TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00377-CV

Angela Davis, as President of NEA-Dallas (a Local Affiliate of Texas State Teachers 

Association), on behalf of All Affected Members and Named Individuals, Appellant

v.

Mike Morath, Commissioner of Education of The State of Texas, and

Dallas Independent School District, A Public Body Corporate, Appellees

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-002145, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

In this appeal, certain teachers (the Teachers) employed with the Dallas 

Independent School District (DISD) filed a grievance with DISD’s Board of Trustees (the Board) 

regarding: (1) DISD’s Teacher Excellence Initiative (TEI) appraisal system for the school year 

2014–2015; (2) the TEI Scorecards (the Scorecards)—which set forth a teacher’s 2014–2015 

evaluation rating and 2015–2016 effectiveness level—that the Teachers received in September 

2015; and (3) an alleged decrease in the Teachers’ salary. The Board dismissed and denied the 

grievance as untimely. The Teachers then appealed to the Commissioner. Agreeing with the 

Board, the Commissioner issued findings of fact and conclusions of law determining that the
2

grievance was untimely; yet, rather than affirm the Board’s decision, he dismissed the appeal for 

lack of jurisdiction. The district court affirmed.

The Court concludes that the Commissioner had jurisdiction over the Teachers’

appeal from the Board’s decision, and I agree. See Tex. Educ. Code § 7.057. The 

Commissioner’s dismissal for lack of jurisdiction is therefore “affected by other error of law”

and his decision must be reversed if the Teachers’ substantial rights have been prejudiced. See 

Tex. Gov’t Code § 2001.174(2)(D). In my opinion, given the unique procedural posture of this 

case, the Commissioner’s supporting findings and conclusions may serve as grounds for 

affirming the Commissioner’s decision if they satisfy the substantial evidence rule. If so, the 

Teachers’ statutory right to have those issues determined by the Commissioner was not 

prejudiced by the Commissioner’s ultimate disposition of dismiss rather than affirm. See id.

§ 2001.174; Tex. Educ. Code § 7.057. I therefore concur with this Court’s decision affirming the 

Commissioner’s dismissal of the Teachers’ complaints regarding the TEI and their decrease in 

salary for the reasons stated in the Commissioner’s supporting findings and conclusions. I 

respectfully dissent, however, from this Court reversing the Commissioner’s dismissal of the 

Teachers’ complaints regarding the Scorecards and remanding that issue for further proceedings. 

Because the Commissioner’s supporting findings and conclusions on this issue satisfy the 

substantial evidence rule, I would affirm. 

DISCUSSION

The Court and I agree that pursuant to Texas Commissioner of Education v. Solis,

section 7.057(a) of the Texas Education Code provides the Commissioner with jurisdiction over 

the Teachers’ appeal from the Board’s decision on their grievance. 562 S.W.3d 591, 602 (Tex. 
3

App.—Austin 2018, pet. filed) (“Section 7.057 of the Texas Education Code provides for an 

appeal to the Commissioner when a person is aggrieved by an action or decision of a board of 

trustees that violates Texas school law. The Commissioner may not, through his rules or

policies, narrow the availability of that appeal.”). Thus, the Commissioner’s decision to dismiss 

the appeal for lack of jurisdiction was “affected by other error of law” and this Court must 

reverse and remand “if substantial rights of the appellant have been prejudiced” by this error of 

law. See Tex. Gov’t Code § 2001.174(2)(D).1

In most scenarios, that would be the end of the inquiry—this Court would reverse 

and remand for further proceedings for the Commissioner to consider the merits of the grievance.

Otherwise, the substantial rights of the grievant—namely, to have the Commissioner consider 

and decide the merits of the appeal from the Board’s decision, see Tex. Educ. Code § 7.057—

would be prejudiced. This case, however, presents the unique circumstances of the 

Commissioner making express findings, conclusions, and decisions that establish that the 

Teachers’ grievance was untimely—which the Commissioner considered necessary to resolve 

 

1 Review of the Commissioner’s decision under section 7.057 “is governed by the same

analysis as in the district court and before the Commissioner—the familiar ‘substantial-evidence’ 

rule that is codified in Section 2001.174 of the Administrative Procedure Act.” Jenkins

v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 148 (Tex. App.—Austin 2017, no pet.); see Morath 

v. Cano, No. 03-15-00799-CV, 2017 WL 3585252, at *3 & n.10 (Tex. App.—Austin 

Aug. 17, 2017, no pet.) (mem. op.) (collecting cases). The Commissioner’s decision should 

be reversed only if the party challenging the decision demonstrates that the party’s 

substantial rights have been prejudiced. See Mitchell v. Texas Med. Bd., No. 03-13-00502-CV, 

