### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00293- CV

De r r ic k E. P av e lka , A ppe lla nt

v. Texas Workforce Com m ission and City of Austin, T exas Aviation Depart m ent, Appellees

F ROM THE DISTRICT CO URT OF WILLI AMSO N COUNTY , 26TH JUDICIAL DISTRICT

NO. 04-5 43- C368, H ONO RAB LE BURT CARNES, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Der rick Pave lka asser

ts that the district cou rt err ed in conc luding that substantial
e vid e nc e s u

p p o r t s t h e T e xa s Wor

kf or c e Com mis sio n’ s ( the Com mis sio n) de c isi on de nyinghis c la im for une mploy

ment benef

its because he wa s terminated f or misconduct. Te x . L ab. Code Ann.§ 207.44(a ) (West 2006). In Dec ember 1994, Pavelka wa s arr ested for the unla wful ca rry ing of a w eapon in Da llas County
. See Tex. Pena l Code Ann. § 46.02(a) (West 2003)
. In April 1995, Pavelka’ s attorney enter ed a plea of no lo c on te nd e reon Pavelka’ s behalf, a nd the trial cour

t placed Pavelka on de fer

red a djudication community supervision for twe lve months. Pavelka wa s discharg ed fr om community supervision in April 1996. In Fe bruar y 2001, Pavelka wa s hired by the City of Austi n Av i ati on Depa rtment and a ssigne d to work at the loc al airpor t. The City ’s employ ment application included the following question: “Have y ou been c onvicted of a crime or h av e y o u pled nolo contendere o r b e e ng r an t e d

d e f e r r e d a d j u d i c a t i o nw i th i nth e l a s tt e ny e ar s ?” Despite his 1995 plea, on Pave lka’s application the “No” box is checke d in response to the que stion.2 When it was discovere d that Pavelka ha d re ce i v ed defe rre d adjudication, he w as terminated beca

use he was no long er a llowed to have une scorted a cce ss to the Security I dentification Display Are a at the a irport, a r equire ment for his job duties, and bec ause he falsified his employ ment application. Pavelka applied for unemploy ment benef

its. The Commi ssion denied his application ba se d o n it s d e te rm ination that Pave lka wa s d isc ha

rg e d f ro m hi s p os iti on

fo r f a lsi fy inghis employ ment appli ca t i o n , whi ch constitutes misconduct under the Act. SeeTex. L ab. Code An n . § 2 0 1
. 0 1 2 ( W e s t 2 0 0 6 ). P av el k a, ap p ea ri n g pr o s e , soug ht reviewof the Commission’s de c isi on in d istri c t court
. Pave lka argue d th a t he did no t c he c k th e “ No ” bo x an d, a lte rn a tiv e ly , if he did, he did not under stand the response to be false at the time beca use he w as unaw are of the fa ct that he had be en plac ed on def err ed adjudica

tion. The d i s t ri ct court affirmed the Commi ssion’s decision, and Pavelka appe als from that judg ment. Be cause Pavelka f ailed to establish that the Commi ssion’s decision was not supported by substant i al evidenc e, we aff irm the district court’s jud g me nt.
BACK GR OUND

Af te r t he Se pte mbe r 1 1, 20 01 te rr or ist a tta c ks , th e Tr ans po rt a tio n Se c ur ity Administration (TSA) issued regulations requiringcriminal hi story rec ord checks on all employ ees havingunescor

ted ac ce s s t o secur ed ar eas of any airport in the United States. The regulations prohibit the employ

ment of “individuals who have unescor ted access to aircra ft or a se cure d are a of an air port when a

n individual has a cr iminal conviction (or findingof not g u i l t y b y re as o n of insanity) for

a disqualifying of

fense in the previous ten- y ear period.” I n an ef

fo rt to assist airport3

pe rs on nel and

“ to e ns ur e un if

or mity in t he a dju dic a tio n o f b a c kg ro un d c he c ks fo r a ir po rt and a ir
car rier worke rs,” TSA prepa

red a document entitled “L eg al Guidanc e on Criminal History Records Checks.” I

n the document, TSA took the position that “a c onviction means any finding of g uilt, plea of guilty , plea of no lo c on te nd e re , or findingof not g uilty by rea son of insanity .” On De cembe r 19, 2001, the City

of Austin sent a memora

ndum to a ll Aviation Depar tment employ ees infor

ming them of TSA’s new

regulations and reque sting that the e mploy ees se lf-re port whethe r they had bee n “convic ted or found not guilty by rea son of insan i t y o f a ‘disqualifying c riminal offe nse.’” The
un lawf ul p os se ssi on

