Mike Morath, in His Official Capacity as Texas Commissioner of Education and La Villa Independent School District v. Dr. Paz Elizondo

Opinion

ACCEPTED 15-25-00024-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 4/17/2025 2:08 PM CASE NO. 15-25-00024-CV CHRISTOPHER A. PRINE CLERK __________________________________________________________________ FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH DISTRICT OF TEXAS 4/17/2025 2:08:32 PM __________________________________________________________________ CHRISTOPHER A. PRINE Clerk MIKE MORATH, TEXAS COMMISSIONER OF EDUCATION; and LA VILLA INDEPENDENT SCHOOL DISTRICT, Appellants, v. DR. PAZ ELIZONDO, Appellee.

APPELLANT BRIEF OF MIKE MORATH, TEXAS COMMISSIONER OF EDUCATION

KEN PAXTON KAREN L. WATKINS Attorney General of Texas State Bar No. 20927425 Assistant Attorney General BRENT WEBSTER Administrative Law Division First Assistant Attorney General Office of the Attorney General of Texas P.O. Box 12548, Capitol Station RALPH MOLINA Austin, Texas 78711-2548 Deputy First Assistant Attorney General Tel. (512) 475-4208 Fax (512) 320-0167 AUSTIN KINGHORN karen.watkins@oag.texas.gov Deputy Attorney General for Civil Litigation ATTORNEYS FOR APPELLANT MIKE MORATH, TEXAS COMMISSIONER OF ERNEST C. GARCIA EDUCATION Chief, Administrative Law Division IDENTITY OF PARTIES AND COUNSEL

Appellant: MIKE MORATH, TEXAS COMMISSIONER OF EDUCATION

Trial Counsel for Craig W. Cosper Appellant: State Bar No. 24067554 Assistant Attorney General1

Appellate Counsel Karen L. Watkins for Appellant: State Bar No. 20927425 Assistant Attorney General Administrative Law Division OFFICE OF THE ATTORNEY GENERAL OF TEXAS P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4208 Facsimile: (512) 320-0167 Email: karen.watkins@oag.texas.gov

Appellant: LA VILLA INDEPENDENT SCHOOL DISTRICT

Trial and Appellate Counsel for Appellant: David Campbell State Bar No. 24057033 Kristi L. Godden State Bar No. 24079577 kgodden@808west.com Eden Ramirez Texas Bar No. 24112355 eramirez@808west.com Johan Holter Texas Bar No. 24106107 jholter@808west.com

1 Assistant Attorney General Cosper was formerly with the Administrative Law Division of the Office of the Attorney General but has now transferred to the Criminal Appeals Division. 2 O’Hanlon, Demerath & Castillo 808 West Avenue Austin, Texas 78701 Tel. (512) 494-9949 Fax (512) 494-9919

Appellee: DR. PAZ ELIZONDO

Trial and Appellate Counsel for Appellee: RUBEN R. PEÑA State Bar No. 15740900 LAW OFFICES OF RUBEN R. PEÑA, P.C. 222 W. Harrison, Suite B Harlingen, Texas 78550 Tel. (956) 496-2060 ruben@rubenpenalaw.com

3 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................. 2

INDEX OF AUTHORITIES .............................................................................................. 5

ABBREVIATIONS AND RECORD REFERENCES ................................................... 7

STATEMENT OF THE CASE .......................................................................................... 7

STATEMENT REGARDING ORAL ARGUMENT .................................................... 9

ISSUES PRESENTED ......................................................................................................... 9

STATEMENT OF FACTS ................................................................................................ 10

SUMMARY OF THE ARGUMENT ............................................................................... 14

ARGUMENT ....................................................................................................................... 14

I. Standard of Review ............................................................................................. 14

II. The Commissioner properly declined to address the merits of Elizondo’s appeal because Elizondo did not timely complain ................. 16

III. Elizondo waived his right to complain about the District’s giving him a probationary contract by acting inconsistently with an intent to exercise that right............................................................................................ 23

CONCLUSION AND PRAYER ...................................................................................... 26

CERTIFICATE OF COMPLIANCE .............................................................................. 27

CERTIFICATE OF SERVICE ......................................................................................... 28

APPENDICES ..................................................................................................................... 29

4 INDEX OF AUTHORITIES Cases

Davis v. Morath, 624 S.W.3d 215 (Tex. 2021) ......................................................................... 17, 20, 21, 22

Edinburg Consol. Indep. Sch. Dist. v. Esparza, 603 S.W.3d 468 (Tex. App.—Corpus Christi 2020, no pet.) ...................................... 15

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000) .............................................................................................. 23

Hammack v. Pub. Util. Comm’n, 131 S.W.3d 713 (Tex. App.—Austin 2004, pet. denied) ............................................. 15

Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envt’l Qual., 393 S.W.3d 417 (Tex. 2012) ...................................................................................... 14, 15

In re McKinney, 167 S.W.3d 833 (Tex. 2005) ...................................................................................... 18, 25

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) ...................................................................................... 24, 25

Indem. Ins. Co. of N. Am. v. W. L. Macatee & Sons, 101 S.W.2d 553 (Tex. 1937) ............................................................................................ 18

Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142 (Tex. App.—Austin 2017, no pet.) .................................................... 15

McCarty v. Jim Ned Consol. Ind. Sch. Dist., TEA Docket No. 052-R10-08-2021, 2022 WL 1997524 (Mar. 1, 2022) ............. 11, 22

McCarty v. Jim Ned Consol. Ind. Sch. Dist., TEA Docket No. 052-R10-08-2021, 2022 Tx. Educ. Agency LEXIS 7 (May 5, 2022) .................................................................................................................... 17

Mike Morath, Tex. Comm'r of Educ. v. Dr. Pax Elizondo, No. 03-23-00125-CV, 2025 WL 270611 (Tex. App.—Austin Jan. 23, 2025) ............. 8

