KEEN v. LANCASTER INDEPENDENT SCHOOL DISTRICT (2025)

OPINION

Appellant Susan Keen sued her former employer, appellee Lancaster Independent School District (the District), asserting claims relating to the nonrenewal of her employment contract. The trial court granted the District's plea to the jurisdiction as to two of those claims and its motion for summary judgment as to the remaining claim. In three issues, Keen argues the trial court erred in granting the plea to the jurisdiction and motion for summary judgment. We affirm.

I. Background

Keen was employed as Chief of Special Education from June 2018 until June 30, 2023. She alleged the District's Superintendent notified her in writing on April 12, 2023 of a reassignment and salary reduction for the 2023–24 school year. Two weeks later, Keen's supervisor notified her she was recommending her for reemployment. The minutes of the District's Board of Trustees April 27, 2023 meeting reflected approval of unspecified employment contracts, which Keen believed included her contract.

On May 1, 2023, however, Keen was placed on administrative leave based on “a recent parent complaint to the Texas Education Agency” regarding a matter with which Keen denied any involvement.

Despite being “locked out of her employee portal on the District's website” and not being in receipt of any contract to sign, Keen emailed a formal acceptance of employment for the 2023–24 school year. Counsel for the District notified Keen her acceptance was ineffective given that no contract had been offered. In response, Keen's counsel asked the District to confirm or deny whether Keen was included in the list of employees whose contracts were approved on April 27. The District did not respond and never produced the list of employees. Keen alleged the Board's approval at the April 27 meeting “constituted an offer which [she] accepted in writing, forming a written [contract], the details of which were pre-existing.”

The Board met again on May 26, 2023, “purporting to act under Section 21.206 of the Texas Education Code,” to propose the nonrenewal of Keen's employment contract. Keen alleged the Board acted without authority or jurisdiction because “her contract had already been renewed,” and further, the Board “failed to take action to terminate her contract under Section 21.211, which would have required the use of the independent hearing examiner process.”

The Board notified Keen about the proposed nonrenewal, and she requested a hearing “in accordance with the notice letter.” The Board's notice stated her proposed nonrenewal was based on the aforementioned TEA complaint, as well as “alleged violations of purchasing procedures.”

Keen filed public information requests on May 10, May 23, and May 31 seeking the TEA report on the complaint, the list of personnel contracts approved on April 27, documents reflecting business-office approval of the purchases in question, and other documents relating to the nonrenewal. The District requested an attorney-general opinion as to each request, “arguing it was not required to release records under the litigation exception” found in Texas Government Code § 552.103. The requests were pending at the time the original petition was filed.

A hearing was set for June 26, 2023. Five days before that setting, the District provided Keen the procedures the Board would follow at the hearing. Keen alleged there was “no showing the Board had adopted the[ ] procedures.”

Keen alleged that the District's refusal to produce documents and the procedures provided to her denied her fundamental fairness and that the District “lacked authority and jurisdiction to take the action threatened.” Three days before the June 26 hearing, Keen's counsel informed the District she would not appear at the hearing. Keen filed a “Special Appearance/Position Statement” on the day of the hearing, raising her objections.

The Board terminated her employment effective June 30, 2023.

Keen filed the underlying lawsuit asserting causes of action for “action without authority or jurisdiction” and violation of article I, § 19 of the Texas Constitution. As to the former, Keen argued the Board lacked jurisdiction because she had been offered and had accepted a contract for the upcoming school year. As to the latter, she argued the District denied her fundamental fairness given that she “had a property interest in her continued employment” as explained by the Texas Supreme Court in Grounds v. Tolar Independent School District.¹ She argued she was not required to exhaust any administrative remedies because she was challenging the District's authority and jurisdiction to conduct a nonrenewal hearing or to terminate her employment without following the independent hearing examiner process applicable to terminations prior to the expiration of a contract. Keen requested (1) a permanent injunction compelling the District to reinstate her and (2) lost wages from July 1, 2023 onwards.

In the trial court, the District answered, generally denied Keen's allegations, and asserted it was entitled to governmental immunity from suit and liability and that Keen failed to exhaust administrative remedies for her claims.

