                                                                              ACCEPTED
                                                                          13-15-00033-CV
                                                          THIRTEENTH COURT OF APPEALS
                                                                 CORPUS CHRISTI, TEXAS
                                                                    6/24/2015 11:19:03 PM
                                                                   CECILE FOY GSANGER
                                                                                   CLERK



                 No. 13-15-00033-CV
                                                      FILED IN
                                              13th COURT OF APPEALS
                 In the Court of AppealsCORPUS CHRISTI/EDINBURG, TEXAS
     For   the Thirteenth Judicial District of6/24/2015
                                               Texas 11:19:03 PM
                                                CECILE FOY GSANGER
             Corpus Christi-Edinburg, Texas            Clerk


                    Adan Perez, Jr.,
                      Appellant

                           v.

       Weslaco Independent School District,
                    Appellee

       On Appeal from Cause No. C-641-11-F
In The 332nd District Court of Hidalgo County, Texas
 The Honorable Judge Mario Ramirez, Jr., Presiding


                Appellant’s Reply Brief


                                          Hawash Meade Gaston
                                          Neese & Cicack LLP

                                          Andrew K. Meade
                                          Texas Bar No. 24032854
                                          Samuel B. Haren
                                          Texas Bar No. 24032854
                                          2118 Smith Street
                                          Houston, Texas 77002
                                          713-658-9001 (phone)
                                          713-658-9011 (fax)
                                          sharen@hmgnc.com

                                          Attorneys for Appellant

            Oral Argument Not Requested
                                                Table of Contents

Table of Contents ........................................................................................................i
Index of Authorities .................................................................................................. ii
Argument.................................................................................................................... 1
    I. The trial court has jurisdiction over Perez’s whistleblower claim .................. 1
         A. Perez reported WISD’s illegal acts before his termination ........................ 1
         B. Perez satisfied Whistleblower Act’s grievance-initiation
            requirement ................................................................................................. 3
              1. The Whistleblower Act only requires initiation of the grievance
                 process ................................................................................................... 3
              2. Perez participated in the grievance process despite WISD’s
                 intransigence .......................................................................................... 5
         C. The Whistleblower Act’s statute of limitations is not jurisdictional ......... 7
    II. The trial court has jurisdiction over Perez’s due process claims .................... 8
        A. Perez did not receive notice and a fair hearing .......................................... 9
         B. Perez has a property interest in renewal of his contract ........................... 10
         C. Perez was not required to exhaust his remedies before bringing his
            due process claims .................................................................................... 12
Conclusion ............................................................................................................... 13
Certificate of Compliance ........................................................................................ 15
Certificate of Service ............................................................................................... 16




                                                              i
                                              Index of Authorities

Case                                                                                                            Page(s)

Aguilar v. Socorro Indep. Sch. Dist.,
      296 S.W.3d 785 (Tex. App.—El Paso 2009, no pet.) ................................. 8–9

Bates v. Tex. State Tech. Coll.,
      983 S.W.2d 821 (Tex. App.—Waco 1998, pet. denied) ............................... 14

Bd. of Regents of State Coll. v. Roth,
       408 U.S. 564 (1972)....................................................................................... 14

Chance v. Elliot & Lillian, LLC,
     No. 08-13-00248-CV, 2015 WL 1570228 (Tex. App.—El Paso Apr.
     8, 2015) ............................................................................................................ 6

City of Corpus Christi v. Pub. Utility Com’n of Tex.,
       51 S.W.3d 231 (Tex. 2001) ........................................................................... 13

Comb v. Benji’s Special Educ. Acad., Inc.,
     745 F. Supp. 2d 755 (S.D. Tex. 2010) ........................................................... 15

Dallas Cnty. v. Hughes,
      189 S.W.3d 886 (Tex. App.—Dallas 2006, pet. denied) ........................11–12

Fort Bend Indep. Sch. Dist. v. Gayle,
      371 S.W.3d 391 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ........ 8–9

