                                                                                         ACCEPTED
                                                                                    05-14-01165-CV
                                                                          FIFTH COURT OF APPEALS
                                                                                   DALLAS, TEXAS
                                                                               4/13/2015 4:02:52 PM
                                                                                         LISA MATZ
                                                                                             CLERK




                                                                                                           5th Court of Appeals
                                                                                                            FILED: 4/13/15
                                                                                        Lisa Matz, Clerk
                             NO. 05-14-01165-CV

                    IN THE COURT OF APPEALS
                FOR THE FIFTH DISTRICT OF TEXAS
                        AT DALLAS, TEXAS
__________________________________________________________________
                      SYLVIA ORTIZ, Appellant

                                      v.

       COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee
 and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant
__________________________________________________________________
          On Appeal from the 429th District Court, Collin County,
               Texas Trial Court Cause No. 429-00459-2014
__________________________________________________________________

    APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’
           RESPONSE TO BRIEF OF APPELLANT ORTIZ
                               AND
     RESPONSE TO BRIEF OF CROSS-APPELLANT PLANO I.S.D.
__________________________________________________________________

KEN PAXTON                                 ROBIN SANDERS
Attorney General of Texas                  Assistant Attorney General
                                           Texas Bar No. 09310900
CHARLES E. ROY                             Office of the Texas Attorney General
First Assistant Attorney General           Administrative Law Division
                                           P. O. Box 12548
JAME E. DAVIS                              Austin TX 78711-2548
Deputy Attorney General for Defense        Phone: (512) 475-4005
Litigation                                 Fax: (512) 320-0167
                                           robin.sanders@texasattorneygeneral.gov
DAVID A. TALBOT, JR.
Chief, Administrative Law Division

             COUNSEL FOR APPELLEE/CROSS-APPELLEE
                 COMMISSIONER OF EDUCATION

                  ORAL ARGUMENT NOT REQUESTED
                                       TABLE OF CONTENTS


TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF CASE ....................................................................................... vii

STATEMENT REGARDING ORAL AGRUMENT ............................................ vii

ISSUES PRESENTED........................................................................................... viii

STATEMENT OF FACTS ........................................................................................2

STANDARD OF REVIEW .......................................................................................2

COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”...........................4

  A.      Grounds rejected by the Commissioner ........................................................4

          1.     Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s
                 cross-issues 1 and 2) ..............................................................................5

          2.     Waiver by offer of new term contract (Ortiz’s issues 1 and 3,
                 Plano cross-issues 1 and 3)....................................................................9

          3.     Absolute privilege for statements in judicial proceeding
                 (Ortiz’s issues 1 – 3, Plano’s cross-issue 4): .......................................13

          4.     Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3,
                 Plano’s cross-issue 6) ..........................................................................15

                 a.       The investigative reports ...........................................................15

                 b.       The hearsay contained within the investigative reports ............17

                 c.       Expert Issues .............................................................................18


                                                         ii
         5.     Allegations without supporting factual findings (Plano’s
                cross-issue 5) .......................................................................................20

         6.     Summary of Response to Plano I.S.D. ................................................20

  B.     Grounds accepted by the Commissioner .....................................................21

         1.     The March 23, 2012, agreement (Ortiz’s issues 1, 4) .........................22

         2.     Ortiz’s recorded communications with student (Ortiz’s issue 1) ........23

CONCLUSION AND PRAYER .............................................................................24

CERTIFICATE OF COMPLIANCE .......................................................................26

CERTIFICATE OF SERVICE ................................................................................26




                                                         iii
                                     TABLE OF AUTHORITIES

Cases

Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 729 (S.D. Tex. 2013) ......2, 22

Auto Convoy v. R.R. Comm’n, 507 S.W.2d 718 (Tex. 1974) ....................................4

Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .........................................................14

Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307 (Tex. App.—Houston
      [1st Dist.] 2000, no pet.) ......................................................................... 2, 3, 4

First Sw. Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App.—
       Texarkana 1989, writ denied) ........................................................................17

Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989) .............................16

Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56 (Tex. App.—
     Houston [14th Dist.] 2004, no pet.) ...............................................................19

Grigsby v. Moses, 31 S.W.3d 747 (Tex. App.—Austin 2000, no pet.) ...................13

Guerra v. Santa Rosa Indep. Sch. Dist., 241 S.W.3d 594 (Tex. App.—
     Corpus Christi, 2007, pet. denied) ...................................................................8

Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl.
      Standards, 393 S.W.3d 417 (Tex. App.—Austin, 2012, pet. denied). ............3

Hernandez v. Hayes, 931 S.W.2d 648 (Tex. App.—Houston [1st Dist.]
     1998, pet. denied) ..........................................................................................14

James v. Brown, 637 S.W.2d 914 (Tex. 1982) ........................................................14

Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.]
      1998, pet denied) ...........................................................................................14

Matthews v. Scott, 268 S.W.3d 162 (Tex. App. –Corpus Christi 2008,
     no pet.) .............................................................................................. 2, 3, 5, 21

                                                          iv
Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) ........... 3, 4, 20

Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993) ...................................16

Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491 (Tex. 1988).............7

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) ............................14

SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995) ............................6

Tex. Alcoholic Beverage Comm’n v. Twenty Wings, Ltd., 112 S.W.3d 647
      (Tex. App.—Fort Worth 2003, rev. denied) ...................................................3

Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc.,
      665 S.W.2d 446 (Tex. 1984) ............................................................ 2, 3, 5, 21

Tex. State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114
      (Tex. 1988), cert. denied, 490 U.S. 1080, 109 S. Ct. 2100 (1989) .............2, 3


Statutes

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g ..............................6

Tex. Educ. Code § 11.1513 ......................................................................................12

Tex. Educ. Code § 21.204 ........................................................................................12

Tex. Educ. Code § 21.256 (d) ..................................................................................15

Tex. Educ. Code § 21.256 (e) ..................................................................................15

Tex. Educ. Code § 21.257(a)(2)(a-1) .......................................................................19

Tex. Educ. Code § 21.307 (e) ..............................................................................2, 22

Tex. Educ. Code § 21.307 (f) .....................................................................................3

Tex. Educ. Code § 21.307 (g) ......................................................................... 3, 5, 21


                                                        v
Rules

Tex. R. Civ. 702 ................................................................................................ 18, 19

Tex. R. Civ. Pro. 45 ...................................................................................................9

Tex. R. Evid. 803 (6)................................................................................................15

Tex. R. Evid. 803 (8)................................................................................................15

Tex. R. Evid. 805 .....................................................................................................17


Commissioners' Decision

Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203
      (Comm’r Educ. 2004) ..................................................................................8, 9

Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099
     (Comm’r Educ. 1999) ......................................................................................6

Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703
     (Comm’r Educ. 2003) ....................................................................................10

Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598
      (Comm’r Educ. 1998) ......................................................................................6




                                                           vi
                             STATEMENT OF CASE

      Commissioner Williams agrees with Appellant Ortiz’s statement of the

procedural history of the case.

              STATEMENT REGARDING ORAL AGRUMENT

      Commissioner Williams believes the issues presented by this case are

controlled by settled principles of law and that oral argument would not be of

significant benefit to the court. Accordingly, the Commissioner does not request

oral argument.




                                      vii
                                ISSUE PRESENTED

Whether substantial evidence supports Plano Board of Trustees’ decision, as

affirmed by the independent hearing officer, the Commission of Education and the

district court, to terminate appellant Ortiz’s teaching contract.




                                          viii
                              NO. 05-14-01165-CV

                    IN THE COURT OF APPEALS
                FOR THE FIFTH DISTRICT OF TEXAS
                        AT DALLAS, TEXAS
__________________________________________________________________

                           SYLVIA ORTIZ, Appellant

                                            v.

       COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee
 and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant
__________________________________________________________________

          On Appeal from the 429th District Court, Collin County,
               Texas Trial Court Cause No. 429-00459-2014
__________________________________________________________________

     APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’
                  RESPONSE TO BRIEFS OF
     APPELLANT ORTIZ AND CROSS-APPELLANT PLANO I.S.D.

      COMES NOW Michael Williams, State Commissioner of Education (‘the

Commissioner”), by and through his attorney of record Ken Paxton, Attorney

General of Texas, and the undersigned Assistant Attorney General, and files his brief

in response to the briefs filed by Appellant Ortiz and Cross-appellant Plano

Independent School District. For the reasons set forth herein, the Commissioner

respectfully requests that this court affirm the trial court’s decision affirming

termination of Ortiz’s teaching contract.




                                            1
                                     STATEMENT OF FACTS

        Commissioner Williams agrees with Appellee/Cross-appellant Plano

Independent School District’s statement of facts.

                                     STANDARD OF REVIEW

        The substantial evidence rule governs this court’s review of the

Commissioner’s decision.               Tex. Educ. Code § 21.307 (e).                     Under substantial

evidence review, the court is not allowed to substitute its judgment for that of the

Commissioner Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665

S.W.2d 446 (Tex. 1984); Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307

(Tex. App.—Houston [1st Dist.] 2000, no pet.). Instead, the court’s task is to

consider whether the evidence as a whole1 is such that reasonable minds could have

reached the same conclusion as the Commissioner.                             Tex. State Bd. of Dental

Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S.

1080, 109 S. Ct. 2100 (1989); Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App. –

Corpus Christi 2008, no pet.); Farris, 27 S.W.3d at 311. The evidence may

preponderate against the agency’s decision but still amount to substantial evidence.

Matthews, 268 S.W.3d at 172. Substantial evidence required to support the agency’s

decision need only be more than a scintilla. Tex. Alcoholic Beverage Comm’n v.


1
     The court is limited to consideration of the administrative record from the proceedings below. Tex. Ed. Code
§ 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 729, 740-41 (S.D. Tex. 2013) (reviewing court may
not receive evidence outside the administrative record).


                                                        2
Twenty Wings, Ltd., 112 S.W.3d 647, 650 (Tex. App.—Fort Worth 2003, pet.

denied).

        Reversal of the administrative decision is allowed only if the decision is not

supported by substantial evidence or the Commissioner’s conclusions of law are

erroneous. Id., Tex. Educ. Code § 21.307 (f); Montgomery Indep. Sch. Dist. v. Davis,

34 S.W.3d 559, 562 (Tex. 2000).                      Even if the court determines that the

commissioner’s decision is based on an error or a procedural irregularity, reversal is

allowed only if the court determines that the irregularity or error likely led to an

erroneous decision. Id., § 21.307 (g); Charter Med.-Dall. Inc., 665 S.W.2d at 452;

Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if conclusion

is correct). Courts are hesitant to disturb the findings of the Commissioner in areas

in which he enjoys considerable authority and expertise. Id.

