ACCEPTED 03-13-00789-CV 8279746 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 10:42:31 AM JEFFREY D. KYLE CLERK No. 03-13-00789-CV IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS3rd COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 10:42:31 AM ALPHONSO CRUTCH LIFE SUPPORT CENTER,JEFFREY INC., D. KYLE Clerk Appellant, v.
MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION; HOLLAND TIMMINS, DESIGNEE OF THE COMMISSIONER; AND THE TEXAS EDUCATION AGENCY,
Appellees.
From the 261st 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:
1 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.
2. Appellant Michael L. Williams, et. al.
B. Argument and Authorities
2 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.
3. 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
3 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
4 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.
4. 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 19th
century, there were instances where discrimination was so drastic that even during
5 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
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ACCEPTED 03-13-00789-CV 8279746 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 10:42:31 AM JEFFREY D. KYLE CLERK No. 03-13-00789-CV IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS3rd COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 10:42:31 AM ALPHONSO CRUTCH LIFE SUPPORT CENTER,JEFFREY INC., D. KYLE Clerk Appellant, v.
MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION; HOLLAND TIMMINS, DESIGNEE OF THE COMMISSIONER; AND THE TEXAS EDUCATION AGENCY,
Appellees.
From the 261st 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:
1 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.
2. Appellant Michael L. Williams, et. al.
B. Argument and Authorities
2 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.
3. 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
3 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
4 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.
4. 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 19th
century, there were instances where discrimination was so drastic that even during
5 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).
5. 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,
6 361 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).
6. 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
7 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
8 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
9. 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
9 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
10 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 15th 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