Opinion issued July 14, 2022

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-21-00023-CV

———————————

SHELDON INDEPENDENT SCHOOL DISTRICT, Appellant

V.

BRANDON ROMERO AND MIKE MORATH, TEXAS COMMISSIONER 

OF EDUCATION, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2019-72951

MEMORANDUM OPINION

The issue in this case is whether a school district can suspend a teacher’s pay 

without first complying with the hearing requirements set forth Texas Education 

Code Chapter 21, subchapter F, which “applies if a teacher requests a hearing after 

receiving notice of the proposed decision to suspend the teacher without pay.” See
2

TEX. EDUC. CODE § 21.251(a)(3). Because the Commissioner of Education, Mike 

Morath [“the Commissioner”], properly concluded that the hearing requirements 

were necessary but were not met before the Sheldon Independent School District 

[“the District”] suspended Brandon Romero without pay, and the trial court affirmed 

the Commissioner’s decision, we, in turn, affirm the trial court’s judgment awarding 

Romero back pay.

BACKGROUND

Romero’s Conduct and the Initial Investigation

In October 2018, Romero, a teacher/coach at King High School, sent nonwork-related electronic communications to female students late at night while he 

was intoxicated; some of those communications were sexually suggestive. He also 

invited two female students to his home to drink alcohol.

On February 11, 2019, Romero signed a statement to the District, and the 

District notified Romero that he was being placed on paid administrative leave.

On February 14, 2019, Romero was interviewed by the District’s Executive 

Director of Personnel Services, after which he signed a written interview statement, 

admitting to the alleged conduct. On that same date, the District notified Romero 

that it intended to recommend to the District Board of Trustees [“the Board”] that 

his employment contract be terminated and that he be suspended without pay 

pending discharge. He received a second notice on February 28, 2019, which was 
3

identical to the February 14 notice, except that it moved the date that the Board 

would consider these proposals from its February meeting until its March meeting.

On March 1, 2019, Romero submitted his written resignation from 

employment with the District to take effect at the end of the 2018-2019 school year.

On March 5, 2019, the Board voted to accept the superintendent’s

recommendation to suspend Romero without pay in lieu of termination.1 Romero’s 

leave without pay was made effective that date.

On March 6, 2019, the Board sent Romero a letter entitled “Notice of 

Proposed Suspension of [sic] Without Pay,” which informed Romero that the Board 

had voted to “suspend[] [his contract] without pay for good cause, effective 

immediately[.]”

After receiving the Board’s “Notice of Proposed Suspension of [sic] Without 

Pay,” Romero requested a hearing before a hearing examiner as permitted by 

subchapter F of Chapter 21 of the Texas Education Code. See TEX. EDUC. CODE §§ 

21.251–.260 (entitled “Hearings Before Hearing Examiners”).

The Hearing and the Examiner’s Ruling

On May 7, 2019, an evidentiary hearing was held before independent hearing 

examiner [“IHE”], Peter Thompson. Both parties were present, represented by 

counsel, and given the opportunity to present evidence.

1 Because of Romero’s resignation, termination was no longer an issue.
4

After the hearing, on June 21, 2019, the IHE signed a document entitled 

“Recommendation of the Independent Hearing Examiner.” The IHE described the 

issues presented to him as follows:

The only issue in dispute is a legal one—whether [the District] properly 

followed procedures under the Texas Education Code in suspending 

[Romero’s] pay before there was a Chapter 21 hearing before [the IHE]. 

[The District] contends that the Texas Education Code requires (upon 

his request) a due process hearing before a certified IHE and the 

Board’s consideration of the IHE’s recommendation before it could 

actually suspend his pay. As discussed below, despite the untenable 

position in which this requirement puts the school administration and 

the Board—to continue paying a teacher who admits to outrageous 

conduct with respect to the school’s students while the inevitable 

conclusion is reached that there is good cause to suspend the teacher 

without pay—[the IHE] is bound by prior decisions of the 

Commissioner construing the Texas Education Code to reach that 

conclusion.

Thereafter, the IHE entered the following Conclusions of Law relevant to the 

issue:

14. Good cause exists to suspend [Romero’s] pay, effective March 6, 

2019.

15. Under prior Commissioner decisionsinterpreting the relevant Texas 

Education Code provisions, [the District] could not actually suspend 

[Romero’s] pay until after a due process hearing by an IHE (the 

undersigned), the IHE’s recommendation for suspension without pay, 

and the Board’s consideration and adoption of the IHE 

recommendation.

