Edinburg Consolidated Independent School District and Mike Morath, Commissioner of Education for the State of Texas v. Cristina L. Esparza ( 2020 )

NUMBER 13-18-00412-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EDINBURG CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT AND MIKE MORATH,
COMMISSIONER OF EDUCATION FOR THE
STATE OF TEXAS, Appellants,
v.
CRISTINA L. ESPARZA, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
OPINION
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Opinion by Chief Justice Contreras
This appeal stems from the termination of appellee Cristina L. Esparza’s term
employment contract with Edinburg Consolidated Independent School District (ECISD)
pursuant to Chapter 21 of the Texas Education Code. See TEX. EDUC. CODE ANN. ch. 21.1
Appellants ECISD and Mike Morath, Commissioner of Education for the State of Texas
(Commissioner),2 challenge the trial court’s order reversing the Commissioner’s decision
upholding the termination of Esparza’s contract as the principal for Barrientes Middle
School in Edinburg, Texas. By two issues, ECISD argues that (1) it did not act arbitrarily,
capriciously, or unlawfully when it concluded there was good cause to terminate
Esparza’s contract; and (2) the trial court erred in ordering ECISD to reinstate Esparza
and reimburse lost wages and benefits. By two issues, the Commissioner argues that (1)
the trial court erred when it rejected the Commissioner’s interpretation of the 2011
statutory amendments to the Texas Education Code’s “good cause” analysis; and (2) the
trial court erred in reversing the Commissioner’s decision because it was supported by
substantial evidence. We reverse the district court’s judgment and render judgment
affirming the Commissioner’s decision.
I. STATUTORY SCHEME
To provide context for the factual and procedural background of this case, we
begin by explaining the statutory scheme available to Esparza to contest the termination
of her employment contract.
Texas public school districts “shall employ each teacher, principal, librarian, nurse,
and school counselor” under one of three different contracts: (1) a probationary contract,
1 Chapter 21 of the education code is entitled “Educators” and covers everything associated
therewith. See TEX. EDUC. CODE ANN. §§ 21.001–.806.
2“The Texas Constitution requires the Legislature to ‘establish and make suitable provision for the
support and maintenance of an efficient system of public free schools.’” Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 545 & n.5 (Tex. 2016) (quoting TEX. CONST. art. VII, § 1). “To fulfill this duty, the Legislature
has established the Texas Education Agency (TEA), the office of the Commissioner of Education, the State
Board of Education (SBOE), and local school districts throughout the state.” Id.
2
(2) a continuing contract, or (3) a term contract. Id. § 21.002(a)–(b); see also id.
§ 21.201(3) (defining “term contract” as “any contract of employment for a fixed term
between a school district and a teacher”). After receiving notification of a proposed
decision by the school board to terminate a contract, a “teacher”3 may request a hearing
before an independent hearing examiner (IHE) assigned by the Commissioner. See id.
§§ 21.251–.254. This hearing is evidentiary and resembles a trial to a judicial court.4 See
id. §§ 21.255–.256. At the conclusion of the hearing, the IHE issues a written
recommendation that includes findings of fact and conclusions of law and, if the examiner
so chooses, a proposal for granting relief. See id. §§ 21.255–.257.
Subsequently, a school district’s board of trustees considers the recommendation
of the IHE and the record of the hearing and allows each party to present oral argument.
See id. § 21.258. The statute mandates that the board announce a decision that includes
findings of fact and conclusions of law. See id. § 21.259(a)(1). As provided by the statute,
a determination by the IHE “regarding good cause” for termination is a conclusion of law
and a school district’s board “may adopt, reject, or change” an IHE’s conclusions of law,
3 “Teacher” means “a superintendent, principal, supervisor, classroom teacher, school counselor,
or other full-time professional employee who is required to hold a certificate issued under Subchapter B or
a nurse.” TEX. EDUC. CODE ANN. § 21.201(1) (emphasis added).
4 Subchapter F of Texas Education Code chapter 21
charges the hearing examiner with conducting a hearing “in the same manner as a trial
without a jury in a district court”; the Texas Rules of Evidence apply, the proceedings are
recorded, the school district has the burden of proof by a preponderance of the evidence,
and the teacher has the right to be represented by counsel, hear the evidence supporting
the charges, cross-examine adverse witnesses, and present evidence of his or her own.
Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000) (citing TEX. EDUC. CODE ANN.
§ 21.256).
3
regardless of whether the conclusion is supported by substantial evidence.5 See id.
§§ 21.257(a-1), 21.259(b)(1); see also Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d
559, 565 (Tex. 2000) (“The ability to reject or change conclusions of law preserves a
school board’s authority and responsibility to interpret its policies.”). The school district’s
board must announce its decision and the board is required to “state in writing the reason
and legal basis for a change or rejection” made to a conclusion of law or a finding of fact.
TEX. EDUC. CODE ANN. § 21.259(d).
A party aggrieved by the board’s decision may then appeal the decision to the
Commissioner, who reviews the record of the examiner’s hearing and the oral argument
before the board, along with the parties’ written argument and, in some instances, hears
oral argument. See id. § 21.301(c). The Commissioner may not substitute his or her
judgment for that of the board unless the board’s decision is: (1) arbitrary, capricious, or
unlawful; or (2) not supported by substantial evidence. Id. § 21.303(b)(1). The
Commissioner may not reverse a decision of a school board based on a procedural
irregularity or error by the board unless the Commissioner determines that the irregularity
or error was likely to have led to an erroneous decision. Id. § 21.303(c). The
Commissioner must also issue a written decision that includes findings of fact and
conclusions of law. See id. § 21.304.
Either party may appeal the Commissioner’s decision to a district court. See id.
§ 21.307 (providing for judicial review of the Commissioner’s decision). The court shall
review the evidentiary record made at the local level and may not take additional
5 In contrast, a school board is permitted to change a finding of fact only if “the finding of fact is not
supported by substantial evidence.” TEX. EDUC. CODE ANN. § 21.259(c).