        The party seeking to disturb the Commissioner’s decision bears the burden of

demonstrating the absence of substantial evidence. Sizemore, 759 S.W.2d at 116;

Matthews, 268 S.W.3d at 172. This burden is a heavy one,2 not met merely by a

showing that the evidence preponderates in favor of the appealing party. Charter

Med.-Dall., Inc., 665, S.W.2d at 452; Farris, 27 S.W.3d at 311-312. If substantial

evidence would support either decision, the agency’s decision will be upheld. Auto



2
   Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Standards, 393 S.W.3d 417, 424 (Tex.
App.—Austin, 2012, pet. denied).


                                                     3
Convoy v. R.R. Comm’n, 507 S.W.2d 718, 722 (Tex. 1974); Farris, 27 S.W.3d at

312. The factfinder—here the hearing examiner—is the sole judge of witnesses’

credibility and the weight to be given their testimony, and is free to resolve any

inconsistencies in the testimony presented.                           Montgomery Indep. Sch. Dist., 34

S.W.3d at 567.

           COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”

           A.       Grounds rejected by the Commissioner

           The Commissioner of Education and Plano Independent School District agree

that good cause supports the district’s decision to terminate Ortiz. Nonetheless,

Plano insists that several elements of the Commissioner’s decision require correction

because they are either not supported by substantial evidence or constitute errors of

law. The grounds the Commissioner rejected included: absence of sufficient notice

to Ortiz; district waiver by entering into a new term contract; absolute privilege for

statements Ortiz made in the course of judicial proceedings; erroneous evidentiary

rulings by the independent hearing examiner;3 and allegations not supported by the

hearing examiner’s factual findings.




3
    These include erroneous admission of the district’s investigative reports, expert reports and testimony, and hearsay.

                                                            4
        The exercise of parsing the Commissioner’s basis for affirming Ortiz’s

termination is of limited value, at best. Even if the court determines that the

commissioner’s decision was based on a legal error or a procedural irregularity,

reversal is allowed only if the court determines that the irregularity or error likely

led to an erroneous decision. Id., § 21.307 (g); Charter Med.-Dall., Inc., 665, S.W.2d

at 452; Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if

conclusion is correct). That is, if Ortiz’s termination was appropriate on the record

as a whole, any legal errors the Commissioner made are irrelevant to the outcome of

this appeal.

        Nonetheless, because these issues form a substantial portion of points raised

by both appellant Ortiz and cross-appellant Plano, the Commissioner’s alleged errors

raised by Plano will be addressed in sections 1-5, infra.

        1.       Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s cross-
                 issues 1 and 2)

        The Commissioner determined that the district failed to provide Ortiz

adequate notice of several of the allegations upon which Plano seeks to rely to

establish good cause.               R.R. 3, 176-78, 130-32.4                   Plano contends that the

Commissioner erred in finding that the following allegations were inadequately


4
     “R.R.” refers to Reporter’s Record volume. The page numbers following refer to the Adobe Reader page numbers
in which the reference is found.
     In contrast, “R.R. Pt. ___” refers to one of the six (6) parts compromising Reporter’s Record, Exhibit 11. Thus
reference to those documents will be “R.R. Pt. ___, [Adobe Reader page reference].”

                                                         5
noticed: Ortiz’s insubordination during interactions with her principal; Ortiz’s

unprofessional email correspondence with a parent/vice principal; and Ortiz’s

FERPA violations.5 Plano’s Brief, 64-68.

        Ortiz actually received two notice of termination letters from the district. R.R.

Pt. 3, 158-167, 173-182. The letters, which purported to contain (by reference to

their attachments) the basis for Ortiz’s proposed termination, focused on conduct or

behaviors other than insubordination, the unprofessional emails and the FERPA

violations. Id. Though both letters included the Melton and AL&L reports by

reference, those reports likewise failed to address the issues of insubordination,

unprofessional emails and FERPA violations. R.R. Pt. 1, 313-324, 402-426. The

Commissioner held that, absent notice of these alleged violations, they could not

constitute “good cause” for her termination. R.R. 3, 176-78, 130-32.

        In an appeal to the Commission, a letter of proposed termination is treated as

a pleading. Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099 (Comm’r

Educ. 1999), Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598 (Comm’r

Educ. 1998). Texas law requires that a pleading provide enough facts to allow a

party fair and adequate notice of the claims involved and the ability to prepare a

defense. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995).




5
    “FERPA” is the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

                                                      6
Apparently conceding that these events—insubordination, unprofessional emails

and FERPA violations-- were not directly referenced in either of the district’s notice

letters to s, P.I.S.D. nonetheless argues that notice was adequate.

        First, P.I.S.D. argues that, because Ortiz failed to specially except to the

pleadings, defects are waived. Plano’s Brief at 64-65, 67. While it is true that special

exceptions are required to challenge the sufficiency of a pleading, the Commissioner

does not contend that the pleadings—here, the notice letters—are insufficient to

support good cause.6 Instead, the Commissioner contends that the letters are

insufficient to alert a reasonable person that the alleged insubordination,

inappropriate communication with a parent and FERPA violations are part of the

district’s factual basis for good cause. R.R. 3, 176-78, 130-32. The purpose of the

fair notice requirement is to provide the opposing party with sufficient information

to enable him to prepare a defense. Paramount Pipe & Supply Co., Inc. v. Muhr,

749 S.W.2d 491, 494 (Tex. 1988). It is contrary to logic to suggest that an individual

is required to specially except to the exclusion of any conceivable misdeeds from the

allegations against him.