16. Unfortunately, despite the obvious unfairness of this conclusion, 

its placing the school administration in the untenable position of 

continuing to pay a teacher while awaiting (in this case) the inevitable 

outcome of a determination after an IHE hearing that there is good 

cause to suspend the teacher without pay, and the availability of an 
5

award of back pay under Texas Education Code § 21.257(b) if good 

cause is not shown, the Texas Education Code and Commissioner 

decisions compel this conclusion.

17. In Guerra v. San Diego ISD, 1996 TX. Educ. Agency LEXIS 74, 

TEA Docket No. 147-R2-796 (Comm’r Educ. 1997), the 

Commissioner held in similar factual circumstances that the Board 

improperly suspended the teacher without pay, stating[,] “[The teacher] 

was entitled to a hearing before a certified hearing examiner prior to 

being deprived from his salary.” Id., at Conclusion of Law 7. The 

Commissioner further concluded that the teacher was entitled to his 

salary and benefits from the date he was suspended without pay until 

his termination (back pay).

18. Guerra seems to turn on the fact that the board suspended the 

teacher’s pay without giving him notice that the board was considering

that proposal. Id., Finding of Fact 6. Here, [Romero] was given notice 

that [the District] would consider the proposed suspension without pay 

on March 5, which would seem to distinguish the case from Guerra. 

However, the conclusion in Guerra was that the Board improperly 

suspended the teacher’s pay before an IHE hearing. Id. See also, Boyd 

v. Lake Travis Ind. School Dist., TEA Docket No. 153-R2-696, TX 

Educ. Agency LEXIS 201 (Comm’r Educ. 1996). 

19. That the Texas Education Code allows the IHE to award “back pay” 

seemingly contradicts this conclusion as there would be no reason to 

award back pay unless the teacher’s pay had already been suspended 

by the Board. Tex. Educ. Code § 21.257(b).

20. [The District] has cited cases dealing with a government employee’s 

due process rights in his employment. However, [Romero] does not 

contend that [the District’s] actions were unconstitutional, only that its 

actions did not comply with Texas administrative law, i.e., the Texas 

Education Code. The [the District’s] constitutional arguments are 

unavailing here. 

Thereafter, the IHE made the following recommendation:

That the Board of Trustees of Sheldon Independent School District 

adopt the foregoing Findings of Fact and Conclusions of Law and 
6

reimburse [Romero] for salary not paid due to this suspension without 

pay from the date of the suspension until the date or [Romero’s] 

termination or the date the Board considers this Recommendation, 

whichever is earlier.

The Board’s Decision

On June 25, 2019, the Board considered the IHE’s recommendation. While 

the Board adopted all the IHE’s recommended fact findings, it changed or modified 

several of the IME’s Conclusions of Law. Specifically, the District’s Conclusions of 

Law provided in relevant part:

14. Good causes exists to suspend [Romero’s] pay, effective March 6, 

2019.

15. In Guerra v. San Diego ISD, 1996 TX. Educ. Agency LEXIS 74, 

TEA Docket No. 147-R2-796 (Comm’r Educ. 1997), the 

Commissioner held in similar factual circumstances that the Board 

improperly suspended the teacher without pay, stating[,] “[The teacher] 

was entitled to a hearing before a certified hearing examiner prior to 

being deprived from his salary” Id., at Conclusion of Law 7. The 

Commissioner further concluded that the teacher was entitled to his 

salary and benefits from the date he was suspended without pay until 

his termination (back pay).

16. Guerra turned on the fact that the board suspended the teacher’s 

pay without giving him notice that the board was considering that 

proposal. Id. After investigating the incident, Petitioner was placed on 

suspension with pay by the superintendent. The superintendent and the 

principal recommended to the board of trustees that Petitioner’s 

contract of employment be terminated. The board voted to suspend 

Petitioner without pay and proposed the termination of Petitioner’s 

contract at its meeting of February 22, 1996. Petitioner did not appear 

and did not receive notice of the board’s proposed action prior to a final 

vote. [Id.] Here, [Romero] was given notice on February 14, 2019 and 

February 28, 2019, that [the Board] would consider the proposed 

suspension without pay, which distinguishes this case from Guerra.
7

17. The Texas Education Code allows an IHE to award “back pay” 

which provides statutory support of allowing an employee’s pay to be 

suspended prior to a Board considering an IHE’s recommendation, as 

there would be no reason to award back pay unless the teacher’s pay 

had already been suspended by the Board. Tex. Edu. Code § 21.257(b)

18. Any conclusion of law deemed to be a finding of fact is hereby 

adopted as such.

