Mike Morath, in His Official Capacity as Texas Commissioner of Education and La Villa Independent School District v. Dr. Paz Elizondo

ACCEPTED

15-25-00024-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

4/14/2025 4:34 PM

No. 15-25-00024-CV CHRISTOPHER A. PRINE

CLERK

IN THE FIFTEENTH COURT OF APPEALS FILED IN

15th COURT OF APPEALS

AUSTIN, TEXAS

AUSTIN, TEXAS 4/14/2025 4:34:25 PM

CHRISTOPHER A. PRINE

Clerk

Mike Morath, Texas Commissioner of Education; and La Villa

Independent School District;

Appellants

V

Dr. Paz Elizondo,

Appellee

Appeal from the 455th District Court of

Travis County, Texas, Cause No. D-1-GN-22-002025

__________________________________________________________

Appellee Dr. Paz Elizondo’s Brief

Subject to Dr. Paz Elizondo’s Motion to Dismiss &

In the alternative Plea in Abatement

Ruben R. Peña

State Bar No. 15740900

Law Offices Ruben R. Peña, P.C.

5375 Camino de la Tierra

Brownsville, Texas 748526

(956)778-3930 (Cell)

ruben@rubenpenalaw.com

Counsel for Appellee Dr. Paz Elizondo

1

TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………. 2

INDEX OF AUTHORITIES ……………………………………… 3-4

ABBREVIATIONS & RECORD REFERENCES………………... 4

STATEMENT REGARDING ORAL ARGUMENT ……………... 5

ISSUES PRESENTED …………………………………………… 5

SUMMARY OF THE ARGUMENT ………………………………5-6

ARGUMENT ……………………………………………………… 6

CONCLUSION & PRAYER ……………………………………… 18

CERTIFIICATE OF COMPLIANCE …………………………….. 19

CERTIFICATE OF SERVICE …………………………………… 20

2

INDEX OF AUTHORITIES

Cases:

Cadena Commercial USA Corp. v Tex. Alcoholic Beverage

Comm’n………………………………………………………….. 7

City of El Paso v Heinrich 284 S.W.3d 366,370 (Tex. 2009)… 17

Davis v Morath 624 S.W. 3d 215 (Tex. 20210)…………………14, 16

Dodd v Meno 870 S.W.2d 4, 7 (Tex. 1994)…………………… 11

In re Prudential Ins. Co. of America 148 S.W.3d 124, 132

(Tex. 2004)………………………………………………….. 12

Pub. Util. Comm’n v Gulf States Utils. Co. 809 S.W.2d 201,

207(Tex.1991)…………………………………………………… 16

R.R. Comm’n of Tex. V Tex. Citizens for a Safe Future and Clean

Water 336 S.W. 3d 619, 628 (Tex. 2011)………………………… 16

State v Jackson 376 S,W,2d 341, 344-45 (Tex. 1964)………….. 7

Tarrant Appraisal District v Moore 845 S.W.,2d 820, 823

(Tex. 1993) ………………………………………………. 11

Texas Educ. Agency v Leeper 893 S.W.2d 432.446 (Tex. 1995).. 17

TGS-NOPEC Geophysical Co. v Combs 340 S.W.3d 432,

438-39 (Tex. 2011)…………………………………………… 16

Wittman v Nelson 100 S.W.3d 356, 360 (Tex. App.—

San Antonio 2002, pet denied)………………………………… 10

3

Statutes:

Tex. Civ. Prac. & Rem. Code §37.002(b) ………………….. 17,18,20

Tex. Civ. Prac. & Rem. Code §37.003(a) ………………….. 20

Tex. Civ. Prac. & Rem. Code §37.004(a)…………………… 5

Tex. Educ. Code §7.057(a)(2)(A)……………………………10

Tex. Educ. Code §21.001 …………………………………… 10

Tex. Educ. Code §21.002 …………………………………… 10

Tex. Educ. Code §21.102(b)…………………..6 ,8,9,10,11,13,16

Commissioner Decisions:

Higareda v Valley View ISD 027-R10-12-2013……………. 9

Simani v Houston ISD 021-R10-03-2019…………………..11

Miscellaneous:

DCA(LEGAL) ……………………………………………….6,16

DGBA(LOCAL)…………………………………………….. 13,15

Abbreviations & Record References

Clerk’s Record CR[Page #]

Court Reporter’s Record RR [Page#]

Uniform Declaratory Judgement Act UDJA, UDA

4

STATEMENT REGARDING ORAL ARGUMENT

Dr. Paz Elizondo does not believe oral argument is necessary but stands

ready to participate should the Court believe such would be helpful.

