      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      444444444444444
                                      NO. 03-01-00464-CV
                                      444444444444444


                                   Hector Tijerina, Appellant


                                                 v.


           Felipe Alanis, Commissioner of Education; and Harlandale Independent
                                 School District, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
           NO. 98-01338, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING




               The Commissioner1 of Education dismissed Hector Tijerina’s appeal of Harlandale

Independent School District’s decision to end his employment. The Commissioner dismissed the

appeal because Tijerina did not exhaust his administrative remedies and filed his challenge untimely.

The district court affirmed the dismissal. We will reverse the judgment and remand the cause to the

Commissioner for further proceedings.




       1
         The commissioner who signed the dismissal was Mike Moses. His successor, Jim Nelson,
was the commissioner when this appeal was filed. By rule, we now substitute as appellee his
successor, Felipe Alanis, who was sworn in March 25, 2002. See Tex. R. App. P. 7.2(a).
                                         BACKGROUND

               The dismissal of Tijerina’s complaint has created a scant record. The administrative

record consists of pleadings. There is a reporter’s record of the hearing in the district court. The

parties agree on much of the factual background, but their interpretations of those facts differ.

               Tijerina taught for eight years in Harlandale ISD. He undisputedly was employed as

a teacher under a continuing contract at the end of that period in 1995-96. The district then offered,

and Tijerina accepted, a promotion to an administrative position in its personnel department. He was

offered a contract entitled “One Year Probationary Contract for Certified Classroom Teacher/

Certified Administrator Position/Nurse/Counselor/Librarian.” No such signed contract appears in

the record. Tijerina did not file a grievance in 1996 or appeal the district’s decision to offer him a

probationary contract. He served in the position during the 1996-97 school year. In the spring of

1997, the district notified him that it was terminating his employment.

               Tijerina filed his petition for review with the Commissioner on May 12, 1997. He

complained that he was never asked to return to probationary status in exchange for the promotion,

and asserted that Harlandale ISD could not make that request without documenting the request in

writing. He complained that he was not given a reason for his dismissal at the end of the 1997 school

year or a hearing before the school board regarding his termination; he contended he should have

received a hearing pursuant to either a continuing or a term contract. See Tex. Educ. Code Ann. §§

21.159 & 21.207 (West 1996).

               The Commissioner concluded that Tijerina’s appeal was not timely filed.              He

determined that Tijerina’s complaint was about “the offering of a probationary contract, not the



                                                  2
action to nonrenew or terminate the probationary contract.” Thus, the Commissioner deduced,

Tijerina’s complaint was directed at actions occurring in the spring of 1996 when he assumed the

administrative position, not the spring of 1997 when he was terminated from that position. His

petition, filed May 12, 1997, was too late to complain about actions from 1996. See 19 Tex. Admin.

Code § 157.1051 (2001) (requiring petition be filed within forty-five days of challenged action). The

Commissioner also held that Tijerina failed to exhaust his administrative remedies because he failed

to appeal his return to probationary status in the spring of 1996. Accordingly, the Commissioner

dismissed the appeal as untimely and for failure to exhaust administrative remedies.

                 At the district court, Tijerina complained that the Commissioner should have exercised

jurisdiction over his causes of action. He insisted that Harlandale ISD had no authority to return him

to probationary status without giving him notice that the school district intended to discharge him

from his continuing contract and obtaining his written consent for the return to probationary status.

See Tex. Educ. Code Ann. § 21.106. He contended that he was not aggrieved until he was treated

like a probationary employee—i.e., when he was fired without a hearing. The district court affirmed

the dismissal.


                                            DISCUSSION

                 On appeal, Tijerina contends that the Commissioner and the district court erred in

dismissing his appeal based upon an inaccurate reading of his pleadings, and thereby denied

jurisdiction unlawfully and without substantial evidence. In conducting a substantial-evidence review,

we determine whether the evidence as a whole is such that reasonable minds could have reached the

same conclusion as the agency in the disputed action. See Texas Educ. Agency v. Goodrich Indep.