In light of these conclusions of law, the District concluded that Romero’s pay 

was suspended effective March 6, 2019, a date before the IME’s fact-finding hearing 

and recommendation. The District concluded as follows:

After due consideration of the record, matters officially noticed and the 

recommended Findings of Fact and Conclusions of Law, we the Board 

of Trustees of the Sheldon Independent School District hereby adopt 

these Findings of Fact and Conclusions of Law. Brandon Romero is 

suspended without pay effective March 6, 2019 for good cause. 

Brandon Romero is awarded no back pay.

The Commissioner’s Decision

After receiving the Board’s decision, Romero appealed to the Commissioner 

of Education, as provided by section 21.301 of the Education Code. See TEX. EDUC.

CODE § 31.301. The issue presented, as the Commissioner stated in his Decision of 

August 30, 2019, was “whether [the District] acted lawfully in suspending [Romero

without pay before a hearing] pursuant to Chapter 21 of the Texas Education Code.”

Citing Commission of Education opinions dating back to 19962and the relevant 

2 See Boyer v. Austin Indep. Sch. Dist., Docket No. 062-R3-1296, 1997 WL 35411024

(Comm’r Educ. 1997); Boyd v. Lake Travis Ind. Sch. Dist., Docket No. 153-R2-696, 
8

Education Code statutes,3the Commissioner concluded that the District had 

improperly changed the IME’s Conclusions of Law and that “[t]he correct legal 

conclusion in both Guerra and this case is that suspension without pay before 

completing the IHE process is unlawful.” Thereafter, the Commissioner made the 

following Conclusions of Law.

1. A board of trustees is required to provide notice of proposed Board 

action to suspend or terminate a contract before the suspension or 

termination becomes effective. Tex. Educ. Code § 21.211(a)

2. Texas Education Code section 21.253 requires that a teacher be given 

notice of the proposed action and an opportunity to request and obtain 

a hearing before an independent hearing examiner before the action to 

suspend without pay takes place. Guerra v. San Diego Indp. Sch. Dist., 

Docket No. 147-R2-796 (Comm’r Educ. 1996).

3. A board of trustees is required to state in writing the reason and legal 

basis for changing and rejecting the conclusions of law and 

recommendations made by the IHE. Tex. Educ. Code § 21.259(d).

4. [The Board] failed to provide adequate reason and legal basis for 

rejecting the IHE’s Conclusions of law 15, 16, and 20.

5. [The Board] failed to state in writing any reason or legal basis for 

changing the IHE’s Conclusions of Law 18 and 19 and 

recommendation.

6. [The District] failed to comply with Tex. Educ. Code § 21.259(d), a 

statute designed to protect the independent nature of the hearingexaminer process. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 

1996 WL 35048821 (Comm’r Educ. 1996); Guerra v. San Diego Ind. Sch. Dist., 

Docket No. 147-R2-796,1996 WL 35048819 (Comm’r Educ. 1996).

3 See Chapter 21, subchapter F of the Texas Education Code. TEX. EDUC. CODE §§ 

21.251–21.260 (entitled “Hearings Before Hearing Examiners”)
9

559, 564 (Tex. 2000); Goodie v. Houston Ind. Sch. Dist., 57 S.W.3d 

646, 651 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

7. [The Board’s] failure to state in writing the reason and legal basis for 

changing and rejecting the IHE’s conclusions of law and 

recommendation is a failure to meet a necessary condition for changing 

or rejecting an IHE’s conclusions of law and recommendation for relief.

8. [The District’s] decision to affirm [Romero’s] suspension without

pay effective immediately was arbitrary, capricious, and unlawful.

9. [Romero] should be awarded back pay and benefits.

In accordance with his Conclusions of Law, the Commissioner “ORDERED 

that [the District] shall pay [Romero] all back pay and benefits from March 6, 2019 

until the end of the 2018-2019 school year.”

The District Court’s Judgment

The District appealed the Commissioner’s decision to the district court, as 

permitted by Education Code section 21.307. See TEX. EDUC. CODE § 21.307(a)(1).

On December 14, 2020, the district court “ORDERED that [the District’s] request 

for relief is DENIED and the Commissioner’s Decision is affirmed.”

The District now brings this appeal. 

