                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-11-00445-CV

KENNETH HARDING,
                                                                       Appellant
    v.

TEXAS WORKFORCE COMMISSION
AND ALL FREIGHT SYSTEMS,
                                                                       Appellees



                               From the 413th District Court
                                  Johnson County, Texas
                                Trial Court No. C201100175


                               MEMORANDUM OPINION


         After being denied unemployment compensation benefits by the Texas

Workforce Commission (TWC), Appellant Kenneth Harding, appearing pro se, sought

judicial review of that decision. After a bench trial,1 the trial court affirmed the TWC’s

decision, and Harding appeals. We will affirm.



1
 Harding, who is pro se on appeal, failed to request preparation of a reporter’s record, so this appeal is
being determined on the clerk’s record alone.
              A party “aggrieved by a final decision” of the Texas Workforce
       Commission may obtain judicial review of that decision. See TEX. LAB.
       CODE ANN. § 212.201 (West 2006). Judicial review is “by trial de novo
       based on the substantial evidence rule.” Id. § 212.202. Under this hybrid
       review, the trial judge “conducts an evidentiary hearing for the limited
       purpose of determining ‘whether at the time the questioned order was
       entered there then existed sufficient facts to justify the agency's order.’”
       Bd. of Tr. of Big Spring Firemen’s Relief & Ret. Fund v. Firemen’s Pension
       Comm’r, 808 S.W.2d 608, 612 (Tex. App.—Austin 1991, no writ) (quoting
       Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)); Firemen’s & Policemen’s
       Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (“The
       reviewing court must inquire whether the evidence introduced before it
       shows facts in existence at the time of the administrative decision which
       reasonably support the decision.”). While the trial judge “must hear and
       consider evidence to determine whether reasonable support for the
       administrative order exists,” the “agency itself is the primary fact-finding
       body, and the question to be determined by the trial court is strictly one of
       law.” Brinkmeyer, 662 S.W.2d at 956. The appellate court reviews the trial
       court’s judgment. Potts v. Tex. Emp’t Comm’n, 884 S.W.2d 879, 882 (Tex.
       App.—Dallas 1994, no writ).

Cooper v. Tex. Workforce Comm’n, 343 S.W.3d 310, 312 (Tex. App.—Dallas 2011, pet.

denied).

              The Commission’s decision carries a presumption of validity, and
       the party seeking to set it aside has the burden of showing that it was not
       supported by substantial evidence. Mercer, 701 S.W.2d at 831. Although
       substantial evidence is more than a mere scintilla, the evidence in the
       record may actually preponderate against the agency’s decision and
       nonetheless amount to substantial evidence. See State v. Public Util.
       Comm’n, 883 S.W.2d 190, 204 (Tex. 1994). While the court will hear and
       consider evidence to determine whether reasonable support for the
       agency’s order exists, the agency remains the primary fact-finding body,
       and the question for the district court is strictly one of law. Firemen’s &
       Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.
       1984). The challenging party must therefore produce evidence that
       conclusively negates all reasonable support for the agency’s decision, on
       any possible ground. Id. Thus, the reviewing court may set aside an
       agency’s decision only if it finds that the decision was made without
       regard to the law or the facts and was therefore unreasonable, arbitrary, or
       capricious. Mercer, 701 S.W.2d at 831.


Harding v. Texas Workforce Commission                                                  Page 2
Pavelka v. Tex. Workforce Comm’n, No. 03-05-00293-CV, 2006 WL 2852507, at *3 (Tex.

App.—Austin 2006, no pet.) (mem. op.).

       As we noted above, we do not have a reporter’s record of the trial because

Harding appears to not have requested its preparation.

               Judicial review of the Commission’s decisions on unemployment
       benefits is by trial de novo under the substantial evidence standard. See
       id. § 212.202(a) (West 2006). A de novo review of a Commission decision
       requires the reviewing court to determine whether the Commission’s
       decision is supported by substantial evidence. Mercer v. Ross, 701 S.W.2d
       830, 831 (Tex. 1986). Reviewing courts are not bound by, nor do they
       review, the Commission’s findings of fact. See Hernandez v. Texas
       Workforce Comm’n, 18 S.W.3d 678, 681 (Tex. App.—San Antonio 2000, no
       pet.). The reviewing court determines whether the evidence introduced at
       the trial de novo shows facts in existence at the time of the Commission’s
       decision that reasonably support the decision. Collingsworth Gen. Hosp. v.
       Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). The reviewing court’s ruling
       must be based on the evidence admitted at the trial de novo—not the
       evidence presented at the Commission hearing. Nuernberg v. Texas
       Employment Comm’n, 858 S.W.2d 364, 365 (Tex. 1993) (per curiam); Mercer,
       701 S.W.2d at 831.

