       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                    NO. 03-18-00377-CV




    Angela Davis, as President of NEA-Dallas (a Local Affiliate of Texas State Teachers
    Association), on behalf of All Affected Members and Named Individuals, Appellant

                                              v.

          Mike Morath, Commissioner of Education of The State of Texas, and
         Dallas Independent School District, A Public Body Corporate, Appellees




              FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
 NO. D-1-GN-17-002145, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



            CONCURRING AND DISSENTING OPINION


              In this appeal, certain teachers (the Teachers) employed with the Dallas

Independent School District (DISD) filed a grievance with DISD’s Board of Trustees (the Board)

regarding: (1) DISD’s Teacher Excellence Initiative (TEI) appraisal system for the school year

2014–2015; (2) the TEI Scorecards (the Scorecards)—which set forth a teacher’s 2014–2015

evaluation rating and 2015–2016 effectiveness level—that the Teachers received in September

2015; and (3) an alleged decrease in the Teachers’ salary. The Board dismissed and denied the

grievance as untimely. The Teachers then appealed to the Commissioner. Agreeing with the

Board, the Commissioner issued findings of fact and conclusions of law determining that the
grievance was untimely; yet, rather than affirm the Board’s decision, he dismissed the appeal for

lack of jurisdiction. The district court affirmed.

               The Court concludes that the Commissioner had jurisdiction over the Teachers’

appeal from the Board’s decision, and I agree.           See Tex. Educ. Code § 7.057.        The

Commissioner’s dismissal for lack of jurisdiction is therefore “affected by other error of law”

and his decision must be reversed if the Teachers’ substantial rights have been prejudiced. See

Tex. Gov’t Code § 2001.174(2)(D). In my opinion, given the unique procedural posture of this

case, the Commissioner’s supporting findings and conclusions may serve as grounds for

affirming the Commissioner’s decision if they satisfy the substantial evidence rule. If so, the

Teachers’ statutory right to have those issues determined by the Commissioner was not

prejudiced by the Commissioner’s ultimate disposition of dismiss rather than affirm. See id.

§ 2001.174; Tex. Educ. Code § 7.057. I therefore concur with this Court’s decision affirming the

Commissioner’s dismissal of the Teachers’ complaints regarding the TEI and their decrease in

salary for the reasons stated in the Commissioner’s supporting findings and conclusions. I

respectfully dissent, however, from this Court reversing the Commissioner’s dismissal of the

Teachers’ complaints regarding the Scorecards and remanding that issue for further proceedings.

Because the Commissioner’s supporting findings and conclusions on this issue satisfy the

substantial evidence rule, I would affirm.


                                          DISCUSSION

               The Court and I agree that pursuant to Texas Commissioner of Education v. Solis,

section 7.057(a) of the Texas Education Code provides the Commissioner with jurisdiction over

the Teachers’ appeal from the Board’s decision on their grievance. 562 S.W.3d 591, 602 (Tex.



                                                     2
App.—Austin 2018, pet. filed) (“Section 7.057 of the Texas Education Code provides for an

appeal to the Commissioner when a person is aggrieved by an action or decision of a board of

trustees that violates Texas school law. The Commissioner may not, through his rules or

policies, narrow the availability of that appeal.”). Thus, the Commissioner’s decision to dismiss

the appeal for lack of jurisdiction was “affected by other error of law” and this Court must

reverse and remand “if substantial rights of the appellant have been prejudiced” by this error of

law. See Tex. Gov’t Code § 2001.174(2)(D).1

              In most scenarios, that would be the end of the inquiry—this Court would reverse

and remand for further proceedings for the Commissioner to consider the merits of the grievance.

Otherwise, the substantial rights of the grievant—namely, to have the Commissioner consider

and decide the merits of the appeal from the Board’s decision, see Tex. Educ. Code § 7.057—

would be prejudiced.      This case, however, presents the unique circumstances of the

Commissioner making express findings, conclusions, and decisions that establish that the

Teachers’ grievance was untimely—which the Commissioner considered necessary to resolve


