### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00377
- CV

Angela Davis, as President of NEA
- Dallas (a Local Affiliate of Texas State Teachers Association), on behalf of All Affected Members and Named Individuals, Appellant

v. Mike Morath , Commissioner of Education of The State of Texas , and Dallas Independent School District, A Public Body Corporate, Appellee s

FROM THE 345TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 002145 , THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

O P I N I O N

T his is an appeal from a judgment in a suit for judicial review of an administrative decision by the Texas Commissioner of Education

. Appellants are teachers employed with the
D allas Independent School District (DISD) du ring the 2014

- 15 and 2015

- 16 school years . The y f iled a collective grievance challenging their appraisals under DISD’s newly adopted teacher

appraisal system , and the Commissioner dismissed the Teachers’ grievance f or lack of jurisdiction. A ngela Davis , the President of NEA

- Dall a s ( a local a ffiliate of the Texas State Teachers Association ) , then filed suit for a ll a ffected m embers and n amed i ndividuals (Teachers) against the Texas Commissioner of Education Mike Morath (Commissioner) and DISD

. The district court affirm ed the Comm i ssioner ’s dismissal , and the Teachers appealed.2 In three issues, the Teachers contend that the district court erred in affirming the Commissioner’ s decision because : (1) the Commissioner incorrectly determined that the Teachers’ grievance was untimely; (2 ) the Commissioner incorrectly refused to consider and rule

on the Teachers’ allegations that DISD violated Texas teacher

- appraisal law s when he dismissed the Teachers’ appraisal grievance as untimely ; and (3) the Commissioner incorrectly determined that d e creasing the T eachers’ salary after the start of the school year did not violate Texas law

. For the reasons that follow, w e conclude that the district court’s judgment should be affirm ed in part and reversed and remanded in part.

BACKGROUND The Texas Edu c a tion Code requires all teachers to be appraised. Tex. Educ. Code § 21.352( c ). While most Texas school districts use the teacher

- appraisal process and criteria developed by the Commissi oner , s chool districts may develop and use their own

. Id

. § 21. 352( a ) (2). Any d istrict

- developed appraisal process and criteria “must be based on observable, job

- related behavior, ” including two components : “ (1) teachers’ implementation of discipline management procedures; and (2) the performance of teachers’ students

. ” I d

. § 21.351. Here, DISD adopted its own teacher

- appraisal system in 2014 called the Teacher Excellence Initiative (TEI) . O n September 18, 2015, under its new TEI appraisal process, DISD issued a “Teacher Evaluation Scorecard” to teachers

. The Scorecard s issued weighted points to three e valuation c omponents : (1) Teacher Performance ; (2) Student Experience , and (3) Student Achievement

. The Student Achievement component include d students’ p erformance on standardized tests , such as the S tate of Texas Asses s m ent of Academic Readiness (S TAAR ) ,3 which was not a vailable until after the 2014

- 15 school year ended

. The record contains a sample Scorecard:4 A fter the students’ standardized test scores were disclosed in the summer , DISD weight ed the scores for each o f the three teacher

- evaluation components and translat ed those weighted scores into a range of points within seven categories of Evaluation Ratings:
U nsatisfactory, Progressing I, Progressing II, Proficient, Proficient II, Proficient III, and Exemplary. U s ing a predetermined set of percentages called a “target distribution,” DISD defin es what proportion of scores will be assigned to each category. Th e target distribution for
E valuation R atings is set to designate 3% of teachers as Unsatisfactory, 12% of t e achers as Progressing I, 25% of teachers as Progressing II, 40% of teachers as Proficient I, 12% of teachers as Proficient II, 6% of teachers as Proficient III, and 2% of teachers as Exemplary. The sum of points from all three evaluation components is l i s ted on a Scorecard for the first time as a teacher’s numerical Evaluation Score. The Scorecards , also for the first time , notified teachers of their designated Effectiveness Level, which correlated with compensation increases under TEI’s pay

- for

perfor m a n ce model and determine d the salary that the teacher would receive for the 2015

- 16 school year. Effectiveness Levels are designed to provide context for a teacher’ s evaluation
scores over a two

- year period, but because TEI was newly implemented in 2015, o n ly one year of information w as to be considered for a teacher’s Effectiveness Level in the first Scorecard. Also during the first year of implementation, certain TEI rules limited the highest Effectiveness Level category that some teachers could atta i n
. 1

1 F o r example, teachers with j ust one year of exper ience were to be classified as Progressing I, teachers with less than three years’ experie nce could not be classified as Proficient I, and teachers with three o r more years’ ex perience who did n ot complete a D istinguished Teacher Revi e w process could not be classified higher than Proficient I.5 On October 2, 2015, within ten district

- business days of receiving their Scorecards, the Teachers f iled a grievance with DISD alleging that “each of the Scorecards [was]” : unwarranted and unjustified , without factual basis or merit , based upon imprope r cr i teri a including unreliable District

- promulgated standardized test scores , based on other unreliable data , violat ive of each t eacher’s right to due process , viol a t ive of Texas s chool l aws , detrimental to the teachers by undermin ing and impair ing their e ffe c tiveness , conducted in an improper and unlawful manner , and arbitrary, capricious, demeaning, and unprofessional

. Based on those stated complaints about the Scorecards, t he Teachers further a lleged that “the entire TEI instrument and process as a who l e i s inequitable, arbitrary, capricious, subjective, and unlawful” and that the TEI instrument and process have a disparate negative impact on more experienced teachers and new teachers

. T he Teachers also contended specifically that

• under the TEI syste m , te a cher s are not given a final evaluation during the appraisal school year ; rather, teacher s receive this info rm ation only after the school year en d s ;

• calculation of the Student Achievement section of the Scorecard, which is based on a three

- matrix fo r mula , is not provided to teachers, thus, they w ere evaluated on information not provided to them in a timely manner or at all ;

• calculation of the Scorecard was influenced by other unknown factors , including formulae that are arbitrary and capricious ; an d

• th e resulting effect on each Grievant’s compensation constitutes a breach of the Grievant’s contract of employment and/or an unlawful demotion without due process of law which has caused and will continue to cause the Grievant monetary harm

. The Teach e rs f i led an amended grievance on October 14, 2015 , contending additionally that

“ TEI wrongfully attempts to circumvent the teacher ’ s right to rebut documentation and the right
to file a grievance ” ; that “ DISD has created a moving target, changing the metr i cs f o r bonus to6 stay w ithin a defined budget which wrongfully deprives qualified teachers of increases in pay ” ; and that “ no teachers received cost

- of

- living increases. ” The Teachers had two administrative grievance hearings

. During the initial heari n g bef o re DISD’s hearing officer , DISD’s counsel admitted, “Their grievance is timely as to their overall effectiveness level. The District concedes that.” However, t he hearing officer ’s decision letter made no reference to DISD’s concession about the ti m e line s s of such grievance , and appellees fail to discuss the concession

. The hearing officer found that two individua ls were not proper parties to the Teachers’ grievance and that the Teachers’ requested relief should be denied in part and grant ed
in pa r t

. T h e hearing officer granted the Teachers’ request that they would not suffer any retaliation for filing the grievance but denied all their remaining substantive requests : (1) to have the Scorecards rescinded, removed, or revised; (2) to make t he docum e nt s, i n formation, and formula calculation used in the final evaluation “fair and equitable” to all teachers ; (3) for an investigation into the efficacy and fairness of the TEI system ; and (4) for DISD to return to the prior teacher

- appraisal system known a s Prof e ssional Development and Appraisal System (PDAS) during that investigation

. T he hearing officer concluded that “[t]he student achievement metrics and target distribution are not arbitrary, capricious, in bad faith, or in violation of District polic y , stat e or federal law” and stated, “T o the extent that the Grievants complain of decisions or actions of Dallas ISD that were known, or should have been known, to them prior to September 18, 2015 [the date they received the ir Scorecards] , ” their “ grievan c e is d e nied and dismissed as untimely

