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Defendant's Attorney: Jason T. Contreras

Description:

Fort Worth, Texas - Americans with Disabilities Act (ADA) lawyer represented Appellant with appealing dismissal of alleged violations of the ADA.

According to her pleadings, Bullock was a student at UTA who “suffers from
severe major depressive disorder and post-traumatic stress disorder.” After
requesting extended time for examinations and to complete assignments, Bullock was
given an accommodation letter1
from UTA granting her the following
accommodations:
• Occasional extension of due dates
• Instructor to provide copies of overhead materials
• Permit tests/quizzes to be taken in a reduced-distraction environment
• Absence leniency
• Tardiness leniency
• Allow audio recording of all lecture material
1The first accommodation letter was dated September 19, 2018. On
October 15, 2019, UTA gave Bullock an additional accommodation letter.
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• Extended time (2X) for in-class and online TIMED work (tests, quizzes,
pop quizzes, writing assignments)
• Permit tests/quizzes to be taken in the ARC2
(subject to availability)
Bullock claimed that she sent the accommodation letter to one of her professors, but
the professor denied receiving it because it was sent to her personal rather than
professional email address.
After Bullock sent a new accommodation letter to the professor, the professor
acknowledged receipt of both letters, but according to Bullock, refused to
retroactively apply the letter, “resulting in negative grades” for Bullock. In Bullock’s
words, her “emotional condition deteriorated” and “her performance suffered in ALL
classes for the Fall 2018 semester which were all taught by that same professor.”
Thereafter, Bullock stated that she “was also forced to file a Complaint with the
United States Department of Education, Office for Civil Rights (OCR), alleging
violations of the Rehabilitation Act of 1973 [ ](Section 504), 29 U.S.C. §794 (amended
1992), Title II of the [ADA] of 1990 (Title II), 42 U.S.C. §12132.”
While OCR was investigating, UTA offered to settle the complaint, and a
resolution agreement was entered on July 17, 2019. Bullock contends that under the
agreement,
UTA agreed to allow [Bullock] to re-take the courses that she previously
took with her accommodations being denied at no additional cost to her,
2“ARC” is not defined or described in the record.
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to utilize the new grade she made in the courses in calculating her GPA,
and making other adjustments requested by [Bullock], as well as
refunding her tuition and fees related to one of the courses. UTA also
agreed to take other actions, including conducting training on its
obligation under Section 504 and Title II.
According to Bullock, by taking this action, UTA was able to stop OCR’s
investigation of her complaint and “head off an adverse finding.”
While acknowledging the agreement and accommodations, Bullock alleged that
because OCR does not seek to recover damages for the complaints it investigates,
there was no provision for making her “whole” after she suffered “severe emotional
distress” and a one-year delay in her education as she dealt with the complaint.
Therefore, Bullock filed suit against UTA, alleging that “UTA’s actions in failing and
refusing to accommodate [her] disabilities” constituted a violation of the
Rehabilitation Act and the ADA. Bullock asserted no causes of action under state
law. She claimed damages due to “stress, panic attacks and depression, all of which
have negatively impacted her emotional condition and self-esteem.” UTA answered
the suit with a general denial and affirmative defenses, including sovereign immunity.
Several months after answering, UTA filed a plea to the jurisdiction in which it
asserted that Bullock’s lawsuit was barred by sovereign immunity and Eleventh
Amendment immunity. Bullock responded to the plea. After a hearing on the plea,
the trial court took the matter under advisement. The trial court later signed an order
granting the plea “without prejudice to the refiling of the claims included herein, in
whole or in part, in federal court.” Bullock appeals from this order.
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On appeal, Bullock poses two questions: (1) Did Congress clearly and
unambiguously express its intent that States must consent to waive immunity before
receiving federal funds under a federal-state spending program through the
Rehabilitation Act and the ADA statutes? and (2) Did UTA knowingly and voluntarily
waive its immunity thereby consenting to suit by accepting conditionally-given federal
funds under the Rehabilitation Act and the ADA? UTA phrases the issue, “Did the
trial court commit error in granting UTA’s Plea to the Jurisdiction in light of Bullock’s
failure to overcome sovereign immunity in response to a lawsuit asserting only federal
causes of action brought in state court against a state agency?” We conclude that
immunity was not waived and that the trial court did not err in granting UTA’s plea to
the jurisdiction.
