
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





ON MOTION FOR REHEARING







NO. 03-01-00464-CV





Hector Tijerina, Appellant



v.



Felipe Alanis, Commissioner of Education; and Harlandale Independent

School District, Appellees






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. 98-01338, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



	We withdraw our opinion and judgment dated April 18, 2002 and substitute this
opinion to address certain issues concerning the proper standard of review raised in the school
district's motion for rehearing.

	The Commissioner (1) of Education dismissed Hector Tijerina's appeal of Harlandale
Independent School District's decision to end his employment.  The Commissioner dismissed the
appeal because Tijerina did not exhaust his administrative remedies and filed his challenge untimely. 
The district court affirmed the dismissal.  We will reverse the judgment and remand the cause to the
district court with instructions to remand the cause to the Commissioner for further proceedings.

BACKGROUND

	The dismissal of Tijerina's complaint has created a scant record.  The administrative
record consists of pleadings.  There is a reporter's record of the hearing in the district court.  The
parties agree on much of the factual background, but their interpretations of those facts differ.
	The following facts are undisputed.  Tijerina taught for eight years in Harlandale ISD. 
He was employed as a teacher under a continuing contract at the end of that period in 1995-96.  The
district then offered, and Tijerina accepted, a promotion to an administrative position in its personnel
department.  He was offered a contract entitled "One Year Probationary Contract for Certified
Classroom Teacher/ Certified Administrator Position/Nurse/Counselor/Librarian."  No such signed
contract appears in the record.  Tijerina did not file a grievance in 1996 or appeal the district's
decision to offer him a probationary contract.  He served in the new position during the 1996-97
school year.  In the spring of 1997, the district notified Tijerina that it was terminating his
employment.
	Tijerina filed his petition for review with the Commissioner on May 12, 1997.  He
complained that he was never asked to return to probationary status in exchange for the promotion,
and asserted that Harlandale ISD could not ask him to do so without documenting the request in
writing.  He complained that he was not given a reason for his dismissal at the end of the 1997
school year or a hearing before the school board regarding his termination; he contended he should
have received a hearing pursuant to either a continuing or a term contract.  See Tex. Educ. Code Ann.
§§ 21.159 & 21.207 (West 1996).
	The Commissioner dismissed Tijerina's complaint after Harlandale ISD filed a plea
to the jurisdiction.  He found that Tijerina was offered a probationary contract and that Tijerina
asserted that he did not agree to that contract.  The Commissioner opined as follows:

	The action complained of was the offering of a probationary contract, not the action
to nonrenew or terminate the probationary contract.  Such a challenge should have
been made at the time of the contract offering in the spring of 1996 and should have
been appealed to the board of trustees at that time, which it has not.  Therefore, this
matter should be dismissed for untimely filing and for failure to exhaust
administrative remedies.


The Commissioner then dismissed the appeal accordingly.
	At the district court, Tijerina complained that the Commissioner should have
exercised jurisdiction over his causes of action.  He insisted that Harlandale ISD had no authority
to return him to probationary status without giving him notice that the school district intended to
discharge him from his continuing contract and obtaining his written consent for the return to
probationary status.  See Tex. Educ. Code Ann. § 21.106.  He contended that he was not aggrieved
until he was treated like a probationary employee--i.e., when he was fired without a hearing.  The
district court affirmed the dismissal.

STANDARD OF REVIEW

	Normally, when reviewing a judgment by the district court regarding a decision by
the Commissioner, we conduct a substantial-evidence review. (2)  But here the Commissioner decided
that he had no jurisdiction without looking at any evidence. (3)  Although substantial-evidence review
may be appropriate when examining the Commissioner's decisions based on evidence relevant to
jurisdiction, we must look elsewhere for guidance in reviewing the Commissioner's ultimate
conclusion that he had no jurisdiction.
	We have held that the Commissioner's interpretation of the jurisdiction conferred on
him by statute is not controlling, but does merit serious consideration if it is reasonable and does not
contradict the plain language of the statute.  See Smith v. Nelson, 53 S.W.3d 792, 795 (Tex.
App.--Austin 2001, pet. denied) (citing Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994)).  When
reviewing the Commissioner's determination of jurisdiction, we have approved his use of the
procedures used by trial courts.  See Smith, 53 S.W.3d at 794 (citing Bland ISD v. Blue, 34 S.W.3d
547, 555 (Tex. 2001)) (Commissioner may review evidence in determining standing or jurisdiction). 
When reviewing a trial-court order dismissing a cause for want of jurisdiction, we construe the
pleadings in favor of the plaintiff and look to the pleader's intent.  Texas Ass'n of Business v. Texas
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
	Accordingly, we will construe Tijerina's pleadings in his favor and look to his intent,
but will defer to the Commissioner's interpretation of the statute and its application to those facts
if it is reasonable and does not contradict the plain language of the statute.

DISCUSSION

 This appeal turns on whether the Commissioner accurately characterized the intent
of Tijerina's petition.  Tijerina contends that the pleadings do not support the Commissioner's
construction of his petition, and that this mistaken characterization undermines the Commissioner's
conclusions that Tijerina failed to appeal timely and to exhaust his administrative remedies.

Timeliness of Appeal
	The Commissioner's conclusion that Tijerina's petition was untimely rests on a
determination that Tijerina challenges the inception of his employment contract in 1996 rather than
its termination in 1997.  The Commissioner wrote the following:


	Petitioner is actually challenging his contractual status as established by the
contract offered in the spring of 1996.

 

	The action complained of was the offering of a probationary contract, not the
action to nonrenew or terminate the probationary contract.


