      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00293-CV



                                 Derrick E. Pavelka, Appellant

                                                 v.

 Texas Workforce Commission and City of Austin, Texas Aviation Department, Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
        NO. 04-543-C368, HONORABLE BURT CARNES, JUDGE PRESIDING



                            MEMORANDUM OPINION

               Derrick Pavelka asserts that the district court erred in concluding that substantial

evidence supports the Texas Workforce Commission’s (the Commission) decision denying his claim

for unemployment benefits because he was terminated for misconduct.               Tex. Lab. Code

Ann.§ 207.44(a) (West 2006). In December 1994, Pavelka was arrested for the unlawful carrying

of a weapon in Dallas County. See Tex. Penal Code Ann. § 46.02(a) (West 2003). In April 1995,

Pavelka’s attorney entered a plea of nolo contendere on Pavelka’s behalf, and the trial court placed

Pavelka on deferred adjudication community supervision for twelve months.             Pavelka was

discharged from community supervision in April 1996. In February 2001, Pavelka was hired by the

City of Austin Aviation Department and assigned to work at the local airport. The City’s

employment application included the following question: “Have you been convicted of a crime or

have you pled nolo contendere or been granted deferred adjudication within the last ten years?”

Despite his 1995 plea, on Pavelka’s application the “No” box is checked in response to the question.
               When it was discovered that Pavelka had received deferred adjudication, he was

terminated because he was no longer allowed to have unescorted access to the Security Identification

Display Area at the airport, a requirement for his job duties, and because he falsified his employment

application. Pavelka applied for unemployment benefits. The Commission denied his application

based on its determination that Pavelka was discharged from his position for falsifying his

employment application, which constitutes misconduct under the Act. See Tex. Lab. Code

Ann. § 201.012 (West 2006). Pavelka, appearing pro se, sought review of the Commission’s

decision in district court. Pavelka argued that he did not check the “No” box and, alternatively, if

he did, he did not understand the response to be false at the time because he was unaware of the fact

that he had been placed on deferred adjudication. The district court affirmed the Commission’s

decision, and Pavelka appeals from that judgment. Because Pavelka failed to establish that the

Commission’s decision was not supported by substantial evidence, we affirm the district court’s

judgment.


                                         BACKGROUND

               After the September 11, 2001 terrorist attacks, the Transportation Security

Administration (TSA) issued regulations requiring criminal history record checks on all employees

having unescorted access to secured areas of any airport in the United States. The regulations

prohibit the employment of “individuals who have unescorted access to aircraft or a secured area of

an airport when an individual has a criminal conviction (or finding of not guilty by reason of

insanity) for a disqualifying offense in the previous ten-year period.” In an effort to assist airport



                                                  2
personnel and “to ensure uniformity in the adjudication of background checks for airport and air

carrier workers,” TSA prepared a document entitled “Legal Guidance on Criminal History Records

Checks.” In the document, TSA took the position that “a conviction means any finding of guilt, plea

of guilty, plea of nolo contendere, or finding of not guilty by reason of insanity.” On December 19,

2001, the City of Austin sent a memorandum to all Aviation Department employees informing them

of TSA’s new regulations and requesting that the employees self-report whether they had been

“convicted or found not guilty by reason of insanity of a ‘disqualifying criminal offense.’” The

unlawful possession of a weapon was listed as a disqualifying offense, but the City did not circulate

the legal guidance document to its employees or explain that a plea of nolo contendere was

considered a conviction. Pavelka did not make a report.

               Lieutenant Tim Schroeder checked Pavelka’s criminal history. In December 2002,

Pavelka’s first criminal history background check came back negative. However, in September

2003, a second criminal background check revealed that Pavelka had been placed on deferred

adjudication community supervision for the unlawful carrying of a weapon in 1995. Relying on

TSA’s legal guidance document, Lieutenant Schroeder concluded that Pavelka had been convicted

of a disqualifying offense within the previous ten-year period and notified Pavelka’s supervisor, Patti

Edwards, that Pavelka was no longer eligible for unescorted access privileges at the airport. Edwards

met with Pavelka in an effort to find a different position for him, but there was no available position

that did not require unescorted access privileges. At that time, Edwards also pulled Pavelka’s job

application and discovered that he had checked the “No” box in response to the question asking

whether he had been granted deferred adjudication within the last ten years. Ultimately, Pavelka was


                                                  3
terminated from his position at the Aviation Department because he falsified his employment

application and because he was unable to perform his duties without unescorted access privileges.

               Pavelka appealed his termination to the City’s grievance committee and a hearing was

held in November 2003. The hearing officer, Frederick Ahrens, made the following finding:


       [Pavelka] gave credible testimony at the hearing that he believed the Court Order
       Dismissing the [unlawful carrying of a weapon] charge wiped his record clean.
       Therefore when he filled out his employment application he did not have a deferred
       adjudication or a plea of nolo contendere.


