State v. Leo J. Tran

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00855-CV

The State Board for Educator Certification, Appellant

v.

Leo J. Tran, Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-16-001802, THE HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

MEMORANDUM OPINION

The State Board for Educator Certification (the Board) appeals from the district

court’s judgment reversing the Board’s Final Decision and Order (the Decision) as arbitrary or

capricious. In the underlying suit for judicial review, Leo J. Tran contested the Board’s Decision

that revoked his educator certificates, asserting that he was “denied due process of law” because

he failed to receive “the assistance of counsel before a state agency.” Specifically, Tran asserts

that he was denied due process because his counsel during the administrative proceedings

(1) failed to respond to requests for admissions that were then deemed admitted and (2) notified

Tran of a hearing when it was too late for Tran to attend. We conclude that, on this record, the

Board did not deprive Tran of his due process rights and that Tran did not meet his burden to

establish that the Board’s Decision was arbitrary or capricious. We therefore reverse the district

court’s judgment and affirm the Board’s Decision.
 BACKGROUND

The parties—by joint stipulation—limited the administrative record to certain

unredacted pages of the administrative record; the audio file of the September 30, 2015 hearing

before an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings

(SOAH) (the ALJ Hearing); and the video file of the February 12, 2016 Board meeting (the

Board Hearing). Because the only cause of action raised in Tran’s suit concerns whether he

received due process in the administrative proceedings, we begin with a detailed description of

the procedural history as taken from this limited administrative record.

In November 2013, the Texas Education Agency, Educator Leadership and

Quality Division (TEA) filed an original petition against Tran, a teacher employed with the

Pflugerville Independent School District from 2006 until 2011. See Tex. Educ. Code § 21.035

(permitting Board to delegate authority to TEA to dispose of contested case involving educator

certification and requiring TEA to provide Board’s administrative functions and services). TEA

alleged that Tran violated the Board’s rules, see 19 Tex. Admin. Code §§ 247.2(1)(G), (I), (J),

(3)(B), (3)(I) (Code of Ethics and Standard Practices for Texas Educators), 249.15(b)(2), (3), (7)

(Disciplinary Action by State Bd. for Educator Certification), and prayed for a sanction up to and

including permanent revocation of Tran’s Texas Educator Certification, see id. § 249.15(a)

(authorizing range of sanctions).1 TEA’s petition primarily alleged that Tran told an

acquaintance in April 2011 that he had been having thoughts of “going to [the high school where

1
Unless otherwise indicated, all citations to the Texas Administrative Code are to the
versions in effect at the relevant time and the citations to title 1 and 19 of the Texas
Administrative Code are to the rules promulgated by SOAH and the Board, respectively. See
Tex. Educ. Code § 21.041 (authorizing Board to propose and adopt rules), Tex. Gov’t Code
§ 2003.050(a) (“The chief administrative law judge shall adopt rules that govern the procedures,
including the discovery procedures, that relate to a hearing conducted by the office.”).
2
he taught], shooting [the principal and assistant principal], and then killing himself” and “related

a plan of where he would buy the gun” and “that he would possible [sic] want to watch [the

principal and assistant principal] suffer.” The petition also listed ten other unrelated incidents

from 2008 to 2011 of alleged improper professional conduct, including four that resulted in

formal written reprimands.2 Tran, initially acting pro se, timely filed an answer denying each

and every factual allegation, and the matter was referred to SOAH. See id. § 249.15(e)

(providing for referral to SOAH for hearing). Tran later retained counsel.

The limited administrative record does not include any other filings until

May 27, 2015. On that date, TEA served a notice of hearing stating that the ALJ Hearing will be

held on “September 29–30, 2015, at 9:00 a.m.” The notice described the purpose of the ALJ

Hearing as “to determine whether . . . TRAN . . . has violated any provision” of the Board’s

rules, as alleged in the petition. The notice also described the rules and regulations governing the

ALJ Hearing, explained Tran’s rights at the hearing, and invited him to appear at the hearing:

The hearing is being conducted under authority of TEX. EDUC. CODE §§ 21.031,
21.035 and 21.041, and the rules and regulations duly promulgated thereunder,
and pursuant to the Administrative Procedure Act, TEX. GOV’T CODE Ch. 2001, 1
TEX. ADMIN. CODE, Ch. 155, and TEX. OCC. CODE, Ch. 53.

...

2
The alleged conduct that was formally reprimanded involved Tran calling a student a
profane name and locking the student out of the classroom; installing personal computer
equipment in his classroom and connecting it to the school network; arguing about and
questioning the assistant principal’s reminders that he should engage in appropriate, professional
communications with colleagues, parents, and staff; and entering and disrupting a training
session that the assistant principal was conducting for new teachers and engaging in hostile
behavior. Other alleged conduct included, among other things, making inappropriate sexual
references and innuendos and repeatedly making racially and ethnically insensitive comments to
his students.
3
 You have the right to be present at this hearing and to be represented by legal
counsel. An [ALJ] will be presiding at the hearing, and allow all parties an
opportunity to present witnesses, evidence and argument, and cross-examine
opposing witnesses regarding the charges stated above and in the attached
Petition. You are invited to appear. Your failure to appear will not prevent the
[ALJ] from proposing a decision, or the Board from taking disciplinary action.

The record provides no indication that Tran did not receive or was unaware of the notice of the

ALJ Hearing, and Tran does not claim otherwise in his briefing before this Court.

In a March 1, 2016 affidavit filed with his motion for rehearing (the Rehearing

Affidavit), Tran averred that he received “a copy of an amended scheduling order” on

July 1, 2015, and that the scheduling order “indicat[ed] that a hearing would be held on

September 29 and 30, 2015.” He stated that he “discussed that hearing” with his counsel and

that his counsel “told me that I would not have to be present to testify.” Although the record

does not include a copy of a signed scheduling order, TEA filed a proposed scheduling order on

July 1. As relevant here, the proposed scheduling order included a September 1 deadline for

discovery and a September 18 deadline to file a motion for telephone/video testimony.