5 Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) .............................................................................................. 15

N. E. Indep. Sch. Dist. v. Riou, 598 S.W.3d 243 (Tex. 2020) ............................................................................................ 16

Peaster Indep. Sch. Dist. v. Glodfelty, 63 S.W.3d 1 (Tex. App.—Fort Worth 2001, no pet.) .................................................. 15

Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440 (Tex. App.—Austin 2011, no pet.) .................................................... 14

Simani v. Hous. Indep. Sch. Dist., TEA Docket No. 021-R10-03-2019, 2019 WL 4393596 (Aug. 30, 2019)........... 16, 20

Solar Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d 104 (Tex. 2010) ............................................................................................ 23

Wittman v. Nelson, 100 S.W.3d 356 (Tex. App.—San Antonio 2002, pet. denied) ............................. 21, 25

Statutes Tex. Educ. Code § 7.057(d) ........................................................................................................................... 14 § 21.102(b) ..................................................................................................................... 8, 13 § 21.103 .............................................................................................................................. 21 § 21.103(a) ......................................................................................................................... 21 §§ 21.206-21.211 ............................................................................................................... 21

Tex. Gov't Code § 2001.174.......................................................................................................................... 14

6 ABBREVIATIONS AND RECORD REFERENCES

La Villa App. [Page #]2 Appendices to La Villa ISD’s Brief3

ALJ Administrative Law Judge

App. [Letter] Appendices to this brief

STATEMENT OF THE CASE

La Villa Independent School District (La Villa ISD) terminated the employment

of Dr. Paz Elizondo in the spring of 2021. La Villa App. at 42. Elizondo lodged a

formal complaint about his termination, arguing that he had been entitled to a term

contract for his second year of employment with La Villa ISD, rather than the

probationary contract he signed. La Villa App. at 88-9. The La Villa ISD Board deemed

Elizondo’s complaint untimely and refused to hear its merits. La Villa App. at 117-18.

Elizondo appealed the Board’s decision to the Commissioner of Education, and the

Commissioner denied the appeal, finding substantial evidence that: (1) Elizondo’s

grievance was untimely, and (2) Elizondo had performed under the probationary

contract for a year and had accepted its benefits, waiving his right to grieve the type of

2 The administrative record is included in the appendix to the Brief of La Villa Independent School District. References to the appendix will be in the following form: La Villa App. [page #]. 3 Some pages in the La Villa Appendix bear several different numbers. The page numbers from the La Villa Appendix are found at the bottom left-hand side of the page in red.

7 contract provided to him. La Villa App. at 262-67.4 Elizondo timely filed a motion for

rehearing, La Villa App. at 273-76, which was overruled by operation of law. La Villa

App. at 5.

Elizondo then filed the underlying suit for judicial review of the Commissioner’s

decision and, in addition, sought a declaration under the Uniform Declaratory

Judgments Act (UDJA) of his rights under Section 21.102(b) of the Texas Education

Code. La Villa App. at 5-8. After considering briefing and arguments from Elizondo,

La Villa ISD, and the Commissioner, the trial court reversed the Commissioner’s

decision and denied his plea to the jurisdiction as to Elizondo’s UDJA claim. La Villa

App. at 410. 5 The Commissioner timely appealed the trial court’s judgment to the Third

Court of Appeals. La Villa App. at 411-13.

After submission of the case, the Third Court issued an order abating the case

and remanding it to the trial court, expressing uncertainty about whether the court had

intended to dispose of the UDJA claim in its amended judgment. See Mike Morath, Texas

Commissioner of Education, et al. v. Dr. Paz Elizondo, Case No. 03-23-00125-CV, 2025 WL

270611 (Tex. App.—Austin Jan. 23, 2025). The appellate court directed the trial court

either informing the appellate court that it did not intend to dispose of the UDJA claim

4 A true and complete copy of the Decision of the Commissioner is attached to this brief as Appendix B. 5 A true and complete copy of the trial court’s Second Amended Final Judgment is attached to this Brief as Appendix A. 8 or file a supplemental record containing a new judgment specifically stating that

intention. Id. On February 12, 2025, the trial court signed a Second Amended Final

Judgment reversing the Commissioner’s decision and granting the Commissioner and

La Villa ISD’s pleas to the jurisdiction. App. A. The Commissioner timely appealed

this new judgment to the Fifteenth Court of Appeals. La Villa App. 455-57.

STATEMENT REGARDING ORAL ARGUMENT

Commissioner Morath believes that this straightforward examination of the

sufficiency of the evidence to support his decision does not require argument.

However, if the Court disagrees, the Commissioner respectfully requests the right to

participate in the argument.

ISSUES PRESENTED

1. Did the trial court err by reversing the Commissioner’s decision when there was substantial evidence to support it?

9 CASE NO. 03-23-00125-CV __________________________________________________________________ IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS __________________________________________________________________ MIKE MORATH, TEXAS COMMISSIONER OF EDUCATION; and LA VILLA INDEPENDENT SCHOOL DISTRICT, Appellants, v. DR. PAZ ELIZONDO, Appellee.

APPELLANT BRIEF OF MIKE MORATH, TEXAS COMMISSIONER OF EDUCATION

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF

APPEALS:

COMES NOW Appellant Mike Morath, Texas Commissioner of Education, by

and through his attorney of record, Ken Paxton, Attorney General of the State of Texas,

and the undersigned assistant attorney general, and files this Brief of Appellant to

challenge the trial court’s February 12, 2025, Second Amended Final Judgment.

