Part 2. TEXAS EDUCATION AGENCY
Chapter 97. PLANNING AND ACCOUNTABILITY
Subchapter AA. ACCOUNTABILITY AND PERFORMANCE MONITORING
(Editor's note: In accordance with Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 19 TAC §97.1004 is not included in the print version of the Texas Register. The figure is available in the on-line version of the August 3, 2007, issue of the Texas Register.)
The Texas Education Agency (TEA) adopts an amendment to §97.1004, concerning adequate yearly progress (AYP). The amendment is adopted with non-substantive, pagination changes to the figure adopted as rule but without changes to the proposed rule text published in the June 8, 2007, issue of the Texas Register (32 TexReg 3097). The section establishes provisions related to AYP and sets forth the process for evaluating campus and district AYP status. The section also adopts the most recently published AYP guide. The amendment adopts applicable excerpts, Sections II-V , of the 2007 Adequate Yearly Progress Guide, dated June 2007.
Under the accountability provisions in the federal No Child Left Behind (NCLB) Act, all public school campuses, school districts, and the state are evaluated for AYP. Districts, campuses, and the state are required to meet AYP criteria on three measures: reading/English language arts, mathematics, and either graduation rate (for high schools and districts) or attendance rate (for elementary and middle/junior high schools). If a campus, district, or state receiving Title I, Part A funds fails to meet AYP for two consecutive years, that campus, district, or state is subject to certain requirements such as offering supplemental educational services, offering school choice, or taking corrective actions. To implement these requirements, the agency developed the AYP guide.
Agency legal counsel has determined that the commissioner of education should take formal rulemaking action to place into the Texas Administrative Code procedures related to AYP. Through 19 TAC §97.1004, adopted effective July 14, 2005, the commissioner exercised rulemaking authority to establish provisions related to AYP and set forth the process for evaluating campus and district AYP status. Portions of each AYP guide have been adopted beginning with the 2004 AYP Guide, and the intent is to annually update 19 TAC §97.1004 to refer to the most recently published AYP guide.
The amendment to 19 TAC §97.1004 updates the rule to adopt applicable excerpts, Sections II- V , of the 2007 Adequate Yearly Progress Guide , dated June 2007. These excerpted sections describe specific features of the system, AYP measures and standards, and appeals. In 2007, the U.S. Department of Education (USDE) approved changes to specific components of the AYP system, including the areas addressed in the applicable excerpts of the 2007 AYP Guide. Examples of approved changes include expiration of the May 23, 2006, flexibility agreement regarding evaluation and reporting of information about students displaced by Hurricanes Katrina and Rita; USDE's response to Texas' compliance with the Elementary and Secondary Education Act/NCLB Standards and Assessments Peer Review process; and final regulations regarding the inclusion of limited English proficient students in determining AYP.
In addition, subsection (d) has been modified to specify that the AYP guide adopted for the school years prior to 2007-2008 will remain in effect with respect to those school years.
No changes were made to the rule text since published as proposed, and the actual content of the guide excerpts adopted as rule has not changed. However, non-substantive, pagination corrections were made to the guide excerpts.
The public comment period on the proposal began June 8, 2007, and ended July 8, 2007. The following is a summary of the public comments received on 19 TAC §97.1004 and the corresponding agency response.
Comment. A comment was received from an administrator with the Houston Independent School District. The comment had three parts. First, appeals to remove students identified as displaced by Hurricanes Katrina and Rita (hereafter referred to as displaced students) from the denominator of the Class of 2006 Graduation Rate should be considered. Second, appeals to have prior-year Reading and Mathematics Performance rates recalculated to include displaced students for the purposes of recalculating performance improvement for safe harbor should be considered. Finally, appeals to recalculate Attendance Rate improvement for safe harbor to exclude the impact of displaced students should be considered.
Agency Response. The agency disagrees and will maintain language as proposed. According to page 2 of the agency's flexibility agreement with the U.S. Department of Education on May 23, 2006, regarding the inclusion of displaced students, "[I]n calculating attendance and graduation rates for 2006-07 AYP, Texas must include all students that were in the displaced student subgroup in 2005-06 in all appropriate subgroups." The agency takes the position that implementing the suggestions in the above comment would violate the flexibility agreement; therefore, the agency cannot consider appeals based on displaced students and the figure will be adopted as proposed. The complete May 23, 2006, flexibility agreement is available on the agency's website at http://www.tea.state.tx.us/ayp/flexwaiver.pdf.
The amendment is adopted under the Texas Education Code (TEC), §7.055(b)(32), which authorizes the commissioner to perform duties in connection with the public school accountability system as prescribed by TEC, Chapter 39; TEC, §39.073, which authorizes the commissioner to determine how all indicators adopted under TEC, §39.051(b), may be used to determine accountability ratings; and TEC, §39.075(a)(4), which authorizes the commissioner to conduct special accreditation investigations in response to state and federal program requirements.
The adopted amendment implements the Texas Education Code, §§7.055(b)(32), 39.073, and 39.075(a)(4).
§97.1004.Adequate Yearly Progress.
(a) In accordance with the federal No Child Left Behind Act and Texas Education Code, §§7.055(b)(32), 39.073, and 39.075, all public school campuses, school districts, and the state are evaluated for Adequate Yearly Progress (AYP). Districts, campuses, and the state are required to meet AYP criteria on three measures: reading/English language arts, mathematics, and either graduation rate (for high schools and districts) or attendance rate (for elementary and middle/junior high schools). The performance of a school district, campus, or the state is reported through indicators of AYP status established by the commissioner of education.
(b) The determination of AYP for school districts and charter schools in 2007 is based on specific criteria and calculations, which are described in excerpted sections of the 2007 AYP Guide provided in this subsection.
Figure: 19 TAC §97.1004(b) (.pdf)
(c) The specific criteria and calculations used in AYP are established annually by the commissioner of education and communicated to all school districts and charter schools.
(d) The specific criteria and calculations used in the AYP guide adopted for the school years prior to 2007-2008 remain in effect for all purposes, including accountability, data standards, and audits, with respect to those school years.
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 July 19, 2007.
TRD-200703069
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 8, 2007
Proposal publication date: June 8, 2007
For further information, please call: (512) 475-1497
The Texas Education Agency (TEA) adopts an amendment to §97.1005, concerning accountability and performance monitoring. The amendment is adopted without changes to the proposed text as published in the June 8, 2007, issue of the Texas Register (32 TexReg 3098) and will not be republished. The section describes the purpose of the Performance-Based Monitoring Analysis System (PBMAS) and manner in which school districts and charter school performance is reported. The section also adopts the most recently published PBMAS Manual. The amendment adopts applicable excerpts of the Performance- Based Monitoring Analysis System 2007 Manual, dated June 2007. Earlier versions of the manual will remain in effect with respect to the school years for which they were developed.
