                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00845-CV

                                        Sandra JENNINGS,
                                             Appellant

                                            v.
          Robert Scott, Commissioner of Education, and Boerne Independent School
     Robert SCOTT, Commissioner of Education, and Boerne Independent School District,
                                         Appellees

                    From the 216th Judicial District Court, Kendall County, Texas
                                      Trial Court No. 11-530
                             Honorable Bill R. Palmer, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: January 8, 2014

AFFIRMED

           Sandra Jennings, a former employee of Boerne Independent School District (“B.I.S.D.”),

appeals from the trial court’s order (1) affirming the education commissioner’s decision to uphold

the school district’s nonrenewal of her term contract, and (2) rendering judgment against her on

her constitutional and statutory claims. We affirm.

                                FACTUAL AND PROCEDURAL BACKGROUND

           Jennings was employed by B.I.S.D. as a teacher for the 2010-11 school year under a one-

year term contract. In September 2010, Jennings was advised that the B.I.S.D. administration
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would recommend nonrenewal of her contract to the board of trustees. On April 1, 2011, Jennings

received notice that the board had voted to propose nonrenewal of her contract. Jennings timely

requested a hearing on the nonrenewal of her contract pursuant to section 21.207(a) of the Texas

education code. Under section 21.207(a), a hearing may not be held later than the fifteenth day

after the date the board receives the request for a hearing, unless the parties agree in writing to a

different date. See TEX. EDUC. CODE ANN. § 21.207(a) (West 2012). Jennings and the board agreed

in writing that the hearing would be held on May 26, 2011. However, due to concerns about

compliance with the Texas Open Meetings Act, the hearing was not held on May 26, 2011.

Jennings agreed to reschedule the hearing, which was ultimately set for June 14, 2011.

       On May 25, 2011, Jennings filed a grievance with B.I.S.D., complaining that her recent

performance appraisal contained unjustified ratings. In her grievance, Jennings asserted:

       The [B.I.S.D.] administration has been acting in bad faith all year, manufacturing
       negative documentation against me in an attempt to procure the nonrenewal of my
       contract at the end of the [] school year. The information on which the unjustified
       ratings in this appraisal are based are the direct result of false, distorted, and
       exaggerated documentation by my principal and the Human Resources Director.

B.I.S.D. advised Jennings her grievance would be heard on June 14, 2011, in conjunction with the

nonrenewal hearing.

       The B.I.S.D. board of trustees held a hearing on June 14, 2011. Jennings and her lawyer

appeared briefly at the hearing. However, when the board began to consider the nonrenewal of her

contract, Jennings and her lawyer left the hearing. Jennings took the position that her contract had

been renewed by operation of law because the board had not held the nonrenewal hearing within

fifteen days of her request and the parties had not agreed in writing to a June 14, 2011 hearing

date. Notwithstanding Jennings’s position, the board proceeded with the nonrenewal hearing on

June 14, 2011. At this hearing, the board decided Jennings’s term contract would not be renewed.



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       In response, Jennings appealed the board’s nonrenewal decision to the commissioner of

education, arguing her contract was renewed by operation of law when the board failed to hold a

nonrenewal hearing within fifteen days after the date it received her request in accordance with

section 21.207(a) of the education code. The commissioner determined Jennings agreed to waive

the fifteen-day deadline, and therefore, the board had authority under section 21.207(a) to conduct

the nonrenewal hearing on June 14, 2011. The commissioner upheld the board’s nonrenewal

decision and denied Jennings’s administrative appeal.

       Thereafter, Jennings filed a petition in the trial court seeking judicial review of the

commissioner’s decision. Jennings also claimed in her petition that the board violated section

617.005 of the Texas government code and article 1, section 27 of the Texas constitution by failing

to hold a hearing on her grievance.

       On September 26, 2012, Jennings, B.I.S.D., and the commissioner appeared in the trial

court for a hearing. The administrative record was admitted into evidence and the parties had an

opportunity to present their arguments. At the conclusion of the hearing, the trial court signed an

order affirming the commissioner’s decision and denying Jennings’s statutory and constitutional

claims against B.I.S.D.