ROMERO’S ENTITLEMENT TO BACK PAY

In two related issues on appeal, the District contends that: (1) section 21.211 

of the Texas Education Code “allows a school district’s board of trustees to suspend 

a teacher’s pay pending discharge with a proposed opinion, that is not finalized until 

a later meeting of the school board to review the recommendations of the 
10

independent hearing examiner, and grant back pay if good cause is not found” and 

(2) that the District “provided explanation and legal reason[s] for rejecting the 

Independent Hearing Examiner’s Conclusions of Law, as required by Texas 

Education Code 21.259(d).” In both issues, the District contends that the 

Commissioner erroneously concluded that the District could not suspend Moreno 

without pay before the hearing by the IHE.

Standard of Review

“On appeal of the district court’s judgment, the focus of the appellate court’s 

review, as in the district court, is on the decision of the Commissioner.” Goodie v.

Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 

2001, pet. denied). “A Commissioner’s decision may only be reversed on appeal if 

the decision is not supported by substantial evidence or the [C]ommissioner’s 

conclusions of law are erroneous.” Wittman v. Nelson, 100 S.W.3d 356, 359 (Tex. 

App.—San Antonio 2002, pet. denied); see also TEX. EDUC. CODE § 21.307(f). 

“[T]he Commissioner’s reasoning for his decision is immaterial if his conclusion is 

correct”; thus, we will “uphold the Commissioner’s decision on any legal basis 

shown in the record.” Goodie, 57 S.W.3d at 650.

The issue here calls upon us to review certain provisions of the Texas 

Education Code. Statutory construction presents a question of law that we review de 

novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Texas Ass’n of
11

Psychological Assocs. v. Tex. State Bd. of Exam’rs of Psychs., 439 S.W.3d 597, 602–

03 (Tex. App.—Austin 2014, no pet.). Our primary objective in statutory 

construction is to give effect to the legislature’s intent. Shumake, 199 S.W.3d at 284. 

The plain meaning of the text is the best expression of legislative intent unless a 

different meaning is supplied by legislative definition or is apparent from the 

context, or unless the plain meaning would lead to absurd or nonsensical results that 

the legislature could not have intended. City of Rockwall v. Hughes, 246 S.W.3d 621, 

625–26 (Tex. 2008); see TEX. GOV’T CODE § 311.011 (“Words and phrases shall be 

read in context and construed according to the rules of grammar and common 

usage.”). We consider the statute, and not just its isolated provisions. Harlingen

Family Dentistry v. Tex. Health & Human Servs. Comm’n, 452 S.W.3d 479, 481–82

(Tex. App.—Austin 2014, pet. dism’d). A court must also presume that the 

legislature chose its language with care, and that it included (or omitted) each word 

purposefully. See id. Finally, a statute is presumed to have been enacted by the 

legislature with complete knowledge of the existing law and with reference to 

it. See Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990).

We must give “serious consideration” to the Commissioner’s interpretation of 

a statute, and “we will generally uphold an agency’s interpretation of a statute it is 

charged by the Legislature with enforcing ‘so long as the construction is reasonable 

and does not contradict the plain language of the statute.’” R.R. Comm’n of Tex. v.
12

Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)

(quoting Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)). 

In this appeal, the issue is whether the Commissioner’s Conclusions of Law 

are erroneous. See Wittman, 100 S.W.3d at 359 (“A Commissioner’s decision may 

only be reversed on appeal if the decision is not supported by substantial evidence 

or the [C]ommissioner’s conclusions of law are erroneous.)”

4 Specifically, we 

consider Conclusion of Law No. 2, in which the Commissioner concluded that 

“Texas Education Code section 21.253 requires that a teacher be given notice of the 

proposed action and an opportunity to request and obtain a hearing before an 

independent hearing examiner before the action to suspend without pay takes place.”

(Emphasis added). Because all the Commissioner’s other Conclusions of Law hinge 

upon this one, we address it first.

Applicable Provisions of the Texas Education Code

Romero had a term contract with the District; thus, his termination or 

suspension was governed by Education Code section 21.211, which provides:

(a) the board of trustees may terminate a term contract and discharge a 

teacher at any time for:

(1) good cause as determined by the board; or

4 Because both parties agree that there was substantial evidence to support Romero’s 

suspension without pay and no party challenges the Commissioner’s Findings of 

Fact, this case involves only the propriety of the Commissioner’s Conclusions of 

Law.
13

(2) a financial exigency that requires a reduction in personnel.

