Court of Appeals of Texas, Third District, Austin
THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-002347, THE HONORABLE LORA J. LIVINGSTON, JUDGE
Chief Justice Rose, Justices Smith and Shannon [*]
an appeal from the judgment of the district court of Travis
County affirming an order of appellee Texas State Board for
Educator Certification (the Board). By its order, the Board
revoked the Texas Principal and Educator certificates and all
other Texas credentials held by appellant Anna Luisa Kell.
Other appellees are the Texas Education Agency (TEA) and Mike
Morath, Commissioner of Education. This Court will affirm the
district court's judgment.
appeal arises from the El Paso Independent School District
(District) cheating scandal and the disciplinary actions that
followed in its wake. See El Paso Indep. Sch. Dist. v.
Kell, 465 S.W.3d 383, 384 (Tex. App.-El Paso 2015, pet.
denied). Beginning in 2006 and continuing through August
2011, the District Superintendent, Lorenzo Garcia, directed
school personnel to manipulate grades, attendance records,
and test scores, among other things, in the District's
high schools in order to continue obtaining federal funding
from two programs of the U.S. Department of Education.
See id. at 384.
federal programs supply funding to public schools serving
disadvantaged students, provided that those schools meet
accountability standards. These standards require separate
identification of specific at-risk student subgroups. When a
subgroup consists of fifty or more students, its test scores
are separately reported and, if failing, cause the particular
school to fail that standard. On the other hand, subgroups
composed of fewer than fifty at-risk students are absorbed
into the school's general student population where the
at-risk students' lower scores will not likely pull the
larger group's scores down to a failing level. Failure to
meet federal accountability standards for two years has
consequences: the school is required to take corrective
action and make progress through prescribed stages if it is
to continue receiving federal funding.
District, which borders Mexico, has a large at-risk student
body, including a significant number of limited
English-proficiency students. Accordingly, the District has
received millions annually in federal funds. But until Garcia
became superintendent in 2006, the District had long
struggled to meet the federal accountability standards. Under
Garcia's guidance, the District's academic
performance made a miraculous turn-about. Then it came to
light that the gains came, not from academic improvement, but
instead, from a district-wide scheme manipulating student
data and grade placement. By these contrivances, Garcia and
his cabal had artificially inflated school performance by
absorbing, thereby diluting, underperforming subgroups into
the mainstream student population for scoring purposes.
2008, Kell became assistant principal at Bowie High School, a
District school, and worked there until November 2012. About
the time Kell became assistant principal, Bowie had failed to
meet the federal accountability standards. The District's
central administration warned Bowie's staff that they
"had better get the job done" by reducing the
limited-English-proficiency subgroups to fifty or fewer
students thereby raising the school performance scores.
discovery of the scandal, Superintendent Garcia pleaded
guilty to several federal charges and served prison time.
Later, TEA, for the Board, filed disciplinary actions against
thirteen District administrators, including Kell, for their
part in the accountability scandal. As some of the accused
administrators settled or voluntarily surrendered their
certificates, TEA amended its pleadings from time to time to
reflect these changes. TEA's "trial" pleading
in the administrative hearing, the Fifth Amended Petition,
stated its case against Kell and two other Bowie
administrators, charging them with numerous violations of the
Texas Education Code, the Texas Administrative Code, and the
Educator's Code of Ethics, and sought permanent
revocation of their Texas Educator Certificates.
case against Kell and the two other Bowie administrators was
heard by two administrative law judges from the State Office
of Administrative Hearings. The administrative law judges
conducted an eight-day hearing. After the hearing closed, the
parties submitted briefs and responses. In its closing brief,
TEA summarized its allegations and arguments against Kell. In
a concluding sentence, which streamlined a lengthy and
complex case, TEA advised the judges that "any
allegations not addressed herein are withdrawn." A few
months later, the judges delivered a proposal for decision.
The judges concluded that Kell violated the Texas Education
Code and Ethics Standards by, among other things, changing
student grades in official transcripts without a proper
basis; pressuring teachers to assign grades that were not
legitimately earned by students; submitting data to TEA or
the U.S. Department of Education that was known or reasonably
should have been known to be false or misleading; and
creating a program of credit recovery (called mini-mesters)
that awarded course credit to students without requiring them
to demonstrate mastery of curriculum. The judges recommended
that the Board revoke all of Kell's certificates.
hearing, the Board adopted the proposal for decision and by
its order revoked the Texas Principal and Educator's
certificates and all other Texas credentials held by Kell.
The district court rendered judgment affirming the
appeal, Kell does not attack the evidentiary foundation or
legal conclusions supporting the revocation of her
certificates. Hence, her many adjudicated violations of the
Texas Education Code and the Educator's Code of Ethics
Standards stand unchallenged. Instead, Kell's appeal is
based on her claim that she was denied due process because
she was not provided notice of and a meaningful opportunity
to refute the theory upon which sanctions might be based.
See University of Tex. Med. Sch. at Hous. v. Than,
901 S.W.2d 926, 930 (Tex. 1995). Specifically, Kell claims
that because TEA's trial pleading charged her with
"fraud" and "irreparable harm to
students," TEA was required to prove common-law fraud as
a prerequisite for each of the many allegations asserting
violations of the Texas Education Code and the Educator's
Code of Ethics. Then, she argues, TEA withdrew fraud as an
allegation in its closing brief. The withdrawal, Kell
maintains, somehow converted the allegations against her into
new, lesser charges after she allegedly defended against
fraud. We disagree.
trial petition consists primarily of two sections entitled
"Introduction" and "Matters Asserted."
The "Introduction," as the name implies, is an
overview of the origins and causes of the years-long
district-wide cheating scandal; the District's failing
struggle to hold on to federal funding; the hiring of
Superintendent Garcia; his apparent success in raising the
District's academic performance; and then the
exposé that the academic improvement was the result of
a district-wide scheme to manipulate student data and grade
"Matters Asserted" section of the petition contains
TEA's allegations against Kell and the two other Bowie
High School administrators for violation of the Education
Code, the Administrative Code, and the Code of Ethics. In
sixteen factual allegations, Kell was charged with violations
of five sections of the Texas Education Code, six sections of