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

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
OPINION
This is an appeal from a judgment in a suit for judicial review of an administrative
decision by the Texas Commissioner of Education. Appellants are teachers employed with the
Dallas Independent School District (DISD) during the 2014-15 and 2015-16 school years. They
filed a collective grievance challenging their appraisals under DISD’s newly adopted teacher-
appraisal system, and the Commissioner dismissed the Teachers’ grievance for lack of
jurisdiction. Angela Davis, the President of NEA-Dallas (a local affiliate of the Texas State
Teachers Association), then filed suit for all affected members and named individuals (Teachers)
against the Texas Commissioner of Education Mike Morath (Commissioner) and DISD. The
district court affirmed the Commissioner’s dismissal, and the Teachers appealed.
In three issues, the Teachers contend that the district court erred in affirming the
Commissioner’s decision because: (1) the Commissioner incorrectly determined that the
Teachers’ grievance was untimely; (2) the Commissioner incorrectly refused to consider and rule
on the Teachers’ allegations that DISD violated Texas teacher-appraisal laws when he dismissed
the Teachers’ appraisal grievance as untimely; and (3) the Commissioner incorrectly determined
that decreasing the Teachers’ salary after the start of the school year did not violate Texas law.
For the reasons that follow, we conclude that the district court’s judgment should be affirmed in
part and reversed and remanded in part.
BACKGROUND
The Texas Education Code requires all teachers to be appraised. Tex. Educ. Code
§ 21.352(c). While most Texas school districts use the teacher-appraisal process and criteria
developed by the Commissioner, school districts may develop and use their own. Id.
§ 21.352(a)(2). Any district-developed appraisal process and criteria “must be based on
observable, job-related behavior,” including two components: “(1) teachers’ implementation of
discipline management procedures; and (2) the performance of teachers’ students.” Id. § 21.351.
Here, DISD adopted its own teacher-appraisal system in 2014 called the Teacher
Excellence Initiative (TEI). On September 18, 2015, under its new TEI appraisal process, DISD
issued a “Teacher Evaluation Scorecard” to teachers. The Scorecards issued weighted points to
three evaluation components: (1) Teacher Performance; (2) Student Experience, and (3) Student
Achievement. The Student Achievement component included students’ performance on
standardized tests, such as the State of Texas Assessment of Academic Readiness (STAAR),
2
which was not available until after the 2014-15 school year ended. The record contains a sample
Scorecard:
3
After the students’ standardized test scores were disclosed in the summer, DISD
weighted the scores for each of the three teacher-evaluation components and translated those
weighted scores into a range of points within seven categories of Evaluation Ratings:
Unsatisfactory, Progressing I, Progressing II, Proficient, Proficient II, Proficient III, and
Exemplary. Using a predetermined set of percentages called a “target distribution,” DISD
defines what proportion of scores will be assigned to each category. The target distribution for
Evaluation Ratings is set to designate 3% of teachers as Unsatisfactory, 12% of teachers as
Progressing I, 25% of teachers as Progressing II, 40% of teachers as Proficient I, 12% of teachers
as Proficient II, 6% of teachers as Proficient III, and 2% of teachers as Exemplary. The sum of
points from all three evaluation components is listed on a Scorecard for the first time as a
teacher’s numerical Evaluation Score.
The Scorecards, also for the first time, notified teachers of their designated
Effectiveness Level, which correlated with compensation increases under TEI’s pay-for-
performance model and determined the salary that the teacher would receive for the 2015-16
school year. Effectiveness Levels are designed to provide context for a teacher’s evaluation
scores over a two-year period, but because TEI was newly implemented in 2015, only one year
of information was to be considered for a teacher’s Effectiveness Level in the first Scorecard.
Also during the first year of implementation, certain TEI rules limited the highest Effectiveness
Level category that some teachers could attain. 1
1
For example, teachers with just one year of experience were to be classified as
Progressing I, teachers with less than three years’ experience could not be classified as Proficient
I, and teachers with three or more years’ experience who did not complete a Distinguished
Teacher Review process could not be classified higher than Proficient I.
4
On October 2, 2015, within ten district-business days of receiving their
Scorecards, the Teachers filed a grievance with DISD alleging that “each of the Scorecards
[was]”: unwarranted and unjustified, without factual basis or merit, based upon improper criteria
including unreliable District-promulgated standardized test scores, based on other unreliable
data, violative of each teacher’s right to due process, violative of Texas school laws, detrimental
to the teachers by undermining and impairing their effectiveness, conducted in an improper and
unlawful manner, and arbitrary, capricious, demeaning, and unprofessional. Based on those
stated complaints about the Scorecards, the Teachers further alleged that “the entire TEI
instrument and process as a whole is inequitable, arbitrary, capricious, subjective, and unlawful”
and that the TEI instrument and process have a disparate negative impact on more experienced
teachers and new teachers.
The Teachers also contended specifically that
• under the TEI system, teachers are not given a final evaluation during the appraisal
school year; rather, teachers receive this information only after the school year ends;
• calculation of the Student Achievement section of the Scorecard, which is based on a
three-matrix formula, is not provided to teachers, thus, they were evaluated on
information not provided to them in a timely manner or at all;
• calculation of the Scorecard was influenced by other unknown factors, including
formulae that are arbitrary and capricious; and
• the resulting effect on each Grievant’s compensation constitutes a breach of the
Grievant’s contract of employment and/or an unlawful demotion without due process
of law which has caused and will continue to cause the Grievant monetary harm.
The Teachers filed an amended grievance on October 14, 2015, contending additionally that
“TEI wrongfully attempts to circumvent the teacher’s right to rebut documentation and the right
to file a grievance”; that “DISD has created a moving target, changing the metrics for bonus to
5
stay within a defined budget which wrongfully deprives qualified teachers of increases in pay”;
and that “no teachers received cost-of-living increases.”
The Teachers had two administrative grievance hearings. During the initial
hearing before DISD’s hearing officer, DISD’s counsel admitted, “Their grievance is timely as to
their overall effectiveness level. The District concedes that.” However, the hearing officer’s
decision letter made no reference to DISD’s concession about the timeliness of such grievance,
and appellees fail to discuss the concession.
The hearing officer found that two individuals were not proper parties to the
Teachers’ grievance and that the Teachers’ requested relief should be denied in part and granted
in part. The hearing officer granted the Teachers’ request that they would not suffer any
retaliation for filing the grievance but denied all their remaining substantive requests: (1) to have
the Scorecards rescinded, removed, or revised; (2) to make the documents, information, and
formula calculation used in the final evaluation “fair and equitable” to all teachers; (3) for an
investigation into the efficacy and fairness of the TEI system; and (4) for DISD to return to the
prior teacher-appraisal system known as Professional Development and Appraisal System
(PDAS) during that investigation. The hearing officer concluded that “[t]he student achievement
metrics and target distribution are not arbitrary, capricious, in bad faith, or in violation of District
policy, state or federal law” and stated, “To 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 [the date they received their Scorecards],” their “grievance is denied and
dismissed as untimely.”
