                              Fourth Court of Appeals
                                       San Antonio, Texas
                                            OPINION

                                         No. 04-17-00592-CV

     NORTH EAST INDEPENDENT SCHOOL DISTRICT and Texas Commissioner of
                              Education,
                              Appellants

                                                 v.

                                           Dehann RIOU,
                                             Appellee

                    From the 407th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2016CI09958
                          Honorable Angelica Jimenez, Judge Presiding

Opinion by:      Irene Rios, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Irene Rios, Justice

Delivered and Filed: July 25, 2018

AFFIRMED

           This is an appeal from the district court’s judgment reversing the Commissioner of

Education’s decision to affirm North East Independent School District’s (“NEISD”) termination

of a teacher’s continuing contract. In this appeal, we are asked to construe § 21.156 of the Texas

Education Code and determine what a school district must show when seeking to terminate a

teacher’s continuing contract for good cause as defined by statute. We conclude § 21.156

unambiguously requires school districts to present evidence that similarly situated school districts

would consider the teacher’s alleged conduct a failure to meet the accepted standards of conduct
                                                                                                  04-17-00592-CV


for the teaching profession. Because NEISD did not present any such evidence in this case, we

affirm the district court’s judgment. 1

                                                BACKGROUND

        Dehann Riou started working for NEISD as a teacher in 2006. Beginning in 2010, Riou

entered into a continuing contract with NEISD, meaning she was entitled to continued employment

with NEISD unless, as relevant here, terminated for good cause as defined by statute. From 2006

to 2013, Riou worked at Stahl Elementary, teaching fifth grade for five years and third grade for

one year. During her time at Stahl, Riou received positive reviews and scores of either exceeds

expectations or proficient across every domain of her yearly performance evaluations (“summative

evaluations”). In 2013, Riou was transferred from Stahl Elementary to Royal Ridge Elementary.

After teaching fourth grade in 2013-14, Riou was assigned to teach kindergarten for the 2014-15

school year. On April 14, 2015, Riou went on unforeseen FMLA leave and was not released to

return to work until August 11, 2015. On May 1, 2015, while on FMLA leave, Riou received her

summative evaluation, in which Riou received below expectations in three categories, proficient

in three categories, and exceeds expectations in two categories. In August 2015, upon reporting

back to work after being released from FMLA leave, Riou received a letter from Royal Ridge

Principal Deborah Jarvis-Hernandez informing Riou that Hernandez was going to recommend

Riou for termination.

        On September 15, 2015, the NEISD Board of Trustees (“school board”) informed Riou of

NEISD’s proposal to terminate her contract for good cause. Riou requested a hearing before an




1
  On appeal from the district court NEISD contends Riou failed to exhaust administrative remedies, that the
Commissioner’s decision was supported by substantial evidence, and that the Commissioner did not err by concluding
NEISD did not retaliate against Riou for taking FMLA leave and filing a grievance. Because the issue of whether the
Commissioner’s decision was supported by substantial evidence is dispositive of this appeal, we do not address
NEISD’s third issue. See TEX. R. APP. P. 47.1.

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Independent Hearing Examiner (“IHE”). 2 At the hearing, the IHE heard testimony from Riou,

Hernandez, other Royal Ridge employees, and two parents whose children were in Riou’s

kindergarten class.

        Although some evidence was presented regarding the 2013-14 school year, the vast

majority of the evidence presented during the hearing related to Riou’s performance as a

kindergarten teacher during the 2014-15 school year. Hernandez testified that during the 2014-15

school year, Riou would show up late to work; did not submit documents on time; failed to properly

assess students’ academic progress, such as by failing to conduct reading benchmarks testing

during the second and third grading periods; did not maintain the scope and sequence of learning

objectives; and failed to electronically record students’ checklist scores. 3 Hernandez explained that

when she and other faculty entered Riou’s classroom after Riou went on unexpected leave, she

discovered Riou had not conducted any reading benchmark testing and had not electronically

recorded students’ checklist scores for the second and third grading periods, i.e., half the school

year.

