ACCEPTED 15-25-00024-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/5/2025 9:48 PM No. 15-25-00024-CV CHRISTOPHER A. PRINE CLERK _______________________________________________________________ FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS IN THE FIFTEENTH COURT OF APPEALS 5/5/2025 9:48:56 PM OF TEXAS CHRISTOPHER A. PRINE _______________________________________________________________ Clerk
Mike Morath, Texas Commissioner of Education and La Villa Independent School District Appellants v.
Dr. Paz Elizondo Appellee _______________________________________________________________
Appeal from the 455th District Court of Travis County, Texas, Cause No. D-1-GN-22-002025 _______________________________________________________________
La Villa Independent School District’s Reply Brief _______________________________________________________________
David J. Campbell dcampbell@808west.com State Bar No. 24057033 THOMPSON & HORTON LLP 8300 N. MoPac Expressway, Suite 220 Austin, Texas 78759 (512) 825-3114 (713) 583-8884 (fax)
Appellant La Villa ISD TABLE OF CONTENTS Page
TABLE OF CONTENTS ........................................................................... 2
INDEX OF AUTHORITIES ...................................................................... 4
ISSUES PRESENTED .............................................................................. 5
INTRODUCTION ...................................................................................... 6
ARGUMENT ............................................................................................. 8
I. The trial court erred in reversing the Commissioner’s Decision......................................................... 8
A. School districts are authorized to dismiss grievances as untimely. ................................................. 8
B. The Commissioner’s Decision appropriately affirmed the school district’s dismissal of the grievance as untimely. ................................................. 10
C. The Commissioner’s Decision does not conflict with past Commissioner decisions. ................. 12
D. The Commissioner’s Decision appropriately recognizes that the triggering event for Dr. Elizondo’s grievance was his receipt of the probationary contract .................................................. 14
E. The Court could address this entire case based on waiver because the Commissioner’s decision was based, in the alternative, on waiver. .......................................................................... 17
II. Dr. Elizondo asks this Court to affirm the trial court’s judgment on his declaratory judgment claim even though the trial court dismissed. ....................... 19
2 PRAYER .................................................................................................. 21
CERTIFICATE OF COMPLIANCE ........................................................ 23
CERTIFICATE OF SERVICE................................................................. 23
3 INDEX OF AUTHORITIES Page Cases
Bella Palma, LLC v. Young, 601 S.W.3d 799 (Tex. 2020) ................................................................. 20
Davis v. Morath, 624 S.W.3d 215 (Tex. 2021) ........................................................ passim
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) ................................................................... 20
Morath v. Elizondo, No. 03-23-00125-CV, 2025 WL 270611 (Tex. App.—Austin Jan. 23, 2025, no pet.) ......................................................................... 20
Statutes
Tex. Educ. Code § 11.1511(b)(13) .............................................................. 9 Tex. Educ. Code § 21.103 .................................................................. 16, 19 Tex. Educ. Code § 21.1041 ...................................................................... 16 Tex. Educ. Code § 21.207 ........................................................................ 16 Tex. Educ. Code §§ 21.251–.259 .............................................................. 19
Other Authorities
Higareda v. Valley View Ind. Sch. Dist., No. 027-R10-12-2013 (Tex. Comm’r Educ. Oct. 7, 2014) ............... 12, 13
Rules
Tex. R. App. P. 25.1 ................................................................................. 21
4 ISSUES PRESENTED The Court should disregard Dr. Elizondo’s second issue because it is
based on the mistaken impression that the trial court found his
declaratory judgment claim “was sustainable.” Appellee’s Br. at 5. The
opposite is true. The trial court dismissed that claim. See Appx 450.
5 INTRODUCTION Throughout his brief, Dr. Elizondo repeatedly complains it is unfair
that his grievance was dismissed as untimely because he should win on
the merits of his complaint. Before the merits of his grievance could be
addressed, Dr. Elizondo had the burden to establish that his grievance
was timely. See, e.g., Davis v. Morath, 624 S.W.3d 215, 223 (Tex. 2021).
In this case, it was not. And that should resolve this entire case.
La Villa ISD denied Dr. Elizondo’s complaint because it was
untimely—filed over a year after the fact. Compare Appx 185–88 with
Appx 190. So La Villa ISD did not need to consider the merits of
Dr. Elizondo’s claim one way or the other because regardless of the merits
the complaint was clearly untimely. Appx 117–18.
The Commissioner affirmed that untimeliness decision. In the appeal
to the Commissioner, the merits of Dr. Elizondo’s claim were irrelevant
because the only question before the Commissioner was whether Dr.
