Part 2.
TEXAS EDUCATION AGENCY
Chapter 157.
HEARINGS AND APPEALS
Subchapter AA. GENERAL PROVISIONS FOR HEARINGS BEFORE THE COMMISSIONER OF EDUCATION
The Texas Education Agency (TEA) adopts 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 rule actions result from the agency's rule
review conducted in accordance with Texas Government Code, §2001.039.
Amendments to §§157.1041-157.1043, 157.1046, and 157.1052- 157.1057
and new §§157.1049-157.1050, and 157.1058-157.1059 are adopted with
changes to the proposed text as published in the February 13, 2004, issue
of the
Texas Register
(29 TexReg 1286). Amendments
to §§157.1044-157.1045, 157.1047-157.1048, and 157.1051; the repeal
of §§157.1049-157.1050 and 157.1058-157.1060; and new §157.1060
and §157.1061 are adopted without changes to the proposed text as published
in the February 13, 2004, issue of the
Texas Register
(29 TexReg 1286) and will not be republished.
The adopted 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 adopted amendments, repeals, and new sections facilitate the current standard
of review and continue to govern detachment and annexation cases under TEC,
Chapter 13, which are still held as live de novo hearings.
The adopted amendments to 19 TAC Chapter 157, Subchapter AA, include the
following rule changes. Changes made in response to public comments subsequent
to publication in the
Texas Register
as proposed
are also noted, as applicable.
Section 157.1041, Scope and Purpose, is amended to remove obsolete references
and to reflect current practice. In response to public comment, language related
to proceedings is removed to increase uniformity within the subchapter.
Section 157.1042, Definitions, is amended to reflect current terminology
and practice. In response to public comment, language related to process and
proceedings is revised to reference hearings to increase uniformity within
the subchapter.
Section 157.1043, Hearing Examiner, is amended to rename the title to Administrative
Law Judge and to reflect current terminology and practice. In response to
public comment, language related to a proceeding and a case is revised to
reference a hearing to increase uniformity within the subchapter.
Section 157.1044, Classification of Parties, is amended to reflect current
terminology and practice.
Section 157.1045, Appearances, is amended to provide clarification for
entities representing a party.
Section 157.1046, Conduct and Decorum, is amended to update and clarify
provisions relating to conduct and proceedings. In response to public comment,
language related to proceedings is revised to reflect hearings to increase
uniformity within the subchapter.
Section 157.1047, Classification of Pleadings, is amended to provide more
specifications regarding pleadings filed with the commissioner.
Section 157.1048, Form and Content of Documents, is amended to provide
more specification regarding the format of documents filed with the commissioner.
Section 157.1049, Service of Documents, is repealed; however, the provisions
are updated and adopted as new §157.1050, Service of Documents on Other
Parties. In addition, language was modified to recognize that statute may
differ from rule. In response to public comment, language was modified to
clarify service on the party or party representative.
Section 157.1050, Filing of Documents, is repealed; however, the provisions
are updated and adopted as new §157.1049, Filing of Documents with the
Commissioner of Education. In response to public comment, language was added
to include the mailing and facsimile information for filing with the commissioner.
The filing deadline was also changed from 5:00 p.m. to 11:59 p.m.
Section 157.1051, Petition for Review, is amended to streamline the petition
process.
Section 157.1052, Answers, is amended to provide further specifications
about respondents' answers. In response to public comment, language related
to an appeal was revised to reference a hearing to increase uniformity within
the subchapter.
Section 157.1053, Prehearing Conference, is amended to reflect current
terminology and practice. In response to public comment, language related
to a proceeding was revised to reference a hearing to increase uniformity
within the subchapter. Language was also added to address the inclusion of
the reason why all parties were not consulted.
Section 157.1054, Discovery, is amended to update and clarify terminology,
statutory references, permissible forms of discovery, commissions and subpoenas,
and discovery sanctions. In response to public comment, language related to
a proceeding was revised to reference a hearing to increase uniformity within
the subchapter.