The Teachers then appealed to a three-member subcommittee of the DISD Board
of Trustees. At this hearing, one school-board member sought confirmation from Betsy Cook,
6
the TEI Operations Manager, about whether the Teachers had received “the other part of their
appraisal” on September 18 in their Scorecards, which Cook confirmed was “correct.” At the
conclusion of the hearing, the other two members of the school-board subcommittee decided that
the Teachers’ grievance was untimely filed. But the subcommittee’s decision made no reference
to the Teachers’ grievance being dismissed. Rather, the two-member majority of the
subcommittee determined that the hearing officer’s fact findings and decision “should be
affirmed” and that the Teachers’ appeal of their grievance was denied.
The Teachers next filed a petition for review with the Commissioner, who
appointed an administrative law judge (ALJ) to hear the appeal of the Teachers’ grievance.
For the first time, DISD filed a plea to the jurisdiction and motion to dismiss. The ALJ issued a
proposal for decision with findings of fact and conclusions of law and determined that the
Teachers’ “cause should be dismissed for a lack of jurisdiction.” The Teachers filed timely
exceptions to the ALJ’s proposal for decision.
The Commissioner adopted the ALJ’s findings and conclusions, determined that
he lacked jurisdiction to hear the administrative appeal, and issued a decision dismissing it.2 The
Teachers filed a motion for rehearing that was overruled by operation of law. The Teachers then
sought judicial review in a Travis County district court, which ultimately affirmed the
Commissioner’s decision dismissing the appeal for want of jurisdiction. The Teachers filed a
motion for new trial that was denied by operation of law. This appeal followed.
2
The Texas Education Commissioner’s designee issued the decision.
7
DISCUSSION
The Teachers contend that the Scorecards they received in September of 2015
were their complete and final appraisals for the preceding school year and thus, violated section
21.352(c) of the Education Code, which requires school districts to appraise teachers at least
once during the school year. See Tex. Educ. Code § 21.352(c). Further, the Teachers state that
they were harmed by the issuance of the Scorecards in the fall of 2015, purporting to inform
them of their performance for the prior school year, when the Teachers were contractually bound
to remain employed with DISD. Specifically, Angela Davis testified that teachers were deprived
of the opportunity to resign because they did not receive their final evaluation Scorecards until
the middle of September, and teacher resignations must be submitted 45 days before the first day
of instruction with the school district. See id. §§ 21.105, 21.160, 21.210 (addressing resignations
for teachers under probationary, continuing, or term contracts).
DISD responds that a Scorecard is not the teacher’s “appraisal” for the 2014-15
school year under section 21.352(c); rather the Scorecard is the teacher’s “overall effectiveness
level.” According to DISD, the appraisal contemplated by section 21.352(c) refers only to the
teacher’s “summative annual appraisal” conducted during the school year. The Commissioner
contends that compliance with section 21.352(c) is not required—i.e., DISD need not appraise
teachers at least once during the school year—because the statute is merely directory.
As a preliminary matter, we address DISD’s and the Commissioner’s contentions
that the Teachers’ exceptions to the proposal for decision and the Teachers’ motion for rehearing
failed to preserve any error for appeal.
8
Exceptions to PFD preserved most error, however continuing-violation complaint is waived
DISD complains that the Teachers failed to preserve their complaints for judicial
review by filing inadequate exceptions to the ALJ’s proposal for decision (PFD). Relying on
Rule 157.1059(d)-(e) of the Texas Administrative Code, DISD contends that the Teachers’
disagreements with the PFD were not specifically and concisely stated, resulting in waiver of
those disagreements. Rule 157.1059(d)-(e) provides that:
(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) (2015) (Tex. Educ. Agency, Filing of Exceptions and
Replies to Proposal for Decision). This Rule was promulgated “to ensure full presentation of all
disagreements with the proposal for decision.” Tex. Educ. Agency, Adopted Rules, 29 Tex. Reg.
6887, 6892 (2004) (notes on former section 157.1058, “Filing of Exceptions and Replies to
Proposal for Decision,” repealed, updated, and adopted new as section 157.1059).
Rule 157.1059(e) requires a party’s exceptions to be specific, and if the
exceptions rely on evidence, that evidence also must be stated with particularity. 19 Tex.
Admin. Code § 157.1059(e). Unlike the rule for exceptions to a PFD in proceedings before the
State Office of Administrative Hearings—which provides that such exceptions are permissive—
Rule 157.1059(d)-(e) requires disagreements with the PFD to be made or such disagreements are
waived. Compare 1 Tex. Admin. Code § 155.507(b) (2015) (State Office of Admin. Hearings,
Proposals for Decision; Exceptions and Replies) (providing that parties “may” submit exceptions
9
to proposal for decision), with 19 Tex. Admin. Code § 157.1059(d); see Alphonso Crutch Life
Support Ctr. v. Williams, No. 03-13-00789-CV, 2015 Tex. App. LEXIS 12151, at *17-18 n.7
(Tex. App.—Austin Nov. 30, 2015, no pet.) (mem. op.) (noting party’s concession that it
“missed its deadline for objections” to PFD).
Here, it is undisputed that the Teachers’ exceptions to the PFD were timely, but
the Commissioner determined that some of the Teachers’ exceptions to the PFD were deficient. 3
On appeal, DISD complains that the Teachers made deficient exceptions disagreeing with the
PFD’s statements that: their grievance was untimely (exceptions nos. 1, 4, 6, 7, 15, and 19); there
was no complaint about improperly calculated Scorecards (exception no. 8); they failed to
exhaust administrative remedies about DISD’s policy (exception no. 18); their grievance was
dismissed (exception no. 2); there was no complaint about DISD reducing any payment for
teacher insurance (exception no. 21); and there was no basis for the cost-of-living claims
(exceptions nos. 20, 22). DISD points to a sentence included in several of the Teachers’
exceptions, claiming that certain statements in the PFD were “in direct contradiction to the
evidence in the record” but not identifying any evidence showing the alleged contradiction.
However, there was more to each of the Teachers’ exceptions than that single quoted sentence.
For each of these exceptions, the Teachers explained why they contended that
particular statements in the PFD were inaccurate and contrary to the record:
• In response to the PFD’s statements that the Teachers’ claims were untimely, that they
did not complain about Scorecard calculation, and that they did not exhaust
administrative remedies about DISD’s policy, the Teachers’ exceptions noted that:
(1) their claims were timely filed within ten days of receiving their Scorecards in the fall
of 2015; (2) their grievance arose from the Scorecards and the manner in which the
3
The Commissioner’s Decision states that “[e]xceptions and replies were timely filed
and considered.”
10
Teachers were appraised but not from school board policy; (3) their claims were not ripe
before receipt of the Scorecards; and (4) the district waived its right to claim
untimeliness.
