                        NUMBER 13-18-00412-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG


EDINBURG CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT AND MIKE MORATH,
COMMISSIONER OF EDUCATION FOR THE
STATE OF TEXAS,                                                      Appellants,

                                        v.

CRISTINA L. ESPARZA,                                                 Appellee.


                  On appeal from the 275th District Court
                        of Hidalgo County, Texas.


                                   OPINION

  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
                 Opinion by Chief Justice Contreras

      This appeal stems from the termination of appellee Cristina L. Esparza’s term

employment contract with Edinburg Consolidated Independent School District (ECISD)
pursuant to Chapter 21 of the Texas Education Code. See TEX. EDUC. CODE ANN. ch. 21.1

Appellants ECISD and Mike Morath, Commissioner of Education for the State of Texas

(Commissioner),2 challenge the trial court’s order reversing the Commissioner’s decision

upholding the termination of Esparza’s contract as the principal for Barrientes Middle

School in Edinburg, Texas. By two issues, ECISD argues that (1) it did not act arbitrarily,

capriciously, or unlawfully when it concluded there was good cause to terminate

Esparza’s contract; and (2) the trial court erred in ordering ECISD to reinstate Esparza

and reimburse lost wages and benefits. By two issues, the Commissioner argues that (1)

the trial court erred when it rejected the Commissioner’s interpretation of the 2011

statutory amendments to the Texas Education Code’s “good cause” analysis; and (2) the

trial court erred in reversing the Commissioner’s decision because it was supported by

substantial evidence. We reverse the district court’s judgment and render judgment

affirming the Commissioner’s decision.

                                        I.    STATUTORY SCHEME

        To provide context for the factual and procedural background of this case, we

begin by explaining the statutory scheme available to Esparza to contest the termination

of her employment contract.

        Texas public school districts “shall employ each teacher, principal, librarian, nurse,

and school counselor” under one of three different contracts: (1) a probationary contract,


        1 Chapter 21 of the education code is entitled “Educators” and covers everything associated
therewith. See TEX. EDUC. CODE ANN. §§ 21.001–.806.

        2“The Texas Constitution requires the Legislature to ‘establish and make suitable provision for the
support and maintenance of an efficient system of public free schools.’” Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 545 & n.5 (Tex. 2016) (quoting TEX. CONST. art. VII, § 1). “To fulfill this duty, the Legislature
has established the Texas Education Agency (TEA), the office of the Commissioner of Education, the State
Board of Education (SBOE), and local school districts throughout the state.” Id.

                                                       2
(2) a continuing contract, or (3) a term contract. Id. § 21.002(a)–(b); see also id.

§ 21.201(3) (defining “term contract” as “any contract of employment for a fixed term

between a school district and a teacher”). After receiving notification of a proposed

decision by the school board to terminate a contract, a “teacher”3 may request a hearing

before an independent hearing examiner (IHE) assigned by the Commissioner. See id.

§§ 21.251–.254. This hearing is evidentiary and resembles a trial to a judicial court.4 See

id. §§ 21.255–.256. At the conclusion of the hearing, the IHE issues a written

recommendation that includes findings of fact and conclusions of law and, if the examiner

so chooses, a proposal for granting relief. See id. §§ 21.255–.257.

        Subsequently, a school district’s board of trustees considers the recommendation

of the IHE and the record of the hearing and allows each party to present oral argument.

See id. § 21.258. The statute mandates that the board announce a decision that includes

findings of fact and conclusions of law. See id. § 21.259(a)(1). As provided by the statute,

a determination by the IHE “regarding good cause” for termination is a conclusion of law

and a school district’s board “may adopt, reject, or change” an IHE’s conclusions of law,




        3 “Teacher” means “a superintendent, principal, supervisor, classroom teacher, school counselor,
or other full-time professional employee who is required to hold a certificate issued under Subchapter B or
a nurse.” TEX. EDUC. CODE ANN. § 21.201(1) (emphasis added).

        4   Subchapter F of Texas Education Code chapter 21

        charges the hearing examiner with conducting a hearing “in the same manner as a trial
        without a jury in a district court”; the Texas Rules of Evidence apply, the proceedings are
        recorded, the school district has the burden of proof by a preponderance of the evidence,
        and the teacher has the right to be represented by counsel, hear the evidence supporting
        the charges, cross-examine adverse witnesses, and present evidence of his or her own.

Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000) (citing TEX. EDUC. CODE ANN.
§ 21.256).

                                                    3
regardless of whether the conclusion is supported by substantial evidence.5 See id.

§§ 21.257(a-1), 21.259(b)(1); see also Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d

559, 565 (Tex. 2000) (“The ability to reject or change conclusions of law preserves a

school board’s authority and responsibility to interpret its policies.”). The school district’s

board must announce its decision and the board is required to “state in writing the reason

and legal basis for a change or rejection” made to a conclusion of law or a finding of fact.

TEX. EDUC. CODE ANN. § 21.259(d).

        A party aggrieved by the board’s decision may then appeal the decision to the

Commissioner, who reviews the record of the examiner’s hearing and the oral argument

before the board, along with the parties’ written argument and, in some instances, hears

oral argument. See id. § 21.301(c). The Commissioner may not substitute his or her

judgment for that of the board unless the board’s decision is: (1) arbitrary, capricious, or

unlawful; or (2) not supported by substantial evidence. Id. § 21.303(b)(1). The

Commissioner may not reverse a decision of a school board based on a procedural

irregularity or error by the board unless the Commissioner determines that the irregularity

or error was likely to have led to an erroneous decision. Id. § 21.303(c). The

Commissioner must also issue a written decision that includes findings of fact and

conclusions of law. See id. § 21.304.

        Either party may appeal the Commissioner’s decision to a district court. See id.

§ 21.307 (providing for judicial review of the Commissioner’s decision). The court shall

review the evidentiary record made at the local level and may not take additional



       5 In contrast, a school board is permitted to change a finding of fact only if “the finding of fact is not

supported by substantial evidence.” TEX. EDUC. CODE ANN. § 21.259(c).