STATEMENT OF FACTS

Elizondo began working for La Villa ISD as an administrator under a “First-Year

Probationary Contract” during the 2019–2020 school year. La Villa App. at 34-37; 263

(Finding of Fact 1). On or about April 22, 2020, Elizondo signed a second contract 10 with LaVilla ISD for the 2020–2021 school year. La Villa App. at 101-04; 263 (Finding

of Fact 2). The third line on the first page of this contract, centered and in bold font,

sets out the title “Second-Year Probationary Contract.” 6 La Villa App. at 101

(emphasis in original). The third page of the contract specifies that, at its termination,

La Villa ISD would have the ability to terminate Elizondo’s employment if the

termination would “serve the best interests of the District, or if the Board determine[d]

that good cause or a financial exigency exists.” 7 La Villa App. at 103. On the same

page, immediately preceding Elizondo’s signature line on the following page, is the

statement “I have read this Contract and agree to abide by its terms and conditions: ”

Id. (emphasis added).

Near the end of the school year, on April 26, 2021, La Villa’s Board notified

Elizondo that it had voted to terminate his employment at the end of the second

6 As the Commissioner held in McCarty v. Jim Ned Consol. Ind. Sch. Dist., 2022 WL 1997524 (Comm’r Educ. 2022), probationary contracts set up a testing period for teachers:

The relevant definition of the word “probation” is “2a: subjection of an individual to a period of testing and trial to ascertain fitness (as for a job or school). See https://www.merriam-webster.com/dictionary/probation. Texas Education Code Chapter 21, Subchapter C is appropriately titled, “Probationary Contracts.” As statutorily prescribed, Texas probationary contracts allow school districts testing periods to ascertain teachers’ fitness.

Id. at *3. 7 The entire provision reads: “Termination of Contract: This Contract will terminate in accordance with the procedures at Texas Education Code chapter 21, if the Board determines that termination of your contract at the end of the contract period will serve the best interests of the District, or if the Board determines that good cause or financial exigency exists. This Contract will also terminate if you provide written notice of resignation before the penalty-free resignation date.” La Villa App. at 103 ¶ 9 (emphasis in original). 11 contract’s term because it was in the best interest of the District. La Villa App. at 107.

On April 29, 2021, Elizondo made a formal complaint to La Villa ISD, stating

the following as the “specific acts of which [he was] aware to support [his] complaint”:

I had been previously employed as a teacher in public education for at least 5 of the 8 years preceding employment by the district per Texas Education Code section 21.102[,] and the District is required to provide me with a term contract.

La Villa App. at 108-109. Pursuant to La Villa ISD’s employee complaint policy, La

Villa’s chief academic officer dismissed Elizondo’s complaint as untimely because

Elizondo did not file the complaint within fifteen days after he first knew or should

have known that La Villa ISD had given him a probationary contract rather than a term

contract. La Villa App. at 118. When Elizondo appealed that determination to the

Board of La Villa ISD, the Board members voted unanimously to deny his complaint.

La Villa App. at 210.

Elizondo then sought the Commissioner’s review of the Board’s decision. La

Villa App. at 30-49; 263 (Finding of Fact 6). Because Elizondo did not appear at the

scheduled hearing, the Texas Education Agency administrative law judge (ALJ) decided

the case on the briefs. Id. The ALJ issued a Proposal for Decision concluding that

Elizondo had failed to timely file his complaint about the type of contract La Villa ISD

gave him for the 2020-2021 school year because substantial evidence showed that he

knew or should have known, with reasonable diligence, that he was employed under a

probationary contract when he signed the contract on April 22, 2020. La Villa App. at 12 243-48. The ALJ also concluded that Elizondo had waived his right to challenge the

terms of the probationary contract because he knowingly and voluntarily acted

inconsistently with that right when he accepted the salary and benefits the contract

provided to him. La Villa App. at 247 (Conclusion of Law 4).

On February 22, 2022, the Commissioner adopted the ALJ’s proposal and signed

a decision denying and dismissing Elizondo’s appeal based on his untimely grievance

and waiver of his right to challenge the contract. La Villa App. 262-267. Elizondo

timely filed a Motion for Rehearing, La Villa App. 273-277, which was overruled by

operation of law. La Villa App. 5.

Elizondo then sued for judicial review of the Commissioner’s decision and a

declaration of his rights under Texas Education Code § 21.102(b) and La Villa ISD’s

Policy DCA, seeking reversal of the Commissioner’s decision and reinstatement to his

prior position with a term contract, along with awards of court costs and attorney’s fees.

La Villa App. 1-8. The Commissioner filed a plea to the jurisdiction to challenge the

trial court’s ability to entertain Elizondo’s UDJA claim and his request for attorney’s

fees. La Villa App. 9-13. After all parties had briefed the case, the trial court heard

argument.

On January 24, 2023, the trial court signed a final judgment reversing the

Commissioner’s decision in the case, although the date typed on the order was “24th

day of January 2022.” La Villa App. 409. On February 10, 2023, the trial court filed an

13 amended final judgment with the district clerk; the year of signature was corrected to

read “2023,” rather than “2022.” La Villa App. 410. The Commissioner timely

perfected this appeal of the trial court’s amended final judgment. La Villa App. 411-

413.

SUMMARY OF THE ARGUMENT

The Commissioner properly concluded that Elizondo failed to timely file a

grievance because there was substantial evidence showing that he knew or should have

known, with reasonable diligence, that he had a probationary contract when he executed

it. Additionally, the Commissioner correctly determined that Elizondo waived his right

to challenge the terms of his contract because he knowingly and voluntarily acted

inconsistently with that right by accepting the salary and benefits of that contract.

Therefore, for the same reasons the Commissioner upheld La Villa ISD’s decision to

terminate Elizondo’s contract, this Court should reverse the trial court’s erroneous

amended final judgment and affirm the Commissioner’s decision.

ARGUMENT

I. Standard of Review

This Court reviews the Commissioner’s decision under the “substantial

evidence” standard. Tex. Educ. Code § 7.057(d); Tex. Gov’t Code § 2001.174; Poole v.

Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.); see also

Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envt’l Qual., 393 S.W.3d

14 417, 424 (Tex. 2012) (“On appeal from the district court’s judgment, the focus of the

appellate court’s review, as in the district court, is on the agency’s decision.”). Whether

substantial evidence exists to support the Commissioner’s decision is a question of law.

Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000).

However, “substantial evidence” in this context “does not mean a large or

considerable amount of evidence, but rather such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Edinburg Consol. Indep. Sch.

Dist. v. Esparza, 603 S.W.3d 468, 478 (Tex. App.—Corpus Christi 2020, no pet.)

(quoting Hammack v. Pub. Util. Comm’n, 131 S.W.3d 713, 725 (Tex. App.—Austin 2004,

pet. denied) (internal quotation marks omitted)). “Substantial evidence review is a

limited standard of review, requiring only more than a mere scintilla [of evidence] to

support an agency’s determination.” Davis, 34 S.W.3d at 566. It is “a limited standard

that gives great deference to an agency in its field of expertise.” Peaster Indep. Sch. Dist.

v. Glodfelty, 63 S.W.3d 1, 5 (Tex. App.—Fort Worth 2001, no pet.).

“If, based on the evidence as a whole, reasonable minds could have reached the

same conclusion as the Commissioner, then the Commissioner’s decision is supported

by substantial evidence.” Id. “Essentially, this is a rational-basis test to determine, as a

matter of law, whether an agency’s order finds reasonable support in the record.”

Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.).

15 If the Commissioner’s decision is reasonable, it satisfies the substantial evidence

standard. N. E. Indep. Sch. Dist. v. Riou, 598 S.W.3d 243, 251 (Tex. 2020).

II. The Commissioner properly declined to address the merits of Elizondo’s appeal because Elizondo did not timely complain.

As noted above, the Commissioner did not consider Elizondo’s arguments about

the illegality of his second probationary contract because the Commissioner found

substantial evidence to support La Villa ISD’s determination that Elizondo’s complaint

was untimely under its policies and the relevant facts.

School districts have an interest in resolving complaints promptly and, to further

that interest, may require complaints to be filed promptly. See Simani v. Hous. Indep. Sch.

Dist., TEA Docket No. 021-R10-03-2019, 2019 WL 2895250 (Aug. 30, 2019) (also

located at La Villa App. at 120-128). La Villa ISD has adopted such a local policy,

DGBA (Local), which reflects the district’s interest in resolving complaints promptly

by requiring complaints to be filed “[w]ithin 15 days of the date the employee first knew,

or with reasonable diligence should have known, of the decision or action giving rise to

the complaint or grievance.” La Villa App. at 153. Untimely complaints8 are subject to

dismissal under La Villa ISD’s Policy DGBA(Local). La Villa App. at 152. As the

Supreme Court of Texas recently held, if a school district’s internal procedures preclude

8 Although the Commissioner used the term “grievance” in his decision and uses it, generally, to refer to the same type of document, La Villa ISD’s local policy refers to it as a “complaint.” For the sake of consistency, the Commissioner will use the term “complaint” in this Brief.

16 it from reaching the merits of a late-filed complaint, the scope of the Commissioner’s

appellate review is limited, as well. See Davis v. Morath, 624 S.W.3d 215, 223 (Tex. 2021).

Elizondo contends the Commissioner erred by finding his complaint untimely.

The undisputed evidence in the record, however, belies this contention. Instead, the

evidence supports the Commissioner’s determination that Elizondo knew or should have

known that his contract was a probationary contract when he signed it. 9 The contract is

entitled “Second-Year Probationary Contract.” La Villa App. at 131. The contract

contains termination language applicable only to probationary contracts, allowing

termination of Elizondo’s employment at the end of the contract term if the Board

determines that termination serves the District’s best interests. La Villa App. at

133. The contract had only three pages of readily understandable terms and was

substantially similar to the probationary contract that Elizondo had signed with La Villa

ISD the previous year. La Villa App. at 131-134; 135-138. Furthermore, immediately

preceding Elizondo’s signature was the statement: “I have read this Contract and agree

to abide by its terms and conditions.” La Villa App. 133.

The record also contains no evidence that Elizondo filed a complaint asserting

his entitlement to a term contract for the 2020-2021 school year or any other action he

took to bring this complaint to La Villa ISD’s attention at any point during the school

9 For a detailed differentiation between probationary and term contracts, see McCarty v. Jim Ned Consol. Indep. Sch. Dist., TEA Docket No. 052-R10-08-2021, 2022 Tx. Educ. Agency LEXIS 7 (May 5, 2022) (the Commissioner determined that a petitioner’s claim concerning an allegedly improper probationary contract was untimely and waived because the petitioner waited almost a year to complain). 17 year. His failure deprived La Villa ISD of any opportunity to address the complaint

immediately, although it has a strong interest in the type of contracts and associated

rights afforded to its employees. Elizondo did not file his complaint until April 29,

2021, after the Board had informed him of its decision to terminate his employment.

La Villa App. at 42. Therefore, it was appropriate for both La Villa ISD and the

Commissioner to conclude that Elizondo’s complaint was untimely and to dismiss the

complaint because it was not filed within fifteen days of April 22, 2020. That was the

date on which Elizondo, had he exercised any diligence at all, should have known that

he was signing another probationary contract. All of these facts amount to substantial

evidence supporting the Commissioner’s finding that Elizondo’s complaint was

untimely.

Elizondo’s signing the probationary contract has a significant legal effect. In the

absence of fraud, misrepresentation, or lack of capacity, signatories to contracts always

been charged with knowledge of what they have signed.

Every person having capacity to make a contract, in the absence of fraud, misrepresentation, or concealment, must be held to have known what the words used in a contract made by him were, and to have known their meaning; and he must also be held to have known and fully comprehended the legal effect of the contract which the words used made.

