### 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 DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 002145 , THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDI NG

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 T eac hers) employed with the Dallas Independent Sch ool District (DISD) f iled a grievance with DISD ’ s Board of Trustees (the Board) regarding : (1) DISD’s Te ach er Excellence Init iative (TEI) appraisal system for the school year
2014

– 2015 ; (2) the TEI Scorecards (the Scorecards)

— which set forth a teacher’s 2014

– 2015
evaluati on rating and 20 15

– 2016 effectiveness level

— that the Teacher s received in September
2015 ; a nd (3) an alleged decrease in the Teachers ’ salary

. The Board dismissed and denied the grievance as untime ly. The Teachers then appe aled to the Commissioner . Agreeing with the
Board , the Commissioner issued findings of fact and conclusions of law det erm in ing that the2

g rievance was untimel y ; yet, rather than affirm the Board ’ s decision, he dismissed the appeal for lack of jurisdiction

. Th e district court aff irmed

. T he Court conclu d e s that the Commissioner h ad jurisdiction over the Te achers ’ appeal f rom the Board ’ s decision , and I agre e
. See Tex. Educ. Code § 7.0 5 7

. T he
Commi ssioner ’ s dismissal for lack of jurisdictio n is therefore “ affected by other error of law ”
and his decision must be reversed if the Teachers ’ substant ial rights have been prejud ice d. See
Tex. Gov ’ t Code § 2001.174( 2 )( D ). I n my opinion , g iven the unique pr ocedural posture of this

case, the Commissioner ’ s supporting findings and conclusions may serve as grounds for
af firming the Commissioner ’ s decision if they satisfy the substan tia l evidence rule

. If so, t he
Teachers ’ statutory right to have those issues determined by the Commissioner was not prejudiced by the Comm i s s ioner ’ s ultimate disposition of dismiss rather than affirm

. See id. § 2001. 174 ; Tex. Educ. Code § 7.057

. I ther efo re concur with th is Court ’s decision affirming the
Commissioner ’ s dismissal of the Teachers ’ complaints regarding the TEI and the ir dec rease in salary for the reasons stated in th e Commissioner ’ s supporting findings and conclusions

. I respectfully diss ent , however, f rom t h is Co urt revers ing the Commissioner ’ s dismissal of the
Teachers ’ co mplaints regarding the Scorecards and remanding that issue for further proceedings

. B ecause t he Commissioner ’ s supporting findings and conclusions on this issue satisf y t he
substantial evidence rule , I would affirm.

D ISCUSSION The Court and I agree that pursuant to Te xas Commissione r of Education v. Solis , section 7.057(a) o f the Texa s Educ ation Code pro vide s the C omm issioner with jurisdict ion over
the T eachers ’ appe al fr om the Board ’s decision on their grievance

. 562 S.W.3d 591, 602 (Tex.3

App.

— Austin 2018, pet. filed) ( “ Section 7.0 57 of the Texas Educatio n Code provides for an appeal to th e Commissioner when a person is aggrieved by an action or decision of a board of
trustees that v iola tes Texas s chool law. The Commissioner may not, th rough his rules or policies, narro w the availa bility of that appeal. ” )

. Thus, the C ommis sioner ’ s d ecisio n to dismiss the appeal for lack of jurisdiction was “ affected by other error of law ” a nd this Court must

revers e and remand “ if substantial rights of the appella n t have been prejudiced ” by this er ror of
law. See Tex. Go v ’ t Code § 2001.174(2)(D). 1

In most scenarios, that would be t he end of the inquiry

— this Court would reverse

an d r emand for further proceedings for the Commissioner to consider the merits of the grievance

. O therwise , th e subst antia l rights of the grieva nt

— namely, to have the Commissioner consider
and decide the merits of the appeal from the Board ’ s decision , s ee T ex. Educ. Code § 7.0 57

— would be prejudiced

. This case, however, present s t he unique c ircumstanc es of the
Commissioner ma king express findings , conclusions , and decisions that establish that the
Teachers ’ grievan ce w as untimely

— which the Comm issioner con si der ed necessary to resolve

1 R e vi ew of the Commissioner’ s de cision under section 7.057 “is governed by the s ame anal ysis as in the district court and before the Commissioner

— t he familiar ‘sub stantial

- evidence’ rule that is codified in Section 2001.174 of the Administrative Proced ure Act

. ” Jenkins
v. Crosby Ind e

p. Sch. Dist. , 537 S.W. 3 d 142, 148 (Tex. App.