The District filed a plea to the jurisdiction, arguing Keen had failed to exhaust administrative remedies available to her and that, therefore, the trial court lacked subject-matter jurisdiction over her claims. The District included with the plea its May 11, 2023 notice of contract nonrenewal, which reflects the following:

• on May 10, 2023, the Superintendent recommended to the Board to propose nonrenewal of Keen's Chapter 21 term employment contract;

• the Board accepted that recommendation and voted to propose the nonrenewal of Keen's 2022–23 employment contract;

• the various grounds for the proposed nonrenewal;

• the specific facts relating to “violation of purchasing procedures” and “department leadership concerns”; and

• how to request a hearing on the proposed nonrenewal.

The District also included with the plea Keen's May 25, 2023 request for a nonrenewal hearing; correspondence from the parties postponing a hearing date and rescheduling for June 26; email correspondence from Keen stating she would not attend the June 26 nonrenewal hearing; and notice of the Board's decision to not renew Keen's Chapter 21 employment contract.

In response to the plea to the jurisdiction, Keen argued she was not required to exhaust administrative remedies because her case was “controlled by pure questions of constitutional law,” the Board of Trustees acted without authority in attempting to not renew her 2022–23 contract after it had approved and she had accepted employment for the following school year, exhaustion of administrative remedies would have been futile, the District's refusal to produce documents relevant to her defense rendered the procedure inadequate, and her claims under the Texas Public Information Act were not subject to these procedures.

Keen moved for partial summary judgment and filed a supporting brief, arguing that the Term Contract Nonrenewal Act created a right to a “due process hearing,” as explained by Grounds.

Keen also filed a first amended petition. She reiterated her prior allegations and added a third cause of action for “mandamus for release of public records” under § 552.321 of the government code.

The trial court granted the District's plea to the jurisdiction and dismissed with prejudice Keen's first two causes of action (for action without authority and violation of article I, § 19 of the Texas Constitution) for want of jurisdiction. Keen's third cause of action (mandamus for release of public records) remained pending.

Keen filed a second amended petition that differed from its predecessor by including reference to article I, § 19 of the Texas Constitution in its third cause of action. She argued that, “[i]f nothing else, the assertion of discretionary exception by Defendant and the withholding of the records violated the due course of law provision of Article l, Section 19 of the Texas Constitution.”

The District moved for traditional summary judgment as to Keen's action for release of public records. The Office of the Attorney General (OAG) issued letter rulings determining that the requested information could properly be withheld under the litigation exception in government code § 552.103. The rulings explained that the nonrenewal hearing fell within the meaning of “litigation” in § 552.103.

Keen moved for partial summary judgment on her mandamus action, arguing various reasons we discuss below why the litigation exception did not apply.

The trial court granted the District's traditional motion for summary judgment and dismissed with prejudice Keen's mandamus action and any remaining claims. This appeal followed.

II. Discussion

A. Plea to the jurisdiction

In her third issue, Keen argues the trial court erred in granting the District's plea to the jurisdiction because she was not required to exhaust administrative remedies. Specifically, she argues her case is “controlled by pure questions of constitutional law,” the Board of Trustees acted without authority in attempting to not renew her 2022–23 contract after it had approved and she had accepted employment for the following school year, exhaustion of administrative remedies would have been futile, and the District's refusal to produce documents relevant to her defense rendered the procedure inadequate.

1. Standard of review

A party may challenge a trial court's subject-matter jurisdiction by filing a plea to the jurisdiction. Hou. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit; instead, the plea challenges the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject-matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject-matter jurisdiction are questions of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The plaintiff has the initial burden to plead facts affirmatively showing the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If the plaintiff pleaded facts making out a prima facie case and the governmental unit challenges the existence of jurisdictional facts, then we consider the relevant evidence submitted. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).

When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence implicating the merits of the case has been submitted to support the plea, we take as true all evidence favorable to the plaintiff. Id. We indulge every reasonable inference and resolve any doubts in the plaintiff's favor. Miranda, 133 S.W.3d at 226. If the relevant evidence is undisputed or if the plaintiff fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea as a matter of law. Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798–99 (Tex. 2016).

