      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00245-CV



                          Texas Commissioner of Education and
                Mission Consolidated Independent School District, Appellants

                                                  v.

                                     Dr. Maria Solis, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
       NO. D-1-GN-14-004486, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                           O P I N I O N1


               This case involves the intersection of the concepts of jurisdiction and waiver as they

relate to appeals to the Texas Commissioner of Education. The Texas Commissioner of Education

and Mission Consolidated Independent School District appeal the trial court’s judgment reversing

the Commissioner’s decision to dismiss for lack of jurisdiction an administrative appeal brought by

Dr. Maria Solis in which she challenged the nonrenewal of her employment contract with Mission

Consolidated Independent School District. Because we conclude that the Commissioner had

jurisdiction over Solis’s appeal, we will affirm the trial court’s judgment.




       1
          Notice of appeal for this case was originally filed in this Court in July 2016, at which time
the case was transferred to the El Paso Court of Appeals in compliance with a docket-equalization
order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court ordered that
certain cases be transferred back to this Court from the El Paso Court, and we consider this appeal
pursuant to that order. See Misc. Docket No. 18-9054 (Tex. Apr. 12, 2018) (per curiam).
                                          BACKGROUND

               Solis and the District entered into an employment agreement for the period beginning

July 19, 2012 and ending June 28, 2013. The agreement provided that “[t]he Superintendent or

designee shall determine the work performed or assigned for the period of employment.” The

agreement also provided, in pertinent part:


       This agreement shall be renewed only by vote of the Board and written notice to the
       Employee of that action. If the Board does not act prior to the expiration of the
       agreement, the agreement shall not continue in force, and employment shall cease
       on the last day of the term set out in this agreement. This agreement is not a “term
       contract” subject to the provisions of Subchapter E, Chapter 21, of the Texas Education
       Code. No right to tenure or any other contractual obligation or other expectancy of
       continued employment or claims of entitlement is created beyond the agreement term.

       This agreement is subject to all applicable federal and state laws, rules, and regulations.
       Invalidity of any portion of this agreement under the laws of the State of Texas or of
       the United States shall not affect the validity of the remainder of the agreement.


Solis was initially assigned to work as the school district’s Executive Director for State and Federal

Programs. Two months later, however, Solis was reassigned to serve as an assistant principal at

Alton Memorial Junior High School.

               In March 2013, Solis filed a grievance in which she complained that the Board of

Trustees took no action at its March 2013 meeting “on [her] 2013-2014 Contract/Employment

Agreement.” Among other relief, Solis sought to have the Superintendent “recommend [Solis] to

the Board of Trustees for Approval of [her] 2013-2014 Contract/Employment Agreement.” MCISD

understood Solis’s complaint to be about “the expiration of [her] contract” without renewal for

the year 2013-2014. In the letter responding to and denying the grievance, MCISD’s Assistant

Superintendent for Human Resources stated, in part:

                                                   2
        Having reviewed your grievance, I find that it fails to allege any violation of law or
        policy. To begin, you do not have a “2013-2014 Contract/Employment Agreement.”
        Your repeated references to “my 2013-2014 Contract/Employment Agreement”
        imply that you have a contractual right to employment for the 2013-2014 school year.
        You do not.

        When you accepted employment at MCISD pursuant to your current contract, you
        agreed that the contract would expire on June 28, 2013. That is precisely what is set
        to occur. MCISD is not taking any action to terminate your contract. Rather, MCISD
        is honoring the terms of the contract to the fullest extent. You have not cited any
        provision in law or policy that requires MCISD to offer you a contract for the 2013-
        2014 school year.

        ••••

        Your counsel also alleged that, “the failure to give direction to [your] principal in
        regards to recommending or not recommending [you] for renewal and extension of
        [your] contract” is a “direct violation” of “both state and federal law, as well as the
        Board’s own policy, in regards to discrimination.” This is a vague assertion and you
        have not asserted any facts to support it. Nor have you cited any law that requires the
        Superintendent to direct any principal as you describe. Furthermore, your argument
        acknowledges that the Superintendent has not taken any action regarding your contract.


Solis appealed that decision to the MCISD Board of Trustees. In her appeal to the Board, Solis stated

that she was “requesting that the Board of Trustees review the Superintendent’s decision ‘not to take

action’ on [her] 2013-2014 Contract/Employment Agreement.” Solis also stated: “I disagree with the

entire response [to the grievance] provided due to the fact that there was no basis for ‘no action taken.’”

