      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00681-CV



                                    Timothy Maiden, Appellant

                                                   v.

                             The Texas Education Agency and
                  Cypress-Fairbanks Independent School District, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
        NO. GN304169, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Timothy Maiden sued the Texas Commissioner of Education (“Commissioner”) and

Cypress-Fairbanks Independent School District (“District”) for judicial review of the

Commissioner’s order dismissing his grievance against the District for lack of jurisdiction. The trial

court affirmed the Commissioner’s order of dismissal. Maiden asserts (1) the Commissioner had

jurisdiction over the allegations that the District violated state school laws, and (2) the Commissioner

had jurisdiction to enforce provisions of the federal Family Educational and Privacy Rights Act and

the Coverdell Teacher Protection Act of 2001.1 We will affirm the trial court’s judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

                Maiden’s five-year old son, T.M., was a kindergarten student at the District’s Wilson

Elementary School during the 2001-2002 school year. In August 2001 during the first week of


       1
        Because Maiden is a pro se litigant and his contentions are somewhat difficult to determine,
we have restated the substance of his arguments into two issues for analysis.
school, T.M. twice missed the school bus. Later that same month, T.M. was required to sign a

disciplinary form regarding his behavior on the bus, even though he could not read and his parents

were not present. After Maiden complained, campus officials, including the school’s principal, met

with him and attempted to resolve his concerns. However, he sent a grievance letter to the District’s

central administration expressing discontent with the school’s responses to the incidents.

                The District’s central administration investigated both incidents, held hearings, and

provided Maiden with its results and recommendations. Still dissatisfied, Maiden appealed to the

District’s board of trustees (“Board”), contending the central administration’s findings were incorrect

and T.M. should not have been required to sign a form he could not read. The Board denied

Maiden’s grievance.

                In a letter to the Commissioner filed in April 2002, Maiden requested the

Commissioner’s review of the “horrific ordeal” he had experienced “while communicating with

some of the [District] Officials.” He alleged that the evidence he was submitting, including a

student’s disciplinary form, a transcript of the administration’s grievance hearing, and an audio tape

of his meeting with the Board, showed that “many of the correspondences and conferences

(including the final Board Meeting with the [District’s] Board of Trustees and the [superintendent

of schools] was window dressing by the [District] Officials.” Maiden contended that the school

superintendent “purposely” did not attempt to answer many of his questions because the

superintendent knew that “truthful answers” would “further incriminate the District.” Maiden then

set out a detailed description of the events that gave rise to his letter appeal.

                The District filed a plea to the jurisdiction alleging that none of the allegations set

forth in Maiden’s letter asserted a claim within the Commissioner’s jurisdiction. An administrative



                                                   2
law judge (ALJ) was assigned to the matter, and she agreed with the District. The ALJ gave Maiden

an opportunity to “amend” his petition, and he submitted a document entitled “Petitioner’s Plea to

Jurisdiction and Relief” as his amended petition.

               After considering Maiden’s amended petition and the ALJ’s proposal for decision,

the Commissioner determined that none of Maiden’s allegations provided a basis for the

Commissioner to exercise jurisdiction over the case. The Commissioner concluded the amended

petition failed to allege a violation of the state’s school laws and he did not have jurisdiction over

allegations of violations of the federal Family Educational and Privacy Rights Act and the Paul D.

Coverdell Teacher Protection Act of 2001. Believing he lacked jurisdiction, the Commissioner

ordered Maiden’s appeal be dismissed. The trial court affirmed the Commissioner’s dismissal order.



                                           DISCUSSION

Standard of Review

               In general, when reviewing a judgment of the trial court regarding a factual

determination by the Commissioner, we conduct a substantial-evidence review.2 Tijerina v. Alanis,

80 S.W.3d 292, 294-95 (Tex. App.—Austin 2002, pet. denied). But in this case, the Commissioner

determined he had no jurisdiction based solely on his application of the statutes defining his

jurisdiction to the allegations set forth in Maiden’s amended petition. Although substantial-evidence


       2
         We must determine whether the evidence as a whole is such that reasonable minds could
have reached the same conclusion as the agency in the disputed action. Tijerina v. Alanis, 80 S.W.3d
292, 295 (Tex. App.—Austin 2002, pet. denied). We may not substitute our judgment for that of
the agency and may only consider the record on which the agency based its decision. Id. The
findings, inferences, conclusions, and decisions of an administrative agency are presumed to be
supported by substantial evidence, and the burden is on the contestant to prove otherwise. Id.

                                                  3
review may be appropriate when examining the Commissioner’s decisions based on evidence

relevant to jurisdiction, this Court must look elsewhere for guidance in reviewing the

Commissioner’s conclusion that he had no jurisdiction. Id. at 295.