(b) For a good cause, as determined by the board, the board of trustees 

may suspend a teacher without pay for a period not to extend beyond 

the end of the school year

(1) pending discharge of the teacher; or

(2) in lieu of terminating the teacher.

(c) A teacher who is not discharged after being suspended without pay 

pending discharge is entitled to back pay for the period of suspension.

TEX. EDUC. CODE § 21.211.

Subchapter F of Chapter 21 of the Education Code is entitled “Hearings 

Before Hearing Examiners.” Section 21.251 of subchapter F provides:

(a) This subchapter applies if a teacher requests a hearing after 

receiving notice of the proposed decision to:

(1) terminate the teacher’s continuing contract at any time, 

except as provided by Subsection (b)(3);[5]

(2) terminate the teacher’s probationary or term contract before 

the end of the contract period, except as provided by Subsection 

(b)(3); or

(3) suspend the teacher without pay.

(b) For a good cause, as determined by the board, the board of trustees 

may suspend a teacher without pay for a period not to extend beyond 

the end of the school year:

(1) pending discharge of the teacher; or

5 Subsection (b)(3) involves terminations “on the basis of a financial exigency” 

requiring “a reduction of personnel,” and is not applicable here. See TEX. EDUC.

CODE § 21.251(b)(3). 
14

(2) in lieu of terminating the teacher.

(c) A teacher who is not discharged after being suspended without pay 

pending discharge is entitled to back pay for the period of suspension. 

Id. § 21.251 (emphasis added).

Thereafter, subchapter F sets up a framework for the hearing process that is 

required if the teacher requests a hearing pursuant to section 21.251. The 

Commissioner of Education has described the process as follows:

A school district begins the process of suspending a teacher with pay 

by notifying the teacher that the district has proposed to suspend the 

teacher. Texas Education Code § 21.251. At this point no decision to 

suspend the teacher has been made. The teacher then has fifteen days 

to send a request for a hearing to the Commissioner. Texas Education 

Code § 21.253. The Commissioner then appoints a certified hearings 

examiner to preside over the proposed suspension unless the parties can 

agree on an individual of their own choosing. Texas Education Code § 

21.254. The certified hearings examiner has full powers to conduct the 

hearing. Texas Education Code § 21.255. At the hearing, the Texas 

Rules of Civil Evidence apply. Texas Education Code § 21.256. The 

school district has the burden of proof by a preponderance of evidence. 

Id. The certified hearings examiner’s duty is to determine which 

evidence is credible. There is no presumption that either the 

administration’s case or the employee’s case is credible. Good cause 

for suspending a teacher without pay is “good cause as determined by 

the board.” Texas Education Code § 21.211 (b). This does not mean 

that administration witnesses are given deference. Nor does it mean that 

the board can change findings of fact except as provided by Texas 

Education Code § 21.259.

Once the hearing is complete, the certified hearings examiner makes a 

written recommendation that includes findings of fact and conclusions 

of law and which may include a proposal for granting relief. Texas 

Education Code § 21.257. Proposed relief may include reinstatement, 

back pay and employment benefits. Id. It cannot include attorney’s fees 
15

or hearing costs. Id. The decision is sent to the parties, the President of 

the board of trustees and the Commissioner. Id.

The board of trustees or a subcommittee created for this purpose then

promptly considers the recommendation of the certified hearings 

examiner. Texas Education Code § 21.258. Within ten days of the board 

meeting, an announcement of the board’s or the committee’s decision 

is made. Texas Education Code § 21.259. The certified hearings 

examiner’s findings of fact may be changed after the record is reviewed 

and if they are not supported by substantial evidence. The reason for 

any change to the conclusions of law, findings of fact and the proposal 

for relief must be stated in writing by the board or subcommittee. Id. 

See Goodie v. Houston ISD, Docket No. 002-R2-996 (Comm'r Educ. 

1997) for further discussion.

This system, created by S.B. 1, dramatically changes the procedures of 

the past. A full and more formal evidentiary hearing is provided. The 

hearing is conducted by a lawyer who does not have clients who are 

involved in school litigation. Texas Education Code § 21.252. The 

board of trustees is significantly limited in its ability to change findings 

of fact. While the board has much more freedom to change conclusions 

of law and proposals for relief, the reasons for the change need to be 

clearly spelled out. Under the new system, the board of trustees do not 

hear the evidence and are limited in their ability to review the proposal 

it receives.

Boyer v. Austin Indep. Sch. Dist., Docket No. 062-R3-1296, 1997 WL 35411024, 

at *1-2 (Comm’r Educ. 1997).

