TITLE education

Part II. Texas Education Agency

Chapter 97. Planning and Accreditation

Subchapter A. Acreditation

19 TAC §97.6, §97.7

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Education Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Education Agency (TEA) proposes the repeal of §97.6 and §97.7, concerning home-rule school district charters and open-enrollment charter schools. The sections establish procedures for contested cases under the Texas Education Code, Chapter 12. A new Chapter 100 that specifies procedures for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school and placing on probation or revoking a home-rule school district charter is proposed in a separate submission.

Texas Education Code, §12.028 and §12.116, authorizes the State Board of Education to adopt by rule procedures for taking adverse action on home-rule school district charters and open-enrollment charter schools. These procedures, currently located in 19 TAC §97.6 and §97.7, have been modified and relocated in proposed new §100.101 and §100.201, in anticipation of additional rules on charter schools.

The TEA is also proposing new 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, which is filed in a separate submission. The proposed new rules would create general rules for contested cases under the Texas Government Code, Chapter 2001.

Pat Pringle, associate commissioner for school finance and support, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals.

Mr. Pringle and Criss Cloudt, associate commissioner for policy planning and research, have determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be procedures that enable the State Board of Education to act more efficiently and effectively when taking action on a home-rule school district charter and the charter of an open-enrollment charter school under the Texas Education Code, §12.027 and §12.115. There will not be an effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals.

Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tmail.tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register .

The repeals are proposed under the Texas Education Code, §§7.102(c)(8) and (9), 12.028, and 12.116, which authorizes the State Board of Education to adopt by rule procedures to be used for placing on probation or revoking a home-rule school district charter and for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school.

The repeals implement the Texas Education Code, §§7.102(c)(8) and (9), 12.028, and 12.116.

§97.6.Placing on Probation or Revoking a Home-Rule School District Charter.

§97.7.Placing on Probation or Revoking an Open-Enrollment Charter School.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 19, 1999.

Associate Commissioner, Policy Planning and Research

Texas Education Agency

Earliest possible date of adoption: August 29, 1999

For further information, please call: (512) 463-9701

Chapter 100. Charters

The Texas Education Agency (TEA) proposes new §100.101 and §100.201, concerning charters. The new sections establish definitions, requirements, and procedures relating to open-enrollment charter schools and home- rule school district charters. The new sections specify procedures for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school and placing on probation or revoking a home- rule school district charter.

Texas Education Code, §12.028 and §12.116, authorizes the State Board of Education to adopt by rule procedures for taking adverse action on home-rule school district charters and open-enrollment charter schools. These procedures are located in current 19 TAC §97.6 and §97.7. In anticipation of additional rules on charter schools, language in §97.6 and §97.7 has been modified and relocated in proposed new §100.101 and 100.201. Some of the modifications reflected in proposed new §100.101 and §100.201 include: (1) revising timelines for contested cases involving charter schools; (2) deleting references to a hearing on the recommendation of the review team; (3) substituting a hearing on the decision of the State Board of Education to take the proposed action; and (4) making other conforming changes.

The TEA is also proposing the repeal of 19 TAC §97.6 and §97.7, which is filed in a separate submission. In addition, the TEA is proposing new 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, which is filed in a separate submission. The proposed new rules would create general rules for contested cases under the Texas Government Code, Chapter 2001.

Pat Pringle, associate commissioner for school finance and support, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the new sections.

Mr. Pringle and Criss Cloudt, associate commissioner for policy planning and research, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be procedures that enable the State Board of Education to act more efficiently and effectively when taking action on a home-rule school district charter and the charter of an open-enrollment charter school under the Texas Education Code, §12.027 and §12.115. There will not be an effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed new sections.

Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tmail.tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register .

Subchapter A. Open-Enrollment Charter Schools

19 TAC §100.101

The new section is proposed under the Texas Education Code, §7.102(c)(8) and (9), and §12.116, which authorizes the State Board of Education to adopt procedures to be used for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school.

The new section implements the Texas Education Code, §7.102(c)(8) and (9), and §12.116.

§100.101.Adverse Action on an Open-Enrollment Charter.

The State Board of Education (SBOE) may modify, place on probation, revoke, or deny renewal of an open-enrollment charter granted to a charter holder if the SBOE determines the person operating the school:

committed a material violation of the charter;

failed to satisfy generally accepted accounting standards of fiscal management; or

failed to comply with the requirements of the Texas Education Code (TEC), Chapter 12, Subchapter D, or other applicable law or rule.