House Bill 3459, 78th Texas Legislature, 2003, added the Texas Education Code (TEC), §7.027, limiting and redirecting monitoring done by the TEA to that required to ensure school district and charter school compliance with federal law and regulations; financial accountability, including compliance with grant requirements; and data integrity for purposes of the Public Education Information Management System (PEIMS) and accountability under TEC, Chapter 39. Legislation passed in 2005 renumbered TEC, §7.027, to TEC, §7.028. To meet this monitoring requirement, the agency developed the PBMAS, which is used in conjunction with other evaluation systems, to monitor performance and program effectiveness of special programs in school districts and charter schools.
Agency legal counsel has determined that the commissioner of education should take formal rulemaking action to place into the Texas Administrative Code procedures related to the PBMAS. Given the statewide application of the PBMAS and the existence of sufficient statutory authority for the commissioner of education to formally adopt rules in this area, portions of each annual PBMAS Manual have been adopted since the first PBMAS Manual was developed in 2004-2005. The PBMAS evolves from year to year, and the intent is to annually update 19 TAC §97.1005 to refer to the most recently published PBMAS Manual.
The adopted amendment to 19 TAC §97.1005 updates the current rule by adopting excerpted sections of the PBMAS 2007 Manual, dated June 2007. These excerpted sections describe the specific criteria and calculations used to assign 2007 PBMAS performance levels. The 2007 PBMAS includes several key changes from the 2006 system. A new graduation rate indicator is previewed in each of the four program areas. Performance levels will be assigned for the four Recommended High School Program/Distinguished Achievement Program indicators that have been Report Only for the last three years. The Career and Technology Education program area has been renamed Career and Technical Education (CTE). In addition, the Nontraditional Course indicators in the CTE program area are reported using a new list of nontraditional courses. The Highly Qualified Teachers indicator has been deleted from the No Child Left Behind program area. The required improvement component has been expanded to many more indicators, and science has been added as a subject area for which professional judgment special analysis is available on certain indicators. The Texas Assessment of Knowledge and Skills-Alternate (TAKS-Alt) has been added to the PBMAS participation indicators. Two indicators in the special education program area that evaluate placements in less restrictive environments (LRE) have changed. A performance level will be assigned to the 3-5 LRE indicator, and the age range for the 3-11 LRE indicator has changed to 6-11. Additional numerator controls have been added to the special education identification and representation indicators, and some of the performance level cut points for the representation indicators have been adjusted. The special education Statewide Assessment Exemption indicator has been suspended for 2007 and will be revised in 2008 to reflect new assessments for students with disabilities. Finally, additional specificity has been added to the 2007 PBMAS performance levels to designate required improvement and professional judgment special analysis. Changes to the PBMAS indicators for 2007 are marked in the manual as "New!" for easy reference.
The adopted amendment also amends language in subsection (a) to update the name of the career and technical education program. In addition, subsection (d) is modified to specify that the PBMAS manual adopted for the school years prior to 2007-2008 will remain in effect with respect to those school years.
No changes were made to the rule or manual excerpts adopted as rule since published as proposed.
The public comment period on the proposal began June 8, 2007, and ended July 8, 2007. No public comments were received.
The amendment is adopted under the Texas Education Code, §7.028, which authorizes the agency to monitor as necessary to ensure school district and charter school compliance with state and federal law and regulations.
The amendment implements the Texas Education Code, §7.028.
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 July 19, 2007.
TRD-200703070
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 8, 2007
Proposal publication date: June 8, 2007
For further information, please call: (512) 475-1497
Chapter 228. REQUIREMENTS FOR EDUCATOR PREPARATION PROGRAMS
The State Board for Educator Certification (SBEC) adopts an amendment to §228.10, relating to requirements for educator preparation programs. The amendment is adopted without changes to the proposed text as published in the March 30, 2007, issue of the Texas Register (32 TexReg 1822) and will not be republished. The section addresses the approval process for requesting additional certificate fields. The adopted amendment updates the process for requesting additional certificate fields to ensure that educator preparation programs have the capacity to offer support, training, and quality coursework for candidates.
Texas Education Code (TEC), §21.049, authorizes the SBEC to adopt rules providing for educator certification programs as an alternative to traditional educator preparation programs. The rule in 19 TAC §228.10, Approval Process, specifies the current process for approving new and continuing entities, adding certificate fields for fully accredited programs, and denying approval. The rule also specifies approval contingent on compliance with state and/or federal law and approval of other lawfully established governing bodies.
Section 228.10(c) establishes that programs fully accredited may request by "letter of intent" the addition of certificate fields within the classes of certificates for which they have been previously approved by the SBEC. The rule also currently states that the request must be approved by the executive director.
The current approval process in the rule is meant to save time; however, the process does not ensure that educator preparation programs have the staff and resources to adequately support the candidates in the additional certificate fields. Although most new program proposals only request one or few certificate fields, the practice has been to add other fields using the "letter of intent" process authorized in 19 TAC §228.10(c)(1). Research conducted by Educator Standards staff at the Texas Education Agency revealed that the 19 educator preparation programs rated "Accredited Preliminary Status" for the 2004-2005 school year have added 321 additional certificate fields. Eight of those programs added the certificate fields following SBEC board action taken on May 6, 2005, that allowed the executive director to grandfather educator preparation programs between January and March 2005 by way of letters of intent. Research also identified eight educator preparation programs that added 138 certificate fields contrary to the rule.
The adopted amendment to 19 TAC §228.10 modifies the current process for educator preparation programs to add certificate fields to allow for higher standards. The adopted amendment adds language to §228.10(c)(1) requiring that requests for additional certificate fields include a curriculum alignment matrix, as required in the initial proposal, and supporting documentation of staff expertise in the additional certificate field. Only educator preparation programs that have a current "Accredited" rating may submit requests for additional certificate fields. The "Accredited" rating is determined by the student pass rates on approved certificate area examinations as indicated by the annual accountability rating in the Accountability System for Educator Preparation (ASEP), codified in 19 TAC Chapter 229. The ASEP would include certificate fields under 19 TAC §229.4 beginning in Spring 2007.
Throughout 19 TAC §228.10, "executive director" was changed to "Texas Education Agency staff" to reflect the assignment of the SBEC's administrative functions and services to the Texas Education Agency in TEC, §21.035. Adopted new subsection (c)(3) was added to track that statutory assignment. In addition, House Bill 1116, 79th Texas Legislature, Regular Session, 2005, repealed TEC, §21.039, which established the SBEC executive director position. Other technical edits, such as changing "board" to "State Board for Educator Certification," were made for clarity.
No comments were received regarding adoption of the amendment.
The State Board of Education (SBOE) took no action on the review of the adopted amendment to 19 TAC §228.10 at the July 20, 2007, SBOE meeting.