       1
           Review of the Commissioner’s decision under section 7.057 “is governed by the same
analysis as in the district court and before the Commissioner—the familiar ‘substantial-evidence’
rule that is codified in Section 2001.174 of the Administrative Procedure Act.” Jenkins
v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 148 (Tex. App.—Austin 2017, no pet.); see Morath
v. Cano, No. 03-15-00799-CV, 2017 WL 3585252, at *3 & n.10 (Tex. App.—Austin
Aug. 17, 2017, no pet.) (mem. op.) (collecting cases). The Commissioner’s decision should
be reversed only if the party challenging the decision demonstrates that the party’s
substantial rights have been prejudiced. See Mitchell v. Texas Med. Bd., No. 03-13-00502-CV,
2015 WL 1778289, at *3 (Tex. App.—Austin Apr. 15, 2015, pet. denied) (mem. op.) (“To
warrant reversal or remand, therefore, the reviewing court must conclude that (1) substantial
rights of the appealing party have been affected because of (2) one or more of the reasons listed
in section 2001.174(2)(A)–(F).”); Citizens Against Landfill Location v. Texas Comm’n on Envtl.
Quality, 169 S.W.3d 258, 264 (Tex. App.—Austin 2005, pet. denied) (“[T]he agency’s decision
should be reversed only if the party challenging the decision demonstrates that the absence of
substantial evidence has prejudiced the party’s substantial rights.”).


                                               3
the jurisdictional issue2—and that the Teachers waived any individual complaints by not

specifically excepting to the proposal for decision (PFD) prepared by the administrative law

judge (ALJ).     These findings, conclusions, and decisions—if supported by substantial

evidence—establish that the Commissioner should have affirmed the Board’s decision to dismiss

the grievance pursuant to DISD’s grievance policy. See Tex. Educ. Code § 11.1511(b)(13)

(providing that board of trustees of independent school districts shall by rule adopt process for

hearing complaints); 19 Tex. Admin. Code § 157.1073(h) (Tex. Educ. Agency, Hearings

Brought Under Tex. Educ. Code § 7.057) (providing that Commissioner may affirm or reverse

board’s decision pursuant to substantial evidence review); cf. Poole v. Karnack Indep. Sch. Dist.,

344 S.W.3d 440, 442 (Tex. App.—Austin 2011, no pet.) (noting Commissioner concluded

district’s decision to dismiss grievance on basis of untimely filing was supported by substantial

evidence and affirmed district’s decision). And the Commissioner implies in his briefing that if

his decision is reversed and remanded, he would “reform the relief from dismissal to affirmance”

without changing the findings and conclusions.3

               Although the Commissioner’s findings, conclusions, and decisions were made in

the context of an incorrect jurisdictional determination, the Teachers will not be able to meet

       2
           The substantial evidence standard would govern review of jurisdictional fact findings if
the Commissioner had correctly determined that he lacked jurisdiction. See Houston Indep. Sch.
Dist. v. Simpson, No. 03-12-00145-CV, 2013 WL 5878919, at *3 (Tex. App.—Austin Nov. 1, 2013,
no pet.) (mem. op.) (“Where, as here, the Commissioner makes fact findings necessary to resolve
the jurisdictional issue based on an evidentiary record developed through an adjudicative
process, we review those fact findings under the substantial-evidence standard.”).
       3
          The Commissioner states, “Because here the Commissioner specifically concluded that
the teachers’ grievance was untimely, . . . (COLs #3), there is no reason for this Court to remand
to the Commissioner to reform the relief from dismissal to affirmance. In this case, dismissing
the teachers’ claim instead of denying it would be harmless error, for the Commissioner’s
conclusion that the teachers’ grievance was untimely was reasonable and therefore the teachers
have not been prejudiced for they are not entitled to relief.”
                                                  4
their burden to demonstrate that their substantial rights have been prejudiced if these

“administrative findings, inferences, conclusions, or decisions” (1) establish that the

Commissioner should have affirmed the Board’s decision to dismiss the grievance and (2) are

sustained on review under the substantial evidence rule.4 See Tex. Gov’t Code § 2001.174(2);

cf. Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.)

