IN THE SUPREME COURT OF TEXAS

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No. 18-0986

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NORTH EAST INDEPENDENT SCHOOL DISTRICT AND TEXAS COMMISSIONER OF 

EDUCATION, PETITIONERS,

v.

DEHANN RIOU, RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

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Argued January 7, 2020

JUSTICE BLAND delivered the opinion of the Court.

A school board ended a teacher’s continuing contract because the teacher failed to record 

grades and evaluate her pupils’ progress for half of the school year. In this case, we consider 

whether state and federal laws requiring school districts to record grades and evaluate student 

progress provide standards of conduct for the teaching profession, generally recognized and 

applied throughout the state, such that the teacher’s failure to comply with district policies

implementing those laws supports termination for “good cause.” 

Education Code section 21.156(a) provides that a school district may end a continuing 

contract with a teacher for “good cause.”1 The statute defines “good cause” as “the failure to meet 

1 TEX. EDUC. CODE § 21.156(a). 
2

the accepted standards of conduct for the profession as generally recognized and applied in 

similarly situated school districts in this state.”2 Based on an independent hearing examiner’s 

findings, the North East Independent School District board voted to end Dehann Riou’s continuing 

teaching contract. Riou appealed the decision to the Commissioner of Education. The 

Commissioner upheld the decision, agreeing with the examiner that Riou’s conduct was “good 

cause per se” for termination. Riou then sought judicial review, arguing that the Education Code 

has no “good cause per se” standard and that the district failed to adduce evidence of accepted 

standards from similarly situated districts to show good cause. The trial court ruled for Riou, 

reversing the Commissioner’s decision. The court of appeals affirmed, agreeing with Riou that 

“good cause per se” has no basis in section 21.156(a)’s good cause definition, and the board’s 

decision must be reversed because the district adduced no evidence of generally accepted standards 

of professional conduct from similarly situated school districts. 

In this Court, the district and the Commissioner contend that the evidence supports the 

board’s decision. In addition, as a threshold matter, they contend that Riou failed to challenge the 

application of a good cause per se exception at the local level, and thus she failed to preserve her 

complaint for judicial review.

We hold that Riou preserved her complaint. Riou challenged the sufficiency of the 

evidence supporting good cause to end her contract before the school board and the Commissioner. 

Riou’s argument that the Commissioner excused this lack of evidence by relying on an improper 

“per se” standard falls within this challenge. We further hold that the Commissioner erred in 

2 Id.
3

employing a three-pronged “good cause per se” test, which as the court of appeals correctly 

observed, has no basis in the Education Code’s plain text. 

Even so, this record supports the board’s and Commissioner’s decisions. The statute 

requires evidence of a failure to meet generally accepted standards of professional conduct but not, 

as Riou suggests, evidence that similarly situated school districts would have ended her contract 

under these specific facts. District policies implementing state and federal law denote generally 

accepted standards of professional conduct—such policies reflect standards applicable to school 

districts throughout the state. Evidence of a failure to meet a district policy that implements state 

law supports a good cause determination. Accordingly, we reverse the court of appeals and 

reinstate the Commissioner’s decision.

I

Dehann Riou began working as a fifth-grade teacher in North East ISD in 2006. In 2010, 

she received a continuing contract from the district, which entitled her to continual employment 

unless the district ended the contract for good cause.3 Riou taught fifth grade and third grade at 

Stahl Elementary, where she received scores of “proficient” or “exceeds expectations” in annual 

evaluations. 

Riou transferred to Royal Ridge Elementary in 2013, where she taught fourth grade for one 

year before she was assigned to teach kindergarten for the 2014–15 school year. That year, Riou 

took leave pursuant to the Family Medical Leave Act from April through August. A long-term 

substitute teacher taught Riou’s classes during her absence. 

3 Id. § 21.154.
4

Riou received a mixed annual evaluation on May 1, 2015, while she was on leave. The 

evaluation scored her as below expectations in three categories, proficient in three categories, and 

exceeds expectations in two categories. When Riou returned to work in August, Royal Ridge 

principal Deborah Jarvis-Hernandez notified Riou that she had recommended termination of 

Riou’s continuing contract. 

