NO. 05-14-01165-CV

IN THE COURT OF APPEALS 

FOR THE FIFTH DISTRICT OF TEXAS 

AT DALLAS, TEXAS 

__________________________________________________________________ 

SYLVIA ORTIZ, Appellant

v.

COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee 

and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant 

__________________________________________________________________ 

On Appeal from the 429th District Court, Collin County, 

Texas Trial Court Cause No. 429-00459-2014

__________________________________________________________________ 

APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’ 

RESPONSE TO BRIEF OF APPELLANT ORTIZ 

AND

RESPONSE TO BRIEF OF CROSS-APPELLANT PLANO I.S.D. 

__________________________________________________________________ 

KEN PAXTON 

Attorney General of Texas 

CHARLES E. ROY 

First Assistant Attorney General 

 

JAME E. DAVIS 

Deputy Attorney General for Defense 

Litigation 

DAVID A. TALBOT, JR. 

Chief, Administrative Law Division 

ROBIN SANDERS 

Assistant Attorney General 

Texas Bar No. 09310900 

Office of the Texas Attorney General 

Administrative Law Division 

P. O. Box 12548 

Austin TX 78711-2548 

Phone: (512) 475-4005 

Fax: (512) 320-0167 

robin.sanders@texasattorneygeneral.gov

COUNSEL FOR APPELLEE/CROSS-APPELLEE 

COMMISSIONER OF EDUCATION 

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

05-14-01165-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

4/13/2015 4:02:52 PM

LISA MATZ

CLERK5th Court of Appeals FILED: 4/13/15

Lisa Matz, Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF CASE ....................................................................................... vii

STATEMENT REGARDING ORAL AGRUMENT ............................................ vii

ISSUES PRESENTED........................................................................................... viii

STATEMENT OF FACTS ........................................................................................2

STANDARD OF REVIEW.......................................................................................2

COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”...........................4

A. Grounds rejected by the Commissioner........................................................4

1. Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s 

cross-issues 1 and 2)..............................................................................5

2. Waiver by offer of new term contract (Ortiz’s issues 1 and 3, 

Plano cross-issues 1 and 3)....................................................................9

3. Absolute privilege for statements in judicial proceeding 

(Ortiz’s issues 1 – 3, Plano’s cross-issue 4):.......................................13

4. Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3, 

Plano’s cross-issue 6)..........................................................................15

a. The investigative reports...........................................................15

b. The hearsay contained within the investigative reports............17

c. Expert Issues.............................................................................18
iii

5. Allegations without supporting factual findings (Plano’s 

cross-issue 5).......................................................................................20

6. Summary of Response to Plano I.S.D.................................................20

B. Grounds accepted by the Commissioner.....................................................21

1. The March 23, 2012, agreement (Ortiz’s issues 1, 4).........................22

2. Ortiz’s recorded communications with student (Ortiz’s issue 1)........23

CONCLUSION AND PRAYER .............................................................................24

CERTIFICATE OF COMPLIANCE.......................................................................26

CERTIFICATE OF SERVICE ................................................................................26
iv

TABLE OF AUTHORITIES

Cases

Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 729 (S.D. Tex. 2013)......2, 22

Auto Convoy v. R.R. Comm’n, 507 S.W.2d 718 (Tex. 1974)....................................4

Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .........................................................14

Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307 (Tex. App.—Houston 

[1st Dist.] 2000, no pet.)......................................................................... 2, 3, 4

First Sw. Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App.—

Texarkana 1989, writ denied)........................................................................17

Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989).............................16

Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56 (Tex. App.—

Houston [14th Dist.] 2004, no pet.)...............................................................19

Grigsby v. Moses, 31 S.W.3d 747 (Tex. App.—Austin 2000, no pet.)...................13

Guerra v. Santa Rosa Indep. Sch. Dist., 241 S.W.3d 594 (Tex. App.—

Corpus Christi, 2007, pet. denied)...................................................................8

Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. 

Standards, 393 S.W.3d 417 (Tex. App.—Austin, 2012, pet. denied).............3

Hernandez v. Hayes, 931 S.W.2d 648 (Tex. App.—Houston [1st Dist.] 

1998, pet. denied) ..........................................................................................14

James v. Brown, 637 S.W.2d 914 (Tex. 1982)........................................................14

Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 

1998, pet denied) ...........................................................................................14

Matthews v. Scott, 268 S.W.3d 162 (Tex. App. –Corpus Christi 2008, 

no pet.).............................................................................................. 2, 3, 5, 21
v

Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) ........... 3, 4, 20

Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993)...................................16

Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491 (Tex. 1988).............7

Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942)............................14

SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995) ............................6

Tex. Alcoholic Beverage Comm’n v. Twenty Wings, Ltd., 112 S.W.3d 647

(Tex. App.—Fort Worth 2003, rev. denied)...................................................3

Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 

665 S.W.2d 446 (Tex. 1984) ............................................................ 2, 3, 5, 21

Tex. State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114

(Tex. 1988), cert. denied, 490 U.S. 1080, 109 S. Ct. 2100 (1989) .............2, 3

Statutes

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g..............................6

Tex. Educ. Code § 11.1513......................................................................................12

Tex. Educ. Code § 21.204........................................................................................12

Tex. Educ. Code § 21.256 (d)..................................................................................15

Tex. Educ. Code § 21.256 (e) ..................................................................................15