               When reviewing a trial-court order dismissing a cause for lack of jurisdiction, we

construe the pleadings in favor of the plaintiff and look to the pleader’s intent. Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We have applied the same analysis

when reviewing the Commissioner’s orders to determine whether pleading allegations state a basis

for the Commissioner to exercise jurisdiction. Tijerina, 80 S.W.3d at 295. Accordingly, we will

construe Maiden’s pleadings in his favor and will look to his intent to determine whether his

pleadings state a basis for the Commissioner to exercise jurisdiction. However, we will defer to the

Commissioner’s interpretation of the statute and its application to the facts if the interpretation is

reasonable and does not contradict the plain language of the statute. See Dodd v. Meno, 870 S.W.2d

4, 7 (Tex. 1994); Tijerina, 80 S.W.3d at 295; see also Railroad Comm’n of Texas v. Texas Citizens

for a Safe Future & Clean Water, 54 Tex. Sup. Ct. J. 642, 2011 WL 836827 (March 11, 2011)

(No.08-0497) (agency’s interpretation of statute that agency is charged with enforcing is entitled to

“serious consideration” as long as construction is reasonable and does not conflict with statute’s

language).


Alleged Education Code Violations

               Maiden asserted the District violated state school laws that fall under the

Commissioner’s jurisdiction. The Commissioner’s jurisdiction to review school-board action is

limited to the following situations:



                                                  4
       (a)     . . . a person may appeal in writing to the commissioner if the person
               is aggrieved by:
                                         *      *       *
               (2)       actions or decisions of any school district board of
                         trustees that violate:

                       (A)     the school laws of this state; or

                       (B)     a provision of a written employment
                               contract between the school district
                               and a school district employee . . . .


Act of May 30, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2215 (current version

at Tex. Educ. Code Ann. § 7.057(a) (West Supp. 2010)).

               The District has a three-tiered parent complaint system. Level I complaints are filed

with and heard by the school campus. A parent can appeal the campus decision to the second level,

the District’s central administration. The Level II decision of the central administration can be

appealed to the third and final level, the Board.

                Maiden argued that, because his parental rights were not “properly adhered to,

exercised, or considered,” the District violated sections 26.001 and 26.011 of the education code.

See Tex. Educ. Code Ann. §§ 26.001, .011 (West 2006). He argued the District violated section

26.001, which sets forth the “Purpose” of chapter 26 entitled “Parental Rights and Responsibilities.”

Section 26.001 reads as follows:


       (a)     Parents are partners with educators, administrators, and school district
               boards of trustees in their children’s education. Parents shall be
               encouraged to actively participate in creating and implementing
               educational programs for their children.



                                                    5
       (b)      The rights listed in this chapter are not exclusive. This chapter does
                not limit a parent’s rights under other law.

       (c)      Unless otherwise provided by law, a board of trustees, administrator,
                educator, or other person may not limit parental rights.

       (d)      Each board of trustees shall provide for procedures to consider
                complaints that a parent’s right has been denied.

       (e)      Each board of trustees shall cooperate in the establishment of ongoing
                operations of at least one parent-teacher organization at each school
                in the district to promote parental involvement in school activities.


Id. § 26.00. The parental rights listed in chapter 26 include rights concerning academic programs,3

access to student records,4 access to state assessments,5 access to teaching methods,6 access to board

meetings,7 a right to full information concerning student activities,8 and a right to information

concerning special education and education of students with learning difficulties.9

                 Maiden alleged the District violated section 26.001(c) and (d) by upholding the

District’s Level II investigation of the incidents involving his son that was “faulty, inaccurate,

misleading, and misrepresenting.” See id. § 26.001. He contended he pointed out the associate-

superintendent’s “false statement” to the Board and the superintendent, but the Board and the


       3
           Tex. Educ. Code Ann. § 26.003 (West 2006).
       4
           Id. § 26.004 (West 2006).
       5
           Id. § 26.005 (West 2006).
       6
           Id. § 26.006 (West 2006).
       7
           Id. § 26.007 (West 2006).
       8
           Id. § 26.008 (West 2006).
       9
           Id. § 26.0081 (West 2006).

                                                  6
superintendent “remained motionless” and unresponsive. Also, he stated he told the Board that he

continues to receive false information from the District, but the Board “failed to properly address this

matter of a critical fact.”

                Maiden also asserted he was receiving from the District “consistent inconsistencies

in information” and that T.M. had been “targeted and misrepresented” because Maiden filed a

complaint against District officials. He alleged the superintendent of schools failed to properly

address those issues, thus allowing the principal “to create an unstable learning environment for T.M.

and other children attending Wilson Elementary School.” Maiden argued the District’s targeting and

creating an unsafe learning environment violated section 26.001. Id.