Elizondo’s complaint was properly dismissed as untimely. Appx 262–67;
see also Davis, 624 S.W.3d at 223 (explaining that the Commissioner of
Education is not authorized to “reach the merits of a complainant’s
arguments” if the underlying grievance “was not timely brought at the
6 District level”).
The local grievance policy in La Villa ISD (and in school districts
across the State) does not “nullify the clear dictates of the Texas
Legislature,” as Dr. Elizondo asserts on page 6 of his brief. Rather, the
grievance policy provides an opportunity for a grievance to be heard and
resolved if it is filed within 15 days of when the employee “first knew, or
with reasonable diligence should have known, of the action giving rise to
the complaint or grievance.” Appx 118. If Dr. Elizondo had complained
about the type of contract he was given at the beginning of the school year,
La Villa ISD could have considered the complaint and if it had any merit,
the school district could have provided a remedy by giving him a different
type of contract. But at the end of the school year, it was too late for
La Villa ISD to provide any remedy based on the complaint Dr. Elizondo
filed.
7 ARGUMENT I. The trial court erred in reversing the Commissioner’s Decision.
In its opening brief, La Villa ISD explained that the trial court erred
in reversing the Commissioner’s Decision because there is evidence in the
administrative record that Dr. Elizondo’s local grievance was untimely.
LVISD Br. at 17–26. And the Commissioner’s brief similarly explained
that the Commissioner properly declined to address the merits of
Dr. Elizondo’s complaint because the complaint was untimely.
Comm’r Br. at 16–23. In response, Dr. Elizondo largely ignores that issue
and instead attempts to argue the merits of his complaint instead of
addressing the issue before the Court. See Appellee Br. at 6–15. But
neither the school district nor the Commissioner have considered the
merits because Dr. Elizondo’s grievance was clearly and egregiously
untimely.
A. School districts are authorized to dismiss grievances as untimely.
On pages 7–8 of his brief, 1 Dr. Elizondo contends that La Villa ISD’s
1 On page 7 of his brief, Dr. Elizondo complains that the Commissioner “held that he did not have jurisdiction” under Texas Education Code § 7.057. But the
8 local grievance policy “is preempted by the action of the legislature itself.”
It is unclear what he means by that because his brief does not identify
any statute that prevents a school district from requiring that a local
grievance be filed in a timely manner. See Appellee Br. at 7–8.
To the extent Dr. Elizondo is arguing that school districts cannot
dismiss untimely grievances, that argument was squarely (and recently)
rejected by the Texas Supreme Court in Davis v. Morath, 624 S.W.3d 215,
(Tex. 2021). In Davis, the Court not only affirmed that school districts
are authorized to adopt rules and procedures for their local grievances.
Id. at 223 (citing Tex. Educ. Code § 11.1511(b)(13)). The Court further
stated that when a school district dismisses a grievance as untimely, the
Commissioner is not authorized “to reach the merits of a complainant’s
arguments regardless of how the complaint was handled at the school-
district level.” Id.
Indeed, Dr. Elizondo is not unaware of Davis. Later in his brief.
Dr. Elizondo seems to walk away from his initial assertion that grievance
timelines are preempted by the Legislature by recognizing that Davis
Commissioner’s Decision contains no such jurisdictional holding. See Appx 262– 67.
9 applies to this case. See Appellee’s Br. at 16–17. Applying Davis to this
case, Dr. Elizondo’s grievance was untimely for the reasons described in
the following sections.
B. The Commissioner’s Decision appropriately affirmed the school district’s dismissal of the grievance as untimely.
On pages 9–10 of his brief, Dr. Elizondo contends that although the
language in the probationary contract was clear, it is unfair to assume
that Dr. Elizondo “understood he was entitled to a term or continuing
contract or that he actually wanted to be in a probationary contract.”
Appellee Br. at 9. But that assertion is both wrong and irrelevant.
First, it is wrong because it is certainly fair to presume that
Dr. Elizondo “wanted to be in a probationary contract” because he signed
a probationary contract without any complaint. In fact, he didn’t just sign
one probationary contract—he signed two. Appx 97–104.
Second, the assertion is also wrong because as an experienced school
administrator—who not only has principal and superintendent
certificates but also has masters and doctorate degrees in education—
Dr. Elizondo was in the best position to know whether his past work
experience entitled him to receive a term contract or a probationary
10 contract. See Appx 95–96. There is no evidence in the record that
Dr. Elizondo was ignorant about the legal requirement, and when he filed
his grievance, Dr. Elizondo did not assert that he was ignorant of the
legal requirements related to term and probationary contracts. See
Appx 87–93.
