TITLE 19.EDUCATION

Part 2. TEXAS EDUCATION AGENCY

Chapter 62. COMMISSIONER'S RULES CONCERNING THE EQUALIZED WEALTH LEVEL

19 TAC §62.1071

The Texas Education Agency (TEA) proposes an amendment to §62.1071, concerning the administration of wealth equalization. The section addresses wealth equalization provisions relating to identification, alternative calculation of wealth, actions and costs to equalize wealth, administrative requirements, noncompliance, excellence exemption, and property value decline. The proposed amendment would change the point at which the current year's distribution from the Available School Fund is applied to the revenues a district is allowed to obtain from its tax base.

Through 19 TAC §62.1071 the commissioner exercises rulemaking authority for implementation of TEC, Chapter 41, Equalized Wealth Level. School districts subject to the provisions of TEC, Chapter 41, have identified an alternate interpretation of statutory language regarding the wealth level to which certain school districts should be entitled. The alternate method would change the point at which the current year's distribution from the Available School Fund is applied to the revenues a district is allowed to obtain from its tax base. For districts with increases in population since 1992-1993, the proposed amendment would allow additional tax base to be retained. For those with declines in population over the same time period, there would be a decrease in the tax base the districts would be allowed to retain.

The proposed amendment to 19 TAC §62.1071 would add new subsection (d)(12) to clarify the calculation of the wealth level that applies to certain districts that had spending levels in 1992-1993 that cannot be maintained at a wealth level of $305,000 per weighted student. In particular, it clarifies the treatment of the per capita distribution in the calculation of the property wealth level to which such districts should have access.

Joe Wisnoski, deputy associate commissioner for school finance and fiscal analysis, has determined that for the first five-year period the amendment is in effect there will be fiscal implications for state and local government as a result of enforcing or administering the amendment. The proposed amendment would cause some change in the calculation of payments required under TEC, Chapter 41. The fiscal impact would vary depending on student growth patterns. The savings to local districts are losses of revenue to the state that result from the reduction in payments required under TEC, Chapter 41. For the 2003-2004 school year, the rule amendment would likely reduce revenue to the state by about $1.5 million. Impact on future years would depend on changes in growth patterns.

Mr. Wisnoski has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the section will be a clarification in rule to more accurately reflect legislative intent on the calculation of the hold harmless wealth level. 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 amendment.

Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register .

The amendment is proposed under the Texas Education Code (TEC), §41.006, which authorizes the commissioner of education to adopt rules necessary for the implementation of TEC, Chapter 41, Equalized Wealth Level.

The amendment implements the Texas Education Code, §41.002 and §41.006.

§62.1071.Administration of Wealth Equalization.

(a)-(c) (No change.)

(d) Costs to equalize wealth. For each year in which one or more options to equalize wealth is exercised, the commissioner determines the cost and the associated cycle.

(1) Districts purchasing attendance credits from the state in accordance with TEC, Chapter 41, Subchapter D (Option 3), may obtain a discount in the form of an early agreement credit in accordance with TEC, §41.098. The discount is limited to 4.0% of the computed cost of Option 3 before any discounts are applied or $80 multiplied by the number of WADA purchased, whichever is less. To qualify, the district subject to the provisions of TEC, Chapter 41, must submit a signed Option 3 agreement to the TEA with a postmark on or before September 1 of the applicable year.

(2) Districts paying to educate nonresident students from a partner district in accordance with TEC, Chapter 41, Subchapter E (Option 4), may obtain a discount in the form of an efficiency credit in accordance with TEC, §41.121. The discount is limited to 5.0% of the computed cost of Option 4 before any discounts are applied or $100 multiplied by the district's WADA for TEC, Chapter 41, whichever is less. Such discounts may be obtained for the following programs approved by the commissioner.

(A)-(H) (No change.)

(3) To the extent that a district subject to the provisions of TEC, Chapter 41, exercising Option 4 receives any service or product from an entity that receives a portion of the gain from an Option 4 arrangement, the price paid for the service or product must be at fair market value. For the purposes of this requirement, fair market value is defined as the price that would be paid by any other party had the gain from the Option 4 arrangement not been applied to reduce the cost.

(4) Each district subject to the provisions of TEC, Chapter 41, that exercises Option 4 must disclose to the commissioner any other contractual or financial arrangement between the district and its partner(s) or between the district and any other entity that directly benefits from the distribution of the gain. Any business transaction between the district subject to the provisions of TEC, Chapter 41, and other entities must be at a fair market price. A district subject to the provisions of TEC, Chapter 41, must be prepared to document that any product or service it provides as part of a financial arrangement with its partners has an open marketplace that can establish a fair market price, for example, through previous sales of the product or service to unrelated parties. A district subject to the provisions of TEC, Chapter 41, may not demand or negotiate a discounted purchase price from a partner district or other related entity for products or services provided to the district subject to the provisions of TEC, Chapter 41, that results in a lower price than would be paid by an unrelated party. A district subject to the provisions of TEC, Chapter 41, may not make an Option 4 partnership agreement subject to any separate financial agreement between the districts that is not contained in the TEC, Chapter 41, agreement.

(5) For Options 3 and 4, the projected cost estimate provided by the commissioner to the district by February of the year serves as the basis for initial payments made to the state and/or partner(s). For Option 4, payments to the partner(s) must be made between February and August of the year but otherwise may adhere to a mutually acceptable schedule.

(6) Unless a school district adopts the alternative method for calculating wealth per WADA in accordance with subsection (b) of this section, a school district subject to the provisions of wealth equalization that pays tuition to another district to educate its students may apply the cost of the tuition toward the cost of the option chosen to reduce wealth. The credit amount per student cannot be greater than the district's cost per WADA. Written documentation must be provided to the commissioner to verify the total tuition paid and the amount per student. The maximum tuition amount that may be charged by the receiving district and the state aid reduction as a result of the tuition charge is described in §61.1012 of this title (relating to Contracts and Tuition for Education Outside District).