• In response to the PFD’s statement that the Teachers’ claims were dismissed “at all levels
of the grievance policy,” the Teachers’ exceptions noted that the school district’s board of
trustees did not dismiss their grievance. 4
• In response to the PFD’s statement that the Teachers did not complain about any
reduction in DISD’s insurance payment, the Teachers noted that: (1) DISD offered no
evidence of the amount it paid for the Teachers’ insurance; (2) the increased cost of
pretax deductions was taken from their salaries; (3) the result was a reduction in their
overall compensation; and (4) they provided pay stub information reflecting the reduction
in compensation.
As to the Teachers’ exception to PFD’s statement that there was no basis for their cost-of-living
claims, we note that the Commissioner specifically found similar exceptions (nos. 10 and 23) as
to the Teachers’ cost-of-living claims did include proper identification of the evidence that the
Teachers relied upon.
DISD further complains that the Teachers made deficient exceptions alleging that
their claims were not ripe until the Scorecards issued in the fall of 2015. Specifically, DISD
states that the Teachers’ exceptions numbered 1, 6, 7, 11, 15, 18, and 19 fail to identify a factual
or legal basis for the Teachers’ assertion of unripeness. However, the Teachers’ exception
number 4 to the PFD explains that the claims in their grievance were not ripe until the
Scorecards were issued in the fall of 2015 because the violations of law alleged in the grievance
arose “from the TEI system as implemented in the Scorecards” and that “any dispute regarding
the manner in which the appraisal occurred would have been premature” until then.
4
DISD does not complain of the Teachers’ exception number 13 challenging the PFD’s
statement that the Teachers’ grievance was dismissed.
11
Additionally, DISD complains that none of the Teachers’ exceptions “stated with
particularity” any legal deficiency in the PFD, and that certain exceptions vaguely allege that
statements in the PFD are “in direct contradiction to the school laws of this state, other laws of
this state, past case law and commissioner’s decision” (exceptions nos. 17 and 24-32) without
alerting the Commissioner to the Teachers’ complained-of error.
In exceptions numbered 24 through 32, the Teachers claimed that the
Commissioner’s stated propositions lacked legal support. To address these exceptions, the
Teachers incorporated arguments and authorities previously cited in their briefing. The
Teachers’ reference to their briefing is general, but it is not, as DISD suggests, the equivalent of
a request to incorporate the entire administrative record. Cf. Burke v. Central Educ. Agency,
725 S.W.2d 393, 399 (Tex. App.—1987, writ ref’d n.r.e.) (concluding that motion for rehearing
incorporating by reference “the papers and records on file in this cause” was insufficient to
obtain judicial review because motion “argue[d] for an adoption of the entire administrative
record”).
By contrast, the Teachers’ exception number 17—concerning the PFD’s rejection
of the continuing-violation doctrine as a justification for a late-filed grievance—complains only
that, “This statement is in direct contradiction to the school laws of this state, other laws of this
state, past case law, and commissioner’s decisions.” The rest of this exception states only that
the “ALJ has erred and the finding should be removed from the decision.” Thus, we agree with
DISD that this exception fails to state “with particularity” any legal deficiency in the PFD.
Because of this deficient exception, the Teachers waived their complaint as to the applicability of
the continuing-violation doctrine. See 19 Tex. Admin. Code § 157.1059(d)-(e).
12
As to the remainder of the Teachers’ exceptions identified here, we disagree with
DISD’s contentions that the exceptions were conclusory, failed to alert the Commissioner to any
factual error in the PFD, and failed to explain adequately any legal deficiency in the PFD to
allow for correction by the Commissioner. See id.; see also Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 481 (Tex. 2019) (rejecting form-over-substance approach to
application of preservation rules); Thota v. Young, 366 S.W.3d 678, 690 (Tex. 2012) (favoring
common-sense application of procedural rules rather than technical application).
Motion for rehearing of Commissioner’s decision preserved error
The Commissioner contends that the Teachers failed to preserve their complaints
for judicial review by filing an inadequate motion for rehearing challenging the Commissioner’s
decision. Specifically, the Commissioner contends that the Teachers’ motion failed to state with
particularity the legal basis for their claimed error.
A motion for rehearing is a statutory prerequisite for appeals from a
Commissioner’s decision. Tex. Gov’t Code § 2001.145(a); 19 Tex. Admin. Code § 157.1061(a)
(2016) (Tex. Educ. Agency, Motions for Rehearing); see BFI Waste Systems of North America,
Inc. v. Martinez Envtl. Grp., 93 S.W.3d 570, 578 (Tex. App.—Austin 2002, no pet.) (addressing
necessity of motions for rehearing in contested cases generally). The purpose of a motion for
rehearing is to apprise the agency of the claimed error and provide the agency with an
opportunity to correct the error or prepare to defend against it. Suburban Util. Corp. v. Public
Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983); BFI, 93 S.W.3d at 578. A timely filed motion
for rehearing is jurisdictional, but the sufficiency of the motion’s content pertains only to
preservation of error. BFI, 93 S.W.3d at 578.
13
Motions for rehearing must set forth: (1) the particular finding of fact, conclusion
of law, ruling, or other agency action that is the basis of the party’s complaint; and (2) the legal
and factual bases for the complained-of error. Tex. Gov’t Code § 2001.146(g); BFI, 93 S.W.3d
at 578 (citing Burke, 725 S.W.2d at 397). It is insufficient to set forth these two elements in
generalities, for example, by complaining that the findings as a body, or the conclusions as a
whole, are not supported by substantial evidence. Scally v. Texas State Bd. of Med. Exam’rs,
351 S.W.3d 434, 445 (Tex. App.—Austin 2011, pet. denied); Burke, 725 S.W.2d at 397.
Preservation of error requires both elements to be present in the motion, but neither element
requires briefing of the law and the facts. BFI, 93 S.W.3d at 578; Burke, 725 S.W.2d at 397.
The standard is one of fair notice. Scally, 351 S.W.3d at 445; BFI, 93 S.W.3d at 578.
Here, the Commissioner states that he made three “key” conclusions of law,
namely that: (1) he lacks jurisdiction over this case under Texas Education Code section 7.057;
(2) the Teachers’ grievance claims are untimely; and (3) ultimately, the cause should be
dismissed for lack of jurisdiction. The Commissioner contends that the Teachers’ motion for
rehearing provided an inadequate response to these three conclusions by raising only general
complaints that those conclusions were “in direct contradiction to the school laws of this state,
other laws of this state, past case law, and commissioner’s decision in the record” and “contrary
to the arguments and authorities cited in Petitioners’ briefing.”
However, the Teachers’ motion for rehearing provided fair notice of complaints
concerning the Commissioner’s decision. The Teachers directed their complaints in the motion
to the preamble, discussion, and specifically numbered findings and conclusions in the
Commissioner’s decision. The Teachers responded to the Commissioner’s conclusions that he
14
lacked jurisdiction under section 7.057 of the Education Code, that the Teachers’ grievance was
untimely, and that dismissal was proper, including four pages detailing complaints that:
(1) the Scorecards resulted from a local teacher-appraisal system that violated Texas
school laws requiring teacher appraisals to be conducted annually and in
accordance with sections 21.351-21.352 of the Education Code;
(2) the grievance was erroneously dismissed as untimely because the Teachers filed it
on October 2, 2015, within ten days of receiving their Scorecards; and
(3) dismissal for lack of jurisdiction was not warranted as argued on pages 21-23 of
the Teachers’ response to DISD’s plea to the jurisdiction and motion to dismiss.
