Dodd v. Meno

4 rebuttal, Inc., need example, on as for when the Aquamarine Operations, 701

Downer v. denied, (Tex.1985), testimony reasonably have 476 U.S. S.W.2d 238 cert. could (1986). 1159, 2279, Alvarado, L.Ed.2d 721 at anticipated.” 106 S.Ct. 90 been case, unlike the one before 916 n. 6. In that that Alcoa’s failure Bullocks contend today, no such circumstances existed. us designate experts in- to should foreclose testimony trial, ignor- their at troduction of Although the court considered trial experts the fact that the became neces- experts designated fact had been that sary only when Alcoa was faced with trial, prior Eaton to both the Bullocks and unanticipated change testimony prof- on showing good cause not rest Alcoa’s expert, Rule fered the Bullocks’ Laux. Accordingly, pass alone. we do not that fact 166b(2)(e) discovery good cause question sufficient on the whether identity, expected but also the substance opposing party’s solely can on an exist based testimony expert will witnesses who hold, based all of designation. We on testify Liberty at trial. Gee v. Mut. Fire Ins. us, acted the trial court facts before Co., (Tex.1989); 765 S.W.2d finding Alcoa discretion when within its (6)(b). 166b(2)(e), applies rule R.Crv.P. good showing cause for its burden of met equally this case. to each side in When testimony experts’ in rebuttal allowing the opinion concerning negligence Laux’s Alcoa’s unanticipated change in testi- a material and facts, changed to the review of additional due mony. of the court We reverse the duty supplement then had to the Bullocks judg- trial and affirm the court’s discovery responses ma- their to disclose the in favor of Alcoa. ment change. terial Tex.R.Civ.P. 166b(6)(a)(2); Corp. Exxon v. West Co.,

Gathering S.W.2d supplement party’s to dis

A failure change

covery in an disclose a material to may provide good

expert’s opinion cause for designate party’s

an failure to rebut adverse necessary only experts

tal who become unanticipated testimony. See counter the DODD, Petitioner, Doris Inc. & Group, AmSav v. American Sav. Ass’n, (Tex.App.— Loan denied). 1990, writ Dist.] Houston [14th MENO, R. Commissioner Lionel 166(h), example, Rule allows court Capacity, in His Official pretrial requiring parties to ex set a order Kirby, N. to William Successor expected change list of witnesses Wink-Loving Independent Dis- trial, excepts specifically at “rebut called trict, Respondent. necessity impeaching tal or witnesses D-3633. No. reasonably testimony cannot be antici whose trial.” pated before the time of Supreme of Texas. 166b(6)(b) Likewise, Rule Jan. 1994. experts parties supplement (emphasis add party expects “the to call.” Rehearing March Overruled ed). Co., Mfg. v. Farah Alvarado (Tex.1992), held the mere tactical we bring part plaintiff decision on the rebuttal rather than case

witness on failing good cause for

chief does not establish recognized, supplement discovery. We

though, may “there be circumstances ad- good cause can be shown for

[in]

mitting testimony of undisclosed witness

Independent School District under a contract expired at the end of the school 1987-88 16, 1988, year. By a letter dated March board of trustees of the school district noti- employ fied her of decision not to her for year. upcoming The letter did not offer any explanation for the decision. Further- more, request the board denied Dodd’s for healing on her nonrenewal. perfected appeal

