### 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. 03-18-00245- CV

Texas Com m ission er of Edu cation and Mission Cons olidated In dependent S chool District , Appellan ts

v. Dr. M aria Solis, Ap pellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0448 6, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

O P I N I O N 1

This case involves the intersec tion of the conce pts of jurisdiction and waiver as they
rela te to appea ls to the Texas Commi ssioner of Educa tion. The Texas Commi ssioner of Educa tion
and Mission Consolidated I ndepende nt School District appeal the trial court’s judgme nt r ever sing
the Commi ssioner’s decision to dismiss for lack of jurisdiction an administrative appea l broug ht by
Dr. Maria Solis in w hich she challeng ed the nonrene wal of her employ ment contra ct with Mission
Consolidated I ndepende nt School District. Beca u s e we conclude that the Commi ssioner had jurisdiction over Solis’s appeal, we will affirm the tria l court’s judg ment.

Notice of appea l for this case was orig inally filed in this Court in J uly 2016, at which time 1 the case was transfe rre d to the El Paso Court of Appea ls in compliance with a docket- equalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court order ed that cer tain case s be transfe rre d back to this Court f rom the El Paso Court, a

nd we consider this appea l pursuant to that orde r. See Misc. Docke t No. 18-9054 (Te x . Apr. 12, 2018) ( per c uriam).BACK GR OUND
Solis and the District enter ed into an employ ment ag ree ment for the period beg inning
J uly 19, 2012 and ending J une 28, 2013. The ag ree ment provided that “[t] he Superintendent or desig nee shall deter

mi n e t h e work perf

ormed or assig ned for the period of employ ment.” The
ag ree ment also provided, in per tinent part:

This ag ree ment shall be rene wed only by vote of the Boa rd and written notice to the Employ ee o f t hat action. I f the Boa rd does not act prior to the expiration of the ag ree ment, the ag ree ment shall not contin u e in forc e, and employ ment shall cea se on the last day

of the ter m set out in thi s ag ree ment. This ag ree ment is not a “term c o n tr a c t” s u

b je c t to th e p r o v is io n s o f Su b c h a p te r E , Ch a

p te r 2 1 , o f th e T e xa s E d

u c a ti o n Code. No rig ht to tenure or any other contra ctual obliga tion or other expectancy of c o n ti n u e d e mp lo y

me n t o r c la im s o f e n ti tl e me n t is c r e a te d b e y o n d th e a g r e e me n t te r

m.
T h is a g r e e me n

t is s u b je c t to a ll a

p p li c a b le f e d e r a l a n d s ta te la w s , r u le s , a n d r e g u la ti o n s
. I nvalidity of any portion of this ag ree ment under the laws of the State of Texas or of the United States shall not aff ect the va lidity

of the re mainder of

the ag ree ment.

Solis was initially assig ned to work as the school district’s Ex ecutive Direc tor for State and Fe dera l Prog rams. Two months later, howeve r, Solis was rea ssigne d t o serve as an assistant principal at Alton Memorial J unior Hig h School.

I n Marc h 2013, Solis filed a g rieva nce in which she complained that t h e Bo ard of
Trustee s took no actio n at its Marc h 2013 meeting “on [her] 2013-2014 Contract/Employ ment Ag ree ment.” Among other re lief, Solis sought to have the Superintendent “rec ommend [S olis] to the Boa rd of Trustee s for Approva l of [her] 2013-2014 Contract/Employ ment Ag ree ment.” MCI SD

u n d er s t o od Solis ’s complaint to be about “the expiration of [her] contra ct” without rene wal for

t he y ear 2013-2014. I n the letter responding to and deny ing the g rieva nce, MCI SD’ s As s i s t an t Superintendent for

Human Resourc es stated, in par t:
2Having revie wed y our g rieva nce, I find that it f

ails to a lleg e any violation of law or policy

. To beg in, y ou do not have a “2013-2014 Contract/Employ ment Ag ree ment.” Your repe ated ref

ere nces to “my 2013-2 0 1 4 Contract/Employ ment Ag ree ment” imply that y ou have a contra ctual rig ht to employ ment for the 2013-2014 school y ear
. You do not.
When y ou acc epted employ m en t at MCI SD pursuant to y our curr ent contra ct, y ou ag ree d that the contra ct would expire on J une 28, 2013. That is prec isely what is set to o c c u r
. M CI SD is n o t ta

k in g a ny a c ti o n to te r

mi n a te y o u r c o n tr a c t. Ra

th e r , M CI SD is honoring the terms of the contract t o t h e ful lest extent. You have not cited any provision in law or policy that require s MCI SD to offe r y ou a contra ct for the 2013- 2014 school y ear
.

• • • • Your counsel also alleg ed that, “the failure to g ive direc tion to [y ou r] principal in reg ards to re commending or not r ecommending [y ou] for rene wal and extension of [y our] c ontrac t” is a “dire ct violation” of “both state a nd fede ral law , as we ll as the Boa rd’s own policy , in reg ards to discrimination.” This is a vag ue asser tion and y ou have not asser

ted any fac ts to support it. Nor have y ou cited any law that require s the Superintendent to direc t any principal as y ou descr ibe. Fur thermore , y our arg ument a c k n o w le d g e s th a

t th e Su p e r in te n d e n t h a s n o t ta

k e n a ny a c ti o n r e g a

r d in g y o u r c o n tr a c t.

