Opinion issued July 2, 2013.




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-13-00018-CV
                           ———————————
       HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellant
                                       V.
                         LATASHA ROSE, Appellee


                   On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-55190

                         MEMORANDUM OPINION
      Latasha Rose worked for Houston Independent School District (HISD)

under a one-year term contract during the 2010–2011 school year. As part of a

reduction in force, HISD notified Rose in spring 2012 that it was eliminating her

position and decided not to renew her contract for the upcoming school year. Rose

initiated an administrative grievance pursuant to the Texas Education Code, but
filed this suit before exhausting the statutorily prescribed review procedures. See

TEX. EDUC. CODE ANN. § 21.207–.209 (West 2012). HISD responded with a plea

to the jurisdiction, contending that Rose’s failure to exhaust her administrative

remedies left the trial court without subject-matter jurisdiction to hear her claims.

The trial court granted the plea in part, but refused to dismiss Rose’s request for a

declaration that “HISD has violated her state constitutional rights under Article I,

Section 3 and Section 8 of the Texas Constitution.” In this interlocutory appeal,

HISD contends that the trial court erred in denying its plea to the jurisdiction as to

Rose’s claim for declaratory relief. We reverse and dismiss the suit for lack of

jurisdiction.

                                    Background

      At the beginning of the 2011–2012 school year, Rose held the position of

Magnet Coordinator at the High School for Law Enforcement and Criminal Justice

(LECJ), working under a one-year term contract. Early in the year, according to

Rose’s live pleading, Carol Mosteit, LECJ’s Principal, sent Rose an email

informing her of her decision to deny admission to a disabled child. Believing that

Mosteit’s decision violated school policy and the law, Rose forwarded the email to

the child’s mother. Rose’s actions came to light when the parent complained to the

school about her child’s rejection, and Rose was disciplined for engaging in

unprofessional conduct.


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      At or around the same time, Rose’s husband’s Facebook page had a post that

contained critical comments. The post did not name the target of the comments, but

described the person as having idiosyncrasies that Mosteit had, making it apparent

that the comments referred to Mosteit.

      Following these incidents, Rose was transferred to Lamar High School to

serve as the bookroom custodian, an assignment with fewer responsibilities and

lower status. Rose filed a grievance against Mosteit and the school improvement

officer complaining of the transfer. After Rose filed the grievance, she was

removed from the bookroom position and given an instructional assignment at

Lamar.

      Mosteit allegedly told Rose that she could return to the magnet coordinator

position at LECJ if she would agree to certain conditions, including the dismissal

of her grievance against Mosteit. Rose agreed, and she was reinstated as LECJ’s

magnet coordinator.

      In late 2010, HISD’s superintendent announced that anticipated budget cuts

required a district-wide reduction in force (RIF). After the Texas Legislature

announced the cuts in the spring of 2011, Mosteit notified Rose that the district

was eliminating her position as part of the RIF, and Rose learned that her contract

would not be renewed.




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      Rose filed an administrative grievance challenging the non-renewal decision.

An independent examiner found that the district administration had met its burden

in recommending non-renewal to the Board. The Board upheld the nonrenewal

decision. Rose appealed that decision to the Commissioner of Education, who

concluded that substantial evidence supported the Board’s decision.

      A month before the Commissioner’s decision, Rose instituted this lawsuit,

claiming that HISD violated her state constitutional rights and seeking declaratory

relief, as well as injunctive relief in the form of reinstatement and an order

prohibiting HISD from further violating her constitutional rights. In her live

pleading, Rose contends that she exercised protected speech under Article One,

Section 8 of the Texas Constitution when she, on August 24, 2010, communicated

Principal Mosteit’s decision not to admit the disabled child to LECJ to the child’s

mother. Rose alleges that, but for her communication with the disabled child’s

mother and her husband’s Facebook post, she would not have received the

demotion. Rose further contends that HISD “deprived her of rights secured by the

Texas Constitution, Article One, Sections 3 and 19” in conditioning her return to

the magnet coordinator position on the dismissal of her grievance against Mosteit.

      In addressing the administrative action, Rose alleges that she “exhausted her

administrative remedies by appealing to the HISD Board of Education; however,

the Board . . . prevented Rose from challenging the substantive motive of her


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termination, thereby depriving her of her protected interests without procedural

safeguards.”

                              Plea to the Jurisdiction

Standard of Review

      We review the trial court’s ruling on a plea to the jurisdiction de novo. State

v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). In a plea to the

jurisdiction, a defendant may challenge either the pleadings or existence of

jurisdictional facts. See Miranda, 133 S.W.3d at 226–28. In response, the plaintiff

must allege facts that affirmatively establish the trial court’s subject-matter

jurisdiction. Holland, 221 S.W.3d at 642; City of Pasadena v. Kuhn, 260 S.W.3d

93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining whether the

plaintiff has satisfied this burden, we construe the pleadings liberally in the

plaintiff’s favor and uphold the denial of the plea if the plaintiff has alleged facts

affirmatively demonstrating jurisdiction to hear the case. Miranda, 133 S.W.3d at

226–27; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex. App.—Houston

[1st Dist.] 2010, no pet.).