The "person operating the charter school" shall mean the chief executive officer of the charter holder under TEC, §12.101. The chief executive officer is responsible under this subchapter for the acts of any agent or employee of the charter school or the charter holder.

The recommendation to modify, place on probation, revoke, or deny renewal of the charter of an open- enrollment charter school shall be made by the Texas Education Agency (TEA) in accordance with 19 TAC §157.11 of this title (relating to Notice of Intent), no fewer than 60 calendar days prior to the meeting of the SBOE at which the recommendation will be considered.

The TEA shall notify the person operating the school before modifying, placing on probation, revoking, or denying renewal of the school's charter. The notice shall clearly specify the following, either in the notice or by reference to other documents included with the notice:

the action sought and the grounds for taking such action;

a statement of the legal authority and jurisdiction under which the hearing will be held;

a reference to the particular sections of the statutes and rules involved; and

the date, time, and place for a hearing on the action sought, which shall be provided to the person operating the open-enrollment charter school and to parents and guardians of students in the school, if requested in accordance with subsection (f) of this section.

Notice served on the person operating the school shall be notice to parents and guardians of students in the school.

Within ten calendar days after receiving the notice, the person operating the school may request a hearing and submit a written response containing specific answers to each of the findings included in the notice. If a request for hearing and a written response are not submitted within ten calendar days, the recommendations of the TEA on the proposed action shall be submitted to the SBOE for action.

A hearing held under this section shall be open to the public and must be held at the facility at which the program is operated unless a different location is agreed to by the person operating the school. The hearing shall be held not fewer than ten calendar days from the date the school receives notice and shall be governed by Chapter 157, Subchapter A, of this title (relating to General Provisions for Hearings Before the State Board of Education).

The administrative law judge may order that testimony and evidence from parents and guardians of students at the school be taken via prefiled written testimony under the Texas Government Code, §2001.085.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 19, 1999.

Associate Commissioner, Policy Planning and Research

Texas Education Agency

Earliest possible date of adoption: August 29, 1999

For further information, please call: (512) 463-9701

Subchapter B. Home-Rule School District Charters

19 TAC §100.201

The new section is proposed under the Texas Education Code, §7.102(c)(8) and (9), and §12.028, which authorizes the State Board of Education to adopt by rule procedures to be used for placing on probation or revoking a home-rule school district charter.

The new section implements the Texas Education Code, §7.102(c)(8) and (9), and §12.028.

§100.201.Adverse Action on a Home-Rule School District Charter.

The State Board of Education (SBOE) may place on probation or revoke a home-rule school district charter if the SBOE determines that the district:

committed a material violation of the charter;

failed to satisfy generally accepted accounting standards of fiscal management; or

failed to comply with the requirements of the Texas Education Code (TEC), Chapter 12, Subchapter B, or other applicable law or rule.

The recommendation to place on probation or revoke the charter of a home-rule school district charter shall be made by the Texas Education Agency (TEA) in accordance with 19 TAC §157.11 of this title (relating to Notice of Intent), no fewer than 60 calendar days prior to the meeting of the SBOE at which the recommendation will be considered.

The TEA shall notify the district before placing on probation or revoking the charter. The notice shall clearly specify the following, either in the notice or by reference to other documents included with the notice:

the action sought and the grounds for taking such action;

a statement of the legal authority and jurisdiction under which the hearing will be held;

a reference to the particular sections of the statutes and rules involved; and

the date, time, and place for a hearing on the action sought, which shall be provided to the district and to parents and guardians of district students, if requested in accordance with subsection (e) of this section.

Notice served on the district shall be notice to parents and guardians of students in the district.

Within ten calendar days after receiving the notice, the district may request a hearing and submit a written response containing specific answers to each of the findings included in the notice. If a request for hearing and a written response are not submitted within ten calendar days, the recommendations of the TEA on the proposed action shall be submitted to the SBOE for action.

A hearing held under this section shall be open to the public and must be held at the district unless a different location is agreed to by the district. The hearing shall be held not fewer than ten calendar days from the date the district receives notice and shall be governed by Chapter 157, Subchapter A, of this title (relating to General Provisions for Hearings Before the State Board of Education).

The administrative law judge may order that testimony and evidence from parents and guardians of students at the charter school be taken via prefiled written testimony under the Texas Government Code, §2001.085.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 19, 1999.