Solis maintained that the Superintendent’s decision “not to take any action” constituted retaliation

for her having previously filed a grievance against him. Among other relief, Solis again sought to

have the Superintendent recommend her to the Board of Trustees for approval of “[her] 2013-2014

Contract/Employment Agreement.” After a hearing held on June 12, 2013, the Board upheld the

Superintendent’s decision. Solis was not employed by MCISD for the following school year.



                                                    3
                 Solis then filed a petition for review with the Commissioner of Education. See Tex.

Educ. Code § 21.209 (teacher who is aggrieved by decision of board of trustees on nonrenewal of

teacher’s term contract may appeal to commissioner for review of decision of board of trustees in

accordance with provisions of sections 21.301 through 21.307). Solis alleged that because state law

and MCISD’s own policies required that assistant principals be employed under a term contract,

when she was reassigned from the Executive Director position to the Assistant Principal position,

her employment contract became a de facto term contract subject to the Texas Term Contract

Nonrenewal Act. See Tex. Educ. Code §§ 21.201-.213 (TCNA). Solis alleged that, as a consequence,

she was entitled to notice of the nonrenewal of her contract pursuant to TCNA section 21.206 and,

when MCISD failed to provide such notice, she was entitled to employment with MCISD for an

additional year. See id. § 21.206(a) (“Not later than the 10th day before the last day of instruction

in a school year, the board of trustees shall notify in writing each teacher whose contract is about to

expire whether the board proposes to renew or not renew the contract.”),2 (b) (“The board’s failure

to give the notice required by Subsection (a) within the time specified constitutes an election to

employ the teacher in the same professional capacity for the following school year.”).

                 The Commissioner-appointed ALJ questioned, sua sponte, whether the Commissioner

had jurisdiction over Solis’s petition for review. Specifically, the ALJ stated in an order that “[t]he

Petition for Review alleged jurisdiction under Texas Education Code section 21.301.[3] However,


        2
            It is undisputed that MCISD did not provide Solis notice pursuant to section 21.206(a).
        3
          Section 21.301 provides that “[n]ot later than the 20th day after the date the board of trustees
or board subcommittee announces its decision [to terminate a teacher’s contract or suspend a teacher
without pay] under Section 21.259 or the board advises the teacher of its decision not to renew the
teacher’s contract under Section 21.208, the teacher may appeal the decision by filing a petition for
review with the commissioner.” Tex. Educ. Code § 21.301(a).

                                                    4
there is no allegation that Respondent announced a decision under Texas Education Code section

21.259 or advised Petitioner of its decision under Texas Education Code section 21.208. This would

appear to indicate that the Commissioner does not have jurisdiction over this case under Texas

Education Code section 21.301.” The ALJ’s order set a hearing to address the Commissioner’s

jurisdiction. After the hearing, the ALJ concluded that because MCISD had not “announced a

decision under Texas Education Code section 21.259” or “advised [Solis] of its decision under Texas

Education Code section 21.208,” section 21.301 did not confer jurisdiction on the Commissioner

to consider Solis’s petition for review. Essentially, the ALJ concluded that because MCISD did not

follow the statutory procedure for nonrenewing a term contract set forth in the TCNA, there was

no “decision” that the Commissioner could review pursuant to section 21.301. The ALJ issued an

order stating that the Commissioner did not have jurisdiction under section 21.301 but provided

Solis an “opportunity to replead.”

                Solis filed an Amended Petition for Review in which she alleged that MCISD had

“violated the school laws of the State of Texas” and that she was filing her petition pursuant to Texas

Education Code section 7.057 as well as section 21.301. See id. § 7.057(a) (person may appeal in

writing to commissioner if person is aggrieved by school laws of this state or actions or decisions

of any school district board of trustees that violate school laws of this state). Solis alleged that after

her reassignment to the assistant principal job her contract necessarily became a term contract

subject to the TCNA and that MCISD’s nonrenewal of her term contract without providing her the

notice required by the statute was an action or decision of the board that violated the TCNA. In its

response, MCISD asserted that because Solis “did not hold a contract governed by Chapter 21,” it



                                                    5
was not required to provide her with notice of nonrenewal of her contract under Texas Education

Code section 21.206. MCISD also challenged the Commissioner’s jurisdiction over Solis’s petition

under section 7.057 on the ground that she had “failed to exhaust administrative remedies regarding

the subject matter” of her claims that (1) she was employed under a chapter 21 contract once she was

reassigned to the assistant principal position and (2) as such she was entitled to notice of nonrenewal

under section 21.206.

