Opinion issued August 20, 2019




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-18-00349-CV
                         ———————————
       HOUSTON COMMUNITY COLLEGE SYSTEMS, Appellant
                                   V.
    TEXAS WORKFORCE COMMISSION AND SABRINA Y. LEWIS,
                       Appellees


                 On Appeal from the 151st District Court
                          Harris County, Texas
                    Trial Court Case No. 2016-52796


                       MEMORANDUM OPINION

     Houston Community College Systems (HCC) appeals the trial court’s

summary judgment affirming the Texas Workforce Commission’s (TWC)

determination that appellee Sabrina Y. Lewis was entitled to unemployment
benefits. On appeal, HCC contends that a procedural error during the administrative

appeals process requires reversal of the TWC determination.

      We affirm.

                                   Background

      Appellee Sabrina Y. Lewis began working for HCC in 1992. In September

2015, Lewis confronted a subordinate and informed her that she would be placed on

a performance improvement plan. Lewis maintains that she called campus police

after the subordinate began yelling and disrupting the office. HCC in turn contends

that Lewis yelled and behaved inappropriately, in violation of its policies. HCC put

Lewis on administrative leave, and she engaged an attorney. HCC terminated

Lewis’s employment in early October 2015.

      Lewis filed a claim for unemployment benefits, which was allowed by TWC,

and HCC appealed. TWC sent Lewis a notice of hearing, which informed her that

an appeal tribunal hearing was scheduled for January 5, 2016. Lewis wanted her

previously-engaged attorney to represent her at the TWC appeal tribunal hearing,

but the attorney was out of the country and would not return before January 5. Both

Lewis and HCC requested that the hearing be postponed. The hearing officer denied

both requests.

      On January 5, 2016, the hearing was conducted by telephone. Lewis called in,

and she was sworn as a witness. After answering several undisputed background


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questions, she declined to participate further because her attorney had previously

advised her not to discuss her employment termination. The hearing officer asked if

she was going to participate and informed her that if she stayed on the phone call,

he would “deem that as a participation.” Lewis disconnected. The hearing officer

conducted the remainder of the hearing without Lewis, accepting evidence from

HCC. Based on HCC’s evidence, the appeal tribunal concluded that Lewis’s actions

constituted misconduct and that she was disqualified from receiving unemployment

benefits.1

      Lewis’s attorney requested a new hearing, asserting that Lewis had good

cause for her failure to appear because the attorney was out of the country. She also

asserted that a new hearing would be “fair” because only HCC’s “one-sided

evidence” was considered by TWC in making its determination. A different hearing

officer conducted a hearing, determined that the unavailability of Lewis’s attorney

was good cause for her nonappearance, reopened the hearing, and received evidence.

After the hearing, the appeal tribunal concluded that the evidence did not prove the

“alleged misconduct” and that Lewis was entitled to unemployment benefits.


1
      “An individual is disqualified for benefits if the individual was discharged for
      misconduct connected with the individual’s last work.” TEX. LAB. CODE § 207.044.
      “‘Misconduct’ means mismanagement of a position of employment by action or
      inaction, neglect that jeopardizes the life or property of another, intentional
      wrongdoing or malfeasance, intentional violation of a law, or violation of a policy
      or rule adopted to ensure the orderly work and the safety of employees.” Id.
      § 201.012.
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      HCC initiated a further administrative appeal, and the TWC upheld the appeal

tribunal’s determination. Having exhausted its administrative remedies, HCC

appealed to the district court for de novo review. In the trial court, HCC moved for

summary judgment, arguing that the hearing examiner erred by reopening the

hearing because Lewis initially made an appearance during the January telephone

hearing. HCC asserted that this error required a reversal and reinstatement of the

initial “no benefits” determination made after the January appeal tribunal hearing.

Lewis moved for summary judgment on the ground that the TWC’s final decision

that she was entitled to unemployment benefits was supported by substantial

evidence. The trial court granted Lewis’s summary judgment motion and denied

HCC’s motion. HCC appealed.

                                      Analysis

      In its brief, HCC states four issues challenging the trial court’s rulings on the

motions for summary judgment. Its argument, however, centers entirely on the

alleged procedural error of reopening the administrative appeal hearing.2



2
      HCC’s stated issues are:

         (1) Whether the trial court erred in denying HCC’s Motion for Summary
             Judgment.

         (2) Whether the trial court erred in granting the Motion for Summary
             Judgment filed by the TWC and Lewis and entering a final judgment
             in their favor.

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      We review de novo the trial court’s ruling on a motion for summary judgment.

Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018).

Each party moving for traditional summary judgment bears the burden of showing

that no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); see Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). “When opposing parties file counter

motions for summary judgment and the trial court grants one motion and denies the

other, the appellate court has jurisdiction to determine all questions presented in the

opposing motions and to render the judgment the trial court should have rendered.”

Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d 50, 59 (Tex. 2011).

      HCC contends that the trial court erred by denying its motion for summary

judgment because the agency should not have reopened the hearing and permitted

Lewis to introduce evidence. The Texas Labor Code authorizes judicial review when




          (3) Whether the trial court erred in implicitly finding that Lewis did not
              “appear” at the TWC appeal hearing on January 5, 2016, despite the
              fact that she called in to the hearing, was sworn in as a witness by the
              TWC hearing officer, and provided sworn testimony to the TWC
              hearing officer.

          (4) Whether the trial court erred in implicitly finding that Lewis could
              petition the TWC to re-open the administrative record on the grounds
              that she did not “appear” at the TWC appeal hearing on January 5,
              2016, despite the fact that she called in to the hearing, was sworn in
              as a witness by the TWC hearing officer, and provided sworn
              testimony to the TWC hearing officer.

                                             5
a party is “aggrieved by a final decision of the commission.” TEX. LAB. CODE

§ 212.201. “The decision of an appeal tribunal is the final decision of the

commission unless further appeal is initiated . . . .” Id. § 212.104 (emphasis added).

After the second hearing examiner decided to reopen the hearing, Lewis presented

evidence, and the appeal tribunal determined that she was entitled to unemployment

benefits. HCC promptly initiated a further appeal. The decision to reopen the hearing

was not a final decision; rather, it was an interlocutory decision to permit Lewis to

present evidence. This determination is not a “final decision of the commission,”

and it is not subject to judicial review. See id. § 212.201. We overrule HCC’s first,

third, and fourth issues.

      HCC’s second issue asserts that the trial court erred by granting summary

judgment in favor of Lewis and the TWC. HCC made no substantive argument on

appeal regarding whether the TWC’s determination was supported by substantial

evidence. To the extent that HCC intended to challenge the final decision of the

commission that Lewis was entitled to unemployment benefits, the issue is

inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear

and concise argument for the contentions made, with appropriate citations to

authorities and the record.”). We overrule HCC’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.


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                                           Peter Kelly
                                           Justice

Panel consists of Justices Keyes, Kelly, and Goodman.




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