                                                       4
evidence. Id. § 21.307(e). “The court may not reverse the decision of the commissioner

unless the decision was not supported by substantial evidence or unless the

commissioner’s conclusions of law are erroneous.” Id. § 21.307(f). The court may not

reverse a decision of the Commissioner based on a procedural irregularity or error by the

IHE, a board of trustees or board subcommittee, or the Commissioner unless the court

determines that the irregularity or error was likely to have led to an erroneous decision by

the Commissioner. Id. § 21.307(g).

                                   II.   BACKGROUND

       On August 25, 2016, ECISD sent Esparza a letter notifying her that the district’s

superintendent, Rene Gutierrez, recommended to the board of trustees that her contract

be terminated. Specifically, the letter provided:

       After a review of the factual background discussed below, the Board
       determined that the public outcry concerning the facts summarized below,
       as well [as] their notoriety within the Barrientes Middle School and greater
       Edinburg CISD school communities have undermined your ability to be an
       effective administrator for the District to such an extent so as to constitute
       good cause for the termination of your term employment contract with the
       District.

       ....

       Under District Policy DH (Legal) ECISD employees are required to comply
       with standard practices and ethical conduct towards students, professional
       colleagues, school officials, parents, and members of the community.

       Employees of ECISD are expected to meet professional standards in their
       use of electronic media and for any other public conduct. By taking a nude
       photo of herself with a cell phone, and then allowing such photo to be
       released throughout the ECISD community, Ms. Esparza’s actions have
       interfered with her ability to effectively perform her job duties as a Principal
       of Barrientes Middle School. In this regard, it is irrelevant to the inquiry
       whether the release of the photograph by Ms. Esparza was a voluntary act,
       or was the result of an unauthorized access to her personal data storage
       devices. The fact remains that a voluntarily taken photograph originally
       taken by Ms. Esparza has entered the public domain and has become an

                                              5
        object of great controversy in the school community. The controversy is
        being driven by the mere existence of the photograph in the public domain,
        and not the “fault” of whoever caused its release which is the subject of the
        Board’s concerns.

        ....

        Each ECISD employee is required to comply with the standards of conduct
        set out in District policy and with any other policies, regulations, and
        guidelines that impose duties, requirements, or standards attendant to his
        or her status as a District employee. Violation of any policies, regulations,
        or guidelines may result in disciplinary action, including termination of
        employment. ECISD policy can be violated through employee use of
        electronic media including all forms of social media, such as text
        messaging, instant messaging, electronic mail (e-mail), Web logs (blogs),
        electronic forums (chat rooms), video-sharing websites, editorial comments
        posted on the Internet, and social network sites. Electronic media also
        includes all forms of telecommunication, such as landlines, cell phones, and
        Web-based applications.

        ECISD employees are held to the same professional standards in his or her
        public use of electronic media as for any other public conduct. If an
        employee’s use of electronic media violates state or federal law or District
        policy, or interferes with the employee’s ability to effectively perform
        his or her job duties, the employee is subject to disciplinary action, up
        to and including termination of employment.

        ....

        By engaging in the conduct described above, Ms. Esparza’s conduct and
        comportment fell below the following standards promulgated by the State
        Board for Educator Certification (SBEC) in the Educator’s Code of
        Ethics . . .; Tex. Educ. Code § 21.041(8); 19 Tex. Admin. Code § 247.1(b),
        (c),[6] to wit:


        6 Chapter 247 of the Texas Administrative Code is titled “Educators’ Code of Ethics.” See 19 TEX.

ADMIN. CODE ANN. ch. 247. It provides in part:

        The Texas educator shall comply with standard practices and ethical conduct towards
        students, professional colleagues, school officials, parents, and members of the
        community and shall safeguard academic freedom. The Texas educator, in maintaining the
        dignity of the profession, shall respect and obey the law, demonstrate personal integrity,
        and exemplify honest and good moral character. The Texas educator, in exemplifying
        ethical relations with colleagues, shall extend just and equitable treatment to all members
        of the profession. The Texas educator, in accepting a position of public trust, shall measure
        success by the progress of each student toward realization of his or her potential as an
        effective citizen. The Texas educator, in fulfilling responsibilities in the community, shall

                                                     6
                  Standard 1.10. The educator shall be of good moral character
                  and be worthy to instruct or supervise the youth of this state.

                  Standard 3.8. The educator shall maintain appropriate
                  professional educator-student relationships and boundaries
                  based on a reasonably prudent educator standard.

        After considering the foregoing facts, law and policies, the Board of
        Trustees voted to propose termination of Ms. Esparza’s employment
        contract based upon the fact that there was “good cause” to support its
        actions.

(emphasis in original).

        Esparza appealed the board’s proposed termination and requested a hearing

before an IHE. See id. § 21.251(a)(2). An IHE was assigned and a hearing held on the

matter. On December 26, 2016, the IHE issued her decision, including findings of fact,

conclusions of law, and a recommendation, which we summarize below.

A. IHE’s “Findings of Fact”

        Esparza was hired by ECISD in 2002. Starting in January of 2012, she was

employed as the principal of Francisco Barrientes Middle School. ECISD renewed

Esparza’s contract as a “Certified Administrator” for the school for the years 2016–2018.

During her fourteen years with ECISD, Esparza was an exemplary employee, fulfilling all

job duties and responsibilities, meeting all requirements, and exceeding expectations.

        Sometime during 2015, “Esparza took a nude photo of herself (a ‘selfie’ . . .) in the

bathroom of her own home using the cameral [sic] in her personal cellular phone.”




        cooperate with parents and others to improve the public schools of the community. This
        chapter shall apply to educators and candidates for certification.

Id. § 247.1(b).

                                                  7
Esparza sent the photo via text message to her husband who worked away from home in

the oil fields and retained a copy in her phone.