               The ALJ issued a proposal for decision in which he concluded that the Commissioner

lacked jurisdiction over Solis’s Amended Petition for Review because Solis failed to exhaust

administrative remedies. Specifically, the ALJ stated: “At the local level, Petitioner did not maintain

that she had a chapter 21 term contract, much less did she contend that Respondent violated Texas

Education Code section 21.206 by not renewing her contract. Because Petitioner failed to raise

these arguments at the local level she failed to exhaust administrative remedies.” As support for

his conclusion that Solis was required to first make these arguments to the school district, the ALJ

cited Texas Education Code section 7.057(c), which provides that, in an appeal to the Commissioner

by a person aggrieved by an action or decision of a school district board of trustees that violates the

school laws of the State of Texas, the Commissioner “shall issue a decision based on a review of the

record developed at the district level under a substantial evidence standard of review.” See id.

§ 7.057(c). According to the ALJ, the language of section 7.057(c) requires that “[a]n issue brought

before the Commissioner must be found in the local record.”

               The Commissioner then signed a Decision of the Commissioner that adopted the

entirety of the ALJ’s proposal for decision, including the following Conclusions of Law:



                                                  6
       4.      A case filed under Texas Education Code section 7.057(a)(2) is an appeal
               of a school district’s action or decision. It is not a de novo appeal. Texas
               Education Code section 7.057(c) provides that an appeal against a school
               district will be decided based on a substantial evidence review of the local
               record. An issue brought before the Commissioner must be found in the
               local record.

       5.      As Petitioner failed to raise the issues at the local level that she had a chapter
               21 term contract and that Respondent violated Texas Education Code section
               21.206, the Commissioner lacks jurisdiction over these claims. Tex. Educ.
               Code § 7.057(a)(2) and (c).

       6.      Petitioner’s Texas Education Code section 7.057 claims should be dismissed
               for a failure to exhaust administrative remedies. Tex. Educ. Code § 7.057(a)(2)
               and (c).


The Commissioner dismissed Solis’s Amended Petition for Review for lack of jurisdiction.

               Solis then filed a suit for judicial review in Travis County district court. See id.

§ 7.057(d) (person aggrieved by decision of commissioner may appeal to district court in Travis

County). After a hearing, the trial court reversed the Commission’s decision dismissing Solis’s

petition for review for lack of jurisdiction and remanded the case to the Commissioner for further

proceedings. MCISD and the Commissioner then perfected this appeal. In one issue, MCISD and

the Commissioner each assert that the Commissioner properly dismissed Solis’s petition for review

for failure to exhaust administrative remedies and, consequently, the trial court erred by reversing

the Commissioner’s decision and remanding the case to the Commissioner for further proceedings.


                                           DISCUSSION

               We begin our analysis by examining the basis for the Commissioner and MCISD’s

contention that the Commissioner did not have jurisdiction over Solis’s appeal and the law



                                                   7
underlying our consideration of this issue. The Commissioner and MCISD contend that the

Commissioner properly dismissed Solis’s petition for review for lack of jurisdiction because she

failed to “exhaust her administrative remedies.” “Exhaustion of remedies” is an administrative law

doctrine “designed primarily to control the timing of judicial relief from adjudicative action of an

agency.” Cash Am. Int’l v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000) (quoting Kenneth Culp Davis,

Administrative Law Doctrines of Exhaustion of Remedies, Ripeness for Review, and Primary

Jurisdiction: 1, 28 Tex. L. Rev. 168, 171 (1949)). “When the Legislature vests exclusive jurisdiction

in an agency, exhaustion of remedies is required.” Id. Exhaustion of remedies requires a party in

an administrative proceeding to await that proceeding’s completion, thereby securing all available

administrative relief before seeking judicial review of the agency’s action. Id. School district

employees like Solis, alleging that a decision by the school district board of trustees violates the

school laws of the State of Texas, “generally must exhaust administrative remedies by bringing an

appeal to the Commissioner.” See Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 657 (Tex.

