Gilder v. Meno

• Decision Date: 26 June 1996
• Docket Number: No. 03-95-00080-CV,03-95-00080-CV
• Citation: 926 S.W.2d 357
• Parties: 111 Ed. Law Rep. 1031 Barbara GILDER, Appellant, v. Lionel R. MENO, Commissioner of Education for the State of Texas and Central Education Agency; and Aquilla Independent School District, Appellees.
• Court: Texas Court of Appeals

Page 357

926 S.W.2d 357

111 Ed. Law Rep. 1031

Barbara GILDER, Appellant, v. Lionel R. MENO, Commissioner of Education for the State of Texas and Central Education Agency; and Aquilla Independent School District, Appellees.

No. 03-95-00080-CV.

Court of Appeals of Texas Austin.

June 26, 1996.

Rehearing Overruled Aug. 14, 1996.

Truman W. Dean, Jr., Austin, for Appellant.

James W. Deatherage, Power & Deatherage, Irving, for Aquilla Independent School Dist.

Dan Morales, Atty. Gen., Mab Fitz-Gerald, Asst. Atty. Gen., Admin. Law Section, Austin, for Com'r and Cent. Educ. Agency.

Before CARROLL, C.J., and JONES and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Appellant Barbara Gilder sued former Commissioner of Education Lionel Meno and the Central Education Agency (collectively "the Commissioner"), as well as the Aquilla Independent School District ("AISD"), for judicial review of the Commissioner's order affirming a decision by the AISD school board ("the board") to nonrenew Gilder's teaching contract under the Term Contract Nonrenewal Act ("TCNA"), 67th Leg., R.S., ch. 765, § 2, 1981 Tex. Gen. Laws 2847 (Tex. Educ.Code Ann. §§ 21.201-.211, since repealed and recodified at Tex. Educ.Code Ann. §§ 21.201-.213 (West 1996)). The district court upheld the Commissioner's order. On appeal to this Court, Gilder complains, in part, that the district court erred in affirming the Commissioner's order because she was not allowed to present evidence to the Commissioner. We will affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Gilder was employed by AISD as a special education teacher under a series of one-year contracts; during the course of her employment she received numerous notices of deficiencies in her job performance. Early in the 1984-85 school year, she received a formal unsatisfactory evaluation of her teaching performance; throughout the year she received additional notices of deficiencies. Acting upon the superintendent's recommendation, in March 1985 the board of trustees of AISD issued to Gilder a "notice of proposed nonrenewal." Gilder timely requested a hearing before the board. See 1981 Tex. Gen. Laws 2847, 2848 (formerly Tex. Educ.Code Ann. § 21.205, since repealed and recodified at Tex. Educ.Code Ann. § 21.207). Prior to that hearing, the board granted Gilder's request for a hearing on the recusal of three board members. At the recusal hearing on April 18, 1985, Gilder offered no evidence, stating that her witnesses and she chose not to testify. On April 25, 1985, the board conducted an evidentiary hearing on the merits of the recommendation that her contract not be renewed. Although she was represented by counsel and was given the opportunity to cross-examine witnesses and present her own witnesses, Gilder again chose not to offer any evidence on her own behalf and not to refute any evidence presented by the superintendent. After this hearing, which continued over a five-day period, the board voted 7-0 to adopt the superintendent's recommendation not to renew Gilder's contract.

Gilder filed a petition for review with the Commissioner alleging that the board's decision was arbitrary, capricious, unlawful, and not supported by substantial evidence. See 1981 Tex. Gen. Laws 2847, 2848 (formerly Tex. Educ.Code Ann. § 21.207(a), since repealed and recodified at Tex. Educ.Code Ann. § 21.209). In June 1985, AISD filed a certified copy of the record of the hearings before the school board. See 8 Tex. Reg. 2756, 2759 (1983) (formerly 19 Tex. Admin. Code § 157.64, repealed by 18 Tex. Reg.1928 (1993); current version found at 19 Tex. Admin. Code § 157.1071 (West 1995)). Although the Commissioner's rules allow an appellant to object to the local record within thirty days, Gilder filed no objection. See id. Five months later Gilder filed a motion for a hearing, alleging that she had additional evidence which was material, relevant and not unduly repetitious. See id. The motion contained no reference to the substance of the evidence, the names of witnesses, or any reason why such evidence had not been presented earlier. The Commissioner denied the request for an evidentiary hearing and after reviewing the record from the local board, concluded that the decision not to renew Gilder's contract was supported by substantial evidence and was not arbitrary, capricious, or unlawful. Gilder filed suit for judicial review and the district court affirmed the Commissioner's order.