       Jennings then filed a motion for new trial in which she asked the trial court to reinstate her

statutory and constitutional claims against B.I.S.D. B.I.S.D. filed a response to the motion for new

trial, arguing Jennings’s claims against B.I.S.D. were properly denied because Jennings had failed

to exhaust her administrative remedies as to these claims. The trial court held a hearing on the

motion for new trial and denied the motion. This appeal ensued.

                     JUDICIAL REVIEW OF THE COMMISSIONER’S DECISION

       In her second issue, Jennings argues the trial court erred in affirming the decision of the

commissioner of education. A court may reverse the commissioner’s decision only if (1) the
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decision is not supported by substantial evidence or (2) the commissioner’s conclusions of law are

erroneous. Wittman v. Nelson, 100 S.W.3d 356, 359 (Tex. App.—San Antonio 2002, pet. denied)

(citing Montgomery ISD v. Davis, 34 S.W.3d 559, 566 (Tex. 2000)); see TEX. EDUC. CODE ANN.

§ 21.307(f) (West 2012). The commissioner’s decision is supported by substantial evidence if

reasonable minds could have reached the same conclusion. Poole v. Karnack Indep. Sch. Dist.,

344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.). Although substantial evidence is more

than a mere scintilla, the evidence in the record may preponderate against the commissioner’s

decision and still amount to substantial evidence. Id. A court defers to the commissioner’s

interpretation of the education code if such an interpretation is reasonable and does not contradict

the plain language of the statute. Id.; Wittman, 100 S.W.3d at 359.

       Jennings maintains that the trial court erred in affirming the commissioner’s decision.

According to Jennings, the board did not hold a hearing concerning the nonrenewal of her term

contract within fifteen days of receiving her request for a hearing, nor did the board hold the

hearing on a date agreed to by the parties in writing in compliance with section 21.207(a). For

these reasons, Jennings maintains that her term contract was renewed by operation of law.

       Section 21.207(a) of the Texas education code provides:

       If the teacher desires a hearing after receiving notice of the proposed nonrenewal,
       the teacher shall notify the board of trustees in writing not later than the 15th day
       after the date the teacher receives hand delivery of the notice of the proposed action,
       or if the notice is mailed by prepaid certified mail or delivered by express delivery
       service, not later than the 15th day after the date the notice is delivered to the
       teacher's address of record with the district. The board shall provide for a hearing
       to be held not later than the 15th day after the date the board receives the request
       for a hearing unless the parties agree in writing to a different date. The hearing
       must be closed unless the teacher requests an open hearing.

TEX. EDUC. CODE ANN. § 21.207(a) (West 2012) (emphasis added).




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Here, the commissioner made the following findings of fact:

2. On or about April 1, 2011, Petitioner [Jennings] received notice that
Respondent’s [B.I.S.D.’s] board of trustees had voted to propose the nonrenewal of
her term contract.

3. Petitioner timely requested a hearing pursuant to Texas Education Code section
21.207.

4. On April 21, 2011, by email, the parties agreed to an unconditional waiver of the
fifteen-day hearing deadline set forth in Section 21.207, Education Code. Along
with the waiver of the deadline, the parties discussed potential dates for the hearing;
however, the waiver was not conditioned upon holding the hearing on or by a
specific date.

5. The original hearing date, May 26, 2011, was passed by the agreement of the
parties, including Petitioner, due to Open Meetings Act agenda posting concerns.

6. After agreeing to pass the May 26, 2011 hearing date, and later in the day on
May 26, the parties agreed via email to reschedule the hearing to June 14, 2011, a
date proposed by Petitioner’s counsel, subject to ensuring the availability of the
board of trustees. Petitioner did not challenge the lawfulness of postponing the May
26th hearing to another date at this time and specifically offered and agreed to the
June 14, 2011 date. Petitioner’s counsel was inadvertently not copied on the May
26, 2011 email that confirmed the board’s availability on June 14, 2011.

….

