Bronson McClelland, Colburn McClelland, and Angie McClelland v. Katy Independent School District, Kenneth Gregorski, Rick Hull, and Justin Graham

Affirmed and Opinion filed August 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00432-CV

BRONSON MCCLELLAND, COLBURN MCCLELLAND, AND ANGIE
MCCLELLAND, Appellants
V.

KATY INDEPENDENT SCHOOL DISTRICT, KENNETH GREGORSKI,
RICK HULL, AND JUSTIN GRAHAM, Appellees

On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 22-DCV-290815

OPINION

Appellants Bronson McClelland, a former student in the Katy Independent
School District, and his parents (collectively, appellants) sued the District for
breach of a settlement agreement related to Bronson’s placement in a disciplinary
alternative education program (DAEP). Appellants also sued three of the District’s
employees in their official capacities for ultra vires acts. The trial court granted the
District and employees’ plea to the jurisdiction based on governmental immunity.
Appellants contend that the trial court erred in four overlapping issues. We hold
that the settlement agreement was not “reached to dispose of a claim” for which
the District had waived immunity, and the ultra vires claims fail as a matter of law.
Accordingly, the trial court’s judgment is affirmed.

I. STANDARD OF REVIEW AND LEGAL PRINCIPLES FOR JURISDICTION

Sovereign immunity protects the State, its agencies, and its officials from
lawsuits for damages. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex.
2006). A school district and its employees sued in their official capacities are
protected from suit if immunity has not otherwise been waived. See id. at 324 (“A
political subdivision enjoys governmental immunity from suit to the extent that
immunity has not been abrogated by the Legislature.”); see also Franka v.
Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (noting the general rule that a suit
against an employee in their official capacity is a suit against the governmental
employer).

Governmental immunity from suit implicates a trial court’s subject matter
jurisdiction and is properly asserted in a plea to the jurisdiction. Engelman
Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 751 (Tex. 2017). Whether
a court has subject matter jurisdiction is a question of law reviewed de novo. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004).

When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate jurisdiction. Id. at 226.
We construe the pleadings liberally in favor of the plaintiffs and look to their
intent. Id.

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When a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issue raised. Id. at 227. If the challenge implicates the
merits of the plaintiffs’ claims and creates a fact issue, then a court may not grant
the plea, and the fact issue will be resolved by the fact finder. Id. at 227–28. This
standard generally mirrors that for a summary judgment. Id. at 228. Although we
take as true all evidence favorable to the plaintiff and indulge reasonable
inferences in their favor, we cannot disregard evidence necessary to show context,
and we cannot disregard evidence and inferences unfavorable to the plaintiff if
reasonable jurors could not. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 771 (Tex. 2018).

When, as here, a plea to the jurisdiction challenges every claim asserted in
the petition, we review jurisdiction on a claim-by-claim basis. See City of Houston
v. Guthrie, 332 S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (citing Thomas v. Long, 207 S.W.3d 334, 338–39 (Tex. 2006)).

II. BACKGROUND

In October 2019, Bronson was the captain and quarterback for the Katy High
School football team. After defeating a rival team, Bronson and other students
from both schools went to a local restaurant where they exchanged taunts in person
and through Snapchat, a social media application. Bronson made a three-second
Snapchat video in which he stated, “[We’ll] put your motherfucking ass in the
hospital, nigga. What the fuck?” He sent the video to a student from the opposing
school, who then forwarded it to someone else, who then posted it on the Internet
for a wider audience.

Appellee Rick Hull, the principal of Katy High School, disciplined Bronson
by stripping him of his captainship and suspending Bronson for two games. The
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District released a public statement indicating that Bronson would be disciplined
for using “racially charged language to taunt a student athlete on the opposing
team.” Appellants sought, unsuccessfully, to have the District retract and correct
the statement because Bronson’s video was not directed to a student athlete on the
opposing team. In September 2020, after appellants exhausted all administrative
remedies “to have Katy ISD correct their public statement,” appellants agreed to
provide the District an “extension to respond to Plaintiff’s demands to resolve the
false statement issue.” Appellants indicated that they “would pursue legal
remedies.”

Soon thereafter, a District police canine unit alerted to Bronson’s car, which
he shared with his older brother. Upon searching the car, police found .04 grams
of a green leafy substance later identified as marijuana. Bronson was immediately
suspended for three days and placed in DAEP for forty-five days. Appellants
claim that the District was disciplining Bronson “as leverage and retaliation for his
continued effort to hold the district responsible for its inaccurate and defamatory
statement in 2019.”