Tex. Educ. Code § 21.257(a)(2)(a-1).......................................................................19

Tex. Educ. Code § 21.307 (e) ..............................................................................2, 22

Tex. Educ. Code § 21.307 (f).....................................................................................3

Tex. Educ. Code § 21.307 (g)......................................................................... 3, 5, 21
vi

Rules

Tex. R. Civ. 702................................................................................................ 18, 19

Tex. R. Civ. Pro. 45 ...................................................................................................9

Tex. R. Evid. 803 (6)................................................................................................15

Tex. R. Evid. 803 (8)................................................................................................15

Tex. R. Evid. 805 .....................................................................................................17

Commissioners' Decision

Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203 

(Comm’r Educ. 2004)..................................................................................8, 9

Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099 

(Comm’r Educ. 1999)......................................................................................6

Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703 

(Comm’r Educ. 2003)....................................................................................10

Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598 

(Comm’r Educ. 1998)......................................................................................6
vii

STATEMENT OF CASE

Commissioner Williams agrees with Appellant Ortiz’s statement of the 

procedural history of the case. 

STATEMENT REGARDING ORAL AGRUMENT

Commissioner Williams believes the issues presented by this case are 

controlled by settled principles of law and that oral argument would not be of 

significant benefit to the court. Accordingly, the Commissioner does not request 

oral argument. 
viii

ISSUE PRESENTED

Whether substantial evidence supports Plano Board of Trustees’ decision, as 

affirmed by the independent hearing officer, the Commission of Education and the 

district court, to terminate appellant Ortiz’s teaching contract.
1

NO. 05-14-01165-CV

IN THE COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS, TEXAS

__________________________________________________________________

SYLVIA ORTIZ, Appellant

v.

COMMISSIONER OF EDUCATION, Appellee/Cross-Appellee

and PLANO INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant

__________________________________________________________________

On Appeal from the 429th District Court, Collin County,

Texas Trial Court Cause No. 429-00459-2014

__________________________________________________________________

APPELLEE/CROSS-APPELLEE COMMISSIONER WILLIAMS’ 

RESPONSE TO BRIEFS OF 

APPELLANT ORTIZ AND CROSS-APPELLANT PLANO I.S.D.

COMES NOW Michael Williams, State Commissioner of Education (‘the 

Commissioner”), by and through his attorney of record Ken Paxton, Attorney 

General of Texas, and the undersigned Assistant Attorney General, and files his brief 

in response to the briefs filed by Appellant Ortiz and Cross-appellant Plano 

Independent School District. For the reasons set forth herein, the Commissioner 

respectfully requests that this court affirm the trial court’s decision affirming 

termination of Ortiz’s teaching contract. 
2

STATEMENT OF FACTS

Commissioner Williams agrees with Appellee/Cross-appellant Plano 

Independent School District’s statement of facts. 

STANDARD OF REVIEW

The substantial evidence rule governs this court’s review of the 

Commissioner’s decision. Tex. Educ. Code § 21.307 (e). Under substantial 

evidence review, the court is not allowed to substitute its judgment for that of the 

Commissioner Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 

S.W.2d 446 (Tex. 1984); Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307 

(Tex. App.—Houston [1st Dist.] 2000, no pet.). Instead, the court’s task is to 

consider whether the evidence as a whole1is such that reasonable minds could have 

reached the same conclusion as the Commissioner. Tex. State Bd. of Dental 

Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S. 

1080, 109 S. Ct. 2100 (1989); Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App. –

Corpus Christi 2008, no pet.); Farris, 27 S.W.3d at 311. The evidence may 

preponderate against the agency’s decision but still amount to substantial evidence. 

Matthews, 268 S.W.3d at 172. Substantial evidence required to support the agency’s 

decision need only be more than a scintilla. Tex. Alcoholic Beverage Comm’n v. 

 

1 The court is limited to consideration of the administrative record from the proceedings below. Tex. Ed. Code 

§ 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 729, 740-41 (S.D. Tex. 2013) (reviewing court may 

not receive evidence outside the administrative record).
3

Twenty Wings, Ltd., 112 S.W.3d 647, 650 (Tex. App.—Fort Worth 2003, pet. 

denied).

Reversal of the administrative decision is allowed only if the decision is not 

supported by substantial evidence or the Commissioner’s conclusions of law are 

erroneous. Id., Tex. Educ. Code § 21.307 (f); Montgomery Indep. Sch. Dist. v. Davis, 

34 S.W.3d 559, 562 (Tex. 2000). Even if the court determines that the 

commissioner’s decision is based on an error or a procedural irregularity, reversal is 

allowed only if the court determines that the irregularity or error likely led to an 

erroneous decision. Id., § 21.307 (g); Charter Med.-Dall. Inc., 665 S.W.2d at 452;

Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if conclusion 

is correct). Courts are hesitant to disturb the findings of the Commissioner in areas 

in which he enjoys considerable authority and expertise. Id. 

The party seeking to disturb the Commissioner’s decision bears the burden of 

demonstrating the absence of substantial evidence. Sizemore, 759 S.W.2d at 116; 

Matthews, 268 S.W.3d at 172. This burden is a heavy one,2 not met merely by a 

showing that the evidence preponderates in favor of the appealing party. Charter

Med.-Dall., Inc., 665, S.W.2d at 452; Farris, 27 S.W.3d at 311-312. If substantial 

evidence would support either decision, the agency’s decision will be upheld. Auto 

 

2 Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Standards, 393 S.W.3d 417, 424 (Tex. 