Friona Indep. Sch. Dist. v. King,
      15 S.W.3d 653 (Tex. App.—Amarillo 2000, no pet.) ................................... 16

Gosney v. Sonora Indep. Sch. Dist.,
     603 F.2d 522 (5th Cir. 1979) ......................................................................... 15

Govant v. Houston Cmty. Coll. Sys.,
     72 S.W.3d 69 (Tex. App.—Houston [14th Dist.] 2002, no pet.) .................. 14

Gregg Cnty. v. Farrar,
     933 S.W.2d 769 (Tex. App.—Austin 1996, writ denied) ............................... 8



                                                            ii
Leyva v. Crystal City,
      357 S.W.3d 93 (Tex. App.—San Antonio 2011, no pet.) ............................... 9

Martine v. Bd. of Regents, State Senior Tech. Coll. of Tex.,
      578 S.W.2d 465 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.) ................. 15

Martinez v. Donna Indep. Sch. Dist.,
      No. 13-03-300-CV, 2004 WL 1852969 (Tex. App.—Corpus Christi-
      Edinburg Aug. 19, 2004, pet. denied) ........................................................... 16

Mission Consol. Indep. Sch. Dist. v. Garcia,
      372 S.W.3d 629 (Tex. 2012) ........................................................................... 6

Nelson v. Clements,
      831 S.W.2d 587 (Tex. App.—Austin 1992, writ denied) .......................14–15

Olivarez v. La Villa Indep. Sch. Dist.,
      No. 13-04-345-CV, 2007 WL 925648 (Tex. App.—Corpus Christi-
      Edinburg Mar. 29, 2007, no pet.) .................................................................. 16

Rusk State Hosp. v. Black,
      392 S.W.3d 88 (Tex. 2012) .....................................................................12–13

Sullivan v. Univ. Tex. Health Sci. Ctr. at Houston Dental Branch,
       No. 01-08-00327-CV, 2008 WL 5179023 (Tex. App.—Houston] Dec.
       11, 2008, pet. denied) .................................................................................... 15

TEA v. Cypress-Fairbanks I.S.D.,
     830 S.W.2d 88 (Tex. 1992) .....................................................................16–17

Tex. A&M Univ. at Corpus Christi v. Hamann,
      3 S.W.3d 215 (Tex. App.—Corpus Christi 1999, pet. denied) ..................... 11

Tex. Dept. of Mental Health & Mental Retardation v. Olofsson,
      59 S.W.3d 831 (Tex. App.—Austin 2001, pet. dismissed) ........................... 11

Univ. Tex. Med. Branch at Galveston v. Barrett,
      159 S.W.3d 631 (Tex. 2005) ....................................................................... 7–8




                                                         iii
W. Houston Charter Sch. Alliance v. Pickering,
     No. 01-10-00289, 2011 WL 3612288 (Tex. App.—Houston [1st Dist.]
     2011, no pet.) ................................................................................................... 8



Statute/Rule                                                                                                 Page(s)

Tex. Gov. Code § 554.006 ..................................................................................... 7–8




                                                           iv
                                      Argument

I.    The trial court has jurisdiction over Perez’s whistleblower claim.

      This case presents a straightforward application of the Texas Whistleblower

Act: WISD’s management illegally misappropriated funds, Perez notified the TEA,

and WISD fired Perez in retaliation. WISD’s brief does not change these simple

facts or otherwise show that the trial court lacks jurisdiction.

      A.     Perez reported WISD’s illegal acts before his termination.

      WISD is correct that Perez must show that he blew the whistle on WISD

prior to his termination. Perez did exactly that. Perez’s affidavit both unequivocally

states that he made his initial report to the TEA ―before [he] received his negative

performance evaluation‖ from WISD. CR 256 at ¶ 9. This pre-evaluation report is

all that is necessary to establish causation for jurisdictional purposes.

      WISD argues that the Court should ignore Perez’s petition and affidavit

because it purportedly contradicts the following exchange from his deposition:

      Q:     Prior to February 5th, 2010, you did not report any illegal
             conduct to anybody, did you?

