Van Independent School District v. Mccarty
| Decision Date | 24 September 2003 |
| Docket Number | NO. 12-03-00007-CV.,12-03-00007-CV. |
| Parties | <I>VAN INDEPENDENT SCHOOL DISTRICT, APPELLANT</I> <I>v.</I> <I>SCOTT A. MCCARTY, APPELLEE.</I> |
| Court | Texas Court of Appeals |
APPEAL FROM THE 294TH JUDICIAL DISTRICT COURT OF VAN ZANDT COUNTY, TEXAS
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
Van Independent School District ("VISD") brings this interlocutory appeal from the trial court's order denying its plea to the jurisdiction in a suit brought by Scott A. McCarty ("McCarty") for damages following the termination of his employment. We affirm.
On July 26, 2001, McCarty was injured on his maintenance job at VISD. On August 2, 2001, VISD, through its superintendent, Mark Pool ("Pool"), notified McCarty by letter that his employment with VISD was terminated. In this letter, Pool informed McCarty that if he wished to contest his termination, he could do so by filing a notice with the VISD Board of Trustees (hereinafter "school board") as outlined in the administrative policies and procedures of VISD. Board policy required that McCarty file a notice of appeal to the board within seven days of his August 2 termination. McCarty did not file an appeal with the school board until August 23, 2001. No action was taken by the school board on the August 23 request.
On November 5, 2001, McCarty filed a written request to appear before the school board to present evidence and testimony regarding the facts of his August 2 termination. One week later, on November 12, the school board formally considered McCarty's request. The minutes of this meeting reported that, following a closed session that lasted two hours, the school board "denied Scott McCarty's grievance and upheld the administrative decision on the basis of Mr. McCarty's untimely request for a hearing and also based upon the evidence presented in the hearing."
McCarty filed his wrongful termination suit against VISD on July 22, 2002. VISD responded to the suit with a plea to the jurisdiction.1 VISD asked the court to dismiss McCarty's suit for lack of jurisdiction because he had not exhausted his administrative remedies before filing suit. McCarty responded to VISD's plea to the jurisdiction by contending that he was not required to exhaust his administrative remedies prior to bringing suit and alternatively, if he was, he did so by having the school board consider his termination at its November 12, 2001 school board meeting. The trial court entered an order denying VISD's plea to the jurisdiction. VISD timely filed this interlocutory appeal of the order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2003).
In its three issues, VISD contends that, by failing to timely file his grievance with the school board and the State Commissioner of Education, McCarty failed to exhaust his administrative remedies prior to filing suit. Further, it argues, because exhaustion of administrative remedies is a jurisdictional prerequisite to seeking judicial review, the trial court erred in denying its plea to the jurisdiction.
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction contests the trial court's authority to determine the subject matter of the cause of action. Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex. App. - Waco 2000, no pet.). Subject matter jurisdiction is a legal question, and the plea to the jurisdiction is reviewed under a de novo standard of review. Id. Dismissing a cause of action for lack of subject matter jurisdiction is only proper when it is impossible for the plaintiff's petition to confer jurisdiction on the trial court. Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 553 (Tex. App. - Houston [14th Dist.] 2001, no pet.). For purposes of a plea to the jurisdiction, we take the undisputed factual allegations in the parties' pleadings to be true. See Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 746 (Tex. App. - San Antonio 1998, pet. denied).
As a general rule, a party to an administrative proceeding is not entitled to judicial review until the party has pursued correction through the prescribed administrative process. Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992). Texas law requires that an aggrieved party must first exhaust all remedies provided under the statutory administrative scheme if the subject matter: (1) concerns the administration of school laws, and (2) involves questions of fact. Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex. App. - Dallas 1994, writ denied). Exhaustion of administrative remedies is a prerequisite to the trial court's jurisdiction in a case involving disputed fact issues. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001); see also Hicks v. LaMar Consol. Indep. Sch. Dist., 943 S.W.2d 540, 543 (Tex. App.-Eastland 1997, no writ) (State courts are entitled to require that an employee contesting his discharge exhaust all administrative remedies before the courts will become involved.).
VISD insists that this case is identical to and governed by the case of Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan. There, Joyce Sullivan, a custodian for the district, received workers' compensation benefits for a work-related injury. Ten months later, when released for work, she was told she had been terminated due to budget reasons. Sullivan contacted the district's attorney who told her she could not help her. The attorney did not inform Sullivan of the district's grievance procedures. Sullivan then sued the district without pursuing any administrative remedies. There was no question that Sullivan did not exhaust her administrative remedies. Sullivan, 51 S.W.3d at 294. The issue in that case, which the supreme court answered in the negative, was whether the school district should be estopped from asserting a lack of jurisdiction due to its attorney's conduct. Id. at 294-95.
VISD argues that since Sullivan was held responsible for exhausting administrative remedies even though she had only constructive notice, surely McCarty should be held responsible for exhausting administrative remedies of which he had actual notice. We find Sullivan inapposite. The facts of this case are not the same as the facts in Sullivan. Moreover, as acknowledged by VISD, the issue decided in Sullivan is entirely inapplicable to the case before us. The question of what administrative remedies Sullivan should have completed was not addressed. As we shall explain below, McCarty is being held responsible for exhausting applicable administrative remedies.
VISD contends that because McCarty failed to begin the grievance process with the school board within seven days of his termination, he failed to exhaust the local administrative remedies provided for under VISD policy. Therefore, the trial court did not have jurisdiction to consider the merits of his suit. McCarty responds to this argument by stating that the school board waived the seven day timeliness requirement for his grievance request by considering his grievance at its meeting on November 12, 2001.
VISD denies that it waived the time requirements, pointing out that it expressly denied McCarty's grievance appeal on the basis of his untimely request for a hearing. The district further argues that it "did not waive McCarty's failure to exhaust his local administrative remedies." VISD describes McCarty's argument as an attempt to establish subject matter jurisdiction in the district court by waiver.
Indeed, subject matter jurisdiction is a power that exists by operation of law only and cannot be conferred upon any court by consent or waiver. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); see also Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (). For example, neither the parties nor this court could proclaim that the district court has jurisdiction over a wrongful termination case brought by a former school employee if, in spite of the school district's requirement to do so, the plaintiff had never notified the school board before filing suit. Completion of the administrative hearing process is a prerequisite to the district court's subject matter jurisdiction. However, as we shall explain, in this instance, the matter waived was not a prerequisite to subject matter jurisdiction.
Waiver is the voluntary and intelligent relinquishment of a known right or intentional conduct inconsistent with the assertion of a known right. Cecil Pond Constr. Co. v. Ed Bell Invs., Inc., 864 S.W.2d 211, 215 (Tex. App. - Tyler 1993, no writ). Under the district's written policy, the board would have been within its rights to refuse to hear evidence on the merits of McCarty's grievance because he did not file it with the board in a timely manner. VISD implies that it did just that. VISD asserts that the board "entertained McCarty's grievance" and considered his testimony regarding his failure to comply with the time requirements of the VISD grievance procedures. It further argues that having an alternative basis for denying the grievance does not constitute a waiver of the board's ability to deny the grievance based upon McCarty's failure to timely exhaust local administrative remedies.
The minutes of the school board's November 12, 2001 meeting indicate that at 8:38 p.m. it went into closed session to consider a personnel matter. The next entry in the minutes indicates an open session beginning at 10:37 p.m. Under the...
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