In a three-page memo to Riou, Jarvis-Hernandez documented concerns over the lack of 

progress of Riou’s pupils, and in particular, Riou’s failure to record grades and conduct benchmark 

testing—all discovered after Riou went on leave. Jarvis-Hernandez stated that, while assisting 

another teacher in preparing a lesson plan for Riou’s students, she found blank “Benchmark 

Text/Reading Level Assessment Records” in Riou’s classroom. Jarvis-Hernandez stated that the 

records “should have been completed in early December and again in March in order to complete 

the Kindergarten report card/checklist for the second and third 9-week grading period.” JarvisHernandez also discovered that Riou had failed to ensure parents returned signed report cards as 

required by district policy. 

These discoveries prompted Jarvis-Hernandez to review Riou’s entries in the school’s 

electronic grading system. She learned that Riou had not recorded any grades since October 24, 

2014—the last day of the first nine-week grading period. Riou had not logged in to the system at 

all since January 7, 2015 and did not enter grades that day. Riou’s failure to record grades meant 

that the system showed “the same [grades] for all three grading periods since the grades rolled 

over and duplicated from the first grading period.” 

Jarvis-Hernandez’s review further revealed that although reading level assessments should 

have been entered for the second and third nine-week grading periods, “[o]nly one report 
5

card/checklist, belonging to a student who had withdrawn earlier in the year . . . had a reading level 

indicated for the third 9-week grading period.” Jarvis-Hernandez identified “three student report 

card/checklists that had no grades included at all,” other grades entered incorrectly (with symbols 

instead of numbers), and scores recorded in areas “that should not have been scored until later in 

the year.” Additionally, grades for Riou’s students furnished to Riou by music and physicaleducation teachers had not been entered or were entered incorrectly. 

On September 15, 2015, the school board notified Riou that it planned to terminate her 

continuing contract for good cause based on her failure to comply with district policies regarding 

grading and testing, among other reasons. Riou requested a hearing before an independent hearing 

examiner.4 The examiner heard testimony from Jarvis-Hernandez, Riou, other Royal Ridge 

teachers and employees, and two parents who testified on Riou’s behalf. 

Jarvis-Hernandez testified at length about the grading and testing irregularities that she had 

documented in her memo to Riou as well as other issues with Riou’s job performance. Concerns 

about Riou’s performance arose during her first year at Royal Ridge while she taught fourth grade. 

A “summative review’ for the 2013–14 school year indicated that Riou was repeatedly late for 

work, an issue that was “addressed but continue[d] to be an area of concern.” Riou also did not

submit “response to intervention” paperwork to arrange supplemental services for struggling 

students. Riou additionally failed to maintain “appropriate pace” under the district’s “scope and 

sequence” policy, which Jarvis-Hernandez testified was “the order and the timeline” for concepts 

to be taught throughout the school year. According to Jarvis-Hernandez, Riou struggled with these 

issues during the 2014–15 school year as well.

4 Id. §§ 21.159(b)(1), 21.256(c)–(e).
6

After Riou went on leave, Jarvis-Hernandez discovered blank reading assessment 

“benchmark cards” in Riou’s classroom that should have been completed. Jarvis-Hernandez asked 

the school’s data processor to print out report cards “so we could see where the students were” and 

found cases where “there were no benchmark grades at all on the report cards, no reading levels.” 

Of the grades entered, Jarvis-Hernandez noted that “whatever was scored for the first nine weeks 

was the same for the second and the third,” leading Jarvis-Hernandez to conclude that Riou had 

not entered new grades, allowing the first nine weeks’ grades to “roll over.” The grades Riou had 

entered indicated that Riou had prematurely scored areas not taught until later in the year, while 

other grades were improperly entered using symbols instead of numbers. Ultimately, JarvisHernandez concluded that Riou did not conduct benchmark testing during the second and third 

nine-week grading periods—half the school year—and did not electronically record students’ 

grades during that time, though deadlines for the second and third nine-week grading periods had 

passed before Riou went on leave. Because no reading benchmark test results existed, JarvisHernandez asked the school’s reading specialist to test Riou’s pupils. Seven warranted intervention 

and tutoring—a “high number.” 

