Los Fresnos Consolidated Independent School District and Michael L. Williams, Commissioner of Education v. Jorge Vazquez

ACCEPTED
03-14-00629-CV
4797510
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/7/2015 4:56:20 PM
JEFFREY D. KYLE
CLERK
____________________________________________________

NO. 03-14-00629-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS 4/7/2015 4:56:20 PM
FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
AT AUSTIN Clerk
______________________________________________________________

LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and MICHAEL L. WILLIAMS, Commissioner of Education, State of Texas
Appellants

v.

JORGE VAZQUEZ,
Appellee
_______________________________________________________________

On Appeal from the 419th Judicial District Court, Travis County, Texas
Trial Court No. D-1-GN-13-003654
Honorable Scott Jenkins, Judge Presiding
__________________________________________________________________
REPLY BRIEF OF APPELLANT
LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

WALSH, ANDERSON, GALLEGOS, GREEN & TREVIÑO,P.C.
STACY T. CASTILLO
State Bar No. 00796322
D. CRAIG WOOD
State Bar No. 21888700
ELIZABETH G. NEALLY
State Bar No. 14840400
100 N.E. Loop 410, #900
San Antonio, Texas 78216
Phone (210) 979-6633; Fax (210)979-7024

ATTORNEYS FOR LOS FRESNOS CISD

APPELLANT LOS FRESNOS CISD REQUESTS ORAL ARGUMENT
 TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................i

INDEX OF AUTHORITIES11

ARGUMENT .............................................................................................................3

A. Not Administrative Activism...........................................................................3
B. No Right to Due Process in Non-Renewal Hearings .....................................5
C. Sister State Courts Agree.................................................................................6
D. Even if Due Process was Required, Vasquez Received Due Process.............7

CONCLUSION AND PRAYER ..............................................................................8

CERTIFICATE OF SERVICE ................................................................................10

CERTIFICATE OF COMPLIANCE.......................................................................11

i
 INDEX OF AUTHORITIES

Cases
Cleveland Bd. of Educ. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985)......................................................................................................................7
Demming v. Housing & Redevelopment Auth., 66 F.3d 950 (8th Cir.1995) ..............7
Dews v. Tyler ISD, Docket No. 053-RI-0508 (Comm'r Educ. 2008)....................5, 6
Dodd v. Meno, 870 S.W.2d 4 (Tex.1994)..................................................................4
Dove v. Allen County Educational Service Center Governing Board, 118 Ohio
App.3d 102, 691 N.E.2d 1127 (1997) ....................................................................6
Flath v. Garrison Public School District, No. 51, 82 F.3d 244 (8th Cir. 1996).........7
Satterfield v. Edenton-Chowan Board of Education, 530 F.2d 567 (1975) ..............7
Spring Indep. Sch. Dist. v. Dillon, 683 S.W.2d 832 (Tex.App.—Austin 1984, no
writ).........................................................................................................................5
Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26 (Tex. App. – Austin 1999, no
writ) ........................................................................................................................3, 5
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) ..................4
Wilson v. Board of Education of Fort Worth Indep. Sch. Dist., 511 S.W.2d 551,
(Tex. App. – Fort Worth, 1974, writ ref’d n.r.e ) ...................................................5

Statutes
EDUCATION CODE, Section 7.002...............................................................................3
STATE BOARD OF EDUCATION § 11.13(a) (b) .............................................................4
STATE BOARD OF EDUCATION § 11.25 .......................................................................4
STATE BOARD OF EDUCATION § 11.52(1)...................................................................4
TEX. EDUC. CODE §21.204 (e);...................................................................................3
Texas Education Code Section 21.256(d)..................................................................6

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 ____________________________________________________

NO. 03-14-00629-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN

_____________________________________________________________
LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and Michael L. WILLIAMS, Commissioner of Education, State of Texas
Appellants

v.

Jorge VAZQUEZ,
Appellee
___________________________________________________________
On Appeal from the 419 Judicial District Court, Travis County, Texas
Trial Court No. D-1-GN-13-003654
Honorable Scott Jenkins, Judge Presiding
_____________________________________________________________
REPLY BRIEF OF APPELLANT
LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

To the Honorable Justices of the Third Court of Appeals:

Appellant Los Fresnos Consolidated Independent School District (“Los

Fresnos CISD,” “LFCISD” or “the District,”) files its Reply Brief in this appeal.

The District points the Court to its initial Brief of Appellant for its Identity of the

Parties and Counsel, Statement of the Case, Statement on Oral Argument, Issues

Presented on Appeal, Statement of Facts, Summary of the Argument, and

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Argument. This Reply Brief is to direct the Court’s attention to additional

authority supporting the Brief of Appellant. As set out below, this Court should

reverse the trial court’s order and affirm the Commissioner’s decision, upholding

Vazquez’ nonrenewal.