Section 157.1055, Motions for Continuance, is amended to change the title
to Motions and to provide further specifications for all motions filed with
the commissioner. In addition, subsection (b) was broadened to include all
motions. In response to public comments, language related to a proceeding
was revised to reference a hearing to increase uniformity within the subchapter.
Language was also added to allow for motions for continuance to be filed by
agreement.
Section 157.1056, Dismissal Without a Hearing; Nonsuits, is amended to
clarify terminology. In response to public comment, language related to an
appeal was revised to reference a hearing to increase uniformity within the
subchapter. Language was also added to include a notice and response process
prior to entry of an order of dismissal.
Section 157.1057, Order of Procedure at Hearing, is amended to change the
title to Order of Procedure at De Novo Hearing to update terminology and to
reflect current practice. In response to public comment, language related
to an appeal was revised to reference a hearing to increase uniformity within
the subchapter.
Section 157.1058, Filing of Exceptions and Replies to Proposal for Decision,
is repealed; however, the provisions are updated and adopted new as §157.1059
with the same title. In addition, language was expanded to ensure full presentation
of all disagreements with the proposal for decision. In response to public
comments, language related to a case was revised to reference a hearing to
increase uniformity within the subchapter.
New §157.1058, Briefing, is adopted to govern the requirements of
a brief in appeals to the commissioner. Subsequent to filing the proposal,
the example in proposed subsection (a)(1) was deleted because it was too limiting
and might cause confusion. In response to public comments, language related
to a contested case was revised to reference a hearing to increase uniformity
within the subchapter.
Section 157.1059, Orders, is repealed; however, the provisions are updated
and adopted new as §157.1060 with the same title.
Section 157.1060, Motions for Rehearing, is repealed; however, the provisions
are updated and adopted new as §157.1061 with the same title.
The following comments were received regarding adoption of the amendments,
repeals, and new sections.
Comment. An individual commented that the rules contain inconsistent terminology
involving the terms "appeal" and "hearings."
Agency response. While the word "appeal" was used only in reference to
an agency division and to describe the action taken by a teacher to bring
an employment decision before the commissioner, the agency notes that the
phrases "contested case" and "proceedings" were used. Applicable sections
throughout 19 TAC Chapter 157, Subchapters AA and BB, were modified to use
the word "hearing" or a variant of the word to increase uniformity.
Comment. An individual commented that the standard of review is not clearly
defined for individual cases.
Agency response. The standard of review in individual categories of hearings
is set forth in statute. No change was made in response to this comment.
Comment. An individual commented that the rules do not set forth the remedies
of the commissioner.
Agency response. The agency disagrees. The remedies of reversal, reverse
and remand, and reverse and remand with instructions are standard remedies
in all administrative law cases. No change was made in response to this comment.
Comment. Regarding §157.1049(a), (d), Filing of Documents with the
Commissioner of Education, the Texas State Teachers Association (TSTA) commented
that the rule should include the mailing and facsimile information for filing
with the commissioner. The TSTA stated that the filing deadline should remain
at midnight, especially in light of the hearings that contain short statutory
deadlines.
Agency response. The agency agrees with these comments. The section was
modified accordingly.
Comment. Regarding §157.1050, Service of Documents on Other Parties,
the TSTA commented that the rule should be clarified to include service on
the party or party representative.
Agency response. The agency agrees with this comment. The section was modified
accordingly.
Comment. Regarding §157.1052, Answers, the TSTA commented that a provision
requiring the entry of a default judgment in the event that a respondent fails
to timely file an answer should be added.
Agency response. The agency disagrees. While there is no legal requirement,
the incorporation of the Texas Rules of Civil Procedure would allow a default
judgment. No change was made in response to this comment.
Comment. Regarding §157.1053, Prehearing Conferences, the TSTA commented
that the requirement of three alternate dates for rescheduling the conference
is excessive and would allow unnecessary delay of the process. The TSTA asserted
that parties should also be allowed to demonstrate why consultation was not
possible, similar to §157.1055(b).
