      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                        NO. 03-00-00131-CV
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            Dizdar Development, Inc. and Central Education Agency, Appellants

                                                   v.

     Board of Trustees of Mission Consolidated Independent School District, Appellee


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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
        NO. 99-11705, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING
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                Dizdar Development, Inc. (“Dizdar”) and the Central Education Agency appeal from

a district-court judgment that reverses a final order issued by the Commissioner of Education in a suit

brought by the board of trustees of the Mission Independent School District (“Mission”). We will

reverse the district-court judgment and remand the cause to that court.


                                      THE CONTROVERSY

                Dizdar owns subdivision lots in Hidalgo County. About half the lots lie in the Mission

district, the other half lie in the Sharyland Independent School District (“Sharyland”). Dizdar initiated

in each school district a proceeding to detach from the Mission district the lots therein and to annex

them to the Sharyland district.1 Both school districts denied the relief requested by Dizdar. Dizdar


       1
         The petitions for detachment and annexation were actually filed by “Marted, a Texas
General Partnership,” Dizdar’s predecessor in title and interest. For convenience, however, we
appealed from their decisions to the Commissioner of Education under former section 11.13(a) of the

Texas Education Code. This statute authorized such appeals by a person aggrieved by the “actions

or decisions of any [school district] board of trustees.” Act of Aug. 26, 1986, 69th Leg., 2d C.S.,

ch. 4, § 3, 1986 Tex. Gen. Laws 6, 10 (Tex. Educ. Code Ann. § 11.13(a), since repealed and codified

at Tex. Educ. Code Ann. § 7.057(a)(2)(A) (West 1996)) (“§ 11.13(a)”).2

               In a final order, the Commissioner declined to set aside the school-district decisions

on Dizdar’s petition for detachment and annexation. Dizdar sued in district court for judicial review

of the order. See Act of June 6, 1990, 71st Leg., 6th C.S., ch. 1, § 2.22, 1990 Tex. Gen. Laws 1, 22

(Tex. Educ. Code Ann. § 11.13(c), since repealed and codified at Tex. Educ. Code Ann. § 7.057(d)

(West 1996)). The district court rendered judgment affirming the Commissioner’s order. In an

earlier appeal taken by Dizdar to this Court, we held the district court and the Commissioner had each

erred in the construction they placed upon a statute not material in the present appeal. We therefore

reversed the district-court judgment and remanded the controversy to the Commissioner. See Marted

v. Central Educ. Agency, No. 3-97-267-CV (Tex. App.—Austin Jan. 15, 1998, pet. denied) (not

designated for publication).




will treat Dizdar as the litigant before the Commissioner and in district court, where Dizdar
intervened in the present cause.
       2
          The writing of our opinion is burdened a good deal by the fact that we are required to
consider the interplay of present and former sections of the Texas Education Code. The Code
was revised and amended extensively in 1995, but the present litigation is governed by sections
11.13 and 19.0221 as these existed before 1995. For clarity, we will hereafter refer to these in
the present tense as if they were still in effect. Where necessary, we will identify by appropriate
terms the post-1995 provisions that bear on the parties’ contentions and arguments.

                                                  2
               Following our remand to the Commissioner, Mission moved that he dismiss Dizdar’s

administrative appeal on the basis of section 19.0221(i) of the Code, a statute treated at length below.

The Commissioner declined to dismiss Dizdar’s appeal and proceeded to the merits of the

controversy. Based on findings of fact and conclusions of law set forth in a final order, the

Commissioner granted Dizdar’s petition for detachment and annexation of the lots in question.

                Mission sued in district court for judicial review of the Commissioner’s final order.

The Central Education Agency appeared by answer; Dizdar intervened in the cause in defense of the

order. Following a hearing, the district court reversed the Commissioner’s order and implicitly

remanded the controversy to that officer for dismissal for want of subject-matter jurisdiction.3 Dizdar

and the Central Education Agency appeal now from the district-court judgment.


                                 DISCUSSION AND HOLDINGS

               In its petition filed in district court, Mission alleged the Commissioner’s order was in

excess of his statutory powers because he had construed erroneously the relevant provisions of the

Code. Mission advances the same contention as appellee here. The Central Education Agency and

Dizdar contend on appeal that the Commissioner properly construed the relevant statutes to conclude




       3
           The district-court judgment requires construction. It reverses “in all respects” the
Commissioner’s “decision.” The judgment declares that this action is “based on the
jurisdictional arguments presented by” Mission. The judgment omits, however, to make any
disposition of Mission’s cause of action even while it states “[t]his is a final judgment.”
Because the judgment was obviously intended to be a final judgment based on Mission’s
allegation that the Commissioner lacked jurisdiction to hear and determine Dizdar’s
administrative appeal, we conclude the proper construction and effect of the judgment is to
reverse the Commissioner’s final order and to remand the controversy to that officer to be
dismissed for want of subject-matter jurisdiction.

                                                   3
he possessed power to hear and determine the merits of Dizdar’s administrative appeal from the

school districts’ disapproval of Dizdar’s petition for detachment and annexation.