(7) For each school district subject to the provisions of wealth equalization, transitional state aid for professional staff salaries is computed in accordance with §105.1012 of this title (relating to Additional State Aid for Professional Staff Salaries). Any amount earned by a district is deducted as a credit against the amount owed to equalize wealth. If a credit exceeds an amount owed, the difference is paid to the district. An initial payment will be made as soon as the TEA has estimated an assistance amount. A final settle-up will be made during September of the following year.

(8) Initially, the cost to equalize wealth is projected by the commissioner based on estimates of the district's WADA for TEC, Chapter 41, and expected tax collections. For districts exercising Option 3 or 4, the cost estimate may be updated by the commissioner periodically throughout the year.

(9) For Options 3 and 4, the projected cost estimate provided by the commissioner to the district by February of the year serves as the basis for initial payments made to the state and/or partner(s). For Option 4, payments to the partner(s) must be made between February and August of the year but otherwise may adhere to a mutually acceptable schedule.

(10) For Options 3 and 4, the final cost to equalize wealth is determined by the commissioner when audited tax collections and data elements for the calculation of WADA for TEC, Chapter 41, are final and available, after the close of business for the school year. The calculation of WADA for TEC, Chapter 41, incorporates final values for WADA for TEC, Chapter 42, and, when applicable, current-year data for the number of student transfers. The final WADA for TEC, Chapter 42, is based, in part, on attendance data submitted at year-end through the Public Education Information Management System (PEIMS). When applicable, student transfer data are obtained from the PEIMS fall submission. When applicable, final values for WADA for TEC, Chapter 42, and current-year fall PEIMS data for enrollment are used in the WADA-to-enrollment ratio that is applied to the number of transfers to calculate a corresponding WADA.

(11) When final costs for the fiscal year are determined for Options 3 and 4, the payments are compared to the final cost. Districts that have not sufficiently reduced wealth must remedy the shortfall in accordance with the directives of the commissioner before the end of that fiscal year. Districts that have overpaid in the process of reducing their wealth level will receive either appropriate refunds from the state and/or partner district(s) or credits against future costs.

(12) For those districts authorized to retain a tax base per student greater than the equalized wealth level as provided by TEC, §41.002(e), in the 2003-2004 school year, the resulting tax base per weighted student that the district is allowed to retain shall be the greater of two amounts. The first amount shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993 after the 1992-1993 M&O tax revenue is reduced by the 2003-2004 distributions from the available school fund. The second amount shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993, less the amount of tax base per student that would be necessary in 2003-2004 to produce the 2003-2004 distribution from the available school fund at a tax rate of $1.50. In the 2004-2005 and subsequent school years, the amount of tax base per weighted student that a district is allowed to retain under TEC, §41.002(e), shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993, less the amount of tax base per student that would be necessary in the current school year to produce the current year's distribution from the available school fund at a tax rate of $1.50.

(e)-(h) (No change.)

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 February 2, 2004.

TRD-200400647

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 475-1497

Chapter 157. HEARINGS AND APPEALS

Subchapter AA. GENERAL PROVISIONS FOR HEARINGS BEFORE THE COMMISSIONER OF EDUCATION

The Texas Education Agency (TEA) proposes amendments to §§157.1041-157.1048 and 157.1051-157.1057; the repeal of §§157.1049-157.1050 and 157.1058-157.1060; and new §§157.1049-157.1050 and 157.1058-157.1061, concerning hearings and appeals. The sections address general provisions for hearings before the commissioner of education. The proposed amendments result from the agency's rule review conducted in accordance with Texas Government Code, §2001.039. The proposed amendments, repeals, and new sections delete a number of obsolete provisions and implement new procedures for employment hearings under Texas Education Code (TEC), Chapter 21, and for hearings under the commissioner's general jurisdiction under TEC, §7.057.

The rules in 19 TAC Chapter 157, Subchapter AA, were last adopted to be effective in April 1993. Since the rules were last adopted, most of the hearings conducted by the commissioner are now based upon the local record, using the substantial evidence standard of review. Previously, most hearings were live evidentiary de novo hearings. The proposed amendments, repeals, and new sections will facilitate the current standard of review as well as continuing to govern detachment and annexation cases, which are still held as live de novo hearings.

The proposed amendments, repeals, and new sections delete a number of obsolete provisions and implement new procedures for employment hearings under TEC, Chapter 21, and for hearings under the commissioner's general jurisdiction under TEC, §7.057. Subchapter AA will also govern detachment and annexation cases under TEC, Chapter 13.

The proposed revisions to 19 TAC Chapter 157, Subchapter AA, include the following rule changes.

Section 157.1041, Scope and Purpose, would be amended to remove obsolete references and to reflect current practice.

Section 157.1042, Definitions, would be amended to reflect current terminology and practice.

Section 157.1043, Hearing Examiner, would be amended to rename the title to Administrative Law Judge and to reflect current terminology and practice.

Section 157.1044, Classification of Parties, would be amended to reflect current terminology and practice.

Section 157.1045, Appearances, would be amended to provide clarification for entities representing a party.

Section 157.1046, Conduct and Decorum, would be amended to update and clarify provisions relating to conduct and proceedings.

Section 157.1047, Classification of Pleadings, would be amended to provide more specifications regarding pleadings filed with the commissioner.

Section 157.1048, Form and Content of Documents, would be amended to provide more specification regarding the format of documents filed with the commissioner.

Section 157.1049, Service of Documents, would be repealed; however, the provisions would be updated and adopted as new §157.1050, Service of Documents on Other Parties.

Section 157.1050, Filing of Documents, would be repealed; however, the provisions would be updated and adopted as new §157.1049, Filing of Documents with the Commissioner of Education.

Section 157.1051, Petition for Review, would be amended to streamline the petition process.

Section 157.1052, Answers, would be amended to provide further specifications about respondents' answers.

Section 157.1053, Prehearing Conference, would be amended to reflect current terminology and practice.

Section 157.1054, Discovery, would be amended to update and clarify terminology, statutory references, permissible forms of discovery, commissions and subpoenas, and discovery sanctions.

Section 157.1055, Motions for Continuance, would be amended to change the title to Motions and to provide further specifications for all motions filed with the commissioner.

