Michael Simpson v. Felipe Alanis, Commissioner of Education, and Midland Independent School District--Appeal from 385th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL SIMPSON, )

) No. 08-03-00110-CV

Appellant, )

) Appeal from the

v. )

) 385th District Court

FELIPE ALANIS, COMMISSIONER OF )

EDUCATION, and MIDLAND ) of Midland County, Texas

INDEPENDENT SCHOOL DISTRICT, )

) (TC# CV-43827)

Appellees. )

MEMORANDUM OPINION

Appellant Michael Simpson appeals from a judgment affirming the Commissioner of Education=s (ACommissioner@) decision to not renew his term contract. On appeal, Mr. Simpson raises one issue: whether the trial court erred in affirming the administrative decision of the Commissioner which affirmed the Midland Independent School District=s decision not to renew Mr. Simpson=s term contract due to his possession of alcohol while working in the scope of his duties. We affirm.

SUMMARY OF THE EVIDENCE

Mr. Simpson was a science teacher and girls= soccer coach at Lee Senior High, a high school in the Midland Independent School District (AMISD@). He held a term contract with MISD for the 2001-2002 school year. On November 15, 2001, a regular school day, Mr. Simpson was scheduled to attend a soccer clinic in San Antonio. That morning, he checked out a suburban from the MISD transportation services. While driving the MISD suburban, Mr. Simpson went to the dry cleaners and then picked-up Coach Ernani Dearagao, another MISD coach also attending the soccer clinic. Then sometime between 9 a.m. and 9:30 a.m., he also made a stop at a local grocery store and purchased a twelve-pack of beer and other miscellaneous groceries. Mr. Simpson then went to his home where he dropped-off the dry cleaning and the beer. He then picked up a third coach and all three men headed out to San Antonio to attend the soccer clinic. Mr. Simpson was being paid by MISD for this day. A regular school day for Mr. Simpson is from 8 a.m. to 4 p.m.

Apparently, a local citizen witnessed Mr. Simpson leaving the grocery store with the beer and getting into the school vehicle. This witness reported the incident to MISD=s Superintendent. The Superintendent then informed the principal at Lee Senior High, Mr. George Cooper, about the allegation and asked him to investigate further into the matter. Mr. Cooper confronted Mr. Simpson with the allegation and Mr. Simpson admitted to having bought the beer. Mr. Simpson further stated that he knew better and that buying the beer was a dumb thing to do. Mr. Cooper formally reprimanded Mr. Simpson for this behavior. Shortly thereafter, Mr. Simpson submitted a written resignation which was to be effective at the end of his term contract to Mr. Cooper. A couple of months later, Mr. Simpson retracted his resignation through his attorney.

PROCEDURAL BACKGROUND

On March 19, 2002, Mr. Simpson received a letter from the MISD=s Board of Trustees President stating that the Superintended had recommended a proposal to not renew his term contract. The following reasons were stated for nonrenewal: (1) possession of alcohol/alcoholic beverages while working in the scope of your duties and/or attending a school -or District-sponsored activity; (2) failure to comply with Board policies or administrative regulations. Upon Mr. Simpson=s request, on April 9, 2002, the Board of Trustees for MISD held a local hearing regarding the nonrenewal of Mr. Simpson=s term contract. Pursuant to MISD=s nonrenewal policy listing possession of alcohol while in the scope of employment as a reason to not renew employment contracts, the Board unanimously decided not to renew Mr. Simpson=s term contract.

Mr. Simpson appealed the decision to the Commissioner of Education. The Commissioner affirmed the Board=s decision, finding that there was substantial evidence showing that Mr. Simpson was in the Acourse and scope of his employment while he was in possession of alcohol on November 15, 2001.@ Subsequently, the district court filed a judgment affirming the Commissioner=s decision finding that no error existed requiring reversal of the Commissioner=s decision. Mr. Simpson now appeals to this Court.

