### 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. 03-12-00145- CV

Houston I ndepend ent School District and Michael William s, Successor t o RobertScott, Com m ission er of Edu cation, Appellan ts

v. Reginald S im pson , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0192 4, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

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

This administrative appea l arises from a dispute betwee n appellee Reg inald Simps on and his former employ er, the Houston I ndepende nt School District (the District), in which Simps on contends that the District improperly denied his employ ment contra ct. After pursuing relief throug h the Di s t ri ct’s g rieva

nce proce ss, Simps on soug ht administrative revie w of the District’s decision befor e the Texas Commi ssioner of Educa tion. See Tex. Educ. Code § 7.057(a) (providing for appea l

o f c e r ta in a c ti o n s o r d e c is io n s o f a ny s c h o o l d is tric t b o a

r d o f tr u s te e s )

. T h e Co mm is s io n e r d e te r mi n e d that there was no written employ ment contra ct betwee n Simps on and the District and conseque ntly dismiss ed Simps on’s appea l for lack of jurisdiction. Simps on then broug ht s uit in district court for judicial revie w of the Commi ssioner’s decision. See id

. § 7.057(d) (providing for appea l of decisions of Commi ssioner in district co u rt ). The district court reve rsed the Commi ssioner’s ju r is d ic ti o n a l r

u li n g a n d r e ma n d e d th e c a

u s e to th e Co mm is s io n e r f o r f u r th e r p r o c e e d in g s . O n a

p p e a l,the District and the Commi ssioner asser t that the trial court improperly reve rsed the Commi ssioner’s decision. We will affirm the district cour t’s judgme nt. 1

BACK GR OUND Most of the backg round fac ts rele vant to the issues in this appea l are undisputed. Simps on was employ ed by the District as a cer tifie d ed u ca t o r fr o m 1999 to May 2007, when he voluntarily resig ned to pur sue other c are er oppor tunities. I n Aug ust 2007, Si mpson reapplied for

2 empl o y m en t with the District. As part of the application proce ss, the District g ave Simps on the following document:

TO: HI SD Employ ment Applicant FROM: Be atrice G. Gar za, Ex ecutive G ener al Mana g er, H uman Resourc es RE: Memorandum of Under standing Reg arding Employ ment on a Contingenc y

Ba sis This letter is to inform all [Dist rict] applicants that [the District] is offer ing y ou employ

ment at this time conting ent upon satisfac tory results of the require d local crimi n al b ackgr ound chec k. Howeve r, if the result of the state and national sear ch ar e [sic] unacc eptable, your employ ment may be ter minated. Your signature on this Memo ra n d um of Under standing constitutes y our ag ree ment that y ou understand the conditional nature of y our employ ment, and that y our failure to fully disclose all criminal history rec ords m ay t er m inate y our employ ment with the district.

Whil e the Commi ssioner and the District eac h filed a notice of appea l and bri ef o n t h e 1 same issues, we will refe r to the appe llants collectively as “the District.” Acc ording to Simps on, at the time he resig ned, he was rea ssured by both his principal and 2 a re prese ntative from the D istrict’s human re source s office that he would be e ligible f or re hire. 2B o th Si mp s o n a n d a n o f f ic ia l f r o m th e D is tric t s ig

n e d th e d o c u

me n t. A w e e k la

te r , a h u ma n r e s o u r c e s employ ee with the Dis t ri ct gave Simps on an elec tronically pre- signe d One- Yea r Employ ee P ro b ati onary Contract (Employ ee Contract), which Simps on signe d and returne d the same d ay . Howeve r, according to the District, Simps on had bee n issued the Employ ee Contra ct in err or, and the Dis trict informed Si mpson of this error the next day . The District a lso later told Simps on that “his criminal re cord pr eclude s employ ment with the [Dist rict].” 3 Simps on subsequently

filed a g rieva

nce with the District’s administration, alleg ing that his contra ct had been improperly denied and reque sting a formal hear ing. At the co n clus ion of the District’s g rieva