Also on July 1, TEA served interrogatories, requests for production, requests for

admissions, and requests for disclosures on Tran’s counsel. The requests for admissions largely

tracked TEA’s petition, including addressing the violent thoughts Tran allegedly communicated

to his acquaintance and the other ten incidents described in TEA’s petition. Among the requests

were the following related to the alleged violent thoughts and conversation:

• On or about April 14, 2011, while employed as a math teacher at [your] High School . . .,
you threatened the life of [your] High School Principal . . . .

• On or about April 14, 2011, while employed as a math teacher at [your] High School . . .,
you threatened the life of [your] High School Assistant Principal . . . .

4
• On or about April 14, 2011, you told [your acquaintance] that you had been having
thoughts of going to [your] High School, shooting [your] Principal . . . and Assistant
Principal . . ., and then killing yourself.

• On or about April 14, 2011, you told [your acquaintance] that you had a plan of where to
buy a gun.

• On or about April 14, 2011, you told [your acquaintance] that you wanted to watch [your]
Principal . . . and Assistant Principal . . . suffer.

• On or about April 14, 2011, [your acquaintance] transported you to Shoal Creek hospital
in Austin, Texas, upon your request for help.

Tran testified in his Rehearing Affidavit that on August 17 he received an email from his

attorney’s assistant with the discovery requests attached and “was asked to give [his counsel]

input for a response to a Request for Admissions.” Neither the record nor the briefing indicates

that Tran provided any response to that email or any discovery responses to TEA at that time.

On August 27, TEA filed a motion to compel, requesting that Tran be ordered to

respond to discovery no later than September 8. Tran’s counsel responded with an opposed

motion for continuance, requesting “a continuance of this matter and that deadlines be extended”

because “Respondent has been traveling and Respondent’s Counsel has had difficulties in

contacting Respondent to propound Discovery Responses.” TEA replied, arguing that the notice

of hearing set the case four months prior to the ALJ Hearing date, “Petitioner contacted

Respondent and obtained agreement on the dates set forth” in the proposed scheduling order

prior to filing the proposed order, and Tran had not responded to any of the discovery requests.

On September 4, the ALJ signed the order granting TEA’s motion to compel and denying Tran’s

motion for continuance (the Order). The Order required that Tran respond to the discovery by

September 11 and noted that “[f]ailure of Respondent to do so will result in his being precluded

from offering any documentation or testimony in response to Petitioner’s Allegations.”

5
 On September 15, Tran filed an opposed first amended motion for continuance,

listing three reasons for a continuance: “Respondent has been traveling and began in a new job

in another state, Respondent’s Counsel has had difficulties in contacting Respondent to propound

Discovery Responses and prepare with Respondent for trial”; “Respondent’s Counsel has

mediation scheduled in Federal Court on September 29, 2015”; and “this is Respondent’s first

request for a continuance in this matter and as this case has been going on for several years,

Respondent does not believe a few more weeks will cause any undue harm on either party.”

TEA responded on the same day, noting that the Order required discovery responses by

September 11, “but no responses have been received to date.” On September 17, the ALJ denied

Tran’s motion for continuance.

On September 22, Tran filed an opposed second motion for continuance, stating

that “Respondent has been extremely busy at his current employment and taking off time from

work for this hearing at this time would cause undue hardship on Respondent, Respondent’s

employer and Respondent’s students.” Attached to the motion was a letter from Tran’s principal

at Sabinal Independent School District. The letter requested “rescheduling your appointment

with Mr. Tran to a later date when his absence will not affect our educational program” because

“[w]hile, I know that this is important, the needs of our students are also important”; “Mr. Tran,

spends many hours a day tutoring before and after school”; “Sabinal is a small rural

community”; and “[a]nytime that a faculty or staff member has to miss work it is a strain on our

local resources.” Two hours later, Tran filed an unopposed motion to modify the scheduling

order, requesting that the hearing be set to start on September 30 and noting that the “parties

agree that no more than one day, likely less, is required to address the issues of concern.” On

September 23, the ALJ granted the motion rescheduling the hearing for September 30.

6
 In his Rehearing Affidavit, Tran testified that his counsel’s assistant “asked me

for specific responses to the ‘Matters Asserted’ in the original petition” on September 27, 2015,

three days before the ALJ Hearing. Tran responded the next morning by email with “specific

responses to the paragraphs they requested”—this email was attached to his Rehearing Affidavit.

In his email response, Tran admitted that he had thoughts of hurting himself, his assistant

principal, and his principal and asked his friend to take him to the mental health hospital but

characterized these as “just thoughts” not threats. He also disputed some of the other alleged

improper conduct. Tran, through his counsel, then filed his first amended answer, general denial,

specific denials, and affirmative defenses, which detailed the responses spelled out in Tran’s

email. Then, the day before the hearing, Tran’s counsel filed a certificate of written discovery

on Tran’s behalf, stating that Tran, “by and through his attorney of record,” responded to

TEA’s requests for production on September 21 and to TEA’s requests for disclosures on

September 24. The certificate did not identify any responses to TEA’s requests for admissions

or interrogatories.

On September 30, the ALJ conducted an approximately forty-minute hearing.

Tran’s counsel attended and presented argument on behalf of Tran. At the hearing, TEA

submitted as exhibits Tran’s medical records and TEA’s requests for admissions as judicially

admitted because Tran did not timely respond to the discovery requests. See Tex. R. Civ. P.