— Austi n 2 017, 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 )

. T he Commis sion er ’ s decision s hould be reve r sed only if the party c h allengin g the decision demo nstrates that the party ’ s substantial rights have been prejudiced. See Mitchell v. Texas Med. Bd. , No. 0 3

- 13

- 00502

- CV, 2015 WL 1778289, at *3 (Tex. App.

— Austin Apr. 15, 20 15, pet

. denied) ( m em. op.) (“To warrant reversal or rem a nd, therefore, the reviewin g court must conclude that (1) substantial rights of the appealing party have been affected because of (2 ) on e or more of the reasons listed in section 2001.174(2)(A)

– (F).” ); C iti ze ns Agains t Landfill Loc a tio n 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 r eversed only if the pa rty challenging the decision demonstrates that the absence of subst anti al ev idence ha s prejudiced t h e p arty’s substantial r i ghts.”)

.4

the jurisdictional issue 2

— a n d that the Teac hers waive d any indi vidual complaints by not specifically excepting to the proposal for decision ( PFD ) prepared by the administrative law judge ( ALJ )

. These findings , conclusions , and d eci sions

— if supported b y substantial
evidence

— est ablish that the Commissioner should have affirmed the B oard ’ s d ecision to dismiss
the gri evance pur suant to DISD ’ s grievance policy

. See Tex. Educ. Code § 11.1511(b)(13) (pro viding that board of trustees of in dependent school district s shal l b y rule a dop t process for hearing complai n ts); 19 Tex. Admin. Code § 157 .107 3(h) (Tex. Educ. Agency, Hearings Brought Under Tex. Educ. Code § 7.057) ( providing that Commissioner may affirm or reverse
board ’ s decision pur s ua nt to substantial ev id ence review ) ; c f. Poole v. Karnack Indep. Sch. Di st. , 344 S. W.3d 440, 442 (Tex. App.

— Au stin 2011, no pet.) (noting Commissioner concl uded
d istrict ’ s decision to dismiss grievance on basis of untimely filing was support ed by substa n tia l
evidence and affirm ed d istrict ’ s decision)

. And the Commissioner implie s in his briefing that if
his decis ion is reversed and remanded, h e would “ reform the relief from dismissal to affirma nce ” without changing the find ings and conclusions. 3

Althou gh the Commissioner ’s findings , con c lusions , and decision s were made in

t he c ontext of an incorrect jurisdi ctional determination , t he Teacher s will not be abl e to meet

2 The subst antia l evidence sta ndard would govern review of jurisdictional fact findings i f the Comm issioner had correct ly determined that he lacked jurisdiction

. See Houston Indep. Sch. Di st. v. S impson , N o . 03

- 12

- 00145

- C V, 2013 WL 5878919, at * 3 (Tex. App.

— Austin Nov. 1 , 2 013 , n o pet.) (mem. op.) (“Where, as here, the Commissioner makes fact findings necessary to resolve the jurisdictional issue based on an evidentiary record developed thr oug h an adjudicat i ve process, we re view those fact findi n gs under the substantial

- e vid ence s tandard.”).

3 The Commissione r state s, “ Because here the Commissioner s pecifically concluded that the teachers’ grievance was untimely, . . . (COLs #3), there is n o rea s o n for thi s Court to rem a nd to the Commissioner t o reform the relief from d ism issal to affirmance. In this case, dismissing the teachers’ claim instead of de nying it would be harmless error, for the Commissioner’s conclusion that the teachers’ gri ev an ce w a s untimel y was reasonab l e and therefore the tea c hers have not been prejudi ced for t hey are not entitled to relief.”5

their burde n to demonstrat e that their substantial r ights have been prejudiced if the se

“ a dmini strative findin gs, in feren ces, con clusions, or decisio ns ” (1) e stablish that the
C ommissioner should have affirmed the Board ’ s decision to dismis s the grievance and (2) are
sustained on review under the substantial evidence rule. 4 S ee Tex. Gov ’ t Co de § 20 01.174(2) ; cf. Jenkins v. Crosby I

ndep. Sch. Dist. , 537 S.W.3d 14 2, 14 9 (Tex. App

. — Austin 2017, no pet.) ( “ Subst anti al

- ev idenc e analysis ent ai l s two component inqu iries: (1) whether the agency made

