The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
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NO. 03-00-00131-CV
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Dizdar Development, Inc. and Central Education Agency, Appellants
v.
Board of Trustees of Mission Consolidated Independent School District, Appellee
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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 99-11705, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING
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Dizdar Development, Inc. (“Dizdar”) and the Central Education Agency appeal from
a district-court judgment that reverses a final order issued by the Commissioner of Education in a suit
brought by the board of trustees of the Mission Independent School District (“Mission”). We will
reverse the district-court judgment and remand the cause to that court.
THE CONTROVERSY
Dizdar owns subdivision lots in Hidalgo County. About half the lots lie in the Mission
district, the other half lie in the Sharyland Independent School District (“Sharyland”). Dizdar initiated
in each school district a proceeding to detach from the Mission district the lots therein and to annex
them to the Sharyland district.1 Both school districts denied the relief requested by Dizdar. Dizdar
1
The petitions for detachment and annexation were actually filed by “Marted, a Texas
General Partnership,” Dizdar’s predecessor in title and interest. For convenience, however, we
appealed from their decisions to the Commissioner of Education under former section 11.13(a) of the
Texas Education Code. This statute authorized such appeals by a person aggrieved by the “actions
or decisions of any [school district] board of trustees.” Act of Aug. 26, 1986, 69th Leg., 2d C.S.,
ch. 4, § 3, 1986 Tex. Gen. Laws 6, 10 (Tex. Educ. Code Ann. § 11.13(a), since repealed and codified
at Tex. Educ. Code Ann. § 7.057(a)(2)(A) (West 1996)) (“§ 11.13(a)”).2
In a final order, the Commissioner declined to set aside the school-district decisions
on Dizdar’s petition for detachment and annexation. Dizdar sued in district court for judicial review
of the order. See Act of June 6, 1990, 71st Leg., 6th C.S., ch. 1, § 2.22, 1990 Tex. Gen. Laws 1, 22
(Tex. Educ. Code Ann. § 11.13(c), since repealed and codified at Tex. Educ. Code Ann. § 7.057(d)
(West 1996)). The district court rendered judgment affirming the Commissioner’s order. In an
earlier appeal taken by Dizdar to this Court, we held the district court and the Commissioner had each
erred in the construction they placed upon a statute not material in the present appeal. We therefore
reversed the district-court judgment and remanded the controversy to the Commissioner. See Marted
v. Central Educ. Agency, No. 3-97-267-CV (Tex. App.—Austin Jan. 15, 1998, pet. denied) (not
designated for publication).
will treat Dizdar as the litigant before the Commissioner and in district court, where Dizdar
intervened in the present cause.
2
The writing of our opinion is burdened a good deal by the fact that we are required to
consider the interplay of present and former sections of the Texas Education Code. The Code
was revised and amended extensively in 1995, but the present litigation is governed by sections
11.13 and 19.0221 as these existed before 1995. For clarity, we will hereafter refer to these in
the present tense as if they were still in effect. Where necessary, we will identify by appropriate
terms the post-1995 provisions that bear on the parties’ contentions and arguments.
2
Following our remand to the Commissioner, Mission moved that he dismiss Dizdar’s
administrative appeal on the basis of section 19.0221(i) of the Code, a statute treated at length below.
The Commissioner declined to dismiss Dizdar’s appeal and proceeded to the merits of the
controversy. Based on findings of fact and conclusions of law set forth in a final order, the
Commissioner granted Dizdar’s petition for detachment and annexation of the lots in question.
Mission sued in district court for judicial review of the Commissioner’s final order.
The Central Education Agency appeared by answer; Dizdar intervened in the cause in defense of the
order. Following a hearing, the district court reversed the Commissioner’s order and implicitly
remanded the controversy to that officer for dismissal for want of subject-matter jurisdiction.3 Dizdar
and the Central Education Agency appeal now from the district-court judgment.
DISCUSSION AND HOLDINGS
In its petition filed in district court, Mission alleged the Commissioner’s order was in
excess of his statutory powers because he had construed erroneously the relevant provisions of the
Code. Mission advances the same contention as appellee here. The Central Education Agency and
Dizdar contend on appeal that the Commissioner properly construed the relevant statutes to conclude
3
The district-court judgment requires construction. It reverses “in all respects” the
Commissioner’s “decision.” The judgment declares that this action is “based on the
jurisdictional arguments presented by” Mission. The judgment omits, however, to make any
disposition of Mission’s cause of action even while it states “[t]his is a final judgment.”
Because the judgment was obviously intended to be a final judgment based on Mission’s
allegation that the Commissioner lacked jurisdiction to hear and determine Dizdar’s
administrative appeal, we conclude the proper construction and effect of the judgment is to
reverse the Commissioner’s final order and to remand the controversy to that officer to be
dismissed for want of subject-matter jurisdiction.
3
he possessed power to hear and determine the merits of Dizdar’s administrative appeal from the
school districts’ disapproval of Dizdar’s petition for detachment and annexation.