2015 WL 1778289, at *3 (Tex. App.—Austin Apr. 15, 2015, pet. denied) (mem. op.) (“To

warrant reversal or remand, therefore, the reviewing court must conclude that (1) substantial 

rights of the appealing party have been affected because of (2) one or more of the reasons listed 

in section 2001.174(2)(A)–(F).”); Citizens Against Landfill Location v. Texas Comm’n on Envtl. 

Quality, 169 S.W.3d 258, 264 (Tex. App.—Austin 2005, pet. denied) (“[T]he agency’s decision 

should be reversed only if the party challenging the decision demonstrates that the absence of 

substantial evidence has prejudiced the party’s substantial rights.”).
4

the jurisdictional issue2—and that the Teachers waived any individual complaints by not 

specifically excepting to the proposal for decision (PFD) prepared by the administrative law 

judge (ALJ). These findings, conclusions, and decisions—if supported by substantial 

evidence—establish that the Commissioner should have affirmed the Board’s decision to dismiss 

the grievance pursuant to DISD’s grievance policy. See Tex. Educ. Code § 11.1511(b)(13) 

(providing that board of trustees of independent school districts shall by rule adopt process for 

hearing complaints); 19 Tex. Admin. Code § 157.1073(h) (Tex. Educ. Agency, Hearings 

Brought Under Tex. Educ. Code § 7.057) (providing that Commissioner may affirm or reverse 

board’s decision pursuant to substantial evidence review); cf. Poole v. Karnack Indep. Sch. Dist.,

344 S.W.3d 440, 442 (Tex. App.—Austin 2011, no pet.) (noting Commissioner concluded 

district’s decision to dismiss grievance on basis of untimely filing was supported by substantial 

evidence and affirmed district’s decision). And the Commissioner implies in his briefing that if 

his decision is reversed and remanded, he would “reform the relief from dismissal to affirmance”

without changing the findings and conclusions.3

Although the Commissioner’s findings, conclusions, and decisions were made in 

the context of an incorrect jurisdictional determination, the Teachers will not be able to meet 

 

2

 The substantial evidence standard would govern review of jurisdictional fact findings if 

the Commissioner had correctly determined that he lacked jurisdiction. See Houston Indep. Sch. 

Dist. v. Simpson, No. 03-12-00145-CV, 2013 WL 5878919, at *3 (Tex. App.—Austin Nov. 1, 2013, 

no pet.) (mem. op.) (“Where, as here, the Commissioner makes fact findings necessary to resolve 

the jurisdictional issue based on an evidentiary record developed through an adjudicative 

process, we review those fact findings under the substantial-evidence standard.”).

3 The Commissioner states, “Because here the Commissioner specifically concluded that 

the teachers’ grievance was untimely, . . . (COLs #3), there is no reason for this Court to remand

to the Commissioner to reform the relief from dismissal to affirmance. In this case, dismissing 

the teachers’ claim instead of denying it would be harmless error, for the Commissioner’s 

conclusion that the teachers’ grievance was untimely was reasonable and therefore the teachers 

have not been prejudiced for they are not entitled to relief.”
5

their burden to demonstrate that their substantial rights have been prejudiced if these

“administrative findings, inferences, conclusions, or decisions” (1) establish that the 

Commissioner should have affirmed the Board’s decision to dismiss the grievance and (2) are 

sustained on review under the substantial evidence rule.4 See Tex. Gov’t Code § 2001.174(2); 

cf. Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.)

(“Substantial-evidence analysis entails two component inquiries: (1) whether the agency made 

 

4 For this reason, it is my opinion that the Court exceeds the scope of its review in 

resolving issues that were not addressed in the Commissioner’s decision. For example, the Court 

considers whether section 21.352(a) of the Texas Education Code is directory or mandatory in 

requiring a yearly appraisal. See ante at ___ (citing Tex. Educ. Code § 21.352(a)). The Court 

justifies addressing this issue by stating that “the applicable standard of review requires us to 

consider whether . . . to dismiss the appeal on some other reasonable basis in this record” or 

“[u]nder substantial evidence review of fact-based determinations, . . . ‘whether the record 

demonstrates some reasonable basis for the agency’s action.’” Ante at ___ (quoting AEP Tex. 

