                                                                                                                                   ACCEPTED
                                                                                                                                   05-14-01165
                                                                                                                    FIFTH COURT OF APPEALS
                                                                                                                               DALLAS, TEXAS
                                                                                                                          12/4/2015 4:21:04 PM
ABERNA                                                                                                                              LISA MATZ
                                                                                                                                        CLERK

ROEDER
  BOYD                                                                                                   FILED IN
HULLETT•                                                                                                5th COURT
                                                                                                              OF APPEALS
                                     1700 Redbud Boulevard, Suite 300 • P.O. Box 1210 ·McKinney, Texas 75070-1210
                                     Metro 214.544.4000 • Fax 214.544.4040
                                                                                                     DALLAS, TEXAS
ATTORNEYS            AT    LAW                                                                    12/4/2015 4:21:04 PM
                                                                                                        LISA MATZ
CHARLES] CRAWFORD                                                                                         Clerk



                                                  December 4, 2015

  Lisa Matz, Clerk of the Court
  Court of Appeals
  Fifth District of Texas
  600 Commerce Street, Suite 200
  Dallas, TX 75202

          Re: Court of Appeals Number: 05-14-01165-CV
              Trial Court Case Number: 429-00459-2014

          Style: Sylvia Ortiz v. Commissioner of Education and Plano Independent School District

  Dear Ms. Matz,

          On behalf ofAppellee-Cross Appellant Plano ISD, I submit the following post-oral argument letter brief
  to follow up on the Commissioner of Education's response to Justice Lang-Meirs' inquiry regarding the
  precedential value of the underlying Commissioner's Decision that is the subject ofPlano ISD's cross-appeal.
  Please circulate this letter to the panel members, Justices Lang-Meirs, Bridges and Schenck.

         At the December 2nd oral argument, in response to Justice Lang-Meirs' question the Commissioner
  confirmed to the Court that his written Decision in this case, unless corrected or at least criticized by the Court,
  would become binding precedent relied upon by future Texas Education Agency hearing officers in Education
  Code Chapter 21 termination proceedings. This is why it is important to correct or at least refuse to adopt the
  various legal errors in the Commissioner's Decision - - to avoid future legal errors that are preventable and to
  avoid future confusion and serious injustice in TEA teacher termination proceedings going forward.

          To answer Justice Lang-Meirs' concern that Plano ISD is requesting the Court to issue an improper
  advisory opinion or dictum, the Court's deciding Plano ISD's cross-points is not advisory or otherwise dicta
  because the rulings are necessary to the determination of Ms. Ortiz's second issue on appeal, that her rights
  under §21.25 6 of the Texas Education Code and to due course oflaw were violated because she "was subjected
  to a hearing consisting almost entirely of a trial by hearsay and inadmissible evidence." Appellant's Br. at 40.
  The Court's ruling that, for example, expert testimony is admissible on the subject of good cause would be a
  determinative factor in denying Ortiz's second issue on appeal. Another example is the Commissioner's
  decision that the use of false sworn court testimony may not be used to terminate an employee.
        The Court's opinion is not advisory - - the Commissioner is currently before the Court, and the issues
have been fully briefed and are relevant and ripe. Further, even if considered dicta, like higher court judicial
dictum, the Court may, and should, deliberately put the Commissioner and TEA hearing officers on notice that,
in affirming the Commissioner's finding of good cause based on substantial evidence, the Court does not adopt
or approve ofthe Commissioner's legal errors complained of in Plano ISD's cross-points. The Court is well
within its supervisory authority to correct, or at least criticize and/or expressly decline to adopt, the various
legal errors in the Commissioner's Decision and to give guidance to the Commissioner, TEA hearing officers,
school districts and teachers on these legal issues going forward. See, e.g., Railroad Comm 'n of Texas v.
Aluminum Co. ofAmerica, 380 S.W.2d 599, 601 (Tex. 1964):

                    While this statement is properly to be regarded as dictum since it was
                    not necessary to the decision in this case, nevertheless it was said
                    deliberately, to put the Commission and the industry as a whole on
                    notice that the holding therein did not require [certain actions].
                    Otherwise, [ ] confusion and serious injustice [would] result.



                                                                      Respectfully submitted,

                                                                      Is/ Charles J. CrawfOrd
                                                                      Charles J. Crawford
                                                                      Counsel for Appellee-Cross
                                                                      Appellant Plano lSD



cc: Rick Annett: rarnett@brimarnett.com
    Robin Sanders: robin.sanders@texasattorneygeneral. gov.