Dodd to the Commis- sioner of who considered the case joint stipulation on a of facts and cross- summary judgment. for motions The Com- missioner concluded that Dodd was not a “teacher” under the and denied the TCNA affirmed, appeal. The district court as did appeals. the court of 857 S.W.2d 575. The TCNA for automatic renewal of a term teacher’s contract unless the school complies statutory pre- district with certain requisites. April preceding On or before term, the end of the the school give board must pro- written notice of the nonrenewal, posed including a statement of (c). 21.204(a), for reasons the action. Id. request by On days, the teacher within ten provide hearing. the board must Id. 21.- recently 205. This Court held that gives constitutionally TCNA teachers a pro- property employ- tected interest in continued ment. Grounds v. Tolar District, 856 S.W.2d 417 It is clear that the school district did not furnish procedural safeguards required by Robinett, Austin, Mark petitioner. W. for Thus, if TCNA. Dodd is entitled to the Jr., Morales, Austin, Knapp, Frank J. Dan protections, appeal statute’s her should have respondent. been allowed. protections apply The TCNA’s to an PHILLIPS, Justice, Chief delivered the “teacher,” employee who is a defined therein Court, joined by GONZALEZ, superintendent, principal, supervisor, as “a HECHT, CORNYN, ENOCH, Justices. teacher, counselor, or other full- question in this ease is whether a professional employee, except parapro- time school nurse ais “teacher” within the mean- personnel, fessional who is ing of the Term Contract Nonrenewal Act valid (TCNA), 21.201-.211, §§ Educ.Code thereby protections entitled to the conferred of the State Board of Edu- by Legis- that statute. We conclude that the however, cation, require that a school nurse lature did apply not intend the TCNA to “provisional hold either a certifi- school nurse nurses, and we therefore affirm the cate” issued the State Board of Education appeals. of the court of registration have “current with the Tex- Petitioner Doris Dodd was as a as State Board of Nurse Examiners.” Wink-Loving full-time school nurse Tex.Educ.Ageney, 1992).1 profession- To teachers and related Apr. receive rience indi- provisional school nurse will relevant to their work als which registration Thus, vidual must a current provisional schools. Examiners. the Texas State Board Nurse a bachelor’s de- Thus, all must Id. registration gree and with the Texas current registration Board of Nurse current with the Examiners, also Board Nurse but of Examiners, provision- all must have a not satisfactory completion of a course al nurse certificate. in and or examination federal comple- provisional satisfactory A certificate is a school nurse Texas constitutions and type teaching of certificate. in American histo- tion of six semester hours Tex.Educ.Agency, contrast, regulations ry. nursing re- Tex.Admin.Code 1992). 141.2(1) (2) (West Apr. § The and quire applicant graduated from an to have fact the State Board make that nursing program passed and accredited possible for a school to obtain certifi- Examination for National Council Licensure cate, however, requiring is the same as Registered purpose evident is Nurses. Their nurses to hold such a certificate. competence train- to ensure the medical and parties stipulated “[p]e- case this serving in the persons of those as nurses teaching permit titioner no or certifi- holds State. required by the cate and none was Wink- Furthermore, in the definition of “teacher” position Loving of School District 21.201(1) virtually identical to that section is school nurse.” subchapter in of the Education Code Dodd nevertheless claims that because sec- Practices, regarding Teachers’ Professional tion 141.249 of the State Board of Education superintendent, “a which defines a teacher as registration regulations allow her “current teacher, principal, supervisor, classroom Exam- with Texas State Board of Nurse counselor, employee professional or other certificate, as iners” to act an alternative to or is a valid certificate she within the definition of “teacher” falls teaching 13.