      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00227-CV



                             Donna Amaral-Whittenberg, Appellant


                                                   v.


                  Felipe Alanis, Commissioner of Education, and Castleberry
                            Independent School District, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
         NO. GN202180, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                            OPINION


                This case concerns the authority of school districts to implement and enforce policies

involving employees’ statutory personal leave. See Tex. Educ. Code Ann. § 22.003(a) (West 2004).

Appellant Donna Amaral-Whittenberg argues that various personal leave policies of Castleberry

Independent School District (the District) violate the education code’s directive that a school district

board of trustees may not restrict the purposes for which leave may be used. See id. The district

court affirmed the decision of the Commissioner of Education (the Commissioner) that the District’s

policies do not violate the education code. On appeal, Amaral-Whittenberg argues in five issues that

the district court erred. We affirm the judgment of the district court.
                                          BACKGROUND

                 Amaral-Whittenberg was employed by the District as a classroom teacher. In

February 2001, she requested five consecutive paid personal leave days to be taken from March 5

through March 9, the week before the District’s spring break holiday. She gave as her reason for

taking five days consecutive leave that she wanted to spend time with her new grandchild. The

school principal granted her two paid personal leave days for March 5 and March 6 but denied the

other three requested days because March 7 would have been the third consecutive day of paid leave,

two other teachers in the school in which she worked had already requested to take personal leave

on March 8, and March 9 was the day before a school holiday. The principal relied on the District’s

local leave policy, DEC(LOCAL),1 which provides in relevant part:


            TYPES OF STATE PERSONAL LEAVE
            Under authority of Education Code 22.003 and to preserve the employee’s leave
            entitlement while minimizing disruption to the instructional program, the Board
            requires employees to differentiate between uses of personal leave:

                DISCRETIONARY
                1. To be taken at the individual employee’s discretion, subject to the
                   limitations set out below.

                NON-DISCRETIONARY
                2. To be used for the same reasons and in the same manner as state sick
                   leave accumulated prior to May 30, 1995. [See DEC(LEGAL)]




        1
            The District uses the terms “DEC(LOCAL)” and DEC(LEGAL) to refer to its local leave
policies.

                                                  2
           USE OF DISCRETIONARY LEAVE

               REQUEST FOR LEAVE
               A notice of request for discretionary personal leave shall be submitted to
               the principal or designee two days in advance of the anticipated absence;
               discretionary personal leave shall be granted on a first-come, first-served
               basis, with a maximum of two employees in each category permitted to
               be absent at the same time for discretionary personal leave.

               Use of discretionary personal leave shall be considered granted unless the
               principal or designee notifies the employee to the contrary within 18 hours
               of receipt of the request.

               DURATION OF LEAVE
               Discretionary personal leave may not be taken for more than two
               consecutive days, except in extenuating circumstances as determined by the
               Superintendent.

               SCHEDULE LIMITATIONS
               Discretionary personal leave shall not be allowed on the day before a school
               holiday, the day after a school holiday, days scheduled for end-of-semester
               or end-of-year exams, days scheduled for TAAS tests, professional or staff
               development days, or the first or last day of a semester.


The District allowed Amaral-Whittenberg to take the three denied days as days of unpaid leave.

                Amaral-Whittenberg filed a grievance with the District concerning the three denied

days and claimed that various provisions of the DEC(LOCAL) violate the education code. See Tex.

Educ. Code Ann. § 22.003(a).2 The District denied her grievance, and the Commissioner denied her


       2
           The statute at issue in this case provides

           A state minimum personal leave program consisting of five days per year
           personal leave with no limit on accumulation and transferable among districts
           shall be provided for school district employees. School districts may provide
           additional personal leave beyond this minimum. The board of trustees of a
           school district may adopt a policy governing an employee’s use of personal leave
           granted under this subsection, except that the policy may not restrict the purposes

                                                   3
appeal in a written decision. Texas Comm’r of Educ., Amaral-Whittenberg v. Castleberry Indep.

Sch. Dist., Docket No. 003-R10-901, at *10 (Apr. 26, 2002) (hereinafter, Decision of Comm’r of

Educ.).