App.—Austin, 2012, pet. denied). 
4

Convoy v. R.R. Comm’n, 507 S.W.2d 718, 722 (Tex. 1974); Farris, 27 S.W.3d at 

312. The factfinder—here the hearing examiner—is the sole judge of witnesses’ 

credibility and the weight to be given their testimony, and is free to resolve any 

inconsistencies in the testimony presented. Montgomery Indep. Sch. Dist., 34 

S.W.3d at 567.

COMMISSIONER’S DETERMINATION OF “GOOD CAUSE”

A. Grounds rejected by the Commissioner

The Commissioner of Education and Plano Independent School District agree 

that good cause supports the district’s decision to terminate Ortiz. Nonetheless, 

Plano insists that several elements of the Commissioner’s decision require correction 

because they are either not supported by substantial evidence or constitute errors of 

law. The grounds the Commissioner rejected included: absence of sufficient notice 

to Ortiz; district waiver by entering into a new term contract; absolute privilege for 

statements Ortiz made in the course of judicial proceedings; erroneous evidentiary 

rulings by the independent hearing examiner;3and allegations not supported by the 

hearing examiner’s factual findings. 

 

3 These include erroneous admission of the district’s investigative reports, expert reports and testimony, and hearsay. 
5

The exercise of parsing the Commissioner’s basis for affirming Ortiz’s

termination is of limited value, at best. Even if the court determines that the 

commissioner’s decision was based on a legal error or a procedural irregularity, 

reversal is allowed only if the court determines that the irregularity or error likely 

led to an erroneous decision. Id., § 21.307 (g); Charter Med.-Dall., Inc., 665, S.W.2d 

at 452; Matthews, 268 S.W.3d at 172 (Commissioner’s reasoning immaterial if 

conclusion is correct). That is, if Ortiz’s termination was appropriate on the record 

as a whole, any legal errors the Commissioner made are irrelevant to the outcome of 

this appeal.

Nonetheless, because these issues form a substantial portion of points raised 

by both appellant Ortiz and cross-appellant Plano, the Commissioner’s alleged errors 

raised by Plano will be addressed in sections 1-5, infra.

1. Absence of sufficient notice to Ortiz (Ortiz’s issues 1-3, Plano’s crossissues 1 and 2)

The Commissioner determined that the district failed to provide Ortiz 

adequate notice of several of the allegations upon which Plano seeks to rely to 

establish good cause. R.R. 3, 176-78, 130-32.

4

 Plano contends that the 

Commissioner erred in finding that the following allegations were inadequately 

 

4

“R.R.” refers to Reporter’s Record volume. The page numbers following refer to the Adobe Reader page numbers 

in which the reference is found. 

 In contrast, “R.R. Pt. ___” refers to one of the six (6) parts compromising Reporter’s Record, Exhibit 11. Thus 

reference to those documents will be “R.R. Pt. ___, [Adobe Reader page reference].”
6

noticed: Ortiz’s insubordination during interactions with her principal; Ortiz’s

unprofessional email correspondence with a parent/vice principal; and Ortiz’s

FERPA violations.5 Plano’s Brief, 64-68.

Ortiz actually received two notice of termination letters from the district. R.R. 

Pt. 3, 158-167, 173-182. The letters, which purported to contain (by reference to 

their attachments) the basis for Ortiz’s proposed termination, focused on conduct or 

behaviors other than insubordination, the unprofessional emails and the FERPA 

violations. Id. Though both letters included the Melton and AL&L reports by 

reference, those reports likewise failed to address the issues of insubordination,

unprofessional emails and FERPA violations. R.R. Pt. 1, 313-324, 402-426. The 

Commissioner held that, absent notice of these alleged violations, they could not 

constitute “good cause” for her termination. R.R. 3, 176-78, 130-32. 

In an appeal to the Commission, a letter of proposed termination is treated as 

a pleading. Gibson v. Tatum Indep. Sch. Dist., Docket No. 040-R2-1099 (Comm’r 

Educ. 1999), Kinsey v. Quinlan Indep. Sch. Dist., Docket No. 104-R2-598 (Comm’r 

Educ. 1998). Texas law requires that a pleading provide enough facts to allow a 

party fair and adequate notice of the claims involved and the ability to prepare a 

defense. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995). 

 

5

“FERPA” is the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
7

Apparently conceding that these events—insubordination, unprofessional emails 

and FERPA violations-- were not directly referenced in either of the district’s notice 

letters to s, P.I.S.D. nonetheless argues that notice was adequate. 

First, P.I.S.D. argues that, because Ortiz failed to specially except to the 

pleadings, defects are waived. Plano’s Brief at 64-65, 67. While it is true that special 

exceptions are required to challenge the sufficiency of a pleading, the Commissioner 

does not contend that the pleadings—here, the notice letters—are insufficient to 

support good cause.6 Instead, the Commissioner contends that the letters are 

insufficient to alert a reasonable person that the alleged insubordination, 

inappropriate communication with a parent and FERPA violations are part of the 

district’s factual basis for good cause. R.R. 3, 176-78, 130-32. The purpose of the 

fair notice requirement is to provide the opposing party with sufficient information 

to enable him to prepare a defense. Paramount Pipe & Supply Co., Inc. v. Muhr, 

749 S.W.2d 491, 494 (Tex. 1988). It is contrary to logic to suggest that an individual 

is required to specially except to the exclusion of any conceivable misdeeds from the 

allegations against him. 

