                                                                                                                                                                            ACCEPTED
                                                                                                                                                                        03-13-00789-CV
                                                                                                                                                                                7765396
                                                                                                                                                             THIRD COURT OF APPEALS
                                                                                                                                                                        AUSTIN, TEXAS
  November 30, 2015                                                                                                                                               11/10/2015 1:30:31 PM
                                                                                                                                                                      JEFFREY D. KYLE
                                                                                                                                                                                 CLERK




                                                                                                                                     RECEIVED IN
                                                                                                                               3rd COURT OF APPEALS
                                                                                                                                    AUSTIN, TEXAS
                                                                                                                               11/10/2015 1:30:31 PM
BETH KLUSMANN                                                                                                                                        (512) 936-1914
ASSISTANT SOLICITOR GENERAL                                                                                                        JEFFREY
                                                                                                                          BETH.KLUSMANN      D. KYLE
                                                                                                                                        @TEXASATTORNEYGENERAL  .GOV
                                                                                                                                         Clerk

                                                                 November 5, 2015

        VIA ELECTRONIC FILING

        Jeffrey D. Kyle, Clerk
        Third Court of Appeals
        209 West 14th Street, Room 101
        Austin, Texas 78701

                 Re:         Case No. 03-13-00789-CV; Alphonso Crutch Life Support
                             Center v. Williams, et al.

        To the Honorable Third Court of Appeals:

              In its briefs in the above-referenced case, the Alphonso Crutch Life
        Support Center stated multiple times that the Commissioner of
        Education had wrongly denied funding to Crutch and that Crutch had
        filed suit regarding the Commissioner’s funding decisions. A Travis
        County district court has now ruled against Crutch in that separate suit,
        concluding that the Commissioner did not act ultra vires or violate
        Crutch’s equal-protection rights with respect to funding. The district
        court’s judgment and findings of fact and conclusions of law are attached.
        Crutch has appealed that judgment to this Court. Alphonso Crutch Life
        Support Ctr., Inc. v. Williams, No. 03-15-00509-CV.




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Letter to Third Court of Appeals
November 5, 2015
Page 2

      Although the Commissioner continues to assert that the question
of Crutch’s funding is separate from the non-renewal issue presented in
this appeal, he wished to notify the Court of this development, given the
statements in Crutch’s brief.

                                                                               Sincerely,

                                                                               /s/ Beth Klusmann
                                                                               Beth Klusmann
                                                                               Bar No. 24036918

BEK/ch




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Letter to Third Court of Appeals
November 5, 2015
Page 3

                                            CERTIFICATE OF SERVICE

     On November 5, 2015, this Letter was served via electronic mail
and/or File & ServeXpress on:

Mr. Gary L. Bledsoe
Potter Bledsoe, LLP
316 West 12th Street, Suite 307
Austin, TX 78701
garybledsoe@sbcglobal.net

Counsel for Appellant

                                                                   /s/ Beth Klusmann
                                                                   Beth Klusmann




                                       CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), this
letter contains 146 words, excluding the portions exempted by Rule
9.4(i)(1).


                                                                   _/s/ Beth Klusmann____
                                                                   Beth Klusmann




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A
                                                                                     JUL 10 2~             1J1£i
                                  CAUSE NO. D-1-GN-05-003667
                                                                             /.,t        q~ 4=        C_M.
                                                                              Velva L. Price, District Clerk

 ALPHONSO CRUTCH LIFE                              §           IN THE DISTRICT COURT
 SUPPORT CENTER, INC.,                             §
     Plaintiff,                                    §
                                                   §
 v.                                                §           53rd JUDICIAL DISTRICT
                                                   §
 MICHAEL L. WILLIAi'1S,                            §
 COMi1\1ISSIONER OF EDUCATION,                     §
    Defendant.                                     §           TRAVIS COUNTY, TEXAS


                                        FINAL JUDGMENT

  On February 2, 2015, this case was called for trial. Plaintiff, Alphonso Crutch, LLC,
appeared through a representative and announced ready for trial. Defendant, Michael L.
Williams, appeared through a representative and announced ready for trial.

  All matters in controversy, legal and factual, were submitted to the Court for its
determination. The Court heard the evidence and arguments of counsel.

  The Court hereby RENDERS judgment for Defendant, Michael L. Williams.

  Accordingly, the Court orders that plaintiff take nothing and that defendant recover court
costs :from plaintiff.

      This judgment finally disposes of all claims and all parties, and is appealable.