Associate Commissioner, Policy Planning and Research

Texas Education Agency

Earliest possible date of adoption: August 29, 1999

For further information, please call: (512) 463-9701

Chapter 101. Assessment

19 TAC §101.3

The Texas Education Agency (TEA) proposes an amendment to §101.3, concerning student assessment. The section establishes definitions, requirements, and procedures relating to testing accommodations and exemptions.

The proposed amendment would specify that limited English proficient (LEP) students will be required to take reading proficiency tests in English (RPTE), designed specifically for second language learners. Beginning in the spring of 2000, the RPTE will be administered to LEP students in accordance with Senate Bill (SB) 103, 76th Texas Legislature, 1999. In addition, recently passed legislation would require additional modifications to §101.3.

Current rule allows LEP students certain testing options other than the English-version Texas Assessment for Academic Skills (TAAS) for a period not to exceed three years. During this period, if the language proficiency assessment committee (LPAC) determines that the TAAS in English is not yet appropriate, a student may take the TAAS in Spanish or be exempted and administered a locally chosen alternative assessment from a state-approved list. Following the three-year period, students are required to take the TAAS in English. SB 103, 76th Texas Legislature, 1999, however, limits exemptions for LEP students and specifies the administration of Spanish-version tests and the RPTE. The RPTE has been designed specifically for LEP students and would provide a statewide, standardized measure of how well the students are developing the ability to read in English. Implementation of the RPTE would ensure that no LEP student is excluded from statewide assessment on the basis of limited English proficiency.

The proposed amendment to §101.3(e) requires all LEP students to participate annually in the statewide assessment system and requires school districts to adhere to additional administrative procedures that the TEA may establish to implement testing. The proposed amendment to §101.3(f) requires that all LEP students in Grades 3- 12 take the RPTE annually until they demonstrate proficiency in reading in English.

Section 101.3(g) is amended to: (1) define the term "unschooled;" (2) allow unschooled recent immigrants whose primary language is Spanish not to take the TAAS in English or Spanish during their first school year in the U.S.; (3) require LEP students in Grades 3-6 whose primary language is Spanish, other than unschooled recent immigrants enrolled for less than one year, to take the TAAS in English or Spanish; (4) require LEP students in Grades 7-8 whose primary language is Spanish, other than unschooled recent immigrants enrolled for less than one year, to take the TAAS in English; (5) allow LEP students in Grades 3-8 whose primary language is other than Spanish not to take the TAAS during their first three years in the U.S., if the tests are not appropriate measures of their academic progress; and (6) eliminate the current requirement to administer alternative assessments to exempted LEP students. Section 101.3(g) maintains the one-time postponement of the initial administration of the exit level tests for recent immigrants.

The proposed amendment to §101.3(h) specifies that LEP students with parental denials shall take the TAAS in English annually and §101.3(i) authorizes the TEA to grant district requests to administer the Spanish TAAS to non-LEP students who participate in two-way bilingual programs.

It is anticipated that the RPTE would provide useful data on the current reading levels of LEP students and on their growth in becoming proficient readers of English, which would further the understanding of the educational needs of LEP students. It is also anticipated that as a result of the amended rule, fewer than 5% of the LEP students at tested grades would be eligible for exemption on the basis of limited English proficiency.

Felipe Alanis, Deputy Commissioner for Programs and Instruction, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. The existing agency contract with a private organization for the RPTE will not be impacted by the proposed amendment since it is set at a fixed price, as long as there are no major changes in the number of students tested.

Mr. Alanis and Criss Cloudt, Associate Commissioner for Policy Planning and Research, have determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be including the performance of more Texas public school students in the TAAS data and in the school accountability data reported to the public. Also, the RPTE will make it possible for parents, educators, and policy makers to monitor the extent to which LEP students are acquiring the English reading skills necessary for academic achievement. There will not be an effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tmail.tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register .

The amendment is proposed under the Texas Education Code, §§39.022, 39.023, and 39.027, as amended by Senate Bill 103, 76th Texas Legislature, 1999, which authorizes the State Board of Education to create and implement a statewide assessment program.

The proposed amendment implements the Texas Education Code, §§39.022, 39.023, and 39.027, as amended by Senate Bill 103, 76th Texas Legislature, 1999.

§101.3. Testing Accommodations and Exemptions.

A student of limited English proficiency, as defined by the TEC, Chapter 29, Subchapter B, shall participate in the administration of the criterion-referenced tests as outlined in subsections (f)-(i) of this section. School districts shall follow all Texas Education Agency procedures necessary for the administration of the criterion-referenced tests.