Second, Plano argues that notice of the factual basis for good cause is not 

required. Plano’s Brief at 65. In 2007, the Corpus Christi Court of Appeals stated 

 

6 Texas Rule 45 describes this as “fair notice of the claim involved.” 
8

that the district’s notice need not contain a recitation of good cause. Guerra v. Santa 

Rosa Indep. Sch. Dist., 241 S.W.3d 594, 603-04 (Tex. App.—Corpus Christi, 2007, 

pet. denied). The court did not address notice requirements when an educator 

requests a due process hearing, nor did the court address the application of Rule 45 

notice pleading requirements to that proceeding. Guerra, 241 S.W.3d at 604, n. 7.

In Guerra, the district made no effort to include incidents of good cause in its 

notice; instead, it simply directed the superintendent to submit his resignation. 

Guerra, 241 S.W.3d at 603. Therefore, the facts of Guerra stand in sharp contrast 

to the circumstances presented here, in which the Ortiz was provided two notice 

letters, both with lengthy attachments. R.R. Pt. 3, 158-167, 173-182; R.R. Pt. 1, 313-

324, 402-426. Indeed, the April 3, 2013, letter stated that the Board proposed to 

terminate Ortiz’s employment “based upon the reasons outlined in the attached 

letter.” R.R. Pt. 3, 158. Even if the facts or behaviors constituting good cause need 

not be identified in the notice letter, if facts or behaviors are identified in the notice, 

fairness demands that the identification be complete. 

Further, Plano argues that any deficiency in the notice letters was cured by 

inclusion of the (insufficiently noticed) allegations in the district’s pre-hearing 

discovery responses and expert reports. Plano’s Brief at 66. Fort Worth Indep. Sch. 

Dist. v. Edmon, the case upon which Plano relies to establish that discovery is an 

adequate substitute for notice, is a hearing examiner opinion of no precedential 
9

value. Fort Worth Indep. Sch. Dist. v. Edmon, Docket No. 040-LH-1203 (2004). 

The Commissioner has not adopted the view that information exchanged in 

discovery is an adequate substitute for notice.

Finally, Plano argues that the district did, in fact, provide Ortiz adequate 

notice of the facts supporting her termination. Plano’s Brief at 66-67. Plano explains 

that its notice was sufficient because, using insubordination as an example, the May 

7 letter incorporates by reference the AL&L report, which, in turn, incorporates the 

Parks report, which addresses the alleged insubordination. Id. It is the 

Commissioner’s judgment that such multi-layered incorporation by reference is not 

the “plain and concise language” required by Rule 45 and that Plano’s construction 

is inconsistent with the requirement that “pleadings shall be construed so as to do 

substantial justice.” Tex. R. Civ. P. 45. 

2. Waiver by offer of new term contract (Ortiz’s issues 1 and 3, Plano 

cross-issues 1 and 3)

Even if Ortiz had received sufficient notice of alleged insubordination toward 

Principal Gober, unprofessional emails and FERPA violations, the district waived 

these grounds by offering Ortiz a new term contract after it was aware of these 

alleged acts of misconduct. 7 R.R. 3, 178-81, 132-35. Generally, a school district 

 

7 The Commissioner observes that the inappropriate emails to the parent/vice-principal, which were directly copied to 

two high school principals and two vice-principals, “were so inappropriately venomous that they alone could have 

served as the basis for disciplinary action against [Ortiz].” R.R. 3, 180, 134. The email exchange between 

parent/administrator and teacher may be found at R.R. Pt. 1, 150-53.
10

cannot take action against a teacher’s contract for his or her conduct in a prior school 

year because the district has waived the ability to complain by offering the teacher a 

new contract. Goodfriend v. Hous. Indep. Sch. Dist.., Docket No. 079-R2-703 

(Comm’r Educ. 2003). The presumption of waiver is particularly strong in cases 

involving term contracts (as opposed to continuing contracts), like Plano’s contract 

with Ortiz.8 Id. 

In this case, the misbehaviors to which waiver applies all occurred well in 

advance of the district’s April 2012 offer of a term contract renewal. The first 

FERPA violation occurred in September 2010 (R.R. 3, 180-81, 134-35); the acts of 

insubordination toward Gober occurred between October 2011 and January 2012

(Id., 179, 133), and the second FERPA violation (Id., 181, 135) and inappropriate 

communication with the parent/vice-principal occurred in February 2012. Id., 180,

134; R.R. Pt. 1, 150-53. Several of Ortiz’s administrators were either directly 

involved in the events or became aware of them, yet they took no disciplinary or 

remedial action against Ortiz. R.R. 3, 179, 133. 

