurisdictional issues, and failed to demonstrate that the
alleged service and notice deficiencies probably caused the rendition of an improper
judgment or prevented him from properly presenting his case on appeal?
2.

Was Bass afforded due process where he received notice of the

dispositive Plea to the Jurisdiction and a meaningful opportunity to respond before
the trial court ruled?
3.

Did the trial court properly grant Appellees’ Plea to the Jurisdiction

because Bass failed to plead conduct falling within the ultra vires exception to
sovereign immunity?
4.

Is Bass entitled to another opportunity to amend where he repeatedly

amended his pleadings, tendered an additional proposed amendment after dismissal,
and nevertheless failed to plead a viable ultra vires claim?

xiii

STATEMENT OF FACTS
A.

Bass’s claims concerning TTUHSC’s education-record procedures
Bass’s claims arise from his efforts to inspect and seek amendment of

education records maintained by Texas Tech University Health Sciences Center
(“TTUHSC”). In his live Fourth Amended Verified Original Petition (“Fourth
Amended Petition”), Bass asserted an ultra vires claim against Darrin D’Agostino
and Amanda McSween in their official capacities. CR 103–19. He alleged that
TTUHSC’s handling of his requests failed to comply with Texas Government Code
section 559.004 and TTUHSC HSC OP 77.13, TTUHSC’s policy governing student
education records. CR 103–19.
Section 559.004 requires a state governmental body to establish a “reasonable
procedure” through which an individual may seek correction of information about
that individual and provides that the procedure “may not unduly burden” an
individual using it. Tex. Gov’t Code § 559.004. TTUHSC has established HSC OP
77.13 as its procedure governing student education records. CR 149–57.
Bass alleged that TTUHSC provided him with four escorted review sessions
to inspect approximately 1,600 education-record items spanning approximately
1,500 pages, as well as a 14-hour video, but he challenged the conditions under
which that access was provided and alleged that certain records remained
unavailable. CR 107–13. He also alleged that he submitted a request under Step 2 of
1

HSC OP 77.13 seeking amendment of his records and had not received a written
disposition of that request. CR 109–13. The Step 2 request was directed to Dr. Erin
Justyna, with D’Agostino and McSween copied on the request. CR 109.
Bass’s requested relief went beyond a written disposition of that request.
Among other things, the Fourth Amended Petition asked the trial court to impose
requirements concerning additional inspection sessions, deadlines, scheduling,
organization and pagination of records, an inventory of records, preservation
requirements, tolling, and a compliance notice. CR 115–16.
B.

Appellees’ Plea to the Jurisdiction and Bass’s response
On February 9, 2026, Appellees filed a Plea to the Jurisdiction or, in the

Alternative, Plea in Abatement. CR 43–102. Appellees asserted that Bass’s claims
were barred by sovereign immunity because his allegations challenged discretionary
administrative conduct rather than acts falling within the narrow ultra vires
exception to immunity. CR 43–102.
On March 3, 2026, while the Plea remained pending, Bass filed his Fourth
Amended Petition. CR 103–19. That same day, he filed a 78-page response to
Appellees’ Plea. CR 120–97. Although the Plea had preceded the Fourth Amended
Petition, Bass’s response presented his theory under section 559.004 and HSC OP
77.13 and addressed, among other subjects, whether the challenged conduct
involved discretion, whether an internal policy could support an ultra vires claim,
2

academic deference, the extent of Bass’s access to the records, ripeness, the identity
of the proper officials, and Bass’s request for an opportunity to amend. CR 120–97.
Bass thus addressed the principal jurisdictional issues ultimately presented to the
trial court.
Appellees filed their reply on March 18, 2026. CR 204–13. The reply applied
Appellees’ jurisdictional arguments to Bass’s live Fourth Amended Petition and
addressed the statutory theory Bass had advanced in his response. CR 204–13. It
argued, among other things, that section 559.004 does not impose the purely
ministerial duties Bass sought to enforce; that HSC OP 77.13 does not transform
discretionary administrative decisions into ministerial acts; that Bass’s claims
challenged

discretionary

implementation

of

TTUHSC’s

education-record

procedures; and that further amendment would be futile. CR 204–10.
C.

The trial court grants Appellees’ Plea to the Jurisdiction
The Plea was set for submission without oral argument. Bass did not receive

the notices of submission, Appellees’ reply, or Appellees’ proposed order because
the electronic-service system contained an incorrect email address for him. 1 RR 7–
8; CR 200, 203, 213, 216.
The incorrect email address was associated with Bass as an electronic service
contact. Bass was alerted to the problem on March 3, when system-generated notices
showed that service to the truncated address was undeliverable, but he did not correct
the service contact or otherwise raise the issue before the trial court ruled. CR 275–
76. Bass later asserted that his eFileTexas user profile contained his correct email

1

3

On March 26, 2026, after considering Appellees’ Plea, Bass’s response,
Appellees’ reply, the pleadings on file, and the applicable law, the trial court granted
the Plea to the Jurisdiction. CR 214–15. The court determined that it lacked subjectmatter jurisdiction over Bass’s claims and dismissed them without prejudice. CR
214–15. Although the proposed order also contained language granting Appellees’
alternative plea in abatement, the trial court struck that portion of the order. CR 214–
15.
D.

Bass’s post-judgment motion and the May 21 hearing
On April 3, 2026, Bass filed a sworn motion under Texas Rule of Civil

Procedure 306a(5) and a motion for new trial. CR 218–70. Bass asserted, among
other things, that he had not received notice of the submission date, Appellees’ reply,
or the proposed order and argued that the lack of notice deprived him of an
opportunity to respond before the trial court ruled. CR 218–70.
Bass also submitted proposed answers to the arguments contained in
Appellees’ reply and tendered a proposed Fifth Amended Petition. CR 299–304,
366–89. The proposed Fifth Amended Petition continued to request relief concerning
inspection sessions and deadlines, organization and pagination of records, an

address and that the discrepancy instead appeared in the court’s case-management
system. CR 284–85.
4

inventory, tolling, preservation and logging requirements, and a compliance notice.
CR 304, 366–89.
The trial court held a hearing on Bass’s post-judgment motion on May 21,
2026. RR 1–15. At the outset, the court denied Bass’s Rule 306a(5) request,
concluding that the rule did not apply because Bass admittedly received actual notice
of the March 26 order within eight days and had timely preserved his ability to
challenge it. RR 4–5. At the hearing, the court acknowledged that Bass had not
received the submission notice, Appellees’ reply, or the proposed order because of
the email-address issue. RR 7–8. The court considered Bass’s contention that the
lack of notice prevented him from responding before the Plea was decided. RR 4–
13. Bass also requested that the court receive testimony and exhibits concerning the
service issue and the opportunity he contended he had lost. RR 7, 12–13. The court
declined to receive additional evidence. RR 12–13. No witness was sworn, no
exhibit was marked and rejected, and Bass made no formal offer of proof identifying
the proposed testimony.
On May 27, 2026, the trial court signed a written order denying Bass’s motion
for new trial. CR 435–36. The court concluded, among other things, that Bass had
been heard through his March 3 response to the Plea, that the court would not have
considered a sur-reply before ruling on the Plea, and that Bass’s inability to object
to the proposed order did not warrant a new trial. CR 435–36.
5