198.2(c) (“If a response is not timely served, the request [for admission] is considered admitted

without the necessity of a court order.”), .3 (providing that matter admitted under Rule 198 “is

conclusively established as to the party making the admission unless the court permits the party

to withdraw or amend the admission”); 1 Tex. Admin. Code § 155.251(b) (Discovery) (“Parties

have the discovery rights provided in this section, the APA, and the TRCP, except the provisions

7
relating to the discovery control plans.”). Tran’s counsel affirmatively did not object to the

admission of TEA’s evidence, including the deemed admissions. In response, Tran’s counsel

submitted as evidence an affidavit by a fellow teacher and an affidavit used in a previous hearing

with TEA, and also requested the ALJ to take judicial notice of a complaint filed in federal court

and deposition testimony taken by a principal of a school. TEA objected to these affidavits on

the ground that they were “requested and not properly provided in response to discovery.” The

ALJ sustained the objection, stating that “[a]nything that wasn’t submitted within the date of the

order will not be admitted as it was specified in the order” and “you can’t come in now with stuff

that you didn’t provide to the counsel.” Tran’s counsel then requested that he be able to

supplement the record with Tran’s affidavit. TEA’s counsel objected, stating that “its hearsay”

and “[i]f Mr. Tran wanted to speak on his own behalf he could have come and attempted to offer

his testimony today.” When asked why Tran was not present, the following exchange occurred

between Tran’s counsel and the ALJ:

TRAN’S COUNSEL: Um, he’s available by phone, if we need to. I asked him
about coming. He’s, uh, teaching at the school. It’s very hard for him to get
away. He’s in a small school. He’s the only one teaching math to a number of
students.

ALJ: And you did not file a motion to take his testimony by the tele[phone]?

TRAN’S COUNSEL: I did not.

ALJ: . . . [T]he rules are pretty clear on how we are supposed to proceed. It
seems that you have, for whatever reasons, not followed those rules. That being
the case, it’s not that I don’t want to give Mr. Tran an opportunity to defend
himself, but at the same time, I would, I have problems with [it] not being done in
a timely manner so that [TEA’s counsel] could prepare her own cross
examination, which she would be entitled to.

8
See 1 Tex. Admin. Code § 155.405(a)(1) (Participation by Telephone or Videoconference) (“To

appear or present testimony by telephone, a party must file a motion no later than ten days before

the proceeding[.]”). Tran’s counsel then made a motion proposing three options: that Tran

testify telephonically, that his affidavit be filed with the record, or that he be permitted to file a

“post-hearing brief.” TEA’s counsel objected to hearing from Tran by telephone, stating that

“the request to do so was not timely filed” and the Order provides that the “failure of respondent

to respond to discovery would result in his being precluded from offering any documentation or

testimony in response to petitioner’s allegations” and therefore “his testimony is unallowable on

the basis of your order.” When asked why Tran did not timely respond to the Order, Tran’s

counsel responded:

Truth is, he had a hard time responding to us and we were not as aggressive as we
probably should have been in forcing him to do so. I would hope in fairness to
the process, to Mr. Tran, the hearing officer, and the counsel, um, I see no harm in
letting him testify. Counselor knows the records backwards and forwards and I
don’t think she’d have any problem cross examining him with any number of
questions. I can’t see how it would take terribly long. Just a few points I’d like to
speak to. In fact, maybe the best thing if we want to limit it only to the incident in
question rather than all the other stuff. That would seem to have some wisdom
to it.

But TEA’s counsel responded that “[t]hose facts have already been judicially admitted” and Tran

is therefore “not allowed to offer any testimony or evidence to controvert those judicially

admitted facts.” The ALJ Hearing concluded with the following exchange:

ALJ: I think the question really that I am having to deal with is whether or not the
bases of the action are, and all I got is the medical records, whether or not the
incident would be sufficient for the Board to take action against his license. I
don’t think, I think, uh, as you had pointed out that the medical records would
indicate what the problem was, what the response was, what the treatment did,
what the effects of the treatment were, so I don’t know that since the only thing
the staff is relying on is the admissions that I really need to hear from Mr. Tran.

9
 TRAN’S COUNSEL: That’s fine. I understand. I would appreciate the ability to
write I call it a post hearing brief, maybe a proposed stipulation of fact would be a
better term to use.

The ALJ stated that he would “give you that opportunity” with an October 7 deadline for the

brief and an October 14 deadline for a response, and he would close the record on October 14.

On October 6, Tran filed his post hearing brief in the form of proposed findings of

fact and conclusions of law. TEA responded, objecting to the proposed findings of fact “to the

extent that they are not supported by any evidence contained in the record” because Tran “did

not testify on his own behalf at the hearing of this matter, nor was any witness testimony or

documentary evidence admitted” and contesting the proposed conclusions of law as incorrect.

On November 16, the ALJ signed his Proposal for Decision (PFD). The

PFD included a finding of fact that TEA “mailed a Notice of Hearing to Respondent” on

May 27, 2015, which “contained a statement of the time, place, and nature of the hearing; a

statement of the legal authority and jurisdiction under which the hearing was to be held; a

reference to the particular sections of the statutes and rules involved; and a short, plain statement

of the matters asserted.” Based on this finding, the ALJ concluded that “Respondent received

proper and timely notice of hearing.” The PFD also noted that Tran did not timely respond to the

discovery requests; did not timely respond to the Order, which stated that his failure to do so

would preclude his offering any documentation or testimony in response to TEA’s allegations;

and did not include a motion to strike the deemed admissions. Accordingly, the ALJ concluded

that TEA’s requested admissions from Tran “were deemed admitted” and incorporated

the twenty-four admissions into the PFD’s findings of fact. See Tex. R. Civ. P. 198.2(c);

10
1 Tex. Admin. Code § 155.251(b).3 Based on these findings, the ALJ concluded that Tran

violated three provisions of section 247.2. See 19 Tex. Admin. Code § 247.2(1)(G) (requiring

educator to comply with regulations, local school board policies, and state and federal laws),

(I) (requiring educator to “not make threats of violence against school district employees”),

(J) (requiring educator to be of good moral character and worthy to instruct or supervise youth of

this state).

