# Laura McClelland v. Mike Morath, Commissioner of Education in His Official Capacity; And Weatherford Independent School District

> Texas Court of Appeals, 15th District · November 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11200492

## Case

- **Court:** Texas Court of Appeals, 15th District
- **Decided:** November 5, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11200492

## How later opinions describe it (automated extraction)

- holding that the UDJA does not waive a state agency’s sovereign immunity when a plaintiff challenges the agency’s actions based on its interpretation of a statute

## Opinion text

ACCEPTED
15-25-00131-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/5/2025 12:54 PM
No. 15-25-00131-CV CHRISTOPHER A. PRINE
_______________________________________________________ CLERK
FILED IN
15th COURT OF APPEALS
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
_______________________________________________________
11/5/2025 12:54:34 PM
CHRISTOPHER A. PRINE
Clerk
LAURA MCCLELLAND,
Appellant,

v.

MIKE MORATH, COMMISSIONER OF EDUCATION, AND
WEATHERFORD INDEPENDENT SCHOOL DISTRICT,
Appellees.
____________________________________________________
On Appeal from the 98th Judicial District Court of Travis
County, Texas, No. D-1-GN-25-000504
____________________________________________________
ERNEST C. GARCIA
KEN PAXTON Chief, Administrative Law Division
Attorney General of Texas
KEEGAN HOWE
BRENT WEBSTER State Bar No. 24143028
First Assistant Attorney General Assistant Attorney General
Telephone: (512) 475-4300
RALPH MOLINA Keegan.Howe@oag.texas.gov
Deputy First Assistant Attorney Administrative Law Division
General Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
AUSTIN KINGHORN Austin, Texas 78711-2548
Deputy Attorney General for Civil
Litigation ATTORNEYS FOR APPELLEE
MICHAEL MORATH, COMMISSIONER OF
EDUCATION

November 5, 2025
TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................ii

INDEX OF AUTHORITIES ..................................................................... iv

GLOSSARY .............................................................................................. xi

IDENTITY OF PARTIES AND COUNSEL............................................ xii

STATEMENT OF THE CASE ...............................................................xiii

NO ORAL ARGUMENT REQUESTED ................................................xiii

ISSUES PRESENTED ........................................................................... xiv

STATEMENT OF FACTS ......................................................................... 1

STANDARD OF REVIEW......................................................................... 3

SUMMARY OF THE ARGUMENT .......................................................... 5

ARGUMENT ............................................................................................. 7

I. Ms. McClelland lacks a valid FMLA claim for review ................. 7

A. Ms. McClelland’s FMLA claim is moot ..................................... 8

B. The FMLA claim is moot because Ms. McClelland has no
legal cognizable interest. ......................................................... 10

C. Exceptions to mootness do not apply. ..................................... 11

D. A policy’s possible future enforcement against others is
not a valid exception to mootness............................................ 15

E. A claim under the Uniform Declaratory Judgments Act is
improper ................................................................................... 18

II. Weatherford ISD may run FMLA and TDL concurrently
under Section 22.003(b) of the Texas Education Code............... 21

ii
A. Principles guiding statutory interpretation of section
22.003(b)................................................................................... 21

B. Section 22.003(b) applies only to personal and local
school-created leave ................................................................. 23

C. FMLA is not leave “provided by the school district.” .............. 29

D. TDL is not leave “provided by the school district.” ................. 32

E. Ms. McClelland misinterprets the statute by improperly
isolating individual words and phrases. ................................. 35

F. This case solely involves questions of statutory
interpretation........................................................................... 39

PRAYER .................................................................................................. 42

CERTIFICATE OF COMPLIANCE ........................................................ 43

CERTIFICATE OF SERVICE................................................................. 44

iii
INDEX OF AUTHORITIES
Cases

Abbott v. Mexican Am. Legislative Caucus, Tex. House of
Representatives,
647 S.W.3d 681 (Tex. 2022) ................................................................. 40

AIM Media Tex., LLC v. City of Odessa,
663 S.W.3d 324 (Tex. App.—Eastland 2023, pet. denied)................... 12

Allen v. Butler Cnty. Comm’rs,
331 Fed. App’x 389 (6th Cir. 2009) (unpublished) .............................. 31

Allstate Ins. Co. v. Hallman,
159 S.W.3d 640 (Tex. 2005) ................................................................. 10

Ammonite Oil & Gas Corp. v. R.R. Comm’n,
672 S.W.3d 33 (Tex. App.—San Antonio 2021),
aff'd on other grounds, 698 S.W.3d 198 (Tex. 2024) .............................. 4

Anderton v. City of Cedar Hill,
583 S.W.3d 188 (Tex. App.—Dallas 2018, no pet.) .................. 13, 14, 15

Arbuckle v. Wichita Cnty. Tex. Adult Probation,
643 S.W.3d 229 (Tex. App.—Fort Worth 2022, no pet.) ...................... 22

Bailey v. Smith,
581 S.W.3d 374 (Tex. App.—Austin 2019, pet. denied) ...................... 20

Buck v. Kozlowski,
No. 13-21-00123-CV, 2022 WL 1669146
(Tex. App.—Corpus Christi-Edinburg May 26, 2022, pet. denied) ....... 9

Camarena v. Tex. Emp. Comm’n,
754 S.W.2d 149 (Tex. 1988) ................................................................. 10

City of Dallas v. Woodfield,
305 S.W.3d 412 (Tex. App.—Dallas 2010, no pet.) .............................. 12

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ................................................................. 20

iv
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008) ................................................................. 22

City of Schertz v. Tex. Comm’n on Envtl. Quality,
653 S.W.3d 468 (Tex. App.—Amarillo 2022, no pet.) ........................ 4, 5

Click v. Tyra,
867 S.W.2d 406 (Tex. App.—Houston [14th District] 1993,
no writ) ............................................................................... 15, 16, 17, 18

Combs v. Health Care Services Corp.,
401 S.W.3d 623 (Tex. 2013) ........................................................... 41, 42

Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393 (Tex. 2000) ................................................................... 23

Crowley Indep. Sch. Dist. v. Stoneham,
No. 15-24-00051-CV, 2025 WL 794046 (Tex. App.—Austin
[15 Dist.] Mar. 13, 2025, no pet. h.) ....................................................... 3

Davis v. Morath,
624 S.W.3d 215 (Tex. 2021) ................................................................... 4

ERCOT, Inc. v. Panda Power Generation Infrastructure Fund,
LLC,
619 S.W.3d 628 (Tex. 2021) ................................................................... 9

Ex parte Muckenfuss,
52 Tex. Crim. 467, 107 S.W. 1131 (1908) ............................................ 38

ExxonMobil Pipeline Co. v. Coleman,
512 S.W.3d 895 (Tex. 2017) ........................................................... 22, 23

Fairfield Ins. Co. v. Stephens Martin Paving, LP,
246 S.W.3d 653 (Tex. 2008) ................................................................. 36

Farmers’ Mechanics’ Nat’l Bank v. Hanks,
137 S.W. 1120 (Tex. 1911) ................................................................... 37

Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864 (Tex. 1999) ................................................................. 23

v
FLCT, Ltd. v. City of Frisco,
493 S.W.3d 238 (Tex. App.—Fort Worth 2016, pet. denied) ............... 19

Galbraith Eng'g Consultants, Inc. v. Pochucha,
290 S.W.3d 863 (Tex. 2009) ........................................................... 21, 22

Gaytan v. Santa Rosa Indep. Sch. Dist.,
Docket No. 059-R3-07-2018, 2018 WL 6528219
(Comm’r Educ. 2018) ............................................................................ 16

Granger v. Morath,
No. 14-23-00245-CV, 2024 WL 2763387 (Tex. App.—Houston
[14th Dist.] May 30, 2024, pet. denied) ................................................. 4

Hammond v. City of Dallas,
712 S.W.2d 496 (Tex. 1986) ................................................................. 37

Heckman v. Williamson Cnty.,
369 S.W.3d 137 (Tex. 2012) ................................................................... 9

Helena Chem. Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ................................................................... 23

Hicks v. Leroy’s Jewelers, Inc.,
225 F.3d 659, 2000 WL 1033029 (6th Cir. 2000) (unpublished) ......... 31

In re Battenfield,
No. 06-24-00090-CV, 2025 WL 502507
(Tex. App.—Texarkana Feb. 14, 2025, no pet.) ..................................... 4

In re Glass,
No. 11-21-00188-CV, 2021 WL 4097176
(Tex. App.—Eastland Sept. 9, 2021, no pet.)....................................... 11