                  The Commissioner both articulated a set of standards and applied those standards to

the policies about which Amaral-Whittenberg complained in her grievance. See generally id. First,

the Commissioner stated the standards by which he would judge personal leave policies:


          A personal leave policy must meet the following standards. A personal leave policy
          must be neutral on its face as to the purpose for which leave is taken. It cannot
          distinguish between worthy and unworthy uses for leave. Rogers v. Poteet
          Independent School District, Docket No. 087-R10-498 (Comm’r Educ. 1998). There
          must also be a rational basis for the policy. A personal leave policy that makes it
          difficult or impossible for teachers to use their yearly allotment of leave would not
          be a legitimate use of the policy making authority.


Id. at *4.

                  The Commissioner then applied this policy to the particular provisions of

DEC(LOCAL) about which Amaral-Whittenberg complained. Id. at *5-6. He found each of the

policies to be facially neutral. Id. He then turned to the District’s stated justifications for the

policies. First, when considering the District’s limitation that only two consecutive days may be

taken for paid personal leave, he noted that the District implemented this policy because “continuity

is good for children.” Id. at *5. Although he commented that it has not been decisively proven that




             for which the leave may be used.

Tex. Educ. Code Ann. § 22.003(a) (West Supp. 2004).

                                                   4
a continuous five-day absence has a more detrimental effect on children than five days of absence

in increments of one or two days, he concluded that a rational school board could make that decision.

Id. Next, when he looked at the District’s restriction that only two employees per category may take

paid personal leave on any given day, he determined that the District’s reasoning that the policy

minimizes the difficulty in obtaining substitute teachers forms a rational basis for the policy. Id. He

also found that it is not unreasonable to consider a campus as a category in applying this restriction.

Id. at *5 n.1. Finally, the Commissioner considered Amaral-Whittenberg’s challenge to the policy

that an employee may not take paid personal leave the day before or after a school holiday, among

other days, and found a rational basis in the record for the prohibition on taking personal leave on

those days. Id. at *6.

                The Commissioner further indicated that nothing in the record showed that these

policies would make it difficult or impossible for teachers to use their yearly allocation of leave. Id.

at *5-6. Thus, he determined that the policies meet Commission standards interpreting the education

code. Id. As a result, he made conclusions of law that these policies do not violate the requirements

of the education code. Id. at *8-9.

               The district court affirmed the decision of the Commissioner. See generally Tex.

Educ. Code Ann. § 7.057 (West Supp. 2004). This appeal followed.


                                           DISCUSSION

Facial Challenge

               In her second issue, Amaral-Whittenberg argues that the District’s personal leave

policy, both facially and as applied, restricts the purposes for which personal leave days may be

                                                   5
used.3 In particular, she presents these arguments as they relate to three sub-issues: (1) the

restriction that only two employees per category may take paid personal leave on any given day; (2)

the limitation that only two consecutive days may be taken for paid personal leave; and (3) the policy

that an employee may not take paid personal leave the day before or after a school holiday.4

                Amaral-Whittenberg summarizes her facial challenge in this way: that the policies,

by denying leave on certain days, actually have the effect of restricting the purposes for taking many

kinds of personal leave. She argues that the Commissioner’s standard—that policies be facially

neutral, have a rational basis, and not make it impossible or difficult to use personal

leave—constitutes an exception to the statutory requirement.5 We disagree.