4 For this reason, it is my opinion tha t the Court exceeds the scope of its review in resolving issues that were not addressed in th e Co mm i ssioner ’ s decision. F o r example, the Court co n siders 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 add res s ing t h is issue b y stating th a t “ the applicable stand a rd of review requires us t o consider whether

. . . to dismiss the appeal on some other reasonable basis in th is record ” or
“ [u] nder substant ial evidence review of fact

- based determination s , . . . ‘ wh eth e r t he record de m onstrates so m e reasonable basis for t he agency ’ s action. ’ ” Ant e at ___ ( quoting AEP Tex. Cent. Co. v. P ublic Util. Comm ’ n , 345 S.W.3d 60, 68 (Tex . 2011)). But whether section 21.352 is directory or manda tory is neither a “ reasonab le basi s ” for the Co mmi s sioner ’ s action o f dismiss ing the appeal for lac k of jurisdicti on nor a “ fac t

- based determination []. ” And by expressly dismissing the Teachers ’ a ppeal , the Comm issioner made the determination that he did not have jurisdiction to con sider the me r it issue o f whether s ecti on 21.352(a) is d irectory o r mandat ory. For the reas ons 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 c an be affirme d give n (1 ) h i s e xpress det e rmin ation , which includ ed findings a n d conclusions, in his decision that the grievance was untimely , (2) th ose findings, conclusions, a nd decisions are sustained on review under the substantial evidence rule , an d (3) the Teacher s ’ sub s t ant ia l r i ghts
w e re not p rejudice d by the dismissal a l though the dismissa l was affected by other error of law because the Commissioner expressly considered and determine d the issue of timeliness in his d ecision . But even if I agree d with the Cou rt that t h e gr ievan c e rega r ding sec tion 21.352(a) was timely ra i sed , I would not ad dress whether that statute is directory or mandato r y. Section 7.057(a) of the Texa s Education Code provides the Teachers with a right to appeal to the Commiss ioner. Tex. E duc . Code § 7. 057(a )

. If t h e Teach ers ’ grievance as to section 21.352(a) was timel y, the Teachers would be entitled to have the Commissioner consider the merit issue of
w hether it is directory o r mandatory. By dismissing for lack of jurisdi ction

— a deter mina tion a f fec ted by other e rror of law

— without expressly consi d ering this issue in his decision , the Commissioner prejudiced the Teachers ’ substantial rights u nder s e ction 7.05 7 (a ) to have th at issue considered by the Commissioner . According l y, pursuant to s ection 200 1.1 7 4 ( 2 ) (D), i f the Co urt concludes that the Teac h ers ’ grievance was t imely, this Court must reverse and remand on this issue without de termining the mer it issue , which the Court fails to do

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

.6

findings of underlying facts that logically suppor t the u ltimate facts and legal conclusion s establishing the legal author ity for the agen c y ’ s decision or action and, in tur n, (2 ) whe ther the finding s of underlying fact are reasonably supported by evidence. ” )

. T his appr oach promotes judicial economy by a ll owing a reviewing court to affirm r athe r than to r evers e and remand to
have the Commis s ioner issue the exact same de cisio n

— merely r efor ming the disposition from
dismissal to affirm

— for consideration on appeal

. Moreover, this approach is c onsistent with ou r

rec ent decision in Solis

. 562 S.W.3d at 602

– 04

. I n Solis , t his Cou rt concluded tha t the
Commissioner incorrectly dete r mined tha t it did not have jurisdiction over Solis ’ s appeal from
the decision by the b oard of trust ee s , but this Court did not immed ia tely reverse and remand upon making thi s conclusion

. Id. at 602. I ns tead , this Court first noted tha t “ [w]hile the part y may be f ound to have waived that complaint or failed to preserve it for a subsequent appeal to
the Commissioner , it does not follow t hat t he Commissioner lacks jurisdiction over the appeal
itself

. ” Id. Then , t his Court pro c e e ded to “ consider whether Solis w a s require d to seek relief from the board of trustees in order to preserve for Commissioner review her claim. ” Id.
Altho ugh th is Cour t ultimately concluded that “ Solis did not waive that claim by not ra i sing it at
the l o cal level , ” i d. at 604 , there woul d be no ne ed for this Court to consider th e issue if Solis
was entitled to a revers al of the Commissioner ’ s decision that he did n ot ha ve jurisd iction over
Solis ’ s appeal and remand for further proceeding s without meeting her burden to demonstrat e
that her substanti al rights have been pre judi ced