ISSUES PRESENTED:

ISSUE NO. 1 The trial court correctly reversed the decision of the

Commissioner as the Commissioner failed to follow the legislative

scheme enacted to protect teachers.

ISSUE NO. 2 The trial court correctly held that Dr. Elizondo’s UDJA

claim was sustainable under Tex.Civ. Prac. & Rem. Code §37.004.

SUMMARY OF THE ARGUMENT

The issue in this case is whether a local board policy, which requires

grievances to be filed within a certain period of time, should be used to

subvert the clear legislative mandate as to when a district must provide a

continuing or term contract.

The La Villa ISD and the Commissioner of Education both seek to

undermine the protections of teachers under Texas Education Code

§21.102(b). Neither the District nor the Commissioner may act in a

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manner to nullify the clear dictates of the Texas Legislature. To permit

the use of a local grievance policy as the tool to negate the statutory

framework set forth in the Texas Education Code would be to permit

districts to either mistakenly or purposefully subvert the law.

ISSUE NO. 1 The trial court correctly reversed the decision of the

Commissioner as the Commissioner failed to follow the legislative

scheme enacted to protect teachers.

ARGUMENT

This is a case where the La Villa Independent School District and the

Commissioner of Education both failed to follow the statutory mandates

of Texas Education Code §21.102(b) and where the La Villa ISD failed

to follow its own policy DCA (LEGAL)(C.R. 47-48) in regards to when

a teacher is required to be provide with a term contract.

Appellee was first employed by La Villa ISD in May of 2019. He was

given a probationary contract. (C.R. 34-37)

Appellee was then given a second, albeit illegal, probationary contract

in April 2020. (C.R. 38-41)

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There is no dispute in the record that Appellee was entitled to a term

contract when his first year probationary contract was completed.

There is no dispute in the record that Appellee satisfied the requirements

of having taught in a public school for at least five of the eight years

preceding employment by the district. (C.R. 43-44)

The commissioner held that he did not have jurisdiction under Tex.

Educ. Code 7.057 because Appellee failed to timely grieve his second

year probationary contract. In doing so he deferred to the District’s

internal grievance procedures in finding that Appellee’s compliant was

untimely filed in spite of the clear statutory mandates of the Texas

Education Code.

“State agencies are statutory creatures and have no inherent authority

other than those powers the Legislature expressly confers." Cadena

Commercial USA Corp. v . Tex. Alcoholic Beverage Comm’n 518 S.W.3d

318, 334 (Tex. 2017) "When the Legislature acts with respect to a

particular matter, the administrative agency may not so act with respect to

the matter as to nullify the Legislature's action even though the matter be

7

within the agency's general regulatory field." State v. Jackson, 376

S.W.2d 341, 344-45 (Tex. 1964). The district’s local grievance policy,

DGBA(LOCAL) (C.R. 150-156) is preempted by the action of the

legislature itself. Id @343. The trial court correctly found the

Commissioner failed to account for the preemption of the District’s local

policy by state law.

In the case before this Honorable Court the Commissioner and the District

would ask that it turn a blind eye to the clear legislative mandate when it

comes to the requirements of when a teacher may be provided a probation

contract and when it is required to provide a teacher a term or continuing

contract.

Appellants do not deny that Dr. Elizondo was qualified and entitled to

receive a term or continuing contract under Tex. Educ. Code 21.102(b).

Rather they steadfastly hold the position that Dr. Elizondo failed to timely

file his grievance under the local policy, DGBA(LOCAL) (C.R. 150-156)

To support their contention they cite to a number of cases which hold that,

indeed, failure to timely grieve will lead to a dismissal of the grievance.

8

However, none of the cases cited hold that a local grievance procedure

trumps a legislative mandate.

This Court should not permit the Commissioner and school districts to

hide behind the proverbial “log” and subvert the Legislature’s clear

mandate.