The ALJ also made findings of fact based on the medical records submitted by

TEA at the ALJ Hearing. These included that Tran was admitted to a mental health hospital in

April 2011 and “assessed as suffering from bipolar disorder with both homicidal and suicidal

thoughts and being at risk of harm to himself and others”; he was discharged following

medications and therapy “based on his having reached maximum stabilization, with no plans to

buy a gun, hurt himself, or hurt others”; he voluntarily entered another hospital later that month

for treatment of bipolar disorder, ongoing insomnia, and headaches; he was discharged in

May 2011 following more treatment and the “final psychiatric evaluation on that date indicated

his symptoms were under control and that he posed no risk to himself or others”; and “[t]here is

no evidence in the record regarding [Tran’s] mental health since 2011.” In conclusion of law 7,

the PFD recommended that Tran’s educator certificates “be suspended until such time as he can

provide the Board with an evaluation that demonstrates that he currently has the mental and

psychological qualities that will enable him to render the services essential to the

accomplishment of the goals and mission of the [Board’s] policy and the Code.”

3
In 2016 and effective in 2017, SOAH limited the use of requests for admissions:
“Requests for admissions may be used only to address jurisdictional facts or the genuineness
of any documents served with the request.” 41 Tex. Reg. 8593, 8593 (2016) (codified at
1 Tex. Admin. Code § 155.255(a)(3)), proposed by 41 Tex. Reg. 3365, 3374 (2016). But this
new rule was not in effect at the time of this hearing.
11
 On February 12, 2016, the Board conducted the Board Hearing and made its

Decision. Tran represented himself at the Board Hearing, explaining, “My attorney was

supposed to be here today and I texted him before, during lunch, and I said why aren’t you here

and he said I hadn’t planned on it.” Tran also described why only his attorney attended the ALJ

Hearing: “I was only told about it three hours before it took place, um, I received a call from my

attorney saying that is there any way you can get here within three hours and I was in the middle

of teaching class so that it was just impossible for me to leave Sabinal Texas and come here.”

At the Board Hearing and in response to Tran’s presentation, TEA’s counsel

repeatedly stated that “none of this information is contained within the record” and should not be

considered. Additionally, when asked by a Board member if Tran’s current school district that

hired him knew about this situation and whether he had a letter of support from his current

supervisor, Tran said he did have a letter. But TEA’s counsel again responded by saying that the

letter “would be outside the record” and “wouldn’t be appropriate for [the Board] to consider.”

When the Board members raised other questions concerning information outside the record, the

Board’s general counsel stated:

So he’s already, the hearing has already occurred. So he can’t have a rehearing at
this meeting by adducing new evidence about what he said or didn’t say. If it is
the Board’s desire, and we can go into executive session if you have additional
questions, but if you have a strong desire to have him have another hearing then
this needs to be remanded to SOAH for another hearing.”

See id. §§ 249.36(d) (Proposal for Decision) (providing that Board’s general counsel may issue

procedural directives relating to matters that arise after submission of PFD to Board),

.38 (Review and Presentation of Proposal to Board) (providing that Board shall review PFD,

exceptions, relevant excerpts from record of SOAH hearing, and oral arguments by parties

12
before making decision), .39(d) (Final Decisions and Orders) (providing that Board may remand

to ALJ with specific instructions for ALJ to determine essential finding of fact).

A Board member then proposed a motion that would adopt the PFD but modify

the sanction to revoke rather than suspend Tran’s certificates. See id. § 249.44(b) (Reapplication

Following Denial, Surrender, or Revocation) (providing person whose certificate has been

revoked may reapply for certificate after five years from revocation order). Some of the Board

members explained their rationale as follows:

• I am looking with a superintendent’s eye at 24 facts that range from violent threats,
profanity, racial slurs, sexual references, innuendos, ridiculous requests to paint a room
yellow as part of the ADA, checking yourself into a mental hospital after you’ve been
told you are not going to get your contract renewed, these are just stories that I know.
And, um, I would be very hesitant to put my own child in a classroom with this teacher.

• I’d be very concerned about putting anybody’s child in that classroom. Because, you
know, more than likely nothing will happen, but we can’t take more than likely. If
somebody was negatively affected by this, even if it wasn’t some violent outburst, but
even if it was some of these other things on that list, how am I going to look that parent in
the eye and say well we put him in the classroom with my vote; well, I can’t do it.

• Time. I think time. Five years to reapply, then we can see what the progress and that sort
of thing that you’ve made going forward. And I think that’s what I would like to
see, time.

The Board voted in favor of the motion with only one Board member opposing. Following the

Board Hearing, the Board issued its Decision, adopting the PFD’s findings of fact and

conclusions of law but modifying the PFD’s conclusion of law 7 to revoke Tran’s certificates.

On March 2, Tran’s new counsel filed a motion for rehearing on behalf of Tran,

raising a single exception and attaching Tran’s Rehearing Affidavit, which was overruled by

operation of law. See Tex. Gov’t Code § 2001.146. In the motion, Tran requested that the Board

“rescind” its Decision and remand to SOAH, alleging:

13
• “[T]he [SOAH] record . . . is devoid of any evidence from the Respondent due to serious
errors and omissions by Respondent’s counsel, and the failure of Respondent’s counsel to
arrange in a timely manner for Respondent to be present for the SOAH hearing in person
or by telephone in order to give testimony in his own behalf”;

• “Though the Respondent had provided his attorney with explicit, factual statements in
response to the allegations in the Complaint filed in this appeal, none of those statements
were placed in evidence and so could not be used to defend the Respondent from the case
put forward by TEA at hearing”;

• “Respondent excepts to the adoption of the [Board’s Decision] because it was based on a
record bereft of a defense for the Respondent, due to negligence and incompetence of
counsel as set out in the attached affidavit.”

The attached Rehearing Affidavit also included the September 28 email from Tran to his attorney

providing “specific responses to the ‘Matters Asserted’ in the original petition.” TEA responded

to Tran’s motion, arguing that the doctrine of ineffective assistance of counsel is generally

limited to criminal cases and does not apply here.

