



WHISD v. Meno                                                       



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-95-00072-CV





Wilmer-Hutchins Independent School District, Appellant


v.


Bridget Brown; Lionel R. Meno, Commissioner of Education 

and Central Education Agency, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 93-06034, HONORABLE PAUL R. DAVIS, JUDGE PRESIDING





	Appellant Wilmer-Hutchins Independent School District Board of Trustees
("Board") brings this appeal for review of the trial court's judgment upholding a decision of
appellee Commissioner of Education ("Commissioner").  The Commissioner determined that the
Board improperly nonrenewed teacher Bridget Brown's employment contract and ordered her
reinstated.  The Board sought judicial review of the Commissioner's decision in district court. 
Brown filed a cross-action against the Board alleging breach of contract.  The district court
affirmed the Commissioner's order and granted judgment for Brown on her breach of contract
claim.  We will affirm the trial court's judgment.


BACKGROUND

	The Superintendent of the Wilmer-Hutchins Independent School District
("Superintendent") recommended that Brown's employment contract not be renewed for the 1991-92 school year.  On March 11, 1991, the Board accepted the Superintendent's recommendation
without examining Brown's performance evaluations.  Brown's evaluations for the 1990-91 year
were not conducted until April 29 and May 3 of 1991.  The Board notified Brown that on March
11 it had accepted the Superintendent's recommendation to nonrenew and that she was entitled to
a hearing regarding her proposed nonrenewal.  A hearing was held at her request on May 20. 
Near the close of the hearing, a Board member moved, "Mr. President, I rise to make a motion
that the Board sticks [sic] with its original decision to nonrenew the contract of Ms. Bridget
Brown."  Immediately thereafter and without deliberation, the Board voted to nonrenew Brown's
contract.  
	Brown appealed to the Education Commissioner.  The Commissioner found that
the Board improperly nonrenewed Brown because (1) it had failed to review performance
evaluations before accepting the recommendation to nonrenew, and (2) before the hearing the
Board had predetermined its decision to nonrenew Brown's contract.  The Commissioner ordered
Brown reinstated for the succeeding school year.
	The Board sought judicial review in district court.  Brown filed a cross-petition
alleging a breach of contract claim.  The court upheld the Commissioner's decision and granted
Brown's claim for breach of contract.


DISCUSSION

	In points of error one through three, the Board complains that the district court
erred in affirming the agency action because the Commissioner misinterpreted §§ 21.202 &
21.204 of the Texas Education Code ("Code").  Tex. Educ. Code Ann. §§ 21.202, 21.204 (West
1987). (1)  The Board contends that the Commissioner improperly required it to consider Brown's
performance evaluations before accepting the Superintendent's recommendation to nonrenew.  The
Board alleges that by imposing this non-statutory criterion, the Commissioner has exceeded his
authority and, therefore, the Commissioner's order was erroneous and the trial court's judgment
affirming his decision must be reversed.  
	On appeal the Board does not dispute the Commissioner's factual determination that
the Board never considered Brown's performance evaluations before accepting the
Superintendent's recommendation to nonrenew.  The Board simply contests the Commissioner's
legal conclusion construing §§ 21.202 & 21.204 of the Code, maintaining that its consideration
of the evaluations before the vote to nonrenew Brown's contract sufficed.   
	On appellate review, while not entitled to a presumption of validity, an agency's
interpretation of a statute is reviewed under a plainly "erroneous" standard.  Moore v. Central
Educ. Agency, 768 S.W.2d 1, 4 (Tex. App.--Austin 1989, no writ).  The construction of the Term
Contract Nonrenewal Act ("TCNA") by the Commissioner is entitled to "great weight." 
Hightower v. State Comm'r of Educ., 778 S.W.2d 595, 597 (Tex. App.--Austin 1989, no writ). 
An agency interpretation of a statute receives "serious consideration" if reasonable and not
contradictory of its plain language.  Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823
(Tex. 1993). 
	Section § 21.202 of the TCNA provides:


The board of trustees of each school district shall provide by written policy for the
periodic written evaluation of each teacher in its employ at annual or more frequent
intervals.  Such evaluation shall be considered by the board of trustees prior to any
decision by the board not to renew the term contract of any teacher.