Plano seeks to avail itself of an exception to the presumption of waiver that 

applies when, at the time of the contract renewal, a district has started but not 

 

8 Plano attempts to use Goodfriend to its advantage by extracting its reference to contracts of more than one year 

presenting a weaker case for waiver. Plano’s Brief at 68, n. 6. Plano’s attempt is unavailing and its reference 

misleading. The language upon which Plano relies is, in full: “[I]f the term of the contract is for greater than one year 

and the district, therefore, does not offer the teacher a new contract, there is a weaker case for waiver.” Goodfriend

at 3 (emphasis supplied).
11

completed an investigation. Plano’s Brief, 68-69. However, this exception is not 

available to Plano on the facts presented. The investigation underway at the time of 

Ortiz’s contract renewal, the Parks investigation, was aimed at investigating Ortiz’s

allegations against Gober, not vice versa. R.R. 3, 179-80, 133-34. The district took 

no action to investigate Ortiz until after her contract renewal in April 2012 (and her 

district court filing against the district and Gober in May 2012). Id.; R.R. Pt. 2, 269-

285. 

Plano also suggests that the ex parte temporary restraining order Ortiz 

obtained against the district, because it prohibited “adverse action” against Ortiz, 

prevented it from non-renewing her contact. Plano Brief, 69. However, this 

argument ignores the fact that renewal of Ortiz’s contract occurred before entry of 

the TRO; the contract extension occurred on April 17, 2012 (R.R. 3, 179, 133) and 

the temporary restraining order was entered the following month. R.R. Pt. 3, 154-

55. It was actually Ortiz’s obtaining a TRO against the district in mid-May 2012 

that seemed to turn9the investigation from Ortiz’s allegations against Gober to the 

district’s allegations against Ortiz. R.R. 3, 186, 140.

Finally, Plano argues that waiver should not apply to Ortiz’s pre-April 2012 

misdeeds because the district’s superintendent and/or board of trustees were not 

 

9 The Commissioner’s decision describes this change of emphasis following the temporary restraining order as a 

“pivot.” R.R. 3, 186, 140.
12

aware of them at the time of renewal. Plano’s Brief, 68-69. The administrative 

record offers no factual support for this notion, and Plano’s brief offers no legal 

support of it. While, ultimately, the district superintendent makes employment 

recommendations (Tex. Educ. Code § 11.1513) and the board approves term 

contracts (Tex. Educ. Code §21.204), campus managers—principals and assistant 

principals—are first-line supervisors who make employment recommendations for 

their professional staff. Indeed, in a district the size of Plano,10 common sense 

compels the conclusion that input from campus managers is essential to employment 

decisions. 

In this case, prior to the renewal of her contract, Ortiz’s insubordination, 

unprofessional emails and FERPA violations were well-known to district managers. 

R.R. 3, 178-181, 132-135. Her insubordination was, of course, known to her 

principal, Courtney Gober, to whom she was insubordinate. Id. Her unprofessional 

emails with a parent were known to her campus administrators, to the parent (who 

was a vice principal at another campus) and to other campus administrators where 

the parent worked. Id. Finally, Principal Gober knew of two of Ortiz’s FERPA 

violations, and administrators at the other campus knew of one. Id. 

 

10 According to the district website, http://pisd.edu/schools, the district has 70 schools, 7,000 employees and over 

55,000 students. 
13

In the instant case, a teacher with two years remaining on her contract was 

offered an extension of an additional year (Plano’s Brief, 68, n. 6) months after her 

campus managers had direct knowledge of her inappropriate behaviors. This 

situation presents a prototypical example of waiver. See Grigsby v. Moses, 31 

S.W.3d 747, 749-50 (Tex. App.—Austin 2000, no pet.) (waiver occurs when the 

party possessing the right relinquishes it, acts in a manner inconsistent with an intent 

to claim it, or fails to act in a manner consistent with an intent to claim it). The 

Commissioner correctly determined that allegations of insubordination, 

inappropriate communication with a parent and FERPA violations were allegations 

the district waived by renewing Ortiz’s contract in April 2012. R.R. 3, 178-181, 

132-135.

3. Absolute privilege for statements in judicial proceeding (Ortiz’s issues 

1 – 3, Plano’s cross-issue 4):

In its second notice letter, dated May 8, 2012, the district notified Ortiz that it 

intended to use discrepancies in statements she had made under oath in her lawsuit 

to demonstrate that she had violated board policies by lying. R.R. Pt. 2, 254-64. The 

hearing examiner found that the district’s evidence on this issue demonstrated a 

number of violations, including but not limited to false statement and falsifying 

records. R.R. Pt. 3, 979-80.

However, the Commissioner correctly held that the hearing examiner 

improperly admitted this evidence. A person enjoys an absolute privilege for 
14

communications made during a judicial proceeding. Bird v. W.C.W., 868 S.W.2d 

767, 771 (Tex. 1994); Hernandez v. Hayes, 931 S.W.2d 648, 654 (Tex. App.—San 

Antonio 1996, writ denied). Texas courts have applied the privilege expansively, 

focusing on its underlying policy encouraging full and free disclosure from 

witnesses. Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex. 1994), citing James v. Brown, 

637 S.W.2d 914, 917 (Tex. 1982) ; Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex. 

App.—Houston [1st Dist.] 1998, pet denied) (“Texas courts have consistently 

applied the privilege to claims arising out of communications made in the course of 

judicial proceedings, regardless of the label placed on the claim”). So jealously is 

this principle guarded that it remains inviolate even when the speaker utters or 

publishes the false language with express malice. Reagan v. Guardian Life Ins. Co., 

166 S.W.2d 909, 912 (Tex. 1942) (emphasis supplied).

Because, like any other litigant, Ortiz enjoys an absolute privilege for 

statements made in the course of judicial proceedings, those statements cannot form 

the basis of the district’s termination of her contract.11 

 

