                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                      Revised July 23, 2003
                                                               July 2, 2003
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit             Charles R. Fulbruge III
                                                                 Clerk


                           No. 00-40731


                         RANDALL COGGIN,

                                                 Plaintiff-Appellee,


                              VERSUS


           LONGVIEW INDEPENDENT SCHOOL DISTRICT; ET AL,

                                                         Defendants,

              LONGVIEW INDEPENDENT SCHOOL DISTRICT,

                                              Defendant-Appellant.



           Appeal from the United States District Court
                 For the Eastern District of Texas


Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, and CLEMENT, Circuit Judges.*



JAMES L. DENNIS, Circuit Judge:

      Randall Coggin brought this action under 42 U.S.C. § 1983



  *
    Judge Prado, who joined our court subsequent to en banc oral
argument, did not participate in this decision.

                                  1
against his former employer, a Texas independent school district,

because its board of trustees terminated his employment contract

without any kind of a hearing.    After a bench trial, the district

court rendered judgment in favor of Coggin.     A divided panel of our

court affirmed.1   A majority of the judges in active service voted

to rehear the case en banc.2     We now affirm the judgment of the

district court.

             I. Statutory Procedure for Termination of
               School Board Employees’ Term Contracts

      Under the Texas Education Code, a school board has the power

to terminate a term contract and discharge a teacher at any time

“for good cause as determined by the board.”3    Prior to terminating

a term contract, however, the board must give the teacher notice of

its proposed action.4    If the teacher desires a pre-termination

hearing under state law, he must file a written request with the

state commissioner of education (“Commissioner”) within 15 days of

receiving notice of his proposed termination.5     Within 10 business


  1
    Coggin v. Longview Indep. Sch. Dist., 289 F.3d 326 (5th Cir.
2002).
  2
    Coggin v. Longview Indep. Sch. Dist., 309 F.3d 307 (5th Cir.
2002).
  3
    Tex. Educ. Code Ann. § 21.211(a)(1) (Vernon 1996). Under Texas
law, each independent school district is considered a municipal
governmental entity, id. § 11.151, and is governed by a board of
trustees (i.e., a school board), id. § 11.051(a).
  4
      Id. §§ 21.251(a)(1), 21.253.
  5
    Id. § 21.253. The Commissioner is appointed by the governor
with the advice and consent of the state senate, id. § 7.051, and

                                  2
days of receiving a timely request for a hearing, the Commissioner

must assign a hearing examiner to conduct a hearing in that

particular case.6       Not later than 45 days after the Commissioner

receives a request for a hearing, the hearing examiner shall

complete the hearing and recommend findings of fact, conclusions of

law, and, if appropriate, the granting of relief.7                  The school

board, not the Commissioner, is taxed with the costs of the hearing

examiner, the shorthand reporter, and the production of a hearing

transcript.8

       After receiving the examiner’s recommendation and the record

of the hearing, the school board or its designated subcommittee

must consider them and allow each party to present an oral argument

to the board or subcommittee.9     Within 10 days of that meeting, the

board must announce a decision that includes findings of fact and

conclusions of law and that may include a grant of relief.10               The

board    may   adopt,   reject,   or       change   the   hearing   examiner’s

conclusions of law or proposal for granting relief, and it may

reject or change the hearing examiner’s finding of facts not



heads the Texas Education Agency, id. §§ 7.002, 7.055.
  6
       Id. § 21.254(c).
  7
       Id. § 21.257.
  8
       Id. § 21.255(e).
  9
       Id. § 21.258.
  10
       Id. § 21.259.

                                       3
supported by substantial evidence in the record.11

       Section 7.057(d) of the Texas Education Code provides that

“[a] person aggrieved by an action of the agency or decision of the

Commissioner may appeal to a district court in Travis County.”12

This appeal must be made by serving the Commissioner as in a civil

suit, and the court shall determine all issues of law and fact at

trial.13

                 II. Factual and Procedural Background

       Randall Coggin worked for the Longview Independent School

District (“LISD”) for more than 30 years.                  From 1983 until his

discharge on September 13, 1999, Coggin supervised the LISD Career

and Technology Education department. At the time of his discharge,

Coggin was employed under a two-year term contract spanning the

1998-1999 and 1999-2000 academic years. Before receiving notice of

his proposed termination, his performance appraisals were generally

complimentary.     On August 12, 1999, however, Coggin received a

letter from the LISD’s new superintendent notifying him that the

school board proposed to terminate his employment contract for

engaging in     various    alleged   improprieties,         including   sexually

harassing    female     subordinates,       using   LISD    resources   for   his

personal     benefit,    impeding    the     LISD’s   investigation      of   his



  11
       Id.
  12
       Id. § 7.057(d)
  13
       Id.

                                        4
behavior, and falsifying asbestos records.    On August 24, Coggin

deposited copies of his written request for a hearing with the U.S.

Postal Service for delivery via certified mail, properly stamped

and addressed to the Commissioner and the school board.   The school

board received its copy of Coggin’s request on August 26, but the

Commissioner did not receive the request until August 30.   Because

the Commissioner mistakenly thought that Coggin’s request must have

been received, rather than filed, by August 27, 1999, he refused to

appoint a hearing examiner. On September 2, 1999, the Commissioner

mailed copies of a letter addressed to both Coggin and the LISD’s

counsel stating that (1) the Commissioner had received Coggin’s

written request for the appointment of a hearing examiner; (2) the

request was dated and postmarked before the August 27 deadline for

filing; (3) the Commissioner received the request on the third day

following the deadline; but (4) the Commissioner would not appoint

a hearing examiner because Coggin’s request was received after the

deadline.    After Coggin received the Commissioner’s September 2

letter, Coggin’s attorney and the Commissioner engaged in a “flurry

of correspondence” regarding the timeliness of Coggin’s request for

a hearing, but the Commissioner declined to reconsider his refusal

to appoint a hearing examiner.14

       On September 13, 1999, the LISD school board, without giving

further notice to Coggin or any kind of a hearing, adopted a


  14
       District Court’s Memorandum Opinion at 10.

                                   5
resolution discharging Coggin as an employee of the LISD.   The LISD

concedes that it was aware of the Commissioner’s refusal to appoint

a hearing examiner prior to the board’s action.      Thus, as the

district court found, “[w]hen it terminated Coggin’s contract, the

LISD board had actual knowledge that Coggin had requested a hearing

on the termination of his contract, the date on which he had

requested it, and that no hearing of any kind had been held.”15

       On November 12, 1999, Coggin brought suit against the LISD,

the Texas Education Agency (“TEA”), and the Commissioner under 42

U.S.C. § 1983 for depriving him of his property without due process

of law.    After the district court expressed its opinion that the

TEA and the Commissioner had a valid Eleventh Amendment defense,

Coggin dismissed his § 1983 claim against them, and the case

proceeded solely against the LISD.    Following a bench trial, the

district court concluded that (1) Coggin timely filed his request

for a hearing as required by state law; (2) the board had notice

that Coggin had not received a hearing despite his timely request;

(3) the board deprived Coggin of his property without due process

when it terminated his employment contract without any kind of a

hearing; (4) the LISD failed to prove that Coggin had engaged in

the alleged misconduct and therefore had no cause to terminate his

employment contract; and (5) Coggin was entitled to $215,894 in

damages and attorney’s fees.   The LISD appealed.


  15
       Id. at 10-11.

                                 6
            III. The LISD’s Action Was the Sole Cause of
           The Violation of Coggin’s Right to Due Process

       On appeal the LISD does not dispute that its termination of

Coggin’s employment in the middle of his two-year term employment

contract deprived him of a constitutionally protected property

interest in continued employment, or that Coggin was entitled to

constitutional     due   process   in       conjunction   with   the   proposed

termination of that employment.16            Nor does it challenge or point

to any error in the district court’s determination that Coggin

timely filed his request for a hearing.17             LISD argues, instead,

that any deprivation of Coggin’s right to due process of law was

caused by the Commissioner’s refusal to appoint a hearing examiner,

not by the school board’s termination of his employment contract

without a hearing: “The gravamen of this dispute is a question of

causation.”18      Thus, the LISD contends that the Commissioner’s

action, to the exclusion of its own, should be considered the sole


  16
       Defendant’s Supp. En Banc Brief at 15.
  17
     Indeed, the LISD insists that the matter of the timeliness of
Coggin’s request for the appointment of a hearing examiner is
irrelevant to its appeal:

  Regardless of whether Coggin failed timely to file a request
  for hearing under those procedures or the Commissioner erred
  as a matter of state law in interpreting the TEA filing
  requirements, any such dispute (1) was not a dispute involving
  the School District, (2) was not caused by LISD, and (3) was
  waived when Coggin failed to pursue appropriate relief in
  court against TEA and the Commissioner.

Id. at 22.
  18
       Id. at 9.

                                        7
cause of the deprivation of due process and, therefore, that it is

not responsible for the violation.

