      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-01-00323-CV




                                   Kenneth Griffin, Appellant

                                                 v.

 Jim Nelson,1 Commissioner of Education and Van Independent School District, Appellees




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. 98-07702, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



               Kenneth Griffin appeals the district court’s affirmance of the Commissioner of

Education’s affirmance of the Van Independent School District’s rejection of his grievance. Griffin

contends that the district court should have conducted a trial de novo regarding his grievance instead

of reviewing that administrative record for substantial evidence supporting the Commissioner’s

decision. He alternatively contends the judicial review statute is unconstitutional. We affirm the

district court’s judgment.

               Griffin was under continuing contract to direct VISD’s bands in 1996-97. Based on

the start of band practice, he was prohibited from unilaterally resigning on or after June 16, 1996.

Though his salary increased from $46,787 in 1995-96 to $47,000 in 1996-97, the raise was smaller




       1
          Jim Nelson succeeded Michael Moses as commissioner and automatically replaces him in
the style of the case. See Tex. R. App. P. 7.2(a).
than he expected. That year, Griffin’s state base pay increased from $36,287 to $39,733, but on

September 10, 1996, VISD reduced his band director’s stipend from $8500 to $5767 and his local

increment from $2000 to $1500.2

               Griffin filed a grievance with VISD regarding these reductions, terming them a breach

of contract. The school board upheld the reduction of the stipends. The Commissioner and the

district court in turn found that substantial evidence supported VISD’s denial of the grievance.

                Griffin contends that the district court applied the incorrect scope and standard of

review. He compares the statute’s description of the Commissioner’s duties with its description of

the district court’s duties. Compare Tex. Educ. Code Ann. § 7.057(c) (West Supp. 2002) (“the

commissioner shall issue a decision based on a review of the record developed at the district level

under a substantial evidence standard of review”), with id. § 7.057(d) (“[a]t trial, the court shall

determine all issues of law and fact”). Griffin concludes that this difference in terms requires a

difference in type of review. He argues that, in order to “determine all issues of law and fact,” the

district court must conduct a trial de novo. He argues alternatively for a de novo review of the

administrative record.

               We conclude that the district court used the proper scope and standard of review. The

statute does not specify a scope of review for the district court; the instruction to resolve all issues




       2
          This gap between the date Griffin had to commit to the school district and the date the
school district committed to paying him a particular salary was apparently an annual occurrence based
on the date tax rates and valuations were set. Demanding a commitment to teach without giving a
corresponding commitment to pay a particular salary is evidently not unique to VISD. See Weslaco
Fed’n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 261 (Tex. App.—Austin 2000, no pet.);
Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 885 (Tex. 1990).

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of fact does not inform the court what it may review to perform that resolution. See id. § 7.057(d).

Because the Education Code does not define the scope of the judicial review of the Commissioner’s

decision, the district court must conduct a substantial evidence review. See Tex. Gov’t Code Ann.

§ 2001.174 (West 2000).        This interpretation of the scope and standard of review of the

Commissioner’s decisions is consistent with previous interpretations of the Education Code. See,

e.g., Havner v. Meno, 867 S.W.2d 130, 132 (Tex. App.—Austin 1993, no writ). Griffin does not

contend that the district court improperly conducted the substantial evidence review. He has shown

no error.

                Griffin next contends that substantial evidence review by the district court deprived

him of his right to due process under the federal Constitution. Review of a due process claim

proceeds in two parts: (1) whether a liberty or property interest is implicated, entitling the

complainant to due process protection; and (2) if so, what process is due. University of Tex. Med.

Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). A constitutionally protected property interest exists

if an individual has a legitimate claim of entitlement that is created, supported, or secured by rules or

mutually explicit understandings. Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29 (Tex.

App.—Austin 1999, no pet.).

                We conclude that Griffin has not shown he was deprived of a property interest. Griffin

contends that he had a property interest in maintaining the level of his local supplements in addition

to the increased state base pay. The Commissioner may have recognized a property right in teachers

to keep the previous year’s total salary if the salary is uncertain when the teacher is no longer free to

resign unilaterally. See Weslaco Fed’n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 265 n.9



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(Tex. App.—Austin 2000, no pet.). We have found, however, that the payment of a local supplement

for several years does not necessarily guarantee the payment of that supplement the next year—at

least not when an increase in the state base salary more than offsets the reduction in the local

supplement. Id. at 266-67. Griffin’s total salary increased because the increase in his state base pay

exceeded the reduction in his local supplements. Griffin contends that he was entitled to retain the

local supplements under his continuing contract. See James v. Hitchcock Indep. Sch. Dist., 742

S.W.2d 701, 706 (Tex. App.—Houston [1st Dist.] 1987, writ denied). In James, the teacher

produced evidence that her continuing contract with the school district guaranteed her 203 days of

employment; the court held that the school district could not unilaterally reduce the number of days

agreed upon in contract. Id. at 703-06. Here, Griffin did not muster similar support for his

contention that he was guaranteed the local supplements would remain unchanged.                    The

Commissioner found in response to Griffin’s exception to the proposal for decision that Griffin did

not demonstrate that the board guaranteed him the $8500 stipend; Griffin apparently did not file a

similar exception arguing that the board guaranteed him the $2000 local increment. He does not

argue here that the Commissioner erred by finding he was not entitled to the stipend and does not

argue that the record shows him entitled to the local increment. Griffin has thus failed to show us that

he was deprived of property when the local supplements were reduced.

                Further, Griffin has not demonstrated a deprivation of due process. “Due process

requires both timely notice and an opportunity for a meaningful hearing appropriate to the nature of

the case.” Id. at 706. Griffin simply asserts that the grievance proceeding was insufficient because




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it “merely [provided] the right to be heard” and required only that the school board “stop, look, and

listen.” He has not shown that his hearing before the board was inappropriate or meaningless.

                 Finally, Griffin has not been deprived of his right to open courts. A litigant contending

that a statute violates the open courts guarantee of the Texas Constitution3 must show that he has a

cognizable common law cause of action that is being restricted unreasonably or arbitrarily when

balanced against the purpose and basis of the statute. See Trinity River Auth. v. URS Consultants,

Inc., 889 S.W.2d 259, 262 (Tex. 1994) (quoting Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983)).

The legislature imposed deferential standards of review on the Commissioner and the courts in order

to let local school districts control their own personnel decisions. See Ysleta Indep. Sch. Dist. v.

Meno, 933 S.W.2d 748, 752 (Tex. App.—Austin 1996, writ denied). Griffin has not shown how

substantial evidence review unreasonably or arbitrarily restricts his ability to pursue his complaint that

he is being paid less than he was promised.

                 We affirm the judgment of the district court.




                                                 Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed


        3
            See Tex. Const. art. I, § 13.

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Filed: February 14, 2002

Do Not Publish




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