




Hernandez                                                           



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



 




NO. 3-91-088-CV



JOSE HERNANDEZ,

	APPELLANT

vs.



LIONEL R. MENO, STATE COMMISSIONER OF EDUCATION 
IN HIS OFFICIAL CAPACITY, AND 
DALLAS INDEPENDENT SCHOOL DISTRICT,

	APPELLEES


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 458,299, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

 



	After the Dallas Independent School District ("DISD") Board of Trustees
("Trustees") demoted appellant Jose Hernandez from principal to classroom teacher, Hernandez
appealed the decision directly to the Texas Commissioner of Education ("Commissioner").  See
Tex. Educ. Code Ann. § 11.13(a) (1991 & Supp. 1992).  The Commissioner denied Hernandez's
appeal of the Trustees' actions, and Hernandez sought judicial review in the district court of
Travis County.  The district court denied Hernandez any relief, and this appeal followed.



FACTUAL AND PROCEDURAL BACKGROUND
	This case involves the administrative proceedings of a local school board together
with an interpretation of Section 11.13(a) of the Texas Education Code.  During Hernandez's
fourth year of a five year contract with the DISD, the Assistant Superintendent recommended that
Hernandez's employment contract as an elementary school principal be terminated.  In response
to that recommendation, Hernandez requested a hearing before the DISD Administrative Council
Hearing Panel ("Administrative Panel").  The Administrative Panel granted Hernandez's request,
and six days of full evidentiary hearings followed to consider the allegations of mismanagement
of funds and sexual harassment.  
	Nearly three months after the conclusion of the hearings, Hernandez received notice
of the Administrative Panel's recommendations.  Instead of outright termination, the
Administrative Panel recommended that Hernandez be demoted from principal to classroom
teacher and that he not be considered for any administrative or other similar position within the
DISD for a period of five years.  Under local school district policy, Hernandez had "ten working
days" after receiving notice of the Administrative Panel's recommendations to "request, in
writing, to the General Superintendent, that a hearing before the [Trustees] be scheduled" in order
to appeal those recommendations.  
	Hernandez received notice of the Administrative Panel's recommendations on June
20, 1987.  The "ten working day" limit allegedly expired on Friday, July 3, 1987.  In accordance
with local school district policy, Hernandez typed a letter requesting a hearing before the Trustees
in order to appeal the Administrative Panel's recommendations.  The letter was marked for
"Overnight Delivery," but was mistakenly sent by first class mail on Wednesday, July 1, 1987. 
Consequently, the General Superintendent did not receive Hernandez's appeal until Monday, July
6, 1987.  It is undisputed that Hernandez's notice of appeal was mailed and postmarked on
Wednesday, July 1, 1987, well before the "ten working day" limit expired, but was actually
received one working day after expiration.
	On August 13, 1987, the Trustees met to decide if Hernandez should be granted
a hearing, even though his notice requesting an appeal of the Administrative Panel's
recommendations was not timely received.  In a letter dated August 17, 1987, the Trustees
notified Hernandez of their decision to grant him a hearing.  The hearing was to be based on the
substantive recommendations of the Administrative Panel and not on the timeliness issue. 
However, the letter also stated that the Trustees would, procedurally, "hold in abeyance [their]
decision on the issue of timeliness of appeal."  The Trustees commenced a full evidentiary hearing
on August 24, 1987, which continued on September 3 and 9, 1987.  This was the second set of
full evidentiary hearings concerning Hernandez's case held at the local level.
	On October 1, 1987, nearly a month after the completion of the full evidentiary
hearings, the Trustees met and took four separate and independent votes regarding Hernandez's
appeal, three substantive and one procedural.  In votes one and two, they upheld the
Administrative Panel's findings with respect to the mismanagement of funds and sexual
harassment allegations.  In vote three, they affirmed the Administrative Panel's recommendation
that Hernandez be demoted from principal to classroom teacher with the modification that the
probationary period of his consideration for any administrative or other similar position be
reduced from five to two years if he completed a DISD Management Training Program.  In vote
four, they decided that, procedurally, Hernandez's original appeal of the Administrative Panel's
recommendations to the Trustees was not timely received.  Finally, the minutes of the Trustees'
October 1, 1987, meeting concluded with a statement that, consistent with their actions, the
findings would be written and presented for the Trustees to adopt within thirty days.
	On October 23, 1987, Hernandez filed his appeal of the Trustees' October 1, 1987,
actions with the Commissioner under the authority of Section 11.13(a) of the Texas Education
Code.  Specifically, Hernandez appealed the Trustees' decision to demote him from principal to
classroom teacher, as well as the substantive basis for their decision.  Hernandez's formal appeal
to the Commissioner did not address the timeliness issue.
	On November 10, 1987, after Hernandez had filed his appeal, the Trustees issued
their written decision.  They ruled that Hernandez's appeal of the Administrative Panel's
recommendations failed procedurally due to untimely filing and, in the alternative, failed on the
substantive merits of the case.  
	Almost a year later in October, 1988, a hearing officer appointed by the
Commissioner issued a Proposal for Decision recommending to the Commissioner that
Hernandez's appeal of the Trustees' "actions" be denied on procedural grounds.  The hearing
officer's recommendation was based, not on the substantive merits of Hernandez's appeal, but on
the timeliness of Hernandez's notice of appeal to the Trustees.  The Commissioner followed the
hearing officer's recommendation and denied Hernandez's appeal.
	Hernandez sought judicial review of the Commissioner's decision in the district
court.  He argued that the Commissioner failed to perform his statutory duty to provide a hearing
on the substantive actions upon which Hernandez appealed.  See Tex. Educ. Code Ann.
§ 11.13(a).  The district court, after reviewing the evidence and hearing oral argument, denied
Hernandez any relief.

