      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00026-CV



                       Arlington Independent School District, Appellant

                                                  v.

      Texas Education Agency, Robert Scott, Designee of Commissioner of Education,
                           and Lisa Kim McCaleb, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. GV 401532, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION

               This case arises out of a grievance filed by Lisa Kim McCaleb and denied by the

Arlington Independent School District. McCaleb appealed to the Commissioner of Education and

on March 25, 2004, the Commissioner’s designee signed a decision granting McCaleb’s appeal (“the

Commissioner’s decision” or “the decision”). On March 26, the decision was mailed by certified

mail to Jennifer Riggs, who represented the District as “attorney of record,” and Sandra Houston,

general counsel for the District; a copy was sent by first-class mail to the District’s superintendent.

A green certified-mail card showed that Riggs received the notice on March 29, but her law firm date

stamp says it was received on April 1. The green card for Houston’s notice is not dated, but it was

postmarked on March 30. The District timely filed a motion for rehearing on April 15. The

Commissioner and the Texas Education Agency did not act on the motion, which was overruled by

operation of law forty-five days after the District received the decision; the District’s petition for
judicial review was due thirty days later. See Tex. Gov’t Code Ann. §§ 2001.144(a)(2), .146(c),

.176(a) (West 2000).

               The District filed its petition on June 15, and the Agency filed a plea to the

jurisdiction, arguing that the petition was untimely and did not invoke the trial court’s jurisdiction.

After a hearing on the Agency’s plea, the trial court found that both Houston and Riggs were

attorneys of record for the District, that Riggs received notice of the Agency’s decision on March

29, that Houston received it on March 30, and that the deadline for filing the District’s petition was

June 14. The court concluded that the District’s petition was untimely and dismissed the case for

lack of jurisdiction. Because the trial court did not err in finding that Riggs received the Agency’s

decision on March 29, we affirm the trial court’s order of dismissal.


                                             Discussion

               We review a trial court’s findings of fact under the same standards applied to a jury’s

findings, reviewing to ensure they are supported by legally and factually sufficient evidence, and we

review its conclusions of law de novo. AT&T Corp. v. Rylander, 2 S.W.3d 546, 551-52 (Tex.

App.—Austin 1999, pet. denied). We will uphold a trial court’s conclusions of law if they “can be

sustained on any legal theory supported by the evidence.” Id. at 552. When considering the factual

sufficiency of the evidence supporting a trial court’s finding of fact, we consider all of the evidence

and will uphold the contested finding unless the supporting evidence is so weak or the finding is so

against the overwhelming weight of the evidence as to be manifestly unjust. Id. at 551-52.

               A party seeking judicial review of an agency’s administrative decision must file its

petition for review no later than the thirtieth day after the decision becomes final and appealable.

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Tex. Gov’t Code Ann. § 2001.176(a). If a timely motion for rehearing is filed, a decision becomes

final when the motion is overruled. Id. § 2001.144(a)(2). If the agency does not act on the motion

within forty-five days after the party received notice, the motion is overruled by operation of law,

rendering the decision final and appealable. Id. §§ 2001.146(c), .176(a).

                The central question in this case is when the time for filing the petition for review

began to run. The District contends that it did not begin to run until April 1, when Riggs’s office

date-stamped the Commissioner’s decision, in which case the petition for review was timely, and

that it rebutted the presumption that Riggs received notice on March 29. The District argues that

although Riggs’s office received the cover letter on March 29, she did not receive a copy of the

decision until April 1. The Agency argues that time began to run March 29, asserting that the

evidence shows that Riggs received a copy of the decision on that date, or March 30, when Houston

received it.

                At the hearing on the Agency’s plea to the jurisdiction, Joan Allen, general deputy

counsel for the Agency, testified about the Agency’s procedures for mailing the Commissioner’s

decisions to parties. She testified that the signed decision is copied and a cover letter is prepared and

addressed to the parties. The decision and cover letter are folded together and placed in an envelope;

the two documents are not stapled together, but the decision is folded around the letter so that when

the documents are unfolded, the cover letter is on top of the decision. The envelope is sealed, a

certified-mail green card is attached to the back of the envelope, and the envelope is sent to the mail

room for postage and mailing. Allen testified that in the more than eighteen years that she had been

Director of Hearings, the Agency had never mistakenly sent a cover letter without its accompanying



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decision. She said that the Agency had discovered the occasional error, such as missing pages in a

decision or an “egregious typo,” in which case the Agency generated a corrected copy and sent it

with a new cover letter informing the parties of the error and stating that all time lines would run

from the receipt of the new, corrected decision.

               Allen personally handled the mailings in McCaleb’s case and testified that the green

cards in the Agency’s file bore notations in her handwriting showing the Agency’s docket number

and that the decision was mailed on March 26. The green card mailed to Riggs states that the

envelope was received on March 29, and a report from the United States Postal Service’s website

also shows March 29 as the date of delivery. Allen testified that neither Riggs nor anyone in Riggs’s

office contacted her office to report that they had not received the Commissioner’s decision or to

request a copy of the decision. She explained that although her office did not keep a log of all calls

received, at the pertinent time, her clerk was on leave, leaving only Allen and the administrative law

judge to cover the office, and that neither of them received a call stating that Riggs’s office did not

receive the decision with the cover letter. Allen further testified that she “only mailed out the

Commissioner’s decision to the parties one time, on March the 26th.” Allen did not think it was

possible that the cover letter and decision became separated before being mailed and recalled folding

the cover letter inside the decision and taping the bulky envelope shut. Asked whether something

could have happened to damage or open the envelope after she sent it for mailing, Allen testified that

she “put the green card receipt in a position where it covered both the flap and the envelope and we

got the green card back,” which gave her “some assurance that it arrived intact,” although she

admitted that she did not know that for a fact.