So li s a p p e a le d th a

t d e c is io n to th e M CI SD B o a r d o f T r u s te e s
. I n h e r a p p e a l to th e B o a

r d , So li s s ta

te d
th a t s h e w a s “ r e q

u e s ti n g th a

t th e B o a r d o f T r u s te e s r e v ie w th e Su

p e r in te n d e n t’ s d e c is io n ‘ n o t to ta k e

a c ti o n ’ o n [h e r ] 2 0 1 3

- 2 0 1 4 Co n tr a c t/ E mp lo y me n t A g r e e me n t. ” So li s a ls o s ta te d : “ I d is a g r e e w it

h th e

e n ti r e r e s p o n s e [t o th e g r ie v a n c e ] p r o v id e d d

u e to th e f a c t th a t th e r e w a s n o b a s is f

o r ‘ n o a c ti o n ta

k e n
. ’ ”
Solis maintained that the Superintendent’s decision “not to take any action” constituted reta liation
for her having previously filed a g rieva nce ag ainst him. Among other relief , Solis ag ain soug ht to
have the Superintendent rec ommend her to the Boa rd of Trustee s for approva l of “[her] 2013-2014 Contract/Emplo y

m en t Agreement.” After a hear ing held on J une 12, 2013, the Boa rd upheld the Superintendent’s de cision. Soli s was not employ ed by MCI SD for the f

ollowing sc hool y ear
.

3Solis then filed a petition for revie w with the Commi ssioner of Educa tion. See Tex.

Educ. Code § 21.209 ( teac her who is ag g rieve d by decision of board of trustees on nonre newa l of
teac her’ s term contract may appea l to commissioner for review of decision of board of trustees in

acc ordanc e with provisions of sections 21.301 throug h 21.307). Solis alleg ed that beca use state law
and MCI SD’s own policies require d that assistant principals be employ ed u n d er a term contra ct, when she was re assig ned fr om the Ex ecutive D irec tor position to the Assi stant Principal position,
h er em p loy

ment contra ct beca

me a de fac to term contra ct subject to the Texas Term Contr ac t
N o n r e n e w a l A c t. S

e e T e x. E d

u c
. Co d e § § 2 1

. 2 0 1

- . 2 1 3 ( T CN A )

. So li s a ll e g e d th a

t, a s a c o n s e q

u e n c e , she was entitled to notice of the nonrene wal of her contra ct pursuant to TCNA section 21.206 and,
when MCI SD failed to provide such notice, she was entitle d t o employ ment with MCI SD for an additional y ear
. See id. § 21.206(a) (“N ot later than the 10th day befor e the last da

y of instruction
in a school y ear , the board of trustees shall notify in writing eac h teac her whose contra ct is about to expire whether the board proposes to rene w or not rene w the contra ct.”) , (b) (“The board’ s failure 2

to g ive the notice require d by Subsection (a) within the time specifie d constitutes an el ec t i o n to employ the teac her in the sa

me profe ssional capa city

for the f ollowing sc hool y ear .”).
T h e Co mm is s io n e r - a

p p o in te d AL J questio n e d , s u a s p o n te , w h e th e r th e Co mm is s io n e r had jurisdiction over Solis ’s petition for revie w. Specifica lly , the AL J stated in an order that “[t] he
Petition for Re view alleg ed jurisdiction under Te x as Education Code section 21.301. Howeve r, 3 [ ]

I t is undisput ed that MCI SD did not provide Soli s notice pursua nt to section 21.206(a)

. 2
Se c ti o n 2 1

. 3 0 1 p r o v id e s th a t “ [n ]o t la te r th a n th e 2 0 th d a

y a f te r th e d a te th e b o a r d o f tr u s te e s 3 or board subcommittee announce s its decision [t o terminate a teac her’ s contra ct or suspend a teac her without pa

y ] under Section 21.259 or the board advises the teac her of its decision not to rene w the teac her’ s contra ct under Section 21.208, the teac her may appea l the decision by filing a petition for revie w with the commissioner.” Te x . Educ. Code § 21.301( a).
4there is no alleg ation that Respond en t an nounced a decision under Texas Educa tion Code section

21.259 or advised Petitioner of its decision under Texas Educa tion Code section 21.208. This would
appea r to indicate that the Commi ssio n er d o es not have jurisdiction over this case under Texas
Educa tion Code section 21.301.” The ALJ ’s order set a hear ing to addre ss the Commi ssioner’s jurisdiction. After th e h ea ri n g, t he AL J conclude d that beca use MCI SD had not “announc ed a decision under Texas Educa tion Code section 21.259” o r “ a dvised [S olis] of its decision under Texas
Educa tion Code section 21.208,” section 2 1

. 301 did not confe r jurisdiction on the Commi ssioner

to consider Solis ’s petition for revie w. Essentially , the AL J conclude d that beca use MCI SD did not follow t h e s t at u t o ry proce dure for nonrene wing a term contra ct set forth in the TCNA, there was

no “dec ision” that the Commi ssioner could revie w pursuant to se ction 21.301. The AL J issued an order s t at i n g that the Commi ssioner did not have jurisdiction under section 21.301 but provided
Solis an “oppor

tunity to replea d.”
Solis filed an Amended Petiti on for Review in which she alleg ed t h at M C I S D h ad
“violated the school laws of the State of Texas” and that she was filing her petition pursuant to Texas
Educa tion Code section 7.057 as we ll a s section 21.301. See id. § 7.057(a) (per son may appea l in writing to commissioner if person is ag g rieve d by school laws of this state or actions or decisions
of any school district board of trustees that violate school laws of this state). Solis alleg ed that afte r her rea ssignment to the assistant principal j ob her contra ct nece ssarily beca me a term contra ct subject to the TCNA and that MCI SD’s nonrene wal of her term contra ct without providing her the
notice require d by the statute was an action or decision of the board that violated the TCNA. I n its
response , MCI SD asserte d that beca use Solis “did not hold a contrac t gove rned by Chapter 21,” it

5was not require d to p ro v i d e h er with notice of nonrene wal of her contrac t under Texas Educa tion

Code section 21.206. MCI SD also challeng ed the Commi ssioner’s jurisdiction over Solis ’s petition
under section 7.057 on the g round that she had “fa iled to exhaust administrative reme dies reg arding
the subject matter” of her claims that (1) she was employ ed under a chapte r 21 contra ct once she was

rea ssigne d to the assistant principal position and (2) as such she was entitled to notice of nonrene wal
under se ction 21.206.