4
evidence. Id. § 21.307(e). “The court may not reverse the decision of the commissioner
unless the decision was not supported by substantial evidence or unless the
commissioner’s conclusions of law are erroneous.” Id. § 21.307(f). The court may not
reverse a decision of the Commissioner based on a procedural irregularity or error by the
IHE, a board of trustees or board subcommittee, or the Commissioner unless the court
determines that the irregularity or error was likely to have led to an erroneous decision by
the Commissioner. Id. § 21.307(g).
II. BACKGROUND
On August 25, 2016, ECISD sent Esparza a letter notifying her that the district’s
superintendent, Rene Gutierrez, recommended to the board of trustees that her contract
be terminated. Specifically, the letter provided:
After a review of the factual background discussed below, the Board
determined that the public outcry concerning the facts summarized below,
as well [as] their notoriety within the Barrientes Middle School and greater
Edinburg CISD school communities have undermined your ability to be an
effective administrator for the District to such an extent so as to constitute
good cause for the termination of your term employment contract with the
District.
....
Under District Policy DH (Legal) ECISD employees are required to comply
with standard practices and ethical conduct towards students, professional
colleagues, school officials, parents, and members of the community.
Employees of ECISD are expected to meet professional standards in their
use of electronic media and for any other public conduct. By taking a nude
photo of herself with a cell phone, and then allowing such photo to be
released throughout the ECISD community, Ms. Esparza’s actions have
interfered with her ability to effectively perform her job duties as a Principal
of Barrientes Middle School. In this regard, it is irrelevant to the inquiry
whether the release of the photograph by Ms. Esparza was a voluntary act,
or was the result of an unauthorized access to her personal data storage
devices. The fact remains that a voluntarily taken photograph originally
taken by Ms. Esparza has entered the public domain and has become an
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object of great controversy in the school community. The controversy is
being driven by the mere existence of the photograph in the public domain,
and not the “fault” of whoever caused its release which is the subject of the
Board’s concerns.
....
Each ECISD employee is required to comply with the standards of conduct
set out in District policy and with any other policies, regulations, and
guidelines that impose duties, requirements, or standards attendant to his
or her status as a District employee. Violation of any policies, regulations,
or guidelines may result in disciplinary action, including termination of
employment. ECISD policy can be violated through employee use of
electronic media including all forms of social media, such as text
messaging, instant messaging, electronic mail (e-mail), Web logs (blogs),
electronic forums (chat rooms), video-sharing websites, editorial comments
posted on the Internet, and social network sites. Electronic media also
includes all forms of telecommunication, such as landlines, cell phones, and
Web-based applications.
ECISD employees are held to the same professional standards in his or her
public use of electronic media as for any other public conduct. If an
employee’s use of electronic media violates state or federal law or District
policy, or interferes with the employee’s ability to effectively perform
his or her job duties, the employee is subject to disciplinary action, up
to and including termination of employment.
....
By engaging in the conduct described above, Ms. Esparza’s conduct and
comportment fell below the following standards promulgated by the State
Board for Educator Certification (SBEC) in the Educator’s Code of
Ethics . . .; Tex. Educ. Code § 21.041(8); 19 Tex. Admin. Code § 247.1(b),
(c),[6] to wit:
6 Chapter 247 of the Texas Administrative Code is titled “Educators’ Code of Ethics.” See 19 TEX.
ADMIN. CODE ANN. ch. 247. It provides in part:
The Texas educator shall comply with standard practices and ethical conduct towards
students, professional colleagues, school officials, parents, and members of the
community and shall safeguard academic freedom. The Texas educator, in maintaining the
dignity of the profession, shall respect and obey the law, demonstrate personal integrity,
and exemplify honest and good moral character. The Texas educator, in exemplifying
ethical relations with colleagues, shall extend just and equitable treatment to all members
of the profession. The Texas educator, in accepting a position of public trust, shall measure
success by the progress of each student toward realization of his or her potential as an
effective citizen. The Texas educator, in fulfilling responsibilities in the community, shall
6
Standard 1.10. The educator shall be of good moral character
and be worthy to instruct or supervise the youth of this state.
Standard 3.8. The educator shall maintain appropriate
professional educator-student relationships and boundaries
based on a reasonably prudent educator standard.
After considering the foregoing facts, law and policies, the Board of
Trustees voted to propose termination of Ms. Esparza’s employment
contract based upon the fact that there was “good cause” to support its
actions.
(emphasis in original).
Esparza appealed the board’s proposed termination and requested a hearing
before an IHE. See id. § 21.251(a)(2). An IHE was assigned and a hearing held on the
matter. On December 26, 2016, the IHE issued her decision, including findings of fact,
conclusions of law, and a recommendation, which we summarize below.
A. IHE’s “Findings of Fact”
Esparza was hired by ECISD in 2002. Starting in January of 2012, she was
employed as the principal of Francisco Barrientes Middle School. ECISD renewed
Esparza’s contract as a “Certified Administrator” for the school for the years 2016–2018.
During her fourteen years with ECISD, Esparza was an exemplary employee, fulfilling all
job duties and responsibilities, meeting all requirements, and exceeding expectations.
Sometime during 2015, “Esparza took a nude photo of herself (a ‘selfie’ . . .) in the
bathroom of her own home using the cameral [sic] in her personal cellular phone.”
cooperate with parents and others to improve the public schools of the community. This
chapter shall apply to educators and candidates for certification.
Id. § 247.1(b).
7
Esparza sent the photo via text message to her husband who worked away from home in
the oil fields and retained a copy in her phone.
On June 14, 2016, Esparza’s daughter informed her that the nude photo was being
circulated on social media. That same day, Esparza reported the unauthorized
dissemination of the photo to her immediate supervisor, Rebecca Morrison, and ECISD’s
superintendent, Gutierrez. Upon the advice and suggestion of Morrison and Gutierrez,
Esparza reported the “theft or hacking of her nude photo to local law enforcement
authorities.”
