Gibson v. Waco Independent School Dist.

• Decision Date: 24 July 1998
• Docket Number: No. 10-98-136-CV,10-98-136-CV
• Citation: 971 S.W.2d 199
• Parties: 127 Ed. Law Rep. 1131 Lester GIBSON, et ux., et al., Appellants, v. WACO INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 199

971 S.W.2d 199

127 Ed. Law Rep. 1131

Lester GIBSON, et ux., et al., Appellants, v. WACO INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 10-98-136-CV.

Court of Appeals of Texas Waco.

July 24, 1998.

Michael B. Roberts, Waco, for appellant.

Phillip E. McCleery, Sheehy, Lovelace & Mayfield, Waco, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

In 1997, the Waco Independent School District Board of Trustees ("WISD") adopted a new policy regarding the promotion of students in grades one through eight. To be promoted under the new policy, students must demonstrate proficiency of the subject matter of their respective grade levels by maintaining a passing grade in each of the pertinent subject areas and by receiving a satisfactory score on one of two standardized assessment tests--the Iowa Test of Basic Skills ("ITBS") for first and second graders and the Texas Assessment of Academic Skills Test ("TAAS") for third through eighth graders. ¹

Appellants filed suit alleging that the new policy: violates the equal rights and due course of law provisions of the Texas Constitution, section 39.030 of the Education Code, and section 552.101 of the Open Records Act; and was adopted in violation of the Open Meetings Act. Appellants asked the court below to issue: an ex parte temporary restraining order directing WISD not to implement the new policy; a temporary injunction to that effect after a hearing; and a permanent injunction at the conclusion of the trial on the merits. WISD filed a motion to dismiss for want of jurisdiction claiming that Appellants failed to exhaust their administrative remedies before filing suit. After a hearing, the court granted WISD's motion as to all of Appellants' claims except the open meetings claim. ² This interlocutory appeal ensued.

APPLICABLE LAW

STANDARD OF REVIEW

WISD urges us to affirm the judgment if it can be upheld on any theory of law supported by the record. Thus, in addition to the jurisdictional issues presented, they urge us to examine whether this cause is ripe for adjudication and whether Appellants have standing to bring this action.

When we consider an appeal from a dismissal for want of jurisdiction however, we must "construe the petition in favor of the [plaintiff], and if necessary, review the entire record to determine if any evidence supports [the lower court's jurisdiction to hear the cause]." See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Hicks v. Lamar Consol. Indep. Sch. Dist., 943 S.W.2d 540, 543 (Tex.App.--Eastland 1997, no writ); see also W. Wendall Hall, Standards of Review in Texas, 29 ST. MARY'S L.J. 351, 372-73 (1998).

Assuming without deciding that we can address ripeness and standing in this appeal, we note that WISD failed to raise either of these issues in its motion to dismiss Appellants' suit. See TEX.R.APP. P. 33.1(a)(1)(B). Moreover, the court below neither expressly nor impliedly ruled on ripeness or standing. Id. 33.1(a)(2)(A). For these reasons, we conclude that these issues have not been properly preserved for our review.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Texas law generally requires a party to exhaust available administrative remedies before turning to the courts for relief. City of Odessa v. Barton, 939 S.W.2d 707, 710 (Tex.App.--El Paso 1997), rev'd on other grounds, 967 S.W.2d 834 (1998); Harris County Appraisal Dist. v. Dincans, 882 S.W.2d 75, 77 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Section 7.057 of the Education Code provides an administrative appeal to the Commissioner of Education for persons aggrieved by actions or decisions of a school board which violate the school laws of Texas. See TEX. EDUC.CODE ANN. § 7.057(a)(2)(A) (Vernon 1996). The courts have construed this provision to mean that such persons must exhaust their statutorily-provided administrative remedies with the Commissioner if their claim: (1) concerns the administration of school laws; and (2) involves disputed fact issues. Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 323 (Tex.App.--Houston [1st Dist.] 1997, writ denied) (citing Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90-91 (Tex.1992)); Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex.App.--Dallas 1994, writ denied) (citing Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 111, 188 S.W.2d 568, 570 (1945)).

EXCEPTIONS TO THE EXHAUSTION OF REMEDIES DOCTRINE

The courts have recognized exceptions to the doctrine of exhaustion of administrative remedies. Appellants assert that the following are recognized exceptions to the exhaustion doctrine which apply in their case:

• where an injunction is sought and irreparable harm would result;

• where the administrative agency cannot grant the requested relief;

• where the school board has acted without authority; and

• where constitutional issues are involved.

