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 ( 2019 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-18-00377-CV
    Angela Davis, as President of NEA-Dallas (a Local Affiliate of Texas State Teachers
    Association), on behalf of All Affected Members and Named Individuals, Appellant
    v.
    Mike Morath, Commissioner of Education of The State of Texas, and
    Dallas Independent School District, A Public Body Corporate, Appellees
    FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-17-002145, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
    CONCURRING AND DISSENTING OPINION
    In this appeal, certain teachers (the Teachers) employed with the Dallas
    Independent School District (DISD) filed a grievance with DISD’s Board of Trustees (the Board)
    regarding: (1) DISD’s Teacher Excellence Initiative (TEI) appraisal system for the school year
    2014–2015; (2) the TEI Scorecards (the Scorecards)—which set forth a teacher’s 2014–2015
    evaluation rating and 2015–2016 effectiveness level—that the Teachers received in September
    2015; and (3) an alleged decrease in the Teachers’ salary. The Board dismissed and denied the
    grievance as untimely. The Teachers then appealed to the Commissioner. Agreeing with the
    Board, the Commissioner issued findings of fact and conclusions of law determining that the
    grievance was untimely; yet, rather than affirm the Board’s decision, he dismissed the appeal for
    lack of jurisdiction. The district court affirmed.
    The Court concludes that the Commissioner had jurisdiction over the Teachers’
    appeal from the Board’s decision, and I agree.           See Tex. Educ. Code § 7.057.        The
    Commissioner’s dismissal for lack of jurisdiction is therefore “affected by other error of law”
    and his decision must be reversed if the Teachers’ substantial rights have been prejudiced. See
    Tex. Gov’t Code § 2001.174(2)(D). In my opinion, given the unique procedural posture of this
    case, the Commissioner’s supporting findings and conclusions may serve as grounds for
    affirming the Commissioner’s decision if they satisfy the substantial evidence rule. If so, the
    Teachers’ statutory right to have those issues determined by the Commissioner was not
    prejudiced by the Commissioner’s ultimate disposition of dismiss rather than affirm. See 
    id. § 2001.174;
    Tex. Educ. Code § 7.057. I therefore concur with this Court’s decision affirming the
    Commissioner’s dismissal of the Teachers’ complaints regarding the TEI and their decrease in
    salary for the reasons stated in the Commissioner’s supporting findings and conclusions. I
    respectfully dissent, however, from this Court reversing the Commissioner’s dismissal of the
    Teachers’ complaints regarding the Scorecards and remanding that issue for further proceedings.
    Because the Commissioner’s supporting findings and conclusions on this issue satisfy the
    substantial evidence rule, I would affirm.
    DISCUSSION
    The Court and I agree that pursuant to Texas Commissioner of Education v. Solis,
    section 7.057(a) of the Texas Education Code provides the Commissioner with jurisdiction over
    the Teachers’ appeal from the Board’s decision on their grievance. 
    562 S.W.3d 591
    , 602 (Tex.
    2
    App.—Austin 2018, pet. filed) (“Section 7.057 of the Texas Education Code provides for an
    appeal to the Commissioner when a person is aggrieved by an action or decision of a board of
    trustees that violates Texas school law. The Commissioner may not, through his rules or
    policies, narrow the availability of that appeal.”). Thus, the Commissioner’s decision to dismiss
    the appeal for lack of jurisdiction was “affected by other error of law” and this Court must
    reverse and remand “if substantial rights of the appellant have been prejudiced” by this error of
    law. See Tex. Gov’t Code § 2001.174(2)(D).1
    In most scenarios, that would be the end of the inquiry—this Court would reverse
    and remand for further proceedings for the Commissioner to consider the merits of the grievance.