       The LISD’s irrevocable discharge of Coggin without a hearing

just 4 business days after Coggin’s receipt of the Commissioner’s

notice of refusal was the sole cause of the violation of Coggin’s

right   to   due   process    of   law.19   The   LISD   argues   that   the

Commissioner’s erroneous refusal to appoint a hearing examiner was

the cause of the violation because Coggin waived his rights by not

appealing the Commissioner’s decision through the filing of a civil

suit in state district court as provided for by § 7.057(d) of the

Texas Education Code.        We disagree.

       Section 7.057(d) does not prescribe a time limit within which

a person aggrieved by an action of the Commissioner must file an

appeal in the district court.        The Texas Administrative Procedures

Act, however, provides that an aggrieved person is allowed 30 days

to appeal from the decision of an administrative agency.20           Thus,

  19
     The Commissioner mailed his erroneous decision to Coggin and
LISD on Thursday, September 2, 1999. Because of the intervening
Labor Day on September 6, 1999 and the two days required for
delivery of other mail in this case, Coggin could not have received
the Commissioner’s September 2 letter until Tuesday, September 7,
1999. Therefore, the LISD discharged Coggin only 4 business days
after he had received the Commissioner’s September 2 letter.
  20
     Tex. Gov’t Code Ann. § 2001.176 (Vernon 2000) (“A person
initiates judicial review in a contested case by filing a petition
not later than the 30th day after the date on which the decision
that is the subject of complaint is final and appealable.”). A
“contested case” means “a proceeding . . . in which the legal
rights, duties, or privileges of a party are to be determined by a
state agency after an opportunity for adjudicative hearing.” Id.
§ 2001.003(1). The Texas courts have construed this definition to

                                       8
Coggin was afforded 30 days by the Texas procedure to file his

appeal in district court contesting the Commissioner’s refusal to

assign a hearing examiner.21   But the LISD’s discharge of Coggin

just 4 business days after his receipt of the Commissioner’s notice

of refusal prematurely cut off Coggin’s right to appeal under §

7.057(d) and unreasonably foreclosed the possibility of a pre-

termination due process hearing in his case.

       Consequently, we conclude that Coggin did not waive his

rights, and that the LISD’s action of peremptorily discharging

Coggin without a hearing just 4 business days after his receipt of

the Commissioner’s notice of refusal was the sole cause of the

violation of his right to due process of law.   The Commissioner’s

erroneous decision was not a cause of the violation because, if the

LISD had not peremptorily discharged Coggin, that error could have


include situations in which a state agency adjudicates a party’s
legal rights in an exercise of quasi-judicial authority, as opposed
to making such an adjudication in an exercise of rule making
authority. See WBD Oil & Gas Co. v. Railroad Comm’n of Tex., 35
S.W.3d 34, 44 (Tex. App. 2001); Ramirez v. Texas State Bd. of Med.
Exam’rs., 927 S.W.2d 770, 772 (Tex. App. 1996); Best & Co. v. Texas
State Bd. of Plumbing Exam’rs., 927 S.W.2d 306, 309 & n.1 (Tex.
App. 1996); Big D Bamboo, Inc. v. Texas, 567 S.W.2d 915, 918 (Tex.
App. 1978).
  21
     Even if the Administrative Procedures Act did not apply,
“Texas law is firmly established that, when the statute fails to
prescribe such a time limit, an appeal must be taken within a
reasonable time.” Westheimer I.S.D. v. Brockette, 567 S.W.2d 780,
789-90 (Tex. 1978) (applying § 11.13(c), the predecessor to
§ 7.057(d), and citing Railroad Comm’n v. Aluminum Co. of Am., 380
S.W.2d 599 (Tex. 1964); Board of Water Eng’rs v. Colorado Mun.
Water Dist., 254 S.W.2d 369 (Tex. 1953); Midas Oil Co. v. Stanolind
Oil & Gas Co., 179 S.W.2d 243 (Tex. 1944); and Harkness v.
Hutcherson, 38 S.W. 1120 (Tex. 1897)).

                                 9
been corrected on appeal by the state district court’s order that

the Commissioner assign a hearing examiner in accordance with the

Texas Education Code procedure.

                 IV. The LISD Was the Responsible State Actor

           This court’s standard analysis for determining who is the

state actor responsible for a constitutional violation in an action

arising under § 1983 reaches the same result.                 In Bush v. Viterna,

we identified three key questions that guide our analysis of causes

of action arising under § 1983:

           [T]he first question must be whether a federally secured
           right has been affected. . . . The second question that
           must be asked is whether the alleged deprivation of a
           federal   right   has   been   accomplished   by   state
           action. . . . After one has found a deprivation of a
           federally secured right and has determined that it
           resulted from state action, one must ask a third
           question: Who is the state actor responsible for this
           violation?22

In        this   case,   because   Coggin    was   deprived    of   his   protected

employment right without the due process hearing to which he was

entitled and which he did not waive, and because that deprivation

involved two state actors, the only question presented is who is

the state actor responsible for the violation—the LISD or the

Commissioner.23          This inquiry depends on an analysis of state law.24

     22
          Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986).
     23
     See McMillian v. Monroe County, Alabama, 520 U.S. 781, 784-85
(1997) (“A court’s task is to ‘identify those officials or
governmental bodies who speak with final policymaking authority for
the local government actor concerning the action alleged to have
caused the particular constitutional or statutory violation at
issue.’” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

                                            10
That is, in order to identify the responsible state actor, we must

determine how state law distributes government functions.25   But we

do not apply state law; rather, we “simply [use] state law to

identify the persons responsible for an identified civil rights

violation.”26

       Texas law assigns to the school board, as the governing body

of the school district, exclusive policy making authority with

regard to employment decisions.    The state law is clear that the

school board, alone, may terminate a term contract and discharge an

employee upon a finding of good cause.27   Only the school board can

determine whether such cause exists and whether an employee should




737 (1989))).
  24
     Id. at 786; Jett, 491 U.S. at 737 (“[W]hether a particular
official has ‘final policymaking authority’ is a question of state
law” (internal quotation omitted)); Pembaur v. Cincinnati, 475 U.S.
469, 483 (1986) (“[W]hether an official had final policy making
authority is a question of state law.”); Bush, 795 F.2d at 1209
(stating that the identify of the responsible state actor “will
usually be answered exclusively by reference to state law and
practice”).
  25
     McMillian, 520 U.S. at 786 (“[O]ur understanding of the actual
function of a governmental official, in a particular area, will
necessarily be dependent on the definition of the official’s
functions under relevant state law.”); Regents of Univ. of Cal. v.
Doe, 519 U.S. 425, 429 n.5 (1997) (“[The] federal question can be
answered only after considering the provisions of state law that
define the agency’s character.”).
  26
       Bush, 795 F.2d at 1209.
  27
     Tex. Educ. Code Ann. § 21.211(a)(1) (“The board of trustees
may terminate term contract and discharge a teacher at any time for
. . . good cause as determined by the board . . . .”).

                                  11
be discharged as a result.28          Under the explicit terms of the

statute, then, the LISD was the final policy and decision maker

with respect to Coggin’s discharge.

       By comparison, under Texas law the Commissioner is not vested

with    any   final   policymaking   authority     concerning    either    the

determination of cause to discharge or the actual discharge of

school district employees.      The Commissioner’s role of appointing

a hearing examiner upon the timely filing of a request by an

employee is     ministerial   and    does   not   involve   or   require   any

policymaking.     Consequently, there was no policy authored by the

Commissioner that caused the particular constitutional violation at

issue. In fact, there was no action taken by the Commissioner that

deprived Coggin of his property without due process of law.                The

Commissioner has no authority to discharge a school district

employee or to require the school board to terminate an employment

contract. Indeed, the statute even requires that the school board,

not the Commissioner, bear the costs of the hearing examiner, the

shorthand reporter, and the production of a hearing transcript. In

short, the Commissioner could not have been responsible for causing

the termination of Coggin’s employment contract for cause without

a pre-termination hearing because he could not determine cause or

discharge Coggin.

       Consequently, because the school board was the final arbiter


  28
       Id. § 21.259.

                                     12
of        employment   disputes   under    Texas   law,   it    was   exclusively

responsible for hearing Coggin’s arguments against discharge before

resolving the questions of cause and discharge.29                Contrary to the

LISD’s arguments, Texas law has not removed or separated from the

school board the function of providing pretermination due process

to        its   employees.30   Under   well-established        federal   law,   the

constitutional minimums for due process require that the final

decision maker must hear and consider the employee’s story before




     29
     The Texas Supreme Court recognized this seminal fact in
Montgomery Independent School District v. Davis, when it wrote in
the context of a contract renewal case, “the Board retains the
authority to make the ultimate decision of whether to renew a
teacher’s contract.” 34 S.W.3d 559, 565 (Tex. 2000). Likewise,
§ 21.211(a)(1) makes clear that the board retains the exclusive
authority to determine whether to terminate a teacher’s contract
for cause.
     30
     The LISD, echoing the dissent to the panel opinion, asserts
that Texas law separates the responsibility for providing a due
process hearing from the responsibility for making termination
decisions. The text of the Texas statutory scheme does not support
this assertion. It is true that under the statutory scheme the
function of appointing a hearing examiner has been given to the
Commissioner, Tex. Educ. Code Ann. § 21.254, and that the function
of gathering evidence, making findings of facts, and recommending
conclusions of law has been given to an appointed hearing examiner,
id. § 21.257. But the school board retains the exclusive duty to
“consider the recommendation and record of the hearing examiner”
and “shall allow each party to present an oral argument” before
rendering its decision on whether there is cause to terminate and
whether to discharge an employee. Id. § 21.258. In reaching such
a decision, the school board has authority to make its own
conclusions of law, including the crucial determination of whether
there is cause to discharge. See id. § 21.259(b) (The school board
“may adopt, reject, or change the hearing examiner’s . . .
conclusions of law.”). It “may reject or change a finding of fact
made by the hearing examiner” that is not supported by “substantial
evidence.” Id. § 21.259(c).