2. Applicable law

When the legislature creates an administrative agency, it may grant the agency authority to resolve disputes that arise within the agency's regulatory arena. Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 544 (Tex. 2016). If the legislature expressly or impliedly grants an agency sole authority to make an initial determination in such disputes, the agency has exclusive jurisdiction, and a party must exhaust its administrative remedies before seeking recourse through judicial review. Id. If the party files suit before exhausting such administrative remedies, the courts lack jurisdiction and must dismiss the case. Id.

The Term Contract Nonrenewal Act (TCNA), found in Chapter 21, Subchapter E, of the Texas Education Code, governs fixed-term employment contracts between school districts and teachers. See Tex. Educ. Code §§ 21.201–.213. Under this subchapter, the board of trustees is required to notify in writing each teacher whose contract is about to expire whether the board proposes to renew or not renew the contract. See id. § 21.206. If a teacher who receives such notice desires a hearing, the teacher must notify the board in writing. See id. § 21.207(a). Following the hearing, the board of trustees must take the appropriate action to renew or not renew the teacher's contract and notify the teacher in writing of that action not later than the fifteenth day after the date on which the hearing is concluded. Id. § 21.208(b).

A teacher who is aggrieved by a decision of a board of trustees on the nonrenewal of the teacher's term contract “may appeal to the commissioner for a review of the decision of the board of trustees” in accordance with the provisions of Subchapter G of Chapter 21. Id. § 21.209; see also id. §§ 21.301–.307 (Subchapter G; Appeals to Commissioner of Education). Language in the education code providing that a person “may” appeal to the Commissioner “require[s] a person who chooses to appeal to first seek relief through the administrative process.” Marquez, 487 S.W.3d at 545. “The decision to appeal is optional.” Id. But if an appeal is taken “it must be to the commissioner if the matter is within the scope of the agency's review powers.” Jones v. Clarksville Indep. Sch. Dist., 46 S.W.3d 467, 470–71 (Tex. App.—Texarkana 2001, no pet.).

3. Analysis

It is undisputed here that Keen failed to pursue the administrative process through an appeal to the Commissioner of Education. See Tex. Educ. Code §§ 21.209, .301–.307; Marquez, 487 S.W.3d at 545.

Accordingly, we must consider whether Keen met her burden to show that her claims fall within an exception to the administrative exhaustion requirement. See Hou. Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at *4 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.). “Under certain limited circumstances, the administrative exhaustion requirement does not apply and, consequently, an aggrieved party may seek relief in the courts without overcoming that hurdle.” Id. at *3.

Keen raises four possible exceptions to the administrative exhaustion requirement. First, she argues her case is controlled by pure questions of law, and she identifies five such questions, including for example whether “the procedures used by Defendant denied Plaintiff due course of law.” It is true that, in general, the doctrine of exhaustion of administrative remedies does not apply when there are “purely questions of law involved.” Marquez, 487 S.W.3d at 557; see also Nuttall v. Dall. Indep. Sch. Dist., No. 05-23-00877-CV, 2024 WL 3022800, at *8 (Tex. App.—Dallas June 17, 2024, pet. denied) (mem. op.) (claims not purely legal claims). But in addition to the questions of law raised by Keen, there remain disputed questions of fact, such as whether Keen was offered a contract for the 2023–24 school year, as she contends. See Hathaway v. Dall. Indep. Sch. Dist., No. 05-91-00196-CV, 1991 WL 252790, at *3 (Tex. App.—Dallas Nov. 14, 1991, no writ) (not designated for publication) (exhaustion exception did not apply because there were disputed issues of fact). Thus, it is not the case that there are “purely questions of law involved” in Keen's claims.