    Otherwise, the substantial rights of the grievant—namely, to have the Commissioner consider
    and decide the merits of the appeal from the Board’s decision, see Tex. Educ. Code § 7.057—
    would be prejudiced.      This case, however, presents the unique circumstances of the
    Commissioner making express findings, conclusions, and decisions that establish that the
    Teachers’ grievance was untimely—which the Commissioner considered necessary to resolve
    1
    Review of the Commissioner’s decision under section 7.057 “is governed by the same
    analysis as in the district court and before the Commissioner—the familiar ‘substantial-evidence’
    rule that is codified in Section 2001.174 of the Administrative Procedure Act.” Jenkins
    v. Crosby Indep. Sch. Dist., 
    537 S.W.3d 142
    , 148 (Tex. App.—Austin 2017, no pet.); see Morath
    v. Cano, No. 03-15-00799-CV, 
    2017 WL 3585252
    , at *3 & n.10 (Tex. App.—Austin
    Aug. 17, 2017, no pet.) (mem. op.) (collecting cases). The Commissioner’s decision should
    be reversed only if the party challenging the decision demonstrates that the party’s
    substantial rights have been prejudiced. See Mitchell v. Texas Med. Bd., No. 03-13-00502-CV,
    
    2015 WL 1778289
    , at *3 (Tex. App.—Austin Apr. 15, 2015, pet. denied) (mem. op.) (“To
    warrant reversal or remand, therefore, the reviewing court must conclude that (1) substantial
    rights of the appealing party have been affected because of (2) one or more of the reasons listed
    in section 2001.174(2)(A)–(F).”); Citizens Against Landfill Location v. Texas Comm’n on Envtl.
    Quality, 
    169 S.W.3d 258
    , 264 (Tex. App.—Austin 2005, pet. denied) (“[T]he agency’s decision
    should be reversed only if the party challenging the decision demonstrates that the absence of
    substantial evidence has prejudiced the party’s substantial rights.”).
    3
    the jurisdictional issue2—and that the Teachers waived any individual complaints by not
    specifically excepting to the proposal for decision (PFD) prepared by the administrative law
    judge (ALJ).     These findings, conclusions, and decisions—if supported by substantial
    evidence—establish that the Commissioner should have affirmed the Board’s decision to dismiss
    the grievance pursuant to DISD’s grievance policy. See Tex. Educ. Code § 11.1511(b)(13)
    (providing that board of trustees of independent school districts shall by rule adopt process for
    hearing complaints); 19 Tex. Admin. Code § 157.1073(h) (Tex. Educ. Agency, Hearings
    Brought Under Tex. Educ. Code § 7.057) (providing that Commissioner may affirm or reverse
    board’s decision pursuant to substantial evidence review); cf. Poole v. Karnack Indep. Sch. Dist.,
    
    344 S.W.3d 440
    , 442 (Tex. App.—Austin 2011, no pet.) (noting Commissioner concluded
    district’s decision to dismiss grievance on basis of untimely filing was supported by substantial
    evidence and affirmed district’s decision). And the Commissioner implies in his briefing that if
    his decision is reversed and remanded, he would “reform the relief from dismissal to affirmance”
    without changing the findings and conclusions.3
    Although the Commissioner’s findings, conclusions, and decisions were made in
    the context of an incorrect jurisdictional determination, the Teachers will not be able to meet
    2
    The substantial evidence standard would govern review of jurisdictional fact findings if
    the Commissioner had correctly determined that he lacked jurisdiction. See Houston Indep. Sch.
    Dist. v. Simpson, No. 03-12-00145-CV, 
    2013 WL 5878919
    , at *3 (Tex. App.—Austin Nov. 1, 2013,
    no pet.) (mem. op.) (“Where, as here, the Commissioner makes fact findings necessary to resolve
    the jurisdictional issue based on an evidentiary record developed through an adjudicative
    process, we review those fact findings under the substantial-evidence standard.”).
    3
    The Commissioner states, “Because here the Commissioner specifically concluded that
    the teachers’ grievance was untimely, . . . (COLs #3), there is no reason for this Court to remand
    to the Commissioner to reform the relief from dismissal to affirmance. In this case, dismissing
    the teachers’ claim instead of denying it would be harmless error, for the Commissioner’s
    conclusion that the teachers’ grievance was untimely was reasonable and therefore the teachers
    have not been prejudiced for they are not entitled to relief.”