Agency response. The agency disagrees with lowering the number of proposed
dates because this would result in less scheduling flexibility for the parties
and the agency. No change was made in response to this comment. The agency
agrees with the second comment addressing the inclusion of the reason why
all parties were not consulted. The section was modified accordingly.
Comment. Regarding §157.1055(a), Motions, the TSTA commented that
this section should be modified to allow for motions for continuance to be
filed by agreement.
Agency response. The agency agrees. The section was modified accordingly.
Comment. Regarding §157.1056, Dismissal Without a Hearing; Nonsuits,
an individual commented that dismissing on the basis of mootness or res judicata
is a violation of due process and lacks constitutional authority.
Agency response. While the agency disagrees with the characterization,
the section was amended to include a notice and response process prior to
entry of an order of dismissal.
19 TAC §§157.1041 - 157.1061
The amendments and new rules are adopted 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 in all hearings before the commissioner
of education.
(b)
This chapter adopts for all purposes the provisions of
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 these rules. The provisions of this Subchapter AA shall govern the procedure
for the administration of all hearings before the 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)
Agency--The Texas Education Agency.
(3)
Board--The board of trustees of a public school district.
(4)
Commissioner--The commissioner of education, or one who
has been designated by the commissioner to perform a task.
(5)
Disqualification--When an administrative law judge, in
his or her discretion, permanently forbids a party representative from any
further participation in an adjudicative proceeding.
(6)
Exclusion--When an administrative law judge, in his or
her discretion, ejects a person temporarily from an adjudicative proceeding.
(7)
Hearing--An adjudicative process 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)
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
during the hearing.
§157.1043.Administrative Law Judge.
(a)
The commissioner may designate and appoint an administrative
law judge to act on his or her behalf in conducting any hearing held under
this chapter and to prepare draft decisions or proposals for decision on those
hearings.
(b)
The administrative law judge 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 hearing from day to day; establish reasonable timelines;
and make any other orders as justice requires.
(c)
If the administrative law judge is unable to continue presiding
over a hearing 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.
§157.1046.Conduct and Decorum.
(a)
Standards of conduct during the hearings process.
(1)
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).
(2)
A party representative 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 may exclude
or disqualify a party representative from participating in the agency hearings
process for contemptuous conduct. The administrative law judge 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 hearing;
(B)
knowingly or recklessly making a false statement of material
fact or law to the administrative law judge;
(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)
primarily for the purpose of harassing or maliciously
injuring another person;
(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 hearing;
(G)
continually violating an established rule of agency procedure
or of evidence;
(H)
raising superfluous objections or otherwise unreasonably
delaying the hearing or increasing the costs or other burdens of the hearing;
(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 without
the knowledge and consent of opposing party representatives in order to gain
unfair advantage or to influence the hearing;
(K)
using offensive or abusive language during the hearing;
(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)
engaging in disruptive conduct.
(2)
Conflicts of interest. An administrative law judge may
disqualify a party representative from participating in a hearing 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:
(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, offends the dignity and decorum of the hearing.
(3)
Procedures for excluding or disqualifying a party representative.
(A)
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.
(B)
Reasonable time for substitution. After the administrative
law judge has excluded or disqualified a party representative, the affected
party or party representative 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 hearing resolved
without undue delay. The administrative law judge may therefore align the
affected party with another party in interest instead of permitting a substitution.
(C)
No further participation. After being disqualified from
a hearing, a party representative may not provide further assistance, either
directly or indirectly, to any party with regard to the hearing, except to
the extent reasonably necessary to appeal to the commissioner and to complete
the withdrawal and substitution of a new party representative.
(D)
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 hearing.
§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. All mailings and deliveries shall be addressed to: Texas
Education Agency, 1701 North Congress Avenue, Suite 2-150, Austin, Texas 78701-1494.
All facsimile filings shall be sent to the following facsimile number: (512)
475-3662.
(d)
All documents filed after 11:59 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.
Unless otherwise provided by law, every pleading, plea, or motion filed
with the agency's division responsible for hearings and appeals shall be served
on all parties or 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.
§157.1052.Answers.
