Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 4:56:20 PM JEFFREY D. KYLE Clerk ____________________________________________________ THIRD COURT OF APPEALS 4/7/2015 4:56:20 PM JEFFREY D. KYLE 03-14-00629-CV AUSTIN, TEXAS *1 ACCEPTED [4797510] CLERK NO. 03-14-00629-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN ______________________________________________________________
LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and MICHAEL L. WILLIAMS, Commissioner of Education, State of Texas
Appellants v.
JORGE VAZQUEZ, Appellee _______________________________________________________________
On Appeal from the 419th Judicial District Court, Travis County, Texas
Trial Court No. D-1-GN-13-003654 Honorable Scott Jenkins, Judge Presiding __________________________________________________________________
REPLY BRIEF OF APPELLANT LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
WALSH, ANDERSON, GALLEGOS, GREEN & TREVIÑO,P.C. STACY T. CASTILLO State Bar No. 00796322 D. CRAIG WOOD State Bar No. 21888700 ELIZABETH G. NEALLY State Bar No. 14840400 100 N.E. Loop 410, #900 San Antonio, Texas 78216 Phone (210) 979-6633; Fax (210)979-7024 ATTORNEYS FOR LOS FRESNOS CISD APPELLANT LOS FRESNOS CISD REQUESTS ORAL ARGUMENT
TABLE OF CONTENTS TABLE OF CONTENTS............................................................................................i
INDEX OF AUTHORITIES11
ARGUMENT .............................................................................................................3
A. Not Administrative Activism...........................................................................3
B. No Right to Due Process in Non-Renewal Hearings .....................................5
C. Sister State Courts Agree.................................................................................6
D. Even if Due Process was Required, Vasquez Received Due Process.............7
CONCLUSION AND PRAYER ..............................................................................8
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE.......................................................................11
i *3 INDEX OF AUTHORITIES Cases
Cleveland Bd. of Educ. Loudermill , 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985)......................................................................................................................7
Demming v. Housing & Redevelopment Auth ., 66 F.3d 950 (8 th Cir.1995) ..............7
Dews v. Tyler ISD, Docket No. 053-RI-0508 (Comm'r Educ. 2008)....................5, 6
Dodd v. Men o, 870 S.W.2d 4 (Tex.1994)..................................................................4
Dove v. Allen County Educational Service Center Governing Board , 118 Ohio
App.3d 102, 691 N.E.2d 1127 (1997) ....................................................................6
Flath v. Garrison Public School District, No. 51, 82 F.3d 244 (8 th Cir. 1996).........7
S atterfield v. Edenton-Chowan Board of Education , 530 F.2d 567 (1975) ..............7
Spring Indep. Sch. Dist. v. Dillon , 683 S.W.2d 832 (Tex.App.—Austin 1984, no
writ).........................................................................................................................5
Stratton v. Austin Indep. Sch. Dist. , 8 S.W.3d 26 (Tex. App. – Austin 1999, no
writ) ........................................................................................................................3, 5
TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432 (Tex. 2011) ..................4
Wilson v. Board of Education of Fort Worth Indep. Sch. Dist ., 511 S.W.2d 551,
(Tex. App. – Fort Worth, 1974, writ ref’d n.r.e ) ...................................................5
Statutes
E DUCATION C ODE , Section 7.002...............................................................................3
S TATE B OARD OF E DUCATION § 11.13(a) (b) .............................................................4
S TATE B OARD OF E DUCATION § 11.25 .......................................................................4
S TATE B OARD OF E DUCATION § 11.52(1)...................................................................4
T EX . E DUC . C ODE §21.204 (e);...................................................................................3
Texas Education Code Section 21.256(d)..................................................................6
ii *4 ____________________________________________________ NO. 03-14-00629-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _____________________________________________________________
LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and Michael L. WILLIAMS, Commissioner of Education, State of Texas
Appellants v.
Jorge VAZQUEZ, Appellee ___________________________________________________________
On Appeal from the 419 Judicial District Court, Travis County, Texas
Trial Court No. D-1-GN-13-003654 Honorable Scott Jenkins, Judge Presiding _____________________________________________________________
REPLY BRIEF OF APPELLANT LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
To the Honorable Justices of the Third Court of Appeals:
Appellant Los Fresnos Consolidated Independent School District (“Los
Fresnos CISD,” “LFCISD” or “the District,”) files its Reply Brief in this appeal.
The District points the Court to its initial Brief of Appellant for its Identity of the
Parties and Counsel, Statement of the Case, Statement on Oral Argument, Issues
Presented on Appeal, Statement of Facts, Summary of the Argument, and
Argument. This Reply Brief is to direct the Court’s attention to additional
authority supporting the Brief of Appellant. As set out below, this Court should
reverse the trial court’s order and affirm the Commissioner’s decision, upholding
Vazquez’ nonrenewal.