At the beginning of each school year, teachers viewed a video regarding grading policies 

and acknowledged that they had reviewed the “grading reporting policy.” Riou received instruction 

on the “proper sequence” for kindergarten teachers and multiple reminders about grading 

deadlines. Jarvis-Hernandez discussed with Riou “ways that I could help her . . . acclimate to 

kindergarten and the schedule and the requirements for that grade level,” and assigned a volunteer 

retired teacher to mentor Riou. 
7

In her testimony, Riou disputed Jarvis-Hernandez’s account. Riou conceded that she did 

not consistently record students’ grades electronically, but she stated that the school’s data 

processor had allowed her to handwrite grades and submit them directly to parents. The school’s 

data processor rebutted Riou’s testimony, denying that she had granted Riou an exception to the 

district’s electronic grade-reporting policy. Though Jarvis-Hernandez found no documentation of 

Riou’s grading and reading assessments, Riou testified that she handwrote pupils’ scores, and sent 

them home to parents for the second and third nine-week grading periods. Riou similarly testified 

that she conducted benchmark testing on printed forms. Riou stated that the school’s curriculum

“scope and sequence” policy was confusing and her fellow kindergarten teachers were not helpful. 

Riou testified that she received positive feedback from parents, and two testified on her behalf. 

After the hearing, the examiner issued findings of fact and conclusions of law. He 

concluded good cause existed to terminate Riou’s contract. The hearing examiner noted that “[t]he 

evidence presented clearly showed that [Riou] did not comply with [the district’s] Grading and 

Reporting Procedures/Policy”; that Riou “had reviewed and was aware of” those policies; and that 

“[e]fforts were made to help [Riou] comply with the directives of her job.” The hearing examiner 

emphasized that “[a] school district is under a duty to the State and Federal government[s] to report 

the progress or lack thereof of its students,” and “cannot fulfill its responsibility if teachers get to 

decide when and how they are going to assess/grade students.” Though he acknowledged state and 

federal laws requiring grading and assessments, the examiner observed that the district had 

presented no evidence about standards in similarly situated school districts. The hearing examiner 

relied on “good cause per se”—an “exception to the usual requirement”—to terminate the contract, 

based on findings that the district’s grading policy was “reasonable,” Riou’s violation was “clear,” 
8

and the “effect on [the district’s] business [was] clearly shown.” After the hearing, the district and 

Riou presented oral argument to the school board in closed session. The board adopted the hearing 

examiner’s findings and terminated Riou’s contract. 

Riou appealed the board’s decision to the Commissioner of Education.5 The Commissioner

may reverse a board’s decision only if it is “arbitrary, capricious, or unlawful or is not supported 

by substantial evidence.”6 In affirming the board’s decision, the Commissioner observed that 

“[t]he central issue in this case is whether there exists good cause per se to terminate [Riou’s] 

contract.” The Commissioner adopted the hearing examiner’s findings of fact and conclusions of 

law, ruling that the school district had demonstrated “good cause per se.” The Commissioner used 

the examiner’s three-part test, concluding that: (1) “[a]ll the rules in question are reasonable”; (2) 

[s]ubstantial evidence establishes that [Riou] clearly violated all of the relevant rules”; and (3) 

“[t]he violation of the rules at issue, taken together and in the circumstances found in the present 

case, had a clear effect on [the district’s] business.”

Riou then sued in state district court, in further appeal of the board’s decision.7 The trial 

court reversed the Commissioner’s decision and found for Riou, ruling that the Commissioner’s 

good cause determination lacked substantial evidence to support it and the statutory good cause 

definition had no “good cause per se” exception. The Commissioner and the school district 

appealed. The court of appeals affirmed, holding that Riou had preserved her objection to a “good 

cause per se” exception and that evidence does not support the Commissioner’s decision.8 The 

5 Id. § 21.301(a).

6 Id. § 21.303(b)(1). 

7 Id. § 21.307(a)(1). 

8 581 S.W.3d 333, 341 (Tex. App.—San Antonio 2018). 
9

court of appeals concluded that “the Commissioner’s good cause per se standard conflicts with the 

statutory language of [Education Code section 21.156(a)], and thus may not be used in determining 

whether good cause exists to terminate a teacher under a continuing contract.”9 We granted the 

district’s and Commissioner’s petitions for review. 

II

At the outset, both the school district and the Commissioner contend that Riou did not

preserve her challenge to the examiner’s reliance on a “good cause per se” exception because Riou 

did not raise this argument until her case was under judicial review. 