Administrative Exhaustion Requirement

      Generally, if an agency has exclusive jurisdiction, a party must exhaust all

administrative remedies before seeking judicial review of the agency’s action.


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Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.

2002) (citing Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)). Until

then, the trial court lacks subject matter jurisdiction and must dismiss the claims

within the agency’s exclusive jurisdiction. Id. “Requiring exhaustion of

administrative remedies is not meant to deprive an aggrieved party of any legal

rights. It is meant, rather, to provide an orderly procedure by which aggrieved

parties may enforce those rights.” Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d

792, 795 (Tex. App.—El Paso 2005, pet. denied). The policy behind the

exhaustion-of-administrative-remedies doctrine is to allow the agency to resolve

disputed issues of fact and policy and to assure that the appropriate body

adjudicates the dispute. Essenburg v. Dall. Cnty., 988 S.W.2d 188, 189 (Tex.

1998).

      The Texas Commissioner of Education has exclusive jurisdiction over

“(1) the school laws of this state; or (2) actions or decisions of any school district

board of trustees that violate: (A) the school laws of this state, or (B) a provision of

a written employment contract between the school district and a school district

employee, if a violation causes or would cause monetary harm to the employee.”

TEX. EDUC. CODE ANN. § 7.057(a) (West 2012); Larsen v. Santa Fe Indep. Sch.

Dist., 296 S.W.3d 118, 128 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

“This grant of exclusive jurisdiction requires such claimants to exhaust local


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school district grievance procedures before filing suit.” Larsen, 296 S.W.3d at 128;

see Subaru of Am., Inc., 84 S.W.3d at 221 (Tex. 2002) (citing Bennett, 35 S.W.3d

at 15). Texas law requires a contractual school district employee like Rose to

exhaust administrative remedies if the subject matter concerns administration of

school laws and involves questions of fact. Tex. Educ. Agency v. Cypress-

Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90–91 (Tex. 1992); Janik v. Lamar

Consol. Indep. Sch. Dist., 961 S.W.2d 322, 323 (Tex. App.—Houston [1st Dist.]

1997, pet. denied); see also Larsen, 296 S.W.3d at 120. Until then, the trial court

lacks subject matter jurisdiction and must dismiss the claims within the agency’s

exclusive jurisdiction.

      The Term Contract Nonrenewal Act, found in Chapter 21 of the Texas

Education Code, governs Rose’s employment relationship with HISD. The Act

provides an administrative procedure that allows a person employed by a school

district under a term contract to seek judicial review of a district’s decision not to

renew the contract. See Griego, 170 S.W.3d at 794; see also Gutierrez v. Laredo

Indep. Sch. Dist., 139 S.W.3d 363, 366–67 (Tex. App.—San Antonio 2004, no

pet.). Under the Act, a district employee who is aggrieved by the nonrenewal of a

term contract must exhaust the prescribed administrative remedies before seeking

redress in the courts. See TEX. EDUC. CODE ANN. § 21.209 (West 2012); see also

Brown v. Amarillo Indep. Sch. Dist., 190 S.W.3d 7, 10 (Tex. App.—Amarillo


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2005, no pet.) (citing Tex. Educ. Agency v. Cypress—Fairbanks Indep. Sch. Dist.,

830 S.W.2d 88, 90 (Tex. 1992)).

      It is undisputed that Rose pursued the administrative process through an

appeal to the Commissioner of Education. See TEX. EDUC. CODE ANN. § 21.301–

304. It is also undisputed that Rose did not seek judicial review of the

Commissioner’s decision; she filed this suit before she exhausted her

administrative remedies. See id. § 21.307 (requiring that an aggrieved party perfect

an appeal of the Commissioner’s decision within 30 days and requiring that the

Commissioner be made a party to the appeal).

Exceptions to the Administrative Exhaustion Requirement

      Under certain limited circumstances, the administrative exhaustion

requirement does not apply and, consequently, an aggrieved party may seek relief

in the courts without overcoming that hurdle. For example, if the issues presented

involve a pure question of law, such as when the uncontroverted facts show that

the board lacked authority to take the action that caused the harm, the party may

appeal directly to the courts. Westheimer Indep. Sch. Dist. v. Brockett, 567 S.W.2d

780, 785–86 (Tex. 1978); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769,

774 (Tex. App.—Houston [14th Dist.] 1991, writ denied). Similarly, an exception

also exists if the party “has made a constitutional challenge that would remain

standing after exhaustion of the administrative remedy.” Taylor v. U.S. Treas.