11 Plano advances the argument that Ortiz’s lawsuit was only one of several formats in which Ortiz made false 

statements about district employees. Plano’s Brief at 72. While a district may sanction its employees for lying during 

an internal investigation, the Commissioner found that there was no indication Ortiz made false statements to any of 

the investigators during the course of the district’s several investigations. R.R. 3, 183, 137.
15

4. Hearing Examiner’s Evidentiary Rulings (Ortiz’s issues 1 – 3, Plano’s 

cross-issue 6)

a. The investigative reports

The Commissioner rejected the grounds for termination Plano presented 

solely through improperly admitted evidence. R.R. 3, 184, 138. These grounds 

were: Ortiz’s statements to students regarding Gober; and her attempts to influence 

students’ statements in the investigation and litigation process. Id. The only 

evidence of these communications12 came from improperly admitted investigative 

reports (and the statements contained within those reports). R.R. 3, 184-86, 138-40.

An independent hearing examiner conducting a Chapter 21 case is required to 

follow the Texas Rules of Evidence. Tex. Educ. Code §§ 21.256 (d), (e). 

Investigation reports are hearsay, but they are subject to exceptions if: they are 

shown to be either business record or government records; and there is no indication 

indicating a lack of trustworthiness. Tex. R. Evid. 803 (6), (8). The reports in which 

Ortiz’s interactions with students were contained were not business records because 

they were not made in the ordinary course of business of the district.13 See, Tex. R. 

Civ. 803 (6). They were, instead, created in anticipation of litigation with Ortiz. 

R.R. 3, 186, 140. Documents and reports created in anticipation of litigation are not 

admissible under the hearsay exceptions because they lack trustworthiness. Nat’l 

 

12 The conversation with a student that Ortiz recorded and provided to AL&L was introduced in support of other 

allegations, which are discussed separately in Section B(2)., infra.

 
16

Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex. 1993); Flores v. Fourth Court 

of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). Determining whether a report is created 

in anticipation of litigation requires examination of the totality of the circumstances 

surrounding its creation. National Tank, 851 S.W.2d at 204.

Plano argues that the investigation was admissible because it was made in the 

ordinary course of the district’s business. Plano’s Brief, 77-80. It is doubtful that 

the Parks investigation--the initial investigation into Ortiz’s grievance--was 

conducted in the ordinary course of the district’s business. Though it may have 

begun as a routine investigation of Ortiz’s grievance against Gober, the focus of the 

Parks report shifted as soon as Ortiz obtain a temporary restraining order against the 

district and Principal Gober on May 11, 2012. R.R. 3, 186, 140. Parks testified that 

he became aware of the order the same day it was served on the district (and 10 days 

before the district’s May 21 receipt of his completed report). R.R. Pt. 5, 222; R.R. 

Pt. 3, 154-55; R.R. Pt. 1, 8-40. 

But even assuming that the Parks report was prepared in the ordinary course 

of the district’s business, the Melton and AL&L reports, both initiated after issuance 

of the May 11, 2012, temporary restraining order, clearly were not. R.R. Pt. 1, 313-

324, 402-426. The Melton and AL&L reports focused, not on any employee 

grievance, but solely on Ortiz’s alleged misconduct. Id. The district was, on and 
17

after May 11, 2012, not merely anticipating litigation, but in litigation, with Ortiz. 

R.R. Pt. 3, 154-55; see generally, R.R. Pt. 2, 269-317. 

Examining the totality of the circumstances surrounding the disputed reports 

compels the conclusion that they were created in anticipation of (or, more accurately, 

during the midst of) litigation with Ortiz. The Commissioner correctly held that the 

Independent Hearing Examiner abused her discretion by admitting these 

investigations into evidence and that they could not serve as “good cause” for the 

district’s action. R.R. 3, 184-86, 138-40.

b. The hearsay contained within the investigative reports

Even if the investigative reports were admissible as business records or 

governmental records, the statements of students and teachers contained in them 

were still inadmissible hearsay. R.R. 3, 186-87, 140-41. These improperly admitted 

hearsay statements form the evidentiary basis for the district’s allegations that Ortiz 

made inappropriate statements to students regarding Gober and attempted to 

influence students’ statements. 

In order to be admissible, each layer of hearsay must fit into an exception of 

the hearsay rule. Tex. R. Evid. 805; First Sw. Lloyds Ins. Co. v. MacDowell, 769 

S.W.2d 954, 959 (Tex. App.—Texarkana 1989, writ denied). In this case, while 

Ortiz’s own statements are admissible as admissions of a party opponent, the 

statements of students and teachers are hearsay statements to which no exception 
18

applies. The Commissioner correctly determined that the statements were 

improperly admitted and could not form the basis for the district’s action. R.R. 3, 

186-87, 140-41.

c. Expert Issues

Issues involving experts arose in two ways in the administrative case. First, 

Plano argued that the AL&L report was admitted, not as a business record or a 

government record, but as an expert report. R.R. 3, 187-88, 141-42. The 

Commissioner correctly determined that, if Plano was correct that the report was 

admitted as an expert report, its admission was error.

Under the Texas Rules of Evidence, expert reports are admissible only if they 

“assist the trier of fact to understand the evidence or to determine a fact in issue.” 