(a)
Except where otherwise provided by law, the respondent
shall file an answer within 30 calendar days after receiving notice from the
commissioner that a hearing 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 well-pled factual allegations
will be deemed admitted unless the respondent's answer, containing specific
responses 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, the administrative law judge or a party
may move for the setting of a prehearing conference. At the administrative
law judge's discretion, the parties shall be directed 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 hearing 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.
(c)
A written request to reschedule a telephonic conference
must contain a statement that all parties have been consulted or the reason
why all parties were not 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;
(2)
written interrogatories to a party governed by Texas Rule
of Civil Procedure 197;
(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;
(4)
requests and motions for production, examination, and copying
of documents or other tangible materials governed by Texas Government Code, §2001.091;
(5)
requests and motions for entry upon and examination of
real property governed by Texas Government Code, §2001.091;
(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
(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)
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)
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 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, 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
may, after opportunity for hearing, issue 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 hearing with or without prejudice;
or rendering a judgment against the disobedient party.
(4)
Abuse of discovery process. The administrative law judge
may impose any of the sanctions listed in paragraph (3) of this subsection
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
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
or the commissioner without the knowledge of all other parties. The administrative
law judge or commissioner may impose any of the preceding sanctions for impermissible
communication.
(7)
Record of basis for sanction. The administrative law judge
shall state the specific basis for any sanction in the record or in a written
order.
§157.1055.Motions.
(a)
A motion for continuance of any hearing shall specifically
articulate grounds constituting good cause or shall be by agreement and shall
be filed in writing.
(b)
All 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, inform the parties of the commissioner's
intent to dismiss a hearing and allow time for response. The commissioner
may then dismiss a hearing without further action for the following reasons:
compromise, unnecessary duplication of proceedings, res judicata, withdrawal,
mootness, untimely filing, lack of jurisdiction, failure of a petitioner to
set forth facts in the pleadings that would support a decision in the petitioner'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 hearing 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.
(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.
(i)
The administrative law judge 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.
(l)
In any hearing 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 hearing 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, 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 hearing 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 and legal conclusions
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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 30, 2004.
TRD-200404321
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: July 20, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 475-1497
19 TAC §§157.1049, 157.1050, 157.1058 - 157.1060
The repeals are adopted 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on June 30, 2004.
TRD-200404322
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: July 20, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 475-1497
The Texas Education Agency (TEA) adopts 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 rule actions result
from the agency's rule review conducted in accordance with Texas Government
Code, §2001.039. The repeal of §§157.1071-157-1074 is adopted
without changes to the proposed text as published in the February 13, 2004,
issue of the
Texas Register
(29 TexReg 1293)
and will not be republished. New §§157.1071-157.1073 are adopted
with changes to the proposed text as published in the February 13, 2004, issue
of the
Texas Register
(29 TexReg 1293). The
adopted 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 adopted repeals and new rules facilitate
the current standard of review and continue to govern detachment and annexation
cases, which are still held as live de novo hearings. The adopted 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 adopted amendments to 19 TAC Chapter 157, Subchapter BB, include the
following rule changes. Changes made in response to public comments subsequent
to publication in the
Texas Register
as proposed
are also noted, as applicable.
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, are repealed to delete obsolete provisions.
New §157.1071, Proceedings in Which the Texas Education Agency is
a Party, is adopted to establish that the State Office of Administrative Hearings
will hear cases in which the agency is a petitioner or respondent. In response
to public comment, language related to proceedings and cases was revised to
reference hearings to increase uniformity within the subchapter. The section
title was changed to Hearings in Which the Texas Education Agency is a Party.
New §157.1072, Proceedings Brought under Texas Education Code, Chapter
21, Subchapter G, is adopted to set forth procedures for employment appeals
to the commissioner by educators. In response to public comment, language
related to appeals, cases, and proceedings was revised to reference hearings
to increase uniformity within the subchapter. The section title was changed
to Hearings Brought Under Texas Education Code, Chapter 21, Subchapter G.