ARGUMENT A. Not Administrative Activism
In his Response Brief, Appellee, Jorge Vasquez, Jr., accuses the Commissioner of Education of exercising “administrative activism,” which
he describes as happening when an executive branch decides to make new
law, as opposed to simply administering the laws enacted by the legislature.
Appellee blindly states that the Commissioner changed existing law.
Clearly, however, the law relied on by District, the rulings of the
Commissioner in prior cases, was not law applied only to the instant case.
Certainly the Stratton case relied upon by the District in conducting its
nonrenewal hearing of Vasquez has been in existence for more than a
decade. See T EX . E DUC . C ODE §21.204 (e); Stratton v. Austin Indep. Sch.
Dist ., 8 S.W.3d 26, 29-30 (Tex. App. – Austin 1999, no writ).
In the Education Code, Section 7.002, the Commissioner of Education is charged with carrying out the educational functions specifically delegated
under 7.021, 7.055 or another provision of this code. T EX . E DUC . C ODE
§7.002. The Commissioner’s powers include carrying out the duties
imposed on the Commissioner by the board or the legislature.
The Commissioner of Education, is charged with having the following duties among others:
a. The general duty of executing the school laws and the rules and regulations of the State Board of Education (§ 11.25).
b. The power to interpret the rules and regulations of the State Board of Education, his opinions in that regard being “binding for
observance on all officers and teachers.” (§ 11.52(1)).
c. The performance of adjudicative functions, together with the State Board of Education, in deciding appeals from local school authorities
(§ 11.13(a), (b)).
Texas courts have held that the Commissioner of Education’s interpretation of provisions in the Education Code are to be upheld unless
the interpretation is “plainly erroneous or inconsistent with the language of
the statute, regulation, or rule.” See, TGS-NOPEC Geophysical Co. v.
Combs , 340 S.W.3d 432 (Tex. 2011).
Courts have held that when the Commissioner interprets statutes, his opinion merits serious consideration if it is reasonable and does not
contradict the plain language of the statute. Dodd v. Meno , 870 S.W.2d 4, 7
(Tex.1994); Spring Indep. Sch. Dist. v. Dillon , 683 S.W.2d 832, 841
(Tex.App.—Austin 1984, no writ).
B. No Right to Due Process in Non-renewal Hearings
Appellee wrongfully asserts that “the present case is the first instance, since
the Term Contract Nonrenewal Act was enacted in 1981 in which the
Commissioner has announced that hearsay can serve as substantial evidence.” The
cases relied on by the District in both the nonrenewal hearing as well as during the
trial and in Appellant’s brief clearly dispute this statement. Since at least 1999, in
Stratton v. Austin I.S.D ., courts have upheld that there is no right to due process
and therefore no right to the Rules of Evidence in a nonrenewal hearing. While
Stratton did not directly address the issue of hearsay, it did address the nonrenewal
hearing and the issues relating to Rules of Evidence, which includes rules
pertaining to hearsay. See , Stratton v. Austin Indep. Sch. Dist ., 8 S.W.3d 26, 29-30
(Tex. App. – Austin 1999, no writ) and Wilson v. Board of Education of Fort
Worth Indep. Sch. Dist ., 511 S.W.2d 551, 552 (Tex. App. – Fort Worth, 1974, writ
ref’d n.r.e ). Further, this is not a case of first impression, since the Commissioner
has been consistently holding that nonrenewal hearings are not bound by hearsay
since 2008. In Dews v. Tyler ISD , on appeal to the Commissioner, the petitioner
argued that the hearing exhibits were improperly admitted as evidence. See, Dews
v. Tyler ISD , Docket No. 053-R1-0508 (Comm’r Educ. 2008). The Commissioner
determined that if the case had been heard before a certified hearing examiner, then
the Texas Rules of Evidence would have applied to the hearing pursuant to Texas
Education Code Section 21.256(d). Id .
C. Sister State Courts Agree
A Court of Appeals in Ohio upheld a teacher’s non-renewal over her
objection that the School Board had considered hearsay evidence and had
considered an evaluation of her duties even though the evaluator was not present to
testify. Dove v. Allen County Educational Service Center Governing Board , 118
Ohio App.3d 102, 691 N.E.2d 1127 (1997). The Court of Appeals concluded that,
as in Texas, the Rules of Evidence were not meant to govern administrative
proceedings by a school board. 118 Ohio App.3d at 107; 691 N.E.2d at 1131. The
Court of Appeals noted, “Thus, the board was free to consider all the testimony
presented as long as “the discretion to consider hearsay evidence [was not]
exercised in an arbitrary manner.” Id. The Court of Appeals went on to note that
the teacher was free to present evidence and enter her own exhibits. Accordingly,
“she could have called the evaluators herself if she really wanted them there.” 118
Ohio App.3d at 108; 691 N.E.2d at 1131.