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Dep’t, 127 F.3d 470, (5th Cir. 1997), quoted in Dawson Farms, LLC v. Farm Serv.

Agency, 504 F.3d 592, 606 (5th Cir. 2007).

      An aggrieved party is also entitled to bypass the administrative process if

she can show that it is certain that the claim will be denied on appeal. See Dawson

Farms, LLC, 504 F.3d at 606 (recognizing futility exception to exhaustion of

administrative remedies); see also McKart v. United States, 395 U.S. 185, 193–94,

198 n.16, 89 S. Ct. 1657, 1662–63, 1665 & n.16 (1969) (observing that plaintiff is

not excused from exhausting administrative remedies simply because their pursuit

would have little chance of ultimate success). We consider whether Rose met her

burden to show that her claim falls within one of these exceptions.

      Constitutional claim exception

      Rose contends that she was not required to exhaust her administrative

remedies because her declaratory relief claim is grounded in the constitution. An

exception to the exhaustion of administrative remedies exists for some

constitutional claims. See Jones v. Clarksville Indep. Sch. Dist., 46 S.W.3d 467,

474 (Tex. App.—Texarkana 2001, no pet.). But, when a school employee’s

constitutional claims are only “ancillary to and supportive of a complaint about the

board’s handling of an employment contract or application of school law,” the

employee must first exhaust the administrative process. Dotson v. Grand Prairie

Indep. Sch. Dist., 161 S.W.3d 289, 292–93 (Tex. App.—Dallas 2005, no pet.)


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(citing Jones, 46 S.W.3d at 474). Further, this exception is unavailable if the

subject matter underlying the employee’s claims requires resolution of disputed

facts. See Carrillo v. Anthony Indep. Sch. Dist., 921 S.W.2d 800, 804 (Tex. App.—

El Paso 1996, no writ).

      Rose contends that her declaratory relief claim comes within the

constitutional claim exception because she asserts violations of the Texas

Constitution, not the Education Code, and that the Commissioner’s jurisdiction

extends only to “the school laws of this state.” See TEX. EDUC. CODE ANN.

§ 7.057(a). We disagree. An employee’s complaint of retaliatory discharge “is

precisely the kind of complaint that must first be presented in an administrative

hearing.” Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 682 (Tex.

App.—Tyler 1996, no writ) (citing Barrientos v. Ysleta Indep. Sch. Dist., 881

S.W.2d 159, 161 (Tex. App.—El Paso 1994, no writ)). The school laws

presumably comply with the state and federal constitutions. See TEX. GOV’T CODE

ANN. § 311.021(1) (West 2013) (“In enacting a statute, it is presumed that . . .

compliance with the constitution of this state and the United States is intended”).

The Commissioner is thus authorized to consider the constitutionality of the

district’s non-renewal decision in determining whether its action complied with the

state school laws.




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      Rose cannot excise her request for declaratory relief separately from her

employment-related claims. A determination of the constitutionality of the

district’s actions with respect to Rose necessarily implicates the validity of the

district’s actions affecting Rose’s employment status and, because that

determination requires the resolution of disputed fact issues, Rose has not shown

that the exception for constitutional violations applies to her claim.

      Rose further contends that HISD is judicially estopped from asserting that

the constitutional claim exception does not apply to her claim because HISD’s

pleadings and briefing in the trial court recognized the general existence of the

constitutional claim exception. Putting aside the merits of this contention, the

Texas Supreme Court has declared that, “[a]s a general rule, a court cannot acquire

subject-matter jurisdiction by estoppel.” Wilmer-Hutchins Indep. Sch. Dist v.

Sullivan, 51 S.W.3d 293, 294 (Tex. 2001); Janik, 961 S.W.2d at 324. Estoppel thus

cannot affect whether the trial court has subject-matter jurisdiction over Rose’s

declaratory judgment claim.

      Futility

      Lastly, Rose claims that administrative exhaustion in her case would be

futile, because “the Board . . . prevented Rose from challenging the substantive

motive of her termination, thereby depriving her of her protected interests without

procedural safeguards.” The appellate record, however, contains no evidence


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showing that the Board failed to fully consider the allegations set forth in Rose’s

grievance before rendering its decision, or that it acted with procedural limitations

or irregularities that precluded consideration of those allegations on appeal to the

Commission. Rose has not met her burden to show that the futility exception to the

administrative exhaustion requirement applies to her claim.

                                     Conclusion

      We hold that the administrative exhaustion requirement applies to Rose’s

claim for declaratory relief, and that Rose has not met her burden to show that an

exception to the administrative exhaustion requirement applies to her claim. We

therefore reverse the judgment denying HISD’s plea to the jurisdiction on Rose’s

claim for declaratory relief and remand with an instruction to the trial court to

dismiss that claim for want of jurisdiction.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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