                                          13
deciding whether to discharge the employee.31                   The purpose of this

is self-evident.            It is to provide a “meaningful opportunity to

invoke the discretion of the decisionmaker . . . before the

termination takes effect.”32              The Texas law complies with the

federal due process requirement by providing that the school board,

as        the   exclusive     decision   maker      with     regard   to   employment

termination decisions, “shall allow each party to present an oral

argument to         the     board”   before   the    board    determines    cause   or

discharges the employee.33            Thus, under the responsible state actor

analysis we conclude that the LISD is the state actor responsible

for the violation in this case.

                            V. Answer to Amicus Argument

           Contrary to the argument of the LISD’s amicus, the Texas



     31
     See, e.g., Zinermon v. Burch, 494 U.S. 113, 135 (1990)
(“Because petitioners had state authority to deprive persons of
liberty, the Constitution imposed on them the State’s concomitant
duty to see that no deprivation occur without adequate procedural
protections.”).
     32
     Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 & n.8
(1985) (citing Goss v. Lopez, 419 U.S. 565, 583-84 (1975), and
Gagnon v. Scarpelli, 411 U.S. 778, 784-86 (1973)).         Both the
employer and the employee benefit from this opportunity, for it
ensures that the decision maker reaches an accurate decision. Id.
It thus protects persons “not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property.”
Carey v. Piphus, 435 U.S. 247, 259 (1978).
     33
     Tex. Educ. Code Ann. § 21.258(b); see also Londoner v. Denver,
210 U.S. 373, 386 (1908) (“[A] hearing in its very essence, demands
that he who is entitled to it shall have the right to support his
allegations by argument however brief, and, if need be, by proof,
however informal.”), cited in Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 16 n.17 (1978).

                                          14
Association of School Boards Legal Assistance Fund, this decision

in no way subjects a school board to liability for acts other than

its own. If the Commissioner does not abide the prescribed scheme,

Texas gives an aggrieved school employee the right to appeal to a

state    district   court,   thereby    providing    constitutional   due

process.34   If the mandated procedure is followed, an employee will

also have been afforded constitutional due process when a school

board makes its final termination decision.          When a school board

disregards the statutory scheme, here depriving the employee of his

right to appeal, however, it may subject itself to liability, not

for the act of another but for its own act.         To the point, had the

school board given Coggin the statutorily allotted time to appeal

the Commissioner’s decision, there would have been no denial of due

process.35

                             VI. Conclusion

       For the foregoing reasons, we AFFIRM the judgment of the

district court.



  34
       See Tex. Educ. Code Ann. § 7.057(d).
  35
     Judge Jones mistakenly claims that the majority decides an
issue that was not properly before the en banc court. Whether the
LISD or the Commissioner caused the due process violation has been
the ultimate, concrete issue throughout the long history of this
case.   Accordingly, in answering the causation question, the
opinion does nothing more than properly exercise the court’s duty
“to enunciate the law on the record facts.” See Empire Life Ins.
Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972);
see also Phillips v. Monroe County, Miss., 311 F.3d 369, 376 (5th
Cir. 2002) (“We may affirm the district court’s decision on any
grounds supported by the record.”).

                                   15
AFFIRMED.




            16
E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, BARKSDALE,

EMILIO M. GARZA, and CLEMENT, Circuit Judges, dissenting:

     I could agree with the majority’s theory of liability and

outcome if its assumptions about the operation of state law had any

basis in law or fact.    Because those assumptions indisputably have

no support, I cannot join the majority’s opinion.

     Throughout   this   litigation,   the   theory   supporting   LISD’s

liability for a constitutional violation has been marked by an

inventive and evasive character whenever cornered by law or fact.

The theory now expressed in the majority opinion for the first

time, with no briefing from any party, is that Coggin was denied

constitutional due process thus: LISD’s termination of Coggin

caused him to lose his statutory right to appeal the decision of

the TEA Commissioner and thus caused a denial of procedural due

process. If only that were true, I would join the majority.

     The majority’s opinion acknowledges that due process in this

case is satisfied so long as Coggin had the right under state law

to appeal the Commissioner’s decision.       “If the Commissioner does

not abide the prescribed scheme, Texas gives an aggrieved school

employee the right to appeal to a state district court, thereby

providing constitutional due process.”         (Majority Op. at 15).

“Section 7.057(d) of the Texas Education Code provides that ‘[a]

person aggrieved by an action of the agency or decision of the

Commissioner may appeal to a district court in Travis County.’ This

appeal must be made by serving the Commissioner as in a civil suit,

                                  17
and the court shall determine all issues of law and fact at trial.”

(Majority Op. at 4)(footnote omitted)(emphasis added).

       However, the majority assumes that “[t]he LISD’s irrevocable

discharge of Coggin without a hearing just 4 business days after

Coggin’s receipt of the Commissioner’s notice of refusal was the

sole cause of the violation of Coggin’s right to due process of

law.” (Majority Op. at 8).   “[T]he LISD’s discharge of Coggin just

4 business days after his receipt of the Commissioner’s notice of

refusal prematurely cut off Coggin’s right to appeal under §

7.057(d) . . . .”      (Majority Op. at 9).    “The Commissioner’s

erroneous decision was not a cause of the violation because, if the

LISD had not peremptorily discharged Coggin, that error could have

been corrected on appeal . . . .” (Majority Op. at 9).    Thus, the

majority concludes that “had the school board given Coggin the

statutorily allotted time to appeal the Commissioner’s decision,

there would have been no denial of due process.”   (Majority Op. at

15).

       Yet the majority fails to explain how the termination of

Coggin denied him the right to appeal his case to the Travis County

district court.   It is of course plain that the termination did not

cause Coggin physically or procedurally to lose his right to appeal

the Commission decision. The statute was still there, the district

court in Travis County was still there, some 26 days - by the

majority’s calculation - remained in his appeal period, and Coggin

still had free will.       The majority seems to assume, without

                                 18
expressly saying so, that his termination made any appeal of the

Commissioner’s decision moot. Of course, neither the majority, nor

I, nor any other judge on this court, nor any party, knows whether

this assumption contains the slightest degree of correctness in

fact or law.   It is only an assumption tailored from whole cloth,

for a specific fit.    No brief has been filed raising the point.        No

argument is made by the majority that the statute supports such an

assumption.    No argument is made by the majority that case law

supports any such assumption.       The majority simply offers the

theory as so many inspired words.

     On the other hand, a more reasonable assumption would posit

that had Coggin exercised his right to appeal – a right that no one

has denied existed – a complete remedy would have been available.

It is easily assumed that LISD would have been a proper party to

that appeal.    If on appeal the court had concluded that the

Commissioner   erred   in   rejecting   Coggin’s   petition,   it   is    a

plausible assumption that the state court would have exercised its

equitable powers and further would have held Coggin’s termination

a nullity under state law and ordered him reinstated pending the

outcome of the TEA hearing, thus providing him a whole remedy (“the

[Travis County district] court shall try all issues of law and fact

. . . .” § 7.057 (emphasis added)).     Assuming, however, the Travis

County district court determined it had jurisdiction only to

address the error of the TEA Commissioner, another scenario is

equally plausible, plainly demonstrating that whatever the status

                                  19
of his appeal might have been, it was not moot.             If Coggin had

exercised his right to appeal – a right, I repeat, no one denied

existed    –   and    if   Coggin   had   chosen    to   appeal   only    the

Commissioner’s decision, he could have taken that judgment to the

appropriate state court and obtained injunctive relief reinstating

him pending the outcome of the TEA hearing he was denied.                Both

these     scenarios    are   assumptions    enjoying     more     reasonable

speculative bases than the majority facilely adopts to support the

conclusion necessary for the result it thinks is appropriate.

     In short, the assumption of the majority that his termination

caused the denial of due process by rendering his right to appeal

moot is speculation of an unrestrained sort, which indeed seems

contrary to reason and logic.