        On June 14, 2016, Esparza’s daughter informed her that the nude photo was being

circulated on social media. That same day, Esparza reported the unauthorized

dissemination of the photo to her immediate supervisor, Rebecca Morrison, and ECISD’s

superintendent, Gutierrez. Upon the advice and suggestion of Morrison and Gutierrez,

Esparza reported the “theft or hacking of her nude photo to local law enforcement

authorities.”

        The IHE found that Esparza’s nude photo began to circulate among some of the

students at Barrientes Middle School and through social media “a long time” before the

end of the 2015–2016 school year and that, in June 2016, the photo was “being passed

around by some students and was also seen by some staff, as well.” However, Esparza

did not intend for the picture to be viewed by any person other than her husband, and she

did not use “any type of social media account” or “engage in online exchange of

information or photographs via social media outlets.” The IHE found that Esparza was the

victim of a crime, a third party was responsible for the circulation of Esparza’s nude photo,

and the dissemination was done without her knowledge and consent.

        On or about June 22, 2016, a student’s parent inquired or complained 7 about

whether ECISD was aware of Esparza’s circulating nude photo. As a result, ECISD’s

police department initiated an investigation, which revealed Esparza “did not do anything




         7 The IHE noted that “[d]iscussion was had as to whether [the parent’s] call was a complaint or an

inquiry [but that the] semantics make no difference. However it is labeled, said call did commence a police
investigation.”

                                                    8
wrong.” Further, the student’s parent refused to name the individual who sent her the

photo and failed to show up for a police interview.

        On June 23, 2016, Esparza was suspended with pay “to remove her and to

administratively look into the matter because the nude photo was becoming a distraction,

they were getting a lot of calls from the media, and it evolved into a problem.” Prior to

June 23, “there was zero community outcry or outrage due to the unauthorized

dissemination of Ms. Esparza’s nude photo” and “there was no media coverage about

Ms. Esparza’s nude photo.” Beginning on June 29, 2016, Gutierrez “received calls, texts,

or emails from several media sources” as various media outlets reported on the story of

the disseminated nude photo. On July 20, 2016, Gutierrez sent Esparza a notice of

reassignment because her photo “was evolving more in social media and it had gone

viral.”8 Gutierrez recommended to the ECISD school board that Esparza’s contract be

terminated because Esparza “could not be an effective administrator” due “to the

dissemination of the nude photo, all the media attention, and that the photo had gone

viral.” In Gutierrez’s opinion, the student-educator boundaries had been compromised

with the nude photo so that Esparza could not be an effective administrator. The school

board accepted Gutierrez’s recommendation.

        Under the section entitled “Findings of Facts,” the IHE also noted the testimony of

school board member Oscar Salinas, who voted to support the proposal to terminate


        8  There is no evidence that Esparza was ever reassigned to a different position or what the duties
of the position would have entailed, and we previously concluded that “Esparza’s reassignment was never
finalized.” Edinburg Cons. Indep. Sch. Dist. v. Esparza, No. 13-18-00540-CV, 2019 WL 3953111, at *3
(Tex. App.—Corpus Christi–Edinburg Aug. 22, 2019, no pet.) (mem. op.) (affirming trial court’s denial of
ECISD’s plea to the jurisdiction); see also 19 TEX. ADMIN. CODE ANN. § 157.1051(b) (stating that the
Commissioner “will not consider any issue not raised in the petition for review”). The notice stated: “This
assignment is effective immediately. Since you are currently on administrative leave, you will be contacted
at a later time concerning your employment status.”

                                                    9
Esparza’s contract. In sum, Salinas supported termination because Esparza would be

ineffective in light of “the complaints and the media attention” and because about twenty

of twenty-five people he spoke to in passing “had negative sentiment as having lost

respect for” Esparza. According to Salinas, the community interest in the dissemination

of the photo was high and he believed “Esparza’s nude picture will always come into

people’s minds—they would degrade her, make fun of her, or be insubordinate to her.”

      In a separate section labeled “credibility findings,” the IHE stated that “there was

no evidence of incidences of ineffectiveness up to the day [Esparza] was suspended with

pay.” (emphasis added). Further, the IHE found that “the ECISD witness[es]’ opinion

testimony about ineffectiveness is based on conjecture and speculation” and concluded

that several “calls from media sources, one parent inquiry or complaint, and tenor in the

community about Ms. Esparza’s nude photo do not suffice to establish Ms. Esparza’s

ineffectiveness as an administrator.”

B. IHE’s “Conclusions of Law”

      The IHE concluded that Esparza “did not fail to comply with standard practices and

ethical conduct towards students, professional athletes, school officials, parents, and

members of the community as required by DH (Local)” and that “ECISD policy [standards

1.10 and 3.8 were] not violated when Ms. Esparza transmitted a nude photo of herself to

her husband.” Furthermore, the IHE concluded that “Esparza’s transmission of her nude

photo was a matter protected by marital privacy and privilege of the United States

Constitution” and that “Esparza did not violate the standard for propriety and decency

within the ECISD community.” Finally, the IHE concluded that Esparza had “not failed to

perform her duties in the scope of employment that a person of ordinary prudence would


                                           10
have done under the same or similar circumstances” and that “Esparza’s actions were

not inconsistent with the continued existence of the employer-employee relationship.” The

IHE concluded that “good cause does not exist to terminate Ms. Esparza’s term contract

for the 2016-2018 school year.”

C. IHE’s Recommendation & ECISD Board of Trustees’ Action

       The IHE recommended that: all relief requested in Esparza’s appeal be granted;

her employment be reinstated; and ECISD reimburse Esparza for lost wages and

benefits, if any. On January 10, 2017, the board of trustees for ECISD adopted the

findings of fact contained in the IHE’s recommendation. However, the board disagreed

with the IHE’s conclusion that good cause to terminate Esparza’s contract was lacking.

Therefore, the board terminated her employment contract.