A student of limited English proficiency, as defined by the TEC, Chapter 29, Subchapter B, shall take the criterion-referenced test unless the student's language proficiency assessment committee (LPAC) determines that it is an inappropriate measure of the student's academic progress based on the student's limited language proficiency.]

In Grades 3-12, the limited English proficient (LEP) student shall take the reading proficiency tests in English until the student has demonstrated English reading proficiency and is being administered the assessment of academic skills in English.

The LPAC shall select one of the options outlined in paragraphs (1)-(3) of this subsection for each limited English proficient (LEP) student. The criteria for this determination shall be documented in the student's permanent record file and shall conform with required procedures for identification of a limited English proficient student. Any combination of the options outlined in paragraphs (1) and (2) of this subsection shall not exceed three consecutive years. Any combination of using the Spanish version criterion- referenced test and exempting for limited English proficiency shall not total more than three years. A school district shall make a reasonable effort to determine a student's previous exemption and testing history. For students who have been enrolled continuously in school beginning at least in the first grade, the LPAC is discouraged from selecting a combination of the options outlined in paragraphs (1) and (2) of this subsection for more than two years.]

~~The LEP student may be exempted from the criterion-referenced test.]~~

~~The LEP student may be administered the Spanish version criterion-referenced test.]~~

~~The LEP student may be administered the English version criterion-referenced test.]~~

In accordance with the TEC, §39.023(l) and §39.027(a)(3), the language proficiency assessment committee (LPAC) shall select the appropriate assessment for each LEP student as outlined in paragraphs (1)-(3) of this subsection. The criteria for the selection of tests shall be documented in the student's permanent record file. A school district shall make a reasonable effort to determine a student's previous testing history.

In Grades 3-6, the LEP student whose primary language is Spanish shall take the assessment of academic skills in English or Spanish based on which assessment is the most appropriate measure of the student's academic progress. In Grades 7-8, the LEP student whose primary language is Spanish shall take the assessment of academic skills in English. However, a recent unschooled immigrant whose primary language is Spanish is not required to take the assessment of academic skills in either language if the student has been enrolled in U.S. schools for less than one year. For the purposes of this paragraph, the term "unschooled" means to be significantly deficient in cognitive and academic development resulting from lack of school enrollment, as determined by the LPAC.

In Grades 3-8, the LEP student whose primary language is other than Spanish shall not be required to take the assessment of academic skills in English during the student's first three years of enrollment in U.S. schools, if the LPAC determines that the student's academic progress cannot be validly and reliably measured by the English-version assessment.

The LEP student shall be required to take the exit level assessment of academic skills and the end- of-course tests. However, the LEP student who is a recent immigrant may postpone only one time the initial administration of the exit level test. The term "recent immigrant" in this paragraph is defined as an immigrant entering the United States no more than 12 months before the administration of the exit level test from which the postponement is sought.

~~Each exempted student of limited English proficiency shall participate in an appropriate alternative assessment, as determined by the student's LPAC.]~~

The LEP student whose parent or guardian has declined the services required by the TEC, Chapter 29, Subchapter B, shall take the assessment of academic skills in English and the reading proficiency tests in English.

No student shall be exempted from an exit level or end-of-course test based on limited English proficiency. However, a student who is a recent immigrant with limited English proficiency may postpone only one time the initial administration of the exit level test. The term "recent immigrant" is defined as an immigrant entering the United States no more than 12 months before the administration of the exit level test from which the postponement is sought.]

Upon written request, the commissioner of education may annually grant each district the authority to administer the assessment of academic skills in Spanish to a student who is not identified as limited English proficient but who participates in a two-way bilingual program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 19, 1999.

Associate Commissioner, Policy Planning and Research

Texas Education Agency

Earliest possible date of adoption: August 29, 1999

For further information, please call: (512) 463-9701

Chapter 157. Hearings and Appeals

Subchapter A. General Provisions for Hearings Before the State Board of Education

19 TAC §§157.1-157.20

The Texas Education Agency (TEA) proposes new §§157.1-157.20, concerning hearings and appeals. The new sections establish definitions, requirements, and procedures relating to hearings before the State Board of Education. The new sections would create general rules for contested cases under the Texas Government Code, Chapter 2001, conducted by the State Board of Education (SBOE) or a hearing officer appointed by the SBOE.

Proposed new 19 TAC §§157.1-157.20 would provide general rules needed to govern hearings held on matters such as textbooks and charter schools, and may apply to other contested cases held by the SBOE under the Administrative Procedure Act. The new rules would provide needed guidance to the administrative law judge in conducting hearings before the SBOE.