To the extent Keen also argues the constitutional nature of her claims excepts her from the administrative exhaustion requirement, we disagree. If a party's constitutional claim is “ancillary to and supportive of” a complaint about the board's handling of an employment contract “such that the true nature of the claim, although asserted as a constitutional violation, necessarily results from a violation of school laws or an employment contract,” then the Commissioner must hear the appeal first, unless another exception to the exhaustion requirement applies. Marquez, 487 S.W.3d at 553 (first quoting Jones, 46 S.W.3d at 474); see also Dotson v. Grand Prairie Indep. Sch. Dist., 161 S.W.3d 289, 292–93 (Tex. App.—Dallas 2005, no pet.). Here, Keen's claims necessarily result from an alleged violation of school laws or an employment contract – Keen argues, among other things, the District should have “followed the independent hearing examiner process applicable to terminations of contracts before their expiration.” Keen's constitutional claims are ancillary to her contract claims. Consequently, the Commissioner must hear the appeal first.

Second, Keen argues she was not required to exhaust administrative remedies because the District lacked authority and jurisdiction. “[W]hen there is an absence of jurisdiction in an administrative agency, then the doctrine of exhaustion of administrative remedies is not applicable.” City of Sherman v. Pub. Util. Comm'n of Tex., 643 S.W.2d 681, 683 (Tex. 1983) (quoting Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978)).

In City of Sherman, the Supreme Court concluded, as a matter of statutory construction, that the PUC lacked the power to regulate the groundwater development activities of petitioners because the public utility regulatory act expressly excluded municipal corporations from the definition of public utility. See id. at 686. Keen's argument here is premised on her assertion that the District already approved her employment contract for the upcoming school year when it voted to not renew her contract. But as we just observed, this is a disputed fact issue. Moreover, the TCNA gives the Board authority to renew employee contracts. See Tex. Educ. Code §§ 21.206–.208. The code also gives the Commission authority to consider an alleged violation of a written contract between a school district and an employee. See id. § 7.057(a)(2)(B). Keen does not identify any specific statutory exclusions.

This case is therefore unlike City of Sherman, 643 S.W.2d at 686. In addition, “the mere claim that an administrative agency acted outside its authority does not authorize litigation before administrative remedies are exhausted, ‘nor does failure to perfectly comply with all of the intricacies of the administrative process necessarily constitute extra-jurisdictional action by an agency.’ ” City of Richardson v. Bowman, 555 S.W.3d 670, 682 (Tex. App.—Dallas 2018, pet. denied) (quoting Appraisal Rev. Bd. of Harris Cnty. Appraisal Dist. v. O'Connor & Assocs., 267 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2008, no pet)). Here, we are unable to conclude as a matter of law that the Board lacked jurisdiction as Keen argues. See id.

Third, Keen contends that “exhaustion of futile administrative procedures is not required.” Keen cites Ogletree v. Glen Rose Independent School District, 314 S.W.3d 450, 454 (Tex. App.—Waco 2010, pet. denied), in which our sister court stated that “[f]utility is a recognized exception to the exhaustion of administrative remedies requirement,” but that “a claimant must show that it is certain that the claim will be denied on appeal” for the exception to apply. Keen points to the hearing rules adopted by the Board, which she argues were stacked against her and would have permitted a decision based on “a hearsay report from a sham investigation.” But there is nothing before us showing that the Board would have failed to consider Keen's claims or that it acted in such a manner that would preclude the Commissioner from considering her claims on appeal. See Rose, 2013 WL 3354724, at *5; see also Davison v. Plano Indep. Sch. Dist., No. 05-12-01308-CV, 2014 WL 1018212, at *7 (Tex. App.—Dallas Feb. 20, 2014, no pet.) (mem. op.) (rejecting futility argument). We conclude Keen has fallen short of showing the “certainty” of denial. See Ogletree, 314 S.W.3d at 454.

Relatedly, Keen contends that exhaustion of “inadequate” administrative remedies is not required. Because she cites no authorities to support this argument, we conclude it is inadequately briefed and thus waived. See Tex. R. App. P. 38.1(i).

Given the above, we conclude Keen has not met her burden to show her claims fall within an exception to the administrative-remedies-exhaustion requirement. See Rose, 2013 WL 3354724, at *4.