In April 2016, Tran filed an original petition in the district court of Travis County,

seeking judicial review of the Board’s Decision. See id. § 2001.171. In a single cause of action,

Tran asserted he was denied due process of law because he failed to receive “the assistance of

counsel before a state agency.” In his brief to the district court, Tran also argued that “[b]ecause

the [B]oard members . . . were on notice of these deficiencies, their decision to revoke his

certificate was arbitrary” and “the agency both ignored a factor (representation by counsel) and

reached an unreasonable result due to the lack of representation leading to a slanted record.”

In December 2018, the district court reversed the Board’s Decision to revoke

Tran’s certificates as “arbitrary and capricious” and remanded the cause so that “Tran may

appear in a hearing to present his testimony, as well as all evidence of his defenses against the

complaint brought against him by the defendant.” See id. § 2001.174(2)(F). The Board appeals

14
to this Court raising the single issue of whether the district court erred by concluding that the

Board’s Decision was arbitrary or capricious. See id. § 2001.901(a).

STANDARD OF REVIEW

The substantial evidence standard as enacted in the Texas Administrative

Procedure Act (the APA) governs our review of the Board’s Decision. See id. § 2001.174;

19 Tex. Admin. Code § 249.40(c) (Motion for Rehearing; Administrative Finality; Appeal). The

APA authorizes reversal or remand of an agency’s decision that prejudices the appellant's

substantial rights because the administrative findings, inferences, conclusions, or decisions

(1) violate a constitutional or statutory provision, (2) exceed the agency’s statutory authority,

(3) were made through unlawful procedure, (4) are affected by other error of law, (5) are not

reasonably supported by substantial evidence, or (6) are arbitrary or capricious or characterized

by abuse of discretion or clearly unwarranted exercise of discretion. Tex. Gov’t Code

§ 2001.174(2). “We apply this analysis without deference to the district court’s judgment.”

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

(citing Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam)).

Tran does not challenge that the Board’s Decision was reasonably supported by

substantial evidence in the record given the deemed admissions in the record. And “[a]n

administrative decision is generally not arbitrary and capricious if it is supported by substantial

evidence.” Hinkley v. Texas State Bd. of Med. Exam’rs, 140 S.W.3d 737, 743 (Tex. App.—

Austin 2004, pet. denied). Nevertheless, “[i]nstances may arise, however, in which the agency’s

action is supported by substantial evidence, but is nonetheless arbitrary and capricious.”

Heritage on San Gabriel Homeowners Ass’n v. Texas Comm’n on Envtl. Quality, 393 S.W.3d 417,

15
423 (Tex. App.—Austin 2012, pet. denied) (citing Texas Health Facilities Comm’n v. Charter

Med.-Dall., Inc., 665 S.W.2d 446, 454 (Tex. 1984)). We have previously identified six

circumstances under which we have found agency orders to be arbitrary or capricious: “(1) the

order not being supported by substantial evidence, (2) the agency denying a litigant’s due

process so as to prejudice its rights, (3) the agency improperly basing its decision on non-

statutory criteria, (4) the agency basing its decision on legally irrelevant factors or not

considering legally relevant factors, (5) the agency considering only relevant statutory factors but

reaching a completely unreasonable result, and (6) the agency’s failure to follow the clear,

unambiguous language of its own regulations.” Westlake Ethylene Pipeline Corp. v. Railroad

Comm’n, 506 S.W.3d 676, 687 (Tex. App.—Austin 2016, pet. denied) (citations omitted). We

presume that the agency’s order is “a valid exercise of [the agency’s] power and discretion” and

that the agency “performed [its] duties in compliance with the law”; the party challenging the

order has “the burden to show [that the agency] did not.” Vandygriff v. First Sav. & Loan Ass’n

of Borger, 617 S.W.2d 669, 673 (Tex. 1981); see Hinkley, 140 S.W.3d at 743 (noting that

decision is arbitrary or capricious “‘when a denial of due process has resulted in the prejudice of

substantial rights of a litigant’” but that “[t]his Court must presume that the order is valid, and

the burden of proving otherwise is on the appellant” (quoting Charter Med.-Dall., 665 S.W.2d

at 454)).

DISCUSSION

Reviewing the record before the district court and Tran’s brief before this Court,

we discern four arguments raised by Tran to support the district court’s reversal and remand of

the Board’s Decision as arbitrary or capricious. First, Tran argues that he was entitled to

16
effective assistance from his counsel in the administrative proceedings pursuant to section

2001.053 of the Texas Government Code and that he was therefore deprived of due process

when he did not receive effective assistance. Second, Tran asserts that it was arbitrary or

capricious for the ALJ and the Board to deem as admissions his counsel’s failure to respond to

TEA’s requests for admissions. Third, Tran claims he was deprived of due process when his

counsel failed to bring him to the ALJ Hearing or have him available by telephone to testify and

overcome the adverse admissions. Fourth, Tran argues that the Board’s decision to revoke

Tran’s certificates was arbitrary or capricious because the Board was on notice of the ineffective

assistance provided by Tran’s counsel. Thus, according to Tran, the Board failed to consider as a

factor the representation by counsel and reached an unreasonable result due to the lack of

representation leading to a slanted record. We consider below each of these potential bases for

the trial court’s determination that the Board’s Decision was arbitrary or capricious.