In re Kellogg Brown & Root, Inc.,
166 S.W.3d 732 (Tex. 2005) (orig. proceeding) ...................................... 9

Judson Indep. Sch. Dist. v. Ruiz,
No. 04-13-00706-CV, 2015 WL 1501758
(Tex. App.—San Antonio Mar. 31, 2015, pet. denied) (mem. op.)......... 3

vi
Kaup v. Tex. Workforce Comm’n,
456 S.W.3d 289 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ........... 4

Meritor Auto., Inc. v. Ruan Leasing Co.,
44 S.W.3d 86 (Tex. 2001) ..................................................................... 35

Montgomery Indep. Sch. Dist. v. Davis,
34 S.W.3d 559 (Tex. 2000) ..................................................................... 3

Murphy v. Hunt,
455 U.S. 478 (1982) .............................................................................. 13

Nehls v. Hartman Newspapers, LP,
522 S.W.3d 23 (Tex. App.—Houston [1st Dist.] 2017,
pet. denied) ..................................................................................... 16, 17

N. E. Indep. Sch. Dist. v. Riou,
598 S.W.3d 243, (Tex. 2020) .................................................................. 3

Parents, Individually and as Next Friends of Student v. Eanes
Indep. Sch. Dist.,
Docket No. 037-R10-04-2020 (Comm’r Educ.) ..................................... 11

Perez v. State,
11 S.W.3d 218 (Tex. Crim. App. 2000 .................................................. 38

PHI, Inc. v. Tex. Juvenile Justice Dept.,
593 S.W.3d 296 (Tex. 2019) ................................................................. 22

Primexx Energy Opportunity Fund, LP v. Primexx Energy Corp.,
709 S.W.3d 619 (Tex. Bus. Ct. 2025), reconsideration denied,
713 S.W.3d 416 (Tex. Bus. Ct. 2025) ................................................... 23

Republic Bank Dallas, N.A. v. Interkal, Inc.,
691 S.W.2d 605 (Tex. 1985) ................................................................. 41

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619 (Tex. 2011) ................................................................... 4

vii
Rodriguez v. Waak,
562 S.W.3d 570 (Tex. App.—Houston [1st Dist.] 2018),
aff’d, 603 S.W.3d 103 (Tex. 2020) ........................................................ 22

Simmons v. Arnim,
110 Tex. 309, 324, 220 S.W. 66 (1920) ................................................. 41

Stanford v. Butler,
181 S.W.2d 269 (Tex. 1944) ................................................................. 37

State v. City of Austin,
No. 03-20-00619-CV, 2021 WL 1313349
(Tex. App.—Austin Apr. 8, 2021, no pet.) (mem. op.) ................... 11, 12

State v. Morello,
547 S.W.3d 881 (Tex. 2018) ................................................................. 22

State ex rel. Best v. Harper,
562 S.W.3d 1 (Tex. 2018) ..................................................................... 10

Tex. A&M Univ.–Kingsville v. Yarbrough,
347 S.W.3d 289 (Tex. 2011) ................................................................. 10

Tex. Dep’t of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011) ................................................................. 20

Tex. Dep't of Family & Protective Servs. v. Grassroots Leadership,
Inc.,
665 S.W.3d 135 (Tex. App.—Austin 2023, pet. granted) ................ 9, 13

Tex. Parks & Wildlife Dep’t,
354 S.W.3d 384 (2011) ......................................................................... 19

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman,
408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) ............................. 19

TGS–NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) ................................................................. 37

viii
Unocal Pipeline Co. v. BP Pipelines (Alaska) Inc.,
512 S.W.3d 492 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied) .................................................................................................. 19

Williams v. Huff,
52 S.W.3d 171 (Tex. 2001) ................................................................... 12

Statutes

Tex. Civ. Prac. & Rem. Code
Ch. 37 ................................................................................................... 18
§ 37.003(a) ............................................................................................ 18
§ 37.004 ................................................................................................ 18

Tex. Educ. Code
§ 7.057 .................................................................................................. 18
§ 7.057(a)(2)(A) ....................................................................................... 2
§ 7.057(d) ................................................................................................ 2
§ 13.904 ................................................................................................ 24
§ 13.904(a) ............................................................................................ 27
§ 13.904(f) ....................................................................................... 26, 29
§ 21.307(e) .............................................................................................. 3
§ 21.307(f) ............................................................................................... 3
§ 21.409 .......................................................................................... 32, 33
§ 21.409(f) ............................................................................................. 34
§ 22.003 ........................................................................................ passim
§ 22.003(a) .......................................................................... 21, 24, 25, 39
§ 22.003(b) .................................................................................... passim
§ 22.003(d) ............................................................................................ 36
§ 22.003(e) ............................................................................................ 26
§ 22.003(f) ....................................................................................... 26, 27
§ 33.002(c)............................................................................................. 38

Tex. Gov’t Code
§ 311.011(a) .......................................................................................... 22
§ 311.021(2) .......................................................................................... 23
§ 402.010............................................................................................... 40

ix
Rules

19 Tex. Admin. Code § 157.1073(h) ........................................................ 18

29 C.F.R. § 825.207 ........................................................................... 30, 31
29 C.F.R. § 825.207(d) ............................................................................. 31

Other Authorities

Acts 1983, 68th Leg., ch. 334 .................................................................. 28

House Research Org., Bill Analysis, Tex. H.B. 462, 81st Leg., R.S.
(Apr. 27, 2009) ...................................................................................... 27

Office of House Bill Analysis, Bill Analysis, H.B. 1188, 77th Leg.,
R.S. (2001) ............................................................................................ 28

Pub. Educ. Comm. Report, Bill Analysis, S.B. 522, 81st Leg., R.S.
(2009) .................................................................................................... 29

Tex. Att’y Gen. Op. No. JM-803 (1987) ................................................... 29

Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 199-213 (2012) .......................................... 37

Michael W. Wright, The Louisiana Teacher Assault Pay Statute: An
Analysis of Court Decisions Interpreting the Statute and a
Comparative Study of Teacher Assault Pay Statutes in Other States
(ERIC Document Reproduction Serv. No. ED578013, 2017) ................. 40

x
GLOSSARY

Commissioner Appellee Mike Morath, Commissioner of
Education in his official capacity

District Appellee Weatherford Independent School
District

FMLA Family and Medical Leave Act

Ms. McClelland Appellant Laura McClelland

Reference to
Reporters Record RR vol.___ at TEA_____
(Administrative Record)

TDL Temporary Disability Leave

Appellant’s Brief App. Br. At ____

xi
IDENTITY OF PARTIES AND COUNSEL

Appellant: Counsel:

Laura McClelland Richard L. Arnett
State Bar No. 01333300
Of Counsel to Brim & Brim, P.C.
5926 Balcones Drive, Suite 220
Austin, Texas 78731

Appellees: Counsel:

Michael Morath, Commission of Keegan Howe
Education, in his official capacity State Bar No. 24143028
Assistant Attorney General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548

Counsel:

Weatherford Independent School Colby Rideout
District State Bar No. 24073106
Ross Mitchell
State Bar No. 24088073
Leasor Crass, P.C.
302 W. Broad Street
Mansfield, Texas 76063

xii
STATEMENT OF THE CASE

This is an appeal from a final judgment signed July 17, 2025, by the

98th District Court of Travis County, affirming the decision of the

Commissioner of Education brought under Texas Education Code section

7.057, challenging the Commissioner’s decision dated November 14,

2024. Ms. McClelland challenges the Commissioner’s (1) decision that he

lacks jurisdiction to hear Ms. McClelland’s FMLA claim under Texas

Education Code Section 22.003(b) regarding running her assault leave

concurrently with her FMLA leave, and (2) conclusion that the school

board did not violate Texas Education Code Section 22.003(b) by running

Ms. McClelland’s Family and Medical Leave Act (FMLA) leave and

Temporary Disability Leave (TDL) leave concurrently with her assault

leave.

NO ORAL ARGUMENT REQUESTED

The Commissioner respectfully requests that the Court resolve this

matter on the written briefs, as the issues are fully presented, and oral

argument would not materially aid the Court’s decision. However, the

Commissioner requests he be allowed to present oral argument should

the Court determine that it would be helpful.

xiii
ISSUES PRESENTED

1. Whether the Commissioner and District correctly concluded that

Ms. McClelland’s FMLA claim is moot because she no longer

qualifies, not having worked a minimum of 1,250 hours during the

preceding twelve-month period.