nce proce ss, including sever al evident iary hear ings, the District Boa rd of Educa tion (the Boa

rd) denied Simps on’s g rieva nce. Simps on appea led the District’s decision to 4 the Commiss ioner pursua nt to section 7.057(a) (2)( B) of the Te x as Educa tion Code. I n his petition to the Commi ssioner, Simps on rec ite d t he fac ts above and asser ted that the District’s “ef

fort to invali d at e [ h i s] fully executed 2007-08 probationar y teac her contra ct constitutes a b re ac h o f [hi s] contra ct, which cause s him financ ial harm.” Simps on’s appea l was

Prior to his employ

ment with the District in 1999, Simps on disclosed that he had rec eived 3 d e f e r r e d a d ju d ic a ti o n f o r f e lo ny th e f t in 1 9 8 5

. A c c o r d in g to th e D is tric t, u n d e r it s th e n - e xis ti n g p o li c y , it g rante d Simps on a wa i v er that allowed him to be employ ed up until his resig nation in 2007, despite this criminal history

. T h e D is tr ic t h a s a th

r e e - ti e r e d c o mp la in

t s y s te m. A t th e f

in a l s ta g e , th e “ le v e l I I I g

r ie v a n c e ” 4 decision is made by the Boa rd. I n this case , following the prese ntation of Simps on’s g rieva nce, and the arguments of the parties, the Boa rd defe rre d to the District Superintendent to m ake the final decision on Simps on’s g rieva nce. On October 22, 2008, the Su p erintendent notified Simps on by letter that “base d on the arguments prese nted to the board, the unique circ umstances in this case , and the board’ s authorization to disreg ard the twenty -plus y ear old felony conviction, I have decide d to g rant Mr. Simps on elig ibilit y for rehire in the [Dist rict].” Howeve r, the Superintendent also notified Simps on that his request for “bac k pay

and all other

relief ” wa s denied. 3assig ned to an administrative law judge (AL J ). After “conside ring the rec ord and matters officia lly

noticed,” the AL J issued a proposal for decision, co n cl u d i ng that the Commi ssioner lacke d jurisdiction over the c ause unde r sec tion 7.057(a)( 2)(B ).

Upon considering the local rec ord (deve loped throug h the Di s t rict’s g rieva nce proce ss) and the AL J ’s proposal for decision, the Commi ss ioner deter mined that (1) Simps on’s employ ment contra ct was conting ent on a satisf ac t o ry backg round chec k, (2) this require ment

serve d as a condition prec edent, and (3) b ec au se that condition was not met, the parties had not
enter ed into a contra ct for employ ment for the 2007-2008 school y ear . Simi larly , the Commi ssioner deter mined that (1) “the belief of both parties that [S impson’s] criminal history had been inspected,
approve d, and would not prohibit his employ ment was a mutual mistake,” (2) “bec ause [t he District] promptly informed [ Simps on] of t he error an d did not indicate an intention to aff irm the contract, [t he District] did not lose its ability to avoid the contra ct for mutual mistake,” and (3) “due to mutual mistake, the parties did not enter into a contra ct for employ ment for t h e 2 0 0 7 -2 0 08 school y ear .” Concluding that the parties had not enter ed into a “wr itten employ ment contra ct,” the Commi ssioner deter mined that Simps on’s g rieva nce did not satisfy the jurisdictional require ments of section 7.057 of the Educa

tion Code. As a result, the Commi ssioner dismiss ed the cause for lack of jurisdiction. Simps on filed suit in Travis County district court. After admitting the administrative

rec ord, the district court conclude d that “[t] he Commi ssioner err ed as a matter of law in holding that he did not have jurisdiction to hear [S impson’s] appea l.” The district court rema nded the case to the Commi ssioner for

further action.