      Mr. Haren: Objection to the form.

      A:     No.

CR 189:6–9. Because the question is worded negatively, it is somewhat difficult to

parse. But a close reading shows that Perez denied that he had not yet blown the




                                           1
whistle on WISD before February 5, 2010. As such, there is no contradiction

between Perez’s affidavit and his answer to WISD’s deposition question.

       But even if Perez’s affidavit contradicts the double-negative in his

deposition, WISD waived any objection thereto. WISD acknowledges that, if a

plea to the jurisdiction involves the submission of evidence, the ―review of the

evidence generally mirrors the summary judgment standard.‖ See WISD’s Brief

at 11. While this is something of an over-simplification, this statement is largely

correct.1

       In evaluating the grant or denial of a motion for summary judgment, a court

of appeals must make its decision based on all of the admitted evidence in the

summary judgment record. See Chance v. Elliot & Lillian, LLC, No. 08-13-00248-

CV, 2015 WL 1570228, at *4 (Tex. App.—El Paso Apr. 8, 2015). Perez submitted

his affidavit in his response to WISD’s plea to the jurisdiction. See CR 255–54.

WISD’s response does not include any objection to the admission of Perez’s

affidavit.2 See CR 416–26. Accordingly, Perez’s unobjected-to statement that he




1
  The Texas Supreme Court has stated that a plea to the jurisdiction ―must not involve a
significant inquiry into the substance of the claims‖ at issue and that a court may decide ―that the
inquiry is reaching too far into the substance of the claims and should therefore await a fuller
development of the merits. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635
(Tex. 2012).
2
  Had WISD made such an objection, Perez would have been able to ask the trial court for leave
to supplement his affidavit with an explanation for the alleged contradiction.


                                                 2
blew the whistle to the TEA before his performance evaluation is a part of the

record and should be considered by the Court.

      B.    Perez satisfied       Whistleblower       Act’s    grievance-initiation
            requirement.

      WISD does not dispute that Perez (1) initiated the grievance process

and (2) was not required to exhaust that process prior to filing his whistleblower

claim. Instead, WISD argues that he did not ―meaningfully participate in the

administrative process.‖ WISD’s Brief at 16. This argument is both legally and

factually wrong.

            1.     The Whistleblower Act only requires initiation of the
                   grievance process.

      The Whistleblower Act only requires an employee to ―initiate action under

the grievance or appeal procedures‖ of his employer. Tex. Gov. Code § 554.006(a).

As stated in the University of Texas Medical Branch case cited by WISD:

      Section 554.006 does not require that grievance or appeal procedures
      be exhausted before suit can be filed; rather, it requires that such
      procedures be timely initiated and that the grievance or appeal
      authority have 60 days in which to render a final decision.

Univ. Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005).

      Accordingly, the First Court of Appeals refused in Fort Bend to impose any

non-textual participation requirement:

      While the Legislature may have envisioned not merely sixty-days’
      notice but also sixty-days’ participation in the administrative process,
      the statute requires only “initiat[ion],” and we are bound by that


                                         3
      language. A court should interpret a statute by reference to its
      language alone when the court can do so. The meaning of “initiate”
      is plain: it means to commence the process.

      Second, engrafting a requirement of meaningful participation into the
      initiation requirement is contrary to the history of the words used in
      the statute itself. Not only did the legislature use the word initiate, it
      replaced the word exhaust and even changed the title of section
      554.006 from ―Exhaustion of Grievance or Appeal Procedures‖ to
      ―Use of Grievance or Appeal Procedures.‖

Fort Bend Indep. Sch. Dist. v. Gayle, 371 S.W.3d 391, 397–98 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (emphasis added) (alteration in original).

The court further recognized that, ―[o]nce a grievance is s initiated, the

governmental unit has notice of the claim so it can begin its own investigation of

the claim‖ regardless of the participation by the claimant. Id. at 397 n.2.