 
DISCUSSION AND HOLDING
	The Texas Education Code does not provide a standard of review for the
Commissioner's decisions.  See Tex. Educ. Code Ann. §§ 11.13(c), 21.207(b) (1991 & Supp.
1992).  Pursuant to Section 19(e) of the Administrative Procedure and Texas Register Act
(APTRA), when the law does not define the scope of judicial review, the court 


shall reverse or remand the case for further proceedings if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are:

	(1)	in violation of constitutional or statutory provisions;
	(2)	in excess of the statutory authority of the agency;
	(3)	made upon unlawful procedure;
	(4)	affected by other error of law;
	(5)	not reasonably supported by substantial evidence in view of
the reliable and probative evidence in the record as a whole;
or 
	(6)	arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.


Tex. Rev. Civ. Stat. Ann. art. 6252-13a (Pamph. 1992); see also City of League City v. Texas
Water Comm'n, 777 S.W.2d 802, 805 (Tex. App. 1989, no writ).
	Hernandez brings a single point of error complaining that the district court erred
in upholding the Commissioner's decision denying Hernandez's appeal of the Trustees' October 1,
1987, actions based on procedural grounds without holding a hearing and rendering a decision on
the substantive merits, pursuant to Section 11.13(a) of the Texas Education Code.


TEXAS EDUCATION CODE 
	Section 11.13(a) reads, in its entirety, as follows:


(a)   Except in cases of student disciplinary actions under Section 21.301 or
21.3011 of this code, persons having any matter of dispute among them arising
under the school laws of Texas or any person aggrieved by the school laws of
Texas or by actions or decisions of any board of trustees or board of education
may appeal in writing to the commissioner of education, who, after due notice to
the parties interested, shall hold a hearing and render a decision without cost to the
parties involved, but nothing contained in this section shall deprive any party of
any legal remedy.


Tex. Educ. Code Ann. § 11.13(a) (emphasis added).
	Hernandez is a person aggrieved by the substantive actions of the Trustees during
their October 1, 1987, meeting, who appealed, in writing, to the Texas Commissioner of
Education.  The Trustees' actions included substantive rulings on the allegations of
mismanagement of funds and sexual harassment, and on the modification of the Administrative
Panel's demotion recommendation. Finally, their actions included a procedural ruling that
Hernandez had not given timely notice of appeal to the Trustees.  
	Under Section 11.13(a) of the Texas Education Code, the Commissioner must grant
a hearing to any person aggrieved by an action of a board of trustees, who appeals pursuant to that
section.  The Trustees' separate and independent votes on October 1, 1987, constituted "actions"
within the meaning of Section 11.13(a), thereby allowing Hernandez an opportunity to appeal any
one, or all of them, to the Commissioner.  

WAIVER OF THE PROCEDURAL ISSUE
	Hernandez argues that the Commissioner must hold a hearing and render a decision
based on the substantive merits of his appeal.  We agree.  When the Trustees held "in abeyance
[their] decision on the issue of timeliness of appeal," but granted Hernandez a three-day full
evidentiary hearing on the substantive recommendations made by the Administrative Panel, they
waived their procedural right to dispose of Hernandez's appeal based on the timeliness issue.  
	This Court has stated that a waiver takes place when the party possessing the right
"(1) is aware of that right and (2)(a) expressly relinquishes it or (2)(b) acts in a manner
inconsistent with, or fails to act in a manner consistent with, an intent to claim the right."  PGP
Gas Prods. Inc. v. Reserve Equip., 667 S.W.2d 604, 609 (Tex. App. 1984, writ ref'd n.r.e.)
(citing Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213-14 (Tex. Civ. App. 1981, writ
ref'd n.r.e.)).  The Trustees expressed their awareness of the right to dismiss Hernandez's appeal
based on the timeliness issue in their August 17, 1987 letter to Hernandez, but then acted in a
manner inconsistent with an intent to claim this procedural right.
	Although the Trustees specifically stated in the August 17, 1987, letter that they
held "in abeyance [their] decision on the issue of timeliness of appeal," they also stated, in the
same letter, that they were granting Hernandez a hearing.  The hearing was to be based on the
substantive recommendations of the Administrative Panel, yet the Trustees attempted to retain the
right to dispose of Hernandez's appeal on procedural grounds. Moreover, after the conclusion of
the actual hearings, the Trustees modified one of the Administrative Panel's substantive
recommendations, and then attempted to deny Hernandez's appeal due to untimely filing.  Were
we to hold that the Trustees did not waive the timeliness issue, and allowed the Commissioner to
dismiss Hernandez's appeal on this procedural aspect, then Hernandez would have no method by
which to appeal the modification decision of the Trustees.  We hold that the Trustees waived their
right to dispose of Hernandez's appeal on procedural grounds after modifying and rendering a
decision on the merits. (1)
	Because we conclude that the Trustees waived the procedural issue of timeliness
and that the Commissioner acted in contravention of his statutory mandate under Section 11.13(a)
of the Texas Education Code, we reverse the judgment of the district court and render judgment
that the proceeding be remanded to the Commissioner for the purpose of holding a hearing on the
substantive merits of Hernandez's appeal.


  
					Mack Kidd, Justice              
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Reversed and Rendered
Filed:   March 18, 1992
[Publish]
1.      1  We note that this interpretation of the waiver rule is consistent with at least one prior
decision of the Commissioner, even though that decision is not binding authority on this
Court.  See Bacon v. Galveston Indep. Sch. Dist., Comm'r of Educ. Decision, Docket No.
276-R3-586 (November 26, 1991) (where the Commissioner held that the Galveston ISD
Board of Trustees waived any challenge to the timeliness issue by voting on the merits of
Bacon's grievance).
