OPINION
This case stems from the Texas Workforce Commission’s award of unemployment benefits to several former members of the Harris County Appraisal Review Board. Appellant Texas Workforce Commission challenges the trial court’s orders denying the Commission’s motion for summary judgment and granting summary judgment in favor of appellee Harris County Appraisal District (HCAD). The
We hold that the Board members do not fall within .an exception for services rendered as a member of the judiciary and that substantial evidence supports the Commission’s decisions that the Board members received wages from HCAD for employment. We therefore reverse the trial court’s summary judgment and render judgment in the Commission’s favor. Because we do so, we need not address whether the trial court granted more relief than requested.in its order setting aside the Commission’s unemployment decisions.
BACKGROUND
The Harris County Appraisal Review Board was created by the Legislature to provide, among other things, an administrative remedy for property owners who wish to protest appraisals by HCAD. E.g., Tex. Tax Code Ann. § 41.01 (West 2015). Board members hear and determine property tax disputes.
Each of the former Board members in this case named HCAD as a former employer when filing a claim for unemployment benefits.
In particular, the Commission’s Appeal Tribunal found the following facts regarding the relationship between HCAD and the Board members:
The HCAD does a background check on prospective [Board] appointees to assist the' [Administrative] Distinct Judge in his appointment of individuals to the [Board]. From the pool of [Board] members appointed by the District Judge, the Board of Directors of the HCAD designates a Chairman, who controls assignment of [Board] members as needed to three-member panels for hearing property owner protests.
The SCAD pays for the mandatory training of [Board] members for their job duties and provides space and clerical support for [Board] activities, which ‘ are conducted on HCAD premises. The HCAD mandates úse of its timekeeping*847 system by [Board] members and pays [Board] members from the HCAD budget at a rate set by the HCAD. The HCAD withholds money from [Board] member paychecks and provides a W-2 form to [Board] members for tax purposes.
[Board] members can resign their appointment at any time without economic penalty. [Board] members are precluded from pursuing outside activities that would conflict with their [Board] duties.
Based on these findings, the Appeal Tribunal concluded that “[t]he relationship between the HCAD and the [Board] members is that of Employer/Employee because the HCAD exercises extensive control and direction over the work done by the ARB members.” The Tribunal then reached the following conclusions regarding “the manner in which the control is exercised”:
• HCAD performs background checks on prospective [Board] members.
• HCAD designates the Director of the [Board], who controls assignments for [Board] members,
• HCAD pays [Board] members using the HCAD timekeeping system.
• HCAD pays [Board] members from the HCAD budget at a rate set by the HCAD.
• HCAD withholds money from [Board] paychecks.
• HCAD issues W-2 form to [Board] members.
• HCAD pays for the training of [Board] members.
• HCAD provides clerical support and equipment for use by [Board] members.
• HCAD and [Board] members have a continuing relationship. .
The Commission affirmed the Appeal Tribunal and adopted these findings and conclusions.
After exhausting its administrative remedies,' HCAD filed lawsuits against each of the former Board members seeking judicial review of the Commission’s decisions.
The trial court granted HCAD’s motion and denied the Commission’s motion. In its order denying the Commission’s motion, the trial court -wrote that it “sets aside” the Commission’s unemployment decisions awarding benefits to the former Board members. The Commission filed a motion for new trial. After a hearing, the trial court denied the motion. The Commission challenges these rulings in this appeal.
Analysis
The Commission presents three issues on appeal. In its first issue, the Commission asserts that the trial court erred in treating the question whether Board members were employees of HCAD as disposi-tive of all issues and thus setting aside in their entirety the Commission’s decisions
The Commission also argues in its second and.third issues, that the .trial court erred in granting HCAD’s motion for sum- . mary judgment and denying the Commission’s motion because substantial evidence supports the Commission’s unemployment decisions. Because we agree that the Commission was, entitled to summary judgment, we need not address whether the trial court granted more relief than requested in its order denying the. Commission’s motion for summary judgment. See Tex. R. App. P. 47.1.
I. Standard of review
Courts review decisions of the Commission regarding unemployment benefits de novo to determine whether there is “substantial evidence”. ⅛ support the decisions. See Tex. Labor Code Ann. § 212.202 (West 2015); , McCrory v. Henderson,
On controverted issues of fact, we may not substitute our judgment for that of the Commission. Tex. Alcoholic Beverage Comm’n v. Cabanas,
Because this case comes to us on summary judgment, we determine de novo whether the summary judgment evidence established as a matter of law that substantial evidence did (or did not) support the Commission’s' decision. Blanchard v. Brazos Forest Prod., L.P.,
II. Applicable law
Section 207.004 of the Texas Labor Code entitles an individual to benefit wage credits for all wages the individual received for employment. Tex. Labor Code Ann.
a service performed by an individual for wages or under an express or implied contract of hire, unless it is shown to the satisfaction of the commission that the individual’s performance of the service has been and will continue to be free . from control or direction under the contract and in fact.