8. On the evening of May 27, 2011, Petitioner, through her counsel, informed
Respondent that she withdrew her “potential agreement” to the June 14, 2011
hearing date because her contract had automatically been renewed by operation of
law.

….

10. Petitioner and her counsel appeared at the June 14, 2011 board hearing . . . but
departed . . . before the board convened the nonrenewal hearing.

The commissioner also made the following conclusions of law:

3. Texas Education Code section 21.207(a) requires a school board to hold an
evidentiary hearing concerning the proposed nonrenewal of a term contract not later
than the 15th day after the date the board receives the request for a hearing unless
the parties agree in writing to a different date.




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       4. Petitioner agreed to waive the fifteen-day deadline established in Texas
       Education Code section 21.207(a) in her April 21, 2011 email to the administration
       and the hearing officer without establishing any conditions for the waiver.

       5. The fifteen-day deadline established in Texas Education Code section 21.207(a)
       does not apply to subsequent agreements to reschedule a hearing after the waiver
       has been agreed to, absent specific conditions being attached to the waiver.

       6. There is no violation of Texas Education Code section 21.207(a) if the board
       fails to hold a hearing within 15 days once Petitioner and Respondent have agreed
       to reschedule the hearing date.

       Jennings takes the position that under section 21.207(a) the board was required to hold a

hearing within fifteen days of receiving her request for a hearing, absent an explicit agreement to

hold the hearing on a particular date. In this case, however, the commissioner interpreted section

21.207(a) to mean that once the parties waived the fifteen-day deadline without conditions or

restrictions, the deadline remained waived. We conclude the commissioner’s interpretation of the

statute was reasonable.

       We further conclude that the commissioner’s finding of fact concerning Jennings’s

unconditional waiver of the hearing deadline was supported by substantial evidence. The parties

agreed to an unconditional waiver of the fifteen-day deadline on April 21, 2011, when the board’s

lawyer sent an e-mail stating, “Please confirm by ‘reply all’ that you are in agreement to waive the

15 day timeline,” to which Jennings’s lawyer responded, “Agreed.” No one conditioned the

scheduling of the hearing on a date outside the fifteen-day period on a date certain. Additionally,

we conclude the commissioner’s findings concerning Jennings’s agreement to postpone the May

26, 2011 hearing date was supported by substantial evidence. The record shows that the day before

the May 26, 2011 hearing, the parties agreed to reschedule the hearing because of concerns that

the agenda posting may have been inadequate. After a discussion among the parties, the board’s

lawyer wrote to Jennings’s lawyer: “This will confirm our agreement to postpone the nonrenewal

hearing because of inadequate agenda posting.” Jennings’s lawyer did not respond by arguing that
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he had made no agreement to reschedule the hearing. Instead, Jennings’s lawyer sent several emails

suggesting dates that would work for him. In one of these emails, Jennings’s lawyer stated, “The

14th would work . . . . Also, . . . I am available any time the week of the 27th.” Jennings’s lawyer

provided other dates that were outside the fifteen-day time period, and the district and its lawyer

accepted the June 14, 2011 date proposed by Jennings’s lawyer.

        The crux of Jennings’s argument is that the commissioner’s decision in the present case is

inconsistent with his decision in another case, Barrientes v. Beeville Indep. Sch. Dist., No. 060-

R1-505 (Tex. Comm’r Educ. 2005). However, as explained in the commissioner’s decision,

Barrientes is distinguishable from the present case. In Barrientes, a school district employee timely

requested a nonrenewal hearing under section 21.207(a). Initially, the renewal hearing was set

within the fifteen-day time period set by the statute. When the employee’s lawyer was unavailable

on that date, he wrote the district a letter explaining that he was willing to consider other dates and

times after the fifteen-day deadline. The employee’s lawyer offered three specific dates after the

fifteen-day deadline: April 21, April 27, or April 28, 2005. Initially, the district set the hearing for