The TEA is also proposing new 19 TAC §100.101 and §100.201, which specify procedures for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school and placing on probation or revoking a home-rule school district charter. The proposed new rules are filed in a separate submission. In addition, the TEA is proposing the repeal of 19 TAC §97.6 and §97.7, which is filed in a separate submission. Language in §97.6 and §97.7 has been modified and relocated in proposed new §100.101 and §100.201, in anticipation of additional rules on charter schools.

Pat Pringle, Associate Commissioner for School Finance and Support, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the new sections.

Mr. Pringle and Criss Cloudt, Associate Commissioner for Policy Planning and Research, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be procedures that enable the State Board of Education to act more efficiently and effectively when conducting hearings on contested cases. There will not be an effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed new sections.

Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tmail.tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register .

The new sections are proposed under the Texas Education Code, §12.028, which authorizes the State Board of Education to adopt by rule procedures to be used for placing on probation or revoking a home-rule school district charter; §12.116, which authorizes the State Board of Education to adopt procedures to be used for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school; and §31.151, which authorizes the State Board of Education to adopt rules for hearings regarding penalties imposed under this section; and the Texas Government Code, §2001.004, which authorizes state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The new sections implement the Texas Education Code, §§12.028, 12.116, and 31.151, and the Texas Government Code, §2001.004.

§157.1. Scope and Purpose.

This subchapter shall govern the proceedings in all contested cases before the State Board of Education (SBOE) where:

notice and opportunity for hearing is expressly required by other law; and

the hearing is not exempted from the provisions of the Administrative Procedure Act (APA) (Texas Government Code, Chapter 2001).

This subchapter adopts for all purposes the provisions of the APA, the Texas Rules of Civil Evidence, and the Texas Rules of Civil Procedure. The Rules of Civil Evidence and Civil Procedure will prevail except as modified by the APA and by these rules. The provisions of this subchapter shall govern the procedure for the administration of all contested cases before the SBOE except where modified by a more specific rule relating to specific contested cases before the SBOE.

§157.2. Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

Agency - The Texas Education Agency.

Commissioner - The state commissioner of education.

Contested case - A proceeding in which legal rights, duties, or privileges of a party are to be determined by the commissioner after opportunity for an adjudicative hearing.

Disqualification - When an administrative law judge, in his or her discretion, permanently forbids a party representative from any further participation in an adjudicative proceeding.

Exclusion - When an administrative law judge, in his or her discretion, ejects a person temporarily from an adjudicative proceeding.

Administrative law judge - A member or employee of the agency or other individual assigned to issue a proposal for decision, to render a decision, or to make findings of fact or conclusions of law in a case.

Party representative - A lawyer or non-lawyer who acts on behalf of himself or herself, or on behalf of another person during an adjudicative proceeding.

§157.3. Administrative Law Judge.

The commissioner may designate and appoint an administrative law judge to act on behalf of the State Board of Education in conducting any hearing or proceeding held under this subchapter and to prepare proposals for decision on those hearings.

The administrative law judge has the authority to administer oaths; call and examine witnesses; issue subpoenas; make rulings on motions, admissibility of evidence, and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires.

If the administrative law judge is unable to continue presiding over a case at any time before the final decision, another administrative law judge will be appointed who shall perform any remaining function without the necessity of repeating any previous proceedings.

§157.4. Classification of Parties.

Parties are designated as follows.

Petitioner - the party who seeks State Board of Education (SBOE) action.

Respondent - any party against whom the petitioner seeks SBOE action.

Intervenor - a person who, upon showing a justiciable interest, is permitted to become a party to a proceeding.

Regardless of errors concerning designations in the pleadings, parties shall be accorded their true status in the appeal.

§157.5. Appearances.

Any party may appear on his or her own behalf. Party representatives are held to the same procedural and substantive standards as attorneys authorized to practice law.

§157.6. Conduct and Decorum.

Standards of conduct during adjudicative proceedings.

The administrative law judge and the party representative should refer to the Texas Disciplinary Rules of Professional Conduct for guidance, regardless of whether all participants are licensed attorneys (Texas State Bar Rules, Article 10, §9).

Party representatives shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness.

A party representative shall use these rules for legitimate purposes and not for dilatory purposes or to harass or intimidate other participants.

Exclusion or disqualification of party representatives.