        3
          In her first issue, Amaral-Whittenberg argues that the District unlawfully denied her request
for five consecutive days of paid leave, but she does not brief this issue separately from her second
issue. Rather, she only states that the “restrictions and prohibitions imposed on District employees
by DEC(LOCAL) in their use of this valuable and important statutory benefit are unlawful.” In
addition, in her fifth issue, Amaral-Whittenberg states both that the Commissioner’s decision was
arbitrary, capricious, unlawful, and not supported by substantial evidence and that his conclusions
of law are erroneous. However, she does not argue any points of this issue on a basis independent
from her facial or as-applied challenges. Therefore, we consider her first and fifth issues to be
merely restatements of her facial and as-applied challenges to the District’s policies.
        4
          Amaral-Whittenberg also argues facial and as-applied challenges to the policy requiring
two-days’ advance notice to the school in order to take personal leave. However, she did not present
those claims to the Commissioner. Rather, she first mentioned the two-day notice requirement in
her motion for rehearing to the Commissioner only to complain that the Commissioner failed “to
accurately list all the reasons for disallowing a request for state personal leave.” As well, she did not
argue facial or as-applied challenges to this requirement in her brief to the district court. As a rule,
a party may not raise an issue for the first time on appeal. Dreyer v. Green, 871 S.W.2d 697, 698
(Tex. 1993). Because the Commissioner never had the opportunity to consider these claims, Amaral-
Whittenberg waived her arguments concerning the two-day notice requirement.
        5
         For example, Amaral-Whittenberg states that, because the leave policies prohibit using
more than two consecutive days of paid leave, the policies actually would restrict a teacher from
going on a five-day hunting trip.

                                                   6
                In order to consider whether the DEC(LOCAL) rules violate the education code, we

must construe the code’s provisions. Statutory construction is a matter of law, which we review de

novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). The primary rule of

statutory interpretation is to look at the intent of the legislature and construe the statute so as to give

effect to that intent. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999); Union

Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994). To determine legislative intent, we

may consider the language of the statute, the legislative history, the nature and object to be obtained,

and the consequences that would follow from alternate constructions. Helena Chem. Co. v. Wilkins,

47 S.W.3d 486, 493 (Tex. 2001); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371,

380 (Tex. 1998); Union Bankers Ins. Co., 889 S.W.2d at 280. However, the construction of a statute

by the administrative agency charged with its enforcement is entitled to serious consideration, as

long as the construction is reasonable and does not contradict the plain language of the statute. See

Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,

823 (Tex. 1993). In matters of education law, courts should defer to the Commissioner’s reasonable

determination in an area where he possesses authority and expertise. Dodd, 870 S.W.2d at 7.

                Section 22.003(a) allows school districts to adopt policies “governing an employee’s

use of personal leave” but “may not restrict the purposes for which the leave may be used.” Tex.

Educ. Code Ann. § 22.003(a). Any regulation of leave necessarily involves setting standards by

which leave will be granted on some days and denied on others. However, the fact that a regulation

could have the effect of denying leave on some days does not automatically transform that regulation

into one that restricts the purposes for which leave may be used.



                                                    7
               We believe the standard articulated by the Commissioner to be a reasonable

interpretation of the legislature’s intent in section 22.003(a). See Decision of Comm’r of Educ., at

*4. It ensures that proper regulations will not distinguish between worthy or unworthy uses of leave.

Id. It compels a rational basis for each policy. Id. It focuses on the intent of the legislature in

granting guaranteed personal leave for school employees by setting as a boundary that any leave

policy must not make it difficult or impossible for a school employee to use guaranteed leave. Id.;

see also Tex. Educ. Code Ann. § 22.003(a). Because the Commissioner’s standard requires facial

neutrality on the part of leave policies and because the standard employs the goals of section

22.003(a) in crafting a reasoned approach to evaluating individual policies, we will defer to the

Commissioner and adopt his standard in evaluating Amaral-Whittenberg’s facial challenge to the

District’s leave policies. See Dodd, 870 S.W.2d at 7.

               We now apply the Commissioner’s standard to the policies challenged in this case.

Each of the policies is facially neutral in its application. None of the policies makes it difficult or

impossible for a teacher to use statutory personal leave. See Decision of Comm’r of Educ., at *5-7;

DEC(LOCAL). The District formulated a rational basis for its policies. First, the restriction that

only two employees per category may take paid personal leave on any given day is grounded in a

school’s need to manage its resource of substitute teachers. Decision of Comm’r of Educ., at *5-7.

Second, the limitation that only two consecutive days may be taken for paid personal leave addresses

the need to provide continuity in the classroom to minimize disruption to the educational process.

See id.

               Finally, the District offers two reasons for the policy prohibiting the taking of

personal leave the day before or after a school holiday. It points out that this policy guards

                                                  8
educational continuity for children by preventing teachers from extending their vacations by using

personal leave. Otherwise, it cautions that the first or last day of school could leave a school district

with a school staffed only by substitute teachers. In addition, it notes that in its experience the day

before a school holiday is often the most difficult day on which to find a substitute teacher because

maintaining discipline among the children is often problematic on those days. We find these to be

more than adequate reasons for the District’s policy.