    4
    their burden to demonstrate that their substantial rights have been prejudiced if these
    “administrative findings, inferences, conclusions, or decisions” (1) establish that the
    Commissioner should have affirmed the Board’s decision to dismiss the grievance and (2) are
    sustained on review under the substantial evidence rule.4 See Tex. Gov’t Code § 2001.174(2);
    cf. Jenkins v. Crosby Indep. Sch. Dist., 
    537 S.W.3d 142
    , 149 (Tex. App.—Austin 2017, no pet.)
    (“Substantial-evidence analysis entails two component inquiries: (1) whether the agency made
    4
    For this reason, it is my opinion that the Court exceeds the scope of its review in
    resolving issues that were not addressed in the Commissioner’s decision. For example, the Court
    considers whether section 21.352(a) of the Texas Education Code is directory or mandatory in
    requiring a yearly appraisal. See ante at ___ (citing Tex. Educ. Code § 21.352(a)). The Court
    justifies addressing this issue by stating that “the applicable standard of review requires us to
    consider whether . . . to dismiss the appeal on some other reasonable basis in this record” or
    “[u]nder substantial evidence review of fact-based determinations, . . . ‘whether the record
    demonstrates some reasonable basis for the agency’s action.’” Ante at ___ (quoting AEP Tex.
    Cent. Co. v. Public Util. Comm’n, 
    345 S.W.3d 60
    , 68 (Tex. 2011)). But whether section 21.352
    is directory or mandatory is neither a “reasonable basis” for the Commissioner’s action of
    dismissing the appeal for lack of jurisdiction nor a “fact-based determination[].” And by
    expressly dismissing the Teachers’ appeal, the Commissioner made the determination that he did
    not have jurisdiction to consider the merit issue of whether section 21.352(a) is directory or
    mandatory. For the reasons described more fully in the following sections, it is my opinion that
    the Court need not reach this issue because the Commissioner’s decision to dismiss can be
    affirmed given (1) his express determination, which included findings and conclusions, in his
    decision that the grievance was untimely, (2) those findings, conclusions, and decisions are
    sustained on review under the substantial evidence rule, and (3) the Teachers’ substantial rights
    were not prejudiced by the dismissal although the dismissal was affected by other error of law
    because the Commissioner expressly considered and determined the issue of timeliness in his
    decision. But even if I agreed with the Court that the grievance regarding section 21.352(a) was
    timely raised, I would not address whether that statute is directory or mandatory. Section
    7.057(a) of the Texas Education Code provides the Teachers with a right to appeal to the
    Commissioner. Tex. Educ. Code § 7.057(a). If the Teachers’ grievance as to section 21.352(a)
    was timely, the Teachers would be entitled to have the Commissioner consider the merit issue of
    whether it is directory or mandatory. By dismissing for lack of jurisdiction—a determination
    affected by other error of law—without expressly considering this issue in his decision, the
    Commissioner prejudiced the Teachers’ substantial rights under section 7.057(a) to have that
    issue considered by the Commissioner. Accordingly, pursuant to section 2001.174(2)(D), if the
    Court concludes that the Teachers’ grievance was timely, this Court must reverse and remand on
    this issue without determining the merit issue, which the Court fails to do. See Tex. Gov’t Code
    § 2001.174(2)(D).
    5
    findings of underlying facts that logically support the ultimate facts and legal conclusions
    establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the
    findings of underlying fact are reasonably supported by evidence.”). This approach promotes
    judicial economy by allowing a reviewing court to affirm rather than to reverse and remand to
    have the Commissioner issue the exact same decision—merely reforming the disposition from
    dismissal to affirm—for consideration on appeal. Moreover, this approach is consistent with our
    recent decision in 
    Solis. 562 S.W.3d at 602
    –04.       In Solis, this Court concluded that the
    Commissioner incorrectly determined that it did not have jurisdiction over Solis’s appeal from
    the decision by the board of trustees, but this Court did not immediately reverse and remand
    upon making this conclusion. 