        I could agree with the majority opinion if anywhere in the

record it were evident that the plaintiff had met his burden of

proof to support the majority’s new-found, unbriefed, unargued

theory that his termination denied him an effective appeal of the

Commissioner’s decision.       But there is nothing in the record – or

the law – to support the majority’s theory – and the majority

apparently does not argue that there is.           Such is the consequence

of attempting to develop arguments never presented by anyone at any

time in order to tailor an outcome for a favored party.

     I can appreciate the equities that drive the majority to try

to fashion some relief in this case.          During the pretermination

process as provided by the Texas statute, Mr. Coggin got entangled

                                     20
in errors and alleged errors, which he did not appeal.    However,

because both Coggin and the majority have failed to carry their

respective burdens of proof and persuasion, to explain how his

termination in fact eviscerated his right to appeal, the question

of causation remains unanswered, I am unable to join in the

opinion, and I respectfully dissent.36 Finally, given what I regard

as the complete failure of the majority to confect some credible

constitutional analysis for a violation of due process, I join the

dissents of Judges Jones and Garza.




  36
    I do note that the majority opinion does not challenge or deny
the correctness of a single assertion made in this dissent. The
majority would thus seem to admit there is no record or legal
support for its theory of liability, thereby calling into question
not only footnote 35 of its opinion, but its entire opinion as
well.

                                21
EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, BARKSDALE,

EMILIO M. GARZA, and CLEMENT, Circuit Judges, dissenting:



           I fully concur in Judge Emilio Garza’s excellent dissent.

I am compelled by precedent, however, to comment on the majority’s

decision to base its opinion on a theory never raised by the

parties in this case; namely, the theory that LISD fired Coggin too

quickly and failed to give Coggin proper time to seek state court

judicial review of the Commissioner’s decision not to allow a

hearing.   See Judge Emilio Garza’s Dissent at 7.

           The   problem   has   been    colorfully,    if   hyperbolically,

described by our brethren on the Seventh Circuit:            “Judges are not

like pigs, hunting for truffles buried in briefs.”37           United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).          Today, the majority,

unable to find a truffle in the briefs, has simply created an issue

never raised by the parties either before the district court38 or

  37
     “It is reasonable to assume that just as a district court is
not required to ‘scour the record looking for factual disputes,’ it
is not required to scour the party’s various submissions to piece
together appropriate arguments. A court need not make the lawyer's
case.” Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.
1995) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994)) (internal citations omitted).
  38
     The district court specifically noted that “[t]he parties have
cited no law that allows for review of the Commissioner’s failure
to assign a hearing examiner.” Memorandum Opinion, p.17, Case No.
6:99-CV-658, (E.D. Tex. May 16, 2000). The district court further
stated the parties did not raise or suggest the “relevance or
applicability of Tex. Educ. Code Ann. § 7.057," upon which the

                                    22
the panel of this court which first heard the case,39 or in the

supplemental briefs filed prior to   en banc rehearing.40   Like some

of my former and current colleagues on this court, I find such

behavior by an en banc court to demonstrate “a complete lack of

appropriate judicial self-restraint.”   United States v. Lyons, 731

F.2d 243, 253 (5th Cir. 1984)(en banc)(Rubin and Williams, JJ.

concurring in part and dissenting in part, joined by Politz, Tate,

and Higginbotham, JJ.).

          “It is the general rule, of course, that a federal

appellate court does not consider an issue not passed upon below.”41


majority relies.   Id. at 17 n.14.      Thus, the court refused to
consider it. Id.
  39
     None of the parties’ original briefs even refers to Tex. Educ.
Code Ann. § 7.057.
  40
    LISD’s en banc brief, in a footnote, refers to and quotes from
Judge Emilio Garza’s panel dissent in which he suggests that Coggin
could have filed suit in state district court in Travis County
against the Commissioner under § 7.057(d).      But LISD makes no
attempt to present a reasoned argument that this was relevant to,
or determinative of, the present case.      Accordingly, any such
argument was abandoned for being inadequately briefed. See Fed. R.
App. P. 28(a)(5); L&A Contracting Co. v. S. Concrete Servs., Inc.,
17 F.3d 106, 113 (5th Cir. 1994); Dardar v. Lafourche Realty Co.,
985 F.2d 824, 831 (5th Cir. 1993). Moreover, a citation in LISD’s
brief, without more, could hardly furnish the basis for this court
to grant relief to Coggin, who never even cited, much less argued,
the provision.
  41
    “Although we can affirm a summary judgment on grounds not
relied on by the district court, those grounds must at least have
been proposed or asserted in that court by the movant.” Johnson v.
Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997); see also Breaux v.
Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001) (“Although this court
may decide a case on any ground that was presented to the trial
court, we are not required to do so.”); Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (“This Court will not

                                23
Singleton v. Wulff, 428 U.S. 106, 120 (1976); Conley v. Bd. of Trs.

of Grenada County Hosp., 707 F.2d 175, 178 (5th Cir. 1983) (“As a

general principle of appellate review, we refuse to consider issues

not    raised   below.”).   We     deviate   from   this   rule   only    in

extraordinary     circumstances.      Leverette,    183    F.3d   at     342.

“Extraordinary circumstances exist when the issue involved is a

pure question of law and a miscarriage of justice would result from

our failure to consider it.” N. Alamo Water Supply Corp., 90 F.3d

at 916. As this court has explained, such circumstances exist when

“the asserted error is so obvious that the failure to consider it

would result in a miscarriage of justice.”          Conley, 707 F.2d at

178.    Given the closeness of this case, which is readily apparent

from the split among the members of this court, one cannot say that

the resolution of this newly raised argument is obvious.

            The majority’s decision to wander down the road they have

chosen is particularly regrettable in light of the en banc court’s



consider an issue that a party fails to raise in the district court
absent extraordinary circumstances.”); Forbush v. J.C. Penney Co.,
98 F.3d 817, 822 (5th Cir. 1996) (“Furthermore, the Court will not
allow a party to raise an issue for the first time on appeal merely
because a party believes that he might prevail if given the
opportunity to try a case again on a different theory.”); N. Alamo
Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916 (5th
Cir. 1996) (“We will not consider an issue that a party fails to
raise in the district court, absent extraordinary circumstances.”);
Mo. Pac. R.R. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 538 (5th
Cir. 1994) ("[W]e can affirm the district court on the alternate
grounds asserted below."); FDIC v. Laguarta, 939 F.2d 1231, 1240
(5th Cir. 1991) (refusing to affirm summary judgment on grounds
"neither raised below ... nor even raised sua sponte by the
district court").

                                    24
nearly-unanimous statements of just five years ago in United States

v. Brace, 145 F.3d 247 (5th Cir. 1998)(en banc).   In light of the

majority’s dalliance, it is worthwhile to restate what this court

said in Brace:

     It goes without saying that we are a court of review, not
     of original error. Restated, we review only those issues
     presented to us; we do not craft new issues or otherwise
     search for them in the record. E.g., United States v.
     Johnson, 718 F.2d 1317, 1325 n.23 (5th Cir. 1983) (en
     banc) (we will not review improper jury instruction if
     neither raised in trial court nor claimed on appeal to be
     error). It is for the parties, those who have a stake in
     the litigation, to decide which issues they want to
     pursue, at trial and on appeal. Diverse reasons underlie
     the choices the parties make. Likewise, other obvious
     factors come into play, such as judicial efficiency and
     economy, fairness to the courts and the parties, and the
     public interest in litigation coming to an end after the
     parties have had their fair day in court. Cf. United
     States v. Atkinson, 297 U.S. 157, 159, 56 S. Ct. 391, 392
     80 L. Ed. 555 (1936); United States v. Olano, 507 U.S.
     725, 731, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508
     (1993); United States v. Calverley, 37 F.3d 160, 162 (5th
     Cir. 1994) (en banc), cert. denied, 513 U.S. 1196, 115 S.
     Ct. 1266, 131 L. Ed. 2d 145 (1995). In short, it is not
     for us to decide which issues should be presented, or to
     otherwise try the case for the parties.

     Our role is indeed limited. Concerning our not acting as
     legislators, Justice Cardozo admonished that a judge "is
     not a knight-errant, roaming at will in pursuit of his
     own ideal of beauty or of goodness". Cardozo, The Nature
     of the Judicial Process 141 (1921). Needless to say, the
     same is true regarding our not addressing issues not
     presented to us.

Brace, 145 F.3d at 255-56.      The same principle was endorsed

unanimously by the en banc court earlier.   See Thomas v. Capital

Sec. Servs., Inc., 836 F.2d 866, 884 n.25 (5th Cir. 1988) (en banc)

(“As an appellate court, we decline to entertain issues not raised

in, or decided by district courts.”).    The majority have failed

                                25
even to cite, much less distinguish or otherwise explain their

departure from en banc precedents.           They advance no authority to

support their novel approach to the judicial craft.