        Hernandez explained that in kindergarten, teachers are not supposed to score students for

every skill during every grading period because some skills are not taught until later grading

periods. Hernandez testified that Riou failed to score students in the proper sequence despite being

provided with documents created by the kindergarten team that provide instructions as to when

certain skills needed to be scored and receiving reminders from both the school administration’s

curriculum department and the kindergarten team leader about grading deadlines. Hernandez



2
  A teacher whose continuing contract has been proposed for termination may request a hearing, which is conducted
in the same manner as a bench trial. See TEX. EDUC. CODE ANN. §§ 21.159(b)(1); 21.251(a)(1); 21.256(c)-(e) (West
2012).
3
 At Royal Ridge, students in first through fifth grade receive report cards with letter grades every grading period.
Kindergarten students, on the other hand, receive developmental checklists that use scores: –, /, +.

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explained Riou had scored many skills that should not have been scored until later in the year, and

although Riou scored some students for certain skills, for other students, Riou gave no score for

the same skill. Hernandez testified that when she searched Riou’s room, she did not find any hand-

written datasheets or checklists indicating students’ educational progress. As a result, the only

academic record the school had for Riou’s students was the first and fourth grading periods, the

latter of which was assessed by the school’s staff during Riou’s FMLA leave. Additionally,

because Riou’s students received reading benchmark testing during the fourth grading period only,

the school was unable to determine whether the students had progressed in their reading ability

throughout the year.

       NEISD presented evidence that Riou’s failure to electronically record students’ checklist

scores each grading period, conduct reading benchmark testing during the second and third grading

periods, and follow the district’s scope and sequence for scoring students’ skills amounted to

violations of Royal Ridge and NEISD’s policies. Because Riou was out on FMLA leave and

because Hernandez considered Riou’s failure to properly maintain students’ academic records “a

more serious situation than just conversation will fix,” Hernandez did not give Riou an opportunity

to correct her mistakes. Because of Hernandez’s concerns about Riou, she recommended

termination as opposed to placing Riou on a Teacher in Need of Assistance plan.

       Riou testified she did not request to be assigned to teach kindergarten for the 2014-15

school year but was assigned to kindergarten by Hernandez when she returned from FMLA leave

at the end of the 2013-14 school year. Riou testified she observed and recorded her students’

progress, communicated with parents about their children’s progress, and received only positive

feedback from parents. Riou testified she did not know and was never informed that during certain

grading periods she could not indicate on the checklists whether a student was mastering a skill.

Riou explained she did not electronically record students’ checklist scores for the second and third
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grading periods because the data processor at Royal Ridge informed her she could handwrite the

scores onto the checklists. Accordingly, Riou testified that for the second and third grading periods,

she printed off the checklists, handwrote students’ scores onto the printed checklists, and sent them

home to the parents. Riou also explained she administered reading benchmark assessments to her

students and handwrote students’ reading levels on a printed form. When asked why she failed to

score her students in the correct sequence throughout the school year, Riou testified the

kindergarten checklist was confusing, she did not have help from her fellow kindergarten teachers,

and she was not properly trained. Furthermore, Riou related she was “flabbergasted” and “really,

really, surprised” by her evaluation scores, given that she had “never been reprimanded,” “never

been made aware of any of the concerns,” and “just had no idea.”

       On January 5, 2016, the IHE issued written findings of fact and conclusions of law,

recommending that Riou’s continuing contract be terminated. The IHE found Riou’s “failure to

follow [NEISD’s] policies, rules, regulations and administrative directives made it difficult or

impossible for others to determine where the students were in terms of progress and had a

significant detrimental effect on [NEISD’s] obligation to provide a quality education to its

students.” Noting that “[a]ssessing students and documenting the results accurately, timely, and in

the manner the school district requires is an essential obligation of a school teacher” and that Riou

clearly violated a reasonable rule that had a clear effect on the school’s business, the IHE

concluded there was “good cause per se” to terminate Riou’s continuing contract.

