No. 05-16-00460-CV.


Court of Appeals of Texas, Fifth District, Dallas.

Attorney(s) appearing for the Case

Katie Anderson , Melody K. Smith , Jadd F. Masso , for Cedar Hill Independent School District, Appellant.

Terrence Mark Gore, for Appellee, Pro se.

Andrew Lutostanski , for Michael L. Williams, Appellant.

Before Justices Bridges, Lang-Miers, and Evans.


Opinion by Justice DAVID L. BRIDGES.

Cedar Hill Independent School District and Michael L. Williams, Commissioner of education, appeal the trial court's judgment reversing the Commissioner's decision in the underlying employment termination case. In a single issue, the Commissioner argues Terrence Mark Gore failed to exhaust administrative remedies, and the trial court therefore erred in reversing the Commissioner's decision and remanding for further proceedings. We reverse the trial court's judgment and render judgment affirming the Commissioner's decision of February 25, 2015.

On September 9, 2014, the District notified Gore the district superintendent had recommended to the board of trustees that Gore's employment be terminated. The notification provided that Gore could request a hearing on the proposed termination within fifteen days. On September 22, 2014, Gore requested an administrative hearing on his proposed termination. On December 10, 2014, an independent hearing examiner conducted a hearing at which the District presented extensive evidence and argument supporting the termination of Gore's employment. Gore testified concerning his employment with the District and, when asked, responded that he was "not employed." Counsel for the District immediately moved to dismiss the case, arguing Gore had "admitted and stated on the record [he] is not an employee" and this statement was "in effect a resignation." The hearing examiner asked Gore for a response, and Gore stated the following:

I object to that. Basically, resignation must be submitted in writing, accepted by a superintendent, first of all, under state law under the Texas Education Code. Third — secondly, I'm not tendering a resignation; I'm just stating a fact that I was not offered a contract. And technically I'm not employed as — under the Texas Education Code 21 for employee that has a contract. Thirdly, these proceedings are proper, in effect, that since Cedar Hill did not tender me a contract that that would fall under the guidelines of nonrenewal, which does fall under the auspices of the Texas Education Agency and the commissioner and these hearing proceedings.

The hearing examiner explained that she had "jurisdiction under the Texas Education Agency for employees and employers" and cautioned Gore that, if he stated he was not an employee of the District, the hearing examiner would have to grant the District's motion to dismiss. The hearing examiner further cautioned Gore, who represented himself pro se, that he needed an attorney "when [he made] these decisions," and stated Gore would be held to the standard as an attorney." The hearing examiner told Gore to "consider [his] answer carefully." Gore again stated, "I would consider myself not an employee." The hearing examiner dismissed the case for want of jurisdiction.

On the morning of December 19, 2014, the District's attorney notified Gore by email that the District's board of trustees would consider the recommendation of the hearing examiner at a meeting on January 5, 2015. That afternoon, the District's attorney again emailed Gore, telling him the time of the Board's meeting. Gore responded by email that the hearing examiner found "that there was no tendering of resignation on [his] part," and he was filing his petition with the Commissioner early the next week. Gore expressed his intent to submit his resignation and dispose of this claim and any other claim and stated he had filed a complaint with "the Dept. of Labor WHD" and was employing counsel to "initiate suit on [his] behalf for federal employment law violations, discrimination and unlawful discharge."

At the Board meeting on January 5, 2015, Gore did not appear. The District's attorney presented argument concerning the reasons why there was good cause to terminate Gore's employment. At the conclusion of the meeting, the Board conferred and voted unanimously to terminate Gore for good cause.

Gore appealed to the Commissioner, who identified the central issue in the case as whether Gore's absence from the Board meeting precluded his ability to appeal the District's termination decision. The Commissioner concluded Gore failed to exhaust administrative remedies when he did not present his arguments and objections to the Board when it met to consider his case. Accordingly, the Commissioner dismissed Gore's appeal for want of jurisdiction. Gore sought review of the Commissioner's decision in the trial court. Following a hearing, the trial court reversed the Commissioner's decision and remanded the case to the Commissioner for further proceedings. This appeal followed.

In a single issue on appeal, the District and the Commissioner argue the Commissioner correctly dismissed Gore's appeal for failure to exhaust administrative remedies. Specifically, they argue Gore was required to appear at the Board meeting and present errors in the hearing examiner's recommendation. Gore's failure to do so was a failure to exhaust administrative remedies and left the Commissioner without jurisdiction to hear Gore's appeal.

The focus of both the district court's judgment and our appellate review of the district court's judgment is on the decision of the Commissioner. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000); Ortiz v. Comm'r of Educ., No. 05-14-01165-CV, 2016 WL 911403, at *1 (Tex. App.-Dallas Mar. 10, 2016), review denied (July 15, 2016). The district court may not reverse the Commissioner's decision, and we may not reverse the district court's judgment affirming the Commissioner's decision, unless the Commissioner's decision is not supported by substantial evidence or unless the Commissioner's conclusions of law are erroneous. See TEX. EDUC. CODE ANN. § 21.307(f) (West 2012). In this context, substantial evidence means more than a scintilla. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); Ortiz, 2016 WL 911403, at *1. Under this standard, the evidence may preponderate against the decision, yet still amount to substantial evidence. Mireles, 9 S.W.3d at 131; Ortiz, 2016 WL 911403, at *1. The test is whether reasonable minds could have reached the same conclusion as the Commissioner. See Tex. State Bd. of Dental Exam'rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988); Ortiz, 2016 WL 911403, at *1. The Commissioner's reasoning for his decision is immaterial if his conclusion is supported by substantial evidence. See Tex. Emp't Comm'n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962); Ortiz, 2016 WL 911403, at *1. This court must uphold the Commissioner's decision on any legal basis shown in the record. Ortiz, 2016 WL 911403, at *1; see Goodie v. Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).