III. DISCUSSION
A. Standard and Scope of Review
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack
of subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). The claims asserted may form the context in which a dilatory plea is raised, but
the plea should be decided without delving into the merits of the case. Id. Whether a
court has subject matter jurisdiction is a legal question. State v. Gonzalez, 82 S.W.3d
322, 327 (Tex. 2002).
The burden is on the plaintiff to plead facts affirmatively demonstrating the
trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
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(Tex. 2004). A trial court’s ruling on a plea to the jurisdiction is reviewed de novo.
Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).
B. Sovereign Immunity and the Eleventh Amendment
UTA is part of The University of Texas System and is under the management
and control of the board of regents of The University of Texas System. Tex. Educ.
Code Ann. §§ 65.02(a)(1), 68.01–.02. State universities are agencies of the State;
therefore, UTA is protected by the doctrine of sovereign immunity. Nkansah v. Univ.
of Tex. at Arlington, No. 02-10-00322-CV, 2011 WL 4916355, at *3 (Tex. App.—Fort
Worth Oct. 13, 2011, pet. denied) (per curiam) (mem. op. on reh’g); see also Univ.
Interscholastic League v. Sw. Officials Ass’n, Inc., 319 S.W.3d 952, 957 (Tex. App.—Austin
2010, no pet.) (“The University of Texas was created by the Texas Constitution, see
Tex. Const. art. VII, § 10, and it is well settled that state universities are governmental
entities.”). Sovereign immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the State or certain governmental units have been sued unless the
State consents to suit. Nkansah, 2011 WL 4916355, at *3.
While the State can expressly waive its immunity, it must do so by “clear and
unambiguous” language. Tex. Gov’t Code Ann. § 311.034 (“In order to preserve the
legislature’s interest in managing state fiscal matters through the appropriations
process, a statute shall not be construed as a waiver of sovereign immunity unless the
waiver is effected by clear and unambiguous language.”); see also Sampson v. Univ. of
Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016) (“The state or governmental unit can
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be sued only if the Legislature waives immunity in ‘clear and unambiguous
language.’”). Bullock has failed to cite to any authority indicating that the Texas
Legislature has clearly and unambiguously waived the state’s sovereign immunity.
Eleventh Amendment immunity3 protects nonconsenting states from being
sued in their own courts for federal law claims. Hoff v. Nueces County, 153 S.W.3d 45,
48 (Tex. 2004) (per curiam). The Eleventh Amendment to the U.S. Constitution
states, “The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. States “retain immunity from private suit in their own courts, an
immunity beyond the congressional power to abrogate by Article I legislation.” Alden,
527 U.S. at 754, 119 S. Ct. at 2266.
There are two well-established exceptions to Eleventh Amendment immunity.
Hurst v. Tex. Dep’t of Assistive & Rehab. Servs., 482 F.3d 809, 810 (5th Cir.), cert. denied,
552 U.S. 989, 128 S. Ct. 490 (2007). First, Congress can abrogate Eleventh
Amendment immunity without a state’s consent when acting pursuant to its authority
3The United States Supreme Court has noted that “Eleventh Amendment
immunity” is “convenient shorthand but something of a misnomer, for the sovereign
immunity of the States neither derives from, nor is limited by, the terms of the
Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 2246
(1999). Rather, States’ immunity from suit is a “fundamental aspect of the sovereignty
which the States enjoyed before the ratification of the Constitution, and which they
retain today . . . except as altered by the plan of the Convention or certain
constitutional Amendments.” Id. at 713, 119 S. Ct. at 2246–47.
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under the enforcement provisions of Section 5 of the Fourteenth Amendment. Id.
(citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S. Ct. 3142, 3149–50
(1985), superseded on other grounds, as recognized in Lane v. Pena, 518 U.S. 187, 198,
116 S. Ct. 2092, 2099 (1996)). Second, a state may waive its immunity and consent to
suit in federal court. Id. One way a state can waive its Eleventh Amendment
immunity is by accepting federal funds that were disbursed under Congress’s Article I,
Section 8 spending power and were properly conditioned on the state forgoing its
sovereign immunity. Id. However, a state’s receipt of federal funds does not
automatically constitute a waiver of its Eleventh Amendment immunity. Id. at 811.
C. Application of Law to Facts
Bullock makes no argument and cites to no authority that the Texas Legislature
has expressly waived the State’s sovereign immunity4 or that Congress abrogated
Texas’s immunity under the enforcement provisions of the Fourteenth Amendment.