. The fact that this Court considered the merits o f
whether Solis preserv ed error befor e rever sing a nd rem anding implies that th is Co urt could have
affirmed the Com missioner ’ s deci s ion to dismiss for lack of jurisdi c tion had Solis not preserved

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

erro r of la w. ” See Tex. Gov ’ t Code § 2001.174(2)(D ).7 Following Solis and pursua nt to section 20 0 1.174 , I proc eed with a review of t he
Commis sioner ’ s “ administrative findings, inferences, conclusions, or decisions ” under the
substantial ev idence r ule

. See i d. § 20 01.174. In cond ucting this review , I p r esume that the

agency ’ s finding s, inferences, c o nclus ions, and decisions are suppo r ted by su bstantial evidence, and the burden is on the appellant to demonstrate otherwise. See Froemming v. Texas State Bd. of D e ntal Exam ’ rs , 380 S. W.3d 787, 791 (Tex. App.

— Austin 2012, no pet.); Pierce v. Texas Racing C omm ’ n , 212 S.W.3d 745, 751 (Tex. A p p.

— Austin 2006, pet. denied). “ Essentially, this
is a rational

- ba sis test to determine, as a matter of law, whether an agency ’ s orde r finds
reasonab le support in the record

. ” Jenkins , 537 S.W.3d at 149 (citing Texas He a lth Facilities
Comm ’ n v. Charter M e d.

- Dall. , Inc. , 665 S.W.2d 446, 452

– 52 (Tex. 1984 )) ; see id. at 149

– 50 (describing “ well

- established standard of review ” ).

Unt im eline ss of Grievance

I agree with the Court that s ubstantial evidence supp ort s the Commiss i one r ’ s
decision

— which included fin dings and conclusions

— that “ the Teachers ’ fa cial grie vance as to the components of the TEI system itself ” was untimely. Ante a t ___. And the Teachers have not
demonstrated how their substanti al rights we re prejud iced by the Commissioner dismissing this

p ortion of their grievance instead of affirmi ng the Bo ard ’ s d ismissal and denial.

The Court, however, al so concludes that th er e was no r ea sonable basis to
determine t hat t he Teacher s ’ grievance as to not receivi ng an ap p raisal during the school year

was un timely. D ISD ’ s grievance policy require s , “ A grievance form must be filed no la ter than

te n days from the date the employee f irst knew or, wi th reasonable diligence, shou ld have known
of the deci sion or action giving r ise to the grievance or complaint. ” The Court claims that it was8

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

cons t itute s a ‘ decision or action ’ triggering the need for a teacher to file a g rievance under the plain language ” of DISD ’ s grievance policy. Ante at ___. I n my opinion, this complaint

concerns a “ decision or action ” and substantial evidence in the record su pport s the
Commissioner ’ s decis ion that the T eac her s ’ g riev a nce was untimely as to this co mpl aint

.

To consider wh ether the grievance complained of is a “ decision or action , ” I look
to the Teachers ’ complaint . The complaint in the i r petition to the Commi ssion er , which is virtually identical to the c omplaint in the grievance form before DISD ’ s Bo ard, states :
The TEI syst em does not give the teacher a final evaluation during the appra isal school year , bu t rather g ives the teacher this information only after the school year has ended by way of the S cor e cards received on or around September 18, 2015. Th ose Scorecards , received in the 2015

– 2016 school year purported to ev aluate the teach ers ’ performance for t he 2015

– 2016 s chool year. Th is process deprives the teac her of a con f

erence that is diag nostic a n d prescriptive with regard to any remediation i dentified by the evaluator that may be needed in overall performance by c ategory during t he c urrent schoo l ye a r. Further, this process viol ates the Texas Educatio n Cod e § 21.352 which requires that a “distri c t op tion ” appraisal system must conduct the app rai sal “at least once during each s chool year. ”
(Emphases added

. ) Thus , the Teacher s com plain about what “ [t] he TEI system

. . . gives ” and
about “ this process ”

— i .e., complaints about the compone nt s of th e system or process adopted by
DISD or, in other w ords, a “ decision or action ” by DISD.