Id.

       The clerk’s record contains the TWC administrative hearing and record, and the

TWC’s brief on appeal states that Harding did not introduce any evidence independent

of the TWC record. Because it appears that Harding may have relied solely on the

administrative record at trial, we will consider his appellate issues based on the

administrative record. See TEX. R. APP. P. 37.3(c) (if no reporter’s record filed due to

appellant’s fault, appellate court may consider and decide issues not requiring

reporter’s record).

       Harding applied for employment with All Freight, a transportation company, in


Harding v. Texas Workforce Commission                                               Page 3
January 2010. The job application asked if Harding had “ever” been convicted of a

felony, and if so, to give details. Harding left the question unanswered, but actually

Harding had been convicted of a felony in 1995.            All Freight’s initial criminal

background check did not turn up that felony conviction because it was limited to

specific counties, and Harding was hired. After Harding was employed, a statewide

criminal background check revealed his felony conviction, and All Freight terminated

Harding for failing to disclose the felony conviction on his job application.

       Harding sought unemployment compensation benefits, and after a hearing, the

TWC determined that Harding was disqualified from receiving unemployment

compensation because he was discharged for misconduct by omitting his felony

conviction on his job application. See TEX. LAB. CODE ANN. § 207.044 (West 2006). In the

TWC hearing, Harding testified that he did not answer the question about any felony

convictions because he wanted clarification from All Freight on whether he was

required to disclose a felony conviction that was more than ten years old; Harding did

not want to disclose his felony conviction unless he had to. Harding said that no one

responded to his request for clarification, and he was hired and told he had passed a

background check. About six months later, Harding’s felony conviction was discovered

and he was fired.

       The TWC hearing officer found that All Freight’s job application asked if

Harding had “ever” been convicted of a felony, and if so, to give details. Harding did

not answer the question. Regarding Harding’s contention that he wanted clarification

on whether he was required to disclose a felony conviction that was more than ten years

Harding v. Texas Workforce Commission                                              Page 4
old, the hearing officer noted that the question specifically asked if Harding had ever

been convicted of a felony without any time limitation.      Thus, the hearing officer

concluded that Harding lacked a good reason for failing to answer the question and

that, because omission of material information on a job application is generally

misconduct, Harding was disqualified from receiving unemployment compensation

because he was discharged for misconduct. See Pavelka, 2006 WL 2852507 (falsification

by misrepresentation or omission of material information on employment application is

misconduct regardless of when information is discovered). The TWC affirmed the

hearing officer’s decision.

       In this appeal, Harding asserts two issues that essentially complain that his

failure to answer the felony conviction question was not misconduct because he sought

clarification and because All Freight was at fault because it did not respond to his

request for clarification or inquire about the unanswered question on his application,

and because its initial background check did not uncover Harding’s felony conviction.

Harding made most of these arguments before the TWC, which did not give them merit

because the application question specifically asked if Harding had ever been convicted

of a felony, and Harding admitted that he had been and failed to answer the question

accurately.

       Harding presented no evidence to the trial court establishing that the TWC’s

decision was unreasonable, arbitrary, or capricious. See Mercer v. Ross, 701 S.W.2d 830,

831 (Tex. 1986). Because the TWC’s decision carries the presumption of validity,

Harding did not meet his burden of demonstrating to the trial court that the TWC’s

Harding v. Texas Workforce Commission                                             Page 5
decision was not supported by substantial evidence. See id. The trial court did not err

in concluding that the TWC’s decision was supported by substantial evidence.

       We overrule Harding’s two issues and affirm the trial court’s judgment.




                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 1, 2013
[CV06]




Harding v. Texas Workforce Commission                                            Page 6
