Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 10:42:31 AM JEFFREY D. KYLE Clerk No. 03-13-00789-CV THIRD COURT OF APPEALS 12/17/2015 10:42:31 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00789-CV *1 ACCEPTED ^[8279746] CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS ALPHONSO CRUTCH LIFE SUPPORT CENTER, INC., Appellant,

v. MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION; HOLLAND TIMMINS, DESIGNEE OF THE COMMISSIONER; AND THE

TEXAS EDUCATION AGENCY, Appellees.

From the 261 st Judicial District Court of Travis County, Texas

APPELLANT’S MOTION FOR REHEARING

Appellant submits this Motion for rehearing in response to the opinion issued

by the Court on November 30, 2015, and requests that the Court consider the

following issues:

Issue 1: The Court of Appeals erred in ruling that pursuant to Section 7.057 of the Texas Education Code, Alphonso Crutch Life Support Center, Inc. did not

have the basis for a direct challenge of the actions of Michael Williams in State

District Court.

Issue 2: The Court of Appeals erred in ruling that ACLSC waived any rights to challenge the actions of Michael Williams on either a Constitutional or an ultra

vires basis.

Issue 3: The Court of Appeals erred in ruling that ACLSC must have identified comparators for purposes of bringing a claim under the Equal Protection

laws of the State of Texas.

Issue 4: The Court of Appeals erred in deciding that ACLSC had no basis to bring a Declaratory Judgment

A. Introduction

1. Appellant is Alphonso Crutch Life Support Center, Inc. Appellant Michael L. Williams, et. al.

B. Argument and Authorities *3 Issue 1: The Court of Appeals erred in ruling that pursuant to Section 7.057 of the Texas Education Code, Alphonso Crutch Life Support Center, Inc. did not

have the basis for a direct challenge of the actions of Michael Williams in State

District Court.

Issue 2: The Court of Appeals erred in ruling that ACLSC waived any rights to challenge the actions of Michael Williams on either a Constitutional or an ultra

vires basis.

Issue 3: The Court of Appeals erred in ruling that ACLSC must have identified comparators for purposes of bringing a claim under the Equal Protection

laws of the State of Texas.

Issue 4: The Court of Appeals erred in deciding that ACLSC had no basis to bring a Declaratory Judgment. The Texas Legislature, in its vision for creating a better and more just society

in our State, has adopted the following mission and objectives:

The mission of the public education system of this state is to ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation. That mission is grounded on the conviction that a *4 general diffusion of knowledge is essential for the welfare of this state and for the preservation of the liberties and rights of citizens. . . .

Texas Education Code Section 4.001. All actions of the Education Commissioner

and the Texas Education Agency must be guided by this provision. We would also

urge this court to review its original opinion in light of this provision. In this case,

the decision by Commissioner Williams directly contravened the dictates of this

provision of the law. Students at Alphonso Crutch were in a school that was legally

opened but that received no state funding for many, many months and only a

symbolic amount in a number of other months. The decision by Commissioner

Michael Williams and the proposal for decision by the State Office of Administrative

Hearings violated the provisions of this law on their face. The decision

acknowledged the School received no funding, but held that this was not an issue of

relevance in its decision-making. It held that the Texas Education Agency had the

legal authority to not pay funds to a school but apply State Standards to it even

though it received no money. Further, though the rules in place at the time the

litigation was brought and a partial summary disposition was granted would have

permitted the consideration of such issues, the Commissioner held that it was

appropriate to close the school under a later adopted rule that foreclosed the use of

such evidence. The actions of the Commissioner were challenged on Constitutional

and Ultra Vires grounds in the petition, as well as the actions exceeding statutory

authority. One can go directly to court under provisions such as Section 7.057 of

the Texas Education Code if the challenge is that the action was without, in excess

of authority, or contrary to express statutes as was alleged in this case. See

Barrientos v. Ysleta Indep. Sch. Dist. , 881 S.W.2d 159, 160 (Tex. App. 1994) and

Chastain v. Mauldin , 32 S.W.2d 235, 237 (Tex. Civ. App. 1930).

An arbitrary action by an administrative agency cannot stand. See Lewis v. Metro. Sav. & Loan Ass'n , 550 S.W.2d 11 (Tex. 1977) and Gerst v. Nixon , 411

S.W.2d 350 (Tex. 1966). The refusal to consider such evidence, as was evident on

the face of both the Proposal for Decision and Commissioner’s Decision, is the same

issue as the one in Lewis . The Agency head has the responsibility to consider all the

facts and circumstances in fairness and justice to the competing parties. Lewis ,

supra . “In the eyes of the law there is no hearing unless a fair opportunity is afforded

the parties to prove their case before an administrative agency. Lewis , supra at 15.

Even though it is not necessary to do so for the court to reach the result we are

requesting in this matter; opposing counsel consented to the late filing of the

objections to the Proposal for Decision. We would ask the court to look at the import of its decision and the obligations

in the interest of our State to educate all of its children and invest them with an

interest in supporting and being part of it. Even when we look back at the 19 th

century, there were instances where discrimination was so drastic that even during

the days of Post Reconstruction, Judges would not give blessings to circumstances

that are not much different from what this court has before it now. In Claybrook v.

City of Owensboro , 16 F. 297 (D. Ky. 1883), the system resulted in Blacks receiving

a greatly inferior education and the court held that the system could not be upheld.

There are similar decisions in Virginia and Mississippi. See Davenport v.

