                                     NO. 07-03-0474-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                    FEBRUARY 11, 2005

                            ______________________________


                              DAVID A. BROWN, APPELLANT

                                              V.

                   AMARILLO INDEPENDENT SCHOOL DISTRICT AND
                   THE COMMISSIONER OF EDUCATION, APPELLEES


                          _________________________________

                FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 91,333-A; HONORABLE HAL MINER, JUDGE
                          _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                             OPINION


      By this appeal, appellant David A. Brown contends the trial court erred in dismissing

his action against appellees, the Amarillo Independent School District (AISD) and the

Commissioner of Education, for lack of jurisdiction. We affirm.




      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
       Brown was employed by AISD as a coach and educator pursuant to a term contract.

By letter dated March 28, 2003, AISD notified Brown of the proposed non-renewal of his

contract pursuant to section 21.206 of the Texas Education Code (Vernon 1996). After

presentation of evidence and the superintendent’s recommendation, the AISD Board of

Trustees voted not to renew Brown’s contract, and by letter of May 19, 2003, he was

notified his employment would be terminated effective at the end of the term stated in his

contract. Instead of relying on chapter 21 of the Education Code,2 Brown filed a petition

for review under section 7.057 of the Texas Education Code (Vernon Supp. 2004-05), and

title 19, section 157.1041 of the Texas Administrative Code.3


       In response to Brown’s petition, AISD filed a motion to dismiss for lack of jurisdiction

noting that Brown proceeded under section 7.057 and had failed to exhaust his

administrative remedies because the Commissioner had not entered a final order under

that section. The Commissioner filed a plea to the jurisdiction alleging similar grounds. A

Senior Administrative Law Judge issued a proposal for decision recommending that the

Commissioner of Education dismiss Brown’s case for failing to file a proper petition for

review. A final ruling, however, was not entered by the Commissioner.




       2
      Section 21.301 applies to an appeal by a teacher of a board’s decision not to renew
an employment contract.
       3
         Brown asserts in his brief that he mistakenly relied on section 7.057 in his petition
for review and that the Administrative Law Judge denied his request to amend his petition.

                                              2
                                     Standard of Review


       Subject matter jurisdiction is never presumed. Tex. Ass'n of Business v. Texas Air

Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The existence of a court's subject matter

jurisdiction over a case or controversy is a legal question. Mayhew v. Town of Sunnyvale,

964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d

1030 (1999). Accordingly, the standard of review is de novo. Id. In examining jurisdiction

vested in Texas courts by a statute, the most important rule is to ascertain and give effect

to the Legislature’s intent. See State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002). The

Legislature’s intent is determined by examining the language used in the statute within the

context of the entire statute. See id.


       Because a court deciding a plea to the jurisdiction is not required to look solely to

the pleadings, but may consider evidence and must do so when necessary to resolve the

jurisdictional issue, see Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000), appellate review is of the pleadings and evidence relevant to the jurisdictional issue.

See Texas Dep't. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Whether

undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is a

question of law. Texas Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). If the evidence creates a fact question regarding the jurisdictional issue, then the

plea to the jurisdiction may not be granted until the fact issue is resolved by the fact finder.

See id.


                                               3
          By his only issue, Brown challenges the propriety of the trial court’s dismissal of his

case for lack of jurisdiction. AISD and the Commissioner of Education respond that the

dismissal was proper. We agree with their position.


      Although Brown initiated an administrative proceeding, he was not entitled to judicial

review until he exhausted his administrative remedies. Tex. Educ. Agency v. Cypress-

Fairbanks, 830 S.W.2d 88, 90 (Tex. 1992). See also Roberts v. Hartley Indep. School

Dist., 877 S.W.2d 506, 507 (Tex.App.--Amarillo 1994, writ denied).


      By the Term Contract Nonrenewal Act (TCNA),4 the Legislature created an

administrative procedure by which a school teacher employed under a term contract may

seek judicial review of a district’s decision not to renew a contract. See Peaster Indepen.

School Dist. v. Glodfelty, 63 S.W.3d 1, 4 (Tex.App.--Fort Worth 2001, no pet.). Section

21.209 requires that an appeal be taken to the Commissioner of Education and thereafter

to a district court per section 21.307. Brown did not initiate an administrative challenge

under chapter 21, but instead sought relief under section 7.057. Subsection(e)(1) of that

section provides that it does not apply to proceedings under TCNA. Moreover, judicial

review of an administrative decision under section 7.057 is limited to a district court in

Travis County.




      4
          Tex. Educ. Code Ann. §§ 21.201 - .213 (Vernon 1996 & Supp. 2004-05).

                                                4
       We conclude Brown did not exhaust his administrative remedies and hold that the

trial court did not err in dismissing his case for lack of jurisdiction. Brown’s only issue is

overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice




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