Bass thereafter perfected this appeal. CR 438–41.
SUMMARY OF THE ARGUMENT
The trial court’s judgment should be affirmed. Bass received Appellees’ Plea
to the Jurisdiction and filed a comprehensive, 78-page response addressing the
jurisdictional issues presented by the Plea. Although Bass did not receive notice of
the submission date, Appellees’ reply, or the proposed order because of an incorrect
email address in the electronic-service system, those service deficiencies did not
deprive him of notice of the dispositive motion or a meaningful opportunity to
oppose dismissal. Nor has Bass demonstrated that the alleged errors probably caused
the rendition of an improper judgment or prevented him from properly presenting
his case on appeal.
Bass’s own account of the proceedings confirms that Appellees’ reply did not
inject a new jurisdictional theory into the case. Before the trial court ruled, Bass had
already addressed the principal issues on which Appellees relied, including whether
section 559.004 imposed ministerial duties, the significance of HSC OP 77.13,
administrative discretion, academic deference, the extent of Bass’s access to his
records, ripeness, the identity of the proper officials, and amendment. Bass had no
absolute right to file a sur-reply or to present oral argument before the Plea was
decided. And although he did not receive Appellees’ proposed order before it was
submitted, he identifies no substantive provision of that proposed order that probably
6

affected the jurisdictional disposition. The trial court independently modified the
proposed order by striking the provision granting Appellees’ alternative plea in
abatement before signing it. CR 214–15.
The subsequent proceedings further demonstrate why reversal is unwarranted.
Bass presented his complaints concerning notice and service in a motion for new
trial, and the trial court conducted a hearing at which those complaints were
addressed. The court acknowledged the service problem but concluded that Bass had
already been heard through his extensive response to the Plea and that the additional
opportunities he claimed to have lost would not have altered the proceedings. CR
435–36. To the extent Bass now complains that the trial court prevented him from
developing additional evidence at that hearing, the record contains no sworn
testimony, excluded exhibit, or formal offer of proof identifying the evidence he
contends the court should have considered. The procedural irregularities Bass
identifies therefore do not establish reversible error.
The judgment should also be affirmed for the more fundamental reason that
Bass failed to plead a claim within the ultra vires exception to sovereign immunity.
Section 559.004 requires a governmental body to establish a “reasonable procedure”
for correcting information and provides that the procedure may not “unduly burden”
an individual. Tex. Gov’t Code § 559.004. TTUHSC established such a procedure
through HSC OP 77.13. Bass’s disagreement concerns how TTUHSC administered
7

that procedure—including the format and conditions of inspection, copying and
recording restrictions, scheduling, organization of records, and the handling of his
amendment request. Those matters necessarily involve administrative judgment;
section 559.004 does not prescribe the purely ministerial acts Bass seeks to compel.
Appellees therefore did not act without legal authority or fail to perform a ministerial
act merely because Bass disagrees with the manner in which TTUHSC administered
its records procedures.
HSC OP 77.13 does not change that conclusion. The existence of an internal
university policy does not itself establish that every procedural direction contained
in the policy constitutes a ministerial duty enforceable through an ultra vires action.
Indeed, Bass now acknowledges that an internal policy alone cannot enlarge the trial
court’s jurisdiction. His requested relief further demonstrates the discretionary
nature of his claims: the Fourth Amended Petition asked the trial court to supervise
such matters as inspection sessions, deadlines, scheduling, organization and
pagination of records, an inventory, preservation requirements, tolling, and a
compliance notice. Even Bass’s proposed Fifth Amended Petition continued to seek
much of that relief. Sovereign immunity therefore deprived the trial court of subjectmatter jurisdiction.
Finally, Bass is not entitled to yet another opportunity to amend. He amended
his petition four times before dismissal and submitted a proposed Fifth Amended
8

Petition in connection with his post-judgment motion. Yet the proposed Fifth
Amended Petition still did not cure the jurisdictional defects. Bass now asks this
Court to remand so that he may pursue an even narrower theory requiring a single
official to issue a written disposition of his amendment request. But Bass
acknowledges that this “exact one-step formulation” was not included even in the
proposed Fifth Amended Petition he tendered to the trial court. A plaintiff is entitled
to a reasonable opportunity to cure remediable jurisdictional defects; he is not
entitled to serial opportunities to formulate new theories after repeated amendments
fail to invoke the trial court’s jurisdiction. Bass had ample opportunity to plead a
viable ultra vires claim and failed to do so; further amendment would therefore be
futile.
The trial court correctly granted Appellees’ Plea to the Jurisdiction and acted
within its discretion in denying Bass’s motion for new trial. The Court should affirm
the judgment.
ARGUMENT AND AUTHORITIES
I.

Standard of Review.
Whether a trial court has subject-matter jurisdiction is a question of law

reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). A plea to the jurisdiction challenges the trial court’s authority to decide
the subject matter of the plaintiff’s claims. Id.; Bland Indep. Sch. Dist. v. Blue, 34
9

S.W.3d 547, 554 (Tex. 2000). The plaintiff bears the burden to plead facts
affirmatively demonstrating the trial court’s jurisdiction. Tex. Dep’t of Transp. v.
Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam).
When, as here, a plea challenges the pleadings, the court determines whether
the plaintiff has alleged facts affirmatively demonstrating subject-matter
jurisdiction. Miranda, 133 S.W.3d at 226. The court construes the pleadings liberally
in the plaintiff’s favor, looks to the pleader’s intent, and accepts the pleaded
jurisdictional facts as true. Id. If the pleadings affirmatively negate the existence of
jurisdiction, however, the plea may be granted without allowing an opportunity to
amend. Id. at 227.
Whether sovereign immunity has been waived or an asserted claim falls
within the ultra vires exception to immunity presents a question of subject-matter
jurisdiction and is likewise reviewed de novo. See Matzen v. McLane, 659 S.W.3d
381, 388 (Tex. 2021); Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). To invoke
the ultra vires exception, a plaintiff must allege that a government officer acted
without legal authority or failed to perform a purely ministerial act; an official does
not act ultra vires merely by exercising discretion within the bounds of authority
conferred by law. Hall, 508 S.W.3d at 238, 241–43; City of El Paso v. Heinrich, 284
S.W.3d 366, 372 (Tex. 2009).

10

A trial court’s denial of a motion for new trial is reviewed for abuse of
discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial
court abuses its discretion only when it acts arbitrarily or unreasonably or without
reference to guiding rules or principles. Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007). Under this standard, an appellate court does not substitute its judgment for
that of the trial court merely because it might have reached a different conclusion.
Id.
Finally, even when a trial court commits an error of law, reversal is warranted
only if the error “probably caused the rendition of an improper judgment” or
“probably prevented the appellant from properly presenting the case to the court of
appeals.” Tex. R. App. P. 44.1(a). The harmful-error inquiry requires consideration
of the entire record, and the complained-of error must have probably, rather than
merely possibly, caused the requisite harm. In re Commitment of Jones, 602 S.W.3d
908, 913–14 (Tex. 2020).
II.

The trial court did not abuse its discretion in denying Bass’s motion for
new trial.
Bass’s first two issues focus principally on his failure to receive Appellees’

reply, the proposed order, and the notices setting the Plea to the Jurisdiction for
submission. The record establishes that Bass did not receive those documents
because they were electronically transmitted to an incorrect email address. RR 7–8;
CR 200, 203, 213, 216. Appellees do not dispute that fact. But nonreceipt alone does
11

not establish that the trial court abused its discretion by denying a new trial. Bass
must also demonstrate reversible error under the circumstances presented by this
record.
He cannot do so. Bass received the dispositive Plea to the Jurisdiction, filed a
78-page response addressing the jurisdictional issues, and was therefore heard before
the trial court dismissed his claims. CR 43–197. The unreceived reply did not
introduce the jurisdictional subjects Bass identifies on appeal; his own response had
already addressed them. Nor did Bass have an absolute right to oral argument or a
sur-reply. And his inability to review Appellees’ proposed order before it was signed
caused no demonstrated harm to the jurisdictional ruling. The trial court acted within
its discretion in concluding that these circumstances did not warrant setting aside the
judgment and beginning the jurisdictional proceedings anew.
A.