            Further,   as   Justice   Blackmun       wrote   on   behalf   of   a

unanimous   Supreme    Court,   the   rule    that    appellate    courts   not

consider issues that the parties failed to present to the lower

court:

     is ‘essential in order that parties may have the
     opportunity to offer all the evidence they believe
     relevant to the issues... [and] in order that litigants
     may not be surprised on appeal by final decision there of
     issues upon which they have had no opportunity to
     introduce evidence.’ We have no idea what evidence, if
     any, petitioner would, or could, offer in defense of this
     statute, but this is only because petitioner has had no
     opportunity to proffer such evidence. Moreover, even
     assuming that there is no such evidence, petitioner
     should have the opportunity to present whatever legal
     arguments he may have in defense of the statute.

Singleton, 428 U.S. at 120 (quoting Hormel v. Helvering, 312 U.S.

552, 556 (1941)) (emphasis added).

            The dangers of deciding issues raised by the court sua

sponte are well-illustrated by the proceedings before the Eleventh

Circuit in Stewart v. Dugger, 847 F.2d 1486 (11th Cir. 1988)

(Stewart I), vacated by 877 F.2d 851 (11th Cir. 1989) (Stewart II).

In Stewart I, a habeas petitioner brought a claim for relief based

on allegedly inappropriate comments made during voir dire by the

trial court in violation of Caldwell v. Mississippi, 472 U.S. 320

(1985).   Stewart I, 847 F.2d at 1489.         The court denied relief on




                                      26
these grounds.     The court, however, did not stop there.       The panel,

in its subsequent opinion, characterized what happened next:

     While reviewing the Caldwell claim raised by Stewart and
     addressed above, this court noticed other occasions where
     defense counsel, the prosecutor and the trial judge
     touched on functions of the jury which might have been
     asserted as implicating Caldwell in a manner different
     from that which had been suggested by Stewart. The court
     sua sponte requested supplemental briefing and then
     addressed the merits of some, but not all, of these
     other, potential Caldwell issues. See Stewart v. Dugger,
     847 F.2d 1486, 1489-1493. (11th Cir. 1988).

Stewart II, 877 F.2d at 854.

           The court in Stewart II accordingly reconsidered its

decision in Stewart I to address certain Caldwell issues sua sponte

and upon reconsideration, struck that part of the discussion in

Stewart I.     Id. at 852 (“The court, sua sponte, reconsiders this

case insofar as our previous opinion addressed an issue which had

been raised by the court sua sponte and unadvisedly.                For the

reasons stated, one section of our previous opinion . . . is

stricken and a statement of the reasons for its being stricken is

inserted.”).      The court stated that it “unadvisedly” reached the

issue   because    the   Caldwell   issues   raised   by   the   court   were

procedurally barred.      Stewart II, 877 F.2d at 854-55.         The court

went on to note that the respondent, in its supplemental brief

filed at the instruction of the court, pointed out that the

petitioner’s claim was procedurally barred.           Id. at 855 n.2.    The

court then admitted that “[h]aving raised these issues by our own




                                     27
motion perhaps led us to their resolution and caused us to overlook

the procedural bar.”     Id.

           Our sister circuit (as well as the majority in this case)

would have been well served to follow the lead of the D.C. Circuit:

     Of course not all legal arguments bearing upon the issue
     in question will always be identified by counsel, and we
     are not precluded from supplementing the contentions of
     counsel through our own deliberation and research. But
     where counsel has made no attempt to address the issue,
     we will not remedy the defect, especially where, as here,
     “important questions of far-reaching significance” are
     involved.

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)

(quoting Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 (D.C. Cir.

1982)).   The case before us is of far-reaching significance for

Texas’s scheme for teacher discipline and terminations that was

carefully crafted to enhance teachers’ rights while ensuring a fast

decisional track.    The majority opinion casts constitutional doubt

on the scheme despite Coggin’s concession that the statutorily

mandated process is constitutional.

           The    American   system    of   judicial   decisionmaking     is

grounded on the adversary process.          Vintson v. Anton, 786 F.2d

1023, 1025 (11th Cir. 1986) (noting that the adversary system is

what “characterizes the judicial process under the Anglo-American

common law”).      “The premise of our adversarial system is that

appellate courts do not sit as self-directed boards of legal

inquiry   and    research,   but   essentially   as    arbiters   of   legal




                                      28
questions presented and argued by the parties before them.”42

Carducci, 714 F.2d at 177.    For this court to base its decision on

grounds not raised by the parties is a “serious misadventure in the

judicial process” and constitutes nothing less than the destruction

of the cornerstone of the adversarial process.    Lyons, 731 F.2d at

250 (Rubin and Williams, JJ. concurring in part and dissenting in

part).    Judge Posner has made the same point:

       This is a case in which the lawyer for a party tells the
       appellate court that he does not base his claim on
       grounds X and Y . . ., but the court’s independent
       research and reflection persuade the court that the
       lawyer is wrong. If reversal on such grounds is proper,
       we no longer have an adversary system of justice in the
       federal courts.

Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207, 1215 (7th Cir.

1993).

            Under the majority’s opinion, LISD will lose its appeal

based on an argument of which it had neither notice nor opportunity

to respond.    Receiving notice and being given the right to respond

constitute the core of procedural due process.     Therein lies the


  42
       As Judge Phillips of the Fourth Circuit noted,

  [t]he most critical characteristic of the adversarial (as
  opposed to inquisitorial) system of litigation is the degree
  to which it gives over to parties acting through counsel a
  substantial degree of control over the litigation process.
  This control extends both to the formulation of the legal and
  factual issues to be laid before the court and to the
  presentation of factual proof and legal contentions on these
  issues to the decision maker.

Hirschkop v. Snead, 594 F.2d 356, 377 (4th Cir. 1979) (en banc)
(Phillips, J., concurring).

                                  29
ultimate irony.   The majority’s opinion denies due process to LISD

while   simultaneously   holding   the   school   district   liable   for

depriving Coggin of due process.

           I respectfully dissent.




                                   30
EMILIO M. GARZA, Circuit Judge, joined by JOLLY, JONES, SMITH,

BARKSDALE, and CLEMENT, Circuit Judges, dissenting:



         This is, in essence, a causation case.                           Specifically, we must

address whether the LISD violated Coggin’s procedural due process

rights by terminating him without a hearing after the Commissioner

determined that, under state law, Coggin had untimely filed his

request for a hearing.                 Because I would find that the LISD did not

violate Coggin’s procedural due process rights, I respectfully

dissent.

                                                     I

         Section 1983 creates a cause of action against any person who, under color of law, “subjects,

or causes to be subjected,” a person “to the deprivation of [a constitutional right].”43 In order to

prevail on a § 1983 claim, this court has repeatedly held that it is not sufficient for a plaintiff to merely

establish a violation of one of his constitutional rights. A plaintiff must also show a causal connection

between the deprivation of that right and the actions of the defendant against whom relief is sought.


    43
      Specifically, the text of § 1983 reads:
         Every person who, under the color of any statute,
         ordinance, regulation, custom, or usage of any
         State or Territory, subjects, or causes to be
         subjected, any citizen of the United States or
         other person within the jurisdiction thereof to the
         deprivation   of   any   rights,   privileges,   or
         immunities secured by the Constitution and laws,
         shall be liable to the party injured in an action
         at law, suit in equity, or other proper proceeding
         for redress.
    42 U.S.C. § 1983.

                                                    31
See, e.g., Neubauer v. City of McAllen, 766 F.2d 1567, 1571 n.11 (5th Cir. 1985) (reversing

judgment against some of the defendants in a § 1983 action because plaintiff failed to show that they

personally caused the deprivation of a constitutional right); Irby v. Sullivan, 737 F.2d 1418, 1425 (5th

Cir. 1964) (“To be liable under section 1983, a [defendant] must be either personally involved in the

acts causing the deprivation of a person’s constitutional rights, or there must be a causal connection

between an act of the [defendant] and the constitutional violations sought to be addressed.”). This

causation requirement applies with equal force in cases where a § 1983 action is premised on a

violation of procedural due process. Reimer v. Smith, 663 F.2d 1316, 1322 n.4 (5th Cir. 1981) (“It

is axiomatic that a plaintiff cannot succeed in a § 1983 action if he fails to demonstrate a causal

connection between the state official’s alleged wrongful action and his deprivation of life, liberty, or

property.”).

        The panel opinion conceded (as the majority opinion now concedes) that Coggin needed to

establish causation to prevail, but contended that he had met that burden because the LISD made the

final decision to terminate him knowing he had not received a hearing. Thus, the panel opinion

concluded, the LISD deprived Coggin of his property without due process of law. Coggin v.

Longview Indep. Sch. Dist., 289 F.3d 326, 336-38 (5th Cir. 2002). The problem with the panel

opinion’s analysis, however, is that it focused on the wrong causation issue. It based its causation

analysis on who deprived Coggin of his protected property interest, when the real issue is who

deprived Coggin of his procedural due process right.