The Commissioner points out the language in the probationary contract is

clear. That the contract contained “only three pages of readily

understandable terms and was substantially similar to the probationary

contract that Elizondo signed with la Villa ISD in the previous year. See

pg. 8 Commissioner’s brief. (C.R. 262-267) The problem with this line of

reasoning is that it assumes that the reader understood he was entitled to

a term or continuing contract or that he actually wanted to be in a

probationary contract. Section 21.102(b) provides that “A probationary

contract may not be for a term exceeding one school year. The

probationary contract may be renewed for two additional one-year

periods, for a maximum permissible probationary contract period of three

school years, except that the probationary period may not exceed one

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year for a person who has been employed as a teacher in public education

for at least five of the eight years preceding employment by the district.

(emphasis added)

In Higareda v Valley View ISD 027-R-10-12-2013 the Commissioner

found that the Respondent District was legally obligated to give a Chapter

21 contract to the Petitioner rather than a probationary contract. In

Higareda the commissioner found that since the Petitioner had alleged a

violation of the school laws of the state and that he had jurisdiction to

determine whether the District had violated Texas Education Code §

21.001 by “failing to employ Petitioner under a Chapter 21 contract” id

@pg.7 . The Commissioner found he had jurisdiction in the Higareda

case under §7.057(a)(2)(A), to determine whether the District violated

Texas Education Code § 21.002 by failing to employ Petitioner under a

Chapter 21contract. The Commissioner failed to follow his own

precedent. In his conclusion of law number 5 the Commissioner held in

Higareda that the “contractual requirements of chapter 21 of the Texas

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Education Code are mandatory. (emphasis added) @pg. 11. The

requirements are mandatory here as well.

La Villa ISD’s own policy DCA (LEGAL)(C.R. 47-48) mirrors

Education Code 21.102. The District’s own policy requires it to provide

individuals who have the qualifying years of experience with a term

contract. The legislature has made it clear that once a teacher has satisfied

the one year probationary period in a new school district and that the

individual qualifies with the necessary experience the district is obligated

to provide a term or continuing contract.

Chapter 21 contracts provide significant protections for teachers which

probationary contracts do not. The policy considerations that the

legislature implemented in 21.102(b) are mandatory on a District and the

Commissioner erred when he failed to uphold the legislative scheme.

Because the Legislature has enacted the provisions of Section 21.102(b)

to provide qualified teachers with the protections of a term contract this

Court should affirm the holding of the trial court.

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The waiver argument: The Commissioner further found that the

Plaintiff had “waived his statutory or constitutional rights by knowingly

and voluntarily acting inconsistently with those rights.” That by signing

his probationary contract Plaintiff accepted the salary and benefits under

the probationary contract until he received his termination letter, thereby

waiving his right to “challenge the terms of his probationary contract”.

(C.R. 4-5)

The Commissioner cited Wittman v Nelson, 100 S.W.3d 356,360) (Tex.

App.—San Antonio, 2002, pet. Denied) as authority to support his

contention that when Appellee accepted the salary and benefits of the

probationary contract he had waived his right to complain. However,

even a cursory review of the Wittman case shows the flawed reasoning.

Wittman was accused of serious misconduct of a student. After having

been suspended she agreed to return to her duties under a probationary

contract. Wittman’s decision was made after serious discussions with the

superintendent and made knowingly of the consequences of her decision.

The facts in Wittman and the instant case are clearly distinguishable.

12

The commissioner also cited Simani v Houston ISD (Comm Dec. 021-

R10-03-2019). In Simani the Commissioner likewise held that the failure

to timely grieve her probationary contract prohibited the Commissioner

for granting relief. However, an underlying issue in Simani was whether

Simani had actually taught at a public school that would have qualified

her for a term or continuing contract. Regardless, the Commissioner’s

decision should not be given weight as again the facts do not support the

conclusion as to waiver.

The first inkling Plaintiff had that he is under a probationary contract is

when he received his “Notice of End-of-Year Termination of

Probationary Contract” which advises him that his termination was in “the

best interest of the District…”(C.R.42)

The record is bereft of any evidence to establish that Petitioner

“intelligently, voluntarily, and knowingly relinquished a known right”.

Even a cursory review of the “probationary contract” does not provide the

teacher with any idea that he or she can be dismissed without any recourse.

(L.R. pg. 000072-74) The test for knowingly relinquishing a “known

13

right” is that the individual needs to know that he or she in fact knows that

they have such a right. The probationary contract does not provide any

indication of such. Neither is there any evidence that Plaintiff was

provided any document that informed him that by signing the

probationary contract he was waiving his right to a term contract.

