Angela Davis, as President of Nea-Dallas (A Local Affiliate of Texas State Teachers Association), on Behalf of All Affected Members and Named Individuals v. Mike Morath, Commissioner of Education of the State of Texas, and Dallas Independent School District, a Public Body Corporate ( 2021 )

IN THE SUPREME COURT OF TEXAS
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No. 19-1035
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ANGELA DAVIS, AS PRESIDENT OF NEA-DALLAS (A LOCAL AFFILIATE OF TEXAS
STATE TEACHERS ASSOCIATION), ON BEHALF OF ALL AFFECTED MEMBERS AND
NAMED INDIVIDUALS, PETITIONERS,
v.
MIKE MORATH, COMMISSIONER OF EDUCATION OF THE STATE OF TEXAS, AND
DALLAS INDEPENDENT SCHOOL DISTRICT, A PUBLIC BODY CORPORATE,
RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued March 23, 2021
JUSTICE BLACKLOCK delivered the opinion of the Court.
A group of teachers (Teachers) at Dallas Independent School District objected to DISD’s
method of evaluating teacher performance. Pursuing a procedural pathway provided by the
Education Code, the Teachers brought their grievances first to the school board, then to the
Commissioner of Education, and finally to the courts. DISD denied the grievances as untimely.
The Commissioner dismissed the grievances, concluding that their untimely presentation to the
local school board deprived him of jurisdiction. The Teachers appealed to district court, which
affirmed the Commissioner’s decision. The court of appeals held that the Commissioner had
jurisdiction over the grievances. It further held that some of the grievances were untimely and
must be dismissed but that others were timely and could proceed. The Teachers, the school district,
and the Commissioner all filed petitions for review.
We agree with the court of appeals that the Commissioner had jurisdiction to hear the
Teachers’ appeal. We further hold that the grievances were timely filed with the school district.
We do not resolve the parties’ disputes about the legality of DISD’s teacher evaluation system.
We also affirm the court of appeals’ disposition of the Teachers’ contractual complaints regarding
their compensation. The decision of the court of appeals is affirmed in part and reversed in part,
and the matter is remanded to the Commissioner.
I. Background
A. Factual Background
State law requires school districts to evaluate teachers using a procedure adopted by the
Commissioner of Education or one developed by the district. TEX. EDUC. CODE § 21.352.
Beginning in 2011, Dallas Independent School District developed its own evaluation procedure,
called the “Teacher Excellence Initiative” (TEI). The District’s briefing makes clear that it
considers TEI a great success. The Teachers disagree. Our decision today is purely procedural
and takes no position on that question.
On May 22, 2014, the District’s Board of Trustees voted to adopt TEI beginning with the
2014–15 school year. The District asserts that all teachers were informed about the new system.
For example, the District published a “Guidebook” in May 2014, which it updated in March 2015.
The Guidebook explained TEI and informed teachers that their annual final evaluations for the
2014–15 year, called scorecards, would be sent in the fall of 2015. Teachers were given a day and
a half of training on TEI in August 2014. The parties dispute whether any of these events and
2
documents adequately informed the teachers that, under TEI, they would not receive their
scorecards until after the school year ended. Some teachers took the view that the timing of the
scorecards violated section 21.352(c) of the Education Code, which they believe required the
District to evaluate them before the school year ends.
The scorecards affected teacher pay. Each scorecard rated teachers based on three
categories: classroom performance, student achievement, and student perception.1 The student
achievement component is based in part on students’ standardized test scores, including the
statewide STAAR test. According to the Commissioner, STAAR results were not available until
after the school year ended, which meant the scorecards would not be prepared until then. The
Teachers contend that standardized test scores were not necessarily unavailable during the school
year in which they were administered. DISD asserts that some standardized test results “are
inherently unavailable when the school year ends and only arrive for District processing over the
summer.” In September 2014, the District issued a regulation providing further details about the
TEI process. The regulation again stated that the scorecards for the 2014–15 school year would
be provided to teachers in the fall of 2015. On September 18, 2015, in conformity with the
regulation and a published calendar, teachers received their scorecards for the 2014–15 school
year.