April 28, 2005, but then rescheduled the hearing after determining that the notice of the hearing

was not properly posted. The district unilaterally moved the hearing date to April 29, 2005, and

informed the employee’s lawyer. In response, the employee’s lawyer informed the board that he

could not attend an April 29 hearing for personal reasons. The employee’s lawyer also wrote a

letter explaining that the district lacked authority to hold the hearing on April 29, 2005. The district

nevertheless held the nonrenewal hearing on April 29, 2005. Neither the employee nor his lawyer

attended the hearing. At the April 29 hearing, the board did not address the merits of the

nonrenewal, focusing instead on whether it should proceed to hold the hearing. The employee’s

lawyer did not request a continuance of the April 29 hearing; however, the board president

determined the employee should be given another opportunity to present his case. The employee
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was given the option of attending a hearing on May 3 or May 5, but declined to attend the hearing.

At a May 5, 2005 hearing, the board decided to nonrenew the employee’s contract.

       In Barrientes, the commissioner determined that the initial letter sent to the district by the

employee’s lawyer contained an offer to extend the fifteen-day deadline for holding a hearing, if

the hearing was held on April 21, 27, or 28, 2005. The commissioner further determined that the

district sent a letter accepting this offer to hold the hearing on April 28, 2005. Thus, the

commissioner concluded these two letters, construed together, constituted a written agreement to

hold the hearing on April 28, 2005, and this agreement did not allow the district to hold the hearing

on another day. The commissioner concluded that neither the employee nor his lawyer had a duty

to attend the April 29 or the May 5 hearing, and the board’s decision to nonrenew the counselor’s

contract was void because the board conducted the hearing in violation of section 21.207(a).

       In the present case, the commissioner recognized that the facts surrounding the parties’

agreement were different from the facts surrounding the parties’ agreement in Barrientes. First, in

the present case, unlike in Barrientes, the school district did not unilaterally reschedule the hearing

date. The June 14, 2011 hearing date was offered by Jennings’s lawyer and accepted by the school

district. Second, Jennings did not inform the school district, as the employee did in Barrientes, that

her lawyer had a scheduling conflict. Third, Jennings and her lawyer were initially present at the

June 14, 2011 hearing and left when the nonrenewal portion of the hearing began. Fourth, the

waiver of the fifteen-day deadline in the present case was not tied to a specific date. Finally, the

hearing date in the present case never changed from the date of Jennings’s initial offer. For these

reasons, the commissioner determined that B.I.S.D. conducted the nonrenewal hearing in

compliance with section 21.207(a).




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         We are of the opinion that reasonable minds could have reached the same conclusion as

the commissioner. We therefore hold that the trial court did not err in affirming the commissioner’s

decision. Jennings’s second issue is overruled.

                                CONSTITUTIONAL AND STATUTORY CLAIMS

         Jennings’s petition alleged: “The Board of Trustees of Boerne Independent School District

violated Ms. Jennings’ right to have her grievance concerning her appraisal considered by the

Board in violation of Article I Section 27 of the Texas Constitution and Section 617.005 of the

Government Code.” 1 In her first issue, Jennings argues the trial court erred in rendering judgment

against her on her statutory and constitutional claims in the absence of an evidentiary hearing, a

motion for summary judgment, a motion to dismiss, or some other procedural vehicle for

considering these claims on the merits.

         The trial court held an evidentiary hearing in this case on September 26, 2012. At the end

of this hearing, the trial court stated it was denying all of Jennings’s claims and it signed a judgment

to that effect. At the time, Jennings did not object to the trial court signing a judgment disposing

of all of her claims. Jennings then filed a motion for new trial arguing her statutory and

constitutional claims had not been heard by the trial court at the September 26, 2012 hearing. The

motion for new trial asked the trial court to reinstate her statutory and constitutional claims against

B.I.S.D. These statutory and constitutional claims stemmed from Jennings’s contention that the




1
 Article I, section 27 of the Texas constitution grants citizens the right to “apply to those invested with the powers of
government for redress of grievances or other purposes.” TEX. CONST. art. 1, § 27. Section 617.005 of the Texas
government code provides:

         This chapter does not impair the right of public employees to present grievances concerning their
         wages, hours of employment, or conditions of work either individually or through a representative
         that does not claim the right to strike.