Indem. Ins. Co. of N. Am. v. W. L. Macatee & Sons, 101 S.W.2d 553, 556 (Tex. 1937); see

also In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (“absent fraud, misrepresentation,

or deceit, a party is bound by the terms of the contract he signed, regardless of whether

18 he read it or thought it had different terms”). Elizondo made no attempt to show that

he lacked capacity to execute the second probationary contract or that there was fraud,

misrepresentation, or concealment by La Villa ISD in providing him that contract.

Instead, Elizondo willingly signed and returned the probationary contract. He

did not alert La Villa ISD to its alleged mistake. He did not object to being given a

probationary contract or seek clarification about why he was provided one. Most

importantly, he did not file a complaint. Therefore, under fundamental principles of

contract law, Elizondo cannot claim ignorance of his “Second-Year Probationary

Contract” or its terms.

At the trial court, Elizondo ignored these principles and his execution of the

contract and, instead, claimed that his complaint was timely because he filed it within

15 days of his termination, which he contended was the “‘action’ alleged to be illegal”

and “gave rise to the grievance.” La Villa App. at 290. Elizondo’s own complaint

contradicts this assertion because it does not mention his termination. When asked

about the facts supporting his complaint, Elizondo wrote only:

I had been previously employed as a teacher in public education for at least 5 of the 8 years preceding employment by the La Villa Independent School District. As per the Texas Education Code section 21.102, the District is required to provide me with a term contract.

La Villa App. at 89. Elizondo’s own words set out a complaint about the type of

contract he entered into, not about the termination of his employment. Thus, his

complaint a year after he was given a probationary contract, rather than a term contract, 19 was untimely. See Davis, 624 S.W.3d at 224–226 (recognizing that a grievance may be

time barred if the grievance is not timely filed after the complained of action or decision

occurred); Simani v. Houston Indep. Sch. Dist., 2019 WL 4393596, *3-4 (also located at La

Villa App. at 91–100).

Elizondo has argued, however, that Davis supports the timeliness of his

complaint because he was not harmed by having been provided a probationary contract

until the Board decided to terminate him. He contends that his termination was the

illegal “decision or action” that gave rise to his complaint. La Villa App. at 289-291.

But as the Commissioner correctly determined, Davis is distinguishable. It did

not involve a teacher contract, but rather addressed a district wide school appraisal

system. Davis, 624 S.W.3d at 218–19. There, the teachers complained about not only

the appraisal system, but about the allegedly illegal scorecards resulting from the

operation of that system. The teachers’ grievances were filed within the period

permitted by the Dallas school district’s grievance policy. Id. at 225. Dismissing the

school district’s argument that the teachers were actually complaining about the

appraisal system that it had adopted a year earlier, the Court held that, because the

teachers had alleged that the scorecards were illegal, their grievance was timely. Id.

(“The law does not give the Board any authority to decide for itself which ‘action’ the

Teachers are challenging. Like any other plaintiff or administrative complainant, the

Teachers are entitled to frame their own grievance.”). Conversely, in this case, La Villa

20 ISD did not recharacterize Elizondo’s complaint. Instead, it took him at his word, that

he was complaining about the type of contract La Villa ISD offered him and he

executed. Compare La Villa App. at 89 with La Villa App. at 117. The Commissioner

did the same.10 La Villa App. at 298.

Elizondo also argued that Davis supports his timeliness argument because, there,

the Court essentially held a complaint could not accrue until the complainant has

suffered harm. La Villa App. at 289-290. The Davis Court determined that each teacher

was unaware of the appraisal system’s effects on him or her until the scorecards issued;

thus, they did not know they were aggrieved until they received their scorecards. Davis,

624 S.W.3d at 226. In this case, however, Elizondo knew when he signed the second-

year probationary contract that its termination provision would allow La Villa ISD to

end his employment at the end of the contract term if the District decided that doing

so was in its best interest. As Elizondo argued to the trial court, term contracts provide

greater procedural protection for educators than do probationary contracts, La Villa

App. at 287, particularly regarding terminating an educator’s employment. Compare Tex.

Educ. Code § 21.103(a) with Tex. Educ. Code §§ 21.206-21.211. When Elizondo did

not see term-contract protections in the contract he was offered, he actually knew or

should have known that he was, at that point, injured by the lack of the protections to

10 In fact, Elizondo had no choice but to complain about the type of contract he was offered. Because a decision to terminate a probationary contract is final and may not be appealed, Tex. Educ. Code § 21.103; see also Wittman v. Nelson, 100 S.W.3d 356, 361 (Tex. App.—San Antonio 2002, pet. denied), he could not complain about his termination. 21 which he felt entitled. His alleged injury accrued then, and he should have sought a

term contract immediately or, failing that, lodged a complaint about not having been

given one. Unlike the Davis teachers, Elizondo actually knew or should have known

that he was aggrieved when he was offered a contract containing fewer protections for

his continued employment.

Accepting Elizondo’s interpretation of Davis would allow underperforming

teachers to take advantage of school districts. As the Commissioner has pointed out:

For example, the district, believing the teacher has a probationary contract, provides notice that the school board has voted that the best interests of the district will be served by terminating the teacher’s employment. The teacher files a grievance contending that a year ago, she received the wrong type of contract. It is not very likely that the school district could resolve the grievance, grant Petitioner a term contract, and propose the contract for nonrenewal before the deadline for filing a notice of proposed nonrenewal. By laying behind the log, the teacher could prevent the district from terminating her contract that school year.

McCarty, 2022 WL 1997524, *6. The result would be that poor teachers would be given

new contracts only because the district had made a (correctable) error about the type of

contract the teachers should have been given. The school children of Texas are not

well served by this interpretation.

Because (a) nothing in Davis supports Elizondo’s contention that he timely

asserted his complaint and (b) the undisputed evidence in the record shows that

Elizondo knew or, in the exercise of reasonable diligence, should have known of the

action giving rise to his complaint a year before he filed it, when he was signing the

22 “Second-Year Probationary Contract,” the Commissioner correctly determined that

Elizondo’s complaint was untimely.