. ” The Teachers then appeal ed to a three

- member subcommittee of the DISD Board of Trustees

. At this hearing , one school

- board member sought confirmation from Betsy Cook,7 the TEI Operations Manager, about whether the T e ac hers had received “the other part of their appraisal” on September 18 in their Scorecards, which Cook confirmed was “ correct. ” At the conclusion of the hearing, the o ther two members of the school

- board subcommittee decided that the Teachers’ grievance wa s un t imely filed . But the subcommittee’s decision made no reference to the Teachers’ grievance being dismissed. Rather, t he two

- member majority of the

s ubcommittee determined that the hearing officer’s fact fin dings and decision “should be affirmed” a n d that the Teachers’ appeal of their grievance was denied. The Teachers next filed a petition for review with the Commissioner , who appointed an administrative law judge (ALJ) to hear the appeal of the Teachers’ grievance

. For the first time, DISD filed a p lea t o the jurisdiction and motion to dismiss. T he ALJ issued a proposal for decision with findings of fact and conclusions of law and determin ed that the Teachers’ “cause should be dismissed for a lack of jurisdiction.” Th e Teachers filed timely

exce p ti ons t o the ALJ’s proposal for decision

. The Commissioner adopted the ALJ’s findings and conclusions, determined that he lacked j urisdiction to hear the administrative appeal , and issued a decision dismiss ing it

. 2 The Teachers filed a motion for rehea r ing that was overruled by operation of law. The Teachers then sought judicial review in a Travis County district court, which ultimately affirmed the Commissioner’s decision dismiss ing the appeal for want of jurisdiction

. The Teachers filed a motion for new tria l that was denied by operation of law. This appeal followed.

2 The Texas Education Commissioner’s designee issued the decision.8 DISCUSSION The Teachers contend that the Scorecards they received in September of 2015 were their complete and final appraisals for the preceding school year and thus, violated sectio n 2 1.352 ( c) of the Education Code, which requires school districts to appraise teachers at least once during the school year. See Tex. Educ. Code § 21.352(c). Further, the Teachers state that they were harmed by the issuance of the Scorecards in the fall of 2015 , purporting to inform them of their performance for the prior school year, when the Teachers were contractually bound to remain employed with DISD. Specifically, Angela Davis testified that teachers were deprived of the opportunity to resign beca u se they did not receive their final evaluation Scorecards until the middle of September, and teacher resignations must be submitted 45 days before the first day of instruction with the school district. See id

. § § 21.105 , 21.160 , 21.210 (addressing resign a ti ons f o r teachers under probationary, continuing, or term contracts). DISD responds that a Scorecard is not the teacher’s “appraisal” for the 2014

- 15 school year under section 21.352(c); rather the Scorecard is the teacher’s “overall effectiveness level. ” Accor d ing to DISD, the appraisal contemplated by section 21.352(c) refers only to the teacher’s “summative annual appraisal” conducted during the school year. T he Commissioner contends that comp liance with section 21.352(c) i s not required

— i.e., DISD n e ed not a ppraise teachers at least once during the school year

— because the statute is merely directory. As a preliminary matter, we address DISD’s and the Commissioner’s contentions that the Teachers’ exceptions to the proposal for decision and the Teacher s ’ motio n for reh ear ing failed to preserve any error for appeal

.9 E xceptions to PFD p reserved most error , however continuing
- violation complaint is waived DISD complains that the Teachers failed to preserve their complaints for judicial review by filing ina dequa t e exceptions to the ALJ’s proposal for decision (PFD)

. Relying on Rule 157.1059(d)

- (e) of the Texas Administrative Code, DISD contends that the Teachers ’ disagreements with the PFD were not specifically and concisely stat e d , result ing in waiver o f
t hose d isagreements

. Rule 157.1059(d)

- (e) provides that: (d) All disagreements with the factual findings and legal conclusions of the proposal for decision must be made in the parties’ exceptions to the proposal for decision or be waived. (e) The exce p tio ns sh a ll be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they relate.
19 Tex. Admin. Code § 157.1059(d)

- (e) ( 2 015 ) (Te x . Educ. Agency, Filing of Exceptions and Repl ies to Proposal for Decision). This Rule was promulgated “ to ensure full presentation of all disagreements with the proposal for decision. ” Tex. Educ. Agency, Adopted Rules, 29 T ex. Reg. 6887, 6892 ( 2 004 ) (no t es on former section 157.1058, “Filing of Exceptions and Replies to Proposal for Decision,” repealed, updated, and adopted new as section 157.1059). Rule 157.1059(e) requires a party’s exceptions to be specific , and if the exceptions rely on ev i denc e, th a t evidence also must be stated with particularity. 19 Tex

. Admin. Code § 157.1059(e). Unlike the r ule for exceptions to a PFD in proceedings before the State Office of Administrative Hearings

— which provides that such e xceptions are permissive

— R

ule 157.1 0 59 (d)

- (e) requires disagreements with the PFD to be made o r such disagreements are waived

. Compare 1 Tex. Admin. Code § 15 5

. 507 ( b ) (2015) (State Office of Admin

. Hearings, Proposals for Decision; Exceptions and Replies) (providing that parties “ may” subm i t exceptions10 to proposal for decision) , with 19 Tex. Admin. Code § 157.1059(d) ; see Alphonso Crutch Life Support Ctr. v. Williams , No. 03

- 13

- 00789

- CV, 2015 Tex. App. LEXIS 12151, at *17

- 18 n.7 (Tex. App.

— Austin Nov. 30, 2015 , no pet. ) (mem. op.) (not ing p a rty’s concession that it

“ missed its deadline for objections ” to PFD). Here, it is undisputed that the Teachers ’ exceptions to the PFD were timely , but the Commissioner determined that some of the Teachers’ exceptions to the PFD were deficient

. 3
On appea l , DISD complains that the Teachers made deficient exceptions disagreeing with the
PFD’s statements that: the ir grievance was untimely ( exceptions nos. 1, 4, 6, 7, 15, and 19); the re

was no complaint about improperly calculated Scorecards ( exce p tion no. 8) ; the y failed to exhaust administrative remedies about DISD’s policy ( exception no. 18); the ir grievance was dismissed ( exception no. 2) ; there was no c omplaint about DISD reduc ing any payment for teacher insurance ( exception no. 21); and the re was n o b asi s for the cost

- of

- living claims ( exceptions nos. 20 , 22 )

. DISD points to a sentence in cluded in several of the Teachers’ exception s , claiming that certain statements in the PFD w ere “ in direct contradiction to the evidence in the record” but n o t ide ntify i n g any evidence show ing the alleged contradiction. However, the re was more to each of the Teachers’ exceptions than that single quoted sentence. For each of these exceptions, the Teachers explained why they contended that particular statemen t s in th e PFD w ere inaccurate and cont rary to the record :

• I n response to the PFD’s statement s that the Teachers’ claims were untimely , that they did not complain about Scorecard calculation , and that the y did not exhaust a dministrative remedies about DISD ’ s polic y , the Teachers ’ exceptions noted that : (1) their claims were timely filed within ten days of receiving their Scorecards in the fall of 2015; (2) their grievance arose from the Scorecards and the manner in which the

3 The Commissioner’s Decision states that “[e]xcepti ons and replies were timely filed and consider ed

. ”11 Teachers were appraised but not f rom sch ool bo a rd policy; (3) their claims were not ripe before receipt of the Scorecards ; and (4) the district waived its right to claim untimeliness.