1. Irreparable Harm and Inability of Administrative Agency

to Grant Requested Relief

"If irreparable harm will be suffered and if the agency is unable to provide relief, the courts may properly exercise their jurisdiction in order to provide an adequate remedy." Houston Fed'n of Teachers, Local 2415 v. Houston Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex.1987); accord Jones, 872 S.W.2d at 296; Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 773 (Tex.App.--Houston [14th Dist.] 1991, writ denied). A party shows irreparable harm by establishing that a later award of monetary damages will not provide adequate compensation. Houston Fed'n, 730 S.W.2d at 646; Mitchison, 803 S.W.2d at 773. The Commissioner of Education lacks the authority to grant immediate injunctive relief. Houston Fed'n, 730 S.W.2d at 646; Mitchison, 803 S.W.2d at 773.

2. Action Taken Without Authority

Texas courts for decades have recognized that an aggrieved party need not first pursue administrative remedies if the action complained of was taken without authority or in violation of a statute. See Palmer Publ'g Co. v. Smith, 130 Tex. 346, 349, 109 S.W.2d 158, 159 (1937); Freeport Indep. Sch. Dist. v. Common Sch. Dist. No. 31, 115 Tex. 133, 141-42, 277 S.W. 97, 99 (1925); Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 688 (Tex.App.--Tyler 1996, no writ); Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246, 249 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.); Bear v. Donna Indep. Sch. Dist., 74 S.W.2d 179, 180 (Tex.Civ.App.--San Antonio 1934, writ ref'd). A careful review of these authorities suggests that this "exception" is really nothing more than the converse of the general rule stated above (i.e., that aggrieved persons must exhaust their administrative remedies when the contested action involves disputed fact issues).

Stated another way, an aggrieved party need not exhaust his administrative remedies when the issue presented is purely a question of law. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex.1986); Diserens, 144 Tex. at 111, 188 S.W.2d at 570; Washington, 932 S.W.2d at 688; Benavides, 681 S.W.2d at 248. The issue of whether a particular action was taken without authority or violates a statute is generally a question of law. See Diserens, 144 Tex. at 111, 188 S.W.2d at 570; Benavides, 681 S.W.2d at 248.

3. Constitutional Issues

Some courts have held that when an aggrieved party challenges a school board action on constitutional grounds, that party need not first exhaust his administrative remedies. See Cypress-Fairbanks, 830 S.W.2d at 91 n. 3; Roberts v. Hartley Indep. Sch. Dist., 877 S.W.2d 506, 508 (Tex.App.--Amarillo 1994, writ denied); Jones, 872 S.W.2d at 296. However, a careful reading of these cases reveals that this constitutional exception has usually been limited to cases in which a party has asserted a federal constitutional claim or a claim under Title 42 of the United States Code. See Janik, 961 S.W.2d at 323-24; Hicks, 943 S.W.2d at 542.

In Cypress-Fairbanks, employees of four different school districts initiated administrative proceedings with the Commissioner of Education to resolve unrelated employment disputes. The school districts sought judicial relief when the Commissioner denied their motions that he limit his review to whether substantial evidence existed to support the actions taken by the districts. The parties asked the Supreme Court to decide whether the Commissioner had the authority to consider state and federal constitutional claims and Title 42 claims. The Court concluded that the Commissioner did have the authority to at least "consider whether the school districts' actions were invalid because they violated federal law ... even if he [could not] finally adjudicate [such claims] or grant full relief." Cypress-Fairbanks, 830 S.W.2d at 91. Because the Commissioner had such authority, the Court determined that the school districts had to exhaust their administrative remedies with the Commissioner before seeking judicial relief. Id. at 90-91. Notwithstanding this conclusion however, the Court noted:

[T]he employees' Title 42 and constitutional claims are not affected by the doctrine of exhaustion of administrative remedies such that they must be originally considered by the TEA. Because of the nature of such claims, prior resort to the administrative process is not usually required.

Id. at 91 n. 3.

The Court's recognition in Cypress-Fairbanks of the Commissioner of Education's authority to consider constitutional and federal claims has been severely limited by the Legislature, however. In that case, the Court construed the former section 11.13(a) of the Education Code which provided in pertinent part:

[P]ersons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved by the school laws of Texas or by actions or decisions of any board of trustees or board of education may appeal in writing to the commissioner of education....

Act of Aug. 26, 1986, 69th Leg., 2d C.S.,...