2013); see also Tex. Educ. Code § 7.057(a)(2)(A) (providing for appeal to Commissioner of claims

that board decision or action violated school laws of state). Solis did exactly that by filing a petition

for review with the Commissioner challenging MCISD’s action of nonrenewal of her contract before

she filed a suit for judicial review. The Commissioner, however, dismissed Solis’s appeal for lack

of jurisdiction because he concluded that she had failed to “exhaust administrative remedies”

when she did not first make her complaint about MCISD’s action to MCISD through the district’s

local grievance policy procedures. The Commissioner takes the position that the “exhaustion of

administrative remedies” doctrine applies equally at the administrative level; that is, just as a court



                                                   8
does not have jurisdiction over a challenge to the agency’s action unless the complainant has

exhausted all applicable administrative remedies,4 neither does the Commissioner have jurisdiction

over a challenge to a school district’s action unless the employee has availed herself of all applicable

grievance processes.

                The Texas Education Code belies the Commissioner’s position. The Commissioner’s

jurisdiction arises from Texas Education Code section 7.057, which authorizes the Commissioner

to hear appeals of “any person aggrieved by . . . actions or decisions of any board of trustees that

violate the school laws of this state.” See Tex. Educ. Code § 7.057(a)(2)(A); City of Houston v.

Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (when Legislature creates agency, it may grant agency

authority to resolve disputes that arise within agency’s regulatory arena). The statute does not require

that the aggrieved person have participated in a hearing before the board, but only that the board

have made a “decision” or taken “action.” Courts have interpreted section 7.057 as a legislative

grant of exclusive jurisdiction to the Commissioner that gives the agency the sole authority to

make an initial determination before a party may seek relief in the courts. See Clint Indep. Sch. Dist.

v. Marquez, 487 S.W.3d 538, 545-46 (Tex. 2016); Subaru of Am., Inc. v. David McDavid Nissan,

Inc., 84 S.W.3d 212, 221 (Tex. 2002) (“Whether an agency has exclusive jurisdiction depends on

statutory construction.”).


        4
           This assumes the Legislature has vested the agency with “exclusive jurisdiction” over the
matter. See Cash Am. Int’l v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000) (“An agency has exclusive
jurisdiction when the Legislature gives the agency alone the authority to make the initial determination
in a dispute.”); cf. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.
2002) (explaining difference between exclusive jurisdiction, which implicates trial court’s subject-
matter jurisdiction, and primary jurisdiction, which operates to allocate power between courts and
agencies when both have authority to make initial determinations in dispute).

                                                   9
                In the present case, however, the Commissioner relies on the “exhaustion of

remedies” doctrine to support his conclusion that the agency lacked jurisdiction over Solis’s petition

for review. The Commissioner essentially analogizes its jurisdiction to that of a district court and

asserts that, just as the district court may not make an initial determination in a dispute about

violation of a school law, the Commissioner, too, lacks jurisdiction to make a determination in a

dispute about the violation of a school law unless the complaint has first been presented to the school

district through its local grievance policy. For this to be true, it must be the case that the Legislature

(or some other entity with authority to do so) has restricted the Commissioner’s section 7.057

jurisdiction by vesting in the school district the sole authority—the “exclusive jurisdiction”—to

make the initial determination in a dispute regarding whether the district has violated a school law.

In that case, the school district’s “exclusive jurisdiction” could be said to deprive the Commissioner

of jurisdiction unless the complaining party has “exhausted administrative remedies” by first presenting

its complaint to the school district.

                To support this proposition, the Commissioner relies on his previous decision in

Wilson v. Marshall Independent School District, Docket No. 047-R10-0309, 2011 TX Educ. Agency

LEXIS 34 (Comm’r Educ. 2011), in which the Commissioner interpreted the language of Texas

Education Code section 7.057(c) to, essentially, vest the school district with exclusive jurisdiction

to make the initial determination when it is alleged that school district board of trustees has violated

Texas school laws.5 In Wilson, the Commissioner reasoned:


        5
          In Wilson, an elected member of the school district’s board of trustees alleged that the
board violated school laws by sanctioning her in a meeting that was held without giving sufficiently
specific notice of the meeting to the public as required by the Open Meetings Act. The board member