Tex. Labor Code Ann. § 201.041 (West 2015). The statute creates a presumption of employment if the individual receives wages in exchange for a performed service, and the burden then shifts to the remunerating party to establish that the’ worker’s performance of the service is nevertheless free from the remunerating parr ty’s control or direction under the contract and in fact. Id.; see Merchant v. State,
III. Substantial evidence supports the Commission’s decisions awarding unemployment benefits to these former Board members.
The Commission’s summary judgment evidence includes wage detail inquiries demonstrating that HCAD paid .the former Board members for their services.
Because HCAD paid the Board members for their service on the Board, a presumption of employment arose. See Tex. Labor Code Ann.-§ 201.041. To rebut the presumption, HCAD had to establish either that the Board members were exempt from receiving unemployment benefits under the law or that despite compensating Board members for their services, the Board members nevertheless were free from HCAD’s control or direction, both contractually and in fact. ' Id.
In its motion for summary judgment in the trial court, and again on appeal, HCAD contends that the former Board members are ineligible for unemployment benefits because (1) they are members of the judiciary, and (2). certain provisions of the Texas Tax Gode prevent-Board members from being its employees. We address each argument in turn.-.
A. Board members are not members of the judiciary. -
We begin with HCAD’s assertion' that Board members are statutorily ineligible to receive benefit wage credits for their service because they qualify as members of the judiciary.
service in the’employ of a political subdivision or of an instrumentality of a polit*850 ical subdivision that is-wholly owned by one or more political subdivisions:
(A) as an elected official;
(B) as a member' of a legislative body;
(C) as a member of the judiciary;
(D) as a temporary employee in case of ... emergency;
(E) in a position that is designated under law as a major nontenured policy-making or advisory position ...; or
(F) as an election official or worker ... [receiving] less than $1,000 [per year].
Tex. Lab. Code Ann, § 201.063(a)(1) (West 2015).
The first three exemptions listed in the statute — elected officials, members of a legislative body, and members of the judiciary — apply based on the position a person occupies in our structure of divided government, while the latter three exemptions apply based on a particular function the person performs. So understood, exception (C) is directed to members of the judicial branch of a political subdivision or instrumentality. We conclude that this exception does not apply to members of an appraisal review board because they are participants in an administrative review process, not members of the judicial branch. See Barshop v. Medina County Underground Water Conserv. Dist.,
As both the Supreme Court of Texas and our Court have explained, an appraisal review board provides an “administrative review process” that is “intended to resolve the majority of tax protests ..., thereby relieving the burden on the court system.” Webb County Appraisal Dist. v. New Laredo Hotel, Inc.,
In arguing that Board members are members of the judiciary, HCAD relies primarily on our opinion in Sledd v. Garrett,
We conclude that Sledd does not override the decisions characterizing an appraisal review board’s role as administrative rather than judicial. The entitlement of board members to judicial immunity because they perform quasi-judicial functions as part of an administrative review process does not support HCAD’s contention that board members are members of the judiciary for the purposes of the Texas Unemployment Compensation Act. Our
B. The Tax Code does not negate evidence that these Board members received wages from HCAD for employment.
HCAD next argues that an employment relationship. does not exist because certain provisions in the Tax Code prevent it from exercising, the necessary level of control over Board members. As noted above, HCAD has the- burden to show that the Board members performed fheir services free from HCAD’s control or direction both under, the contract and in fact. Tex. Labor Code Ann. § 201.041. To obtain summary judgment and defeat the Commission’s cross-motion, HCAD had to establish as a matter of law that substantial evidence does not support the Commission’s conclusion that HCAD failed to carry this burden. Blanchard,
The Commission uses a multi-factor test derived from the common law to determine whether an individual is in an employment relationship or is instead an independent contractor. ■ See 40 Tex. Admin.- Code § 821.5 (2015) (Tex. Workforce Comm’n, Employment Status; Employee or Independent Contractor), A worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as- to the details of when, where, and how the work is doné. Id. Control need not actually -be exercised, however; if the service recipient has the right to control, employment may be shown. Id.