        Second, Plano argues that notice of the factual basis for good cause is not

required. Plano’s Brief at 65. In 2007, the Corpus Christi Court of Appeals stated




6
    Texas Rule 45 describes this as “fair notice of the claim involved.”

                                                          7
that the district’s notice need not contain a recitation of good cause. Guerra v. Santa

Rosa Indep. Sch. Dist., 241 S.W.3d 594, 603-04 (Tex. App.—Corpus Christi, 2007,

pet. denied). The court did not address notice requirements when an educator

requests a due process hearing, nor did the court address the application of Rule 45

notice pleading requirements to that proceeding. Guerra, 241 S.W.3d at 604, n. 7.

      In Guerra, the district made no effort to include incidents of good cause in its

notice; instead, it simply directed the superintendent to submit his resignation.

Guerra, 241 S.W.3d at 603. Therefore, the facts of Guerra stand in sharp contrast

to the circumstances presented here, in which the Ortiz was provided two notice

letters, both with lengthy attachments. R.R. Pt. 3, 158-167, 173-182; R.R. Pt. 1, 313-

324, 402-426. Indeed, the April 3, 2013, letter stated that the Board proposed to

terminate Ortiz’s employment “based upon the reasons outlined in the attached

letter.” R.R. Pt. 3, 158. Even if the facts or behaviors constituting good cause need

not be identified in the notice letter, if facts or behaviors are identified in the notice,

fairness demands that the identification be complete.

      Further, Plano argues that any deficiency in the notice letters was cured by

inclusion of the (insufficiently noticed) allegations in the district’s pre-hearing

discovery responses and expert reports. Plano’s Brief at 66. Fort Worth Indep. Sch.

Dist. v. Edmon, the case upon which Plano relies to establish that discovery is an

adequate substitute for notice, is a hearing examiner opinion of no precedential

                                            8
value. Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203 (2004).

The Commissioner has not adopted the view that information exchanged in

discovery is an adequate substitute for notice.

        Finally, Plano argues that the district did, in fact, provide Ortiz adequate

notice of the facts supporting her termination. Plano’s Brief at 66-67. Plano explains

that its notice was sufficient because, using insubordination as an example, the May

7 letter incorporates by reference the AL&L report, which, in turn, incorporates the

Parks report, which addresses the alleged insubordination. Id. It is the

Commissioner’s judgment that such multi-layered incorporation by reference is not

the “plain and concise language” required by Rule 45 and that Plano’s construction

is inconsistent with the requirement that “pleadings shall be construed so as to do

substantial justice.” Tex. R. Civ. P. 45.

        2.       Waiver by offer of new term contract (Ortiz’s issues 1 and 3, Plano
                 cross-issues 1 and 3)

        Even if Ortiz had received sufficient notice of alleged insubordination toward

Principal Gober, unprofessional emails and FERPA violations, the district waived

these grounds by offering Ortiz a new term contract after it was aware of these

alleged acts of misconduct. 7 R.R. 3, 178-81, 132-35. Generally, a school district


7
 The Commissioner observes that the inappropriate emails to the parent/vice-principal, which were directly copied to
two high school principals and two vice-principals, “were so inappropriately venomous that they alone could have
served as the basis for disciplinary action against [Ortiz].” R.R. 3, 180, 134. The email exchange between
parent/administrator and teacher may be found at R.R. Pt. 1, 150-53.

                                                         9
cannot take action against a teacher’s contract for his or her conduct in a prior school

year because the district has waived the ability to complain by offering the teacher a

new contract. Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703

(Comm’r Educ. 2003). The presumption of waiver is particularly strong in cases

involving term contracts (as opposed to continuing contracts), like Plano’s contract

with Ortiz.8 Id.

         In this case, the misbehaviors to which waiver applies all occurred well in

advance of the district’s April 2012 offer of a term contract renewal. The first

FERPA violation occurred in September 2010 (R.R. 3, 180-81, 134-35); the acts of

insubordination toward Gober occurred between October 2011 and January 2012

(Id., 179, 133), and the second FERPA violation (Id., 181, 135) and inappropriate

communication with the parent/vice-principal occurred in February 2012. Id., 180,

134; R.R. Pt. 1, 150-53. Several of Ortiz’s administrators were either directly

involved in the events or became aware of them, yet they took no disciplinary or

remedial action against Ortiz. R.R. 3, 179, 133.