of a we a po n w a s li ste d a s a

dis qu a lif yingof fe ns e , b ut t

he City did no t c ir c ulate the l ega l g uidance document to its employ ees or explain that a plea of no lo c on te nd e rewas
c on sid e re d a

c on vic tio n. Pave lka

did no t make a

re po rt
. L ieutenant Tim Schroe der chec ked P avelka ’s cr iminal hist ory . I n Dec ember 2002, Pavelka’ s first criminal history background che ck ca

me bac k neg ative. Howe ver, in Sep tember 2003, a sec ond criminal bac kg round che ck re veale d t h at P av elka ha d been pla ced on de fer red adjudication community

supervision for the unlawfu l ca rr y i n g of a w eapon in 1995. Relying on TSA’s leg al guidance document, L ieutenant Schr oeder conclude d that Pavelka ha d been c onvicted of a dis qu a lif yingof fe ns e wi thi n th e pr e v i o u s t e n- y e ar p e ri od and no tif ie d Pave lka ’s su

pe rv iso r, Patti Edwar ds, that Pavel k a wa s no longe r elig ible for une scorted a cce ss privileg es at the a irport. Edwa rds met with Pavelka in a

n eff ort to f ind a differ ent position for him, but t here was no available position that did not require une scorted a cce ss privileg es. At that time, Edwar ds also pulled Pavelka’ s job applicat i o n and dis cover ed that he ha d chec ked the “No” box in response to the question asking whether he had been gr anted defer red adjudication within the l ast ten y ear s. Ultimately , Pavelka wa s4

terminated from his position at the Aviation Depa rtment beca

use he falsified his em p l oy ment
a pp lic a tio n a

nd be c a us e he wa s un a

ble to pe rf

or m his dutie s wi tho ut un e sc or te d a c c e ss p ri vil e g e s. Pavelka ap p ea l edh i s t erm i n at i o nt o th e C i ty ’s gri ev an ce co m m i t t ee and a hearing w as h el d i nNo v em b er

2 0 0 3
. T h e h ea ri n g o ff

i ce r, Fr ed er i ckAh re n s , m ad e t h e f o l l o wi n g fi n d i n g: [P avelka ] gave cre dible testimony at the hea

ring that he believe d the Court Orde r Dismissin g th e [un la

w f u l c ar r yin g o f a w e a p o n ] c h ar g e w ip e d

h is r e c o r d

c le an. There fore when he filled out his employ ment application he did not have a defe rre d adjudication or a

plea of no lo c on te nd

e re . After revie wing Ahre ns’s repor t, the C ity ’s grieva

nce committee rec ommended that “the de cision to terminate De rrick Pave lka be r ever sed.” The gr ievanc e committee r ecommende d further that Pavelka be reinstated to a simil ar position in another depar tment. Despite the g rieva

nce c ommitt ee’ s
rec ommendation, the City deter mined that the dec ision to t erminate Pavelka’ s employ ment was appropr iate. After

his termi n at i o n, Pavelka a pplied for une mploy

ment benef

its, but t he Commi ssion denied his appl ication, saying that he was te rminated for falsifying his e mploy

ment application. Pavelka

appea led this de cision to the Commi ssion’s appea l tribunal and hea ring s were held in November and Dec ember 2003. The hear ing office r issued finding s of fa ct and c onclusions of law. She fo un d that Pave lka wa s not aw are that he ha d b e e n p la c e d o n d e fe rr e d a dju dic a tio n in 19 95 . Sh e fo un d fur

the r that Pave lka “ ne ve r re c e ive d any of fi c ia l c ourt

do c ume nts and

tho ug ht a ll char g es had be en dismissed prior to the time he a pplied for wor

k” at the City . Neve rtheless, the he ari ngof

fi c e r c on c lud e d that Pave lka ’s te sti mony e sta bli sh e d th a t he wa s a

wa re of the fa c t th a t hi s attorney had ente red a

plea of n o lo c o n te n dere o n h is behalf a nd that he wa s require d to perfor mAfter his tria l, Pave lka rec eived sever al documents and has submitted them to this Court 1 for r eview. We c annot re ly on these doc uments beca use they have not be en p roper ly filed. Howeve r, in the intere st of justice, we ha ve re viewed the documents. Essentially , the documents c an be divided into t h re e ca t ego ri es. F irst, there is a se ries of e -mails conce rning a dispute betwe en Pavelka a nd another

employ ee. T here is nothing in any of these e -mails reg arding whether or not Pavelka committed misconduc t by falsify ing his a pplication. The sec ond cate g ory includes copie s of do c u me n ts f

r o m t h e D a ll a s Co u n ty

c le r k ’ s o f f ic e r e lati n g to th e d is p o s it io no f th e unlawful car rying of a wea pon char g e. Specif

ically , there is a copy

of the nolo contendere plea that is sig ned by Pavelka a

nd a copy of t he deferr ed adjudication judgme nt. The thi rd categ ory is comprised of a series of article s discussing de fer

red a djudication.

