### 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

NO. 03-10-00020- CV

Brenda Poole , Appellan t

v. Kar nack In dependent S chool District and th e Texas Com m ission er of Edu cation, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0065 3, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

O P I N I O N Appellant Br enda Poole appea ls from the trial court’s judgme nt aff irming a decision of the Texas Commi ssioner of Educa tion (“the Commi ssioner”)

. The Commi ssioner u p h el d the decision of Kar

nack I ndepende nt Sc h o o l Di s t ri ct (“the District”) to dismiss Poole’s reque st for assault leave on the basis that her reque st was untimely

. See Tex. Educ. Code An n . § 22.003(b) (West Supp. 2010) (providing for l ea v e wh en employ ee of school district is phy sically assaulted during perf

ormanc e of r eg ular duties). We a ffirm the judg ment of the trial c ourt.

BACK GR OUND On September 25, 2001, P o o l e was injured in the course of her employ ment as a public school teac h er wh en a student opened the metal door to a restroom stall while Poole was inside. The door struck Poole in the head, causing injury

. Poole alleg es that the incident constituted

an assa ult.As a result of her head i n j u ry , Poole was unable to return to work and rec eived worke rs’ compensa tion benef its. On September 15, 2003, almost two y ear s afte r the incident, Poole reque sted assault leave under section 22.003(b) of the e ducation code

. See id. Section 22.003(b) 1 provides, in re levant par

t: [A] n employ ee of a school distric t wh o is phy sically assaulted during the perf ormanc e o f the employ ee’ s reg ular duties is entitled to the number of day s of leave nece ssary to rec upera te from all phy sical injuries sustained as a result of the assault. At the reque st of an employ ee, the school district must immediately assig n an employ ee to assault leave and, on inv es t i gat i o n of the claim, may chang e the assault leave status and char g e the leave ag ainst the employ ee’ s acc rued personal leave

. . . . The period provided by this subsection may not extend mo re t h an t wo y ear s bey ond the date of

the assault.

Id. To ex p lain the delay betwee n the injury and her reque st for assault leave , Poole contends that she was unawa re of the availability of assault leave until Aug ust 22, 2003. On that date, Pool e called t he office of the s uperintende nt, reque sting information about assault leave and copies of the District’s gri ev ance policy

. The District then forwa rded Poole a standard L evel 1 g rieva nce form, along with copies of the District’s leave and g rieva nce policies, which she rec eived

on Aug ust 29, 2003. Poole u s ed the L evel 1 g rieva nce form supplied by the District to reque st assault leave , submitt ing it to the school princ ipal as re quired by the g rieva

nce policy

.

Poole arg ues that her g rieva nce should have been deeme d filed on September 11, 2003, the 1 date of mailing. See Tex. R. Civ. P. 21a (providing that service by mail is deeme d complete on date of mailing)

. We express no opinion on this issue, as it is irrele vant to our dispositi on of this appea l. 2The principal denied Poole’s reque st for assault leave on the g rounds that her L evel

1 g rieva nce was not filed within 15 day s of the date Poole “first knew or should have known of the event” about which she was complaining , as require d by the District’s g rieva nce policy

. Poole then appea led the principal’s decision by filing a L evel 2 g rieva nce with the District superintende nt. The superintende nt also denied Poole’s complaint as untimely , explaining in a letter of decision that the g rieva nce policy require d Poole’s complaint to have been filed within 15 day s of the alleg ed assault in order to be considere d timely