Contemptuous conduct. An administrative law judge may exclude or disqualify a party representative from participating in a hearing for contemptuous conduct. The administrative law judge shall warn the party representative prior to exclusion, if possible. Contemptuous conduct includes, but is not limited to:

actual or threatened physical assault of any participant or spectator;

knowingly or recklessly making a false statement of material fact or law to the administrative law judge;

counseling or assisting a witness to testify falsely;

knowingly offering or using false evidence;

filing a frivolous or knowingly false pleading or other document, or filing a frivolous or knowingly false defense. A frivolous filing is one:

primarily for the purpose of harassing or maliciously injuring another person; or

for which the party representative is unable to make a good faith argument consistent with existing law, or a good faith argument for an extension, modification, or reversal of existing law;

paying, offering to pay, or acquiescing in a payment or offer of payment to a witness based on the content of the witness' testimony or the outcome of the proceeding;

continually violating an established rule of agency procedure or of evidence;

raising superfluous objections or otherwise unreasonably delaying the proceeding or increasing the costs or other burdens of the proceeding;

misrepresenting, mischaracterizing, or misquoting facts or law to gain unfair advantage;

except as otherwise permitted by law, communicating or causing someone else to communicate with the administrative law judge without the knowledge and consent of opposing party representatives in order to gain unfair advantage or to influence the proceeding;

using vulgar or abusive language during the proceeding; and

engaging in disruptive conduct.

Conflicts of interest. An administrative law judge may disqualify a party representative from participating in a proceeding if the administrative law judge decides that the party representative has a conflict of interest. Conflicts of interest can be, but are not limited to, the following:

when a party representative who previously acted as a public officer or employee on a matter later attempts to represent a private client on the same matter, unless the appropriate government agency consents;

when a party representative who serves as a public officer or employee on a matter negotiates for private employment with a party or party representative involved in the same matter;

when a party representative who serves as a public officer or employee participates in a matter involving a former private client whom he or she represented on the same matter, unless no one may legally act in the attorney's stead;

when an attorney engages in the practice of law while under suspension or in violation of a disciplinary order or judgment; and

any other conflict of interest that, in the opinion of the administrative law judge, offends the dignity and decorum of the proceeding.

Procedures for excluding or disqualifying a party representative.

Notice. The administrative law judge shall state the specific reason for excluding or disqualifying a party representative on the record or in a written order. The administrative law judge shall notify the affected party and party representative of the exclusion or disqualification personally or by certified mail.

Reasonable time for substitution. After the administrative law judge has excluded or disqualified a party representative, the affected party or party representative shall have reasonable time to appeal to the commissioner. If the commissioner sustains the exclusion or disqualification, the party shall have a reasonable time to substitute a new representative. In determining a reasonable time, the administrative law judge shall consider the right of opposing parties to have the proceeding resolved without undue delay. The administrative law judge may therefore align the affected party with another party in interest instead of permitting a substitution.

Appeal to the commissioner. A party or party representative may appeal the exclusion (if it is for a period of more than eight hours) or disqualification to the commissioner. The motion shall be filed with the commissioner within two working days after actual notification of the exclusion or disqualification. If the commissioner does not act within two days after the motion is filed, the motion is overruled by operation of law. The commissioner may, however, extend the time for taking action on the motion.

No further participation. After being disqualified from a proceeding, a party representative may not provide further assistance, either directly or indirectly, to any party with regard to the proceeding, except to the extent reasonably necessary to appeal to the commissioner and to complete the withdrawal and substitution of a new party representative.

No recusal. The exclusion or disqualification of a party representative by an administrative law judge is not a ground for recusal of the administrative law judge in the same or any subsequent proceeding.

§157.7. Classification of Pleadings.

Pleadings filed with the State Board of Education shall include, but not be limited to, petitions, answers, replies, exceptions, and motions. Regardless of any error in its designation, the pleading shall be accorded its true status in the contested case in which it is filed.

§157.8. Form of Documents.

All pleadings, briefs, and exhibits shall be signed by the party representative and legibly handwritten, typewritten, or printed on paper 8 l/2 inches wide by 11 inches long.

§157.9. Service of Documents.

Every pleading, plea, or motion, filed with the agency's hearings and appeals division, shall be served by delivering a copy to all party representatives of record either in person or by agent or by courier receipted delivery, to the party's current address of record, or by facsimile to the recipient's current telecopier number of record. All party representatives shall be served by the same method as the document was filed with the agency's hearings and appeals division. Service by facsimile may be substituted for personal service.

All other communications not specified in §157.7 of this title (relating to Classification of Pleadings) filed with the agency's hearings and appeals division may be served by first class mail.

