      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00048-CV



                               Loretta Conly Bascom, Appellant

                                                v.

                       Texas Department of Human Services and Texas
                             Workforce Commission, Appellees




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
        NO. 13,880, HONORABLE BOBBY L. CUMMINGS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The Texas Department of Human Services (“the Department”) terminated the

employment of Loretta Conly Bascom (“Conly”).1 The Texas Workforce Commission (“the

Commission”) denied her request for unemployment benefits. Conly sought judicial review of the

Commission’s decision. The district court affirmed the Commission’s order. Conly raises various

issues concerning procedural mistakes by the district court and an erroneous credibility

determination. Because we find the Commission’s decision is supported by substantial evidence and

the other issues lack merit, we affirm the judgment.




       1
        Appellant filed suit as Loretta Conly. She signed the notice of appeal as Loretta Conly
Bascom. To avoid confusion, we will refer to her as “Conly” in this opinion.
                                        BACKGROUND

               Conly worked for the Department for seven years. As a Texas Works Advisor II, she

determined whether applicants were eligible for food stamps and other benefits. One of her clients

was George Sanderson.

               On August 3, 1998, Sanderson sold some land to Ron Bascom. Sanderson signed a

statement in which he asserted, in part, the following:


       I agreed to sell 10 acres to Ron Bascom and Loretta Conley. I assume that they are
       married even though they have different last names. Loretta told me that their buying
       the land from me wouldn’t have any affect on my food stamps. We made the deal
       and signed the papers to sell the land on August 3, 1998. In September 1998 I went
       to the food stamp office to report that I had received $12.00 from Ron Bascom for
       the first land payment (where I actually received any money) . . . . As for the sale of
       the property, Loretta told me that she would take care of reporting that on my case.
       She said that she would also report the cleaning contract. I assumed that whatever
       adjustments needed to be made to my case that Loretta would make them.


Richard Miller, who represented Sanderson and closed the sale, filed an affidavit in which he swore

that Conly was not on the closing papers and that he did not even see Conly until after the sale.

Although Bascom and Conly were not married to each other at the time of the sale, they subsequently

married.

               Conly states that she did not learn of the land sale until much later. She denied that

Sanderson reported the change to her or that she learned about it from Bascom. She said she did not

discuss her clients with anyone. She believed that Sanderson must have reported the sale to someone

else in the office who told him it would not affect his food-stamp benefit; it was that person who

failed to report the sale at the time. Conly asserted that when she learned of the sale on September



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28, 1998, she reported it. She noted that Sanderson failed to file any of the required paperwork

regarding the sale. She said the report came too late in the benefits cycle to affect his October

benefits because the reporting deadline was September 18, 1998.

                Conly’s supervisor recommended her dismissal for violation of several work rules.

Her supervisor found that she failed: (1) to maintain conduct that does not interfere with the proper

performance of duties, office operations, or department goals and objectives; (2) to adhere to the

standards of conduct in the Department’s handbook; (3) to report information that could result in a

client’s ineligibility; and (4) to comply with department rules, regulations, and policies—specifically,

taking actions on reported changes that affect the eligibility of or the amount of benefits accorded

to a client.

                Before the Commission, Conly complained that she was being set up for various

reasons. She said that she had no motivation to hide Sanderson’s additional income—his being

given extra food stamps did not benefit her. Rather, Sanderson would benefit from her termination

because without her income Bascom would default on the payments, and Sanderson could foreclose

on the land after Bascom had paid the back taxes. Conly also contended that Sanderson is not

credible, in part because he wears foil on his head to protect himself from satellites. She alleged that

a lower-paid worker would benefit by taking her job, and that their boss would benefit because he

was having a romantic relationship with that worker.

                The Commission denied Conly unemployment benefits, concluding that she was

terminated for misconduct. See Tex. Lab. Code Ann. §§ 201.012(a), 207.044(a) (West 1996). The

statute defines misconduct as “mismanagement of a position of employment by action or inaction,



                                                   3
neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance,

intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and

the safety of employees.” Id. § 201.012(a).

               Conly challenged the Commission’s decision in the district court, contending that the

decision was based on perjury. She also argued that the overwhelming evidence weighed against

the Commission’s decision. She asserted that she did not commit misconduct and that the rules she

was alleged to have violated did not apply. The district court affirmed the decision, concluding that

it was supported by substantial evidence.