The IHE found that Esparza’s nude photo began to circulate among some of the
students at Barrientes Middle School and through social media “a long time” before the
end of the 2015–2016 school year and that, in June 2016, the photo was “being passed
around by some students and was also seen by some staff, as well.” However, Esparza
did not intend for the picture to be viewed by any person other than her husband, and she
did not use “any type of social media account” or “engage in online exchange of
information or photographs via social media outlets.” The IHE found that Esparza was the
victim of a crime, a third party was responsible for the circulation of Esparza’s nude photo,
and the dissemination was done without her knowledge and consent.
On or about June 22, 2016, a student’s parent inquired or complained 7 about
whether ECISD was aware of Esparza’s circulating nude photo. As a result, ECISD’s
police department initiated an investigation, which revealed Esparza “did not do anything
7 The IHE noted that “[d]iscussion was had as to whether [the parent’s] call was a complaint or an
inquiry [but that the] semantics make no difference. However it is labeled, said call did commence a police
investigation.”
8
wrong.” Further, the student’s parent refused to name the individual who sent her the
photo and failed to show up for a police interview.
On June 23, 2016, Esparza was suspended with pay “to remove her and to
administratively look into the matter because the nude photo was becoming a distraction,
they were getting a lot of calls from the media, and it evolved into a problem.” Prior to
June 23, “there was zero community outcry or outrage due to the unauthorized
dissemination of Ms. Esparza’s nude photo” and “there was no media coverage about
Ms. Esparza’s nude photo.” Beginning on June 29, 2016, Gutierrez “received calls, texts,
or emails from several media sources” as various media outlets reported on the story of
the disseminated nude photo. On July 20, 2016, Gutierrez sent Esparza a notice of
reassignment because her photo “was evolving more in social media and it had gone
viral.”8 Gutierrez recommended to the ECISD school board that Esparza’s contract be
terminated because Esparza “could not be an effective administrator” due “to the
dissemination of the nude photo, all the media attention, and that the photo had gone
viral.” In Gutierrez’s opinion, the student-educator boundaries had been compromised
with the nude photo so that Esparza could not be an effective administrator. The school
board accepted Gutierrez’s recommendation.
Under the section entitled “Findings of Facts,” the IHE also noted the testimony of
school board member Oscar Salinas, who voted to support the proposal to terminate
8 There is no evidence that Esparza was ever reassigned to a different position or what the duties
of the position would have entailed, and we previously concluded that “Esparza’s reassignment was never
finalized.” Edinburg Cons. Indep. Sch. Dist. v. Esparza, No. 13-18-00540-CV, 2019 WL 3953111, at *3
(Tex. App.—Corpus Christi–Edinburg Aug. 22, 2019, no pet.) (mem. op.) (affirming trial court’s denial of
ECISD’s plea to the jurisdiction); see also 19 TEX. ADMIN. CODE ANN. § 157.1051(b) (stating that the
Commissioner “will not consider any issue not raised in the petition for review”). The notice stated: “This
assignment is effective immediately. Since you are currently on administrative leave, you will be contacted
at a later time concerning your employment status.”
9
Esparza’s contract. In sum, Salinas supported termination because Esparza would be
ineffective in light of “the complaints and the media attention” and because about twenty
of twenty-five people he spoke to in passing “had negative sentiment as having lost
respect for” Esparza. According to Salinas, the community interest in the dissemination
of the photo was high and he believed “Esparza’s nude picture will always come into
people’s minds—they would degrade her, make fun of her, or be insubordinate to her.”
In a separate section labeled “credibility findings,” the IHE stated that “there was
no evidence of incidences of ineffectiveness up to the day [Esparza] was suspended with
pay.” (emphasis added). Further, the IHE found that “the ECISD witness[es]’ opinion
testimony about ineffectiveness is based on conjecture and speculation” and concluded
that several “calls from media sources, one parent inquiry or complaint, and tenor in the
community about Ms. Esparza’s nude photo do not suffice to establish Ms. Esparza’s
ineffectiveness as an administrator.”
B. IHE’s “Conclusions of Law”
The IHE concluded that Esparza “did not fail to comply with standard practices and
ethical conduct towards students, professional athletes, school officials, parents, and
members of the community as required by DH (Local)” and that “ECISD policy [standards
1.10 and 3.8 were] not violated when Ms. Esparza transmitted a nude photo of herself to
her husband.” Furthermore, the IHE concluded that “Esparza’s transmission of her nude
photo was a matter protected by marital privacy and privilege of the United States
Constitution” and that “Esparza did not violate the standard for propriety and decency
within the ECISD community.” Finally, the IHE concluded that Esparza had “not failed to
perform her duties in the scope of employment that a person of ordinary prudence would
10
have done under the same or similar circumstances” and that “Esparza’s actions were
not inconsistent with the continued existence of the employer-employee relationship.” The
IHE concluded that “good cause does not exist to terminate Ms. Esparza’s term contract
for the 2016-2018 school year.”
C. IHE’s Recommendation & ECISD Board of Trustees’ Action
The IHE recommended that: all relief requested in Esparza’s appeal be granted;
her employment be reinstated; and ECISD reimburse Esparza for lost wages and
benefits, if any. On January 10, 2017, the board of trustees for ECISD adopted the
findings of fact contained in the IHE’s recommendation. However, the board disagreed
with the IHE’s conclusion that good cause to terminate Esparza’s contract was lacking.
Therefore, the board terminated her employment contract.