TEX. GOV’T CODE ANN. § 617.005 (West 2012).


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board failed to hold a hearing on her grievance about her appraisal. B.I.S.D. urged the trial court

to deny the motion because, among other things, Jennings had not presented her grievance

complaint to the education commissioner and, therefore, she failed to exhaust her administrative

remedies before filing her claims in the trial court.

       We review the trial court’s denial of a motion for new trial for an abuse of discretion.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Business Staffing,

Inc. v. Viesca, 394 S.W.3d 733, 750 (Tex. App.—San Antonio 2012, no pet.). In conducting our

review, we make every reasonable presumption in favor of the trial court’s decision. Jackson v.

Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983), overruled on other grounds by Moritz v. Preiss,

121 S.W.3d 715 (Tex. 2003); Viesca, 394 S.W.3d at 750.

       Generally, under Texas law, an aggrieved party, whose claim relates to the administration

of school laws and involves disputed fact issues, must exhaust his administrative remedies with

the education commissioner before turning to the courts. Gutierrez v. Laredo Indep. Sch. Dist.,

139 S.W.3d 363, 366 (Tex. App.—San Antonio 2004, no pet.); Harlandale Indep. Sch. Dist. v.

Rodriguez, 121 S.W.3d 88, 91-92 (Tex. App.—San Antonio 2003, no pet.). There are exceptions

to this rule. Hitchcock v. Board of Trustees, Cypress-Fairbanks Indep. Sch. Dist., 232 S.W.3d 208,

218 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Gutierrez, 139 S.W.3d at 366. Exhaustion of

administrative remedies is not necessary if: (1) the aggrieved party will suffer irreparable harm

and the administrative agency is unable to provide relief; (2) the claims are for a violation of a

constitutional or federal statutory right; (3) the cause of action involves pure questions of law and

the facts are not disputed; (4) the commissioner of education lacks jurisdiction over the claims; (5)

the administrative agency acts without authority; or (6) the claims involve parties acting outside

the scope of their employment with the school district. Hitchcock, 232 S.W.3d at 218; Dotson v.

Grand Praire Indep. Sch. Dist., 161 S.W.3d 289, 291-92 (Tex. App.—Dallas 2005, no pet.).
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        In the trial court, Jennings did not argue that she met an exception to the exhaustion of

remedies doctrine. But even if she had raised this argument, only one of the recognized

exceptions—the exception concerning a violation of constitutional or federal statutory rights—

was potentially applicable to her. Jennings alleged violations of a state statute and a state

constitutional provision. Jennings’s state statutory claim does not fall under this exception because

this exception applies only to claims based on federal statutory rights. See Hitchcock, 232 S.W.3d

at 218; Rodriguez, 121 S.W.3d at 92. Likewise, Jennings’s state constitutional claim does fall

under this exception. When a constitutional claim is only ancillary to or supportive of a complaint

about the board’s handling of an employment contract, the complaining party must first exhaust

the administrative process. Dotson, 161 S.W.3d at 292-93.

        Here, the trial court could have found that Jennings’s constitutional claim, alleging that the

board failed to hold a hearing on her grievance and thereby violated the Texas constitution, was

ancillary to or supportive of her complaint about the board’s handling of her employment contract.

In her grievance, Jennings complained the B.I.S.D. administration had been “acting in bad faith

all year, manufacturing negative documentation against [her] in an attempt to procure the

nonrenewal of [her] contract at the end of the [] school year.” Under these circumstances, it would

have been reasonable for the trial court to conclude that Jennings was not exempted from the

requirement that she exhaust her administrative remedies before bringing her statutory and

constitutional claims in the trial court. See id. (holding that a school teacher who asserted claims

against a school district for breach of his employment contract and violations of article I, section

27 of Texas constitution was not exempt from first exhausting administrative remedies).

        We hold the trial court did not abuse its discretion in denying Jennings’s motion for new

trial. Jennings’s first issue is overruled.



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                                  CONCLUSION

Having overruled both of Jennings’s issues, we affirm the trial court’s judgment.

                                                    Karen Angelini, Justice




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