               We must begin our discussion with section 11.13(a) of the Code. See Tex. Educ.

Code Ann. § 11.13(a). This statute in general terms authorizes administrative appeals to the

Commissioner in the following terms:


       [P]ersons 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 . . . may appeal in writing to the commissioner of education
       ....


§ 11.13(a) (emphasis added). So far as this statute is concerned, the right to an administrative appeal

is limited only by the requirement that the affected person be “aggrieved” by the school laws or an

action or decision of a board of trustees. That is the simple, obvious, and plain meaning of the

statute. Section 19.0221 of the Code appears in a subchapter titled “Detachment and Annexation of

Certain Territory.” It is thus a more particular statute and should be understood accordingly. In

section 19.0221, the legislature provided as follows:


       (h) If both boards of trustees of the affected districts approve the petition, each
           commissioners court to whom the matter is required to be reported shall enter
           an order redefining the boundaries affected by the transfer [of territory].

       (i) If the board of trustees of either affected district disapproves the petition, an
           aggrieved party . . . in either district may appeal the board’s decision to the
           commissioner of education under Section 11.13 of this Code.




                                              4
Act of May 10, 1991, 72d Leg., R.S., ch. 152, § 1, 1991 Tex. Gen. Laws 742 (Tex. Educ. Code Ann.

§ 19.0221(h)(i), since repealed and codified at Tex. Educ. Code Ann. § 13.051(i)(j) (West 1996))

(Emphasis added).

               As it did below, Mission contends section 19.0221(i), properly interpreted, denies the

right to appeal to the Commissioner when both affected districts disapprove a petition for detachment

and annexation. Consequently, section 19.0221(i) operates as an exception to section 11.13(a) of

the Code, which creates a general right to an administrative appeal. Because both districts

disapproved Dizdar’s petition in this instance, Dizdar had no right to appeal to the Commissioner and

the Commissioner had no power to decide the appeal in those circumstances. Dizdar and the Central

Education Agency disagree, of course, with Mission’s interpretation of section 19.0221(i). We

conclude section 19.0221(i) will not reasonably bear the meaning Mission attributes to it.

               The most conspicuous factors evident in these provisions of the Code are as follows:

(1) section 11.13(a) grants a general right to appeal to the Commissioner free from any restrictions

apart from a requirement that the person be “aggrieved” by an action or decision of “any board of

trustee”; and (2) not a single word or phrase in section 19.0221(i) carries a connotation of denial,

restriction, or limitation—instead, the words of that section are consistent only with the idea that a

right to an administrative appeal exists in the circumstances described therein. Section 19.0221(i)

declares unequivocally that an aggrieved party “may appeal” if the board of trustees of either affected

district disapproves the petition. This is consistent and harmonious with the general right to an

administrative appeal created in section 11.13(a).




                                                  5
                Mission advances several arguments in support of its contrary interpretation of section

19.0221(i). Mission argues first that in both subsections (h) and (i) of section 19.0221, the legislature

indicated an intention to make final and exclusive the decisions of affected districts when they

concurred in either approving or disapproving a petition for detachment and annexation. Mission

reasons thus from the fact that section 19.0221(h) omits to provide within itself a right to appeal to

the Commissioner when both districts approve a petition for detachment and annexation. Mission

argues next that the legislature’s use of the singular possessive noun “board’s” in section 19.0221(i)

indicates that no right to an administrative appeal was intended when both boards of trustees

disapproved a petition. “If an appeal were authorized when both boards disapproved,” Mission

reasons, “then the appeal would be from the ‘boards’ decisions.” And if the text of section 19.0221(i)

will not bear these contentions, Mission points to a sentence in the legislative bill analysis referring

to section 19.0221(i). That bill analysis declares that section 19.0221(i) “[a]uthorizes an appeal to

the commissioner of education by a party to the proceedings from either school district if one district

disapproves the petition.”

                So far as we understand these contentions, none of them addresses the essential

factors mentioned above: (1) section 11.13(a) gives a general right to an administrative appeal to any

person aggrieved by any decision or action of any board of trustees; and (2) nothing in section

19.0221(i) or elsewhere in the Code purports to deny or restrict that right created in terms so general.

If section 19.0221(i) or another section of the Code purported affirmatively to deny the right to an

administrative appeal when both districts disapproved a petition, then that denial would restrict the

general right created in section 11.13(a), but no such statutory provision has been suggested to us



                                                   6
and we have found none. It is immaterial then that the legislature omitted to provide in section

19.0221(h) for an administrative appeal when both districts concurred in approving a petition—the

right to such an appeal exists in such instances by virtue of section 11.13(a) when no statute purports

to deny the right. The same logical flaw undermines Mission’s arguments based on the use of the

singular possessive noun “board’s” and Mission’s argument from the bill analysis. We turn then to

another argument made by Mission in support of its contention.