       As allowed by the education code, the board of trustees rejected several of the

IHE’s conclusions of law. See id. § 21.259(b)(1). Specifically, the board concluded that

(1) Esparza violated Board Policy DH (Local) and the “Employee Standards of Conduct,”

which subjects an employee to termination if the employee’s “use of electronic

media . . . interferes with the employee’s ability to effectively perform his or her job

duties”; (2) constitutional right to privacy does not apply to Esparza’s nude photo and

does not provide protection for the consequences of the photo’s release into the public;

(3) it is irrelevant whether the initial transmission of the nude photo was protected by a

constitutional right to marital privacy and privilege; (4) Esparza violated the standard for

propriety and decency within the ECISD community; and (5) by violating board policy,




                                            11
Esparza was subject to termination, and the board retains the authority to make the

ultimate determination of whether board policy has been violated.9

        In its decision, the board stated that “[t]he widespread distribution of Esparza’s

nude photograph and the publicity of the photo in the community media impaired her

future effectiveness as a middle school principal and made it untenable for ECISD to

continue to employ her.” The board also stated the reason and legal basis for its rejection

of to the IHE’s determination regarding ineffectiveness and good cause to terminate

Esparza:

        The Board rejects Conclusions of Law 11 and 12.[10] School boards retain
        the authority to make the ultimate determination of whether board policy has
        been violated. TEX. EDUC. CODE § 21.211(a)(1); Montgomery ISD v. Davis,
        34 S.W.3d 559, 565 (Tex. 2000). By violating Board policy, Esparza was
        subject to termination . . . . Moreover, separate and apart from Esparza’s
        actions, it is undisputed that a nude photo of Esparza was widely circulated
        among students and parents at Barrientes Middle School and was widely
        publicized in the Edinburg community. This exposure clearly diminished
        Esparza’s ability to perform her role as an administrator and authority figure
        over the middle school students.

See id. § 21.259(d) (requiring the board to “state in writing the reasons and legal basis

for a change or rejection” of an IHE’s findings or conclusions).

D. The Commissioner

        Esparza appealed the board’s decision to the Commissioner arguing that the

board’s decision was arbitrary, capricious, unlawful and not supported by substantial

evidence. See id. § 21.301(a). Esparza further argued that there was no good cause to



        9   The school board adopted the IHE’s conclusions that Esparza did not violate Standards 1.10 or
3.8.

        10 The IHE’s conclusions of law 11 and 12 provided that (1) Esparza’s actions were not inconsistent

with the continued existence of the employer-employee relationship; and (2) good cause did not exist to
terminate Esparza’s term contract for the 2016-2018 school years.

                                                    12
terminate her contract and that ECISD failed to state any reason or legal basis for its

changes to the IHE’s conclusion of law. See id. § 21.259(d).

        The Commissioner adopted the IHE’s findings of fact in full but concluded that the

board “properly changed the good cause determinations in the Recommendation when it

concluded that the publicity given to the picture diminished [Esparza’s] ability to perform

her job.” In his decision, the Commissioner stated:

        This case raises a question of first impression of whether in addition to
        changing the ultimate determination of whether or not good cause exists
        can a school board change an interpretive finding of fact that is closely
        related to the ultimate determination that good cause exist[s]. In the present
        case, the issue is can the school board change the determination that the
        dissemination of the photograph has undermined [Esparza’s] ability to be a
        principal.

The Commissioner also noted that,

        The central issues in this case are whether there can be good cause to
        terminate a contract when there would be no question of an employee’s loss
        of effectiveness but for the actions of a third party and whether a school
        district can change an interpretive fact that is closely related to an ultimate
        determination that good cause exists.

        In explaining his decision, the Commissioner noted that determination of whether

Esparza’s effectiveness was affected by the photo had been deemed by the IHE to be a

finding of fact11 and opined that the 2011 amendments to the education code allowed the

school board to change conclusions of law, as well as “interpretive facts” but not “hard

facts.” The Commissioner explained that the finding of fact regarding Esparza’s

effectiveness was an “interpretive fact” subject to the 2011 amendments, giving the board

the ability to reject such a finding because it amounted to a conclusion of law regarding



         11 As noted, the IHE’s finding regarding the impact of the dissemination of the photo on Esparza’s

effectiveness was listed under a section titled “Credibility Findings.”

                                                   13
good cause for termination. Ultimately, the Commissioner concluded that the

dissemination of Esparza’s nude photo diminished her capacity to perform her role as a

principal and affirmed the school board’s decision.

      The Commissioner issued its own conclusions of law, which included one stating

that “[g]ood cause to terminate a term contract can exist even when the employee’s

effectiveness would not have been diminished but for the actions of a third party, even

the illegal actions of a third party.” Esparza sought judicial review of the Commissioner’s

decision. See id. § 21.307.

E. The District Court

      At the district court, Esparza argued that (1) there was no good cause to terminate

her term contract with ECISD; (2) ECISD’s changes to the IHE’s conclusions of law are

not supported by substantial evidence and are based on erroneous conclusions of law;

(3) the Commissioner’s decision that Esparza was terminated for future ineffectiveness is

contrary to ECISD’s basis in its notice of proposed termination, is not supported by

substantial evidence, and is based on erroneous conclusions of law; and (4) multiple of

the Commissioner’s conclusions of law were not supported by substantial evidence and

are based on erroneous conclusions of law. Subsequent to a hearing and without

specifying the reason for its decision, the District Court reversed the Commissioner’s

decision upholding ECISD’s board of trustees’ termination of Esparza’s term contract.

The District Court also ordered that ECISD reinstate Esparza and reimburse her for lost

wages and all benefits she may be entitled to. This appeal followed.




                                            14
                                     III.   DISCUSSION

       By two issues, the Commissioner argues that the trial court erred when it rejected

(1) the Commissioner’s reasonable interpretation of the amendments to education code

§§ 21.257(a-1) and 21.259(b)(1); and (2) his conclusion that good cause to terminate

Esparza was supported by substantial evidence. In response, Esparza argues that there

were no facts that established she was an ineffective administrator.