A week later, appellants and the District entered into a settlement agreement.
The District agreed to:

1. abate/overturn the Campus Level decision for discipline related to
a Level IV infraction for possession of a substance prohibited from
being present at a KISD facility which allegedly occurred on or
about September 17, 2020.
2. provide the Family with the attached letter concerning the status of
the discipline. If asked about discipline by another education
institution out of the State of Texas, Katy ISD will refer them to
the letter and indicate that no discipline consequences remain.
3. have the District’s Athletic Director, Katy High School’s head
football coach and Katy High School’s principal execute the two

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attached documents that indicate there is currently no disciplinary
proceedings pending between Katy High School and the Family.
Appellants agreed to release all claims related to Bronson’s time as a student
in the District. The term “claims” was broadly defined and included claims
brought under 42 U.S.C. § 1983.1 In their petition, appellants contend that the
release included “the 2019 issue related to the punishment for his off-campus
speech under 42 U.S.C. § 1983.”

Appellants agreed to withdraw Bronson from enrollment in the District on
the same day. Appellants agreed that Bronson “is or has moved out of the State of
Texas and does not intend to move back or re-enroll at Katy ISD.” Appellants
agreed:

The Family understands that the discipline is being abated; however,
if Bronson McClelland re-enrolls at Katy ISD in the future, that
abatement will be null and void and the student will be required to
finish the assigned time in the discipline alternative campus (DAEP).
Should this happen, the family would still be permitted to a hearing in
front of a District Level Committee as defined by the Student
Discipline Management plan. This is the same hearing process that
was scheduled for September 29, 2020.

Appellee Gregorski signed this agreement on behalf of the District as its
superintendent.

1
“Claims” was defined as:
any and all theories of recovery of whatsoever nature which the Family may have
asserted, or could have asserted, against the District, including, but not limited to,
any and all other theories ever alleged, currently alleged or that might have been
alleged and the facts and events giving rise thereto. In this regard, the term
“claims” related to Bronson’s time as a student in the District includes, but is not
limited to, discipline referrals, Chapter 37 of the Texas Education Code, claims
regarding the settlement negotiations, claims of harassment and/or violations of
and/or or claims arising under the Civil Rights Act, 42 U.S.C. § 1983, et seq.;
Americans with Disabilities Act, 42 U.S.C. § 12201, et seq., Title VII of the Civil
Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq.

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The District provided appellants a letter signed by Gregorski. In the letter,
which is included in full in Appendix A of this opinion, Gregorski concludes that
“the discipline given to Bronson McClelland on September 17, 2020 is overturned
and no disciplinary matters are pending.”

In the process of attempting to transfer Bronson to a school in California, the
District provided a transcript to the new school showing Bronson was assigned to
the Opportunity Awareness Center, a school in the District where DAEP
assignments are fulfilled. This error in the transcript caused the new school to
refuse to accept Bronson as a student. When appellants attempted to transfer
Bronson to another school in Texas, a District employee signed additional forms
indicating that Bronson had never been suspended or removed from the athletic
program and would not be prohibited from participating in the athletic program.
Bronson was denied eligibility to participate in athletics at this school due to
residency requirements, and Bronson re-enrolled at Katy High School.

Gregorski, Hull, and Graham “initiated an additional ‘appeal’ on November
6, 2020.” They determined that Bronson had possessed marijuana and placed him
back in DAEP, which prevented Bronson from returning to Katy High School and
playing football during his senior season.

In this case, appellants sued the District for breach of contract and a
declaratory judgment based on “estoppel.” Appellants alleged a breach of contract
because the District (1) failed to initially provide a correct transcript to the
California school and instead sent documents showing that Bronson was placed in
DAEP; and (2) held an additional hearing and disciplined Bronson after choosing
to “overturn” the discipline.

Against the employees Gregorski, Hull, and Graham in their official
capacities, appellants asserted declaratory judgment ultra vires claims based on the
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employees’ (1) subjecting Bronson to a second appeal, which was not permitted
under Texas law; and (2) ignoring legal standards required for possession of
marijuana.

Appellees filed a plea to the jurisdiction based on governmental immunity
for each of appellants’ claims. After appellants responded and amended their
petition, the trial court granted the plea and dismissed appellants’ claims with
prejudice.

III. BREACH OF CONTRACT

Appellants contend that the trial court erred by granting the plea on
appellants’ contract claim because appellants released a Section 1983 claim—a
claim for which the District was not immune—in the settlement agreement.