         Plano seeks to avail itself of an exception to the presumption of waiver that

applies when, at the time of the contract renewal, a district has started but not



8
     Plano attempts to use Goodfriend to its advantage by extracting its reference to contracts of more than one year
presenting a weaker case for waiver. Plano’s Brief at 68, n. 6. Plano’s attempt is unavailing and its reference
misleading. The language upon which Plano relies is, in full: “[I]f the term of the contract is for greater than one year
and the district, therefore, does not offer the teacher a new contract, there is a weaker case for waiver.” Goodfriend
at 3 (emphasis supplied).
                                                          10
completed an investigation. Plano’s Brief, 68-69. However, this exception is not

available to Plano on the facts presented. The investigation underway at the time of

Ortiz’s contract renewal, the Parks investigation, was aimed at investigating Ortiz’s

allegations against Gober, not vice versa. R.R. 3, 179-80, 133-34. The district took

no action to investigate Ortiz until after her contract renewal in April 2012 (and her

district court filing against the district and Gober in May 2012). Id.; R.R. Pt. 2, 269-

285.

        Plano also suggests that the ex parte temporary restraining order Ortiz

obtained against the district, because it prohibited “adverse action” against Ortiz,

prevented it from non-renewing her contact. Plano Brief, 69. However, this

argument ignores the fact that renewal of Ortiz’s contract occurred before entry of

the TRO; the contract extension occurred on April 17, 2012 (R.R. 3, 179, 133) and

the temporary restraining order was entered the following month. R.R. Pt. 3, 154-

55. It was actually Ortiz’s obtaining a TRO against the district in mid-May 2012

that seemed to turn9 the investigation from Ortiz’s allegations against Gober to the

district’s allegations against Ortiz. R.R. 3, 186, 140.

        Finally, Plano argues that waiver should not apply to Ortiz’s pre-April 2012

misdeeds because the district’s superintendent and/or board of trustees were not




9
    The Commissioner’s decision describes this change of emphasis following the temporary restraining order as a
    “pivot.” R.R. 3, 186, 140.
                                                      11
aware of them at the time of renewal. Plano’s Brief, 68-69. The administrative

record offers no factual support for this notion, and Plano’s brief offers no legal

support of it. While, ultimately, the district superintendent makes employment

recommendations (Tex. Educ. Code § 11.1513) and the board approves term

contracts (Tex. Educ. Code §21.204), campus managers—principals and assistant

principals—are first-line supervisors who make employment recommendations for

their professional staff. Indeed, in a district the size of Plano,10 common sense

compels the conclusion that input from campus managers is essential to employment

decisions.

         In this case, prior to the renewal of her contract, Ortiz’s insubordination,

unprofessional emails and FERPA violations were well-known to district managers.

R.R. 3, 178-181, 132-135. Her insubordination was, of course, known to her

principal, Courtney Gober, to whom she was insubordinate. Id. Her unprofessional

emails with a parent were known to her campus administrators, to the parent (who

was a vice principal at another campus) and to other campus administrators where

the parent worked. Id. Finally, Principal Gober knew of two of Ortiz’s FERPA

violations, and administrators at the other campus knew of one. Id.




10
     According to the district website, http://pisd.edu/schools, the district has 70 schools, 7,000 employees and over
     55,000 students.
                                                         12
      In the instant case, a teacher with two years remaining on her contract was

offered an extension of an additional year (Plano’s Brief, 68, n. 6) months after her

campus managers had direct knowledge of her inappropriate behaviors.                This

situation presents a prototypical example of waiver. See Grigsby v. Moses, 31

S.W.3d 747, 749-50 (Tex. App.—Austin 2000, no pet.) (waiver occurs when the

party possessing the right relinquishes it, acts in a manner inconsistent with an intent

to claim it, or fails to act in a manner consistent with an intent to claim it). The

Commissioner      correctly    determined    that   allegations   of   insubordination,

inappropriate communication with a parent and FERPA violations were allegations

the district waived by renewing Ortiz’s contract in April 2012. R.R. 3, 178-181,

132-135.

      3.     Absolute privilege for statements in judicial proceeding (Ortiz’s issues
             1 – 3, Plano’s cross-issue 4):

      In its second notice letter, dated May 8, 2012, the district notified Ortiz that it

intended to use discrepancies in statements she had made under oath in her lawsuit

to demonstrate that she had violated board policies by lying. R.R. Pt. 2, 254-64. The

hearing examiner found that the district’s evidence on this issue demonstrated a

number of violations, including but not limited to false statement and falsifying

records. R.R. Pt. 3, 979-80.

      However, the Commissioner correctly held that the hearing examiner

improperly admitted this evidence. A person enjoys an absolute privilege for
                                            13
communications made during a judicial proceeding. Bird v. W.C.W., 868 S.W.2d

767, 771 (Tex. 1994); Hernandez v. Hayes, 931 S.W.2d 648, 654 (Tex. App.—San

Antonio 1996, writ denied). Texas courts have applied the privilege expansively,

focusing on its underlying policy encouraging full and free disclosure from

witnesses. Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex. 1994), citing James v. Brown,

637 S.W.2d 914, 917 (Tex. 1982) ; Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex.

App.—Houston [1st Dist.] 1998, pet denied) (“Texas courts have consistently

applied the privilege to claims arising out of communications made in the course of

judicial proceedings, regardless of the label placed on the claim”). So jealously is

this principle guarded that it remains inviolate even when the speaker utters or

publishes the false language with express malice. Reagan v. Guardian Life Ins. Co.,

166 S.W.2d 909, 912 (Tex. 1942) (emphasis supplied).

         Because, like any other litigant, Ortiz enjoys an absolute privilege for

statements made in the course of judicial proceedings, those statements cannot form

the basis of the district’s termination of her contract.11




11
   Plano advances the argument that Ortiz’s lawsuit was only one of several formats in which Ortiz made false
statements about district employees. Plano’s Brief at 72. While a district may sanction its employees for lying during
an internal investigation, the Commissioner found that there was no indication Ortiz made false statements to any of
the investigators during the course of the district’s several investigations. R.R. 3, 183, 137.