The amendment is adopted under the TEC, §21.031(a), which vests the SBEC with the authority to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of Chapter 21, Subchapter B, in a manner consistent with that subchapter; §21.041(b)(2), which requires the SBEC to specify the classes of certificates to be issued; §21.044, which requires the SBEC to propose rules establishing the training requirements and minimum academic qualifications required for a certificate; §21.045(a), which requires the SBEC to propose rules establishing standards to govern the approval and continuing accountability of all educator preparation programs; and §21.049, which authorizes the SBEC to adopt rules providing for educator certification programs as an alternative to traditional educator preparation programs.
The adopted amendment implements TEC, §§21.031(a), 21.041(b)(1) and (2), 21.044, 21.045(a), and 21.049.
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 July 20, 2007.
TRD-200703085
Raymond Glynn
Associate Commissioner, Educator Quality and Standards
State Board for Educator Certification
Effective date: August 9, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 475-1497
The State Board for Educator Certification (SBEC) adopts an amendment to §233.12, relating to categories of classroom teaching certificates. The amendment is adopted without changes to the proposed text as published in the February 2, 2007, issue of the Texas Register (32 TexReg 435) and will not be republished. The section addresses career and technology education (certificates not requiring experience and preparation in skills areas). The adopted amendment establishes in permanent rule the new TExES-based Business Education: Grades 6 - 12 certificate.
Texas Education Code (TEC), §21.041(b)(2), authorizes the SBEC to specify in rule the classes of educator certificates to be issued. Section 233.12, Career and Technology Education (Certificates not requiring experience and preparation in skills areas), establishes educator certificates for areas of Career and Technology Education. Section 233.12 also addresses prerequisites for teachers assigned to Career Investigation and Career Connections courses.
In January 2004, the SBEC approved, but not in rule, new TExES-based classroom teaching certificates for Agricultural Science and Technology, Business Education, Dance, Journalism, Marketing Education, Speech, and Theatre. The SBEC also took action to adopt the educator standards for these new certificates.
In December 2004, the SBEC discussed amendments to 19 TAC Chapter 233, Categories of Classroom Teaching Certificates, to establish the new certificates in rule, including the Business Education: Grades 6 - 12 certificate. In January 2005, the SBEC approved as proposed the amendments to include the new certificates in 19 TAC Chapter 233; however, due to a delay in the test development process, the Business Education: Grades 6 - 12 certificate was not included in the proposed rule changes. The TExES exam development was delayed due to stakeholder committee input to revise the test frameworks to ensure a quality exam.
Subsequent SBEC rule actions taken to adopt the new certificates were finalized in June 2006; however, the Business Education: Grades 6 - 12 certificate was not included because it was not a part of the original proposal.
In November 2006, staff presented an emergency amendment to establish the Business Education: Grades 6 - 12 certificate by rule together with an identical proposed amendment for permanent adoption. At that meeting, the SBEC approved a modified emergency amendment and requested that staff bring back a proposed amendment for permanent adoption that would specify a time frame by when holders of the Business Education: Grades 6 - 12 certificate would be required to attend and participate in a Texas Education Agency (TEA) sponsored Career and Technology Education Professional Development Conference.
At the January 2007 meeting, the SBEC approved for filing as proposed the amendment to 19 TAC §233.12 that would encourage and not require holders of the new business education certificate to attend and participate in a Career and Technology Education Professional Development Conference sponsored by the TEA during the first year of assignment. In January, the SBEC also approved an extension of the emergency effectiveness for an additional 60 days.
To address the issue of two separate standards for attending a professional development conference that existed in the emergency rule and in the adopted amendment to §233.12, the SBEC also took action at its January 2007 meeting to clarify that the adopted amendment to §233.12, as it relates to the professional development conference, would apply to individuals who obtain the Business Education: Grades 6 - 12 certificate under the emergency rule. Holders of the Business Education: Grades 6 - 12 certificate issued under the emergency rule would only be encouraged and not required to attend a TEA-sponsored career and technology education professional development conference.
The adopted amendment to 19 TAC §233.12, adds the Business Education: Grades 6 - 12 certificate by rule and specifies a date for issuance. The adopted amendment also includes language to encourage holders of the new business education certificate to attend and participate in a Career and Technology Education Professional Development Conference sponsored by the TEA during the first year of assignment. A technical change is made to update the section title.
No comments were received regarding adoption of the amendment.
The State Board of Education (SBOE) took no action on the review of the adopted amendment to 19 TAC §233.12 at the July 20, 2007, SBOE meeting.
The amendment is adopted under the TEC, §21.041(b)(2), which requires the SBEC by rule to specify the classes of certificates to be issued.
The adopted amendment implements the TEC, §21.041(b)(2).
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 July 20, 2007.
TRD-200703086
Raymond Glynn
Associate Commissioner, Educator Quality and Standards
State Board for Educator Certification
Effective date: August 9, 2007
Proposal publication date: February 2, 2007
For further information, please call: (512) 475-1497
Subchapter B. ENFORCEMENT ACTIONS AND GUIDELINES
The State Board for Educator Certification (SBEC) adopts an amendment to §249.14, relating to enforcement actions and guidelines. The amendment is adopted with changes to the proposed text as published in the February 2, 2007, issue of the Texas Register (32 TexReg 436). The section addresses complaints, required reporting, investigations, and the agency's filing of petitions. The adopted amendment updates the rule to reflect statutory changes and adds clarification regarding an investigative notice that may be placed on an educator's certification records. The provisions for an investigative notice include assignment of priority levels based on the severity of allegations in the case.
Texas Education Code (TEC), §21.041(b)(7), authorizes the SBEC to adopt rules that provide for disciplinary proceedings for certificate holders. The rule in 19 TAC §249.14, Complaint, Required Reporting, and Investigation; Agency's Filing of Petition, specifies the current process to take complaints, requires reports of suspected misconduct, authorizes the investigation of certified educators, and allows the agency the ability to initiate contested case proceedings. As established in subsection (g), the rule provides staff with the ability to set priorities for its investigations based on the severity and immediacy of the allegation of misconduct as well as the likelihood of harm posed by the subject of the investigation.
The following adopted changes to 19 TAC §249.14 improve and enhance the disciplinary investigation process.
Subsection (d) is revised to clarify the definition of minor as a student or minor. Adopted new subsection (d)(2)(F) adds specificity regarding the types of acts used for determining the circumstances under which the superintendent must file a report with the Texas Education Agency (TEA) staff.
Subsection (g) is revised to create a two-tiered prioritization system. Adopted new subsections (g)(1) and (2) add specificity regarding the types of allegations and assign a prioritization status based on the nature and severity of the allegation. Adopted new subsection (g)(3) allows staff to change the prioritization based on information received after the investigation has been initiated and clarify that an investigative notice will not be created in response to allegations of a Priority 2 conduct. Adopted new subsection (g)(4) adds a definition for "serious testing violation."