      None of the cases cited in WISD’s brief impose the meaningful participation

requirement advocated by WISD. In fact, most merely state that an employee must

properly initiate a grievance procedure in accordance with the employer’s

procedures. See, e.g., W. Houston Charter Sch. Alliance v. Pickering, No. 01-10-

00289, 2011 WL 3612288, at *8 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(employee failed to properly initiate grievance in accordance with employer’s

procedures); Gregg Cnty. v. Farrar, 933 S.W.2d 769, 776–77 (Tex. App.—Austin

1996, writ denied) (employee failed to initiate grievance proceeding at all).

      Aguilar is the only case cited by WISD which requires anything more than

proper initiation of the grievance process. See Aguilar v. Socorro Indep. Sch. Dist.,


                                          4
296 S.W.3d 785, 789–90 (Tex. App.—El Paso 2009, no pet.). But even that case

did not require ―meaningful participation.‖ In Aguilar, the employee ―did not fully

cooperate with the arbitrator’s‖ requests during an arbitration proceeding. Id. at

789–90. The employee’s attorney even ―admitted that the grievance was filed

simply to comply with the administrative procedures and that the proper forum

would be a court of law.‖ Id. at 790. The court ultimately held an employee does

not comply with the initiation requirement of the Whistleblower Act when he

―refuse[s] to participation in the grievance hearing . . . .‖ Id.

      Although Aguilar does not impose a meaningful participation requirement, it

does impose an extra-statutory duty beyond mere initiation. This imposition

contradicts the basic rule that ―the purpose of the [Whistleblower] Act is remedial,

and it should be liberally construed in favor of jurisdiction.‖ Leyva v. Crystal City,

357 S.W.3d 93, 100 (Tex. App.—San Antonio 2011, no pet.). Accordingly, Perez

urges the Court to adopt the textual approach of Fort Bend instead of the more

restrictive Aguilar.

             2.        Perez participated in the grievance process despite WISD’s
                       intransigence.

      Perez can meet his jurisdictional burden regardless of whether the Court

choses to impose (1) the initiation requirement of the Whistleblower Act and Fort

Bend, (2) the cooperation requirement of Aguilar, or (3) the meaningful

participation requirement suggested by WISD.


                                            5
      WISD alleges that Perez ―delayed any Level One meeting with the school,

dragging out the process until he could file suit.‖ WISD’s Brief at 18. In support,

WISD cites to (1) an affidavit by a WISD administrator stating that the initial

grievance hearing was delayed because of ―various scheduling issues and the

parties[’] numerous attempts to resolve the matter informally,‖ (2) a series of

letters and emails discussing those scheduling issues and settlement attempts,

and (3) an allegation from WISD’s plea to the jurisdiction which does not cite to

any exhibit or authority. See id. (citing CR 140–41, 298–339, 420). Simply put,

WISD has not cited to any fact in the record showing that Perez either refused to

cooperate or failed to participate in the grievance procedures.

      By contrast, Perez has alleged that, after he commenced the grievance

process, ―WISD ignored [the grievance] procedures and refused to grant Perez a

hearing.‖ CR 412 at ¶ 18. Once the hearing was finally held, Perez did not

participate because he had been led to believe that the meeting was a mere

settlement conference and not the actual hearing. See CR 83 at ¶ 9. WISD asks the

Court to ignore these uncontradicted allegations and instead infer that the

―scheduling issues‖ and ―attempts to resolve the matter informally‖ were somehow

nefarious and did not constitute meaningful participation. Such an inference in

favor of the party seeking to avoid jurisdiction is not permitted in resolving a plea

to the jurisdiction, and Perez respectfully asks the Court to refuse to do so. See Tex.


                                          6
A&M Univ. at Corpus Christi v. Hamann, 3 S.W.3d 215, 216–17 (Tex. App.—

Corpus Christi 1999, pet. denied) (―The dismissal of a case for lack of jurisdiction

must be based solely on the pleadings. We accept all allegations in the plaintiff’s

petition as true.‖) (emphasis in original).