4STANDARD OF REVIEW I n deciding case s under his jurisdiction, t h e C o m m issioner is require d to “issue a decision based on a revie w of the rec ord develope d at the district level under a substantial evidenc e standard of revie w.” Tex. Educ. Code § 7.057(c)

. Simi larly , on appea l, we revie w the judgme nt of the district court reg arding the fac tual deter minations of the Commi ssioner under a s u b s t an t i al

evidenc e standard. Tijerina v. Alanis , 80 S.W .3d 292, 295 (Tex. App.—Austin 2002, pet. denied)

. 5 Under this standard, the finding s, infere nces, conclusions, and decisions of t he C ommissi oner are presumed to be supported by substantial evidenc e, and the burden is on the contestant to p ro v e otherwise. See id

. at 295 n.5. We deter mine whether the evidenc e as a whole is such that rea sonable minds could have rea ched the same conclusion as the Commi ssioner in the disputed action. See id. On the other hand, the Commi ssioner’s resolution of leg al questions, unlike fac tual deter minations,

are not entitled to a presumption of validity and are revie wed de novo. W eslaco Fed’n of Teachers v. Texas Educ . Agenc

y , 27 S.W .3d 258, 263-64 (Te x . App.—Austin 2000, no pet.). I n this case , the Commi ssioner deter mined that the dispute betwee n the District and Si mp s o n f e ll o uts id e o f h is s u

b je c t- ma tt e r ju r is d ic ti o n . Wh e n r e v ie w in g th e Co mm is s io n e r ’ s d e c is io n with respe ct to jurisdiction, we employ the s am e s t an d ar d of revie w used when revie wing a trial court’s order dismiss ing a cause for want of jurisdiction. Tijerina , 80 S.W .3d at 295. Where, as

Be cause whether

the Commi ssioner’s order satisfies the substantial-evidenc e standard is 5 a question of law , the district c ourt’s judgme nt is not e ntitled to defe renc e on appea l. Heritage on the San Gabriel Homeowne rs Ass’n v. Texas Comm’n on Envtl. Quality , 393 S.W .3d 417, 424 (Tex. App.—Austin 2012, pet. denied) ; see Texas Dep’ t of Pub. Safety v. Alford , 209 S

. W

. 3 d 101, 103 (Tex. 2006) (per

curia m). On appe al from the district c ourt’s judg ment, the foc us of the appe llate revie w, as in the district cour t, is on the ag ency ’s dec ision. Heritage , 393 S.W .3d at 424.

5h er e, t h e Commi ssioner makes fac t finding s nece ssary to resolve the jurisdictional issue based

on an evidentiar

y rec ord develope d throug h an adjudicative proce ss, w e revie w those fac t finding s under the substantial-evidenc e standard. See id. (noting that “substantial-e vi d en ce re v iew may be appropr iate when examining the Commi ssioner’s decisions based on evidenc e rele vant to jurisdiction”). To the extent t h e j u ri sdictional inquiry turns on an interpre tation of the Educa tion Code, we will defe r to the Commi ssioner’s interpre tation of that statute, to the extent i t is ambig uous, if the interpre tation is rea sonable and d o es not contra dict the plain lang uag e of the
statute. Tijerina , 80 S.W .3d at 295; see also Combs v Health Care Servs. Corp. , 401 S.W .3d 623, 630 (Tex. 2013) (explaining that a mbiguity is “a pre condition to ag ency defe renc e”)

.

ANALYSIS Section 7.057 of the Educa tion Code g overns appea ls from a local school district to the Commiss ioner. Subsection (a ) def ines the Commissi oner’ s jurisdiction and provides:
(a) [A] person may appea l in wri t i n g to the Commi ssioner if the person is ag g rieve d by : (1) the school laws of this state; or (2) actions or decisions of an y school district board of trustees that violate: (A) the school laws of this state; or (B ) a provision of a writt en employm ent contract betwe en the school dist ri ct and a school district employ ee, if a violation cause s or would ca

use monetar

y harm to the e mploy ee.