The AL J issued a proposal for decision in which he conclude d that the Commi ssioner
lacke d jurisdiction over Solis ’s Amended Petition for Review b ec au se Solis failed to exhaust
administrative reme dies. Specifica lly , the AL J stated: “At the local level, Petitioner did not maintain
that she had a chapte r 21 term contra ct, much less did she contend that Respondent violated Texas
Educat i o n C o d e section 21.206 by not rene wing her contra ct. Be cause Petitioner failed to raise
these arg uments at the l o ca l level she failed to exhaust administrative reme dies.” As support for
his c onclusion that Solis was require d to first make these arg uments to the school district, the AL J
cited Texas Educa tion Code section 7.057(c) , which provides that, in an appea l to the Commi ssioner by a person ag g rieve d by an action or decision of a school district board of trustees that violates the
school laws of the State of Texas, the Commi ssioner “shall 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 re v i ew.” See id. § 7.057(c)

. Acc ording to the AL J , the lang uag e of section 7.057(c) require s that “[a]n issue broug ht
befor e the Commissioner must be found in the local r ecor d.”

T he Commi ssioner then signe d a Dec ision of the Commi ssioner that adopted the entirety of the AL J ’s proposal f

or dec ision, including the following Conclusions of L aw:

64. A case fi l ed under Texas Educa tion Code section 7.057(a) (2) is an appea l of a school district’s action or decision. I t is not a d e n o v o ap p ea l. Texas Educa tion Code section 7.057(c) provides that an appea l ag ainst a school district will be decide d based on a substan t i al evidenc e revie w of the local re co rd

. An issue broug ht befor e the Commi ssioner must be found in t h e local re cord.
5. As Petitioner failed to raise the issues at the local level that she had a chapte r 21 term contra ct and that Respondent violated Texas Educa tion Code section 21.206, the Commiss ioner lac ks jurisdiction over these claims. Tex. Educ. Code § 7.057(a) (2) a

nd (c)

. 6. Petitioner’s Texas Educa tion Code section 7.057 claims should be dismiss ed f o r a f a il u r e to e xh a u s t a d mi n is tr a ti v e r e me d ie s
. T e x. E d

u c
. Co d e § 7

. 0 5 7 ( a ) ( 2 ) and (c ).

The Commissioner dismis sed Solis’s Amended Petition for Review f or lac k of jurisdiction.
Solis then filed a suit for judi ci al re v i ew i n Travis County district court. See id. § 7.057(d) (per son ag g rieve d by decision of commissioner may appea l to district court in Travis County ). After a hear ing, the t ri al co u rt reve rsed the Commi ssion’s decision dismiss ing Solis ’s petition for review for l ack of jurisdiction and remanded the case to the Commi ssioner for further
proce eding s. MCI SD and the Commi ssioner then perf ecte d this a

ppeal. I n one issue, MCI SD and
the Commi ssioner eac h asser t that the Commi ssioner proper ly dismiss ed Solis ’s petition for revie w for f ailure to e x haust administrative re medies and, consequently , the t rial court err ed by reve rsing
the Commi ssioner’s decision and rema nding the case to the Commi ssioner for further proce eding s.

DISCUSSIO N
We be g in our analy sis by examining the basis for the Commi ssioner and MCI SD’s
contention that the Commi ssioner did not have j u risdiction over Solis ’s appea l and the law

7underly ing our considera tion of this i ssue. The Commi ssioner and MCI SD contend that the
Commi ssioner proper ly dismiss ed Solis ’s petition fo r revie w for lack of jurisdiction beca use she
failed to “exhaust her administrative reme dies.” “Exhaustion of reme dies” is an administrative law doctrine “desig ned primarily to control t he ti ming of judicial relief from adjudicative action of an
ag ency .” Cash Am. Int’l v. Bennett , 35 S.W .3d 12, 15 (Tex. 2000) (quoting Kenneth Culp Davis,
Administrati ve Law Doctrines of Exhaustion of Reme dies, Ripeness for Rev i ew, and Primary
Jurisdiction: 1 , 28 Tex. L

. Rev. 168, 171 (1949))

. “When the L eg islature vests exclusive jurisdiction in an ag ency , exhaustion of remedies i s require d.” Id. Ex haustion of re medies re quires a pa rty in

an administrative proce eding to a wait that proce eding ’s completion, there by secur ing a ll available
administrative relief befor e seeking judi ci al re v i ew of the ag ency ’s action. Id. School district emplo y ee s l i k e S olis, alleg ing that a decision by the school district board of trustees violates the
school laws of the State of Texas, “ g ener ally must exhaust administrative reme dies by bring ing an
appea l to the Commi ssioner.” See Canutil lo Indep. Sch. Dist. v. Farran , 409 S.W .3d 653, 657 (Tex. 2013); see also Tex. Educ. Code § 7.057(a) (2)( A) (providing for appea l to Commi ssioner of claims
that board decision or action violated school laws of state). Solis did exactly that by filing a petition
for revie w with the Commi ssioner challeng ing MCI SD’s action of nonrene wal of her contra ct befor e she filed a suit for judicial revie w. The Commi ssioner, howeve r, dismiss ed Solis ’s appea l for lack
of jurisdiction beca

use he conclude d that she had failed to “ex h au st administrative reme dies”
when she did not first make he r complaint about MCI SD’s action to MCI SD thr oug h the district’s
local g rieva

nce policy proce dures. The C o m m i s s i o n er takes the position that the “exhaustion of
administrative reme dies” doctrine applies equally at the administrative level; that is, just as a court