                Maiden further alleged the District failed to accurately follow its local grievance

policy by recording the Level II conference and his personal interview with the District’s central

administrators and then editing the recordings and transcripts of those meetings. He contended those

actions violated section 26.011, which requires a school district to adopt a grievance process that

allows parents to present their complaints to the school board. See id. § 26.011. Section 26.011

reads as follows:


        The board of trustees of each school district shall adopt a grievance process under
        which the board shall address each complaint that the board receives concerning
        violation of a right guaranteed by this chapter.

Id.
                We conclude that, even if true, the facts as alleged by Maiden are not violations of

sections 26.001 and 26.011. See id. §§ 26.001,.011. His allegations fail to demonstrate a violation

of his rights concerning his son’s academic programs, his access to his son’s records, his access to

state assessments, his access to teaching methods, his access to board meeting, and his access to full

                                                   7
information regarding his son’s activities, which are the parental rights addressed in chapter 26.

Moreover, Maiden’s allegations fail to demonstrate that, as required by section 26.011, the District

neglected to adopt a grievance process addressing each complaint that it receives concerning

violations of a right guaranteed by the education code. Rather, at most, his facts show that the

District allegedly conducted an inaccurate and misleading investigation of the events surrounding

his son’s missing the school bus on two occasions and that the District failed to accurately follow

its adopted local grievance policy.

               Maiden also claimed that the District’s conduct violated section 4.001(b)(5) and (7)

of the education code and that the Commissioner had jurisdiction over targeting and the creation of

an unsafe learning environment. At the time of Maiden’s appeal, Objectives 5 and 7 under

section 4.001(b), entitled “Public Education Mission and Objectives,” read as follows:


       Objective 5:    Qualified and highly effective personnel will be
                       provided to all students.

       Objective 7:    School campuses will maintain a safe and disciplined
                       environment conducive to student learning.


Act of May 30, 1995, 74th Leg., R.S., ch. 260, § 4.001(b), 1995 Tex. Gen. Laws 2207, 2208

(amended 2003) (current version at Tex. Educ. Code Ann. § 4.001(b) (West 2006)). We agree with

the Commissioner’s determination that, because section 4.001 provides only the mission statement

and objectives of public education, it does not set forth a cognizable cause of action that the

Commissioner can enforce. See id.

               In 2001-2002, Section 37.001(b) entitled “Student Code of Conduct” read, in

pertinent part, as follows:

                                                 8
                A teacher with knowledge that a student has violated the student code
                of conduct shall file with the school principal or other appropriate
                administrator a written report . . . documenting the violation. The
                principal or the other appropriate administrator shall, not later than 24
                hours after receipt of a report from a teacher, send a copy of the report
                to the student’s parents or guardians.


Act of June 19, 1997, 75th Leg., R.S., ch. 1015, § 2, 1997 Tex. Gen. Laws 3701, 3702 (amended

2003) (current version at Tex. Educ. Code Ann. § 37.001 (West Supp. 2010)). Maiden asserted the

District’s conduct in failing to notify him within 24 hours of an alleged third school bus disciplinary-

incident report violated both “the letter and spirit” of the 24-hour guideline of local school district

policy, as well as section 37.001(b) of the education code. See id.

                The Commissioner determined that Maiden’s complaints pertained to violations of

local school policy, that is, the District’s student handbook or code of conduct. We agree. This

Court has held that the Commissioner’s jurisdiction over grievances does not involve challenges to

local policies regarding matters of local discretion. Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d

827, 832 (Tex. App.—Austin 2006, pet. denied). Moreover, the Commissioner has no jurisdiction

over student disciplinary actions under chapter 37 of the education code. See Tex. Educ. Code Ann.

§ 7.057(e)(2) (West Supp. 2010).

                Concluding that Maiden’s amended petition failed to state a cognizable cause of

action, that is, it failed to set forth allegations that demonstrated the District violated state school

laws that fall within the Commissioner’s jurisdiction as required by current section 7.057(a), we

overrule Maiden’s first issue.



                                                   9
Alleged Federal Law Violations

               Maiden also alleged that certain of the District’s actions violated the Paul D.

Coverdell Teacher Protection Act of 2001. 20 U.S.C. §§ 6731 et seq. (2001). He further contended

the District’s conduct violated the Family Educational and Privacy Rights Act. See 20 U.S.C.

§ 1232g(a)(2) (2010). Titles I and II comprise the “school laws of the state” under the education

code. See Tex. Educ. Code Ann. § 7.057(f)(2) (West Supp. 2010). Because claims arising under

federal statutes are not within Titles I and II of the education code, the Commissioner lacked

authority to entertain them. See id.; Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653, 658-59 (Tex.

App.—Amarillo 2000, no pet.). Maiden’s second issue is overruled.


                                         CONCLUSION

               Having concluded the Commissioner properly determined that Maiden failed to allege

any violations of state school laws that fall within the Commissioner’s jurisdiction, we affirm the

trial court’s order dismissing Maiden’s grievance against the District.




                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: May 6, 2011




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