Thus, the Teachers’ motion provided the Commissioner with far more specific
information than that set forth in the three particular responses that the Commissioner identified.
See Scally, 351 S.W.3d at 445. Further, the substance of the Teachers’ motion for rehearing is
unlike those found inadequate by Texas courts and resulting in waiver. See, e.g., Texas
Alcoholic Bev. Comm’n v. Quintana, 225 S.W.3d 200, 204 (Tex. App.—El Paso 2005,
pet. denied) (concluding that permit holder who “did not challenge any of the specific factual
findings forming the basis of the Commission’s decision to cancel her permit and license”
waived her complaint); Hamamcy v. Texas State Bd. of Med. Exam’rs, 900 S.W.2d 423, 425
(Tex. App.—Austin 1995, writ denied) (concluding that doctor’s motion for rehearing consisting
entirely of statement that “the presentation of the discussion at the hearing will be done from the
charts of the patients and from the records on file with the Board” constituted no motion for
rehearing at all); Burke, 725 S.W.2d at 398-99 (concluding that teacher’s motion for rehearing
failed to preserve error because it did not point to any particular finding of fact or conclusion of
law, did not identify legal principles referred to, and complained of Board’s action that was
unsupported by record); see also Morgan v. Employees’ Ret. Sys. of Tex., 872 S.W.2d 819, 822
15
(Tex. App.—Austin 1994, no writ) (concluding that party’s motion for rehearing “achieve[d] its
purpose” of sufficiently informing agency of alleged errors); cf. Scally, 351 S.W.3d at 435
(rejecting agency’s complaint as to inadequacy of motion for rehearing).
Because this motion for rehearing provided the Commissioner with fair notice of
the Teachers’ complaints, we conclude that the Teachers’ motion sufficiently preserved error.
See Scally, 351 S.W.3d at 445; BFI, 93 S.W.3d at 578. Having concluded that the Teachers did
not waive their complaints—except as to the applicability of the continuing-violation doctrine—
we consider the Teachers’ appellate issues.
First issue: Commissioner’s determination that he lacked jurisdiction
In their first issue, the Teachers contend that the district court erred in affirming
the Commissioner’s decision because the Commissioner incorrectly determined that he lacked
jurisdiction over the appeal of a grievance that he considered untimely.
Section 7.057 of the Texas Education Code governs appeals from a local school
district to the Commissioner. See Tex. Educ. Code § 7.057. It authorizes such an appeal when a
person is aggrieved by an action or decision of a school district board of trustees that violates:
(1) Texas school laws, or (2) a school-district employee’s written employment contract with the
school district, if such violation causes or would cause monetary harm. Id. § 7.057(a). Texas
school laws consist of titles 1 and 2 of the Texas Education Code and the administrative rules
adopted under those titles. Id. § 7.057(f)(2). Subsection (c) of the statute requires the
Commissioner to “issue a decision based on a review of the record developed at the district level
under a substantial evidence standard of review.” Id. § 7.057(c); see 19 Tex. Admin. Code
§ 157.1073(h) (providing rules for hearings under section 7.057 of Education Code and
16
specifying that Commissioner reviews board of trustees’ decisions under substantial-evidence
standard), (k) (adopting provisions of Administrative Procedure Act “for all purposes”).
On appeal, we apply a substantial-evidence standard in reviewing the district
court’s judgment as to the Commissioner’s factual determinations. Tijerina v. Alanis, 80 S.W.3d
292, 295 (Tex. App.—Austin 2002, pet. denied); see Houston Indep. Sch. Dist. v. Simpson,
No. 03-12-00145-CV, 2013 Tex. App. LEXIS 13581, at *7 (Tex. App.—Austin Nov. 1, 2013, no
pet.) (mem. op.). Under this standard, we presume that the Commissioner’s findings, inferences,
conclusions, and decisions are supported by substantial evidence, and the contestant has the
burden of proving otherwise. See Tijerina, 80 S.W.3d at 295 n.5; see also Simpson, 2013 Tex.
App. LEXIS 13581, at *8. We determine whether the evidence as a whole in the disputed action
is such that reasonable minds could have reached the same conclusion as the Commissioner.
See Tijerina, 80 S.W.3d at 295 n.5; Simpson, 2013 Tex. App. LEXIS 13581, at *8; see Jenkins v.
Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.) (“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.”). However, the Commissioner’s resolution of legal
questions—unlike his factual determinations—are not entitled to a presumption of validity, and
we review them de novo. Weslaco Fed’n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258,
263-64 (Tex. App.—Austin 2000, no pet.); Simpson, 2013 Tex. App. LEXIS 13581, at *8.
Here, the Commissioner determined that the dispute between the District and
Teachers was outside of his subject-matter jurisdiction. We review the Commissioner’s decision
as to jurisdiction under the same standard used to review a trial court’s order dismissing a cause
for want of jurisdiction. Tijerina, 80 S.W.3d at 295; Simpson, 2013 Tex. App. LEXIS 13581, at
*8. When, as here, the Commissioner makes fact findings necessary to resolve the jurisdictional
17
issue based on an evidentiary record developed through an adjudicative process, we review such
fact findings under a substantial-evidence standard. See Tijerina, 80 S.W.3d at 295 (noting that
“substantial-evidence review may be appropriate when examining the Commissioner’s decisions
based on evidence relevant to jurisdiction”); Simpson, 2013 Tex. App. LEXIS 13581, at *8.
Under the substantial-evidence standard, the Commissioner examines the record
to determine whether the school board’s decision resulted from a prejudicial error of law, such as
an abuse of discretion, an action taken in excess of authority, a violation of law, or fact findings
that are unreasonable in light of the evidence found in the record of proceedings before the
school board. Ysleta Indep. Sch. Dist. v. Meno, 933 S.W.2d 748, 751 n.5 (Tex. App.—Austin
1996, writ denied); see Tex. Gov’t Code § 2001.174. The Commissioner is restricted to the
record before him and may not re-weigh the evidence, find facts, or substitute his judgment for
that of the school board regarding matters properly within the board’s discretion. Meno,
933 S.W.2d at 751 n.5. If the jurisdictional inquiry turns on an interpretation of the Education
Code, we defer to the Commissioner’s interpretation of that statute, to the extent that the statute
is ambiguous, so long as the Commissioner’s interpretation is reasonable and does not contradict
the plain language of the statute. Tijerina, 80 S.W.3d at 295; see also Combs v. Health Care
Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013) (noting that ambiguity is “a precondition to
agency deference”); Simpson, 2013 Tex. App. LEXIS 13581, at *8-9.
DISD’s grievance policy, as set forth in DGBA (Local) Employee
Complaints/Grievances, requires grievances to be filed “no later than ten days[ 5] from the date
the employee first knew, or with reasonable diligence, should have known of the decision or
5
This policy defines “days” as “District business days in accordance with the
Districtwide staff calendar, unless otherwise noted.”