Cent. Co. v. Public Util. Comm’n, 345 S.W.3d 60, 68 (Tex. 2011)). But whether section 21.352

is directory or mandatory is neither a “reasonable basis” for the Commissioner’s action of

dismissing the appeal for lack of jurisdiction nor a “fact-based determination[].” And by 

expressly dismissing the Teachers’ appeal, the Commissioner made the determination that he did 

not have jurisdiction to consider the merit issue of whether section 21.352(a) is directory or

mandatory. For the reasons described more fully in the following sections, it is my opinion that 

the Court need not reach this issue because the Commissioner’s decision to dismiss can be 

affirmed given (1) his express determination, which included findings and conclusions, in his 

decision that the grievance was untimely, (2) those findings, conclusions, and decisions are

sustained on review under the substantial evidence rule, and (3) the Teachers’ substantial rights 

were not prejudiced by the dismissal although the dismissal was affected by other error of law

because the Commissioner expressly considered and determined the issue of timeliness in his

decision. But even if I agreed with the Court that the grievance regarding section 21.352(a) was 

timely raised, I would not address whether that statute is directory or mandatory. Section 

7.057(a) of the Texas Education Code provides the Teachers with a right to appeal to the 

Commissioner. Tex. Educ. Code § 7.057(a). If the Teachers’ grievance as to section 21.352(a)

was timely, the Teachers would be entitled to have the Commissioner consider the merit issue of 

whether it is directory or mandatory. By dismissing for lack of jurisdiction—a determination 

affected by other error of law—without expressly considering this issue in his decision, the 

Commissioner prejudiced the Teachers’ substantial rights under section 7.057(a) to have that 

issue considered by the Commissioner. Accordingly, pursuant to section 2001.174(2)(D), if the 

Court concludes that the Teachers’ grievance was timely, this Court must reverse and remand on 

this issue without determining the merit issue, which the Court fails to do. See Tex. Gov’t Code 

§ 2001.174(2)(D).
6

findings of underlying facts that logically support the ultimate facts and legal conclusions 

establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the 

findings of underlying fact are reasonably supported by evidence.”). This approach promotes 

judicial economy by allowing a reviewing court to affirm rather than to reverse and remand to

have the Commissioner issue the exact same decision—merely reforming the disposition from 

dismissal to affirm—for consideration on appeal. Moreover, this approach is consistent with our 

recent decision in Solis. 562 S.W.3d at 602–04. In Solis, this Court concluded that the 

Commissioner incorrectly determined that it did not have jurisdiction over Solis’s appeal from 

the decision by the board of trustees, but this Court did not immediately reverse and remand

upon making this conclusion. Id. at 602. Instead, this Court first noted that “[w]hile the party

may be found to have waived that complaint or failed to preserve it for a subsequent appeal to 

the Commissioner, it does not follow that the Commissioner lacks jurisdiction over the appeal 

itself.” Id. Then, this Court proceeded to “consider whether Solis was required to seek relief 

from the board of trustees in order to preserve for Commissioner review her claim.” Id. 

Although this Court ultimately concluded that “Solis did not waive that claim by not raising it at 

the local level,” id. at 604, there would be no need for this Court to consider the issue if Solis 

was entitled to a reversal of the Commissioner’s decision that he did not have jurisdiction over 

Solis’s appeal and remand for further proceedings without meeting her burden to demonstrate 

that her substantial rights have been prejudiced. The fact that this Court considered the merits of 

whether Solis preserved error before reversing and remanding implies that this Court could have 

affirmed the Commissioner’s decision to dismiss for lack of jurisdiction had Solis not preserved 

error for Commissioner review, even though the jurisdictional decision was “affected by other 

error of law.” See Tex. Gov’t Code § 2001.174(2)(D).
7

Following Solis and pursuant to section 2001.174, I proceed with a review of the 

Commissioner’s “administrative findings, inferences, conclusions, or decisions” under the 

substantial evidence rule. See id. § 2001.174. In conducting this review, I presume that the 

agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, 

and the burden is on the appellant to demonstrate otherwise. See Froemming v. Texas State Bd. 

of Dental Exam’rs, 380 S.W.3d 787, 791 (Tex. App.—Austin 2012, no pet.); Pierce v. Texas 

Racing Comm’n, 212 S.W.3d 745, 751 (Tex. App.—Austin 2006, pet. denied). “Essentially, this 

is a rational-basis test to determine, as a matter of law, whether an agency’s order finds 

reasonable support in the record.” Jenkins, 537 S.W.3d at 149 (citing Texas Health Facilities 

Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452–52 (Tex. 1984)); see id. at 149–50 

(describing “well-established standard of review”).