(“Substantial-evidence analysis entails two component inquiries: (1) whether the agency made


       4
           For this reason, it is my opinion that the Court exceeds the scope of its review in
resolving issues that were not addressed in the Commissioner’s decision. For example, the Court
considers whether section 21.352(a) of the Texas Education Code is directory or mandatory in
requiring a yearly appraisal. See ante at ___ (citing Tex. Educ. Code § 21.352(a)). The Court
justifies addressing this issue by stating that “the applicable standard of review requires us to
consider whether . . . to dismiss the appeal on some other reasonable basis in this record” or
“[u]nder substantial evidence review of fact-based determinations, . . . ‘whether the record
demonstrates some reasonable basis for the agency’s action.’” Ante at ___ (quoting AEP Tex.
Cent. Co. v. Public Util. Comm’n, 345 S.W.3d 60, 68 (Tex. 2011)). But whether section 21.352
is directory or mandatory is neither a “reasonable basis” for the Commissioner’s action of
dismissing the appeal for lack of jurisdiction nor a “fact-based determination[].” And by
expressly dismissing the Teachers’ appeal, the Commissioner made the determination that he did
not have jurisdiction to consider the merit issue of whether section 21.352(a) is directory or
mandatory. For the reasons described more fully in the following sections, it is my opinion that
the Court need not reach this issue because the Commissioner’s decision to dismiss can be
affirmed given (1) his express determination, which included findings and conclusions, in his
decision that the grievance was untimely, (2) those findings, conclusions, and decisions are
sustained on review under the substantial evidence rule, and (3) the Teachers’ substantial rights
were not prejudiced by the dismissal although the dismissal was affected by other error of law
because the Commissioner expressly considered and determined the issue of timeliness in his
decision. But even if I agreed with the Court that the grievance regarding section 21.352(a) was
timely raised, I would not address whether that statute is directory or mandatory. Section
7.057(a) of the Texas Education Code provides the Teachers with a right to appeal to the
Commissioner. Tex. Educ. Code § 7.057(a). If the Teachers’ grievance as to section 21.352(a)
was timely, the Teachers would be entitled to have the Commissioner consider the merit issue of
whether it is directory or mandatory. By dismissing for lack of jurisdiction—a determination
affected by other error of law—without expressly considering this issue in his decision, the
Commissioner prejudiced the Teachers’ substantial rights under section 7.057(a) to have that
issue considered by the Commissioner. Accordingly, pursuant to section 2001.174(2)(D), if the
Court concludes that the Teachers’ grievance was timely, this Court must reverse and remand on
this issue without determining the merit issue, which the Court fails to do. See Tex. Gov’t Code
§ 2001.174(2)(D).
                                               5
findings of underlying facts that logically support the ultimate facts and legal conclusions

establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the

findings of underlying fact are reasonably supported by evidence.”). This approach promotes

judicial economy by allowing a reviewing court to affirm rather than to reverse and remand to

have the Commissioner issue the exact same decision—merely reforming the disposition from

dismissal to affirm—for consideration on appeal. Moreover, this approach is consistent with our

recent decision in Solis.   562 S.W.3d at 602–04.       In Solis, this Court concluded that the

Commissioner incorrectly determined that it did not have jurisdiction over Solis’s appeal from

the decision by the board of trustees, but this Court did not immediately reverse and remand

upon making this conclusion. Id. at 602. Instead, this Court first noted that “[w]hile the party

may be found to have waived that complaint or failed to preserve it for a subsequent appeal to

the Commissioner, it does not follow that the Commissioner lacks jurisdiction over the appeal

itself.” Id. Then, this Court proceeded to “consider whether Solis was required to seek relief

from the board of trustees in order to preserve for Commissioner review her claim.”             Id.

Although this Court ultimately concluded that “Solis did not waive that claim by not raising it at

the local level,” id. at 604, there would be no need for this Court to consider the issue if Solis

was entitled to a reversal of the Commissioner’s decision that he did not have jurisdiction over

Solis’s appeal and remand for further proceedings without meeting her burden to demonstrate

that her substantial rights have been prejudiced. The fact that this Court considered the merits of

whether Solis preserved error before reversing and remanding implies that this Court could have

affirmed the Commissioner’s decision to dismiss for lack of jurisdiction had Solis not preserved

error for Commissioner review, even though the jurisdictional decision was “affected by other

error of law.” See Tex. Gov’t Code § 2001.174(2)(D).

                                                6
               Following Solis and pursuant to section 2001.174, I proceed with a review of the

Commissioner’s “administrative findings, inferences, conclusions, or decisions” under the

substantial evidence rule. See id. § 2001.174. In conducting this review, I presume that the

agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence,

and the burden is on the appellant to demonstrate otherwise. See Froemming v. Texas State Bd.

of Dental Exam’rs, 380 S.W.3d 787, 791 (Tex. App.—Austin 2012, no pet.); Pierce v. Texas

Racing Comm’n, 212 S.W.3d 745, 751 (Tex. App.—Austin 2006, pet. denied). “Essentially, this

is a rational-basis test to determine, as a matter of law, whether an agency’s order finds

reasonable support in the record.” Jenkins, 537 S.W.3d at 149 (citing Texas Health Facilities

Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452–52 (Tex. 1984)); see id. at 149–50

(describing “well-established standard of review”).