                                            DISCUSSION

               Conly appeals, raising several issues. She complains that the court unfairly denied

her right to a jury trial. She complains that the court improperly denied her the opportunity to make

an opening statement. She complains that the court erred by disqualifying her expert witness. She

complains that the court proceeded to hear the appeal without ruling on her motion to exclude the

administrative record, which was admitted in the hearing. She alleges that the court erred by finding

Sanderson credible. She asserts that it is a conflict for the Commission to referee claims involving

the Department because both answer to the attorney general. She believes that pro se litigants should

be given more latitude and assistance from the bench. Finally, she complains of breaches of

decorum by the court staff.

               Decisions by the Commission regarding benefit payments are subject to trial de novo

review in which the district court determines whether substantial evidence supports the

Commission’s ruling. See Tex. Lab. Code Ann. § 212.202(a) (West 1996); Mercer v. Ross, 701

                                                  4
S.W.2d 830, 831 (Tex.1986). The Commission’s ruling carries a presumption of validity, and the

party seeking to set aside the Commission’s decision has the burden to show that it was not

supported by substantial evidence. Mercer, 701 S.W.2d at 831. Under the substantial evidence

standard of review, the issue is whether the evidence introduced before the district court shows facts

in existence at the time of the Commission’s decision that reasonably support the decision. The

reviewing court may not set aside a Commission decision merely because it would reach a different

conclusion. Id. It may do so only if it finds that the Commission’s decision was made without

regard to the law or the facts and therefore was unreasonable, arbitrary, or capricious. Id.


Jury Trial

               Conly complains that the court erred by denying her a jury trial and should not have

denied her motion while she was in the hospital. As a matter of law, she was not entitled to a jury

trial in this type of case. Review of a decision on the substantial-evidence standard is a legal

determination that is not suited for a jury. See Texas Employment Comm’n v. Child, Inc., 738

S.W.2d 56, 58-59 (Tex. App.—Austin 1987, writ denied); see also Firemen’s & Policemen’s Civ.

Serv. v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984); Texas Co. v. Texas Employment Comm’n,

261 S.W.2d 178, 183 (Tex. Civ. App.—Beaumont 1953, writ ref’d n.r.e.).

               Further, the Texas Constitution guarantees the right to a jury trial in all types of

causes, or analogous actions, that existed when the constitution was adopted in 1876. Barshop v.

Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 636 (Tex. 1996). The

unemployment compensation system was created in 1936. Act of Oct. 27, 1936, 44th Leg., 3d C.S.,

ch. 482, § 1, 1936 Tex. Gen. Laws 1993. Neither unemployment benefits nor the judicial review of

                                                  5
administrative decisions existed in 1876. There is no showing that unemployed workers previously

had any right to payment by the government based solely on their not being employed. There is thus

no right to a jury trial for the review of the denial of unemployment benefits. The court did not err

by denying Conly’s request for a jury.


Opening statement

               Conly complains that she was denied the opportunity to make an opening statement.

The record does not support her assertion. She made a statement before the presentation of the

evidence. The court asked if she had witnesses to call; she responded affirmatively, the witnesses

were placed under the rule, and testimony began.

               Conly was not directly told to cease her statement, nor did she object to any indirect

curtailment of her statement. She has not shown that she preserved this complaint for review. See

Tex. R. App. P. 33.1(a).

               More important, Conly has not shown that she was harmed by any curtailment of her

statement. The opening statement is not evidence, and the opening statement she asserts in her brief

that she would have made at trial includes assertions not supported by the evidence offered or

admitted at the hearing. We find that Conly has not shown that any curtailment of her opening

statement probably caused the rendition of an improper judgment or prevented her from properly

presenting her appeal to us. See Tex. R. App. P. 44.1.


Recusal of a judge

               Conly complains about the judge who was assigned to hear her case. She says she

would have requested recusal if she had known who the judge was. Yet, there is no indication in the

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appellate record that she ever attempted to use the procedures available under the rules of civil

procedure to have the judge removed. See Tex. R. Civ. P. 18a. Nor is it apparent that any such

request should have been granted.


Expert witness

               Conly complains of the disqualification of witness Rebecca Gerra2 as an expert.

Gerra was a long-time supervisor in the Department. She did not have personal knowledge of the

circumstances surrounding Conly’s dismissal. The Commission objected to her ability to testify

regarding what the Department did when training all of its employees. The court sustained the

objection.