6Tex. Educ. Code § 7.057(a) (empha sis added)

. Under this standard, the Commi ssioner examines

the rec ord develope d below to deter mine whether the District’s decision resulted from a prejudicia l

err or of law, such as an abuse of discretion, an action taken in excess of authority , a violation of law,

o r fa ct finding s that are unrea sonable in light of the evidenc e found in the rec ord of proce edin gs befor e the school board. Y sleta Indep. Sch. Dist. v. Meno , 933 S.W .2d 748, 7 5 1 n . 5 (T ex. App.—Austin 1996, writ denied)

.

Her e, in both proce eding s, the Commi ssioner and the d i s trict court interpre ted the Employ ee Contract and deter mined whether , as a threshold m at t er , the dispute fell within the Commi ssion’s jurisdiction under section 7.057(a) (2)( B)

. I n determ i n i n g t h at it did not, the Commi ssioner rea soned that (1) the ex i s t ence of a valid “wr itten employ ment contra ct” betwee n the parties was a fac t , the exis tence of which was nece ssary to confe r jurisdiction under section 7.057(a) (2)( B) , and (2) no such contra ct exis ted in this case bec au s e (a ) “no contra ct was formed beca use a co ndition prec edent was never met,” and (b) alternatively , “a mutual mistake of fact by
t h e p ar t i es shows that there was no meeting of the minds.” Thus, the Commi ssioner nece ssarily int e r p r e te d th e te r

m “ w r it te n e mploy

ment contra ct” in section 7.057(a) (2)( B) to require the formation of a v al i d written contra ct. On appea l, the parties do not dispute whether the Commi ssioner’s interpre tation of section 7.057(a) is corr ect. Assuming without de ciding that the Commi ssioner’s 6 interp re t at i on is corr ect, the resolution of this appea l turns on whether there was a “wr itten

“While the Commi ssioner’s interpre tation of his jurisdiction under section 7.057(a) is not 6 controlling , it does merit serious consideration if it is reasonable and does not c ontradict the pla in lang uag e of the statute.” Smith v. Nelson , 53 S.W .3d 7 9 2 , 795 (Tex. App.—Austin 2001, pet. denied) (citing Dodd v. M eno , 870 S.W .2d 4, 7 (Tex. 1994)).

7employ

ment contra ct” formed betwee n Simps on and th e District under section 7.057(a) (2)( B) , as interpre ted by

the Commiss ioner. 7
Un d er Texas law, to establish contra ct formation a party must prove, among ot h er elements, an offe r and acc eptanc e and a meeting of the minds on all essential terms. Principal Life Ins. Co. v. Rev alen Dev ., LLC , 358 S.W .3d 451, 454-55 (Tex. App.—Dallas 2012, pet. denied)

. To

cre ate an enfor cea

ble contra ct, the minds of the parties must meet with respe ct to the subject matter of t he agr eeme nt and all its essential terms. Id

. I n three issues on appea l, t h e Di s t ri ct argue s that the C o m m i s s i oner corr ectly conclude d that no written employ ment contra ct was formed betwee n the parties and conseque ntly that he had no jurisdiction. First, the Di strict contends that the Commi ssioner corr ectly deter mined that obtaining satisfac tory results from Simps on’s backg round chec k serve d as an unfulfilled condition prec edent to the formation of an employ ment contra ct betwee n the District and Simps on. Second, the District contends that the rec ord contains substantial evidenc e of mutual mistake. Finally , the District arg ues that the rec ord contains substantial evidenc e that the District’s cr iminal-history policy restric tion was not waived.

Condition P rec edent

Turning to the District’s first issue on appea l, we consider whether the district court

err ed in failing to aff

irm the Commi ssioner’s ruling on the g round that Simps on’s satisfac tory criminal background chec k serve d as an unfulfilled condition prec edent to the formation of a

Simps on does not alleg e that any action or decision by the Bo ard of Trustee s violated 7 t h e school laws of this state. See Tex. Educ. Code § 7.057(a) (2)( A). There is no d i s p u t e t h at , i f the Commi ssioner has jurisdiction over Simps on’s g riev an ce , i t would be pursuant to section 7.057(a) (2)( B)