        Careful consideration of the right to procedural due process reveals the heart of a due process

violation. Procedural due process do es not protect one from the deprivation of life, liberty or

property, but rather “from the mistaken or unjustified deprivation of life, liberty, or property.” Carey


                                                  32
v. Piphus, 435 U.S. 247, 259 (1978) (emphasis added). In other words, the key to a procedural due

process claim is whether the plaintiff was afforded the quantity of process to which he was

constitutionally entitled prior to the deprivation of a protected interest. In Zinermon v. Burch, the

Supreme Court described the right to procedural due process as follows:

       The Due Process Clause also encompasses a third type of protection, a guarantee of

       fair procedure. . . . In procedural due process claims, the deprivation by state action

       of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself

       unconstitutional; what is unconstitutional is the deprivation of such an interest without

       due process of law. . . . The constitutional violation actionable under § 1983 is not

       complete when the deprivation occurs; it is not complete unless and until the State

       fails to provide due process. Therefore, to determine whether a constitutional

       violation has occurred, it is necessary to ask what process the State provided, and

       whether it was constitutionally adequate.

494 U.S. 113, 125-126 (1990) (internal citations and footnote omitted); see also Brewer v. Chauvin,

938 F.2d 860, 864 (8th Cir. 1991) (“The complained-of constitutional violation is the denial of

procedural due process, not the plaintiff’s discharge from public employment.”). Stated simply, a

plaintiff’s due process rights are not violated because his property was taken from him; his rights are

violated because he was denied a certain amount of process before his property was taken. Because

the essence of a procedural due process claim is whether or not the plaintiff was afforded

constitutionally adequate process, the majority opinion’s emphasis on who made the final decision

to terminate Coggin is misplaced.




                                                  33
        To determine whether the LISD caused the deprivation of Coggin’s procedural due process

right in this case, we must ask whether the LISD caused Coggin not to have a due process hearing.

Based on the record in this case, the answer to this question is no. Under § 21.253 and § 21.254 of

the Texas Education Code, the sole authority to appoint a state certified hearing examiner was vested

in the Commissioner of the TEA. In this case, the Commissioner denied Coggin a hearing because,

based on his interpretation of § 21.253, Coggin’s request for a hearing was untimely. Even if one

assumes that Coggin’s rights were violated by the Commissioner’s action, it was this mistake that

caused Coggin to be denied a hearing and thus deprived him of his right to procedural due process.

In contrast, the LISD did nothing to prevent Coggin from obtaining a pre-termination hearing. The

LISD properly provided Coggin with notice of its intent to terminate his employment and of the

measures he needed to take in order to preserve his right to a hearing. See TEX. EDUC. CODE ANN.

§ 21.251(a)(1). Once the Commissioner refused to appoint a hearing examiner, the LISD had no

authority to order the Commissioner to change his mind or to appoint a certified hearing examiner

on its own. See TEX. EDUC. CODE ANN. § 21.257. Because the actions of the LISD did not in any

way cause the denial of Coggin’s right to a hearing, the LISD cannot properly be said to have caused

the deprivation of Coggin’s right to procedural due process.

        For the purposes of § 1983 liability, it is immaterial whether the LISD had other options

available to afford Coggin due process after the Commissioner refused to appoint a hearing examiner.

Although it is conceivable that the LISD could have held its own due process hearing44 or sent a


   44
     The majority opinion suggests that Texas law does not prohibit
the LISD from holding its own hearing.      Maj. Op. at 14.      This
conclusion is dubious. The Texas Supreme Court has held that a
school district may not avoid the rules set forth in the Texas
Education Code for terminating an employee. Montgomery Indep. Sch. Dist.

                                                 34
second notice of termination in an effort to extend the period of time in which Coggin could file a

timely request for a hearing, any possible “inaction” by the LISD cannot fairly be termed a “cause”

of the potential constitutional violation at issue here.

         An “inaction” view of causation misstates the LISD’s obligation to Coggin in this situation.

Under the statutory setting of this case, Texas law deliberately separates the decision to terminate a

public school teacher from the dut y to afford a due process hearing, presumably as a means of

protecting teachers from biased school board reviews.45 The LISD had no authority to appoint a

hearing examiner under this statutory scheme, nor did it have the authority to supplement Coggin’s

statutorily-governed hearing with its own factfinding hearing. See Davis, 34 S.W.3d at 568. Under

Texas law, the LISD’s role in providing Coggin procedural due process was complete when it


v. Davis, 34 S.W.3d 559, 568 (Tex. 2000) (concluding that “the Board did not have authority within
the statutory scheme of subchapter F” to make additional findings beyond those made by the
appointed hearing examiner); see also TEX. EDUC. CODE ANN. § 21.251 (“[Subchapter F] applies if
a teacher requests a hearing after receiving notice of the proposed decision to: . . . (2) terminate the
teacher’s probationary or term contract before the end of the contract period . . . .”). Although Davis
did not consider the due process aspects of the statutory scheme, it certainly illustrates the mandatory
nature of the regime. The Education Code does not clearly authorize a school district to hold any
type of hearing once the Commissioner declines to appoint a hearing examiner, and Davis at least
suggests strongly that the LISD is forbidden from stepping beyond the narrow dictates of the scheme.
See also Reyes v. Roma Indep. Sch. Dist., No. 083-R2-199, at 4-6 (Tex. Com m’r Educ. Feb. 25,
2000) (stating that the procedures set out in Chapter 21 are mandatory and exclusive, that a board
of trustees does not have jurisdiction to deviate from those procedures, and that the parties cannot
agree to change those procedures unless the statute authorizes them to do so).
    45
        The apparent purpose of this scheme is to ensure teachers a fair and independent review of
the allegations against them when faced with termination prior to the expiration of their contracts.
Under Texas law, Coggin could be terminated only for “good cause as determined by the board.”
See TEX. EDUC. CODE ANN. § 21.211(a)(1) (emphasis added). By providing for an independent pre-
termination hearing, however, Texas law limits the circumstances in which a school board may find
“good cause” for termination. Although the school board may reject the conclusions of law and
proposed action recommended by the appointed hearing examiner in an employee’s case, the school
board may not reject the hearing examiner’s findings of fact if they are supported by the substantial
evidence in the record. See TEX. EDUC. CODE ANN. § 21.259.
                                                  35
provided him with constitutionally adequate notice of the charges against him and informed him of

the procedures he needed to follow to request a pre-termination hearing from the Commissioner of

the TEA. Once the LISD fulfilled this obligation, under Texas law, the duty to ensure that Coggin

was afforded the hearing to which he was constitutionally entitled shifted to the Commissioner.46 The

majority opinion does not hold that this shift in obligations is unconstitutional. Indeed, it cannot,

because no case holds that it is unconstitutional for Texas to “divide” due process in this way. Cf.

Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986) (“The states have virtually complete freedom

to decide who will be responsible for [the tasks of modern government], and therewith to determine

who will be held liable for civil rights violations that occur in the course of carrying them out.”).

Instead, the majority opinion chooses to ignore this issue, limiting its analysis to the tangential issue

of whether the LISD is the “final arbiter of employment disputes.”47 Maj. Op. at 13.




    46
      Normally, the party who causes the deprivation of property is the party responsible for affording
due process. Indeed, had this case arisen before the Texas legislature amended the Texas Education
Code in 1995, there would be no question that the LISD could be held liable under § 1983 for
terminating Coggin without a hearing. In 1995, however, the Texas legislature dramatically altered
the state’s provisions for terminating teachers under contract, and thereby changed this result.
    47
      The “final decision maker” analysis in the original panel
opinion concluded with the argument that the LISD was required to
conduct a “due process hearing to comply with its federal
constitutional obligations,” and that any obstacle created by Texas
law would “have to yield to federal law under the Supremacy
Clause.” Coggin, 289 F.3d at 336.
    In actuality, the Supremacy Clause is irrelevant. It might be tempting to reason that if state
procedures prevented the LISD from remedying the “mistake of law” made by the Commissioner,
then those procedures should yield to federal law. This argument, however, assumes that the LISD
retained an obligation to ensure that Coggin receive all the process he was due prior to terminating
his employment. As no ted above, Texas law vests that obligation in the Commissioner of the
TEA—not the school district. Moreover, there is no legal support for the proposition that LISD had
a federal obligation to compensate for the Commissioner’s alleged mistakes. Cf. Bush, 795 F.2d at
1209.
                                                  36
        Thus, the only way that Coggin could succeed against the LISD in this case is if we invalidate

Subchapter F’s hearing provisions. But Coggin does not challenge the constitutionality of Texas’s

statutory scheme, either on its face or as applied in his case. On the contrary, he concedes that the

procedures set forth in Subchapter F of the Texas Education Code are precisely the kind of

“reasonable procedural requirements” for invoking due process rights previously sanctioned by the

Supreme Court.48 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). Because Coggin

argues only that the LISD violated his procedural due process right by terminating him after the

Commissioner wrongfully denied him a hearing, his claim fails for lack of causation.