2. Whether the Commissioner and District correctly concluded that

Weatherford Independent School District’s local policy requiring

FMLA and TDL to run concurrently with assault leave does not

violate Texas Education Code Section 22.003.

xiv
STATEMENT OF FACTS

The relevant facts of this case, including those surrounding Ms.

McClelland’s injury, are not in dispute. Ms. McClelland has been

employed as a teacher with Weatherford Independent School District

(District) for over two decades. RR vol.3 at TEA00308. During the 2022–

2023 school year, she was assaulted on or about November 7, 2022, in the

course and scope of her employment. RR vol. 3 at TEA00655.

The Texas Legislature has established a unique statutory

entitlement to assault leave for educators injured by students during the

performance of their duties. See Tex. Educ. Code § 22.003(b). Ms.

McClelland began using this assault leave on an intermittent basis in

March 2023. RR vol. 3 at TEA00655.

Shortly before students returned for the start of the 2023–2024

school year, Ms. McClelland notified the District she would be taking

continuous leave. Id. On July 27, 2023, the District informed Ms.

McClelland that her FMLA leave would be designated to run

concurrently with her assault leave, pursuant to the District’s Policy

DEC (local). Id. By that time, however, Ms. McClelland had already filed

a level 1 grievance on June 30, 2023, asserting that Texas Education
Code Section 22.003 prohibits concurrent leave designations. Id.; RR vol.

3 at TEA00371.The District issued a level I response denying Ms.

McClelland requested remedy. RR vol. 3 at TEA00101.

While the grievance was held in abeyance by agreement, the

District further informed Ms. McClelland that the TDL would also run

concurrently. Ms. McClelland subsequently amended her grievance on

November 10, 2023, to challenge that determination as well. RR vol. 3 at

TEA00057. Ms. McClelland appealed the Level I decision to Levels II and

III. RR vol. 3 at TEA00182, 254–56.

On January 22, 2024, the District’s Board of Trustees denied Ms.

McClelland’s grievance, and she timely appealed to the Commissioner of

Education under Texas Education Code Section 7.057(a)(2)(A). After

briefing and oral argument, the Commissioner issued his decision on

November 14, 2024. RR vol. 3 at TEA00664. After Ms. McClelland’s

motion for rehearing was denied by operation of law, she filed her petition

for judicial review pursuant to Texas Education Code Section 7.057(d).

RR vol. 3 at TEA00673–77.

On June 30, 2025, the 98th District Court of Travis County heard

the case. RR vol. 2 at 1. The trial court affirmed the Commissioner’s

Page 2 of 44
decision, and following entry of final judgment on July 17, 2025, Ms.

McClelland appealed.

STANDARD OF REVIEW

Judicial review of a decision by the Commissioner is governed by

the substantial evidence standard, limiting the court’s review to the

administrative record and excluding from consideration new evidence. N.

E. Indep. Sch. Dist. v. Riou, 598 S.W.3d 243, 251 (Tex. 2020). “Under

substantial evidence review, ‘only more than a mere scintilla’ of evidence

is needed to support the Commissioner’s decision.” Judson Indep. Sch.

Dist. v. Ruiz, No. 04-13-00706-CV, 2015 WL 1501758, at *3 (Tex. App.—

San Antonio Mar. 31, 2015, pet. denied) (mem. op.) (quoting Montgomery

Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000)); see also Tex.

Educ. Code § 21.307(e). Issues not raised in the local record are not

subject to judicial review. Id. The Commissioner’s decision may only be

reversed if it is unsupported by substantial evidence or if the

Commissioner made an error of law. Crowley Indep. Sch. Dist. v.

Stoneham, No. 15-24-00051-CV, 2025 WL 794046, at *5 (Tex. App.—

Austin [15th Dist.] Mar. 13, 2025, no pet. h.); Tex. Educ. Code § 21.307(f).

The construction of a statute is a legal question reviewed for errors

Page 3 of 44
of law. R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,

336 S.W.3d 619, 624 (Tex. 2011). An error of law occurs when an agency

incorrectly analyzes the law or misapplies it to the facts. Kaup v. Tex.

Workforce Comm’n, 456 S.W.3d 289, 295 (Tex. App.—Houston [1st Dist.]

2014, no pet.). An agency’s interpretation of a statute is entitled to

serious consideration, particularly where the agency’s construction is

reasonable. Davis v. Morath, 624 S.W.3d 215, 221 (Tex. 2021); Granger

v. Morath, No. 14-23-00245-CV, 2024 WL 2763387, at *2 (Tex. App.—

Houston [14th Dist.] May 30, 2024, pet. denied); In re Battenfield, No. 06-

24-00090-CV, 2025 WL 502507, at *2 (Tex. App.—Texarkana Feb. 14,

2025, no pet.).

This weighted consideration reflects the reality that agencies that

apply the statute on a day-to-day basis often possess specialized

knowledge and are in the best position to interpret it. See Ammonite Oil

& Gas Corp. v. R.R. Comm’n, 672 S.W.3d 33, 39 (Tex. App.—San Antonio

2021), aff'd on other grounds, 698 S.W.3d 198 (Tex. 2024). Moreover,

when interpreting agency rules, the court’s primary objective is to

ascertain and give effect to the agency’s intended purpose and rationale

for adopting the rule. City of Schertz v. Tex. Comm’n on Envtl. Quality,

Page 4 of 44
653 S.W.3d 468, 473 (Tex. App.—Amarillo 2022, no pet.).

SUMMARY OF THE ARGUMENT

The Commissioner lacks jurisdiction to review Ms. McClelland’s

FMLA complaint because the question has been rendered moot. She is no

longer eligible for FMLA benefits, having failed to work the minimum

1,250 hours during the preceding twelve-month period as required by

federal law. The Commissioner correctly concluded that he could not

resolve Ms. McClelland’s FMLA issue, given that there was no live

controversy because she would not regain FMLA eligibility unless and

until she returns to work for at least 1,250 hours within a twelve-month

period.

Additionally, this case does not meet the two-prong test for the

“capable of repetition, yet evading review” exception to mootness. Ms.

McClelland fails the first prong because her work requirement fell below

the annual FMLA threshold, not because the running of her leave

concurrently was too short in duration to be litigated before it expired.

Further, she fails the second prong because there is not a reasonable

likelihood or demonstrated probability that she will again find herself in

the same factual circumstances such that the issue is likely to recur.

Page 5 of 44
Furthermore, notwithstanding mootness, the District and

Commissioner correctly concluded that because section 22.003 does not

expressly govern or address FMLA or TDL, Ms. McClelland cannot

establish that the District violated the statute by allowing her assault

leave to run concurrently with either type of leave. The key qualifiers in

section 22.003(b), “provided by this section” and “by the school district,”

are read together with the remainder of the sentence, making it clear

they apply only to leave created under section 22.003 or locally by the

school district and not to other state or federal forms of leave. Legislative

history and related statutes confirm that the Legislature understood the

purpose of Section 22.003(b) was to protect personal and locally created

leave. Moreover, the surrounding statutes make clear that the

Legislature’s omission of federally authorized leave was deliberate, as it

expressly addressed other forms of federal leave in the surrounding

sections of the Education Code. The purpose of section 22.003(b) is to

supplement or extend the duration of leave and pay that would otherwise

be available to teachers. A plain reading of section 22.003 reflects its

function: to govern how employees’ personal leave, including any

additional personal or locally created school leave, must be administered

Page 6 of 44
when an employee qualifies for assault leave. Therefore, the

Commissioner correctly interpreted section 22.003 to conclude that both

FMLA leave and TDL may run concurrently with assault leave.

ARGUMENT

I. Ms. McClelland lacks a valid FMLA claim for review.

The Commissioner correctly concluded that Ms. McClelland’s

FMLA claim is moot because she no longer satisfies the federal eligibility

requirement of having worked at least 1,250 hours in the preceding

twelve-month period prior to the Commissioner’s decision and is

therefore ineligible for FMLA. Thus, she has no legally cognizable

interest in this issue. The Commissioner correctly concluded that he

could not resolve Ms. McClelland’s FMLA issue, as there was nothing to

remand to the District. Ms. McClelland has no entitlement to FMLA

under federal law. The Commissioner cannot require the District to

restore FMLA to which Ms. McClelland is not presently entitled. Because

there is no live controversy regarding Ms. McClelland’s FMLA eligibility,

that claim is moot.

Furthermore, this case does not meet the two-prong test for the

“capable of repetition, yet evading review” exception to mootness. Ms.

