Nuernberg v. Texas Employment Commission , 858 S.W.2d 364 ( 1993 )

858 S.W.2d 364 (1993)

Alfred NUERNBERG, Petitioner,
v.
TEXAS EMPLOYMENT COMMISSION and Milchem Incorporated Ind. and d/b/a Milpark Drilling Fluids, Respondents.

No. D-3326.

Supreme Court of Texas.

June 16, 1993. Rehearing Overruled September 10, 1993.

Bruce A. Coane and Joyce A. Keating, Houston, for petitioner.

J. Alfred Southerland, Houston, Anthony Aterno and Dan Morales, Austin, for respondents.

PER CURIAM.

Alfred Nuernberg appealed a decision of the Texas Employment Commission (TEC) denying him unemployment compensation. In the trial court, the TEC moved for summary judgment. With its motion, the TEC filed neither affidavits nor discovery materials but only the agency record. Relying solely on that record, the trial court granted the TEC's motion. The court of appeals affirmed. 846 S.W.2d 41.

The court of appeals' judgment conflicts with our decision in Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986). The hybrid, de novo—substantial evidence standard of review for appeals from the TEC, outlined in Mercer, prohibits the trial court from reviewing the agency record itself. Individual items within the agency record may be introduced at trial, but they must be introduced independently and pursuant to the Texas Rules of Civil Evidence. Because the TEC presented the agency record in its entirety to the trial court, there was no competent evidence on which to base a summary judgment. Accordingly, pursuant to Texas Rule of Appellate Procedure 170, without hearing oral argument, a majority of the court grants the application for writ of error, reverses the judgment of the court of appeals, and remands the case to the trial court for further proceedings consistent with this opinion.