1
The parties agree that teacher compensation under TEI was based on each teacher’s “Effectiveness Level”
determined by the three categories rated in the scorecards. As discussed below, the Teachers also made a separate
compensation-related complaint, in which they alleged that the District impermissibly decreased their total
compensation by increasing their health insurance premiums. See infra at ___.
3
B. Procedural Background
Some DISD teachers were unhappy with TEI and with their scorecards. Others were not.
Under DISD’s procedures, a grievance must be filed “no later than ten [business] days from the
date the employee first knew or, with reasonable diligence, should have known of the decision or
action giving rise to the grievance or complaint.” The scorecards were distributed on September
18, 2015, and a grievance was filed ten business days later, on October 2.
The grievance was filed by Angela Davis, president of NEA-Dallas, a local affiliate of the
Texas State Teachers Association, on behalf of all its affected members. The grievance document
itself did not allege any complaints specific to a particular teacher, although Davis later submitted
briefing alleging individualized complaints. The grievance alleged that the distribution of the
scorecards on September 18, 2015 was the event “giving rise to the grievance” for timeliness
purposes. It further complained that each scorecard violated state law by, among other things,
failing to give teachers a final evaluation during the appraisal school year as allegedly required by
section 21.352(c) of the Education Code. On October 14, 2015, Davis filed an amended grievance
on behalf of all affected members and on behalf of 92 Teachers identified by name in an exhibit.
The amended grievance added an allegation that the scorecards’ effect on teacher pay was “a
breach of each Grievant’s contract of employment and/or demotion without due process of law.”
Under District rules, the grievance was first considered by a grievance hearing officer. The
officer denied the grievance but granted the Teachers’ request that they “will not suffer any reprisal
or retaliation for filing this grievance.” The hearing officer otherwise denied the grievance as
untimely under the District’s ten-day rule. The officer’s decision reasoned that the Teachers were
aware of the TEI process from the time it was adopted in May 2014. The officer concluded that
4
because the Teachers failed to file their grievance within ten business days of the date they allege
their evaluations were due under state law, their grievance was untimely. Alternatively, the officer
concluded that the Teachers had not established that TEI violated the law. The Teachers appealed
the hearing officer’s decision to the DISD Board of Trustees. A subcommittee of the Board, acting
on behalf of the full Board, affirmed the decision, agreeing with the hearing officer that the
grievance was untimely.
The Teachers appealed the District’s decision to the Commissioner of Education. See TEX.
EDUC. CODE § 7.057(a).2 The petition to the Commissioner alleged that “the entire TEI instrument
and process as a whole is inequitable, arbitrary, capricious, subjective, and unlawful.”
Specifically, the Teachers alleged that by distributing the 2014–15 appraisals in the fall of 2015,
TEI violated the version of section 21.352(c) of the Education Code then in effect, which required
that “appraisal must be done at least once during the school year.”3 The Teachers contended that
section 21.352(c) required appraisals to be provided “during the school year” to which the
appraisal corresponds. The Teachers also complained of other alleged defects in TEI and in the
scorecards. For example, they objected to the use of standardized test scores in the scorecard’s
2
Section 7.057(a) states:
APPEALS. (a) Except as provided by Subsection (e), 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.
3
Section 21.352(c) stated: “Except as otherwise provided by this subsection, appraisal must be done at least
once during each school year.” The provision was amended in 2019 to replace the word “during” with the word “for.”
Act of May 25, 2019, 86th Leg., R.S., ch. 943, § 2.007. References in this opinion to section 21.352(c) are to the pre-
amendment version, which applies to this dispute.
5
student-achievement component, and they complained that the student-survey component is unfair
and arbitrary. They further alleged that DISD had not adequately trained certain Teachers in TEI
and had not complied with other self-imposed requirements. They claimed these failures
concerning individual Teachers were “arbitrary, capricious, and unlawful, and constitute[] a
violation of the school laws of this State and a breach of each Petitioner’s employment contract
with Respondent that has caused each Petitioner monetary harm.” Separately, the Teachers
complained of an increase in the monthly health insurance deductions taken from their pay checks.
They claimed that the increased deductions amounted to an unlawful reduction in salary.4 The
petition sought a variety of relief, including a finding that “the TEI system violates the school laws
of this state” and a declaration that each scorecard is void.