As allowed by the education code, the board of trustees rejected several of the
IHE’s conclusions of law. See id. § 21.259(b)(1). Specifically, the board concluded that
(1) Esparza violated Board Policy DH (Local) and the “Employee Standards of Conduct,”
which subjects an employee to termination if the employee’s “use of electronic
media . . . interferes with the employee’s ability to effectively perform his or her job
duties”; (2) constitutional right to privacy does not apply to Esparza’s nude photo and
does not provide protection for the consequences of the photo’s release into the public;
(3) it is irrelevant whether the initial transmission of the nude photo was protected by a
constitutional right to marital privacy and privilege; (4) Esparza violated the standard for
propriety and decency within the ECISD community; and (5) by violating board policy,
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Esparza was subject to termination, and the board retains the authority to make the
ultimate determination of whether board policy has been violated.9
In its decision, the board stated that “[t]he widespread distribution of Esparza’s
nude photograph and the publicity of the photo in the community media impaired her
future effectiveness as a middle school principal and made it untenable for ECISD to
continue to employ her.” The board also stated the reason and legal basis for its rejection
of to the IHE’s determination regarding ineffectiveness and good cause to terminate
Esparza:
The Board rejects Conclusions of Law 11 and 12.[10] School boards retain
the authority to make the ultimate determination of whether board policy has
been violated. TEX. EDUC. CODE § 21.211(a)(1); Montgomery ISD v. Davis,
34 S.W.3d 559, 565 (Tex. 2000). By violating Board policy, Esparza was
subject to termination . . . . Moreover, separate and apart from Esparza’s
actions, it is undisputed that a nude photo of Esparza was widely circulated
among students and parents at Barrientes Middle School and was widely
publicized in the Edinburg community. This exposure clearly diminished
Esparza’s ability to perform her role as an administrator and authority figure
over the middle school students.
See id. § 21.259(d) (requiring the board to “state in writing the reasons and legal basis
for a change or rejection” of an IHE’s findings or conclusions).
D. The Commissioner
Esparza appealed the board’s decision to the Commissioner arguing that the
board’s decision was arbitrary, capricious, unlawful and not supported by substantial
evidence. See id. § 21.301(a). Esparza further argued that there was no good cause to
9 The school board adopted the IHE’s conclusions that Esparza did not violate Standards 1.10 or
3.8.
10 The IHE’s conclusions of law 11 and 12 provided that (1) Esparza’s actions were not inconsistent
with the continued existence of the employer-employee relationship; and (2) good cause did not exist to
terminate Esparza’s term contract for the 2016-2018 school years.
12
terminate her contract and that ECISD failed to state any reason or legal basis for its
changes to the IHE’s conclusion of law. See id. § 21.259(d).
The Commissioner adopted the IHE’s findings of fact in full but concluded that the
board “properly changed the good cause determinations in the Recommendation when it
concluded that the publicity given to the picture diminished [Esparza’s] ability to perform
her job.” In his decision, the Commissioner stated:
This case raises a question of first impression of whether in addition to
changing the ultimate determination of whether or not good cause exists
can a school board change an interpretive finding of fact that is closely
related to the ultimate determination that good cause exist[s]. In the present
case, the issue is can the school board change the determination that the
dissemination of the photograph has undermined [Esparza’s] ability to be a
principal.
The Commissioner also noted that,
The central issues in this case are whether there can be good cause to
terminate a contract when there would be no question of an employee’s loss
of effectiveness but for the actions of a third party and whether a school
district can change an interpretive fact that is closely related to an ultimate
determination that good cause exists.
In explaining his decision, the Commissioner noted that determination of whether
Esparza’s effectiveness was affected by the photo had been deemed by the IHE to be a
finding of fact11 and opined that the 2011 amendments to the education code allowed the
school board to change conclusions of law, as well as “interpretive facts” but not “hard
facts.” The Commissioner explained that the finding of fact regarding Esparza’s
effectiveness was an “interpretive fact” subject to the 2011 amendments, giving the board
the ability to reject such a finding because it amounted to a conclusion of law regarding
11 As noted, the IHE’s finding regarding the impact of the dissemination of the photo on Esparza’s
effectiveness was listed under a section titled “Credibility Findings.”
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good cause for termination. Ultimately, the Commissioner concluded that the
dissemination of Esparza’s nude photo diminished her capacity to perform her role as a
principal and affirmed the school board’s decision.
The Commissioner issued its own conclusions of law, which included one stating
that “[g]ood cause to terminate a term contract can exist even when the employee’s
effectiveness would not have been diminished but for the actions of a third party, even
the illegal actions of a third party.” Esparza sought judicial review of the Commissioner’s
decision. See id. § 21.307.
E. The District Court
At the district court, Esparza argued that (1) there was no good cause to terminate
her term contract with ECISD; (2) ECISD’s changes to the IHE’s conclusions of law are
not supported by substantial evidence and are based on erroneous conclusions of law;
(3) the Commissioner’s decision that Esparza was terminated for future ineffectiveness is
contrary to ECISD’s basis in its notice of proposed termination, is not supported by
substantial evidence, and is based on erroneous conclusions of law; and (4) multiple of
the Commissioner’s conclusions of law were not supported by substantial evidence and
are based on erroneous conclusions of law. Subsequent to a hearing and without
specifying the reason for its decision, the District Court reversed the Commissioner’s
decision upholding ECISD’s board of trustees’ termination of Esparza’s term contract.
The District Court also ordered that ECISD reinstate Esparza and reimburse her for lost
wages and all benefits she may be entitled to. This appeal followed.
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III. DISCUSSION
By two issues, the Commissioner argues that the trial court erred when it rejected
(1) the Commissioner’s reasonable interpretation of the amendments to education code
§§ 21.257(a-1) and 21.259(b)(1); and (2) his conclusion that good cause to terminate
Esparza was supported by substantial evidence. In response, Esparza argues that there
were no facts that established she was an ineffective administrator.