5 community

service . There fore , she conclude d that Pavelka falsified his e mploy ment application and that this act constituted misconduct u n d er t h e Texas Unemploy ment Compensation Act. Id
. Be cause she conc luded that Pavelka w as terminate d for mis conduct, she deter mined that he wa s not eli g ible for be nefits under the Act. Se e id . § 207.044(a) . The Commission affirmed the a ppeal tribunal’s dec ision denying Pave lka unemploy ment benef

its. Pavelka f ile d s u i tch al l en gi n g t h e C o m m i s s i o n’s deter mination that he was discha rg ed for misconduc t. Se e id
. § 212.201(a) (West 2006)
. A trial was held in Ma rch 2005. T h e d istrict court he ard te stimony from P avelka , Edwar ds, and L ieutenant Schr oeder . Pavelka maintaine d that when he filled out his employ ment applicatio n he wa s not awar e that he ha d previously enter ed a plea of no lo c on te nd

e reand bee n place d on defe rre d adjudi cation. Pavelka testified that he wa s
un a ble to o bta in a

ny of fi c ia l c ourt

do c ume nts fr om t

he Da lla s County tr ia l c ourt re g ard inghis arr e st, p lea of no lo c on te nd

e re , an d d e f e r r e d a d ju d ic a ti o n . Ina d d it io n , a c o p y o f th e Co mmissi on’s 1 administrative rec ord was admitted for the district c ourt’s consideration. The d i s t ri ct co urt conclude d that the Commi ssion’s de cision was supported by substantial evidence and af firmed the Commi ssion’s denial of une mploy ment benef

its to P avelka
.6 DI SCU SSIO N Misconduct Pavelka claims that the district c ourt err ed by aff irming the Commi ssion’s decision that he was discharg ed for misconduct beca use there was no evidenc e that he intentionally falsified his employ

ment application as r equire d by section 201.012 of the A ct. Se e id . § 201.012. J udicial re view of the C ommissi on’s dec isions on unemploy ment benef

its is by trial de novo under

the substantial evidenc e standa rd. Se e id
. § 2 1 2 .202(a) (West 2006). A de novo revie w of a

Commi ssion decision require s the revie wing court to dete rmine whe ther the Commi ssion’s decision is supported by substantial evidence
. Me rc e r v . R os s , 701 S.W .2d 830, 831 (Tex. 1986). Reviewingcourts ar e not bound by , nor do they revie w, t he C ommissi on’s finding s of fac t. See Hernande

z v. Texas W

orkforce Comm ’n , 1 8 S. W.3 d 6 78 , 6 81 (T e x. Ap p. —Sa n A nto nio 2000, no pet.). The revie wing court deter mines whether the evidenc e introduce d at the trial de novo shows fa ct s in ex istence at the time of the Commissi on’s dec ision that reasona bly support the decision. Col lin gs wor th G e n. Ho sp . v . H un nic utt , 988 S.W .2d 706, 708 (Tex. 1998). The re viewing court’s r uling must b e b ased on the evidenc e admitted at the tr ial de novo—not the evide nce prese nted at the Commi ssion he aring
. Nuernberg v. Texas Employment Comm’n , 858 S.W .2d 364, 36 5 ( Te x. 19 93 ) ( pe r c ur iam) ; Merc er , 701 S.W .2d at 831.