DISCUSSION

In a single issue, Mr. Simpson asserts that there was no substantial evidence to support the decision to not renew his contract. Mr. Simpson urges the Court to find that he was not working in the scope of his duties when he bought the beer, but rather that he was making a purely personal side trip to run errands. Mr. Simpson further contends that had this been a worker=s compensation case in which he had been injured while running these errands, MISD would have not considered his actions to be work related. As such, Mr. Simpson would have this Court find that the Commissioner=s decision was arbitrary and capricious.

STANDARD OF REVIEW

This Court reviews the Commissioner=s decision under the substantial evidence rule, reviewing only the evidence presented at the local hearing and any evidence taken by the Commissioner but does not take any additional evidence. Tex.Educ.Code Ann. ' 21.307(e) (Vernon 1996). The Court may not reverse the Commissioner=s decisions unless the decision was not supported by substantial evidence or unless the Commissioner=s conclusions of law are erroneous. Tex.Educ.Code Ann. ' 21.307 (f).

Under the substantial evidence rule, we must first consider whether looking at the evidence as a whole, reasonable minds could have reached the same conclusion as the Commissioner. Farris v. Fort Bend Independent School District, 27 S.W.3d 307, 311 (Tex.App.--Houston [1st Dist.] 2000, no pet.), citing Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). We may not substitute our judgment for that of the Commissioner and may consider only the record on which the Commissioner reached his decision. Farris, 27 S.W.3d at 311, citing Texas Health Facilities Comm=n v. Charter Medical - Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984).

The party appealing has the burden of demonstrating a lack of substantial evidence. Farris, 27 S.W.3d at 311. Substantial evidence means more than a mere scintilla; thus, the evidence may preponderate against the agency=s decision, yet still amount to substantial evidence. Miller v. Houston Independent School District, 51 S.W.3d 676, 680 (Tex.App.-- Houston [1st Dist.] 2001, pet. denied), citing Mireles v. Texas Dep=t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency. Texas Health Facilities Commission, 665 S.W.2d at 452. The substantial evidence standard of review is limited, intentionally giving great deference to the particular agency in its field of expertise and requiring Aonly more than a mere scintilla,@ to support an agency=s determination. Nelson v. Weatherwax, 59 S.W.3d 340, 343 (Tex.App.--Fort Worth 2001, pet. denied). Whether a substantial evidence exists to support an agency=s determination is a question of law. Miller, 51 S.W.3d at 680.

The facts are not disputed in this case. The evidence presented at the local hearing contains the testimony of Mr. Cooper, Mr. Simpson, and Mr. Dearagao, all of which speak to the issue of whether Mr. Simpson was within the scope of his employment when he purchased the beer. Mr. Cooper=s testimony indicated at the time Mr. Simpson was reprimanded, Mr. Simpson never attempted to deny that he had purchased the beer. As evidenced by Mr. Cooper=s testimony and the copy of the letter reprimanding Mr. Simpson introduced at the local hearing, Mr. Simpson further stated to Mr. Cooper that he knew better and that purchasing the beer Awas a dumb thing to do.@ Mr. Simpson himself testified that it was within the scope of his duties to attend the soccer clinic. Mr. Dearagao testified that for the day in question, it was reasonable to assume that he was acting within the scope of his employment at the time the school day began. n reviewing the testimony, we find that reasonable minds could have found that Mr. Simpson was within the scope of his duties when he purchased the beer and that such an action supported a decision not to renew his term contract. The evidence presented at the local hearing is more than a mere scintilla of evidence. As such, Mr. Simpson has failed to meet his burden in this case.

Having reviewed the record, we find that the Commissioner=s decision to uphold the Board=s nonrenewal of Mr. Simpson=s contract is supported by substantial evidence. We therefore find that the district court did not err in affirming the Commissioner=s decision.

Accordingly, we affirm the trial court=s judgment.

February 19, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.