However, paragraph 10.4 of the contract specifically states that “Texas

law shall govern construction of this Contract”. (L.R.000074) The Texas

law that governs the contract is Tex. Educ. Code section 21.106(b).

While “[c]onstruction of a statute by the administrative agency charged

with its enforcement is entitled to serious consideration, so long as the

construction is reasonable and does not contradict the plain language of

the statute.” Dodd v Meno 870 S.W.2d 4, 7 (Tex. 1994) citing Tarrant

Appraisal District v Moore 845 S.W.2d 820,823 (Tex. 1993) . Here the

Commissioner ruled in favor of the District’s local policy rather than the

clear dictates of §21.102(b).

In order to find wavier the Texas Supreme Court has stated that “a waiver

of constitutional rights must be voluntary, knowing, and intelligent, with

14

full awareness of the legal consequences. In re Prudential Ins. Co. of

America 148 S.W.3d 124, 132 (Tex. 2004)

The trial court considered which of the parties was in a better position to

determine the consequences of a teacher entering into a subsequent

probationary contract when they were clearly entitled to a term or

continuing contract. The District that has a Human Resources Department

and legal counsel at its disposal as opposed to teachers who have no legal

training and no understanding of the consequences of signing a

probationary contract. Clearly Districts have the upper hand and should

not be allowed to subvert Texas law on a technicality either intentionally

or by mistake.

Failure to timely grieve argument: The Commissioner determined that

the “primary issue” in the case was whether Dr. Elizondo “timely filed his

grievance” under the District’s DGBA(Local) policy. This erroneous

determination led to the inexorable conclusion that he did not because

more than 15 days had lapsed since he had signed the probationary

contract in May of 2020. (C.R. 38-41) Likewise, because of the failure to

15

timely grieve the illegal contract the District’s board of trustees nor the

Commissioner could reach the merits of the appeal.

The Commissioner noted that “[p]robationary contracts carry far fewer

rights and procedural protections than term contracts, particularly with

respect to termination rights.” (C.R. @ 264)

The question of timelines hinges on whether the time starts to run on the

day the probationary contract was signed or when Dr. Elizondo was

notified of his termination almost a year later.

Davis v Morath 624 S.W.3d 215 (Tex. 2021) provides guidance in this

area. Here as in Davis the District and Commissioner sought to reframe

Appellee’s grievance as a “time-barred complaint about its prior

decisions, so long as the grievance genuinely complains of an ‘action or

decision’ that occurred within ten business days preceding its filing.” The

Court found that the triggering date was when the evaluation “scorecards’

were distributed and not when the Board adopted the procedure. The

teachers in Davis could not be aware of the effect of the decision by the

Board to adopt the procedure until the scorecards were actually

16

distributed. When they were, the teacher’s grieved within the time

required under the local policy. Likewise, in the case before this

Honorable Court the triggering event was when Dr. Elizondo received his

notice of termination.

Davis, however, did not implicate the determination of whether a statute

was to be enforced or whether a local policy would prevail as in the instant

case. However, as guidance the Court looked to the “triggering” event to

determine whether the grievance was timely filed. There is no dispute that

Dr. Elizondo’s “triggering” event was the notice of termination of April

26, 2021.(C.R. 42) When he filed his grievance on April 29, 2021, Dr.

Elizondo was well within the 15 day deadline that the was contained in

the District’s DGBA(Local) policy. (C.R. 88-89)

The trial court found that the Commissioner erred in failing to enforce the

mandates of Tex. Educ. Code §21.106(b) and so should this Honorable

Court.

The Standard of Review: The standard of review of an appeal from the

Commissioner of Education’s decision is the “substantial evidence”

17

standard of review. Davis v Morath, 624 S.W.3d 215, 221 (Tex. 2021) .

Further, Courts give deference to agency’s interpretation of law and its

own regulations. However, no such deference should be given where it is

“plainly erroneous or inconsistent with the language” of the law or rule.

See Pub. Util. Comm’n v Gulf States Utils. Co. 809 S.W.2d 201 207 (Tex.

1991) see also TGS-NOPEC Geophysical Co. v Combs 340 S.W. 3d

432,438 (Tex. 2011) (no deference where agency’s interpretation is

plainly erroneous or inconsistent with the language of the statute.)

Deference occurs when the statutory language is subject to multiple

understandings. Railroad Com’n v. Citizens Safe Future 336 S.W.3d

619, 628 (Tex. 2011) Here both the statutory language of Tex. Educ.