SIGNED on ]°vL'i         IQi:?.   , 2015.
B
                                                                                 Filed In The District Court
                                                                                  of Travis County, Texas

                                                                                       JUL 3 1 2015        ~\'\
                                   CAUSE NO. D-1-GN-05-003667                    At        II :53        t\. - M.
                                                                                 Velva L. Price, District Clerk

ALPHONSO CRUTCH LIFE                                 §           IN THE DISTRICT COURT
SUPPORT CENTER, INC.,                                §
     Plaintiff,                                      §
                                                     §
v.                                                   §           53rd JUDICIAL DISTRICT
                                                     §
MICHAEL L. WILLIAMS,                                 §
COMMISSIONER OF EDUCATION,                           §
    Defendant.                                       §           TRAVIS COUNTY, TEXAS

                     FINDINGS OF FACT AND CONCLUSIONS OF LAW

        Pursuant to the provisions of Rules 296 through 299 of the Texas Rules of Civil Procedure
and at the request of Plaintiff, the Court issues its Findings of Fact and Conclusions of Law:

                                         FINDINGS OF FACT

     1. All Findings of Fact that would more appropriately be classified as Conclusions of Law
        are hereby adopted as such.

Texas School Funding System

     2. The Texas Legislature created the Foundation School Program ("FSP") for funding all
        schools in the state. Funding for all schools and school districts is governed by Chapter
        42 of the Texas Education Code.

     3. FSP funding is directly linked to a school's attendance figures.

     4. The Commissioner distributes FSP funds to schools and school districts on the basis of
        "average daily attendance," which is "'the quotient of the sum of attendance for each day
        of the minimum number of days of instruction ... divided by the minimum number of
        days of instruction."

     5. In any given school year, the initial FSP payments to a school are made on the basis of
        estimated attendance-either by using data from the prior year or an estimate provided by
        the school.

     6. TEA recalculates the average daily attendance based on the actual attendance data and
        adjusts the FSP payments accordingly.



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Findings of Fact and Conclusions of Law and Conclusions of law                 D-1-GN-05-003667
    7. During the school year, a school must report its attendance figures to TEA every six
       weeks by submitting its official attendance data through the Public Education
       Information Management System (PEIMS).

    8. Schools receive FSP payments monthly.

    9. Any monthly payment to a school is subject to adjustment to account for actual
       attendance as it becomes known, and to withholding based on previous overallocations.

    10. At the end of the school year, TEA engages in a settle-up process to determine the
        amount a school should have received based on the official attendance data submitted by
        the school through PEIMS.

    11. TEA then applies any adjustment necessary as a result of the settle-up process to the
        current year's allocations.

Alphonso Crutch Background

    12. TEA granted Alphonso Crutch Life Support Center, Inc. ("Alphonso Crutch" or "the
        School") an open-enrollment charter in 1998.

    13. Alphonso Crutch was an open-enrollment charter school established under Chapter 12 of
        the Texas Education Code.

    14. Alphonso Crutch's charter expressly provides that the payment of state funds is
        contingent on Alphonso Crutch' s compliance with statewide attendance reporting
        requirements.

    15. Alphonso Crutch's funding formulation-like that of all other charter schools-is
        mandated by Texas Education Code Chapter 12. Texas Education Code Section
        12.106(c) makes the calculation and accounting for charter schools subject to the
        Commissioner's rule-making authority.

    16. Rule 61.1025 of the Texas Administrative Code states: "[PEIMS] data standards,
        established by the commissioner of education under [TEC] 42.006 ... shall be used by
        school districts and charter schools to submit information required for the legislature and
        the [TEA] to perform their legally authorized functions .... "

    17. Alphonso Crutch's charter contract states at paragraph 22: "To the extent required by the
        commissioner, Charterholder shall comply with the 'Student Attendance Accounting
        Handbook' . .. ." The Handbook is a comprehensive set of rules adopted by reference by
        the Commissioner at 19 T.A.C. § 129.1025.




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Findings of Fact and Conclusions of law and Conclusions of law                 D-1-GN-05-003667
    18. The Commissioner has the authority to audit a charter school's attendance and financial
        records. The Commissioner also has the authority to withhold funds if he finds that
        money has been overallocated.

    19. Alphonso Crutch did not maintain adequate attendance records.

    20. Alphonso Crutch's "sign-in" sheets did not verify attendance as required by TEA rule.

    21. In 2004 and 2005, after completing an audit of Alphonso Crutch's operations and
        records, TEA found that the School was overstating the number of students in attendance.