       On January 21, 2016, after hearing oral arguments from counsel, the NEISD school board

voted to adopt the IHE’s findings of fact and conclusions of law and to terminate Riou’s continuing

contract for good cause. Riou filed a petition for review with the Texas Commissioner of

Education. On March 31, 2016, the Commissioner signed an order affirming NEISD’s decision to

terminate Riou’s continuing contract. The order noted “the central issue in this case is whether
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there exists good cause per se to terminate [Riou’s] contract.” The order stated that the standard

for determining whether good cause exists to terminate a continuing contract “normally requires

testimony about standards in other similarly situated school districts”; however, it further stated

no such testimony is needed if good cause per se exists. The order stated that to show good cause

per se, a school district must show the teacher’s conduct violated a reasonable district rule, the

violation must be clear, and the violation had a clear effect on the district’s business. The

Commissioner concluded there was substantial evidence that Riou violated three of NEISD’s rules;

namely, administering reading benchmark assessments, following a specified scope and sequence

of instruction, and entering grades electronically. The Commissioner concluded these rules were

reasonable, Riou’s violations of them were clear, and Riou’s violations of NEISD’s rules had a

detrimental effect on NEISD’s obligation to provide a quality education to its students.

       Riou filed a petition in the district court seeking review of the Commissioner’s decision to

uphold Riou’s termination, arguing, among other things, the Commissioner erred by failing to

apply the statutorily-defined good cause standard for continuing contracts and that NEISD’s

decision to terminate Riou’s contract was not supported by substantial evidence. After a hearing

on the merits, the district court signed a final judgment finding that the Commissioner’s decision

was erroneous and not supported by substantial evidence. The final judgment reversed the

Commissioner’s decision and ordered that NEISD reinstate Riou and pay her back pay and benefits

from the date of her termination to the date of her reinstatement.

       Both NEISD and the Commissioner appeal the district court’s judgment.

                         STANDARD OF REVIEW AND APPLICABLE LAW

       The Texas Education Code provides a teacher employed under a continuing contract is

entitled to continue in the teacher’s position or other position with the school district for future

school years until she resigns, retires, is released from employment because of necessary reduction
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of personnel, is returned to probationary status, or, as relevant here, “is discharged for good cause

as defined by Section 21.156 and in accordance with the procedures provided in this chapter.”

TEX. EDUC. CODE ANN. § 21.154. “A teacher employed under a continuing contract may be

discharged at any time for good cause as determined by the board of trustees, good cause being

the failure to meet the accepted standards of conduct for the profession as generally recognized

and applied in similarly situated school districts in this state.” Id. § 21.156.

        If a school district’s board of trustees decides to terminate a teacher’s continuing contract,

the teacher may appeal to the Commissioner. Id. § 21.301(a). The Commissioner shall review the

record of the hearing before the IHE and the oral argument before the school board, and “shall

consider the appeal solely on the basis of the local record and may not consider any additional

evidence or issue.” Id. § 21.301(c). Where a school board terminates a teacher’s continuing

contract and accepts the IHE’s findings of fact without modification, the Commissioner may not

substitute the Commissioner’s judgment for that of the school board unless the board’s decision is

“arbitrary, capricious, or unlawful or is not supported by substantial evidence.” Id. § 21.303(b).

        Either the school district or the teacher may appeal the Commissioner’s decision to a

judicial district court in the county in which the school district’s central administrative offices are

located. Id. § 21.307(a). The district court “may not reverse the decision of the commissioner

unless the decision was not supported by substantial evidence or unless the commissioner’s

conclusions of law are erroneous,” and may not reverse the Commissioner’s decision based on a

procedural irregularity or error unless the error “was likely to have led to an erroneous decision by

the [C]ommissioner.” Id. § 21.307(f), (g).