III. Elizondo waived his right to complain about the District’s giving him a probationary contract by acting inconsistently with an intent to exercise that right.

In the trial court, Elizondo argued that the Commissioner also erred by deciding

that Elizondo had waived his right to complain about the type of contract he was

offered and signed in 2020; Elizondo referred to this conclusion as a “red herring.” La

Villa App. at 291-292. But the Commissioner’s waiver decision was based on

Elizondo’s performance under the probationary contract for a year and his acceptance

of the salary and benefits accruing to him under the contract. These facts are

undisputed. The Commissioner’s waiver decision was sound, and Elizondo’s

arguments to the contrary lack merit.

“A party contractually waives its constitutional or statutory rights by intelligently,

voluntarily, and knowingly relinquishing a known right or acting inconsistent with [an

intention to] claim[ ] that right.” Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22

S.W.3d 831, 844 (Tex. 2000). Parties are free to contract out of statutory default rules

and contractually waive constitutional rights. See Solar Applications Eng’g, Inc. v. T.A.

Operating Corp., 327 S.W.3d 104, 112 (Tex. 2010).

It is undisputed that on April 22, 2020, Elizondo signed a contract “expressly

titled ‘Second Year Probationary Contract.’” La Villa App. at 38-41; 112–115; and 263

23 (Finding of Fact 2). That probationary contract’s termination provision allowed La

Villa ISD to terminate Elizondo at the end of this second probationary period if his

termination served La Villa ISD’s best interest. La Villa App. 40, ¶ 9. It is also

undisputed that more than a year passed between the date on which Elizondo signed

the second probationary contract and the date on which he was notified of his

termination. La Villa App. at 42. Furthermore, Elizondo does not dispute that he

performed under this second probationary contract for the entire school year and

accepted his salary and other benefits while doing so. There is no evidence in the record

that he either failed to perform or that he refused to accept his salary or benefits.

Elizondo argued to the trial court that, under In re Prudential Insurance Company of

America, 148 S.W.3d 124, 132 (Tex. 2004), his performance of the contract and

acceptance of his benefits do not amount to a waiver that is “voluntary, knowing, and

intelligent, with full awareness of the legal consequences.” La Villa App. at 291-292.

In particular, he claimed to have had no “inkling” that his was a probationary contract

until he received his termination notice and that no one asked him to sign anything in

which he agreed to waive his right to a term contract. Id. But Prudential does not stand

for the proposition that the signatories to a contract are shielded from their willful

ignorance of a contract’s terms if they fail to read the contract before signing it. Indeed,

the Prudential court specifically held that the parties fighting application of a contractual

waiver of the constitutional right to a jury trial were “charged with knowledge of all of

24 the lease provisions absent some claim that they were tricked into agreement to them,

which they do not assert.” 148 S.W.3d at 134. Elizondo also does not – and could not

– argue that he was tricked into signing the probationary contract. Therefore, he is

charged with knowledge that it was a probationary contract and of its termination

provision.

Elizondo willingly signed the “Second-Year Probationary Contract.” Because he

has neither argued nor proven that any exception to the general rule applies, he is

deemed to have known and understood the contract, including its legal consequences

with respect to termination. See In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005)

(“Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the

contract he signed, regardless of whether he read it or thought it had different terms.”).

Elizondo’s performance under the Second-Year Probationary Contract and his

acceptance of its benefits was inconsistent with any intention to insist that he was

entitled to a term contract. See Wittman, 100 S.W.3d at 360 (“By accepting the terms of

the probationary contract until notified of the School District’s intention not to renew

that contract, Wittman acted inconsistently with claiming an existing right to a

continuing contract.”). Thus, the Commissioner correctly determined that Elizondo

waived his right to challenge the terms of his probationary contract.

25 CONCLUSION AND PRAYER

For all of the foregoing reasons, the Commissioner respectfully requests that

this honorable Court reverse the trial court’s judgment and, instead, render judgment

affirming the Commissioner’s decision dismissing and denying Elizondo’s appeal for

untimeliness and waiver. The Commissioner further requests that this Court render a

judgment dismissing Elizondo’s UDJA claim and request for attorney’s fees for lack of

jurisdiction. The Commissioner also requests that the Court grant him such other and

further relief, at law or in equity, to which he may be entitled.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

AUSTIN KINGHORN Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA Chief, Administrative Law Division

/s/Karen L. Watkins KAREN L. WATKINS Assistant Attorney General State Bar No. 20927425

OFFICE OF THE ATTORNEY GENERAL

26 Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4208 Facsimile: (512) 320-0167 karen.watkins@oag.texas.gov Counsel for Appellant Mike Morath, Texas Commissioner of Education

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 4,238 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/ Karen L. Watkins KAREN L. WATKINS Assistant Attorney General

27 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellant Morath’s

Brief has been served on the following Appellee by e-service and email on this 17th day

of April 2025:

RUBEN R. PEÑA JOHAN HOLTER State Bar No. 15740900 State Bar No. 24106107 LAW OFFICES OF RUBEN R. PEÑA, P.C. KRISTI GODDEN 222 W. Harrison, Suite B State Bar No. 24079577 Harlingen, Texas 78550 DAVID CAMPBELL Tel.: (956) 496-2060 State Bar No. 24057033 ruben@rubenpenalaw.com EDEN RAMIREZ State Bar No. 24112355 COUNSEL FOR APPELLEE, O’HANLON, DEMERATH & CASTILLO DR. PAZ ELIZONDO 808 West Avenue Austin, Texas 78701 Tel.: (512) 494-9949 Fax: (512) 494-9919 jholter@808west.com kgodden@808west.com dcampbell@808west.com eramirez@808west.com COUNSEL FOR APPELLANT LA VILLA INDEPENDENT SCHOOL DISTRICT

/s/ Karen L. Watkins KAREN L. WATKINS Assistant Attorney General

28 APPENDICES

Appendix A – Second Amended Final Judgment Appendix B – The Commissioner’s Decision

29 TAB A 02/12/2025 03:41:11 PM Velva L. Price District Clerk Travis County D-1-GN-22-002025 CAUS;E NO. D-1-GN-22--002025

DR.PAZ ELIZONDO § IN THE DISTRICT COURT OF Plaintiff § § v. § § MIKE MORATH, TEXAS § 455th JUDICIAL DISTRICT COMMISSIONER OF EDUCATION & § LA VILLA INDEPENDENT SCHOOL § DISTRICT § Defendants § TRAVIS COUNTY, TEXAS

SECOND AMENDED FINAL JUDGMENT

On November 18, 2022, the Court heard and considered the above-styled and numbered cause.