Service by facsimile completed after 5:00 p.m. (Central Time) of the recipient shall be deemed served on the following day.

The party representative shall certify to the administrative law judge compliance with this rule in writing over the signature of the party representative on the filed instrument.

§157.10. Filing of Documents.

Documents for consideration by the State Board of Education (SBOE) shall be filed with the agency's hearings and appeals division, not directly with the SBOE, any of its members, or the commissioner. Any document shall be deemed filed with the SBOE only when actually received by the designated docket clerk for the hearings and appeals division or the assigned administrative law judge.

Facsimile transmission of pleadings by telecopier to the agency's hearings and appeals division, in proper form, containing a facsimile of the signature of the party representative filing the pleading, constitutes filing. Parties shall not mail a duplicate of the transmitted document. Filing by facsimile completed after 5:00 p.m. (Central Time) shall be deemed filed on the following business day.

The mailbox rule concerning service of pleadings and documents is not applicable in proceedings brought under this subchapter.

§157.11. Notice of Intent.

If notice and opportunity for hearing is expressly required by other law, the petitioner shall provide written notice to the respondent of his or her intent to seek State Board of Education (SBOE) action not fewer than 60 days prior to the meeting of the SBOE at which the recommendation is to be considered.

The notice of intent shall clearly specify the following, either in the notice or by reference to other documents included with the notice:

a statement of the time, place, and nature of the hearing, which will be held not fewer than 25 calendar days after the petitioner receives notice of the proposed action;

a statement of the legal authority and jurisdiction under which the hearing will be held;

a reference to the particular sections of the statutes and rules involved; and

a short, plain statement of the matters asserted. If the petitioner is unable to state matters in detail at the time of the notice, the initial notice may be limited to a statement of the issues involved. On the respondent's written application filed at least five days prior to the answer date, a more definite and detailed statement shall be furnished not fewer than two days before the answer date.

The notice of intent shall be served on the respondent by facsimile, personal delivery, or overnight courier service. A certificate evidencing service shall be included in the notice. If the respondent fails to answer or appear at the hearing, the petitioner shall file with the administrative law judge on or before the hearing date evidence showing successful transmission of the facsimile or personal delivery.

The notice of intent shall be filed pursuant to 19 TAC §157.10 of this title (relating to Filing of Documents) and distributed by the agency's hearings and appeals division to the SBOE.

§157.12. Answer and Request for Hearing.

The respondent may request a hearing within ten calendar days after receiving the notice of intent. The request for a hearing shall be served on the petitioner by facsimile, personal delivery, or overnight courier. If a request for hearing is not filed within ten days, the notice of proposed action shall be submitted to the State Board of Education for action.

The answer shall specifically admit or deny each allegation in the notice of intent and shall set forth all affirmative defenses.

The answer shall contain the name of the respondent or the respondent's party representative, the mailing address, telephone number during business hours, and facsimile number, if any.

All well-pled factual allegations in the notice of intent will be deemed admitted unless the respondent's answer, containing specific denials to each allegation, is filed within the time period prescribed in subsection (a) of this section. A general denial shall not be sufficient to controvert factual allegations contained in the notice of intent.

§157.13. Prehearing Conference.

In any contested case, the administrative law judge or a party may move for the setting of a prehearing conference. The administrative law judge shall direct the parties to appear, either in person or by telephone, at a specific time for a conference prior to a hearing on the merits for the purposes of considering any of the following:

the formulation or simplification of issues;

admission of certain assertions of fact or stipulations;

admission into evidence of documents or other evidence by agreement;

the taking of prefiled written testimony and evidence under the Texas Government Code, §2001.085;

ordering the parties to exchange, by a date certain, all exhibits and lists of fact and expert witnesses that each party may offer at hearing;

ordering the parties to exchange, by a date certain, all documents and other evidence relevant to the issues, even if the party intends to offer the evidence at hearing;

the procedure at the hearing on the merits;

any limitation, where possible, of the number of witnesses; and/or

such other matters as may aid in the simplification of the proceeding or the disposition of matters in controversy, including the settlement of matters in dispute.

Action taken at the conference shall be recorded in the manner directed by the administrative law judge.

§157.14. Discovery.

An administrative law judge may allow either party to take one or more depositions or to use other means of discovery before the hearing.

§157.15. Motions for Continuance.

A motion for continuance shall specifically articulate grounds constituting good cause and shall be verified and filed in writing at least three calendar days prior to the date of the hearing affected.