Code §21.102(b) as well as the District’s own policy DCA (LEGAL)

clearly dictate that the District was required to provide the Appellee with

a term contract. To defer to the Commissioner’s decision in this case

would be to ignore the legislature’s clear mandate to provide teachers,

such as Appellee, with the appropriate contract. This Court should affirm

the trial court’s ruling.

18

ISSUE NO. 2 The trial court correctly held that Dr. Elizondo’s UDJA

claim was sustainable under Tex.Civ. Prac. & Rem. Code §37.004.

The Declaratory Judgment Issue: Tex. Civ. Prac. & Remedies Code

§37.004 provides that a person whose “legal relations” are affected by a

statute or contract may have determined any question of construction or

validity arising under the statute or contract and obtain a “declaration of

rights, status or other legal relations thereunder.” See City of El Paso v

Heinrich 284 S.W.3d 366, 370 (Tex. 2009) Indeed the object of the

UDJA is to be remedial and to be construed liberally and administered

liberally. Tex. Civ. Prac. & Remedies Code §37.002(b).

In Texas Educ. Agency v. Leeper 893 S.W.2d 432 (Tex. 1995) the

Supreme Court addressed the issue of whether courts had jurisdiction

when seeking to construe legislative enactments, including the awarding

of attorney fees. The Court concluded “that by authorizing declaratory

judgment actions to construe the legislative enactments of governmental

entities and authorizing awards of attorney fees, the DJA necessarily

waives governmental immunity for such awards.” Id @446.

19

The Court noted that the UDJA “is a remedial enactment which allows

courts to declare relief, whether or not further relief is or could be claimed,

to settle and afford relief with respects to rights, status, and other legal

relations’”. id @445 citing Tex. Civ. Prac. & Rem. Code §§37.002,

.003(a)

This Court should find that the facts in this case authorized the trial court

to conclude that the UDJA as applied here were legally justified. This

Honorable Court should affirm the trial court’s judgment.

CONCLUSION AND PRAYER

The trial court correctly reversed the decision of the Commissioner as

he failed to follow the clear mandate of the Texas Education Code

§21.102(b) and the District’s own policy. The trial court also correctly

held that the provisions of the Tex. Civ. Prac. & Rem. Code §37.002-

.004, .009 to be applicable.

Accordingly, Appellee, Dr. Paz Elizondo respectfully requests this

Honorable Court to affirm in all respects the trial court’s judgment,

reversing the decision of the Commissioner, and find that Appellee was

20

entitled to a term contract. Further, that the Court remand the case to the

trial court for a determination of attorney fees.

Respectfully submitted

LAW OFFICES RUBEN R. PENA, P.C.

5375 Camino de la Tierra

Brownsville, Texas 78526

(956) 778-3930 (Cell)

ruben@rubenpenalaw.com

By:/s/ Ruben R. Peña

Ruben R. Peña

S.B.N. 15740900

Attorney for Appellee

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Word and contains 2,938 words, as determined by the computer

software’s word-count function, excluding the section of the document

listed in Texas rule of Appellate Procedure 9.4 (i)(1)

/s/Ruben R. Peña

Ruben R. Peña

21

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellee’s

Brief has been served on the following by e-service on this the 14TH day

of April, 2025.

David Campbell

Thompson & Horton LLP

8300 N. MoPac Expressway Suite 220

Austin, Texas 78759

Attorneys for La Villa ISD

Karen L. Watkins

Assistant Attorney General

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711

22

Automated Certificate of eService

This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

Ruben Pena

Bar No. 15740900

ruben@rubenpenalaw.com

Envelope ID: 99652726

Filing Code Description: Brief Not Requesting Oral Argument

Filing Description: Brief of Appellee Dr. Paz Elizondo

Status as of 4/14/2025 4:41 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ruben Pena 15740900 ruben@rubenpenalaw.com 4/14/2025 4:34:25 PM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 4/14/2025 4:34:25 PM SENT

Karen Watkins karen.watkins@oag.texas.gov 4/14/2025 4:34:25 PM SENT

Kristy Alonzo kalonzo@thompsonhorton.com 4/14/2025 4:34:25 PM SENT

David J.Campbell dcampbell@thompsonhorton.com 4/14/2025 4:34:25 PM SENT

Kate French kfrench@thompsonhorton.com 4/14/2025 4:34:25 PM SENT