. 8contra ct betwe en the pa rties. A condition pr ece dent is a n event that must happe n or be pe rfor med befor e a d u t y o f immediate perf ormanc e of a promise arises

. Hohenbe rg Bros. Co. v. George E. Gibbons & Co. , 537 S.W .2d 1, 3 (Tex. 1 9 7 6 ). There are two ty pes of conditions prec edent. See Dillon v. Lintz , 582 S.W .2d 394, 395 (Tex. 1979) (“A condition prec edent may be either a condition
to the formation of a contra ct or to an obligation to perf orm an exis ting ag ree ment. Conditi ons may , th e r e f o r e , r e la te e it h e r to th e f

o r ma ti o n o f c o n tr a c ts o r to li a

b il it y u n d e r th e m. ” ) ; P e a r

s o n v
. F u ll in g im , No. 03-03-00524- CV, 2006 Tex. App. L EXI S 1346, at *15 (Tex. A pp.—Austin F eb. 17, 2006, no pet.) (mem. op.). The first ty pe is a condition prec edent to the formation of a c ontrac t. See Lint z , 582 S.W .2d at 395. I f the pa rties have ag ree d that a contract will not be effec tive or binding until

cer tain conditions occur , no binding contra ct will arise until the conditions specifie d have occur red. Parkvie w Gen. Hosp. v. Eppes , 447 S.W .2d 487, 490-91 (Tex. Civ. App.—Corpus Christi 1969, writ ref ’d n.r.e.). The second t y

pe of condition prec edent is a c ondition to an obli g ation to perf orm an exis ting ag ree ment. See Lintz , 582 S.W .2d at 395. Conditi ons prec edent to an obligation to perf orm

are t hose acts or events that must occur afte r the making of a contra ct befor e there is a rig ht to i m m ediate perf

ormanc e and befor e there is a brea ch of contra ctual duties. Hohenbe rg Bros. Co. , 537 S.W .2d at 3.

Her e, it is undisputed that Simps on’s backg round chec k reve aled a criminal history that, under district policy at the time, w as considere d unacc eptable. Thus, the issue is whether the parties i n t en d ed fo r a criminal backg round chec k, conducte d with satisfac tory results, to act as a condition prec edent to the formation of their contra ctual rela tionship. See Parkvie w Gen. Hosp ., 447 S.W .2d at 491 (“When liabil i t y o n the contra ct depends on the perf ormanc e or a happening of a

9condition prec edent, the plaintiff must alleg e and prove that the condition has happene d or has been

perf ormed or that there w as a w aiver of the pe rfor

mance of the c ondition prece dent.”)

. Whether the parties intended to enter into a binding ag ree ment is g ener ally a question of fac t. Sadeghi v. Gang , 270 S.W .3d 773, 776 (Tex. App.—Dallas 2008, no pet.). L ikewise, whether the parties intended to cre ate a contra ct only upon the satisfac tion of a condition prec edent is g ener ally a question of fact. Foreca, S.A. v. GRD Dev

. Co. , 758 S

. W

. 2 d 7 4 4 , 746 (Tex. 1988). Howeve r, wher e the intent to form a bindi n g agr eement is clea r on the fac e of an unambig uous writing , the issue may be deter mined as a matter of law. Columbia Gas Transmissi on Corp. v. New Ulm Gas, Ltd. , 940 S.W .2d 587, 589 (Tex. 1996); John W ood Grp. USA, Inc. v. ICO , 26 S.W .3d 12, 16 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ; see Insurance Corp. of Am. v. W ebster , 906 S.W .2d 77, 80-81 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (“The construction of an unambig uous writing is a question of law.”)

. Whether a writing is ambig uous is also a question of law. David J. Sac ks, P.C. v. Hade n , 266 S.W .3d 447, 451 (Tex. 2008).