- certificate.” Tex.Educ.Code 21.201(1). as set in Tex.Educ.Code forth 202(1). in It seems clear that “certificate” “teaching” phrase modifies Since the certificate issued 21.201(1), refers to a “permit” and not “certificate” Agency, since the the Central Education registration she that her with the claims subchapter penalty of Examiners is a certifi- authorized State Board Nurse meaning of certificate or is cate within “valid of the ethical code violations disagree. teaching or We “suspension or revocation of the member.” separate nurses from licensure of Hightower v. State Commis 13.211. See in 19 TexAd- the certification described 595, 598 sioner pur- min.Code ch. and serves different writ). If the (Tex.App. no described poses. All the certificates — Austin permit” phrase teaching “valid or Chapter prerequisites, academic entail harmoniously in both sec is to be construed types teacher certificates also most tions, nursing li apply to a then it cannot development require form therefore, cense, cannot school nurse teaching experience or in- other meaning of that be a “teacher” experience. purpose within sehool The clear expe- term in Tex.Educ.Code. background or level of ensure a certain per- Texas State Board of Nurse tration 1. Section 141.249 of the Tex.Admin.Code provisional completed school nurse mits issuance of a has course Examiners” and requirements indi- are that the certificate. may receive the certificate. Under examination degree, have a vidual have a bachelor's current (c), a cur- who has "[a]n individual subsection registration Examiners, with Texas State Board Nurse registration Nurse with Texas State Board of rent completed a or taken an course may district in a school Examiners on and Texas constitu- examination the federal provisional certifi- without a as a school nurse tions, completed six hours in and have semester Tex.Educ.Agency, 19 cate.” Tex.Admin.Code (b) history. this Under subsection American section, 1992). Apr. § 141.249 regis- who has current "[a]n individual teaching trict, duties with no Finally, this case review involves be- against the District Commis suit of an administrative decision of the filed recently re- Education. As noted employment sioner of we contract was cause her Moore, Appraisal any Tarrant District give her District did not and the newed (Tex.1993): “Construction its decision. Whether reasons for agency a statute administrative real is not the issue. The good policy or bad charged with its enforcement is entitled given has issue is whether consideration, the con long so serious re- procedural rights the same contra is reasonable and does not struction of reasons for non-renewal garding notice plain Al language dict of the statute.” contracts though recognize we statutes remedial majori- agree with the given teachers. the construed such TCNA are to be as Car- ty and with Chief Justice of this Court see, broadly, e.g., City Anto Burch v. San Aus- and Kidd of the Jones roll and Justices (Tex.1975), nio, we are 518 S.W.2d Appeals legislature that the tin to not inclined reverse the Commissioner’s give not, intentionally unintentionally, or where reasonable determination an area rights. It school would nurses possesses authority and ex he considerable to policy legislature public sound pertise. rights the grant the included in by relying counters Dodd on Tex.Educ. however, Nonrenewal Term Contract Act— 16.056(f), says “[e]ach Code decision to make. We should pot this is our person public of this the schools guise under the of inter- not re-write statutes assigned position ... who classi- state to a them, us preting as the dissent would have fied the Texas Com- under Public Education join do. I the and concur thus pensation according Plan must be to certified the of the Court. requirements the certification position for each rule established Justice, SPECTOR, joined by adopted the State Board of Education.” HIGHTOWER, DOGGETT, and positions A school nurse is one of the listed Justices, GAMMAGE, dissenting. Compensation Plan. id. 16.- See 056(d). However, 16.056(f) does not claiming Doris is not Dodd she independent require- create an job keep her entitled to as a school nurse. Rather, adopts ment. it the Board of twenty All she is that after more claims than Education’s determination of what certifica- years Wink-Loving Independent with the apply tion standards should to each classifi- District, she is entitled to know Hightower, cation. See at' why school reasons district is not renew Thus, merely statute admin- invokes the contract, ing her term to have a chance already discussed, rules istrative which do regard to be heard in to those reasons. require not as a Legislature Texas considered those interests school nurse. important so education ac that it The TCNA’s definition of a teacher draws protection. corded them constitutional See a line employees required between those Dist., Indep. Grounds v. Tolar Sch. hold a certificate and those who not. For are however, Today, S.W.2d 417 reasons, foregoing we conclude that 19 majority strips Doris Dodd of her constitu places tionally-protected rights, and allows in the latter category. nurses The court of arbitrarily districts refuse to renew holdings affirmed the correctly any school nurses’ contracts without notice trial court and the Commissioner that Dodd hearings at all. dissent. was entitled not protections invoke the the TCNA. result, In reaching majority sub- stantially language modifies the of the Term GONZALEZ, Justice, concurring. Contract Nonrenewal Dodd, long-time §§

