      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00473-CV



                                    Rebecca Terrell, Appellant

                                                   v.

      Commissioner of Education Michael L. Williams, Texas Education Agency, and
                     Pampa Independent School District, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
      NO. D-1-GN-12-002981, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Rebecca Terrell, acting pro se, appeals the trial court’s order granting the pleas to the

jurisdiction of appellees Commissioner of Education Michael L. Williams, Texas Education Agency

(the Commissioner), and Pampa Independent School District. For the following reasons, we affirm

the trial court’s order.1


                                          BACKGROUND

                Terrell was employed by the School District under a probationary teaching contract

during the 2008-2009 school year. In March 2009, the School District’s Board of Trustees (the

Board) voted to terminate Terrell’s teaching contract at the end of its term. In August 2009, Terrell


        1
          Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
presented six grievances to the Board about performance appraisals, student discipline, paid leave,

and her termination. After the School District denied the grievances, Terrell appealed to the

Commissioner. See Tex. Educ. Code § 7.057.

               The Commissioner issued his decision on July 2, 2012. The Commissioner granted

Terrell’s appeal as to appraisal reports but denied or dismissed her other claims. Terrell filed a

motion for rehearing in which she claimed, among other arguments, that the Commissioner’s fifth

finding of fact was not supported by evidence and that the seventeenth finding of fact was wrong.

The Commissioner extended the time to take agency action until September 4, 2012, and

subsequently issued a decision on motion for rehearing on August 24, 2012. In the August order,

the Commissioner changed the date referenced in the fifth finding of fact and changed the reference

to “certificate of service” in the July order to “certificate of conference” in the seventeenth finding

of fact.

               Terrell thereafter filed suit for judicial review of the Commissioner’s order pursuant

to section 7.057(d) of the Education Code and section 2001.176 of the Government Code. See id.

§ 7.057(d); Tex. Gov’t Code § 2001.176. She also sought relief for the Board’s alleged violations

of her constitutional rights of “impartial tribunal and due process” and “equal protection.” See

U.S. Const. amend. XIV, § 1; Tex. Const. art. I, §§ 3, 19. She contended that the Board violated her

due process rights because it was not impartial and that her due process and equal protection rights

were violated when the School District “manipulated and tampered with government record”

concerning the appraisals and walkthroughs and when it refused to remove students from her

classroom. She further sought relief from the School District for breach of contract and a declaratory



                                                  2
judgment to construe her rights under her employment contract with the School District. See

Tex. Civ. Prac. & Rem. Code § 37.004. She asserted that she was underpaid by $3,200 during the

2008-2009 school year.

                Appellees filed pleas to the jurisdiction and motions to dismiss. In his plea, the

Commissioner contended that the trial court did not have jurisdiction over:                  (i) Terrell’s

administrative claims, because she failed to exhaust her administrative remedies; (ii) her declaratory

judgment claims, because she sought an impermissible redundant remedy; and (iii) her constitutional

claims, because they were not distinct but part of the administrative case and because, even if they

were distinct, Terrell was still required to satisfy statutory prerequisites to suit and failed to do so.

In its plea and briefing to the trial court, the School District raised similar arguments.

                After a hearing, the trial court granted appellees’ pleas to the jurisdiction. The trial

court also entered findings of fact and conclusions of law. This appeal followed.


                                              ANALYSIS

                Terrell raises eleven issues on appeal. Her first six issues address her alleged failure

to exhaust her administrative remedies, her next three issues address the trial court’s jurisdiction to

consider her constitutional, breach of contract, and declaratory claims, and her two remaining issues

challenge the trial court’s findings of fact and conclusions of law and request that special costs be

imposed on appellees.




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Standard of Review

                Terrell challenges the trial court’s order granting appellees’ pleas to the jurisdiction.

We review a plea questioning the trial court’s subject matter jurisdiction de novo. See Texas Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first on the plaintiff’s

petition to determine whether the facts that were pled affirmatively demonstrate that subject matter

jurisdiction exists. Id. We construe the pleadings liberally in favor of the plaintiff. Id. If a plea to

the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence

and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227; Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

                Sovereign immunity from suit deprives a court of subject matter jurisdiction and is

therefore properly asserted in a plea to the jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004); Miranda, 133 S.W.3d at 225–26.               Governmental immunity affords political

subdivisions the same protection afforded the state by sovereign immunity. Rolling Plains

Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 n.4 (Tex. 2011) (per

curiam); Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas.

Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). Immunity from suit deprives a trial court

of subject matter jurisdiction unless the legislature has expressly consented to the suit. City of

Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011).

                Terrell also challenges the trial court’s findings of fact and conclusions of law. A trial

court’s findings of fact are subject to review for legal and factual sufficiency of the evidence by the

same standards applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); see City



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of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005) (describing review of evidence under legal and

factual sufficiency standards of review). We review a trial court’s conclusions of law de novo and

will uphold the conclusions if the judgment can be sustained on any legal theory supported by the

evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).


Administrative Appeal

               In her first six issues, Terrell contends that the trial court had jurisdiction over her

administrative claims because she exhausted her administrative remedies. According to Terrell,

(1) she was not required to file a second motion for rehearing because the Commissioner’s order

dated August 24, 2012, was a nunc pro tunc order; (2) clerical corrections do not require

administrative exhaustion and such a requirement would violate her constitutional rights; (3) section

2001.145(a) of the Government Code and a subsequent order by the Commissioner do not require

a second motion for rehearing; (4) the Commissioner’s final order was the July order, and the trial

court “erred in assuming that legal basis of July Order was modified or changed in August Order”;

(5) the Commissioner’s August order overruled her motion for rehearing or, alternatively, it was

overruled when the Commissioner’s plenary power expired; and (6) the Commissioner and the

School District “failed to carry their burden” of showing that the changes in the August order

changed the legal basis of the July order.

               Among the requirements for exhausting administrative remedies, a timely motion for

rehearing generally is a prerequisite for an appeal from a decision by the Commissioner. See

Tex. Gov’t Code § 2001.145(a); 19 Tex. Admin. Code § 157.1061(a) (Tex. Educ. Agency,

Motions for Rehearing); see also Tex. Gov’t Code § 2001.171; In re Southwestern Bell Tel. Co.,

                                                  5
235 S.W.3d 619, 625 (Tex. 2007) (orig. proceeding) (“If an agency has exclusive jurisdiction to

resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject

matter jurisdiction.”); Lazarides v. Farris, 367 S.W.3d 788, 798 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (“The requirement of administrative exhaustion compels a party to ‘pursue all

available remedies within the administrative process before seeking judicial relief.’” (quoting Larry

Koch, Inc. v. Texas Natural Res. Conservation Comm’n, 52 S.W.3d 833, 839 (Tex. App.—Austin

2001, pet. denied))).

               Terrell focuses on the nature of the modifications to the August order to support her

position that the order was a nunc pro tunc order that did not require her to file a further motion for

rehearing. See Tex. R. Civ. P. 316 (allowing nunc pro tunc judgments to correct clerical errors in

judgments), 329b(f) (allowing nunc pro tunc judgments after plenary power expires); Willow Vista

Estates Homeowners Ass’n v. Haight, No. 02-12-00432-CV, 2013 Tex. App. LEXIS 10629, at *3–6

(Tex. App.—Fort Worth Aug. 22, 2013, no pet.) (mem. op.) (describing nunc pro tunc judgments).

According to Terrell, the modifications to the August order were clerical corrections and thus did

not require her to file a further motion for rehearing to exhaust her administrative remedies.

               To support her position, Terrell cites Anadarko E&P Co. v. Railroad Commission,

No. 03-04-00027-CV, 2009 WL 47112 (Tex. App.—Austin Jan. 7, 2009, no pet.) (mem. op.). In

that case, this Court applied the supreme court’s “‘more pragmatic and flexible approach’ to

evaluate the finality of an agency’s order” to conclude that a second motion for rehearing was not

required. Id. at *10 (quoting Texas-New Mexico Power Co. v. Texas Indus. Energy Consumers,

806 S.W.2d 230, 232 (Tex. 1991)). Unlike here, however, the Railroad Commission denied the



                                                  6
original motion for rehearing and no longer had jurisdiction to act on the matter when it issued a

nunc pro tunc order. See id. at *3. In contrast to the facts of that case, the Commissioner here

modified his order in August at a time when he had jurisdiction to act on the matter and in response

to points raised in Terrell’s motion for rehearing. Thus, we find the procedural posture of Anadarko

distinguishable.