Ineffective Assistance of Counsel

The APA provides that “[e]ach party to a contested case is entitled to the

assistance of counsel before a state agency,” although “[a] party may expressly waive the right to

assistance of counsel.” Tex. Gov’t Code § 2001.053. Tran raises the novel argument that this

statute provides him with an ineffective assistance of counsel claim to challenge the Board’s

Decision.4 But he does not cite any authority applying the statute in that way and “the doctrine

of ineffective assistance generally does not extend to civil cases,” with limited exceptions

4
From our review of case law, only three cases expressly cite section 2001.053 and
none substantively discusses the provision. See Disraeli v. Rotunda, 489 F.3d 628, 633
(5th Cir. 2007); Beck v. Austin, No. SA-19-CV-00525-JKP, 2020 WL 1906096, at *4 (W.D. Tex.
Apr. 17, 2020); Nichols v. Clements, No. 07-00-0421-CV, 2000 WL 1341535, at *1 (Tex.
App.—Amarillo Sept. 18, 2000, no pet.) (not designated for publication).
17
provided for cases with appointed counsel, such as parental termination cases. See Browne

v. Browne, No. 03-08-00185-CV, 2010 WL 1730066, at *5 (Tex. App.—Austin Apr. 29, 2010,

no pet.) (mem. op.). Section 2001.053 neither expressly provides for “effective assistance” nor

has the statute been interpreted to provide a statutory right to appointed counsel, thereby

evidencing the right to effective counsel. Compare Tex. Gov’t Code § 2001.053, with Tex. Fam.

Code § 107.013 (providing for mandatory appointment of attorney ad litem for parent); cf. In re

M.S., 115 S.W.3d 534, 544 (Tex. 2003) (noting “[i]t would seem a useless gesture on the one

hand to recognize the importance of counsel in termination proceedings, as evidenced by the

statutory right to appointed counsel, and, on the other hand, not require that counsel perform

effectively” (quoting In re K.L., 91 S.W.3d 1, 15 (Tex. App.—Fort Worth 2002, no pet.))

(emphasis added)). And in interpreting the substantially similar predecessor statute in the

Administrative Procedure and Texas Register Act (APTRA), we noted that “‘all parties are

entitled to the assistance of counsel,’ impl[ies] an opportunity to engage counsel when read in

conjunction with other APTRA provisions.” Adams v. Texas State Bd. of Chiropractic Exam’rs,

744 S.W.2d 648, 657 (Tex. App.—Austin 1988, no writ). Consistent with section 2001.053’s

text and with Adams, we decline Tran’s invitation to expansively interpret section 2001.053 to

provide for an ineffective assistance claim.5

Tran also notes that the Texas Supreme Court and this Court have recognized that

“the right to counsel and fair representation at an administrative hearing is one of constitutional

dimensions.” State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) (citing Mosley v. St. Louis Sw. Ry.,

5
For this reason, we conclude that Tran’s arguments relying on the Texas Rules of
Disciplinary Procedure and the standard of care for attorneys are irrelevant for purposes of
challenging the Board’s Decision. As Tran acknowledges in his briefing to this Court, “there is a
separate system to enforce those rules for purposes of malpractice.” We express no opinion as to
the merits of such a claim.
18
634 F.2d 942, 946 (5th Cir. 1981)); see Guerrero-Ramirez v. Texas State Bd. of Med. Exam’rs,

867 S.W.2d 911, 916 (Tex. App.—Austin 1993, no writ) (citing Mosley, 634 F.2d at 946).

However, Mosley, which both Crank and Guerrero-Ramirez cite as their sole authority for this

proposition, described this right as one of access, not one of effective assistance: “The right to

the advice and assistance of retained counsel in civil litigation is implicit in the concept of due

process and extends to administrative, as well as courtroom, proceedings. . . . The right of

access to retained counsel is one of constitutional dimensions and should be freely exercised

without impingement.” 634 F.2d at 945–46 (citations omitted). Moreover, as we noted in

Adams, “[t]he statutory provisions contained in APTRA expressly give [the defendant] the rights

he contends he is entitled to have as a matter of constitutional right or fundamental fairness; that

is, he has those rights by virtue of statutory enactment in any case.” 744 S.W.2d at 656–57.

Here, Tran exercised his rights of constitutional dimensions by retaining counsel for the

administrative proceedings, communicating with his counsel to seek advice, and having his

counsel represent him at the ALJ Hearing.6

Due Process and Deemed Admissions

A request for admission may request “that the other party admit the truth of any

matter within the scope of discovery, including statements of opinion or of fact or of the

application of law to fact.” Tex. R. Civ. P. 198.1. Under the rules governing Tran’s

6
Although Tran’s counsel did not appear at the Board Hearing, Tran neither sought a
continuance of the Board Hearing nor complained of the lack of representation at the Board
Hearing to the district court or this Court. As Tran noted in his reply brief before the district
court, “The issue is whether that right [to counsel under section 2001.053 of the Texas
Government Code], in these circumstances, must be construed to require some minimal level of
effectiveness by defendant’s counsel. It is not, as argued by the defendant, whether the plaintiff
failed to have counsel present, because here the plaintiff had engaged counsel and trusted that
attorney to represent his interests zealously and effectively.” (Emphases added.)
19
administrative hearing before SOAH, responses to requests for admission were due within

twenty days after receipt and discovery must be completed by the tenth day before the hearing on

the merits begins, unless otherwise established by the ALJ. See 1 Tex. Admin. Code

§ 155.251(c)(1), (3) (Discovery), repealed by 41 Tex. Reg. 8593, 8593 (2016). If a response is

not provided, the request for admission is deemed admitted without the necessity of a court order

and that matter is conclusively established. See Tex. R. Civ. P. 198.2(c), .3; 1 Tex. Admin. Code

§ 155.251(b).

Here, the record establishes that TEA served the requests for admission on

July 1, 2015, making Tran’s responses due July 21; the discovery period closed on September 1,

as indicated by the proposed scheduling order, with no responses to TEA’s requests for

admissions provided; on September 4, the ALJ ordered Tran to produce responses no later than

September 11; and Tran did not respond to TEA’s requests for admissions at any time prior to

the September 30 ALJ Hearing. Accordingly, the requests for admissions were deemed admitted

and conclusively established the matter admitted.