               Conly complains that Gerra knew what information Conly received at training

because Gerra trained Conly. The exclusion of Gerra as an expert blocked only testimony regarding

her opinions or beliefs generally regarding such issues as the Department’s training practices. See

generally Tex. R. Evid. 702. Her exclusion as an expert did not block testimony about specific

events of which Gerra had personal knowledge.

               Further, we are not permitted to reverse for the exclusion of evidence unless the party

whose evidence was excluded makes an offer of the evidence that was excluded. See Tex. R. Evid.

103; see also Tex. R. App. P. 33.1. The record does not contain such an offer of proof.




       2
          This witness’s last name is spelled “Gerra” in the reporter’s record, but is spelled “Guerra”
in other parts of the record.

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Admission of administrative record

                Conly filed a motion seeking to have the district court hear her case “strictly de novo.”

Specifically, she sought to prevent admission of the administrative record into the district court

record because she believed that documents within it were tainted by perjury, forgery, and

misrepresentation. She believed that the administrative referee erred by admitting paperwork the

Department submitted because the papers differed from those sent to Conly.

                We review the decision to admit evidence under an abuse of discretion standard. See

McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 27 (Tex. App.—San Antonio 1998, pet. denied);

Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 531 (Tex. App.—Tyler 1992, writ denied). A trial

court abuses its discretion only if it acts unreasonably or without reference to any guiding rules and

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

                At the trial de novo review of the Commission’s decisions regarding benefit

payments, the district court must determine whether substantial evidence existed at the time of the

Commission’s decision to support that decision. Collingsworth Gen. Hosp. v. Hunnicutt, 988

S.W.2d 706, 708 (Tex. 1998). Although the district court is not to decide based solely on the

administrative record, the court may consider the record if it is admitted pursuant to the rules of civil

procedure. Nuernberg v. Texas Employment Comm’n, 858 S.W.2d 364, 365 (Tex. 1993).3




        3
         In Neurnberg, the court held that a copy of the administrative record attached to a motion
for summary judgment was not competent evidence. See Neurnberg v. Texas Employment Comm’n,
858 S.W.2d 364, 365 (Tex. 1993). Here, although the record was offered as a single exhibit rather
than individual documents, it was admitted at trial, subject to the rules of evidence, without
objection. We conclude that, under these circumstances, it is competent evidence.

                                                   8
               We cannot say that the district court abused its discretion by determining that, in order

to review the Commission’s decision, it could, as part of its review, consider the evidence that was

before the Commission. Conly was free to present evidence and argument challenging the reliability

of evidence in the administrative record.


Credibility determination

               Conly contends that the court erred by finding Sanderson’s affidavit credible—a

decision she describes as “the closest thing we have that might be construed as a finding of fact.”

The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Cohn v. Commission for Lawyer Discipline, 979 S.W.2d 694, 696 (Tex. App.—Houston

[14th Dist.] 1998, no pet.). We will not substitute our judgment for that of the district court merely

because we might reach a different conclusion. Id.; Westech Eng’g, Inc. v. Clearwater Constructors,

Inc., 835 S.W.2d 190, 195 (Tex. App.—Austin 1992, no writ).

               Conly argues that, although Sanderson’s affidavit appears credible and coherent, he

must have problems because he has received food stamps for seven years. She also argues that his

statement to her before a client meeting that he had walked 19 miles into town shows that he is not

credible. She alleges that Sanderson wears foil hats to deter satellites from tracking his whereabouts.

Further, Conly argues that the person in her office who Sanderson alleges was aware of the sale was

actually a co-worker, not Conly.

               Conly points to Bascom’s testimony, “I’m not saying what he says is credible,” as a

challenge to Sanderson’s credibility. Bascom made this statement while trying to show that his

testimony did not violate the hearsay exclusion because Sanderson’s statements were not being

                                                   9
offered for the truth of the matter asserted. See Tex. R. Evid. 801(d), 802. Although Bascom may

have had an opinion regarding Sanderson’s credibility, this statement at the hearing is not an

assessment of Sanderson’s credibility.

                On this record, we cannot say that the district court erred by crediting Sanderson’s

affidavit.


Conflict of interest

                Conly contends that there is a conflict of interest in having the Commission review

decisions made by the Department because they are both responsible to the attorney general. She

argues that this arrangement gives the Department insider knowledge.

                Although all three entities are in the executive branch of government, the

Commission and the Department are not responsible to the attorney general. The Commission and

the Department have both been represented in this appeal by sections of the attorney general’s

office—the Commission by the taxation section and the Department by the general litigation section.