• I n response to the PFD’s statement that the Teachers’ claims were dismissed “at all levels of the griev a nce pol icy,” t he Teachers ’ exceptions noted that the school district’s board of trustees did not dismiss their grievance. 4

• I n response to the PFD’s statement that the Teachers did not complain about any reduction in DISD’s insurance payment, the Teache r s noted that : ( 1) DISD offered no evidence of the amount it paid for the Teachers’ insurance; (2) the increased cost of pretax deductions was taken from their salaries ; (3) t he result was a reduction in their overall compensation ; and (4) they provided pa y stub i n form at i on reflecting the reduction in compensation

.

As to the Teachers’ exception to PFD’s statement that there was no basis for the ir cost

- of

- living claims , we note that the Commissioner specifically found similar exceptions (nos. 10 and 23 ) as
to the Teacher s ’ cost

- of

- living claim s did include proper identif i cation of the evidence that the Teachers relied up on. DISD further co mplains that the Teachers made deficient exceptions alleging that their claims were not ripe until the Scorecards issued in the fall of 2015 . Specifically, DISD states that the Teachers’ exceptions numbered 1, 6, 7, 11, 15, 18, and 19 fail to identify a factual or legal basis for the Teachers’ assertion of un ripeness

. However, the Teachers’ exception number 4 to the PFD e x plains that th e claims i n their grievance were not ripe until the Scorecards were issued in the fall of 2015 because t he violations of law alleged in the grievance arose “from the TEI system as implemented in the Scorecards” and that “any dispute regardin g the ma nner in which the appraisal occurred would have been premature” until then.

4 DISD does not compla i n of the Teachers’ exception number 13 challeng ing the PFD’s statement that the Teachers’ grievance was dismissed.12 Additionally, DISD complains that none of the Teachers’ exceptions “stated with particularity” any legal deficiency in the PFD , and that certain exceptions vaguely allege t h at
stat ements i n the PFD are “in direct contradiction to the school laws of this state, other laws of this state, past case law and commissioner’s decision” ( exceptions nos. 17 and 24

- 32) without alerting the Commissioner to the Teachers’ complained

- of er r or. In except i ons numbered 24 through 32 , the Teachers claimed that the Commissioner’s stated proposition s la ck ed legal support. To address these exceptions, the Teachers incorporated arguments and authorities previously cited in their briefing. The
T e achers’ referen c e to their briefing is general, but it is not, as DISD suggests, the equivalent of a request to incorporate the entire administrative record. Cf. Burke v. Central Educ. Agency , 725 S.W.2d 393, 399 (Tex. App.

— 1987, writ ref’d n.r.e.) (conc l uding th at moti o n for rehearing incorporating by reference “ the papers and records on file in this cause” was insufficient to obtain judicial review because motion “argue[d] for an adoption of the entire administrative record”). By contrast, the Teachers’ exceptio n numbe r 17

— concerning the PFD’s rejection of the continuing

- violation doctrine as a justification for a late

- filed grievance

— complain s only that, “This statement is in direct contradiction to the school laws of this state, other laws of this
stat e , past c ase law , and commissioner’s decisions. ” The rest of this exception states only that the “ ALJ has erred and the finding should be removed from the decision.” Thus, we agree with DISD that this exception f ails to state “ with particularity” any leg a l defici ency in the PFD

. Because of this deficient exception, the Teachers waived their complaint as to the applicability of the continuing

- violation doctrine. See 19 Tex. Admin. Code § 157.1059(d)

- (e)

.13 As to the remainder of the Teachers’ exceptions i dentified here , w e disagree with DISD’s contentions that the exceptions were conclusory , failed to alert the Commissioner to any factual error in the PFD , and failed to explain adequately any legal deficiency in the PFD to allow for correction b y the Comm i ssioner. See id

. ; see also Rohrmoos Venture v. UT SW DVA Healthcare, LLP , 578 S.W.3d 469 , 481 ( Tex. 2019) (rejecting form

- over - substance approach to application of preservation rules); Thota v. Young , 366 S.W.3d 678, 690 (Tex. 2012) (favoring

common - sen s e applicat ion of pr o cedural rules rather than technical application). Motion for rehearing of Commissioner’s decision preserved error
T he Commissioner contends that the Teachers failed to preserve their complaints for judicial review by filing an inadeq u ate motion for re he a ring challenging the Commissioner’s decision. Specifically, the Commissioner contends that the Teachers’ motion failed to state with particularity the legal basis for their claimed error. A motion for rehearing is a statutory prerequi s ite for ap pea ls f ro m a Commissioner’s decision. Tex. Gov’ t Code § 2001.145(a) ; 19 Tex. Admin. Code § 157.1061(a) (201 6 ) (Tex. Educ. Agency, Motions for Rehearing); see BFI Waste Systems of North America,
Inc. v. Martinez Envtl. Grp ., 93 S.W.3d 570, 578 ( T ex. App.

— A ustin 2 00 2 , no pet.) (addressing necessity of motions for rehearing in contested cases generally)

. The purpose of a motion for rehearing is to apprise the agency of the claimed error and provide t he agency with an opportunity to correct the err o r or prepa re to d ef e nd against it. Suburban Util. Corp. v. Public Util. Comm’n , 652 S.W.2d 358, 365 (Tex. 1983); BFI , 93 S.W.3d at 578. A timely filed motion for rehearing is jurisdictional, bu t the sufficiency of the motion’ s content pertains only to
p r eservation of err or
. BFI , 93 S.W.3d at 578

.14 M otion s for rehearing mu st set forth: (1) the particular finding of fact, conclusion of law, ruling, or other agency action that is the basis of the party’s complaint ; and (2) the legal and factual bas e s for th e c omplaine d

- of er ro r
. Tex. Gov’t Code § 2001.146(g); BFI , 93 S.W.3d
at 578 (citing Burke , 725 S.W.2d at 397 )

. It is insufficient to set forth these two elements in generalities, for example, by complaining that the findings as a body, or the conclusions as a whole , are n ot supported by substantial evidence. Scally v. Texas State Bd. of Med. Exam’rs , 351 S .W.3d 434, 445 (Tex. App.

— Austin 2011 , pet. denied ) ; Burke , 725 S.W.2d at 397

. Preservation of error requires both elements to be present in the motio n , but neith er elem en t

r equires briefing of the law and the facts. BFI , 93 S.W.3d at 578 ; Burke , 725 S.W.2d at 397

. The standard is one of fair notice. Scally , 351 S.W.3d at 4 45; BFI , 93 S.W.3d at 578

. Here , the Commissioner states that he made three “ key” conclu sions o f l aw , namely that : (1) he lacks jurisdiction over this case under Texas Education Code section 7.057 ; (2) t he Teachers’ grievance claims are untimely ; and (3) ultimately, th e ca u se should be dismissed for lack of jurisdiction. T he Comm i ssioner con tends t ha t the Teachers’ motion for rehearing provided an inadequate response to these three conclusions by raising only general complain ts that t h ose conclusions were “ in direct contradiction to the school laws of this state, other laws of thi s state, pas t case la w , and commissioner’s decision in the record ” and “ contrary to the arguments and authorities cited in Petitioners’ briefing. ” However, the Teachers’ motion for rehearing provided fair notice of complaints concerning the Commissioner’ s decision

. The Te ac h ers directed their complaints in the motion to the preamble, discussion, and specifically numbered findings and conclusions in the Commissioner’s decision. The Teachers respon ded to the Commissioner’s conclusion s that he15 lacked juris d iction unde r secti on 7.057 of the Education Code , that the Teachers’ grievance was untimely, and that dismissal was proper , including four pages detailing complaints that:
(1) the Scorecards resulted from a local teacher

- appraisal system that violated Texa s school laws requir in g teacher appraisals to be conducted annually and in accordance with sections 21.351

- 21.352 of the Education Code ; (2) the grievance was erroneously dismissed as untimely because the Teachers filed it on October 2, 2015, within ten days of receiving their Sc o recards ; and (3) dismissal for lack of jurisdiction was not warranted as argued on pages 21

- 23 of the Teachers’ response to DISD’s plea to the jurisdiction and motion to dismiss

.
Thus, the Teachers’ motion provided the Commissioner wi t h far more s pecific
i n formation than that set forth in the three particular responses that the Commissioner identified. See Scally , 351 S.W.3d at 445 . Further, the substance of the Teachers’ motion for rehearing is unlike those found inadequate by Texas courts and re sulting i n waiver. See, e. g. , Texas Alcoholic Bev. Comm’ n v. Quintana , 225 S.W.3d 200, 204 (Tex. App.