Adopted new subsection (h) addresses placement of an investigative notice on the certificate holder's certification records based on the severity of the allegations in each case.
Adopted new subsection (i) establishes the opportunity and manner through which an educator may show cause why an investigative notice should not be placed on his or her certification records. This process includes the requirement that the certificate holder be notified of an investigation at least ten days before placing a notice on his or her certification records.
Adopted new subsection (j) establishes time limits for an investigative notice. Subsection (j)(1) tolls the running of the time limits while a criminal matter is pending. Subsection (j)(2) also defines criminal matter for purposes of subsection (j) and, in response to public comment, provides that TEA staff will attempt to check the status of pending criminal investigations every two months to determine whether the criminal investigation has been closed or otherwise resolved. In addition, in response to public comment, subsection (j)(3) allows the time limit for an investigative notice to be tolled upon agreement of the parties.
Adopted new subsection (k) specifies the conditions for removal of an investigative notice.
Existing subsection (h), relating to filing a petition, is designated as new subsection (l) with technical edits made to the rule text.
New subsection (m) is added, in response to public comment, to define romantic relationship.
A technical edit changing the section title to reflect the addition of an investigative notice provision is made to 19 TAC §249.14.
Throughout 19 TAC §249.14, "executive director" was changed to "Texas Education Agency staff" to reflect the assignment of the SBEC's administrative functions and services to the TEA in TEC, §21.035. Adopted new subsection (m) is added to track that statutory assignment. In addition, House Bill 1116, 79th Texas Legislature, Regular Session, 2005, repealed TEC, §21.039, which established the SBEC executive director position.
Additional technical edits are made in §249.14 to define "board" as "State Board for Educator Certification." Also, references to "license/permit" remain as "permit" for consistency throughout Chapter 249.
Following the January 2007 SBEC meeting, notice of the proposed amendment was filed with the Texas Register initiating the official public comment period. The following comments were received regarding adoption of the amendment.
Comment. The Texas State Teachers Association (TSTA) commented that §249.14(d)(2)(F) should be amended so that the superintendent of a school district would not be required to report to the SBEC when a certificate holder is terminated from employment based on a determination that the certificate holder solicited or engaged in a romantic relationship with a student or minor.
Response. The SBEC disagreed and took action to adopt the amendment, subject to State Board of Education (SBOE) review, as published as proposed. The solicitation of a romantic relationship is the type of serious misconduct that indicates the certificate holder is a danger to the health, safety, or welfare of the students and needs to be reported to the SBEC. The educator is in a position of authority in relation to the students by reason of age, experience, and education, while the students are in a vulnerable position relative to the educator by reason of youth and inexperience. The educator may also be responsible for assigning grades to the student, and may control the student's participation in extracurricular activities. Because of this power imbalance, the educator must maintain the appropriate boundaries with the student. When the educator violates these boundaries by soliciting a romantic relationship with the student, the educator has committed serious misconduct. Because this type of misconduct can seriously harm a student, the SBEC needs to know when such misconduct occurs in order to fulfill its responsibilities to protect the safety and welfare of Texas schoolchildren.
Comment. The TSTA commented that §249.14(g)(1)(L) should be amended so that the solicitation of romantic relationship would be removed from the class of offenses that would receive an investigative notice under the procedures established in the rule.
Response. The SBEC disagreed and took action to adopt the amendment, subject to SBOE review, as published as proposed. As stated in the response to the previous comment, the SBEC considers the solicitation of a romantic relationship to be serious misconduct and a threat to the health, safety, or welfare of Texas schoolchildren, and that the investigative notice procedure should apply to this type of misconduct.
Comment. The Association of Texas Professional Educators (ATPE) commented that §249.14(j)(1) should be amended so that the duration of the placement of an investigative notice be limited to 180 days. The ATPE stated that 180 days would be a reasonable time limit to prevent disciplinary cases from languishing at the agency.
Response. The SBEC disagreed and took action to adopt the amendment, subject to SBOE review, as published as proposed.
Comment. The Texas Federation of Teachers (TFT) commented that §249.14(j)(1) should be amended to reduce the 240-day limit for placement of an investigative notice to 180 days.
Response. The SBEC disagreed and took action to adopt the amendment, subject to SBOE review, as published as proposed.
Comment. The TSTA commented that §249.14(j)(2) should be amended so that the time limits for the investigative notice will be tolled due to a pending criminal matter only when an indictment, issued by a grand jury, or an information, issued by a prosecutor, has been received.
Response. The SBEC disagreed. However, the SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The agency tolls the time limit for the investigative flag while a criminal investigation is pending in order to allow that process to reach its completion. The adopted amendment includes the modification of 19 TAC §249.14(j)(2) to clarify criminal matter by moving the definition of a criminal matter within subsection (j)(2). In addition, the adopted amendment also specifies a procedure to determine whether the criminal investigation has been closed or otherwise resolved.
For certain offenses, a conviction in the criminal process will result in an automatic revocation of the certificate without the necessity of an administrative hearing pursuant to TEC, §21.058. For other criminal offenses, the Occupations Code allows certain actions based on a conviction. In these instances, the tolling of the time limits helps conserve resources by preventing unnecessary hearings.
Not all types of misconduct that indicate the certificate holder is a threat to the health, safety, or welfare of Texas schoolchildren will generate a criminal indictment or an information filed with a criminal court. For instance, making alcohol available to a minor is not the type of crime that typically results in an indictment or an information. However, providing alcohol to a minor is a serious offense for a holder of a Texas teaching certificate.
The certificate holder is protected in these instances by the procedures in §249.14(i), which allow the certificate holder to show cause why an investigative notice should not be placed on the certificate holder's certification records. The agency does provide the certificate holder the ability to respond to the information the agency has received.
Comment. The TSTA commented that the rule should require the TEA staff to contact law enforcement to check on the status of a criminal matter.
Response. The SBEC agreed. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. When the time limits for an investigative notice are tolled based on a pending criminal matter, the accused educator would typically already know when that matter is pending. However, if the notice was issued based on a pending criminal investigation, the educator may not know when that investigation is closed. The adopted amendment to §249.14(j)(2) includes language specifying that staff will attempt to check the status of the pending criminal investigation once every two months.
Comment. The ATPE commented that §249.14(j)(2) should be rewritten to remove criminal investigation tolling language, stating that the proposed language is too broad to be meaningful. The ATPE expressed concern about the definition of events sufficient to toll the investigative notice and the length of time the TEA staff would keep an investigative notice on the educator's certificate. The ATPE requested that the SBEC adopt a reasonable time limit with specific, limited exceptions for extraordinary circumstances.