But the Commission and the Department are executive entities whose leaders are appointed by the

governor or his appointees, while the attorney general is an executive officer elected by the voters.

                The attorney general is a constitutionally created office, one of six officers comprising

the executive department. See Tex. Const. art. IV, § 1. The attorney general is chosen in an election

by the qualified voters of Texas. See id. § 2. The attorney general represents the State and performs

all other duties required of the office. Id. § 22.

                The Department is a statutorily created entity composed of the Texas Board of Human

Services, the Commissioner of Human Services, and other officers and employees. See Tex. Hum.

                                                     10
Res. Code Ann. § 21.001 (West 2001). The board members are appointed by the governor. Id.

§ 21.003. The Commissioner of Human Services is “employed by the commissioner of health and

human services,” id. § 21.004, who in turn is appointed by the governor. Tex. Gov’t Code Ann.

§ 531.005 (West 1998). The Department is responsible for administering public assistance programs

for needy persons as defined by statute. Tex. Hum. Res. Code Ann. § 22.001.

               The Commission is a state agency established to operate an integrated workforce

development system and to administer the unemployment compensation insurance program. See

Tex. Lab. Code Ann. § 301.001 (West 1996). It is comprised by three commissioners who are

appointed by the governor. Id. § 301.002. The labor code provides that, when the Commission’s

decision is challenged, the Commission is represented by an attorney appointed by the attorney

general. Id. § 212.207 (West 1996).

               Thus, neither the Commission nor the Department reports to the attorney general.

The Department was represented by the attorney general’s office at the administrative hearing before

the Commission. Only when Conly sought judicial review did the attorney general’s office begin

representing the Commission; furthermore, the Commission was represented by a different section

of the attorney general’s office than that representing the Department. We find no conflict of interest

that adversely affected Conly.


Special latitude or assistance to pro se litigants

               Conly asserts that the court should have given her more assistance and latitude

because she is not an attorney. Courts have consistently rejected any requirement that special

allowances be made for pro se litigants. See Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San

                                                  11
Antonio 1999, no pet.); Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.—Austin 1982, no writ).

We are not persuaded that we can make an exception to that line of cases here.


Breaches of decorum by court staff

               Conly complains that, during a recess, a bailiff yelled at her and Bascom to stop

talking to each other. She asserts that this so unnerved her that she was unable to proceed

effectively.

               The record does not reflect any yelling or involvement by the bailiff. The yelling

allegedly occurred during a recess, and no mention of it was made when the hearing resumed. The

reporter’s record shows that, after a recess during Bascom’s testimony, the Commission’s attorney

reported the conversation between Conly and Bascom as a possible violation of the rule against

discussing testimony outside the courtroom; he requested sanctions. Conly and Bascom explained

that they were discussing how to proceed with her questioning of him so as to lay a proper

foundation for certain testimony. The court denied the request for sanctions. Conly said she did not

know what to ask Bascom; after the attorneys for the Commission and the Department declined to

cross-examine Bascom, the court told him to step down. Bascom replied that he had not heard Conly

rest her case yet. Conly then asked the court if she could make a closing statement. Bascom

interjected, “No. You don’t know what to do and they’re going to bully you around.” Conly offered

to read the Commission’s opinion denying her benefits, but the Commission offered the certified

copy of the opinion as part of the administrative record, which the court admitted. Conly then

proceeded to read the opinion while inserting her arguments against its findings and conclusions.




                                                12
               The record reflects no reversible error. We cannot reverse for an alleged breach of

decorum that is not shown in the record. See Tex. R. App. P. 33.1(a). Nor is the Commission’s

report of the incident and request for sanctions a valid basis for reversal. There is no showing on the

record that the Commission’s attorney acted inappropriately in reporting the conversation; moreover,

the court overruled the request for sanctions. Even if events unsettled Conly, she did not request

additional time to collect herself. Although she did not continue questioning Bascom, she did go

through the Commission’s opinion and discuss her disagreements with it. The record reflects no

failure by the court to grant any requested relief.


                                          CONCLUSION

               We resolve all issues presented here in favor of the judgment. Because Conly has

failed to show that the judgment is not supported by substantial evidence, we affirm the district

court’s judgment affirming the Commission’s denial of benefits.




                                               Bea Ann Smith, Justice

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

Affirmed

Filed: August 14, 2003




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