Untimeliness of Grievance

I agree with the Court that substantial evidence supports the Commissioner’s 

decision—which included findings and conclusions—that “the Teachers’ facial grievance as to 

the components of the TEI system itself” was untimely. Ante at ___. And the Teachers have not

demonstrated how their substantial rights were prejudiced by the Commissioner dismissing this 

portion of their grievance instead of affirming the Board’s dismissal and denial.

The Court, however, also concludes that there was no reasonable basis to 

determine that the Teachers’ grievance as to not receiving an appraisal during the school year

was untimely. DISD’s grievance policy requires, “A grievance form must be filed no later than 

ten days from the date the employee first knew or, with reasonable diligence, should have known 

of the decision or action giving rise to the grievance or complaint.” The Court claims that it was 
8

not reasonable to conclude that the “omission of an appraisal by the end of the school year 

constitutes a ‘decision or action’ triggering the need for a teacher to file a grievance under the

plain language” of DISD’s grievance policy. Ante at ___. In my opinion, this complaint 

concerns a “decision or action” and substantial evidence in the record supports the 

Commissioner’s decision that the Teachers’ grievance was untimely as to this complaint.

To consider whether the grievance complained of is a “decision or action,” I look 

to the Teachers’ complaint. The complaint in their petition to the Commissioner, which is 

virtually identical to the complaint in the grievance form before DISD’s Board, states:

The TEI system does not give the teacher a final evaluation during the appraisal

school year, but rather gives the teacher this information only after the school year 

has ended by way of the Scorecards received on or around September 18, 2015. 

Those Scorecards, received in the 2015–2016 school year purported to evaluate 

the teachers’ performance for the 2015–2016 school year. This process deprives 

the teacher of a conference that is diagnostic and prescriptive with regard to any 

remediation identified by the evaluator that may be needed in overall performance 

by category during the current school year. Further, this process violates the 

Texas Education Code § 21.352 which requires that a “district option” appraisal 

system must conduct the appraisal “at least once during each school year.”

(Emphases added.) Thus, the Teachers complain about what “[t]he TEI system . . . gives” and 

about “this process”—i.e., complaints about the components of the system or process adopted by 

DISD or, in other words, a “decision or action” by DISD.

To determine whether the Teachers’ grievance as to this component of the TEI 

system or process was timely, I consider when the Teachers “first knew or, with reasonable 

diligence, should have known” of this component giving rise to their complaint.5 The 

 

5

 I assume for purposes of this analysis that the Teachers are correct that the summative 

annual appraisal conducted during the 2014–15 school year is not the “appraisal” contemplated

by section 21.352(a) of the Texas Education Code. Because the Commissioner’s decision can be
9

Commissioner entered a finding of fact that the “[Teachers’] challenges to the components of the 

[TEI] program were not filed within ten business days of [the Teachers] learning of the 

components or of when [Teachers] with reasonable diligence should have known of the 

components.” In the decision, the Commissioner noted:

The TEI is based on [DISD’s] policies. There are three policies and several 

official interpretations of policies that are relevant to [the Teachers’] claims 

concerning [DISD’s] appraisal process. DNA (LEGAL), DNA(LOCAL[)], and 

DNA(REGULATION) set out the structure of [DISD’s] appraisal program. Each 

of these policies was adopted months before the grievances were filed. [DISD]’s 

teachers received a full day’s training in the TEI evaluation process in August 

2014. A number of district publications further explain the process. The most 

significant publications are the TEI Guidebook, updated March 18, 2015, the TEI 

Rulebook dated January 6, 2015, the Teacher Performance Rubric, revised 

December 19, 2014, the SLO Rubric, revised June 26, 2014, and the TEI Calendar 

for the 2014–2015 school year. In addition, [DISD] provided much information 

about the TEI program on[]line. [The Teachers’] challenges to the components of 

the TEI program were not filed within ten business days of [the Teachers]

learning of the components or of when [the Teachers] with reasonable diligence 

should have known of the components.