Response. The SBEC disagreed with removing the criminal investigation tolling language in subsection (j)(2) but agreed with clarifying the time limit. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The adopted amendment specifies that a criminal matter includes an arrest, an investigation, or prosecution by a criminal law enforcement agency. The agency tolls the time limit for the investigative flag while the criminal investigation is pending in order to allow that process to reach its completion. The adopted language also clarifies that the tolling period shall end upon receiving notice that the criminal matter has been resolved. In addition, §249.14(j)(3) was modified at adoption to include that TEA staff may toll the time limit upon agreement of the parties.
Comment. The TFT commented that §249.14(j)(2) should be amended to remove reference to investigations and the time limit. The TFT is concerned that this subsection would allow the agency, if a related criminal matter is ongoing, to suspend the clock. The TFT stated that an "investigation" is something that can be initiated by an individual law enforcement officer; however, it is not limited in time nor is it reviewed by any outside authority. The TFT cited an arrest warrant as an example.
Response. The SBEC disagreed with removing the criminal investigation tolling language in subsection (j)(2) but agreed with clarifying the time limit. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The adopted amendment specifies that a criminal matter includes an arrest, an investigation, or prosecution by a criminal law enforcement agency. The agency tolls the time limit for the investigative flag while the criminal investigation is pending in order to allow that process to reach its completion. The adopted language also clarifies that the tolling period shall end upon receiving notice that the criminal matter has been resolved. In addition, §249.14(j)(3) was modified at adoption to include that TEA staff may toll the time limit upon agreement of the parties.
Comment. The TSTA commented that §249.14(j)(3) should be amended so that the time limit for the investigative notice may be tolled by the agreement of both parties.
Response. The SBEC agreed. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The adopted amendment includes the modification to 19 TAC §249.14(j)(3) to allow for the extension of the time limits upon the agreement of both parties.
Comment. The Texas Classroom Teachers Association (TCTA) commented that minor characteristics such as hugging and kissing a student, which pre-kindergarten and kindergarten teachers do on a regular basis, are included in §249.14(m). The TCTA asked that subsection (m) be struck and that a stakeholder meeting be held that would include discussion of language in subsection (m).
Response. The SBEC agreed with the need for clarification. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The adopted amendment includes modifying 19 TAC §249.14(m)(2)(H) to clarify that inappropriate hugging, kissing, or excessive touching would constitute solicitation of a romantic relationship.
Comment. The TSTA commented that the term solicitation of a romantic relationship is too vague.
Response. The SBEC agreed. The SBEC took action to adopt the amendment, subject to SBOE review, with changes since published as proposed. The adopted amendment includes modifying 19 TAC §249.14(m)(2) to clarify the types of acts that may indicate that the educator has solicited a romantic relationship with a student. Also, §249.14(m)(2)(H) was modified at adoption to clarify that inappropriate hugging, kissing, or excessive touching would constitute solicitation of a romantic relationship.
The SBOE took no action on the review of the adopted amendment to 19 TAC §249.14 at the July 20, 2007, SBOE meeting.
At its July 27, 2007, meeting, the SBEC is scheduled to consider additional changes to §249.14 for filing as proposed to comply with Senate Bill 9, 80th Texas Legislature, 2007.
The amendment is adopted under the TEC, §21.041(b)(7), which requires the SBEC by rule to provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Government Code, Chapter 2001.
The adopted amendment implements the TEC, §21.041(b)(7).
§249.14.Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition.
(a) The Texas Education Agency (TEA) staff may obtain and investigate information concerning alleged improper conduct by an educator, applicant, examinee, or other person subject to this chapter that would warrant the State Board for Educator Certification (SBEC) denying relief to or taking disciplinary action against the person or certificate.
(b) Complaints against an educator, applicant, or examinee must be filed in writing.
(c) The TEA staff may also obtain and act on other information providing grounds for investigation and possible action under this chapter.
(d) A person who serves as the superintendent of a school district or the director of an open-enrollment charter school, private school, regional education service center, or shared services arrangement shall promptly notify in writing the SBEC by filing a report with the TEA staff within seven calendar days of the date the person first obtains or has knowledge of information indicating any of the following circumstances:
(1) that an applicant for or a holder of a certificate has a reported criminal history;
(2) that a certificate holder was terminated from employment based on a determination that he or she committed any of the following acts:
(A) sexually or physically abused a student or minor or engaged in any other illegal conduct with a student or minor;
(B) possessed, transferred, sold, or distributed a controlled substance;
(C) illegally transferred, appropriated, or expended school property or funds;
(D) attempted by fraudulent or unauthorized means to obtain or to alter any certificate or permit that would entitle the individual to be employed in a position requiring such certificate or permit or to receive additional compensation associated with a position;
(E) committed a crime, any part of such crime having occurred on school property or at a school-sponsored event; or
(F) solicited or engaged in sexual conduct or a romantic relationship with a student or minor; or
(3) that a certificate holder resigned and reasonable evidence supported a recommendation by the person to terminate a certificate holder because he or she committed one of the acts specified in paragraph (2) of this subsection.
(A) Before accepting an employee's resignation that, under this paragraph, requires a person to notify the SBEC by filing a report with the TEA staff, the person shall inform the certificate holder in writing that such a report will be filed and sanctions against his or her certificate may result as a consequence.
(B) A person required to comply with paragraph (3) of this subsection shall notify the governing body of the employing school district before filing the report with the TEA staff.
(e) A report filed under subsection (d) of this section shall, at a minimum, summarize the factual circumstances requiring the report and identify the subject of the report by providing the following available information: name and any aliases; certificate number, if any, or social security number; and last known mailing address and home and daytime phone numbers. A person who is required to file a report under subsection (d) of this section but fails to do so timely is subject to sanctions under this chapter.
(f) The TEA staff shall not pursue sanctions against an educator who is alleged to have abandoned his or her contract in violation of the Texas Education Code (TEC), §§21.105(c), 21.160(c), or 21.210(c), unless the board of trustees of the employing school district:
(1) renders a finding that good cause did not exist under the TEC, §§21.105(c)(2), 21.160(c)(2), or 21.210(c)(2); and
(2) submits a written complaint to the TEA staff within 30 calendar days after the educator separates from employment.
(g) To efficiently administer and implement the SBEC's purpose under this chapter and the TEC, the TEA staff may set priorities for the investigation of complaints based on the severity and immediacy of the allegations and the likelihood of harm posed by the subject of the investigation. All cases accepted for investigation shall be assigned one of the following priorities:
(1) Priority 1: conduct that indicates a risk to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague, including but not limited to the following:
(A) any conduct constituting a felony criminal offense;
(B) indecent exposure;
(C) public lewdness;
(D) child abuse and/or neglect;
(E) possession of a weapon on school property;
(F) drug offenses occurring on school property;
(G) sale to or making alcohol or other drugs available to a student or minor;
(H) sale, distribution, or display of harmful material to a student or minor;
(I) certificate fraud;
(J) serious testing violations;
(K) deadly conduct; and
(L) conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.
