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

ON MOTION F OR REHEARING

NO. 03-09-00249- CV

Laryn McCandless, Appellan t

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

Scott, in his of

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

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

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

We withdraw the opinion issued Fe bruar y 17 , 2 0 1 0 and substitut e this opinion in its place. L ary

n McCandless sued the Commi ssioner of Educa tion (the “Commissi oner” ) and Pasadena I ndepende nt School Dis t ri ct (“PI SD”) for judicial revie w of the Commi ssioner’s order dismiss ing her g rieva

nce ag ainst PI SD for lack of jurisdiction. McCandless als o b ro u ght a common-law brea ch-of

-contra ct claim ag ainst PI SD. I n two order s, the t ri al court aff irmed the Commi ssioner of Educa tion’s dismiss al of McCandless’s administrative appea l and g rante d PI SD’s plea to the jurisdiction dismiss ing McCandless’s common-law brea ch-of -contra ct claim beca

use of g overnme ntal immunit y . I n three issues on appea l, McCandless asser ts that (1) the trial court err edin aff

irming the Commi ssioner’s order of dismiss al beca use the Commi ssioner had jurisdiction over her administrative appea l, (2) the trial court err ed when it g rante d PI SD’s plea t o t h e j urisdiction beca use McCandless pleade d a cause of action for which g overnme ntal immunit y was waived, and (3) the trial cour

t erre d when it denied he r re quest to rema nd the case to the Commi ssioner to take additional evidenc e. We will affir m the trial court’ s order s. Seeking to become a cer tified teac her, McC an d l es s enrolled in an alterna tive
teac her- cer

tification course throug h the Reg ion I V Educa tion Service Ce n t er (“Region I V”) , an alternative teac her- cer

tification course provider approve d by the State Boa rd for Educa tor Certifica tion. As part of the cer tification proce ss, she worke d for PI SD as an “intern” on a one-y ear probationar

y contra ct. Reg ion I V reque sted McCandless’s principal’s opin i o n o n M cCandless’s perf ormanc e as part of its standard proce dure for evalua ting a candida te’s qualifica t i o n s for

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

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

rec ommendation and a continued o ffe r of employ ment befor e Reg ion I V would rec ommend

cer tification of a candida te t o the S tate Boar d fo r E d u cator Certifica tion, Reg ion I V s ubsequently

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

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

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

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

ment at the s chool wil l not be continued. McCandless’s principal selec ted t he thi rd opt ion, wr i t i n g in the comments section that “I fee l that a differ ent assig nment will aff ord [McCandless] opportunity for g rowth.” 2declined to rec ommend McCandless. McCandless claims that the pri n cipal acte d arbitra rily or capr iciously when she declined to rec ommend McCandless for cer tification and instead

rec ommended that she repe at the internship, and there fore the principal’s action was an abuse of discretion. She filed a first-leve l g rieva nce with the principa l re q u est ing that the principal recommend her for cer

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

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

. . . . (2) actions or decisions of any school district board of

trustees that violate: (A) the school laws of this state; or (B ) a provision of a written employ ment contra ct b e tw e e n the school

3d istrict and a school district employ ee, if a violation cause s o r would cause monetary

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

First, McCandless asser

ted to the Commi ssioner t h at the principal’s failure to

rec ommend her for cer

tification violated the “school laws of this state,” specific ally education code section 21.551, which is the “purpose s” section of the “Te ach for Texas Pilot Progr am Relating to Alterna tive Certifica tion.” Tex. Educ. Code Ann. § 21.551 (West 2006). This contention is without merit. That provision imposes no duties on the school board , t h e p rincipal, or a provider such as Reg ion I V, nor does it confe r on McCandless any rig hts or privileg es. T h e provision mere ly sets forth, in g ener al terms, the g oals of the c ertification prog ram.

Second, McCandless asser ted that the Commi ssioner has jurisdi ct ion beca use she alleg ed a brea ch of section 20 of her employ ment contra ct with PI SD. The Commi ssioner noted that McCandless failed to brief this issue, and thus waived this contention. See 19 Tex. Admin. Code Ann. § 157.1058(c) (2009) (Tex. Educ. Ag ency , Hea ring s and Appea l s ) (i ssues waived if not briefe d). Even if we assume the contra ct claim was proper ly briefe d befor e the Commi ssioner, and there fore not waived, McCandless wou l d n o t preva il. Section 20 of the employ ment contra ct

s t at es that McCandless’s employ ment is conditioned on satisfac tory participa tion in the Reg ion I V cer

tification prog ram and that failure to satis fa ct o ri l y participa te shall constitute g ood

cause for terminatio n . T h is provision does not confe r on McCandless the right to a favor able evalua tion from her supervising principal, but mere ly s ay s that failure to satisfac torily participa te—for whateve r rea son—is g rounds for termination. I n any event, the rec ord shows that