The Commission’s decision carr ies a pre sumption of validity , and the party seeking to set it aside has the burde n of showing that it was not supported by substantial evidence
. Merc er , 701 S.W .2d at 831. Although substantial evidence is more than a me re sc intill a, the e vidence in the
re cord may

a c tua lly pr e po nd e rate a g a ins t th e a g e nc y ’s de c isi on and no ne the le ss a

mou nt t o substantial evidence
. See State v . Public Util. Comm’n , 883 S.W. 2d 19 0, 20 4 (T e x. 19 94 ). Whil e7

the cour t will hear a

nd consider e vidence to determine whether rea sonable support for the a g ency ’s order exis ts, the ag ency

rema ins the primary

fac t-finding body , and the que stion for the district court is strictly one of la w. Firemen’

s & Policeme n’s Civil Serv. Comm’n v . Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984). The c halleng ing pa rty must there fore produce evidenc e that conclusively neg ates all rea sonable support for the ag ency ’s dec ision, on any possible gr ound. Id . Thus, the re viewing court may set aside a

n ag ency ’s dec ision only

if it finds that the decision was made without reg ard to the law or the fac ts and was ther efor e unre asonable , arbitra ry , or ca pricious. Merc er , 701 S.W .2d at 831. Th e Ci ty

and the Com mis sio n a

rgue d th a t Pave lka

c omm itt e d mi sc on du c t be c a us e he fa lsi fi e d h is e mpl oy

me nt ap pli c a tio n whe n he mark e d “N o” in r e sp on se to a qu e sti on sp e c if ic a lly asking whether

he had ple aded nolo contendere or had been g rante d defe rre d adjudication within the last ten y ear s. Termination for misconduct disqualifies an individual f rom rec eiving unemploy

ment benef its under the Ac t. See Te x. L a b. Cod e Ann. § 2 07 .0 44 ; Kellum v. Texas W orkforce Comm ’n , 188 S.W .3d 411, 413 (Tex. App.—Dallas 2006, no pe t.). Misconduct is specific ally define d by the Act to mean: [M] ismanag ement of a

position of employ

ment by acti o n o r i n action, neg lect that jeopar dizes the l ife or proper ty of another, intentional wrong doing or malfea sance , intentional violation of the law, or violation of a policy or rule a dopted to ensure the or de rl y wo rk and sa fe ty of e mpl oy e e s.
See Tex. L ab. Code Ann. § 201.012. To be disqualified f rom rec eiving benef

its, the alleg ed ac t of misconduct must f

it within this statutory definition. Se e Hu nn ic utt , 9 88 S.W. 2d a t 70 9; Kellum , 188 S.W .3d at 413-14.Al tho ug h th e c op y of Pave lka ’s a

pp lic a tio n clearl y sh ow s th e “ No ” bo x is ma rk e d in 2 response to the q u est ion, Pavelka cla ims that he did not actually answe r the que stion and that someone for g ed his application at some later date. In rea chingits d ec i s i o n, the Commiss ion impliedly resolved this fa ctual dispute ag ainst Pavelka. See F iremen’ s & P o liceme n’s Civil Serv. Comm’n v. B rinkmey er , 662 S.W. 2d 95 3, 95 6 ( Te x. 19 84 ) ( statin g tha t Co mmi ssi on

is p ri mary

fa c tfinding body

). At the district c ourt, Pavelka prese nted no evidenc e, other than his own a lleg ation, to support his claim. There fore , we hold that he did not demonstrate that the Commission’s impl ied finding was not supported by substantial evidence
.

8 At tr ia l, P ave lka

argue d th a t he did

no t f als ify his e mpl oy

me nt a pp lic a tio n, e ve n if he did a nswer the question incorre ctly , beca use he did not intend to answ er dishonestly or dec eive the City
. Pavelka testified that he was awa re that he was char g ed in 1994 for the unlaw ful ca rry ing 2 of a we a po n. He te sti fi e d f

ur the r t hat he re me mbe re d b e ingpla c e d o n tw e lve months ’ c omm un ity
su pe rv isi on and tha t he pa id a fi ne , b ut t hat de fe rr e d a dju dic a tio n wa s ne ve r m e nti on e d. Pave lka a lso stated that he did not attend the he aringat which his lawyer e ntere d a plea of no lo c on te nd

e re on his be ha lf . H e e xpla ine d th a t hi s la

wye r i nf or me d him that if h e su c c e ssf ull y c omp le te d h is c omm

un ity supervision there would be no re cord of the offe nse. Thus, Pavelka maintaine d that, at the time he completed his employ

ment application, he be lieved eve ry thing r elatingto the 1994 char g e had be en dismiss ed whe n he wa s discharg ed fr om community supervision in 1996. We note that the order disch ar gi n g Pavelka f

rom community

supervision is entitled “Orde r Dismissing De fer red Procee dings.” The a dminist rative r ecor d includes f i n dings issued by