Of particular interest in this case is section 21.253 of subchapter F, which 

provides that “a teacher must file a written request for a [subchapter F hearing] with 

the commissioner not later than the 15th day after the date the teacher receives 

written notice of the proposed action.” See TEX. EDUC. CODE § 21.253 (emphasis 

added).
16

Also, important to the issue in this case is subsection 21.257 of subchapter F, 

which provides:

(a) Not later than the 60th day after the date on which the commissioner 

receives a teacher’s written request for a hearing, the hearing examiner 

shall complete the hearing and made a written recommendation that:

(1) includes proposed findings of fact and conclusions of law; 

and

(2) may include a proposal for granting relief.

(b) The proposed relief under Subjection (a)(2) may include

reinstatement, back pay, or employment benefits but may not include 

attorney’s fees or other costs associated with the hearing or appeals 

from the hearing.

Id. § 12.257(a), (b) (emphasis added).

After the IHE hearing and recommendation, the Education Code provides that 

“[t]he board of trustees or a subcommittee designated by the board shall consider 

the recommendation and record of the hearing examiner at the first board meeting 

for which notice can be posted . . . following the issuance of the [IHE’s] 

recommendation.” Id. § 21.258 (emphasis added). After the board meeting, “the 

board of trustees or board subcommittee shall announce a decision that (1) includes 

findings of fact and conclusions of law; and (2) may include a grant of relief. TEX.

EDUC. CODE § 21.259(a) (emphasis added). “[A]fter the date the board of trustees or 

board subcommittee announces its decision under Section 21.259, the teacher may 

appeal to the commissioner [under subchapter G].” Id. § 21.201.
17

The Parties’ Positions

According to the District, “[t]he question at hand, is whether during the 

process of terminating an employment contract, the school district can suspend the 

teacher without pay?” The District contends that because both sections 21.211(c) 

and 21.257 reference “back pay,” the Commissioner’s interpretation requiring an

IME hearing before suspending a teacher’s pay leads to an “absurd result” because,

“[i]f the exact same steps are required to stop an employee’s pay, and also discharge 

the employee, there would be no need to ever award back pay, because the decision 

[to terminate and suspend pay] would ultimately be made simultaneously.”

The Commissioner and Romero believe that the District is taking the “back 

pay” provisions in isolation, without properly considering the entirety of subchapter 

F, and that those provisions can be read in harmony with all the subchapter F 

provisions, including the requirement for an IME hearing. Specifically, the 

Commissioner and Romero argue that there are, in fact, circumstances in which back 

pay might be awarded, thereby undermining the District’s argument that if an IME 

hearing is required before suspending a teacher without pay, “there would be no need 

to ever award back pay.”

Prior Commissioner Opinions and Analogous Judicial Authority

Although no Texas courts have addressed the issue, the Commissioner of 

Education has consistently held that once a teacher has requests a subchapter F 
18

hearing before an IHE, all the provisions of subchapter F must be complied with 

before the teacher’s pay can be suspended.

In Boyd v. Lake Travis Independent School District, Docket No. 153-R2-696, 

1996 WL 35048821 (Comm’r Educ. 1996), the petitioner, Boyd, challenged the

School District’s decision to suspend him without pay and to terminate his term 

contract prior to the end of the contract term. Id. at *1. The Commissioner addressed 

the application of subchapter F as follows:

Petitioner objects that he did not receive notice that Respondent was 

considering suspending him without pay in violation of Texas 

Education Code §21.251. It should be noted that until the last session 

of the Legislature the Term Contract Nonrenewal Act did not apply to 

suspensions without pay. Texas Education Code §§ 21.201–21.211 

(Vernon 1992). But the section of the new Texas Education Code which 

deals with term contracts does apply to suspensions without pay. Texas 

Education Code §21.211. In fact, the same Subchapter F procedures 

that apply to termination of contract apply to suspensions without pay. 

Petitioner did not receive notice of the proposal to suspend his 

employment without pay and therefore, had no opportunity to contest

the action through the certified hearing examiner process. The district 

was required to give Petitioner this opportunity. Therefore, Petitioner 

is entitled to back pay for the period from February 20, 1996 to the date 

of the decision of the board of trustees. 