A. Standard of Review
In our review of the district court’s judgment, we focus, as did the district court, on
the decision of the Commissioner. See TEX. EDUC. CODE ANN. § 21.307; Davis, 34 S.W.3d
at 562; Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App.—Corpus Christi–Edinburg
2008, no pet.). We may reverse the Commissioner’s decision only if the decision is not
supported by substantial evidence or if the conclusions of law are erroneous. Davis, 34
S.W.3d at 562; see TEX. EDUC. CODE ANN. § 21.307(f); Matthews, 268 S.W.3d at 172; see
also TEX. GOV’T CODE ANN. § 2001.174; 19 TEX. ADMIN CODE ANN. § 157.1073(h).
“Substantial evidence review is a limited standard of review, requiring ‘only more than a
mere scintilla [of evidence],’ to support an agency’s determination.” Davis, 34 S.W.3d at
566; Hammack v. Pub. Util. Comm’n of Tex., 131 S.W.3d 713, 725 (Tex. App.—Austin
2004, pet. denied) (noting that substantial evidence “does not mean a large or
considerable amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion”); see Peaster Indep. Sch. Dist.
v. Glodfelty, 63 S.W.3d 1, 5 (Tex. App.—Fort Worth 2001, no pet.) (“Substantial evidence
review is a limited standard that gives great deference to an agency in its field of
expertise . . . .”). “Essentially, this is a rational-basis test to determine, as a matter of law,
15
whether an agency’s order finds reasonable support in the record.” Jenkins v. Crosby
Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.). If, based on
the evidence as a whole, reasonable minds could have reached the same conclusion as
the Commissioner, then the Commissioner’s decision is supported by substantial
evidence. Nelson v. Weatherwax, 59 S.W.3d 340, 343 (Tex. App.—Fort Worth 2001, pet.
denied); see Glodfelty, 63 S.W.3d at 5.
Whether an agency’s determination meets the substantial evidence standard is a
question of law. Davis, 34 S.W.3d at 566. Ultimately, we are concerned not with the
correctness of the agency’s decision, but its reasonableness. Jenkins, 537 S.W.3d at 149;
see Webworld Mktg. Grp., L.L.C. v. Thomas, 249 S.W.3d 19, 25 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (noting that an agency’s decision is arbitrary and capricious if the
agency did not “genuinely engage in reasoned decision making”). Although substantial
evidence is more than a mere scintilla, the evidence in the record may preponderate
against the agency decision and still amount to substantial evidence supporting the
decision. Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446,
452 (Tex. 1984); N. E. Indep. Sch. Distr. v. Riou, 581 S.W.3d 333, 340 (Tex. App.—San
Antonio 2018, pet. granted). Our review, like the district court’s, is limited to the evidentiary
record made at the local level and any evidence taken by the Commissioner. TEX. EDUC.
CODE ANN. § 21.307(e); Riou, 581 S.W.3d at 340; see Ysleta Indep. Sch. Dist. v. Meno,
933 S.W.2d 748, 751 n.5 (Tex. App.—Austin 1996, writ denied) (noting that, under
substantial evidence review, “[t]he reviewing tribunal is restricted to [the] record, save in
extraordinary circumstances, and it may not re-weigh the evidence, find facts[,] or
substitute its judgment for that of the original tribunal.”). The Commissioner’s reasoning
16
for his or her decision is immaterial if his or her conclusion is correct; thus, we will uphold
the Commissioner’s decision on any legal basis shown in the record. Goodie v. Hous.
Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied); see Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962) (“If the
Commission’s conclusion was correct, it is immaterial that it may have proceeded to the
conclusion on an erroneous theory or may have given an unsound reason for reaching
it.”).
B. Texas Education Code §§ 21.257(a-1) & 21.259(b)(1)
A central issue to this appeal is whether the board was authorized to reject and
modify the IHE’s determination that Esparza’s effectiveness was not affected by the
dissemination of her nude photo, a determination the IHE labeled as a “credibility finding,”
without regard to whether the determination was supported by substantial evidence.
Compare TEX. EDUC. CODE ANN. § 21.259(c) (providing that a school board may reject or
change a finding of fact by the IHE only if it is not supported by substantial evidence) with
id. § 21.259(b)(1) (providing that a school board may adopt, reject, or change a
conclusion of law by the IHE) and id. § 21.257(a-1) (providing that a determination by the
IHE “regarding good cause” for termination of a term contract is a conclusion of law and
may be adopted, rejected, or changed by the board of trustees as provided by
§ 21.259(b)). To support its decision to terminate Esparza’s contract, the school board
determined that Esparza’s future effectiveness was “impaired” as a result of the photo’s
dissemination in the community, contrary to the IHE’s finding. The board also rejected the
IHE’s corresponding conclusion of law that no good cause existed and adopted its own
contrary finding and conclusion of law. The Commissioner concluded that ECISD’s board
17
was free to change the IHE’s determination that Esparza’s effectiveness was not affected
by the photo’s dissemination.
Before 2011, whether there was good cause to terminate a teacher’s contract was
generally a question of fact. See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.
App.—Houston [1st Dist.] 1992, no writ); Watts v. St. Mary’s Hall, 662 S.W.2d 55, 58 (Tex.
App.—San Antonio 1983, writ ref’d n.r.e); Tex. Emp’rs Ins. Ass’n v. Fowler, 140 S.W.2d
545, 548 (Tex. App.—Amarillo 1940, writ ref’d); see also Nelson, 59 S.W.3d at 349–50;
Adams v. Aldine Indep. Sch. Dist., No. 054-R2-0410, 2010 WL 11545918, at *7 (Tex.