                Applying the Commissioner’s standard to the challenged policies, we hold that the

District’s policies comply facially with the requirements of section 22.003(a). See Decision of

Comm’r of Educ., at *4-7. We overrule Amaral-Whittenberg’s facial challenge to the District’s

personal leave policies.


As-applied Challenge

                To address Amaral-Whittenberg’s as-applied challenge, we must consider the

evidence as presented to the Commissioner, and we confine our review to the administrative record.

See Tex. Gov’t Code Ann. § 2001.175(e) (West 2000). We review the record under the substantial

evidence rule. See Tex. Educ. Code Ann. § 7.057(c); Havner v. Meno, 867 S.W.2d 130, 132 (Tex.

App.—Austin 1993, no writ). The substantial evidence rule is a reasonableness test or a rational-

basis test. State v. Public Util. Comm’n, 883 S.W.2d 190, 203 (Tex. 1994). Thus, we are to consider

the reasonableness of the Commissioner’s order rather than the correctness of the order. Id.

Although substantial evidence is more than a mere scintilla, the evidence in the record may actually

preponderate against the decision of the Commissioner and nonetheless amount to substantial

evidence. Id. at 204. The findings, inferences, conclusions, and decisions of the Commissioner are


                                                   9
presumed to be supported by substantial evidence, and the burden is on the contestant to prove

otherwise. Id.; Imperial Am. Res. Fund, Inc. v. Railroad Comm’n, 557 S.W.2d 280, 286 (Tex. 1977).

               The record in this case contains the following evidence: Amaral-Whittenberg

requested five days of paid personal leave; she requested that leave because she wanted to spend time

with her new grandchild; and the school principal denied her request by relying on the District’s

leave policies. There is no evidence in the record either that the school principal inquired into

Amaral-Whittenberg’s reasons or that the principal’s decision was related in any way to Amaral-

Whittenberg’s reasons for requesting leave. Thus, Amaral-Whittenberg has failed to offer evidence

to overcome our presumption that the decision of the Commissioner is supported by substantial

evidence. We overrule her as-applied challenge to the District’s leave policies.


Extenuating Circumstances, Bereavement Leave, and Leave for Religious Observances

               In her third issue, Amaral-Whittenberg argues that the District violated its policies

by denying her request for paid leave because it failed to consider extenuating circumstances in her

case. In relation to her second issue, Amaral-Whittenberg presents facial challenges to District

policies concerning bereavement leave and accommodations for religious observances. However,

Amaral-Whittenberg first presented these arguments in district court and did not argue them to the

Commissioner. In grievance proceedings under the education code, the district court sits as an

appellate court and reviews only the administrative record. Tex. Educ. Code Ann. § 7.057(d); Wylie

Indep. Sch. Dist. v. Central Educ. Agency, 488 S.W.2d 166, 169 (Tex. Civ. App.—Austin 1972, writ

ref’d n.r.e.). As a rule, a party may not raise an issue for the first time on appeal. Dreyer v. Green,

871 S.W.2d 697, 698 (Tex. 1993). Therefore, Amaral-Whittenberg has waived these arguments.


                                                  10
We overrule her third issue and her facial challenge to the District’s bereavement and religious-

observance leave policies.


Breach of Contract

               In her fourth issue, Amaral-Whittenberg argues that the District breached its

employment contract. This breach occurred, she argues, because the District relied on its leave

policies, which allegedly violate the education code, to deny her the three days of paid leave. See

Tex. Educ. Code Ann. § 22.003(a). Because we find that the District’s leave policies do not violate

the education code and because Amaral-Whittenberg relies only on that alleged violation in claiming

a breach of contract, Amaral-Whittenberg’s breach-of-contract claim fails. We overrule her fourth

issue.


                                        CONCLUSION

               Because we overrule Amaral-Whittenberg’s issues on appeal, we affirm the judgment

of the district court affirming the decision of the Commissioner.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: December 4, 2003


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