                                                   10
       Texas Educ. Code § 7.057

       That exhaustion of administrative remedies[6] is required can be seen by examining
       Texas Education Code section 7.057. Under Texas Education Code section 7.057,
       a case against a school board is to be heard under the substantial evidence standard
       based on the local record. Tex. Educ. Code § 7.057(c). This is considerably different
       from the standard in the old Texas Education Code section 11.13 which resulted in
       a de novo review of grievances.[7] Because the Commissioner previously reviewed
       board grievances applying the de novo standard of review whether or not a particular
       argument was made at the board level was not significant. However, under the
       substantial evidence standard one must make objections before the school board. The
       substantial evidence standard applied by the Commissioner under Texas Education
       Code section 7.057(c) is very similar to the substantial evidence standard found at
       Texas Government Code section 2001.174. 19 Tex. Admin. Code § 157.1073(h).
       The Commissioner does not review a case against a school district de novo.


also alleged that the board did not have the authority to sanction her. See Wilson v. Marshall Indep.
Sch. Dist., Docket No. 047-R10-0309, 2011 TX Educ. Agency LEXIS 34, at *2 (Comm’r Educ. 2011).
       6
           The Commissioner uses the term “exhaustion of administrative remedies” to mean availing
oneself of the school district’s grievance policy prior to appealing a decision of the school district’s
board of trustees to the Commissioner. Other decisions of the Commissioner further demonstrate
that, in its view, “exhaustion of administrative remedies” also requires raising a particular complaint
in a proceeding at the school district level before arguing it to the Commission. See, e.g., Gallont v.
Houston Indep. Sch. Dist., Docket No. 019-R1-11-2017, 2017 WL 9249963 (Comm’r Educ. 2017)
(dismissing for lack of jurisdiction claim of party that had availed itself of administrative remedies
by requesting and obtaining hearing before hearing examiner on ground that party did not raise
particular issue before hearing examiner and therefore failed to “exhaust administrative remedies”).
       7
          This statement is not completely accurate. The Texas Supreme Court interpreted former
section 11.13(a) as requiring the Commissioner to conduct “a substantial evidence de novo
administrative hearing.” See Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency,
917 S.W.2d 773, 776 (Tex. 1996); see also Central Educ. Agency v. Upshur Cty. Comm’rs Court,
731 S.W.2d 559, 561-62 (Tex. 1987) (“substantial evidence de novo” review permits evidentiary
hearing “solely for the purpose of determining whether there was fraud, bad faith or an abuse of
discretion in the decision of the county commissioners and whether their decision is supported by
substantial evidence”); id. at 561 & 562 n.2 (comparing “true trial de novo,” which is not an “appeal”
but is a new proceeding to “substantial evidence de novo” review, which is an appeal that gives
deference to local board’s findings and decision). Despite the introduction of evidence at the review
hearing, the inquiry in a substantial-evidence-de-novo review is purely a question of law, and the
proceeding is truly an “appeal.” See Firemen’s & Policemen’s Civ. Serv. v. Brinkmeyer, 662 S.W.2d
953, 956 (Tex. 1984).

                                                  11
        Is Decision Without Exhaustion Sufficient?

        It might be argued that all one needs is a board decision concerning the subject
        matter detailed in Texas Education Code section 7.057(a)(2) in order to file an
        appeal with the Commissioner. If this were the case, few petitioner’s [sic] before the
        Commissioner would prevail. Many cases that the Commissioner considers have
        their genesis in a board action. A school board might change the salary schedule,
        require school uniforms, or do any number of thing that a teacher, parent, or another
        person believes violates the school laws of this state. If the teacher, parent, or other
        person was faced with an immediately appealable decision the school district would
        most likely prevail because Texas Education Code section 7.057(c) requires the
        decision to be based on the local record. A board decision that is not made through
        the grievance process is a decision where those opposed are not required to be given
        an opportunity to speak or present evidence. In fact, it is likely that those opposed
        will only learn of a questionable action after the vote is taken. The only record the
        Commissioner is likely to have in such a case is a record that supports the board’s
        decision. A grievance must be pursued prior to appealing to the Commissioner.
        This requirement actually protects the rights of those challenging a school district
        action. It gives them the right to be heard and the opportunity to create a record that
        preserves the issues that they wish to appeal to the Commissioner.