                                                         14
        4.      Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3, Plano’s
                cross-issue 6)

        a.      The investigative reports

        The Commissioner rejected the grounds for termination Plano presented

solely through improperly admitted evidence. R.R. 3, 184, 138. These grounds

were: Ortiz’s statements to students regarding Gober; and her attempts to influence

students’ statements in the investigation and litigation process.                           Id. The only

evidence of these communications12 came from improperly admitted investigative

reports (and the statements contained within those reports). R.R. 3, 184-86, 138-40.

        An independent hearing examiner conducting a Chapter 21 case is required to

follow the Texas Rules of Evidence.                       Tex. Educ. Code §§ 21.256 (d), (e).

Investigation reports are hearsay, but they are subject to exceptions if: they are

shown to be either business record or government records; and there is no indication

indicating a lack of trustworthiness. Tex. R. Evid. 803 (6), (8). The reports in which

Ortiz’s interactions with students were contained were not business records because

they were not made in the ordinary course of business of the district.13 See, Tex. R.

Civ. 803 (6). They were, instead, created in anticipation of litigation with Ortiz.

R.R. 3, 186, 140. Documents and reports created in anticipation of litigation are not

admissible under the hearsay exceptions because they lack trustworthiness. Nat’l


12
   The conversation with a student that Ortiz recorded and provided to AL&L was introduced in support of other
allegations, which are discussed separately in Section B(2)., infra.

                                                     15
Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex. 1993); Flores v. Fourth Court

of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). Determining whether a report is created

in anticipation of litigation requires examination of the totality of the circumstances

surrounding its creation. National Tank, 851 S.W.2d at 204.

      Plano argues that the investigation was admissible because it was made in the

ordinary course of the district’s business. Plano’s Brief, 77-80. It is doubtful that

the Parks investigation--the initial investigation into Ortiz’s grievance--was

conducted in the ordinary course of the district’s business. Though it may have

begun as a routine investigation of Ortiz’s grievance against Gober, the focus of the

Parks report shifted as soon as Ortiz obtain a temporary restraining order against the

district and Principal Gober on May 11, 2012. R.R. 3, 186, 140. Parks testified that

he became aware of the order the same day it was served on the district (and 10 days

before the district’s May 21 receipt of his completed report). R.R. Pt. 5, 222; R.R.

Pt. 3, 154-55; R.R. Pt. 1, 8-40.

      But even assuming that the Parks report was prepared in the ordinary course

of the district’s business, the Melton and AL&L reports, both initiated after issuance

of the May 11, 2012, temporary restraining order, clearly were not. R.R. Pt. 1, 313-

324, 402-426. The Melton and AL&L reports focused, not on any employee

grievance, but solely on Ortiz’s alleged misconduct. Id. The district was, on and



                                          16
after May 11, 2012, not merely anticipating litigation, but in litigation, with Ortiz.

R.R. Pt. 3, 154-55; see generally, R.R. Pt. 2, 269-317.

      Examining the totality of the circumstances surrounding the disputed reports

compels the conclusion that they were created in anticipation of (or, more accurately,

during the midst of) litigation with Ortiz. The Commissioner correctly held that the

Independent Hearing Examiner abused her discretion by admitting these

investigations into evidence and that they could not serve as “good cause” for the

district’s action. R.R. 3, 184-86, 138-40.

      b.     The hearsay contained within the investigative reports

      Even if the investigative reports were admissible as business records or

governmental records, the statements of students and teachers contained in them

were still inadmissible hearsay. R.R. 3, 186-87, 140-41. These improperly admitted

hearsay statements form the evidentiary basis for the district’s allegations that Ortiz

made inappropriate statements to students regarding Gober and attempted to

influence students’ statements.

      In order to be admissible, each layer of hearsay must fit into an exception of

the hearsay rule. Tex. R. Evid. 805; First Sw. Lloyds Ins. Co. v. MacDowell, 769

S.W.2d 954, 959 (Tex. App.—Texarkana 1989, writ denied). In this case, while

Ortiz’s own statements are admissible as admissions of a party opponent, the

statements of students and teachers are hearsay statements to which no exception

                                          17
applies.      The Commissioner correctly determined that the statements were

improperly admitted and could not form the basis for the district’s action. R.R. 3,

186-87, 140-41.

        c.       Expert Issues

        Issues involving experts arose in two ways in the administrative case. First,

Plano argued that the AL&L report was admitted, not as a business record or a

government record, but as an expert report.                        R.R. 3, 187-88, 141-42.               The

Commissioner correctly determined that, if Plano was correct that the report was

admitted as an expert report, its admission was error.

        Under the Texas Rules of Evidence, expert reports are admissible only if they

“assist the trier of fact to understand the evidence or to determine a fact in issue.”

Tex. R. Civ. 702. The conclusions drawn in the AL&L report did not require

significant specialized knowledge (R.R. Pt. 1, 402-426); instead, it was within the

hearing examiner’s ability to determine whether the evidence in the report supported

the district’s allegations against Ortiz. R.R. 3, 187-88, 141-42. The Commissioner

correctly concluded that if the AL&L report was admitted an expert report, its

admission was error.14 Id.