Untimeliness of Grievance

               I agree with the Court that substantial evidence supports the Commissioner’s

decision—which included findings and conclusions—that “the Teachers’ facial grievance as to

the components of the TEI system itself” was untimely. Ante at ___. And the Teachers have not

demonstrated how their substantial rights were prejudiced by the Commissioner dismissing this

portion of their grievance instead of affirming the Board’s dismissal and denial.

               The Court, however, also concludes that there was no reasonable basis to

determine that the Teachers’ grievance as to not receiving an appraisal during the school year

was untimely. DISD’s grievance policy requires, “A grievance form must be filed no later than

ten days from the date the employee first knew or, with reasonable diligence, should have known

of the decision or action giving rise to the grievance or complaint.” The Court claims that it was


                                                7
not reasonable to conclude that the “omission of an appraisal by the end of the school year

constitutes a ‘decision or action’ triggering the need for a teacher to file a grievance under the

plain language” of DISD’s grievance policy. Ante at ___. In my opinion, this complaint

concerns a “decision or action” and substantial evidence in the record supports the

Commissioner’s decision that the Teachers’ grievance was untimely as to this complaint.

               To consider whether the grievance complained of is a “decision or action,” I look

to the Teachers’ complaint. The complaint in their petition to the Commissioner, which is

virtually identical to the complaint in the grievance form before DISD’s Board, states:


       The TEI system does not give the teacher a final evaluation during the appraisal
       school year, but rather gives the teacher this information only after the school year
       has ended by way of the Scorecards received on or around September 18, 2015.
       Those Scorecards, received in the 2015–2016 school year purported to evaluate
       the teachers’ performance for the 2015–2016 school year. This process deprives
       the teacher of a conference that is diagnostic and prescriptive with regard to any
       remediation identified by the evaluator that may be needed in overall performance
       by category during the current school year. Further, this process violates the
       Texas Education Code § 21.352 which requires that a “district option” appraisal
       system must conduct the appraisal “at least once during each school year.”


(Emphases added.) Thus, the Teachers complain about what “[t]he TEI system . . . gives” and

about “this process”—i.e., complaints about the components of the system or process adopted by

DISD or, in other words, a “decision or action” by DISD.

               To determine whether the Teachers’ grievance as to this component of the TEI

system or process was timely, I consider when the Teachers “first knew or, with reasonable

diligence, should have known” of this component giving rise to their complaint.5               The



       5
          I assume for purposes of this analysis that the Teachers are correct that the summative
annual appraisal conducted during the 2014–15 school year is not the “appraisal” contemplated
by section 21.352(a) of the Texas Education Code. Because the Commissioner’s decision can be
                                                8
Commissioner entered a finding of fact that the “[Teachers’] challenges to the components of the

[TEI] program were not filed within ten business days of [the Teachers] learning of the

components or of when [Teachers] with reasonable diligence should have known of the

components.” In the decision, the Commissioner noted:


       The TEI is based on [DISD’s] policies. There are three policies and several
       official interpretations of policies that are relevant to [the Teachers’] claims
       concerning [DISD’s] appraisal process. DNA (LEGAL), DNA(LOCAL[)], and
       DNA(REGULATION) set out the structure of [DISD’s] appraisal program. Each
       of these policies was adopted months before the grievances were filed. [DISD]’s
       teachers received a full day’s training in the TEI evaluation process in August
       2014. A number of district publications further explain the process. The most
       significant publications are the TEI Guidebook, updated March 18, 2015, the TEI
       Rulebook dated January 6, 2015, the Teacher Performance Rubric, revised
       December 19, 2014, the SLO Rubric, revised June 26, 2014, and the TEI Calendar
       for the 2014–2015 school year. In addition, [DISD] provided much information
       about the TEI program on[]line. [The Teachers’] challenges to the components of
       the TEI program were not filed within ten business days of [the Teachers]
       learning of the components or of when [the Teachers] with reasonable diligence
       should have known of the components.