— El Paso 2005, pet. denied) ( concluding that permit holder who “ did not challenge any of the specific factual findings forming the basis of t he Commission ’ s deci si o n to cancel her permit and license ” waived her complaint ); Hamamcy v. Texas State Bd. of Med. Exam ’ rs , 900 S.W.2d 423, 425 (Tex. App.

— Austin 1995, writ denied) (concluding that doctor’s motion for rehearing consisting entirely of st a te ment that “ the pre se n tation of the discussion at the hearing will be done from the charts of the patients and from the records on file with the Board ” constituted no motion for rehearing at all); Burke , 725 S.W.2d at 398

- 99 ( concluding that teacher’s mo t ion for rehea ring fa il e d to preserve error because it did not point to any particular finding of fact or conclusion of law, did not identify legal principles referred to , and complained of Board’s action that was unsupported by record ); see also Morgan v. Employees ’ Re t. Sys. o f Tex ., 872 S.W.2d 819, 82216 (Tex. Ap p.

— Austin 1994, no writ) (concluding that party’ s motion for rehearing “ achieve [d] its
purpose ” of sufficiently informing agency of alleged errors) ; cf. Scally , 351 S.W.3d at 435 (rejecting agency’ s complaint as to ina de q uacy of motion for rehearing). Because this motion for rehearing provided the Commissioner with fair notice of the Teachers’ complaints, we conclude that the Teachers ’ motion s ufficiently preserved error

. See Scally , 351 S.W.3d a t 445; BFI , 93 S .W.3d a t 5 78. Having concluded that the Teachers did not waive their complaints

— except as to the applicability of the continuing

- violation doctrine

—

we consider the Teachers ’ appellate issue s
. First issue: Commissioner’s determination that he lacked juris diction
I n their first issue, the Teachers contend that the district court erred in affirming the Commissioner’s decision because the Commissioner incorrectly determined that he lacked jurisdiction over the appeal of a grievance that he con s idered untimely

. Sect io n 7.057 of the Texas E d ucation C ode governs appeals from a local school district to the Commissioner. See Tex. Educ. Code § 7.057. It a uthorize s such a n appeal when a person is aggrieved by an action or decision of a school dist r ict board of tru stees t ha t violates: (1) Texas school law s , or (2) a school

- district employee’s written employment contract with the school district, if such v iolation causes or would cause monetary harm. Id

. § 7.057(a). T exas school law s consist of tit l es 1 and 2 of th e Texas E d ucation Code and the administrative rules adopted under those titles

. Id . § 7.057(f)(2). Subsection ( c ) of the statute requires the Commissioner to “ issue a decis ion based on a review of the record developed at the district lev e l under a substa nti al e vi d ence standard of review.” Id

. § 7.057(c); see 19 Tex. Admin. Code § 157.1073 ( h) ( providing rules for hearings under section 7.057 of Education Code and17 specifying that Commissioner reviews board of trustees’ decisions under subs t antial

- evidence standar d) , (k) (adopting provisions of Administrative Procedure Act “for all purposes”).
O n appeal, we apply a substantial

- evidence standard in review ing the district
court’s judgment as to the Commissioner’s factual determinations. Tijer i na v. Alanis , 80 S.W.3d
2 9 2, 295 (Tex. App.

— Austin 2002, pet. denied) ; see Houston Indep. Sch. Dist

. v
. Simpson , No. 03

- 12

- 00145

- CV, 2013 Tex. App. LEXIS 13581, at *7 (Tex. App.

— Austin Nov. 1, 2013, no pet.) (mem. op.). Under this standard, we presume th a t the Commission er’s fi nd i ngs, inferences, conclusions, and decisions are supported by substantial evidence , and the contestant has the burden of prov ing otherwise. See Tijerina , 80 S.W.3d at 295 n.5 ; see also Simpson , 2013 Tex. App. LEXIS 13581, at * 8

. We determine whe ther th e e vidence as a whole in the disputed action is such that reasonable minds could have reached the same conclusion as the Commissioner.
See Tijerina , 80 S.W.3d at 295 n.5; Simpson , 2013 Tex. App. LEXIS 13581, at *8 ; see Jenkins v.
C

r osby Indep. Sch. Dist ., 5 3 7 S.W.3d 142, 149 (Tex. App.

— Austin 2017, no pet.) (“ Essentially, this is a rational

- basis test to determine, as a m atter of law, whether an agency’ s order finds reasonable support in the record. ”). However, the Commissioner’s r e solution of lega l quest io n s

— unlike his factual determinations

— are not entitled to a presumption of validity , and we review them de novo. Weslaco Fed’ n of Teachers v. Texas Educ. Agency , 27 S.W.3d 258,
263

- 64 (Tex. App.

— Austin 2000, no pet.) ; Simpson , 201 3 Tex. App. LEXIS 13581, a t *8.
Here , the Commissioner determined that the dispute between the District and Teachers was outside of his subject

- matter jurisdiction. We review the Commissioner ’ s decision
as to jurisdiction under the same standard us ed to r e view a trial cou rt’ s or de r dismissing a cause for want of jurisdiction. Tijerina , 80 S.W.3d at 295 ; Simpson , 2013 Tex. App. LEXIS 13581, at *8

. Whe n , as here, the Commissioner makes fact findings necessary to resolve the jurisdictional18 issue based on an evidentiary reco rd deve lo p ed through an adjudicative process, we review such fact findings under a substantial

- evidence standard. See Tijerina , 80 S.W.3d at 295 (noting that

“ substantial

- evidence review may be appropriate when examining the Commissioner’ s decisions based on ev i de n ce relevant to jurisdiction” ) ; Simpson , 2013 Tex. App. LEXIS 13581, at *8. Under the substantial

- evidence standard, the Commissioner examines the record to determine whether the school board’s decision resulted from a prejudici a l error of law, s uch as

an abuse of discretion, an action taken in excess of authority, a violation of law, or fact findings that are unreasonable in light of the evidence found in the record of proceedings before the school board. Ysleta Indep. Sch. Dis t . v. Meno , 933 S. W.2d 74 8, 751 n.5 (Tex. App.