Section 157.1056, Dismissal Without a Hearing; Nonsuits, would be amended to clarify terminology.

Section 157.1057, Order of Procedure at Hearing, would be amended to change the title to Order of Procedure at De Novo Hearing to update terminology and to reflect current practice.

Section 157.1058, Filing of Exceptions and Replies to Proposal for Decision, would be repealed; however, the provisions would be updated and adopted new as §157.1059 with the same title.

New §157.1058, Briefing, is proposed to govern the requirements of a brief in appeals to the commissioner.

Section 157.1059, Orders, would be repealed; however, the provisions would be updated and adopted new as §157.1060 with the same title.

Section 157.1060, Motions for Rehearing, would repealed; however, the provisions would be updated and adopted new as §157.1061 with the same title.

Joan Allen, deputy general counsel, has determined that for the first five-year period the amendments, repeals, and new sections are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendments, repeals, or new sections.

Ms. Allen has determined that for each year of the first five years the amendments, repeals, and new sections are in effect the public benefit anticipated as a result of enforcing the sections will be that school districts, employees, and patrons will have specific procedural guidance in filing hearings before the commissioner of education. 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 amendments, repeals, or new sections.

Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register .

19 TAC §§157.1041 - 157.1061

The amendments and new rules are proposed under the Texas Education Code (TEC), §21.301, which authorizes the commissioner of education to adopt rules governing the conduct of an appeal to the commissioner, and Texas Government Code, §2001.004, which authorizes a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The amendments and new rules implement the Texas Education Code, §§7.057, 13.051(j), 21.301(e), and Texas Government Code, §2001.004.

§157.1041.Scope and Purpose.

(a) This chapter shall govern the proceedings in all hearings [ contested cases ] before the commissioner of education.

(b) This chapter adopts for all purposes the provisions of [ the Administrative Procedures and Texas Register Act (APTRA) (Texas Civil Statutes, Article 6252-13a), ] 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 APTRA and ] by these rules. The provisions of this Subchapter AA shall govern the procedure for the administration of all hearings [ appeals ] before the [ state ] commissioner of education except where modified by Subchapter BB of this chapter (relating to Specific Appeals to the Commissioner).

§157.1042.Definitions.

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

(1) 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.

(2) [ (1) ] Agency--The Texas Education Agency.

(3) Board--The board of trustees of a public school district.

(4) [ (2) ] Commissioner--The [ state ] commissioner of education , or one who has been designated by the commissioner to perform a task [ ; the agency having statewide jurisdiction to hear contested cases ].

[ (3) 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. ]

(5) [ (4) ] Disqualification--When an administrative law judge, [ a hearings examiner, ] in his or her discretion, permanently forbids a party representative from any further participation in an adjudicative proceeding.

(6) [ (5) ] Exclusion--When an administrative law judge, [ a hearings examiner, ] in his or her discretion, ejects a person temporarily from an adjudicative proceeding.

[ (6) Hearings examiner--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. ]

(7) Hearings process-- An [ Refers to an ] adjudicative proceeding from initiation until final decision.

(8) Independent hearing examiner--a person certified by the commissioner to hold hearings pursuant to the Texas Education Code, Chapter 21, Subchapter F (Hearings Before Hearings Examiners).

(9) [ (8) ] Party representative--A lawyer or non-lawyer who acts on behalf of himself or herself [ , ] or who is authorized to act on behalf of a party [ another person ] during the hearings process [ an adjudicative proceeding ].

§157.1043. Administrative Law Judge [ Hearings Examiner ].

(a) The commissioner may designate and appoint an administrative law judge [ a hearings examiner ] to act on his or her behalf in conducting any hearing or proceeding held under this chapter and to prepare draft decisions or proposals for decision on those hearings.

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

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

§157.1044.Classification of Parties.

(a) Parties are designated as follows.

(1) Petitioner--the party who initiates the hearing [ appeal ] before the commissioner by filing a petition for review in compliance with §157.1051 of this title (relating to Petition for Review) .

(2) Respondent--any party against whom a [ complaint or ] petition for review has been filed with the commissioner.

(3) Intervenor--a person who, upon showing a justiciable interest, is permitted to become a party to a hearing [ proceeding ].

(b) Regardless of errors concerning designations in the pleadings, parties shall be accorded their true status in the hearing [ appeal ].

§157.1045.Appearances.

Any party may appear on his or her own behalf; if a minor, by his or her next friend, or by a representative of the party's choice. Corporations must be represented by a duly authorized attorney licensed to practice in the state of Texas. Party representatives are held to the same procedural and substantive standards as attorneys [ authorized to practice law ]. Attorneys and party representatives who wish to take a vacation and prevent the scheduling of hearings during a specific time period must notify the administrative law judge in writing at least two weeks before the vacation begins.

§157.1046.Conduct and Decorum.

(a) Standards of conduct during the hearings process [ adjudicative proceedings ].

(1) The administrative law judge [ hearings examiner ] 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).

(2) A party representative [ Party representatives ] shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness.

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

(b) Exclusion or disqualification of party representatives.

(1) Contemptuous conduct. An administrative law judge [ A hearings examiner ] may exclude or disqualify a party representative from participating in the [ an ] agency hearings process [ hearing ] for contemptuous conduct. The administrative law judge [ hearings examiner ] shall warn the party representative prior to disqualification or exclusion, if possible. Contemptuous conduct includes:

(A) actual or threatened physical assault of any participant to the proceeding;

(B) knowingly or recklessly making a false statement of material fact or law to the administrative law judge [ hearings examiner ];

(C) counseling or assisting a witness to testify falsely;

(D) knowingly offering or using false evidence;

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

(i) 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; or

(ii) [ (i) ] primarily for the purpose of harassing or maliciously injuring another person; [ or ]

[ (ii) 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;]

(F) 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;

(G) continually violating an established rule of agency procedure or of evidence;

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

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

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

(K) using offensive [ vulgar ] or abusive language during the proceeding; [ and ]

(L) making inappropriate derogatory remarks about the commissioner, an administrative law judge, a party, a witness, or opposing counsel at a hearing or in documents filed with the agency; and

(M) [ (L) ] engaging in disruptive conduct.

