Gilder v. Meno

926 S.W.2d 357, 1996 WL 346298

• Court: Court of Appeals of Texas
• Decided: August 14, 1996
• Docket: 03-95-00080-CV
• Status: Published

Opinions

BEA ANN SMITH, Justice.

Appellant Barbara Gilder sued former Commissioner of Education Lionel Meno and the Central Education Agency (collectively “the Commissioner”), as well as the Aquilla Independent School District (“AISD”), for judicial review of the Commissioner’s order affirming a decision by the AISD school board (“the board”) to nonrenew Gilder’s teaching contract under the Term Contract Nonrenewal Act (“TCNA”), 67th Leg., R.S., ch. 765, § 2, 1981 Tex. Gen. Laws 2847 (Tex. Educ.Code Ann. §§ 21.201-.211, since repealed and recodified at Tex. Educ.Code Ann. §§ 21.201-.213 (West 1996)). The district court upheld the Commissioner’s order. On appeal to this Court, Gilder complains, in part, that the district court erred in affirming the Commissioner’s order because she was not allowed to present evidence to the Commissioner. We will affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Gilder was employed by AISD as a special education teacher under a series of one-year contracts; during the course of her employment she received numerous notices of deficiencies in her job performance. Early in the 1984-85 school year, she received a formal unsatisfactory evaluation of her teaching performance; throughout the year she received additional notices of deficiencies. Acting upon the superintendent’s recommendation, in March 1985 the board of trustees of AISD issued to Gilder a “notice of proposed nonrenewal.” Gilder timely requested a hearing before the board. See 1981 Tex. Gen. Laws 2847, 2848 (formerly Tex. Educ. Code Ann. § 21.205, since repealed and reco-dified at Tex. Educ.Code Ann. § 21.207). Prior to that hearing, the board granted Gilder’s request for a hearing on the recusal of three board members. At the recusal hearing on April 18, 1985, Gilder offered no evidence, stating that her witnesses and she chose not to testify. On April 25, 1985, the board conducted an evidentiary hearing on the merits of the recommendation that her contract not be renewed. Although she was represented by counsel and was given the opportunity to cross-examine witnesses and present her own witnesses, Gilder again chose not to offer any evidence on her own behalf and not to refute any evidence presented by the superintendent. After this hearing, which continued over a five-day period, the board voted 7-0 to adopt the superintendent’s recommendation not to renew Gilder’s contract.

Gilder filed a petition for review with the Commissioner alleging that the board’s decision was arbitrary, capricious, unlawful, and not supported by substantial evidence. See 1981 Tex. Gen. Laws 2847, 2848 (formerly Tex. Educ.Code Ann. § 21.207(a), since repealed and recodified at Tex. Educ.Code Ann. § 21.209). In June 1985, AISD filed a certified copy of the record of the hearings before the school board. See 8 Tex. Reg. 2756, 2759 (1983) (formerly 19 Tex. Admin. Code § 157.64, repealed by 18 Tex. Reg.1928 (1993); current version found at 19 Tex. Admin. Code § 157.1071 (West 1995)). Although the Commissioner’s rules allow an appellant to object to the local record within thirty days, Gilder filed no objection. See id. Five months later Gilder filed a motion for a hearing, alleging that she had additional evidence which was material, relevant and not unduly repetitious. See id. The motion contained no reference to the substance of the evidence, the names of witnesses, or any reason why such evidence had not been presented earlier. The Commissioner denied the request for an evidentiary hearing and after reviewing the record from the local board, concluded that the decision not to renew Gilder’s contract was supported by substantial evidence and was not arbitrary, capricious, or unlawful. Gilder filed suit for judicial review and the district court affirmed the Commissioner’s order.

DISCUSSION

On appeal Gilder alleges in two points of error that she was entitled to a hearing before the Commissioner, without a showing of good cause. In two additional points of error, she attacks the constitutionality of the hearing she received before the school board, alleging that she did not receive the process she was due at that hearing and that she was under no obligation to testify as a witness.

We will first address what sort of review the Commissioner is required to conduct in appeals from local school board decisions under the TCNA. Gilder contends that the district court erred in affirming the Commissioner’s order because the Commissioner conducted a review based solely on the record made before the local board, rather than granting Gilder the evidentiary hearing that she requested. The precise issue is whether the scope of review mandated by the TCNA requires the Commissioner to conduct a new evidentiary hearing in reviewing every local school board decision not to renew a teacher’s contract.