Ms. school nurse with guarantees proce- 21.201-.211. This Act Wink-Loving safeguards protect School Dis- profes- dural certain course, together true; surely un- employees grouped legislature sional school and the — capricious as “teachers” —from it derstood this difference when Lingleville In nonrenewals. Act. Term Contract Nonrenewal Nonethe- Seifert (Tex. Dist., dep. statute, Sch. less, in drafting 1985). Act defines the term “teacher” any “professional extended em- protection to superintendent, principal, supervisor, as “a ployee required ... to hold a valid counselor, teacher, or other full- teaching permit.” Tex.Educ. certificate or professional parapro time employee, except Code personnel, fessional who is up- today’s opinion, majority With valid certificate or “teaching” and it rooted the word moved Educ.Code left, disjunctive three words to the over dispute, does Doris “or,” so that it now the term “certif- modifies employee” Dodd is a “full-time certainly icate.” The could Rather, purposes of the statute. it focus- “teaching cer- drafted statute to refer to requirements es on the other in section 21.- tificates,” This not to do so. chose 201(1), and is not “re- concludes Dodd legislative perfectly rational: decision was quired hold a valid certificate or em- recognizing that permit.” subject are ployed by a school district The Board of Education Agen- by the Central Education every registra- nurse a to hold current deliberately cy, the legislature extended tion with the Texas State Board of Nurse pro- protection to those other term-contract § 19 TexAdmin.Code Examiners. 141.249 fessionals, psychologists, and such as nurses 1, 1992). April registered To be with subject their are to certification within who Examiners, the of nurse must Board Nurse a professions.2 own by attested the seal of the a Board, verifying passed the a nurse approach The took a similar prescribed examination. Tex.Rev.Civ.Stat. it the Professional when Teachers’ (Vernon § Supp.1994). The art. 3 Ann. Act, §§ 13.201- Practices Tex.Educ.Code provisions is clear: a school effect of these Act, .218. like Term Contract Non- This the required hold a valid certificate. is Act, broadly to “teacher” renewal defines employee any “professional include who holds, however, nurs- majority that a or teach- required to hold valid certificate really a at all. conclusion, ing permit.” The ethical stan- majority of support this all govern the Act dards established under certification of teachers observes that educators,” “Texas 19 the licen- purposes” from Tex.Admin.Code “serves different 177.1,3 is, applicable to provisions include at This nurses. 6. sure of non-administrative, employees of certified concurring by Gonzalez 1. Justice dissent, According Asso- public to the the Texas schools. disingenuously this rather asserts that ciation, is that "re- bottom line majority, "[t]he would than the procedural protections guise interpreting did intend and enact under the write statutes category people. purposefully broad to cover a To be clear: would 870 S.W.2d at 7. them." protection to category intends extend its This Non- one of the Term Contract not rewrite word full-time, Petitioner, professional em- certified "valid certificate” to Act. I would read renewal working ployee a nurse for Wink- was exactly certificate. Justice that —a valid mean Loving contrast, District." Gonzalez, vote for a fifth opinion along with Phillips’ Jus- Chief Justice — Hecht, ;seem which the Corayn, encompass and Enoch—in tices majority would 3.These wording rearranges of the Act clear membership Association of entire Educators, to hold incorporat- is not non-profit, that a nurse and declares Professional art. improving edu- organization certificate. valid dedicated to ed Tex.Rev.Civ.Stat.Ann. Cf. (Vernon (requiring a nurse Supp.1994) through public opportunities cational certificate). this valid amicus curiae brief filed In an schools. always Court, Association states membership, "to included nurses curiae in an amicus view corroborated This Dodd] [Doris line exclude draw an Asso- Classroom Teachers the Texas brief filed most 30,- one great disservice would do ciation, composed organization of some Co., ey-Tegeler education.4 Ad- & (Tex.1971). Act, penalties ministrative under the howev- er, attach actually holding to those previously recognized This court has certificates. teacher’s See the Term Contract Nonrenewal Act was en- (authorizing “suspension or revoca- remedy procedural acted to a lack of safe- tion of the certificate of the mem- guards. Lingleville Indep. Sch. Seifert ber”); (allow- 19 181.1-.2 Dist., 692 S.W.2d at 462. As a remedial ing only complaints by against an “active statute, given the Act must be “the most teaching profes- certificated member of the comprehensive possi- and liberal construction sion,” defined to include one who holds a Antonio, City ble.” Burch v. San certificate”). Thus, “valid Texas teacher’s Discarding this while the Professional Practices Act does rule, longstanding majority defers to the conduct, general create standards of its en- Education Commissioner’s construction of forcement the Teachers’ Professional the statute. 870 S.W.2d at 7. Such defer- Practices implicates only Commission those Act; history ence overlooks the of the it was holding certificates; teacher’s like the Term the reluctance of the Commissioner and the Act, Contract Nonrenewal the Professional provide procedural school districts to safe- Practices Act entrusts other guards that necessitated enactment responsibility boards with ensuring place. statute in the first qualifications they certify. Doris Dodd’s contract with the Wink-Lov- majority reshapes regulatory ing Independent entitled, School District is by declaring framework scope that the “One-Year Teacher Term Contract.” The Professional Practices set out holds, however, that she is not enti- 13.201(1), beyond does not extend the reach protection expressly tled to the state law of its procedures, enforcement set out in one-year teacher term con- section 13.211. Presumably, the Teachers’ sanctioning tracts —thus her nonre- Professional Practices Commission will now newal, explanation, without after more than revamp its so that its twenty years object strongly of service. conduct, standards of 19 roughshod treatment of one whose role 177.1, will have the scope same narrow is vital to education. I would reverse provisions, enforcement 19 TexAd- of the court of 181.1-.2. This will have the ef- min.Code provide hearing Doris Dodd the to which she exempting fect of certain is entitled. Texas schools—such as nurses and school psychologists the Code of Ethics es- —from tablished for all Texas educators.

(cid:127) Having rewritten the definition of “teach

er” in the Teachers’ Professional Practices then makes the additional

leap extending the same definition to the

Term Contract major Nonrenewal Act. The

ity explains why never these two statutes— years apart, wholly ten different

purposes identically; be construed or —must dinarily, the “dominant consideration in con

struing purpose a statute” is “the for Demps

the statute was enacted.” Flowers v. important (d)(5) discrimination, coercion, professionals employed by (prohibiting a school district.” harassment), (e)(3) (prohibiting disclosure of students). concerning confidential information See, 177.1(c)(2) e.g., § (requiring "mental health, stamina, physical prudence”), and social

Case Details

Case Name: Dodd v. Meno

Court Name: Texas Supreme Court

Date Published: Mar 9, 1994

Citation: 870 S.W.2d 4

Docket Number: D-3633

Court Abbreviation: Tex.