The TEI Guidebook provides a draft “Category A Teacher Evaluation Scorecard 2014–15” that 

demonstrated that the Scorecard would show the points earned for the categories of teacher 

performance, student perceptions, and student achievement; the total points earned; and an 

evaluation rating and effectiveness level. The DNA(REGULATION) provides that DISD “will 

use the evaluation ratings to determine teacher effectiveness levels” and that “[a]t the beginning 

of the 2015–2016 school year, each teacher will receive one of the following effectiveness levels 

based on a teacher’s evaluation rating from the 2014–15 school year . . . .” (Emphasis added.) 

The TEI Guidebook states in its “Summary of Evaluation Process” that in “September–October 

 

affirmed without reaching the merits of this question, I would not reach or decide this issue and 

respectfully dissent from the Court’s determination of this issue.
10

2015” the “Teachers receive final evaluation rating and effectiveness level.” The TEI Evaluation 

Calendar for the 2014–2015 school year also provides this exact same information.

In my opinion, the Court need not determine the exact date that the Teachers “first 

knew or, with reasonable diligence, should have known” that they would receive their final 

evaluation rating as shown on the Scorecards in the Fall of the 2015–2016 school year and not in 

the 2014–2015 school year. Substantial evidence exists in the record that no later than the end of 

the 2014–2015 school year—and most likely much earlier—the Teachers “first knew or, with 

reasonable diligence, should have known” that “[t]he TEI system does not give the teacher a 

final evaluation during the appraisal school year, but rather gives the teacher this information 

only after the school year has ended.” And it is undisputed that the Teachers did not file a timely 

grievance from the end of the 2014–2015 school year.6 Because (1) substantial evidence 

supports the Commissioner’s finding of fact that the Teachers’ grievance was untimely and 

(2) the Teachers have not demonstrated how their substantial rights were prejudiced because the

Commissioner dismissed the cause rather than affirmed the Board’s decision as to this portion of 

 

6

 The Teachers’ grievance is premised on the fact that their Scorecards were received 

after the school year had ended. The Teachers also raise a ripeness argument, claiming that

their grievance was not ripe until the Scorecards were delivered. But ripeness generally 

concerns the jurisdiction of a court to decide a case. See, e.g., Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849, 851 (Tex. 2000). Here, as the Court and I have discussed, the Commissioner has 

jurisdiction and the issue is whether the grievance was timely filed pursuant to DISD’s grievance 

policy. The Teachers do not identify and my review did not reveal a ripeness requirement 

incorporated into that policy. The Court asserts that the Teachers’ complaint regarding TEI’s 

failure to provide an appraisal during the school year as putatively required by statute became 

ripe only when DISD provided the Scorecard in the following school year. Thus, under the 

Court’s theory, DISD could prevent the Teachers’ claim from becoming ripe by failing to 

provide a Scorecard at all. In my opinion, this is incorrect. To the extent the doctrine of ripeness 

does apply, the Teachers’ complaint would be ripe no later than when they allegedly were 

deprived of that statutory right—i.e., when the school year ended.
11

the grievance, I conclude that there are not grounds under section 2001.174 for reversal. See 

Tex. Gov’t Code § 2001.174. Accordingly, I would affirm on this issue.

7

Waiver of Timeliness Requirement

In their briefing before this Court, the Teachers assert that DISD waived reliance 

on its grievance policy’s timeliness requirement. The grievance policy states that “[i]f a 

grievance form . . . is not filed timely . . . as set forth in this policy, the grievance shall be 

dismissed, on written notice to the employee, at any level during the grievance process.” The 

Teachers argue that because DISD did not dismiss the grievance, it has waived its right to require

grievances to be timely filed. Although I disagree, I consider it necessary to address the issue. If

the Teachers are correct as to waiver, then the untimeliness of the grievance would not be a 

sufficient ground to affirm the Commissioner’s decision. See Tex. R. App. P. 47.1 (requiring 

written opinion to address “every issue raised and necessary to final disposition of the appeal”).

Because the Court does not address the Teachers’ waiver argument in its opinion, I do so here.