To determine whether the Teac h ers ’ grievance as to this compon ent o f the TEI
system or p rocess w a s timely, I consider when t he T eachers “ first knew or, with reasonabl e diligence, should have known ” of this component giving rise to their complaint. 5 The

5 I assu me fo r purp o s es of thi s anal y sis that the Teachers are correct t hat the summative ann ual appraisal conducted during the 2014

– 15 school year is not the “appraisal” c onte mplate d by sect ion 21.352(a) of the Texas Educ ation Code

. Because the Commi ssioner ’ s decisio n can b e9

Commissioner entered a finding o f fact that the “ [Te acher s ’ ] cha llen g es to the components of the [ T EI] pr ogram were not filed with in ten business days of [ the Teachers] l earning of the components or of when [Teachers ] with reasonable diligence should have known of the
components. ” In th e d ecision, the Comm issioner not ed:

T he TEI is based on [DISD ’s] p o lic ies. There are three p o lici e s and s everal official inter pretation s of policies that are relevant to [ the Teachers ’] claims concerning [DISD ’s] appraisal process. DNA (LEGAL), DNA(LOCAL [)], and DNA(RE GULAT ION) set out the structure of [DISD ’s] apprais a l program. Each of these p olic i es was adopted months before the grie va nces were filed. [DISD] ’s teachers received a f

ull day ’s training in the TEI evaluation process in August 2014. A nu mber of distric t pub lications fu rthe r explain the process. The mo s t significant publications are the TEI Guidebook, updated Ma rch 18, 2 0 1 5, the TEI Rulebook dated January 6, 2015, the T eacher Perfor mance Rubric, revised December 19, 2014, the SLO Rubric , r evised June 26 , 201 4, and the T EI C a lendar for the 2 014

– 2015 scho o l year . In addition, [DIS D ] pr ovided much information about the TEI pr ogram on[]line. [ The Teachers ’ ] challenges to t he components of the TEI program were not filed within ten business da y s of [ the Teac hers] learning of the components or of when [ the Te a chers ] with reasona ble dil i g enc e should have known of the co mponents.

T he TEI Guidebook provide s a draft “ Category A Te acher Evaluation Scorecard 2014

– 15 ” that
demonstrate d that the Scorecard wou l d show the poi nts e arned for th e ca t egories of teacher performa nc e , student perception s , an d student achi evement ; the total po ints earn ed ; and an

ev aluati on rating and effectiveness lev el

. T he DNA(REGULATION) provides that DISD “ will
use the evaluation r a tings to deter mine teacher effe ctiv e ness levels ” and that “ [a]t t h e beginning of the 2 0 15

– 2 016 school year , each teacher will rece ive o ne of the following effectiveness levels
based on a teacher ’ s eva luation rating f r o m the 2014

– 15 school year

. . . . ” ( E mphasis added

. )
The TEI Guidebo ok s t ate s in its “ Summary of Ev a l ua tion Process ” that i n “ S eptember

– October

a ffirmed witho u t reachi ng the merits of th i s ques t ion , I would not reac h or decide th i s iss ue and respectfully dissent from the Court ’ s deter mination of t h i s issue

.10

2015 ” the “ Teachers receive f inal ev aluation rating and effectiveness level

. ” T he TEI Ev aluation
Calendar for the 2014

– 2015 school year also provid e s th is exact same i nformation.

I n my opinion, t he Court need n ot determine the exac t dat e that the Teachers “ first
knew or , with re aso nable diligence, should have known ” that they wo uld receive their final evaluation rating as shown on the Scorecards i n the Fall of the 2 015

– 2016 sch ool y ear and not in
the 2014

– 2015 s chool year

. Substant i al e vidence exists in the record that no later tha n the end of
the 2014

– 2015 school year

— and most likely much earlier

— the Teachers “ first knew or, with
reasonab le dili g ence , shoul d have k nown ” that “ [t] h e TEI syst em does not give th e teacher a
final evalu a tion during the appraisal school year, but rath er g ives the teacher this information only after th e school year has ended

. ” And it is undisputed that the Teachers did not file a ti mely

g rievance fro m th e end of the 2014

– 2015 school y ear. 6 Because (1) su b stan tial evidence supports the Commiss ioner ’ s f ind ing of fact th at the Teachers ’ grievance was unt imely and (2) the Teachers have not demonstrated how their substantia l rights were prejud iced because the
Commissioner di smissed the c au se rather than affirm e d th e Board ’ s decision as to this port ion of

6 The Teachers ’ grievance is premised on the fact that the ir Scor ecard s were rece ived a ft er the sc h ool y ea r had e nded