      Finally, WISD’s plea to the jurisdiction alleged only that Perez was required

to fully-exhaust his administrative remedies. See CR 127–32, 420. WISD did not

make its meaningful participation argument until its opening brief. Because the

exhaustion argument fails as a matter of law, Perez did not need to present

evidence to the trial court of the extent of his participation. If necessary, Perez

would be happy to do so in the future. See infra § II (explaining the burden of

proof for arguments raised for the first time on appeal).

      C.     The Whistleblower          Act’s     statute   of   limitations   is   not
             jurisdictional.

      WISD further alleges that Perez’s grievance was untimely. But as stated in

Perez’s opening brief, this issue is not relevant to a plea to the jurisdiction. Failure

to comply with the ninety day deadline ―gives rise to the affirmative defense of

limitations, but it is not grounds for a plea to the jurisdiction.‖ Tex. Dept. of Mental

Health & Mental Retardation v. Olofsson, 59 S.W.3d 831, 832–33 (Tex. App.—

Austin 2001, pet. dismissed). See also Dallas Cnty. v. Hughes, 189 S.W.3d 886,

888 (Tex. App.—Dallas 2006, pet. denied) (―Because limitations is a defensive

issue, not a jurisdictional issue, the trial court correctly denied Dallas County’s


                                              7
assertion of the limitations bar through a plea to the jurisdiction.‖). WISD cannot

use a plea to the jurisdiction as a motion for summary judgment on an unpled

affirmative defense. See CR 24–26.

II.    The trial court has jurisdiction over Perez’s due process claims.

       WISD challenges Perez’s due process claim for the first in its response brief.

Accordingly, Perez has not had the opportunity to (1) assemble evidence and

affidavits to support his claim or (2) amend his pleading to remedy any defects

alleged by WISD. Perez will address WISD’s challenge given the current state of

the record.

       WISD is correct that subject matter jurisdiction may be raised for the first

time in an interlocutory appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96

(Tex. 2012). Such challenges are, however, held to a higher standard than those

raised in a trial court:

       [I]f the pleadings and record neither demonstrate jurisdiction nor
       conclusively negate it, then in order to obtain dismissal of the
       plaintiff’s claim, the defendant entity has the burden to show either
       that the plaintiff failed to show jurisdiction despite having had full and
       fair opportunity in the trial court to develop the record and amend the
       pleadings; or, if such opportunity was not given, that the plaintiff
       would be unable to show the existence of jurisdiction if the cause
       were remanded to the trial court and such opportunity afforded.

Id.

       WISD’s allegation that ―Perez must prove‖ ―his prima facie due process

claim‖ inverts this standard. See WISD’s Brief at 20. WISD ―has the burden‖


                                           8
prove the lack of subject matter jurisdiction. See Rusk State Hosp., 392 S.W.3d at

96. It has failed to do so.

       A.     Perez did not receive notice and a fair hearing.

       WISD complains that ―Perez did not plead that he did not receive notice or

did not receive a hearing.‖ WISD’s Brief at 21. As discussed above, failure to

plead an allegation will not support a challenge to subject matter jurisdiction which

has been raised for the first time on appeal.

       Even the current record shows that Perez did not receive sufficient notice

and opportunity to be heard:

       [WISD’s] administrative procedures required that they give Perez a
       hearing on his Level 1 Complaint by July 30, 10 . . . . [WISD] waited
       over 130 days before finally holding a ―hearing‖ on December 1,
       2010, which Perez did not even attend because he believed the
       scheduled meeting was a settlement conference and not the long-
       overdue Level 1 Complaint hearing.

CR 83 at ¶ 9. Moreover, Perez was not merely entitled to a hearing; he was entitled

to ―a full and fair hearing on disputed fact issues.‖ City of Corpus Christi v. Pub.