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

(A) 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;

(B) 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;

(C) 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;

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

(E) any other conflict of interest that, in the opinion of the administrative law judge, [ hearings examiner, ] offends the dignity and decorum of the proceeding.

(3) Procedures for excluding or disqualifying a party representative.

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

(B) Reasonable time for substitution. After the administrative law judge [ hearings examiner ] 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 [ hearings examiner ] shall consider the right of opposing parties to have the proceeding resolved without undue delay. The administrative law judge [ hearings examiner ] may therefore align the affected party with another party in interest instead of permitting a substitution.

[ (C) 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 five working days after actual notification of the exclusion or disqualification. If the commissioner does not act within ten 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.]

(C) [ (D) ] 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.

(D) [ (E) ] No recusal. The exclusion or disqualification of a party representative by an administrative law judge [ a hearings examiner ] is not a ground for recusal of the administrative law judge [ hearings examiner ] in the same or any subsequent proceeding.

§157.1047.Classification of Pleadings.

Pleadings filed with the commissioner shall include, but not be limited to, petitions for review , answers, pleas to the jurisdiction, motions, replies to motions , exceptions to the proposal for decision, and replies to the exceptions to the proposal for decision [ , and motions ]. Regardless of any error in its designation, the filing [ pleading ] shall be accorded its true status in the hearing [ appeal ] in which it is filed.

§157.1048.Form and Content of Documents.

All pleadings, briefs, and exhibits filed with the commissioner shall be signed by the party representative and legibly handwritten, typewritten, or printed on paper 8 l/2 inches wide by 11 inches long. If the document is typewritten or printed, the filing must be double-spaced and printed in at least 12-point font.

§157.1049.Filing of Documents with the Commissioner of Education.

(a) Except where otherwise provided by law, the petitioner shall file with the commissioner or the agency's division responsible for hearings and appeals a petition for review within 45 calendar days after the decision, order, or ruling complained of is first communicated to the petitioner. In all cases, when a decision is announced in the presence of the petitioner or the petitioner's representative of record at a hearing, the announced decision shall constitute communication to the petitioner.

(b) Filing of documents is governed by Texas Rules of Civil Procedure 21 and 21a.

(c) Except as otherwise provided, any document other than a petition for review will be filed with the agency's division responsible for hearings and appeals.

(d) All documents filed after 5:00 p.m. Central Time shall be deemed filed on the following business day.

(e) Failure to comply with subsection (a) of this section relating to the time for filing a petition for review will result in the dismissal of the case.

§157.1050.Service of Documents on Other Parties.

Every pleading, plea, or motion filed with the agency's division responsible for hearings and appeals shall be served on all party representatives by the same method as the document was filed with the agency, except that service by facsimile may be substituted for personal service.

§157.1051.Petition for Review.

[ (a) Except where otherwise provided by law, the petitioner shall file with the commissioner a petition for review within 45 calendar days after the decision, order, or ruling complained of is first communicated to the petitioner. In all cases, when a decision is announced in the presence of the petitioner or the petitioner's representative of record at a hearing, the announced decision shall constitute communication to the petitioner.]

(a) [ (b) ] A petition for review shall contain the following in numbered paragraphs :

(1) a description of the challenged ruling, action, or failure to act complained of;

(2) the date of the challenged ruling, action, or failure to act;

(3) a precise description of the action the petitioner wants the commissioner to take on the petitioner's behalf;

(4) a statement of jurisdiction and the legal basis for the claim [ the reason the petitioner is entitled to have the commissioner take action ];

(5) if the hearing is de novo, a statement of the facts of which the petitioner is aware or which the petitioner believes to be true and [ , ] which would lead to a reasonable conclusion that the petitioner is entitled to the relief sought; [ and ]

(6) the name, mailing address, telephone number of the petitioner's party representative during business hours, and facsimile number, if any ; and [ . ]

(7) the name, mailing address, and business telephone of the respondent or the respondent's representative, and facsimile number, if any.

(b) [ (c) ] Nothing in this section requires the petitioner to plead all evidence relied upon. However, all issues relied upon by the petitioner must be raised in the petition for review, and the commissioner will not consider any [ petitioner will be denied the opportunity to present evidence on ] issues not raised in the petition for review.

[ (d) The petition for review shall be served on the respondent by personal delivery or by certified mail. A certificate evidencing service shall be included in the petition for review.]

§157.1052.Answers.

(a) Except where otherwise provided by law, the [ The ] respondent shall file an answer within 30 calendar days after receiving notice from the commissioner that an appeal has been docketed.

(b) The answer shall specifically admit or deny each allegation in the petition for review , or shall assert that respondent is without sufficient knowledge and information to admit or deny the allegation and shall set forth all affirmative defenses.

(c) 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.

(d) In de novo hearings, all [ All ] well-pled factual allegations will be deemed admitted unless the respondent's answer, containing specific responses [ 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 petition for review.

§157.1053.Prehearing Conference.

(a) In any hearing [ appeal ], the administrative law judge [ hearings examiner ] or a party may move for the setting of a prehearing conference. At the administrative law judge's discretion, the parties [ The hearings examiner ] shall be directed [ 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:

(1) the formulation or simplification of issues;

(2) admission of certain assertions of fact or stipulations;

(3) the procedure at the hearing on the merits , if the hearing is de novo ;

(4) any limitation, where possible, of the number of witnesses , if the hearing is de novo ; and/or

(5) 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.

(b) Action taken at the conference shall be recorded in the manner directed by the administrative law judge [ hearings examiner ].

(c) A written request to reschedule a telephonic conference must contain a statement that all parties have been consulted and list any objection and shall set forth three alternate dates and times for rescheduling the conference.

§157.1054.Discovery.