Page 7 of 44
McClelland fails the first prong because the reason she has no FMLA

leave is that her work-hours requirement to qualify for that leave fell

below the annual threshold, not because the running of her FMLA leave

concurrently with assault leave was too short in duration to be litigated

before it expired. Further, she fails the second prong because there is not

a reasonable likelihood or demonstrated probability that Ms. McClelland

will again find herself in the same factual circumstances such that the

issue is likely to recur.

Moreover, Ms. McClelland lacks standing to challenge the District’s

policy on behalf of other employees. Standing requires that Ms.

McClelland demonstrate a reasonable likelihood or demonstrated

probability that the same alleged harm will recur to her, specifically. The

Commissioner correctly concluded that there is only a remote, if not

implausible, possibility that Ms. McClelland will find herself in the same

position. RR vol. 3 TEA00659. As a result, the “capable of repetition, yet

evading review” exception to mootness does not apply.

A. Ms. McClelland’s FMLA claim is moot.

Under the Texas Constitution, the mootness doctrine reflects the

judiciary’s limited role within the separation of powers and prohibits

Page 8 of 44
courts from issuing advisory opinions. ERCOT, Inc. v. Panda Power

Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021).

A case becomes moot when: (1) there is no longer a live controversy

between the parties; (2) the parties no longer have a legally cognizable

interest in the outcome; (3) the court is unable to grant effective relief; or

(4) any ruling would constitute an advisory opinion. Buck v. Kozlowski,

No. 13-21-00123-CV, 2022 WL 1669146, at *6 (Tex. App.—Corpus

Christi-Edinburg May 26, 2022, pet. denied) (“Put simply, a case is moot

when the court’s action . . . cannot affect the parties’ rights or interests.”

(citing Heckman v. Williamson Cnty., 369 S.W.3d 137, 151 (Tex. 2012)).

A case becomes moot when a justiciable controversy ceases to exist

between the parties at any stage of the legal proceedings. In re Kellogg

Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding).

Texas courts recognize a “rare” exception to mootness for disputes that

are “capable of repetition, yet evading review.” Tex. Dep’t of Fam. &

Protective Servs. v. Grassroots Leadership, Inc., 665 S.W.3d 135, 141

(Tex. App.—Austin 2023, pet. granted). This exception applies only when:

(1) the challenged action is of such short duration that the plaintiff

cannot obtain review before the issue becomes moot and (2) there is a

Page 9 of 44
reasonable expectation that the same action will recur as to the same

complaining party. Tex. A&M Univ.–Kingsville v. Yarbrough, 347 S.W.3d

289, 290 (Tex. 2011).

B. The FMLA claim is moot because Ms. McClelland has
no legal cognizable interest.

When a legally cognizable controversy ceases to exist or becomes

purely hypothetical, the case is moot and should be dismissed. Allstate

Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). A live controversy

must exist between the parties throughout all stages of the legal

proceedings, including on appeal. Camarena v. Tex. Emp. Comm’n, 754

S.W.2d 149, 151 (Tex. 1988). Accordingly, if an issue presented has

become moot, dismissal is appropriate as to that issue. State ex rel. Best

v. Harper, 562 S.W.3d 1, 6 (Tex. 2018), as corrected on denial of reh’g

(Dec. 21, 2018).

As a preliminary matter, the FMLA claim is moot because Ms.

McClelland is ineligible for leave under FMLA. Preceding the

Commissioner’s decision, she had not worked any of the required 1,250

hours during the 365-day period immediately preceding the appeal and,

therefore, would not have qualified for FMLA even if she had prevailed.

RR vol. 3 at TEA00598-99. Ms. McClelland herself acknowledged that

Page 10 of 44
“the harm that could have been caused by [the District’s] policies this

time was avoided for independent reasons.” RR vol. 3 at TEA00288. By

her own admission, no live controversy remained, and there was no relief

the Commissioner could provide to redress the alleged FMLA violation.

Therefore, because the relief granted would not affect the rights of Ms.

McClelland, the case is moot. See generally In re Glass, No. 11-21-00188-

CV, 2021 WL 4097176, at *1 (Tex. App.—Eastland Sept. 9, 2021, no pet.);

Parents, Individually and as Next Friends of Student v. Eanes Indep. Sch.

Dist., Docket No. 037-R10-04-2020 (Comm’r Educ. 2020).

C. Exceptions to mootness do not apply.

The “capable of repetition, yet evading review” exception to

mootness does not apply here. Ms. McClelland fails the two-prong test for

this exception. She fails the first prong because her work requirement fell

below the annual threshold, not because the running of her leave

concurrently was too short in duration to be litigated before it expired.

RR Vol. 3 at TEA00599. Further, to meet the second prong, Ms.

McClelland must show that the complained-of action is capable of

repetition as to her specifically. State v. City of Austin, No. 03-20-00619-

CV, 2021 WL 1313349, at *6 (Tex. App.—Austin Apr. 8, 2021, no pet.)

Page 11 of 44
(mem. op.).

The second prong of the exception requires a reasonable expectation

or demonstrated probability that the same party will again be subjected

to the complained-of action. AIM Media Tex., LLC v. City of Odessa, 663

S.W.3d 324, 332 (Tex. App.—Eastland 2023, pet. denied); see also

Williams v. Huff, 52 S.W.3d 171, 184 (Tex. 2001). A mere physical or

theoretical possibility is insufficient. City of Dallas v. Woodfield, 305

S.W.3d 412, 419 (Tex. App.—Dallas 2010, no pet.). In this case, the

possibility that Ms. McClelland will face the same issue again is highly

speculative and rests on a series of increasingly remote contingencies.

As the Commissioner rightfully reasoned, to even reach a similar

factual posture, Ms. McClelland would need to: (1) return to work; (2)

return to work specifically with the District; and (3) work at least 1,250

hours in a twelve-month period to reestablish FMLA eligibility. She

would then need to (4) suffer another work-related injury, (5) caused by

a qualifying assault under section 22.003(b), triggering entitlement to

assault leave. In addition, the resulting assault leave would need to be of

sufficiently short duration—fewer than 12 weeks—to preserve some

FMLA eligibility. Otherwise, her FMLA entitlement would again expire

Page 12 of 44
due to insufficient hours worked. Finally, (6) a separate FMLA-qualifying

event would need to arise (7) before she restored her full FMLA leave

bank, creating a live controversy over any reduced leave remaining after

the concurrent use of assault leave.

While this chain of events is theoretically possible, Ms. McClelland

cannot show with a demonstrated probability or reasonable expectation

from the facts that the same action could specifically occur to her again.

Ms. McClelland’s claim is speculative at best, if not impossible. Ms.

McClelland has not demonstrated a realistic likelihood of recurrence and

therefore fails to meet the second prong of the mootness exception.

Because neither prong of the “capable of repetition, yet evading review”

doctrine is satisfied, Ms. McClelland’s FMLA claim remains moot and

was properly dismissed. The “mere physical or theoretical possibility”

that the same party may be subjected to the same action again is not

sufficient to satisfy this element. Murphy v. Hunt, 455 U.S. 478, 482

(1982); Tex. Dep’t of Fam. & Protective Servs. v. Grassroots Leadership,

Inc., 717 S.W.3d 854, 885 (Tex. 2025).

For example, in Anderton, the court addressed whether a zoning

dispute remained justiciable after the city enacted amendments that

Page 13 of 44
effectively addressed the plaintiffs’ original complaints. Anderton v. City

of Cedar Hill, 583 S.W.3d 188, 193 (Tex. App.—Dallas 2018, no pet.). In

that case, the plaintiffs argued their claims were not moot because the

City could, at some point in the future, rezone the property in a way that

would negatively impact their business. Id. However, the court rejected

this argument, holding that a mere theoretical possibility of future

adverse governmental action is insufficient to invoke the “capable of

repetition, yet evading review” exception to mootness. Id. The court

emphasized that the exception requires a reasonable expectation, not just

a hypothetical or speculative chance that the same complaining party

will again be subjected to the challenged action. Id. Because the

Andertons failed to identify any evidence in the record demonstrating

that future rezoning was reasonably likely, their claims were properly

dismissed as moot. Id.

Likewise, in this case, the Commissioner found that Ms.

McClelland’s capable-of-repetition claim relied on a complex chain of

hypothetical and speculative events aligning in her favor. While

previously Ms. McClelland argued that the continued existence of the

District’s leave policy preserved a live controversy, she failed to show a

Page 14 of 44
reasonable expectation that she would again face the same

circumstances, namely, being eligible for FMLA leave while also

qualifying for assault leave. As in Anderton, the claim rested on

speculation about what might occur in the future. Because the likelihood

of recurrence was remote and unsupported by evidence, the

Commissioner concluded, as the court did in Anderton, that the capable-

of-repetition exception did not apply, and the claim was properly

dismissed.