Id. at *2. Thereafter, the Commissioner concluded that “Respondent failed to 

provide notice and an opportunity for a due process hearing prior to suspending 

Petitioner without pay. Petitioner is entitled to back pay for the period between 

February 20, 1996, until the date of the decision of the board of trustees.” Id.
19

In Guerra v. San Diego Independent School District, Docket No. 147-R2-796 

1996 WL 35048819 (Comm’r Educ. 1996), a decision both the IHE and the 

Commissioner rely on in this case, the petitioner was first suspended with pay, and 

then the board voted to terminate his contract on February 22, 1996. Id. at *2. The 

next day, the school district gave the petitioner notice of its vote to terminate his 

contract. Id. The IHE recommended that there was good cause for the petitioner’s

termination and that his salary was properly suspended even though he had not 

received notice of the district’s intention to suspend him without pay. The 

Commissioner denied the petitioner’s appeal as to good cause for termination but

granted his appeal as to suspension without pay. The Commissioner addressed the 

issue as follows:

Petitioner also asserts that under the recent decision of Boyd v. Lake 

Travis ISD, No. 153-Rs-696 (July 1996), he is entitled to his salary 

during the period of his suspension because the district failed to provide 

him with due process prior to suspending him without pay. Petitioner is 

correct. Tex. Educ. Code § 21.253 requires that a teacher be given 

notice of the proposed action and an opportunity to request a hearing 

before the action takes place. Petitioner was not given notice of the 

proposed action; therefore, the suspension without pay was invalid. 

Petitioner is entitled to his salary for the period of his suspension, up to 

the date of the decision of the board of trustees to terminate him.

Id. at *3. Thereafter, the Commissioner concluded that “Respondent improperly 

suspended Petitioner without pay prior to the hearing before the board of trustees; 

Petitioner was entitled to a hearing before a certified hearing examiner prior to being 

deprived of his salary,” and the Commissioner held that “Petitioner is entitled to his 
20

salary and benefits for the period of his suspension without pay, up to the date of the 

termination of his employment by the board of trustees.” Id.

The most similar judicial decision on the issue is found in Salinas v. Central 

Education Agency, 706 S.W.2d 791, 794 (Tex. App.—Austin 1986). In Salinas, the 

“issue on appeal [was] whether a board of trustees [could] lawfully decide not to 

renew a teacher’s contract without first giving the teacher notice that nonrenwal 

[was] being considered, and then allowing the teacher a hearing before the decision 

[was] made by the board.” Id. at 794.

It is clear that the Act was enacted to give Texas teachers certain 

procedural protections. Seifert v. Lingleville Independent School 

District, 692 S.W.2d 461 (Tex. 1985). The total effect of the Act is to 

ensure that teachers under term contracts will only be subject to 

nonrenewal when they fail to follow the lawful policies established by 

their school district, and that each school district must establish clear 

reasons for nonrenewal. Such teachers are entitled to notice and a 

hearing before the decision not to renew their contract is made by the 

board of trustees. See §§ 21.203–21.205 of the Act.

The school district could not decide not to renew appellant’s contract 

without complying with the procedural requirements of the Act. 

Fundamental fairness dictates that a person must be given the 

opportunity to be heard on the merits of the dispute at a meaningful 

time (adequate notice) and in a meaningful manner (a fair 

hearing). Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.

1983). The Act permits no less.

The Act plainly recognizes the power of the board of trustees of each 

school district to choose not to renew the contract of any teacher 

employed under a term contract. It may well be that the six specific 

reasons cited by the board in its March 12 letter would support its 

decision not to renew appellant’s contract. However, before the board 

could lawfully decide not to renew appellant’s contract, the board had 
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to first comply with the minimum procedural requirements established 

by the Act. It had to notify appellant that nonrenewal was being 

proposed or considered, and it had to give him an opportunity to 

respond before deciding not to renew his contract.

Id. at 794–95.

Analysis

The District argues that because section 21.211(c) and 21.257(b) both permit 

the award of back pay, and back pay would never be an issue if a suspension without 

pay could not occur until after an IHE hearing, it would be an “absurd result” to 

require the completion of the subchapter F process before a District could suspend a 

teacher without pay. Specifically, the District argues that “[t]he only interpretation 

of the subchapter F process as applied to suspensions without pay, which does not 

ignore the provisions regarding back pay, is that a school district is allowed to place

an employee on unpaid leave after providing notice of the board’s vote in favor of 

the proposed decision while the process is pending to terminate the employee’s 

contract.”