The Commissioner has adopted rules for reviewing decisions of local school boards made pursuant to the TCNA. Those rules permit a teacher to present evidence to the Commissioner only in limited circumstances:

All allegations by the teacher that the decision of the board of trustees was arbitrary, capricious, unlawful, or not supported by substantial evidence shall be resolved by a review of the record of appeal; however, on the motion of either party, the commissioner of education may order that additional evidence be taken to supplement the transcript if it appears that such party has evidence to offer which is material, relevant, and not unduly repetitious, which that party, for good cause, was unable to adduce at the local hearing.

8 Tex. Reg. 2756, 2759 (1983) (formerly 19 Tex. Admin. Code § 157.64(b), since repealed and recodified). Based on Gilder’s failure to satisfy the “good cause” requirement of rule 157.64(b), the Commissioner denied Gilder’s motion for an evidentiary hearing and conducted a review based solely on the record made before the AISD school board, only permitting Gilder to file a written brief in support of her petition. Gilder assails rule 157.64(b) as inconsistent with the TCNA, which she interprets as requiring the Commissioner to conduct a new evidentiary hearing in every appeal from a decision not to renew a teacher contract.

We turn to the language of the statute. Under the current law, enacted in 1995, the Commissioner is entitled to look only to the record of the board hearing in conducting a substantial evidence review. See Tex. Educ.Code Ann. § 21.301(c) (West 1996). But this appeal is governed by the version of the statute in place at the time of the Commissioner’s review in 1987 and 1988. At that time section 21.207(a) provided:

If the teacher is aggrieved by the decision of the board of trustees, he may appeal to the State Commissioner of Education pursuant to Section 11.13 of this code. The commissioner may not substitute his judgment for that of the board of trustees, unless the decision below was arbitrary, capricious, unlawful, or not supported by substantial evidence.

1981 Tex. Gen. Laws 2847, 2848 (Tex. Educ. Code Ann. § 21.207(a), since repealed and recodified at Tex. Educ.Code Ann. § 21.209). The reference to former section 11.13 of the Education Code does not provide any standard of review,¹ but the second sentence clearly contemplates a substantial evidence review, using as it does the same language set forth in the APA provision for substantial evidence review. See Tex. Gov’t Code Ann. § 2001.174 (West 1996).² Although the APA provisions governing review of agency decisions do not apply when the Commissioner is reviewing the decision of a local school board, see Board of Trustees of Big Spring Firemen’s Relief & Retirement Fund v. Firemen’s Pension Comm’r, 808 S.W.2d 608, 611 (Tex.App. — Austin 1991, no writ), the APA, first enacted in 1976 as APTRA, was available as a model for how agency action is to be reviewed at the time the TCNA was enacted in 1981. By using substantially the same words the APA utilized to replace the worrisome “substantial-evidence-de-novo review,” we think the TCNA was following the APA’s lead in dictating a review in which the Commissioner would look only to the record made before the local board to determine whether that body’s findings are reasonably supported by substantial evidence.³

By adopting rule 157.64(b), requiring an appellant to show good cause before being granted a new evidentiary hearing, the Commissioner has so interpreted the TCNA former section 21.207(a). Indeed, the procedure for taking new evidence outlined in rule 157.64(b) appears to have been patterned after the procedure described in the APA:

A party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the state agency, the court may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may change its findings and decision by reason of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.

Tex. Gov’t Code Ann. § 2001.175(c) (West 1996) (emphasis added). Given the similarities between the language of former section 21.207(a) and the language of the APA, we think the Commissioner correctly understood the TCNA to dictate a substantial evidence standard of review that is consistent with the procedure outlined in rule 157.64(b). The Commissioner is the officer charged with administration of appeals under the TCNA. We accord his interpretation of the statute deference because of his expertise and experience in dealing with the practical problems of preserving local decision-making while still providing for an appeal to a state administrative body. See Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.1994) (construction of statute by agency charged with its enforcement entitled to serious consideration, so long as construction is reasonable and does not contradict plain language of statute); Calvert v. Thompson, 339 S.W.2d 685, 688-89 (Tex.Civ.App. — Austin 1960, writ ref'd).

Our own reading of the statute, in light of existing ease law, supports the Commissioner’s interpretation. First, we note the similarity of the language between the TCNA and the APA language that provides for substantial evidence review based solely on the agency record. Former section 21.207(a) provides that “[t]he commissioner may not substitute his judgment for that of the board of trustees, unless the decision below was arbitrary, capricious, unlawful, or not supported by substantial evidence.” 1981 Tex. Gen. Laws 2847, 2848 (Tex. Educ.Code Ann. § 21.207(a), since repealed and recodified at Tex. Educ.Code Aim. § 21.209). Similarly, the APA provides as follows:

The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the cause for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusion, or decisions are:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the [agency] record as a whole; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code Ann. § 2001.174 (West 1996).