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 ARGUMENT

A. Not Administrative Activism

In his Response Brief, Appellee, Jorge Vasquez, Jr., accuses the

Commissioner of Education of exercising “administrative activism,” which

he describes as happening when an executive branch decides to make new

law, as opposed to simply administering the laws enacted by the legislature.

Appellee blindly states that the Commissioner changed existing law.

Clearly, however, the law relied on by District, the rulings of the

Commissioner in prior cases, was not law applied only to the instant case.

Certainly the Stratton case relied upon by the District in conducting its

nonrenewal hearing of Vasquez has been in existence for more than a

decade. See TEX. EDUC. CODE §21.204 (e); Stratton v. Austin Indep. Sch.

Dist., 8 S.W.3d 26, 29-30 (Tex. App. – Austin 1999, no writ).

In the Education Code, Section 7.002, the Commissioner of Education

is charged with carrying out the educational functions specifically delegated

under 7.021, 7.055 or another provision of this code. TEX. EDUC. CODE

§7.002. The Commissioner’s powers include carrying out the duties

imposed on the Commissioner by the board or the legislature.

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 The Commissioner of Education, is charged with having the following

duties among others:

a. The general duty of executing the school laws and the rules and

regulations of the State Board of Education (§ 11.25).

b. The power to interpret the rules and regulations of the State

Board of Education, his opinions in that regard being “binding for

observance on all officers and teachers.” (§ 11.52(1)).

c. The performance of adjudicative functions, together with the

State Board of Education, in deciding appeals from local school authorities

(§ 11.13(a), (b)).

Texas courts have held that the Commissioner of Education’s

interpretation of provisions in the Education Code are to be upheld unless

the interpretation is “plainly erroneous or inconsistent with the language of

the statute, regulation, or rule.” See, TGS-NOPEC Geophysical Co. v.

Combs, 340 S.W.3d 432 (Tex. 2011).

Courts have held that when the Commissioner interprets statutes, his

opinion merits serious consideration if it is reasonable and does not

contradict the plain language of the statute. Dodd v. Meno, 870 S.W.2d 4, 7

(Tex.1994); Spring Indep. Sch. Dist. v. Dillon, 683 S.W.2d 832, 841

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 (Tex.App.—Austin 1984, no writ).

B. No Right to Due Process in Non-renewal Hearings

Appellee wrongfully asserts that “the present case is the first instance, since

the Term Contract Nonrenewal Act was enacted in 1981 in which the

Commissioner has announced that hearsay can serve as substantial evidence.” The

cases relied on by the District in both the nonrenewal hearing as well as during the

trial and in Appellant’s brief clearly dispute this statement. Since at least 1999, in

Stratton v. Austin I.S.D., courts have upheld that there is no right to due process

and therefore no right to the Rules of Evidence in a nonrenewal hearing. While

Stratton did not directly address the issue of hearsay, it did address the nonrenewal

hearing and the issues relating to Rules of Evidence, which includes rules

pertaining to hearsay. See, Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29-30

(Tex. App. – Austin 1999, no writ) and Wilson v. Board of Education of Fort

Worth Indep. Sch. Dist., 511 S.W.2d 551, 552 (Tex. App. – Fort Worth, 1974, writ

ref’d n.r.e ). Further, this is not a case of first impression, since the Commissioner

has been consistently holding that nonrenewal hearings are not bound by hearsay

since 2008. In Dews v. Tyler ISD, on appeal to the Commissioner, the petitioner

argued that the hearing exhibits were improperly admitted as evidence. See, Dews

v. Tyler ISD, Docket No. 053-R1-0508 (Comm’r Educ. 2008). The Commissioner

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determined that if the case had been heard before a certified hearing examiner, then

the Texas Rules of Evidence would have applied to the hearing pursuant to Texas

Education Code Section 21.256(d). Id.

C. Sister State Courts Agree

A Court of Appeals in Ohio upheld a teacher’s non-renewal over her

objection that the School Board had considered hearsay evidence and had

considered an evaluation of her duties even though the evaluator was not present to

testify. Dove v. Allen County Educational Service Center Governing Board, 118

Ohio App.3d 102, 691 N.E.2d 1127 (1997). The Court of Appeals concluded that,

as in Texas, the Rules of Evidence were not meant to govern administrative

proceedings by a school board. 118 Ohio App.3d at 107; 691 N.E.2d at 1131. The

Court of Appeals noted, “Thus, the board was free to consider all the testimony

presented as long as “the discretion to consider hearsay evidence [was not]

exercised in an arbitrary manner.” Id. The Court of Appeals went on to note that

the teacher was free to present evidence and enter her own exhibits. Accordingly,

“she could have called the evaluators herself if she really wanted them there.” 118

Ohio App.3d at 108; 691 N.E.2d at 1131.