D. A policy’s possible future enforcement against others
is not a valid exception to mootness.

The mootness argument advanced by Ms. McClelland is anchored

around a single thirty-two-year-old case, ignoring centuries of previous

judicial authority and the more than three decades of case law that has

followed since. See Click v. Tyra, 867 S.W.2d 406 (Tex. App.—Houston

[14th District] 1993, no writ); App. Br. at 15. Ms. McClelland claims that

Click establishes a blanket rule that any official policy that could be

applied to others is sufficient to save a case from mootness. Id. However,

she fundamentally misinterprets the holding of Click. At most, Click

provides a narrow and extraordinary exception in circumstances where

1) a policy or practice is implemented by members or staff of the court,

Page 15 of 44
and 2) the policy or practice is a recurring problem that has historically

affected a large number of petitioners’ rights. Click, 867 S.W.2d at 408–

09.

This limited carveout is entirely inapplicable here. Ms. McClelland

asks this Court to disregard well-settled Texas jurisprudence. Accepting

her position at face value would effectively nullify the mootness doctrine

by eliminating the requirement that the harm recur to the same

individual. Instead, it would allow the exception to apply based on mere

speculation that some other member of the same class might face a

similar issue at some undefined future point.

Moreover, the First Court of Appeals already considered and

rejected this same flawed reasoning. See Nehls v. Hartman Newspapers,

LP, 522 S.W.3d 23, 33 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

That court reaffirmed the well-established and undisputed principle that,

to invoke the capable of repetition exception, it must be likely that the

challenged policy or act will be applied to the same individual again. 1 Id.

1 The Commissioner has likewise squarely rejected the same legal reasoning
advanced by Click. See Gaytan v. Santa Rosa Indep. Sch. Dist., Docket No. 059-R3-
07-2018, 2018 WL 6528219, at 2 (Comm’r Educ. 2018).

Page 16 of 44
As the court in Nehls explained, in Click the relator filed a

mandamus action seeking to compel the clerk to file the appellate record

without requiring prepayment despite the relator having already posted

bond. Id. Although the clerk eventually filed the record during the

proceedings, potentially rendering the issue moot, the court received

multiple amicus briefs highlighting that the advance payment

requirement was a repeated practice, and the clerk indicated an intention

to continue the policy. Id. Given those facts, the court created a rare

carve-out for court policies or acts that were a recurrent issue and

concluded it needed to address the matter substantively rather than

dismiss it as moot. Id.

Nehls fully rejected Click’s conclusion and reaffirmed the

longstanding rule consistently applied across Texas jurisprudence,

including by the Texas Supreme Court. The rule is clear: the appellant

must (1) establish a reasonable expectation or (2) demonstrate

probability that she will again be subjected to the same action. Id. Ms.

McClelland has failed to satisfy either of these requirements.

Even applying Click, arguendo, Ms. McClelland’s claim would still

fail. The policy or practice at issue must present a recurrent problem that

Page 17 of 44
has repeatedly evaded review and affected a broad group of petitioners.

Id. There is no indication that Ms. McClelland presents issues that are

systemic, recurring, or arbitrarily applied by school districts. To the

contrary, she concedes that to her knowledge, this is the first case of its

kind. RR vol. 3 at TEA00526. Importantly, nothing in the record suggests

she will face the same issue again, which is a key requirement under

Click. Therefore, Click provides no meaningful guidance in this case.

E. A claim under the Uniform Declaratory Judgments Act
is improper.

Ms. McClelland attempts to salvage her FMLA leave claim from

mootness under a vague reading of Texas Civil Practice & Remedies Code

section 37.004, Uniform Declaratory Judgments Act (UDJA). 2 App. Br. at

15. The Commissioner lacks jurisdiction over Ms. McClelland’s UDJA

claims. RR vol. 3 at TEA00658 fn. 1.

2 An appeal to the Commissioner under section 7.057 is also not the proper vehicle

for seeking declaratory relief, which must be pursued through an original action in a
Texas court of record, not before an administrative agency. Tex. Civ. Prac. & Rem.
Code § 37.003(a). The Commissioner has no jurisdiction under the UDJA and lacks
authority to grant declaratory judgments, attorneys’ fees, costs, or any other remedies
available under Chapter 37. See Tex. Civ. Prac. & Rem. Code Ch. 37; 19 Tex. Admin.
Code § 157.1073(h). Accordingly, Ms. McClelland’s reliance on the UDJA does not
revive her otherwise moot administrative appeal.

Page 18 of 44
The UDJA does not create or expand a court’s subject matter

jurisdiction. Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408

S.W.3d 696, 707 (Tex. App.—Austin 2013, no pet.). It is “merely a

procedural device for resolving cases already within a court’s

jurisdiction.” Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d

384, 388 (2011). The UDJA does not give courts authority to decide

hypothetical or contingent disputes or to resolve questions not essential

to the resolution of a present controversy, even if such questions may

arise in the future. Unocal Pipeline Co. v. BP Pipelines (Alaska) Inc., 512

S.W.3d 492, 505–06 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

Ms. McClelland cites no authority supporting jurisdiction over the UDJA.

Therefore, because the case is moot, and the UDJA cannot revive the

cause. See generally, FLCT, Ltd. v. City of Frisco, 493 S.W.3d 238, 251

(Tex. App.—Fort Worth 2016, pet. denied).

Furthermore, Ms. McClelland is independently barred from

bringing her claim under the UDJA because there has been no waiver of

the Commissioner’s sovereign immunity. A limited waiver of a state

agency’s or its officers’ immunity under the UDJA applies only to

challenges to the validity of a statute, not to claims merely seeking its

Page 19 of 44
interpretation. City of El Paso v. Heinrich, 284 S.W.3d 366, 370–71 (Tex.

2009). Additionally, the UDJA does not waive immunity for parties

seeking declarations of their rights under a statute or other law. Bailey

v. Smith, 581 S.W.3d 374, 386 (Tex. App.—Austin 2019, pet. denied).

It is understood that Ms. McClelland does not challenge the validity

of the section 22.003(b) itself but rather the District’s and the

Commissioner’s finding (and the trial court’s affirmation of that finding)

interpreting Weatherford ISD’s local Board Policy DEC (LOCAL) as

being consistent with the statute and state law. The challenge concerns

what Ms. McClelland calls the District’s “illegal polic[y]” of running

FMLA and TDL leave concurrently under Section 22.003(b); however, the

UDJA does not waive the Commissioner’s sovereign immunity for such a

claim. App. Br. at 15; see Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,

621–22 (Tex. 2011) (holding that the UDJA does not waive a state

agency’s sovereign immunity when a plaintiff challenges the agency’s

actions based on its interpretation of a statute). Accordingly, because the

UDJA neither confers subject-matter jurisdiction nor revives moot

claims, Ms. McClelland’s reliance on the UDJA is misplaced.

Page 20 of 44
II. Weatherford ISD may run FMLA and TDL concurrently
under Section 22.003(b) of the Texas Education Code.

The District and Commissioner correctly interpreted section

22.003(b) of the Texas Education Code to allow independent school

districts to run FMLA and TDL leave concurrently.

A plain language reading of section 22.003(a) establishes that its

purpose is to protect an employee’s state-mandated personal leave, as

well as any local leave created by the school district, from being spent or

exhausted concurrently with the two years of guaranteed assault leave

provided under section 22.003(b), and to clarify how that leave is treated

when assault leave is taken. The statute does not reference FMLA leave

or TDL. Rather, it applies to paid leave offered by the school district; if it

were meant to apply to all leave, it would have said as much, such as “all

leave provided by state and federal law.” Therefore, Ms. McClelland has

not shown that the District’s local policy violated section 22.003(b) by

running her assault leave concurrently with both FMLA leave and TDL.

A. Principles guiding statutory interpretation of section
22.003(b).

The court’s primary objective when construing statutes is to give

effect to the legislature’s objective. Galbraith Eng'g Consultants, Inc. v.

Page 21 of 44
Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). Statutes are interpreted

according to the text’s plain meaning unless the context indicates

otherwise, a legislative definition dictates a different interpretation, or

the plain meaning would lead to an absurd result. City of Rockwall v.

Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). As always, words and

phrases shall be read in context and construed according to the rules of

grammar and common usage. State v. Morello, 547 S.W.3d 881, 886 (Tex.