Tex. R. Civ. 702. The conclusions drawn in the AL&L report did not require 

significant specialized knowledge (R.R. Pt. 1, 402-426); instead, it was within the 

hearing examiner’s ability to determine whether the evidence in the report supported 

the district’s allegations against Ortiz. R.R. 3, 187-88, 141-42. The Commissioner 

correctly concluded that if the AL&L report was admitted an expert report, its 

admission was error.14 Id.

 

14 And even an appropriate admission of the report would not have cured the error of admitting the multi-leveled 

hearsay evidence contained within it. See discussion 4(b), supra.
19

The second expert issue presented in the administrative case was admission 

of the reports and testimony from Mike Moses, an expert with significant experience 

in Texas education. R.R. 3, 188-90, 142-44. The subject of Moses’s testimony was 

whether the allegations against Ortiz constituted “good cause” for termination of her 

contract. R.R. 3, 188, 142. 

If “good cause” were a question of fact, admission of expert testimony would 

have been appropriate. Tex. R. Evid. 702. Under certain circumstances, expert 

testimony can be appropriate to address mixed questions of fact and law. Greenberg 

Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App.—Houston [14th Dist.] 

2004, no pet.). However, the Texas Education Code provides that “[a] determination 

by the hearing examiner regarding good cause for the . . . termination of a . . . term 

contract is a conclusion of law. Tex. Educ. Code § 21.257(a)(2)(a-1).

Plano’s brief argues extensively that this recent legislative amendment out not 

to have the result of excluding expert testimony regarding “good cause.” Plano’s 

Brief, 74-76. Regardless, application of the rules of evidence to the recent 

amendment of the Education Code compels the conclusion that the Commission was 

correct. Expert testimony is not appropriate to address a pure question of law. Id., 

Tex. R. Evid. 702. For this reason, the Commissioner correctly held that the hearing 

examiner’s admission of Mr. Moses’s reports and testimony was erroneous. R.R. 3, 

188-190, 142-44.
20

5. Allegations without supporting factual findings (Plano’s crossissue 5)15

The district requested that the Commissioner find “good cause” based on 

certain allegations for which the hearing examiner made no corresponding findings 

of fact. R.R. 190, 144. Specifically, the district requested that the Commissioner 

find good cause based on allegations that Ortiz’stape recorded her conversation with 

a student without the parent’s consent; made false statements during the Parks, 

Melton and AL&L investigations, and filed grievances against district employees 

for purposes of retaliation. Id. The hearing examiner, not the district, resolves 

conflicts in evidence and credibility disputes. Montgomery Indep. Sch. Dist. v. 

Davis, 34 S.W.3d 559, 564 (Tex. 2000). Because no findings of fact support the 

allegations of improper recording, false statements to investigators and retaliatory 

use of grievances, the Commissioner correctly rejected the district’s assertion of 

“good cause” on these grounds. 

6. Summary of Response to Plano I.S.D.

The Commissioner correctly concluded that the district failed to provide Ortiz 

adequate notice of some violations, waived others through extension of her term 

contract, and improperly sought to use her judicial statements against her. Further, 

the Commissioner correctly concluded that Plano I.S.D. is prohibited from relying 

 

15 This issue is identified in Plano’s list of cross-points but counsel does not find it addressed in the body of Plano’s 

brief.
21

on allegations unsupported by findings and that its expert reports and testimony were 

improperly admitted. Nonetheless, the Commissioner supports Plano I.S.D.’s 

decision to terminate Ortiz’sterm contract for cause as described in Section B., infra. 

Finally, even if the court determines that the commissioner’s decision was flawed

by a legal error or procedural irregularity, reversal is allowed only if the court 

determines that the irregularity or error likely led to an erroneous decision. Id., 

§ 21.307 (g); Charter Med.-Dall., Inc. 665 S.W. at 452; Matthews, 268 S.W.3d at 

172 (Commissioner’s reasoning immaterial if conclusion is correct). 

B. Grounds accepted by the Commissioner

Despite the fact that the Commissioner rejected many of the “good cause” 

grounds asserted by the district, the Commissioner found that “good cause” existed 

to terminate Ortiz’s contract. R.R. 3, 190-193, 140-44. This finding was based on: 

Ortiz’s violation of a directive issued to her on March 23, 2012; and Ortiz’s

statements in an audio recording of her conversation with a former student. Id. 

These items of evidence form the basis of the Commissioner’s finding of “good 

cause,” based on Ortiz’s violation of the following provisions of the Educators’ Code 

of Ethics:

Introductory Paragraph: The Texas educator, in maintaining the 

dignity of the professional, shall respect and obey the law, demonstrate 

personal integrity, and exemplify honesty.

Standard 1.4: The educator shall not use institutional or 

professional privileges for personal or partisan advantage.
22

Standard 3.8: The educator shall maintain appropriate 

professional educator-student relationships and boundaries based on a 

reasonably prudent educator standard.

Standard 3.9: The educator shall refrain from inappropriate 

communication with a student or minor . . . .

1. The March 23, 2012, agreement (Ortiz’s issues 1, 4)

The March 23, 2012, agreement, which was signed by investigator Parks for 

the district and by Ortiz, stated, in pertinent part:

This investigation or inquiry is confidential . . . As such, you must not 

discuss this investigation or inquiry, or any information that you and 

the investigator discuss, with other District employees . . . or any other 

person who is in any way connected to the incident or event under 

investigation, or who is a possible witness in this investigation. 