In his decision, the Commissioner determined that “[a]t all levels of the grievance 

policy, the decision was made to dismiss the grievance”; “[a]llowing an appeal of a lower level 

 

7 The Court references a statement from the record that was made by an assistant 

principal to at least one of the Teachers. It is unclear what legal effect the Court considers this 

statement to have. Moreover, the Teachers neither reference this statement in their briefing 

before this Court nor provide any argument as to what effect such a statement may have to

support overturning the Commissioner’s decision. “[T]o guess at or make an argument for 

a party would violate the structure of our system of justice, be unwise, and change our 

role from neutral and impartial decision makers to advocates.” Isaac v. Villas del Zocalo 3,

No. 05-16-01338-CV, 2018 WL 360166, at *1 (Tex. App.—Dallas Jan. 11, 2018, no pet.) (mem. 

op.); see In re Minix, 543 S.W.3d 446, 465 (Tex. App.—Houston [14th Dist.] 2018, orig. 

proceeding) (Busby, J., concurring) (“Were we to raise this non-jurisdictional issue ourselves 

and develop arguments for or against its application, we would become advocates for a party 

rather than impartial decisionmakers—a role fundamentally at odds with our adversary system of 

justice. . . . We should stay in our lane.”).
12

dismissal to the school board does not change the fact [th]at a lower level decision was made to

dismiss the grievance”; and “a waiver did not occur in the present case as [DISD’s] conduct was 

not unequivocally inconsistent with claiming a known right.” The Commissioner explained that 

the hearing officer—in the Level I and II Decision letter—explicitly dismissed the grievance and 

that “[w]hile no form of the word ‘dismiss’ was used . . . by finding the grievance untimely and 

adopting the Level I and II decision, [DISD’s] board dismissed the grievances.”

The Commissioner’s decision is confirmed by the record. In the decision letter,

the hearing officer concluded that: 

a complaint regarding spot observations, a full observation, or a summative 

observation that was conducted in 2014–2015 is untimely because the teacher 

knew or should have known of the action before the end of the 2014–2015 school 

year. It is the decision of this Hearing Officer that any of the NEA Grievants’ 

complaints based on events (such as these) of which the teachers knew, or should 

have known, during the 2014–2015 school year are untimely. . . . Further, the

Board adopted DNA (Local) and made TEI the official policy of Dallas ISD on 

May 22, 2014. Shortly thereafter, in late May or early June of 2014, the TEI 

Guidebook was publicly posted online for the public (and any Dallas ISD

employee) to see. Any teacher . . . could have filed a grievance within ten days 

after the Board adopted DNA (Local) or the TEI Guidebook was publicly posted. 

They did not do so. The NEA Grievants’ challenge to DNA (Local) and the TEI 

framework is, therefore, untimely.

Although the hearing officer also evaluated the substance of the grievance, the officer made the 

analysis and decision “[s]ubject to this Hearing Officer’s Decision regarding the untimely nature 

of the grievance.” The hearing officer concluded that “[t]o the extent that the Grievants 

complain of decisions or actions of Dallas ISD that were known or should have been known, to 

them prior to September 18, 2015, as discussed above, the grievance is denied and dismissed as 

untimely in accordance with DGBA (Local).”
13

The hearing officer’s decision was appealed to a three-person subcommittee of 

the Board. Pursuant to DISD’s grievance policy, “The Board subcommittee’s decision will serve

as the final decision of the Board.” The Board’s decision expressly noted that it was not waiving 

any objection regarding timeliness. By a majority vote, the Board decided that the grievance was 

not timely and that the findings of fact and decision of the hearing officer “should be affirmed 

and the appeal of NEA-Dallas Group Grievance should be and is hereby denied.”8

Both the hearing officer and the Board expressly refused to waive the issue of 

timeliness. DISD’s grievance policy expressly states that “[a]ll time limits for filing grievances 

shall be strictly followed” otherwise “the grievance shall be dismissed . . . at any level during the 

grievance process.” The hearing officer did dismiss the cause and the Board adopted at the 

hearing and affirmed in its written decision the hearing officer’s decision. Although the hearing 

officer’s decision letter and the Board’s decision are no models of clarity as to their dispositions, 

I cannot conclude that waiver occurred by the Board’s express language. And “[w]hile waiver 

may sometimes be established by conduct, that conduct must be unequivocally inconsistent with

claiming a known right.” Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005). 

But, as the Texas Supreme Court has explained, “[h]earing the merits of a party’s complaint 

while reserving a ruling on its timeliness is not unequivocally inconsistent with later denying the 

complaint on the latter ground.” Id. Accordingly, I agree with the Commissioner and cannot 

conclude that DISD waived the timeliness requirement for the Teachers to file their grievance.

