Ysleta Independent School District v. Lionel R. Meno, Commissioner of Education, and Texas Education Agency--Appeal from 261st District Court of Travis County

Ysleta TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REMAND
NO. 03-94-00381-CV
Ysleta Independent School District, Appellant
v.
Lionel R. Meno, Commissioner of Education,
and Texas Education Agency, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 93-01195, HONORABLE JERRY DELLANA, JUDGE PRESIDING

This appeal requires us to determine the standard that the Commissioner of Education ("the Commissioner") should employ in hearing appeals under former Education Code section 13.115, which provides for Commissioner review of local school board decisions to discharge a continuing-contract teacher during the school year. See Act of May 20, 1971, 62nd Leg., R.S., ch. 405, 2, 1971 Tex. Gen. Laws 1449, 1478 (Tex. Educ. Code Ann. 13.115, since repealed and recodified at Tex. Educ. Code Ann. 21.301 (West 1996)). We hold that appeals from these local decisions should be conducted under the "substantial-evidence-de-novo" standard, and remand this cause to the Commissioner for review under that standard.

 
FACTUAL AND PROCEDURAL BACKGROUND

Victor Aguilar was employed as a middle-school teacher under a continuing contract with the Ysleta Independent School District ("the District") during the 1989-90 school year. During that year, two female students reported incidents where Aguilar improperly touched them. One student, an eighth grader, alleged that Aguilar hugged and then kissed her in an empty room. Another student claimed that Aguilar grabbed her buttocks while she was picking up some papers she dropped on the floor. The District superintendent determined that these actions constituted immoral conduct, and accordingly recommended to the Board of Trustees that Aguilar's employment be terminated. See 1971 Tex. Gen. Laws 1449, 1476 (formerly Tex. Educ. Code Ann. 13.109(1), since repealed and recodified at Tex. Educ. Code Ann. 21.156 (West 1996)). Aguilar challenged these accusations at a hearing before the Board. See 1971 Tex. Gen. Laws 1449, 1477 (formerly Tex. Educ. Code Ann. 113.112, since repealed and recodified at Tex. Educ. Code Ann. 21.159 (West 1996)). After hearing evidence and arguments of counsel, the Board entered findings of fact and conclusions of law ordering Aguilar's discharge.

Aguilar appealed this decision to the Commissioner of Education, claiming that there was insufficient evidence to show that he committed the acts as alleged. See 1971 Tex. Gen. Laws 1449, 1478 (formerly Tex. Educ. Code section 13.115(a), since repealed and recodified at Tex. Educ. Code 21.301 (West 1996)). A hearing was held in May 1991, at which a class schedule was introduced as evidence; the only other evidence before the hearing officer was the record of the proceedings before the Board. The Commissioner determined that the students' testimony before the Board lacked credibility and should be given little weight. Based largely on this determination, the Commissioner concluded that the District had not presented sufficient evidence to support the allegations of immoral conduct. The Commissioner accordingly ordered that the District reinstate Aguilar.

The District sought review of the Commissioner's action in district court, claiming that the Commissioner exceeded his authority and acted arbitrarily by substituting his own judgment for that of the local board. See Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, I-D5, 1984 Tex. Gen. Laws 117, 128 (formerly Tex. Educ. Code Ann. 13.115(c), since repealed and recodified at Tex. Educ. Code Ann. 21.307 (West 1996)). In a related point, the District claimed that the Commissioner's decision was based on unlawful procedure, because he erroneously conducted a de novo review of the Board's decision. The district court affirmed the decision of the Commissioner.

On appeal to this Court, the District challenged the Commissioner's decision on the same grounds. We concluded that the agency record was not properly before us, because it was not forwarded to this Court as part of a statement of facts. See Ysleta Indep. Sch. Dist. v. Meno, 909 S.W.2d 544, 546 (Tex. App.--Austin 1995), reversed, 916 S.W.2d 961, 962 (Tex. 1996). We held that the District could not show error in the absence of this record, and accordingly affirmed the trial court's judgment. Id. at 547. The Texas Supreme Court has since held that an appellant can bring an administrative record in an appeal as part of a transcript provided that some documentation indicates that the district court admitted the agency record as an exhibit. Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d 773, 776 (Tex. 1996). Because a district-court order reflects that the agency record was admitted as part of the record in this case, the agency record is properly before us. We therefore turn to the merits of the District's claims.