— Austin 1996, writ denied) ; see Tex. Gov’t Code § 2001.174 . The Commissioner is restricted to the record before him and may not re

- weigh the evidence, find facts, or substitute his judgment for that of the sch o ol board regardin g matte rs properly within the board’s discretion. Meno , 933 S.W.2d at 751 n.5

. If the jurisdictional inquiry turns on an interpretation of the Education Code, we defer to the Commissioner ’ s interpretation of that statute, to the extent t hat the statute
i s ambig uo u s, so long as t he Commissioner’s interpretation is reasonable and does not contradict the plain language of the statute. Tijerina , 80 S.W.3d at 295; see also Combs v

. Health Care Servs. Corp ., 401 S.W.3d 623, 630 (Tex. 2013) ( n o ting that ambigui ty is “ a p recondition to agency deference ” ) ; Simpson , 2013 Tex. App. LEXIS 13581, at *8

- 9

. DISD’s grievance policy, as set forth in DGBA ( Local ) Employee Complaints/Grievances , requires grievances to be filed “no later than ten days [ 5 ] fr o m the date the em ployee fi r st knew, or with reasonable diligence, should have known of the decision or

5 This policy defines “days” as “District business days in acco rdance with the Districtwide staff c alendar, unl es s otherwise noted.”19 action giving rise to the grievance or complaint.” Th is policy also states that an untimely grievance “ shall be dismissed, on written notice to the emp l oyee, at any leve l durin g t he grievance process ” and tha t “[a]ll time limits for filing grievances shall be strictly enforced.” Applying this policy, the Commissioner issued findings of fact determining that the appeal of the grievance was untimely as to the components of TEI and a s to the appraisals :

5. Petitioners’ challenges to the components of the Teacher Excellence Initiative (TEI) program were not filed within ten business days of Petitioners learning of the components or of when Petitioners with reasonable diligen ce shou ld have known of the components.
6. Individual Petitioners’ challenges to their appraisals were not filed within ten business days of Petitioners learning of the potentials [sic] errors in the process or of when Petitioners with r easonable diligenc e shoul d h ave known of the potential errors
. 6

While an employee’s untimely grievance under DISD’s local policy m ight result in dismissal or waiver because the employee’s claim was not properly preserved for review, here the Commissione r determined that t he Teac he r s’ filing of an u ntimely grievance at the school

district level of the administrative process constituted a failure to exhaust administrative remedies that d eprived him of jurisdiction over the Teachers’ appeal from the school b oard’s decision

. We disa gr e e. The Education Code , in relevant part, unambiguously authorizes an appeal to the Commissioner when a person is aggrieved by : (1) Texas school laws ; or (2) action s or decision s of a ny school district board of trustees that vio l ate Texas school l aw
. Te x. Educ.

6 Thi s is a misstatement of DISD’s grievance policy as set forth in its DGBA (Local) Employee Complaints/Grievances , which says nothing about “potential errors.” As we have noted, the policy addresse s only decisions or a ctions , requ ir i ng grievances to be filed “no later than ten days from the date the e mployee first knew, or with reasonable diligence, should have known of the decision or action giving rise to the grievance or complaint .”20 Code § 7.057(a). T he Commissioner may not, through his rules or policies, narrow the availability of that appeal. Texas Comm’r of Educ. v. Solis , 562 S.W.3d 591, 602 (Tex. App.

— Austin 2018, pet. filed)

. Nothing in sect i on 7.057 (a) r equir es the fi l ing of a timely grievance with a school district to invoke the Commissioner’s jurisdiction over a n appeal in which a person claims to be aggrieved by Texas school laws or by actions o r decisions of a school board that violate T e xas school law

. C f

. Tex. E d uc. Code § 7.057(a). B y imposing such a jurisdictional prerequisite

— based on a nonstatutory administrative deadline in DISD’s policy

— the Commissioner impermissibly narrow ed the availability of the Teachers’ statutory right to a ppeal to the Commi ssioner

. See Solis , 562 S.W.3d at 602

. Thus , the Commissioner e rred by determin ing that he lacked jurisdiction over the Teachers’ appeal of their grievance and that dismissal was necessary

. Notwithstanding that error, the applicable st a ndard of review re quires us to consider whether substantial evidence supports the Commissioner’s decision to dismiss the Teachers’ appeal of their grievance as untimely or to dismiss the appeal on some other reasonable basis in this record

. “ Under substa n tial evidence revi ew of f ac t

- based determinations, ‘[t]he issue for the reviewing court is not whether the agency’s decision was correct, but only whether the record demonstrates some reasonable basis for the agency’s action.’” AEP Tex.
Cent. Co. v. P ubl i c U til. C omm’n of Tex ., 3 45 S.W.3d 60, 68 (Tex. 2011) ( quoting State v. Public Util. Comm’n of Tex ., 344 S.W.3d 349, 355 (Tex. 2011 ) ) ; Jenkins , 537 S.W.3d at 149 ( “ Ultimately, we are concerned not wit h the correctness of the agency’ s decision, but its

rea s onableness. ” ). He re, t he C o mmissioner found that: (1) the Teachers’ appraisal grievance was untimely; and (2) the Teachers’ grievance as to components of the TEI program were untimely. We address each of these findings in turn.21 1. Commissioner’s d etermin a tion that Teachers ’ apprai sa l grievance was untimely The Commissioner determined in Finding of Fact No. 6 that “ Individual Petitioners’ challenges to their appraisals were not filed within ten business days of Petitioners learning of the potentials [sic] e rrors in the proces s or of w h en Petitioners with reasonable diligence should have known of the potential errors. ” 7 W hether the Teachers’ grievance is timely depends not on “potential errors,” but rather on what “ decision or action ” gave rise to their gri e vance and triggere d the te n - d ay filing deadline.
T he Teachers contend that the “ decision or action ” giving rise to their grievance was the ir receipt of the Scorecards o n September 18, 2015 . In their view , the Scorecard was the only possible complete appr a isal document that the Tea ch e rs received for the 2014

- 15 school
year
. The y note that the Scorecards for the first time: (1) accounted for the portion of the student performance component that is based on t he students’ standardized test scores received in the

summer , and (2) notifi ed t eachers of their weighted point totals resulting in their final evaluation

score s and rating s
. Thus, the Teachers contend that their grievance was timely because it was filed within ten district business days of receiving th e ir complete apprais als in th e Scorecards.

a. DISD’s contention that appraisal grievance was un timely DISD disputes that the Scorecard is the “ appraisal ” contemplated by section 21.352(a) of the Education Code. DISD cont ends that the summative annual apprais a l conducted during the 201 4

- 1 5 school year is the “appraisal” contemplated by the statute and that the Teachers’ grievance filed on September 18, 2015 , is untimely

. 8 The summative annual appraisal

7 See footno te 6.

8 DISD explai ned this dea dl i ne at oral argument : “If t he complaint is about their appraisal, which Dallas ISD has always alleged is their summative annual appraisal

— that is what22 is based on a “teacher performance rubric” that considers nineteen indicators of tea ch e r practice

. Those nineteen indicators of teacher practice are split into four major “d omains” : (1) planning and preparation (e.g., whether the teacher demonstrates content knowledge and develops objective

- based lesson plans); (2) instructional pr actice (e

. g., whether the teacher establishes clear and rigorous lesson objectives and encourages higher

- order thinking skills); (3) classroom culture (e.g., whether the teacher maximizes instructional time and maintains a welcoming

en v ironment); and (4) p rofessi on a lism and collaboration (e.g., whether the teacher engages in professional community and establishes relationships with families). DISD notes that teachers receive scores on the summative annual appraisal at different times d u ring the s chool year , as

we ll as scores for the Student Learning Objectiv e and the student surveys , which complet e all three of TEI’s teacher

- evaluation components

. DISD further suggests that if a teacher did not have an appraisal by the end of the schoo l year, th e omitted a ppraisa l s hould have triggered the teacher’s ten

- day deadline for filing a grievance. However, as we have noted, D ISD’s grievance policy DGBA (Local) Employee Complaints/Grievances requires grievances to be filed “no later than ten day s from the date the

e mployee f i rst knew, or with reasonable diligence, should have known of the decision or action giving rise to the grievance or complaint.” (Emphases added.). DISD does not explain how its
omission of an appraisal by the end of the sch o ol year constitutes a “deci si o n or action” triggering the need for a teacher to file a grievance under the plain language of this policy. See Aleman v. Texas Med. Bd ., 573 S.W.3d 796, 808 (Tex. 2019) (Blacklock, J., concurring) (noting “familiar distinct i on between acts and omissio ns ” ). The Commissioner’s decisions routinely

is the appra isal defined by 21.352

— it’s ten, it’s ten district busines s days from when they knew or sho ul d have known of the result s of their appraisal.”23 identify “ actions ” and “ decisions ” as triggering events for “ripeness” in relation to the timely filing of administrative appeals and grievances