14
  And even an appropriate admission of the report would not have cured the error of admitting the multi-leveled
hearsay evidence contained within it. See discussion 4(b), supra.
                                                     18
      The second expert issue presented in the administrative case was admission

of the reports and testimony from Mike Moses, an expert with significant experience

in Texas education. R.R. 3, 188-90, 142-44. The subject of Moses’s testimony was

whether the allegations against Ortiz constituted “good cause” for termination of her

contract. R.R. 3, 188, 142.

      If “good cause” were a question of fact, admission of expert testimony would

have been appropriate. Tex. R. Evid. 702. Under certain circumstances, expert

testimony can be appropriate to address mixed questions of fact and law. Greenberg

Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App.—Houston [14th Dist.]

2004, no pet.). However, the Texas Education Code provides that “[a] determination

by the hearing examiner regarding good cause for the . . . termination of a . . . term

contract is a conclusion of law. Tex. Educ. Code § 21.257(a)(2)(a-1).

      Plano’s brief argues extensively that this recent legislative amendment out not

to have the result of excluding expert testimony regarding “good cause.” Plano’s

Brief, 74-76.   Regardless, application of the rules of evidence to the recent

amendment of the Education Code compels the conclusion that the Commission was

correct. Expert testimony is not appropriate to address a pure question of law. Id.,

Tex. R. Evid. 702. For this reason, the Commissioner correctly held that the hearing

examiner’s admission of Mr. Moses’s reports and testimony was erroneous. R.R. 3,

188-190, 142-44.

                                         19
         5.       Allegations without supporting factual findings (Plano’s cross-
                  issue 5)15

         The district requested that the Commissioner find “good cause” based on

certain allegations for which the hearing examiner made no corresponding findings

of fact. R.R. 190, 144. Specifically, the district requested that the Commissioner

find good cause based on allegations that Ortiz’s tape recorded her conversation with

a student without the parent’s consent; made false statements during the Parks,

Melton and AL&L investigations, and filed grievances against district employees

for purposes of retaliation.                Id. The hearing examiner, not the district, resolves

conflicts in evidence and credibility disputes. Montgomery Indep. Sch. Dist. v.

Davis, 34 S.W.3d 559, 564 (Tex. 2000). Because no findings of fact support the

allegations of improper recording, false statements to investigators and retaliatory

use of grievances, the Commissioner correctly rejected the district’s assertion of

“good cause” on these grounds.

         6.       Summary of Response to Plano I.S.D.

         The Commissioner correctly concluded that the district failed to provide Ortiz

adequate notice of some violations, waived others through extension of her term

contract, and improperly sought to use her judicial statements against her. Further,

the Commissioner correctly concluded that Plano I.S.D. is prohibited from relying


15
     This issue is identified in Plano’s list of cross-points but counsel does not find it addressed in the body of Plano’s
brief.
                                                           20
on allegations unsupported by findings and that its expert reports and testimony were

improperly admitted.     Nonetheless, the Commissioner supports Plano I.S.D.’s

decision to terminate Ortiz’s term contract for cause as described in Section B., infra.

Finally, even if the court determines that the commissioner’s decision was flawed

by a legal error or procedural irregularity, reversal is allowed only if the court

determines that the irregularity or error likely led to an erroneous decision. Id.,

§ 21.307 (g); Charter Med.-Dall., Inc. 665 S.W. at 452; Matthews, 268 S.W.3d at

172 (Commissioner’s reasoning immaterial if conclusion is correct).

      B.     Grounds accepted by the Commissioner

      Despite the fact that the Commissioner rejected many of the “good cause”

grounds asserted by the district, the Commissioner found that “good cause” existed

to terminate Ortiz’s contract. R.R. 3, 190-193, 140-44. This finding was based on:

Ortiz’s violation of a directive issued to her on March 23, 2012; and Ortiz’s

statements in an audio recording of her conversation with a former student. Id.

These items of evidence form the basis of the Commissioner’s finding of “good

cause,” based on Ortiz’s violation of the following provisions of the Educators’ Code

of Ethics:

      Introductory Paragraph: The Texas educator, in maintaining the
      dignity of the professional, shall respect and obey the law, demonstrate
      personal integrity, and exemplify honesty.

      Standard 1.4:        The educator shall not use institutional or
      professional privileges for personal or partisan advantage.
                                          21
         Standard 3.8:       The educator shall maintain appropriate
         professional educator-student relationships and boundaries based on a
         reasonably prudent educator standard.

         Standard 3.9:   The educator shall refrain from inappropriate
         communication with a student or minor . . . .

         1.       The March 23, 2012, agreement (Ortiz’s issues 1, 4)

         The March 23, 2012, agreement, which was signed by investigator Parks for

the district and by Ortiz, stated, in pertinent part:

         This investigation or inquiry is confidential . . . As such, you must not
         discuss this investigation or inquiry, or any information that you and
         the investigator discuss, with other District employees . . . or any other
         person who is in any way connected to the incident or event under
         investigation, or who is a possible witness in this investigation.
         Disclosure of information pertaining to this investigation may result in
         disciplinary action against the disclosing employee.