The requirement that parties exhaust administrative remedies does not deprive parties of their legal rights. Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016) (citing City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); see TEX. EDUC. CODE ANN. § 7.057(b) (stating that an administrative appeal to the Commissioner of Education "does not deprive any party of any legal remedy"). Instead, it honors the Legislature's intent that "the appropriate body adjudicates the dispute" first, Essenburg v. Dallas Cty., 988 S.W.2d 188, 189 (Tex. 1998), and thereby "ensure[s] an orderly procedure to enforce those rights." Marquez, 487 S.W.3d at 544 (quoting Rhule, 417 S.W.3d at 442). By requiring the agency to address the complaints first, the law permits the agency to apply its expertise and exercise its discretion to resolve the issue and to develop a complete factual record if the courts later get involved. Marquez, 487 S.W.3d at 544; see McKart v. United States, 395 U.S. 185, 194 (1969). A party who obtains relief through the administrative process avoids the expense and delay of litigation. Woodford v. Ngo, 548 U.S. 81, 89 (2006); McKart, 395 U.S. at 195; Marquez, 487 S.W.3d at 544. And if the outcome of the administrative process leaves the party dissatisfied, it may file suit and have the courts review the agency's decision. Marquez, 487 S.W.3d at 544 (citing Tex. Water Comm'n v. Dellana, 849 S.W.2d 808, 810 (Tex. 1993)).

The Texas Constitution requires the Legislature to "establish and make suitable provision for the support and maintenance of an efficient system of public free schools." Tex. Const. art. VII, § 1. To fulfill this duty, the Legislature has established the Texas Education Agency (TEA), the office of the Commissioner of Education, the State Board of Education (SBOE), and local school districts throughout the state. Marquez, 487 S.W.3d at 545. The TEA consists of the Commissioner and agency staff. TEX. EDUC. CODE ANN. § 7.002 (West 2012). The SBOE must fulfill its duties "with the advice and assistance of the commissioner." Id. § 7.102(b). School districts "have the primary responsibility for implementing the state's system of public education and ensuring student performance in accordance with [the Education Code]," id. § 11.002, while the Commissioner serves as "the educational leader of the state," id. § 7.055(b)(1). Regarding disputes that arise within the education system, the Legislature has provided that, with limited statutory exceptions not at issue here,

a person may appeal in writing to the commissioner if the person is aggrieved by: (1) the school laws of this state; or (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of this state; or (B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

Id. § 7.057(a).

Although section 7.057(a) provides that a person "may" appeal to the Commissioner, the Texas Supreme Court has interpreted the statute to require a person who chooses to appeal to first seek relief through the administrative process. Marquez, 487 S.W.3d at 545. The decision to appeal is optional, but the place of trial is jurisdictional. Id. Persons complaining about the "management of the school system" or the "administration of school laws" must exhaust their administrative remedies before courts can exercise jurisdiction. Id. Non-renewal or breach of a school district employee's contract involves the "school laws of this state." Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W.3d 118, 128 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (citing Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363, 366 (Tex. App.-San Antonio 2004, no pet.)).

Subchapter F of Chapter 21 of the education code governs hearings before hearing examiners. See TEX. EDUC. CODE ANN. §§ 21.251-.261 (West 2012). Following the hearing conducted by the hearing examiner, the hearing examiner was required to make a written recommendation including proposed findings of fact and conclusions of law and a determination regarding good cause for the suspension or termination of a teacher. Id. § 21.257. The hearing examiner was required to send a copy of the recommendation to each party, the president of the board of trustees, and the Commissioner. Id. § 21.257(d). The Board was required to consider the hearing examiner's recommendation at the first board meeting for which proper notice could be posted. Id. § 21.258(a). At the meeting, the board was required to consider the recommendation and allow each party to present oral argument. Id. § 21.258(b). Not later than ten days after the meeting, the Board was required to announce its decision. Id. § 21.259(a). Not later than twenty days after the Board's decision, a party may appeal the decision by filing a petition for review with the Commissioner. Id. § 21.301(a). Thus, the hearing examiner's recommendation is only one step in the remedy afforded to district employees like Gore. The Board's consideration of the recommendation at a meeting and Gore's presentation of oral argument at that meeting was the second step that preceded the Board's actual decision. The Commissioner concluded Gore had failed to exhaust administrative remedies by failing to attend the Board meeting on the recommendation regarding his case. We conclude reasonable minds could have reached the same conclusion as the Commissioner. Ortiz, 2016 WL 911403, at *1; see Sizemore, 759 S.W.2d at 116. The Commissioner's decision, therefore, was supported by substantial evidence. Mireles, 9 S.W.3d at 131; Ortiz, 2016 WL 911403, at *1. The trial court may not reverse the decision of the Commissioner unless the decision was not supported by substantial evidence or unless the Commissioner's conclusions of law are erroneous. TEX. EDUC. CODE ANN. § 21.307(f). Under these circumstances, the trial court erred in reversing the Commissioner's decision. See id.; Mireles, 9 S.W.3d at 131; Ortiz, 2016 WL 911403, at *1. We sustain the District and the Commissioner's sole issue.

We reverse the trial court's judgment and render judgment affirming the Commissioner's decision of February 25, 2015.


In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:

The Commissioner of Education's February 25, 2015 decision is AFFIRMED.



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