The Commissioner responds that the District’s interpretation reads the “back 

pay” provisions in isolation and ignores the clear language of section 21.251(a)(3),

which unambiguously provides that subchapter F applies if a teacher requests a 

hearing after receiving notice of the proposed decision to suspend the teacher 

without pay. See TEX. EDUC. CODE § 21.251(a)(3). The District also points out that 

there are, in fact, situations in which back pay can properly be awarded, thus 
22

undercutting the District’s argument that the “back pay” provisions are meaningless 

unless the Court adopts its interpretation.

We agree with the Commissioner’s position that, once a teacher has requested 

a hearing, the provisions of subchapter F, including the holding of an IME hearing, 

must be complied with before the District can suspend the teacher’s pay. The 

District’s position assumes that suspension without pay and termination are always 

pursued simultaneously. But, there is nothing in the record to show that such is

always the case. In fact, the District’s brief acknowledges that “there are very few 

times when a district could go through the [subchapter F] process twice, once to 

suspend the employee’s pay, and again to terminate the contract.” The District does 

not, nor can it, say that the two procedures must be pursued simultaneously. And, to 

the extent that the two circumstances could be pursued separately, the provision for 

back pay in subsection 21.211(c) can be reconciled with the requirement of a 

subchapter F proceeding before awarding back pay.6

6 We also note that, as here, the termination without pay can be done in lieu of 

termination. TEX. EDUC. CODE § 21.211(b)(2). Thus, the discharge issue in this case 

did not “go hand in hand” with the suspension-of-pay issue. Once Romero resigned, 

his termination “pending discharge” became an “in lieu of terminat[ion]” 

proceeding. See id. § 21.211(b). Arguably, subsection (c) of that statute, which 

provides that “[a] teacher who is not discharged after being suspended without pay 

pending discharge is entitled to back pay for the period of suspension,” does not 

apply in this case because discharge was not an issue. Romero’s entitlement to back 

pay would be governed by section 21.257(b), not section 21.211(c).
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Second, subchapter F and the requirement for an IHE hearing do not apply in 

situations in which the teacher does not request a hearing. See id. § 21.251(a). Thus, 

if a teacher is suspended without pay pending discharge and does not request a 

hearing, but is eventually not discharged for whatever reason, the teacher can be 

awarded back pay under section 21.211. See id. § 21.211(c).

Finally, the fact that, under subsection 21.257, the IHE can recommend back 

pay as a potential remedy simply acknowledges that there may be circumstances in 

which the District has not complied with subchapter F and has wrongly suspended 

the teacher, thus making the remedy of back pay available. See id. § 21.257(b). In 

fact, the same provision also provides “reinstatement” as a proposed remedy, but the 

District does not and cannot argue that subchapter F and its requirement of a factfinding hearing before an IHE does not apply in cases involving termination.

Thus, we agree with the Commissioner that the “back pay” provisions can be 

reconciled with the requirement of an IHE hearing before a teacher can be suspended 

without pay. This interpretation is consistent with the judicial interpretation of an 

analogous provision in Salinas, in which the court held that “teachers are entitled to 

notice and a hearing before the decision . . . is made by the board of trustees” and 
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that “before the board could lawfully decide . . . , the board has to first comply with 

the minimum procedure requirements established by the Act.” 7 706 S.W.2d at 794.

Accordingly, we overrule the District’s first issue.

The District’s Conclusions of Law

The Commissioner’s decision found that the Board did not provide “any 

explanation or legal basis” for its changes to the IHE’s conclusions of law. In issue 

two, the District contends that it did, in fact, provide “explanation and legal reason 

for rejecting the [IHE’s] Conclusions of law, as required by Texas Education Code 

21.259(d).”

A school board is entitled to adopt, reject, or change a hearing examiner's 

conclusions of law, and make the ultimate decision of whether to renew a particular 

contract, so long as the school board’s decision is supported by substantial evidence 

and free from legal error. See TEX. EDUC. CODE. §§ 21.259(b), 21.307(f). Here, the 

Board’s changes to the IHE’s conclusions of law were not “free from legal error.” 

As the Commissioner stated in his decision, and this Court affirmed above, the 

7 We note that Salinas addressed the requirement of a hearing before the board could 

make a decision not to renew a teacher’s contract and held that the hearing must 

take place before the board made a final decision not to renew the contract. See id.

§ 21.207. Nevertheless, we find persuasive its holding that, once invoked by the 

teacher, a hearing is not only required, but it must also occur before the board of 

trustees can take the challenged action.
25

changes the Board made were “based on the Board’s incorrect interpretation of the 

law as stated in its Conclusions of Law 16 and 17.”

Accordingly, we overrule issue two.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Landau.