Under the judicially created “substantial-evidenee-de-novo” review, the reviewing tribunal “conducts an evidentiary hearing for the limited purpose of determining ‘whether at the time the questioned order was entered there then existed sufficient facts to justify the agency’s order.’ ” Big Spring, 808 S.W.2d at 612 (quoting Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966)). The rationale behind this much-criticized form of judicial review⁴ appears to grow out of a separation of powers question and judicial suspicion of the fact-finding abilities of administrative agencies. This peculiar form of review requires the reviewing court to decide a hypothetical question: whether there exists at the time of judicial review a lawful basis in fact for what the agency did at an earlier time. By conducting a second evidentiary hearing, the court severely undermines the authority and usefulness of the evidentiary hearing conducted by the agency. The APA as enacted in 1976 was designed to confine judicial review to the record compiled in the agency proceeding, permitting the courts to conduct an evidentiary hearing only in limited circumstances. By using almost identical language to describe the Commissioner’s scope of review of teacher employment disputes, we believe the TCNA sought to confine that review to the record created at the local board proceeding except in rare circumstances. Provisions containing this language generally create review by an appellate administrative body that is judicial in nature, to be determined on the record made by the parties before the original body. See 73A C.J.S.2d Public Administrative Law and Procedure § 170b (1983). Given this widespread understanding of the language included in section 21.207(a), we cannot agree with the dissent that the Commissioner exceeded his authority by limiting the evidentiary hearings on appeals from adverse decisions under the TCNA.

Our reading of the statute is bolstered by the act’s provision that the local board must hold an evidentiary hearing in all decisions not to renew a teacher’s contract. 1981 Tex. Gen. Laws 2847, 2848 (Tex. Educ.Code Ann. § 21.205, since repealed and recodified at Tex. Educ.Code Ann. § 21.207). Former section 21.205 delegates to the board of trustees the primary responsibility of deciding who shall and shall not teach in its local schools. To require the Commissioner to hold another evidentiary hearing would nullify this local proceeding, in derogation of the principle that these decisions should be made locally, subject only to the state agency’s review to assure that the teacher was afforded proper procedural and legal safeguards. By providing for substantial evidence review of local board decisions, the TCNA wisely enables the Commissioner to assure a uniform interpretation of the relevant statutes and regulations across the state while preserving local autonomy in its proper sphere.

We do not believe that preserving this decision-making process at the local level poses the dangers suggested by the dissent. The Commissioner will always have a record from the school board for his review, whether or not the teacher presents evidence or testifies; the record will consist of the evaluations that led to the non-renewal, the superintendent’s recommendations, and the actions of the school board. When the record is deficient or unfair, former section 157.64 provides that the aggrieved party can object to the record, and then ask that the record be supplemented by new evidentiary hearings before the Commissioner, but only for “good cause.” Thus, for example, a party unable to present evidence locally due to the board’s lack of subpoena power could seek to present that evidence to the Commissioner, pointing to the lack of subpoena power as establishing “good cause.”

The circumstances of the present appeal well illustrate how requiring the Commissioner to hold an evidentiary hearing without “good cause” would undermine local decision-making in the matter of teacher employment. Although afforded a hearing at her request to recuse three school board members, in addition to a hearing on the merits of her employment, Gilder refused to put on any evidence of bias or retaliation or any evidence in support of her teaching performance, or to refute any of the superintendent’s evidence of her teaching deficiencies. It is evidence of bias and retaliation that she then sought to present to the Commissioner,⁵ having voluntarily decided not to present this evidence to the local school board at either hearing. To allow a teacher to lie behind the log and not present her ease until the matter reaches the state agency, without good cause, would make a mockery of the local board hearing and would transfer the real decision-making to the Commissioner at the state level. This runs afoul of the statute’s delegation of teacher employment decisions to local school boards. Former section 21.203 explicitly provides that the board of trustees of each school district may choose not to renew any teacher’s contract, shall establish policies which establish reasons for nonrenewal, and shall establish procedures for receiving recommendations from its school administrators regarding the nonrenewal of teaching contracts. See 1981 Tex. Gen. Laws 2847 (Tex. Educ.Code Ann. § 21.203, since repealed).