Wilson, 2015 TX Educ. Agency LEXIS 34, at *5-7; see also Harris v. Aldine Indep. Sch. Dist., Docket

No. 029-R10-03-2015, 2015 TX Educ. Agency LEXIS 37, at * 8 (Comm’r Educ. 2015) (dismissing

claim for lack of jurisdiction on ground that “[a]n issue brought to the Commissioner in appeal

against a school district must be raised before the school district” and “[b]ecause Petitioner did not

raise the issues of discrimination and the improper issuance of emergency permits in her grievance,

Petitioner has failed to exhaust administrative remedies as to these claims”).

                As explained below, the Commissioner’s interpretation of section 7.057 in Wilson was

incorrect. We first consider whether subsection 7.057(c) constitutes a limitation on the Legislature’s

grant of jurisdiction to the Commissioner to review “decisions” or “actions” of a school district

board of trustees that allegedly violate the school laws of the State of Texas. That subsection provides



                                                  12
that the Commissioner’s review of a school board’s decision is under the substantial evidence

standard. See 19 Tex. Admin. Code § 157.1073(h). According to the Commissioner, this standard

of review imposes a requirement that there be a hearing at the school district level before the

Commissioner may review the resulting decision.8 In the Commissioner’s view, if no hearing is

held at the school district level and no administrative record is created, there is nothing for the

Commissioner to subject to substantial evidence review. We disagree. Although section 7.057

provides for a substantial evidence standard of review, nothing in the language of the statute

requires that there have been a hearing and corresponding “record” as a prerequisite for review by

the Commissioner. Such an interpretation would lead to the conclusion that the school district

could simply refuse to hold a hearing and then issue a decision that would be immune from the

Commissioner’s review. That result could hardly be contemplated by the statutory review process.

See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (explaining that court

should not adopt statutory construction that would render statute meaningless or lead to absurd results).

                We also do not agree that section 7.057(c)’s reference to the “record developed at the

district level” and “substantial evidence review” means that section 7.057 appeals are limited to

review of school district board of trustees’ decisions that are made in the context of a grievance

proceeding. Rather, it means that the Commissioner must base his decision on the record as it

existed at the district level and the events evidenced by that record. When the Commissioner

reviews a decision of a school district board of trustees under the substantial evidence rule,


        8
          The Commissioner’s argument seems to suggest that a “decision” must be one made in the
context of resolving a dispute or complaint, presumably after a hearing. There is nothing in the text
of the statute that indicates that the terms “decision” or “action” are so limited.

                                                   13
        (h) the commissioner may not substitute his or her judgment for the judgment of the
        school district on the weight of the evidence questions committed to the discretion
        of the board of trustees but:

        (1) may affirm the decision of the board of trustees in whole or in part; and

        (2) shall reverse or remand the case for further hearings if substantial rights of the
        petitioner have been prejudiced because the decision of the board of trustees is:

                (A) in violation of a constitutional or statutory provision;

                (B) in excess of the statutory authority of the board of trustees;

                (C) made through unlawful procedure;

                (D) affected by other error of law;

                (E) not reasonably supported by substantial evidence considering the
                reliable and probative evidence in the record as a whole; or

                (F) arbitrary or capricious or characterized by an abuse of discretion
                or clearly unwarranted exercise of discretion.


19 Tex. Admin. Code § 157.1073(h) (Tex. Educ. Agency, Hearings Brought Under Tex. Educ. Code

§ 7.057). Thus, the substantial evidence standard of review requires that the Commissioner “not

substitute its judgment for the judgment of the school district on the weight of the evidence” but

allows the Commissioner to address other aspects of the decision or action, including whether the

decision violated a constitutional or statutory provision, whether the agency acted outside its statutory

authority in making the decision, and whether the agency violated procedural requirements in making

the decision. Id.

                Here, the issue before the Commissioner was the legal question of whether, based on

the undisputed facts regarding Solis’s initial employment and transfer, she was employed under a



                                                   14
term contract subject to the TCNA. Solis asserts that the school district board of trustees violated

Texas school laws when it failed to give her the notice to which she was entitled under chapter 21

before deciding to nonrenew her contract, see Tex. Educ. Code § 21.206(a), and subsequently

refused to acknowledge that the failure to give notice operated as an election to employ her in the

same professional capacity for the following school year, see id. § 21.206(c). Solis’s claim does

not involve resolution of disputed fact issues and, if correct, is a claim that would constitute an

authorized ground for reversal or remand of the decision. See 19 Tex. Admin. Code § 157.1073(d)

(commissioner shall reverse or remand decision of board of trustees that is in violation of statutory

provision). The same would be true of claims that the school district board of trustees acted in

violation of a constitutional provision or in excess of its statutory authority.