                                                   3
Sch. Dist., 898 S.W.2d 954, 957 (Tex. App.—Austin 1995, writ denied). We may not substitute our

judgment for that of the agency and may only consider the record on which the agency based its

decision. See id.; State v. Public Util. Comm’n, 883 S.W.2d 190, 203 (Tex. 1994). The true test is

not whether the agency reached the correct conclusion, but whether some reasonable basis exists in

the record for the action taken by the agency. Public Util. Comm’n, 883 S.W.2d at 204. The

findings, inferences, conclusions, and decisions of an administrative agency are presumed to be

supported by substantial evidence, and the burden is on the contestant to prove otherwise. Id.


Timeliness of Appeal

               Tijerina was employed as a teacher under a continuing contract for the school year

1995-95. The Education Code governs how a teacher’s continuing contract may be terminated:


       Each teacher employed under a continuing contract is entitled to continue in the
       teacher’s position or a position with the school district for future school years without
       the necessity for annual nomination or reappointment until the person:

       (1) resigns;

       (2) retires under the Teacher Retirement System of Texas;

       (3) is released from employment by the school district at the end of a school year
           because of necessary reduction of personnel as provided by Section 21.157;

       (4) is discharged for good cause as defined by Section 21.156 and in accordance
           with the procedures provided by this chapter;

       (5) is discharged for a reason stated in the teacher’s contract that existed on or
           before September 1, 1995, and in accordance with the procedures prescribed by
           this chapter; or

       (6) is returned to probationary status, as authorized by Section 21.106.



                                                  4
Tex. Educ. Code Ann. § 21.154 (emphasis added).

               Appellees concede that Tijerina was employed under a continuing contract through

the spring of 1996. There is no evidence that Tijerina retired or resigned or was released or

discharged; thus, under the statute, he remained under his continuing contract unless he was properly

returned to probationary status. See id. § 21.154. Section 21.106 provides that a school district and

its teacher must take affirmative steps before a teacher employed under a continuing contract may

be returned to probationary status:


       (a) In lieu of discharging a teacher employed under a continuing contract,
           terminating a teacher employed under a term contract, or not renewing a
           teacher’s term contract, a school district may, with the written consent of the
           teacher, return the teacher to probationary contract status.

       (b) A teacher may agree to be returned to probationary contract status only after
           receiving written notice of the proposed discharge, termination, or nonrenewal.


Id. § 21.106 (emphasis added).

               There is no evidence in the record that Harlandale ISD fulfilled the requirements to

return Tijerina to probationary status. Tijerina undisputedly received a contract that demonstrated

Harlandale ISD’s desire to return him to probationary status, but there is no evidence that, as required

by statute, that he was given written notice of an intent to terminate his continuing contract status or

that after the notice he consented in writing to return to probationary status. See id. § 21.106(a).

Appellees argue that Tijerina’s admission that the contract offered him for his administrative position

was entitled “probationary contract,” coupled with his acceptance and performance of the personnel

job, show that he accepted probationary status. At the trial court, when asked if Tijerina was given



                                                   5
a probationary contract, his counsel responded, “I will just tell you that it was a mistake, okay? It

was an error, but it happened.” Nowhere is there evidence or an admission that Tijerina received

notice of discharge from his continuing contract or consented in writing to return to probationary

status. His acceptance and performance of the personnel job are distinct from his acceptance of

probationary status and are no substitute for the statutory requirements enacted to protect continuing

teachers. Tijerina did not need to accept probationary status in order to assume new duties; section

21.154 provides that, under a continuing contract, a person is “entitled to continue in the teacher’s

position or a position with the school district for future school years without the necessity for annual

nomination or reappointment until [the person] . . . is returned to probationary status,” which, under

section 21.106, happens only “with the written consent of the teacher.” See id. §§ 21.106 & 21.154.