Her e, the District argues that the Commi ssioner corr ectly deter m i n ed that the Employ ee C o n t ra ct and the Memorandum of Under standing cre ated a condition prec edent to the formation of an employ

ment contra ct. Neither party argues that the Memorandum of Under standing

o r t he Employ ee Contract is ambig uous. Howeve r, Simps on argues that the Memorandum of Under standing fails to cre ate a condition prec edent beca use the Memorandum of Under standing was not incorpor ated into the later- executed Employ ee Contract. We take Simps on’s ar g ument to

mean that beca

use the Memorandum of Under standing was not a part of the Employ ee Contract, any consideration of the Memorandum o f Un derstanding in deter mining the intent of the parties is barr ed by the par ol-evidenc e rule and the mer g er doc trine.

10Under the parol-e vidence rule, extrinsi c evidenc e i s i n ad m i ssible to add to, vary ,

or contra dict the terms of an unambig uous written contra ct in t en d ed by the parties to be a final expression o f t h ei r agr ee ment. See In re H.E. Butt Groce ry Co. , 17 S.W .3d 360, 369 (Tex. A p p . — H o u s to n [1 4 th D is t. ] 2 0 0 0 , o r ig

. p r o c e e d in g ) ( “ T h e p a r o l e v id e n c e r

u l e p r e c lu d e s c o n s id e r a

ti o n of extrinsi c evidenc e to contra dict, vary , or add to the terms of an unambig uous written ag ree ment absent fra ud, acc ident, or mistake.”). Simi larly , in c ontrac t c ases, the “mer g er doctrine” acts as an analog ue o f t h e p arol evidenc e rule. Texas A & M Univ. v. Lawson , 127 S.W .3d 866, 872 (Tex. App.—Austin 2004, pet. denied)

. Under the merg er doctrine, prior or contempora neous ag ree ments betwee n t h e same parties and concer ning the same subject matter are absorbed, or “mer g ed,” into

a n o th e r s u b s e q u e n t c o n tr a c t. I

d

. W h e n t h e p a r ti e s h a v e c o n c lu d e d a f

u ll y in te g r a te d w r it te n a g r e e me n t, parol evidenc e of prior or contempora neous ag ree ments is inadmissible if it will vary or contra dict the terms of the ag ree ment, provided that the writing is unambig uous. David J. Sacks, P.C. , 266 S. W. 3 d a t 4 5 0

- 5 1 ; Ca r

r v
. Ch r is ti e , 9 7 0 S. W. 2 d 6 2 0 , 6 2 2 n . 2 ( T e x. A p p . — A u s ti n 1 9 9 8 , p e t. d e n ie d )

. Howeve r, parol evidenc e is alway s admissible to show the nonexis tence of a contra ct

or the conditions upon which it may become eff ective. Rincones v. W

indberg , 705 S.W .2d 846, 847 (Tex. App.—Austin 1986, no writ) (citing Bake r v. Bake r , 183 S.W .2d 724 , 7 2 8 (1 944)). “The eff ect of such a condition ‘is not to vary the terms of a binding instrument but mere ly , as a condition
prec edent, to postpone the eff ective date of the instrument until the happening of a conting ency . . . .” I d

. Co n s e q

u e n tl y , a w r it in g e v id e n c in g a n in te n t to c r e a te a c o n d it io n p r e c e d e n t to c o n tr a c t f o r ma ti o n is admissible for this purpose, even when it is separ ate and apar t from t h e written document for wh i ch enfor ceme nt is soug ht. See id

. (“I t is settled that parol evidenc e of a condition p re ce d en t

11to a contra ct is admissible.”). We will there fore co n s i d er t h e languag e of the Memorandum of

Under standing

.

Turning to the pl ai n lang uag e of the Memorandum of Under standing , we examine whether it evidenc es the parties’ intent to cre ate a condition prec edent to formation of a bind i n g
contra ct. I n deter

mining whether the District and Simps on unambi gu o u s l y intended to cre ate a condition prec edent, we recog nize that, beca use of their potential harshne ss, conditions prec edent

are disfavore d. Crisw ell v. European Crossroads Shopping Ctr., Ltd. , 792 S.W .2d 945, 948 (Tex. 1990). “Althoug h no particula r words are nece ssary for the exis tence of a condition, such terms as ‘if,’ ‘provided that,’ ‘on condition that,’ or some other phrase s that conditions perf ormanc e, usually
connote an intent for a condition rathe r t h an a p ro mise.” Id .; Snyder v. Eanes Indep. Sch. Dist. , 860 S.W .2d 692, 696 (Tex. App.—Austin 1993, writ denied).

