Ernest G. Ingram v. Houston Independent School District William E. Kirby, the Commissioner of Education And the Central Education Agency

Houston Indep. Sch. Dist. v. Ingram IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-326-CV





ERNEST G. INGRAM,

APPELLANT

vs.

HOUSTON INDEPENDENT SCHOOL DISTRICT;

WILLIAM E. KIRBY, THE COMMISSIONER OF EDUCATION;

AND THE CENTRAL EDUCATION AGENCY,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 457,288, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

Appellee Houston Independent School District terminated the teaching contracts of appellant Ernest G. Ingram and eight other teachers after they failed to pass the Texas Examination of Current Administrators and Teachers [hereinafter TECAT] by June 30, 1986, a deadline set by the Texas Legislature. ⁽¹⁾ Ingram and the other teachers appealed to appellee William E. Kirby, the Commissioner of Education, who later dismissed their appeals on the ground that the teachers did not hold valid teaching certificates at the time of their proposed terminations. Ingram and the other teachers next filed a suit for judicial review against the commissioner, appellee Central Education Agency, and the school district. The district court affirmed the commissioner's decision. In fourteen points of error, Ingram alleges that the district court erred by violating the constitution, various statutes, and rules of civil procedure. We will affirm.

The commissioner, Central Education Agency, and school district argue that Ingram has waived points of error one, two, three, nine, ten, eleven, thirteen, and fourteen because he either did not raise these issues before the commissioner or did not include them in his motion for rehearing before the commissioner. Although the statement of facts indicates that the administrative record was admitted into evidence in the district court, the administrative record has not been tendered to the Clerk of this Court for filing as an exhibit to the statement of facts.

The commissioner's order is presumed to be valid and legal. See Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984). As the appellant, Ingram has the burden of presenting to this Court a sufficient record to show error requiring reversal. Tex. R. App. P. 50(d). Because the administrative record is not properly before us, no error is shown. Commerce Indep. Sch. Dist. v. Texas Education Agency, 859 S.W.2d 627, 629 (Tex. App.--Austin 1993, writ dism'd). Points of error one, two, three, nine, ten, eleven, thirteen, and fourteen are overruled.

Points of error four through eight all involve procedural challenges to the district court's judgment. In point of error four, Ingram alleges that the district court erred in not filing findings of fact and conclusions of law. This cause, however, is governed by the substantial-evidence rule, and findings of fact and conclusions of law are, therefore, unnecessary. Beyer v. Employees Retirement Sys., 808 S.W.2d 622, 628 (Tex. App.--Austin 1991, writ denied); see Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.174 (West 1994). ⁽²⁾ Point of error four is overruled.

In point of error five, Ingram contends that the district court erred by admitting a copy of the administrative record into evidence rather than the original. A review of the statement of facts reveals that counsel for all parties agreed to the substitution to save time because the original could not be located on the day of the hearing. There is no error; point of error five is overruled.

Ingram next argues in point of error six that the district court violated Texas Rule of Appellate Procedure 12(b) ("Duties related to proceedings before the court shall take preference over other work.") by dismissing the court reporter after the administrative record was admitted into evidence. No court reporter was necessary, however, because the district court was not sitting as a finder of fact. Even if releasing the court reporter was error, Ingram did not object. Tex. R. App. P. 52(a). Point of error six is overruled.

In point of error seven, Ingram contends that the district court erred by violating Texas Rule of Appellate Procedure 50(e) relating to a lost or destroyed record. He argues that he is entitled to a new trial because he timely requested a statement of facts and the record has been lost without his fault, thus, depriving him of the live pleadings. Ingram confuses the transcript, which contains the live pleadings, with the statement of facts, which contains the transcription of the evidence. Tex. R. App. P. 51(a), 53(a). First, the statement of facts is not lost or destroyed. The statement of facts indicates that the administrative record was properly admitted into evidence in the district court. If Ingram is complaining that the statement of facts is "lost" because the remainder of the trial-court proceedings was not transcribed by the court reporter, then we have already addressed this complaint under point of error six. Furthermore, in a cause governed by the substantial-evidence rule, a statement of facts is unnecessary for any purpose other that to show that the administrative record has been properly admitted into evidence. Tex. R. App. P. 50(a). Point of error seven is overruled.

In his final procedural argument regarding the record, Ingram alleges in point of error eight that the district court erred by violating Texas Rule of Civil Procedure 20 ("On the last day of the session, the minutes shall be read, corrected, and signed in open court by the judge."). Ingram erroneously assumes the minutes are incomplete because they do not contain the oral testimony in this cause. Oral testimony is not a part of the district court's minutes, and, accordingly, we overrule point of error eight.

In point of error twelve, Ingram alleges that the district court erred by refusing to declare that the commissioner, Central Education Agency, and school district breached Ingram's teaching contract. Tex. Educ. Code Ann. §§ 13.107, .110 (West 1991). This argument is without merit because the law requires that a teacher always maintain a valid teaching certificate in order to be employed as a public school teacher. Tex. Educ. Code Ann. § 13.045 (West 1991); Swanson v. Houston Indep. Sch. Dist., 800 S.W.2d 630, 634 (Tex. App.--Houston [14th Dist.] 1990, writ denied). Thus, there can be no contract if a teacher does not have a valid teaching certificate. Id. Ingram has no valid teaching certificate because he has not passed the TECAT. Point of error twelve is overruled.

The judgment of the district court is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: March 2, 1994

Do Not Publish

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-326-CV



ERNEST G. INGRAM,

APPELLANT

vs.

HOUSTON INDEPENDENT SCHOOL DISTRICT;

WILLIAM E. KIRBY, THE COMMISSIONER OF EDUCATION;

AND THE CENTRAL EDUCATION AGENCY,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 457,288, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

CONCURRING OPINION

I agree with the majority's determination to overrule points of error one, two, three, nine, ten, eleven, thirteen, and fourteen because Ingram has not brought the administrative record before this Court. Nevertheless, I adhere to the positions and reasoning set forth in my dissent in Commerce Independent School District v. Texas Education Agency regarding the proper method to bring the administrative record before the appellate court. Commerce Indep. Sch. Dist., 859 S.W.2d 627, 629-35 (Tex. App.--Austin 1993, writ dism'd) (Powers, J., dissenting).

Accordingly, I concur.

John Powers, Justice

Before Justices Powers, Aboussie and Jones

Filed: March 2, 1994

Do Not Publish

1. Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. I(C), sec. 3, § 13.047, 1984 Tex. Gen. Laws 117, 155 (Tex. Educ. Code Ann. § 13.047), amended and repealed by Act of Apr. 23, 1987, 70th Leg., R.S., ch. 32, 1987 Tex. Gen. Laws 66.

2. All citations in this opinion are to the current Administrative Procedure Act rather than the former Administrative Procedure and Texas Register Act, because the recent codification did not substantively change the law. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 47, 1993 Tex. Gen. Laws 583, 986; Administrative Procedure Act, Tex. Gov't Code Ann. §§ 2001.001-.902 (West 1994) [hereinafter APA].