(2) Priority 2: other conduct including but not limited to the following:
(A) any conduct constituting a misdemeanor criminal offense or testing violation which is not described as Priority 1 under paragraph (1) of this subsection;
(B) contract abandonment; and
(C) code of ethics violations.
(3) An investigative notice will not be placed on an educator's certification records on the basis of an allegation of Priority 2 conduct. The TEA staff may change a case's priority at any time based on information received.
(4) For purposes of this subsection, a serious testing violation is a failure to observe the requirements of test administration established by the commissioner of education in a manner that involves dishonesty or intent to affect the test score of a student or action that is calculated to effect the accountability rating of a school district or campus.
(h) After accepting a case for investigation, the TEA staff may place an investigative notice on the certificate holder's certification records stating that the certificate holder is currently under investigation for conduct described in subsection (g)(1) of this section. The placement of an investigative notice must follow the procedures set forth in subsection (i) of this section.
(i) Prior to placing an investigative notice on an educator's certification records, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.
(1) At least ten days before placing an investigative notice on the educator's certification records, the letter notifying the certificate holder of the investigation shall be mailed to the address provided to the TEA staff pursuant to the requirements set forth in §230.431 of this title (relating to Procedures in General).
(2) The letter notifying the certificate holder of the investigation shall include a statement of the alleged conduct which forms the basis for the investigative notice and shall provide the certificate holder the opportunity to show cause within ten days why the notice should not be placed on the educator's certification records.
(3) The TEA staff shall determine whether or not to place an investigative notice on the educator's certification records, taking into account the educator's response, if any, to the letter notifying the certificate holder of the investigation.
(j) An investigative notice is subject to the following time limits.
(1) An investigative notice may remain on the certification records of a certificate holder for a period not to exceed 240 calendar days.
(2) The TEA staff may toll this time limit if information is received indicating that there is a pending criminal matter related to the alleged act of misconduct that gives rise to the investigative notice. For purposes of this subsection, a criminal matter includes an arrest, an investigation, or a prosecution by a criminal law enforcement agency. Upon receiving notice that the criminal matter has been resolved the tolling period shall end. As part of its procedure, the TEA staff will attempt to make bimonthly (once every two months) contact with a law enforcement agency where a criminal investigation is pending to determine whether the criminal investigation has been closed or otherwise resolved.
(3) The TEA staff may toll this time limit if the matter is referred for a contested case hearing, or upon agreement of the parties.
(k) The TEA staff shall remove an investigative notice from the certification records in the following situations.
(1) When a case's final disposition occurs within the time limits established in subsection (j) of this section, an investigative notice shall be removed.
(2) If the time limits for an investigative notice have been exceeded; and
(A) the certificate holder has made a written demand to the TEA staff that the investigative notice be removed because the time limits have been exceeded; and
(B) the TEA staff has failed to refer the matter to the State Office of Administrative Hearings for a contested case hearing within 30 calendar days from the date of receipt of the written demand to remove the investigative notice.
(l) Only the TEA staff may file a petition seeking sanctions under §249.15 of this title (relating to Disciplinary Action by Board). Prior to filing a petition, the TEA staff shall mail to the certificate holder affected by written notice of the facts or conduct alleged to warrant the intended action and shall provide the certificate holder an opportunity to show compliance with all requirements of law.
(m) The following words and terms, when used in this section, shall have the following meanings.
(1) For purposes of this section, "TEA staff" means staff of the Texas Education Agency assigned by the commissioner of education to perform the SBEC's administrative functions and services.
(2) For purposes of this section, solicitation of a romantic relationship means deliberate or repeated acts that can be reasonably interpreted as soliciting a relationship characterized by an ardent emotional attachment or pattern of exclusivity. Acts that constitute the solicitation of a romantic relationship include, but are not limited to:
(A) behavior, gestures, expressions, communications, or a pattern of communication with a student that are unrelated to the educator's job duties and which may reasonably be interpreted as encouraging the student to form an ardent or exclusive emotional attachment to the educator, including statements of love, affection or attraction. When evaluating whether communications constitute the solicitation of a romantic relationship, the TEA staff may consider the following:
(i) the nature of the communications;
(ii) the timing of the communications;
(iii) the extent of the communications;
(iv) whether the communications were made openly or secretly;
(v) the extent that the educator attempts to conceal the communications;
(vi) if the educator claims to be counseling a student, the SBEC may consider whether the educator's job duties included counseling, whether the educator reported the subject of the counseling to the student's guardians or to the appropriate school personnel, or, in the case of alleged abuse or neglect, whether the educator reported the abuse or neglect to the appropriate law enforcement agencies; and
(vii) any other communications tending to show that the educator solicited a romantic relationship with the student;
(B) making inappropriate comments about a student's body;
(C) making sexually demeaning comments to a student;
(D) making comments about a student's potential sexual performance;
(E) requesting details of a student's sexual history;
(F) requesting a date;
(G) engaging in conversations regarding the sexual problems, preferences, or fantasies of either party;
(H) inappropriate hugging, kissing, or excessive touching;
(I) suggestions that a romantic relationship is desired after the student graduates, including post-graduation plans for dating or marriage; and
(J) any other acts tending to show that the educator solicited a romantic relationship with the student, including, but not limited to, providing the student with drugs or alcohol.
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 July 20, 2007.
TRD-200703087
Raymond Glynn
Associate Commissioner, Educator Quality and Standards
State Board for Educator Certification
Effective date: August 9, 2007
Proposal publication date: February 2, 2007
For further information, please call: (512) 475-1497
The State Board for Educator Certification (SBEC) adopts amendments to §§249.48 - 249.51, relating to enforcement of the educator's code of ethics. The amendment to §249.48 is adopted without changes to the proposed text as published in the February 2, 2007, issue of the Texas Register (32 TexReg 438) and will not be republished. The amendments to §§249.49 - 249.51 are adopted with changes to the proposed text published in the February 2, 2007, issue. The sections establish provisions relating to time for filing of complaint; form of complaint; required service; local resolution; grounds for dismissal of a complaint by executive director or review committee; and executive director's review and notice. The adopted amendments update the current rules to reflect statutory changes and allow the Texas Education Agency (TEA) staff assigned to handle the complaints on behalf of the SBEC the option to dismiss complaints by declining to pursue sanctions or by issuing a letter of caution.
Texas Education Code (TEC), §21.041(b)(7) and (8), authorize the SBEC to adopt rules providing for disciplinary proceedings and enforcing the educator's code of ethics. The rules in 19 TAC Chapter 249, Subchapter F, Enforcement of the Educator's Code of Ethics, specify the current process to resolve ethical disputes.
