### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00249- CV

Laryn McCandless, Appellan t

v. P asadena In dependent S chool District and Rob ert

Scott, in his of

fi cial capacity as Com m ission er of Edu cation, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0365 6, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

L ary n McCandless sued the Commi ssioner of Educa tion (the “Commissi oner” ) and Pasadena I n d epende nt School District (“PI SD”) for judicial revie w of the Commi ssioner’s order dismiss ing her g rieva

nce agai n s t P I SD for lack of jurisdiction. McCandless also broug ht a common-law brea ch-of

-contra ct claim ag ainst PI SD. In two o rd er s , the trial court aff irmed the Commi ssioner of Educa tion’s dismiss al of McCandless’s administrative appea l and g rante d PI SD’s plea to the jurisdiction dismiss ing McCandless’s common-law brea ch-of -contra ct claim beca

use of g overnme ntal immunit y . I n three issues on appea l, McCandless asser ts that (1) the trial court err ed in aff irming the Commi ssioner’s order of dismiss al beca use the Commi ssioner had jurisdiction over her administrative appea l, (2) th e t ri al court err ed when it g rante d PI SD’s plea to the jurisdiction beca use McCandless pleade d a cause of action for which g overnme ntal immunit y was waived, and(3) the tr ial court e rre d when it de nied her reque st to rema nd the case to the Commi ssioner to take additional evidenc e. We will affir m the trial court’ s order s. Seeking to become a ce rt i fied teac her, McCandless enrolled in an alterna tive
teac her- cer

tification course throug h the Reg ion I V Ed u c a ti o n Se r v ic e Ce n te r ( “ Re g ion I V”) , a private third-par ty alternative teac her- cer

tification course provider licensed by the State Boa rd for Educa tor Certifica tion. As part of the cer tification proce ss, she worke d for PI SD as an “intern” on a one-y ear probationa ry co n t rac t. Reg ion I V reque sted McCandless’s principal’s opinion on McCandless’s perf ormanc e as part of its s t an dard proce dure for evalua ting a candida te’s qualifica tions for

cer tification. The principal re commended that McCandless re peat he r internship and be assig ned

1
to another school district. Be cause Reg ion I V’s policies require d a positive principal

rec ommendation and a continued offe r of employ ment befor e Reg ion I V wou ld rec ommend

cer tification of a candi d at e t o t h e S tate Board for Educator C ertification, Reg ion I V s ubsequently declined to rec ommend McCandless. McCandless claims that the principal acte d arbitra rily or capr iciously when she declined to rec ommend McCandless for cer tification and instead

rec ommended that she repe at the internship, and there fore the principal’s action was an abuse of

The form that the principal completed notes that “[c]riteria for rec omme n d at i o n [ o f a 1 candidate for cer

tification] is based u p o n co m p letion of sever al prog ram require ments, including rec ommendation by the intern’s principal.” The form allows a principal to s e le ct one of four options: (1) rec ommend the candida te for cer

tification and continued em p l o y m ent at that school, (2) rec ommend an additional one-y ear course an d c o n ti n u e d p r o b a tionary employ

ment at that school, (3) recommend that the candidate rece ive a “sec ond opportunity internship” in another district, or (4) not recommend the c andidate f or ce rtification and indicate that the ca ndidate’s employ

ment at the s chool wil l not be continued. McCandless’s principal selec ted t he thi rd opt ion, wr i t i n g in the comments section that “I fee l that a differ ent assig nment will aff ord [McCandless] opportunity for g rowth.” 2discretion. She fil ed a fi rst -leve l g rieva nce with the principal reque sting that the principal

rec ommend her for cer

tification, which the principal denied on the b as i s t hat the g rieva nce was untimely filed. McCandless then f iled second- and third-leve l g rieva nces with the s uperintende nt of schools and the school board, both of which wer e denied on the basis that her orig inal g rieva nce was untimely

filed. McCandless appea le d th e c a s e to the Commi ssioner, who noted that McCandless was improperly denied a hear ing at the school-district level to deter mine the timeliness of her g rieva nce filing. A s a penalty for PI SD’s failure to g rant a hear ing, the Commi ssioner construe d all fac ts as pleade d in favor of McCandless. Even doing so, howeve r, the Commi ssioner found that he had no jurisdiction to hear McCa ndless’s administrative appe al. The Commi ssio n er ’s j urisdiction to revie w school-boar d action is limit ed to the following situations:
[A] person may appea l in writing to the commissioner if the person is ag g rieve d by :