. Poole s u b s equently filed a L evel 3 g rieva nce, appea ling the superintende nt’s decision to the board of trustees. The board upheld the superintende nt’s decision on the g round that Poole’s orig inal g rieva nce w as untimely

filed. After exhausting the District’s g rieva nce p ro cess, Poole appea led to the Commi ssioner. See id. § 7.057(a) (West Supp. 2010) (allowing appea l to Commi ssioner when person is ag g rieve d by actions or decisions of school district board of trustees). The Commi ssioner conclude d that the D i s t ri ct ’s decision t o dismiss Poole’s g rieva nce on the basis of unt imely filing

was supported by substantial evidenc e. I n aff irming the District’s decision, the Commi ssioner deter mined that Poole failed to file her g rieva nce within 15 day s of either the date of the allege d assault or the date she first rec eived information from the District reg arding the availability of assault l ea v e. The Commi ssioner further conclude d that even if the 15-day deadline imposed by the District’s g rieva

nce poli cy did not apply to assault leave , Poole’s reque st for assault leave was untimely beca

use she failed to submit her reque st wit h i n a rea sonable amount of time afte r the alleg ed assa

ult.

3Poole subsequently filed a suit for judicial revie w of the Commi ssioner’s decision in

Travis County district court. See id. § 7.057(d). She also soug ht a decla ratory judgme nt that she was entitled to assault l eave . See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 ( West 2008). The trial court aff irmed the Commi ssioner’s decision, concluding that i t wa s s upported by substantial evidenc e, and dismissed Poole’s re quest for de clar atory relief as an imprope r re dundant re medy

. Poole now appea ls the t ri al court’s judgme nt, asser ting in two issues that the trial court err ed both in upholding the Commi ssione r’ s d ec i s i on and in deny ing her reque st for decla ratory relief

. STANDARD OF REVIEW Be cause the educa

tion code does not expressly define the scope of judicial revie w of Commi ssioner decisions, the substantial-evidenc e standard ap plies. See Tex. Gov’t Code Ann. § 2001.174 (West 2008) ; see also Tex. Educ

. Code Ann. § 7.057(d); Griffin v. Nelson , No. 03-01- 00323-CV, 2002 Tex. App. L EXI S 1133, at *3-4 (Tex. App.—Austin 2002, no pet.) (not desig nated for publication). Under t h is standard, we presume t hat t he C ommissi oner’ s order is supported by substantial evidenc e, and Poole has t he burden of proving otherwise. See Texas Health Facili ties Comm’n v. Charter Medical-D allas, Inc. , 665 S.W .2d 446, 453 (Tex. 1984). An age ncy decision is supported by substantial e vidence if rea sonable minds could have rea ched the same conclusion. Texas State Bd. of Dental Exam’ rs v. Sizemore , 759 S.W .2d 1 14, 116 (Tex. 1988). Although substantial evide n ce i s more than a mere scintilla, the evidenc e in the rec ord may preponde rate ag ainst the ag ency decision and s t ill amount to substantial evidenc e. Charter Medic al-Dallas , 665 S.W .2d at 452. The Commi ssioner’s interpre tation of the education code provision g overning 4assault leave merits serious consideration if it is rea sonable and does not contra dict the plain

lang uag e of the statute. See D odd v. Me no , 870 S.W .2d 4, 7 (Tex. 1994).

DISCUSSIO N I n her first issue on appea l, Poole ar gu es that the trial court err ed in upholding the Commi ssioner’s decision to dismiss her r equest for assault leave as untimely

. The Commi ssioner deter mined that Poole’s reque st was untimely beca use it was not filed within the 15-day deadline imposed by the Dis trict’s grieva nce pol i cy , and that even if the 15-day deadline was i napplicable , Poole’s reque s t wa s u n t i m ely beca use she failed to reque st assault l eave within a reasonable time afte r the alleg ed assault. We may uphold the ag ency decision on any leg al basis shown in the rec ord. See Charter Medic al-Dallas, Inc. , 6 6 5 S

. W .2d at 452; Railroad Comm’n v. City of Austin , 524 S.W .2d 262, 279 (Tex. 1975). Thus, if we deter mine that the Commi ssioner’s decision should be upheld on the g rounds that Poole failed to reque st assault leave within a rea sonable time, we need not addre ss whether the District’s 15-day deadline for filing a g rieva nce is applicable to reque sts for assault leave under e ducation code section 22.003(b)

.