18
action giving rise to the grievance or complaint.” This policy also states that an untimely
grievance “shall be dismissed, on written notice to the employee, at any level during the
grievance process” and that “[a]ll time limits for filing grievances shall be strictly enforced.”
Applying this policy, the Commissioner issued findings of fact determining that the appeal of the
grievance was untimely as to the components of TEI and as to the appraisals:
5. 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.
6. Individual Petitioners’ challenges to their appraisals were not filed within ten
business days of Petitioners learning of the potentials [sic] errors in the
process or of when Petitioners with reasonable diligence should have known
of the potential errors. 6
While an employee’s untimely grievance under DISD’s local policy might result in dismissal or
waiver because the employee’s claim was not properly preserved for review, here the
Commissioner determined that the Teachers’ filing of an untimely grievance at the school-
district level of the administrative process constituted a failure to exhaust administrative
remedies that deprived him of jurisdiction over the Teachers’ appeal from the school board’s
decision. We disagree.
The Education Code, in relevant part, unambiguously authorizes an appeal to
the Commissioner when a person is aggrieved by: (1) Texas school laws; or (2) actions or
decisions of any school district board of trustees that violate Texas school law. Tex. Educ.
6
This is a misstatement of DISD’s grievance policy as set forth in its DGBA (Local)
Employee Complaints/Grievances, which says nothing about “potential errors.” As we have
noted, the policy addresses only decisions or actions, requiring grievances to 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.”
19
Code § 7.057(a). The Commissioner may not, through his rules or policies, narrow the
availability of that appeal. Texas Comm’r of Educ. v. Solis, 562 S.W.3d 591, 602 (Tex. App.—
Austin 2018, pet. filed). Nothing in section 7.057(a) requires the filing of a timely grievance
with a school district to invoke the Commissioner’s jurisdiction over an appeal in which a person
claims to be aggrieved by Texas school laws or by actions or decisions of a school board that
violate Texas school law. Cf. Tex. Educ. Code § 7.057(a). By imposing such a jurisdictional
prerequisite—based on a nonstatutory administrative deadline in DISD’s policy—the
Commissioner impermissibly narrowed the availability of the Teachers’ statutory right to appeal
to the Commissioner. See Solis, 562 S.W.3d at 602. Thus, the Commissioner erred by
determining that he lacked jurisdiction over the Teachers’ appeal of their grievance and that
dismissal was necessary.
Notwithstanding that error, the applicable standard of review requires us to
consider whether substantial evidence supports the Commissioner’s decision to dismiss the
Teachers’ appeal of their grievance as untimely or to dismiss the appeal on some other
reasonable basis in this record. “Under substantial evidence review of fact-based determinations,
‘[t]he issue for the reviewing court is not whether the agency’s decision was correct, but only
whether the record demonstrates some reasonable basis for the agency’s action.’” AEP Tex.
Cent. Co. v. Public Util. Comm’n of Tex., 345 S.W.3d 60, 68 (Tex. 2011) (quoting State v. Public
Util. Comm’n of Tex., 344 S.W.3d 349, 355 (Tex. 2011)); Jenkins, 537 S.W.3d at 149
(“Ultimately, we are concerned not with the correctness of the agency’s decision, but its
reasonableness.”). Here, the Commissioner found that: (1) the Teachers’ appraisal grievance
was untimely; and (2) the Teachers’ grievance as to components of the TEI program were
untimely. We address each of these findings in turn.
20
1. Commissioner’s determination that Teachers’ appraisal grievance was untimely
The Commissioner determined in Finding of Fact No. 6 that “Individual
Petitioners’ challenges to their appraisals were not filed within ten business days of Petitioners
learning of the potentials [sic] errors in the process or of when Petitioners with reasonable
diligence should have known of the potential errors.” 7 Whether the Teachers’ grievance is
timely depends not on “potential errors,” but rather on what “decision or action” gave rise to
their grievance and triggered the ten-day filing deadline.
The Teachers contend that the “decision or action” giving rise to their grievance
was their receipt of the Scorecards on September 18, 2015. In their view, the Scorecard was the
only possible complete appraisal document that the Teachers received for the 2014-15 school
year. They note that the Scorecards for the first time: (1) accounted for the portion of the student
performance component that is based on the students’ standardized test scores received in the
summer, and (2) notified teachers of their weighted point totals resulting in their final evaluation
scores and ratings. Thus, the Teachers contend that their grievance was timely because it was
filed within ten district business days of receiving their complete appraisals in the Scorecards.
a. DISD’s contention that appraisal grievance was untimely
DISD disputes that the Scorecard is the “appraisal” contemplated by section
21.352(a) of the Education Code. DISD contends that the summative annual appraisal conducted
during the 2014-15 school year is the “appraisal” contemplated by the statute and that the
Teachers’ grievance filed on September 18, 2015, is untimely. 8 The summative annual appraisal
7
See footnote 6.
8
DISD explained this deadline at oral argument: “If the complaint is about their
appraisal, which Dallas ISD has always alleged is their summative annual appraisal—that is what
21
is based on a “teacher performance rubric” that considers nineteen indicators of teacher practice.
Those nineteen indicators of teacher practice are split into four major “domains”: (1) planning
and preparation (e.g., whether the teacher demonstrates content knowledge and develops
objective-based lesson plans); (2) instructional practice (e.g., whether the teacher establishes
clear and rigorous lesson objectives and encourages higher-order thinking skills); (3) classroom
culture (e.g., whether the teacher maximizes instructional time and maintains a welcoming
environment); and (4) professionalism and collaboration (e.g., whether the teacher engages in
professional community and establishes relationships with families). DISD notes that teachers
receive scores on the summative annual appraisal at different times during the school year, as
well as scores for the Student Learning Objective and the student surveys, which complete all
three of TEI’s teacher-evaluation components. DISD further suggests that if a teacher did not
have an appraisal by the end of the school year, the omitted appraisal should have triggered the
teacher’s ten-day deadline for filing a grievance.
However, as we have noted, DISD’s grievance policy DGBA (Local) Employee
Complaints/Grievances requires grievances to 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.” (Emphases added.). DISD does not explain how its
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 this policy. See
Aleman v. Texas Med. Bd., 573 S.W.3d 796, 808 (Tex. 2019) (Blacklock, J., concurring) (noting
“familiar distinction between acts and omissions”). The Commissioner’s decisions routinely
is the appraisal defined by 21.352—it’s ten, it’s ten district business days from when they knew
or should have known of the results of their appraisal.”
22
identify “actions” and “decisions” as triggering events for “ripeness” in relation to the timely
filing of administrative appeals and grievances—as the Teachers have framed the issue here.
See, e.g., Simani v. Houston Indep. Sch. Dist., Docket No. 021-R10-03-2019, 2019 Tx. Educ.