    Id. at 602.
    Instead, this Court first noted that “[w]hile the party
    may be found to have waived that complaint or failed to preserve it for a subsequent appeal to
    the Commissioner, it does not follow that the Commissioner lacks jurisdiction over the appeal
    itself.” 
    Id. Then, this
    Court proceeded to “consider whether Solis was required to seek relief
    from the board of trustees in order to preserve for Commissioner review her claim.”             
    Id. Although this
    Court ultimately concluded that “Solis did not waive that claim by not raising it at
    the local level,” 
    id. at 604,
    there would be no need for this Court to consider the issue if Solis
    was entitled to a reversal of the Commissioner’s decision that he did not have jurisdiction over
    Solis’s appeal and remand for further proceedings without meeting her burden to demonstrate
    that her substantial rights have been prejudiced. The fact that this Court considered the merits of
    whether Solis preserved error before reversing and remanding implies that this Court could have
    affirmed the Commissioner’s decision to dismiss for lack of jurisdiction had Solis not preserved
    error for Commissioner review, even though the jurisdictional decision was “affected by other
    error of law.” See Tex. Gov’t Code § 2001.174(2)(D).
    6
    Following Solis and pursuant to section 2001.174, I proceed with a review of the
    Commissioner’s “administrative findings, inferences, conclusions, or decisions” under the
    substantial evidence rule. See 
    id. § 2001.174.
    In conducting this review, I presume that the
    agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence,
    and the burden is on the appellant to demonstrate otherwise. See Froemming v. Texas State Bd.
    of Dental Exam’rs, 
    380 S.W.3d 787
    , 791 (Tex. App.—Austin 2012, no pet.); Pierce v. Texas
    Racing Comm’n, 
    212 S.W.3d 745
    , 751 (Tex. App.—Austin 2006, pet. denied). “Essentially, this
    is a rational-basis test to determine, as a matter of law, whether an agency’s order finds
    reasonable support in the record.” 
    Jenkins, 537 S.W.3d at 149
    (citing Texas Health Facilities
    Comm’n v. Charter Med.-Dall., Inc., 
    665 S.W.2d 446
    , 452–52 (Tex. 1984)); see 
    id. at 149–50
    (describing “well-established standard of review”).
    Untimeliness of Grievance
    I agree with the Court that substantial evidence supports the Commissioner’s
    decision—which included findings and conclusions—that “the Teachers’ facial grievance as to
    the components of the TEI system itself” was untimely. Ante at ___. And the Teachers have not
    demonstrated how their substantial rights were prejudiced by the Commissioner dismissing this
    portion of their grievance instead of affirming the Board’s dismissal and denial.
    The Court, however, also concludes that there was no reasonable basis to
    determine that the Teachers’ grievance as to not receiving an appraisal during the school year
    was untimely. DISD’s grievance policy requires, “A grievance form 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.” The Court claims that it was
    7
    not reasonable to conclude that the “omission of an appraisal by the end of the school year
    constitutes a ‘decision or action’ triggering the need for a teacher to file a grievance under the
    plain language” of DISD’s grievance policy. Ante at ___. In my opinion, this complaint
    concerns a “decision or action” and substantial evidence in the record supports the
    Commissioner’s decision that the Teachers’ grievance was untimely as to this complaint.
    To consider whether the grievance complained of is a “decision or action,” I look
    to the Teachers’ complaint. The complaint in their petition to the Commissioner, which is
    virtually identical to the complaint in the grievance form before DISD’s Board, states:
    The TEI system does not give the teacher a final evaluation during the appraisal
    school year, but rather gives the teacher this information only after the school year
    has ended by way of the Scorecards received on or around September 18, 2015.