2018); Tex. Gov’t Code § 311.011(a). However, Courts are not required to

adopt an alleged plain-meaning literal interpretation of the statute when

it would lead to a nonsensical outcome. PHI, Inc. v. Tex. Juvenile Justice

Dept., 593 S.W.3d 296, 303 (Tex. 2019).

Statutes are viewed within the entire legislative structure to reflect

the legislature’s intent. Rodriguez v. Waak, 562 S.W.3d 570, 576 (Tex.

App.—Houston [1st Dist.] 2018), aff’d, 603 S.W.3d 103 (Tex. 2020).

Additionally, in looking at the statute, courts “presume that each word

contained therein has a purpose and that when the legislature has

omitted a word from the statute, it did so purposefully.” Arbuckle v.

Wichita Cnty. Tex. Adult Probation, 643 S.W.3d 229, 233 (Tex. App.—

Fort Worth 2022, no pet.); ExxonMobil Pipeline Co. v. Coleman, 512

Page 22 of 44
S.W.3d 895, 899 (Tex. 2017). However, courts have long recognized that

words and sentences must be read in context, not in isolation; courts

interpret statutes holistically within the broader structure and purpose

of the statute, Primexx Energy Opportunity Fund, LP v. Primexx Energy

Corp., 709 S.W.3d 619, 636 (Tex. Bus. Ct. 2025), reconsideration denied,

713 S.W.3d 416 (Tex. Bus. Ct. 2025); Tex. Gov’t Code § 311.021(2);

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866

(Tex. 1999); Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19

S.W.3d 393, 398 (Tex. 2000).

B. Section 22.003(b) applies only to personal and local
school-district-created leave.

When the key qualifiers in section 22.003(b), ‘provided by this

section’ and ‘by the school district,’ are read together with the remainder

of the sentence, it becomes clear they apply only to leave created under

section 22.003 or locally by the school district and not to other state or

federal forms of leave. Ms. McClelland’s assertions would have the Court

interpret a single phrase to create conflict or inconsistency with other

statutory provisions. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,

493 (Tex. 2001).

Section 22.003(b) contemplates or applies only to leave under

Page 23 of 44
section 22.003. The District and Commissioner correctly interpreted

Texas Education Code Section 22.003(b) to permit school districts to run

assault leave concurrently with certain other forms of leave, such as

FMLA or TDL, as those forms of leave are not personal leave under

section 22.003.

Below is the pertinent portion of Section 22.003(b):

In addition to all other days of leave provided by this
section or by the school district, an employee of a school
district who is physically assaulted during the performance of
the employee's regular duties is entitled to the number of days
of leave necessary to recuperate from all physical injuries
sustained as a result of the assault. At the request of an
employee, the school district must immediately assign an
employee to assault leave and, on investigation of the claim,
may change the assault leave status and charge the leave
against the employee's accrued personal leave or against an
employee’s pay if insufficient accrued personal leave is
available. Days of leave taken under this subsection may not
be deducted from accrued personal leave. The period
provided by this subsection may not extend more than two
years beyond the date of the assault. Notwithstanding any
other law, assault leave policy benefits due to an employee
shall be coordinated with temporary income benefits due from
workers’ compensation so that the employee’s total
compensation from temporary income benefits and assault
leave policy benefits equals 100 percent of the employee’s
weekly rate of pay.

Tex. Educ. Code § 22.003(b) (emphasis added).

Section 22.003(a) provides additional context and clarity:

Page 24 of 44
A state minimum personal leave program consisting of five
days per year personal leave with no limit on accumulation
and transferable among districts shall be provided for school
district employees. School districts may provide
additional personal leave beyond this minimum. The
board of trustees of a school district may adopt a policy
governing an employee’s use of personal leave granted
under this subsection, except that the policy may not restrict:

(1) the purposes for which the leave may be used; or
(2) the order in which an employee may use the state
minimum personal leave and any additional personal leave
provided by the school district.

Tex. Educ. Code § 22.003(a) (emphasis added).

Subsection (a) of section 22.003 requires school districts to provide

at least five days of personal leave annually, with no limit on its

accumulation. Subsection (a) also authorizes districts to offer additional

personal leave and paid military time. The phrase ‘leave provided by this

section by the school district’ in section (b) refers to the categories of leave

the statute itself authorizes the school district to establish, not to all

other external leave sources, as Ms. McClelland argues in her brief. Br.

at 5-6,

Ms. McClelland insists that there is no conceivable reason the

Legislature used ‘by the school district’ rather than ‘personal leave’ in

this section if it did not intend to extend the provision to all leave. App.

Page 25 of 44
Br. at 8. However, the statute’s language undermines this argument.

Section 22.003(e) provides:

A school district, including a home-rule school district, may
adopt a policy providing for the paid leave of absence of
employees taking leave for active military service as part of
the consideration of employment by the district.

Tex. Educ. Code § 22.003(e) (emphasis added).

This statute authorizes school districts to create paid leave as part

of the overall compensation or benefits package for employees who serve

in the armed forces, much like the discretionary language in section

22.003(a), which allows districts to attract and retain employees by

offering additional personal leave or benefits.

Another indication of why the Legislature used the phrase ‘all leave

provided by the school district’ rather than ‘personal leave’ appears in the

structure of the former statute preceding the 1995 Education Code

revisions. Former section 13.904(f), now codified as section 22.003(b),

contains nearly identical language. Under that earlier framework,

teachers were entitled to a minimum of five days of state sick leave per

year, which could be supplemented by additional locally provided sick

leave. The Legislature also expressly protected teachers’ accrued sick

leave under the prior system, now reflected in section 22.003(f).

Page 26 of 44
Under section 22.003(f), a public-school employee who retains any

sick leave accumulated under former section 13.904(a), as that section

existed on January 1, 1995, is entitled to retain and use the sick leave

provided under the former section. Accordingly, for teachers who had

accumulated sick leave before 1995, those sick leave days did not simply

transition into ‘personal’ leave. House Research Org., Bill Analysis, Tex.

H.B. 462, 81st Leg., R.S. (Apr. 27, 2009). Rather, the leave generally

remained separate and apart from newly accruing personal leave, and

teachers were still subject to the former rules and limitations for using

the sick days, thereby creating two distinct pools of leave. Id. Even today,

this type of sick leave is still limited to situations that meet the definition

of sick leave under the prior statute and school district policy. Id.

Ms. McClelland could, for example, have a colleague who has

worked for the school district around a decade longer than her and who

still retains unused state-created or locally created sick leave predating

the 1995 amendments. Such an employee may still hold sick days

provided by this section or by the school district’ that falls within the

meaning of section 22.003 but is not categorized as ‘personal’ leave.

Instead, it would properly fit within the broader phrase ‘other leave

Page 27 of 44
provided by the school district.’ It is also plausible that, by local policy,

sick leave created specifically by an independent school district remains

distinct from personal leave. This category of sick leave represents

another form of leave that cannot be exhausted by the assault leave

statute.

Legislative history likewise supports this interpretation that

section 22.003(b) applies only to personal and local school-created leave.

The assault leave section of what is now 22.003(b) was codified in 1983,

over a decade before the creation and passage of the FMLA. Acts 1983,

68th Leg., ch. 334. The Legislature clearly could not have intended to

include protections for categories of leave that did not yet exist at the

time of its enactment.

Further amendments, likewise, only refer to personal leave and not

federal benefits. The Office of House Bill Analysis regarding HB 1188

states: “House Bill 1188 amends the Education Code to provide, for the

purposes of the personal leave program, that an employee of a school

district is physically assaulted if . . . .” Office of House Bill Analysis, Bill

Analysis, H.B. 1188, 77th Leg., R.S. (2001). This analysis confirms that

the Legislature intended the phrase ‘other leave provided by this section

Page 28 of 44
or by the school district’ to apply to leave explicitly provided under section

22.003.

Additionally, the Legislature intended for school boards to adopt

policies governing the use of personal leave granted under section 22.003.

See Pub. Educ. Comm. Report, Bill Analysis, S.B. 522, 81st Leg., R.S.

(2009). The Attorney General likewise examined section 22.003(b) under

the former identically phrased section 13.904(f). See Tex. Att’y Gen. Op.

No. JM-803 (1987). The OAG opinion observed the limits of the statute’s

application to the specifically defined types of state leave created by the

statute, namely, state sick leave, which was later reclassified as personal

leave under the 1995 reforms. Id.

Accordingly, the phrase ‘leave provided by this section or by the

school district’ is limited to leave granted under section 22.003. See Tex.

Educ. Code § 22.003(b). Although school districts must comply with other

laws, such as the FMLA or TDL provisions, those laws do not provide the

leave within the meaning of section 22.003. As a result, nothing in the

statute prohibits those other forms of leave from running concurrently.