The factors that indicate employment are: (1) whether the worker receives instructions about when, where, and how the work is to be performed; (2) whether the worker receives training by a more experienced worker or whether the worker is required to attend meetings or take training courses; (3) whether the worker’s services are integrated, as the services of an employee are usually .merged into the remunerating entity’s overall operation; the entity’s success depends- on those workers’ services; (4) whether the worker renders services personally, as employees do not hire their own substitutes or delegate work to them; (5) -whether - hiring, supervising, and paying helpers is done by the entity; (6) whether there is a continuing relationship, either month after month or year after year; (7) whether the entity sets hours of work, either during hours and days or “on call”; (8) whether working full time is required; (9) whether the entity has a right to mandate the location where services are performed;. (10) whether the order or sequence of services are set by the entity; (11) whether submission of oral or written reports is required; (12) whether payment is by the hour, week, or month; (13) whether the entity pays business and travel expenses; (14) whether
HCAD cites several Tax Code provisions to support its argument that Board members have no employment relationship with HCAD.
We find no indication in the summary judgment record that HCAD cited any of these Tax Code provisions before the Appeal Tribunal or the Commission, much less argued that the provisions precluded HCAD from exercising control sufficient to make the Board members employees.
The summary judgment record does not include a complete record of the administrative proceedings. The record does show, however, that the Appeal Tribunal and the Commission considered whether the relationship between HCAD and the Board members was that of employer/employee based on the control and direction HCAD exercised over the work done by Board members. Although we do not know the specific arguments presented by HCAD in the administrative forum, nothing in our record reflects that the scope of HCAD’s arguments regarding control and
We also conclude, however, that these arguments do not carry HCAD’s burden to show that the Commission’s decisions were unsupported" by substantial evidence. The Tax Code provisions on which HCAD relies do not directly address the question whether members of the appraisal review board are in an appraisal district’s employment for purposes of the Labor Code — a question that must be'answered using the twenty-factor test.
Moreover, HCAD cannot carry its burden simply by citing Tax Code provisions indicating freedom from control or direction oil some factors. We acknowledge, for example, that receiving some direction from the Board chairman rather than HCAD weighs against treating Board members as employees under factor one, and that a lack of control over training curriculum weighs against employment under factor two.
But we must apply the deferential “substantial evidence” standard of review discussed above. Reviewing the entire record under that standard, we hold that there is also far more than a scintilla of evidence supporting the Commission’s decisions. This evidence, which includes the Appeal Tribunal’s unchallenged findings and conclusions quoted in the background section above,. shows that, several factors weigh in favor of the decisions that these former Board members were in HCAD’s employment rather than ■ serving as independent contractors.
Regarding factors one, seven, nine, ten, and eleven, HCAD designates the Board’s chairman, who assigns Board members to three-member panels to conduct hearings. Board members receive instruction about which matters to hear, when and where hearings are to be held, .and the procedures to follow in conducting hearings and issuing written decisions.
Turning to factors five and fourteen, HCAD provided clerical support, facilities, and equipment for use by the Board members. Regarding factor six, the Board members had a continuing relationship with HCAD. Factor twelve likewise weighs in favor of employment, as HCAD required the Board members to use its timekeeping system, paid the Board members either by the hour or a flat rate for days in which the member worked more than eight hours, withheld money from their paychecks, and issued them W-2 forms reporting wages paid to employees. Factors fifteen and sixteen indicate that the Board members are not independent contractors because they have no investment in the Board or HCAD and realize no profits or losses. As to factor seventeen, Board members are precluded from outside activities that would conflict with their Board duties. Factor twenty is also present because Board members may resign at any time without facing liability for leaving their post.
Together, the evidence regarding these factors provides more than a scintilla of evidence that these former Board members were subject to HCAD’s control or direction. See Garza,
.Finally, we address HCAD’s argument that section 6.412(c) of the Tax Code prohibits Board members from being its employees. Although the record does. not show that HCAD cited section 6.412(c) in the administrative process, we conclude HCAD exhausted., its remedies for the same reasons discussed above with respect to the other Tax Code provisions. Section 6.412(c) does not alter our analysis, however. That section — entitled “Restrictions on Eligibility of Board Members” — provides as follows:
A person is ineligible to serve on the appraisal review board if the person is a member of the board, of. directors, an officer, ,or employee of the appraisal district, an employee of the comptroller, or a member of the governing body, officer, or employee of a taxing unit.
Tex. Tax Code Ann. § 6.412(c).
HCAD argues that the Tax Code’s prohibition on board service by “employee[s] of the appraisal district” means that the wages HCAD paid these Board members cannot have been “for employment” as required to obtain unemployment benefits under the Labor Code. See Tex. Labor Code Ann. § 207.004. We disagree because section 6.412(c) of the Tax Code does not address the question at issue
It would be absurd to consider service on an appraisal review board itself — if sufficiently under the direction or control of an appraisal district — as disqualifying a person from continuing to serve on that board. Yet that is precisely the consequence of HCAD’s suggested construction of section 6.412(c).