A

A teacher employed under a “continuing contract” is “entitled to continue in the teacher’s 

position or a position with the school district for future years without the necessity for annual 

nomination or reappointment . . . .”10 A school district may, however, discharge a continuing 

contract “for good cause as defined by [Education Code section] 21.156 and in accordance with 

the procedures provided by [Education Code chapter 21].”11 The statute defines “good cause” as 

“the failure to meet the accepted standards of conduct for the profession as generally recognized 

and applied in similarly situated school districts in this state.”12

A school board that proposesto end a teacher’s continuing contract “must notify the teacher 

in writing of the proposed action and the grounds for the action.”13 The school board did so here, 

9 Id. at 345.

10 TEX. EDUC. CODE § 21.154. 

11 Id. § 21.154(4). 

12 Id. § 21.156(a). 

13 Id. § 21.158(a). 
10

providing a list of reasons, including that Riou (1) “repeatedly failed to comply with campus 

directives and expectations, along with various District policies, with respect to documenting 

student performance”; (2) “did not complete required documentation regarding [her] students’ 

performance”; (3) “failed to complete entering student performance data in [the electronic grading 

system], and some of the data entered was incomplete or inaccurate”; and (4) “failed to ensure that 

parents return signed report cards.” “These issues,” the board continued, “resulted in either 

inadequate student progress or a lack of information sufficient for others to determine [her] 

students’ academic level.” 

A teacher who protests the proposed termination of a continuing contract may request a 

hearing before an independent hearing examiner certified by the Commissioner of Education.14

The Texas Rules of Evidence govern the hearing, and the parties may present evidence and crossexamine adverse witnesses.15 The examiner may subpoena witnesses and allow depositions and 

other discovery.16 “At the hearing, the school district has the burden of proof [to show good cause] 

by a preponderance of the evidence.”17 The examiner must “make a written recommendation” that 

“includes proposed findings of fact and conclusions of law” that “may be adopted, rejected, or 

changed by the [school board].”18 The board considers the recommendation at its board meeting.19

14 Id. §§ 21.159(b)(1), 21.252. The hearing is not subject to the Administrative Procedures Act. See id. 

§ 21.256(b).

15 Id. § 21.256(c), (d). 

16 Id. § 21.255(a), (b). 

17 Id. § 21.256(h). 

18 Id. § 21.257(a)(1), (a-1). 

19 Id. § 21.258(a).
11

The meeting is non-evidentiary, but each party may present argument.20 The board may “adopt, 

reject, or change” the examiner’s findings of fact or conclusions of law, but may reject or change 

a finding of fact only if the fact “is not supported by substantial evidence.”21 Here, the board 

allowed oral argument, after which the board adopted the hearing examiner’s findings of fact and 

conclusions of law without modification. 

The teacher may appeal a board’s adverse decision to the Commissioner of Education.22

The Commissioner performs “a limited review” of a school board’s decision.23 The Education 

Code confines that review to “the record of the hearing before the hearing examiner and the oral 

argument before the [school board].”24 The Commissioner “shall consider the appeal solely on the 

basis of the local record and may not consider any additional evidence or issue.”25 The 

Commissioner may hear oral argument and must accept written argument.26 In deciding the appeal, 

the Commissioner “may not substitute [his or her] judgment for that of the board unless . . . the 

decision is arbitrary, capricious, or unlawful or is not supported by substantial evidence.”27 Either 

party may appeal the Commissioner’s decision to a district court, which “shall, under the 

20 Id. § 21.258(b). 

21 Id. § 21.259(b)(1), (c).

22 Id. § 21.301(a). An appeal to the Commissioner is not subject to the Administrative Procedures Act. Id. 

§ 21.301(e). 

23 Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). 

24 TEX. EDUC. CODE § 21.301(c).

25 Id. Yet the Commissioner “has the same authority relating to discovery and conduct of a hearing” as the 

independent hearing examiner. Id. § 21.301(d).

26 Id. § 21.301(c).

27 Id. § 21.303(b)(1).
12

substantial evidence rule, review the evidence on the evidentiary record made at the local level 

and any evidence taken by the commissioner but may not take additional evidence.”28

Judicial review is similarly limited. A court “may not reverse the decision of the 

commissioner unless the decision was not supported by substantial evidence or unless the 

commissioner’s conclusions of law are erroneous.”29 Review under the substantial-evidence rule 

is highly deferential—the issue is not whether the agency’s decision is correct, but whether the 

record demonstrates a reasonable basis for it.30 Thus, the evidence “may preponderate against the 

decision of the agency and nonetheless amount to substantial evidence.”31 This rule precludes 

courts “from ‘usurping the agency’s adjudicative authority even though the court would have 

struck a different balance.’”32 In upholding an agency’s determination, a reviewing court is not 

bound by the agency’s reasons for its decision when a valid basis exists for the action taken.