After reviewing Ahrens’s report, the City’s grievance committee recommended that “the decision

to terminate Derrick Pavelka be reversed.” The grievance committee recommended further that

Pavelka be reinstated to a similar position in another department. Despite the grievance committee’s

recommendation, the City determined that the decision to terminate Pavelka’s employment was

appropriate.

               After his termination, Pavelka applied for unemployment benefits, but the

Commission denied his application, saying that he was terminated for falsifying his employment

application. Pavelka appealed this decision to the Commission’s appeal tribunal and hearings were

held in November and December 2003. The hearing officer issued findings of fact and conclusions

of law. She found that Pavelka was not aware that he had been placed on deferred adjudication in

1995. She found further that Pavelka “never received any official court documents and thought all

charges had been dismissed prior to the time he applied for work” at the City. Nevertheless, the

hearing officer concluded that Pavelka’s testimony established that he was aware of the fact that his

attorney had entered a plea of nolo contendere on his behalf and that he was required to perform



                                                 4
community service. Therefore, she concluded that Pavelka falsified his employment application and

that this act constituted misconduct under the Texas Unemployment Compensation Act. Id.

Because she concluded that Pavelka was terminated for misconduct, she determined that he was not

eligible for benefits under the Act. See id. § 207.044(a). The Commission affirmed the appeal

tribunal’s decision denying Pavelka unemployment benefits.

               Pavelka filed suit challenging the Commission’s determination that he was discharged

for misconduct. See id. § 212.201(a) (West 2006). A trial was held in March 2005. The district

court heard testimony from Pavelka, Edwards, and Lieutenant Schroeder. Pavelka maintained that

when he filled out his employment application he was not aware that he had previously entered a

plea of nolo contendere and been placed on deferred adjudication. Pavelka testified that he was

unable to obtain any official court documents from the Dallas County trial court regarding his arrest,

plea of nolo contendere, and deferred adjudication.1 In addition, a copy of the Commission’s

administrative record was admitted for the district court’s consideration. The district court

concluded that the Commission’s decision was supported by substantial evidence and affirmed the

Commission’s denial of unemployment benefits to Pavelka.



       1
          After his trial, Pavelka received several documents and has submitted them to this Court
for review. We cannot rely on these documents because they have not been properly filed.
However, in the interest of justice, we have reviewed the documents. Essentially, the documents can
be divided into three categories. First, there is a series of e-mails concerning a dispute between
Pavelka and another employee. There is nothing in any of these e-mails regarding whether or not
Pavelka committed misconduct by falsifying his application. The second category includes copies
of documents from the Dallas County clerk’s office relating to the disposition of the unlawful
carrying of a weapon charge. Specifically, there is a copy of the nolo contendere plea that is signed
by Pavelka and a copy of the deferred adjudication judgment. The third category is comprised of a
series of articles discussing deferred adjudication.

                                                  5
                                          DISCUSSION
Misconduct

               Pavelka claims that the district court erred by affirming the Commission’s decision

that he was discharged for misconduct because there was no evidence that he intentionally falsified

his employment application as required by section 201.012 of the Act. See id. § 201.012.

               Judicial review of the Commission’s decisions on unemployment benefits is by trial

de novo under the substantial evidence standard. See id. § 212.202(a) (West 2006). A de novo

review of a Commission decision requires the reviewing court to determine whether the

Commission’s decision is supported by substantial evidence. Mercer v. Ross, 701 S.W.2d 830, 831

(Tex. 1986). Reviewing courts are not bound by, nor do they review, the Commission’s findings of

fact. See Hernandez v. Texas Workforce Comm’n, 18 S.W.3d 678, 681 (Tex. App.—San Antonio

2000, no pet.). The reviewing court determines whether the evidence introduced at the trial de novo

shows facts in existence at the time of the Commission’s decision that reasonably support the

decision. Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). The reviewing

court’s ruling must be based on the evidence admitted at the trial de novo—not the evidence

presented at the Commission hearing. Nuernberg v. Texas Employment Comm’n, 858 S.W.2d 364,

365 (Tex. 1993) (per curiam); Mercer, 701 S.W.2d at 831.

