SE Texas Record

Monday, November 18, 2019

Guzman: Education commissioners engaged in forum shopping

By Steve Korris | Apr 29, 2010


AUSTIN – Past and present education commissioners improperly vetoed Travis County jurisdiction in a dispute over termination of a teacher who used corporal punishment, the Supreme Court of Texas ruled on April 23.

Former commissioner Shirley Neeley and current commissioner Robert Scott arguably engaged in forum shopping, Justice Eva Guzman wrote.

Teacher Samuel Papa and Presidio school trustees agreed to litigate in Travis County, but Neeley declared herself a party to the proceedings and withheld her agreement.

Guzman found 21 places in teacher termination law where "party" meant a teacher or a school board, and one where it also meant the commissioner.

"Courts must not give the words used by the Legislature an exaggerated, forced or constrained meaning," Guzman wrote.

The dispute now returns to Travis County District Judge Scott Jenkins.

The case began when trustees served a termination notice on Papa for violating their punishment policy.

An examiner held a full evidentiary hearing and recommended termination and trustees adopted the recommendation.

Papa petitioned Neeley under state law allowing a commissioner to review records of a teacher's hearing and oral argument before the trustees.

Neeley ordered the trustees to reinstate Papa or pay him a year's salary.

The trustees appealed, under a law providing venue in the county where a teacher worked or if the parties agree, in Travis County, where the Texas education commission is located in Austin.

The trustees chose Travis County, and Papa concurred. Neeley was designated as a party, as the law required.

But Neeley objected to Travis County and filed a plea to the jurisdiction, which Jenkins rejected.

Neeley petitioned the Third District appeals court in Austin, where Justices Jan Patterson, Bob Pemberton and David Puryear affirmed Jenkins.

Then Pemberton and Puryear abruptly changed their minds, withdrew the opinion, reversed Jenkins, and stranded Patterson in dissent.

Pemberton wrote that legislators gave the commissioner veto power against defending judicial appeals in Travis County.

No one at the Supreme Court agreed.

Guzman wrote that a commissioner may not substitute his judgment for that of school trustees unless he finds their decision arbitrary, capricious or unlawful.

"The commissioner is a neutral arbiter performing a limited review of the board's decision and does not have a direct stake in the outcome," Guzman wrote.

"The Legislature's decision to designate the commissioner as a party to the appeal does not automatically import that meaning to every other use of the term 'party' regardless of the immediate context," she wrote.

"The commissioner cannot selectively choose a particular use of 'party' into which his chosen definition is poured while at the same time distinguishing every other use of the term where that meaning is contextually impossible," she wrote.

"Disregarding 21 uses of 'party' in the surrounding context, all of which do not include the commissioner, in favor of the single use that does is precisely the sort of exaggerated, forced or constrained meaning that we eschew," she wrote.

She discarded Scott's claim that a consenting party might be unaware of disadvantages in a Travis County appeal, requiring him to steer the party in another direction.

"Even if true, the parties are in the best position to make their own strategic decisions," she wrote.

Larry Baskind, Ken Slavin and Linda Samples represented the trustees.

Texas Attorney General Greg Abbott represented Scott, along with Bill Davis, Daniel Geyser, George Warner, Clarence Weber, David Morales and James Ho.

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