The general rule in Texas is that a governmental entity such as the District
retains immunity from suit for breach of contract, including breach of a settlement
agreement. See Tex. A & M Univ.–Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex.
2002) (plurality op.). However, a plurality of the Supreme Court of Texas has held
that when the Legislature waives immunity from suit for a particular claim, a
governmental unit does not have immunity from a “suit brought to enforce a
settlement agreement reached to dispose of a claim” for which immunity was
waived. See id. at 522–23.

Under the Lawson plurality, the key issue is whether the settlement
agreement was “reached to dispose of a claim” for which the District does not
enjoy immunity. The answer to this question in Lawson was easy: the plaintiff
asserted a Whistleblower Act claim; the trial court denied a plea to the jurisdiction
on that claim; and then the parties settled the claim—the governmental unit agreed
to pay the plaintiff money and to only provide certain information to other

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potential future employers. See id. at 518–19. The settlement agreement was
reached to dispose of a claim for which there was no immunity, so a claim based
on a breach of that settlement agreement was not barred by immunity. See id. at
522–23.

Here, appellants contend that the Lawson rule applies because they released
a Section 1983 claim in the settlement agreement—“specifically including
Bronson’s claim related to his 2019 punishment for off-campus speech under 42
U.S.C. § 1983.” Under some circumstances, a Section 1983 claim against a school
district would qualify as a claim for which the governmental unit does not have
immunity. See Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 178 (Tex.
App.—Houston [14th Dist.] 1991, no writ) (citing Monell v. Dept. of Social Servs.,
436 U.S. 658, 691 (1978)). Indeed, after the events giving rise to this lawsuit,
Bronson pursued such claims, unsuccessfully, against appellees in federal court.
See McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996 (5th Cir. 2023), cert.
denied, 144 S. Ct. 348 (mem.).2

Appellants pleaded that the settlement agreement released a Section 1983
claim, but under Lawson, merely releasing a claim is not enough. Appellants have
not pleaded or shown with any evidence that the settlement agreement was
“reached to dispose of” a Section 1983 claim, i.e., that the settlement agreement

2
We do not consider the merits of the Section 1983 claims or the federal litigation in this
case. In determining that immunity was waived for breach of a settlement agreement, Lawson
undertook no evaluation of the merits of the underlying Whistleblower Act claim, noting:
A settlement of a claim trades unknowns—such as what the evidence will be, and
how a jury will view it—for knowns—obligations that are more accurately
assessable. In reaching a settlement, the government is guided by legal counsel to
help gauge the degree of exposure to liability and the fairness of the settlement.
Once the Legislature has decided to waive immunity for a class of claims, the
inclusion of settlements within the waiver is consistent with that decision.
Lawson, 87 S.W.3d at 522.

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was in some way an impetus for the disposal of a Section 1983 claim. For
example, appellants have not pleaded or proved that they ever asserted—by
lawsuit, demand letter, or otherwise—any Section 1983 claim against the District
before entering into the settlement agreement or that a Section 1983 claim was
even discussed amongst the parties. Appellants pleaded that the District initiated
the 2020 DAEP placement “as leverage and retaliation for his continued effort to
hold the district responsible for its inaccurate and defamatory statement in 2019,”
not that the discipline was initiated in retaliation for Bronson’s off-campus speech.
And, other than the broad definition of “claims” to include Section 1983 claims
among other specific statutory claims, none of the subject matter of the settlement
agreement relates to Bronson’s off-campus speech from 2019 (or even the alleged
defamatory statement by the District). All of the specific provisions relate to the
DAEP placement resulting from the marijuana incident in 2020.

On this record, appellants have failed to plead a waiver of immunity for the
contract claim or demonstrate a genuine issue of material fact regarding whether
the settlement agreement was “reached to dispose of a claim” for which the District
did not have immunity. To hold otherwise would allow the Lawson exception to
swallow the rule that settlement agreements themselves do not waive governmental
immunity because settlement agreements generally release all claims, broadly
defined.

Appellants’ issues regarding the District’s immunity are overruled.3

IV. ULTRA VIRES

Appellants contend that the trial court erred by granting the plea on
appellants’ declaratory judgment claim against the employees in their official

3
Appellants do not contend that the trial court erred by dismissing their estoppel-based
claim against the District, so we do not address it. See Tex. R. App. P. 47.1.

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capacities because they “subjected Bronson to a second appeal of the discipline
matter” without legal authority, i.e., they acted ultra vires. Appellants contend that
the letter contained in Appendix A of this opinion was a “final adjudication and
independent of the settlement agreement,” and the employees had no authority to
countermand it.