4McCandless resig ned on Fe bruar y 10, 2005, eff

ective at the end of the school y ear ; she was not fired

nor could she have predic ated her resig nati o n on the principal’s unfavor able rec ommendation beca use the principal did not issue her rec ommendation until April 29, 2005. Having no jurisdiction

over McCandless ’s ap peal, the Commi ssioner proper ly dismiss ed her claims, and the trial court proper ly aff irmed the dismissal. I n the trial court, McCandless appende d a common-law brea ch-of -contra ct action ag ainst PI SD to her suit for judicial revie w of the Commi ssioner’s decision. PI SD alleg ed that g overnme ntal immunit y barr ed her claim and filed a plea to t h e j u risdiction, which the trial court g rante d. McCandles s as s er t s that local g overnme nt code section 271.152 waives PI SD’s g overnme ntal immunit y . Section 271.152 states:

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

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

Gover nmental immunit y deprive s the trial court of s u b je c t- ma tt e r ju r is d ic ti o n in c a s e s wher e instrumentalities of the state have been sued, absent waiver of immunit y by the state. Texas Dep’ t of Parks & W

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

or denial of a plea to the jurisdiction, we consider the plaintiff’s pleading s, construed in favor of the plaintiff, and any evidenc e rele vant to jur is d ic ti o n w ithout considering the merits of the claim bey ond the extent nece ssary to deter mine jurisdiction. Id. ; County of Cameron v. Brown , 80 S.W .3d 549, 555 (Tex. 2002). Plaintiff bear s the burden to aff irmatively demonstrate the trial court’s jurisdiction
5by alleg ing a valid waiver of i mmunity , which may be either a refer ence t o a s t at u t e o r t o express

leg islative permission. Texas Dep’ t of Transp. v. Jo n es , 8 S

. W.3d 636, 637 (Tex. 1999). I f the plaintiff’s pleading s “af

firmatively neg ate the exis tence of jurisdiction,” then g ranting a plea to the jurisdiction is proper without aff ording the plaintiff an opportunity to amend. Miranda , 133 S.W .3d at 227. McCandless pleade d that she had a contra ct of employ ment with PI SD in which PI SD ag ree d to pay her salary for one y ear in exchang e for her work as an intern and satisfac tory participa tion in an alterna tive teac her- cer tification prog ram. McCandless further pleaded that she p er fo rm ed her “oblig ations by completing all of the require ments for the alterna tive cer tification prog ram” and that “[PI SD] brea ched the contra ct by failing to rec ommend [her] for cer tification” afte r she completed the require ments. The contra ct at issue is unambig uous, so to deter mine the parties’ intent we construe the plain meaning of the words. See C h r ys l er Ins. Co. v. Gree nspoint Dodge of Houston, Inc. , 297 S.W .3d 248, 252 (Tex

. 2 0 0 9 ) (p er curiam). After revie wing the
contra ct, we hold that McCandless’s pleading s and undisputed jurisdictional evidenc e aff irmatively neg ate the exis tence of

jurisdiction beca

use her employ

ment contra ct cannot be construed to require the school district or its principal to rec ommend McCandless for cer tification even assum i n g she perf ormed her duties adequately —the only conduct by PI SD that McCandless alleg es brea ched the
contra ct. McCandless’s pleade d jurisdictional fac ts, liberally construed in her favor in conjunction with the undisputed evidenc e, there fore neg ate a breach o f h er employ ment contra ct. Wit hout a proper ly ple a d e d b r e a c h

- o f

- c ontrac t action, section 271.152 does not waive g overnme ntal immunit y . Be cause we hold that M cC an dless’s pl eading s aff irmatively neg ated the exis tence of j urisdiction,

6the t ri al court did not err in g ranting PI SD’s plea to the jurisdiction without aff ording her an opportunity

to amend. See M

iranda , 133 S.W .3d at 226-27. Finally , McCandless co m p l ai n s that the trial court abused its discretion by not g ranting her motion to rema nd to the Commi ssioner to prese nt additional evidenc e. S ec t i on 2001.175(c) o f t h e Ad m i n istrative Procedur e Act g overns such a reque st. I t provides, in pertinent pa

rt:

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

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

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

. Given McCandless’s appar ent knowledg e of and acc ess to the evidenc e b ef

o re the ag ency proce eding s beg an, the trial court could rea sonably have deter

mined that she did not have “g ood rea sons” for failing to p rese nt the evidenc e ear lier. See id. § 2001.175(c)

. We the ref ore hold that the trial court did not abuse its discretion in denying McCandless’s r equest.

7CONCLUSION Ha v i n g o verr

uled McCandless’s issues on appea l, we aff irm both of the trial court’s or ders.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med on Motion for Rehea ring Filed: Apr il 2, 2010

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