Agency LEXIS 61, at *15 (Aug. 30, 2019) (concluding that teacher’s grievance was untimely
and that “[t]he moment Petitioner received the contract which she believed was incorrect,
Petitioner’s claim was ripe”); Dallas Indep. Sch. Dist. v. Walton, Docket No. 052-LH-1200, 2001
Tx. Educ. Agency LEXIS 33, at *14 (Mar. 1, 2001) (“However, this matter is not ripe for
decision, in that Teacher has not yet been recommended for suspension for the next school
year.”); Gibson v. Waco Indep. Sch. Dist., Docket No. 107-R8-598, 1998 WL 36016038, at *4
(Nov. 6, 1998) (concluding “in the absence of an actual decision” that “this matter is not yet ripe
for review by the Commissioner”).
Additionally, DISD’s contention that the Scorecard is not the teacher’s annual
appraisal is contrary to previous administrative cases. See, e.g., Harris v. Dallas Indep. Sch.
Dist., Docket No. 098-R-1-0712, 2012 Tx. Educ. Agency LEXIS 59, at *49 (Aug. 29, 2012)
(referring to teacher’s “annual evaluation scorecard” in undisputed facts); Dallas Indep. Sch.
Dist. v. Fisher, Docket No. 145-LH-805, 2005 Tx. Educ. Agency LEXIS 43, at *19
(Nov. 15, 2005) (referring to “annual professional school counselor performance scorecard”); see
also Steans v. Manor Indep. Sch. Dist., Docket No. 081-R1-08-2014, 2014 Tx. Educ. Agency 73,
at *14-15 (Oct. 7, 2014) (rejecting contention that written annual “evaluations” in another
section of Education Code refer exclusively to summative annual appraisals and not to all
components of teacher appraisal).
The TEI Scorecards consist of three evaluation components. These three
components, and parenthetical definitions for each, are set forth in the TEI Rulebook that DISD
23
issued in January 2015 and Guidebook that DISD issued in March of 2015. The three
components are:
1. Teacher performance (rubric–based observation of instruction)
2. Student achievement (evaluation of student assessment scores or results) [and]
3. Student perceptions (student survey results)[.] 9
As the sample Scorecard in this opinion shows, the student-achievement component consists of a
Student Learning Objective score that is provided to teachers during the school year and student
performance on standardized tests like the STAAR, which is not disclosed until the summer.
Thus, the Scorecard includes both the teacher performance and student performance criteria that
are required by the Education Code for a teacher “appraisal” under a district-developed appraisal
process. See Tex. Educ. Code § 21.351(a)(2); see also id. § 21.352(a)(2)(B) (requiring local
appraisal process to implement provisions of sections 21.351(a)(1)-(2)).
Unlike the Scorecard, the summative annual appraisal measures only teacher
performance, and is a “rubric-based observation of instruction.” According to the Rulebook, the
rubric is “[t]he evaluation instrument that outlines teacher performance standards.” Similarly,
the Guidebook specifies that the nineteen indicators factoring into a summative annual appraisal
are “indicators of teacher practice.” By contrast, the Guidebook specifies that the student-
achievement component—i.e., the evaluation of student-assessment scores or results—for all
teachers is measured by the Student Learning Objective and school STAAR (and may also
include other standardized assessments for some teachers, depending on the courses taught).
9
The subsequent TEI Rulebook shows that on July 29, 2015, this component’s name
was changed from “Student Perceptions” to “Student Experience.”
24
Nothing in the Rulebook or Guidebook states that the student-achievement component is
measured by the summative annual appraisal. Without the requisite student-performance
criteria, a document cannot be considered an “appraisal” under the Education Code. See id.
§ 21.351(a)(1)-(2).
Moreover—contrary to DISD’s contention that all components of a teacher’s
evaluation were completed at various times during the 2014-15 school year—the Education Code
indicates that the teacher’s appraisal or evaluation is a single document, not a series of
components completed during the year. And unless the teacher agrees otherwise in writing, 10
that appraisal must be done at least once during the school year. Section 21.352(c) of the
Education Code provides, in relevant part:
Except as otherwise provided by this subsection, appraisal must be done at least
once during each school year. A teacher may be appraised less frequently if the
teacher agrees in writing and the teacher’s most recent evaluation rated the
teacher as at least proficient, or the equivalent, and did not identify any area of
deficiency. A teacher who is appraised less frequently than annually must be
appraised at least once during each period of five school years. The district shall
maintain a written copy of the evaluation of each teacher’s performance in the
teacher’s personnel file. Each teacher is entitled to receive a written copy of the
evaluation promptly on its completion. After receiving a written copy of the
evaluation, a teacher is entitled to a second appraisal by a different appraiser or to
submit a written rebuttal to the evaluation to be attached to the evaluation in the
teacher’s personnel file. The evaluation and any rebuttal may be given to another
school district at which the teacher has applied for employment at the request of
that district.
Tex. Educ. Code § 21.352(c) (emphases added). This statute refers to only one written document
(“the evaluation”) that upon completion is retained in the teacher’s file. See id.; see also Hall v.
North E. Indep. Sch. Dist., Docket No. 019-R10-1106, 2008 Tx. Educ. Agency LEXIS 3, at *4
10
Nothing in the record shows that any of the Teachers agreed in writing to be appraised
less frequently than required by section 21.352(c). See Tex. Educ. Code § 21.352(c).
25
n.2 (Sept. 8, 2008) (noting that “[t]he terms ‘evaluation’ and ‘appraisal’ are synonymous”). No
reasonable reading of this statute indicates that individual components of an appraisal or
evaluation are to be added periodically to a teacher’s personnel file during the school year.
Further, the Guidebook provides that teachers who disagree with their
“summative performance evaluation” may address such disagreements after issuance of the
Scorecard with the teacher’s “final evaluation rating”: “A teacher may submit a written response
or rebuttal after receiving a copy of the performance component of the evaluation and/or after
receiving the final evaluation rating, which includes the relevant student achievement and
student perception components.” Although DISD currently contends that the Teachers should
have filed their appraisal grievance within ten days after receiving their summative annual
appraisal, and not after receiving their Scorecard, the record reflects that DISD directed at least
one of the Teachers to postpone addressing any problem or question about the summative annual
appraisal until after issuance of the Scorecard:
My immediate supervisor, Stephanie Burns at Bryan Adams HS, told several of us
that if we had a problem or question about our summative, WE HAD UNTIL
THE ENTIRE TEI SCORECARD CAME OUT TO REBUT IT. Apparently, that
is not the case and it should have been done earlier. However, whether by
accident or on purpose, several of us took her at her word on this and waited. . . .
Again, misinformation to me caused a delay and a simple remedy is available if
desired. 11
(Emphases in original.). The Teachers pointed to this evidence during oral argument and in their
petition for review to the Commissioner. DISD offered no response to this evidence beyond
11
DISD contends that equitable tolling did not apply to the filing of a grievance under
DGBA (Local). But DGBA (Local) addresses the “untimely filing” of grievances and specifies
that “[c]onsideration shall be given for extenuating circumstances in all cases.”