Disclosure of information pertaining to this investigation may result in 

disciplinary action against the disclosing employee.

(emphasis in original). R.R. Pt. 1, 360.16 The document contains no expiration date 

or language suggesting that its applicability is limited to the duration of the 

investigation.17 Id.

 

16 Ortiz challenges the constitutionality of the confidentiality directive she was found to have violated. There is no 

separate cause of action against the Commissioner for the alleged free speech violation, thus the Commissioner will 

not respond to Ortiz’s constitutional claim unless directed to do so by the court. 

17 Though Ortiz appears to have abandoned this argument on appeal, in the trial court she sought to obtain requests 

for admissions pertaining to statements and interactions made in a subsequent meeting with the district regarding 

another employee. In appeal of a Chapter 21 case, the court is limited to consideration of the administrative record 

from the proceedings below. Tex. Ed. Code § 21.307 (e); Aleman v. Edcouch Indep. Sch. Dist., 982 F.Supp.2d 740-

41 (S.D. Tex. 2013) (court may not receive evidence outside the administrative record). The record regarding “good 

cause” for termination of her contract—the “substantial evidence” appeal-- is complete. 
23

It is undisputed that in August 2012 Ortiz asked one of the students for details 

regarding his May 2012 interview by Melton (attendant to the Parks investigation). 

See discussion in section B.2., infra. The Commissioner correctly found that Ortiz’s

discussion of the investigation with the students was, in light of the district’s 

directive, insubordination constituting “good cause” for termination. R.R. 3, 190-

93, 143-47.

2. Ortiz’s recorded communications with student (Ortiz’s issue 1)

The Commissioner found additional “good cause” for the termination in the 

substance of Ortiz’s August 2012 communications with the student about the 

investigation. R.R. 3, 190-93, 144-47. The district noticed Ortiz regarding the 

following violations of district policy: 

 You discussed confidential personnel matters in violation of District Policy 

and the signed confidentiality statement (R.R. Pt. 3, 163);

 You involved students in your personal complaints and litigation . . . (Id.);

 You engaged in unprofessional conduct by inappropriately discussing with 

your students certain confidential personnel matters involving yourself and 

Mr. Gober in violation of District Policy (R.R. Pt. 3, 164);

 You engaged in unprofessional conduct by seeking to inappropriately 

involve your students in your personal complaints and litigation against 

the District and Mr. Gober (R.R. Pt. 3, 165).
24

Each of these findings is repeated in the attachment to the district’s second notice of 

termination letter. R.R. Pt. 3, 173-182. 

The Commissioner found that the communication with the student 

demonstrated that Ortiz was using the conversation to obtain information about what 

the investigators knew, what they were interested in, and whether the investigation 

was focused on her. R.R. 3, 192, 146. The information Ortiz sought, the 

Commissioner found, was not merely information to determine the extent of the 

student’s knowledge with an eye toward her lawsuit against Gober. Id. Instead, her 

communication with the student was aimed at gathering information about the 

confidential investigation. Id. 

The Commissioner further found that the tone of the communication, 

including describing another student as “goofy-looking” and telling the student 

during the conversation that the student’s rendition of events was “good,” violated 

appropriate student-teacher boundaries. R.R. 3, 192-93, 146-47.

The Commissioner found that substantial evidence, demonstrating multiple 

violations of the Educators’ Code of Ethics, supported the termination of Ortiz’s

contract. R.R. 3, 190-193, 140-44.

CONCLUSION AND PRAYER

The Commissioner and the district court correctly affirmed Plano’s decision 

to terminate the teaching contract of appellant Ortiz. Their decisions are supported 
25

by substantial evidence, good cause supports Ortiz’s termination and the district 

court’s judgment should be in all things affirmed. The Commissioner further prays 

to receive any additional and further relief to which he is entitled, whether at law or 

in equity. 

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLE E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Defense Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

/s/ Robin Sanders

ROBIN SANDERS

Assistant Attorney General

Texas Bar No. 09310900

Office of The Texas Attorney General

Administrative Law Division

P. O. Box 12548

Austin TX 78711-2548

Phone: (512) 475-4005

Fax: (512) 320-0167

Email: robin.sanders@texasattorneygeneral.gov

FOR THE COMMISSIONER
26

CERTIFICATE OF COMPLIANCE

I hereby certify compliance with Texas Rules of Appellate Procedure 9 and 

that there are 4,743 words in this document. Microsoft Word was used to prepare 

this filing and calculate the number of words in it.

/s/ Robin Sanders

ROBIN SANDERS

CERTIFICATE OF SERVICE

I certify that the above was service on this 13th day of April, 2015, via e-service 

and/or email to: 

Richard L. Arnett

Texas Bar No. 01333300

Brim, Arnett, Robinett & Conners, P.C.

Attorney at Law

2525 Wallingwood Drive, Bldg. 14

Austin, Texas 78746

Phone: (512) 328-0048

Fax: (512) 328-4814

rarnett@brimarnett.com

Richard Abernathy

State Bar No. 00809500

Charles Crawford

State Bar No. 05018900

1700 Redbud Boulevard, Suite 300

McKinney, Texas 75069

214-544-4000 telephone

214-544-4040 facsimile

ccrawford@abernathy-law.com

rabernathty@abernathy-law.com

Attorneys for Plano ISD

/s/ Robin Sanders

ROBIN SANDERS