Utility Com’n of Tex., 51 S.W.3d 231, 262 (Tex. 2001). And had WISD raised its

challenge with the trial court, Perez would have been able to offer even more

pleadings and evidence showing why his hearing was insufficient and unfair.

       Ultimately, neither party has briefed nor discussed the issue of whether

Perez received adequate notice and a fair hearing. Accordingly, this issue should

be resolved in the trial court and not in this appeal.


                                           9
       B.      Perez has a property interest in renewal of his contract.3

       WISD broadly asserts that ―[a] contract of definite term that expressly states

the employment was only for the length of the contract does not create a

reasonable expectation of renewal.‖ WISD’s Brief at 22. In the abstract, this is

correct: a contract with a definite length will not, standing alone, create a property

interest. Similarly, a contract with a definite length will not, standing alone,

preclude a property interest.

       The cases cited by WISD do not hold otherwise. Bates was decided on the

statute of limitations, and the plaintiff admitted that he did not expect continued

employment based on his contract. See Bates v. Tex. State Tech. Coll., 983 S.W.2d

821, 830 (Tex. App.—Waco 1998, pet. denied). The plaintiff in Govant did not

have a property interest in continued employment because his contract stated that

he ―shall have no expectation of continued employment or property interest in his

employment . . . .‖ Govant v. Houston Cmty. Coll. Sys., 72 S.W.3d 69, 76 (Tex.

App.—Houston [14th Dist.] 2002, no pet.) (internal modification omitted). The

plaintiff in Nelson lost because he claimed that a single payment by his employer


3
  Perez also claimed that WISD’s fraudulent performance review destroyed his reputation and
deprived him of ―his liberty interest in serving as a risk manager for another
school/governmental body . . . .‖ CR 413 at ¶ 25. WISD has not argued that this liberty interest is
not constitutionally-protected. If made, however, such an argument would have failed. See Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 574 (1972) (―Where a person’s good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, notice
and an opportunity to be heard are essential.‖).


                                                10
created a property right in future payments. Nelson v. Clements, 831 S.W.2d 587,

591 (Tex. App.—Austin 1992, writ denied). Finally, the defendant in Sullivan

―merely declined to offer‖ a renewal; there was no discussion of any other factors

which could have created an interest. Sullivan v. Univ. Tex. Health Sci. Ctr. at

Houston Dental Branch, No. 01-08-00327-CV, 2008 WL 5179023, at *4 (Tex.

App.—Houston] Dec. 11, 2008, pet. denied).

      A property right can exist when there are factors beyond the mere non-

renewal of a contract. For example, a ―de facto system of tenure‖ can create ―an

expectancy continued employment.‖ Martine v. Bd. of Regents, State Senior Tech.

Colls. of Tex., 578 S.W.2d 465, 470 (Tex. Civ. App.—Tyler 1979, writ ref’d

n.r.e.). Similarly, an administrator’s non-binding statement that a contract would be

renewed can ―trigger[] due process protection‖ for an expectation of renewal.

Gosney v. Sonora Indep. Sch. Dist., 603 F.2d 522, 525 (5th Cir. 1979). Even a

―mutual understanding‖ that an employee will not be terminated can create an

property right in continued employment. Comb v. Benji’s Special Educ. Acad.,

Inc., 745 F. Supp. 2d 755, 763 (S.D. Tex. 2010).

      Perez’s right to renewal is based on far more than the mere non-renewal of

his contract. He alleges a ―longstanding unwritten policy by WISD of

automatically renewing contracts of its non-teacher employees every[y] year,

barring cause, misconduct, or budgetary constraints.‖ CR 257. This tacit policy


                                         11
became express when WISD ―represented to [him] that it would follow this policy

with [him].‖ Id. Together, these allegations are more than sufficient to create a fact

issue regarding whether Perez had a reasonable and protected interest in continued

employment.

      C.     Perez was not required to exhaust his remedies before bringing
             his due process claims.

      WISD finally argues that Perez was required to exhaust his administrative

remedies before bringing his constitutional claims. WISD acknowledges that

different courts of appeals have come to different conclusions on this issue.