Third, whether or not Dr. Elizondo was ignorant of the legal
requirements is irrelevant because the local grievance policy sets the
deadline for filing a grievance at 15 days after the employee “first knew,
or with reasonable diligence should have known, of the decision or action
giving rise to the complaint or grievance.” Appx 153. The question is not
when an employee becomes aware of a potential legal argument for
challenging the decision or action; the only relevant question is when the
employee became aware of the action or decision. See id.
It is undisputed that Dr. Elizondo read and signed a probationary
contract in April 2020 and agreed to be bound by its terms and conditions.
Appx 103. Although his grievance complained that the probationary
contract should have been a term contract, that grievance was filed over
a year later, long after the deadline to file that grievance had passed.
Appx 117–18.
11 C. The Commissioner’s Decision does not conflict with past Commissioner decisions.
On pages 10–11 of his brief, Dr. Elizondo contends the Commissioner’s
Decision that Dr. Elizondo’s grievance is untimely conflicts with a past
Commissioner’s decision, specifically Higareda v. Valley View Ind. Sch.
Dist., No. 027-R10-12-2013 (Tex. Comm’r Educ. Oct. 7, 2014). 2
Admittedly, in Higareda, the Commissioner ordered that an employee be
reinstated with a term contract instead of a probationary contract. Id. at
11–12. However, Dr. Elizondo glosses over two fairly significant
differences between the facts in Higareda and the very different facts in
this case.
First, unlike Higareda, the school district’s grievance policy is in the
record. In Higareda, the Commissioner concluded he could not declare
the grievance to be untimely because “there is no evidence in the local
record of what Respondent’s grievance policy required.” Id. at 4. Here, of
course, La Villa ISD’s grievance policy is in the record. Appx 150–56.
Second, unlike Higareda, the Commissioner in this case found there is
2 For the Court’s convenience, a copy of Higareda is attached as Tab 1 to this reply brief.
12 evidence that Dr. Elizondo knew or should have known about the facts
giving rise to his grievance months before he filed it. In Higareda, the
Commissioner found that the evidence established the opposite because
there was no evidence that Higareda “knew or should have known prior
to filing his grievance that the Board had not voted to approve the
Contract.” Id. at 5.
Unlike Higareda, who had no way of knowing that the school board
had not approved his employment contract, Dr. Elizondo certainly knew
his employment history and knew, or should have known, that the
contract he signed was a probationary contract. See Appx 131–38 (the
clearly-labelled probationary contracts), Appx 265 (“The record supports
the board’s finding that [Dr. Elizondo] knew or should have known that
he had a probationary contract when he signed a contract plainly
reflecting that in its title.”); see also Appx 89 (Elizondo’s grievance
complaining that because of his employment history he should have been
given a term contract). Indeed, in a case like this one, the employee is in
a better position to know whether he should have a probationary or term
contract based on his prior employment.
13 D. The Commissioner’s Decision appropriately recognizes that the triggering event for Dr. Elizondo’s grievance was his receipt of the probationary contract .
Dr. Elizondo asserts there “is no dispute that Dr. Elizondo’s
‘triggering’ event was the notice of termination of April 26, 2021.
Appellee’s Br. at 17. But that is simply not true. In fact, everyone disputes
that—that dispute is pretty much at the center of this case. La Villa ISD
disputed that fact when its Board dismissed Dr. Elizondo’s grievance as
untimely. Appx 150–56. And the commissioner disputed this fact when
he affirmed that Dr. Elizondo’s “alleged harm accrued on the day that he
signed the probationary contract containing those terms, not on the day
[La Villa ISD] notified him of his termination in conformance with those
terms.” Appx 265. Both La Villa ISD and the Commissioner were right.
The Commissioner and La Villa ISD were right because a grievance
deadline is triggered based on the action or decision that genuinely gives
rise to the grievance. Davis, 624 S.W.3d at 225–26. In Davis, the Court
concluded that part of the underlying grievances could be considered
timely “so long as the grievance genuinely complains about an ‘action or
decision’ that occurred within ten business days preceding its filing.” Id.
at 226. Thus, the teachers’ grievances about the appraisal scorecards,
14 which they received within 10 days of filing their grievances, were timely.
Id. Similarly, here, Dr. Elizondo’s grievance deadline was triggered when
he received and signed the probationary contract. See Appx 262–67.
Although Dr. Elizondo claims his grievance was about the notice of
termination of April 26, 2021, that is simply not true. Dr. Elizondo’s
grievance says nothing about the notice of termination. Appx 88–89.