The s t at u t e g overning assault leave does not expressly impose a deadline for reque sting leave

. See Tex. Educ. Code Ann. § 22.003(b). I n the absenc e of a statutory deadline for seeking a particular remedy , courts have supplied a re quirement that the r equest be made within a

rea sonable time. See W

estheime r Indep. Sch. Dist. v

. Brocke tte , 567 S.W .2d 780, 789 (Tex. 1978) (“Te x as law is firmly established that, when the statute fails to pres cr i b e . . . a time limit [for appea ling an administrative decision], an appea l must be taken wi t h i n a rea sonable time.”). I n

5revie wing Poole’s reque st for assaul t l eave , the Commi ssioner interpre ted section 22.003(b) to

include this impli ed re quirement that re quests be made within a rea sonable time.

Whil e Poole a

rg ues that the statute may rea sonably be interpre ted to allow reque sts for assault leave at any time during the two-y ear period for which leave is available , see Tex. Educ. Code Ann. § 22.003(b), the question befor e us is not whether an interpre tation of the statute posed by Poole is rea sonable, but whethe r t h e C ommissi oner’ s interpre tation is rea sonable and does not contra dict the plain lang uag e of the statute. See D odd , 870 S.W .2d at 7; see also Smith v. Nelson , 53 S.W .3d 792, 795 (Tex. App.—Austin 2001, pet. denied). Similarly , while Poole contends that the assault-lea

ve statute should be char acte rized as a reme dial statute and broadly construed, the rule of libera l construction for r emedial statutes c annot be relied upon to “re verse the Commiss ioner’s

rea so n a b le d e te r mi n a tion in an are a wher e he possesses considera ble authority and expertise.” Dodd , 870 S.W .2d at 7; see also Burch v . City of San Antonio , 518 S.W .2d 540, 544 (Tex. 1975).

The Commi ssioner’s interpre ta ti o n o f e d u c a ti o n c o d e s e c ti o n 2 2

. 0 0 3 ( b ) to r e quire that reque sts for assault leave be made within a rea sonable time of the alleg ed assault is rea sonable and does not contra dict the plain lan gu age of the statute. As a result, we will defe r to the Commi ssioner’s interpre tation and aff irm the decision if there is substantial evidenc e to support the conclusion that Poole’s reque st was not made within a rea sonable time. See Midas Oil Co. v. Stanolind Oil & Gas Co. , 179 S.W .2d 243, 246 (Tex. 1944) (holding that rea sonablene ss of delay in seeking statutory relief is question of fac t); see also Thompson v. Pate , 69 S.W .3d 743, 748 (Tex. App.—El Paso 2002, no pet.) (stating that rea sonablene ss is question of fac t unless evidenc e admits no other conc lusion).

6I n t he prese nt case , Poole submitt ed her reque st for assault leave o n

September 15, 2003, 720 da y s after the date of

the incident. F ar shor

ter de lay s have be en dee med

unrea sonable in the context of seeking relief from decisions of school officia ls. See Heabe r lin

v. Joaquin Indep. Sch. Dist. , 95 S.W .2d 1339, 1341 (Tex. Civ. App.—B eaumont 1936, n o writ) (holding that teac hers’ 150-day delay in appea ling decision of school board to county superintende nt

was unrea sonable); W

atkins v. Huff

, 63 S.W

. 922, 923 (Tex. Civ. App.—San Anto n i o 1901, writ dism’d) (upholding trial court’s finding t h at two-we ek delay in appea ling decision of state superintende nt of public education was unrea sonable); see also Board of W ater Eng’rs v. Colorado Rive r Mu n . W

ater Dist. , 254 S.W .2d 369, 373 (Tex. 1953) (holding that seven- month delay in appea ling a dminist rative or der c rea ting wa ter district wa s unrea sonable). As her sole justification for the delay betwee n the alleg ed assault in September 2001 and her reque st for leave in September 2003, Poole asser ts that she was unawa

re of the availability of assault leave until Aug ust 22, 2003. I g noranc e of t h e l aw , h o weve r, does not constitute g ood

cause for failure to timely reque st relief provi d ed b y s t atute. See Allstate Ins. Co. v. King , 444 S.W .2d 602, 605 (Tex. 1969) (holding that ignor an ce o f av ailable worke rs’ compensa tion benef

its and rela

ted filing require ments will not excuse delay in filing claim); see also Osterberg v. Pec a , 12 S.W .3d 31, 38-39 (Tex. 2000) (holding that ignor ance of law does not excuse violation of statute).