Instead, she contends in her first issue that Congress clearly and unambiguously
conditioned acceptance of federal funds on a state’s waiver of immunity, and she
contends in her second issue that UTA’s acceptance of federal funds was thus a
knowing and voluntary waiver of its immunity. Bullock’s arguments under these
issues turn on language in the Rehabilitation Act and the ADA. Specifically, she relies
on “Section 504 of the Rehabilitation Act and [t]he ADA statutes 42 U.S.C. §§ 12231
4On appeal, Bullock concedes in her brief that “[t]here is no question that the
State of Texas has sovereign immunity.”
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and 12202” for her proposition that “no state that accepts Federal financial assistance
shall be immune in federal or state court from an action for violations of those
codes.” UTA responds that it is a state agency entitled to sovereign immunity, that
there has been no clear and unambiguous waiver of sovereign immunity in this case,
and that Eleventh Amendment immunity prevents it from being sued in state court
for damages for violation of federal law. We agree with UTA.
1. The Rehabilitation Act
The applicable portion of the Rehabilitation Act states, “No otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C.A. § 794(a). It also contains a judicial review provision in
one subsection of Section 722:
Any party aggrieved by a final decision described in subparagraph (I),
may bring a civil action for review of such decision. The action may be
brought in any State court of competent jurisdiction or in a district court
of the United States of competent jurisdiction without regard to the
amount in controversy.
Id. § 722(c)(5)(J)(i).
In its examination of this provision in Hurst, the Fifth Circuit addressed the
question of whether the State of Texas waived its Eleventh Amendment immunity to
suit in federal court by accepting federal funding to support its Vocational
Rehabilitation Program under Title I of the Rehabilitation Act. 482 F.3d at 810; see
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also 29 U.S.C.A. §§ 701–796. In that case, Hurst filed suit to review the denial of
medical treatment by the Texas Rehabilitation Commission (now the Texas
Department of Assistive and Rehabilitative Services), arguing that the State of Texas
had waived its immunity. Hurst, 482 F.3d at 811. Specifically, Hurst argued that the
judicial review provision provides a clear statement of intent to require a state to
waive its Eleventh Amendment immunity in order to receive federal funds. Id.
In deciding the case, the Fifth Circuit first noted that the United States
Supreme Court had previously addressed a different section of the Rehabilitation Act
with very similar language, finding that it was merely a general authorization for suit—
not a “clear-statement of intent”—that did not waive Eleventh Amendment
immunity. Id. at 811–12 (citing Atascadero, 473 U.S. at 247, 105 S. Ct. at 3149–50). In
affirming the lower court’s dismissal of the suit, the court determined that the judicial
review provision “does not contain the necessary ‘clear-statement’ requiring a waiver
of Eleventh Amendment immunity if the State of Texas accepts federal funds for this
program. Neither has Texas voluntarily waived its Eleventh Amendment immunity
for this program.” Id. at 814.
Our sister appellate court has agreed with the Fifth Circuit’s holding that with
the judicial review provision, Congress has not clearly stated that by accepting federal
funds, the State of Texas would waive its Eleventh Amendment immunity.5
Hurst,
5While not binding on this court as a United States Supreme Court decision,
the Fifth Circuit’s pronouncements are “persuasive authority.” Hurst v. Tex. Dep’t of
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2008 WL 4667355, at *9. The Corpus Christi court expressly agreed with the Fifth
Circuit that the judicial review provision was a “general authorization for suit” and
not a clear statement by Congress that states were waiving sovereign immunity by
accepting federal funds. Id. at *8 (citing Hurst, 482 F.3d at 812). We agree with these
courts that the Rehabilitation Act sections relied on by Bullock do not condition the
acceptance of federal funds on a state’s waiver of immunity.
Bullock also argues that 42 U.S.C.A. Section 2000d-7(a) of the Civil Rights Act
of 1964 abrogates a state’s Eleventh Amendment immunity for violations of certain
statutes, including the Rehabilitation Act. That statute provides in part,
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation
of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of
any other Federal statute prohibiting discrimination by recipients of
Federal financial assistance.
42 U.S.C.A. § 2000d-7(a) (emphasis added).
However, at least one Texas court has examined this provision and held that a
“state’s receipt of federal financial assistance does not automatically constitute a
waiver of its immunity under the Eleventh Amendment.” Univ. of Tex. at Dallas v.