Educ. Agency June 1, 2010) (“Good cause for terminating a teaching contract is also a
finding of fact.”). However, §§ 21.257 and 21.259 of the education code were amended
in 2011 to provide that “a determination regarding good cause” to terminate a teacher’s
contract is a “conclusion of law” that a school board may adopt, reject, or modify. See Act
of June 28, 2011, 82nd Leg., 1st C.S., ch. 8 (S.B. 8), §§ 13, 14, 2011 Tex. Gen. Laws
5463, 5467. Now, § 21.259 provides that a board may adopt, reject, or change the hearing
examiner’s “conclusion of law, including a determination regarding good cause
for . . . termination,” TEX. EDUC. CODE ANN. § 21.259(b)(1), and § 21.257 provides that a
“determination by the hearing examiner regarding good cause for the . . . termination of
a . . . term contract is a conclusion of law and may be adopted, rejected, or changed by
the board of trustees or board subcommittee as provided by [§] 21.259(b).” Id. § 21.257(a-
1) (emphasis added). This language is unambiguous; a determination by the IHE
“regarding good cause” is treated as a conclusion of law and may be adopted, rejected,
or changed by a school district’s board without regard to whether the determination was
supported by substantial evidence. See id. §§ 21.257(a-1), .259(b)(1); see also Judson
18
Indep. Sch. Dist. v. Ruiz, No. 04-13-00706-CV, 2015 WL 1501758, at *5 (Tex. App.—San
Antonio Mar. 31, 2015, pet. denied) (mem. op.) (“Whether good cause to terminate a
teacher’s term contract exists is a question of law.”).
The education code, however, does not define good cause as it relates specifically
to the termination of an educator employed under a term contract. See Guerra v. Santa
Rosa Indep. Sch. Dist., 241 S.W.3d 594, 603 (Tex. App.—Corpus Christi–Edinburg 2007,
pet. denied) (citing Tave v. Alanis, 109 S.W.3d 890, 894 (Tex. App.—Dallas 2003, no
pet.)); see also TEX. EDUC. CODE ANN. § 21.156 (providing that good cause to terminate
an educator employed under a continuing contract is “the failure to meet the accepted
standards of conduct for the profession as generally recognized and applied in similarly
situated school districts in this state”). Traditionally, the Commissioner has defined good
cause to terminate a teacher’s term contract by employing and citing the definition
articulated by our sister court in Lee-Wright. See Lee-Wright, 840 S.W.2d at 580; see
also, e.g., Esparza v. Edinburg Consol. Indep. Sch. Dist., No. 017-R2-01-2017, 2017 WL
2324582, at *3 (Tex. Educ. Agency Mar. 17, 2017); Adams, 2010 WL 11545918, at *7;
Floyd v. Hous. Indep. Sch. Dist., No. 038-R2-203, 2003 WL 27375226, at *2 (Tex. Educ.
Agency Mar. 28, 2003); Woolworth v. Eagle Pass Indep. Sch. Dist., No. 119-R2-1291,
1998 WL 36011346, at *4 (Tex. Educ. Agency Jan. 1, 1998). Under this test, good cause
to terminate a teacher’s term contract exists if the employee (1) failed to perform duties
in the scope of employment that a person of ordinary prudence would have done under
the same or similar circumstances; or (2) acted in a way inconsistent with the continued
existence of the employer-employee relationship. Lee-Wright, 840 S.W.2d at 580.
However, Texas appellate courts have not reiterated this standard or any other specific
19
standard when analyzing whether good cause existed to terminate a teacher’s term
contract. See, e.g., Miller v. Hous. Indep. Sch. Dist., 51 S.W.3d 676, 681–82 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (concluding that teacher’s failure to report to work
despite being ordered to do so was good cause for termination because it violated
established school board policy, “which her contract defined as lawful cause for
discharge”); see also Nelson, 59 S.W.3d at 349–50 (concluding that good cause for
termination of continuing contract existed, without discussing whether there was a failure
to meet the accepted standards of conduct for the profession in similarly situated school
districts, when special education teacher violated school board’s local policy against
insubordination by failing to follow official directive from the principal); Judson, 2015 WL
1501758, at *6 (concluding that good cause for termination of term contract existed when
counselor violated school board policy and violation of the policy subjected counselor to
discipline, including possible termination).12
Here, whether there was good cause to terminate Esparza and whether the
release of her nude photo interfered with her ability to effectively perform her job are two
determinations that are indivisibly intertwined because the latter is subsumed in the
former. The record includes a copy of ECISD’s DH (Local) policy and Employee
Standards of Conduct. The policy provides that, “If an employee’s use of electronic
media . . . interferes with the employee’s ability to effectively perform his or her job duties,
the employee is subject to disciplinary action, up to and including termination of
employment.” Further, the policy states that electronic media includes “all forms of
12 We note that the facts presented by these cases would constitute good cause under the Lee-
Wright test as well. See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.—Houston [1st Dist.] 1992,
no writ).
20
telecommunication, such as landlines, cell phones, and web-based applications.” It is
undisputed that Esparza used her cell phone to take the nude photo and transmit it to her
husband via text message. In the notice for proposed termination, the school board
informed Esparza that the public outcry concerning the publicity and dissemination of her
nude photo, “as well as the notoriety within the Barrientes Middle School and greater
Edinburg CISD school communities[,] have undermined [Esparza’s] ability to be an
effective administrator for the District to such an extent so as to constitute good cause for
the termination of [her] term employment contract with the District.” Thus, whether
Esparza’s use of electronic media (her cell phone) interfered with her ability to be
effective, in violation of ECISD’s policy, is a determination regarding good cause for
termination. See Miller, 51 S.W.3d at 681–82; Lee-Wright, 840 S.W.2d at 580; Watts, 662
S.W.2d at 58 (“Disobedience of reasonable rules of the employer that are known to the
employee constitute a just ground for discharge.”); see also Judson, 2015 WL 1501758,
at *6.
We conclude that whether Esparza’s effectiveness was affected was a “good
cause” determination as provided by the education code and, thus, a “conclusion of law”
that ECISD’s board was free to reject or modify without reference to whether that
determination was supported by substantial evidence.13 See TEX. EDUC. CODE ANN.