— as the Teachers have framed the issue here

. See, e.g ., Si mani v. H o usto n Indep. Sch. Dist ., Docket No. 021

- R10

- 03

- 2019, 2019 Tx. Educ. Agency LEXIS 61, at *15 (Aug. 30, 2019) (concluding that teacher’s g rievance was untimely and that “ [t]he moment P etitioner received the contract which she be lieved was incorrect,
P etitio n er’s claim was ripe”); Dallas Indep. Sch. Dist. v. Walton , Docket No. 05 2

- LH

- 1 200 , 20 01 Tx. Educ. Agency LEXIS 33 , at * 14 ( Mar. 1, 2001 ) ( “However, this matter is not ripe for decision, in that Teacher has not yet been recomme nded for suspension for the n e xt s chool year.”) ; Gibson v. Waco Indep. Sch. Dist ., Docket No. 107

- R8

- 598, 1998 WL 36016038, at *4 (Nov. 6, 1998) (concluding “i n the absence of an actual decision” that “this matter is not yet ripe for review by the Commissi oner” ). Additionally , DISD’s c ontention that the Scorecard is not the teacher’s annual appraisal is contrary to previous administrative cases
. See, e.g ., Harris v. Dallas Indep. Sch.
Dist ., Docket No. 098

- R

- 1

- 0712, 2012 T x. Edu c . Agency LEXIS 59, at *49 (A ug
. 29, 2012) ( referring to t eacher ’s “ annual evaluation scorecard” in undisputed facts ); Dallas Indep. Sch. Dist. v. Fisher , Docket No. 145

- LH

- 805, 2005 Tx. Educ. Agency LEXIS 43, at *19 (Nov. 15, 2005) (referring to “annual p r ofessional school cou nselor pe r formance scorecard”) ; see also Steans v. Manor Indep. Sch. Dist ., Docket No. 081

- R1

- 08

- 2014, 2014 Tx. Educ. Agency 73, at *14

- 15 (Oct. 7, 2014) (rejecting contention that written annual “ evaluations” in another section of Ed u cation Code refer exc lusivel y t o summative annual apprai s als and not to all components of teacher appraisal).
Th e TEI Scorecards consist of three evaluation components. These three components, and parenthetical definitions for each, are set forth in the T EI Rulebook that DISD24 issued i n January 2015 and Guidebo o k that DISD issued in March of 2015. The three components are:

1. Teacher p erformance ( rubric

– based observation of instruction)
2. Student a chievement (evaluatio n of student assessment scores or resul t s) [and]
3. Student per ception s ( student survey results)[. ] 9

A s the sample Scorecard in this opinion shows, the s tudent

- a chievement component consists of a Student Learning O bjective score that is provided to t eachers during the school year and student
pe r formance on standardi zed tes ts like the STAAR, which is n ot disclosed unti l the summer. Thus, the Scorecard includes both the teacher performance and student performance c riteria that are required by the Education Code for a teacher “ appraisal ” under a d i strict

- developed appra isal
pr oc e ss. See Tex. Educ. Code § 21.351(a)(2); see also id . § 21.352(a)(2)(B) (requiring local appraisal process to implement provisions of sections 21.351(a)(1)

- (2)). Unlike the Scorecard, the summative annual appraisal measure s only teacher performan ce , and i s a “rubric

- based observat i on of instruction.” According to the Rulebook , the rubric is “[t]he evaluation instrument that outlines teacher performance standards.” Similarly,
t he Guidebook specifies that the nineteen indica t ors factor ing into a s ummativ e a nnual appraisal are “indi c ators of teacher practice.” By contrast, t he Guidebook specifies that the student

achievement component

— i.e., the evaluation of student

- assessment scores or results

— for all teachers is measured by the Student Learning O bjectiv e a nd s chool STAAR (and may a lso include other standardized assessments for some teachers, depending on the courses taught )

.

9 The subsequent TEI Rulebook shows that on July 29, 2015, this component’s name was changed from “Student Perceptions” to “Student Experience.”25 Nothing in the Rulebook or Guidebook states that the student

- achievement component is measured by th e summative annual appra isal

. Wi t hout the requisite studen t

- performance criteria, a document cannot be considered an “appraisal” under the Education Code. See id

. § 21.351(a) (1)

- (2).
Moreover

— contrary to DISD’s contention that all components of a teacher ’ s evaluation were compl eted at v a rious times during the 20 1 4

- 15 school year

— the Education Code indicates that the teacher’s appraisal or evaluation is a single document , not a series of components completed during the year

. And unless the teacher agrees o therwise in writing, 10

t hat app ra i sal must be done at least once during the school year. S ection 21.352(c) of the Education Code provides, in relevant part:
Except as otherwise provided by this subsection, appraisal must be done at least once during each school year

. A teacher may be a p praised less frequently i f the teacher agrees in writing and the teacher’s most recent evaluation rated the teacher as at least proficient, or the equivalent, and did not identify any area of deficiency. A teacher who is a ppraised less frequentl y than an n ually must be appraised a t least once during each period of five school years. The district shall maintain a written copy of the evaluation of each teacher’s performance in the teacher’s personnel file. Each teacher is e n titled to receive a wri tten co py of the evaluation promptl y on its completion. After receiving a written copy of the evaluation, a teacher is entitled to a second appraisal by a different appraiser or to submit a written rebuttal to the evaluation to be a ttached to the evaluati on in t he teacher’s personnel file. The evaluation and any rebuttal may be given to another school district at which the teacher has applied for employment at the request of that district.
Tex. Educ. Code § 21.352(c) (emphases ad d ed)

. This statute refe rs to o nl y one written document (“t h e evaluation”) that upon completion is retained in the teacher’s file. See id .; see also Hall v. North E. Indep. Sch. Dist ., Docket No. 019

- R10

- 1106, 2008 Tx. Educ. Agency LEXIS 3, at *4

10 Nothing in the record s hows that any of the Teachers agr ee d in writing to be apprais e d less frequently than required by section 21.352(c). See Tex. Educ. Code § 21.352(c).26 n.2 (Sep t . 8, 2008) (noting that “[t]he t e rms ‘evaluation’ and ‘app r aisal’ are synonymous”). No reasonable reading of this statute indicates t hat individual components of an appraisal or evaluation are to be added periodically to a teacher’s personnel file during t he school year.
Furt her, t h e G uidebook provides that te a chers who disagree with their “summative performance evaluation” may address such disagreements after issuance of the Scorecard with the teacher’s “final evaluation rating”: “A teacher may submit a written response

or re buttal af t er receiving a copy of th e performance component of the evaluation and/or after receiving the final evaluation rating, which includes the relevant student achievement and student perception components.” A lthough DISD curr e ntly contends that the Teacher s s hould have filed their ap p raisal grievance within ten days after receiving their summative annual appraisal , and not after receiving their Scorecard , t he record reflects that DISD directed at least one of the Teachers to p o stpone addressing any p roblem or question about the summat i ve annual appraisal until after issuance of the Scorecard :
My immediate supervisor, Stephanie Burns at Bryan Adams HS, told several of us that if we had a problem or question about our summative, WE HAD UNTIL THE ENTIRE TEI SC OR E CARD CAME OUT TO REBUT IT

. Apparently, that is not the case and it should have been done earlier. However, whether by accident or on purpose, several of us took her at her word on this and waited.

