                               NUMBER 13-17-00705-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG

POINT ISABEL INDEPENDENT
SCHOOL DISTRICT,                                                                   Appellant,

                                               v.

HILDA HERNANDEZ,                                                                   Appellee.


                     On appeal from the 444th District Court
                          of Cameron County, Texas.



                          MEMORANDUM OPINION
            Before Justices Rodriguez1, Longoria, and Hinojosa
                Memorandum Opinion by Justice Longoria

       Appellee Hilda Hernandez filed a lawsuit against appellant Point Isabel

Independent School District (District) arguing that she was unlawfully terminated from her



       The Honorable Nelda V. Rodriguez, former Justice of this Court, did not participate in this
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memorandum opinion because her term of office expired on December 31, 2018.
position with the school due to age discrimination and retaliation. The District filed a plea

to the jurisdiction for lack of subject-matter jurisdiction. The trial court denied the plea to

the jurisdiction. The District argues on appeal that the trial court lacked jurisdiction over

Hernandez’s claims under the Texas Commission on Human Rights Act (TCHRA). We

reverse and render.

                                    I.     BACKGROUND

       Hernandez worked for the District as a teacher. On February 17, 2016, she was

asked to resign from her position “over an alleged incident that occurred on or about

February 12, 2016.” The incident involved an allegation from a third-grade student which

was being investigated by Child Protective Services. Hernandez had a hearing before

the Board of Trustees (Board) regarding the nonrenewal of her employment contract on

or about April 12, 2016. Hernandez did not testify before the Board. After the hearing,

the Board determined that Hernandez’s contract would not be renewed. Hernandez

appealed the Board’s decision to the Texas Commissioner of Education (Commissioner).

       On June 15, 2016, the Commissioner issued his decision, which included findings

of fact and conclusions of law. See TEX. EDUC. CODE ANN. § 21.301. The Commissioner

found that Hernandez “roughly grabbed a student who was under her supervision” and

that Hernandez’s action with the student “was unnecessary and without justification and

was not done to correct any misbehavior on the part of the student.” The student had

“minor soft tissue injury” as a result of the incident. The Commissioner found that the

nonrenewal of Hernandez’s contract was based on the evidence of the incident with the

student and therefore was not an unlawful non-renewal, specifically stating that

“[s]ubstantial evidence supports [the District’s] decision to nonrenew [Hernandez’s]



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contract.” Hernandez appealed the Commissioner’s decision to the 357th District Court

of Cameron County. On May 3, 2017, the district court issued a final judgment upholding

the Commissioner’s decision, denying Hernandez’s appeal.

       On or about July 29, 2016, Hernandez filed a complaint with the Texas Workforce

Commission Division of Civil Rights (Workforce Commission) complaining of age

discrimination and retaliation based on the nonrenewal of her contract. She received a

notice of dismissal and right to file a civil action from the Workforce Commission on

December 5, 2016, and subsequently filed the underlying lawsuit on January 27, 2017.

The District filed a plea to the jurisdiction which was denied. This appeal followed.

                          II.     PLEA TO THE JURISDICTION

       The District argues that it has governmental immunity from suit unless Hernandez

actually “states a claim for conduct that would violate the Texas Commission of Human

Rights Act.” It argues that she cannot establish the elements of her claim under the

TCHRA because of collateral estoppel.

A.     Standard of Review

       A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter

jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of law; therefore,

when the determinative facts are undisputed, we review the trial court’s ruling on a plea

to the jurisdiction de novo. Id. “Sovereign immunity deprives a trial court of jurisdiction

over lawsuits in which the state or certain governmental units have been sued, unless the



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state consents to suit.     As a result, immunity is properly asserted in a plea to the

jurisdiction.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex.

2012).

         When a plea to the jurisdiction challenges the existence of jurisdictional facts, a

trial court’s review “mirrors that of a traditional summary judgment motion.” Id. at 635.

The trial court must take as true all evidence favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts in the nonmovant’s favor. Miranda, 133

S.W.3d at 228. The defendant carries the initial burden to meet the summary judgment

proof standard for its assertion that the trial court lacks jurisdiction. Garcia, 372 S.W.3d

at 635. If it meets its burden, the plaintiff is then required to show that a disputed material

fact exists regarding the jurisdictional issue. Id. If there is a fact question regarding the

jurisdictional issue, the trial court must deny the plea to the jurisdiction. Miranda, 133

S.W.3d at 227–28. However, if the evidence is undisputed or if the plaintiff failed to raise

a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction

as a matter of law. Id. at 228.

B.       Applicable Law and Analysis

         The District, as a political subdivision of the state, is generally immune from suit

and liability. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694–95 (Tex.