Bass received the dispositive Plea and had a meaningful opportunity to
respond to the jurisdictional grounds for dismissal.
The critical procedural fact is one Bass does not dispute: he received

Appellees’ Plea to the Jurisdiction and responded to it at length. CR 43–197. This is
therefore not a case in which a litigant first learned after judgment that a dispositive
motion had been filed against him. Bass knew Appellees were seeking dismissal for
lack of subject-matter jurisdiction and filed a 78-page response opposing that relief.
That response was not merely a generic opposition to an earlier pleading. On
March 3, 2026, Bass simultaneously filed his Fourth Amended Petition and his
12

response to the Plea. CR 103–197. His response advanced the section 559.004 and
HSC OP 77.13 theory on which his live pleading depended and addressed the
principal jurisdictional obstacles to that theory. Among other things, Bass addressed
whether the conduct at issue involved administrative discretion, whether HSC OP
77.13 could supply an enforceable duty, academic deference, the access TTUHSC
had already provided, ripeness, the proper officials, and whether he should receive
an opportunity to amend. CR 121–44. Bass himself acknowledges on appeal that his
response anticipated these subjects.
Appellees’ March 18 reply applied those same jurisdictional principles to
Bass’s live pleading. CR 204–13. It argued that the terms “reasonable” and “unduly
burden” in section 559.004 preserve administrative discretion; that HSC OP 77.13
is an internal policy rather than an independent source of jurisdiction; that
administration of academic records involves discretionary judgment; that the access
already afforded Bass undermined his allegations concerning access and burden; and
that further amendment would be futile. CR 205–10. Bass expressly acknowledges
that the reply “did not originate those subjects.”
The trial court thus had before it Bass’s live petition, Appellees’ jurisdictional
challenge, and Bass’s extensive response to the jurisdictional issues when it ruled.
CR 103–215. The fact that Appellees subsequently sharpened their application of

13

those issues in reply does not transform Bass into a litigant who was denied notice
that dismissal had been requested or an opportunity to oppose it.
Nor does the dismissal order’s recital that the court considered Appellees’
reply supply the harm Bass must show. The court stated that it considered the reply
along with the Plea, Bass’s response, the pleadings on file, and the applicable law.
CR 214. That recital reflects only that the court reviewed the entire record before
ruling; it does not establish that the reply supplied any jurisdictional ground the court
would not otherwise have reached—particularly where, as Bass concedes, the reply
merely applied principles his own response had already addressed. In the summaryjudgment context, the Texas Supreme Court has held that a trial court’s error in
deciding a dispositive motion without proper notice was harmless where the court
subsequently “fully considered” the nonmovant’s response and the complaining
party failed to show that the error prevented presentation of a full response. Martin
v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359–60 (Tex. 1998) (per
curiam). Bass filed a 78-page response, and he identifies nothing the omitted reply
prevented him from presenting.
B.

Bass had no absolute right to oral argument or to file a sur-reply.
Bass also cannot establish reversible error based on what he says he would

have done had he received the submission notices and reply. At the new-trial hearing,
the trial court specifically asked Bass what he would have done differently. RR 8.
14

Bass answered that he would have objected to submission without oral argument,
requested oral argument, objected to the proposed order, and sought leave to file a
sur-reply responding to Appellees’ reply. RR 8–9.
Bass does not contend on appeal that he possessed an absolute right either to
oral argument on the Plea or to file a sur-reply; indeed, his brief expressly disclaims
both propositions. The trial court’s May 27 order likewise explained that the Plea
was appropriately considered by submission and that no sur-reply was necessary or
would have been considered. CR 435–36.
That matters to the harm inquiry. Bass’s argument rests on opportunities he
says he would have requested had he received the documents—not on a procedural
entitlement that the trial court was required to grant. And the trial court subsequently
considered precisely that contention while it retained plenary power and determined
that the lost opportunity to request a sur-reply did not warrant a new trial. CR 435–
36.
Nor does Bass identify a materially new factual or legal matter in the reply
that he had no opportunity to address. His post-judgment papers identify the
responses he says he would have made: that section 559.004 itself supplies an
external statutory limitation on Appellees’ authority; that his claim concerned
implementation of a correction procedure rather than adjudication of academic
merits; and that his live petition alleged unperformed procedural steps
15

notwithstanding the access TTUHSC had provided. CR 299–304. Those positions
elaborate upon the jurisdictional theory Bass had already presented in his Fourth
Amended Petition and extensive response. They do not demonstrate that the
unreceived reply deprived him of the opportunity to address an entirely new basis
for dismissal.
C.

Nonreceipt of the proposed order does not establish reversible error.
Bass’s reliance on the proposed order fares no better. Rule 305 provides that

a party submitting a proposed judgment for signature must serve it on all other
parties who have appeared and remain in the case. Tex. R. Civ. P. 305. The proposed
order was not successfully delivered to Bass. CR 216.
But the existence of a service violation does not dispense with the requirement
of reversible harm. See Tex. R. App. P. 44.1(a). Bass told the trial court that, had he
received the proposed order, he would have objected to its “form and substance.”
RR 8. Yet he has not identified a particular provision of the proposed order to which
he would have objected that probably caused the trial court to reach an improper
jurisdictional disposition. Bass effectively acknowledges as much in his appellate
brief, characterizing the proposed-judgment issue as cumulative and conceding that
the record identifies no particular wording objection that, standing alone, probably
changed the jurisdictional result.

16

The signed order further demonstrates that Appellees’ proposed order did not
dictate the trial court’s disposition. Before signing it, the trial court struck the entire
provision that would have granted Appellees’ alternative plea in abatement, leaving
only the ruling granting the Plea to the Jurisdiction. CR 214–15. The court thus
independently considered and modified the proposed disposition before signing it.
Accordingly, although Bass should have received the proposed order, Rule
305’s service requirement does not itself establish that the resulting judgment must
be reversed. On this record, Bass has not shown that the failure to receive the
proposed order probably caused the rendition of an improper judgment.
D.

The failure to receive notice of the paper-submission date does not
establish that the denial of a new trial was an abuse of discretion.
Bass likewise did not receive either notice setting the Plea for submission. RR

7–8. But his own brief recognizes uncertainty as to whether Rule 21(b) applies to
the paper-only submission at issue here. Rule 21(b) addresses notice of a “court
proceeding, as defined in Rule 21d(a),” while Rule 21d(a) defines a “court
proceeding” as “an appearance before the court, such as a hearing or trial.” Tex. R.
Civ. P. 21(b), 21d(a). The Plea was decided by submission without an oral hearing
or appearance before the court. Bass therefore concedes that he has identified no
holding squarely establishing that Rule 21(b)’s notice requirement applies to such a
paper-only submission. In any event, an oral hearing was not required. In the
summary-judgment context, the Texas Supreme Court has explained that “the term
17

‘hearing’ does not necessarily contemplate either a personal appearance before the
court or an oral presentation to the court” and that the hearing date serves to
determine the deadline for the nonmovant’s response. Martin, 989 S.W.2d at 359.
Here, Bass had already filed his complete response before the Plea was submitted,
so the omitted notice did not prevent him from filing his opposition to the dispositive
motion.
More importantly, Bass already knew the substance of the matter the trial
court would decide. He had received the Plea and filed his extensive opposition to
it. CR 43–197. His asserted response to notice of the submission date was that he
would have objected and requested oral argument. RR 8. But, again, Bass does not
contend that he had an absolute right to oral argument. Thus, even assuming that
Bass should have received notice of the submission date, the absence of that notice
does not establish that the trial court probably would have reached a different
jurisdictional disposition had notice been received.
E.