33

B

Turning to the facts of this case, we first address error preservation. The examiner 

concluded that, though neither side presented evidence “directly addressing what is the ‘accepted 

standard in similarly situated school districts,’” the “good cause per se” standard is an “exception 

to the usual requirement.” According to the examiner, under the “good cause per se” standard, “the 

rule alleged to be violated must be reasonable, the violation must be clear, and the effect on the 

28 Id. § 21.307(a)(1), (e).

29 Id. § 21.307(f). 

30 See City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179, 185 (Tex. 1994) (“At its core, the 

substantial evidence rule is a reasonableness test or a rational basis test.”).

31 Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). 

32 R.R. Comm’n of Tex. v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex. 1991) (quoting Tex. State 

Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 117 (Tex. 1988)).

33 Pretzer v. Motor Vehicle Bd., 138 S.W.3d 908, 914 (Tex. 2004). 
13

school’s business must be clear.” Based on this exception, he then concluded: “It is my opinion 

that the facts of this case meet the above referenced criteria, to wit: [the district’s] Grading and 

Reporting Procedures/Policy is reasonable, the disobedience and violation of this rule is clear, and 

the effect on [the district’s] business is clearly shown.” 

The district and Commissioner correctly observe that the Commissioner’s review is limited 

to issues raised at the “local level.” See TEX. EDUC. CODE § 21.301(c) (“[T]he commissioner shall 

consider the appeal solely on the basis of the local record and may not consider any additional 

evidence or issue.”). Through counsel, Riou argued to the school board that the district did not 

prove good cause to end her contract, though she did not address the examiner’s “good cause per 

se” exception or contend that evidence from similarly situated school districts was lacking. 

Riou acknowledges that she “did not expressly specify that the good cause per se standard 

was the wrong legal standard” before the school board. But she maintains she nonetheless “argued 

against the sufficiency of the evidence used to support the [hearing examiner’s] recommendation.” 

And, “she has continuously argued that [the district] failed to meet its burden of proof to terminate 

her continuing contract.” 

The district and the Commissioner characterize Riou’s argument regarding the “good cause 

per se” exception as an unraised issue. But this argument supports Riou’s larger position that the

Commissioner’s decision lacks substantial evidence—a position she has maintained at every stage. 

Riou argues that the board’s decision lacks evidence to support it under the correct legal standard, 

using the proper statutory definition.34 While section 21.301(c) confines the Commissioner’s 

34 See TEX. EDUC. CODE § 21.156(a).
14

review to the “local record,” implementation of a per se standard is in the local record in this case; 

the examiner relied on it to find good cause.

Riou’s consistent position is that the district lacked good cause to end her contract, and that 

the board’s decision is unsupported by the evidence. That argument fairly includes the examiner’s 

application of an exception that relieved the district from its statutory burden to show that Riou 

failed to meet professional standards “generally recognized and applied in similarly situated school 

districts.”35 Riou argued extensively at the school board meeting that the district failed to carry its 

burden to show good cause, a position she maintained on appeal to the Commissioner. Because 

her challenge to a “good cause per se” exception falls within the scope of her challenge to the 

sufficiency of the evidence,36 we agree with the court of appeals that Riou preserved her challenge 

to the examiner’s use of “good cause per se” in ruling in favor of the district.

37

III

We now turn to the merit of Riou’s challenge. Because the record contains no evidence 

that similarly situated school districts would have ended her contract in similar circumstances, 

Riou contends that the board had no basis for its decision. Riou further contends the Education 

Code’s good cause definition requires such evidence. 

35 TEX. EDUC. CODE § 21.154(4). The Commissioner argues that the court of appeals’ preservation holding 

conflicts with Whitaker v. Moses, 40 S.W.3d 176 (Tex. App.—Texarkana 2001, no pet.). In Whitaker, a teacher argued 

on appeal that the school board had erred in using a substantial-evidence standard in deciding whether to end his term 

contract. Id. at 178–79. Because the teacher had failed to “bring the matter to the fore” before the school board, the 

Commissioner held that the teacher’s challenge was waived. The court of appeals affirmed, observing that objections 

must be raised at the local level to be considered on appeal. Id. at 179. In this case, Riou challenged the sufficiency of 

the evidence to support her termination at the local level in argument to the local board. We disapprove of any reading 

of Whitaker that requires more at the local level than a challenge to the sufficiency of the evidence to invoke a 

substantial-evidence review under the statutory standard.