Currently, §249.48, Time for Filing of Complaint, establishes the time limit for the filing of an educator's code of ethics complaint as 90 calendar days after the date of the last act giving rise to the complaint. Section 249.49, Form of Complaint; Required Service; Local Resolution, specifies the information that must be included in a code of ethics complaint and verified by affidavit. This section also specifies that the complaint filed with the executive director must also be served on the educator at the same time via certified mail and that the superintendent or president of the board of trustees shall resolve a code of ethics complaint within 45 calendar days after receiving the notice in writing. Section 249.50, Grounds for Dismissal of a Complaint by Executive Director or Review Committee, establishes the grounds for dismissing all or part of a code of ethics complaint. Section 249.51, Executive Director's Review and Notice, establishes the requirements, including timelines, for reviewing code of ethics complaints.
The adopted amendments to 19 TAC Chapter 249, Subchapter F, Enforcement of the Educator's Code of Ethics, modify the current resolution process for code of ethics complaints to address the following issues and allow for a more efficient resolution.
The current resolution process in rule is cumbersome and inefficient, resulting in a backlog of complaints. Many of the complaints could have been resolved through another governmental entity that is responsible for the alleged violation, or could have been dismissed early if the alleged ethical violation did not rise to the level that would justify a sanction.
The time limit currently in rule for filing a complaint does not allow a complaint to be filed more than 90 days after the last act giving rise to the complaint. This rule prevented complaints from being filed when it took time for the complainant to discover the alleged ethical violation.
The educator's code of ethics also requires processing of complaints that claim violation of any state or federal statute or regulation. Many of these statutes and regulations are enforced by another state or federal agency, but the code of ethics processes do not require the complainant to resolve their complaint at the appropriate agency as a prerequisite to seeking sanctions against a certified educator. As a result, the SBEC is called on to interpret and make rulings on areas of the law outside of its subject matter expertise or responsibility.
Currently, the educator's code of ethics also does not allow for an expedited disposition when the alleged ethical violation is one that does not rise to the level that requires a state-issued sanction. The TEA staff should have the ability to dismiss complaints where staff has decided, as a matter of policy, that the alleged unethical behavior is not worthy of a sanction. For the purpose of efficiency, the TEA staff should be able to do this without requesting a response from the educator or making factual and legal findings.
In response to these issues, the following amendments are adopted to 19 TAC Chapter 249, Subchapter F, §§249.48-249.51.
Section 249.48 was amended to modify the time limit for filing an educator's code of ethics complaint by allowing complaints to be filed after the date on which the complainant knew or should have known the date of the last act giving rise to the complaint.
Section 249.49 was amended to add language to subsection (b) that authorizes staff to limit the volume of exhibits and require a clear reference to exhibits in a code of ethics complaint. This section was also amended to add new subsection (e) to establish that TEA staff are able to suspend consideration of a complaint pending resolution of a separate complaint by another agency with appropriate jurisdiction.
Section 249.50 was amended to add new paragraph (5) to revise the factors used to determine dismissal of all or part of a code of ethics complaint to include allegations that do not warrant a sanction or only warrant a notice of disposition. In response to public comments, "letter of caution" was changed to "notice of disposition." The section title was updated to reflect the change from executive director to the TEA staff. Additional non-substantive, technical edits were also made to this section for clarity.
Section 249.51 was amended to add new subsection (e) to allow the TEA staff to dismiss a code of ethics complaint if the alleged conduct warrants no sanctions or only a notice of disposition to the educator. The section title was updated to reflect the change from executive director to the TEA staff. Additional non-substantive, technical edits were also made to this section for clarity.
Throughout 19 TAC §§249.48 - 249.51, "executive director" was changed to "Texas Education Agency staff" to reflect the assignment of the SBEC's administrative functions and services to the TEA in TEC, §21.035. Adopted new subsection (g) was added to track that statutory assignment. In addition, House Bill 1116, 79th Texas Legislature, Regular Session, 2005, repealed TEC, §21.039, which established the SBEC executive director position.
Since published as proposed, additional technical edits were made to §§249.49 - 259.51 to clarify and reflect the statutory changes previously noted. These minor edits change "agency" to "Texas Education Agency staff" and "board" to "State Board for Educator Certification," where appropriate.
Following the January 2007 SBEC meeting, notice of the proposed amendment was filed with the Texas Register initiating the official public comment period. The following comments were received regarding adoption of the amendments.
Comment. The Texas Classroom Teachers Association (TCTA) objected to the term, "letter of caution." The TCTA did not object to dismissing a Code of Ethics complaint with this type of letter, but would like it renamed to a term more neutral such as "letter of dismissal" or "notice of non-determination."
Response. The SBEC agreed. The SBEC took action to adopt the amendments, subject to State Board of Education (SBOE) review, with changes since published as proposed. The term, "letter of caution," was amended to "notice of disposition."
Comment. The Association of Texas Professional Educators (ATPE) expressed concern that the letter of caution or letter of warning would have the effect of a sanction without due process. The ATPE recommended that the letter should be called a letter of disposition. The ATPE contended that there is no substantive difference between the words "warning" and "caution" because the words are synonyms. The ATPE also expressed concern that the educator would not have the opportunity to respond before the TEA issues its letter of caution.
Response. The SBEC agreed. The SBEC took action to adopt the amendments, subject to SBOE review, with changes since published as proposed. The term, "letter of caution," was amended to "notice of disposition."
Comment. The Texas State Teachers Association (TSTA) expressed concern regarding the term "letter of caution," noting that there is little difference in meaning between "caution" and "warning." The TSTA commented that §249.50(5) indicates the grounds for dismissal and has a two-tier system in place. The TSTA stated that issuing a letter of caution is making a determination based on the merits of the allegations. The TSTA recommended that the letter should not be drafted in a way that leaves some uncertainty about the allegations, even though there may be issues not yet pursued. The TSTA supported using a letter that explains the complaints against the educator and that provides the rationale for dismissal when grounds for a Code of Ethics complaint are not met.
Response. The SBEC agreed. The SBEC took action to adopt the amendments, subject to SBOE review, with changes since published as proposed. The term, "letter of caution," was amended to "notice of disposition."
Comment. The TSTA suggested that the SBEC postpone action on this item until the SBEC Code of Ethics Committee has an opportunity to meet to allow organizations to provide input and answer questions before the SBEC takes final action on the proposal.
Response. The SBEC disagreed and took action to adopt the amendments, subject to SBOE review, with changes since published as proposed.
Comment. The Texas Federation of Teachers (TFT) requested clarification in §249.51(e) regarding the purpose and scope of the letter of caution. The TFT requested additional language specifying that the letter is not proof of conduct alleged but is simply information about the educator's code of conduct and responsibilities under the code of conduct. The TFT recommended that the change could be made by changing current language "may not be considered proof of the conduct alleged" to "may not be considered proof or evidence of the conduct alleged." The TFT stated that the letter would imply some degree of guilt with no due process for teachers.