The May 21 hearing gave the trial court an opportunity to consider Bass’s
claimed prejudice while it retained plenary power.
The post-judgment proceedings further support the trial court’s exercise of

discretion. Bass timely raised the service and notice problems in his motion for new
trial, and the trial court held a hearing on May 21 while it retained plenary power to
vacate its judgment. CR 218–70; RR 1–15.

18

The court did not ignore Bass’s complaints. It expressly acknowledged that
Bass had not received the two submission notices, Appellees’ reply, or the proposed
order because of the email-address problem. RR 7–8. It then asked Bass directly
what he would have done differently had he received those materials. RR 8. Bass
explained each action he contended he would have taken. RR 8–9. The court
therefore had before it both the fact of nonreceipt and Bass’s explanation of the
opportunity he claimed to have lost when it decided whether a new trial was
warranted.
Texas courts have recognized the significance of post-judgment proceedings
conducted while the trial court retains control over its judgment. In Texas Sting, Ltd.
v. R.B. Foods, Inc., the court held that a post-dismissal hearing remedied a dueprocess violation arising from the plaintiff’s lack of notice of a dismissal setting
because the plaintiff received the opportunity to be heard while the trial court
retained full control over its judgment. 82 S.W.3d 644, 648–49 (Tex. App.—San
Antonio 2002, pet. denied). Although Texas Sting involved a dismissal for want of
prosecution and a motion to reinstate, its reasoning supports the relevance of the
May 21 hearing here. While the trial court retained plenary power, Bass was able to
identify the procedural opportunities he claimed to have lost, and the court could
determine whether those circumstances warranted vacating its judgment.

19

Bass emphasizes that the trial court declined to receive additional testimony
and exhibits at the hearing. But the court explained that Bass had sufficiently briefed
the matters necessary to support his argument and that additional factual evidence
would not be germane because the new trial issue presented was procedural. RR 12–
13. Nor was Bass entitled as a matter of law to present live evidence merely because
he requested an evidentiary hearing. Whether to conduct an evidentiary hearing on
a motion for new trial in a civil case is generally within the trial court’s discretion.
Hamilton v. Williams, 298 S.W.3d 334, 338 (Tex. App.—Fort Worth 2009, pet.
denied).
Bass’s reliance on Hensley v. Salinas, 583 S.W.2d 617 (Tex. 1979), does not
establish otherwise. There, the movant challenged an agreed judgment on the factual
ground that she had never consented to the settlement, and the trial court’s failure to
receive evidence prevented her from establishing the factual basis for that challenge.
Id. at 618–19. The Supreme Court held that when a motion for new trial presents a
factual question on which evidence must be heard, the trial court must receive the
evidence if the motion alleges facts that, if true, would entitle the movant to a new
trial and a hearing is properly requested. Id. at 619.
Here, by contrast, the trial court acknowledged the predicate fact underlying
Bass’s motion—that he did not receive the submission notices, Appellees’ reply, or
the proposed order—and heard Bass explain what he contended he would have done
20

differently had he received them. RR 7–9. The court determined that additional
factual evidence was not germane to the procedural issue it was deciding. RR 12–
13.
Moreover, the appellate record contains no sworn testimony that was
excluded, no exhibit that was marked and rejected, and no offer of proof or bill of
exception setting out the substance of the evidence Bass contends the trial court
should have received. Ordinarily, a party challenging the exclusion of evidence must
make an offer of proof or bill of exception sufficient to disclose the substance of the
excluded evidence and permit meaningful appellate review. Tex. R. App. P. 33.1(a);
Tex. R. Evid. 103(a)(2); In re Marriage of Rangel & Tovias-Rangel, 580 S.W.3d 675,
680–81 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The absence of such a
record further undermines Bass’s ability to demonstrate that the trial court’s refusal
to receive additional evidence probably caused the rendition of an improper
judgment. See Tex. R. App. P. 44.1(a).
After considering Bass’s arguments, the trial court denied the motion for new
trial by a written order explaining its reasons. CR 435–36. Among other things, the
court concluded that Bass had been heard through his March 3 response, that the
Plea could properly be decided by submission, that a sur-reply was neither necessary
nor something the court would have considered, and that Bass’s inability to object
to Appellees’ proposed order did not warrant a new trial. CR 435–36.
21

Those conclusions were within the trial court’s discretion. The post-judgment
hearing did not erase the earlier service failures, but it gave the court an
opportunity—while it still possessed plenary power—to determine whether those
failures had deprived Bass of anything material to its jurisdictional decision. The
court determined they had not.
F.

Bass has not demonstrated reversible harm under Rule 44.1.
Ultimately, Bass’s first two issues cannot be separated from the harmless-error

rule. A judgment may not be reversed for an error of procedure unless the appellate
court concludes that the error probably caused the rendition of an improper judgment
or probably prevented the appellant from properly presenting the case on appeal.
Tex. R. App. P. 44.1(a).
Neither circumstance exists here. Bass received the dispositive Plea. He knew
Appellees sought dismissal for lack of jurisdiction. He filed a 78-page response. That
response addressed the statutory and policy theories in his live pleading and
anticipated the principal jurisdictional arguments subsequently developed in
Appellees’ reply. The trial court later heard Bass’s explanation of precisely what he
would have done had he received the omitted materials and, while retaining plenary
power, concluded that those circumstances did not justify a new trial.
Nor has Bass been prevented from presenting those matters on appeal. His
appellate brief extensively addresses the contents of Appellees’ reply, the arguments
22

he says he would have made in response, the proposed order, the submission notices,
the post-judgment proceedings, and the jurisdictional theory he now seeks to pursue.
The record therefore permits full appellate review of his complaints.
The service failures should not have occurred. But Rule 44.1 asks whether an
error was probably harmful, not merely whether an error occurred. On this record,
Bass has not demonstrated that the failure to receive the reply, proposed order, or
submission notices probably caused an improper jurisdictional judgment or
prevented him from presenting his appellate case. The trial court therefore did not
abuse its discretion in denying his motion for new trial.
III.

Bass was not denied due process because he received notice of the
dispositive Plea and a meaningful opportunity to respond.
Bass’s third issue recasts the same procedural circumstances as a

constitutional due-process violation. The argument fails because Bass received
notice of the dispositive Plea to the Jurisdiction and a meaningful opportunity to
oppose the relief Appellees sought before the trial court ruled. The no-notice
authorities on which Bass relies involve materially different circumstances and do
not establish that the service failures here require reversal.
A.

Bass received notice that Appellees sought dismissal and was heard before
the trial court ruled.
Due process requires notice and an opportunity to be heard “at a meaningful

time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
23

The notice required is that which is reasonably calculated, under the circumstances,
to inform an interested party of the proceeding and afford an opportunity to present
objections. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988).
Bass received that fundamental process. He received Appellees’ Plea to the
Jurisdiction, knew that Appellees sought dismissal of his claims for lack of subjectmatter jurisdiction, and filed a seventy-eight-page response opposing the Plea. CR
43–197. As discussed above, that response presented the section 559.004 and HSC
OP 77.13 theory contained in his live Fourth Amended Petition and addressed the
principal jurisdictional obstacles to that theory. CR 121–44.
Bass therefore was not deprived of an opportunity to defend his claims before
they were dismissed. His complaint is narrower: after he had responded to the
dispositive Plea, he did not receive notice of the date on which the court would
consider the Plea by submission, Appellees’ reply applying their jurisdictional
arguments to his live pleading, or Appellees’ proposed order. Those circumstances
implicate the procedural and harmful-error questions addressed above. They do not
place Bass in the same position as a litigant against whom a dispositive judgment is
rendered without notice that the dispositive relief has been sought or without any
meaningful opportunity to oppose it.