We must begin our discussion with section 11.13(a) of the Code. See Tex. Educ.
Code Ann. § 11.13(a). This statute in general terms authorizes administrative appeals to the
Commissioner in the following terms:
[P]ersons having any matter of dispute among them arising under the school laws of
Texas or any person aggrieved by the school laws of Texas or by actions or decisions
of any board of trustees . . . may appeal in writing to the commissioner of education
....
§ 11.13(a) (emphasis added). So far as this statute is concerned, the right to an administrative appeal
is limited only by the requirement that the affected person be “aggrieved” by the school laws or an
action or decision of a board of trustees. That is the simple, obvious, and plain meaning of the
statute. Section 19.0221 of the Code appears in a subchapter titled “Detachment and Annexation of
Certain Territory.” It is thus a more particular statute and should be understood accordingly. In
section 19.0221, the legislature provided as follows:
(h) If both boards of trustees of the affected districts approve the petition, each
commissioners court to whom the matter is required to be reported shall enter
an order redefining the boundaries affected by the transfer [of territory].
(i) If the board of trustees of either affected district disapproves the petition, an
aggrieved party . . . in either district may appeal the board’s decision to the
commissioner of education under Section 11.13 of this Code.
4
Act of May 10, 1991, 72d Leg., R.S., ch. 152, § 1, 1991 Tex. Gen. Laws 742 (Tex. Educ. Code Ann.
§ 19.0221(h)(i), since repealed and codified at Tex. Educ. Code Ann. § 13.051(i)(j) (West 1996))
(Emphasis added).
As it did below, Mission contends section 19.0221(i), properly interpreted, denies the
right to appeal to the Commissioner when both affected districts disapprove a petition for detachment
and annexation. Consequently, section 19.0221(i) operates as an exception to section 11.13(a) of
the Code, which creates a general right to an administrative appeal. Because both districts
disapproved Dizdar’s petition in this instance, Dizdar had no right to appeal to the Commissioner and
the Commissioner had no power to decide the appeal in those circumstances. Dizdar and the Central
Education Agency disagree, of course, with Mission’s interpretation of section 19.0221(i). We
conclude section 19.0221(i) will not reasonably bear the meaning Mission attributes to it.
The most conspicuous factors evident in these provisions of the Code are as follows:
(1) section 11.13(a) grants a general right to appeal to the Commissioner free from any restrictions
apart from a requirement that the person be “aggrieved” by an action or decision of “any board of
trustee”; and (2) not a single word or phrase in section 19.0221(i) carries a connotation of denial,
restriction, or limitation—instead, the words of that section are consistent only with the idea that a
right to an administrative appeal exists in the circumstances described therein. Section 19.0221(i)
declares unequivocally that an aggrieved party “may appeal” if the board of trustees of either affected
district disapproves the petition. This is consistent and harmonious with the general right to an
administrative appeal created in section 11.13(a).
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Mission advances several arguments in support of its contrary interpretation of section
19.0221(i). Mission argues first that in both subsections (h) and (i) of section 19.0221, the legislature
indicated an intention to make final and exclusive the decisions of affected districts when they
concurred in either approving or disapproving a petition for detachment and annexation. Mission
reasons thus from the fact that section 19.0221(h) omits to provide within itself a right to appeal to
the Commissioner when both districts approve a petition for detachment and annexation. Mission
argues next that the legislature’s use of the singular possessive noun “board’s” in section 19.0221(i)
indicates that no right to an administrative appeal was intended when both boards of trustees
disapproved a petition. “If an appeal were authorized when both boards disapproved,” Mission
reasons, “then the appeal would be from the ‘boards’ decisions.” And if the text of section 19.0221(i)
will not bear these contentions, Mission points to a sentence in the legislative bill analysis referring
to section 19.0221(i). That bill analysis declares that section 19.0221(i) “[a]uthorizes an appeal to
the commissioner of education by a party to the proceedings from either school district if one district
disapproves the petition.”
So far as we understand these contentions, none of them addresses the essential
factors mentioned above: (1) section 11.13(a) gives a general right to an administrative appeal to any
person aggrieved by any decision or action of any board of trustees; and (2) nothing in section
19.0221(i) or elsewhere in the Code purports to deny or restrict that right created in terms so general.
If section 19.0221(i) or another section of the Code purported affirmatively to deny the right to an
administrative appeal when both districts disapproved a petition, then that denial would restrict the
general right created in section 11.13(a), but no such statutory provision has been suggested to us
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and we have found none. It is immaterial then that the legislature omitted to provide in section
19.0221(h) for an administrative appeal when both districts concurred in approving a petition—the
right to such an appeal exists in such instances by virtue of section 11.13(a) when no statute purports
to deny the right. The same logical flaw undermines Mission’s arguments based on the use of the
singular possessive noun “board’s” and Mission’s argument from the bill analysis. We turn then to
another argument made by Mission in support of its contention.