Response. The SBEC disagreed and did not add the language requested by TFT. The SBEC took action to adopt the amendments, subject to SBOE review, with changes since published as proposed by amending the term, "letter of caution," to "notice of disposition" to better describe what the SBEC had intended.
The SBOE took no action on the review of the adopted amendments to 19 TAC §§249.48 - 249.51 at the July 20, 2007, SBOE meeting.
The amendments are adopted under the TEC, §21.041(b)(7), which requires the SBEC by rule to provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Government Code, Chapter 2001, and TEC, §21.041(b)(8), which requires the SBEC by rule to provide for the adoption, amendment, and enforcement of an educator's code of ethics.
The adopted amendments implement the TEC, §21.041(b)(7) and (8).
§249.49.Form of Complaint; Required Service; Local Resolution.
(a) A complaint shall be verified by affidavit and shall include the information specified by this subsection:
(1) the full name, current mailing address, and telephone number of the complainant and the complainant's representative, if any;
(2) the full name, current mailing address, and telephone number of the educator alleged to have violated the code of ethics and the educator's representative, if any;
(3) a clear and complete description of each act alleged to have violated the code of ethics, including the specific place, date, and time of each such act, and identification of the date of the last act alleged to have violated the code of ethics;
(4) a specific citation of each principle and standard of the code of ethics allegedly violated by the educator, linking each act described in paragraph (3) of this subsection to the principle and standard allegedly violated and explaining how each such act constitutes a violation of the applicable principle and standard;
(5) as available, the full name, current mailing address, and telephone number of each witness to each act alleged to have violated the code of ethics;
(6) a declaration that the complainant has informed in writing the educator against whom the complaint is being made as well as the superintendent or the president of the board of trustees of the district employing that educator, as appropriate under subsection (c) of this section, of the nature of the complaint, and providing the date upon which such written notification occurred; and
(7) a declaration that to the best of the complainant's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the complaint is not frivolous as defined by §249.53 of this title (relating to Frivolous Complaints).
(b) The Texas Education Agency (TEA) staff may develop a complaint form that complies with subsection (a) of this section. The TEA staff may limit the length and size of exhibits initially filed with a complaint and shall require specific citations to any voluminous exhibits.
(c) A complaint shall be filed with the TEA staff and, at the time of filing, served on the educator accused of having violated the code of ethics and the superintendent of the school district employing the accused educator by certified United States mail, return receipt requested. If the superintendent is the educator alleged to have violated the code of ethics, then the complainant shall notify the president of the board of trustees of the district employing the accused superintendent. The TEA staff shall also notify the accused educator of the filing of a complaint against him or her.
(d) The superintendent or president of the board of trustees notified under subsection (c) of this section shall have 45 calendar days after receiving written notice of the complaint in which to resolve the complainant's allegations before the TEA staff acts on the complaint. The TEA staff shall suspend its review of a complaint under this subchapter until the earlier of:
(1) the date on which the TEA staff receives notice from the complainant withdrawing the complaint;
(2) the date on which the TEA staff receives notice from the superintendent or the board president notified under subsection (c) of this section that the accused educator is no longer employed by the district; or
(3) 50 calendar days after the complaint was filed with the TEA staff.
(e) The TEA staff may suspend consideration of a complaint that the educator violated a state or federal statute or regulation pending resolution of a complaint by the TEA or another agency with jurisdiction over that statute or regulation.
§249.50.Grounds for Dismissal of a Complaint by Texas Education Agency Staff or Review Committee.
Under §249.51 of this title (relating to Texas Education Agency Staff Review and Notice) and §249.52 of this title (relating to Appeal; Review Committee), the Texas Education Agency (TEA) staff or the review committee may dismiss all or part of a complaint only based on a determination that:
(1) the commissioner of education or commissioner's designee, review committee, State Office of Administrative Hearings, or State Board for Educator Certification or a court of competent jurisdiction has previously disposed of a similar complaint or petition based on the same alleged facts;
(2) the complaint fails to comply with the requirements of §249.49 of this title (relating to Form of Complaint; Required Service; Local Resolution);
(3) the complaint fails to state a violation of the code of ethics after, for purposes of determining jurisdiction only, accepting the facts relating to the alleged acts or omissions of the accused educator as stated on the face of the complaint as true;
(4) the complaint was not timely filed;
(5) the allegations in the complaint do not warrant a sanction, or only warrant a notice of disposition; or
(6) the complaint is frivolous as defined by §249.53 of this title (relating to Frivolous Complaints).
§249.51.Texas Education Agency Staff Review and Notice.
(a) The Texas Education Agency (TEA) staff shall review a complaint filed under this subchapter for possible dismissal. In conducting this review, the TEA staff shall consider the complaint, a single response by the accused educator, and any additional information he or she may have requested from the complainant or the staff.
(b) Not later than 60 days after being notified of a complaint against him or her under §249.49(d) of this title (relating to Form of Complaint; Required Service; Local Resolution), the accused educator or his or her representative may file with the TEA staff a single submission responding to the complaint.
(c) Not later than 130 calendar days after receiving a complaint filed under this subchapter, the TEA staff shall notify appropriate staff, the complainant, and the accused educator of the TEA staff's disposition in accordance with the following:
(1) dismissal of the complaint in whole or in part; or
(2) approval of the complaint in whole or in part and ordering staff to file an appropriate petition on behalf of the complainant with the State Office of Administrative Hearings within 90 days of the notice provided under this subsection.
(d) The TEA staff may issue such further orders as are necessary to accomplish the TEA staff's intended disposition, including requiring the complainant to supplement the complaint and establishing consequences for failure to comply. The TEA staff shall set a reasonable deadline for staff and the complainant to comply with an order under this subsection.
(e) The TEA staff may dismiss a complaint based on a determination that the conduct alleged in the complaint does not warrant a sanction. The TEA staff may also dismiss a complaint with a notice of disposition to the educator that additional allegations of a similar nature could result in the approval of a complaint. A notice of disposition provides guidance to the educator and is not a disciplinary action or sanction, may not be considered proof of the conduct alleged in any subsequent proceeding, and does not constitute a determination of the facts underlying the complaint.
(f) The TEA staff shall send a notice of disposition with related orders to the complainant and the accused educator by certified United States mail, return receipt requested. A notice reflecting a dismissal shall specify which of the grounds set out in §249.50 of this title (relating to Grounds for Dismissal of a Complaint by Texas Education Agency Staff or Review Committee) the TEA staff relied upon in making his or her decision.
(g) For purposes of this section, "TEA staff" means staff of the Texas Education Agency assigned by the commissioner of education to perform the State Board for Educator Certification's administrative functions and services.
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 July 20, 2007.
TRD-200703088
Raymond Glynn
Associate Commissioner, Educator Quality and Standards
State Board for Educator Certification
Effective date: August 9, 2007
Proposal publication date: February 2, 2007
For further information, please call: (512) 475-1497