Indeed, when asked to state his complaint, Dr. Elizondo responded that
his complaint was about something that occurred over a year before he
filed the grievance: “La Villa ISD administration providing me a
probationary contract by mistake instead of a term contract for the 2020-
2021 school year.” Id. And when did that happen? Not a few days before
that, on April 26, 2021. Rather, Dr. Elizondo was provided with the
probationary contract over a year before that — on or before April 22,
2020, when he signed the probationary contract. Appx 101–03
Indeed, the triggering event could not have been when Dr. Elizondo
received the notice of termination. If Dr. Elizondo had legitimately
wanted to take the position that his contract was, as a matter of law, a
term contract despite its title, Dr. Elizondo could have requested a
hearing under Section 21.207 of the Texas Education Code. See Tex.
15 Educ. Code § 21.207.
The decision by La Villa ISD’s Board of Trustees to terminate
Dr. Elizondo’s probationary contract at the end of the school year was
“final” and cannot be challenged by any appeal. Tex. Educ. Code §
21.103. 3 Dr. Elizondo should not be allowed to circumvent the
Legislature’s decision to make the school board’s decision final and
unappealable based on an untimely complaint that he should never have
been given the contract he signed in the first place.
Under Davis, the triggering event to determine timeliness of a
grievance is identified by looking at what action or decision the grievance
genuinely complains about. See Davis, 624 S.W.3d at 224–25.
Dr. Elizondo’s grievance genuinely complains about the school district’s
administration providing him with a probationary contract (which
happened over a year before he filed his grievance), not about the Board’s
notice of termination. Dr. Elizondo cannot use an untimely complaint to
circumvent the Board’s final and unappealable notice of termination.
3 Mid-year terminations of a probationary contract can be challenged, see Tex. Educ. Code § 21.1041, but this case does not involve a mid-year termination.
16 E. The Court could address this entire case based on waiver because the Commissioner’s decision was based, in the alternative, on waiver.
In response to the Commissioner’s arguments regarding waiver on
pages 23–25 of the Commissioner’s appellate brief, Dr. Elizondo contends
there cannot be waiver because there is no evidence Dr. Elizondo was
aware that he was signing a probationary contract and not a term
contract. Appellee Br. 12–15. But the record demonstrates otherwise.
Although Dr. Elizondo makes excuses and feigns ignorance about the
nature of the probationary contact, the Commissioner appropriately
rejected those excuses because the contract is clearly labeled a
probationary contract. See Appx 245–46, see also Appx 101.
Although Dr. Elizondo asserts the contract “does not provide the
teacher with any idea that he or she can be dismissed without recourse,”
Appellee’s Br. at 13–14, the record shows the opposite. The probationary
contract expressly states: “This Contract will terminate, in accordance
with the procedures of 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 . . ..” Appx 103. Indeed,
as expressly allowed by the contract, the Board terminated the contract
17 at the end of the contract period because terminating the contract was in
the best interest of the school district. Appx 107.
Although Dr. Elizondo complains that he did not voluntarily,
knowingly, and intelligently enter into the contract, the record shows
that he did. Dr. Elizondo has never disputed that he signed the 3-page
contract, and by signing the probationary contract, he represented that
he had “read this Contract and agree[d] to abide by its terms and
conditions.” Appx 103.
Although Dr. Elizondo accuses La Villa ISD of laying behind the log,
Appellee’s Br. at 9, and asserts that school districts “have the upper
hand,” id. at 15, there is simply no evidence to support these assertions.
Nothing in the record indicates that La Villa ISD did anything other than
provide an employment contract to Dr. Elizondo in good faith. And he
signed it without complaint. If anyone laid behind the proverbial log, it
was Dr. Elizondo because he was in the best position to know whether
his employment history allowed him to ask for a term contract, but he
made no such request and instead read the probationary contract and
signed it without complaint. Appx 103.
The trial court’s ruling improperly encourages employees like
18 Dr. Elizondo to lay behind the log and wait until they realize their
employment might be ended before complaining about the type of
contract they were given in attempt to perform a procedural gotcha on
the school district. 4 The Commissioner’s Decision appropriately
recognizes that if school district employees believe they are entitled by
law to receive a different type of contract, they should raise the issue in
a timely manner and not wait until the contract is at its end.
II. Dr. Elizondo asks this Court to affirm the trial court’s judgment on his declaratory judgment claim even though the trial court dismissed.
Dr. Elizondo asks the Court to affirm the trial court’s judgment on his
declaratory judgment claim, Appellee’s Br. at 20, but it’s not clear why.
The trial court granted Appellants’ pleas to the jurisdiction and
dismissed Dr. Elizondo’s declaratory judgment claim. Appx 450.