        “On appeal of the district court’s judgment, the focus of the appellate court’s review, as in

the district court, is on the decision of the Commissioner.” Goodie v. Houston Indep. Sch. Dist.,

57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). “A Commissioner’s
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                                                                                     04-17-00592-CV


decision may only be reversed on appeal if the decision is not supported by substantial evidence

or the [C]ommissioner’s conclusions of law are erroneous.” Wittman v. Nelson, 100 S.W.3d 356,

359 (Tex. App.—San Antonio 2002, pet. denied); see also TEX. EDUC. CODE ANN. § 21.307(f).

“[T]he Commissioner’s reasoning for his decision is immaterial if his conclusion is correct”; thus,

we will “uphold the Commissioner’s decision on any legal basis shown in the record.” Goodie, 57

S.W.3d at 650.

       We “review the evidence on the evidentiary record made at the local level and any evidence

taken by the commissioner but may not take additional evidence.” TEX. EDUC. CODE ANN.

§ 21.307(e). “Under substantial evidence review, ‘only more than a mere scintilla’ of evidence is

needed to support the Commissioner’s decision.” Judson Indep. Sch. Dist. v. Ruiz, No. 04-13-

00706-CV, 2015 WL 1501758, at *3 (Tex. App.—San Antonio Mar. 31, 2015, pet. denied) (mem.

op.) (quoting Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000)). “Although

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

against the agency decision and still amount to substantial evidence.” Poole v. Karnack Indep. Sch.

Dist., 344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.).

       The issues raised in this appeal require us to construe the meaning of statutory text. “The

construction of a statute is a question of law that we review de novo.” Atmos Energy Corp. v. Cities

of Allen, 353 S.W.3d 156, 160 (Tex. 2011). “In construing statutes, our primary objective is to

give effect to the Legislature’s intent.” Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain,

Ltd., No. 16-0626, 2018 WL 1974485, at *4 (Tex. Apr. 27, 2018). “We rely on the plain meaning

of the text as expressing legislative intent unless a different meaning is supplied by legislative

definition or is apparent from the context, or the plain meaning leads to absurd results.” Id. When

a statute is unambiguous, “we construe the statute’s words according to their plain and common

meaning.” Id. We are also mindful that “words’ meanings cannot be determined in isolation but
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must be drawn from the context in which they are used,” and in interpreting a particular provision,

we consider how that provision fits within the statutory scheme. Id. at *6.

           Although this court gives “serious consideration” to the Commissioner’s interpretation of

a statute, the construction must be reasonable and must not conflict with the statute’s language.

R.R. Comm’n of Texas v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624

(Tex. 2011). “[W]e have long recognized that an agency’s[4] construction of a statute may be taken

into consideration by courts when interpreting statutes, but deferring to an agency’s construction

is appropriate only when the statutory language is ambiguous.” Sw. Royalties, Inc. v. Hegar, 500

S.W.3d 400, 404-05 (Tex. 2016) (emphasis in original). “Agency deference has no place when

statutes are unambiguous—the law means what it says—meaning we will not credit a contrary

agency interpretation that departs from the clear meaning of the statutory language.” Tracfone

Wireless, Inc. v. Comm’n on State Emergency Commc’ns, 397 S.W.3d 173, 182 (Tex. 2013). “We

only resort to rules of construction or extrinsic aids when a statute’s words are ambiguous.”

Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015). “Whether statutory language

is ambiguous is a matter of law for courts to decide, and language is ambiguous only if the words

yield more than one reasonable interpretation.” Hegar, 500 S.W.3d at 405.

                                          PRESERVATION OF ERROR

           Riou contends the Commissioner’s decision to affirm NEISD’s termination of Riou’s

continuing contract is not supported by substantial evidence. Specifically, Riou argues that because

§ 21.156 defines good cause as “the failure to meet the accepted standards of conduct for the

profession as generally recognized and applied in similarly situated school districts in this state,”

NEISD needed to present evidence of the standards of professional conduct recognized and applied



4
    The Texas Commissioner of Education is the head of the Texas Education Agency.

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in other similarly situated school districts. See TEX. EDUC. CODE ANN. § 21.156. Integral to this

contention is Riou’s argument that the good cause per se doctrine employed by the IHE and the

Commissioner conflicts with the statutory definition of “good cause” found in § 21.156.