The matter was assigned to an administrative law judge at TEA, who issued a Proposal for
Decision (PFD). The PFD recommended dismissal for lack of jurisdiction on grounds that the
grievance was not timely filed with the school district. After receiving the PFD, the Commissioner
dismissed the appeal and made findings of fact and conclusions of law. The Commissioner agreed
with the PFD that the Teachers’ grievance was not timely filed with the ISD and that he therefore
lacked jurisdiction.5 The Commissioner’s Finding of Fact 5 states: “Petitioners’ challenges to the
components of the Teacher Excellence Initiative (TEI) program were not filed within ten business
days of Petitioners learning of the components or of when Petitioners with reasonable diligence
should have known of the components.” Finding of Fact 6 states: “Individual Petitioners’
4
This argument is addressed in Part II.D, infra.
5
The decision was rendered by a “Designee” of the Commissioner. See 19 TEX. ADMIN. CODE § 157.1042(4).
We refer to the Commissioner and his Designee collectively as the Commissioner.
6
challenges to their appraisals were not filed within ten business days of Petitioners learning of the
potential errors in the process or of when Petitioners with reasonable diligence should have known
of the potential errors.” The parties agree that by “challenges to the components,” the
Commissioner meant facial challenges to the TEI procedure as a whole. By “challenges to the
appraisals,” the Commissioner meant complaints of individual teachers about their scorecards.
This distinction drawn by the Commissioner’s findings has framed much of the parties’
characterization of the grievances throughout the appeal.
The Teachers appealed the Commissioner’s decision to Travis County district court as
authorized by statute. See TEX. EDUC. CODE § 7.057(d).6 The district court affirmed the
Commissioner’s decision without a written opinion. The Teachers appealed, and the court of
appeals affirmed in part and reversed in part. Davis v. Morath, 590 S.W.3d 80 (Tex. App.—Austin
2019). The court concluded that the Commissioner had jurisdiction to hear the appeal. Id. at 96.
The court then addressed the timeliness of the “appraisal grievance” and the “components
grievance.”
The “appraisal grievance” refers to the Teachers’ complaints about their scorecards. The
court of appeals found this aspect of the grievance timely because it was filed within ten business
days of when the Teachers received their scorecards. Id. at 102. As for the “components
grievance,” which the court of appeals also called the “TEI grievance,” the court held that this
aspect of the grievance was untimely. It described the “components grievance” as a “facial
grievance as to the components of the TEI system itself.” Id. at 103. It reasoned that TEI was
6
“A person aggrieved by an action of the agency or decision of the commissioner may appeal to a district
court in Travis County.” TEX. EDUC. CODE § 7.057(d).
7
adopted months before the Teachers filed their grievance and that teacher training and publication
of the TEI Guidebook also occurred months before the grievance. The “components grievance”
was therefore untimely because it was filed more than ten days before the Teachers learned, or
with reasonable diligence should have learned, of the new policy. Id. at 102–03.
One Justice concurred in part and dissented in part. She concluded that the “appraisal
grievance” was also untimely and therefore would have affirmed the Commissioner’s decision in
full. Id. at 113 (Goodwin, J., concurring and dissenting).
II. Analysis
A. Jurisdiction
The Commissioner contends that the grievance was untimely under DISD’s internal
procedures and that, as a result, he lacked jurisdiction to hear the Teachers’ appeal. The court of
appeals disagreed and held that the Commissioner had jurisdiction whether or not the grievance
was timely. Davis, 590 S.W.3d at 96. We agree with the court of appeals.
The Commissioner’s jurisdiction to hear the Teachers’ appeal of DISD’s decision comes
from section 7.057(a) of the Education Code, which provides:
APPEALS. (a) Except as provided by Subsection (e), 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 contract between the school district and
a school district employee, if a violation causes or would cause
monetary harm to the employee.
Courts must review the Commissioner’s evidentiary determinations under the substantial-
evidence standard. See TEX. GOV’T CODE § 2001.174. However, the jurisdictional question
presented here turns on the meaning of a statute and thus presents a question of law reviewed de
8
novo. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex. 2020). “An agency’s
interpretation of a statute it enforces is entitled to serious consideration, so long as the construction
is reasonable and does not conflict with the statute’s language.” Cadena Comercial USA Corp. v.
Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017) (internal quotation marks
omitted). However, statutory ambiguity is a precondition to any such “serious consideration.”
Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013) (“It is true that courts grant
deference to an agency’s reasonable interpretation of a statute, but a precondition to agency
deference is ambiguity; an agency’s opinion cannot change plain language.”) (internal quotation
marks omitted).
In construing statutory text, we look to the plain language of the text and interpret it in light
of the statute as a whole. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). “We must
apply statutes as written and refrain from rewriting text that lawmakers chose.” Pruski v. Garcia,
594 S.W.3d 322, 325 (Tex. 2020) (internal quotation marks omitted).
The legislature’s grant of appellate jurisdiction to the Commissioner is straightforward.
“[A] person may appeal in writing to the commissioner if the person is aggrieved by . . . actions
or decisions of any school district board of trustees that violate . . . the school laws of this state”
or that violate “a provision of a written contract between the school district and a school district
employee.” TEX. EDUC. CODE § 7.057(a). Here, the Teachers complain that their scorecards
violated section 21.352(c) of the Education Code because the scorecards were not distributed
during the school year for which they provided evaluations. They also make various other
complaints about the scorecards and about the TEI system.
9
No party disputes that the applicable provisions of the Education Code are “school laws of
this state.” Id. The grievance also complained that the effect of the scorecards was to reduce the
Teachers’ pay in violation of their contracts. Both the allegedly illegal scorecards and the alleged
reduction in pay are the result of “actions or decisions of [the] school district board of trustees.”
Id. Neither the Commissioner nor DISD disputes the Teachers’ claim that they were “aggrieved
by” these actions or decisions. These complaints therefore fall squarely within the text of the
legislature’s grant of appellate jurisdiction to the Commissioner.
“State agencies are statutory creatures and have no inherent authority other than those
powers the Legislature expressly confers.” Cadena, 518 S.W.3d at 334. “When the Legislature
acts with respect to a particular matter, the administrative agency may not so act with respect to
the matter as to nullify the Legislature’s action even though the matter be within the agency’s
general regulatory field.” State v. Jackson, 376 S.W.2d 341, 344–45 (Tex. 1964). The text of
section 7.057(a) dictates the scope of the Commissioner’s jurisdiction, and the agency is not at
liberty to add to or subtract from the jurisdiction assigned to it.
Assuming that the grievance was untimely under DISD rules, nothing in the statute
conditions the Commissioner’s jurisdiction on the timeliness or procedural validity of the
complainant’s actions at the district level. Instead, the legislature has mandated that a person “may
appeal” if the person is “aggrieved by” an “action or decision” of the school board that violates
the school laws or a written employment contract. TEX. EDUC. CODE § 7.057(a). In the
Commissioner’s view, however, such a person may not appeal if the person has not correctly
followed the school district’s internal grievance procedures. Nothing in the statute supports that
result. The statute contains no procedural exceptions to its grant of appellate jurisdiction, and
10
neither the Commissioner nor the courts are at liberty to create one. Under the plain language of
section 7.057(a), procedural defects at the local level are not jurisdictional defects in the
Commissioner’s statutory authority to hear the appeal.7
B. Timeliness of the Grievance
Having decided that the Commissioner had jurisdiction to hear the Teachers’ appeal under
section 7.057(a), we must next decide what effect the grievance’s alleged untimeliness has on the
Commissioner’s review of the District’s actions.