8does not have jurisdiction over a challeng e to the agency ’s action unless the complainant has

exhausted all applicable administrative reme dies, neither does the Commi ssioner have jurisdiction 4

over a challeng e to a school district’s action unless the employ ee has availed herse lf of all applicable
g rieva nce pr ocesse s.
T h e T e xa s E d

u c a ti o n Co de belies the Commi ssioner’s position. The Comm is s io n e r ’ s jurisdiction arises fr om Texas Education Code sec tion 7.057, whic h authorizes the Commiss ioner

to hear appea ls of “any person ag g rieve d by

. . . actions or d ec i s i o n s o f any board of trustees that

v i olate the school laws of this state.” See Tex. Educ. Code § 7.057(a) (2)( A); City of Hous t o n v. Rhule , 417 S.W .3d 440 , 4 42 (Tex. 2013) (whe n L eg islature cre ates ag ency , it may g rant ag ency

a u th o r it y to r e s o lv e d is p u te s th a

t a r is e w it h in a g e n c y ’ s r e g

u la to r y a r e n a )

. T h e s ta

tu te d o e s n o t r e q

u ir e that the ag g rieve d person have participa ted in a hear ing befor e the board, but on l y t h at t h e b oard
have made a “dec ision” or taken “ac tion.” Courts have interpre t ed s ec t ion 7.057 as a leg islative
g ra n t o f ex cl usive jurisdiction to the Commi ssioner that g ives the ag ency the sole authority to make an initial deter

mination befor e a party may seek relief in the courts. See Clint Indep. Sch. Dist. v. Marquez , 487 S.W .3d 538, 545-46 (Te x . 2016); Subaru of Am., Inc. v. David McD avid N issan,
Inc. , 84 S.W .3d 212, 221 (Tex. 2002) (“Whether an ag ency has ex clusive j urisdiction depends on statutory construction.”)

.

This assumes the L eg islature has vested the ag ency with “exclusive jurisdiction” over the 4 matter. See Cash Am. Int’l v. Benne t t , 3 5 S .W.3d 12, 15 (Tex. 2000) (“A n ag ency has exclusive ju r is d ic ti o n w h e n th e L e g is la tu r e g iv e s th e a g e n c y a lo n e th e a u th o r it y to ma k e th e in it ia l d e te r

mi n a ti o n in a dispute.”); cf. Subaru of Am., Inc. v. David McDa vid Nissan, Inc. , 84 S.W .3d 212, 220 (Tex. 2002) (explaining differ ence betwee n exclusive jurisdiction, which implicates trial court’s subjectmatter jurisdiction, a

nd primary jurisdiction, whic h opera tes to allocate pow er be tween c ourts and ag encie s when both have a uthority to make initial determinations in dispute).

9I n the prese nt case , howeve r, the Commi ssioner relies on the “exhaustion of

reme dies” doctrine to support his conclusion that the agency lacke d jurisdiction over Solis ’s petition
for r eview. T he Commissi oner e ssentially analog izes it s jurisdiction to t hat of a district court and

asser ts that, just as t he district court may not make an initial deter mination in a dispute about
violation of a school law, the Commi ssioner, too, lacks juris d i ct i o n to make a deter mination in a dispute about the violation of a school law unless the complaint has first been prese nted to the school
district throug h its local g rieva nce policy

. For this to be true, it must be the case that the L eg islature (o r s o m e other entity with authority to do so) has restric ted the Commi ssioner’s section 7

. 0 5 7 jurisdiction by vesting in the schoo l d istrict the sole authority —the “exclusive jurisdiction”—to
make the initial deter

mination in a dispute reg arding whether the district has violated a school law.
I n that case , the school district’s “exclusive jurisdiction” could be said to deprive the Commi ssioner

o f j u ri s d i c t i o n u

n le s s th e c o mp la in in g p a

r ty h a s “ e xh a

u s te d a d mi n is tr a ti v e r e me d ie s ” b y f

i r s t p r e s e n t i n g its complaint to t he school district.

To support this proposition, the C o m m i ssioner relies on his previous decision in
W il s o n v
. M a r s h a ll I n d e p e n d e n t S c h o o l D is tr ic t , D o c k e t N o
. 0 4 7

- R1 0

- 0 3 0 9 , 2 0 1 1 T X E d u c
. A g e n c y L E XIS 3 4 (Comm’r Educ. 2011), in which the Commi ssioner interpre ted the lang uag e of Texas
Educa tion Code section 7.057(c) to, e ssentially , vest the school district w ith e x clusive jurisdiction

to make the initial deter

mination when it is alleg ed that school district board of trustees has violated
Texas school laws. I n W ilson , the Commiss ioner re asoned: 5

I n W ilson , an elec ted member of the school district’s board of trustees al l ege d t h at t h e 5 board violated school laws by sanctioning her in a meeting that was held without g iving sufficie ntly s p e c if ic n o ti c e o f th e me e ti n g to th e p u b li c a s r e q u ir e d b y th e O p e n M e e ti n g s A c t. T h e b o a r d me mb e r 10Texas Educ. Code § 7.057