. The Teachers als o rai se a ripeness argume nt , claiming that their grievance w as not ripe until the Scorecards were delivered

. But ripeness generally c onc erns the jur isdictio n of a court t o decide a case. See, e.g. , W aco In de p. Sch. D i st. v. Gib son , 22 S.W.3d 849, 851 (Tex. 2 000)

. Here, as the C ourt and I have d isc ussed, the Commissioner has jurisdiction and the issue is whether the grievance was timel y fi led pursuant t o DISD ’ s g rie vance policy. T he Tea ch ers d o not i dentif y an d my re v iew did not re veal a ri pe ness requirement i n corporated into th at 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 whe n DISD pr o vided the Scorecard in the following school year. Thus, under the Court ’ s theory, D ISD could prevent the Teachers ’ claim from becoming ripe by failing to provide a Scorecard at all. In my opinion, this is incorrect. T o the extent the d octrine of ripene s s does apply, the Teachers ’ complaint would be r ipe no later than when the y allegedly were de prived of th at statutory right

— i .e., when the school year ended

.11

th e g rievance, I conclude that there are not grounds under section 2001. 174 for reversal. See
Tex. Gov ’ t Code § 2001.174

. Accordingly, I wou ld affirm on thi s issue

. 7

Waiver of Timelines s Requirement

In thei r bri efing before this Court, t he Teach ers asser t t hat DISD waived reliance

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

gr ievance form

. . . is not file d ti m ely

. . . as set forth in th i s policy , the grievanc e sha ll be dismissed, on written notic e to the empl oyee, at any level during the g rievance process. ” The Teachers argue that because DISD did not dism iss the grievance, it has waiv e d its right to re qu ir e grievances to be timely file d

. Although I disagree , I c onsider it necessary t o address the issue

. I f
the Teachers are correct as to waiver , then the untimeliness of the grievance would not be a
sufficient ground to affirm the Commi ssioner ’ s decision

. S e e T ex. R. App. P. 47.1 (requ i ring written opinion t o add ress “ every issue raised and necessary to fina l disposition of the appeal ” ).
Because the Cour t does not address the Teachers ’ wai ver argument in its opinion, I do so here.

In his decision, the Com m ission e r determined t hat “ [a ] t all levels of the gr i evan ce policy, the decision was made to dismiss th e grievance ” ; “ [ a ] llowing an appeal of a lower l evel

7 The Court references a statement from the record th at was made by an assista nt princ ip a l to a t least one of th e Teachers. I t is unclear wh at leg al effect the Court considers this stateme nt to have

. Moreover, the Tea ch ers neither r eference this st atement in their briefing before this Cour t nor provide any argument as to what effe ct such a stateme n t may have to su pport overtu rn ing the Commiss ioner’ s decision. “ [T]o guess at or make an arg ument for a party would violat e the st ructure of our system o f justice, be unwise, and change our role from neutral and impartial decision makers to adv o cates.” I saac v. Villa s d el Zocalo 3 , N o. 05

- 16

- 01338

- CV, 20 18 WL 360166, at *1 (Tex. App.

— Dallas Jan. 11, 2018, n o pet.) (mem. op.) ; see In re Min ix , 543 S.W.3d 4 46, 465 (Tex. App.

— Houston [14th Dist.] 20 18, orig. proceeding) (Busby, J., concurri ng) (“W e re we to r aise this non

- ju risdictional i ssue ourselves and de velop argumen t s for or against its applica tion, we w ou ld become advocate s for a party r ather than impar tial decisionmakers

— a role fundamentally a t odds with our adversary system of justic e.
. . . We sho u ld stay in ou r l ane.”).12

dismissal to the school board does not cha n ge the fact [t h] at a lower level de cision was made to
di s m iss th e grievance ” ; a nd “ a w a i ver did not occur in t he p resent case as [DISD ’ s] conduct was not unequi vocally inconsistent with clai ming a known right

. ” The Commissioner explained that the hearing officer

— in the Leve l I and II Decis ion lette r

— explici tly d ismiss e d the grievanc e and

t h a t “ [w]hile no fo rm of the word ‘ dismiss ’ was used

. . . by finding the g rievance untimely and adopting the Level I and I I decision, [DISD ’ s] board dismissed the grieva n ces. ”

The Commiss ioner ’ s deci sion is confirmed by t he r e cord. In the decisio n lette r ,
t he hearing officer c oncl uded that:

a complaint regarding spot observa tions, a full observation, or a summative observ ation that was conducted in 2014