               Further, this Court has held that a petitioner must file a new motion for rehearing

when the agency modifies its order in response to a motion for rehearing, regardless of the nature

of the modifications. See Cisneros v. State Bd. for Educator Certification, No. 03-05-00657-CV,

2006 Tex. App. LEXIS 11125, at *10 (Tex. App.—Austin Dec. 29, 2006, no pet.) (mem. op.) (“This

Court has addressed this issue at least twice and both times held that the petitioner was statutorily

required to file a second motion for rehearing following the agency’s modified order.”); see also

Ector Cnty. Comm’rs Court v. Central Educ. Agency, 786 S.W.2d 449, 450–51 (Tex. App.—Austin

1990, writ denied) (rejecting argument that no new motion for rehearing required because orders

“reached the same result” and explaining that “finality of an order does not turn on whether the

changes reflected in such a new order are of a substantial or minor nature”); Southern Union Gas Co.

v. Railroad Comm’n, 690 S.W.2d 946, 948 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (requiring

new motion for rehearing and concluding that order “cannot be final and appealable when of fact it

has been changed by a subsequent order”).




                                                 7
                Guided by the analysis and holding by this Court in Cisneros, we conclude that

Terrell failed to exhaust her administrative remedies by failing to file a motion for rehearing of the

August order and overrule her first six issues on this basis. See 2006 Tex. App. LEXIS 11125,

at *10.


Constitutional Claims

                In her seventh issue, Terrell contends that the trial court had jurisdiction over her

“impartial tribunal claim and other constitutional claims” because they were distinct and independent

of her administrative appeal. She claims that her rights of “due process, liberty interest, and equal

protection” were violated “regarding her performance appraisals and walkthroughs, and her legal

right to remove students” from her classroom. See U.S. Const. amend. XIV, § 1; Tex. Const. art. I,

§§ 3, 19; see also Tex. Educ. Code §§ 21.351 (addressing recommended appraisal process

and performance criteria of teachers), 37.002 (describing when teacher may remove student

from classroom).

                Appellees counter that Terrell’s purported constitutional claims were not distinct from

but rather part of her administrative case and that, in any case, Terrell was required to satisfy

statutory prerequisites for suit and she failed to do so. Because it is dispositive, however, we limit

our review to the substance of Terrell’s constitutional claims to determine if Terrell has pleaded valid

claims. See City of Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 2010, pet. dism’d);

see also Andrade v. v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering substance of

constitutional claim in reviewing plea to jurisdiction and noting that immunity was retained unless

“viable claim” pleaded); Miranda, 133 S.W.3d at 226 (reviewing grant of plea to jurisdiction de

                                                   8
novo and considering whether facts that were pled affirmatively demonstrated that subject matter

jurisdiction exists).

                “To assert an equal protection claim, the plaintiff must establish that: (1) he or she

was treated differently than other similarly situated parties; and (2) he or she was treated differently

without a reasonable basis.” See Price v. Texas Alcoholic Beverage Comm’n, No. 01-12-01164-CV,

2014 Tex. App. LEXIS 7495, at *11 (Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied)

(mem. op.). “The situations and conduct of the employees in question must be ‘nearly identical.’”

AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (citation omitted); see Ysleta Indep. Sch.

Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (“Employees are similarly situated if their

circumstances are comparable in all material respects, including similar standards, supervisors, and

conduct.”); Jones, 331 S.W.3d at 787 (requiring plaintiff to allege “he is being treated differently

from those whose situation is directly comparable in all material aspects” to plead a “valid equal

protection claim”). Terrell has not alleged or identified a similarly situated person who was treated

differently than she was by the School District concerning the performance appraisals or the removal

of students from classrooms. Thus, she did not allege a valid equal protection claim. See Jones,

331 S.W.3d at 787.

                Terrell also failed to allege valid due process claims based on impartiality of the

Board, the performance appraisals, or the removal of students from her classroom. Due process

concerns arise “when the state or its agents deprive a person of a protected liberty or property

interest.” McMaster v. Public Util. Comm’n, No. 03-11-00571-CV, 2012 Tex. App. LEXIS 7502,

at *21 (Tex. App.—Austin Aug. 31, 2012, no pet.) (mem. op.); see U.S. Const. amend. XIV, § 1;



                                                   9
Tex. Const. art. I, § 19. To bring a valid due process claim, a plaintiff must assert a protected liberty

or property interest. See Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666,

671 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“The Due Process Clause is only

activated when there is some substantial liberty or property interest which is deserving of

procedural protections.”).