. . . Again, misinform a tion to me caused a del ay and a s imple remedy is available if desired. 11
(Emphases in original.). The Teachers pointed to this evidence during oral argument and in their petition for review to the Commissioner. DISD offered no response to this evidence beyond

11 DISD contends that equitable tolling did not apply to the filing of a grievance under D GBA (Local). Bu t DGBA (Local) addres ses the “unt im e ly filing” of grievances a nd specifies that “[c]onsideration shall be given for extenuating circumstances in all cases.”27 representing to this Co ur t that such matter was out s ide the record and merely attorney argument. 12 After reviewing the e vidence in this record, we conclude that the Commissioner could not have reasonably found , as DISD contends, that the Teachers’ g r ievance is untimely bec ause th e s ummative annual appraisal , and not the Scorecard, is the “appraisal” contemplated by the Education Code

. 13

b. Commissioner’ s contention that appraisal grievance was un timely Notably, the Commissioner does not contend that th e issuance of the Scorec ards
to t h e Teachers in September o f 2015 complied with the statutory requirement in section 21.352(c) that teacher appraisals must be completed during the school year. See Tex. Educ. Code § 21.35 2 ( c ) . Rather, t he Commissioner con t ends that section 21.35 2(c) is m e rely directory. 14 But see Tex. Att’y Gen. Op. No. GA

- 0055 (2003) ( concluding that under section

12 Counsel for DISD made th e same representation to the Commissioner

.
13 The Comm issioner’s decis ion includes a narrat ive, but not a finding, dispens ing with t he appraisal

- grievance claims as untimely : “As to the claims that [DISD]’s practice in individual cases violated the school laws of this state or [the Teacher]s’ contracts, these issues could al so have been raised w hen the alle ge d events occurred.” The C o mmissioner also concluded that “Petitioners’ claims were ripe when they were required to be filed under Respondent’s policy.” T h ese generalization s do not identify when the appr aisal grievance would have been ripe o r what concr et e injury the Teachers woul d have sustained before receiv ing the “appraisal” required by section 21.352(c) of the Education Code. See Texas v. United States , 523 U.S. 296, 300 (1998) (concluding that clai m is not ripe fo r adjudication if it r ests on cont in g ent future events that ma y not occur as anticipated or at all); In re Depinho , 505 S.W.3d 621, 624 (Tex. 2016) ( noting that case is unripe when determination of whether claimant has concrete injury can b e made only on c ontingent or hypotheti cal facts, o r o n events that have not ye t occurred ) ; see also Tex. Educ. Code § 21.352(c).

14 DISD diverges from the Commissioner on this issue. Counsel for DISD acknowledged during the Teachers’ second grievance hea ring that an ann ual performance evalua tion is a re qu i rement: “Now one of the f i rst arguments [the Teachers] discussed is the fact that the Texas Education Code requires an annual performance evaluation. That is correct.”28 21.352(c) “ [e] ach school district must use its appraisal process and criteria to evaluate each teacher in the district at leas t once during each schoo l year ” a n d that “[t] his requiremen t is not limited to beginning teachers but rather applies to all teachers in the district ”) (emphases added). In support of his contention that section 21.352(c) is merely directory, the Commissio n er relies heavily on the statut e’ s lack of a n explicitly st a ted consequence for noncompliance . The Commissioner also contends that there is no harm from providing a teacher with a n evaluation that is late

— i.e., when no appraisal is provided during the sc h ool year

— “ for even a lat e evalu at i on is preferable to none a t all.” The fundamental rule for determining whether a statutory provi sion is mandatory or directory is to ascertain and give effect to the L egislat ure’s intent. AC Interests, L.P. v. Texas
Co m m’n on Envtl. Quality , 5 43 S.W. 3d 703, 708 (Tex. 2018). N o “absolute test” distinguish es the mandatory from the directory when the Legislature creates a statutory deadline but does not expressly set forth a penalty or consequence for noncompliance. Id

. Factors we may consider in dete rm i ning whether the Legislat u re intended a provision to be mandatory or directory include the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from eac h construction. Albertso n’s, In c. v. Sinclair , 984 S.W.2d 9 5 8, 961 (Tex. 1999). The Texas Supreme Court has stated that the use of “must” in a statute is
ge nerally understood as a mandatory term , creating a duty or condition

. AC Interests , 543 S.W.3d a t 709. Similarly, t he Co de Const ru c tion Act states that “mus t ” indicat es a condition precedent “unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided b y statute .”
Tex. Gov’t Co de § 311 .0 1 6 (3). Courts g enerally c o nstrue a statutory provision as mandatory29 when the power or duty to which it relates is for the public good

. Sinclair , 984 S.W.2d at 961. Conversely, a s tatutory provision that merely promote s the proper, orderly and p rompt co nd u ct of business is not gen e rally construed as mandatory , particularly when failure to comply with the
statute will not prejudice the rights of the interested parties

. TJFA, L.P. v. Tex as Comm’ n on Envtl. Quality & BFI W aste Sys. of N. Am., Inc ., 368 S.W .3 d 727, 734 (Tex. App.

— Aust i n 2012 , pet. denied )

. When a statute is silent about consequences of noncompliance, we look to the
statute ’ s purpose in determining the proper consequence of noncompliance. Sinclair , 984 S.W

. 2d at 961. “ W e will not i nterpret s i lence regarding the conse q uences for noncompliance to undermine the statute’s purpose.” AC Interests , 543 S.W.3d at 709

. H ere, although there are no statutory consequences for noncompliance expressly stated in section 21.352(c) , other subsectio ns of th at statute indicate that t he purpose of conducting appraisals during the school year is to ensure that teachers of all skill levels are given timely feedback on their performance , including any necessary guidance on impro v ement, and to allow school distric ts to assess teachers’ progr e ss from year to year :
(c

- 1) In addition to conducting a complete appraisal as frequently as required by Subsection (c), a school district shall require that appropriate components of the appr a isal process, such as clas sroom ob se r vations and walk

- throughs , occur more frequently as necessary to ensure that a teacher receives adequate evaluation and guidance. A school district shall give priority to conducting appropriate components more frequent l y for inexperienced teache rs or ex pe r ienced teachers with iden t ified areas of deficiency. (e) A district shall use a teacher’s consecutive appraisals from more than one year, if available, in making the district’s employment decisions and developing care e r recommendations for the teacher. ( f) The district shall not i fy a teacher of the results of any appraisal of the teacher in a timely manner so that the appraisal may be used as a developmental tool by the district and the teacher to improve the overall p erformance of the teacher.30 Tex. Ed u c. Code § 21.352(c

- 1 ) , (e ) , (f)

. Th e provision in section 21.352(c) addressing teacher appraisals during the same school year furthers the community’s interest in providing students with teachers who are guided in a t i mely manner to maximize th eir inst ru c tional skills , and thus,

r elates to the public good

. See Sinclair , 984 S.W.2d at 961. Further, the f ailure to comply with this statute would prejudice the rights of the interested parties by reducing the likelihood t h at schools will employ the most ca pa b le teachers and consisten t ly strengthen the teachers’ expertise

. Cf. TJFA , 368 S.W.3d at 734 ; see Tex. Educ. Code § 4.001(a) (identifying objectives of public education including recruitment, development, and retentio n of qualified and highly

e ffective p e rsonnel). Additionally, when the Legislature enacted section 21.352(c) as part of its substantive revision to Titles 1 and 2 of the Education Code, it amended the teacher

- appraisal

s tatute in former section 13.303(a)

. See Senate Research Cent er, Bill A n alysis, Tex. C.S. S.B. 1,

a t 43, 74th Leg., R.S. (Mar

. 27, 1995). T he Legislature struck the verb “shall” from the former
statute and added the verb “must” to the new statute, providing further indicat ion of the Legisl a ture’s intent that complia nce with s e ction 21.352(c) is mandat o ry. See Engrossed Version , Tex. S.B. 1, § 21.272(b), 74th Leg., R.S. (Mar

. 27, 1995) (“Appraisal must [ shall ] be done at least once during each school year”); see also 3 Norman J. Singer & J. D . Shambie Singer , Sutherla nd Statu to r y Construction § 57

. 1 (7 t h ed. 200 8 ) ( noting that form of verb used in statute, such as that something “must” be done, is “ single most important textual consideration determining whether st atute is mandatory or directo r y” ). In its summary of th is legis la t ion, t he Texas Education A gency stated that under the new chapter 21 , a teacher