36 Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014) (observing that while we do not 

consider unraised issues, “parties are free to construct new arguments in support of issues properly before the Court”). 

37 581 S.W.3d 333, 341–43 (Tex. App.—San Antonio 2018). 
15

In his decision, the Commissioner acknowledged that ending a continuing contract 

“normally requires testimony about standards in other similarly situated school districts” and that 

“[i]n the present case, there was no such testimony.” Like the hearing examiner, the Commissioner

adopted a “good cause per se” exception:

The Commissioner has recognized that there is conduct that is so egregious that no 

testimony about other districts’ standards is needed. To show good cause per se for 

the violation of a district’s rules the Commissioner has held that the rules must be 

reasonable, the violation of the rules must be undisputable, and the effect on the 

district’s business must be clear. 

Thus, we must examine whether section 21.156(a) supports this exception to the district’s burden.

We construe statutes, like section 21.156(a), de novo and ascertain the legislature’s intent from the 

plain meaning of the words in the statute.38

Like the court of appeals, we find no support for the Commissioner’s “good cause per se” 

exception to section 21.156(a)’s requirements. The statute requires evidence that a teacher failed 

to meet a professional standard that is “generally recognized and applied in similarly situated 

school districts” to support good cause for ending a continuing contract. The statute contains no 

exceptions. Nor are any of the elements of the exception that the Commissioner articulates found 

in the statutory text. The statute gives no indication that “egregious” conduct overrides the school 

district’s burden.39

38 KMS Retail Rowlett, L.P. v. City of Rowlett, 593 S.W.3d 175, ___ (Tex. 2019) (“When interpreting statutes, 

we look to the plain meaning of the enacted text. We must enforce the statute ‘as written’ and ‘refrain from rewriting 

text that lawmakers chose.’” (quoting Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014))).

39 The Commissioner’s decision cites Watts v. St. Mary’s Hall, Inc. in support of the good cause per se 

standard. 662 S.W.2d 55 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). But the court of appeals in this case—the 

same that decided Watts—disavowed its applicability here because Watts “did not involve an employment contract 

with a governmental unit that is governed by statute and administrative law.” 581 S.W.3d at 344. The school board 

does not urge Watts in defending the good cause per se standard to this Court.
16

Contrary to Riou’s suggestion, however, section 21.156(a) does not require particularized 

evidence for her specific facts. It instead requires evidence of a generally applicable standard. 

Whether a district can end a continuing contract for good cause is measured against “standards of 

conduct for the profession as generally recognized and applied in similarly situated school districts 

in this state.”40 A standard of conduct that is “generally recognized and applied” in all school 

districts meets the definition. Thus, a state law or regulation imposed generally on all districts can 

be evidence of a “generally recognized and applied” standard of conduct. 

Proper grading and testing of students are core responsibilities of Texas teachers. The 

Education Code requires school districts to “adopt a grading policy, including provisions for the 

assignment of grades on class assignments and examinations . . . .”41 It further provides that 

district policies “require a classroom teacher to assign a grade that reflects the student’s relative 

mastery of an assignment.”42 Districts must “notify the parent or guardian of each student in 

kindergarten . . . who is determined, on the basis of reading instrument results, to be at risk for 

dyslexia or other reading difficulties.”43 The Commissioner requires all districts to maintain an 

“academic achievement record (transcript)” for all students that includes “the record of courses 

and credits earned.”44 Federal law conditions federal funding on the requirement that states 

40 TEX. EDUC. CODE § 21.156(a) (emphasis added).

41 Id. § 28.0216.

42 Id. § 28.0216(1). 

43 Id. § 28.006(g). 

44 19 TEX. ADMIN. CODE § 74.5(b)–(c). 
17

identify, locate, and evaluate all children who have disabilities and need special education and 

related services.45

In this case, the hearing examiner referred to state and federal law in finding that Riou did 

not meet generally applicable professional standards for teachers. Although exact grading policies 

may vary, the requirement to follow those policies is a standard “generally recognized and applied” 

in all Texas school districts, including districts “similarly situated” to the North East Independent 

School District.