A. Standard of Review

       In our review of the district court’s judgment, we focus, as did the district court, on

the decision of the Commissioner. See TEX. EDUC. CODE ANN. § 21.307; Davis, 34 S.W.3d

at 562; Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App.—Corpus Christi–Edinburg

2008, no pet.). We may reverse the Commissioner’s decision only if the decision is not

supported by substantial evidence or if the conclusions of law are erroneous. Davis, 34

S.W.3d at 562; see TEX. EDUC. CODE ANN. § 21.307(f); Matthews, 268 S.W.3d at 172; see

also TEX. GOV’T CODE ANN. § 2001.174; 19 TEX. ADMIN CODE ANN. § 157.1073(h).

“Substantial evidence review is a limited standard of review, requiring ‘only more than a

mere scintilla [of evidence],’ to support an agency’s determination.” Davis, 34 S.W.3d at

566; Hammack v. Pub. Util. Comm’n of Tex., 131 S.W.3d 713, 725 (Tex. App.—Austin

2004, pet. denied) (noting that substantial evidence “does not mean a large or

considerable amount of evidence, but rather such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion”); see Peaster Indep. Sch. Dist.

v. Glodfelty, 63 S.W.3d 1, 5 (Tex. App.—Fort Worth 2001, no pet.) (“Substantial evidence

review is a limited standard that gives great deference to an agency in its field of

expertise . . . .”). “Essentially, this is a rational-basis test to determine, as a matter of law,


                                               15
whether an agency’s order finds reasonable support in the record.” Jenkins v. Crosby

Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.). If, based on

the evidence as a whole, reasonable minds could have reached the same conclusion as

the Commissioner, then the Commissioner’s decision is supported by substantial

evidence. Nelson v. Weatherwax, 59 S.W.3d 340, 343 (Tex. App.—Fort Worth 2001, pet.

denied); see Glodfelty, 63 S.W.3d at 5.

       Whether an agency’s determination meets the substantial evidence standard is a

question of law. Davis, 34 S.W.3d at 566. Ultimately, we are concerned not with the

correctness of the agency’s decision, but its reasonableness. Jenkins, 537 S.W.3d at 149;

see Webworld Mktg. Grp., L.L.C. v. Thomas, 249 S.W.3d 19, 25 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (noting that an agency’s decision is arbitrary and capricious if the

agency did not “genuinely engage in reasoned decision making”). Although substantial

evidence is more than a mere scintilla, the evidence in the record may preponderate

against the agency decision and still amount to substantial evidence supporting the

decision. Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446,

452 (Tex. 1984); N. E. Indep. Sch. Distr. v. Riou, 581 S.W.3d 333, 340 (Tex. App.—San

Antonio 2018, pet. granted). Our review, like the district court’s, is limited to the evidentiary

record made at the local level and any evidence taken by the Commissioner. TEX. EDUC.

CODE ANN. § 21.307(e); Riou, 581 S.W.3d at 340; see Ysleta Indep. Sch. Dist. v. Meno,

933 S.W.2d 748, 751 n.5 (Tex. App.—Austin 1996, writ denied) (noting that, under

substantial evidence review, “[t]he reviewing tribunal is restricted to [the] record, save in

extraordinary circumstances, and it may not re-weigh the evidence, find facts[,] or

substitute its judgment for that of the original tribunal.”). The Commissioner’s reasoning


                                               16
for his or her decision is immaterial if his or her conclusion is correct; thus, we will uphold

the Commissioner’s decision on any legal basis shown in the record. Goodie v. Hous.

Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied); see Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962) (“If the

Commission’s conclusion was correct, it is immaterial that it may have proceeded to the

conclusion on an erroneous theory or may have given an unsound reason for reaching

it.”).

B. Texas Education Code §§ 21.257(a-1) & 21.259(b)(1)

         A central issue to this appeal is whether the board was authorized to reject and

modify the IHE’s determination that Esparza’s effectiveness was not affected by the

dissemination of her nude photo, a determination the IHE labeled as a “credibility finding,”

without regard to whether the determination was supported by substantial evidence.

Compare TEX. EDUC. CODE ANN. § 21.259(c) (providing that a school board may reject or

change a finding of fact by the IHE only if it is not supported by substantial evidence) with

id. § 21.259(b)(1) (providing that a school board may adopt, reject, or change a

conclusion of law by the IHE) and id. § 21.257(a-1) (providing that a determination by the

IHE “regarding good cause” for termination of a term contract is a conclusion of law and

may be adopted, rejected, or changed by the board of trustees as provided by

§ 21.259(b)). To support its decision to terminate Esparza’s contract, the school board

determined that Esparza’s future effectiveness was “impaired” as a result of the photo’s

dissemination in the community, contrary to the IHE’s finding. The board also rejected the

IHE’s corresponding conclusion of law that no good cause existed and adopted its own

contrary finding and conclusion of law. The Commissioner concluded that ECISD’s board


                                              17
was free to change the IHE’s determination that Esparza’s effectiveness was not affected

by the photo’s dissemination.

      Before 2011, whether there was good cause to terminate a teacher’s contract was

generally a question of fact. See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.

App.—Houston [1st Dist.] 1992, no writ); Watts v. St. Mary’s Hall, 662 S.W.2d 55, 58 (Tex.

App.—San Antonio 1983, writ ref’d n.r.e); Tex. Emp’rs Ins. Ass’n v. Fowler, 140 S.W.2d

545, 548 (Tex. App.—Amarillo 1940, writ ref’d); see also Nelson, 59 S.W.3d at 349–50;

Adams v. Aldine Indep. Sch. Dist., No. 054-R2-0410, 2010 WL 11545918, at *7 (Tex.