the City ’s g rieva

nce he aring
o f f i c e r an d f i n d i n g s o f f

a c t i s s u e d b y th e C o m m i s s i o n ’ s a p p e a l tr i b un a l ’ s h e ar i n g o f f i c e r. Th e se finding s indicate that e vidence introduced at those hear ings established that Pavelka w as not awa reWe note that it was improper for the district c ourt to a dmit the entire administrative re cord 3 as a single piece of evide nce. Nuernberg v. Tex as Employme nt Comm’n , 8 5 8 S. W. 2 d 3 6 4 , 3 6 5 ( T e x. 1993) (pe r cur iam) (pr oviding that district cour t may not reviewad m i n i s t rative r ecor d by itself; howeve r, individual items from administrative record may be int roduce d at trial, but they must be introduced inde pendently and pursua

nt to the rules of e vidence ). Howeve r, whe n the administrative rec ord wa s offe red into evide nce a t trial, Pavelka did not object. In ord er to pre serve err or for a pp e llate re vie w, a

pa rt y mus t pr e se nt t o th e tr ia l c ourt a tim e ly re qu e st, ob

je c tio n, or mot ion , s tate the sp e c if ic g ro un ds the re fo r, and

ob ta in a ru lin g . T e x. R. A

pp . P. 33 .1 ; Clark v. Trailw ays, Inc

. , 774 S.W .2d 644, 647 (Tex. 1989). By failing to obje ct to evidence offe red at trial, a par ty waives a ny complaint about the admissibility of the e vidence
. Se e Cla rk, 774 S.W .2d at 647. T h er ef o re, Pavelka wa ived any

complaint reg ardingthe admission of the administrative re cord.
9 that he had be en plac ed on def err ed adjudication. Ho we v er , these finding s are not competent 3 evidenc e in a tria l de novo. See Hernande z , 1 8 S
. W
. 3 d

a t6 8 1 ( r e v i e w i n g c o urt s ar e n o tb o un d b y, nor do they

revie w, Commiss ion’s finding s of fa ct); Levelland Indep. Sch. Dist. v . Contreras , 865 S.W .2d 474, 476 (Tex. App.—Amarillo 1993, writ denied)
. “If t h e fa ct finding s of the [C ommissi on] were .
. . proof of their own truth in a trial de novo, the substantial evidenc e re view
wou ld be me anin g le ss b e c a us e the [Comm iss ion ] co uld bo ots tr a p it se lf to s ub sta nti a l e vid e nc e in
ever y case mere ly

by finding what it neede d to prove.” Levelland , 8 6 5 S
. W
. 2 d at4 7 6 (q u o t i n g Ma ry Lee Found. v . Texas Employm ent Comm’n , 817 S.W .2d 725, 727 (Tex. App.—Texarkana 1991, no writ)). The rec ord conta ins no other evidenc e supportingPavelka’ s claims.

I t is clear f

rom the re cord that Pavelka has c onsistently claimed that at the time he filled out his application he was not a war e that his la

wy er had enter ed a plea of no lo c on te nd e reon his behalf or that he had be en plac ed on def err ed adjudication community supervision. Howe ver, the Commiss ion determined that despit e P avelka’s claims, his knowledg e of the fac ts that he was place d on community supervision for twelve m onths and was r equire d to pay a fine as a r esult of the10

1994 char g e for

unlawful possession of a

wea pon wer e suff

icient to apprise Pave lka that he ha d been place d on defe rre d adjudication. Whether Pavelka was awa re that his la

wy er had enter ed a plea of

no lo c on te nd

e reon his be ha lf

or that he had been pla c e d o n d e fe rr e d a dju dic a tio n c omm un ity
su pe rv isi on is a qu e sti on

of fa c t th a t th e Commis sio n, a s th e pr ima ry fa c t- fi nd e r, re so lve d a g a ins t Pavelka. See H

ernandez , 18 S.W .3d at 681 (Commission i s primary fac t -f i n ding body , and revie wing court may

not substit ute its judgment for that of Commissi on on controve rted issues of fac t). The district cour

t affir med the C o m m i s s i o n ’s decision. Other than his own testimony repe ating his earlier

asser tions that he lacke d the re quisite knowledg e to fa lsify his application, Pavelka pr esente d no evidenc e to the district cour t establishing that the Commi ssion’s decision was
unrea sonable, a

rbitrar y , or ca pricious. See M

erce r , 701 S.W .2d at 831. B eca use the Commission’s decision ca

rries the presumption of validity , Pavelka did not meet his burden of demonstratingthat the dec ision was not supported by substantial evidence
. Se e id
.