The TEI Guidebook provides a draft “Category A Teacher Evaluation Scorecard 2014–15” that

demonstrated that the Scorecard would show the points earned for the categories of teacher

performance, student perceptions, and student achievement; the total points earned; and an

evaluation rating and effectiveness level. The DNA(REGULATION) provides that DISD “will

use the evaluation ratings to determine teacher effectiveness levels” and that “[a]t the beginning

of the 2015–2016 school year, each teacher will receive one of the following effectiveness levels

based on a teacher’s evaluation rating from the 2014–15 school year . . . .” (Emphasis added.)

The TEI Guidebook states in its “Summary of Evaluation Process” that in “September–October



affirmed without reaching the merits of this question, I would not reach or decide this issue and
respectfully dissent from the Court’s determination of this issue.
                                                9
2015” the “Teachers receive final evaluation rating and effectiveness level.” The TEI Evaluation

Calendar for the 2014–2015 school year also provides this exact same information.

               In my opinion, the Court need not determine the exact date that the Teachers “first

knew or, with reasonable diligence, should have known” that they would receive their final

evaluation rating as shown on the Scorecards in the Fall of the 2015–2016 school year and not in

the 2014–2015 school year. Substantial evidence exists in the record that no later than the end of

the 2014–2015 school year—and most likely much earlier—the Teachers “first knew or, with

reasonable diligence, should have known” that “[t]he TEI system does not give the teacher a

final evaluation during the appraisal school year, but rather gives the teacher this information

only after the school year has ended.” And it is undisputed that the Teachers did not file a timely

grievance from the end of the 2014–2015 school year.6           Because (1) substantial evidence

supports the Commissioner’s finding of fact that the Teachers’ grievance was untimely and

(2) the Teachers have not demonstrated how their substantial rights were prejudiced because the

Commissioner dismissed the cause rather than affirmed the Board’s decision as to this portion of



       6
           The Teachers’ grievance is premised on the fact that their Scorecards were received
after the school year had ended. The Teachers also raise a ripeness argument, claiming that
their grievance was not ripe until the Scorecards were delivered. But ripeness generally
concerns the jurisdiction of a court to decide a case. See, e.g., Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849, 851 (Tex. 2000). Here, as the Court and I have discussed, the Commissioner has
jurisdiction and the issue is whether the grievance was timely filed pursuant to DISD’s grievance
policy. The Teachers do not identify and my review did not reveal a ripeness requirement
incorporated into that policy. The Court asserts that the Teachers’ complaint regarding TEI’s
failure to provide an appraisal during the school year as putatively required by statute became
ripe only when DISD provided the Scorecard in the following school year. Thus, under the
Court’s theory, DISD could prevent the Teachers’ claim from becoming ripe by failing to
provide a Scorecard at all. In my opinion, this is incorrect. To the extent the doctrine of ripeness
does apply, the Teachers’ complaint would be ripe no later than when they allegedly were
deprived of that statutory right—i.e., when the school year ended.


                                                10
the grievance, I conclude that there are not grounds under section 2001.174 for reversal. See

Tex. Gov’t Code § 2001.174. Accordingly, I would affirm on this issue.7


Waiver of Timeliness Requirement

               In their briefing before this Court, the Teachers assert that DISD waived reliance

on its grievance policy’s timeliness requirement.       The grievance policy states that “[i]f a

grievance form . . . is not filed timely . . . as set forth in this policy, the grievance shall be

dismissed, on written notice to the employee, at any level during the grievance process.” The

Teachers argue that because DISD did not dismiss the grievance, it has waived its right to require

grievances to be timely filed. Although I disagree, I consider it necessary to address the issue. If

the Teachers are correct as to waiver, then the untimeliness of the grievance would not be a

sufficient ground to affirm the Commissioner’s decision. See Tex. R. App. P. 47.1 (requiring

written opinion to address “every issue raised and necessary to final disposition of the appeal”).

Because the Court does not address the Teachers’ waiver argument in its opinion, I do so here.