               The Commission’s decision carries a presumption of validity, and the party seeking

to set it aside has the burden of showing that it was not supported by substantial evidence. Mercer,

701 S.W.2d at 831. Although substantial evidence is more than a mere scintilla, the evidence in the

record may actually preponderate against the agency’s decision and nonetheless amount to

substantial evidence. See State v. Public Util. Comm’n, 883 S.W.2d 190, 204 (Tex. 1994). While

                                                 6
the court will hear and consider evidence to determine whether reasonable support for the agency’s

order exists, the agency remains the primary fact-finding body, and the question for the district court

is strictly one of law. Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953,

956 (Tex. 1984). The challenging party must therefore produce evidence that conclusively negates

all reasonable support for the agency’s decision, on any possible ground. Id. Thus, the reviewing

court may set aside an agency’s decision only if it finds that the decision was made without regard

to the law or the facts and was therefore unreasonable, arbitrary, or capricious. Mercer, 701 S.W.2d

at 831.

                 The City and the Commission argued that Pavelka committed misconduct because

he falsified his employment application when he marked “No” in response to a question specifically

asking whether he had pleaded nolo contendere or had been granted deferred adjudication within the

last ten years. Termination for misconduct disqualifies an individual from receiving unemployment

benefits under the Act. See Tex. Lab. Code Ann. § 207.044; Kellum v. Texas Workforce Comm’n,

188 S.W.3d 411, 413 (Tex. App.—Dallas 2006, no pet.). Misconduct is specifically defined by the

Act to mean:


          [M]ismanagement of a position of employment by action or inaction, neglect that
          jeopardizes the life or property of another, intentional wrongdoing or malfeasance,
          intentional violation of the law, or violation of a policy or rule adopted to ensure the
          orderly work and safety of employees.


See Tex. Lab. Code Ann. § 201.012. To be disqualified from receiving benefits, the alleged act of

misconduct must fit within this statutory definition. See Hunnicutt, 988 S.W.2d at 709; Kellum, 188

S.W.3d at 413-14.

                                                     7
                At trial, Pavelka argued that he did not falsify his employment application, even if

he did answer the question incorrectly, because he did not intend to answer dishonestly or deceive

the City.2 Pavelka testified that he was aware that he was charged in 1994 for the unlawful carrying

of a weapon. He testified further that he remembered being placed on twelve months’ community

supervision and that he paid a fine, but that deferred adjudication was never mentioned. Pavelka also

stated that he did not attend the hearing at which his lawyer entered a plea of nolo contendere on his

behalf. He explained that his lawyer informed him that if he successfully completed his community

supervision there would be no record of the offense. Thus, Pavelka maintained that, at the time he

completed his employment application, he believed everything relating to the 1994 charge had been

dismissed when he was discharged from community supervision in 1996. We note that the order

discharging Pavelka from community supervision is entitled “Order Dismissing Deferred

Proceedings.”

                The administrative record includes findings issued by the City’s grievance hearing

officer and findings of fact issued by the Commission’s appeal tribunal’s hearing officer. These

findings indicate that evidence introduced at those hearings established that Pavelka was not aware




       2
          Although the copy of Pavelka’s application clearly shows the “No” box is marked in
response to the question, Pavelka claims that he did not actually answer the question and that
someone forged his application at some later date. In reaching its decision, the Commission
impliedly resolved this factual dispute against Pavelka. See Firemen’s & Policemen’s Civil Serv.
Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (stating that Commission is primary fact-
finding body). At the district court, Pavelka presented no evidence, other than his own allegation,
to support his claim. Therefore, we hold that he did not demonstrate that the Commission’s implied
finding was not supported by substantial evidence.

                                                  8
that he had been placed on deferred adjudication.3 However, these findings are not competent

evidence in a trial de novo. See Hernandez, 18 S.W.3d at 681 (reviewing courts are not bound by,

nor do they review, Commission’s findings of fact); Levelland Indep. Sch. Dist. v. Contreras, 865

S.W.2d 474, 476 (Tex. App.—Amarillo 1993, writ denied).                “If the fact findings of the

[Commission] were . . . proof of their own truth in a trial de novo, the substantial evidence review

would be meaningless because the [Commission] could bootstrap itself to substantial evidence in

every case merely by finding what it needed to prove.” Levelland, 865 S.W.2d at 476 (quoting Mary

Lee Found. v. Texas Employment Comm’n, 817 S.W.2d 725, 727 (Tex. App.—Texarkana 1991, no

writ)). The record contains no other evidence supporting Pavelka’s claims.