New §157.1073, Proceedings Brought Under Texas Education Code, §7.057,
is adopted 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. In response to public comment, language
related to appeals, cases, and proceedings was revised to reference hearings
to increase uniformity within the subchapter. The section title was changed
to Hearings Brought Under Texas Education Code, §7.057.
The following comments were received regarding adoption of the repeals
and new sections.
Comment. An individual commented that the rules contain inconsistent terminology
involving the terms "appeal" and "hearings."
Agency response. While the word "appeal" was used only in reference to
an agency division and to describe the action taken by a teacher to bring
an employment decision before the commissioner, the agency notes that the
phrases "contested case" and "proceedings" were used. Applicable sections
throughout 19 TAC Chapter 157, Subchapters AA and BB, were modified to use
the word "hearing" or a variant of the word to increase uniformity.
Comment. Regarding §157.1072(c), Proceedings Brought Under Texas Education
Code, Chapter 21, Subchapter G, the Texas State Teachers Association (TSTA)
commented that amendments that include the addition of legal claims and arguments
should be permitted after the statutory filing deadline for a petition for
review. The TSTA noted that a petition for review must be filed within 20
days after the board hearing and that counsel may discover additional arguments
and claims after reviewing the local record.
Agency response. The agency disagrees. The timelines for filing a petition
for review and a response and the local record are statutory. Further, the
legislative intent is clear that these hearings should be resolved as expeditiously
as possible. By allowing petitioners to add claims and arguments after the
filing deadline, the issues for decision will not be solidified until well
into the briefing process. This adversely impacts the commissioner's ability
to have sufficient time to consider all issues brought forward since the deadline
for issuing a decision is mandatory and cannot be extended. The district would
have insufficient time to review and response to the new allegations. No change
was made in response to these comments.
Comment. Regarding §157.1072(d)(1) and (2), the TSTA requested the
addition of a requirement to provide a copy of the local record to the teacher
at no cost.
Agency response. The agency disagrees. There is no legal requirement for
this change. The statute and the rule provide for opportunities for the teacher
to review the record and to obtain the record at a reasonable cost. If the
teacher's attorney is located in Austin, the agency provides easy access to
the record. No change was made in response to this comment.
Comment. Regarding §157.1072(h), the TSTA requested that the rule
allow supplementation of a nonrenewal record when the board of trustees conducted
the hearing.
Agency response. The agency disagrees. The filing of the record is statutory.
Further, the legislative intent is clear that these hearings should be resolved
as expeditiously as possible. This adversely impacts the commissioner's ability
to have sufficient time to consider the record when additions are made late
in the statutory timelines. No change was made in response to this comment.
Comment. Regarding §157.1072(k), the mailbox rule, the TSTA requested
that pleadings should be accepted as timely filed if mailed on or before the
due date and received within five days of the deadline.
Agency response. The agency disagrees. Due to the statutory timelines and
the standard briefing schedule for TEC, Chapter 21, hearings, pleadings arriving
five days after the deadline substantially decreases the time the commissioner
has for considering the pleading or brief. The agency accepted the request
to extend the facsimile filing deadline to midnight; however, no further change
was made in response to this comment.
Comment. Regarding §157.1073(e), Proceedings Brought Under Texas Education
Code, §7.057, the TSTA requested the addition of a requirement to provide
a copy of the local record to the teacher at no cost.
Agency response. The agency disagrees. There is no legal requirement for
this change. The statute and the rule provide for opportunities for the teacher
to review the record and to obtain the record at a reasonable cost. If the
teacher's attorney is located in Austin, the agency provides easy access to
the record. No change was made in response to this comment.
Comment. An individual expressed their belief that equal protection rights
are violated because parents and teachers are afforded different rights of
procedure. The individual asserted that the proposed rules ignore the intent
and purpose of the TEC in giving parents legal status as full partners with
educators.
Agency response. The agency disagrees. All parties are governed by the
same process under §157.1073, governing hearings under TEC, §7.057,
the commissioner's general hearing authority. No change was made in response
to this comment.
Subchapter BB. SPECIFIC APPEALS TO THE COMMISSIONER