D. Even if Due Process was Required, Vasquez Received Due Process
A teacher in North Dakota appealed to the Eighth Circuit Court of Appeals
complaining that her nonrenewal was based upon hearsay evidence only and that
she was denied the opportunity to cross-examine witnesses. Flath v. Garrison
Public School District No. 51 , 82 F.3d 244 (8 th Cir. 1996). The Eighth Circuit
considered these complaints and rejected them. The Court held that, if any process
was due, it was satisfied. The Court noted:
“To satisfy pretermination due process, a public employee is entitled to
notice of the charges, an explanation of the evidence, and an opportunity to
be heard. Cleveland Bd. of Educ. Loudermill , 470 U.S. 532, 546, 105 S.Ct.
1487, 1495, 84 L.Ed.2d 494 (1985). Generally, something less than a formal
adversarial hearing is required. Demming v. Housing & Redevelopment
Auth ., 66 F.3d 950, 953 (8 th Cir.1995). Rather, the purpose of the
pretermination hearing is to ensure that “ ‘there are reasonable grounds to
believe that the charges against the employee are true and support the
proposed action.’ ” Id. (quoting Loudermill, 470 U.S. at 546, 105 S.Ct.
at 1495).”
The Eighth Circuit concluded the Teacher received notice of the
contemplated nonrenewal and an explanation of the charges against her. She had
an opportunity to respond to the charges at the nonrenewal hearing. She was thus
afforded all the process she was due. Id, at 247.
Likewise, the Fourth Circuit Court of Appeals concluded that the consideration of hearsay testimony in a hearing before a school board was not
sufficient to generate a federal claim of denial of due process. Satterfield v.
Edenton-Chowan Board of Education , 530 F.2d 567 (1975). The Fourth Court of
Appeals noted that, the fact that there were complaints earlier called to the
plaintiff’s attention would be evidence of dissatisfaction with his work as a teacher.
Id., at 575. The Court stated:
“Although hearsay reports . . . are inadmissible in a court of law, I certainly
do not hold that they are inadmissable in administrative hearings . . ., for
such hearings need not conform to the standards of judicial or quasi-judicial
trials, and flexibility and informality should often characterize them.
Moreover it is possible that even reports of unnamed observers may by
referring to a specific occasion allow the teacher an adequate opportunity to
explain her conduct on that occasion.”
Id.
CONCLUSION AND PRAYER This Court must reverse the trial court’s judgment and affirm the
Commissioner’s decision, upholding the nonrenewal decision.
WHEREFORE, PREMISES CONSIDERED, Appellant Los Fresnos
Consolidated Independent School District prays that this Court reverse the trial
court’s Order and affirm the Commissioner’s decision. Appellant requests that the
Court grant all such other and further relief, special or general, at law or in equity,
to which Appellant shows itself justly entitled.
Respectfully submitted, WALSH, ANDERSON, GALLEGOS, GREEN & TREVIÑO, P.C. STACY T. CASTILLO State Bar No. 00796322 D. CRAIG WOOD State Bar No. 21888700 ELIZABETH G. NEALLY State Bar No. 14840400 100 N.E. Loop 410, #900 San Antonio, Texas 78216 (210) 979-6633 (210)979-7024 (telecopier) /s/ D. Craig Wood D. CRAIG WOOD State Bar No. 21888700 ATTORNEYS FOR APPELLANT LOS FRESNOS CISD *13 CERTIFICATE OF SERVICE I hereby certify that on this 7 th day of April 2015, a true and correct copy of
the above and foregoing Appellant Los Fresnos Consolidated Independent School
district’s Reply Brief was electronically filed with the Clerk of the Court using
CM/ECF system, and notification of such filing will be electronically sent to:
Mark W. Robinett
Brim, Arnett, Robinett & Conners, P.C.
2525 Wallingwood Drive, Building 14
Austin, TX 78746
mrobinett@brimarnett.com
Jennifer Hopgood
Nichole Bunker-Henderson
Assistant Attorneys General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.Hopgood@texasattorneygeneral.gov
Nichole.Bunker-Henderson@texasattorneygeneral.gov
/s/ D. Craig Wood D. CRAIG WOOD *14 RULE 9.4 (i) Certification In compliance with Texas Rule of Appellate Procedure 9 . 4(i)(3), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4 (i)(1), is
1,270.
/s/ D. Craig Wood D. CRAIG WOOD