                In 1995, the legislature rearranged and amended the Code extensively. Former section

19.0221(i), which lies at the core of the present dispute, was amended to provide exactly what was

missing theretofore—statutory language denying expressly a right to an administrative appeal when

both districts disapprove a petition. The pertinent part of the Code now provides as follows: “If both

boards of trustees of the affected districts disapprove the petition, the decisions may not be appealed.”

Tex. Educ. Code Ann. § 13.051(j) (West 1996). Mission does not contend the 1995 amendment

governs the present case. Mission argues instead that the 1995 amendment demonstrates what the

legislature intended by its earlier enactment of section 19.0221(i), namely an intention to deny the

right to an administrative appeal when both districts disapproved the petition. We may note here that

if such was the legislature’s intention in composing the language of section 19.0221(i), the legislature

chose the most inapt language possible to express such an intention when it chose words of grant

rather than words of denial or restriction. More to the point, perhaps, Mission’s theory rests entirely

upon a naked implication Mission imputes to the text of section 19.0221(i). This is an argument from

silence, without authority, and impermissible in all events.




                                                   7
        The settled rule is that when the legislative intent can be gathered from a reasonable
        interpretation of the language of a statute, it is not permissible to resort to
        interpretation by implication. Interpretation by implication is permitted only to
        supply obvious intent not expressly stated, and never to contradict nor add to a
        statute.


Commonwealth of Mass. v. United N. & S. Dev. Co., 168 S.W.2d 226, 229 (Tex. 1942); see also

Sexton v. Mt. Olivet Cemetery Ass’n, 720 S.W.2d 129, 138 (Tex. App.—Austin 1986, writ ref’d

n.r.e.). One observes that the implication for which Mission contends contradicts the right to an

administrative appeal given expressly and generally in section 11.13(a).

                 Mission does not deny a contention made by Dizdar and the Central Education Agency

that the Commissioner has consistently interpreted section 19.0221(i) to mean that an administrative

appeal may be taken to him when the board of trustees of both districts disapprove a petition. This

is, in our view, a reasonable interpretation of section 19.0221(i) for the reasons set out above—the

almost unrestricted right to an appeal given in section 11.13(a) and the absence of any denial or

restriction of that right in the Code provisions pertaining to detachment and annexation of school-

district territory.

                 Mission points out next that in our opinion in the first appeal, we referred to a 1995

amendment of another section of the Code. “Given that [the court] looked beyond the controlling

statute [a pre-1995 statute] to its successor statute in order to reach a just interpretation,” Mission

argues, “it is equitable that this Court do so again and look beyond the controlling statute [section

19.9221(i)] to its successor statute in this situation.” This argument is based on a false premise. It

assumes that in the first appeal we treated the 1995 amendment as having some bearing on the

meaning to be assigned the pre-1995 statute involved in that appeal. We did not. Even a casual

                                                   8
reading of our earlier opinion demonstrates without question that we referred only to the fact that the

controlling pre-1995 statute had been amended. See Marted, slip op. at 4 n.1. Nothing in our

opinion remotely suggested that the amendment bore upon our conclusion that the statute in question,

as interpreted by the Commissioner, produced an absurd result.

               The mere fact that section 19.0221(i) was amended in 1995 to prohibit administrative

appeals, in cases like the present, carries a presumption that the legislature intended to change the

original enactment by withdrawing or rescinding a right to appeal that existed before. See American

Sur. Co. of N.Y. v. Axtell, 36 S.W.2d 715, 719 (Tex. 1931); 1A Sutherland Statutory Construction

§ 22.30, at 266 (5th ed. 1993). While the presumption is not conclusive, Mission has not suggested

any persuasive considerations in support of a contention that the legislature did not intend such a

change in the law by its 1995 amendment of section 19.0221(i).

               The best that may be said in support of Mission’s position is that section 19.0221(i)

is ambiguous or uncertain as to whether an administrative appeal may be taken when both school

districts disapprove a petition for detachment and annexation. We believe the statute is unambiguous

and certain in that respect. Assuming the contrary, however, it was the Commissioner’s duty to

interpret the ambiguous or uncertain statute and assign to it a particular meaning, which he did. His

chosen meaning was that such a right of appeal existed in those circumstances. We cannot say this

contradicts the plain meaning of section 19.0221(i) or that it is otherwise unreasonable in context.

We refer again to the fact that the general right of appeal exists by virtue of section 11.13(a) and

nothing in section 19.0221(i) or elsewhere denies the right. While we are not bound by the




                                                  9
Commissioner’s interpretation of the statutes, we will not in these circumstances set aside his

interpretation. See Sanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944).

               For the reasons given, we hold the district court erred in its judgment that the

Commissioner lacked subject-matter jurisdiction over Dizdar’s administrative appeal. We therefore

reverse the judgment below and remand the cause to the district court for proceedings not

inconsistent with our opinion. Because our discussion and holdings are a sufficient basis for our

decision, we need not consider the remaining assignments of error brought by Dizdar and the Central

Education Agency.




                                             John E. Powers, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers*

Reversed and Remanded

Filed: November 30, 2000

Do Not Publish


*
    Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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