Mindful of the pernicious effect that “substantial-evidence-de-novo” review has had on agency decision-making, we are unpersuaded by the dissent’s insistence that Texas ease law compels us to read this scope of review into the TCNA. We begin by noting that this highly criticized form of review was created by courts concerned about a separation of powers question in the context of judicial review of agency action, a concern that has no bearing on this question of the scope of one agency’s review of another agency’s action. We therefore reject the dissent’s “virtual presumption of substantial-evidence-de-novo review.” Certainly nothing in the statute mandates such a review; indeed, as we have noted the language of the TCNA so closely parallels the APA’s creation of substantial evidence review, coming just five years after that specific legislative rejection of the substantial-evidence-de-novo review, that we find legislative intent to prescribe an appellate scope of review confined to the record of the board proceeding in appeals of contract nonrenewal decisions.

Nor are we persuaded that the supreme court’s decision in Central Educ. Agency v. Upshur County Comm’rs Court, 731 S.W.2d 559, 561-62 (Tex.1987), mandates a substantial-evidence-de-novo review under the TCNA. That decision concerned the state agency’s review of a commissioners court’s decision to detach and annex property between school districts. The court began by noting, as we have mentioned, that former section 11.13(a) of the Education Code provides generally for appeals to the Commissioner but does not specify what the scope of that review shall be. The Upshur court held that the original decision-making power is committed to the county officials, and while the Commissioner may conduct an evidentia-ry hearing solely for the purpose of determining whether there was fraud, bad faith, abuse of discretion by the county official and whether their decision is supported by substantial evidence, this is to be an appellate scope of review as opposed to a re-determination of the case in its entirety. It did not hold that the Commissioner must hold such a hearing in every appeal. Only in a footnote, on which the dissent places what seems to be undue reliance, does the court mention that the Commissioner’s review of detachment and annexation decisions is “akin to the substantial evidence trial de novo review.” 731 S.W.2d at 562, n. 2. Certainly any reliance on Mercer v. Ross, mentioned in the same footnote, is misplaced as that case involved a statute that specifically provided for the court’s substantial-evidence-de-novo review of Texas Employment Commission decisions. See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986).

What is most significant is that Upshur and the other decision that the dissent relies on, Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d 773 (Tex.1996), both involve the Commissioner’s review of detachment and annexation decisions under the general mandate of former section 11.13(a), which lacks any mention of a standard of review. In Cypress-Fairbanks v. Texas Educ. Agency, 797 S.W.2d 336, 340 (Tex.App. — Austin 1990), rev’d on other grounds, 830 S.W.2d 88 (Tex.1992), we noted that teacher contract nonrenewal appeals to the Commissioner are expressly limited to an appellate standard of review under former section 21.207, unlike the detachment/annexation decisions governed solely by former section 11.13(a) of the Education Code, as in Upshur. The TCNA provides that a teacher’s contract will be renewed from year to year unless the statutory provisions for non-renewal are followed. 1981 Tex. Gen. Laws 2847, 2848 (formerly Tex. Educ.Code Ann. § 21.203). The legislature could create this specific benefit for teachers but at the same time limit the scope of review that a state administrative agency could exercise over a school board’s decision not to renew a teacher’s contract. We understand this to be the legislative intent of former section 21.207(a). In placing so much reliance on Upshur, the dissent ignores this critical distinction between the general provision of section 11.13(a) concerning any person aggrieved under the school laws of this state, and the more specific provision of section 21.207(a) governing only teachers aggrieved under the TCNA.

Furthermore, we must not overlook the context of the Upshur decision, in which the court held that the Commissioner exceeded his authority by substituting his judgment for that of the county officials to whom the statute delegated the responsibility for annexation and detachment decisions. Upshur rejected a pure de novo review by which the Commissioner reversed the county officials on policy grounds, even though the county officials followed the law. The thrust of the Upshur decision was to uphold the authority delegated to the county officials and to direct the Commissioner not to substitute his opinion for that of the local agency. Upshur, 731 S.W.2d at 561. Without resorting to the language of footnote 2, there is no explicit holding in Upshur that rejects a substantial evidence standard of review. Such a rejection cannot be gleaned from Upshur’s observation that the Commissioner may hold an evidentiary hearing “solely for the purpose of determining whether there was fraud, bad faith or an abuse of discretion in the decision of the county commissioners and whether their decision is supported by substantial evidence.” Id. at 562. By holding that the Commissioner must conduct an evidentiary hearing in this appeal for a teacher who refuses to present evidence to the local board and chooses instead to argue her case to the Commissioner, the dissent ignores the teaching of Upshur, the APA, and the TCNA, that the reviewing agency cannot substitute its judgment for the local agency’s judgment if its decision is supported by substantial evidence and if it accorded appellant the procedural and legal safeguards to which she was entitled.