. . . . (2) a ctions or dec isions of a ny school district boa

rd of trustees that violate: (A) the school laws of this state; or (B ) a provision of a written employ ment contra ct be tw e e n the school district and a school district employ ee, if a violation ca u ses or would cause monetary

harm to the e mploy ee. Tex. Educ. Code Ann. § 7.057 (West 2006).

First, McCandless asser

ted to the Commi ss i o n er that the principal’s failure to

rec ommend her for cer

tification violated the “school laws of this state,” specific ally education code
3section 21.551, which is the “purpose s” section of the “Te ach for Texas Pilot Prog ram Relating to

Alterna tive Certifica tion.” Tex. Educ. Code Ann. § 21.551 (West 2006). This contention is without merit. That provision imposes no duties on the school board, the principal, or a private provider such

as Reg ion I V, nor does it confe r on McCandless any rig hts or privileg es. The provision mere ly sets forth, in g ener al terms, the g oals of the c ertification prog ram.

Second, McCandless asser ted that the Commi ssioner h as jurisdiction beca use she alleg ed a brea ch of section 20 of her employ ment contra ct with PI SD. The Commi ssioner noted that McCandless failed to brief this issue, and thus waived this contention. See 19 Tex. Admin. Code Ann. § 157.1058(c) (2009) (Tex. Educ. Agen cy , Hearing s and Appea ls) (issues waived if not briefe d). Even if we assume the contra ct claim was proper ly briefe d befor e the Commi ssioner, and there fore not waived, McCandless would not preva il. Section 20 of the employ ment contra ct states that McCandless’s employ ment is conditioned on satisfac tory participa tion in the Reg ion I V

cer tification prog ram and that failure to satisfac torily participa te shall con s t i tute g ood cause for termination. This provision does not confe r on McCandless the right to a favor able evalua tion from her supervising principal, but mere ly say s th at fa i lure to satisfac torily participa te—for whateve r

reas on—is g rounds for termination. I n any event, the rec ord shows that McCandless resig ned on Fe bruar y 10, 2005, eff

ective at the en d o f t he school y ear ; she was not fired nor could she have predic ated her resig nation on the principal’s unfavor able rec ommendation beca use the principal did
not issue her rec ommendation until April 29, 2005. Having no jurisdiction over M cC an d l ess’s appea l, the Commi ssioner proper ly dismiss ed her claims, and the trial court proper ly aff irmed the dismissal.

4I n the trial court, McCandless appende d a common-law brea ch-of -contra ct action ag ainst PI SD to her suit for judicial revie w of the Commi ssioner’s decision. PI SD alleg ed that g overnme ntal immunit y barr ed her claim and filed a plea t o t h e jurisdiction, which the trial court g rante d. McCandless asser ts t h at l o cal g overnme nt code section 271.152 waives PI SD’s g overnme ntal immunit y . Section 271.152 states:

A local g overnme ntal entity that is a uthorized by statute or the constitution to enter in t o a contra ct and that enter s into a contra ct subject to this subchapte r waives sovere ign immunit y to suit for the purpose of adjudicating a claim for brea ch of the contra ct, subject to the ter ms and conditions of this subchapter.

Tex. L oc. Gov’ t Code Ann. § 271.152 (West 2006).