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D. Even if Due Process was Required, Vasquez Received Due Process

A teacher in North Dakota appealed to the Eighth Circuit Court of Appeals

complaining that her nonrenewal was based upon hearsay evidence only and that

she was denied the opportunity to cross-examine witnesses. Flath v. Garrison

Public School District No. 51, 82 F.3d 244 (8th Cir. 1996). The Eighth Circuit

considered these complaints and rejected them. The Court held that, if any process

was due, it was satisfied. The Court noted:

“To satisfy pretermination due process, a public employee is entitled to
notice of the charges, an explanation of the evidence, and an opportunity to
be heard. Cleveland Bd. of Educ. Loudermill, 470 U.S. 532, 546, 105 S.Ct.
1487, 1495, 84 L.Ed.2d 494 (1985). Generally, something less than a formal
adversarial hearing is required. Demming v. Housing & Redevelopment
Auth., 66 F.3d 950, 953 (8th Cir.1995). Rather, the purpose of the
pretermination hearing is to ensure that “ ‘there are reasonable grounds to
believe that the charges against the employee are true and support the
proposed action.’ ” Id. (quoting Loudermill, 470 U.S. at 546, 105 S.Ct.
at 1495).”

The Eighth Circuit concluded the Teacher received notice of the

contemplated nonrenewal and an explanation of the charges against her. She had

an opportunity to respond to the charges at the nonrenewal hearing. She was thus

afforded all the process she was due. Id, at 247.

Likewise, the Fourth Circuit Court of Appeals concluded that the

consideration of hearsay testimony in a hearing before a school board was not

Page 7
sufficient to generate a federal claim of denial of due process. Satterfield v.

Edenton-Chowan Board of Education, 530 F.2d 567 (1975). The Fourth Court of

Appeals noted that, the fact that there were complaints earlier called to the

plaintiff’s attention would be evidence of dissatisfaction with his work as a teacher.

Id., at 575. The Court stated:

“Although hearsay reports . . . are inadmissible in a court of law, I certainly
do not hold that they are inadmissable in administrative hearings . . ., for
such hearings need not conform to the standards of judicial or quasi-judicial
trials, and flexibility and informality should often characterize them.
Moreover it is possible that even reports of unnamed observers may by
referring to a specific occasion allow the teacher an adequate opportunity to
explain her conduct on that occasion.”

Id.

CONCLUSION AND PRAYER

This Court must reverse the trial court’s judgment and affirm the

Commissioner’s decision, upholding the nonrenewal decision.

WHEREFORE, PREMISES CONSIDERED, Appellant Los Fresnos

Consolidated Independent School District prays that this Court reverse the trial

court’s Order and affirm the Commissioner’s decision. Appellant requests that the

Court grant all such other and further relief, special or general, at law or in equity,

to which Appellant shows itself justly entitled.

Page 8
 Respectfully submitted,

WALSH, ANDERSON, GALLEGOS,
GREEN & TREVIÑO, P.C.
STACY T. CASTILLO
State Bar No. 00796322
D. CRAIG WOOD
State Bar No. 21888700
ELIZABETH G. NEALLY
State Bar No. 14840400
100 N.E. Loop 410, #900
San Antonio, Texas 78216
(210) 979-6633
(210)979-7024 (telecopier)

/s/ D. Craig Wood
D. CRAIG WOOD
State Bar No. 21888700

ATTORNEYS FOR APPELLANT
LOS FRESNOS CISD

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 CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of April 2015, a true and correct copy of

the above and foregoing Appellant Los Fresnos Consolidated Independent School

district’s Reply Brief was electronically filed with the Clerk of the Court using

CM/ECF system, and notification of such filing will be electronically sent to:

Mark W. Robinett
Brim, Arnett, Robinett & Conners, P.C.
2525 Wallingwood Drive, Building 14
Austin, TX 78746
mrobinett@brimarnett.com

Jennifer Hopgood
Nichole Bunker-Henderson
Assistant Attorneys General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.Hopgood@texasattorneygeneral.gov
Nichole.Bunker-Henderson@texasattorneygeneral.gov

/s/ D. Craig Wood
D. CRAIG WOOD

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 RULE 9.4 (i) Certification

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the

number of words in this brief, excluding those matters listed in Rule 9.4 (i)(1), is

1,270.

/s/ D. Craig Wood
D. CRAIG WOOD

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