    Those Scorecards, received in the 2015–2016 school year purported to evaluate
    the teachers’ performance for the 2015–2016 school year. This process deprives
    the teacher of a conference that is diagnostic and prescriptive with regard to any
    remediation identified by the evaluator that may be needed in overall performance
    by category during the current school year. Further, this process violates the
    Texas Education Code § 21.352 which requires that a “district option” appraisal
    system must conduct the appraisal “at least once during each school year.”
    (Emphases added.) Thus, the Teachers complain about what “[t]he TEI system . . . gives” and
    about “this process”—i.e., complaints about the components of the system or process adopted by
    DISD or, in other words, a “decision or action” by DISD.
    To determine whether the Teachers’ grievance as to this component of the TEI
    system or process was timely, I consider when the Teachers “first knew or, with reasonable
    diligence, should have known” of this component giving rise to their complaint.5               The
    5
    I assume for purposes of this analysis that the Teachers are correct that the summative
    annual appraisal conducted during the 2014–15 school year is not the “appraisal” contemplated
    by section 21.352(a) of the Texas Education Code. Because the Commissioner’s decision can be
    8
    Commissioner entered a finding of fact that the “[Teachers’] challenges to the components of the
    [TEI] program were not filed within ten business days of [the Teachers] learning of the
    components or of when [Teachers] with reasonable diligence should have known of the
    components.” In the decision, the Commissioner noted:
    The TEI is based on [DISD’s] policies. There are three policies and several
    official interpretations of policies that are relevant to [the Teachers’] claims
    concerning [DISD’s] appraisal process. DNA (LEGAL), DNA(LOCAL[)], and
    DNA(REGULATION) set out the structure of [DISD’s] appraisal program. Each
    of these policies was adopted months before the grievances were filed. [DISD]’s
    teachers received a full day’s training in the TEI evaluation process in August
    2014. A number of district publications further explain the process. The most
    significant publications are the TEI Guidebook, updated March 18, 2015, the TEI
    Rulebook dated January 6, 2015, the Teacher Performance Rubric, revised
    December 19, 2014, the SLO Rubric, revised June 26, 2014, and the TEI Calendar
    for the 2014–2015 school year. In addition, [DISD] provided much information
    about the TEI program on[]line. [The Teachers’] challenges to the components of
    the TEI program were not filed within ten business days of [the Teachers]
    learning of the components or of when [the Teachers] with reasonable diligence
    should have known of the components.
    The TEI Guidebook provides a draft “Category A Teacher Evaluation Scorecard 2014–15” that
    demonstrated that the Scorecard would show the points earned for the categories of teacher
    performance, student perceptions, and student achievement; the total points earned; and an
    evaluation rating and effectiveness level. The DNA(REGULATION) provides that DISD “will
    use the evaluation ratings to determine teacher effectiveness levels” and that “[a]t the beginning
    of the 2015–2016 school year, each teacher will receive one of the following effectiveness levels
    based on a teacher’s evaluation rating from the 2014–15 school year . . . .” (Emphasis added.)
    The TEI Guidebook states in its “Summary of Evaluation Process” that in “September–October
    affirmed without reaching the merits of this question, I would not reach or decide this issue and
    respectfully dissent from the Court’s determination of this issue.
    9
    2015” the “Teachers receive final evaluation rating and effectiveness level.” The TEI Evaluation
    Calendar for the 2014–2015 school year also provides this exact same information.
