Opinion issued August 20, 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00349
- CV

——————————— HOUSTON COMMUNITY CO LLEGE S YS TEMS , Appellant V. TEXAS WORKFORCE COMM ISSION AND SABRINA Y . LEWIS , Appellee s
On Appeal from the 151st District Court

Harris County, Texas Trial Court Case No. 2016
- 52796

MEMORANDUM OPINION Houston Community College Systems (HCC) appeals the tr ial court’s summary judgment affirming the Texa s Workforce Commission ’ s (TWC) determination that appel lee Sabrina Y. Lewis was entitled to unemployment2

benefits. On appeal, HCC contends that a procedural error during the administrative
appe al s process requires reversal of the TWC determination

. We affirm. Background Appellee Sabrina Y. Lewis began working for HCC in 1992

. In September 2015, Lewis confronted a subordinate and informed her that she would be placed on a performance im

pr ovement plan . Lewis maintains that she called campus police
after the subordinate began yelling and disrupting the office

. HCC in turn contends that Lewis yelled and behaved inappropriately, in violation of its poli ci es . HCC put Lewis on administrative leave , and she engaged an attorney. HCC terminated Lewis’s employment in early October 2015. Lewis filed a claim for unemployment benefits, which was allowed by TWC , and HCC appealed. TWC sent Lewis a notice of hearing, which inform ed her that

a n appeal tribunal hearing was scheduled for January 5, 2016. Lewis wanted her previously

- engaged attorney to represent her at the TWC appeal tribunal hearing, but the attorne y was out of the country and would not return before January 5. Both Lewis and HCC requested that the hearing be postponed. The hearing officer denied
both request s . On January 5, 2016, the hearing was conducted by telepho ne. Le wis called in , and she was sworn as a witness . After answering several undisputed background3

questions, she declined to participate further because her attorney had previously advised her not to discuss her employment termination

. The hearing o ff icer asked if she was going to participate and informed her that if she stayed on the phone call, he would “deem that as a participation.” Lewis disconnected

. The hearing officer conducted the remainder of the hearing without Lewis, accepting ev idence from
HCC

. Based on HCC’s evidence, the appeal tribunal concluded that Lewis ’s actions constituted misconduct and that she was disqualified from receiving unemployment benefits. 1 Lewis’s attorney requested a new hearing , asserting that L ew is had good
cause for her failure to appear because the attorney was out of the country

. She also asserted that a new hearing would be “fair” because only HCC’s “one

- sided evidence” was considered by TWC in making its determination. A different hearing officer conducted a hearing , determined that the unavailability of Lewis’s attorney was good cause for her nonappearance, reopened the hearing, and received evidence. After the hearing, the appeal tribunal concluded that the evidenc e did not prove the “alleged misconduct” and that Le wis was entitled to unemployment benefits.

1 “An individual is disqualified for benefits if the individual was discharged for misconduct connected with the individual’s last work.” T EX
. L AB
. C ODE § 207.044. “‘Mi sc onduct’ means mismanagement of a position of employment by a ct ion or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to en su re the orderly work and the safety of employees.” Id. § 201. 01 2.4

HCC initiated a further administrative appeal , and the TWC upheld the appeal tribunal ’ s determination

. Having exhausted its administrative remedi es , HCC appealed to the district court for de novo review. In the t rial court, HCC moved for summary judgment, argu ing that the hearing examiner erred by reopening the hearing because Lewis initially made an appearance during the January telephone hearing

. HCC asserted that th is error required a reversal and reinstatement of the initial “no benefits” determination made after the January appeal tribunal hearing. Lewis moved for summary judgment on the ground that the TWC’s final de cision that she wa s entitled to unemployment benefits was supported by substantial evidence. T he trial court granted Lewis’s summary judgment motion and denied HCC’s motion. HCC appealed. Analysis In its brief, HCC states four issues challenging the trial court’s rulings on t he motions for summary judgment. It s argument , however, centers entirely o n the alleged procedural error of reopening the administrative appeal hearing. 2

2 HCC’ s stated issues are :

(1) Whether the trial court erred in denying HCC’s Motion for Summary Judgment. (2) Whether the trial court erred in granting the Motion for Summary Judgment filed by t he TWC and Lewis and entering a final judgment in their favor.5

We review de novo the trial court ’ s ruling on a motion for summary judgment. Tarr v. Timberwood Par k Owners Ass’n, Inc. , 556 S.W.3d 274, 278 (Tex. 2018). Each party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. T EX
. R. C IV
. P. 1 66 a(c); see Provident Life & Accident Ins. Co. v.
Knott , 128 S.W.3d 211, 215

– 16 (Tex. 2003). “ W hen opposing parties file counter motions for summary judgment and the trial court grants one motion and denies the other, the appellate court has jurisdiction t o determine all questions presented in the opposing motions and to render the j udgment the trial court should have rendered.” Lancer Ins. Co. v. Garcia Holiday Tours , 345 S.W.3d 50, 59 (Tex. 2011)

. HCC contends that the trial court erred by denying its mo ti on for summary judgment because the agency should not have reopened the heari ng and permitted Lewis to introduce evidence. The Texas Labor Code authorizes judicial review when

(3) W hether the trial court erred in implicitly finding that Lewis did not “appear” at the TWC appeal hearing on January 5, 2016, despite the fact that she called in to the hearing, was sworn in as a witness by the TWC hearing officer, and provided sworn test im ony to the TWC hearing officer. (4) Whether the trial court erred in implicitly finding that Lewis could petition the TWC to re

- open the administrative record on the grounds that she did not “appe ar” at the TWC appeal hearing on January 5, 2016, despite the fa ct that she called in to the hearing, was sworn in as a witness by the TWC hearing officer, and provided sworn testimony to the TWC hearing officer.6

a party is “aggrieved by a final decision of the commission.” T EX
. L AB
. C ODE § 2 12.201. “ The decision of an appeal tribunal is the final decision of the

comm i ssion unless further appeal is initiated . . . .” Id. § 212.104 (emphasis added)

. After the second hearing examiner decided to reopen the hearing, Lewis presented evidence, and the appeal tribun al determined that she was entitled to unemployment
benefits. HCC promptly initiated a further appeal. The decision to reopen the hearing was not a final decision; rather, it was an interlocutory decision to permit Lewis to present evidence. This determina ti on is not a “final decision of the commission,”
and it is n o t subject to judicial review. See id. § 212.201. We overrule HCC’s first, third, and fourth issues. HCC’s second issue asserts that the trial court erred by granting summary judgment in favor o f Lewis and the TWC. HCC made no substantive argument on
appe a l regarding whether the TWC’s determination was supported by substantial evidence. To the extent that HCC intended to challenge the final decision of the commission that Lewis was entitled to un em ployment benefits, the issue is inadequately briefed. See T E X
. R. A PP
. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.”). We overrule HCC’s second issue. C onclusion We affirm the judgment of the trial court.7 Peter Kelly Justice Panel consists of Justices Keyes, Kelly, and Goodman.