               It is clear from the record that Pavelka has consistently claimed that at the time he

filled out his application he was not aware that his lawyer had entered a plea of nolo contendere on

his behalf or that he had been placed on deferred adjudication community supervision. However,

the Commission determined that despite Pavelka’s claims, his knowledge of the facts that he was

placed on community supervision for twelve months and was required to pay a fine as a result of the



       3
          We note that it was improper for the district court to admit the entire administrative record
as a single piece of evidence. Nuernberg v. Texas Employment Comm’n, 858 S.W.2d 364, 365 (Tex.
1993) (per curiam) (providing that district court may not review administrative record by itself;
however, individual items from administrative record may be introduced at trial, but they must be
introduced independently and pursuant to the rules of evidence). However, when the administrative
record was offered into evidence at trial, Pavelka did not object. In order to preserve error for
appellate review, a party must present to the trial court a timely request, objection, or motion, state
the specific grounds therefor, and obtain a ruling. Tex. R. App. P. 33.1; Clark v. Trailways, Inc., 774
S.W.2d 644, 647 (Tex. 1989). By failing to object to evidence offered at trial, a party waives any
complaint about the admissibility of the evidence. See Clark, 774 S.W.2d at 647. Therefore,
Pavelka waived any complaint regarding the admission of the administrative record.


                                                  9
1994 charge for unlawful possession of a weapon were sufficient to apprise Pavelka that he had been

placed on deferred adjudication. Whether Pavelka was aware that his lawyer had entered a plea of

nolo contendere on his behalf or that he had been placed on deferred adjudication community

supervision is a question of fact that the Commission, as the primary fact-finder, resolved against

Pavelka. See Hernandez, 18 S.W.3d at 681 (Commission is primary fact-finding body, and

reviewing court may not substitute its judgment for that of Commission on controverted issues of

fact). The district court affirmed the Commission’s decision. Other than his own testimony

repeating his earlier assertions that he lacked the requisite knowledge to falsify his application,

Pavelka presented no evidence to the district court establishing that the Commission’s decision was

unreasonable, arbitrary, or capricious. See Mercer, 701 S.W.2d at 831. Because the Commission’s

decision carries the presumption of validity, Pavelka did not meet his burden of demonstrating that

the decision was not supported by substantial evidence. See id.



Improper evidence

               Pavelka also avers that the district court’s judgment was improperly based on the

taped recording of the appeal tribunal’s telephone hearing. Pavelka’s argument is based on the

appeal tribunal’s hearing officer’s written conclusions, stating that Pavelka’s testimony during the

telephone hearing established that he was aware of the fact that his lawyer had entered a plea of nolo

contendere on his behalf. Pavelka insists that he never made such an assertion. Although the record

does include the hearing officer’s written findings of fact and conclusions of law, neither the taped

recording of the hearing nor a written transcript were admitted into evidence at the district court.

In addition, the district court was not authorized to set aside the Commission’s decision merely

                                                 10
because the hearing officer’s account of Pavelka’s testimony conflicted with Pavelka’s trial

testimony. See id. Consequently, we hold that the district court did not improperly rely on the taped

recording of the appeal tribunal’s telephone hearing.



Procedural due process

                Pavelka contends that he was denied procedural due process because he was not

allowed to confront the appeal tribunal’s hearing officer or call other witnesses during his trial at the

district court. Pavelka also claims that he never had the opportunity (1) to fairly present his evidence

because it arrived too late or (2) to challenge the evidence presented by the City and the

Commission.

                Due process at a minimum requires notice and an opportunity to be heard at a

meaningful time and in a meaningful manner. Texas Workers’ Comp. Comm’n v. Patient Advocates,

136 S.W.3d 643, 658 (Tex. 2004). Our review of the reporter’s record reveals no instance where

Pavelka’s attempt to call a witness was denied by the district court. Furthermore, Pavelka was given

the right to produce evidence and cross-examine witnesses during his trial at the district court. See

Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (right to be heard assures full hearing before court

having jurisdiction over matter, right to introduce evidence at meaningful time and in meaningful

manner, as well as right to cross-examine witnesses, produce witnesses, and be heard on questions

of law). Finally, Pavelka claims that he was deprived of the opportunity to present evidence that

existed at the time of the Commission’s decision because he was unable to obtain it prior to his trial

at the district court. While Pavelka’s pleadings state that he attempted to obtain this evidence, he

did not at any point inform the district court as to what this evidence would show or how it was

                                                   11
relevant to his case. Nor did Pavelka demonstrate that he availed himself of any of the available

discovery procedures.4 Accordingly, we hold that the district court did not deny Pavelka procedural

due process.



                                         CONCLUSION

               Because we hold that Pavelka failed to demonstrate to the district court that the

Commission’s decision was not supported by substantial evidence, we affirm the district court’s

judgment.




                                              Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: October 3, 2006




       4
         As discussed previously, Pavelka received several documents after his trial concluded and
submitted them to this Court for review. In the interest of justice, we reviewed the documents. After
reviewing the documents, we conclude that even if the district court improperly excluded this
evidence, Pavelka was not harmed because the evidence was either irrelevant or would have
demonstrated that he was, in fact, informed that he been placed on deferred adjudication and that his
attorney had entered a plea of nolo contendere on his behalf. See Tex. R. App. P. 44.1.

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