Absent evidence that Tijerina was given notice that his continuing contract would be terminated and

that he consented in writing to return to probationary status, the presumption is that even in his new

personnel position he remained on a continuing contract through the spring of 1997.

               The Commissioner’s conclusion that Tijerina’s petition was a belated challenge to a

1996 change in his contractual status from continuing to probationary is based on the premise that

Tijerina’s contractual status actually changed in the spring of 1996. That premise is not supported

by substantial evidence. Because there is no proof in the record that Tijerina received notice of

termination or consented in writing to return to probationary status, his challenge must be treated as

a challenge to his dismissal without the procedural safeguards accorded teachers under continuing

contracts. His failure to challenge Harlandale ISD’s attempt to change his status to a probationary

contract in 1996 is accordingly irrelevant on the record provided.



                                                   6
               Harlandale ISD asserts that the fact that Tijerina invoked the Commissioner’s appellate

jurisdiction under Education Code section 7.057 demonstrates that he was contesting the award of

rather than the nonrenewal of a probationary contract. Section 7.057 permits appeal to the

Commissioner by people aggrieved by school board actions that violate the school laws of the State,

but it expressly does not apply to appeals of decisions to terminate a teacher’s continuing contract.

See id. §§ 7.057(a)(2)(A), 7.057(e). A separate statutory scheme authorizes appeals to the

Commissioner by teachers who have had their continuing contract terminated at any time or their

probationary or term contract terminated before the end of the term. See id. §§ 21.251(a) & 21.301.

This separate scheme, however, never applies to decisions to terminate employment at the end of a

probationary contract,2 nor does it apply to decisions not to renew a term contract unless the school

board has decided to use the same hearing process as for terminating continuing contracts. See id.

§ 21.251(b). On the record presented, we cannot draw any conclusion from Tijerina’s choice of

enabling statutes to invoke jurisdiction. Section 21.301 governs termination of continuing contracts,

but it is triggered by the announcement of a decision under the hearings process appropriate to

terminating continuing contracts. See id. §§ 21.251, 21.259 & 21.301. We find no indication in the

record that Harlandale ISD held a hearing regarding termination of Tijerina’s continuing contract.

Regardless, invocation of jurisdiction under the statute generally authorizing appeals to the

Commissioner for violations of school law by a school board does not control the nature of Tijerina’s

claim.




         2
         In fact, a school board’s decision not to renew a probationary contract is final and not
appealable. See Tex. Educ. Code § 21.103 (West Supp. 2002).

                                                 7
Exhaustion of Remedies

                The district court also affirmed the Commissioner’s conclusion that Tijerina failed to

exhaust his administrative remedies. The Commissioner’s conclusion is based on the premise that the

event appealed from is the 1996 reversion to probationary status; he concluded that the failure to

appeal that probationary contract to the school district board in 1996 constituted a failure to exhaust

his remedies. Because we conclude that the record does not support the conclusion that Tijerina

accepted in writing, as required, a return to probationary status in 1996, we also conclude that the

record does not support the conclusion that Tijerina failed to exhaust his administrative remedies.

                We note that the Commissioner’s attorney remarked in the district court that Tijerina

failed to file a grievance with the school board in 1997 as well. As this assertion does not appear in

the administrative record and did not form the basis of the Commissioner’s decision, it does not affect

our decision.


                                          CONCLUSION

                Further proceedings may reveal evidence that Tijerina consented in writing to a return

to probationary status, or that Tijerina failed to exhaust his administrative remedies in 1996 or 1997.

Dismissal of this action may then be appropriate. Our reversal of the judgment is based on the current

state of the pleadings and the record before us.

                We conclude that the district court erred by affirming the Commissioner’s dismissal

of this petition for review. We remand the cause to the Commissioner for further proceedings.




                                                   8
                                            Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justice B. A. Smith and Yeakel

Reversed and Remanded

Filed: April 18, 2002

Publish




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