In 1995, the legislature rearranged and amended the Code extensively. Former section
19.0221(i), which lies at the core of the present dispute, was amended to provide exactly what was
missing theretofore—statutory language denying expressly a right to an administrative appeal when
both districts disapprove a petition. The pertinent part of the Code now provides as follows: “If both
boards of trustees of the affected districts disapprove the petition, the decisions may not be appealed.”
Tex. Educ. Code Ann. § 13.051(j) (West 1996). Mission does not contend the 1995 amendment
governs the present case. Mission argues instead that the 1995 amendment demonstrates what the
legislature intended by its earlier enactment of section 19.0221(i), namely an intention to deny the
right to an administrative appeal when both districts disapproved the petition. We may note here that
if such was the legislature’s intention in composing the language of section 19.0221(i), the legislature
chose the most inapt language possible to express such an intention when it chose words of grant
rather than words of denial or restriction. More to the point, perhaps, Mission’s theory rests entirely
upon a naked implication Mission imputes to the text of section 19.0221(i). This is an argument from
silence, without authority, and impermissible in all events.
7
The settled rule is that when the legislative intent can be gathered from a reasonable
interpretation of the language of a statute, it is not permissible to resort to
interpretation by implication. Interpretation by implication is permitted only to
supply obvious intent not expressly stated, and never to contradict nor add to a
statute.
Commonwealth of Mass. v. United N. & S. Dev. Co., 168 S.W.2d 226, 229 (Tex. 1942); see also
Sexton v. Mt. Olivet Cemetery Ass’n, 720 S.W.2d 129, 138 (Tex. App.—Austin 1986, writ ref’d
n.r.e.). One observes that the implication for which Mission contends contradicts the right to an
administrative appeal given expressly and generally in section 11.13(a).
Mission does not deny a contention made by Dizdar and the Central Education Agency
that the Commissioner has consistently interpreted section 19.0221(i) to mean that an administrative
appeal may be taken to him when the board of trustees of both districts disapprove a petition. This
is, in our view, a reasonable interpretation of section 19.0221(i) for the reasons set out above—the
almost unrestricted right to an appeal given in section 11.13(a) and the absence of any denial or
restriction of that right in the Code provisions pertaining to detachment and annexation of school-
district territory.
Mission points out next that in our opinion in the first appeal, we referred to a 1995
amendment of another section of the Code. “Given that [the court] looked beyond the controlling
statute [a pre-1995 statute] to its successor statute in order to reach a just interpretation,” Mission
argues, “it is equitable that this Court do so again and look beyond the controlling statute [section
19.9221(i)] to its successor statute in this situation.” This argument is based on a false premise. It
assumes that in the first appeal we treated the 1995 amendment as having some bearing on the
meaning to be assigned the pre-1995 statute involved in that appeal. We did not. Even a casual
8
reading of our earlier opinion demonstrates without question that we referred only to the fact that the
controlling pre-1995 statute had been amended. See Marted, slip op. at 4 n.1. Nothing in our
opinion remotely suggested that the amendment bore upon our conclusion that the statute in question,
as interpreted by the Commissioner, produced an absurd result.
The mere fact that section 19.0221(i) was amended in 1995 to prohibit administrative
appeals, in cases like the present, carries a presumption that the legislature intended to change the
original enactment by withdrawing or rescinding a right to appeal that existed before. See American
Sur. Co. of N.Y. v. Axtell, 36 S.W.2d 715, 719 (Tex. 1931); 1A Sutherland Statutory Construction
§ 22.30, at 266 (5th ed. 1993). While the presumption is not conclusive, Mission has not suggested
any persuasive considerations in support of a contention that the legislature did not intend such a
change in the law by its 1995 amendment of section 19.0221(i).
The best that may be said in support of Mission’s position is that section 19.0221(i)
is ambiguous or uncertain as to whether an administrative appeal may be taken when both school
districts disapprove a petition for detachment and annexation. We believe the statute is unambiguous
and certain in that respect. Assuming the contrary, however, it was the Commissioner’s duty to
interpret the ambiguous or uncertain statute and assign to it a particular meaning, which he did. His
chosen meaning was that such a right of appeal existed in those circumstances. We cannot say this
contradicts the plain meaning of section 19.0221(i) or that it is otherwise unreasonable in context.
We refer again to the fact that the general right of appeal exists by virtue of section 11.13(a) and
nothing in section 19.0221(i) or elsewhere denies the right. While we are not bound by the
9
Commissioner’s interpretation of the statutes, we will not in these circumstances set aside his
interpretation. See Sanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944).
For the reasons given, we hold the district court erred in its judgment that the
Commissioner lacked subject-matter jurisdiction over Dizdar’s administrative appeal. We therefore
reverse the judgment below and remand the cause to the district court for proceedings not
inconsistent with our opinion. Because our discussion and holdings are a sufficient basis for our
decision, we need not consider the remaining assignments of error brought by Dizdar and the Central
Education Agency.
John E. Powers, Justice
Before Chief Justice Aboussie, Justices Kidd and Powers*
Reversed and Remanded
Filed: November 30, 2000
Do Not Publish
*
Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
10