Educ. Agency June 1, 2010) (“Good cause for terminating a teaching contract is also a

finding of fact.”). However, §§ 21.257 and 21.259 of the education code were amended

in 2011 to provide that “a determination regarding good cause” to terminate a teacher’s

contract is a “conclusion of law” that a school board may adopt, reject, or modify. See Act

of June 28, 2011, 82nd Leg., 1st C.S., ch. 8 (S.B. 8), §§ 13, 14, 2011 Tex. Gen. Laws

5463, 5467. Now, § 21.259 provides that a board may adopt, reject, or change the hearing

examiner’s “conclusion of law, including a determination regarding good cause

for . . . termination,” TEX. EDUC. CODE ANN. § 21.259(b)(1), and § 21.257 provides that a

“determination by the hearing examiner regarding good cause for the . . . termination of

a . . . term contract is a conclusion of law and may be adopted, rejected, or changed by

the board of trustees or board subcommittee as provided by [§] 21.259(b).” Id. § 21.257(a-

1) (emphasis added). This language is unambiguous; a determination by the IHE

“regarding good cause” is treated as a conclusion of law and may be adopted, rejected,

or changed by a school district’s board without regard to whether the determination was

supported by substantial evidence. See id. §§ 21.257(a-1), .259(b)(1); see also Judson


                                            18
Indep. Sch. Dist. v. Ruiz, No. 04-13-00706-CV, 2015 WL 1501758, at *5 (Tex. App.—San

Antonio Mar. 31, 2015, pet. denied) (mem. op.) (“Whether good cause to terminate a

teacher’s term contract exists is a question of law.”).

       The education code, however, does not define good cause as it relates specifically

to the termination of an educator employed under a term contract. See Guerra v. Santa

Rosa Indep. Sch. Dist., 241 S.W.3d 594, 603 (Tex. App.—Corpus Christi–Edinburg 2007,

pet. denied) (citing Tave v. Alanis, 109 S.W.3d 890, 894 (Tex. App.—Dallas 2003, no

pet.)); see also TEX. EDUC. CODE ANN. § 21.156 (providing that good cause to terminate

an educator employed under a continuing contract is “the failure to meet the accepted

standards of conduct for the profession as generally recognized and applied in similarly

situated school districts in this state”). Traditionally, the Commissioner has defined good

cause to terminate a teacher’s term contract by employing and citing the definition

articulated by our sister court in Lee-Wright. See Lee-Wright, 840 S.W.2d at 580; see

also, e.g., Esparza v. Edinburg Consol. Indep. Sch. Dist., No. 017-R2-01-2017, 2017 WL

2324582, at *3 (Tex. Educ. Agency Mar. 17, 2017); Adams, 2010 WL 11545918, at *7;

Floyd v. Hous. Indep. Sch. Dist., No. 038-R2-203, 2003 WL 27375226, at *2 (Tex. Educ.

Agency Mar. 28, 2003); Woolworth v. Eagle Pass Indep. Sch. Dist., No. 119-R2-1291,

1998 WL 36011346, at *4 (Tex. Educ. Agency Jan. 1, 1998). Under this test, good cause

to terminate a teacher’s term contract exists if the employee (1) failed to perform duties

in the scope of employment that a person of ordinary prudence would have done under

the same or similar circumstances; or (2) acted in a way inconsistent with the continued

existence of the employer-employee relationship. Lee-Wright, 840 S.W.2d at 580.

However, Texas appellate courts have not reiterated this standard or any other specific


                                             19
standard when analyzing whether good cause existed to terminate a teacher’s term

contract. See, e.g., Miller v. Hous. Indep. Sch. Dist., 51 S.W.3d 676, 681–82 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied) (concluding that teacher’s failure to report to work

despite being ordered to do so was good cause for termination because it violated

established school board policy, “which her contract defined as lawful cause for

discharge”); see also Nelson, 59 S.W.3d at 349–50 (concluding that good cause for

termination of continuing contract existed, without discussing whether there was a failure

to meet the accepted standards of conduct for the profession in similarly situated school

districts, when special education teacher violated school board’s local policy against

insubordination by failing to follow official directive from the principal); Judson, 2015 WL

1501758, at *6 (concluding that good cause for termination of term contract existed when

counselor violated school board policy and violation of the policy subjected counselor to

discipline, including possible termination).12

        Here, whether there was good cause to terminate Esparza and whether the

release of her nude photo interfered with her ability to effectively perform her job are two

determinations that are indivisibly intertwined because the latter is subsumed in the

former. The record includes a copy of ECISD’s DH (Local) policy and Employee

Standards of Conduct. The policy provides that, “If an employee’s use of electronic

media . . . interferes with the employee’s ability to effectively perform his or her job duties,

the employee is subject to disciplinary action, up to and including termination of

employment.” Further, the policy states that electronic media includes “all forms of


          12 We note that the facts presented by these cases would constitute good cause under the Lee-

Wright test as well. See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.—Houston [1st Dist.] 1992,
no writ).

                                                   20
telecommunication, such as landlines, cell phones, and web-based applications.” It is

undisputed that Esparza used her cell phone to take the nude photo and transmit it to her

husband via text message. In the notice for proposed termination, the school board

informed Esparza that the public outcry concerning the publicity and dissemination of her

nude photo, “as well as the notoriety within the Barrientes Middle School and greater

Edinburg CISD school communities[,] have undermined [Esparza’s] ability to be an

effective administrator for the District to such an extent so as to constitute good cause for

the termination of [her] term employment contract with the District.” Thus, whether

Esparza’s use of electronic media (her cell phone) interfered with her ability to be

effective, in violation of ECISD’s policy, is a determination regarding good cause for

termination. See Miller, 51 S.W.3d at 681–82; Lee-Wright, 840 S.W.2d at 580; Watts, 662

S.W.2d at 58 (“Disobedience of reasonable rules of the employer that are known to the

employee constitute a just ground for discharge.”); see also Judson, 2015 WL 1501758,

at *6.

         We conclude that whether Esparza’s effectiveness was affected was a “good

cause” determination as provided by the education code and, thus, a “conclusion of law”

that ECISD’s board was free to reject or modify without reference to whether that

determination was supported by substantial evidence.13 See TEX. EDUC. CODE ANN.