         NEISD 5 argues that Riou forfeited her argument that the wrong standard was used to

determine whether good cause existed to terminate her contract because she failed to explain to

the school board that the good cause per se standard used by the IHE improperly departs from

§ 21.156’s definition of good cause. Accordingly, NEISD argues Riou failed to exhaust

administrative remedies and should not be permitted to argue on appeal that the IHE and the

Commissioner should not have used the good cause per se standard in determining that Riou’s

termination was sufficiently supported by the evidence.

         We conclude NEISD’s contention that Riou may not argue the insufficiency of the

evidence because she did not articulate her specific argument regarding the application of the good

cause per se doctrine before the school board is without merit. Riou’s argument regarding the

Commissioner’s use of the good cause per se standard is part of her contention that the

Commissioner’s decision is not supported by substantial evidence. NEISD had the initial burden

to present sufficient evidence that good cause under § 21.156 existed to terminate Riou’s

continuing contract. See id. § 21.256. Moreover, the Education Code provides that a teacher may

appeal the school board’s decision to the Commissioner, and the Commissioner may reverse the

board’s decision if it is “not supported by substantial evidence.” See id. § 21.303(a). Likewise, the

Code provides that a teacher may appeal the Commissioner’s decision and argue that the decision

is not supported by substantial evidence. See id. § 21.307(f). Despite NEISD’s efforts to




5
 Both NEISD and the Commissioner filed briefs in this appeal. Because their positions and arguments are substantially
similar, we refer to them together as “NEISD.”

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characterize Riou’s argument as “rais[ing] the issue of good cause per se,” Riou’s contention is

really a sufficiency of the evidence challenge—one that by statute she is entitled to bring. 6

         Furthermore, although Riou did not specifically explain to the board that NEISD failed to

meet its burden by not presenting evidence of the standards generally recognized and applied in

similarly situated school districts, Riou did argue to the board that NEISD failed to meet its burden

to show good cause existed to terminate Riou’s continuing contract. “Rules of error preservation

should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of

a case.” Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 WL 1883075, at *5 (Tex.

Apr. 20, 2018) (admonishing a court of appeals for “impos[ing] too strict a view of error

preservation”). Riou raised as an issue at the board meeting NEISD’s failure to show good cause

existed to terminate her contract; she is not required on appeal to rely on precisely the same

argument as that presented to the board. See id.; Greene v. Farmers Ins. Exch., 446 S.W.3d 761,

764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but

parties are free to construct new arguments in support of issues properly before the Court.”)

(emphasis in original).

         In support of its contention that Riou failed to exhaust administrative remedies, NEISD

cites to O’Neal v. Ector Cty. Indep. Sch. Dist., which stated that if a state agency has exclusive

jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a judicial

district court has jurisdiction over the dispute. 251 S.W.3d 50, 51 (Tex. 2008) (per curiam). There,

a teacher filed a breach of contract action against the school district while the administrative

proceedings regarding her termination were still ongoing. Id. In this case however, Riou has not



6
 It is also noteworthy that when the Commissioner considered Riou’s appeal in the first instance, it did not conclude
she failed to preserve her argument or exhaust administrative remedies, but rather reached the merits of her sufficiency
challenge.

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filed a cause of action relating to her contract during the pendency of the administrative

proceedings, nor is she attempting to raise claims that she did not raise in the administrative

proceedings below.

       NEISD also cites to Cedar Hill Indep. Sch. Dist. v. Gore, No. 05-16-00460-CV, 2017 WL

2981970 (Tex. App.—Dallas July 13, 2017, pet. denied) (mem. op.). In that case, Gore, after

attending the hearing before the IHE, did not attend or present argument to the school board when

it met to consider the IHE’s recommendations. Id. at *2. After the board voted to terminate his

employment, Gore appealed to the Commissioner, who concluded Gore failed to exhaust

administrative remedies when he did not present his arguments and objections to the board when

it met to consider his case. Id. The Dallas Court of Appeals concluded reasonable minds could

have reached the same conclusion as the Commissioner. Id. at *3. Unlike the employee in Gore,

however, in this case, Riou did attend and participate in the board meeting by presenting oral

argument.