 
DISCUSSION AND HOLDINGS

The District contends in its first two points of error that the district court erred in affirming the Commissioner's decision because the Commissioner substituted his judgment as to the weight and credibility of the evidence for that of the Board. Specifically, the District claims that the Commissioner exceeded his authority by disregarding the proceedings before the Board and conducting a de novo review of Aguilar's appeal. The District asserts that the Commissioner should have instead determined the appeal under the "substantial-evidence-de-novo" standard of review. The Commissioner responds that he properly employed a pure de novo standard of review in deciding the appeal.

Under a pure trial de novo review, the decision of the lower agency or board is automatically vacated upon the taking of an appeal. See Big Spring Firemen's Relief & Retirement Fund v. Firemen's Pension Comm'r, 808 S.W.2d 608, 612 (Tex. App.--Austin 1991, no writ). This type of review is not an appeal at all, but is a new proceeding in which the reviewing tribunal substitutes its discretion and judgment for that of the lower body. See Central Educ. Agency v. Upshur County Comm'rs Court, 731 S.W.2d 559, 561 (Tex. 1987). Under the Commissioner's view, the Commissioner would properly be making the termination decision anew rather than reviewing the decision of the local board. See id.

Under a substantial-evidence-de-novo review, the reviewing tribunal conducts an evidentiary hearing to determine "`whether at the time the questioned order was entered there then existed sufficient facts to justify the agency's order.'" Big Spring, 808 S.W.2d at 612 (quoting Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)). The reviewing tribunal determines as a question of law whether the findings of the agency or board are lawful and supported by substantial evidence. See Firemen's & Policemen's Civ. Serv. v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984); see also Gilder v. Meno, No. 3-95-080-CV, slip op. at 4 (Tex. App.--Austin, June 26, 1996, no writ h.) (Jones, J. dissenting). Thus, the substantial-evidence-de-novo proceeding is truly an "appeal," and the reviewing tribunal may not substitute its judgment for that of the agency on controverted issues of fact. Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S. 1080 (1989); Brinkmeyer, 662 S.W.2d at 956. "The decision of the fact-finding body has a presumption of validity, and the party seeking to set aside that body's decision has the burden of showing that at the time of the original proceeding substantial evidence did not exist to support the previous decision." Gilder, slip op. at 4 (Jones, J. dissenting).

The Commissioner contends that former Education Code section 11.13(a), which provides generally for appeal to the Commissioner from local board decisions, authorizes a pure de novo review in teacher termination cases. That statute reads in relevant part:

 

[A]ny person aggrieved by the school laws of Texas or by actions or decisions of any board of trustees or board of education may appeal in writing to the commissioner of education, who, after due notice to the parties interested, shall hold a hearing and render a decision . . . .

 

Act of August 21, 1986, 2nd C.S., ch. 4, 3, 1986 Tex. Gen. Laws 6, 11 (formerly Tex. Educ. Code Ann. 11.13(a), since repealed and recodified at Tex. Educ. Code 7.057 (West 1996)). The supreme court has determined that former section 11.13(a) does not specify what standard of review shall govern appeals from the local level to the Commissioner. Upshur, 731 at 561; see also Gilder, slip op. at 5. We therefore must consider other governing statutes to determine the proper standard of review in this case.

Former Education Code section 13.115 specifically provides for appeals to the Commissioner from local Board decisions to discharge a teacher during the school year. (1) See 1971 Tex. Gen. Laws 1449, 1478 (formerly Tex. Educ. Code section 13.115(a), since repealed and recodified at Tex. Educ. Code 21.301 (West 1996)). That statute provides:

 

If the board of trustees shall order the teacher discharged during the school year under Section 13.109 of the code, the teacher shall have the right to appeal such an action to the commissioner of education, for review by him . . . .