Tex. Educ. Code Ann. § 21.202 (West 1987).
	The version of § 21.204(a) of the TCNA in effect at the time of these events
provided:


In the event the board of trustees receives a recommendation for nonrenewal, the
board, after consideration of the written evaluations required by section 21.202 of
this subchapter and the reasons for the recommendation, shall, in its sole
discretion, either reject the recommendation or shall give the teacher written notice
of the proposed nonrenewal on or before April 1 preceding the end of the
employment term fixed in the contract.


Tex. Educ. Code Ann. § 21.204(a) (West 1987) (emphasis added).
	Moreover, the Wilmer-Hutchins Independent School District's local policy
provides:


SUPERINTENDENT'S RECOMMENDATION:
The Superintendent shall prepare lists of employees whose contracts are
recommended for renewal or nonrenewal by the Board.  Copies of written
evaluations, other supporting documentation, if any, and reasons for the
recommendation shall be submitted for each employee recommended for
nonrenewal.  The Board shall consider such information in support of
recommendations for nonrenewal and shall then act on all recommendations.


Administrative Record p. 231 (emphasis added).
	This Court has previously concluded that § 21.204 requires that written evaluations
be considered by the local school board before it decides to propose nonrenewal of a teacher's
term contract.  Amarillo Indep. Sch. Dist. v. Meno, 854 S.W.2d 950, 954 (Tex. App.--Austin
1993, writ denied).  Likewise, in English v. Central Educ. Agency, 866 S.W.2d 73, 76 (Tex.
App.--Austin 1993), rev'd on other grounds, 38 Tex. Sup. Ct. J. 443 (March 30, 1995), this Court
has detailed when the Board must consider performance evaluations:


After a superintendent has recommended that a teacher's contract not be renewed,
and the board of trustees has considered the teacher's written evaluations and the
reasons for the recommendation, the board has two alternatives.


English, 860 S.W.2d at 76 (emphasis added).  The two options are to reject the recommendation
or to give the teacher written notice of the proposed nonrenewal no later than April 1.  Id.
	We hold that the Commissioner correctly concluded that the Board was required
to consider performance evaluations before accepting the Superintendent's recommendation to
nonrenew.  We overrule points of error one through three. 
	In point of error number four, the Board complains that the Commissioner
improperly concluded that the Board was required to consider current year evaluations before
accepting the Superintendent's recommendation for nonrenewal.  In his decision, the
Commissioner wrote, "The [TCNA] requires that a board of trustees consider current year
evaluations of an employee whose contract is proposed for nonrenewal."  (emphasis added).  The
TCNA does not require the Board to consider only current evaluations.  The Board can consider
evaluations from earlier years.  Amarillo Indep. Sch. Dist., 854 S.W.2d at 954.  Nevertheless,
the Commissioner's erroneous statement of law has no bearing because the Board does not contest
the Commissioner's factual determination that the Board did not consider any evaluations before
accepting the Superintendent's recommendation to nonrenew.  The district court did not err in
upholding the Commissioner's determination that the Board violated the TCNA and improperly
nonrenewed Brown's employment contract.  We overrule point of error four.
	In point of error number five, the Board contends that the district court erred in
affirming the agency action because the Commissioner improperly concluded that the Board had
predetermined its decision to nonrenew Brown's contract before the hearing.  The Board argues
that nothing in the record supports this fact.  Whether the Board predetermined its decision to
nonrenew Brown's contract is a question subject to substantial evidence review. 
	According to the substantial evidence rule, we must first consider whether the
evidence as a whole is such that reasonable minds could have reached the same conclusion as the
Commissioner.  Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.
1988), cert. denied, 490 U.S. 1080 (1989).  We may not substitute our judgment for that of the
Commissioner and may consider only the record on which the Commissioner reached his decision. 
Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.
1984).  The appealing party bears the burden of demonstrating a lack of substantial evidence.  Id.
at 453.  The appealing party cannot meet this burden merely by showing that the evidence
preponderates against the agency decision.  Id. at 452.  If substantial evidence would support
either affirmative or negative findings, we must uphold the agency decision and resolve any
conflicts in favor of the agency decision.  Auto Convoy v. Railroad Comm'n, 507 S.W.2d 718,
722 (Tex. 1974).
	The record shows that at the May 20 hearing concerning the nonrenewal of
Brown's contract, Mr. Wagner, a Board member, proposed the critical motion:


Mr. President, I rise to make a motion that the board sticks [sic] with its original
decision to nonrenew the contract of Ms. Bridget Brown.