24

B.

Bass’s no-notice authorities are materially distinguishable.
Bass principally relies on cases involving default judgments or dispositive

motions of which the affected party had no notice. Those cases do not establish a
due-process violation under the materially different circumstances here.
In Peralta, a default judgment was entered against a defendant who had not
been properly served with process and therefore had no opportunity to appear and
defend before judgment. 485 U.S. at 82–87. The Supreme Court held that the
defendant could not be required to demonstrate a meritorious defense as a condition
of obtaining relief from a judgment entered without constitutionally adequate notice.
Id. at 86–87. Bass, by contrast, appeared, received Appellees’ dispositive Plea, and
filed an extensive response before judgment.
The Texas default judgment authorities Bass cites involve the same
fundamental absence of notice. In LBL Oil Co. v. International Power Services, Inc.,
the Texas Supreme Court held that a defendant who had appeared was entitled to
notice of the trial setting before a post-answer default judgment could be rendered.
777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam). And Mabon Ltd. v. Afri-Carib
Enterprises, Inc. likewise concerned a post-answer default judgment entered without
constitutionally adequate notice of the dispositive proceeding. 369 S.W.3d 809, 812–
13 (Tex. 2012).

25

Bass’s summary judgment authorities are similarly distinguishable. In
Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., the
nonmovant received neither the no-evidence summary judgment motion nor notice
of the hearing before a default summary judgment was rendered. 143 S.W.3d 538,
543–45 (Tex. App.—Austin 2004, no pet.). And Etheredge v. Hidden Valley Airpark
Ass’n involved the absence of actual or constructive notice of a summary-judgment
hearing. 169 S.W.3d 378, 381–84 (Tex. App.—Fort Worth 2005, pet. denied).
Bass expressly acknowledges the critical distinction: Peralta, LBL Oil,
Mabon, Limestone Construction, and Etheredge involve defaults or parties who did
not receive the dispositive motion, while Bass “did receive the original plea and filed
a seventy-eight-page response.” He further acknowledges that those authorities
therefore “do not mechanically command automatic reversal here.” That distinction
is dispositive of Bass’s attempt to invoke the categorical no-notice rule applied in
those cases.
Bass argues that the analogy nevertheless remains persuasive because his
Fourth Amended Petition was filed after Appellees’ original Plea and Appellees’
unreceived reply was their first focused application of their arguments to his live
pleading. But Bass filed his Fourth Amended Petition and his response to the Plea
on the same day. CR 103–197. His response affirmatively presented the statutory
and policy theories in the amended pleading and anticipated the very jurisdictional
26

subjects that Appellees later addressed in reply. CR 121–44. The absence of an
opportunity to respond again to a reply concerning issues Bass had already addressed
is materially different from the complete absence of notice and opportunity to defend
presented in the authorities on which he relies.
Bass’s remaining authorities confirm that distinction rather than undermine it.
Mathis v. Lockwood dispenses with any additional showing only where the
complaining party “was not given notice of a trial setting” at all. 166 S.W.3d 743,
744 (Tex. 2005) (per curiam). Its statement that, absent intentional noncompliance,
“due process requires some lesser sanction than trial without notice or an opportunity
to be heard,” id. at 746, thus presupposes precisely what is absent here: a party
subjected to a dispositive proceeding without notice and without any opportunity to
be heard. Bass received the dispositive Plea and was heard through his seventyeight-page response.
Union Carbide Corp. v. Moye is likewise distinguishable. There, the trial court
led the defendants to expect a lengthy evidentiary hearing and then, on the day the
hearing was scheduled to begin, abruptly prohibited live testimony and denied a
continuance needed to assemble the written evidence the defendants had expected to
present through witnesses. 798 S.W.2d 792, 793–94 (Tex. 1990). Here, Bass received
the dispositive Plea and filed a complete written response addressing the
jurisdictional issues before the court ruled; the trial court did not alter a previously
27

announced evidentiary procedure in a manner that prevented Bass from presenting
his opposition to the Plea.
B. Gregg Price, P.C. v. Series 1—Virage Master LP is likewise
distinguishable. There, a previously scheduled summary-judgment hearing was
canceled, and the trial court thereafter placed the motion on its submission docket
and ruled without providing notice of the operative submission setting. 661 S.W.3d
419, 423–25 (Tex. 2023). Here, although Bass did not receive notice of the
submission date, he received the dispositive Plea and filed a seventy-eight-page
response addressing the jurisdictional grounds on which Appellees sought dismissal.
C.

The May 21 proceedings further distinguish this case from Bass’s nonotice authorities.
The post-judgment proceedings reinforce that distinction. Bass timely moved

for a new trial and presented the trial court with his service and notice complaints
while the court retained plenary power. CR 218–70. At the May 21 hearing, the court
acknowledged the documents Bass had not received and asked him what he would
have done differently had he received them. RR 7–9. Bass explained that he would
have requested oral argument, objected to the proposed order, and sought leave to
file a sur-reply. RR 8–9.
The court thereafter denied the motion for new trial in a written order
addressing those contentions. CR 435–36. Thus, unlike a party suffering a default
without notice and without an opportunity to defend, Bass had both a substantial
28

prejudgment opportunity to oppose dismissal and a post-judgment opportunity to
explain to the trial court the significance of the materials he had not received.
Bass argues that the May 21 hearing did not “cure” the earlier service failures
because the court declined to receive evidence and did not reopen the Plea for a surreply. But the constitutional question does not turn on whether the post-judgment
proceeding recreated every additional procedural opportunity Bass says he would
have pursued. Bass had already received notice of the dispositive relief sought and
a meaningful opportunity to oppose it before judgment. The post-judgment
proceedings are relevant because they afforded Bass an additional opportunity, while
the trial court retained plenary power, to explain why the subsequent service failures
materially prejudiced his ability to oppose dismissal.
Bass had already addressed the merits of the jurisdictional dispute in his 78page response. His motion for new trial and subsequent filings then identified the
additional arguments he says he would have presented had he received Appellees’
reply. CR 299–304. And the trial court considered Bass’s contention that the service
failures deprived him of a meaningful opportunity to respond before determining
that a new trial was unwarranted. CR 435–36.
Accordingly, the May 21 hearing need not be treated as a complete “cure” of
the earlier service failures for Bass’s constitutional argument to fail. Bass received
constitutionally meaningful notice and an opportunity to be heard before judgment,
29

and the post-judgment proceedings provided an additional opportunity to present his
complaints while the trial court retained authority to grant relief.
D.

Bass’s procedural complaints do not transform this case into a no-notice
due-process violation.
Bass’s argument ultimately conflates a failure to receive particular filings and

submission notices with a complete denial of constitutionally adequate notice and
opportunity to be heard. The two are not equivalent on this record.
Bass knew what relief Appellees sought. He knew the jurisdictional basis on
which they sought it. He filed an extensive response opposing that relief and
addressing the statutory theory in his live pleading. He later presented the trial court
with the additional arguments he says he would have made before judgment. And he
has fully presented those matters to this Court.
The failure to serve Bass successfully with the reply, proposed order, and
submission notices was a procedural irregularity properly evaluated under the
applicable rules and the harmful error standard. It did not erase the process Bass
actually received or convert the resulting judgment into the equivalent of a no-notice
default. The Court should therefore reject Bass’s constitutional challenge.
IV.