In sum, we conclude that HCAD did not satisfy its burden of proving as a matter of law that the Board members’. services were excluded from qualifying as employment or that the Board members were sufficiently free from its control or direction to rebut the statutory presumption of employment. The trial court therefore erred in granting HCAD’s motion for summary judgment. Because the summary judgment evidence establishes as a matter of law that substantial evidence in the record supported the Commission’s decisions that the former Board members were eligible for unemployment benefits, we hold instead that the Commission was entitled to summary judgment. We sustain the Commission’s second and, third issues.
Conclusion
Having held that the Commission wa's entitled to summary judgment, we reverse the judgment of the trial court and render judgment affirming the Commission’s unemployment decisions.
Notes
. Charles McKirahan, Valleda Crump, Ronald Hastik, Dempsey Wells, Michael Marshall, Diane Jobin, Monarchie Clay, Laura Bass, Melia Wichmann, Phil Ross, Janet Sheffield, Gerald Chrissenberry, Reese Buggs, Forrest Cress-well, and Cynthia Spooner are the former Board members who filed the unemployment claims that led to this case.
. Section 207,044 of the Texas Labor Code, entitled "Discharge for Misconduct,” provides that an individual who was discharged for misconduct connected with the individual’s last work is disqualified for benefits until the individual has returned to employment' and worked for six weeks or earned wages equal to six times the individual’s benefit amount. Tex. Labor Code Ann, § 207.044 (West 2015).
. The Commission also was named as a defendant in each of the cases.
. The record indicates that HCAD previously had filed a motion for summary judgment in the case against Charles McKirahan, and the trial court denied the motion.
. Wage detail inquiries were included for all of the former Board members whose claims led to this case.
. The record shows that HCAD raised this argument in the administrative process with respect to the unemployment claims of at least some of the former Board members.
, See also Cameron Appraisal Dist. v. Rourk,
. In addition to provisions discussed elsewhere in this opinion, HCAD cites the following provisions: Tex. Tax Code Ann. §§ 5.041(g), 6.411(a), and 41.66(f) (West , 2015) (prohibiting certain communications between board members , and appraisal district employees); id. § 6.43(a) (authorizing appraisal review board to employ legal counsel).
. The record also shows, however, that HCAD interviews and performs background checks on prospective Board members. In addition, HCAD determines the size of the Board and may remove Board members without liability •for certain specified reasons. Tex. Tax Code Ann. § 6.42(b), (f).
. The decisions of the Appeal Tribunal and the Commission with respect to each former Board member are includéd in our record, and no decision mentions these Tax Code provisions.
. Parties may, however, introduce additional ’ evidence in the district court on trial de novo that bears on arguments exhausted through the administrative process. ,See Mercer v. Ross,
. See 40 Tex. Admin. Code § .815.134 (2015) (“Subject to specific inclusions and exceptions to employment enumerated in Chapter 201 of the Act, the Commission shall use the guidelines referenced in § 821.5 of this title as the official guidelines for use in determining employment status.'”).
. A court is not required to search the record for evidence raising a material fact issue without specific guidance. See Rogers v. Riceme Enters. Inc.,
.Of course, as HCAD points out, it does not control the content of any particular Board decision. If HCAD disagrees with an order of the Board, its remedy is to áppeal. See Tex. Tax Code Ann. § 42.02 (West 2015).
. Although the content of the training was determined by the Comptroller, as noted above, this factor does not require that the entity conduct .the training to indicate the existence of an employment relationship. The test recognizes that workers are sometimes trained by a more experienced worker, but it is also sufficient if the entity requires the worker to attend meetings or take training courses. 40 Tex, Admin. Code § 821.5.
. HCAD’s construction also misses the mark because it does not support the trial court’s summary judgment in HCAD’s favor. Even if section 6.412(c) somehow transformed the Board members into ineligible "employees” once HCAD obtained a certain threshold level of control or direction over them (which it did not), there is no indication that the Board members were aware of any need to resign. Thus, the mere fact that they continued , their service would not establish as a matter of law that HCAD’s control or direction was, in fact, below the threshold.
. Even if there were an irreconcilable conflict between the Tax Code and the Labor Code, the latter would prevail because it more specifically addresses the subject of when a person is in employment for purposes of determining unemployment benefits. See Tex. Gov’t Code Aim. § 311.026 (West 2013); Carlson v. City of Houston, 309,S.W.3d 579, 586 (Tex.App.-Houston [14th Dist.] 2010, no pet.).