That exhaustion of administ rative r emedies is require d can be seen by examining 6 [ ] Texas Education Code sec tion 7.057. Under Te x as Education Code section 7.057, a ca se ag ainst a school board is to be hear d under the substantial evidence standard based on the local rec ord. Tex. Educ. Code § 7.057(c)

. This is considera bly differ ent from the standard in the old Texas Education Code section 11.13 which resulted in a de novo revie w of g rieva nces. Be cause the Commi ssioner previously revie wed 7 [ ] board g rieva

nces apply ing the de novo standard of revie w whether or not a particula r arg ument was made at the board level was not signific ant. Howeve r, under the s u b s ta n ti a l e v id e n c e s ta

n d a r d o n e mu s t ma

k e o b je c ti o n s b e f

o r e th e s c h o o l b o a

r d

. T h e substantial evidenc e standard applied by the Commi ssioner under Texas E ducation Code sec t ion 7.057(c) is very simil ar to the substantial evidenc e standard found at Texas Gover

nment Code section 2001.174. 19 Tex. Admin

. C o d e § 157.1073(h). The Commissioner does not revie w a c ase a g ainst a school district de novo.

also alleg ed that the board did not have the authority to sanction her. See W ilson v. Marshall Indep. S c h

. D is t. , D o c k e t N o
. 0 4 7

- R1 0

- 0 3 0 9 , 2 0 1 1 T X E d u c
. A g e n c y L E X I S 3 4 , a

t * 2 ( Co mm ’ r E d

u c
. 2 0 1 1 )

. The Commi ssioner uses the term “exhaustion of administrative reme dies” to mean availing 6 oneself of the school district’s g rieva nce policy prior to appea ling a decision of the school district’s board of trustees to t he Commissi oner. O ther de cisions of the Commissi oner f urther demonstrate that, in its view, “exhaustion of administrative reme dies” also require s raising a particula r complaint in a p r o c e e d in g

a t t h e s c h o o l d is tr

ic t le v e l b e f

o r e a r g u in g it to th e Co mm is s io n
. S e e , e
. g
. , G a ll

o n t v

. Houston Indep. Sch. Dist. , Docke t No. 019-R1-11-2017, 2017 WL 9249963 (Comm’r Educ. 2017) (dismissing for lack of jurisdiction claim of party that had availed itself of administrative reme dies b y re questing and obtaining hear ing befor e hear ing examiner on g round that party did not raise particula r issue befor e hear ing examiner and there fore failed to “exhaust administrative reme dies”). This sta tement is not completely acc urate

. The Texas Supre me Court inter prete d former 7 section 11.13(a) as requiring the Commi ssioner to conduct “a substantial evide n ce de novo administr ati ve hear ing.” See Nuece s Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agenc y , 917 S.W .2d 773, 776 (Tex. 1996) ; see also Central Educ. Agenc y v. Upshur Cty. Comm’rs Court , 731 S.W .2d 559, 561-62 (T ex
. 1987) (“substantial evidenc e de novo” revie w permits evidentiar y hear ing “solely for the purpose of deter mining whether there wa s fr au d , b ad faith or an abuse of discretion in the decision of the c ounty commissioners and whether their decision i s supported by substantial evidenc e”) ; id. at 561 & 562 n.2 (compa ring “true trial de novo,” which is not an “appe al” b u t i s a new proce eding to “substantial evidenc e de novo” revie w, which is an appea l that g i v es defe renc e to local board’ s finding s and decision). Despite the introduction of evidenc e at the revie w hear ing, the inquiry in a substantial-evidenc e-d e-novo revie w is purely a question of law, and the proce eding is truly an “appe al.” See Firemen’ s & Policeme n’s Civ. Serv. v. Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984).
11I s Dec ision W ithout Ex haustion Sufficient?

I t might be arg ued that all one needs is a board decision conce rning the subject matter detailed in Texas Educa tion Code section 7.057(a) (2) in order to file an appea l with the Commi ssioner. I f this wer e the case , few petitioner’s [si c] befor e the Commi ssioner would preva il. Many case s that the Commi s s i oner considers have t h eir g enesis in a board action. A school board might chang e the salary sch ed u l e, require school uniforms, or do any number of thing that a teac her, pare nt, or another person believes violates the school laws of this state. I f the teac her, pare nt, or other person was fac ed with an immediately appea lable decision the school district would most likely preva il beca

use Texas Educat ion Code section 7.057(c) require s the decision to be based on the local rec ord. A board decision that is not made throug h the g rieva nce proce ss is a decision wher e those opposed are not require d to be g iven an opportunit y to speak or prese nt evidenc e. I n fac t, it is likely that those opposed will only lear n of a questionable action afte r t he vote is take n. The only rec ord the Commi ssioner is likely to have in such a case is a rec ord that supports the board’ s decision. A g rieva

nce must be pursued prior t o appea ling to the Commi ssioner. This require ment actua lly protec ts the rig hts of those challenging a school district action. I t g ives them the rig ht to be hear d and the opportunity to cre ate a rec ord that prese rves the issues tha t they wish to appea l to the Comm issioner.

W il s o n , 2 0 1 5 T X E d

u c
. A g e n c y L E X I S 3 4 , a

t * 5

- 7 ; s e e a ls o H

a r r is v
. A ld in e I n d e p
. S c h

. D is t. , D o c k e t
No. 029-R10-03-2015, 2015 TX Educ. Ag ency L EXI S 37, at * 8 (Comm’r Educ. 2015) (dismissing
claim for lack of jurisdiction on g round that “[ a] n i s sue broug ht to the Commi ssioner in appea l
ag ainst a school district must be raised befor e the school district” and “[b] eca use Petitioner did not raise the issues of discrimination and the improper issuance of emer g ency permits in her g rieva nce, Petitioner has fa iled to exhaust admini strative re medies as to these claims”).