Im proper evidence

Pavelka a lso avers that the district court’s judg ment was improper ly base d on the taped r ecor ding of

the appe al tribunal’s tele phone hea ring . Pavelka’ s argument i s based on the appea l tribunal’s hea

ring office r’s wr itten conclusions, stating that Pavelka’s testimony duringthe telephone he aring established that he was awa re of the fact that his lawy er had enter ed a ple a of no lo

c on te nd e reon his behalf. Pavelka insists that he neve r made such an a ssertion. Althoug h the re cord does include the hear ing office r’s written finding s of fa ct and c onclusions of law, ne ither the tape d
re c ordi ng of

the he ari ngno r a

wr itt e n tr ans c ri pt w e re a dmi tte d into e vid e nc e a t th e dis tr ic t c ourt
. I n a dd it io n, the dis tr ic t c ourt wa s n ot a

uth or ize d to se t a sid e the Commis sio n’ s d e c isi on me re ly11

beca u se the he aringoffice r’s a ccount of Pavelka’ s testimony

conflicte d with Pavelka’s tria l testimony
. Se e id
. Consequently , we hold that the district court did not improperly rely on the taped
re co rd i n g o f t h e ap p ea l t ri b u n al ’s t el ep h o n e h ea ri n g.

P r oc e dur al d ue pr oc e ss

Pavelka c ontends that he wa s d enied pr ocedur al due pr ocess be cause he wa s not allowed to c onfront the appea l tr ibunal’s hear ing office r or call other witnesses duringhis trial at the district court. Pavelka

also claims that he never had the opportunity (1) to fa irly

prese nt his evidence beca use it arr ived too late or ( 2 ) t o challeng e the e vidence prese nted by the City and the Commi ssion. Du e pr oc e ss at a min im um requi re s n oti c e and an o pp or

tun ity to b e he ard

a t a meaning ful time and in a mea ningf ul manner. Texas W

orkers’ Comp. Comm’n v. Patient Advoc ates , 136 S.W .3d 643, 658 (Tex. 2004). Our re v i ew o f the re porter’ s rec ord re veals no instance wher e Pavelka’ s attempt to call a witness was denied by the district court. F urthermor e, Pavelka was g iven the rig ht to produce evidenc e and cross-e x amine witnesses during his tria l at the district court. See Pe rry v . D e l R io , 67 S.W .3d 85, 92 (Tex. 2001) (rig ht to be hear d assure s full hear ing befor e cour t havingjurisdiction over matter, rig ht to introduce evide nce a t meaning ful time and in meaning ful
manner , as we ll as rig ht to cross-examine witnesses, produc e witnesses, a nd be hea rd on questions of law) . Finally , Pavelka c laims that he was de p ri v ed o f t h e opportunity to present e vidence that exis ted at the time of the Commi ssion’s de cision beca use he was unable to obta in it prior to his trial at the district cour

t. Whi le Pavelka’ s pleading s state that he attempted to obtain this evidence, he did n o t at an y p o i n t inform the district cour t as to what this evidence would show or how it wasAs discussed pre viously , Pavelka r ece ived s ever al documents afte r his trial conc luded and 4 submitt ed them to this C ourt for r eview. I n the intere st of justice, we r eviewe d the documents. Af ter re vie wi ngthe do c ume nts , w e c on c lud e that e ve n if the d ist ri c t c ourt imp ro pe rl y

e xclu de d th is evidenc e, Pavelka

was not har

med bec ause the evidenc e wa s either irr elevant or would have de mon str a te d that he wa s, in fa c t, inf or me d that he be e n pla c e d on de fe rr e d a dju dic a tio n a nd that hi s attorney had ente red a

plea of no lo c on te nd

e reon his behalf. SeeTex. R. App. P . 44.1. 12 re le va nt t o his c a se . N or

did Pave lka de mon str a te that he ava ile d h ims e lf of any of the ava ila

ble discovery proce dures. Acc ording ly , we hold that the district cour t did not deny

Pavelka pr ocedur al 4 du e pr oc e ss.

CO NC LU SION

Be cause we hold that Pavelka failed to de monstrate to t h e d istrict court that the Commi ssion’s decision was not supported by sub s t an tial evidence , we a ffirm the district c ourt’s jud g me nt.

Be a Ann Smith, J ustice Be fore J ustices B . A. Smith, P ury ear and Waldrop Affir med Filed: Oc tober 3, 2006