(a) Permissible forms of discovery in a de novo hearing are:

(1) oral or written deposition governed by Texas Government Code, §§2001.094- 2001.103 [ Civil Statutes, Article 6252-13a, §14 ];

(2) written interrogatories to a party governed by Texas Rule of Civil Procedure 197 [ 168 ];

(3) requests of a party for admission of facts and the genuineness or identity of documents or things governed by Texas Rule of Civil Procedure 198 [ 169 ];

(4) requests and motions for production, examination, and copying of documents or other tangible materials governed by Texas Government Code, §2001.091 [ Civil Statutes, Article 6252-13a, §14a ];

(5) requests and motions for entry upon and examination of real property governed by Texas Government Code, §2001.091; [ Civil Statutes, Article 6252-13, §14a; and ]

(6) discovery from parties regarding the identity of witnesses or potential parties and expert reports governed by Texas Government Code, §2001.092, and discovery from parties regarding copies of previous statements governed by Texas Government Code, §2001.093; and

[ (6) motions for a mental or physical examination of a party or person under the legal control of a party governed by Rule of Civil Procedure 167a.]

(7) requests for disclosure governed by Texas Rule of Civil Procedure 194.

(b) Commissions to take depositions and subpoenas to secure the attendance of a witness at hearing may only be issued by an administrative law judge. To obtain a commission or a subpoena, a party must file a motion which specifically articulates grounds constituting good cause for the issuance of the subpoena and must pay all applicable fees.

(c) [ (b) ] Any motion to compel discovery shall contain a certificate by the party filing the motion that efforts to resolve the discovery dispute without the necessity of agency intervention have been attempted and failed.

(d) [ (c) ] Requirements concerning discovery sanctions include the following.

(1) Motions for sanctions or order compelling discovery. Upon reasonable notice to all party representatives and affected persons, a party may apply to the administrative law judge [ hearings examiner ] for an order compelling discovery. A party may not request sanctions under paragraph (3) of this subsection without having first obtained an order compelling discovery.

(2) Enforcement in district court. If a person fails to comply with a subpoena or a commission for deposition issued by an administrative law judge, [ a hearings examiner, ] the agency or party requesting the subpoena or commission for deposition may seek its enforcement in district court in any manner provided by law.

(3) Failure to comply with order or with discovery request. If a party; or an officer, director, or managing agency of a party; or a person designated to testify on behalf of a party fails to comply with proper discovery requests or to obey an order compelling discovery, an administrative law judge [ a hearings examiner ] may, after opportunity for hearing, issue [ make ] orders in response to the failure, including any of the following orders:

(A) preventing the disobedient party from further discovery of any kind, or of a particular kind;

(B) deeming any facts pertaining to the order, or any other facts, to be established, as claimed by the moving party;

(C) disallowing the disobedient party from supporting or opposing designated claims or defenses, or prohibiting the party from introducing designated matters in evidence; and

(D) striking out pleadings or parts of pleadings, staying further action until the order is obeyed; dismissing the proceeding with or without prejudice; or rendering a judgment against the disobedient party.

(4) Abuse of discovery process. The administrative law judge [ hearings examiner ] may impose any of the sanctions listed in paragraph (3) of this subsection [ above ] on a party who abuses the discovery process in seeking or resisting discovery or who files a request, response, or answer that is frivolous, oppressive, or made for the purpose of delay.

(5) Failure to respond to or supplement discovery. A party who fails to respond to or supplement a discovery request or refuses to supplement a response to a discovery request may not present evidence that the party was under a duty to provide in a response or supplemental response, and may not offer the testimony of an expert witness or of any other person having knowledge of the discoverable matter, unless the administrative law judge [ hearings examiner ] finds good cause to permit the evidence despite the noncompliance. The burden of establishing good cause is upon the party offering the evidence, and good cause must be shown in the record.

(6) Impermissible communications. Unless permitted by law, party representatives shall not communicate with the administrative law judge [ hearings examiner ] or the commissioner without the knowledge of all other parties. The administrative law judge [ hearings examiner ] or commissioner may impose any of the preceding sanctions for impermissible communication.

(7) Record of basis for sanction. The administrative law judge [ hearings examiner ] shall state the specific basis for any sanction in the record or in a written order. [ A sanctioned party has the right to appeal the sanction to the commissioner in accordance with §157.1046(b)(3)(C) of this title (relating to Conduct and Decorum). ]

§157.1055.Motions [ for Continuance ].

(a) A motion for continuance of any proceeding shall specifically articulate grounds constituting good cause and shall be filed in writing.

(b) All prehearing motions requiring a ruling must be in writing and must contain a certificate of conference asserting that the movant has conferred with the opposing party representative and has or has not obtained agreement with the motion. If no conference was conducted, the movant shall state the reasons, amounting to good cause, why the conference was not held. Any motion for which a conference was not held must be responded to within seven days, unless the administrative law judge specifies a shorter time to respond.

§157.1056.Dismissal Without a Hearing; Nonsuits.

(a) The commissioner or his or her designee may, on his or her own motion 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 petitioner [ party requesting relief from the commissioner ] to set forth facts in the pleadings that would support a decision in the petitioner's [ that party's ] favor, failure to state a claim for which relief can be granted, failure to exhaust administrative remedies, or failure to prosecute.

(b) The petitioner may nonsuit the appeal at any time.

§157.1057.Order of Procedure at De Novo Hearing.

(a) 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 [ hearings examiner ].

(b) 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.

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

(d) 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.

(e) 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.

(f) 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.

(g) The petitioner may present rebuttal evidence.

(h) The parties may be allowed closing arguments at the discretion of the administrative law judge [ hearings examiner ].

(i) The administrative law judge [ hearings examiner ] may permit deviations from this order of procedure in the interests of justice.

(j) Parties shall provide four copies of each exhibit offered.

(k) At the de novo hearing before the commissioner, any part or all of a certified transcript of sworn testimony and exhibits taken in a hearing before the board of trustees from which the petitioner appeals may be used by any party for any purpose against any party who was present or represented at the hearing before the board of trustees or who had reasonable notice of the meeting. The Texas Rules of Civil Evidence shall be applied to each question and answer as though the witness were then present and testifying. Unavailability of a witness is not a requirement for admissibility. Testimony of a witness in the hearing before the commissioner shall not be precluded solely because the testimony is contained in the record of the hearing before the board of trustees. [ This subsection applies only to records of hearings held before a board of trustees after the effective date of this section. ]

(l) In any appeal where a party is represented by more than one attorney, a lead attorney must be designated prior to the commencement of the hearing .