The Education Code authorizes school boards to adopt rules and procedures for hearing
complaints from teachers and others. TEX. EDUC. CODE § 11.1511(b)(13). DISD’s rules provide:
“A grievance must be filed no later than ten [business] days from the date the employee first knew
or, with reasonable diligence, should have known of the decision or action giving rise to the
grievance or complaint.” No party disputes that this rule must be followed. Nor do the parties
dispute that the Commissioner may consider whether the appeal should be denied—not as a
jurisdictional matter but on the merits—due to the complainant’s failure to comply with the
District’s grievance procedures, including the ten-day deadline. We find no basis in section 7.057
to doubt that the Commissioner should deny relief to a party whose appeal arises from a grievance
that was not timely brought at the District level. Although the Commissioner has jurisdiction over
such an appeal so long as it meets the requirements of section 7.057(a), the proceeding is
7
Of course, if a party attempted to “appeal” to the Commissioner without having obtained a decision from
the school district at all, the Commissioner might argue that such a de novo proceeding is not within the
Commissioner’s appellate jurisdiction because there is no local decision that the party “may appeal.” We do not
address this hypothetical situation. Here, the Teachers sought and obtained a ruling from the District. That the
District’s ruling rested on procedural grounds does not deprive the Commissioner of jurisdiction to hear the Teachers’
appeal, as long as the appeal otherwise fits within the text of section 7.057(a).
11
nonetheless an “appeal.” Id. § 7.057(a). The Education Code authorizes the Commissioner to
review local school board decisions and actions, but it does not authorize him to reach the merits
of a complainant’s arguments regardless of how the complaint was handled at the school-district
level. If the District was prohibited by its internal procedures from reaching the merits of the
grievance, the scope of the Commissioner’s appellate review is likewise limited.
We turn now to whether the Teachers’ grievance was timely lodged with the District. The
court of appeals analyzed the timeliness question by dividing the Teachers’ claims into two broad
categories, the “components grievance” and the “appraisal grievance.” These categories appear to
have originated in the Commissioner’s findings. The Commissioner found: “Petitioners’
challenges to the components of the Teacher Excellence Initiative (TEI) program were not filed
within ten business days of Petitioners learning of the components or of when Petitioners with
reasonable diligence should have known of the components.” (Emphasis added). The court of
appeals described this “components grievance” as a “facial grievance as to the components of the
TEI system itself.” Davis, 590 S.W.3d at 103. At the broadest level, the “components grievance”
consists of the Teachers’ allegation that the entirety of TEI “is inequitable, arbitrary, capricious,
subjective, and unlawful.” The court of appeals upheld the Commissioner’s conclusion that the
“components grievance” was untimely because publications by the District and teacher training
made the TEI policy known or knowable more than ten days before the grievance was filed. Id.
The Commissioner also found: “Individual Petitioners’ challenges to their appraisals were
not filed within ten business days of Petitioners learning of the potential errors in the process or of
when Petitioners with reasonable diligence should have known of the potential errors.” The court
of appeals described this part of the Commissioner’s decision as dealing with the “appraisal
12
grievance.” The court of appeals reversed this portion of the Commissioner’s decision, holding
that the “appraisal grievance” was timely filed because it was brought within ten business days of
the Teachers’ receipt of their appraisals. Id. at 102.8
To resolve this appeal, we must decide whether the Teachers failed to engage DISD’s
internal grievance process in a timely manner. The District argues that in considering this question
we should defer to its interpretation of its own rules. It relies on section 11.151(b) of the Education
Code, which vests in school boards “the exclusive power and duty to govern and oversee the
management of the public schools of the district.” TEX. EDUC. CODE § 11.151(b). This broad
authority, however, does not preclude judicial review of school district actions alleged to violate
“the school laws of this state.” Id. § 7.057(a). As we have explained, section 11.151(b) dictates
that “a school board must be the ultimate interpreter of its policy, subject to the limits established
by the Legislature in its provisions for administrative and judicial review.” Montgomery Indep.
Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000) (emphasis added).
There are no disputed facts relevant to the timeliness analysis under the District’s ten-day
rule. The District’s rule provides that a grievance must be filed “no later than ten days from the
date the employee first knew or, with reasonable diligence, should have known of the decision or
action giving rise to the grievance or complaint.” Dallas ISD Board Policy DGBA (Local) (issued
Apr. 29, 2015). Like section 7.057(a) governing the Commissioner’s jurisdiction, the District’s
8
The exact contours of what the court of appeals included in the “appraisal grievance” are not entirely clear.
The court did clarify, however, that the “appraisal grievance” included the complaint that the scorecards were not
distributed until after the school year ended, in alleged violation of section 21.352(c) of the Education Code. 590
S.W.3d at 102. Whether the alleged violation of section 21.352(c) is properly treated as part of the “appraisal
grievance” or the “components grievance,” as the parties and the court of appeals describe those categories, is not an
easy question to answer. Because these categories do not ultimately matter to our resolution of the timeliness question,
we need not decide which aspects of the grievance belong in which category.