Keen's first issue argues the trial court erred in granting the plea to the jurisdiction because she has a property interest in the continuation of her employment protected by the due course of law provision of article I, § 19 of the Texas Constitution.²

The District argues that we need not address Keen's first issue because, regardless of the answer to the question she presents, Keen failed to exhaust administrative remedies. We agree. Regardless of whether the procedures of the TCNA constitute due process rights as in Grounds or are simply statutory requirements, Keen failed to appeal the Board's decision to the Commissioner as discussed above and thus failed to exhaust her administrative remedies. Therefore, we need not address Keen's first issue because its resolution is unnecessary to the final disposition of the appeal. See Tex. R. App. P. 47.1. The trial court lacked jurisdiction to consider Keen's claims for acting without authority and violating article I, § 19 of the Texas Constitution, and consequently, did not err in granting the District's plea to the jurisdiction.

B. Summary judgment

Keen's second issue addresses the trial court's summary judgment ruling. Keen argues the records she requested from the District were not protected from disclosure by § 552.103 of the government code for various reasons. She specifically argues (1) her “right to access to evidence to present in her defense” is required by article I, § 19 of the Texas Constitution ³ and Texas Education Code § 21.207 (“Hearing Under Term Contract”); (2) a school board nonrenewal hearing is not “litigation” for purposes of § 552.103 of the government code; (3) the District waived the litigation exception by initiating the nonrenewal of Keen's contract; (4) information relating to the Board's April 27 approval of contracts is not subject to the litigation exception; (5) there was no nonrenewal hearing pending when Keen made her requests on May 10 and 23; and (6) Keen's counsel's statement regarding a possible Title VII suit did not constitute “anticipated litigation” or, alternatively, such claim was waived by the District.

1. Standard of review

We review a summary judgment de novo. See Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. See 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

A traditional summary judgment motion may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). To defeat a plaintiff's cause of action on a traditional motion for summary judgment, a defendant must either conclusively negate at least one element of the plaintiff's case or conclusively establish each element of an affirmative defense. See Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.—Dallas 2010, no pet.). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. See Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 576 (Tex. App.—Dallas 2007, no pet.).

Whether information is subject to disclosure pursuant to an open records request and whether an exception to disclosure applies to the information are questions of law involving statutory construction that we review de novo. See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 357 (Tex. 2000).

2. Applicable law

Information is excepted from required public disclosure if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. Tex. Gov't Code § 552.103(a). Under this provision, information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure “only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.” Id. § 552.103(c).

We interpret these provisions as excepting: (1) information relating to litigation, (2) that is either pending or reasonably anticipated. See Univ. of Tex. L. Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.).

A requestor may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to supply public information. See Tex. Gov't Code § 552.321(a).

3. Analysis

We first consider whether the nonrenewal hearing constitutes “litigation” for purposes of § 552.103. In construing statutes our primary objective is to give effect to the Legislature's intent. Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results. Id. We note that the OAG “has long held ‘litigation,’ for purposes of section 552.103, includes ‘contested cases’ conducted in a quasi-judicial forum.” See, e.g., Tex. Att'y Gen. OR2018-04390. While litigation commonly means “[t]he process of carrying on a lawsuit” or “[a] lawsuit itself,” see Litigation, Black's Law Dictionary (9th ed. 2010), it also means “a controversy involving adverse parties before an executive governmental agency having quasi-judicial powers and employing quasi-judicial procedures.” Tex. Att'y Gen. OR1982-301 (citing Webster's Third International Dictionary). Further, “[s]tatutes providing for the administrative resolution of a controversy generally provide for judicial review of the matter,” and therefore, “the dispute before an administrative agency may be moved to a judicial forum.” Id.

We agree that, for purposes of § 552.103, the nonrenewal hearing under Chapter 21 constitutes “litigation.” At the hearing before the board or the board's designee, the teacher may be represented by a representative of the teacher's choice, hear the evidence supporting the reason for nonrenewal, cross-examine adverse witnesses, and present evidence. See Tex. Educ. Code § 21.207(c). Further, a teacher who is aggrieved by a decision of a board of trustees on the nonrenewal of the teacher's term contract “may appeal to the commissioner for a review of the decision of the board of trustees,” id. § 21.209, and then either party may appeal the commissioner's decision to the district court, id. § 21.307(a).