The parties appeared through their attorneys of record. After considering the administrative record,

the briefing, the relevant law, and the oral argument, the Court renders judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the February 22, 2022

Decision of the Commissioner in Docket No. 049-Rl0-07-2021 is hereby REVERSED.

IT IS ORDERED, ADJUDGED, AND DECREED that Defendants' pleas 10 the jurisdiction

are GRANTED as to Plaintiff's additional claim under the Texas Declaratory Judgment Act.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff's claim

under the Texas Declaratory Judgment Act is dismissed.

This is a final and appealable judgment. All relief not granted herein is DENIED.

SIGNED fc h ~ l2.1 t-OY£

PRESIPING JUDGE MA YA GUERRA GAMBLE TAB B DOCKET NO. 049-R10-07-2021

DR. PAZ ELIZONDO, § BEFORE THE Petitioner, § § v. § COMMISSIONER OF EDUCATION § LA VILLA INDEPENDENT SCHOOL § DISTRICT, § Respondent. § THE STATE OF TEXAS DECISION OF THE COMMISSIONER

Petitioner Dr. Paz Elizondo complains that Respondent La Villa Independent School

District denied as untimely his grievance over the termination of his probationary contract.

Adrienne Butcher is the Administrative Law Judge appointed to hear this case. Petitioner is

represented by Ruben Peña, Attorney at Law, Harlingen, Texas. Respondent is represented by

Eden Ramirez and Kristi Godden, Attorneys at Law, Austin, Texas.

The primary issue in this case is whether Petitioner timely filed his grievance with

Respondent under Respondent’s local grievance policy, Policy DGBA (Local). The parties

submitted their respective briefs on this issue. Petitioner argues that the timeline to file a

grievance began when Respondent notified him of the termination of his probationary contract.

Respondent argues that the timeline began when Petitioner and Respondent executed the second

probationary contract about which Petitioner complains. Respondent is correct.

Because the local record contains substantial evidence that Respondent’s board of

trustees did not err in denying Petitioner’s grievance as untimely, and because Petitioner waived

his right to complain about the type of contract that Respondent issued him when he executed

and then performed under that contract, accepting its benefits for a year before complaining

about it, Petitioner’s appeal is denied. 1

1 Petitioner filed exceptions to the Administrative Law Judge’s Proposal for Decision, which were considered.

049-R10-07-2021

262 ELIZONDO V. LA VILLA ISD 000233 FINDINGS OF FACT

After due consideration of the record and matters officially noticed, it is concluded that

the following Findings of Fact are established by the record and file in this case in accordance

with 19 Tex. Admin. Code § 157.1072(i):

1. Petitioner had a probationary administrator contract with Respondent during the

2019–2020 school year, which preceded the probationary contract at issue in this appeal.

2. On or about April 22, 2020, Petitioner signed a second probationary contract for

the 2020–2021 school year. The contract is entitled, “Second Year Probationary Contract.”

3. Petitioner worked for Respondent during the 2020–2021 school year under the

second probationary contract. On April 26, 2021, Respondent notified Petitioner by hand-

delivered letter that in an April 17, 2021 board meeting, the board voted to terminate Petitioner’s

probationary contract at the end of its term.

4. Respondent has a local employee grievance policy, Policy DGBA (Local). The

policy provides, in relevant part, that an employee’s complaint form must be filed “[w]ithin 15

days of the date the employee first knew, or with reasonable diligence should have known, of the

decision or action giving rise to the complaint or grievance.”

5. On April 29, 2021, Petitioner filed a grievance under Respondent’s Policy DGBA

(Local). The grievance complained about “[Respondent’s] administration providing [Petitioner]

a probationary contract by mistake instead of a term contract for the 2020–2021 school year.”

Respondent’s administration dismissed the lower-level grievance as untimely. On June 9, 2021,

Respondent’s board of trustees denied the Level 3 grievance appeal.

6. Petitioner timely filed a petition for review with the Commissioner. The parties

filed briefs on the issue of Petitioner’s grievance’s timeliness. Petitioner did not appear for the

December 8, 2021 scheduled telephone hearing on the briefs before the Administrative Law

Judge. Therefore, this case is decided on submission of the parties’ briefs.

049-R10-07-2021 2

263 ELIZONDO V. LA VILLA ISD 000234 DISCUSSION

Probationary and term contracts

The Texas Education Code distinguishes probationary and term contracts. Probationary

contracts carry far fewer rights and procedural protections than term contracts, particularly with

respect to termination rights. Compare Tex. Educ. Code § 21.203 (probationary contract

termination procedures) with Tex. Educ. Code § 21.206–.209. School boards can terminate a

probationary contract upon finding that termination is in the school district’s best interest and

need only notify the teacher of the termination. A board’s probationary contract termination

decision is not appealable. Tex. Educ. Code § 21.103(a). Thus, a probationary teacher is

generally limited to challenging the sufficiency of the termination notice. See id. By contrast,

term contracts carry far greater procedural protections for teacher nonrenewal, including the right

to a hearing by the board or an independent hearing examiner and the right to appeal the school

board’s final decision to the Commissioner. See Tex. Educ. Code §§ 21.206–.206, .301.