                                                   II

        The majority opinion has taken a different tack from that of the panel opinion. The majority

opinion contends that the LISD was the “sole cause of the violation of Coggin’s right to due process

of law” because it discharged Coggin four business days after Coggin received notice of the

Commissioner’s refusal to appoint a hearing examiner. Maj. Op. at 8. The logic of this “timing”

causation argument fails on its own terms, see Parts II.A and B infra, but the majority opinion’s

approach is suspect for at least two other reasons.

        First, this new causation theory was never briefed or argued to either this court or the district

court. In the panel opinion, the majority concluded that the LISD had violated Coggin’s due process

rights by firing him when it knew he had requested a hearing but had not received one. Coggin, 289

F.3d at 335-38. The majority opinion now contends, without any prompting by the parties, that the



   48
    Coggin does argue, however, that the Commissioner improperly
adopted a receipt rule instead of the more “traditional” mailbox
rule, which has led to mischief at both the trial and appellate
levels.

                                                  37
LISD’s error was acting too quickly. This latter theory was not in any of the briefs submitted to the

district court, nor was it included in the district court’s ruling. It is inappropriate for the majority

opinion to decide this case on grounds that were not presented. United States v. Brace, 145 F.3d

247, 255-56 (5th Cir. 1998) (en banc) (“Restated, we review only those issues presented to us; we

do not craft new issues or otherwise search for them in the record.” (emphasis added)).

       Second, the majority opinion states that the LISD’s discharge of Coggin “prematurely cut off

Coggin’s right to appeal under § 7.057(d).” Maj. Op. at 9. Yet it cites no state law to support this

argument. In fact, the majority opinion’s underlying premise that TEX. EDUC. CODE ANN. § 7.057(d)

somehow incorporates TEX. GOV’T CODE ANN. § 2001.176 is pure speculation about Texas law.

Even if Coggin had a reasonable period of time to file an appeal, as the majority opinion contends (see

Maj. Op. at 9 n.21), its further conclusion that Coggin did not have any appeal rights after the LISD

terminated him is simply not supported by existing authorities. See, e.g., Smithville Indep. Sch. Dist.

v. Hoskins, Nos. 03-98-00561-CV, 03-98-00624-CV, 1999 WL 716665 (Tex. App.—Austin Sept.

16, 1999, no pet.) (not designated for publication) (considering a teacher’s § 7.057(d) appeal after

he had been terminated by the school board and affirmatively deciding that the court had jurisdiction

to consider the issues raised by the teacher, including various due process claims).

                                                   A

        The majority opinion reasons as follows: First, Coggin had a protected property interest in

continued employment and was entitled to constitutional due process before his employment was

terminated. Second, Coggin attempted to invoke his right to due process by requesting a pre-

termination hearing from the Commissioner. Third, the Commissioner erroneously deprived Coggin

of his right to a pre-termination hearing by ruling that Coggin’s request was untimely. Fourth, the


                                                  38
Commissioner’s error could have been corrected by the Texas state courts, but the LISD cut off

Coggin’s appeals rights by firing him too quickly.49 Thus, the LISD is the “true” reason that Coggin

was not provided with the pre-termination hearing to which he was entitled.

        Of course, the third step of the majority opinion’s reasoning is the linchpin to its analysis.

Although the nature of Coggin’s employment created due process rights, such rights can be waived.

The Supreme Court has held that a state may both create reasonable procedural requirements

regarding the right to a hearing and terminate a claim for failure to meet these statutory requirements

without raising due process concerns. Logan, 455 U.S. at 437. In other words, Coggin was not

entitled to a pre-termination hearing unless he complied with the reasonable procedural requirements

of Chapter 21 of the Texas Education Code.50 And one of those requirements is that a “teacher must

file a written request for a hearing . . . with the commissioner not later than the 15th day after the

date the teacher receives written notice [of the proposed termination].” TEX. EDUC. CODE § 21.253

(emphasis added).

        The Commissioner refused to appoint a hearing examiner because he determined that

Coggin’s request was late, and thus Coggin had waived his right to such a hearing. If the

Commissioner was correct—that the mailbox rule does not apply under state law—then Coggin was


   49
    The majority opinion’s recitation of the facts also suggests
that the LISD terminated Coggin in the face of a “‘flurry of
correspondence’” between Coggin’s attorney that the Commissioner
regarding the timeliness of Coggin’s hearing request. Maj. Op. at
5. In fact, the record clearly indicates that the flurry did not
even begin until eleven days after Coggin’s termination. So, there
is no reason to believe that the LISD knew or had reason to know
that Coggin was challenging the Commissioner’s determination.
   50
     This fact is undisputed.                 Again, Coggin himself admits that the
procedures set forth in Subchapter F of the Texas Education Code are precisely the kind of
“reasonable procedural requirements” sanctioned by the Supreme Court in Logan.
                                                  39
not constitutionally entitled to a hearing or any other kind of process before the LISD terminated him.

See Logan, 455 U.S. at 437. Accordingly, if Coggin waived his rights, then it is irrelevant whether

the LISD fired him one day later, or one year later.

        When phrased this way, it is clear that the majority’s opinion rests on one fundamental

premise: Section 21.253 of the Texas Education Code sets out a “mailbox rule” for hearing requests,

and thus the Commissioner was wrong to apply a “receipt rule” to Coggin’s request. The validity of

Coggin’s § 1983 suit depends on this premise. Coggin cannot establish that his due process rights

were violated unless he can show that he did not waive those rights. Surprisingly, the majority

opinion does not focus on the burden of proof in this case. But it is undisputable that Coggin bears

the burden of showing that a constitutional violation occurred. See Crawford-El v. Britton, 523 U.S.

574, 588 (1998) (reiterating that the plaintiff bears the “initial burden of proving a constitutional

violation”); Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988) (“It is axiomatic that a plaintiff who

files suit under 42 U.S.C. § 1983 may recover only if he proves a constitutional violation . . . .”).

        The original panel opinion and the district court’s ruling at least implicitly recognized this, and

included an explicit discussion on the rule of § 21.253. Coggin, 289 F.3d at 330-32. Although the

detailed reasoning of those opinions is not included in the majority’s opinion,51 the waiver issue must

still be considered because it is the necessary platform for the majority opinion’s current holding. A

careful examination reveals that this platform is faulty.



   51
    The majority does, however, implicitly recognize the importance
of this point. See Maj. Op. at 9 (“Consequently, we conclude that
Coggin did not waive his rights . . . .”), 10 (“In this case, . .
. Coggin was deprived of his protected employment right without the
due process hearing to which he was entitled and which he did not
waive . . . ”).

                                                   40
                                                    B

        The majority opinion, like that of the original panel (and the district court), fails to recognize

that § 21.253 of the Texas Education Code is ambiguous. Instead, all are content to believe that

§ 21.253 clearly applies a “mailbox rule” to hearing requests. However, § 21.253 does not say, on

its face, that a filing is deemed timely if it was postmarked within the fifteen-day period. Likewise,

§ 21.253 do es not explicitly state that hearing requests are governed by a receipt rule.

Notwithstanding the majority opinion’s assumptions to the contrary, § 21.253 is anything but clear.52

   52
    This ambiguity can best be illustrated by examining the
position taken by the district court. The district court first
reasoned that “file” must not mean “receipt by the commissioner”
because other provisions of the Texas Education Code explicitly use
“receipt” language. Yet this argument is overly broad. Chapter 21
of the Texas Education Code uses “receive” to refer to a party’s
receipt of a document. Upon receipt, the party is given a certain
amount of time to perform a designated action. In other words, the
party is required to “file”, “request”,“notify”, et cetera within
so many days after “receiving” some type of notice. See, e.g.,
TEX. EDUC. CODE ANN. § 21.207 (after “receiving notice of the proposed
nonrenewal,” the teacher “shall notify the board of trustees . . .
not later than the 15th day after the date the teacher receives the
notice”) (emphasis added); TEX. EDUC. CODE ANN. § 21.254(c) (“The
commissioner shall assign a hearing examiner . . . not later than
the 10th business day after the date on which the commissioner
receives the request for a hearing.”) (emphasis added). Viewed
this way, it is clear that the Code’s use of “receive” may be
nothing more than a logical way to reference the start of a time
period. This syntax does not, however, illuminate the meaning of
“file” in § 21.253.
   The district court also pointed out that the TEA’s own
administrative regulations incorporate a mailbox rule, see TEX.
ADMIN. CODE ANN. § 157.1050(b), and took this as evidence of a
general “view of the agency” that the mailbox rule governs
hearings. But a general, catch-all provision in a different state
code may not trump the detailed provisions set forth in chapter 21
of the Education Code. Evidence from within the same statutory
scheme is more indicative of what the Texas legislature intended.
See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901
(Tex. 2000) (holding that “the more specific statute controls over
the more general”); Rudman v. R.R. Comm’n of Tex., 349 S.W.2d 717,

                                                   41
In fact, Coggin himself knew of § 21.253’s ambiguity. He admits that he checked with the post office

to see if his request, sent by certified mail, with return receipt requested, would arrive by the deadline.