       The record shows that at every stage of the administrative proceedings, Riou argued

NEISD failed to meet its burden to show good cause existed to terminate her continuing contract.

We therefore conclude the issue of whether the Commissioner’s decision is supported by

substantial evidence is properly before us, and we may consider any of Riou’s arguments in support

of her contention. See State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 275 (Tex. 2017)

(holding agency’s policy argument presented in administrative proceedings and statutory argument

presented to the district court were both arguments to support a larger issue disputed by the parties,

and thus agency was free to raise them at any time during administrative and judicial proceedings).

         COMMISSIONER’S DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

       Riou argues that because § 21.156 defines good cause as “the failure to meet the accepted

standards of conduct for the profession as generally recognized and applied in similarly situated
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school districts in this state,” NEISD needed to present evidence of the practice of other similarly

situated school districts. See TEX. EDUC. CODE ANN. § 21.156. Riou argues that the good cause per

se standard used by the Commissioner does not have any basis in the statutory text, which,

according to Riou, requires that a school district affirmatively show how a teacher’s overall work

performance would be interpreted in other districts. Riou argues, and the Commissioner concedes,

the record is devoid of any evidence as to “the accepted standards of conduct for the profession as

generally recognized and applied in similarly situated school districts.” Riou therefore argues there

is insufficient evidence in the record to support the Commissioner’s decision to affirm her

termination.

                                 Section 21.156 is Unambiguous

       Section 21.156, which provides that a teacher under a continuing contract may be

terminated for good cause, specifically defines “good cause” as the “failure to meet the accepted

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

school districts.” See TEX. EDUC. CODE ANN. § 21.156. Applying the rules of statutory

construction, we conclude § 21.156’s definition of good cause yields only one reasonable

interpretation: when a school district seeks to terminate a teacher under a continuing contract for

good cause, it must present evidence that similarly situated school districts in this state would

consider the teacher’s alleged conduct a failure to meet accepted standards of conduct for the

teaching profession. See Hegar, 500 S.W.3d at 405.

                      Good Cause Per Se Standard Conflicts with Statute

       NEISD argues this court should recognize an exception—good cause per se—to the

statutory requirement that a school district seeking to terminate a teacher on a continuing contract

show the teacher “fail[ed] to meet the accepted standards of conduct for the profession as generally

recognized and applied in similarly situated school districts.” See id.
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       The Commissioner’s decision below was based on the application of the doctrine of good

cause per se. In its written decision, the Commissioner wrote:

       Good cause to terminate a continuing contract is based on standards in similarly
       situated school districts. Hence, if a school district terminates a continuing contract
       for good cause, one would normally expect that there would be evidence in the
       record of standards in other school districts . . . The difficulty in the present case is
       that there is no evidence in the record of standards in other school districts . . . The
       limited exception to the requirement that there be evidence of standards in other
       school districts is good cause per se. There are situations when a teacher’s actions
       are so extreme that there is no need to provide evidence of the standards in other
       districts because there can be no reasonable doubt that other similarly situated
       school districts would terminate teachers for the same behavior . . . To determine
       whether the doctrine of good cause per se applies to the present case, it is necessary
       to examine whether the rules at issue are reasonable; whether [the teacher] clearly
       violated the rules, and whether there was a clear business effect of the violations.
       (emphasis added).

       This good cause per se exception utilized by the Commissioner in its decision and

advocated by NEISD does not appear to have any basis in the relevant statutory text. Rather, the

basis for the Commissioner’s application of this doctrine appears to be this court’s opinion in Watts

v. St. Mary’s Hall. 662 S.W.2d 55, 57 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). In Watts,

a former residential director sued a private school for breach of employment contract. Id. at 57.