– 2015 is untime l y becaus e the teach er knew or shoul d have known of th e ac t ion be f ore the end of the 20 1 4

– 2015 school year. I t 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 h ave known, during the 2014

– 2015 school year a re u n timely

. . . . Furt her, th e Board adopted DNA (Lo ca l) and made TEI the official policy of Dallas ISD on May 22, 2014. Shortly thereafter, in late M ay or early June of 2014, the TEI Guid ebook was publicly posted onl ine for the publ ic (and any Dallas ISD employ e e) to see. An y teach e r
. . . could have fil ed a grievance within ten days after the Board adop ted DNA (Local) or the TEI Guidebook was publicl y posted. They did not do so. The NE A Grievan t s’ chall enge to DNA (Local) and the TEI framework is, the r efore, untimely.

Alth ough th e hearing officer also ev alu ated the substance of the grievance, the offic er made the analysis and decision “[s]ubject to this Hearing Officer’s Decision regard ing the u n timely n ature
of th e grievance.” T he hearing officer con c luded t hat “[t]o the extent t h at the Grievants

comp la in of decisions or actions of Dallas ISD that wer e known or should have been known, to them prior to September 18, 2015, as discussed a bove, the grievanc e is denied and dismissed a s untimely in acco rdan c e with DGBA (Local).”13 Th e hearing officer’s dec isio n was appealed to a three

- person subcommittee o f the Board. Pursuant to DISD’s grievance polic y, “The Board subcommittee’s decision will serv e
as the final decis ion of the Board .” The Board’s de cisi o n expr e ssly noted th a t it wa s not waiving any objec tion regarding timeliness. By a majority vote, the Board decided that the grievance was not timely and that the findings of fact and decision of t he hearing officer “should be affir med and the appeal of N EA

- Dal l as Group Gr iev ance sh o u ld be and is hereby d enie d .” 8

B oth the hearing officer and the Boa rd expressly refused to waive the issue of
timelin ess. DISD ’ s grievance policy expressly states t hat “ [a]ll time li m its for fil ing g rievances
shall be str i ctly f

o llowed ” otherw ise “ th e grievance shall be di smiss e d

. . . at any level during the grievance pro cess. ” T he hearing offi cer did dismiss the caus e and the B oard adopted at the hearing and affi r med in its written decision the hea ring officer ’ s dec isio n
. Alt h ough the heari ng
offi c e r ’ s decision letter a nd th e Board ’ s decision are no model s of clarity as to the ir dispositions , I cannot conclude that w aiver occurred by the Board ’ s express language

. And “ [w]hile waive r may sometimes be established by cond u ct , th a t conduct must be une q u ivocally inconsistent with claiming a known right

. ” Van Indep. Sch. Dis t. v. McCarty , 165 S.W.3d 351, 353 (Tex. 2005)

. But , a s the Texas Supreme Court has explained , “ [h] earing the meri ts of a party ’ s compla int
while re serv i ng a r u ling on its ti melines s is not unequivocally incon s istent with later denying the complaint on th e latter ground. ” Id. Accordingly, I agree wit h the Commissioner and cannot
conclude that DISD waived the timeliness re quirem e nt for the Teachers t o fi l e thei r grievance.

8 A t the hearing bef

ore th e Board’s subc om mittee, the motion that ca rried used t he language that t he Board “adopt and a pprove the findings of fact and the decision of the Level II hearing officer.” DISD’s grievan ce po li c y states t hat “[t]he Bo ard subcommitte e may render an o ral de cision,” but t ha t it shall also “provide t he written d ecision.”14

E xceptio n s to Individual Grievan ces

Finally, I would also affirm the Commissioner ’ s decision to dismi ss the Teachers ’ grievances as to the ir individual complaints regarding the Scorecards

. T he Teac h ers waived any disag r ee ment as to the P FD ’ s findings and con clusions regarding the in di vidua l c omplaints by
faili ng to satisfy the re quirements for excepting to the PFD.

Section 157.1059 of the Texas Administrative Code imposes require ments u p on exceptions to th e PFD tha t if n o t met will waive a party ’ s disagree ment s with the PFD ’ s factu al
fi ndi ngs and legal con clusion s :
(d) All disagreements with the factual findin gs and legal conclusio ns of the proposal for decision must b e made in th e parti e s ’ exceptions to th e prop osa l for d ecision or be waiv e d. (e) The excep tions shall be specif icall y and co ncisely stated. The evi dence relied upon shall be stated with particula rity, and any eviden ce or arguments relied upon shall be grou ped under t he exce p tio ns to which they r elat e.