         13 The Commissioner concluded the school board’s action was authorized by the education code

because the determination regarding Esparza’s effectiveness was a finding of “interpretive fact,” which is
akin to a conclusion of law, as opposed to a finding of “hard fact,” which must be supported by substantial
evidence. The Commissioner presents this same argument on appeal. However, this interpretation
contradicts the plain language of the statute, which provides that “a determination regarding good cause”
is a conclusion of law. See TEX. EDUC. CODE ANN. § 21.257(a-1). Accordingly, we reject this interpretation.
See Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404–05 (Tex. 2016) (“[W]e have long recognized that
an agency’s construction of a statute may be taken into consideration by courts when interpreting statutes,
but deferring to an agency’s construction is appropriate only when the statutory language is ambiguous.”);
Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962) (“If the Commission’s conclusion was

                                                   21
§§ 21.257(a-1), .259(b)(1); Davis, 34 S.W.3d at 566 (“[T]he label attached, ‘finding of fact’

or ‘conclusion of law,’ is not determinative; the focus is on whether the issue determined

is ultimately one of policy . . . .”); Banker v. Banker, 517 S.W.3d 863, 870 (Tex. App.—

Corpus Christi–Edinburg 2017, pet. denied) (“Regardless of the label, the trial court’s

designation of a finding of fact or conclusion of law is not controlling on appeal.”); Hunter

Indus. Facilities, Inc. v. Tex. Nat. Res. Conservation Comm’n, 910 S.W.2d 96, 104 (Tex.

App.—Austin 1995, writ denied) (explaining that “ultimate findings” concerning

compliance with statutory standards under the Solid Waste Disposal Act have the same

effect as a conclusion of law or mixed question of law and fact); see also Judson, 2015

WL 1501759, at *6 (“[T]he hearing examiner’s ‘findings’ about which similarities and

differences in Price’s and Ruiz’s conduct and circumstances are relevant to their

discipline are conclusions of law, as is the ultimate conclusion of whether the decision to

terminate Ruiz’s contract was arbitrary and capricious”).

        Accordingly, the Commissioner’s conclusion that ECISD’s board was allowed to

reject or modify the effectiveness impairment finding, without regard to whether the finding

was supported by substantial evidence, was not erroneous. See TEX. EDUC. CODE ANN.

§ 21.307(f). We sustain the Commissioner’s first issue.

C. Analysis

        The questions now become whether (1) there was a scintilla of evidence—i.e.,

substantial evidence—in support of the school board’s conclusion that Esparza’s future




correct, it is immaterial that it may have proceeded to the conclusion on an erroneous theory or may have
given an unsound reason for reaching it.”).

                                                   22
effectiveness was impaired by the dissemination of her nude photo14 and (2) whether the

Commissioner’s implicit conclusion that ECISD’s decision was not arbitrary, capricious,

or unlawful was erroneous.15 See id. §§ § 21.303(b)(1), 21.307(f); Davis, 34 S.W.3d at

566 (“Whether an agency’s determination meets the substantial evidence standard is

question of law.”); Glodfelty, 63 S.W.3d at 5.

        Here, Esparza occupied the high-level position of principal for the middle school.

See TEX. EDUC. CODE ANN. § 11.202 (providing that “[t]he principal of a school is the

institutional leader of the school” and that the principal shall “assume the administrative

responsibility and instructional leadership” at the school). The IHE’s undisputed findings

of fact adopted by the board and the Commissioner include findings that: Esparza’s nude

photo had been in circulation since before the end of the 2015–2016 school year; the

photo “was being passed around some students and was also seen by some staff” in

June of 2016; Esparza learned of the photo’s existence in the public domain on June 14,

2016; a parent inquired or complained to the school about the photo on June 22, 2016;

“there was zero community outcry or outrage due to the unauthorized dissemination of

Ms. Esparza’s nude photo” and “there was no media coverage about Ms. Esparza’s nude



        14 We have previously observed that this constitutes good cause for termination under ECISD
policy. While the school board was free to change the good cause determination without regard to whether
it was supported by substantial evidence, see TEX. EDUC. CODE ANN. §§ 21.257(a-1), 21.259(b)(1), the
board’s new conclusion is required to be supported by substantial evidence. See id. § 21.303(b)(1)
(providing that the Commissioner may not substitute his or her judgment for that of the board unless the
board’s decision is not supported by substantial evidence or is arbitrary, capricious, or unlawful).

        15 The conclusion that there was good cause for Esparza’s termination was made by ECISD’s
board, and the Commissioner reviewed this decision for substantial evidence and to determine whether the
decision was arbitrary, capricious, or unlawful. See TEX. EDUC. CODE ANN. § 21.303(b)(1); Miller v. Hous.
Indep. Sch. Dist., 51 S.W.3d 676, 681–82 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). By affirming
the board’s decision, the Commissioner implicitly concluded that the board’s conclusion was supported by
substantial evidence and that its decision was not arbitrary, capricious, or unlawful. See Miller, 51 S.W.3d
at 681–82.

                                                    23
photo” prior to June 23, 2016; the story of the disseminated nude photo was reported on

various media outlets; Gutierrez “received calls, texts, or emails from several media

sources” on June 29, 2016; the photo had gone “viral” by July 20, 2016; and ECISD sent

Esparza the notice of her proposed termination on August 25, 2016.16

        Based on this record, we conclude that reasonable minds could disagree as to

whether the photo’s dissemination among the students and community interfered with

Esparza’s future ability to effectively perform her job duties so as to constitute good cause

to terminate her contract. See Glodfelty, 63 S.W.3d at 5; Nelson, 59 S.W.3d at 343. It was

reasonable for the school board to infer from the escalating media coverage and the fact

that the photo had recently “gone viral” that the disruption and distraction from the photo

would continue and interfere with Esparza’s ability to effectively perform her job duties, in

violation of ECISD’s policy. See Davis, 34 S.W.3d at 565 (noting that, under the statutory

scheme in the education code, “a school board must be the ultimate interpreter of its

policy, subject to the limits established by the Legislature in its provisions for

administrative and judicial review”); Pope v. Perrin-Whit Consol. Indep. Sch. Dist., No.