I n revie wing the rea sonablene ss of Poole’s 720-day delay , the Commi ssioner may have considere d the proce dures to be followed when assault leave is reque sted. Once assault leave has been proper ly reque sted, the educa tion cod e re quires the school district to conduct an

7investiga tion of the claim and deter mine whether leave is proper under the circ umstances. See Tex. Educ. Code Ann. § 22.003(b). A substantial delay in reque sting leave , particula rly a delay that spans multipl e school y ear s, would hinder this investiga tion proce ss, as witnesses or alleg ed perpe trators

are likely to have g radua ted or other wise bec ome unava ilable. The Commi ssioner deter

mined that Poole’s reque st for leave , filed 720 day s afte r the alleg ed assault, was not made within a rea so nable time and was there fore barr ed. Be cause

rea sonable minds could have rea ched the same co n cl u s ion, the Commi ssioner’s decision was supported by substantial evidenc e. See Sizemore , 759 S.W .2d at 116. As a result, the trial court did not err in upholding the Commiss ioner’s de cision. Poole’s first issue is overrule d.

I n her second issue on appea l, Poole arg ues that the trial court err ed in dismiss ing her claim for decla

ratory relief as an impermissible redunda nt reme dy

. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004. When a statute provides an avenue fo r at t ac k i n g an ag ency order , a decla ratory
judgme nt action will not lie to provide redunda nt reme dies. Strayhorn v. Raytheon E-Syste ms, Inc. , 101 S.W .3d 558, 572 (Tex. App.—Austin 2003, pet. denied) ; Y oung Chevrolet, Inc. v. Texas Motor Vehicle Bd. , 974 S.W .2d 906, 911 (Tex. App.—Austin 1998, p et
. d en ied); see also Texas Liquor Control Bd. v. Canyon Creek Land Corp. , 456 S.W .2d 891, 895 (Tex. 1970) (“A s a g ener al rule, an action for decla

ratory judgme nt will not be enter tained if there is pen d i n g, at the time it is filed, another action or proce eding betwee n the same parties and in w hich may be adjudicate d the issues involved in the decla

ratory ac t i o n . ”)

. I t is an abuse of discretion to awa rd attorney ’s fee s in

connec tion with a claim for de clar atory relief when the sta tute is relied upon solely as a ve hicle to

rec over attorney ’s fee s. Raytheon E-Syste ms , 101 S.W .3d at 572; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). 8Poole soug ht a decla ratory judgme nt that she was entitled to assault leave , a question that was already

befor e the tria l court in her suit for judicial revie w of the Comm issioner’s order. I f she preva iled in either her appea l of the Commi ssioner’s order or her reque st for decla ratory relief

, the result would be the same. Be cause the relief s oug ht in Poole’s decla ratory -judg ment action is redunda nt of the relief available to her in a suit for judicial revie w under the education code, see Tex. Educ. Code Ann. § 7.057(d), the trial court did not err in dismissing Poole’s decla ratory -judg ment action and the acc ompany ing r equest for attorney ’s fees. See R aytheon E- Systems , 101 S.W .3d at 572 (holding that attorney ’s fee s may not be awa rded in connect i on with suit for decla ratory judgme nt “whe n the relief soug ht is no g rea ter than relief that otherwise exis ts by ag ree ment or statute”). Poole’ s second issue on a ppeal is over

ruled.

CONCLUSION Having overr

uled both of P o o l e’ s i s sues on appea l, we aff irm the trial court’s judgme nt.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: May

5, 2011

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