We hold that rule 167.64(b), which requires an appealing party to show “good cause” for the need to present evidence to the Commissioner is wholly consistent with the scope of review mandated by former section 21.207(a) and overrule the first two points of error.

In her third point of error, Gilder complains that she was deprived of due process in her hearing before the board of trustees. We disagree. Gilder was afforded two hearings, one on the issue of bias, and another on the merits of her deficiencies as a teacher. She was represented at each hearing but chose not to present any evidence herself or through the witnesses she brought with her or through cross-examination of the superintendent’s witnesses by her representative. Gilder complains that she was not given an opportunity to “voir dire” the board members, and that the board members were not required to testify. Without any evidence establishing an issue of bias, neither the board members nor Gilder were required to testify. See Vandygriff v. First Sav. & Loan, 617 S.W.2d 669, 673 (Tex.1981) (court presumes agency performs duties in compliance with law); Lone Star Greyhound Park v. Racing Comm’n, 863 S.W.2d 742, 752 (Tex.App. — Austin 1993, writ denied) (court presumes lack of bias on part of agency decision-makers). Gilder decided to put forward no evidence of bias at her peril, apparently hoping to present such evidence later to the Commissioner. We find that given the state of the record there was no violation of her rights. Likewise, we find no procedural irregularities at the hearing on the merits of her teaching abilities. If the superintendent asserted these deficiencies against her in retaliation for her prior filing of grievances or membership in the Texas State Teacher Association as she alleges, she declined to offer any evidence to substantiate this claim. Again she declined to offer evidence at her peril. We overrule the third point of error. Likewise, we find no merit in the fourth point of error complaining that Gilder was unjustly compelled to testify as an adverse witness. Gilder had the opportunity to refute the superintendent’s allegations of her teaching deficiencies, through her own testimony or the testimony of others. She chose to do neither. Based on the meager record this created, her appeal was dismissed. This in no way constituted error, and we overrule the fourth point of error.

CONCLUSION

Finding no error, we affirm the trial court’s judgment.

1 . See Act of August 21, 1986, 2d C.S., ch. 4, § 3, 1986 Tex. Gen. Laws 6, 11 (Tex. Educ.Code Ann. § 11.13(a), since repealed and recodified at Tex. Educ. Ann. § 7.057 (West 1996)). Former section 11.13(a) merely grants the right of appeal to “any person aggrieved by ... decisions of a board of trustees” but says nothing about what the standard of review shall be:

(a) Except in cases of student disciplinary actions under Section 21.301 or21.3011 of this code, persons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved by the school laws of Texas or by actions or decisions of any board of trustees or board of education may appeal in writing to the commissioner of education, who, after due notice to the parties interested, shall hold a hearing and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.

See also Central Educ. Agency v. Upshur Co. Comm’rs Court, 731 S.W.2d 559, 561 (Tex.1987).

2 . When this suit was instituted, the statutory provisions governing administrative procedures, including the review of agency orders, were contained in the Administrative Procedure and Texas Register Act (APTRA), 64th Leg., R.S., ch. 61, 1975 Tex. Gen. Laws 136. Because the subsequent recodification of APTRA into the APA did not substantively change the law, we will refer to the APA for convenience. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 47, 1993 Tex. Gen. Laws 583, 986.

3 . The dissent argues that the language found in section 21.207(a) mirrors the language used by the supreme court in Upshur, which created something akin to substantial evidence de novo review of county commissioners’ decisions regarding the detachment and annexation of territory between school districts. We note that the Upshur decision in 1987 would not have been available as a model for the legislature to follow when it drafted the TCNA in 1981, if indeed the legislature should ever be presumed to take note of specific citations buried in a court decision, as contrasted with an outcome of a court opinion.

4 . See generally Robert W. Hamilton & J.J. Jewett, III, The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review, 54 Tex. L.Rev. 285, 295-302 (1976); Thomas M. Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 Sw. L.J. 239, 247-59 (1969); Abner Eddins Lipscomb, Judicial Control of Administrative Action in Texas, The Baylor Bulletin, Law Number, Vol. XLI, No. 3, 25-28 (1938).

5 . The motion for hearing before the Commissioner contains the following allegation: "specifically, Petitioner seeks to adduce evidence concerning the bias of Respondent’s school board members. Respondent refused to allow Petitioner an opportunity to present such evidence at the local hearing. Respondent's Board members' bias precluded Petitioner from receiving a fair and impartial hearing.”