Whil e not singula

rly deter minative, we note that the Memorandum of Under standing contains lang uag e that is g ener ally indicative of intent to cre ate a condition prec edent. The Memorandum of Under standing , g iven to Simpson as a D istrict “Employ ment Applicant” pr ior to his rece iving a written off er of employ ment, states that “[the District] is offe ring y ou employ ment at this tim e contingent

upon satisfac tory results of t he required local criminal bac kg round che ck.” (Emphasis adde d ). T h e document also states, “[Y]ou understand the conditional nature of y our

e mp lo y me n t. ” ( E mp h a s is a d d e d )

. B a s e d o n th e p la in la n g u a g e o f th e M e mo r a

n d u m o f U n d e r s ta n d in g ,
we conclude that the document unambig uously evidenc es the parties’ intent to cre ate a con dition
prec edent—that is, the District’s obtaining of acc eptable results from a criminal backg round chec k. This conclusion, howeve r, does not end our inquiry

. Instead, we must decide whether the condition

12prec edent in the Memorandum of Und erstanding cre ates a condition prec edent to formation of a

contra ct or t o obliga

tions to perf

orm under an exis ting contra ct. See Dillon , 582 S.W .2d at 395 (explaining that condition prec edent may be either condition to formation of contra ct or to obligation to perfor m exi sting a g ree ment). The District contends that the Memorandum of Under standing demonstrates that the parties intended for

any offe r of e mploy

ment by the District to be conting ent on the obtaining of a satisfac tory criminal backg round chec k and thus cre ates a condition prec edent to contra ct formation. Howeve r, nothing in the Memorandum of Under standing sug g ests that any offer of employ ment to Simps on is conting ent. I nstead, the Memorandum of Under standing states that “ employm ent at this time” is conting ent. (Emphasis added)

. I n addition, the Memorandum of Under sta n d i n g m ak es clea r that termination of Simps on’s employ ment could result if either ( 1) the c riminal backg round chec k results are unacc eptable or (2) Simps on fails to fully disclose all cr iminal hist ory . Simps on contends, and we agre e, that the Memorandum of Under standing provides that if a subsequent criminal backg round chec k proved unacc eptable, one of two things would occur —(1) the District would not offe r a formal employ ment contra ct, or (2) if a formal employ ment contra ct was offe red and executed, as it was here , the unacc eptable backg round chec k would then serve as basis for termination. I n other words, under the Memorandum of Under standing , if the condition prec edent of an acc eptable background chec k is not satisfied, the District is relieved from its obligation to continue to p ay an d employ Simps on. Upon considering the lang uag e of the Memorandum of Under standing , viewed as a whole, we co n clude that it clea rly and unambig uously evidenc es the

13parties’ intent to cre ate a condition prec edent to the District’s obligations under the contra ct, rathe r

than to its formation.

I n addition, the Dis trict argues t hat t he Empl oy ee Contract i tself de m o n strates that the parties intended to cre ate a condition prec edent to formation of a cont ra ct

. S p ec ifically , the District points to conditi onal languag e in the Employ ee Contra ct:

5.

. . . This Contract is specific ally subject to the policies, proce dures, Standard Practice Memoranda (S.M.), rul es , an d regulations of the District as they exis t or may

be amended is sued, enacted or adopted during the term of this Contract. 6. T h i s C o ntrac t is conditioned on the Employ ee providing the nece ssary certification, cre dentials, officia l transcr ipts, orig inal service rec ords, medical rec ords, and/or other rec ords and information require d by law,

. . . or the District.
Assuming that this lang uag e contemplates an acc eptable criminal backg round chec k as a condition
prec edent, we ag ain would conclude that, at the most, the Employ ee Contract evidenc es the parties’ intent to establish a condition prec edent to the District’s continued obligations under the contr act, not to the formation of the Employ ee Contra ct itself.