19 Tex

. Admin. Code § 157

. 1059 (d)

– (e) (Tex . Educ. Agency, Filing of Excep tio ns and Replies to Propos al for Decision)

. In his decision, the Commissi oner concluded that “ [a] s only
Ex ceptions No. 10 a nd 23[] properly cite to the reco rd to identify the evi den ce rel i ed upon, only
thes e except ions prop e rly ide n tify facts that c ou ld cal l into q uestion the [PFD ] ” and “ [n]one of the Exceptions to the [PFD] sp ecifically and concisely state any potential legal error. ”

In the PFD, the ALJ made the following sta tem ents a s to the Teachers ’
i ndividu al compla i nts :

• While some named Pe tit ioners made individual comp laints in the grievance either the se complaints are really about the TEI process as a whole or they are about specific procedural i rregula ri ties that had lo ng sin c e passed whe n the g rievanc e was fil e d

.

• No i ndividual Petitio ne rs contend that their Scorecar ds were improperly calculated

.15

• However, none of these complai nts is about how an individual Scorecard was calculated. The individ ual complaints all ege fla ws in t he process that oc c urred l ong befor e the in d ividuals received t hei r Score cards. These compla ints are also untimely.

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

• This statement is in di rect contradiction to the evide n ce in the record.

• The ALJ has erre d , and t h e finding should be re moved from the d ecision.

• A ll the teacher s ’ individual ized arguments were p resented at the District grievance hearings.

• NEA Dallas made numerous arguments t hat each challenge d in div idual S corecard [] was void and inv al id as i t was pr e mised upon an unl aw ful appraisal system.

• All of NEA Dallas ’ s arguments made in the grievance pro cess pertained to the class members ’ Scorecards, and the manner in which each teach er was appraised

. . . .

• Furth e r, the grievance a r ose f ro m the Sco r ecards

— n ot school distric t Boa rd policy.

But t he Teacher s do not “specifically ” state how the ir complain ts are individual complaints
rather than “ really about the TEI process as a whole ” or “ about specific pro ced ural i r regula ri ties
that h ad long since pa s sed

. ” A nd they do not “ s pe cif ically ” as s ert that they ar e complaining that
the Score cards were improperl y calculated to disagree with the PFD. Other than to assert that “numerous argumen ts ” as to the indi vidu al challe n ges were made at t h e griev ance hear i ngs , th e
Teachers do not sp eci fically st a te what those ar gum ents are or where or when at the hearings
the y were made. These exceptions do not satisfy the requirements of section 157.1059.

Accordingly, th e Te ach ers ha v e not demonstrated how the ir substa n tial ri g hts were prejudic ed by the Commi s sioner ’ s dismiss al as to their individual com plaints

. See id. ; see16

als o Tex. Gov ’t Code § 2001. 174(2). Because the Teachers have not met their burden , I w ould
affirm the Commission er ’ s dismissal as to the individual complaints regarding the Sco rec a rds

. 9

CON C LUSI O N
For these re asons , I would a ffirm the Commissioner ’ s decisio n
. I therefore

concur with the Court ’ s judgment affirming in part, but respectfull y dissent from the Court ’ s judgment reversing in part and remanding for further proceeding s.

_________ ______________________ ___________ Me lissa Goodwin, Justice Before Justices Goodwin, Baker, and Triana
Filed: October 17, 2019

9 The Te achers assert th at even if the Commissio ner had affirmed the Board ’ s d ecision to dismiss , “ [ th e Teachers] ha [ve] requested the Com m i ssioner to issue a n independent order that t he Sc o recards are void ” and therefore the “ req ue st for an independent order from the Commissi one r cannot be disposed of by ‘ affirming ’ th e Board ’ s vot e. ” But the Teachers do not explain how th e Commiss ioner wo u l d have jurisdictio n under secti on 7.057 of t he Te x as Education Code to enter such an “ inde pe ndent order

. ” See Tex. Educ . Co de § 7.057(a) (p roviding for “ appeal ” to co mmissioner if person is agg rieved by “ the school la ws of this state ” o r “ action s or dec i s ions of any school district board of trustee s ” th a t violate school laws or employment cont ra ct ).