§157.16. Dismissal Without a Hearing; Nonsuits.

The State Board of Education or the administrative law judge may, sua sponte, or the motion of a party, dismiss an appeal without a hearing for the following reasons: compromise, unnecessary duplication of proceedings, res judicata, withdrawal, mootness, untimely filing, lack of jurisdiction, failure of a party requesting relief to set forth facts in the pleadings that would support a decision in that party's favor, failure to state a claim for which relief can be granted, or failure to prosecute.

The petitioner may nonsuit the appeal at any time.

§157.17. Order of Procedure at Hearing.

The administrative law judge shall establish reasonable time allotments for the hearing, dividing the time equally between the petitioner and respondent.

The petitioner may state briefly the nature of the claim or defense, what the petitioner expects to prove, and the relief sought. Immediately after, the respondent may make a similar statement, and the intervenors and other parties will be afforded similar rights as determined by the administrative law judge.

Evidence shall then be introduced by the petitioner. The respondent and intervenors shall have the opportunity to cross-examine each of the petitioner's witnesses.

Cross-examination is not limited solely to matters raised on direct examination. Parties are entitled to redirect and recross examination.

Unless the statement has already been made, the respondent may briefly state the nature of the claim or defense, what the respondent expects to prove, and the relief sought.

Evidence, if any, shall be introduced by the respondent. The petitioner and intervenors shall have the opportunity to cross-examine each of the respondent's witnesses.

The intervenor and other parties may make their statement, unless they have already done so, and shall introduce their evidence, if any. The petitioner and respondent shall have the opportunity to cross-examine the intervenor's witnesses.

The petitioner may present rebuttal evidence.

The parties may be allowed closing arguments.

The administrative law judge may permit deviations from this order of procedure in the discretion of the administrative law judge.

Parties shall provide four copies of each exhibit offered.

In any appeal where a party is represented by more than one attorney, a lead attorney must be designated.

§157.18. Filing of Exceptions and Replies to Proposal for Decision.

A copy of the proposal for decision in a contested case shall be simultaneously delivered by facsimile, personal service, or overnight courier to each party representative of record.

Written exceptions to the proposal for decision shall be filed with the agency's hearings and appeals division on or before the expiration of six calendar days from the date of the proposal for decision. Exceptions shall not be delivered directly to the State Board of Education (SBOE), any of its members, or the commissioner.

Written replies to exceptions shall be filed with the agency's hearings and appeals division on or before the expiration of ten calendar days from the date of the proposal for decision. Replies shall not be delivered directly to the SBOE, any of its members, or the commissioner.

All disagreements with the factual findings of the proposal for decision must be made in the parties' written exceptions to the proposal for decision or be waived.

The exceptions shall be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they relate.

§157.19. Board Consideration and Adoption of Proposal for Decision.

After the time for filing exceptions and replies to exceptions expires, the State Board of Education (SBOE) shall consider the proposal for decision and any exceptions and replies in public session, and shall enter a written decision adopting or modifying and adopting the proposed decision or remanding the matter to the administrative law judge for further proceedings.

No public testimony shall be heard on the question of adopting, modifying, or remanding the proposal for decision. No information other than the record of the proceedings conducted by the administrative law judge, the proposal for decision, and the exceptions and replies of the parties shall be heard, considered, or discussed by the SBOE concerning the contested case.

All final decisions or orders of the SBOE shall be in writing and signed by the chair, if voting in favor of the decision, or by a member selected by those voting in favor of the decision. A final decision shall include findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

The decision of the SBOE may incorporate by reference the proposal for decision in whole or in part, and such incorporation by reference may constitute compliance with subsection (c) of this section. If the decision of the SBOE modifies the proposal for decision in any respect, the SBOE shall specify the portions modified and shall set out in full the affected language as modified by the decision of the SBOE.

Party representatives shall be simultaneously notified either personally, by facsimile transmission, or overnight courier of each decision or order. For purposes of §157.20 of this title (relating to Motions for Rehearing), a party present at a meeting of the SBOE at which a public vote is taken shall be deemed notified of the decision or order on the date of the vote.

§157.20. Motions for Rehearing.

In the absence of a finding of imminent peril, a motion for rehearing is a prerequisite to a judicial appeal.

Motions for rehearing will be in conformance with the Texas Government Code, §2001.146.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 19, 1999.

Associate Commissioner, Policy Planning and Research

Texas Education Agency

Earliest possible date of adoption: August 29, 1999

For further information, please call: (512) 463-9701