Although the nonrenewal hearing does not provide for discovery, we cannot conclude this factor is dispositive. Whether discovery is provided for is just one factor to consider in determining whether an administrative proceeding is conducted in a quasi-judicial forum. See, e.g., Tex. Att'y Gen. OR2018-04390.

Other factors include whether the proceeding provides for evidence to be heard, factual questions to be resolved, the making of a record, and whether the proceeding is an adjudicative forum of first jurisdiction with appellate review of the resulting decision without a re-adjudication of fact questions. Id. All of these factors support a determination that the nonrenewal hearing is conducted in a quasi-judicial forum and is thus “litigation” for purposes of § 552.103. See Tex. Educ. Code §§ 21.207(b-1) (providing for creation of hearing record); 21.209 (commissioner “may not substitute the commissioner's judgment for that of the board of trustees unless the board's decision was arbitrary, capricious, unlawful, or not supported by substantial evidence”); 21.301(c) (generally, “the commissioner shall consider the appeal solely on the basis of the local record and may not consider any additional evidence or issue”); 21.307 (in judicial appeal from commissioner's decision, the district court “shall, under the substantial evidence rule, review the evidence on the evidentiary record made at the local level and any evidence taken by the commissioner but may not take additional evidence”).

Finally, we note that our interpretation of “litigation” in § 552.103 is consistent with the Supreme Court's reasoning in State v. Thomas, 766 S.W.2d 217 (Tex. 1989) (op. on reh'g). In that case, the Attorney General, based upon article V, § 22 of the Texas Constitution,⁴ sought to intervene in an electric utility rate case before the Public Utility Commission. Id. at 218. The Commission argued article V, § 22 permitted action only “in the courts” and not in an agency. Id. at 219. The Supreme Court rejected that argument because a “ratemaking proceeding is a ‘contested case’ within the meaning of the Administrative Procedure and Texas Register Act and, as such, is a formal adjudicative proceeding in which the agency performs in a quasi-judicial function.” Id. The Court reasoned that, in creating the PUC, “the legislature effectively shifted the forum of original jurisdiction for challenging a utility's rates from the district courts to the agency.” Id. Further, “[m]any disputes that were once litigated in the courts are now, for all practical purposes, litigated in the agencies,” which is “where the evidence is heard and the record is made,” so that “[b]y the time most such disputes reach the courts, they present themselves in a posture more akin to appellate review.” Id. Thus, the Court concluded that article V, § 22 uses the term “courts” in a generic sense “to refer to an adjudicative forum.” Id.

For the reasons explained above, such is the case too with respect to proceedings under the TCNA. Consequently, we conclude the nonrenewal hearing constitutes “litigation” for purposes of § 552.103.

We now turn to consider whether the District “reasonably anticipated” a nonrenewal hearing, which had not been formally requested as of the date of Keen's first two requests for information. Keen's first public information request was made May 10, 2023. As of the date of this request, the record before us reflects the following facts: on May 1, Keen was placed on administrative leave based on a complaint made to the TEA; on May 5, Keen “sent formal acceptance of employment” for the next school year; on May 10, counsel for the District informed counsel for Keen her acceptance was not effective because no contract had been offered and also informed counsel the Superintendent would recommend proposed nonrenewal of Keen's employment contract at the Board meeting to be held later that evening; on May 10, counsel for Keen informed counsel for the District that Keen believed the Board had already authorized her new contract and stated that he did not “really have anything to discuss with [another lawyer representing the District] that [he] didn't express in [their] first conversation,” but that he was available “in the event the District would like to work this out and avoid further conflict”; in the same email, counsel informed the District that Keen was “retaining separate counsel to pursue a Title VII suit”; and on May 10, the Board voted to propose nonrenewal of Keen's term employment contract.