                Terrell has failed to identify a protected liberty or property interest that would entitle

her to more process than she received administratively concerning her complaints about the Board’s

alleged impartiality, the performance appraisals, and the removal of students from her classroom.

See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (“What process is due

is measured by a flexible standard that depends on the practical requirements of the circumstances.”);

State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) (“[T]he ultimate test of due process of law in an

administrative hearing is the presence of rudiments of fair play long known to our law.”). Terrell

was afforded the opportunity to present grievances as to her complaints, and the Commissioner

considered the grievances as part of Terrell’s administrative appeal.

                Terrell also does not have a protected property interest in continued employment with

the School District based on her probationary teaching contract. See Tex. Educ. Code § 21.204(e)

(“A teacher does not have a property interest in a contract beyond its term.”); see also id. § 21.102

(addressing probationary contracts); Ramirez v. Red Oak Indep. Sch. Dist., No. 03-01-00154-CV,

2001 Tex. App. LEXIS 6645, at *6 n.3 (Tex. App.—Austin Oct. 4, 2001, no pet.) (mem. op.) (noting

that “teachers have no constitutionally protected property interest in a probationary position”). Her

probationary contract expired at the end of the 2008-2009 school year, the Board determined that it



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was in the School District’s best interest to terminate Terrell’s employment, and the Board provided

timely notice to Terrell of its decision. See Tex. Educ. Code § 21.103(a) (authorizing school

district’s board to terminate teacher’s employment at end of probationary contract’s term if “in the

board’s judgment the best interests of the district will be served”).2 Further, the Board’s decision

was final and not appealable. See id. Thus, Terrell did not allege a valid due process claim. See

Jones, 331 S.W.3d at 787.        Because we have concluded that Terrell did not allege valid

constitutional claims, we overrule her seventh issue.


Breach of Contract Claim

                In her eighth issue, Terrell contends that the trial court had jurisdiction over her

breach of contract claim and that the trial court should have allowed additional evidence. She asserts

that she was underpaid by $3,200 during the 2008-2009 school year and that she was not allowed

adequate time to present this complaint at the local level.




       2
           In 2009, section 21.103(a) of the Education Code stated:


       The board of trustees of a school district may terminate the employment of a teacher
       employed under a probationary contract at the end of the contract period if in the
       board’s judgment the best interests of the district will be served by terminating the
       employment. The board of trustees must give notice of its decision to terminate the
       employment to the teacher not later than the 45th day before the last day of
       instruction required under the contract. The board’s decision is final and may not
       be appealed.


Act of May 30, 1999, 76th Leg., R.S., ch. 396, § 2.05, 1999 Tex. Gen. Laws 2471, 2491 (current
version at Tex. Educ. Code § 21.103(a)). Terrell does not contend that she received untimely notice
of the Board’s decision.

                                                 11
                Appellees respond that Terrell has not exhausted her administrative remedies as to

her breach of contract claim because she failed to raise the claim of underpayment before the Board

or the Commissioner. See Tex. Educ. Code § 7.057 (authorizing appeals to Commissioner if actions

of school district board violate “provision of a written employment contract between the school

district and a school district employee, if a violation causes or would cause monetary harm to the

employee”); In re Southwestern Bell Tel. Co., 235 S.W.3d at 625 (requiring party to first exhaust

administrative remedies before trial court has subject matter jurisdiction); Lazarides, 367 S.W.3d

at 798 (same); North E. Indep. Sch. Dist. v. Kelley, 277 S.W.3d 442, 444–45 (Tex. App.—San

Antonio 2008, no pet.) (concluding trial court did not have jurisdiction to consider teacher’s breach

of contract claim); see also Davison v. Plano Indep. Sch. Dist., No. 05-12-01308-CV, 2014 Tex.