- appraisal process “ must provide for at least one evaluation per teacher during each school year.” Texas Education31 Agency, Questions and A n swers on Senate Bill 1 14 (July 20 , 1 995) (Office of Governmen t al Relations). Given these considerations, we con strue section 21.352(c)’s statement that “ appraisal must be done at least once during each school year ,” as imposing a requirement that is

man d atory.

c. Commissioner erred in deter mi n ing appraisal grievance w a s untimely The administrative record before us lacks substantial evidence to reasonably conclude that : (1) DISD conducted complete appraisal s , as defined in section 21.351(a) of the Education C ode , for the Teachers duri ng the 2 01 4

- 15 school year ; ( 2 ) prov i ding piecemeal components of an appraisal during the school year to the Teachers constituted “the evaluation” under section 21.352 (c) of the Education Code ; and ( 3 ) the Teachers’ grievance

— fil e d within ten days after th e Teache rs “knew or should have know n ” of the appraisal decisions or actions in the Scorecard that formed the basis of their grievance

— was untimely. Thus, w e conclude that there

was no reasonable basis in th is record for the Com m issioner ’s conclu sion that the Tea ch e rs’ grievance was untimel y , such that reasonable minds could not have reached the same conclusion as the Commissioner

. See AEP Tex. Cent. Co. , 345 S.W.3d at 68 ; Simpson , 2013 Tex. App. LEXIS 13581, at *8 ; Jenkins , 537 S.W.3d at 149; Scally , 351 S.W.3d at 445

. The Commissioner

er

r ed by affirming the Board’ s decision , and the district court erred by affirm ing the
C ommissioner ’ s decision. Accordingly, w e sustain t h is portion of th e Teachers ’ first is sue
. 15

15 Because we have sustained the T eachers’ first i ssue challenging the d ismissal of th e ir appraisal grievance as untimely, we need not address the Teachers’ second issue contending that the Commissioner also erred by refusing to consider whether the Teachers’ appraisals violated Texas teac her

- appraisal la ws when he dismissed t heir grievan ce as untimely. See Tex. R. App. P. 47.1.32 2. Commissioner ’ s determination that Teache rs’ TEI gr i evance was untimely The C ommissioner determined in Finding of Fact No. 5 that “Petitioners’ challenges to the components of the Teacher Excellence Initiative (TEI) program were not filed within ten business days of Pe t itioners learning of the co mponents o r of when Petitioners wit h reasonable diligence should have known of the components.” The Commissioner stated that because adoption of a policy, such as TEI’s new teacher appraisal system, is a “decision or action,” a n y timely facial grievance t o th at p ol i cy would have to have be e n filed within ten district business days of the date that DISD adopted th at policy , or within ten days of the date that a grievant became aware or should have become aware of that policy.
T h e Commissioner noted that th e structu re of the TEI teacher

- appra i sal system was set out in DISD’s policy documents including the DNA (L egal ), DNA(L ocal ) , and DNA (R egulation ) , which were adopted months before the Teachers filed their grievance. Further, a s DISD and the Commissioner point out , D ISD described the TEI te a cher

- appraisal syst em in a Guidebook issued in May 2014 and a Rulebook issued in January 2015, DISD conducted a full

day train ing for teachers on the TEI in August 2014, and DISD issued the u pdated Guidebook in March 20 15. Give n t his timeline of events a n d the content of those publications in this record, the Commissioner could have reasonably concluded that the Teachers’ facial grievance as to the components of the TEI system itself, filed O ctober 2, 2015, was untimely because it was not filed within ten district business days of when the Teachers actually learn ed, or w ith reasonable diligence should have known , about the components of the TEI system

. In this regard, reasonable minds could h ave reached the same conclus ion as th e C ommissioner. See AEP Te x
. Cent. Co ., 345 S.W.3d at 68; Simpson , 2013 Tex. App. LEXIS 13581, at *8; Jenkins ,33 537 S.W.3d at 149; Scally , 351 S.W.3d at 445. Accordingly, we overrule this portion of the Teachers’ firs t issue.

Third issue: A llege d decreas e i n Teachers’ salary
In t h eir third issue, the Teachers c hallenge the Commissioner’s de termination that DISD did not violate Texas law by decreas ing the Teachers’ salary without prior notification and after the start of the school year. See Bow man v. Lu mb e rton Indep. Sch. Dist ., 8 01 S.W.2d 883,
8 87

- 89 (Tex. 1990) ( concluding t hat school district could not lower teachers’ salary schedule after paying them for two months at higher rate from previous school year and aft e r teachers were no longer ab le to res ig n unilaterally without pe n alty ). Th e substance of th e Teachers’ claim ed violation in their third issue is not based on a rate of inflation in the economy but on the higher cost of the Teachers’ insurance premiums fo r the 2015

- 16 school year , re sulting i n a reduction of the Teache r s’ take

- home pay. The Commissioner determined that he lacked jurisdiction over the Teachers’ claim because it failed to identify a violation of the school laws of this state or of an emplo y ment
contract , s ee Tex. Educ . Code § 7. 05 7 (a) , and because the Tea c hers’ grievance “did not raise the issue of the cost of insurance at the local level.” T he Commissioner issued the following findings concerning this issue:
8. No teacher contracts are in the local record.
12. The l ocal record d o es not indicate that any Petitioner received a decrease in total compensation.
13. The local record does not indicate why some teachers paid more for insurance.
14. Petitioners did not contend in their cost

- of

- l i ving argument during the gri evance proc es s that Respondent is requ i red to give raises when the inflation rate increases.34 15. Petitioners did not contend at the local level that Respondent was required not to raise the employee’s portion of health insuran c e costs during the term of t heir contra ct s
. Because the Commissio n er correctly found that t he Teachers did not raise an issue about the cost of their insurance at the local level , the Teachers failed to preserve that issue for appeal

. Moreover, e ven if that issue had been preserved , the reaso n f or the increased insuranc e cost is

unc lear from the record. T he Teachers provided some pay stub s to support their claim , but the Commissioner correctly noted that the record does not reflect whether the T eachers changed their insurance plan or whether mo r e family members were cov e red during the second yea r
. T hese changes could result in higher premiums and decreased take

- home pay for reasons not attributable to DISD

. W e conclude that the Teachers’ issue alleg i n g their salary decrease (due t o an insuran ce - cost increase) was not pr e served for the Commissioner’s review because it was not raised at the local level

. See Solis , 562 S.W.3d at 602 (noting that party who fails to raise particular complaint with school d istrict in accordance with its applicable lo c al grievance policy
may n o t have record to present to Commissioner that can support party’s complaint and may waive that complaint or fail to preserve it for subsequent appeal to Commissioner). Accordingly, th e Commissioner did not err by di smissing the T e achers’ salary

- decrease

c o mplaint against DISD . The Teachers’ third issue is overruled.

CONCLUSION W e conclude that the Commissioner erred in his determination that he lacked jurisdiction over the Teacher s ’ appeal of their grievance . We further con cl u de that his dismiss al of t he Teachers’ appeal of their appraisal grievance as untimely was not supported by substantial35 evidence in this record. Accordingly, w e reverse that part of t he district court’s judg m ent and remand this cause to the Commissione r f or further proceedings co n sistent with this opinion

. However, we conclude that the Commissioner did not err by dismissing as untimely the Teachers’ facial grievance as to the components of the TEI teacher

- a p praisal system, and by dismissing the Teacher s’ unpreserved complaint all e ging that DISD decreased the Teachers’ salary . Accordingly, w e affirm th ose part s of the district court’s judgment.

__________________________________________ Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana Concurring and Dissenting Opinion by Justice Goodwin Affirmed in Part ; Reversed and Remanded in Part Filed: Octobe r 17 , 2019