26
representing to this Court that such matter was outside the record and merely attorney
argument. 12
After reviewing the evidence in this record, we conclude that the Commissioner
could not have reasonably found, as DISD contends, that the Teachers’ grievance is untimely
because the summative annual appraisal, and not the Scorecard, is the “appraisal” contemplated
by the Education Code. 13
b. Commissioner’s contention that appraisal grievance was untimely
Notably, the Commissioner does not contend that the issuance of the Scorecards
to the Teachers in September of 2015 complied with the statutory requirement in section
21.352(c) that teacher appraisals must be completed during the school year. See Tex. Educ.
Code § 21.352(c). Rather, the Commissioner contends that section 21.352(c) is merely
directory. 14 But see Tex. Att’y Gen. Op. No. GA-0055 (2003) (concluding that under section
12
Counsel for DISD made the same representation to the Commissioner.
13
The Commissioner’s decision includes a narrative, but not a finding, dispensing with
the appraisal-grievance claims as untimely: “As to the claims that [DISD]’s practice in individual
cases violated the school laws of this state or [the Teacher]s’ contracts, these issues could also
have been raised when the alleged events occurred.” The Commissioner also concluded that
“Petitioners’ claims were ripe when they were required to be filed under Respondent’s policy.”
These generalizations do not identify when the appraisal grievance would have been ripe or what
concrete injury the Teachers would have sustained before receiving the “appraisal” required by
section 21.352(c) of the Education Code. See Texas v. United States, 523 U.S. 296, 300 (1998)
(concluding that claim is not ripe for adjudication if it rests on contingent future events that may
not occur as anticipated or at all); In re Depinho, 505 S.W.3d 621, 624 (Tex. 2016) (noting that
case is unripe when determination of whether claimant has concrete injury can be made only on
contingent or hypothetical facts, or on events that have not yet occurred); see also Tex. Educ.
Code § 21.352(c).
14
DISD diverges from the Commissioner on this issue. Counsel for DISD
acknowledged during the Teachers’ second grievance hearing that an annual performance
evaluation is a requirement: “Now one of the first arguments [the Teachers] discussed is the fact
that the Texas Education Code requires an annual performance evaluation. That is correct.”
27
21.352(c) “[e]ach school district must use its appraisal process and criteria to evaluate each
teacher in the district at least once during each school year” and that “[t]his requirement is not
limited to beginning teachers but rather applies to all teachers in the district”) (emphases added).
In support of his contention that section 21.352(c) is merely directory, the Commissioner relies
heavily on the statute’s lack of an explicitly stated consequence for noncompliance. The
Commissioner also contends that there is no harm from providing a teacher with an evaluation
that is late—i.e., when no appraisal is provided during the school year—“for even a late
evaluation is preferable to none at all.”
The fundamental rule for determining whether a statutory provision is mandatory
or directory is to ascertain and give effect to the Legislature’s intent. AC Interests, L.P. v. Texas
Comm’n on Envtl. Quality, 543 S.W.3d 703, 708 (Tex. 2018). No “absolute test” distinguishes
the mandatory from the directory when the Legislature creates a statutory deadline but does not
expressly set forth a penalty or consequence for noncompliance. Id. Factors we may consider in
determining whether the Legislature intended a provision to be mandatory or directory include
the plain meaning of the words used, as well as the entire act, its nature and object, and the
consequences that would follow from each construction. Albertson’s, Inc. v. Sinclair,
984 S.W.2d 958, 961 (Tex. 1999).
The Texas Supreme Court has stated that the use of “must” in a statute is
generally understood as a mandatory term, creating a duty or condition. AC Interests,
543 S.W.3d at 709. Similarly, the Code Construction Act states that “must” indicates a condition
precedent “unless the context in which the word or phrase appears necessarily requires a
different construction or unless a different construction is expressly provided by statute.”
Tex. Gov’t Code § 311.016(3). Courts generally construe a statutory provision as mandatory
28
when the power or duty to which it relates is for the public good. Sinclair, 984 S.W.2d at 961.
Conversely, a statutory provision that merely promotes the proper, orderly and prompt conduct
of business is not generally construed as mandatory, particularly when failure to comply with the
statute will not prejudice the rights of the interested parties. TJFA, L.P. v. Texas Comm’n on
Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727, 734 (Tex. App.—Austin 2012,
pet. denied). When a statute is silent about consequences of noncompliance, we look to the
statute’s purpose in determining the proper consequence of noncompliance. Sinclair,
984 S.W.2d at 961. “We will not interpret silence regarding the consequences for
noncompliance to undermine the statute’s purpose.” AC Interests, 543 S.W.3d at 709.
Here, although there are no statutory consequences for noncompliance expressly
stated in section 21.352(c), other subsections of that statute indicate that the purpose of
conducting appraisals during the school year is to ensure that teachers of all skill levels are given
timely feedback on their performance, including any necessary guidance on improvement, and to
allow school districts to assess teachers’ progress from year to year:
(c-1) In addition to conducting a complete appraisal as frequently as required by
Subsection (c), a school district shall require that appropriate components of the
appraisal process, such as classroom observations and walk-throughs, occur more
frequently as necessary to ensure that a teacher receives adequate evaluation and
guidance. A school district shall give priority to conducting appropriate
components more frequently for inexperienced teachers or experienced teachers
with identified areas of deficiency.
(e) A district shall use a teacher’s consecutive appraisals from more than one year,
if available, in making the district’s employment decisions and developing career
recommendations for the teacher.
(f) The district shall notify a teacher of the results of any appraisal of the teacher
in a timely manner so that the appraisal may be used as a developmental tool by
the district and the teacher to improve the overall performance of the teacher.
29
Tex. Educ. Code § 21.352(c-1), (e), (f). The provision in section 21.352(c) addressing teacher
appraisals during the same school year furthers the community’s interest in providing students
with teachers who are guided in a timely manner to maximize their instructional skills, and thus,
relates to the public good. See Sinclair, 984 S.W.2d at 961. Further, the failure to comply with
this statute would prejudice the rights of the interested parties by reducing the likelihood that
schools will employ the most capable teachers and consistently strengthen the teachers’
expertise. Cf. TJFA, 368 S.W.3d at 734; see Tex. Educ. Code § 4.001(a) (identifying objectives
of public education including recruitment, development, and retention of qualified and highly
effective personnel).