The trial court properly granted the Plea to the Jurisdiction because Bass
failed to plead an ultra vires claim.
Even apart from Bass’s procedural complaints, the judgment should be

affirmed because his Fourth Amended Petition did not plead conduct falling within
30

the ultra vires exception to sovereign immunity. Bass sought prospective relief
against D’Agostino and McSween in their official capacities. But the duties he
sought to compel were not purely ministerial, and his allegations did not establish
that either official acted beyond the bounds of authority conferred by law. Instead,
his claims challenged the manner in which TTUHSC administered its procedures for
access to and correction of student records—matters requiring administrative
judgment and discretion.
A.

The ultra vires exception does not permit courts to control an official’s
exercise of lawful discretion.
Suits against state officials in their official capacities generally implicate

sovereign immunity because such suits are, in substance, suits against the State.
Heinrich, 284 S.W.3d at 373. The ultra vires exception is narrow. To invoke it, a
plaintiff must allege—and ultimately prove—that the government official “acted
without legal authority or failed to perform a purely ministerial act.” Id. at 372.
An official acts without legal authority when the official exceeds the bounds
of authority granted by law or acts in conflict with the constraints imposed by the
law authorizing the official to act. Hall, 508 S.W.3d at 238, 241–43; Houston Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158, 163 (Tex. 2016). Thus,
the existence of some discretion does not categorically foreclose an ultra vires claim;
an official exercising limited discretion may act ultra vires by acting beyond the
constraints imposed by the governing law. Houston Belt, 487 S.W.3d at 163. But an
31

erroneous decision made within the bounds of authority conferred by law is not ultra
vires merely because it is erroneous. Hall, 508 S.W.3d at 241–43. And a ministerial
duty exists only when the law prescribes the duty with such precision and certainty
that nothing is left to the official’s discretion or judgment. Id. at 243; Sw. Bell Tel.,
L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015).
That distinction is critical here. The question is not simply whether section
559.004 imposes obligations on TTUHSC. It plainly does. The jurisdictional
question is whether the statute imposed the particular non-discretionary duties Bass
asked the district court to compel and thereby deprived Appellees of discretion
concerning how those duties would be performed.
B.

Section 559.004 requires TTUHSC to establish a reasonable correction
procedure, but it does not prescribe the ministerial acts Bass sought to
compel.
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 statute therefore imposes an obligation to establish a reasonable
procedure for correction of incorrect information and prohibits a procedure that
unduly burdens the individual using it. But the Legislature did not prescribe the
32

mechanics by which a governmental body must implement that procedure. Section
559.004 does not specify how records must be presented for inspection, how
inspection sessions must be scheduled or conducted, how records must be organized
or paginated, what copying or recording procedures must be permitted, how many
inspection sessions must be provided, what inventory must accompany the records,
or the particular administrative timetable governing each step in the correction
process. See id.
Indeed, the statutory language itself contemplates administrative judgment.
What constitutes a “reasonable procedure” and what “unduly burden[s]” a person
using that procedure necessarily depend upon circumstances and require the
governmental body to make judgments concerning implementation. The Legislature
could have prescribed particular procedures, deadlines, formats, or methods. It did
not. Instead, it directed each governmental body to establish a procedure subject to
standards of reasonableness and undue burden.
TTUHSC established a procedure governing student education records
through HSC OP 77.13, as section 559.004 requires. Bass’s disagreement is therefore
not that TTUHSC wholly failed to establish a correction procedure. Rather, his
allegations challenge how TTUHSC administered that procedure in his particular
circumstances.

33

That distinction places his claims outside the ultra vires exception. An official
does not act without legal authority merely because a plaintiff alleges that the official
exercised delegated judgment incorrectly. Hall is instructive. There, the Supreme
Court explained that an official exercising discretion granted by the governing
authority does not act ultra vires merely because the official may have reached an
erroneous conclusion. 508 S.W.3d at 242–43. Where the governing law leaves the
relevant determination to judgment rather than prescribing the required conduct with
precision, the challenged act is discretionary rather than ministerial. Id.
Nor is this a case like Houston Belt, in which the governing law imposed an
express constraint on how the official was required to exercise his delegated
authority and the plaintiff alleged that the official acted outside that constraint. See
487 S.W.3d at 163. Section 559.004 does not prescribe the particular means by which
TTUHSC must administer its correction procedure. Instead, it directs the
governmental body to establish a “reasonable procedure” that does not “unduly
burden” the individual using it. Tex. Gov’t Code § 559.004. Bass therefore identifies
no comparable statutory constraint prescribing the particular inspection formats,
scheduling methods, record organization, or other implementation measures he
seeks to compel.
The same principle applies here. Section 559.004 supplies governing
standards, but it does not prescribe with precision the particular administrative
34

conduct Bass seeks to compel. Indeed, Bass’s own pleading recognized the
discretion inherent in implementing the procedure. He expressly alleged that
Appellees could “select any reasonable format, modality, and scheduling method”
for inspection and review. CR 113. That concession is incompatible with his
characterization of those implementation decisions as purely ministerial acts. The
statute supplies governing standards; it does not prescribe the particular means by
which TTUHSC must satisfy them.
C.

HSC OP 77.13 does not transform TTUHSC’s administration of student
records into a series of judicially enforceable ministerial duties.
Bass’s reliance on HSC OP 77.13 does not cure the jurisdictional defect. The

policy reflects TTUHSC’s implementation of its procedures concerning student
education records, but its existence does not itself establish that every procedural
direction contained in the policy constitutes a ministerial duty enforceable through
the ultra vires exception. The relevant inquiry remains whether Appellees exceeded
authority conferred by law or failed to perform an act that governing law made
purely ministerial.
Bass effectively acknowledges this limitation. His appellate brief states that
his strongest theory rests on section 559.004 itself as the external legal constraint
and treats HSC OP 77.13 as evidence of TTUHSC’s procedures and allocation of
responsibilities—not as an independent source capable of enlarging the trial court’s
jurisdiction.
35

Nor does the use of mandatory language at particular points in HSC OP 77.13
establish that Bass pleaded a viable ultra vires claim. The question is not whether a
policy uses words such as “will” or “shall” in describing a procedure. It is whether
the governing law defines the duty Bass seeks to enforce with such precision and
certainty that its performance leaves nothing to judgment or discretion. See Hall, 508
S.W.3d at 243.
Bass’s Fourth Amended Petition demonstrates why that standard is not
satisfied here. His claims were not confined to compelling the mechanical issuance
of a document after all discretionary decisions had already been made. Instead, he
challenged the administration of the records process itself and sought judicial
intervention in how that process should proceed.
Bass’s own allegations also illustrate the problem with his newly narrowed
theory. His January 26 Step-2 amendment request was directed to Dr. Erin Justyna—
not to either Appellee—with D’Agostino and McSween merely copied on the
request. CR 109. And although HSC OP 77.13 provides that the Executive Vice
President for Academic Affairs or designee will provide written notification to the
student concerning an amendment request, CR 155, Bass’s live pleading did not
confine his claim to compelling that discrete written notification from a specifically
identified Appellee. Instead, as discussed below, he sought judicial intervention in
numerous aspects of TTUHSC’s records process. CR 115–16.
36

D.