A s e xp la in e d b e lo w , th e Co mm is s io n e r ’ s in te r p r e ta ti o n o f s e c ti o n 7

. 0 5 7 in W

il s o n w a s incorre ct. We first consider whether subsection 7.057(c) constitutes a limit ation on the L eg islature’s
g rant of jur i s d i ct i o n to the Commi ssioner to revie w “dec isions” or “ac tions” of a school district
b o a r d o f tr u s te e s th a t a ll e g e d ly v io la

te th e s c h o o l la

w s o f th e St a

te o f T e xa s
. T h a

t s u b s e c ti o n provides

12that the Commi ssioner’s revie w of a school board’ s decision is under the substantial evidenc e

standard. See 19 Tex. Admin. Code § 157.1073(h). Acc ording to the Commi ssioner, this standard
of revie w imposes a re q u i re m ent that there be a hear ing at the school district level befor e the
Commi ssioner may revie w the resulting deci s i o n
. I n the Commi ssioner’s view, if no hear ing is 8
held at the s ch o o l d i s t ri ct level and no administrative rec ord is cre ated, there is nothing for the
Commi ssioner to subje ct to substantial evidenc e revie w. We disag ree
. Although section 7.057 provides for a substantial evidenc e stand ar d o f revie w, nothing in the lang uag e of the statute require s that there ha

ve bee n a hea

ring and cor

responding “re cord” as a pr ere quisite for re view by
the Comm issioner. Such an interpre tation would lead to the conclusion that the school district
could simply ref

use to hold a hear i n g an d t hen issue a decision that would be immune from the
Commi ssioner’s revie w. That result could hardly be contemplated by the statutory revie w proce ss. See Fleming Foods of Tex., Inc. v. Rylander , 6 S.W .3d 278, 284 (Tex. 1999) (explaining that court

s h o u ld n o t a d o p t s ta

tu to r y c o n s tr u c ti o n th a t w o u ld r e n d e r s ta

tu te me a n in g le s s o r le a d to a

b s u r d r e s u lt s )

. We also do not ag ree that section 7.057(c) ’s ref ere nce to the “re cord develope d at the
district level” and “substantial evidenc e revie w” means that section 7.057 appea ls are limit ed to revie w of school district board of trustees’ decisions that are made in the context o f a gri ev an ce
proce eding

. Rather, it means that the Commi ssioner m u s t b as e his decision on the rec ord as it
exis ted at the district level and the events evidenc ed by that re co rd

. W h en the Commi ssioner
revie ws a de cision of a sc hool district board of trustee s under the substantial e vidence rule,

The Commi ssioner’s arg ument seems to sug g est that a “dec ision” must be one made in the 8 context of resolving a dispute or complaint, presumably afte r a hear ing. There is nothing in the text of the statute that indica tes that the terms “ decision” or “ac tion” are so limi ted. 13(h) the commissioner may not substitut e his or her judgme nt for the judgme nt of the

school district on the weight of the evidence questions committed to the discre tion of the boa rd of trustee s but: (1) may aff irm the dec ision of the board of trustees in whole or

in part; and (2) s h al l re verse or rema

nd the case for further hear ings if substantial rig hts of the petitioner have been pr ejudiced be cause the dec ision of the board of trustees is: (A) in violation of a

constitutional or statutory provision; (B ) in excess of the statutory authority of the boa

rd of trustee s; (C) made throug h unlawful proc edure ; (D) a ffe cted by

other e rror

of law; (E) not rea sonably supported by substantial evidenc e considering the reliable and proba tive evidenc e in the re cord a s a whole; or (F ) arbitra

ry or capr icious or char acte rized by an abuse of discretion or cle arly unwar rante d exercise of

discretion.

19 Tex. Admin. Code § 157.1073(h) (Tex. Educ. Ag ency , Hea ring s Br oug ht Under Tex. Educ. Code § 7

. 0 57). Thus, the substantial evidenc e standard of revie w require s that the Commi ssioner “not
substitut e its judgme nt for the judgme nt of t h e s ch o o l d i strict on the weig ht of the evidenc e” but
allows the C ommissi oner to address other aspec ts of the dec ision or action, including whether the
d e c is io n v io la

te d a c o n s ti tu

ti o n a l o r s ta

tu to r y p r o v is io n , w h e th e r th e a g e n c y a c te d o u ts id e it s s ta tu to r y authority in ma

k in g th e d e c is io n , a

n d whether the ag ency violated proce dural require ments in making
the dec ision. Id.