C. FMLA is not leave “provided by the school district.”

Ms. McClelland claims that the phrase in section 22.003(b), “in

Page 29 of 44
addition to all other days of leave provided by this section or by the school

district,” should be understood to include FMLA leave or for that matter

any federally available form of leave. App. Br. at 4–5. Based on this

interpretation, she claims the assault leave under section 22.003(b) must

be offered separately and cannot overlap with FMLA leave. Id.

However, no authority supports this argument. In fact, the reverse

is true, as both the policy manual for the District and the Texas

Association of School Boards (TASB) consider concurrent leave to be

standard. RR vol. 3 at TEA00224. Ms. McClelland’s counsel in fact admits

that the policy has existed in more than 1,000 school districts across the

state for over a quarter century. RR vol. 3 at TEA00526.

The FMLA, enacted in 1993, includes a comprehensive set of

implementing regulations. Among them, Title 29 of the Code of Federal

Regulations, Section 825.207 provides that:

Generally, FMLA leave is unpaid leave. However, under the
circumstances described in this section, FMLA permits an
eligible employee to choose to substitute accrued paid leave
for FMLA leave. If an employee does not choose to substitute
accrued paid leave, the employer may require the
employee to substitute accrued paid leave for unpaid
FMLA leave. The term substitute means that the paid leave
provided by the employer, and accrued pursuant to
established policies of the employer, will run concurrently
with the unpaid FMLA leave.

Page 30 of 44
29 C.F.R. § 825.207 (emphasis added).

Texas Education Code Section 22.003 makes no mention of the

FMLA. The FMLA has been interpreted by tribunals responsible for

enforcement to allow applicable forms of paid leave to run concurrently

with the FMLA, as stated within Title 29 of the Code of Federal

Regulations, section 825.207. Allen v. Butler Cnty. Comm’rs, 331 Fed.

App’x 389 (6th Cir. 2009) (unpublished). “The FMLA regulations clarify

an employee’s rights and responsibilities under the Act, including an

allowance for employers to run paid leave programs concurrent with

unpaid FMLA leave.” Id. at 393; see also Hicks v. Leroy’s Jewelers, Inc.,

225 F.3d 659, 2000 WL 1033029, at *5 (6th Cir. 2000) (unpublished)

(noting that 29 C.F.R. § 825.207(d) clearly provides that an employee’s

FMLA leave may run concurrently with paid medical or sick leave).

Any interpretation suggesting that the Legislature intended to

group all federal forms of leave, such as FMLA, into leave offered by the

school district is baseless. FMLA is not leave provided by the district,

either under the Education Code or through any contractual provision.

Rather, it is a federal leave entitlement available to eligible employees

regardless of their specific employer. As such, FMLA leave is neither

Page 31 of 44
contemplated by section 22.003(b) nor prohibited from running as

concurrent leave.

Consequently, the District and Commissioner correctly concluded

that section 22.003(b) does not prohibit a district from designating

assault leave to run concurrently with FMLA Leave, as the statute does

not expressly address those forms of leave. This interpretation aligns

with the statutory text and avoids producing an illogical or unintended

outcome.

D. TDL is not leave “provided by the school district.”

Ms. McClelland likewise argues that the school should not have

concurrently run her assault leave and TDL. Again, such claims lack

merit. The TDL statute, Texas Education Code Section 21.409, in part,

states:

(a) Each full-time educator employed by a school district
shall be given a leave of absence for temporary disability
at any time the educator’s condition interferes with the
performance of regular duties. The contract or
employment of the educator may not be terminated by
the school district while the educator is on a leave of
absence for temporary disability…

(b) A request for a leave of absence for temporary disability
must be made to the superintendent of the school
district. The request must be accompanied by a
physician’s statement confirming inability to work and
must state the date requested by the educator for the

Page 32 of 44
leave to begin and the probable date of return as
certified by the physician.

(c) The board of trustees of a school district may adopt a
policy providing for placing an educator on leave of
absence for temporary disability if, in the board’s
judgment and in consultation with a physician who has
performed a thorough medical examination of the
educator, the educator’s condition interferes with the
performance of regular duties. A policy adopted under
this subsection must reserve to the educator the right to
present to the board testimony or other information
relevant to the educator’s fitness to continue the
performance of regular duties.

(e) An educator returning to active duty after a leave of
absence for temporary disability is entitled to an
assignment at the school where the educator formerly
taught, subject to the availability of an appropriate
teaching position. In any event, the educator must be
placed on active duty not later than the beginning of the
next term.

(f) The length of a leave of absence for temporary disability
shall be granted by the superintendent as required by
the individual educator. The board of trustees of a school
district may establish a maximum length for a leave of
absence for temporary disability, but the maximum
length may not be less than 180 days.

Tex. Educ. Code § 21.409.

The TDL statute does not address whether disability leave must

run concurrently or consecutively with other types of leave.

The District’s Policy DEC (Local), included in the reporter's record,

sets a maximum duration of disability leave for Chapter 21 teachers at

180 days, consistent with the statutory limit. See Tex. Educ. Code §

Page 33 of 44
21.409(f); RR vol. 3 at TEA 00106. The policy further provides that “[t]he

District shall require the employee to use temporary disability leave and

paid leave, including any compensatory time, concurrently with FMLA

leave.” RR vol. 3 at TEA 000264.

Ms. McClelland now asks the Court to treat statutorily provided

TDL as falling within the meaning of ‘other leave provided by the school

district’ under section 22.003(b), even though disability leave is neither

referenced nor included in that section’s text, which states: “in addition

to all other days of leave provided by this section or by the school district.”

Tex. Educ. Code § 22.003(b).

Once again, Ms. McClelland offers no legal authority, district

policy, or indication of legislative intent that would support reading

‘other leave provided by the school district’ to include all categories of

employee leave, including disability leave, which is a distinct and

separately governed type of leave. Accordingly, TDL does not fall within

the meaning of ‘other leave’ under section 22.003(b). And, in the absence

of any statutory restriction, local policies allowing TDL leave to run

concurrently with assault leave remain valid and enforceable.

Page 34 of 44
E. Ms. McClelland misinterprets the statute by
improperly isolating individual words and phrases.

Throughout her brief, Ms. McClelland presents a tangled mire of

grammatical gymnastics. App BR. at 5–11. Ms. McClelland states, “It

would seem patent that ‘all other days of leave’ does not and can never

mean ‘only the leave required or authorized by this section,’ but that is

the construction effectively given by the Commissioner.” App. Br. At 5.

Tellingly, Ms. McClelland does not present the complete sentence of the

statute. Again, words are not read in isolation. See Meritor Auto., Inc. v.

Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001). The statute reads: “In

addition to all other days of leave provided by this section or by the school

district, an employee of a school district who is physically assaulted

during the performance of the employee's regular duties is entitled to the

number of days of leave necessary to recuperate from all physical injuries

sustained as a result of the assault.” Tex. Educ. Code § 22.003(b)

(emphasis added). The phrase conveys a meaning contrary to Ms.

McClelland’s position.

The statute does not address ‘all other days of leave,’ such as

federally mandated leave, because that is not its purpose. The plain

language makes this clear, and if the Legislature had intended to protect

Page 35 of 44
or include federal leave entitlements, it would have done so. Contrary to

Ms. McClelland’s assertion, the Legislature is fully aware of this

distinction. Of course, it is the Legislature that determines public policy

through the statutes it enacts. See Fairfield Ins. Co. v. Stephens Martin

Paving, LP, 246 S.W.3d 653, 655 (Tex. 2008).

The Legislature’s intent is also apparent in subsection (d), which

states:

A school district employee with available personal
leave under this section is entitled to use the leave for
compensation during a term of active military service.

Section 22.003(d) (emphasis added).

This section illustrates that the Legislature was fully aware of the

benefits and forms of leave authorized under federal law. It would be

illogical for the Legislature to specifically reference and provide paid

leave in conjunction with federal authorized military leave under what is

currently the Uniformed Services Employment and Re-employment

Rights Act (USERRA), which otherwise would be unpaid, yet omit

comparable leave for other types of federal leave, including the FMLA. If

the Legislature had intended such coverage, it would have referenced it

in the statute.

Page 36 of 44
The Legislature’s deliberate choice in this context reflects both an

intent informed by awareness of other federal and state leave laws and a

demonstrated capacity for precision in statutory drafting. See generally

TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)

(“We presume the Legislature chooses a statute’s language with care,

including each word chosen for a purpose, while purposefully omitting

words not chosen.”).