Because the director was employed under a term contract, the private school had to show good

cause to terminate the director’s employment. Id. at 58. This court stated, “if the discharged

employee’s misconduct is undisputed and the effect on the employer’s business is clear, the

question of good cause is a matter of law.” Id.

       The Commissioner’s reliance on Watts is misplaced. This court’s opinion in Watts does

not support the Commissioner’s application of the good cause per se doctrine in this case because

Watts, unlike this case, did not involve an employment contract with a governmental unit that is

governed by statute and administrative law. There is not any basis for applying Watts’s common




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law good cause per se standard to cases such as this, where termination of Riou’s statutorily

authorized continuing contract is governed by a statutorily defined good cause standard.

         NEISD points out that this is not the first time the Commissioner has applied a good cause

per se standard in a continuing contract case. In Ramirez v. Edgewood Indep. Sch. Dist., a teacher

whose continuing contract was terminated by a school district contended the Commissioner’s

decision to affirm her termination was not supported by substantial evidence because there was no

evidence the teacher’s actions violated the standards of any particular school district similar to

hers. No. 04-00-00137-CV, 2001 WL 22043, at *4 (Tex. App.—San Antonio Jan. 10, 2001, pet.

denied) (not designated for publication). In addressing this contention, this court stated as follows:

         [T]he Commissioner relied on prior decisions in which testimony regarding the
         standards of similar districts was not required. The Commissioner noted that, in
         these cases, the teachers’ failings were so great there was no need to provide
         testimony concerning standards in similar districts or to justify termination in
         similar districts . . . The Commissioner concluded that . . . incompetence is per se
         grounds for termination, and there is no need to present witnesses to testify that
         similarly situated school districts would terminate an incompetent teacher. We
         cannot conclude that this decision was arbitrary, capricious, or without regard to
         the facts.

Id. 7 The Ramirez opinion, however, did not analyze or discuss whether the Commissioner’s

application of the good cause per se doctrine improperly conflicted with the plain language of the

statute. Rather, this court merely noted the standard used by the Commissioner, and then concluded

that the Commissioner’s ultimate decision to affirm the teacher’s termination was not arbitrary,

capricious, or without regard to the facts. See id. We conclude Ramirez does not provide a


7
  Ramirez, as a 2001 unpublished opinion, has no precedential value and is not binding authority on this court. See
TEX. R. APP. P. 47.7. See Brooks v. CalAtlantic Homes of Texas, Inc., No. 05-16-01203-CV, 2017 WL 4479651, at
*6 n.4 (Tex. App.—Dallas Oct. 9, 2017, pet. filed) (mem. op.); Alcala-Garcia v. City of La Marque, No. 14-12-00175-
CV, 2012 WL 5378118, at *7 (Tex. App.—Houston [14th Dist.] Nov. 1, 2012, no pet.) (mem. op.); Fox v. State, No.
04-15-00618-CR, 2017 WL 96160, at *3 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not designated
for publication) (recognizing that under Rule 47.7, an opinion not designated for publication by a court of appeals has
no precedential value even for the court of appeals that issued the opinion); see also Carrillo v. State, 98 S.W.3d 789,
794 (Tex. App.—Amarillo 2003, pet. ref’d). (“By stating that unpublished opinions may be cited but have no
precedential value, we perceive the intent of [Rule 47.7] to be that a court has no obligation to follow such opinions.”).

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persuasive rationale for the Commissioner’s use of Watts’s good cause per se doctrine in the

context of continuing contract terminations that are governed by § 21.156 and does not assist this

court in determining whether good cause per se conflicts with the plain meaning of § 21.156.