13
rule imposes a deadline running from the complained-of “decision or action.” The Teachers
contend that the relevant “decision or action giving rise to the grievance” is DISD’s distribution
of the scorecards. DISD and the Commissioner respond that the relevant “decision or action” is
really the adoption of TEI in 2014 or other earlier decisions.
There is no doubt that the distribution of the scorecards was an “action” by the District.
The controlling question is whether this action—or some other, earlier action or decision—“g[ave]
rise to the [Teachers’] grievance.” Of course, as a matter of timing, the distribution of scorecards
immediately precipitated the filing of the grievance. In that sense, it “gave rise to” the grievance
by causing it to happen. DISD and the Commissioner argue, however, that an action truly “giv[es]
rise to the grievance” only if the grievance is genuinely a complaint about that action as opposed
to a complaint about an earlier action or decision. We agree that the Teachers’ grievance must
genuinely complain about the scorecards themselves in order for the scorecards to be what “giv[es]
rise to the grievance.” The Teachers’ grievance, however, is sufficiently connected to the
distribution of the scorecards to satisfy this requirement.
The grievance makes many allegations regarding the scorecards. It claims they were sent
too late in violation of section 21.352(c). It claims they violate portions of TEI with respect to
certain teachers. And it claims the entire TEI evaluation system on which the scorecards are based
is unlawful for various reasons. All of these are arguments for the invalidity or illegality of the
scorecards. True, some of the Teachers’ arguments—in addition to complaining of the receipt of
illegal scorecards—also impugn earlier actions or decisions of the District, such as the decision to
adopt the TEI system in the first place. But the fact that the scorecards’ alleged illegality originated
in an earlier policy decision by the District does not convert the Teachers’ grievance from a
14
complaint about the scorecards’ illegality into a complaint about the earlier policy decision. If the
scorecards are legally flawed—a matter on which we express no opinion—then the District’s
action in sending them is subject to a grievance. It makes no difference that the reason the
scorecards are legally flawed is the District’s earlier decision to adopt TEI. The District’s ten-day
rule looks to the “action” alleged to be illegal and asks whether it “g[ave] rise to the grievance.”
It does not look to the reasons why the action is alleged to be illegal, and it does not authorize the
District to strategically reframe the Teachers’ arguments as a time-barred complaint about prior
actions or decisions.
The law gives the DISD Board some authority to decide for itself what its rules mean. See
Montgomery, 34 S.W.3d at 565 (“[U]nder the statutory scheme a school board must be the ultimate
interpreter of its policy, subject to the limits established by the Legislature in its provisions for
administrative and judicial review.”). The law does not give the Board any authority to decide for
itself which “action” the Teachers are challenging. Like any other plaintiff or administrative
complainant, the Teachers are entitled to frame their own grievance. Their grievance, on its face,
complains about the Teachers’ scorecards, and we see nothing in the District’s ten-day rule limiting
the legal grounds or arguments on which such a complaint may rest.
The arguments made by the District and the Commissioner assume that each grievance
must correspond to a particular “decision or action” for purposes of assessing its timeliness. They
argue that because the “decision” to adopt TEI happened long ago, the Teachers’ window to bring
a grievance challenging it has irretrievably passed. They likewise argue that because the
“decision” not to send scorecards until the following school year was known to the Teachers
months before they filed their grievance, they forever missed their chance to complain about it.
15
The District’s ten-day rule, however, is written in the disjunctive. It requires the filing of the
grievance within ten days of the date the employee knew or should have known of the “decision
or action” that gave rise to the complaint. The rule’s disjunctive phasing indicates that compliance
can be achieved through alternative means. See City of Lorena v. BMTP Holdings, L.P., 409
S.W.3d 634, 642 (Tex. 2013) (holding that statute’s use of the word “or” meant that it provided
for alternative means of compliance). Even if the Teachers’ grievance can be framed as a
complaint about the District’s past decisions, it can likewise be framed as a complaint about the
action that necessarily followed those decisions—the distribution of scorecards as required by the
TEI process. Because the grievance was lodged within ten days of that action, it was timely.