2003). The TCHRA waives a government employer’s immunity from suit, but only if the

plaintiff pleads a prima facie case of prohibited discrimination or retaliation. See Garcia,

372 S.W.3d at 635–36. The District asserts that due to the doctrine of collateral estoppel,

Hernandez is unable to state a claim under TCHRA that would waive the District’s




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immunity from suit. Hernandez counters that collateral estoppel is inapplicable because

not all of her claims were fully and fairly adjudicated before the Commissioner.

       Collateral estoppel applies to administrative agency orders when the
       agency is “[a]cting in a judicial capacity and resolves disputed issues of fact
       properly before it which the parties have had an adequate opportunity to
       litigate. . . .” An agency must have jurisdiction over the disputed issues for
       courts to give agency findings preclusive effect. Even if the agency is
       powerless to grant all the relief requested, if it has the authority to make
       incidental findings essential to the granting of the relief, the agency has
       primary jurisdiction to hear the dispute.

Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 243 (Tex. App.—El Paso 2012, no

pet.) (internal citations omitted). The District contends that the case at bar is similar to

Nairn, arguing that Hernandez already had her opportunity to fully and fairly litigate the

reasons for nonrenewal of her contract, and thus is barred by collateral estoppel from

doing so again. See id. In Nairn, a teacher whose employment contract was not renewed

filed whistleblower, discrimination, retaliation, hostile work environment, due process,

wrongful termination, and tortious interference with contract claims against the school

district. Id. at 236. The trial court in Nairn granted the school district’s motion for summary

judgment and its supplemental plea to the jurisdiction, while striking Nairn’s third

amended petition, thus disposing of the case entirely. Id. On appeal, the court held that

the trial court properly granted the plea to the jurisdiction because the commissioner’s

decision had already resolved the disputed issues of fact regarding the nonrenewal before

him; therefore, “the trial court did not have jurisdiction to consider any claim related to the

nonrenewal of Nairn’s term contract of employment with KISD, including her wrongful

termination claim . . . .” Id. at 243–44.

       Hernandez argues that because she did not raise age discrimination or retaliation

prior to the underlying suit, her claims have not yet been fully and fairly adjudicated, and

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therefore collateral estoppel cannot apply. While Hernandez contends that she is raising

new issues that have not been adjudicated, her complaints of age discrimination and

retaliation arise out of the same set of facts and are premised on the issue nonrenewal of

her contract. Texas law applies collateral estoppel “to administrative agency orders when

the agency is acting in a judicial capacity and resolves disputed issues of fact properly

before it which the parties have had an adequate opportunity to litigate.” Bradberry v.

Jefferson Cty, Tex., 732 F.3d 540, 549–50 (5th Cir. 2013) (quoting Muckelroy v.

Richardson Indep. Sch. Dist., 884 S.W.2d 825, 830 (Tex. App.—Dallas 1994, writ

denied)). Some considerations that weigh in favor of determining whether a party had an

“adequate opportunity to litigate” include representation by counsel, witness testimony,

the ability to cross-examine, and application of the rules of evidence. See Turnage v. JPI

Multifamily, Inc., 64 S.W.3d 614, 620 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

There has not been any argument that the proceedings before the Commissioner were

inadequate in these ways, and we conclude that collateral estoppel is potentially

available. See Bradberry, 732 F.3d at 550.

      Under § 21.209 of the Texas Education Code, the Commissioner had jurisdiction

over the issues regarding the nonrenewal of Hernandez’s contract. See TEX. EDUC. CODE

ANN. § 21.209. A full hearing was held on Hernandez’s appeal of the District’s nonrenewal

of her contract. Both parties were represented by counsel and Hernandez chose not to

testify at the hearing. Hernandez had an adequate opportunity to fully and fairly litigate

the issue of the nonrenewal of her contract as well as the facts supporting her position.

See Nairn, 366 S.W.3d at 243. The Commissioner was presented with the issue of

whether the nonrenewal of Hernandez’s contract was supported by substantial evidence.



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Here, the decision of the Commissioner, acting in a judicial capacity, based on all of the

facts presented by the parties, clearly establishes legitimate, non-discriminatory reasons

for the adverse action. Id. at 244. The facts underlying Hernandez’s nonrenewal claim

are the same that she now bases her retaliation and discrimination claims on, and

Hernandez has not presented any additional facts which occurred after the

Commissioner’s decision. Id. Hernandez appealed the decision of the Commissioner,

and the Commissioner’s decision was upheld by the trial court. As a result, to the extent

that Hernandez attempted to litigate the issue of the nonrenewal of her contract in the

district court, she was precluded from doing so because the district court had no

jurisdiction to hear the facts in support of that claim. Id. at 242 (citing Moses v. Dallas, 12

S.W.3d 168, 172 (Tex. App.—Dallas 2000, no pet.)). We sustain the District’s sole issue.

                                     III.   CONCLUSION

        We reverse the judgment of the trial court and render judgment dismissing the

case.

                                                                 NORA L. LONGORIA
                                                                 Justice
Delivered and filed the
13th day of June, 2019.




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