    22. The Commissioner did not accept sign-in sheets as records of attendance from any other
        school.

    23. The additional documents Alphonso Crutch wanted TEA to consider did not verify
        attendance as required by TEA.

    24. TEA determined that Alphonso Crutch had received an overallocation of FSP funds
        because of the overstated attendance figures .

    25. After conducting audits, investigations, and reviews of Alphonso Crutch' s attendance
        reporting, the Commissioner determined that Alphonso Crutch received overallocations
        of state funds on more than one occasion.

    26. TEA began withholding funds from its monthly payments to Alphonso Crutch to recover
        the overallocated state funds.

    27. Alphonso Crutch failed to file with the TEA the required audited financial statements for
        2007-2010.

    28. Alphonso Crutch ceased operations as a charter school in 2008.

    29. Alphonso Crutch' s charter contract was non-renewed on July 18, 2013 .

Equal Protection

    30. Alphonso Crutch failed to identify a similar situation in which the Commissioner
        accepted the type of documents that the Commissioner refused to accept from Alphonso
        Crutch in order to determine if there had been an overallocation of state funding.

    31. The Commissioner treated Alphonso Crutch the same as other schools receiving FSP
        funding.

    32. The Commissioner did not count Alphonso Crutch's attendance differently than it did
        other schools.
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Findings of Fact and Conclusions of Law and Conclusions of Law                D-1-GN-05-003667
    33. The Commissioner's treatment of Alphonso Crutch was not based upon racial bias.

    34. The Commissioner did not treat Alphonso Crutch less favorably because Alphonso
        Crutch has a predominantly African-American student body and faculty.

    35. Alphonso Crutch failed to provide sufficient evidence to show that Wimberley
        Independent School District is similarly situated to Alphonso Crutch with respect to its
        financial condition and attendance reporting issues.

    36. Wimberley Independent School District is not similarly situated to Alphonso Crutch with
        respect to Alphonso Crutch's financial condition and its attendance reporting issues.

    3 7. The Commissioner did not make a determination that Wimberley Independent School
        District had received an overallocation of FSP funds because it overstated FSP data.

    38. Alphonso Crutch failed to identify any other school or school district that was (1)
        similarly situated and (2) treated differently by the Commissioner because of race.

    39. Alphonso Crutch failed to provide sufficient evidence to show that the Commissioner
        treated any school that was similarly situated to Alphonso Crutch more favorably than
        Alphonso Crutch.

Ultra vires

    40. All of the Commissioner' s actions in this case with respect to handling attendance and
        funding issues are within his authority.

    41. Alphonso Crutch failed to identify a statute or regulation that the Commissioner violated.

    42. Alphonso Crutch has not shown that the Commissioner did not have the authority to
        determine that Alphonso Crutch received an overallocation of FSP funds.

    43. Alphonso Crutch did not present evidence of any action taken by the Commissioner that
        was unlawful.

    44. Alphonso Crutch did not present evidence of any action taken by the Commissioner
        outside of his statutory authority.

    45. Alphonso Crutch did not present evidence of any ministerial act that the Commissioner
        failed to perform.




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Findings of Fact and Conclusions of law and Conclusions of law                D-1-GN-05-003667
•


                                          CONCLUSIONS OF LAW

        1. All conclusions of law that would more appropriately be classified as findings of fact are
           hereby adopted as such.

    Equal Protection

        2. The Commissioner is entitled to judgment on Alphonso Crutch' s equal protection claim.

        3. Alphonso Crutch' s class of one equal protection claim fails because Alphonso Crutch
           failed to show disparate treatment.

        4. Alphonso Crutch failed to provide sufficient evidence to show that the Commissioner
           treated Alphonso Crutch differently because of race.

    Ultra Vires

        5. The Commissioner is entitled to judgment on Alphonso Crutch' s ultra vires claim.

        6. Alphonso Crutch's ultra vires claim fails because Alphonso Crutch did not prove that the
           Commissioner acted without constitutional or statutory authority or that he failed to
           perform a purely ministerial act required by statute.

        7. Merely showing that the Commissioner reached an incorrect result is not enough to
           overcome the Commissioner's immunity and sustain an ultra vires claim.

    Due Process/ Takings

        8. Alphonso Crutch's due process and takings claims have already been dismissed for lack
           of subject matter jurisdiction. Scott v. Alphonso Crutch LSC Charter School, Inc.
           ["Crutch II"], 392 S.W.3d 165, 171(Tex.App.-Austin2010, pet. denied).



            SIGNEDthis       'J/Jf       dayof    ~                  ' 2015.




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