               In his decision, the Commissioner determined that “[a]t all levels of the grievance

policy, the decision was made to dismiss the grievance”; “[a]llowing an appeal of a lower level


       7
             The Court references a statement from the record that was made by an assistant
principal to at least one of the Teachers. It is unclear what legal effect the Court considers this
statement to have. Moreover, the Teachers neither reference this statement in their briefing
before this Court nor provide any argument as to what effect such a statement may have to
support overturning the Commissioner’s decision. “[T]o guess at or make an argument for
a party would violate the structure of our system of justice, be unwise, and change our
role from neutral and impartial decision makers to advocates.” Isaac v. Villas del Zocalo 3,
No. 05-16-01338-CV, 2018 WL 360166, at *1 (Tex. App.—Dallas Jan. 11, 2018, no pet.) (mem.
op.); see In re Minix, 543 S.W.3d 446, 465 (Tex. App.—Houston [14th Dist.] 2018, orig.
proceeding) (Busby, J., concurring) (“Were we to raise this non-jurisdictional issue ourselves
and develop arguments for or against its application, we would become advocates for a party
rather than impartial decisionmakers—a role fundamentally at odds with our adversary system of
justice. . . . We should stay in our lane.”).
                                                11
dismissal to the school board does not change the fact [th]at a lower level decision was made to

dismiss the grievance”; and “a waiver did not occur in the present case as [DISD’s] conduct was

not unequivocally inconsistent with claiming a known right.” The Commissioner explained that

the hearing officer—in the Level I and II Decision letter—explicitly dismissed the grievance and

that “[w]hile no form of the word ‘dismiss’ was used . . . by finding the grievance untimely and

adopting the Level I and II decision, [DISD’s] board dismissed the grievances.”

               The Commissioner’s decision is confirmed by the record. In the decision letter,

the hearing officer concluded that:


       a complaint regarding spot observations, a full observation, or a summative
       observation that was conducted in 2014–2015 is untimely because the teacher
       knew or should have known of the action before the end of the 2014–2015 school
       year. It is the decision of this Hearing Officer that any of the NEA Grievants’
       complaints based on events (such as these) of which the teachers knew, or should
       have known, during the 2014–2015 school year are untimely. . . . Further, the
       Board adopted DNA (Local) and made TEI the official policy of Dallas ISD on
       May 22, 2014. Shortly thereafter, in late May or early June of 2014, the TEI
       Guidebook was publicly posted online for the public (and any Dallas ISD
       employee) to see. Any teacher . . . could have filed a grievance within ten days
       after the Board adopted DNA (Local) or the TEI Guidebook was publicly posted.
       They did not do so. The NEA Grievants’ challenge to DNA (Local) and the TEI
       framework is, therefore, untimely.


Although the hearing officer also evaluated the substance of the grievance, the officer made the

analysis and decision “[s]ubject to this Hearing Officer’s Decision regarding the untimely nature

of the grievance.”    The hearing officer concluded that “[t]o the extent that the Grievants

complain of decisions or actions of Dallas ISD that were known or should have been known, to

them prior to September 18, 2015, as discussed above, the grievance is denied and dismissed as

untimely in accordance with DGBA (Local).”




                                               12
               The hearing officer’s decision was appealed to a three-person subcommittee of

the Board. Pursuant to DISD’s grievance policy, “The Board subcommittee’s decision will serve

as the final decision of the Board.” The Board’s decision expressly noted that it was not waiving

any objection regarding timeliness. By a majority vote, the Board decided that the grievance was

not timely and that the findings of fact and decision of the hearing officer “should be affirmed

and the appeal of NEA-Dallas Group Grievance should be and is hereby denied.”8

               Both the hearing officer and the Board expressly refused to waive the issue of

timeliness. DISD’s grievance policy expressly states that “[a]ll time limits for filing grievances

shall be strictly followed” otherwise “the grievance shall be dismissed . . . at any level during the

grievance process.” The hearing officer did dismiss the cause and the Board adopted at the

hearing and affirmed in its written decision the hearing officer’s decision. Although the hearing

officer’s decision letter and the Board’s decision are no models of clarity as to their dispositions,

I cannot conclude that waiver occurred by the Board’s express language. And “[w]hile waiver

may sometimes be established by conduct, that conduct must be unequivocally inconsistent with

claiming a known right.” Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005).

But, as the Texas Supreme Court has explained, “[h]earing the merits of a party’s complaint

while reserving a ruling on its timeliness is not unequivocally inconsistent with later denying the

complaint on the latter ground.” Id. Accordingly, I agree with the Commissioner and cannot

conclude that DISD waived the timeliness requirement for the Teachers to file their grievance.