Her e, the issue befor e the Commi ssioner was the leg al question of whether , based on the undi sputed fac ts re gar ding Soli s’s initial employ ment and transfer, she was employ ed under a

14term contra ct subject to the TCNA. Sol is asserts that the school district boar d of trustee s violated

Texas school laws when it fa iled to g ive her the notice to which she was e ntitled under cha pter 21
befor e d ec i ding to nonrene w her contra ct, see Tex. Educ. Code § 21.206(a) , and subsequently
ref used t o acknow ledg e that the failure t o g ive not ice operate d as an elec tion to employ her in the

same profe ssional capa city for the fol l o wi n g s chool y ear , see id. § 21.206(c)

. Solis ’s claim does

not involve resolution of disputed fac t issues and, i f corr ect, is a claim that would constitute an authorized g round for reve rsal or rema nd of the decision. See 19 Tex. Admin. Code § 157.1073(d) (commissioner shall reve rse or rema nd decision of board of trustees that is in violation of statutory provision). The same would be true o f claims that the school district board of trustees acte d in violation of a constitutional provision or in ex cess of its statutory

authority

. We are also unpersua ded by the C o mmissi oner’ s rea soning in W ilson that making
the fil ing of a complaint at t he school district lev el a jurisdi ctional prerequisite t o filing a petition
for revie w with the Commi ssioner “ac tually protec ts the rig hts of those challeng ing a school district

ac t i o n ” b ec au se “it g ives them the rig ht to be hear d and the opportunity to cre ate a rec ord that
prese rves the issues that they wish to appea l to the Commi ssioner.” The rig ht to a hear ing is cre ated
b y th e g o v e r

n in g s ta tu te s a n d g r ie v a n c e p o li c ie s ; it is n o t d e r iv a ti v e o f th e s c o p e o f th e Co mm is s io n e r ’ s jurisdiction. I f a party with a right t o a hearing does not avail it self of t h at ri gh t, it very well m ay lose at the Commi ssioner level if the merits of the complaint turn on evidentiar y issues that are not develope d or prese rve d fo r t he Commi ssioner’s revie w under the substantial evidenc e standard.
That does not, howeve r, m ake a di strict-leve l hear ing or complaint a jurisdi ctional prere q u i s i t e to filing a petition for revie w with the Commi ssioner. Se ct ion 7.057 of the Texas Educa tion Code

15provides for an appea l to the Commi ssioner when a person is ag g rieve d by an action or decision of

a board of trustees that violates Texas school law. The Commi ssioner may not, throug h his rules or policies, narr ow the availability of that appea l. Requiring that, as a jurisdict i o n al p re requisit e to such an appea l, an ag g rieve d party must reque st and attend a hear ing befor e the board would impermissibly

narr ow the ava ilability

of the statutory

rig ht to appeal to the Commissioner.
T h e C ommissi oner’ s arg ument confla tes conce pts of waiver with conce pts o f jurisdiction. I t ma

y be the case that a par

ty who fails to r aise a particula r complaint with a school 9
district in acc ordanc e with a n applicable local g rieva

nce policy will not have a rec ord to prese nt to the Commi ssioner that can support the complaint. Whil e the party may be found to have waived that complaint or failed to prese rve it for a s ubsequent appeal to the C ommissi oner, it does not follow
that the Commi ssioner lacks jurisdiction over the appea l itself. I n fac t, in his brief in this appea l, the
Commi ssioner cites Texas Rule of Appellate Procedur e 33.1, which addre sses prese rvation of err or,

as support for the proposition that Solis was require d to “first prese nt her claim to the school district ( th e in it ia l d e c is io n - ma

k e r ) b e f o r e r a is in g it o n a

p p e a l to th e Co mm is s io n e r
. ” S e e T e x. R. A

p p
. P. 3 3

. 1 (pre serva tion of appellate complaints). The Commi ssioner’s brief also states that Solis “fa iled to
p r e s e r v e h e r c la im a

n d th e Co mm is s io n e r p r o p e r ly d is mi s s e d it

. ” We w il l, th e r e f o r e , c o n s id e r w h e th e r

The Commi ssioner’s use of the term “jurisdiction” may be an example of what the Texas 9 Su p r e me Co u

r t h a s d e s c r ib e d a s “ in

te mp e r a te

. ” S e e I n r e U n it e d S e r v s
. A u to

. A s s ’n , 3 0 7 S. W. 3 d 2 9 9 , 306 (Tex. 2010) (“B ut we, like the U.S. Supreme Court, have rec og nized th at our sometimes intempera te use of the term ‘j u ri s dictional’ has cause d problems. Charac terizing a statutory require ment as jurisdictional means that the trial cou rt does not have—a nd never had—powe r to decide the case .” (citations and footnotes omitted)). I t may be that the Commi ssioner means instead that a complainant who has not complied with the school district’s g rieva nce policy has not prese rved tha t complaint for his revie w. 16Solis was re quired to see k relief from the board of trustees in order to prese rve for C ommissi oner

revie w her claim that she was ag g rieve d by MCI SD’s decision to discontinue her em ploy ment despite it having failed to g ive her notice of proposed nonrene wal of a term contra ct g overne d by the
TCNA. See Tex. Educ. Code § 21.206(c) (fa i l u re t o g ive not ice within time specifie d constitutes
elec tion to employ

teac her in same profe ssional capa city for f ollowing sc hool y ear ).
The Commi ssioner’s position—whether couche d in terms of “jurisdiction” o r waiver —is that Solis failed to proper ly prese rve her arg ument about the term status of her contra ct.
We disag ree
. The Commi ssioner arg ues that, pursuant to the L eg islature’s g rant of authority to the
board of trustees to make decisions rela ting to terminating the emplo y m en t o f district employ ees employ ed under a contract to which Tex as Education Code chapte r 21 applies, MC I SD adopted a
g rieva nce policy that “func tions in the statutory scheme like a n o t i ce- and-c ure clause that is a
p r e r e q u is it e to s u it

. ” S

e e id

. § 1 1

. 1 5 1 1 ( b ) ( 1 4 )

. A c c o r d in g to th e Co mm is s io n e r , th is g r ie v a n c e p o li c y , ref err ed to as Personnel-Ma

nag ement Relations Employ e e Co mp la in ts /Gr ie v a n c e s DGB A(L OCAL ) (“D GB A (L ocal) ”), is part of Solis ’s employ ment contra ct. The Commi ssioner asser ts that DGB A (Loc al ) re q uired that Solis identify the leg al basis of her complaint at the local level before
prese nting it to the Commi ssioner. DGB A (L ocal) provides that an employ ee’ s complaint must be
submitt ed to the school district on the g rieva nce form approve d by the District an d m u s t i nclude,
among other thing s:

I dentifica tion of the specific policy or policies, constitutional or statutory provisions, or administrative reg ulations alleg ed to be violated or misapplied, or the specific ty pe of discrimination alleg ed to have been committed and fac ts to support the alleg ation.