§157.1058.Briefing.

(a) If briefing is required in a case that is reviewed by the commissioner under the substantial evidence standard, the petitioner's brief shall contain the following:

(1) Statement of the case. The brief must state concisely the nature of the case (e.g., whether it is a case contesting the termination of a probationary contract at the end of the contract term), the course of proceedings, and the school district's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.

(2) Issues presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. However, an issue that is not so identified is waived.

(3) Statement of facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented. The commissioner will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.

(4) Argument. The brief must contain clear and concise argument for the contentions made with appropriate citations to authorities and to the record.

(5) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.

(b) If briefing is required in a case that is reviewed by the commissioner under the substantial evidence standard, the respondent's brief shall conform to the requirements of the petitioner's brief, except that the respondent's brief need not include a statement of the case, statement of the issues presented, or a statement of the facts, unless the respondent is dissatisfied with that portion of the petitioner's brief.

(c) Because briefs are meant to acquaint the commissioner with the issues in the case and to present argument that will enable the commissioner to decide the case, substantial compliance with this rule is sufficient, subject to the following.

(1) Formal defects. If the administrative law judge determines that this rule has been flagrantly violated, the administrative law judge may require a brief to be amended, supplemented, or redrawn as statutory timelines may allow. If another brief that does not comply with this rule is filed, the administrative law judge may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.

(2) Substantive defects. If the administrative law judge determines either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the administrative law judge may, if statutory timelines allow, postpone submission, require additional briefing, and make any order necessary for a satisfactory submission of the case.

§157.1059.Filing of Exceptions and Replies to Proposal for Decision.

(a) A copy of the proposal for decision in a contested case shall be simultaneously delivered or mailed by certified mail, return receipt requested, to each party representative of record.

(b) Exceptions to the proposal for decision shall be filed within 30 calendar days of the date of the proposal for decision.

(c) Replies to exceptions shall be filed within 50 calendar days of the date of the proposal for decision.

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

(e) 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.

(f) The timelines may be modified by the administrative law judge.

§157.1060.Orders.

After the time for filing exceptions and replies to exceptions expires, the administrative law judge's proposal for decision will be considered by the commissioner and either adopted or modified. All final decisions or orders of the commissioner shall be in writing and signed. 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. Party representatives shall be simultaneously notified either personally, by certified mail, or by facsimile transmission of each decision or order.

§157.1061.Motions for Rehearing.

(a) In the absence of a finding of imminent peril, a motion for rehearing is a prerequisite to a judicial appeal. A motion for rehearing must be filed by a party representative within 20 days after the date the party representative is notified of the final decision or order.

(b) Replies to a motion for rehearing must be filed with the agency within 30 days after the date the party representative is notified of the final decision or order.

(c) Agency action on the motion for rehearing must be taken within 45 days after the date a party representative is notified of the final decision or order. If agency action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date the party representative is notified of the final decision or order.

(d) The agency may, by written order, extend the period of time for filing the motions or replies and taking agency action, except that an extension may not extend the period for agency action beyond 90 days after the date a party representative is notified of the final order or decision.

(e) In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date the party representative is notified of the final decision or order.

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 February 2, 2004.

TRD-200400648

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 475-1497

19 TAC §§157.1049, 157.1050, 157.1058 - 157.1060

(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 repeals are proposed under the Texas Education Code (TEC), §21.301, which authorizes the commissioner of education to adopt rules governing the conduct of an appeal to the commissioner, and Texas Government Code, §2001.004, which authorizes a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The repeals implement the Texas Education Code, §§7.057, 13.051(j), 21.301(e), and Texas Government Code, §2001.004.

§157.1049.Service of Documents.

§157.1050.Filing of Documents.

§157.1058.Filing of Exceptions and Replies to Proposal for Decision.

§157.1059.Orders.

§157.1060.Motions for Rehearing.

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 February 2, 2004.

TRD-200400649

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 475-1497

Subchapter BB. SPECIFIC APPEALS TO THE COMMISSIONER

The Texas Education Agency (TEA) proposes the repeal of §§157.1071-157.1074 and new §§157.1071-157.1073, concerning hearings and appeals. The sections address specific appeals to the commissioner. The proposed repeals and new rules result from the agency's rule review conducted in accordance with Texas Government Code, §2001.039. The proposed repeals and new rules delete obsolete provisions and implement new procedures for employment hearings under Texas Education Code (TEC), Chapter 21, and for hearings under the commissioner's general jurisdiction under TEC, §7.057.

The rules in 19 TAC Chapter 157, Subchapter BB, were last adopted to be effective in April 1993. Since the rules were last adopted, most of the hearings conducted by the commissioner are now based upon the local record, using the substantial evidence standard of review. Previously, most hearings were live evidentiary de novo hearings. The proposed repeals and new rules will facilitate the current standard of review as well as continuing to govern detachment and annexation cases, which are still held as live de novo hearings.

The proposed repeals and new rules delete obsolete provisions and implement new procedures for employment hearings under TEC, Chapter 21, and for hearings under the commissioner's general jurisdiction under TEC, 7.057. The proposed new provisions in Subchapter BB provide that all hearings in which the agency is a party will be conducted by the State Office of Administrative Hearings. These cases include charter school charter actions and driver training cases.

The proposed revisions to 19 TAC Chapter 157, Subchapter BB, include the following rule changes.

Sections 157.1071, Proceedings Brought Under the Term Contract Nonrenewal Act; 157.1072, Hearings Concerning Complaints Made to the Teachers' Professional Practices Commission of Texas; 157.1073, Proceedings Concerning the Suspension or Cancellation of a Certificate or Permit by the District or the Agency; and 157.1074, Student Appeals, would be repealed.

New §157.1071, Proceedings in Which the Texas Education Agency is a Party, is proposed to establish that the State Office of Administrative Hearings will hear cases in which the agency is a petitioner or respondent.

New §157.1072, Proceedings Brought Under Texas Education Code, Chapter 21, Subchapter G, is proposed to set forth procedures for employment appeals to the commissioner by educators.