       8
           At the hearing before the Board’s subcommittee, the motion that carried used the
language that the Board “adopt and approve the findings of fact and the decision of the Level II
hearing officer.” DISD’s grievance policy states that “[t]he Board subcommittee may render an
oral decision,” but that it shall also “provide the written decision.”
                                                 13
Exceptions to Individual Grievances

               Finally, I would also affirm the Commissioner’s decision to dismiss the Teachers’

grievances as to their individual complaints regarding the Scorecards. The Teachers waived any

disagreement as to the PFD’s findings and conclusions regarding the individual complaints by

failing to satisfy the requirements for excepting to the PFD.

               Section 157.1059 of the Texas Administrative Code imposes requirements upon

exceptions to the PFD that if not met will waive a party’s disagreements with the PFD’s factual

findings and legal conclusions:


       (d) All disagreements with the factual findings and legal conclusions of the
       proposal for decision must be made in the parties’ exceptions to the proposal for
       decision or be waived.

       (e) The exceptions shall be specifically and concisely stated. The evidence relied
       upon shall be stated with particularity, and any evidence or arguments relied upon
       shall be grouped under the exceptions to which they relate.


19 Tex. Admin. Code § 157.1059(d)–(e) (Tex. Educ. Agency, Filing of Exceptions and Replies

to Proposal for Decision).        In his decision, the Commissioner concluded that “[a]s only

Exceptions No. 10 and 23[] properly cite to the record to identify the evidence relied upon, only

these exceptions properly identify facts that could call into question the [PFD]” and “[n]one of

the Exceptions to the [PFD] specifically and concisely state any potential legal error.”

               In the PFD, the ALJ made the following statements as to the Teachers’

individual complaints:


•      While some named Petitioners made individual complaints in the grievance either these
       complaints are really about the TEI process as a whole or they are about specific
       procedural irregularities that had long since passed when the grievance was filed.

•      No individual Petitioners contend that their Scorecards were improperly calculated.

                                                14
•      However, none of these complaints is about how an individual Scorecard was calculated.
       The individual complaints allege flaws in the process that occurred long before the
       individuals received their Scorecards. These complaints are also untimely.


The Teachers excepted to these statements in Exceptions 1, 8, and 19, stating:


•      This statement is in direct contradiction to the evidence in the record.

•      The ALJ has erred, and the finding should be removed from the decision.

•      All the teachers’      individualized    arguments    were    presented    at   the   District
       grievance hearings.

•      NEA Dallas made numerous arguments that each challenged individual Scorecard[] was
       void and invalid as it was premised upon an unlawful appraisal system.

•      All of NEA Dallas’s arguments made in the grievance process pertained to the class
       members’ Scorecards, and the manner in which each teacher was appraised . . . .

•      Further, the grievance arose from the Scorecards—not school district Board policy.


But the Teachers do not “specifically” state how their complaints are individual complaints

rather than “really about the TEI process as a whole” or “about specific procedural irregularities

that had long since passed.” And they do not “specifically” assert that they are complaining that

the Scorecards were improperly calculated to disagree with the PFD. Other than to assert that

“numerous arguments” as to the individual challenges were made at the grievance hearings, the

Teachers do not specifically state what those arguments are or where or when at the hearings

they were made. These exceptions do not satisfy the requirements of section 157.1059.

               Accordingly, the Teachers have not demonstrated how their substantial rights

were prejudiced by the Commissioner’s dismissal as to their individual complaints. See id.; see




                                                15
also Tex. Gov’t Code § 2001.174(2). Because the Teachers have not met their burden, I would

affirm the Commissioner’s dismissal as to the individual complaints regarding the Scorecards.9


                                        CONCLUSION

              For these reasons, I would affirm the Commissioner’s decision.         I therefore

concur with the Court’s judgment affirming in part, but respectfully dissent from the Court’s

judgment reversing in part and remanding for further proceedings.



                                             __________________________________________
                                             Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

Filed: October 17, 2019




       9
          The Teachers assert that even if the Commissioner had affirmed the Board’s decision to
dismiss, “[the Teachers] ha[ve] requested the Commissioner to issue an independent order that
the Scorecards are void” and therefore the “request for an independent order from the
Commissioner cannot be disposed of by ‘affirming’ the Board’s vote.” But the Teachers do not
explain how the Commissioner would have jurisdiction under section 7.057 of the Texas
Education Code to enter such an “independent order.” See Tex. Educ. Code § 7.057(a)
(providing for “appeal” to commissioner if person is aggrieved by “the school laws of this state”
or “actions or decisions of any school district board of trustees” that violate school laws or
employment contract).
                                               16