Cloverport , 72 F. 689 (D. Ky. 1986); McFarland v. Goins , 96 Miss. 67, 50 So. 493

(1909); and Williams v. Bd. of Educ. of Fairfax Dist. , 45 W. Va. 199, 31 S.E. 985

(1898). Actions like those in this case have caused federal authorities to become

more involved in State actions because the State declines or refuses to do right by

African-American citizens. United States v. Jefferson Cty. Bd. of Educ. , 372 F.2d

836 (5th Cir. 1966) on reh'g, 380 F.2d 385 (5th Cir. 1967). See opinion by Judge

Minor Wisdom. For example, it was less than 40 years ago that the Austin

Independent School District was forced to desegregate schools to accommodate

African-American and Latino students. U.S. v. Texas , supra at 916. It seems clear

that the State does not wish to live up to Brown v. Bd. of Educ. of Topeka, Kan. , 349

U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Agencies do not make Constitutional decisions, as they are creatures of the

Texas Legislature and are not possessed with the power of Article V Courts. See

Cent. Power & Light Co. v. Sharp , 960 S.W.2d 617, 618 (Tex. 1997); and Edwards

Aquifer Auth. v. Day , 369 S.W.3d 814, 844 (Tex. 2012) and City of Dallas v. Stewart ,

361 S.W. 3d 562 (Tex. 2012). As such, the courts will make independent decisions

in regards to whether the Agency’s actions violated either the United States or the

Texas Constitution. Sharp , supra at 918. In a contested case proceeding, for

example, there is no obligation to raise a Constitutional issue and such matters may

be raised for the first time on appeal or pursuant to a declaratory judgment action.

See Hosps. v. Cont'l Cas. Co. , 109 S.W.3d 96, 100 (Tex. App. 2003). Further,

waiver should not be expected because the Agency has no authority to make a

constitutional decision. See Day and Stewart , supra , but see also Hamilton v.

Washington , No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App. Dec. 23, 2014)

and Mitz v. Texas State Board of Veterinary Medical Examiners , 2008 Tex. App.

LEXIS 8598 (Tex. App.--Austin 2008). The Legislature has not granted the

authority to any Texas Agency to engage in constitutional construction, either

expressly or implicitly. Mitz v. Texas State Board of Veterinary Med. Examiners ,

2008 Tex. App. LEXIS 8598 (Tex. App.--Austin 2008) and Gates v. Texas Dep't of

Family & Protective Servs. , 252 S.W.3d 90, 96 (Tex. App. 2008). The judiciary has the inherent power to determine the constitutionality of an

Agency’s action, even in instances where the Legislature has not provided for

judicial review. Firemen's & Policemen's Civil Serv. Comm'n of City of Fort Worth

v. Kennedy , 514 S.W.2d 237, 239 (Tex. 1974); and Chem. Bank & Trust Co. v.

Falkner , 369 S.W.2d 427, 433 (Tex. 1963). Requiring a Plaintiff to know the names

of comparators before filing a lawsuit raises due process considerations and open

courts considerations. See Article I Sections 13 and 19 of the Texas Constitution

and the 5th and 14th Amendments to the United States Constitutions. Further, there

are ways of providing discrimination separate and distinct from having a comparator

under the McDonnell-Douglas approach. There is the Reeves v. Sanderson

approach, 530 U.S. 133 (2000), and there is the direct evidence approach Desert

Palace, Inc. v. Costa , 539 U.S. 90 (2003) . Moreover, these are not the only ways of

raising Equal Protection Issues and litigating them. Vill. of Willowbrook v. Olech ,

528 U.S. 562 (2000). In Swiekiewicz v. Sorema , N.A., 534 U.S. 506 (2002), the

Court held there were no such heightened pleading requirements in Equal Protection

cases. The Court held in Swiekiewicz that it would be “incongruous to require a

plaintiff, in order to survive a motion to dismiss, to plead more facts than he may

ultimately need to prove to succeed on the merits if direct evidence of discrimination

is uncovered. Notably, the court had the authority to require a re-pleading to the

extent there was any defect in the pleading that could be cured. See C.L. Westbrook,

Jr. v. Penley , 231 S.W.3d 389, 395 (Tex. 2007). The lawsuit raised issues of Equal

Protection, Due Process of Law, Ultra Vires and the Unconstitutional application of

statutes or statutory authority. These matters are proper subjects for a declaratory

judgment action, and ACLSC should have been given an opportunity to provide

information and discover more in regards to the Legislative History behind the

relevant statutes.

8. The Appellant wishes to addresses the issues contained in here more and

would specifically incorporate the matters, facts, and arguments contained in its

Motion for Extension of Time pursuant to TRAP Rule 49.8.

C. Conclusion/Prayer

For these reasons, Appellant asks the Court to grant its Motion for Rehearing and withdraw or conform its opinion dated 30 November 2015 and/or grant it more

time as deemed appropriate by the Court to supplement this Motion for Rehearing.

Respectfully submitted, THE BLEDSOE LAW FIRM, PLLC

By: /s/ Gary L. Bledsoe

Gary L. Bledsoe

State Bar No. 02476500

garybledsoe@sbcglobal.net Alondra Johnson

ajohnson@thebledsoelawfirm.com State Bar No. 24087801 316 W. 12th Street Austin, Texas 78701 (512) 322-9992 Telephone (512) 322-0840 Fax *10 CERTIFICATE OF CONFERENCE I certify that I reached out to opposing counsel and she is opposed.

/s/ Gary L. Bledsoe Gary Bledsoe

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word 2013 and contains 1728 words, as determined by the computer software’s

word-count function, excluding the sections of the document listed in Texas Rule

of Appellate Procedure 9.4(i)(1).

/s/ Gary L. Bledsoe Gary Bledsoe

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has

been forwarded to the following parties via e-service on the 15 th day of December

and again this 16th day of December 2015.

Beth Klusmann

Assistant Solicitor General

bethklusmann@texasattorneygeneral.com

(512) 936-1914

/s/ Gary L. Bledsoe Gary Bledsoe