                We are also unpersuaded by the Commissioner’s reasoning in Wilson that making

the filing of a complaint at the school district level a jurisdictional prerequisite to filing a petition

for review with the Commissioner “actually protects the rights of those challenging a school district

action” because “it gives them the right to be heard and the opportunity to create a record that

preserves the issues that they wish to appeal to the Commissioner.” The right to a hearing is created

by the governing statutes and grievance policies; it is not derivative of the scope of the Commissioner’s

jurisdiction. If a party with a right to a hearing does not avail itself of that right, it very well may

lose at the Commissioner level if the merits of the complaint turn on evidentiary issues that are not

developed or preserved for the Commissioner’s review under the substantial evidence standard.

That does not, however, make a district-level hearing or complaint a jurisdictional prerequisite to

filing a petition for review with the Commissioner. Section 7.057 of the Texas Education Code



                                                   15
provides for an appeal to the Commissioner when a person is aggrieved by an action or decision of

a board of trustees that violates Texas school law. The Commissioner may not, through his rules or

policies, narrow the availability of that appeal. Requiring that, as a jurisdictional prerequisite to

such an appeal, an aggrieved party must request and attend a hearing before the board would

impermissibly narrow the availability of the statutory right to appeal to the Commissioner.

                The Commissioner’s argument conflates concepts of waiver with concepts of

jurisdiction.9 It may be the case that a party who fails to raise a particular complaint with a school

district in accordance with an applicable local grievance policy will not have a record to present to

the Commissioner that can support the complaint. While the party may be found to have waived that

complaint or failed to preserve it for a subsequent appeal to the Commissioner, it does not follow

that the Commissioner lacks jurisdiction over the appeal itself. In fact, in his brief in this appeal, the

Commissioner cites Texas Rule of Appellate Procedure 33.1, which addresses preservation of error,

as support for the proposition that Solis was required to “first present her claim to the school district

(the initial decision-maker) before raising it on appeal to the Commissioner.” See Tex. R. App. P. 33.1

(preservation of appellate complaints). The Commissioner’s brief also states that Solis “failed to

preserve her claim and the Commissioner properly dismissed it.” We will, therefore, consider whether




        9
         The Commissioner’s use of the term “jurisdiction” may be an example of what the Texas
Supreme Court has described as “intemperate.” See In re United Servs. Auto. Ass’n, 307 S.W.3d 299,
306 (Tex. 2010) (“But we, like the U.S. Supreme Court, have recognized that our sometimes
intemperate use of the term ‘jurisdictional’ has caused problems. Characterizing a statutory
requirement as jurisdictional means that the trial court does not have—and never had—power to
decide the case.” (citations and footnotes omitted)). It may be that the Commissioner means instead
that a complainant who has not complied with the school district’s grievance policy has not
preserved that complaint for his review.

                                                   16
Solis was required to seek relief from the board of trustees in order to preserve for Commissioner

review her claim that she was aggrieved by MCISD’s decision to discontinue her employment

despite it having failed to give her notice of proposed nonrenewal of a term contract governed by the

TCNA. See Tex. Educ. Code § 21.206(c) (failure to give notice within time specified constitutes

election to employ teacher in same professional capacity for following school year).

               The Commissioner’s position—whether couched in terms of “jurisdiction” or

waiver—is that Solis failed to properly preserve her argument about the term status of her contract.

We disagree. The Commissioner argues that, pursuant to the Legislature’s grant of authority to the

board of trustees to make decisions relating to terminating the employment of district employees

employed under a contract to which Texas Education Code chapter 21 applies, MCISD adopted a

grievance policy that “functions in the statutory scheme like a notice-and-cure clause that is a

prerequisite to suit.” See id. § 11.1511(b)(14). According to the Commissioner, this grievance policy,

referred to as Personnel-Management Relations Employee Complaints/Grievances DGBA(LOCAL)

(“DGBA (Local)”), is part of Solis’s employment contract. The Commissioner asserts that DGBA

(Local) required that Solis identify the legal basis of her complaint at the local level before

presenting it to the Commissioner. DGBA (Local) provides that an employee’s complaint must be

submitted to the school district on the grievance form approved by the District and must include,

among other things:


       Identification of the specific policy or policies, constitutional or statutory provisions,
       or administrative regulations alleged to be violated or misapplied, or the specific type
       of discrimination alleged to have been committed and facts to support the allegation.