Because of the statutory distinction between the two contract types, school districts approach

end-of-contract issues differently. A probationary contract holder is, as the contract name

indicates, essentially on probation.

Petitioner’s grievance deadline under Policy DGBA (Local)

The issue before the Commissioner is limited to the timeliness of Petitioner’s grievance

with Respondent under Policy DGBA (Local). Policy DGBA (Local) provides, in relevant part,

that employee complaint forms must be filed “[w]ithin 15 days of the date the employee first

knew, or with reasonable diligence should have known, of the decision or action giving rise to

the complaint or grievance.” Texas law recognizes that school boards are the ultimate authorities

on interpreting their policies. See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565

(Tex. 2000).

Petitioner signed his second probationary contract, expressly titled, “Second Year

Probationary Contract,” on April 22, 2020. Yet, he did not file his employee grievance

complaining that Respondent issued him the wrong contract type until April 29, 2021, after the

049-R10-07-2021 3

264 ELIZONDO V. LA VILLA ISD 000235 board gave him its termination notice. The board denied his grievance as untimely under its

fifteen-day policy deadline. The record supports the board’s finding that Petitioner knew or

should have known that he had a probationary contract when he signed a contract plainly

reflecting that in its title. See Simani v. Houston Indep. Sch. Dist., 2019 LEXIS 16, *13

(Comm’r Educ. 2019).

Petitioner argues that under Davis v. Morath, No. 19-015 (Tex. 2021), the deadline for

Petitioner to file his grievance began when the board issued his termination letter. However,

Davis involved the adoption of a district-wide school appraisal system that applied to all

teachers, not to an individual teacher’s employment contract. The Davis Court held that the

teachers did not know until their scorecards issued under the appraisal system how the policy

would impact them individually. In this case, the contract was not a general school policy

applicable to all teachers but a specific legal document impacting only Petitioner as a teacher.

Aside from its title, the contract expressly provided for probationary contract termination,

lacking any term contract procedural protections. Petitioner’s alleged harm accrued on the day

that he signed the probationary contract containing these terms, not on the day Respondent

notified him of his termination in conformance with those terms. Petitioner’s argument is

unpersuasive.

Waiver of right to complain about contract

In addition to failing to timely file a grievance under Respondent’s Policy DGBA

(Local), Petitioner waived his right to complain about the type of contract that Respondent issued

him when he performed under that contract for a year and accepted its salary and benefits. The

Commissioner has previously held that a party waives the right to complain about a school

district issuing the wrong type of contract if the party has acted inconsistently with its rights by

accepting a contract’s benefits. See Simani, 2019 LEXIS 16, at *13–14; see also Wittman v.

Nelson, 100 S.W.3d 356, 360 (Tex. App.—San Antonio 2002, pet. denied). Petitioner waived

his right to complain about the fact that Respondent issued him a probationary contract in April

049-R10-07-2021 4

265 ELIZONDO V. LA VILLA ISD 000236 2020 by signing it at that time and then performing under it for a year before complaining that it

was the wrong type of contract.

CONCLUSIONS OF LAW

After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact, in my capacity as Commissioner of Education, I make the following

Conclusions of Law:

1. Texas law requires school districts to adopt grievance procedures. Respondent

adopted Policy DGBA (Local) as a grievance policy for employees, in compliance with Texas

law. Tex. Educ. Code § 11.1511(b)(13).

2. Petitioner did not timely file his grievance regarding the type of contract that

Respondent issued him in April 2020. The timeline for Petitioner to file a grievance under the

policy began when he was issued a probationary contract, not a year later in April 2021, when

Respondent notified Petitioner that it was terminating his contract.

3. Respondent did not err in denying Petitioner’s grievance as untimely under its

Policy DGBA (Local). The local record contains substantial evidence to support Respondent’s

finding that Petitioner knew or should have known, with reasonable diligence, that he had a

probationary contract when he executed a contract bearing that title and setting out probationary

contract terms on April 22, 2020.

4. A party can contractually waive his statutory or constitutional rights by

knowingly and voluntarily acting inconsistently with those rights. Petitioner signed his

probationary contract with Respondent and then accepted the salary and benefits under that

contract for several months until he received his termination letter. Petitioner waived his right to

challenge the terms of his probationary contract.

5. Petitioner’s appeal should be denied.

049-R10-07-2021 5

266 ELIZONDO V. LA VILLA ISD 000237 ORDER

After due consideration of the record, matters officially noticed and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education, it is

hereby ORDERED that the Petitioner’s appeal be, and is hereby, DISMISSED.

22nd day of February 2022. SIGNED AND ISSUED this _____

D g ta y s gned by M ke

Mike Morath Morath Date: 2022.02.22 11:45:34 -06'00' _________________________________________ MIKE MORATH COMMISSIONER OF EDUCATION

049-R10-07-2021 6

267 ELIZONDO V. LA VILLA ISD 000238 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Jeff Lutz on behalf of Karen Watkins Bar No. 20927425 jeff.lutz@oag.texas.gov Envelope ID: 99805124 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: 2025 0417 Appellant Morath Brief Status as of 4/17/2025 3:09 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ruben Pena 15740900 ruben@rubenpenalaw.com 4/17/2025 2:08:32 PM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 4/17/2025 2:08:32 PM SENT

Karen Watkins karen.watkins@oag.texas.gov 4/17/2025 2:08:32 PM SENT

Kristy Alonzo kalonzo@thompsonhorton.com 4/17/2025 2:08:32 PM SENT

David J.Campbell dcampbell@thompsonhorton.com 4/17/2025 2:08:32 PM SENT

Kate French kfrench@thompsonhorton.com 4/17/2025 2:08:32 PM SENT