46 The district need not have introduced specific evidence that individual districts 

view grading and testing as indispensable job responsibilities for a classroom teacher, as that 

standard is incorporated in state laws.47

Evidence from similarly situated school districts is required when a district seeks to prove

good cause for reasons unrelated to a generally applicable law or regulation. For example, the 

Commissioner found no evidence to support good cause for the firing of an athletic director when 

the director overruled a subordinate’s decision to suspend student athletic participation.48 The 

athletic director based his decision, at least in part, on concerns over disparate treatment between 

boy and girl students. In that case, the Commissioner concluded that “[t]here was no evidence 

45 See 20 U.S.C. § 1412(a)(3). 

46 The district urges that evidence of a “generally recognized and applied standard” is also provided by the 

Code of Ethics and Standard Practices for Texas Educators, which states that: “The educator shall comply with state 

regulations, written local school board policies, and other state and federal laws.” 19 TEX. ADMIN.CODE § 247.2(1)(G)

(emphasis added). We disagree, however, that violation of a district policy alone furnishes evidence of a “generally 

recognized and applied standard.” 

47 See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000) (“Because school boards have 

‘the exclusive power and duty to govern and oversee the management of the public schools of the district,’ . . . a school 

board must be the ultimate interpreter of its policy, subject to the limits established by the Legislature in its provisions 

for administrative and judicial review.” (quoting TEX. EDUC. CODE § 11.151(b))). 

48 See Comm’r Educ., Evans v. Donna Indep. Sch. Dist., Docket No. 091-R2-805, 2005 WL 8146594, at *5–

6 (Sept. 1, 2005).
18

presented that [the athletic director’s] action violates the standards in similarly situated school 

districts.”49 Without evidence that the athletic director had violated a district policy incorporating

a state or federal law or regulation, or otherwise contravened a generally recognized standard, the 

Commissioner rejected the board’s decision. When judgment calls—untethered to any generally 

applicable law or regulation—are the reason for termination, evidence of accepted standards in 

similarly situated school districts is necessary to establish the applicable standard of professional 

conduct the statute requires.

In contrast, the evidence in this case did not implicate a judgment call. Riou failed to 

comply with the district’s policies for grading and testing, which implement express directives 

found in state and federal law. The district presented evidence that Riou failed to electronically 

record grades for nearly six months and failed to assess and record her pupils’ reading levels during 

that time. When tested, a high number of Riou’s pupils had made little expected progress. Riou

presented contradictory evidence. It was up to the examiner and the local school board, however,

to resolve conflicts in this testimony. We defer to the board’s decision on these matters of 

credibility.50

Mindful of the deferential standard that courts accord local school boards and the 

Commissioner of Education, we hold that substantial evidence supports the board’s decision to 

end Riou’s continuing contract for good cause. The statutory definition does not require evidence 

that another district would have ended Riou’s contract under these specific facts; rather, a district 

49 Id. at *6. 

50 Under any standard of review, the fact-finder is the sole judge of the credibility of witnesses and the weight 

to give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). “They may choose to believe one 

witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.” Id. (citations 

omitted).
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must show that the teacher failed to meet a “standard of conduct for the profession” that is 

“generally recognized and applied.”51 The wholesale failure to properly grade and test students, as 

required under state and federal law, is some evidence demonstrating a failure to comply with a 

generally applicable standard of professional conduct for any school district. Within that context, 

the board had discretion to decide whether to end Riou’s continuing contract—Education Code 

section 21.156 provides that a teacher employed under a continuing contract may be discharged 

“for good cause as determined by the board of trustees.”52 The good cause definition does not read 

out the school board’s discretion.

* * *

We hold that Riou preserved her argument that the board’s decision to end her continuing 

teaching contract lacked substantial evidence because the district failed to adduce evidence of

standards recognized and applied in similarly situated school districts. We further hold that the 

“good cause per se” exception to the statutory standard as articulated by the Commissioner has no 

support in Education Code section 21.156(a). We reject it as an exception to the requirements set 

out in the statute. We disagree with the court of appeals, however, that section 21.156(a) always 

requires evidence from similarly situated school districts to demonstrate generally accepted 

professional standards. When state or federal law provides a standard, specific evidence from other 

school districts is unnecessary to establish that the standard is one “generally recognized and 

applied” in all school districts. The school board acted within its discretion in ending Riou’s 

contract because substantial evidence supports its determination that Riou failed to comply with 

51 TEX. EDUC. CODE § 21.156(a). 

52 Id. (emphasis added). 
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district policies implementing “generally recognized and applied” standards under state and federal 

law. Accordingly, we reverse the court of appeals’ judgment and reinstate the Commissioner’s 

decision.

________________________________

Jane N. Bland

Justice

OPINION DELIVERED: March 27, 2020