Yet another problem with the position taken by the District and the Commissioner is that
it presumes complainants can bring grievances challenging any District decision with which they
disagree, regardless of whether the decision has injured the complainants. Section 7.057 indicates
the opposite. Only those “aggrieved by” the District’s action or decision may appeal to the
Commissioner. TEX. EDUC. CODE § 7.057(a). Thus, the Teachers could not initiate an
administrative appeal challenging TEI without establishing that the TEI “aggrieved” them. The
District says the Teachers should have filed a grievance about its decision to adopt TEI within ten
days of that decision, but at that point it was not clear the Teachers were aggrieved. They had little
reason to know—prior to receipt of their scorecards—whether the TEI system would aggrieve
them. Many teachers were likely pleased with their scorecards, and most did not join the
grievance. As the District points out, 5900 teachers received raises after they were evaluated under
the new TEI system. It is far from obvious that teachers who eventually benefited from TEI were
nevertheless “aggrieved by” its alleged illegality the moment the District adopted it.
16
In sum, nothing in the District’s policies authorizes it to reframe the Teachers’ grievance
as a time-barred complaint about its prior decisions, so long as the grievance genuinely complains
of an “action or decision” that occurred within ten business days preceding its filing. We conclude
that the grievance’s complaints about the scorecards clear that bar because, although they impugn
the District’s past decisions, they also genuinely arise from the District’s action in sending the
scorecards. We see nothing in the District’s policy constraining the legal arguments available to
a complainant seeking to demonstrate that DISD’s action in sending the scorecards violated the
law. Accordingly, we hold that all the Teachers’ complaints relating to their scorecards were
timely.9
C. Preservation of Error Before the Commissioner
The Commissioner argues that the Teachers filed inadequate “exceptions” to the ALJ’s
proposal for decision and thereby failed to preserve error. The relevant administrative rule,
promulgated by the Texas Education Agency, provides: “The exceptions shall be specifically and
concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or
arguments relied upon shall be grouped under the exceptions to which they state.” 19 TEX. ADMIN.
CODE § 157.1059(e). The Commissioner found that the Teachers did not comply with this rule.
The court of appeals reversed. The Commissioner argues in this Court that the Teachers’
9
The Teachers and the Commissioner ask us to review the court of appeals’ interpretation of section
21.352(c) of the Education Code, which provides that “appraisal must be done at least once during each school year.”
The court of appeals addressed the meaning of section 21.352(c) in the course of deciding whether the Teachers’
arguments under that provision were an untimely “components grievance” or a timely “appraisal grievance.” Because
we do not adopt this distinction, we have no occasion to review the court of appeals’ understanding of section
21.352(c). Moreover, the Commissioner—whose decision we are reviewing pursuant to section 7.057(d)—did not
address the meaning of section 21.352(c) because he concluded he lacked jurisdiction to do so. We agree with the
District’s argument that an appropriate course is to remand the dispute over section 21.352(c)’s meaning for an initial
determination by the Commissioner. The Commissioner should consider the question anew, without regard to the
discussion of it in the court of appeals’ opinion.
17
exceptions were too vague to meet the rule’s specificity requirement. We agree with the court of
appeals.
An agency must follow “the clear, unambiguous language of its own regulations.” TGS–
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). Whatever the effect of
non-compliance with section 157.1059(e) may be, the Teachers argue their exceptions to the PFD
complied with it. We agree. The Teachers made sufficient objections to the PFD to preserve their
complaints regarding the scorecards. They filed 32 exceptions set out in 133 paragraphs. The
exceptions included arguments that reasonably match the contentions carried forward in this
appeal, including the arguments we ultimately find dispositive. The exceptions contend that the
date the Teachers received their scorecards is the relevant date for determining compliance with
the ten-day deadline: “All of NEA Dallas’s arguments made in the grievance process pertained to
the class members’ Scorecards, and the manner in which each teacher was appraised, [and
therefore] were timely filed on October 2, 2015, within ten days of the teachers’ receipt of the
Scorecards on September 18, 2015.” The exceptions further argue that “[t]he claims made in NEA
Dallas’s grievance were not ripe until the Scorecards were issued in the fall of 2015.”