145-R2-397, 1997 WL 35411135, at *1–3 (Tex. Educ. Agency Jan. 1, 1997) (noting that

knowledge among students, faculty, and community of teacher’s flirting with two students

supported finding that her effectiveness was impaired); see also TEX. EDUC. CODE ANN.

§ 11.151(b) (“The trustees as a body corporate have the exclusive power and duty to

govern and oversee the management of the public schools of the district.”); Ball v.


        16  Because the hearing examiner is the sole judge of the witnesses’ credibility and the weight to be
given to their testimony, we do not consider the testimony of ECISD’s witnesses regarding Esparza’s
ineffectiveness in our analysis. See Davis, 34 S.W.3d at 567. We must assume, consistent with the IHE’s
findings, that she did not find the testimony to be credible. See id.; Golden Eagle Archery, Inc. v. Jackson,
24 S.W.3d 362, 373 (Tex. 2000).

                                                    24
Kerrville Indep. Sch. Dist., 504 S.W.2d 791, 795–96 (Tex. App.—San Antonio 1973, writ

ref’d n.r.e.) (“The Legislature has, thus, not only delegated to school authorities the

function of determining disputes arising from the termination of teacher’s contracts, but

has, without equivocation, implemented its intention to keep such disputes in the hands

of those knowledgeable in school matters by declaring that the appeal to the courts

authorized by the statute shall be under the substantial evidence rule.”). It is also

reasonable to conclude based on the nature of Esparza’s employment (a principal in

charge of a school caring for teenage children), the nature of the photo (a voluntarily taken

naked picture), and the group that circulated the picture (students, teachers, and the

school’s community) that the distraction would continue to increase and the media

attention and parental inquiries and complaints would persist and increase, and that this

would impair Esparza’s future effectiveness. Accordingly, we conclude that the

Commissioner’s decision was supported by substantial evidence and not erroneous. See

TEX. EDUC. CODE ANN. §§ 21.202, 21.307(f); Davis, 34 S.W.3d at 565; Jenkins, 537

S.W.3d at 149; Tave, 109 S.W.3d at 894; Watts, 662 S.W.2d at 57; see also Judson,

2015 WL 1501758, at *6.

       We also conclude that the Commissioner did not err when he implicitly concluded

that ECISD’s decision was not arbitrary, capricious, or unlawful. See TEX. EDUC. CODE

ANN. § 21.303(b)(1). An agency decision is arbitrary and capricious if it fails to “manifest

a rational connection to the facts,” see Oncor Elec. Delivery Co. v. Pub. Util. Comm’n of

Tex., 406 S.W.3d 253, 265 (Tex. App.—Austin 2013, no pet.), or if the agency did not

“genuinely engage[] in reasoned decision making.” See City of El Paso v. Pub. Util.

Comm’n of Tex., 883 S.W.2d 179, 184 (Tex. 1994) (holding that one of the ways in which


                                             25
an agency’s decision may be arbitrary and capricious is if the agency reaches a

“completely unreasonable result,” even after properly considering legislatively mandated

factors); Webworld Mktg. Grp., L.L.C. v. Thomas, 249 S.W.3d 19, 25 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). In its decision, the school board explained that the

dissemination of Esparza’s nude photo and the publicity it started to receive “impaired

[Esparza’s] future effectiveness as a middle school principal and made it untenable for

ECISD to continue to employ her.” This indicates a rational connection to the facts and

reasoned decision making. See City of El Paso, 883 S.W.3d at 184; Oncor Elec., 406

S.W.3d at 265; Thomas, 249 S.W.3d at 25. Accordingly, we must uphold the

Commissioner’s decision. See TEX. EDUC. CODE ANN. §§ 21.303(b)(1); 21.307(f);

Matthews, 268 S.W.3d at 172.

      Esparza argues that a third party was responsible for the photo’s dissemination

and, therefore, there can be no good cause to terminate her. We disagree. While it is

unfortunate that Esparza was a victim of a crime, the fact remains that there is a naked

picture of Esparza voluntarily taken circulating among the students and the school’s

community. As noted, reasonable minds could conclude this would detrimentally affect

Esparza’s ongoing effectiveness as a principal, and ECISD’s DH (Local) policy covers the

scenario here. Whether DH (Local) policy was violated is ultimately determined by the

school board, see Davis, 34 S.W.3d at 565; see also Judson, 2015 WL 1501758, at *6

(“The school board retains the authority to make the ultimate determination of whether

board policy has been violated and whether the violation is good cause to terminate a

contract.”), and we cannot conclude that its determination was arbitrary, capricious, or

unlawful under these circumstances.


                                          26
       Esparza also argues that she did not receive notice that she was being terminated

for her “future” ineffectiveness. Again, we disagree. The board’s notice of termination

mentions only “effectiveness,” without differentiating between current or future

ineffectiveness, and the notice can be properly read as referring to both. We conclude

that, by listing “effectiveness” in the notice of proposed termination, the board put Esparza

on notice that her current and future effectiveness was at issue.

       Finally, Esparza also argues that there is no evidence that she was ineffective as

a result of the photo because the photo was in circulation on social media and the internet

long before she was suspended and before the end of the prior school year. We find

Esparza’s argument unpersuasive for the reasons set forth above. See Matthews, 268

S.W.3d at 175–76.

       We sustain the Commissioner’s second issue.17

                                      IV.    CONCLUSION

       We reverse the district court’s judgment and render judgment affirming the

Commissioner’s decision.

                                                                     DORI CONTRERAS
                                                                     Chief Justice

Concurring Opinion by Justice Hinojosa.

Delivered and filed the
19th day of March, 2020.




        17 Because the Commissioner’s second issue is dispositive, we need not reach any of the other

issues presented in this appeal. See TEX. R. APP. P. 47.1.

                                                 27