Immediately thereafter and without deliberation, the Board voted in favor of the motion.  The
record contains no proof, such as minutes of previous meetings, controverting the inference that
the Board had predetermined its decision to nonrenew Brown's contract.  Accordingly, we hold
that there was substantial evidence in the record to support the Commissioner's factual finding. 
We overrule point of error five. 
	In point of error six, the Board argues that the Commissioner improperly required
the Board to send copies of her performance evaluations along with the notice to Brown.  The
Commissioner found that the Board had not included any evaluations in its notice to Brown.  He
did not, however, determine that this was a requirement or that a failure to send copies of the
evaluations to Brown was a statutory violation.  We overrule point of error six.
	In point of error seven, the Board asserts that the Commissioner failed to consider
all the legally relevant factors to determine whether the Board's actions were arbitrary or
capricious.  See Consumers Water, Inc. v. Public Util. Comm'n, 774 S.W.2d 719, 721 (Tex.
App.--Austin 1989, no writ).  More specifically, the Board contends that the Commissioner failed
to make relevant findings as to (1) whether the Board provided Brown with a timely notice of its
proposed nonrenewal, and (2) whether the Board provided Brown with a notice and opportunity
for a hearing before making a decision not to renew her contract.  
	In point of error number eight, the Board complains that the Commissioner
improperly reinstated Brown.  The Board argues that pursuant to § 21.204(b) reinstatement is a
proper remedy only when the Board fails to give notice of its acceptance of a recommendation to
nonrenew.  Because it gave Brown notice, the Board argues reinstatement is improper.  
	In response to both points of error, Brown contends that because the Board failed
to preserve error, it has waived the issues on appeal.  We agree.  
	Except in cases of emergency orders inapplicable to the instant cause, a motion for
rehearing is a prerequisite to an appeal.  See Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 16(e)
(West Supp. 1993). (2)  A motion for rehearing must be sufficiently definite to apprise the agency
of the error claimed and to allow the agency the opportunity to correct the error or to prepare to
defend it.  EnRE Corp. v. Railroad Comm'n of Texas, 852 S.W.2d 661, 663 (Tex. App.--Austin
1993, no writ); Burke v. Central Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.--Austin 1987,
writ ref'd n.r.e.).  In its motion for rehearing before the Commissioner, the Board complained
neither about the Commissioner's failure to consider certain legally relevant factors, nor that
reinstatement was an improper remedy.  Because the Board failed to preserve these complaints
for review, we overrule points of error seven and eight. 
	In point of error nine, the Board contends that by hearing Brown's action for
breach of contract, the court conducted an improper hybrid trial.  On appeal, the Board contests
neither Brown's ability to bring a breach of contract claim arising from the nonrenewal nor the
damages awarded for that claim.  See Grounds v. Tolar Indep. Sch. Dist., 827 S.W.2d 10, 12
(Tex. App.--Dallas 1992) (teachers have a cause of action for breach of contract when school
districts fail to obey the TCNA), rev'd on other grounds, 856 S.W.2d 417, 420 (Tex. 1993); 
Myrtle Springs Indep. Sch. Dist. v. Hogan, 705 S.W.2d 707, 709-10 (Tex. App.--Texarkana 1985,
writ ref'd n.r.e.) (specifying damages available based on breach of contract claim arising out of
wrongful nonrenewal), cert. denied, 480 U.S. 906 (1987).  The Board simply argues that the trial
court erred in conducting a hybrid proceeding, combining a trial de novo with  substantial
evidence review.  See Southwestern Bell Tel. v. Public Util. Comm'n, 571 S.W.2d 503, 511 (Tex.
1979).  
	The Board misconstrues Southwestern Bell.  The court below did not apply two
standards of review to one agency order.  Rather, the district court first determined that the
agency record contained substantial evidence to support the Commissioner's decision.  Then, the
district court heard evidence in support of Brown's original common law cause of action for
breach of contract.  Accordingly, the district court was not limited to a substantial evidence
review of Brown's breach of contract claim and could award appropriate relief apart from the
relief the Commissioner awarded.  We overrule point of error nine.
	In point of error ten, the Board argues that since it complied with the TCNA, it
committed no breach.  Accordingly, the Board argues that the trial court erred in finding the
Board breached its contract with Brown.  Brown argues that the trial court properly granted her
claim because (1) the Commissioner found the Board to have violated the TCNA, and (2) the
TCNA formed part of her contract.  See Central Educ. Agency v. George West Indep. Sch. Dist.,
783 S.W.2d 200, 201-02 (Tex 1989) (protections of TCNA are part of employment contract;
district may not unilaterally abrogate protections without committing a breach).  In response to
Brown's claim, the Board does not contend that the Commissioner's decision is incompetent
evidence to prove by a preponderance that the Board breached Brown's employment contract. 
The Board simply argues that the Commissioner erroneously concluded that the Board had
violated the TCNA.  Therefore, according to the Board, it did not breach Brown's contract. 
Because we find that the record contained substantial evidence to support the Commissioner's
finding that the Board violated the TCNA, the Board's argument has no merit.  We overrule point
of error ten.
	In point of error eleven, the Board argues that the trial court lacked jurisdiction to
hear Brown's breach of contract claim because she failed to exhaust her administrative remedies. 
The Board argues that the Commissioner had no authority to reinstate Brown based on the findings
of fact and conclusions of law in the Commissioner's decision.  Therefore, the Board maintains,
Brown somehow bore the burden of petitioning the Commissioner in a motion for rehearing, and
for raising at trial, the issue of the Commissioner's failure to include grounds in his decision
which would justify reinstatement.  
	The Board's argument has no merit.  It is true that a party must exhaust all
administrative remedies, including filing a motion for rehearing, before seeking judicial review
of any agency action.  Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 16(e) (West. Supp 1993); see
also Burke v. Central Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.--Austin 1987, writ ref'd
n.r.e.) (holding that the party seeking judicial review of the Commissioner of Education's decision
must have submitted a motion for rehearing articulating each contention of error).  However,
Brown did not seek judicial review in the district court of an agency action.  The Board was the
party seeking judicial review of the Commissioner's decision; Brown was the defendant in that
proceeding.  She was the plaintiff in her original action seeking damages for breach of contract. 
Therefore, she had no administrative remedies for that action.  We overrule point of error eleven.