The relief requested in Bass’s Fourth Amended Petition confirms that his
claims sought judicial control over discretionary administrative matters.
The nature of Bass’s requested relief is particularly revealing. His Fourth

Amended Petition did not merely ask the trial court to compel an official to perform
one discrete act prescribed by statute. Bass asked the court to require, among other
things, a written inspection schedule; sufficient inspection sessions; an organized
and paginated presentation of records; continuity of access; a written response within
a court-imposed period; an inventory of records; production of additional records
identified on his “punch list”; a compliance notice filed with the court; tolling of
internal deadlines; and preservation and logging requirements. CR 115–16. His
proposed Fifth Amended Petition continued to seek substantial judicial direction
over those matters.
Those requests would require the judiciary to do more than order an official
to perform a predetermined ministerial task. They would require a court to determine
what additional access was reasonable, how much inspection time was sufficient,
how and when records should be presented, what organizational measures TTUHSC
should employ, and what administrative steps were necessary to satisfy the statutory
prohibition against undue burden.
That is precisely the type of judicial control over discretionary governmental
decision-making that the ultra vires doctrine does not authorize. The doctrine permits
a court to require officials to remain within the bounds of authority established by
37

law; it does not permit the court to substitute its judgment for that of officials on
matters the governing law leaves to administrative discretion. See Houston Belt, 487
S.W.3d at 163; Hall, 508 S.W.3d at 242–43. This Court recently applied the same
distinction in Exxon Mobil Global Services v. State Office of Administrative
Hearings, holding that an administrative official had no ministerial duty to undertake
a procedural determination that the governing statutes did not authorize the agency
to make. 727 S.W.3d 590, 597–98 (Tex. App.—15th Dist. 2025). The decision
reinforces that a ministerial duty must arise from the governing law itself; courts do
not supply procedural obligations the Legislature did not impose. See id.; Hall, 508
S.W.3d at 242–43.
Bass’s allegations that TTUHSC’s procedures were unreasonable or
burdensome do not alter that conclusion. Section 559.004’s standards constrain
TTUHSC, but the existence of a statutory standard does not mean every
disagreement over its application becomes a ministerial-duty claim. The relevant
question for immunity purposes is whether Bass pleaded conduct outside Appellees’
lawful authority or the failure to perform a specifically prescribed ministerial act.
His Fourth Amended Petition instead sought judicial supervision of the manner in
which TTUHSC exercised its administrative authority.

38

E.

Bass’s narrower appellate characterization cannot supply jurisdiction
that his live pleading did not invoke.
Recognizing the breadth of the relief pleaded below, Bass now characterizes

his proposed claim much more narrowly. He tells this Court that he seeks, at most,
prospective performance of a single written-disposition step by the proper official
under HSC OP 77.13, while leaving procedure, timing, record accuracy, and the
substantive outcome to TTUHSC.
That is materially different from the claim presented in his live Fourth
Amended Petition. And Bass acknowledges that even the proposed Fifth Amended
Petition he tendered after judgment did not contain this “exact one-step
formulation.”
The jurisdictional ruling must therefore be evaluated based on the claim
actually pleaded when the trial court ruled, not the materially narrower theory Bass
has formulated on appeal. At that time, Bass asked the judiciary to direct multiple
aspects of TTUHSC’s administration of its records procedures. CR 103–19. Those
allegations did not identify conduct beyond Appellees’ legal authority or the failure
to perform a purely ministerial statutory duty.
Bass’s appellate reformulation is relevant, if at all, to his alternative request
for yet another opportunity to amend. It does not establish that the trial court erred
in granting the Plea to the Jurisdiction directed to the live pleading before it.

39

Accordingly, Bass failed to invoke the ultra vires exception to sovereign immunity,
and the trial court properly granted Appellees’ Plea to the Jurisdiction.
V.

Bass is not entitled to another opportunity to amend his pleadings.
Bass alternatively asks this Court to remand so that he may plead a materially

narrower ultra vires claim. The general rule requiring an opportunity to cure
remediable jurisdictional pleading defects does not entitle a plaintiff to unlimited
opportunities to reformulate his claims. Bass repeatedly amended his pleadings,
amended after Appellees challenged the trial court’s jurisdiction, and tendered yet
another proposed amended petition in connection with his motion for new trial. Yet
even that proposed Fifth Amended Petition did not plead the narrow “one-step”
claim Bass now proposes on appeal. Under these circumstances, the trial court was
not required to afford Bass another opportunity to amend.
A.

A plaintiff is not entitled to repeated opportunities to amend after failing
to cure identified jurisdictional defects.
When a plea to the jurisdiction challenges the pleadings and the pleading

defects are potentially curable, the plaintiff ordinarily should be afforded an
opportunity to amend. Miranda, 133 S.W.3d at 226–27. But if the pleadings
affirmatively negate jurisdiction, dismissal without another opportunity to amend is
proper. Id. at 227.
Moreover, the opportunity-to-amend rule does not require courts to permit
serial amendments after a plaintiff has already had a reasonable opportunity to cure
40

the jurisdictional defect. In Matzen, the Supreme Court declined to remand for
another opportunity to amend where the plaintiffs had already repleaded multiple
times and still had not articulated a viable jurisdictional theory. 659 S.W.3d at 396
& n.18. The Court explained that although plaintiffs ordinarily should receive an
opportunity to amend when pleading defects are curable, the plaintiffs there had
“repleaded three times” and still failed to demonstrate how they could cure the
jurisdictional problem. Id.
Similarly, in Fraley v. Texas A&M University System, the Supreme Court
rejected a request for yet another opportunity to amend where the plaintiff had filed
multiple petitions and had already amended in response to the defendant’s
jurisdictional challenge. 664 S.W.3d 91, 101–02 (Tex. 2023). That rule traces to
Harris County v. Sykes, which holds that once “a plaintiff has been provided a
reasonable opportunity to amend after a governmental entity files its plea to the
jurisdiction, and the plaintiff’s amended pleading still does not allege facts that
would constitute a waiver of immunity,” the trial court should dismiss the action.
136 S.W.3d 635, 639 (Tex. 2004). The opportunity to amend is intended to permit a
plaintiff to cure a remediable pleading defect—not to guarantee successive
opportunities to devise new jurisdictional theories after earlier attempts have failed.
The Fifteenth Court has applied the same distinction. In Texas A&M
University Department of Transportation, Parking Services Department v. Reeves,
41

the Court remanded where the plaintiff had failed to plead facts establishing
jurisdiction but the pleadings did not affirmatively negate the possibility that the
jurisdictional prerequisites had been satisfied. 708 S.W.3d 312, 320–21 (Tex. App.—
15th Dist. 2025, no pet.). By contrast, in Sharma v. Texas Tech University Health
Sciences Center El Paso, the Court affirmed dismissal with prejudice where the
plaintiff had notice of the pleading defect for several months and amended her
pleading immediately before the dismissal hearing but still failed to cure the defect.
No. 15-25-00007-CV, 2025 WL 1203502, at *2 (Tex. App.—15th Dist. Apr. 24,
2025, no pet.) (mem. op.). Bass’s case falls on the latter side of that line.
B.