These exceptions put the agency on sufficient notice that the Teachers intended to advance
the arguments upon which we rely today. In promulgating its rule requiring specific exceptions,
TEA itself stated that the purpose of requiring exceptions is simply “to ensure full presentation of
all disagreements with the proposal for decision.” 29 Tex. Reg. 6887, 6888 (2004) (General
Provisions for Hearing Before the Commissioner of Education). The exceptions did not have to
fully elaborate the Teachers’ argument. They adequately captured the essence of the timeliness
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argument the Teachers later advanced in more detail in the courts. This was sufficient to preserve
error in this context.10
D. Dismissal of Claim for Reduction in Compensation
The Teachers’ petition to the Commissioner alleged that the law prohibits DISD from
reducing a teacher’s salary after the last date the teacher can exercise his right to unilaterally resign
from his contract. The Teachers claimed DISD violated this rule by increasing the health-
insurance deductions taken from teacher pay checks, which allegedly reduced the Teachers’
salaries by reducing their take-home pay. The Teachers alleged that this amounted to a breach of
their contracts.
The Commissioner rejected this claim on the merits. He acknowledged TEA
administrative decisions holding that a school district cannot reduce a certified teacher’s total
compensation after the period when the teacher can unilaterally resign. See Bledsoe v. Huntington
Indep. Sch. Dist., Docket No. 033-R10-1103, at 8 (Comm’r Educ. 2014) (discussing TEX. EDUC.
CODE §§ 21.105, 21.160, 21.210). But this rule, the Commissioner reasoned, applies to a reduction
in total compensation, not to a reduction in take-home pay resulting from a higher health insurance
premium. Further, the Commissioner observed that the Teachers had not made their employment
contracts part of the record, so there was no proof that any Teacher’s total compensation had been
10
The District argues more particularly that certain Teachers’ complaints about their individual scorecards
were not properly preserved through exceptions to the ALJ’s PFD. We do not understand the Commissioner’s written
Decision to reach the merits of any of these complaints, however. The Commissioner’s erroneous conclusion that he
lacked jurisdiction because of the grievance’s untimeliness resulted in a truncated proceeding in which the complaints
DISD claims have not been preserved for appeal were never decided in the first place. In other words, DISD complains
the Teachers did not adequately preserve their position on the merits of some of their complaints about the scorecards,
but there was no ruling on the merits of these complaints and therefore no error to preserve. We conclude that the
Teachers preserved error with respect to the timeliness issue, which provides an adequate basis for the limited decision
we reach today.
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reduced. He also found that the claim must fail because the Teachers did not raise it before the
school board. The court of appeals affirmed this portion of the Commissioner’s decision. Davis,
590 S.W.3d at 103–04. The court reasoned that the claim was properly dismissed “because it was
not raised at the local level” and because “even if it had been preserved, the reason for the increased
insurance cost is unclear from the record.” Id.
We agree with the court of appeals. The Teachers fail to demonstrate that their complaint
regarding reduced take-home pay due to rising insurance premiums was raised at the District level
or supported by the record. Further, the Teachers do not persuasively rebut the Commissioner’s
conclusion that reductions in take-home pay due to rising insurance costs—as opposed to
reductions in total compensation—do not trigger the salary protections the Teachers invoke.
III. Conclusion and Disposition
We affirm the judgment of the court of appeals with respect to the Commissioner’s
jurisdiction to hear the appeal of the Teachers’ grievance. We further hold that the Teachers’
grievance regarding their scorecards was timely filed in accordance with DISD’s internal ten-day
rule. As a result, the portion of the court of appeals’ judgment upholding the dismissal of parts of
the grievance as untimely is reversed. The portion of the court of appeals’ judgment reversing the
dismissal of part of the grievance is affirmed. The portion of the court of appeals’ opinion
construing TEX. EDUC. CODE § 21.352(c) is vacated. Finally, we affirm the court of appeals’
judgment regarding the Teachers’ claims of unlawful salary reduction due to increased insurance
costs. The case is remanded to the Commissioner for further proceedings consistent with this
opinion.
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__________________________________
James D. Blacklock
Justice
OPINION DELIVERED: May 28, 2021
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