New §157.1073, Proceedings Brought Under Texas Education Code, §7.057, is proposed to set forth procedures for appeals to the commissioner by persons aggrieved by the school laws of the state or certain actions or decisions of any school district board of trustees.

Joan Allen, deputy general counsel, has determined that for the first five-year period the repeals and new sections are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the repeals or new sections.

Ms. Allen has determined that for each year of the first five years the repeals and new sections are in effect the public benefit anticipated as a result of enforcing the sections will be that school districts, employees, and patrons will have specific procedural guidance in filing hearings before the commissioner of education. 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 repeals or new sections.

Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register .

19 TAC §§157.1071 - 157.1074

(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 repeals are proposed under the Texas Education Code (TEC), §21.301, which authorizes the commissioner of education to adopt rules governing the conduct of an appeal to the commissioner; Texas Education Code, §12.116, which authorizes the commissioner to adopt a procedure to be used for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school; and Texas Government Code, §2001.004, which authorizes a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

The repeals implement the Texas Education Code, §§7.057, 12.115, 12.116, 21.301, 1001.459, 1001.460, and Texas Government Code, §2001.004.

§157.1071.Proceedings Brought Under the Term Contract Nonrenewal Act.

§157.1072.Hearings Concerning Complaints Made to the Teachers' Professional Practices Commission of Texas.

§157.1073Proceedings Concerning the Suspension or Cancellation of a Certificate or Permit by the District or the Agency.

§157.1074.Student Appeals.

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 February 2, 2004.

TRD-200400650

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 475-1497

19 TAC §§157.1071 - 157.1073

The new sections are proposed under the Texas Education Code (TEC), §21.301, which authorizes the commissioner of education to adopt rules governing the conduct of an appeal to the commissioner; Texas Education Code, §12.116, which authorizes the commissioner to adopt a procedure to be used for modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school; and Texas Government Code, §2001.004, which authorizes a state agency 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, §§7.057, 12.115, 12.116, 21.301, 1001.459, 1001.460, and Texas Government Code, §2001.004.

§157.1071.Proceedings in Which the Texas Education Agency is a Party.

(a) All requests for hearing in which the Texas Education Agency (the agency) is a petitioner or respondent shall be heard by the State Office of Administrative Hearings (SOAH).

(b) In cases in which the agency is not the petitioner, petitions for review or requests for hearing shall be filed with the commissioner within 30 calendar days after the decision, order, or ruling complained of is first communicated to the petitioner, except as otherwise provided by law or agency rule.

(c) The agency's division responsible for hearings and appeals shall transmit the petition for review or request for hearing and a request to docket the case to SOAH.

§157.1072.Proceedings Brought Under Texas Education Code, Chapter 21, Subchapter G.

(a) Applicability. This section shall apply to all appeals under the Texas Education Code (TEC), Chapter 21, Subchapter G. To the extent that this section conflicts with any other sections governing hearings before the commissioner, this section shall prevail.

(b) Standard of review. All hearings under this section shall be decided upon a substantial evidence review of the record created before an independent hearing examiner or the board of trustees except that the administrative law judge may take evidence of procedural irregularities that are not reflected in the local record that occurred at a hearing before an independent hearing examiner. In a request for an evidentiary hearing, a party shall identify the specific defect and its claimed effect on the decision of the board of trustees or board subcommittee. After such evidentiary hearing, the commissioner may:

(1) remand the case to the board of trustees with instructions;

(2) reverse the decision of the board of trustees; or

(3) decide the case on the merits if the commissioner finds that a procedural irregularity occurred but finds that the procedural irregularity was harmless.

(c) Petition for review. A teacher wishing to appeal the decision of a board of trustees or board subcommittee must file with the commissioner or the agency's division responsible for hearings and appeals a petition for review not later than the 20th day after the date the board of trustees or the board subcommittee announces its decision under TEC, §21.259, or the board notifies the teacher in writing of its decision not to renew the teacher's contract under TEC, §21.208. Failure to timely file a petition for review will result in the dismissal of the case. A petition for review may not be amended or supplemented after the deadline for filing a petition for review. A petition for review shall contain the following in numbered paragraphs:

(1) a description of the challenged ruling;

(2) the date of the challenged ruling;

(3) a precise description of the action the teacher wants the commissioner to take on the teacher's behalf;

(4) a statement of the jurisdiction and the legal basis of the claim;

(5) the name, mailing address, telephone number of the teacher's party representative during business hours, and facsimile number, if any; and

(6) the name, mailing address, and business telephone number of the school district's representative and facsimile number, if any.

(d) Filing of local record. A school district must file the record of the proceedings before an independent hearing examiner or the board of trustees not later than the 20th day after the date the petition for review is filed. All allegations which require the record for resolution will be deemed against the school district, if the school district fails to timely file the record of the proceedings. If a school district chooses to file an answer, the answer must be filed not later than the 20th day after the date the petition for review is filed or it will be struck as being untimely filed.

(1) The record of the proceedings before an independent hearing examiner or the board of trustees that is filed by the school district shall be considered complete and accurate and shall be admitted into evidence for all purposes unless the teacher files objections to the record within seven days after the date of filing. The administrative law judge may conduct a proceeding for receiving evidence relevant to such a challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal.

(2) The school district shall notify the teacher in writing when the record of the proceedings before the independent hearing examiner or the board of trustees is prepared and make the record available for inspection. A copy of the record shall be provided to the teacher at a reasonable charge upon request.

(e) Local record. The record of the proceedings before the independent hearing examiner or the board of trustees shall include:

(1) the transcripts of proceedings at the local level;

(2) all admitted evidence;

(3) all offers of proof;

(4) all written pleadings, motions, and intermediate rulings;

(5) a description of all matters officially noticed;

(6) if applicable, the recommendation of the independent hearing examiner;

(7) the transcript of the oral argument before the board of trustees or the board subcommittee;

(8) the decision of the board of trustees or the board subcommittee; and

(9) if applicable, the board of trustees' or the board subcommittee's written reasons for changing the recommendation of the independent hearing examiner.