Nevertheless, a deemed admission may be withdrawn upon a showing of good

cause and no undue prejudice. Tex. R. Civ. P. 198.3. Good cause is established “by showing the

failure involved was an accident or mistake, not intentional or the result of conscious

indifference.” Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (per curiam) (quoting Wheeler

v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam)). Undue prejudice depends “on

whether withdrawing an admission or filing a later response will delay trial or significantly

hamper the opposing party’s ability to prepare for it.” Id. (quoting Wheeler, 157 S.W.3d at 443).

Here, however, Tran did not move to withdraw or amend the deemed admissions.

See Tex. R. Civ. P. 198.3; cf. Standard Fire Ins. v. Morgan, 745 S.W.2d 310, 312 (Tex. 1987)

20
(“[B]ecause Standard never requested the trial court to withdraw or amend the admissions, the

admitted facts were conclusively established.”). Nor did he make any arguments to put the ALJ

on notice that he was attempting to withdraw the deemed admissions or make the requisite

showing of good cause and no undue prejudice before or at the ALJ Hearing. See Wheeler,

157 S.W.3d at 442 (noting that although plaintiff “never filed a motion to withdraw deemed

admissions or a motion to allow a later response to the summary judgment, the arguments and

requests in her motion for new trial were sufficient to put the trial court on notice of exactly that

complaint”); Mireles v. Morman, No. 03-09-00451-CV, 2010 WL 3059241, at *4 (Tex. App.—

Austin Aug. 6, 2010, no pet.) (mem. op.) (“A showing of both good cause and no undue

prejudice is required by rule before a trial court may allow a party to withdraw deemed

admissions.”). Accordingly, the ALJ admitted the deemed admissions into evidence at

the hearing without objection and was without a basis to withdraw the deemed admissions

sua sponte.

In the summary judgment context, our case law provides that due process

concerns arise when a party uses deemed admissions to preclude the presentation of the merits of

a case and “a showing of ‘flagrant bad faith or callous disregard for the rules’” is required “to

substantiate a summary judgment based solely on deemed admissions.” Marino, 355 S.W.3d at

632–33 (quoting Wheeler, 157 S.W.3d at 443); see Medina v. Zuniga, 593 S.W.3d 238, 245

(Tex. 2019) (“Our cases on this point are not constitutional holdings per se, but rather reflect

judicially created prophylactic measures designed to ensure that our rules of civil procedure—

rules this Court promulgated—are not applied in a way that risks violating due process.”).

Assuming without deciding that this same standard applies here in the administrative context

even though Tran never requested to withdraw the deemed admissions, we conclude that the

21
record does support a showing of callous disregard for the rules. Tran alleges that “previous

counsel for the Appellee failed . . . most grievously by twice failing to file responses to

Appellant’s Requests for Admissions which became the basis for the decision now before this

Court on appeal” and his Rehearing Affidavit asserts that “I have since been told that no answers

were filed by [his counsel] to any of the discovery requests by the Petitioner, even after a Motion

to Compel was filed by the Petitioner, and the [ALJ] gave [his counsel] an additional amount of

time to respond.” But Tran testified in his Rehearing Affidavit that he received a copy of the

“scheduling order” on July 1, which stated the September 1 deadline for discovery, and received

an email with the requests for admissions attached from his attorney’s assistant on August 17.

The first page of the request for admissions states, “You are advised that your answers to this

Request for Admissions must be made . . . on or within twenty (20) days after service” and the

certificate of service states that it was served on July 1, 2015. Additionally, the record does not

provide any indication that Tran’s counsel failed to forward—and Tran does not claim that he

failed to receive—TEA’s August 27 motion to compel discovery responses and the ALJ’s Order,

requiring Tran to respond to TEA’s discovery by September 11 and explaining the consequences

of failing to respond. Moreover, Tran’s counsel explained at the hearing before the ALJ that

Tran “had a hard time responding to us.” Tran testified that the August 17 email from his

attorney’s assistant asked him “to give [his counsel] input for a response to a Request for

Admissions.” But the record does not indicate that Tran provided any response to the email from

his attorney’s assistant. Instead, Tran responded only to a later email on September 27, after the

deadline to respond had long passed and only three days before the hearing.

This is not a case where the responses to the requested admission were

“marginally late” but received before the hearing. See Marino, 355 S.W.3d at 633. Here, Tran

22
never filed any responses to the requests for admissions. It is undisputed that Tran’s counsel was

put on notice of both the deadline for the discovery responses and for the consequences of failing

to respond. The record also indicates that Tran was put on notice and had multiple opportunities

to provide the responses: after receiving the August 17 email from his counsel’s assistant

with the requests for admissions, after TEA’s August 27 motion to compel, after the

ALJ’s Order requiring a response by September 11, and at any other time prior to the ALJ

Hearing on September 30. See In re TT-Fountains of Tomball, Ltd., No. 01-15-00817-CV,

2016 WL 3965117, at *12 (Tex. App.—Houston [1st Dist.] July 21, 2016, orig. proceeding)

(mem. op.) (“[A] determination of bad faith or callous disregard for the rules has been reserved

for cases in which the evidence shows that a party is mindful of pending deadlines and

nonetheless either consciously or flagrantly fails to comply with the rules.”). But Tran did not

avail himself of any of those opportunities. Cf. Unifund CCR Partners v. Weaver, 262 S.W.3d 796,

798 (Tex. 2008) (holding party “waived his right to challenge the deemed admissions” when he

was put “on notice of the deficiency of his response”); Viesca v. Andrews, No. 01-13-00659-CV,

2014 WL 4260355, at *4 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet.) (mem. op.)

(“[A] party waives his argument against deemed admissions if he has notice of his failure to

respond before judgment is rendered and has an avenue to seek relief from the trial court on the

issue but fails to do so until after judgment.”).

