Court of Appeals of Texas, Dallas.

DALLAS INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

William Ray POWELL, Appellee.

No. 05–97–01637–CV.

|

Nov. 12, 1999.

Before Justices LAGARDE, WRIGHT, and MALONEY.¹

OPINION

WRIGHT.

*1 William Ray Powell sued Dallas Independent School District (DISD) alleging DISD constructively discharged him in retaliation for filing a worker’s compensation claim. DISD filed a plea to the jurisdiction alleging that the trial court lacked subject matter jurisdiction because Powell had not exhausted his administrative remedies. The trial court denied DISD’s plea to the jurisdiction. DISD brings this interlocutory appeal contending in a single point of error that the trial court erred by denying its plea to the jurisdiction.² We overrule DISD’s point of error and affirm the trial court’s order.

Powell was employed by DISD as a custodian for over twelve years. In February 1993, he injured his hand at work. Powell reported the injury to DISD and filed a workers’ compensation claim. After surgery, Powell was released to return to work. When Powell returned to work, DISD informed him that there were no full-time positions available and offered to put him on the substitute custodian list and call him as needed. As a substitute custodian, Powell would receive approximately one-half his former hourly rate. DISD never called Powell to work.

Powell sued DISD alleging it had constructively discharged him in retaliation for his worker’s compensation claim. DISD filed special exceptions and an answer. Our record does not contain a ruling on DISD’s special exceptions. Powell did not amend his pleadings nor did he attempt to pursue the matter with DISD. DISD then filed a plea to the jurisdiction, claiming that the trial court did not have subject matter jurisdiction because Powell had failed to exhaust his administrative remedies under the Texas Education Code (the code) before filing suit. Powell responded, arguing that Powell had no administrative remedies to exhaust under the code, and, thus, his only remedy was in the courts. The trial court denied DISD’s plea to the jurisdiction and this interlocutory appeal followed.

Initially, we note that it is DISD’s burden to establish the trial court’s lack of jurisdiction. See MCI Telecomm. Corp. v. Tarrant County Appraisal Dist., 723 S.W.2d 350, 353 (Tex.App.—Fort Worth 1987, no writ). In both its plea to the jurisdiction and on appeal, DISD argues only generally that Powell failed to exhaust his administrative remedies. DISD does not direct this Court to any specific administrative remedy which Powell failed to pursue. To the contrary, DISD makes only a passing reference to section 7.057 of the code and cites to Jones v. Dallas Independant School District, 872 S.W.2d 294 (Tex.App.—Dallas 1994, writ denied), to support its claim. Accordingly, we will address Powell’s duty to pursue administrative remedies only in light of section 7.057 and Jones.

Section 7.057 provides that subject to exceptions not applicable in this case:

[A] person may appeal in writing to the commissioner if the person is aggrieved by:

*2 (1) the school laws of this state; or

(2) actions or decisions of any school board of trustees that violate:

(A) the school laws of this state; or

(B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

Tex.Educ. Code Ann. § 7.057(a) (Vernon 1996). Thus, for section 7.057 to apply, Powell must be complaining of the violation of a school law or the school board’s actions that violate a school law or written contract. Nothing in the pleadings suggests, and DISD does not allege, that the school board was responsible for placing Powell on the substitution list.³ Thus, 7.057(a)(2) does not provide an administrative remedy for Powell to pursue. Nor does DISD explain how Powell’s complaint about being placed on the substitution list is a complaint about a violation of a school law. “School laws” means Title 1 and Title 2 of the code. Tex.Educ. Code Ann. § 7.057(f)(2) (Vernon 1996). Although section 451.001 of the Texas Labor Code prohibits a person from discriminating against an employee for filing a worker’s compensation claim, see Tex.Lab. Code Ann. § 451.001 (Vernon 1996), DISD does not direct this Court to, nor can we find, a provision in Title 1 or Title 2 of the code prohibiting DISD from constructively discharging an employee in retaliation for filing a workers’ compensation claim. Nor do Title 1 or Title 2 of the code provide for any grievance procedures available to at-will employees who are dissatisfied with the school district’s employment decisions. Consequently, we conclude Powell’s complaint is not about a violation of a school law. Therefore, we conclude that DISD failed to meet its burden to show that Powell was required to file a section 7.057 administrative appeal.

Next, DISD relies on Jones, apparently to suggest Powell was required to pursue the administrative remedies discussed in Jones. Again, we disagree. In Jones, this Court held that the employee’s failure to exhaust her administrative remedies deprived the district court of jurisdiction. See id. at 296–97. However, unlike Powell, Jones was a special education teacher, a contractual employee, subject to chapter 21 of the code. See Tex.Educ. Code Ann. §§ 21.001–21.452 (Vernon 1996 & Supp.1999). Further, she complained that DISD wrongfully terminated her employment contract, thus, section 7.057 applied to her complaint. See Jones, 872 S.W.2d at 296. Because Powell was an at-will employee, not a contractual employee, we conclude Jones is not controlling.

DISD’s broad assertion that Powell has failed to exhaust his administrative remedies, without identifying a specific administrative remedy which was available to Powell, is insufficient to meet DISD’s burden to establish the trial court’s lack of jurisdiction. We recognize that DISD may have a specific grievance procedure available to Powell to complain about his placement on the substitution list. See, e.g., Corpus Christi Indep. Sch. Dist. v. Padilla, 709 S.W.2d 700, 703 (Tex.App.—Corpus Christi 1986, no writ) (bus drivers filed a grievance pursuant to board policy regarding reassignment); Daniel, 351 S.W.2d at 357. Nonetheless, DISD has failed to provide this Court or the trial court with any board policy or administrative remedy available to Powell. Thus, we conclude that the trial court did not err by denying DISD’s plea to the jurisdiction. We overrule DISD’s sole point of error.

*3 Accordingly, we affirm the trial court’s order denying DISD’s plea to the jurisdiction.

	Footnotes
1		The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
2		See Tex.Civ.Prac. & Rem. Code Ann. § 51.014(8) (Vernon Supp.1999).
3		We recognize that in Daniel v. Dallas Indepemdent School District, 351 S.W.2d 356 (Tex.Civ.App.—El Paso 1961, writ ref’d n.r.e.), the El Paso court of appeals determined that a custodian’s wrongful termination suit was barred by his failure to exhaust administrative remedies. However, at that time, the relevant statute provided that “parties having any manner of dispute among them arising under provisions of the school laws of Texas, or any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education, may appeal in writing to the Commission of Education.” See Daniel, 351 S.W.2d at 358. The record in that case showed that Daniel appealed his termination to the Dallas School Superintendent, and then to the school board. The specific remedy Daniel failed to pursue was to appeal the school board’s decision to the commission of education. See id. Here, DISD fails to cite to any grievance procedure, board policy, or administrative remedy showing Powell could appeal DISD’s decision to place him on the substitution list to the superintendent or the school board. Further, section 7.057(a) is a more narrow provision than the predecessor statute at issue in Daniel. Section 7.057(a) provides for appeals only from school board actions that violate a school law or a provision of a written contract. See Tex.Educ. Code Ann. § 7.057(a)(2) (Vernon 1996). The predecessor statute provided for appeals by “any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education.” See Daniel, 351 S.W.2d at 358.