Additionally, when the Legislature enacted section 21.352(c) as part of its
substantive revision to Titles 1 and 2 of the Education Code, it amended the teacher-appraisal
statute in former section 13.303(a). See Senate Research Center, Bill Analysis, Tex. C.S.S.B. 1,
at 43, 74th Leg., R.S. (Mar. 27, 1995). The Legislature struck the verb “shall” from the former
statute and added the verb “must” to the new statute, providing further indication of the
Legislature’s intent that compliance with section 21.352(c) is mandatory. See Engrossed
Version, Tex. S.B. 1, § 21.272(b), 74th Leg., R.S. (Mar. 27, 1995) (“Appraisal must [shall] be
done at least once during each school year”); see also 3 Norman J. Singer & J.D. Shambie
Singer, Sutherland Statutory Construction § 57.1 (7th ed. 2008) (noting that form of verb used in
statute, such as that something “must” be done, is “single most important textual consideration
determining whether statute is mandatory or directory”). In its summary of this legislation, the
Texas Education Agency stated that under the new chapter 21, a teacher-appraisal process “must
provide for at least one evaluation per teacher during each school year.” Texas Education
30
Agency, Questions and Answers on Senate Bill 1 14 (July 20, 1995) (Office of Governmental
Relations). Given these considerations, we construe section 21.352(c)’s statement that “appraisal
must be done at least once during each school year,” as imposing a requirement that is
mandatory.
c. Commissioner erred in determining appraisal grievance was untimely
The administrative record before us lacks substantial evidence to reasonably
conclude that: (1) DISD conducted complete appraisals, as defined in section 21.351(a) of the
Education Code, for the Teachers during the 2014-15 school year; (2) providing piecemeal
components of an appraisal during the school year to the Teachers constituted “the evaluation”
under section 21.352(c) of the Education Code; and (3) the Teachers’ grievance—filed within ten
days after the Teachers “knew or should have known” of the appraisal decisions or actions in the
Scorecard that formed the basis of their grievance—was untimely. Thus, we conclude that there
was no reasonable basis in this record for the Commissioner’s conclusion that the Teachers’
grievance was untimely, such that reasonable minds could not have reached the same conclusion
as the Commissioner. See AEP Tex. Cent. Co., 345 S.W.3d at 68; Simpson, 2013 Tex. App.
LEXIS 13581, at *8; Jenkins, 537 S.W.3d at 149; Scally, 351 S.W.3d at 445. The Commissioner
erred by affirming the Board’s decision, and the district court erred by affirming the
Commissioner’s decision. Accordingly, we sustain this portion of the Teachers’ first issue. 15
15
Because we have sustained the Teachers’ first issue challenging the dismissal of their
appraisal grievance as untimely, we need not address the Teachers’ second issue contending that
the Commissioner also erred by refusing to consider whether the Teachers’ appraisals violated
Texas teacher-appraisal laws when he dismissed their grievance as untimely. See Tex. R. App.
P. 47.1.
31
2. Commissioner’s determination that Teachers’ TEI grievance was untimely
The Commissioner determined in Finding of Fact No. 5 that “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.” The Commissioner stated that
because adoption of a policy, such as TEI’s new teacher appraisal system, is a “decision or
action,” any timely facial grievance to that policy would have to have been filed within ten
district business days of the date that DISD adopted that policy, or within ten days of the date
that a grievant became aware or should have become aware of that policy.
The Commissioner noted that the structure of the TEI teacher-appraisal system
was set out in DISD’s policy documents including the DNA (Legal), DNA(Local), and DNA
(Regulation), which were adopted months before the Teachers filed their grievance. Further, as
DISD and the Commissioner point out, DISD described the TEI teacher-appraisal system in a
Guidebook issued in May 2014 and a Rulebook issued in January 2015, DISD conducted a full-
day training for teachers on the TEI in August 2014, and DISD issued the updated Guidebook in
March 2015. Given this timeline of events and the content of those publications in this record,
the Commissioner could have reasonably concluded that the Teachers’ facial grievance as to the
components of the TEI system itself, filed October 2, 2015, was untimely because it was not
filed within ten district business days of when the Teachers actually learned, or with reasonable
diligence should have known, about the components of the TEI system. In this regard,
reasonable minds could have reached the same conclusion as the Commissioner. See AEP Tex.
Cent. Co., 345 S.W.3d at 68; Simpson, 2013 Tex. App. LEXIS 13581, at *8; Jenkins,
32
537 S.W.3d at 149; Scally, 351 S.W.3d at 445. Accordingly, we overrule this portion of the
Teachers’ first issue.
Third issue: Alleged decrease in Teachers’ salary
In their third issue, the Teachers challenge the Commissioner’s determination that
DISD did not violate Texas law by decreasing the Teachers’ salary without prior notification and
after the start of the school year. See Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883,
887-89 (Tex. 1990) (concluding that school district could not lower teachers’ salary schedule
after paying them for two months at higher rate from previous school year and after teachers
were no longer able to resign unilaterally without penalty). The substance of the Teachers’
claimed violation in their third issue is not based on a rate of inflation in the economy but on the
higher cost of the Teachers’ insurance premiums for the 2015-16 school year, resulting in a
reduction of the Teachers’ take-home pay.
The Commissioner determined that he lacked jurisdiction over the Teachers’
claim because it failed to identify a violation of the school laws of this state or of an employment
contract, see Tex. Educ. Code § 7.057(a), and because the Teachers’ grievance “did not raise the
issue of the cost of insurance at the local level.” The Commissioner issued the following
findings concerning this issue:
8. No teacher contracts are in the local record.
12. The local record does not indicate that any Petitioner received a decrease in
total compensation.
13. The local record does not indicate why some teachers paid more for insurance.
14. Petitioners did not contend in their cost-of-living argument during the
grievance process that Respondent is required to give raises when the inflation
rate increases.
33
15. Petitioners did not contend at the local level that Respondent was required not
to raise the employee’s portion of health insurance costs during the term of
their contracts.
Because the Commissioner correctly found that the Teachers did not raise an issue about the cost
of their insurance at the local level, the Teachers failed to preserve that issue for appeal.
Moreover, even if that issue had been preserved, the reason for the increased insurance cost is
unclear from the record. The Teachers provided some pay stubs to support their claim, but the
Commissioner correctly noted that the record does not reflect whether the Teachers changed
their insurance plan or whether more family members were covered during the second year.
These changes could result in higher premiums and decreased take-home pay for reasons not
attributable to DISD.
We conclude that the Teachers’ issue alleging their salary decrease (due to an
insurance-cost increase) was not preserved for the Commissioner’s review because it was not
raised at the local level. See Solis, 562 S.W.3d at 602 (noting that party who fails to raise
particular complaint with school district in accordance with its applicable local grievance policy
may not have record to present to Commissioner that can support party’s complaint and may
waive that complaint or fail to preserve it for subsequent appeal to Commissioner).
Accordingly, the Commissioner did not err by dismissing the Teachers’ salary-decrease
complaint against DISD. The Teachers’ third issue is overruled.
CONCLUSION
We conclude that the Commissioner erred in his determination that he lacked
jurisdiction over the Teachers’ appeal of their grievance. We further conclude that his dismissal
of the Teachers’ appeal of their appraisal grievance as untimely was not supported by substantial
34
evidence in this record. Accordingly, we reverse that part of the district court’s judgment and
remand this cause to the Commissioner for further proceedings consistent with this opinion.
However, we conclude that the Commissioner did not err by dismissing as
untimely the Teachers’ facial grievance as to the components of the TEI teacher-appraisal
system, and by dismissing the Teachers’ unpreserved complaint alleging that DISD decreased
the Teachers’ salary. Accordingly, we affirm those parts of the district court’s judgment.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Baker, and Triana
Concurring and Dissenting Opinion by Justice Goodwin
Affirmed in Part; Reversed and Remanded in Part
Filed: October 17, 2019
35