Moreover, on this record, we conclude that to the extent Tran did not waive his

argument regarding deemed admissions, the evidence was sufficient to permit the ALJ and the

Board to conclude that the deemed admissions were conclusive as to the matters admitted

without violating due process. Compare Viesca, 2014 WL 4260355, at *8–9 (finding evidence

of callous disregard for rules sufficient to permit judgment based on deemed admissions where

23
appellants never responded to requests for admissions or other discovery requests and never

responded to appellee’s motion for summary judgment based on deemed admissions), Bernstein

v. Adams, No. 01-12-00703-CV, 2013 WL 4680396, *3–4 (Tex. App.—Houston [1st Dist.]

Aug. 29, 2013, no pet.) (mem. op.) (distinguishing Wheeler and Marino, concluding there was

evidence of flagrant bad faith and callous disregard where appellants never responded to requests

for admissions or summary judgment motion and failed to appear at summary-judgment hearing

despite being advised they were facing default judgment), and Williams v. America First Lloyds

Ins., No. 02-12-00318-CV, 2013 WL 2631141, at *4 (Tex. App.—Fort Worth June 13, 2013, pet.

denied) (mem. op.) (allowing judgment to stand based on requests for admissions that asked

appellant to admit legal conclusions because appellant never served answers to discovery, moved

to withdraw deemed admissions, or explained reasons for those failures), with Medina v. Raven,

492 S.W.3d 53, 59–64 (Tex. App.—Houston [1st Dist.] April 7, 2016, no pet.) (mem. op.)

(concluding no evidence of bad faith and callous disregard for rules where appellants responded

to requests for admissions and responses were on file long before summary judgment hearing),

and Thomas v. Select Portfolio Serving Inc., 293 S.W.3d 316, 318–21 (Tex. App.—Beaumont

2009, no pet.) (reversing grant of summary judgment based on deemed admissions, finding no

evidence of flagrant bad faith or callous disregard where pro se plaintiff attempted to answer

requests for admissions and to amend his responses to comply with rules).

Due Process and Hearing Testimony

Turning to the next argument, we first note that Tran does not claim that the ALJ

abused its discretion or acted in an arbitrary or capricious manner by denying his motion for

continuance. See, e.g., Crank, 666 S.W.2d at 94–95 (“[T]he granting or denial of an application

24
for continuance rests within the sound discretion of the trial judge. . . . [W]hether the denial of a

continuance is so arbitrary as to violate due process depends on the circumstances in each

case.”). Moreover, after filing his motion for continuance, Tran submitted an unopposed motion

to reschedule the hearing to a date that the parties agreed on—namely, a single day on September

30—which the ALJ granted.

Instead, Tran argues in his brief before this Court that his counsel “failed to bring

[Tran] to the [ALJ] hearing to testify as to his knowledge of the facts of the case.” But Tran

testified in his Rehearing Affidavit that he discussed with his counsel in July whether he needed

to attend the hearing—almost three months before the hearing. Additionally, the record does not

provide any indication that Tran’s counsel failed to forward and Tran does not assert that he

failed to receive the following filings in this case: the May 27 notice of the hearing explaining

where and when the hearing would occur, describing his rights, and inviting him to appear at the

hearing; the July 1 proposed scheduling order setting forth the deadlines, including for discovery

and a motion to testify telephonically; and the ALJ’s September 23 order granting the motion to

reschedule the hearing. Moreover, the notice of the hearing expressly states, “Your failure to

appear will not prevent the [ALJ] from proposing a decision, or the Board from taking

disciplinary action.” Based on this record, we cannot conclude that Tran’s due process rights

were violated when the ALJ proceeded with the hearing without Tran present.

Failure to Consider Factor and Unreasonable Result

In his briefing before the district court, Tran argued that the Board’s Decision was

arbitrary because the Board members were on notice of his attorney’s “egregious failure to

perform” and the Board “ignored a factor (representation by counsel) and reached an

25
unreasonable result due to the lack of representation leading to a slanted record.” As legal

authority, Tran relies on authorities holding that an agency’s decision is arbitrary if it “failed to

consider a factor the legislature directs it to consider” or “weighs only relevant factors that the

legislature directs it to consider but still reaches a completely unreasonable result.” City of

El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 184 (Tex. 1994) (citing Gerst v. Nixon,

411 S.W.2d 350, 360 n.8 (Tex. 1966)). However, Tran does not identify a statute, and we have

not found one, directing the Board to consider the effectiveness of representation of a party’s

counsel in making its decision. And the list of factors the Board has promulgated that “may be

considered in seeking, proposing, or making a decision” does not address representation of

counsel. See 19 Tex. Admin. Code § 249.17(c) (Decision-Making Guidelines).

Nor has Tran demonstrated that the Board “reache[d] a completely unreasonable

result.” He argues that it was “completely unreasonable” because the record was slanted from

lack of representation. But we have already concluded that Tran was not deprived of his

statutory right to assistance from counsel or of his due process rights while creating the record

through the administrative proceedings below. Tran does not dispute that the Board’s Decision

was based on the record and reasonable given the record. And the Board is required to base its

decision on the record before it. See 19 Tex. Admin. Code § 249.38 (“The [Board] shall review

the [PFD] and any amended [PFDs], the exceptions and any replies to exceptions, the relevant

excerpts from the record of the hearing conducted by [SOAH], and oral arguments by the parties

(if any) before making a final decision or issuing an order in a case.”). We therefore conclude

that Tran failed to meet his burden to demonstrate that the Board’s Decision was arbitrary

or capricious.

26
 CONCLUSION

Because we have concluded that the record does not demonstrate that the ALJ and

the Board violated Tran’s due process rights and that Tran did not meet his burden in the district

court to show that the Board’s Decision should be reversed as arbitrary or capricious, the district

court erred in reversing the Board’s Decision. We therefore sustain the Board’s sole issue in its

appeal to this Court. We reverse the district court’s judgment and affirm the Board’s Decision.

__________________________________________
Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Baker

Reversed and Rendered

Filed: November 20, 2020

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