Likewise, Ms. McClelland’s portrayal of the word “all” as a limitless

term of inclusion, and her reliance on obscure, inapplicable case law, are

without merit. Br. at 5-6. Her argument contradicts the principles of the

well-settled doctrine of ejusdem generis, a statutory construction aid

that says where general words follow a designation of particular

subjects in a statute, the meaning of the general words is restricted by

the particular designation in that statute.3 See Farmers’ Mechanics’

Nat’l Bank v. Hanks, 137 S.W. 1120 (Tex. 1911); Stanford v. Butler, 181

S.W.2d 269 (Tex. 1944); Hammond v. City of Dallas, 712 S.W.2d 496

(Tex. 1986).

3 See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 199–213 (2012).

Page 37 of 44
More broadly, using basic principles of grammar, the word “all,”

followed by a particular subject designator, cannot be broader than the

subject it modifies. Thus, “all dogs” does not mean “all everything”; it

means “all dogs,” not “all cats” or “all platypuses.” Yet that is precisely

how Ms. McClelland argues the Court should interpret section

22.003(b). Whether the term in question is “all,” “provided,” or “or,” each

is not to be understood in its broadest possible sense as it might be if

standing alone. Instead, these words take their meaning from the

specific context in which they appear and are confined to things of the

same kind as those with which they are associated. Perez v. State, 11

S.W.3d 218, 221 (Tex. Crim. App. 2000); see also Ex parte Muckenfuss,

52 Tex. Crim. 467, 470, 107 S.W. 1131, 1132 (1908) (collecting cases).

Furthermore, McClelland’s brief reflects an approach that appears

to locate occurrences of the word “provide” across the Administrative

and Education Codes without regard for context or usage. App. Br. at 7-

10. For example, Ms. McClelland quotes 33.002(c) of the Education Code

which uses the word “provide” in the context of counseling services. App.

Br. at 9. She likewise spends almost an entire page citing various uses

of the word “provide” throughout the Texas Educational Administrative

Page 38 of 44
Code. App. Br. at 9-10. Naturally, the word “provided” can carry

different meanings depending on where and how it appears in context

and grammar in the sentence.

On a final note, Ms. McClelland argues that “there is no discernible

reason why the Legislature would preserve paid leave to be used

separately from assault leave but not unpaid leave.” App Br. at 12. To

the contrary, the reason is both clear and rational under the plain

language of the statute. The Legislature preserved paid leave because it

is a state-created benefit authorized under Texas Education Code Section

22.003(a) that provides compensation to employees. TDL under section

21.409, while required by state law, is not a paid benefit. It merely

protects an employee’s position during a period of medical incapacity and

allows the use of any accrued paid leave the employee may have.

Similarly, the more recent FMLA provides only unpaid, federally

authorized leave outside the Legislature’s authority to regulate. The

Legislature, therefore, had sound reason to preserve only the paid leave

it created and controls.

F. This case solely involves questions of statutory
interpretation.

Ms. McClelland contends that if this Court were to interpret

Page 39 of 44
Section 22.003(b) consistently with the District and Commissioner, such

an interpretation would violate the Texas Constitution. App. Br. at 14.

However, this case involves statutory construction and not a

constitutional challenge to section 22.003. Moreover, Ms. McClelland

failed to specifically plead a claim under the Texas Constitution. See

generally Abbott v. Mexican Am. Legislative Caucus, Tex. House of

Representatives, 647 S.W.3d 681, 697 (Tex. 2022); Tex. Gov’t Code §

402.010.

While Ms. McClelland appears to believe the Commissioner is

unsympathetic to her case, App. Br. at 18–19, his duty is to analyze the

law, including section 22.003, as applied to the facts of each appeal

brought before him. Ms. McClelland’s comments about the Texas

education system ignore an important truth: Texas was one of the first

states, and remains among the few, to guarantee paid teacher assault

leave. 4 Indeed, Texas appears to be the only state to authorize full

compensation for up to two years following an on-the-job assault,

notwithstanding Ms. McClelland’s characterization of Texas’s

4 Michael W. Wright, The Louisiana Teacher Assault Pay Statute: An Analysis of

Court Decisions Interpreting the Statute and a Comparative Study of Teacher Assault
Pay Statutes in Other States (ERIC Document Reproduction Serv. No. ED578013,
2017). proquest.com/docview/1941448771

Page 40 of 44
educational system as neglectful or broken. Her assertion that it would

be unconstitutional to interpret the statute consistent with the District’s

Policy DEC (Local) is legally unfounded. App. Br. at 14.

The Texas Supreme Court eloquently observed more than a century

ago:

“Courts must take statutes as they find them . . . They
are not the law-making body. They are not responsible
for omissions in legislation. They are responsible for a
true and fair interpretation of the written law. It must
be an interpretation which expresses only the will of the
makers of the law, not forced nor strained, but simply
such as the words of the law in their plain sense fairly
sanction and will clearly sustain.”

Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66, 70 (1920)

(emphasis added).

If Ms. McClelland believes the Legislature did not adequately

address assault leave, the cure is through statutory amendment, rather

than strained judicial interpretation. See generally Republic Bank

Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985).

Because the Commissioner’s interpretation is both reasonable and

consistent with the statutory plain meaning of the text, the Court should

affirm the decision. See Combs v. Health Care Services Corp., 401 S.W.3d

623, 629 (Tex. 2013).

Page 41 of 44
PRAYER

For the reasons discussed above, Appellee Morath respectfully

requests that this Court affirm the Commissioner’s decision in all

respects.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

ERNEST C. GARCIA
Chief, Administrative Law Division

/s/ Keegan Howe
KEEGAN HOWE
State Bar No. 24143028
Keegan.Howe@oag.texas.gov
Assistant Attorney General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Tel.: (512) 475-4195
ATTORNEYS FOR APPELLEE MIKE
MORATH, COMMISSIONER OF EDUCATION

Page 42 of 44
CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2)(B),

this brief contains 8,479 words, excluding the portions of the brief

exempted by Rule 9.4(i)(1).

/s/ Keegan Howe
KEEGAN HOWE
Assistant Attorney General

Page 43 of 44
CERTIFICATE OF SERVICE

I hereby certify that on November 5, 2025, a true and correct copy
of the above and foregoing document was served on the following party
via electronic service and/or electronic mail:

Richard L. Arnett Colby Rideout
State Bar No. 01333300 State Bar No. 24073106
rarnett@arnettlaw.net colby@leasorcrass.com
Of Counsel to Brim & Brim, P.C. Ross Mitchell
5926 Balcones Drive, Suite 220 State Bar No. 24088073
Austin, Texas 78731 ross@leasorcrass.com
Tel.: (512) 328-0048 Leasor Crass, P.C.
Fax: (512) 328-4814 302 W. Broad Street
Mansfield, Texas 76063
Counsel for Appellant Tel.: (682) 422-0009
Fax: (682) 422-0008

Counsel for Appellee Weatherford
Independent School District

/s/ Keegan Howe
KEEGAN HOWE
Assistant Attorney General

Page 44 of 44
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.

Jeff Lutz on behalf of Keegan Howe
Bar No. 24143028
jeff.lutz@oag.texas.gov
Envelope ID: 107695362
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 2025 1105 Appellee Morath Brief
Status as of 11/5/2025 1:46 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jeff Lutz jeff.lutz@oag.texas.gov 11/5/2025 12:54:34 PM SENT

Melody Montemayor melody@teacher.legal 11/5/2025 12:54:34 PM SENT

Jefferson K.Brim, III jay@teacher.legal 11/5/2025 12:54:34 PM SENT

Richard Arnett rarnett@arnettlaw.net 11/5/2025 12:54:34 PM SENT

Colby Rideout colby@leasorcrass.com 11/5/2025 12:54:34 PM SENT

Mike Leasor mike@leasorcrass.com 11/5/2025 12:54:34 PM SENT

Laura McClelland macsnojo@gmail.com 11/5/2025 12:54:34 PM SENT

Keegan Howe keegan.howe@oag.texas.gov 11/5/2025 12:54:34 PM SENT

Associated Case Party: Mike Morath

Name BarNumber Email TimestampSubmitted Status

Mike Morath mike.morath@tea.texas.gov 11/5/2025 12:54:34 PM SENT

Associated Case Party: Weatherford Independent School District

Name BarNumber Email TimestampSubmitted Status

Victoria Russell victoria@leasorcrass.com 11/5/2025 12:54:34 PM SENT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11200492. Public record. Not legal advice.