Whether the District may be excused from its obligations under the Employ ment Contract by virtue of an unfulfilled condition prec edent has no bear ing on whether a valid contra ct betwee n the District and Simps on was formed—the sole jurisdictional fac t at issue. See Restatement (Second) of Contracts § 225 (1981) (explaining eff ec t s o f non-occ urre nce of condition). We conclude , as a matter of la w, that t he Memorandum of Understanding and the Employ ee Contract do not indicate that t h e parties intended to cre ate a condition prec edent to the formation of an

14employ

ment contra ct. The District does not point to any other evidenc e in the administrative rec ord

8

as indicative of such intent; upon revie w of the rec ord, we conclude that there is no such evidenc e. Acc ording ly , the Commi ssioner err ed in dismiss ing Simps on’s g rieva nce for lack of jurisdiction on this basis. The District’s first issue on appe al is overr uled.

Mutual Mistake

I n its second issue on appea l, the District arg ues that the trial court err ed in reve rsing the C ommissi oner’ s jurisdictional deter mination beca

use t he record contains substantial evidenc e of mutual mistake of fac t. A contra ct is voidable under the doctrine of mutual mistake if the parties formed the contra ct under a mutual misconception or mistake of a materia l fac t. Myra Props., Inc.

v. La Salle Bank Nat’l Ass’n , 300 S.W .3d 746, 7 5 1 (T ex. 2009). Be cause the issue is one of voidability , the contra ct continues to have leg al eff ect and bind the p ar t i es until the mutual mistake is judicially established by one of the parties. Restatement (Second) of Contracts § 7 (1981) (explaining voidable contra cts). I n contra st, when a contra ct is void, no one is bound, and in eff ect,

no contra ct has been formed. See id

. § 7, cmt. a (explaining void contra cts); see also id. § 163 (whe n misrepre sentation preve nts formation of a contra ct), § 174 (whe n duress b y p h y sical compulsion
preve nts formation of contr act)

.

L ikewise, whether any condition pre ce d ent t o the Dis trict’s continued obliga tions under 8 the Employ ee Contract has been waived has no bear ing on whether a valid contra ct betwee n Simps on and the District was formed. See, e.g. , Sun Exploration Co. v. Benton , 728 S.W .2d 35, 37 (Tex. 1987) (explaining t h at “a condition prec edent may be waived” and that “the waiver of a condition prec ed en t m ay be inferr ed from a party ’s conduct” ). Acc ording ly , we need not decide the Distri ct ’s t hird issue on appea l—whether substantial evidenc e supports the Commi ssioner’s deter mination that the criminal history require ment had not bee n waived. 15Even if the Commi ssi o n er corr ectly deter mined that the Employ ee Contract is voidable for mu t u al m i s t ak e, we could not conclude on this basis that the parties failed to form a
contra ct. Whether the parties formed a contra ct is the only jurisdictional issue befor e us; there fore ,
we need not decide whether there is substantial evidenc e to support the Commi ssioner’s conclusion that the Employ ee Contract was the result of mutual mistake. We conclude that, even i f there is substantial e vidence to suppor t mutual mistake in this ca se, the Commissioner err ed in dismissing for lac k of jurisdiction on this basis. W e over rule the D istrict’s second issue on a ppeal.

CONCLUSION Be cause the Commi ssioner’s find i n g t h at no valid contra ct was formed betwee n Si mp s o n a n d th e D is tric t is n o t s u

p p o r te d b y s u b s ta n ti a l e v id e n c e , w e c o n c lu d e th a t th e Co mm is s io n e r

err ed in deter

mining that he lacke d jurisdiction over Simps on’s g rieva nce. We aff

irm the judgme nt of the trial c ourt.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton and F ield Affir med Filed: Nove mber 1, 2013

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