(emphasis in original). R.R. Pt. 1, 360.16 The document contains no expiration date

or language suggesting that its applicability is limited to the duration of the

investigation.17 Id.




16
     Ortiz challenges the constitutionality of the confidentiality directive she was found to have violated. There is no
separate cause of action against the Commissioner for the alleged free speech violation, thus the Commissioner will
not respond to Ortiz’s constitutional claim unless directed to do so by the court.

17
     Though Ortiz appears to have abandoned this argument on appeal, in the trial court she sought to obtain requests
for admissions pertaining to statements and interactions made in a subsequent meeting with the district regarding
another employee. In appeal of a Chapter 21 case, the court is limited to consideration of the administrative record
from the proceedings below. Tex. Ed. Code § 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 740-
41 (S.D. Tex. 2013) (court may not receive evidence outside the administrative record). The record regarding “good
cause” for termination of her contract—the “substantial evidence” appeal-- is complete.

                                                          22
      It is undisputed that in August 2012 Ortiz asked one of the students for details

regarding his May 2012 interview by Melton (attendant to the Parks investigation).

See discussion in section B.2., infra. The Commissioner correctly found that Ortiz’s

discussion of the investigation with the students was, in light of the district’s

directive, insubordination constituting “good cause” for termination. R.R. 3, 190-

93, 143-47.

      2.      Ortiz’s recorded communications with student (Ortiz’s issue 1)

      The Commissioner found additional “good cause” for the termination in the

substance of Ortiz’s August 2012 communications with the student about the

investigation. R.R. 3, 190-93, 144-47. The district noticed Ortiz regarding the

following violations of district policy:

       You discussed confidential personnel matters in violation of District Policy

           and the signed confidentiality statement (R.R. Pt. 3, 163);

       You involved students in your personal complaints and litigation . . . (Id.);

       You engaged in unprofessional conduct by inappropriately discussing with

           your students certain confidential personnel matters involving yourself and

           Mr. Gober in violation of District Policy (R.R. Pt. 3, 164);

       You engaged in unprofessional conduct by seeking to inappropriately

           involve your students in your personal complaints and litigation against

           the District and Mr. Gober (R.R. Pt. 3, 165).

                                           23
Each of these findings is repeated in the attachment to the district’s second notice of

termination letter. R.R. Pt. 3, 173-182.

      The Commissioner found that the communication with the student

demonstrated that Ortiz was using the conversation to obtain information about what

the investigators knew, what they were interested in, and whether the investigation

was focused on her.      R.R. 3, 192, 146.      The information Ortiz sought, the

Commissioner found, was not merely information to determine the extent of the

student’s knowledge with an eye toward her lawsuit against Gober. Id. Instead, her

communication with the student was aimed at gathering information about the

confidential investigation. Id.

      The Commissioner further found that the tone of the communication,

including describing another student as “goofy-looking” and telling the student

during the conversation that the student’s rendition of events was “good,” violated

appropriate student-teacher boundaries. R.R. 3, 192-93, 146-47.

      The Commissioner found that substantial evidence, demonstrating multiple

violations of the Educators’ Code of Ethics, supported the termination of Ortiz’s

contract. R.R. 3, 190-193, 140-44.

                         CONCLUSION AND PRAYER

      The Commissioner and the district court correctly affirmed Plano’s decision

to terminate the teaching contract of appellant Ortiz. Their decisions are supported

                                           24
by substantial evidence, good cause supports Ortiz’s termination and the district

court’s judgment should be in all things affirmed. The Commissioner further prays

to receive any additional and further relief to which he is entitled, whether at law or

in equity.

                                 Respectfully submitted,

                                 KEN PAXTON
                                 Attorney General of Texas

                                 CHARLE E. ROY
                                 First Assistant Attorney General

                                 JAMES E. DAVIS
                                 Deputy Attorney General for Defense Litigation

                                 DAVID A. TALBOT, JR.
                                 Chief, Administrative Law Division

                                 /s/ Robin Sanders
                                 ROBIN SANDERS
                                 Assistant Attorney General
                                 Texas Bar No. 09310900
                                 Office of The Texas Attorney General
                                 Administrative Law Division
                                 P. O. Box 12548
                                 Austin TX 78711-2548
                                 Phone: (512) 475-4005
                                 Fax: (512) 320-0167
                                 Email: robin.sanders@texasattorneygeneral.gov

                                 FOR THE COMMISSIONER




                                          25
                      CERTIFICATE OF COMPLIANCE

        I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 4,743 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.

                                       /s/ Robin Sanders
                                       ROBIN SANDERS


                         CERTIFICATE OF SERVICE

   I certify that the above was service on this 13th day of April, 2015, via e-service
and/or email to:

Richard L. Arnett
Texas Bar No. 01333300
Brim, Arnett, Robinett & Conners, P.C.
Attorney at Law
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Phone: (512) 328-0048
Fax: (512) 328-4814
rarnett@brimarnett.com

Richard Abernathy
State Bar No. 00809500
Charles Crawford
State Bar No. 05018900
1700 Redbud Boulevard, Suite 300
McKinney, Texas 75069
214-544-4000 telephone
214-544-4040 facsimile
ccrawford@abernathy-law.com
rabernathty@abernathy-law.com
Attorneys for Plano ISD


                                       /s/ Robin Sanders
                                       ROBIN SANDERS
                                         26