App. LEXIS 2007, at *15–20 (Tex. App.—Dallas Feb. 20, 2014, no pet.) (mem. op.) (concluding

that trial court properly granted plea as to teacher’s breach of contract claims based on failure to

exhaust administrative remedies). Because Terrell had an administrative avenue for addressing her

complaint of underpayment during the school year, we agree with appellees that she has failed

to exhaust her administrative remedies as to this claim. On this basis, we overrule Terrell’s

eighth issue.


Declaratory Judgment Claims

                In her ninth issue, Terrell contends that the trial court had jurisdiction over her

declaratory judgment claims. In her pleadings, Terrell sought a declaratory judgment “construing

her rights under her employment contract with defendant PISD, declaring her legal rights, and




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awarding reasonable and necessary attorneys’ fees.”          See Tex. Civ. Prac. & Rem. Code

§§ 37.001–.011 (UDJA).

               To establish a trial court’s subject matter jurisdiction to grant relief under the UDJA,

“a party must plead the existence of an ‘underlying controversy’ within the scope of section 37.004

of the civil practice and remedies code.” Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572

(Tex. App.—Austin 2003, pet. denied); see Tex. Civ. Prac. & Rem. Code § 37.004(a) (addressing

subject matter of relief). The UDJA, however, “does not enlarge a trial court’s jurisdiction, and a

litigant’s request for declaratory relief does not alter a suit’s underlying nature.” City of El Paso

v. Heinrich, 284 S.W.3d 366, 370–71 (Tex. 2009). Further, “[w]hen a statute provides an avenue

for attacking an agency order, a declaratory-judgment action will not lie to provide redundant

remedies.” Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex. App.—Austin 2011, no

pet.) (citing Raytheon E-Sys., Inc., 101 S.W.3d at 572).

               On appeal, Terrell contends that her declaratory judgment action is “not an

impermissible redundant remedy as to the Commissioner” because she “can obtain more specific and

equitable remedies under [her] declaratory judgment action.” She focuses on the claims for

declaratory judgment as to the performance appraisals, ethics complaints that she made against

educators of the School District, and her right to remove students. As stated above, Terrell brought

grievances about the performance appraisals, the removal of students from her classroom, and other

alleged violations of the Education Code by the School District and its employees in the

administrative proceeding, and Terrell had an avenue for attacking the Commissioner’s order from

that proceeding. See Tex. Educ. Code § 7.057; Poole, 344 S.W.3d at 445; Kelley, 277 S.W.3d at 445



                                                 13
(concluding trial court did not have jurisdiction to consider teacher’s declaratory judgment claims).

She further has failed to establish an “underlying controversy” within the scope of section 37.004

of the UDJA as to ethics complaints that she made. See Tex. Civ. Prac. & Rem. Code § 37.004;

Raytheon E-Sys., Inc, 101 S.W.3d at 572. We overrule Terrell’s ninth issue.


Findings of Fact and Conclusions of Law

                In her tenth issue, Terrell contends that the trial court’s findings of fact and

conclusions of law are erroneous and lack support in law or fact and that the trial court erred when

it did not enter additional or amended findings of fact and conclusions of law. See Tex. R. Civ. P.

296, 298. Terrell specifically challenges findings of fact 4, 5, 6, 9, 12, 13, and 14 and conclusions

of law 1, 3, 5 and 7. These findings and conclusions correlate with Terrell’s issues that we have

already addressed and overruled. For the reasons stated above as to the other issues, we overrule

Terrell’s tenth issue. See BMC Software Belg., N.V., 83 S.W.3d at 794.


Special Costs

                In her eleventh issue, Terrell contends that “special costs” should be imposed against

appellees based on alleged improper conduct by appellees and Terrell’s characterization of appellees’

pleas as frivolous. She, however, has failed to cite any authority to support an award of special costs.

See Tex. R. App. P. 38.1(i). Further, we have concluded that the trial court properly granted

appellees’ pleas to the jurisdiction. We overrule Terrell’s eleventh issue.




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                                          CONCLUSION

                For these reasons, we affirm the trial court’s order granting appellees’ pleas to

the jurisdiction.3



                                                __________________________________________

                                                Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: May 21, 2015




        3
          In her reply brief, Terrell requests that we strike the School District’s entire brief because
it references a “phantom record.” We deny this request. The School District’s brief conforms with
Rule 38.2 of the Rules of Appellate Procedure. See Tex. R. App. P. 38.2 (addressing requirements
of appellee’s brief).

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