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               Riggs testified that she did not dispute that she received the certified envelope

containing the cover letter on March 29. She said “no one in my office, including myself, has a

specific recollection of a decision not being with the letter, but we also don’t have a specific

recollection of receiving” the decision. Riggs testified that her secretary was “extremely diligent”

and meticulous and that she had never known her secretary “to separate a document from its [cover]

letter and stamp them in different dates.” She testified that ordinarily, when an agency’s decision

is received, her office calendared time lines “from the date on the order,” rather than the date of

receipt, ignoring the date on the cover letter. However, on cross-examination, Riggs stated that her

office “may have calendared [the motion for rehearing] from the last day of the letter notifying us

of the decision,” rather than the date of the decision.

               The District introduced into evidence Riggs’s copy of the decision, which was

stamped “received” on April 1. Riggs believed that “the date that we stamp something received

consistent with our regular business practice is some evidence of when it was, in fact, received.” She

testified, “What we believe happened was that we got the letter. It did not have a decision. We

asked for a decision, got one, stamped it received, calendared it from that date.” However, Riggs

did not “have a specific recollection of that,” nor did anyone in her office, and her office does not

have a mail log to show receipt of a second mailing from the Agency. Riggs further testified that

her usual practice was to call her client as soon as she received an agency decision. Her recollection

was that she called the District as soon as she received the decision, and she testified that she called

the District on April 1, not March 29 or 30. Asked whether she knew when her office received the

decision, Riggs testified, “I know we received the decision on April 1st, a copy of the decision.” She



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explained that she had that knowledge “[b]ecause we stamped it received, because I called Ms.

Houston and talked to her about it. And I don’t have a recollection of receiving the decision on the

29th. And I believe I would have called her that very day. And if I had received it that day—I am

the one who asks that things be calendared. And I would have calculated the deadline at that point.”

               The District argues that its evidence rebutted the presumption of March 29 delivery.

The District does not dispute that Riggs received the cover letter on March 29, but argues that it

“presented evidence that the decision was not attached and was not received by” Riggs’s office until

April 1. We disagree.

               Allen, who personally prepared the documents for mailing, testified that she folded

the letter inside the decision, taped both inside an envelope, and placed the green card over the

envelope flap. She further testified that in eighteen years, the Agency had never mailed a cover letter

without the accompanying decision. Riggs testified that her office’s usual practice was to stamp

documents as received immediately. Because her office’s copy of the decision was stamped as

received on April 1, she believed that the Agency had mistakenly omitted the decision from the

envelope received on March 29, that someone in her office requested a copy, and that the Agency

mailed it after the cover letter had already been sent. The trial court was basically asked to evaluate

the usual practices of Riggs’s and Allen’s offices. Riggs had no actual recollection that the decision

was not with the cover letter and had to be requested from the Agency, nor did anyone in her office

have such a memory. Allen testified that her office did not receive any requests for a copy of the

decision or other notice that the decision was not included with the cover letter and that she or the

administrative law judge would have been the ones to receive such a call. Further, Riggs testified



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that her office’s practice was to calendar time lines from the date of the agency decision, but for

some reason the motion for rehearing was calendared from the date of the cover letter, rather than

the date of the decision.

                 See AT&T Corp., 2 S.W.3d at 551-52. Therefore, the decision became final and

appealable on May 13, forty-five days after Riggs received the decision and the date on which the

District’s motion for rehearing was overruled by operation of law.1 See Tex. Gov’t Code Ann. §

2001.146(c). Thus, the deadline for filing the petition for judicial review was June 14, the first

Monday following thirty days from May 13. See id. § 2001.176(a). The District’s petition, filed on

June 15, was untimely, and the trial court properly dismissed the suit for lack of jurisdiction. See

Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 835 (Tex. App.—Austin 2003, pet. denied) (failure

to exhaust all administrative remedies, including timely motion for rehearing and filing petition for

review within statutory deadline, is jurisdictional defect; trial court is “generally without jurisdiction

to review the agency’s decision unless and until the plaintiff files a petition for judicial review within

the statutorily prescribed fourteen days”); see also Brown v. Texas Educ. Agency, No. 03-00-00433-

CV, 2002 Tex. App. LEXIS 4575, at *3-4 (Tex. App.—Austin June 27, 2002, pet. denied) (not

designated for publication) (holding that statutory deadlines to appeal from administrative

proceeding are jurisdictional and cannot be extended).

                                              Conclusion




        1
          May 13, 2004 fell on a Sunday, so the decision arguably became final on May 14, the
following Monday. However, thirty days from May 14 fell on Sunday, June 13, meaning the petition
for review was still due on June 14.

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               Sufficient evidence supports the trial court’s finding that Riggs received notice on

March 29, and that evidence is not overwhelmed by contrary evidence that would render the trial

court’s determination manifestly unjust. Therefore, the District’s petition for review must be

considered untimely. Due to our resolution of the District’s third issue, we need not consider the

District’s remaining issues on appeal. We affirm the trial court’s order of dismissal.



                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: October 5, 2006




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