Matney, 280 S.W.3d 882, 884 (Tex. App.—Dallas 2009, no pet.). Instead, a waiver is
only recognized in limited circumstances, one of which requires that any condition
Assistive & Rehabilitative Servs., No. 13-06-332-CV, 2008 WL 4667355, at *8 (Tex.
App.—Corpus Christi 2008, no pet.) (mem. op.) (citing Brooks v. Ctr. for Healthcare
Servs., 981 S.W.2d 279, 286 (Tex. App.—San Antonio 1998, no pet.)).
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imposed on the recipients must be stated “clearly and unambiguously” in the statute.
Id.
And in Wion v. Thayler, the Waco court of appeals, citing Section 2000d-7,
pointed out that there is no waiver of state immunity to suits brought in state courts
under the Rehabilitation Act. No. 10-09-00369-CV, 2010 WL 4644497, at *3 (Tex.
App.—Waco Nov. 17, 2010, no pet.) (mem. op.); see also 42 U.S.C.A. § 2000d-7(a) (“A
State shall not be immune under the Eleventh Amendment . . . from suit in Federal
court for a violation of section 504 of the Rehabilitation Act . . . .” (emphasis added)).6

We agree that Section 2000d-7, on its face, does not clearly and unambiguously
condition acceptance of federal funds on a state’s waiver of immunity for federal
claims in state court, and we overrule Bullock’s issues as to her Rehabilitation Act
claims.
2. The ADA
Bullock also argues that under the ADA, Congress has clearly conditioned
acceptance of funds on a state’s waiver of immunity. Title II of the ADA authorizes
suits by private citizens for money damages against public entities that violate Section
6
In another opinion by a sister appellate court, the Corpus Christi court
examined whether there was a waiver of immunity in a suit brought by an individual
who alleged that he was denied an American Sign Language interpreter at aide
eligibility interviews. Schraer v. Tex. Health & Human Servs. Comm’n, No. 13-12-00702-
CV, 2014 WL 586036, at *6 (Tex. App.—Corpus Christi Feb. 13, 2014, no pet.)
(mem. op.). In its review of a plea to the jurisdiction granted to the Texas Health and
Human Services Commission and its Executive Commissioner, the court held that
“sovereign immunity bars Schraer’s ultra vires claims under Title II of the ADA and
Section 504 of the Rehabilitation Act.” Id.
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12132 of the Act. See 42 U.S.C.A. § 12133 (“The remedies, procedures, and rights set
forth in section 794a of Title 29 shall be the remedies, procedures, and rights this
subchapter provides to any person alleging discrimination on the basis of disability in
violation of section 12132 of this title.”); Wion, 2010 WL 4644497, at *2. The waiver
provision of the ADA provides, “A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in Federal or
State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C.A.
§ 12202; Wion, 2010 WL 4644497, at *2.
To determine whether Congress has unambiguously conditioned acceptance of
funds on a state’s waiver of immunity, courts apply a five-part test: (1) the federal
expenditure must be in pursuit of the general welfare; (2) any condition on the state’s
receipt of federal funds must be unambiguous, enabling the states to exercise their
choice knowingly, “cognizant of the consequences of their participation”; (3) any
condition must be reasonably related to the purpose of the federal grant; (4) the grant
and any conditions cannot violate other constitutional provisions; and (5) the grant
and its conditions cannot amount to coercion as opposed to encouragement. See
South Dakota v. Dole, 483 U.S. 203, 206–07, 107 S. Ct. 2793, 2796–97 (1987); Gruver v.
La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 182 (5th Cir.
2020), cert. denied, 141 S. Ct. 901 (2020).
Bullock’s brief cites to Dole and states that there is a five-prong test but
contains no discussion or analysis of how the test applies to the ADA, and she fails to
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cite to any authority holding that sovereign immunity has been “clearly and
unambiguously” waived for ADA claims brought in state court against a state agency.
Neither Dole nor a Fifth Circuit case cited by Bullock authorized suits against a state
or one of its agencies in state court. See Dole, 483 U.S. at 206–07, 107 S. Ct. at 2796–
97; Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005). Therefore, we reject
Bullock’s arguments that, by accepting federal funds, UTA has waived its sovereign
immunity in state court for her claims against it for alleged violations of the ADA, and
we overrule the remainder of her issues. See Miranda, 133 S.W.3d at 226 (holding
plaintiff has burden to show trial court’s jurisdiction).

Outcome: We affirm the trial court’s order granting UTA’s plea to the jurisdiction and
dismissing Bullock’s claims.

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