In an earlier judgment, the trial court had denied Appellants’ pleas to
the jurisdiction and did not expressly rule on Dr. Elizondo’s declaratory
4 Such a maneuver could potentially be a procedural gotcha because the procedures and deadlines for terminating a probationary contract are different than the procedures and deadlines for terminating a term contract. Compare Tex. Educ. Code § 21.103 (process for terminating a probationary contract) with Tex. Educ. Code §§ 21.251–.259 (process for terminating a term contract).
19 judgment claim. Appx 410. In the appeal of that earlier judgment, the
Third Court of Appeals held that it was unclear if this earlier judgment
was final and appealable. Morath v. Elizondo, No. 03-23-00125-CV, 2025
WL 270611, at *1 (Tex. App.—Austin Jan. 23, 2025, no pet.) (citing Bella
Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020); Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 206 (Tex. 2001)). Accordingly, the Third Court
of Appeals remanded the case. Id.
In the Second Amended Final Judgment, the trial court granted
Appellants’ pleas to the jurisdiction and dismissed Dr. Elizondo’s
declaratory judgment claim. Appx 450. Dr. Elizondo did not file a notice
of appeal regarding the pleas to the jurisdiction and dismissal of his
declaratory judgment claim or provide the Court with any briefing
arguing that the trial court erred in dismissing that claim. In fact, Dr.
Elizondo argues the Court should “affirm the trial court’s judgment” as
to his declaratory judgment claim. If the issue were before the Court, La
Villa ISD would agree the Court should affirm the judgment as to the
dismissal of Dr. Elizondo’s declaratory judgment claim, but the issue is
not before the Court because Dr. Elizondo failed to file a notice of appeal
or a cross-appeal regarding the trial court’s dismissal of his declaratory
20 judgment claim. See Tex. R. App. P. 25.1.
Accordingly, the Court need not address the trial court’s dismissal of
Dr. Elizondo’s declaratory judgment claim because no party has filed a
notice of appeal regarding that portion of the Second Amended Final
Judgment or argued that the trial court erred in dismissing that claim.
PRAYER La Villa ISD respectfully requests the Court reverse the trial court’s final
judgment as to the Commissioner’s Decision and render judgment that the Decision
of the Commissioner in Docket No. 049-R10-2021 is affirmed.5
5 In his Conclusion and Prayer, Dr. Elizondo asks the Court to “find that Appellee was entitled to a term contract”; however, that issue is not before the Court because the only issue the Commissioner could decide was whether Dr. Elizondo’s grievance was untimely. See Davis, 624 S.W.3d at 223 (explaining that the Commissioner of Education is not authorized to “reach the merits of a complainant’s arguments” if the underlying grievance “was not timely brought at the District level”). Dr. Elizondo also asks the Court to remand this case for a determination of attorneys’ fees, but remand would be inappropriate because the trial court rendered a final judgment dismissing Dr. Elizondo’s declaratory judgment claim that Dr. Elizondo chose not to appeal. Appx 450. In any case, Dr. Elizondo has no claim for which he could recover attorneys’ fees because the trial court denied all relief on Dr. Elizondo’s declaratory judgment claim, and Dr. Elizondo has not appealed that denial.
21 Respectfully submitted, /s/ David Campbell David Campbell State Bar No. 24057033 dcampbell@808west.com Thompson & Horton LLP 8300 N. MoPac Expressway, Suite 220 Austin, Texas 78759 (512) 825-3114 (713) 583-8884 (fax) Fax (512) 494-9919
Appellant La Villa ISD
22 CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that based on the word count of the computer program used to prepare the foregoing document, the relevant sections of this document contain 3,238 words.
/s/ David Campbell David Campbell
CERTIFICATE OF SERVICE Pursuant to Tex. R. App. P. 9.5(e), an automated certificate of service will be generated when this document is e-filed.
/s/ David Campbell David Campbell
23 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.
Kate French on behalf of David Campbell Bar No. 24057033 kfrench@thompsonhorton.com Envelope ID: 100467952 Filing Code Description: Other Brief Filing Description: La Villa ISD's Reply Brief Status as of 5/6/2025 7:09 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
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Jeff Lutz jeff.lutz@oag.texas.gov 5/5/2025 9:48:56 PM SENT
Karen Watkins karen.watkins@oag.texas.gov 5/5/2025 9:48:56 PM SENT
Kristy Alonzo kalonzo@thompsonhorton.com 5/5/2025 9:48:56 PM SENT
David J.Campbell dcampbell@thompsonhorton.com 5/5/2025 9:48:56 PM SENT
Kate French kfrench@thompsonhorton.com 5/5/2025 9:48:56 PM SENT