So Coggin, by his own admission, was not relying on a mailbox rule.53

         In the face of this obvious ambiguity, the Commissioner could have reasonably interpreted

the statutory language to include either a mailbox rule or a receipt rule. The Commissioner chose the

latter. And, had the Commissioner’s interpretation been challenged in a Texas court, it would have

been given “serious consideration, so long as the construction [was] reasonable and [did] not

contradict the plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (quoting

Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)). The district court, however,


(Tex. 1961) (“Courts must take statutes as they find them.”); Gov’t
Pers. Mut. Life Ins. Co. v. Wear, 251 S.W.2d 525, 529 (Tex. 1952)
(holding that duty of courts is to construe a statute from the
language used therein if possible). And a careful examination of
chapter 21 reveals that the legislature deliberately included a
mailbox rule in other sections.        See TEX. EDUC. CODE ANN. §§
21.105(a), .160, .210. Section 21.253 includes no such language,
and this fact weighs against a mailbox rule.
   Finally, the district court relied on Ward v. Charter Oak Fire
Ins. Co., 579 S.W.2d 909 (Tex. 1979).       While the similarities
between Ward and this case are striking, its importance is probably
exaggerated. Decided almost twenty-five years ago, Ward involved
the worker’s compensation law, which the Texas Supreme Court held
was “to be liberally construed to effectuate the remedies it
grants.”    Id. at 910.     Liberal construction of the Worker’s
Compensation Law was an established policy even before Ward, but no
legal authority indicates that Texas liberally construes the
statutory scheme at issue here.
    53
    If § 21.253 did clearly incorporate a mailbox rule, Coggin
would have a much stronger constitutional claim. In that case, he
could argue    that   it   would  be   arbitrary,   and   therefore
unconstitutional, for the Commissioner to deny Coggin’s request for
a hearing as untimely. Cf. Logan, 455 U.S. at 431-34 (finding a
due process claim when the plaintiff was denied a hearing after
complying with every state law procedural requirement). This is
not, however, the situation before us.

                                                   42
erred by not according the Commissioner this deference.              It failed to even consider the

constitutionality of the receipt rule applied by the Commissioner.

        This failure was a serious analytical error. In its haste to determine whether a constitutional

violation had occurred, the district court did not stop to consider whether the receipt rule had

afforded Coggin due process. Without a constitutional violation, Coggin does not have a claim under

§ 1983. Thus, the pertinent query for the district court was whether the Commissioner’s reasonable

application of a receipt rule provided Coggin with the necessary process. I agree with the majority

opinion (and the district court) that a fifteen-day mailbox rule satisfies due process. Importantly,

however, a fifteen-day receipt rule is equally constitutional.

        The constitutional minima of procedural due process are notice and a meaningful opportunity

to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); Matthews v. Eldridge,

424 U.S. 319, 333 (1976). Against this constitutional background, it is clear that a fifteen-day receipt

rule is as reasonable a procedural requirement as a fifteen-day mailbox rule; both provide a

meaningful opportunity for a hearing. In fact, other courts have found significantly shorter time

periods constitutional. See Lindsey v. Normet, 405 U.S. 56, 64-65 (1972) (finding an eviction

procedure with a two to six day early-trial provision constitutional); Panozzo v. Rhoads, 905 F.2d

135, 139 (7th Cir. 1990) (affirming a district court’s ruling that notice of a pre-termination hearing

less than a day in advance is sufficient for due process purposes); see also Giberson v. Quinn, 445

A.2d 1007, 1009-10 (Me. 1982) (considering a ten-day time limit with a receipt rule for filing a

request for a hearing following the suspension of a driver’s license).

        The simple fact is that the district court did not need to determ ine state law to evaluate

Coggin’s § 1983 suit: the Commissioner’s application of a receipt rule did not violate Coggin’s due


                                                  43
process rights.54 Since the Commissioner applied a reasonable construction of a facially ambiguous

statute, Coggin cannot seriously argue that his denial of a hearing was arbitrary. Cf. Neal v. Puckett,

286 F.3d 230, 249 (5th Cir. 2002) (en banc) (Jolly, J., concurring) (defining “arbitrary” to mean

“determined by individual discretion”), cert. denied, 123 S.Ct. 963 (2003); Reid v. Rolling Fork Pub.

Util. Dist., 979 F.2d 1084, 1088 (5th Cir. 1992) (holding that “arbitrary” means unreasonable action

or discrimination (emphasis added)). Thus, the opportunity afforded Coggin co uld only fail to be

meaningful if it fell short of the constitutional minima—but it is the United States Constitution that

determines the process Coggin was due, not the filing rule of § 21.253 of the Texas Education Code.

And, as explained above, the rule applied by the Commissioner more than suffices when measured

by a federal constitutional yardstick.55

         The district court’s unnecessary foray into state law obscures the plain fact that Coggin failed

to demonstrate a constitutional violation.56 For the reasons given above, Coggin cannot prove that


    54
    Even if the Texas courts someday decide that § 21.253
incorporates a mailbox rule, the Commissioner’s failure to afford
Coggin that extra increment of procedural protection would not
automatically become unconstitutional.    At the time Coggin was
denied a hearing, the Commissioner’s reasonable interpretation and
application of § 21.253 was enough to accord Coggin due process.
Loudermill, 470 U.S. at 546; Lindsey, 405 U.S. at 64-65.
    55
     To be clear, because the receipt                           rule is constitutionally
adequate, this court should not attempt                         to resolve the meaning of
the term “file” in § 21.253. Likewise,                          the district court should
have left this issue, a matter of state                         law, for Texas to decide.
    56
    And the majority opinion seems to build on this error.       It
skims over this issue by insisting that the LISD “does not
challenge or point to any error in the district court’s
determination that Coggin timely filed his request for a hearing.”
Maj. Op. at 7. This is simply not true. The LISD argued, before
both the original panel and the en banc court, that Coggin was
provided with the process he was due under the Fourteenth Amendment
and, likewise, that the district court erred in its analysis of

                                                   44
the Commissioner’s reasonable application of a receipt rule to his hearing request wrongly denied him

a hearing. Accordingly, Coggin cannot show that he was unfairly denied a hearing; he cannot show

that he did not waive his right s; and, therefore, he cannot prove that the LISD violated his due

process rights by firing him immediately.57

        The majority opinion attempts to shore up this faulty analysis by attaching various labels to

the LISD, such as “responsible state actor,” “final policy and decision maker,” and “final arbiter of

employment disputes.” Maj. Op. at 12, 13, 14. These terms are reminiscent of the analysis in the

original panel opinion. Again, the panel majority concluded that the LISD violated Coggin’s due

process rights because its “intentional discharge of Coggin in spite of its knowledge that he had not

had any kind of hearing necessarily was the moving force behind Mr. Coggin’s deprivation and




what process Coggin was due. See, e.g., Appellant’s Br. at 18, 24;
Appellant’s Supplemental En Banc Br. at 15-16.       The LISD also
argues that this error, in turn, led the district court to
“improperly . . . reach and resolve other unnecessary questions.”
Appellant’s Br. at 24.
   The LISD may not explicitly challenge the district court’s
holding that § 21.253 incorporates a mailbox rule, but it clearly
argued that the district court did not need to decide this issue
because the rule of Logan applied. See id. at 18. Because we
review the district court’s legal determinations de novo, the
LISD’s arguments are more than sufficient to preserve the issue of
whether it was legally necessary, under federal constitutional law,
for the district court to interpret § 21.253.
   57
    Coggin’s ultimate failure to demonstrate a constitutional
violation by the LISD distinguishes this case from Cleveland Board
of Education v. Loudermill, 470 U.S. 532 (1985). In Loudermill,
the terminated school district employees had made the necessary
showing that their rights were violated when they were fired
without a pre-termination hearing.    Id. at 548. Unlike Coggin,
the Loudermill employees were given no opportunity to request a
pre-termination hearing. Id. at 536-37. Thus, the issue of whether
the employees had waived their rights was inapplicable.

                                                 45
injury.” Coggin, 289 F.3d at 336. But this line of reasoning is also faulty for the reasons given

above. See Part I supra.

        Assuming, arguendo, that Coggin could somehow prove that § 21.253 clearly incorporated

a mailbox rule and thus he did not waive his right to a hearing, he still cannot succeed in this suit. No

matter what process Coggin was owed, he has failed to establish that the LISD caused the deprivation

of his rights. Without the necessary causal link between Coggin’s supposed due process violation

and the actions and/or duties of the LISD, Coggin cannot maintain a valid § 1983 claim against this

defendant.

                                                   III

        Failure to use proper constitutional analysis has led to the majority’s conclusion that the LISD

violated Coggin’s procedural due process rights. They choose to grant relief when, for a multitude

of reasons, Coggin has not proven a viable § 1983 claim. Even if the circumstances of Coggin’s

termination seem unjust, we should avoid acting as cognoscenti of what is right and wrong, less we

effectively relegate the Constitution and state law to mere bien pensant.

        For the above reasons, I would vacat e the decision of the district court and render for the

LISD.




                                                   46
47