13 The Commissioner concluded the school board’s action was authorized by the education code
because the determination regarding Esparza’s effectiveness was a finding of “interpretive fact,” which is
akin to a conclusion of law, as opposed to a finding of “hard fact,” which must be supported by substantial
evidence. The Commissioner presents this same argument on appeal. However, this interpretation
contradicts the plain language of the statute, which provides that “a determination regarding good cause”
is a conclusion of law. See TEX. EDUC. CODE ANN. § 21.257(a-1). Accordingly, we reject this interpretation.
See Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404–05 (Tex. 2016) (“[W]e have long recognized that
an agency’s construction of a statute may be taken into consideration by courts when interpreting statutes,
but deferring to an agency’s construction is appropriate only when the statutory language is ambiguous.”);
Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962) (“If the Commission’s conclusion was
21
§§ 21.257(a-1), .259(b)(1); Davis, 34 S.W.3d at 566 (“[T]he label attached, ‘finding of fact’
or ‘conclusion of law,’ is not determinative; the focus is on whether the issue determined
is ultimately one of policy . . . .”); Banker v. Banker, 517 S.W.3d 863, 870 (Tex. App.—
Corpus Christi–Edinburg 2017, pet. denied) (“Regardless of the label, the trial court’s
designation of a finding of fact or conclusion of law is not controlling on appeal.”); Hunter
Indus. Facilities, Inc. v. Tex. Nat. Res. Conservation Comm’n, 910 S.W.2d 96, 104 (Tex.
App.—Austin 1995, writ denied) (explaining that “ultimate findings” concerning
compliance with statutory standards under the Solid Waste Disposal Act have the same
effect as a conclusion of law or mixed question of law and fact); see also Judson, 2015
WL 1501759, at *6 (“[T]he hearing examiner’s ‘findings’ about which similarities and
differences in Price’s and Ruiz’s conduct and circumstances are relevant to their
discipline are conclusions of law, as is the ultimate conclusion of whether the decision to
terminate Ruiz’s contract was arbitrary and capricious”).
Accordingly, the Commissioner’s conclusion that ECISD’s board was allowed to
reject or modify the effectiveness impairment finding, without regard to whether the finding
was supported by substantial evidence, was not erroneous. See TEX. EDUC. CODE ANN.
§ 21.307(f). We sustain the Commissioner’s first issue.
C. Analysis
The questions now become whether (1) there was a scintilla of evidence—i.e.,
substantial evidence—in support of the school board’s conclusion that Esparza’s future
correct, it is immaterial that it may have proceeded to the conclusion on an erroneous theory or may have
given an unsound reason for reaching it.”).
22
effectiveness was impaired by the dissemination of her nude photo14 and (2) whether the
Commissioner’s implicit conclusion that ECISD’s decision was not arbitrary, capricious,
or unlawful was erroneous.15 See id. §§ § 21.303(b)(1), 21.307(f); Davis, 34 S.W.3d at
566 (“Whether an agency’s determination meets the substantial evidence standard is
question of law.”); Glodfelty, 63 S.W.3d at 5.
Here, Esparza occupied the high-level position of principal for the middle school.
See TEX. EDUC. CODE ANN. § 11.202 (providing that “[t]he principal of a school is the
institutional leader of the school” and that the principal shall “assume the administrative
responsibility and instructional leadership” at the school). The IHE’s undisputed findings
of fact adopted by the board and the Commissioner include findings that: Esparza’s nude
photo had been in circulation since before the end of the 2015–2016 school year; the
photo “was being passed around some students and was also seen by some staff” in
June of 2016; Esparza learned of the photo’s existence in the public domain on June 14,
2016; a parent inquired or complained to the school about the photo on June 22, 2016;
“there was zero community outcry or outrage due to the unauthorized dissemination of
Ms. Esparza’s nude photo” and “there was no media coverage about Ms. Esparza’s nude
14 We have previously observed that this constitutes good cause for termination under ECISD
policy. While the school board was free to change the good cause determination without regard to whether
it was supported by substantial evidence, see TEX. EDUC. CODE ANN. §§ 21.257(a-1), 21.259(b)(1), the
board’s new conclusion is required to be supported by substantial evidence. See id. § 21.303(b)(1)
(providing that the Commissioner may not substitute his or her judgment for that of the board unless the
board’s decision is not supported by substantial evidence or is arbitrary, capricious, or unlawful).
15 The conclusion that there was good cause for Esparza’s termination was made by ECISD’s
board, and the Commissioner reviewed this decision for substantial evidence and to determine whether the
decision was arbitrary, capricious, or unlawful. See TEX. EDUC. CODE ANN. § 21.303(b)(1); Miller v. Hous.
Indep. Sch. Dist., 51 S.W.3d 676, 681–82 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). By affirming
the board’s decision, the Commissioner implicitly concluded that the board’s conclusion was supported by
substantial evidence and that its decision was not arbitrary, capricious, or unlawful. See Miller, 51 S.W.3d
at 681–82.
23
photo” prior to June 23, 2016; the story of the disseminated nude photo was reported on
various media outlets; Gutierrez “received calls, texts, or emails from several media
sources” on June 29, 2016; the photo had gone “viral” by July 20, 2016; and ECISD sent
Esparza the notice of her proposed termination on August 25, 2016.16
Based on this record, we conclude that reasonable minds could disagree as to
whether the photo’s dissemination among the students and community interfered with
Esparza’s future ability to effectively perform her job duties so as to constitute good cause
to terminate her contract. See Glodfelty, 63 S.W.3d at 5; Nelson, 59 S.W.3d at 343. It was
reasonable for the school board to infer from the escalating media coverage and the fact
that the photo had recently “gone viral” that the disruption and distraction from the photo
would continue and interfere with Esparza’s ability to effectively perform her job duties, in
violation of ECISD’s policy. See Davis, 34 S.W.3d at 565 (noting that, under the statutory
scheme in the education code, “a school board must be the ultimate interpreter of its
policy, subject to the limits established by the Legislature in its provisions for
administrative and judicial review”); Pope v. Perrin-Whit Consol. Indep. Sch. Dist., No.