 

Id. Like section 11.13(a), this statute fails to specify the standard of review that the Commissioner should employ in reviewing these local board decisions. However, section 13.115 shares one critical, elucidating feature with section 11.13(a): it authorizes the Commissioner to hear appeals from teachers discharged by the local board. "Agencies may only exercise those powers granted by statute, together with those necessarily implied . . . ." City of Sherman v. Public Utility Comm'n, 643 S.W.2d 681, 686 (Tex. 1983). As discussed above, a true de novo review is not an "appeal" but is a new proceeding. See Upshur, 731 S.W.2d at 561. We find nothing in the relevant statutes granting the Commissioner the power to substitute its discretion and judgment for that of the local board. To the contrary, former Education Code section 13.218 acknowledges "the right of any duly elected board of trustees of any independent school district to hire or dismiss any teacher" and to "establish[] any standard of conduct to be expected of any teacher." 1971 Tex. Gen. Laws 1449, 1482 (formerly Tex. Educ. Code section 13.218, since repealed). Allowing for de novo review of these local board decisions not only lacks any basis in statutory authority, but also nullifies the decision-making power of the board explicitly recognized in section 13.218. See City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995); Borden, Inc. v. Sharp, 888 S.W.2d 614, 620 (Tex. App.--Austin 1994, writ denied).

If the legislature intends that the Commissioner should have authority to actually decide teacher discharge questions, it must say so. See Upshur, 731 S.W.2d at 561. The legislature has provided no indication that the Commissioner is authorized to substitute his judgment for that of the local board, to whom the authority to make teacher discharge decisions is specifically granted. We accordingly hold that in deciding appeals from local board decisions to discharge a teacher under former section 13.109, the Commissioner should conduct a substantial-evidence-de-novo review to determine whether there was fraud, bad faith, or an abuse of discretion in the decision of the board of trustees and whether their decision is supported by substantial evidence. See id. at 562.

 
CONCLUSION

By re-determining the credibility of the witnesses and the weight that should be given their testimony in this case, the Commissioner exceeded the authority granted him by statute. We therefore sustain the District's first two points of error, reverse the judgment of the district court, and remand the cause to the Commissioner for review of the board's decision under the substantial-evidence-de-novo standard.

 

Bea Ann Smith, Justice

Before Justices Powers, Kidd and B. A. Smith

Reversed and Remanded

Filed: July 31, 1996

Publish

1. Other than former sections 11.13(a) and 13.115, no statute in the Education Code addresses the procedures for appealing local board termination decisions to the Commissioner of Education.

g statutes to determine the proper standard of review in this case.

Former Education Code section 13.115 specifically provides for appeals to the Commissioner from local Board decisions to discharge a teacher during the school year. (1) See 1971 Tex. Gen. Laws 1449, 1478 (formerly Tex. Educ. Code section 13.115(a), since repealed and recodified at Tex. Educ. Code 21.301 (West 1996)). That statute provides:

 

If the board of trustees shall order the teacher discharged during the school year under Section 13.109 of the code, the teacher shall have the right to appeal such an action to the commissioner of education, for review by him . . . .

 

Id. Like section 11.13(a), this statute fails to specify the standard of review that the Commissioner should employ in reviewing these local board decisions. However, section 13.115 shares one critical, elucidating feature with section 11.13(a): it authorizes the Commissioner to hear appeals from teachers discharged by the local board. "Agencies may only exercise those powers granted by statute, together with those necessarily implied . . . ." City of Sherman v. Public Utility Comm'n, 643 S.W.2d 681, 686 (Tex. 1983). As discussed above, a true de novo review is not an "appeal" but is a new proceeding. See Upshur, 731 S.W.2d at 561. We find nothing in the relevant statutes granting the Commissioner the power to substitute its discretion and judgment for that of the local board. To the contrary, former Education Code section 13.218 acknowledges "the right of any duly elected board of trustees of any independent school district to hire or dismiss any teacher" and to "establish[] any standard of conduct to be expected of any teacher." 1971 Tex. Gen. Laws 1449, 1482 (formerly Tex. Educ. Code section 13.218, since repealed). Allowing for de novo review of these local board decisions not only lacks any basis in statutory authority, but also nullifies the decision-making power of the board explicitly recognized in section 13.218. See City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995); Borden, Inc. v. Sharp, 888 S.W.2d 614, 620 (Tex. App.--Austin 1994, writ denied).

If the legislature intends that the Commissioner should have authority to actually decide teacher discharge questions, it must say so. See Upshur, 731 S.W.2d at 561. The legislature has provided no indication that the Commissioner is authorized to substitute his judgment for that of the local board, to whom the authority to make teacher discharge decisions is specifically granted. We accordingly hold that in deciding appeals from local board decisions to discharge a teacher under former section 13.109, the Commissioner should conduct a substantial-evidence-de-novo review to determine whether there was fraud, bad faith, or an abuse of discretion in the decision of the board of trustees and whether their decision is supported by substantial evidence. See id. at 562.