    In my opinion, the Court need not determine the exact date that the Teachers “first
    knew or, with reasonable diligence, should have known” that they would receive their final
    evaluation rating as shown on the Scorecards in the Fall of the 2015–2016 school year and not in
    the 2014–2015 school year. Substantial evidence exists in the record that no later than the end of
    the 2014–2015 school year—and most likely much earlier—the Teachers “first knew or, with
    reasonable diligence, should have known” that “[t]he TEI system does not give the teacher a
    final evaluation during the appraisal school year, but rather gives the teacher this information
    only after the school year has ended.” And it is undisputed that the Teachers did not file a timely
    grievance from the end of the 2014–2015 school year.6           Because (1) substantial evidence
    supports the Commissioner’s finding of fact that the Teachers’ grievance was untimely and
    (2) the Teachers have not demonstrated how their substantial rights were prejudiced because the
    Commissioner dismissed the cause rather than affirmed the Board’s decision as to this portion of
    6
    The Teachers’ grievance is premised on the fact that their Scorecards were received
    after the school year had ended. The Teachers also raise a ripeness argument, claiming that
    their grievance was not ripe until the Scorecards were delivered. But ripeness generally
    concerns the jurisdiction of a court to decide a case. See, e.g., Waco Indep. Sch. Dist. v. Gibson,
    
    22 S.W.3d 849
    , 851 (Tex. 2000). Here, as the Court and I have discussed, the Commissioner has
    jurisdiction and the issue is whether the grievance was timely filed pursuant to DISD’s grievance
    policy. The Teachers do not identify and my review did not reveal a ripeness requirement
    incorporated into that policy. The Court asserts that the Teachers’ complaint regarding TEI’s
    failure to provide an appraisal during the school year as putatively required by statute became
    ripe only when DISD provided the Scorecard in the following school year. Thus, under the
    Court’s theory, DISD could prevent the Teachers’ claim from becoming ripe by failing to
    provide a Scorecard at all. In my opinion, this is incorrect. To the extent the doctrine of ripeness
    does apply, the Teachers’ complaint would be ripe no later than when they allegedly were
    deprived of that statutory right—i.e., when the school year ended.
    10
    the grievance, I conclude that there are not grounds under section 2001.174 for reversal. See
    Tex. Gov’t Code § 2001.174. Accordingly, I would affirm on this issue.7
    Waiver of Timeliness Requirement
    In their briefing before this Court, the Teachers assert that DISD waived reliance
    on its grievance policy’s timeliness requirement.       The grievance policy states that “[i]f a
    grievance form . . . is not filed timely . . . as set forth in this policy, the grievance shall be
    dismissed, on written notice to the employee, at any level during the grievance process.” The
    Teachers argue that because DISD did not dismiss the grievance, it has waived its right to require
    grievances to be timely filed. Although I disagree, I consider it necessary to address the issue. If
    the Teachers are correct as to waiver, then the untimeliness of the grievance would not be a
    sufficient ground to affirm the Commissioner’s decision. See Tex. R. App. P. 47.1 (requiring
    written opinion to address “every issue raised and necessary to final disposition of the appeal”).
    Because the Court does not address the Teachers’ waiver argument in its opinion, I do so here.
    In his decision, the Commissioner determined that “[a]t all levels of the grievance
    policy, the decision was made to dismiss the grievance”; “[a]llowing an appeal of a lower level
    7
    The Court references a statement from the record that was made by an assistant
    principal to at least one of the Teachers. It is unclear what legal effect the Court considers this
    statement to have. Moreover, the Teachers neither reference this statement in their briefing
    before this Court nor provide any argument as to what effect such a statement may have to
    support overturning the Commissioner’s decision. “[T]o guess at or make an argument for
    a party would violate the structure of our system of justice, be unwise, and change our
    role from neutral and impartial decision makers to advocates.” Isaac v. Villas del Zocalo 3,
    No. 05-16-01338-CV, 
    2018 WL 360166
    , at *1 (Tex. App.—Dallas Jan. 11, 2018, no pet.) (mem.
    op.); see In re Minix, 
    543 S.W.3d 446
    , 465 (Tex. App.—Houston [14th Dist.] 2018, orig.
    proceeding) (Busby, J., concurring) (“Were we to raise this non-jurisdictional issue ourselves
    and develop arguments for or against its application, we would become advocates for a party
    rather than impartial decisionmakers—a role fundamentally at odds with our adversary system of
    justice. . . . We should stay in our lane.”).