Bass had repeated opportunities to plead a viable ultra vires claim.
Bass was not dismissed on the basis of an unsuspected pleading defect that he

never had an opportunity to address. Appellees filed their Plea to the Jurisdiction on
February 9, 2026. CR 43–102. Bass thereafter filed his Fourth Amended Verified
Original Petition on March 3—the same day he filed his 78-page response opposing
the Plea. CR 103–197.
Thus, before judgment, Bass had both notice that Appellees challenged the
trial court’s subject-matter jurisdiction and an opportunity to amend his pleadings in
light of that challenge. And he exercised that opportunity. His Fourth Amended
Petition nevertheless continued to seek relief requiring judicial supervision of
TTUHSC’s administration of its records procedures, including inspection sessions,
42

deadlines, scheduling, organization and pagination of records, an inventory,
preservation requirements, tolling, and a compliance notice. CR 115–16.
Nor was the Fourth Amended Petition merely another iteration of Bass’s
earlier pleading. It expressly attempted to characterize his claims as limited to
“ministerial, non-discretionary” procedural duties and prospective, procedure-only
relief. CR 112–14. Thus, Bass had already attempted to cure the immunity problem
identified by Appellees before the trial court ruled; the resulting pleading simply did
not succeed in alleging a claim within the ultra vires exception.
The opportunity did not end with the March 26 judgment. Bass timely moved
for a new trial while the trial court retained plenary power and tendered a proposed
Fifth Amended Petition in support of his request for relief. CR 218–70, 366–89. That
proposed pleading gave Bass another opportunity to demonstrate how amendment
could cure the jurisdictional defect.
Yet the proposed Fifth Amended Petition continued to seek substantial judicial
direction over TTUHSC’s administration of Bass’s records. It sought, among other
things, additional inspection sessions and deadlines, organized and paginated
presentation of records, an inventory, tolling, preservation and logging requirements,
and a compliance notice. CR 366–89. Bass’s own appellate brief acknowledges the
continuing breadth of the proposed Fifth Amended Petition.

43

This history distinguishes Bass’s case from one in which a plaintiff should
receive an initial opportunity to cure a pleading defect identified for the first time by
the trial court. Bass had notice of the jurisdictional challenge, amended his pleading,
extensively briefed the jurisdictional issues, and subsequently tendered another
proposed amendment. The trial court was not required to provide still another
opportunity simply because Bass has now devised a narrower way to frame his
requested relief.
C.

Bass admittedly did not plead the narrow “one-step” theory he now
proposes.
The most significant problem with Bass’s request for remand is that the

particular claim he now asks to plead was not contained even in his proposed Fifth
Amended Petition.
On appeal, Bass substantially narrows his requested claim. He says that, if
permitted to amend again, he would identify the proper official and seek only
prospective performance of the written-disposition step described in HSC OP 77.13,
while leaving “procedure, timing, record accuracy, and the substantive result to
TTUHSC.” In other words, Bass now seeks to isolate what he characterizes as one
discrete ministerial act from the broader administrative relief requested below.
But Bass candidly acknowledges that this “exact one-step formulation was not
in the tendered Fifth.” That concession is significant. The proposed Fifth Amended
Petition was tendered after dismissal, when Bass already knew that the trial court
44

had concluded his allegations failed to invoke subject-matter jurisdiction. Yet even
then, Bass did not propose the claim he now asks this Court to give him an
opportunity to plead.
Bass responds that his new formulation is merely a reduction of the same
statutory theory rather than a new claim. But whether characterized as a new claim
or a narrower version of the old one, the relevant point is the same: Bass had
repeated opportunities to formulate a claim falling within the ultra vires
exception and did not plead the theory he now advances. Neither Miranda nor
the opportunity-to-amend cases require an appellate court to remand indefinitely
while a plaintiff continues narrowing and reformulating his theory of jurisdiction.
Matzen is particularly instructive. There, the Supreme Court declined to
remand for further amendment after the plaintiffs had already repleaded multiple
times and still failed to articulate a viable theory overcoming immunity. 659 S.W.3d
at 396 & n.18. Bass has had at least as meaningful an opportunity here: four amended
petitions before judgment, a detailed response to the jurisdictional challenge, postjudgment briefing, and a proposed Fifth Amended Petition. His request for yet
another amendment should be rejected for the same reason.
D.

The service issues do not entitle Bass to another amendment.
Bass attempts to connect his request for further amendment to his failure to

receive Appellees’ reply. He contends that the reply sharpened Appellees’ application
45

of discretion, internal-policy status, academic deference, access, ripeness, and
futility to the Fourth Amended Petition, and that he therefore lost an opportunity to
tender a narrower amendment before judgment.
But, as explained above, Bass’s March 3 response had already anticipated
those jurisdictional subjects. CR 121–44. Bass acknowledges that Appellees’ reply
“did not originate” them. More importantly, Bass subsequently obtained the very
information he says he lacked: he received the reply after judgment, learned the trial
court’s jurisdictional disposition, and then tendered a proposed Fifth Amended
Petition while seeking a new trial. Yet the proposed Fifth still did not contain the
narrow one-step theory he now asks to plead.
The service issue therefore does not explain Bass’s continued failure to plead
his present theory. By the time he proposed his Fifth Amended Petition, he knew
both Appellees’ arguments and the trial court’s ruling. Nevertheless, the proposed
pleading continued to request judicial supervision of numerous aspects of
TTUHSC’s records process.
Bass thus had a meaningful post-judgment opportunity to show the trial court
how he could cure the jurisdictional defect and did not do so. The trial court was not
required to grant a new trial so that Bass could continue refining his theory through
additional pleadings.

46

E.

The trial court properly dismissed without granting another opportunity
to replead.
This case therefore does not present the ordinary Miranda situation in which

a plaintiff has pleaded insufficient jurisdictional facts but has never been given an
opportunity to cure the deficiency. Bass repeatedly amended his pleadings, amended
after Appellees challenged jurisdiction, responded extensively to the jurisdictional
arguments, and tendered another proposed amended petition after dismissal. Even
that proposed Fifth Amended Petition continued to seek relief outside the narrow
ultra vires exception.
Only on appeal has Bass isolated the “exact one-step formulation” on which
his request for another amendment now depends. His concession that the theory was
not contained in his proposed Fifth Amended Petition confirms that the trial court
was never presented with the supposedly curative pleading Bass now envisions. The
opportunity-to-amend rule does not require another remand under those
circumstances. See Matzen, 659 S.W.3d at 396 & n.18; Fraley, 664 S.W.3d at 101–
02.
Accordingly, even assuming without deciding that a materially narrower
claim concerning a discrete written-disposition duty could be pleaded within the
ultra vires exception, the possibility of such a claim does not require reversal of the
judgment before this Court. Bass had repeated opportunities to plead a viable

47

jurisdictional claim and failed to do so. The trial court therefore did not err by
dismissing the case without affording him yet another opportunity to amend.
PRAYER
For these reasons, Appellees 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, respectfully request that the Court
affirm the trial court’s order granting Appellees’ Plea to the Jurisdiction and
dismissing Bass’s claims without prejudice for lack of subject-matter jurisdiction.
Appellees further request all other relief to which they may be entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
WILLIAM WASSDORF
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division

48

/s/ Scott D. Smith______________
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
COUNSEL FOR DEFENDANTSAPPELLEES

49

CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this Brief of Appellees complies with
Texas Rule of Appellate Procedure 9.4(i). The text is set to 14-point and the number
of words in the document as calculated by the word count feature of Microsoft Word
is 10,844.
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General
CERTIFICATE OF SERVICE
This is to certify that the above and foregoing instrument has been served on
all counsel of record in accordance with the Texas Rules of Appellate Procedure on
September 23, 2026 through the electronic filing system.
Kevin N. Bass

Via E-File

Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
PLAINTIFF-APPELLANT
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Quennette Rose on behalf of Scott Smith
Bar No. 24011874
quennette.rose@oag.texas.gov
Envelope ID: 120314964
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 20260923_BASS v DAgostino Appellees Brief v1
Status as of 9/24/2026 8:02 AM CST
Associated Case Party: Kevin Bass
Name

BarNumber

Kevin Bass

Email

TimestampSubmitted

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kbassphiladelphia@gmail.com

9/23/2026 5:46:44 PM

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Associated Case Party: DarrinD'Agostino
Name

BarNumber

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Scott Smith

24011874

scott.smith@oag.texas.gov

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Scott D. Smith

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