DISCUSSION

On appeal Gilder alleges in two points of error that she was entitled to a hearing before the Commissioner, without a showing of good cause. In two additional points of error, she attacks the constitutionality of the hearing she received before the school board, alleging that she did not receive the process she was due at that hearing and that she was under no obligation to testify as a witness.

We will first address what sort of review the Commissioner is required to conduct in appeals from local school board decisions under the TCNA. Gilder contends that the district court erred in affirming the Commissioner's order because the Commissioner conducted a review based solely on the record made before the local board, rather than granting Gilder the evidentiary hearing that she requested. The precise issue is whether the scope of review mandated by the TCNA requires the Commissioner to conduct a new evidentiary hearing in reviewing every local school board decision not to renew a teacher's contract.

The Commissioner has adopted rules for reviewing decisions of local school boards made pursuant to the TCNA. Those rules permit a teacher to present evidence to the Commissioner only in limited circumstances:

All allegations by the teacher that the decision of the board of trustees was arbitrary, capricious, unlawful, or not supported by substantial evidence shall be resolved by a review of the record of appeal; however, on the motion of either party, the commissioner of education may order that additional evidence be taken to supplement the transcript if it appears that such party has evidence to offer which is material, relevant, and not unduly repetitious, which that party, for good cause, was unable to adduce at the local hearing.

8 Tex. Reg. 2756, 2759 (1983) (formerly 19 Tex. Admin. Code § 157.64(b), since repealed and recodified). Based on Gilder's failure to satisfy the "good cause" requirement of rule 157.64(b), the Commissioner denied Gilder's motion for an evidentiary hearing and conducted a review based solely on the record made before the AISD school board, only permitting Gilder to file a written brief in support of her petition. Gilder assails rule 157.64(b) as inconsistent with the TCNA, which she interprets as requiring the Commissioner to conduct a new evidentiary hearing in every appeal from a decision not to renew a teacher contract.

We turn to the language of the statute. Under the current law, enacted in 1995, the Commissioner is entitled to look only to the record of the board hearing in conducting a substantial evidence review. See Tex. Educ.Code Ann. § 21.301(c) (West 1996). But this appeal is governed by the version of the statute in place at the time of the Commissioner's review in 1987 and 1988. At that time section 21.207(a) provided:

If the teacher is aggrieved by the decision of the board of trustees, he may appeal to the State Commissioner of Education pursuant to Section 11.13 of this code. The commissioner may not substitute his judgment for that of the board of trustees, unless the decision below was arbitrary, capricious, unlawful, or not supported by substantial evidence.

1981 Tex. Gen. Laws 2847, 2848 (Tex. Educ.Code Ann. § 21.207(a), since repealed and recodified at Tex. Educ.Code Ann. § 21.209). The reference to former section 11.13 of the Education Code does not provide any standard of review, ¹ but the second sentence By adopting rule 157.64(b), requiring an appellant to show good cause before being granted a new evidentiary hearing, the Commissioner has so interpreted the TCNA former section 21.207(a). Indeed, the procedure for taking new evidence outlined in rule 157.64(b) appears to have been patterned after the procedure described in the APA:

clearly contemplates a substantial evidence review, using as it does the same language set forth in the APA provision for substantial evidence review. See Tex. Gov't Code Ann. § 2001.174 (West 1996). ² Although the APA provisions governing review of agency decisions do not apply when the Commissioner is reviewing the decision of a local school board, see Board of Trustees of Big Spring Firemen's Relief & Retirement Fund v. Firemen's Pension Comm'r, 808 S.W.2d 608, 611 (Tex.App.--Austin 1991, no writ), the APA, first enacted in 1976 as APTRA, was available as a model for how agency action is to be reviewed at the time the TCNA was enacted in 1981. By using substantially the same words the APA utilized to replace the worrisome "substantial-evidence-de-novo review," we think the TCNA was following the APA's lead in dictating a review in which the Commissioner would look only to the record made before the local board to determine whether that body's findings are reasonably supported by substantial evidence. ³

A party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the state agency, the court may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may change its findings and decision by reason of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.

Tex. Gov't Code Ann. § 2001.175(c) (West 1996) (emphasis added). Given the similarities between the language of former section 21.207(a) and the language of the APA, we think the...