G o v e r nme n ta l im

mu n it y d e p rives the trial court of subject-matter jurisdictio n in c a s e s wher e instrumentalities of the state have been sued, absent waiver of immunit y by the state. Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 224 (Tex. 2004). When revie wing a g rant

or denial of a plea to the jurisdiction, we consider the plaintiff’s pleading s, construed in favor of the p la in ti f f, and any evidenc e rele vant to jurisdiction without considering the merits of the claim be yo n d the extent necessa

ry to determine jurisdiction. Id. ; County of Cameron v. Brown , 80 S.W .3d 549, 555 (Tex

. 2 0 0 2 ). Plaintiff bear s the burden to aff irmatively demonstrate the trial court’s jurisdiction by alleg ing a valid waiver of immunit y , which may be either a ref ere nce to a statute or to express leg islative permission. Texas Dep’ t of Transp. v. Jones , 8 S.W .3d 636, 637 (Tex. 1999). I f the plaintiff’s pleading s “af firmatively neg ate the exis tence of jurisdiction,” then g ranting a plea
t o t he jurisdiction is proper without aff ording the plaintiff an opportunity to amend. Miranda , 133 S.W .3d at 227.
5McCan dless pleade d that she had a contra ct of employ ment with PI SD in which PI SD ag ree d to pay her salary for one y ear in exchang e for her work as an intern and satisfac tory participa tion in an alterna tive teac her- cer

tification prog ram. McCandless fur ther plea ded that she p er fo rm ed her “oblig ations by completing all of the require ments for the alternative cer tificati o n prog ram” and that “[PI SD] brea ched the contra ct by failing to rec ommend [her] for cert ification” afte r she completed the require ments. The contra ct at issue is unambig uous, so to deter mine the parties’ intent we construe the plain meaning of t h e wo rds. See Chrysler Ins. Co. v. Gree nspoint Dodge of Houston, Inc. , 297 S.W .3d 24 8 , 2 5 2 (T ex . 2009) (per curiam). After revie wing the
contra ct, we hold that McCandless’s pleading s and undisputed jurisdictional evidenc e aff irmatively neg ate the exis tence of

jurisdiction beca

use her employ

ment contra ct cannot be construed to require the school district or its principal to rec ommend McCandless fo r cer tification even assuming she perf ormed her duties adequately —the only conduct by PI SD that McCandless alleg es brea ched the
contra ct. McCandless’s pleade d jurisdictional fac ts, liberally construed in her favor in conjunction wi t h t h e undisputed evidenc e, there fore neg ate a brea ch of her employ ment contra ct. Wit hout a proper ly pleade d brea ch-of -contra ct action, s e c ti o n 2 7 1

. 1 5 2 d o e s n o t w a iv e g o v e r nmental immunit y . Be cause we hold that McCandless’s pleading s aff irmatively neg ated the exis tence of j urisd i ct i o n, the trial court did not err in g rantin g P I S D’s plea to the jurisdiction without aff ording her an opportunity

to amend. See M

iranda , 133 S.W .3d at 226-27. Finall y , M cC an dless complains that the trial court abused its discretion by not g ranting her motion to rema nd to the Commi ssioner to prese nt additional evidenc e.

6Secti o n 2 0 0 1

. 175(c) of the Administrative Procedur e Act g overns such a reque st. I t provides, in

pertinent pa

rt:

A party may apply to the court to prese nt additional evidenc e. I f the court is satisfied that the additional evid ence is materia l and that there wer e g ood rea sons for the failure to prese nt it in the proce eding befor e the state ag ency , the court may order that the additional evidenc e be taken before the ag ency on conditions deter mined by the cour t.

Tex. Gov’t Code Ann. § 2001.175(c) (West 2006). The evidenc e McCandless wished to include in the Commi ssioner’s rec ord consisted of documents that either (1) bore her signature, which means that she presumptively had knowledg e of their exis tence befor e the adm i n i s t rative proce eding , or (2) wer e contained in her PI SD personne l fi le, which was available to her at any time prior to the administrative proce eding by sending a reque st to PI SD under g overnme nt code section 552.102(a)

. See Tex. Gov’t Code Ann. § 552.102(a) (informa tion in personne l file of g overnme nt employ ee must be made available to that employ ee)

. Given McCandless’s appar ent knowledg e of and acc ess to the evidenc e befor e the ag ency proce eding s beg an, the trial court could rea sonably have deter mined that she did not have “g ood rea sons” for failing to present the e vidence ear lier. See id. § 2001.175(c)

. We there fore hold that the trial court did not abuse its discretion in denying McCandless’s reque st.

CONCLUSION Having overr

uled McCandles s ’s i s s ues on appea l, we aff irm both of the trial court’s or ders.

7__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: F ebrua

ry 17, 2010

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