    11
    dismissal to the school board does not change the fact [th]at a lower level decision was made to
    dismiss the grievance”; and “a waiver did not occur in the present case as [DISD’s] conduct was
    not unequivocally inconsistent with claiming a known right.” The Commissioner explained that
    the hearing officer—in the Level I and II Decision letter—explicitly dismissed the grievance and
    that “[w]hile no form of the word ‘dismiss’ was used . . . by finding the grievance untimely and
    adopting the Level I and II decision, [DISD’s] board dismissed the grievances.”
    The Commissioner’s decision is confirmed by the record. In the decision letter,
    the hearing officer concluded that:
    a complaint regarding spot observations, a full observation, or a summative
    observation that was conducted in 2014–2015 is untimely because the teacher
    knew or should have known of the action before the end of the 2014–2015 school
    year. It is the decision of this Hearing Officer that any of the NEA Grievants’
    complaints based on events (such as these) of which the teachers knew, or should
    have known, during the 2014–2015 school year are untimely. . . . Further, the
    Board adopted DNA (Local) and made TEI the official policy of Dallas ISD on
    May 22, 2014. Shortly thereafter, in late May or early June of 2014, the TEI
    Guidebook was publicly posted online for the public (and any Dallas ISD
    employee) to see. Any teacher . . . could have filed a grievance within ten days
    after the Board adopted DNA (Local) or the TEI Guidebook was publicly posted.
    They did not do so. The NEA Grievants’ challenge to DNA (Local) and the TEI
    framework is, therefore, untimely.
    Although the hearing officer also evaluated the substance of the grievance, the officer made the
    analysis and decision “[s]ubject to this Hearing Officer’s Decision regarding the untimely nature
    of the grievance.”    The hearing officer concluded that “[t]o the extent that the Grievants
    complain of decisions or actions of Dallas ISD that were known or should have been known, to
    them prior to September 18, 2015, as discussed above, the grievance is denied and dismissed as
    untimely in accordance with DGBA (Local).”
    12
    The hearing officer’s decision was appealed to a three-person subcommittee of
    the Board. Pursuant to DISD’s grievance policy, “The Board subcommittee’s decision will serve
    as the final decision of the Board.” The Board’s decision expressly noted that it was not waiving
    any objection regarding timeliness. By a majority vote, the Board decided that the grievance was
    not timely and that the findings of fact and decision of the hearing officer “should be affirmed
    and the appeal of NEA-Dallas Group Grievance should be and is hereby denied.”8
    Both the hearing officer and the Board expressly refused to waive the issue of
    timeliness. DISD’s grievance policy expressly states that “[a]ll time limits for filing grievances
    shall be strictly followed” otherwise “the grievance shall be dismissed . . . at any level during the
    grievance process.” The hearing officer did dismiss the cause and the Board adopted at the
    hearing and affirmed in its written decision the hearing officer’s decision. Although the hearing
    officer’s decision letter and the Board’s decision are no models of clarity as to their dispositions,
    I cannot conclude that waiver occurred by the Board’s express language. And “[w]hile waiver
    may sometimes be established by conduct, that conduct must be unequivocally inconsistent with
    claiming a known right.” Van Indep. Sch. Dist. v. McCarty, 
    165 S.W.3d 351
    , 353 (Tex. 2005).
    But, as the Texas Supreme Court has explained, “[h]earing the merits of a party’s complaint
    while reserving a ruling on its timeliness is not unequivocally inconsistent with later denying the
    complaint on the latter ground.” 
    Id. Accordingly, I
    agree with the Commissioner and cannot
    conclude that DISD waived the timeliness requirement for the Teachers to file their grievance.
    8
    At the hearing before the Board’s subcommittee, the motion that carried used the
    language that the Board “adopt and approve the findings of fact and the decision of the Level II
    hearing officer.” DISD’s grievance policy states that “[t]he Board subcommittee may render an
    oral decision,” but that it shall also “provide the written decision.”
    13
    Exceptions to Individual Grievances
    Finally, I would also affirm the Commissioner’s decision to dismiss the Teachers’
    grievances as to their individual complaints regarding the Scorecards. The Teachers waived any
    disagreement as to the PFD’s findings and conclusions regarding the individual complaints by
    failing to satisfy the requirements for excepting to the PFD.