CONCLUSION

	We affirm the trial court's judgment.


  
					Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed:    November 15, 1995
Publish    
1.        These events took place before September 1, 1993, and are governed by the law in effect
at the time the events took place.  Since then, § 21.204 has been partially amended at Tex.
Educ. Code. Ann. § 21.204(a) (West Supp. 1995). 
2.        These events took place before September 1, 1993, and are governed by the law in effect
at the time the events took place.  Since then, the applicable statute has been codified at Gov't
Code Ann. § 2001.45 (West Supp. 1995). 

ourt below did not apply two
standards of review to one agency order.  Rather, the district court first determined that the
agency record contained substantial evidence to support the Commissioner's decision.  Then, the
district court heard evidence in support of Brown's original common law cause of action for
breach of contract.  Accordingly, the district court was not limited to a substantial evidence
review of Brown's breach of contract claim and could award appropriate relief apart from the
relief the Commissioner awarded.  We overrule point of error nine.
	In point of error ten, the Board argues that since it complied with the TCNA, it
committed no breach.  Accordingly, the Board argues that the trial court erred in finding the
Board breached its contract with Brown.  Brown argues that the trial court properly granted her
claim because (1) the Commissioner found the Board to have violated the TCNA, and (2) the
TCNA formed part of her contract.  See Central Educ. Agency v. George West Indep. Sch. Dist.,
783 S.W.2d 200, 201-02 (Tex 1989) (protections of TCNA are part of employment contract;
district may not unilaterally abrogate protections without committing a breach).  In response to
Brown's claim, the Board does not contend that the Commissioner's decision is incompetent
evidence to prove by a preponderance that the Board breached Brown's employment contract. 
The