(f) Authority of administrative law judge. The administrative law judge has the same authority as to the conduct of the hearing and discovery as does an independent hearing examiner under TEC, Chapter 21, Subchapter F. Due to the expedited nature of the hearing before the commissioner, in a case where discovery may be taken, the administrative law judge shall establish discovery timelines as justice requires.

(g) Motions. All motions requiring a ruling must contain a certificate of conference asserting that the movant has conferred with the opposing party representative and has or has not obtained agreement with the motion. If no conference was conducted, the movant shall state the reasons, amounting to good cause, why the conference was not held. Any motion for which a conference was not held must be responded to within three days unless the administrative law judge specifies a shorter time to respond. Failure to timely respond will result in a presumption that the motion is unopposed.

(h) Nonrenewal hearings without an independent hearing examiner. In a case involving the nonrenewal of a term contract that was not heard by an independent hearing examiner, if no fact findings were made, the commissioner will determine whether the decision is supported by substantial evidence by judging whether there is substantial evidence to support the reasons for proposed nonrenewal.

(i) Request for rehearing. Not later than the 20th day after the date the party or the party representative receives notice of the commissioner's decision under TEC, §21.304, a party may file a request for rehearing. A request for rehearing is not required for a party to appeal the commissioner's decision under TEC, §21.307. A request for rehearing is denied by operation of law if the commissioner does not issue an order before the 45th day after the date the party or the party's representative receives notice of the commissioner's decision.

(j) Motions for summary judgment. Motions for summary judgment are not permitted.

(k) Mailbox rule for filings. The mailbox rule does not apply to filings under this section.

§157.1073.Proceedings Brought Under Texas Education Code, §7.057.

(a) Applicability. This section shall apply to all hearings brought under Texas Education Code (TEC), 7.057. To the extent that this section conflicts with any other section governing hearings before the commissioner, the requirements of this section shall prevail.

(b) Jurisdiction. The commissioner has jurisdiction of allegations that a person is aggrieved by:

(1) the school laws of the state; or

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

(A) the school laws of the state; or

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

(c) Petition for review. In a case brought against a school district, a petition for review shall contain the following:

(1) a description of the challenged ruling, action, or failure to act;

(2) the date of the challenged ruling, action, or failure to act;

(3) a precise description of the action the petitioner wants the commissioner to take on the petitioner's behalf;

(4) a statement of jurisdiction and the legal basis for the claim;

(5) the name, mailing address, and business telephone number of the petitioner's party representative, and facsimile number, if any; and

(6) the name, mailing address, and business telephone number of respondent or respondent's representative, and facsimile number, if any.

(d) Local record. It is the responsibility of the school district to make and preserve the records of the proceedings before the board of trustees. If the school district fails to create and preserve the record without good cause, all substantial evidence issues that require missing portions of the record for resolution shall be deemed against the school district. The record shall include:

(1) a tape recording or a transcript of the hearing at the local level. If a tape recording is used:

(A) the tape recording must be complete, audible, and clear; and

(B) each speaker must be clearly identified;

(2) all evidence admitted;

(3) all offers of proof;

(4) all written pleadings, motions, and intermediate rulings;

(5) a description of all matters officially noticed;

(6) if applicable, the decision of the hearing examiner;

(7) a tape recording or transcript of the oral argument before the board of trustees; and

(8) the decision of the board of trustees.

(e) Filing of the local record; objection to the record. In all cases filed against a school district, the school district must file the local record with its answer. The school district shall notify the petitioner in writing when the local record is prepared and make the record available to the petitioner for inspection. A copy of the local record shall be provided to the petitioner for a reasonable charge upon request. In all cases filed against a school district, the record before the commissioner shall be considered complete and accurate and shall be admitted into evidence for all purposes, unless within 30 days of the date of filing the record, the petitioner files objections to the record that specifically set forth the items that are relevant and material and have been erroneously omitted for the record or portions of the record that are relevant and material but have been inaccurately transcribed. The administrative law judge shall conduct a proceeding to receive evidence relevant to the challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal.

(f) Supplementation of the local record. In all cases filed against a school district, the commissioner's decision shall be based on a review of the local record. The administrative law judge may, on the motion of either party, order that the record be reopened and remanded to the district to supplement the transcript or tape recording if it appears that the party has evidence to offer that is material, relevant, or not unduly repetitious that the party, for good cause, was unable to adduce at the local hearing. Good cause for failure to secure the testimony of a witness may be demonstrated by:

(1) a clear and unambiguous communication to the witness of the party's intention to call the witness at the hearing;

(2) reasonable notice to the witness of the date, time, and place of the board meeting at which the testimony will be required;

(3) such reasonable follow-up measures as an ordinary prudent person would exercise to secure the attendance of a material witness at a hearing before the board of trustees; and

(4) if the witness is an employee of the district, the district shall produce the witness if reasonable notice is given to the superintendent of the party's intention to call the witness.

(g) Oral argument. Upon either party's request, the administrative law judge may afford both parties the opportunity to file briefs and present oral argument concerning the merits of the appeal.

(h) Standard of review in cases against a school district. If no findings of fact are made by the board of trustees, the commissioner shall determine whether the decision is supported by substantial evidence by judging whether any permissible findings of fact support the board's decision. In all cases against a school district, the commissioner may not substitute his or her judgment for the judgment of the school district on the weight of the evidence questions committed to the discretion of the board of trustees but:

(1) may affirm the decision of the board of trustees in whole or in part; and

(2) shall reverse or remand the case for further proceedings if substantial rights of the petitioner have been prejudiced because the decision of the board of trustees is:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the statutory authority of the board of trustees;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.

(i) Standard of review in cases not against a school district. In all cases not against a school district, the commissioner's decision shall be based upon a record developed before the commissioner, and the standard of review shall be preponderance of the evidence.

(j) Motion for summary judgment. A motion for summary judgment may not be filed in a case that is reviewed under the substantial evidence standard without obtaining leave of the administrative law judge.

(k) Administrative Procedure Act adopted. This section adopts for all purposes the provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001.

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 February 2, 2004.

TRD-200400651

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: March 14, 2004

For further information, please call: (512) 475-1497