A suit against a governmental officer seeking to require them to comply with
the law is not barred by immunity. See City of El Paso v. Heinrich, 284 S.W.3d
366, 371–72 (Tex. 2009). To fall within this ultra vires exception, a claimant must
allege and prove that the officer “acted without legal authority or failed to perform
a purely ministerial act.” Id. at 372.

To contend that the employees acted without legal authority, appellants rely
on Section 37.009 of the Education Code concerning procedures for DAEP
placement: “If school district policy allows a student to appeal to the board of
trustees or the board’s designee a decision of the campus behavior coordinator or
other appropriate administrator, other than an expulsion under Section 37.007, the
decision of the board or the board’s designee is final and may not be appealed.”
Tex. Educ. Code § 37.009(a) (emphasis added). Appellants contend that
Gregorski’s letter was “a decision of the board or the board’s designee,” and thus,
the employees’ later decision overruling Gregorski’s decision violated the statute’s
provision that the decision was “final and may not be appealed.” We disagree with
appellants for both factual and legal reasons.

As a factual matter, appellants ask this court to view Gregorski’s letter out of
context of the settlement agreement, which we cannot do. See Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018) (“[W]e cannot
disregard evidence necessary to show context, and we cannot disregard evidence
and inferences unfavorable to the plaintiff if reasonable jurors could not.”). In the

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agreement, the District agreed to (1) “abate/overturn” the campus-level DAEP
decision, (2) “provide the Family with the attached letter concerning the status of
the discipline,” and (3) indicate to other educational institutions that “no discipline
consequences remain.” The agreement also provides that the abatement of
discipline would be “null and void” if Bronson re-enrolled in the District, and
Bronson would be required to “finish the assigned time in the discipline alternative
campus (DAEP).” The agreement “permitted” appellants to have a hearing in front
of a “district level committee.”

Gregorski’s “discipline appeal” letter must be viewed in context of this
agreement. No reasonable juror could disregard the inference that Gregorski’s
letter was the one contemplated by the agreement, and thus, not a final “decision”
by the District of Bronson’s discipline under Section 37.009(a) of the Education
Code. The agreement provides that the abatement of the discipline could be made
“null and void” and Bronson required to finish his assigned time in DAEP if he
were to re-enroll in the District. This provision was self-executing and merely
“permitted” appellants to have a district-level hearing, which is what ultimately
happened.

As a legal matter, we note that appellants cite no case law interpreting
Section 37.009’s “final and may not be appealed” clause. Our research has
revealed only cases determining that this language prohibits a suit for judicial
review by the student; not that that Section 37.009 prohibits a school board from
reevaluating its own discipline decisions. See Nw. Indep. Sch. Dist. v. K.R., No.
02-20-00067-CV, 2020 WL 4907331, at *4 (Tex. App.—Fort Worth Aug. 20,
2020, no pet.) (mem. op.) (“Texas courts have interpreted this section to mean just
what it says—district and appellate courts have no jurisdiction to review the
decision to place a student in DAEP.” (quoting Stephens v. Trinity Indep. Sch.

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Dist., No. 12-12-00094-CV, 2012 WL 5289346, at *2 (Tex. App.—Tyler Oct. 24,
2012, no pet.) (mem. op.))). Thus, even if there were a genuine issue of material
fact about whether Gregorski’s letter was a decision by the school board under
Section 37.009(a), it would not be an ultra vires act for the District to reevaluate
the decision consistent with the settlement agreement.4

Accordingly, appellants have not adequately pleaded or raised a genuine
issue of material fact about whether the employees acted without legal authority
when they reinstated Bronson’s DAEP under the settlement agreement and
permitted a district-level committee hearing.

Appellants’ issues regarding the employees’ immunity are overruled.

V. CONCLUSION

Having overruled all of appellants’ issues, we affirm the trial court’s
judgment.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Bourliot, and Spain.

4
We find unpersuasive appellants’ analogizing to cases applying the doctrine of res
judicata, see, e.g., Mayfield Co. v. Rushing, 133 Tex. 120 (1939), a case holding that parties
could not agree to extend the time for judicial review, see Moss v. Dallas Indep. Sch. Dist., 12
S.W.3d 168 (Tex. App.—Dallas 2000, no pet.), or a statute related to substantial-evidence review
when teachers complain about termination or suspension, see Tex. Educ. Code §§ 21.251,
21.259.

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Appendix A: Gregorski Letter

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