145-R2-397, 1997 WL 35411135, at *1–3 (Tex. Educ. Agency Jan. 1, 1997) (noting that
knowledge among students, faculty, and community of teacher’s flirting with two students
supported finding that her effectiveness was impaired); see also TEX. EDUC. CODE ANN.
§ 11.151(b) (“The trustees as a body corporate have the exclusive power and duty to
govern and oversee the management of the public schools of the district.”); Ball v.
16 Because the hearing examiner is the sole judge of the witnesses’ credibility and the weight to be
given to their testimony, we do not consider the testimony of ECISD’s witnesses regarding Esparza’s
ineffectiveness in our analysis. See Davis, 34 S.W.3d at 567. We must assume, consistent with the IHE’s
findings, that she did not find the testimony to be credible. See id.; Golden Eagle Archery, Inc. v. Jackson,
24 S.W.3d 362, 373 (Tex. 2000).
24
Kerrville Indep. Sch. Dist., 504 S.W.2d 791, 795–96 (Tex. App.—San Antonio 1973, writ
ref’d n.r.e.) (“The Legislature has, thus, not only delegated to school authorities the
function of determining disputes arising from the termination of teacher’s contracts, but
has, without equivocation, implemented its intention to keep such disputes in the hands
of those knowledgeable in school matters by declaring that the appeal to the courts
authorized by the statute shall be under the substantial evidence rule.”). It is also
reasonable to conclude based on the nature of Esparza’s employment (a principal in
charge of a school caring for teenage children), the nature of the photo (a voluntarily taken
naked picture), and the group that circulated the picture (students, teachers, and the
school’s community) that the distraction would continue to increase and the media
attention and parental inquiries and complaints would persist and increase, and that this
would impair Esparza’s future effectiveness. Accordingly, we conclude that the
Commissioner’s decision was supported by substantial evidence and not erroneous. See
TEX. EDUC. CODE ANN. §§ 21.202, 21.307(f); Davis, 34 S.W.3d at 565; Jenkins, 537
S.W.3d at 149; Tave, 109 S.W.3d at 894; Watts, 662 S.W.2d at 57; see also Judson,
2015 WL 1501758, at *6.
We also conclude that the Commissioner did not err when he implicitly concluded
that ECISD’s decision was not arbitrary, capricious, or unlawful. See TEX. EDUC. CODE
ANN. § 21.303(b)(1). An agency decision is arbitrary and capricious if it fails to “manifest
a rational connection to the facts,” see Oncor Elec. Delivery Co. v. Pub. Util. Comm’n of
Tex., 406 S.W.3d 253, 265 (Tex. App.—Austin 2013, no pet.), or if the agency did not
“genuinely engage[] in reasoned decision making.” See City of El Paso v. Pub. Util.
Comm’n of Tex., 883 S.W.2d 179, 184 (Tex. 1994) (holding that one of the ways in which
25
an agency’s decision may be arbitrary and capricious is if the agency reaches a
“completely unreasonable result,” even after properly considering legislatively mandated
factors); Webworld Mktg. Grp., L.L.C. v. Thomas, 249 S.W.3d 19, 25 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). In its decision, the school board explained that the
dissemination of Esparza’s nude photo and the publicity it started to receive “impaired
[Esparza’s] future effectiveness as a middle school principal and made it untenable for
ECISD to continue to employ her.” This indicates a rational connection to the facts and
reasoned decision making. See City of El Paso, 883 S.W.3d at 184; Oncor Elec., 406
S.W.3d at 265; Thomas, 249 S.W.3d at 25. Accordingly, we must uphold the
Commissioner’s decision. See TEX. EDUC. CODE ANN. §§ 21.303(b)(1); 21.307(f);
Matthews, 268 S.W.3d at 172.
Esparza argues that a third party was responsible for the photo’s dissemination
and, therefore, there can be no good cause to terminate her. We disagree. While it is
unfortunate that Esparza was a victim of a crime, the fact remains that there is a naked
picture of Esparza voluntarily taken circulating among the students and the school’s
community. As noted, reasonable minds could conclude this would detrimentally affect
Esparza’s ongoing effectiveness as a principal, and ECISD’s DH (Local) policy covers the
scenario here. Whether DH (Local) policy was violated is ultimately determined by the
school board, see Davis, 34 S.W.3d at 565; see also Judson, 2015 WL 1501758, at *6
(“The school board retains the authority to make the ultimate determination of whether
board policy has been violated and whether the violation is good cause to terminate a
contract.”), and we cannot conclude that its determination was arbitrary, capricious, or
unlawful under these circumstances.
26
Esparza also argues that she did not receive notice that she was being terminated
for her “future” ineffectiveness. Again, we disagree. The board’s notice of termination
mentions only “effectiveness,” without differentiating between current or future
ineffectiveness, and the notice can be properly read as referring to both. We conclude
that, by listing “effectiveness” in the notice of proposed termination, the board put Esparza
on notice that her current and future effectiveness was at issue.
Finally, Esparza also argues that there is no evidence that she was ineffective as
a result of the photo because the photo was in circulation on social media and the internet
long before she was suspended and before the end of the prior school year. We find
Esparza’s argument unpersuasive for the reasons set forth above. See Matthews, 268
S.W.3d at 175–76.
We sustain the Commissioner’s second issue.17
IV. CONCLUSION
We reverse the district court’s judgment and render judgment affirming the
Commissioner’s decision.
DORI CONTRERAS
Chief Justice
Concurring Opinion by Justice Hinojosa.
Delivered and filed the
19th day of March, 2020.
17 Because the Commissioner’s second issue is dispositive, we need not reach any of the other
issues presented in this appeal. See TEX. R. APP. P. 47.1.
27