Based on this view of Tijerina's complaints, the Commissioner concluded that the petition was
untimely because it was filed more than forty-five days after the award of the probationary contract. 
See 19 Tex. Admin. Code §157.1051(a) (2002).
	This characterization is not supported by the petition's language.  Tijerina states in
both his original and first amended petitions that he is challenging "the decision by the Respondent
Harlandale ISD to terminate his administrator contract without due process . . . ."  That Tijerina
alleges irregularities in the contract-offer process in1996 does not alter his request for relief from the
alleged denial of due process in 1997, when Harlandale ISD terminated his employment without
explanation and without a hearing.  The process he was due before termination depends on the nature
of his employment in 1997.  A school board may terminate the employment of teachers on a
probationary contract at the end of the contract term without a hearing or appeal simply by giving
timely notice of its intention to terminate.  Tex. Educ. Code Ann. § 21.103 (West Supp. 2002).  A
school board intending not to renew term contracts or intending to terminate continuing contracts,
however, must conduct a hearing upon the teacher's request.  Id. §§ 21.207 & 21.159 (West 1996). 
A teacher under a continuing contract can be returned to probationary status, but only if certain
procedures are followed.  Id. §§ 21.106 & 21.159.  The school district must provide written notice
that it intends to terminate a continuing contract and must obtain the teacher's written consent to
being returned to probationary status.  Id. § 21.106.  Because Tijerina undisputedly was employed
under a continuing contract in 1995-96, the propriety and effect of the 1996 contract are critical to
discerning what process he was due when Harlandale ISD set out to terminate his employment. 
Rather than seeking relief for the alleged 1996 irregularities themselves, Tijerina asserts them to
show that he was never actually returned to probationary status and was entitled to, but deprived of,
the procedural protections of a continuing contract in 1997.
	The Commissioner concluded that Tijerina "failed to file the appeal of the awarding
of a probationary contract within 45 days of the action complained of."  But the action Tijerina is
complaining of is his termination in 1997.  Whether his complaint will succeed may implicate
employment actions taken in 1996, but that contract is not the basis of his complaint.  We do not find
the Commissioner's contrary interpretation of Tijerina's pleadings reasonable on a jurisdictional
challenge, particularly when the petition must be construed in the petitioner's favor, looking to his
intent.  Because the petition, construed in the light most favorable to the petitioner, does not support
the Commissioner's finding that Tijerina seeks relief for actions taken in 1996, it also does not
support the conclusion that the petition was untimely filed. 

Exhaustion of Remedies
	The district court also affirmed the Commissioner's conclusion that Tijerina failed
to exhaust his administrative remedies.  The Commissioner's conclusion is based on the premise that
the event appealed from is the 1996 reversion to probationary status.  He opined that the 1996
reversion "should have been appealed to the board of trustees at that time, which it was not," and
concluded that this failure to appeal in 1996 constituted a failure to exhaust his remedies.  Again,
we hold that the Commissioner erred in concluding that the intent of Tijerina's petition was to
challenge his return to probationary status in 1996 rather than to complain about the process he was
afforded when he was terminated in 1997.  Thus, Tijerina's failure to exhaust his administrative
remedies in 1996 does not bar this complaint challenging his termination in 1997. (4)
CONCLUSION

	We construe Tijerina's pleadings to complain about his termination in 1997.  We hold
that the Commissioner unreasonably construed the intent of Tijerina's pleadings to be his return to
probationary status in 1996 and this led to his erroneous conclusion that he lacked jurisdiction to
hear the complaint because it was untimely filed and because administrative remedies had not been
exhausted.  Our reversal of the judgment is based on the current state of the pleadings, the text of
the Commissioner's decision, and the scant record before us.
	We conclude that the district court erred by affirming the Commissioner's dismissal
of this petition for review.  We overrule the motions for rehearing and for reconsideration en banc,
and remand the cause to the district court with instructions that it be remanded to the Commissioner
for further proceedings consistent with this opinion.


  
					Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justice B. A. Smith and Yeakel
Reversed and Remanded
Filed:   June 27, 2002
Publish
1.   The commissioner who signed the dismissal was Mike Moses.  His successor, Jim Nelson,
was the commissioner when this appeal was filed.  By rule, we have substituted as appellee his
successor, Felipe Alanis.  See Tex. R. App. P. 7.2(a).
2.   We must determine whether the evidence as a whole is such that reasonable minds could
have reached the same conclusion as the agency in the disputed action.  See Texas Educ. Agency v.
Goodrich Indep. Sch. Dist., 898 S.W.2d 954, 957 (Tex. App.--Austin 1995, writ denied).  We may
not substitute our judgment for that of the agency and may only consider the record on which the
agency based its decision.  See id.; State v. Public Util. Comm'n, 883 S.W.2d 190, 203 (Tex. 1994). 
The true test is not whether the agency reached the correct conclusion, but whether some reasonable
basis exists in the record for the action taken by the agency.  Public Util. Comm'n, 883 S.W.2d at
204.  The findings, inferences, conclusions, and decisions of an administrative agency are presumed
to be supported by substantial evidence, and the burden is on the contestant to prove otherwise.  Id.
3.   In its motion for rehearing, Harlandale ISD accuses this court of "searching the record to
locate evidence supportive of Appellant's position while ignoring that supportive of the
Commissioner's reasonable determination."  We have searched the briefs and the record presented
on appeal and have found no evidence or references to evidence, except to the extent that
administrative pleadings compiled into a trial exhibit are considered evidence.  We have found only
pleadings and arguments of counsel, and we have considered the pleadings from both sides.
4.   Harlandale ISD argued to the Commissioner that Tijerina failed to file a grievance with the
school board in 1997 as well  As this assertion did not form the basis of the Commissioner's
decision, it does not affect our review of his decision.  Further proceedings may reveal Tijerina failed
to exhaust his administrative remedies in 1997.  Dismissal of this action may then be appropriate. 