17DGB A (L ocal) provides that the term “complaint” or “g rieva nce” means an employ ee’ s s p ecific
written statement expressing dissatisfaction with his or her wag es, hours of work, or c onditions of
work. The policy provides that these terms also include alleg ations of unlawful discriminati o n , hara ssment, or reta liation based on g ender , ag e, relig ion, national orig in, disability , “whistleblower ” complaints, or the employ ee’ s exercise of rig hts protec ted by the United States Constit ution or other

state or fede ral law. The policy states that employ ee “complaints,” as so define d, “shall be filed in

a c c o r d a n c e w it h th is p o li c y
. ” T h

u s , th e Co mm is s io n e r is c o r r e c t th a t a n e mp lo y e e f

il in g a “ c o mp la in

t”

must comply with the require ment that the complaint identify the policy , statutory provisi o n s, or administrative reg ulations alleg ed to have been violated. Howeve r, DGB A (L ocal ) specific ally
excludes from its purview cer tain cate g ories of employ ee complaints that are to be submitt ed in

acc ordanc e with other district policies, inc lu d in g “ [c ]o mp la ints conce rning the proposed nonrene wal
of a term contra ct issued under Chapter 21 of the Educa tion Code, which shall be submitt ed in
accorda nce with DFB B.” Thus, while Solis ’s complaint that her rea ssignment from an executiv e d ir e c to r p o s it io n to a

n a s s is ta n t p r in c ip a l p o s it io n w a s r e ta li a ti o n b a s e d w a s s u

b je c t to th e r e q

u ir e me n ts
in g rieva nce policy DGB A (L ocal) , her complaint reg arding MCI SD’s nonrene wal of what s he alleg ed to be a

term contra ct was not. The TCNA, which g overns nonrene wal of term contra cts, provides that a board of

trustees contemplating nonrene wal of a term contra ct “shall notify in writing eac h teac her whose 1 0 [ ]

contra ct is about to expire whether the board proposes to rene w or not rene w the contra ct.” See Tex.

T h e T CN A d e f

in e s “ te a c h e r ” to in c lu d e p ri n c i p a l s
. S e e T e x. E d u c
. Co d e § 2 1

. 2 0 1

. M CI SD ’ s 1 0 policy DCB (L ocal) provides that “[t] erm contra cts g overne d by Chapter 21 of the Educa tion Code (educ ator ter

m contrac ts) shall be provided to: . . . assistant principa ls.” 18Educ. C o d e § 21.206. A t eac her who rec eives such notice has the opt ion of requesting a hearing ,

which the board must provide. Id. § 21.207(a)

. I f the teac her does not reque st a hear ing, the board

must take action to rene w or nonrene w the contra ct and notify the teac her of its action not later than
the 30th da

y afte r the date notice of propose d nonrene wal wa s sent to the teac her. Id. § 21.208(a)

. I f the teac her reque sts a hear ing, the board must hold the hear ing, take action to rene w or nonrene w the contra ct, and notify the teac her of its action no later than the 15th day afte r the date on which the
hear ing is conclude d. Id. § 21.208(b). A t eac her desiring to appea l the action must file a petition
for revie w with the Commi ssioner not later than the 20th day afte r the date the board advises the

teac her of its decision not to rene w the teac her’ s contra ct. Id. § 21.301. I f , howeve r, the board fails to g ive the notice re quired by section 21.206(a ) within the time specifie d, the statute provides that
this “constitutes an elec tion to employ the teac her in the same profe ssional capa city for the following school y ear .” Id. § 21.206(c)

.

Solis alleg ed in her petition for revie w that she was employ ed under a contra ct subject
to the TCNA and was not g iven notice of proposed nonrene wal of her c ontrac t in accor dance with
section 21.206(a)

. I n that case , there wer e no administrative steps left for Solis to take beca use, as

a matter of law, the failure to g ive notice constituted an elec tion to continue her employ ment for the following school y ear
. The Com missioner had jurisd i ct i on to consider Soli s’s claim t hat M CI SD
violated state school law by not acknow ledg ing her continued employ ment, and Solis did not waive
that claim by not raising it at the local level. The Commi ssioner had befor e him a sufficie nt rec ord
from MCI SD from which he could deter min e (1) whether , afte r transfe r to the assistant principal position, Solis was e mploy ed under a term contra ct gover ned by the TC NA and, if so (2) whether

19MCI SD’s action or inaction constituted an elec tion to employ her for the following school y ear such

that its failure to do so was a violation of the school laws of the State of Texas. Having conclude d that t h e C ommissi oner err ed by dismiss ing Solis ’s petition for
revie w on the g round that he lacke d j u ri s d iction, we overr ule MCI SD’s and the Commi ssioner’s sole appe llate issues.

CONCLUSION

For the rea sons stated in this opinion, we conclude that the tr i al co u rt proper ly

reve rsed the C o m m i s s i o n er’s decision dismiss ing Solis ’s petition for revie w. We aff irm the trial court’s judg ment rema

nding the case to the Commi ssioner.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med Filed: Aug ust 22, 2018

20