                                                  17
DGBA (Local) provides that the term “complaint” or “grievance” means an employee’s specific

written statement expressing dissatisfaction with his or her wages, hours of work, or conditions of

work. The policy provides that these terms also include allegations of unlawful discrimination,

harassment, or retaliation based on gender, age, religion, national origin, disability, “whistleblower”

complaints, or the employee’s exercise of rights protected by the United States Constitution or other

state or federal law. The policy states that employee “complaints,” as so defined, “shall be filed in

accordance with this policy.” Thus, the Commissioner is correct that an employee filing a “complaint”

must comply with the requirement that the complaint identify the policy, statutory provisions, or

administrative regulations alleged to have been violated. However, DGBA (Local) specifically

excludes from its purview certain categories of employee complaints that are to be submitted in

accordance with other district policies, including “[c]omplaints concerning the proposed nonrenewal

of a term contract issued under Chapter 21 of the Education Code, which shall be submitted in

accordance with DFBB.” Thus, while Solis’s complaint that her reassignment from an executive

director position to an assistant principal position was retaliation based was subject to the requirements

in grievance policy DGBA (Local), her complaint regarding MCISD’s nonrenewal of what she

alleged to be a term contract was not.

                The TCNA, which governs nonrenewal of term contracts, provides that a board of

trustees contemplating nonrenewal of a term contract “shall notify in writing each teacher[10] whose

contract is about to expire whether the board proposes to renew or not renew the contract.” See Tex.


        10
         The TCNA defines “teacher” to include principals. See Tex. Educ. Code § 21.201. MCISD’s
policy DCB (Local) provides that “[t]erm contracts governed by Chapter 21 of the Education Code
(educator term contracts) shall be provided to: . . . assistant principals.”

                                                   18
Educ. Code § 21.206. A teacher who receives such notice has the option of requesting a hearing,

which the board must provide. Id. § 21.207(a). If the teacher does not request a hearing, the board

must take action to renew or nonrenew the contract and notify the teacher of its action not later than

the 30th day after the date notice of proposed nonrenewal was sent to the teacher. Id. § 21.208(a).

If the teacher requests a hearing, the board must hold the hearing, take action to renew or nonrenew

the contract, and notify the teacher of its action no later than the 15th day after the date on which the

hearing is concluded. Id. § 21.208(b). A teacher desiring to appeal the action must file a petition

for review with the Commissioner not later than the 20th day after the date the board advises the

teacher of its decision not to renew the teacher’s contract. Id. § 21.301. If , however, the board fails

to give the notice required by section 21.206(a) within the time specified, the statute provides that

this “constitutes an election to employ the teacher in the same professional capacity for the following

school year.” Id. § 21.206(c).

                Solis alleged in her petition for review that she was employed under a contract subject

to the TCNA and was not given notice of proposed nonrenewal of her contract in accordance with

section 21.206(a). In that case, there were no administrative steps left for Solis to take because, as

a matter of law, the failure to give notice constituted an election to continue her employment for the

following school year. The Commissioner had jurisdiction to consider Solis’s claim that MCISD

violated state school law by not acknowledging her continued employment, and Solis did not waive

that claim by not raising it at the local level. The Commissioner had before him a sufficient record

from MCISD from which he could determine (1) whether, after transfer to the assistant principal

position, Solis was employed under a term contract governed by the TCNA and, if so (2) whether



                                                   19
MCISD’s action or inaction constituted an election to employ her for the following school year such

that its failure to do so was a violation of the school laws of the State of Texas.

               Having concluded that the Commissioner erred by dismissing Solis’s petition for

review on the ground that he lacked jurisdiction, we overrule MCISD’s and the Commissioner’s

sole appellate issues.


                                          CONCLUSION

               For the reasons stated in this opinion, we conclude that the trial court properly

reversed the Commissioner’s decision dismissing Solis’s petition for review. We affirm the trial

court’s judgment remanding the case to the Commissioner.



                                               _____________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: August 22, 2018




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