We conclude the District could have reasonably anticipated Keen would request a nonrenewal hearing and further proceedings. In particular, as of May 10, the Board had voted to propose nonrenewal of Keen's term employment contract, and Keen's fundamental rejection of the Board's course of action was apparent. Keen had hired an attorney, who had requested documents pertaining to the nonrenewal of her employment contract. See Univ. of Tex. L. Sch., 958 S.W.2d at 482 (considering nature of the public information request itself in determining whether litigation was reasonably anticipated). Further, counsel for Keen communicated that the onus was on the District to “avoid further conflict.” Given these circumstances, the District could have “reasonably anticipated” Keen would request a nonrenewal hearing as of the dates of the May 10 and 23 information requests. And Keen had already requested the hearing by the third request.

In reaching this conclusion, we reject Keen's arguments to the contrary. First, Keen contends her “right to access to evidence to present in her defense” is guaranteed by article I, § 19 of the Texas Constitution and Texas Education Code § 21.207. In support, Keen directs us to two cases that do not support her argument but rather stand for the proposition that due process requires notice, hearing, and an opportunity to present claims, all of which Keen received here. See Sw. Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 437 (Tex. 2000); United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 125 (Tex. App.—San Antonio 1995, writ denied) (op. on reh'g). Our appellate rules require an appellant's brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(i). Because the two authorities cited by Keen neither support her constitutional argument nor “enable us to assess and answer the constitutional question raised,” see Colo. Stop, Inc. v. Mohamad, No. 05-23-00895-CV, 2025 WL 1632163, at *2 (Tex. App.—Dallas June 9, 2025, no pet.) (mem. op.), we conclude this argument is inadequately briefed.

Keen also argues that the District waived the litigation exception by initiating the nonrenewal of Keen's contract because “the District placed information related to its action in issue in a hearing.” In keeping with general waiver law, in determining whether a governmental unit waives its right to assert the litigation exception, we look to see if the party “intentionally relinquished a known right or intentionally acted in a manner inconsistent with claiming that right.” Dall. Area Rapid Transit v. Dall. Morning News, 4 S.W.3d 469, 475 (Tex. App.—Dallas 1999, no pet.). We do not agree that the District “intentionally relinquished a known right or intentionally acted in a manner inconsistent with claiming that right” merely by initiating nonrenewal of Keen's contract.

Keen further argues that information relating to the Board's April 27 approval of contracts is not subject to the litigation exception. She points us to Tex. Gov't Code § 552.022(a)(2) (providing that, among other things, the names and dates of employment of each employee and officer of a governmental body is public information and not excepted from required disclosure unless made confidential) and Tex. Att'y Gen OR1979-221 (finding “minutes of a school board to be public under the Open Records Act” and expressing “doubt that the [litigation] exception could ever be applied to except” such records). But Keen requested neither the names and dates of employees of the District nor minutes of the board meeting. She requested a “personnel list or other document presented to the Board of Trustees listing the names of employees concerning whom action was taken by the Board at its April 27 meeting, together with meta data showing the dates of creation and/or modification of such list or document.” Accordingly, we reject this complaint.

Because we conclude the District could have reasonably anticipated the nonrenewal hearing, we need not address Keen's complaints relating to the District's alternative arguments based on Keen's counsel's statement that Keen was pursuing a Title VII suit. See Tex. R. App. P. 47.1.

Given all of the above, we conclude the District was entitled to judgment as a matter of law as to Keen's mandamus action, and the trial court did not err in granting the District's motion for summary judgment. We overrule Keen's second issue.

III. Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   856 S.W.2d 417 (Tex. 1993).

2.   Keen relies on Grounds, 856 S.W.2d at 418–20, where the Supreme Court concluded that, because the TCNA “requires preestablished reasons for nonrenewal of teaching contracts” and thus “limits a school district's discretion in decisions not to renew teachers’ term contracts,” “the TCNA creates a property interest in term-contract renewal for teachers, warranting due process protection.” The District responds that Grounds has been superseded by the legislature's 1995 adoption of education code § 21.204(e), which provides that “[a] teacher does not have a property interest in a contract beyond its term.” Tex. Educ. Code § 21.204(e); see also Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29 (Tex. App.—Austin 1999, no pet.) (“The language in section 21.204(e) supersedes the holding in Grounds.”).

3.   “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

4.   “The Attorney General shall ․ from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.”

Opinion by Justice Lee