 

8

 At the hearing before the Board’s subcommittee, the motion that carried used the 

language that the Board “adopt and approve the findings of fact and the decision of the Level II 

hearing officer.” DISD’s grievance policy states that “[t]he Board subcommittee may render an 

oral decision,” but that it shall also “provide the written decision.”
14

Exceptions to Individual Grievances

Finally, I would also affirm the Commissioner’s decision to dismiss the Teachers’

grievances as to their individual complaints regarding the Scorecards. The Teachers waived any

disagreement as to the PFD’s findings and conclusions regarding the individual complaints by 

failing to satisfy the requirements for excepting to the PFD.

Section 157.1059 of the Texas Administrative Code imposes requirements upon 

exceptions to the PFD that if not met will waive a party’s disagreements with the PFD’s factual 

findings and legal conclusions:

(d) All disagreements with the factual findings and legal conclusions of the 

proposal for decision must be made in the parties’ exceptions to the proposal for 

decision or be waived.

(e) The exceptions shall be specifically and concisely stated. The evidence relied 

upon shall be stated with particularity, and any evidence or arguments relied upon 

shall be grouped under the exceptions to which they relate.

19 Tex. Admin. Code § 157.1059(d)–(e) (Tex. Educ. Agency, Filing of Exceptions and Replies 

to Proposal for Decision). In his decision, the Commissioner concluded that “[a]s only 

Exceptions No. 10 and 23[] properly cite to the record to identify the evidence relied upon, only 

these exceptions properly identify facts that could call into question the [PFD]” and “[n]one of 

the Exceptions to the [PFD] specifically and concisely state any potential legal error.”

In the PFD, the ALJ made the following statements as to the Teachers’

individual complaints:

• While some named Petitioners made individual complaints in the grievance either these 

complaints are really about the TEI process as a whole or they are about specific 

procedural irregularities that had long since passed when the grievance was filed.

• No individual Petitioners contend that their Scorecards were improperly calculated.
15

• However, none of these complaints is about how an individual Scorecard was calculated. 

The individual complaints allege flaws in the process that occurred long before the 

individuals received their Scorecards. These complaints are also untimely.

The Teachers excepted to these statements in Exceptions 1, 8, and 19, stating:

• This statement is in direct contradiction to the evidence in the record.

• The ALJ has erred, and the finding should be removed from the decision.

• All the teachers’ individualized arguments were presented at the District 

grievance hearings.

• NEA Dallas made numerous arguments that each challenged individual Scorecard[] was 

void and invalid as it was premised upon an unlawful appraisal system.

• All of NEA Dallas’s arguments made in the grievance process pertained to the class 

members’ Scorecards, and the manner in which each teacher was appraised . . . .

• Further, the grievance arose from the Scorecards—not school district Board policy.

But the Teachers do not “specifically” state how their complaints are individual complaints 

rather than “really about the TEI process as a whole” or “about specific procedural irregularities 

that had long since passed.” And they do not “specifically” assert that they are complaining that 

the Scorecards were improperly calculated to disagree with the PFD. Other than to assert that 

“numerous arguments” as to the individual challenges were made at the grievance hearings, the

Teachers do not specifically state what those arguments are or where or when at the hearings 

they were made. These exceptions do not satisfy the requirements of section 157.1059.

Accordingly, the Teachers have not demonstrated how their substantial rights 

were prejudiced by the Commissioner’s dismissal as to their individual complaints. See id.; see 
16

also Tex. Gov’t Code § 2001.174(2). Because the Teachers have not met their burden, I would 

affirm the Commissioner’s dismissal as to the individual complaints regarding the Scorecards.

9

CONCLUSION

For these reasons, I would affirm the Commissioner’s decision. I therefore 

concur with the Court’s judgment affirming in part, but respectfully dissent from the Court’s 

judgment reversing in part and remanding for further proceedings.

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

Filed: October 17, 2019

 

9

 The Teachers assert that even if the Commissioner had affirmed the Board’s decision to 

dismiss, “[the Teachers] ha[ve] requested the Commissioner to issue an independent order that

the Scorecards are void” and therefore the “request for an independent order from the 

Commissioner cannot be disposed of by ‘affirming’ the Board’s vote.” But the Teachers do not 

explain how the Commissioner would have jurisdiction under section 7.057 of the Texas 

Education Code to enter such an “independent order.” See Tex. Educ. Code § 7.057(a)

(providing for “appeal” to commissioner if person is aggrieved by “the school laws of this state”

or “actions or decisions of any school district board of trustees” that violate school laws or 

employment contract).