Ultimately, however, the split of authority is irrelevant.

      Both the Texas Supreme Court and this Court agree that ―an exception to the

requirement of pursuing administrative relief is found where the claims are for a

violation of constitutional or federal statutory rights.‖ Olivarez v. La Villa Indep.

Sch. Dist., No. 13-04-345-CV, 2007 WL 925648, at *2 (Tex. App.—Corpus

Christi-Edinburg Mar. 29, 2007, no pet.) See also Martinez v. Donna Indep. Sch.

Dist., No. 13-03-300-CV, 2004 WL 1852969, at *1 (Tex. App.—Corpus Christi-

Edinburg Aug. 19, 2004, pet. denied) (same); Friona Indep. Sch. Dist. v. King, 15

S.W.3d 653, 659 (Tex. App.—Amarillo 2000, no pet.) (because federal and state

constitutional rights ―do not arise under Titles 1 and 2 of the Education Code,‖

exhaustion was not required)




                                          12
      In Texas Education Agency, for example, several school employees from

claims under the Texas and United States Constitutions. TEA v. Cypress-Fairbanks

I.S.D., 830 S.W.2d 88, 89 (Tex. 1992). The Texas Supreme Court stated (albeit in

dicta) that the ―constitutional claims are not affected by the doctrine of exhaustion

of administrative remedies such that they must be originally considered by the

[reviewing agency]. Because of the nature of such claims, prior resort to the

administrative process is not usually required.‖ Id. at 91 n.3.

      Thus, under the rules announced by the Texas Supreme Court and this

Court, Perez was not required to exhaust his remedies, and WISD’s argument fails

accordingly.

                                     Conclusion

      Perez satisfied the requirements of the Whistleblower Act by reporting

illegal activity prior to his performance review and by initiating the grievance

procedure. Perez alleges that he did not receive notice and a fair hearing, and he

can provide additional facts and allegations in the trial court if necessary. Perez has

a property interest in continued employment due to (1) WISD’s longstanding

pattern and practice of automatic renewals and (2) WISD’s representations to Perez

that it would follow that practice with him. Finally, controlling precedent states

that Perez was not required to exhaust his administrative remedies before bringing




                                          13
his due process claims. Perez prays that the Court reverse the trial court’s order and

remand the case for further proceedings.

                                                    Respectfully submitted,

                                                    Hawash Meade Gaston
                                                    Neese & Cicack LLP

                                                    /s/ Samuel B. Haren
                                                    Andrew K. Meade
                                                    Texas Bar No. 24032854
                                                    Samuel B. Haren
                                                    Texas Bar No. 24032854
                                                    2118 Smith Street
                                                    Houston, Texas 77002
                                                    713-658-9001 (phone)
                                                    713-658-9011 (fax)
                                                    sharen@hmgnc.com

                                                    Attorneys for         Appellant,
                                                    Adan Perez, Jr.




                                           14
                           Certificate of Compliance

      This brief complies with the length limitations of Texas Rule of Appellate

Procedure 9.4(i)(2)(B) because it contains 3,235 words, excluding the parts of the

brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

                                                        /s/ Samuel B. Haren
                                                             Samuel B. Haren




                                       15
                              Certificate of Service

      I hereby certify that a true and correct copy of the foregoing was served on

the following via electronic service on June 24, 2015:

      Stacy Tuer Castillo
      Texas Bar No. 00796322
      D. Craig Wood
      Texas Bar No. 2188870
      Miguel A. Saldaña
      Texas Bar No. 17429450
      Walsh, Anderson, Gallegos, Treviño, Russo & Kyle, P.C.
      100 NE Loop 410, #900
      San Antonio, Texas 78216
      210-979-6633 (phone)
      210-979-7024 (fax)
      scastillo@wabsa.com
      cwood@wabsa.com
      msaldana@wabsa.com

                                                         /s/ Samuel B. Haren
                                                              Samuel B. Haren




                                        16