       According to the good cause per se standard as articulated by the Commissioner, good

cause exists if a teacher clearly violated a reasonable policy of the district, and the violation had a

clear effect on the district’s “business” of educating students. This standard would allow a finding

of good cause based on a teacher’s failure to abide by the district’s policies alone, without any

inquiry as to whether violations of those policies would be a failure to meet the accepted standards

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

districts, which is what the plain language of § 21.156 requires. We cannot defer to the

Commissioner’s traditional interpretation and application of a statute when that interpretation

directly conflicts with the statutory text. See Tracfone Wireless, 397 S.W.3d at 182; R.R. Comm’n

of Texas, 336 S.W.3d at 624. “When a statute provides a definition, we must apply it.” Martinez,

539 S.W.3d at 270. Accordingly, we conclude the Commissioner’s good cause per se standard

conflicts with the statutory language of § 21.156, and thus may not be used in determining whether

good cause exists to terminate a teacher under a continuing contract.

   Good Cause Based on Violation of Law is Another Formulation of Good Cause Per Se

       NEISD contends the evidence is sufficient to satisfy § 21.156’s good cause definition

because the evidence shows Riou failed to perform tasks Texas law requires of teachers generally.

NEISD argues state law requires teachers to assess student performance, administer reading

benchmark assessments, and record grades, and thus these requirements are generally accepted

standards of conduct for the teaching profession throughout the state.

       NEISD cites the following statutes and regulations relating to assessing student

performance, administering reading benchmark assessments, and recording grades:
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         TEX. EDUC. CODE ANN. §§ 28.0216; 28.021(c) (requiring school districts to “adopt
         a grading policy, including provisions for the assignment of grades on class
         assignments and examinations,” which “must require a classroom teacher to assign
         a grade that reflects the student’s relative mastery of an assignment,” and requiring
         school districts to consider, when determining whether to promote a student to the
         next grade level, students’ grades);

         TEX. EDUC. CODE ANN. § 28.006(c), (g) (requiring school districts to administer, at
         the kindergarten and first and second grade levels, a reading instrument to diagnose
         student reading development and comprehension and to help identify students with
         dyslexia or other reading difficulties);

         TEX. EDUC. CODE ANN. § 11.164 (providing a teacher may be required to report a
         student’s grades at the end of each grading period);

         19 TAC § 74.5(b)(4), (c) (requiring school districts to keep records showing the
         record of courses and credits earned to ensure that copies of a student’s academic
         record are available for a student transferring from one district to another).

         None of the statutes and regulations relied on by NEISD place requirements on teachers

specifically. The statutes and regulations cited by NEISD do not address how public school

teachers throughout the state should assess student achievement or assign grades, how often and

by whom reading benchmarks should be administered, or whether a teacher must record grades in

an electronic database. Rather, they place requirements on school districts generally, leaving the

method of compliance to the discretion of each school district. 8

         Moreover, NEISD’s argument that a school district may satisfy § 21.156 by presenting

evidence that the teacher violated specific statutory directives aimed at public school teachers

statewide is merely a different iteration of the good cause per se standard—one that focuses not on

a clear violation of district policy, but on a clear violation of a statutory provision. Although such

a showing may be informative as to the expectations similarly situated school districts have of

their teachers, it still would not satisfy the plain language of § 21.156’s good cause definition,


8
 NEISD also cites a federal provision that requires states to adopt policies and procedures to identify, locate, and
evaluate all children with disabilities residing in the state. See 20 U.S.C. § 1412(a)(3). This provision does not place
any specific requirements on Texas teachers.

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which requires a school district seeking to terminate a teacher under a continuing contract to

present evidence that similarly situated school districts would consider the teacher’s alleged

conduct to be a failure to meet the accepted standards of conduct for the teaching profession.

Furthermore, even if a school district could satisfy § 21.156 by presenting evidence that the teacher

violated specific statutory directives aimed at public school teachers statewide, NEISD did not

show at the hearing that Riou’s conduct violated state law.

                                           CONCLUSION

       Section 21.156 requires school districts to present evidence that similarly situated school

districts would consider a teacher’s conduct to be a failure to meet the accepted standards of

conduct for the teaching profession. NEISD did not present any evidence at the hearing showing

how similarly situated school districts would view Riou’s conduct. Therefore, the Commissioner’s

decision was not supported by substantial evidence.

       Accordingly, we affirm the judgment of the district court.

                                                   Irene Rios, Justice




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