Ysleta Independent School District v. Meno

BEA ANN SMITH, Justice.

In September 1990, the Ysleta Independent School District terminated a teacher for immoral conduct. The teacher appealed to the State Commissioner of Education, who determined, after a hearing, that the teacher did not commit conduct that justified termination. When the school district sought judicial review, the district court found the Commissioner’s decision supported by substantial evidence, held there were no errors of law, and affirmed the Commissioner’s decision. The school district appeals, complaining of the standard of review and other unlawful procedures before the Commissioner. Because the school district did not timely file a statement of facts and the administrative record, we will affirm the trial court’s decision.

BACKGROUND

In September 1990, after hearing testimony and considering the documentary evidence, the board of trustees of the school district approved the superintendent’s recommendation to terminate a teacher for improperly touching two female students. See Tex.Educ.Code Ann. § 13.112 (West 1991). The teacher filed a petition of review with the Commissioner of Education. Id. § 11.13(a). After a May 1991 hearing, the Commissioner granted the teacher’s appeal. However, when the school district sought judicial review, the trial court held the order was not final and remanded the ease to the Commissioner. In December 1992, the Commissioner issued a final decision, holding that the school district improperly terminated the teacher. The Commissioner found the two students’ testimony was not credible and held that the school district violated its own local policy by suspending the teacher immediately without notice and an opportunity for a hearing. The school district again sought judicial review. The district court affirmed the Commissioner’s order.

The school district complains that because a full evidentiary hearing was conducted before the board of trustees, the Commissioner erred and exceeded his authority in conducting a de novo review of the local decision. More importantly, the school district com*546plains that the Commissioner substituted his opinion for the school district’s in reviewing the credibility of the witnesses appearing before the board of trustees. Finally, the school district urges that the Commissioner erred in considering a procedural irregularity that had not been presented below.

DISCUSSION

We do not reach the knotty problem of the proper standard of review before the Commissioner in termination cases because Ysleta failed to timely file a statement of facts. Ysleta did attempt to late-file a statement of facts; however, this Court has no jurisdiction to consider a late-filed motion for extension of time to file a statement of facts. Tex.R.App.P. 54(a); Texas Instruments, Inc. v. Teletron Energy Management, Inc., 877 S.W.2d 276, 278 (Tex.1994); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex.1982).

A party seeking judicial review of an agency order must comply with the procedural requirements of the Administrative Procedure Act, including the requirement that the party “shall offer, and the reviewing court shall admit the state agency record into evidence as an exhibit.” Tex.Gov’t Code Ann. §§ 2001.175(a), (d) (West 1995). This Court has held that filing the statement of facts is the exclusive means of transmitting the agency record to the appellate court to comply with this requirement. Commerce Indep. Sch. Dist. v. Texas Educ. Agency, 859 S.W.2d 627, 628 (Tex.App.—Austin 1993, writ dism’d) (“Because the agency record is to be considered an exhibit admitted into evidence like exhibits in other civil cases, the agency record should be forwarded to the appellate court as part of the statement of facts.”).

In Office of Public Utility Counsel v. Public Utility Commission, 878 S.W.2d 598 (Tex.1994), the supreme court held that a statement of facts is not the exclusive means of transmitting the final agency order to the court of appeals in some instances and for some purposes. First, the court held that when a party properly requests it and supplies the necessary information, the court of appeals must take judicial notice of a published agency order. Id. at 600. Ysleta asks us to take judicial notice of the agency’s unpublished order in this case. In another recent decision involving the Commissioner of Education, we declined to enlarge the supreme court’s holding in Office of Public Utility Counsel to include unpublished agency decisions. Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency, 900 S.W.2d 417 (Tex.App.—Austin no writ h.) (“[A] statement of facts is the exclusive method of transmitting the administrative record and an unpublished agency decision to the appellate court for its review.”).

But even if the agency decision were before us, without the full agency record we cannot review the error of which the school district complains. The school district argues that after a full evidentiary hearing before the board of trustees, the Commissioner’s review should be limited to the hybrid substantial evidence de novo appeal referenced in Central Education Agency v. Upshur County Commissioners Court, 731 S.W.2d 559, 562 (Tex.1987). The Commissioner responds that section 11.13(a) provides no limit on his authority to review appeals of this nature. Tex.Educ.Code Ann. § 11.13(a) (West 1991). By contrast, his review authority in student appeals is specifically limited to substantial evidence review. Id. § 11.13(b). Ysleta insists that this is a legal question that can be determined without reference to the agency record. Office of Pub. Util. Counsel, 878 S.W.2d at 600 (absence of a statement of facts does not preclude the court from addressing issues involving legal error). We disagree. From the face of the agency order itself, we are unable to determine the standard of review exercised by the Commissioner. Furthermore, in affirming the Commissioner, the district court found “after consideration of the evidence” that the agency decision “is in all respects supported by substantial evidence.” Without the agency record, we are unable to review the trial court’s determination. The agency order is “presumed to be supported by substantial evidence,” Texas Health Facilities Commission v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 453 (Tex.1984), and is “presumed to be valid and legal.” Commerce, 859 S.W.2d at 629. The school district has the burden of *547proving otherwise. Charter Medical, 665 S.W.2d at 453. To meet this burden Ysleta must present to the court “a sufficient record to show error requiring reversal.” Commerce, 859 S.W.2d at 629. Because the administrative record is not properly before this Court, no error is shown.

In the absence of a statement of facts and the administrative record, we overrule the school district’s points of error and affirm the trial court’s judgment.

Affirmed.