    Section 157.1059 of the Texas Administrative Code imposes requirements upon
    exceptions to the PFD that if not met will waive a party’s disagreements with the PFD’s factual
    findings and legal conclusions:
    (d) All disagreements with the factual findings and legal conclusions of the
    proposal for decision must be made in the parties’ exceptions to the proposal for
    decision or be waived.
    (e) 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 relate.
    19 Tex. Admin. Code § 157.1059(d)–(e) (Tex. Educ. Agency, Filing of Exceptions and Replies
    to Proposal for Decision).        In his decision, the Commissioner concluded that “[a]s only
    Exceptions No. 10 and 23[] properly cite to the record to identify the evidence relied upon, only
    these exceptions properly identify facts that could call into question the [PFD]” and “[n]one of
    the Exceptions to the [PFD] specifically and concisely state any potential legal error.”
    In the PFD, the ALJ made the following statements as to the Teachers’
    individual complaints:
    •      While some named Petitioners made individual complaints in the grievance either these
    complaints are really about the TEI process as a whole or they are about specific
    procedural irregularities that had long since passed when the grievance was filed.
    •      No individual Petitioners contend that their Scorecards were improperly calculated.
    14
    •      However, none of these complaints is about how an individual Scorecard was calculated.
    The individual complaints allege flaws in the process that occurred long before the
    individuals received their Scorecards. These complaints are also untimely.
    The Teachers excepted to these statements in Exceptions 1, 8, and 19, stating:
    •      This statement is in direct contradiction to the evidence in the record.
    •      The ALJ has erred, and the finding should be removed from the decision.
    •      All the teachers’      individualized    arguments    were    presented    at   the   District
    grievance hearings.
    •      NEA Dallas made numerous arguments that each challenged individual Scorecard[] was
    void and invalid as it was premised upon an unlawful appraisal system.
    •      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 . . . .
    •      Further, the grievance arose from the Scorecards—not school district Board policy.
    But the Teachers do not “specifically” state how their complaints are individual complaints
    rather than “really about the TEI process as a whole” or “about specific procedural irregularities
    that had long since passed.” And they do not “specifically” assert that they are complaining that
    the Scorecards were improperly calculated to disagree with the PFD. Other than to assert that
    “numerous arguments” as to the individual challenges were made at the grievance hearings, the
    Teachers do not specifically state what those arguments are or where or when at the hearings
    they were made. These exceptions do not satisfy the requirements of section 157.1059.
    Accordingly, the Teachers have not demonstrated how their substantial rights
    were prejudiced by the Commissioner’s dismissal as to their individual complaints. See id.; see
    15
    also Tex. Gov’t Code § 2001.174(2). Because the Teachers have not met their burden, I would
    affirm the Commissioner’s dismissal as to the individual complaints regarding the Scorecards.9
    CONCLUSION
    For these reasons, I would affirm the Commissioner’s decision.         I therefore
    concur with the Court’s judgment affirming in part, but respectfully dissent from the Court’s
    judgment reversing in part and remanding for further proceedings.
    __________________________________________
    Melissa Goodwin, Justice
    Before Justices Goodwin, Baker, and Triana
    Filed: October 17, 2019
    9
    The Teachers assert that even if the Commissioner had affirmed the Board’s decision to
    dismiss, “[the Teachers] ha[ve] requested the Commissioner to issue an independent order that
    the Scorecards are void” and therefore the “request for an independent order from the
    Commissioner cannot be disposed of by ‘affirming’ the Board’s vote.” But the Teachers do not
    explain how the Commissioner would have jurisdiction under section 7.057 of the Texas
    Education Code to enter such an “independent order.” See Tex. Educ. Code § 7.057(a)
    (providing for “appeal” to commissioner if person is aggrieved by “the school laws of this state”
    or “actions or decisions of any school district board of trustees” that violate school laws or
    employment contract).
    16