Proposed Rules Title 19

TITLE 19. EDUCATION

Part 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

Chapter 4. RULES APPLYING TO ALL PUBLIC INSTITUTIONS OF HIGHER EDUCATION IN TEXAS

Subchapter A. GENERAL PROVISIONS

19 TAC §4.3

The Texas Higher Education Coordinating Board proposes amendments to §4.3 concerning limitations on the number of courses that may be dropped under certain circumstances by undergraduate students. These amendments were first adopted on an emergency basis at the Coordinating Board's July 19, 2007 meeting under the provisions of Senate Bill 1231 of the 80th Texas Legislature. The proposed amendments add a definition of a "dropped course" and renumbers the existing definitions to accommodate the new definition in alphabetical order.

Dr. Joseph H. Stafford, Assistant Commissioner for Academic Affairs and Research, has determined that for each year of the first five years the section is in effect the fiscal implications to state or local government as a result of this rule change would be that Coordinating Board data indicates that approximately 7% of semester credit hours (SCH) for which students have enrolled at general academic teaching institutions remains not completed at the end of the semester; for community colleges the figure is about 14%. The uncompleted credit hours include courses given a grade of "incomplete;" courses dropped as a result of a student withdrawing from the institution; and courses dropped by the student after the census date, and before the deadline for such drops. The Coordinating Board does not collect information regarding dropped courses for individual students or for aggregated student cohorts. It is not possible to determine from THECB data how many of those SCH left uncompleted each semester are credit hours that will be affected by the new statute and rules; thus is it not possible to predict any saving or cost to state and local government or to individual institutions. The Texas Association of Collegiate Registrars and Admissions Officers (TACRAO) has voiced a concern regarding the expense of modifying student information system software to track courses that are dropped under the conditions enumerated in SB 1231, but has provided no cost estimate. The modifications needed to track dropped courses from one institution to another for students who transfer was identified as a significant issue and potential cost. Another concern expressed has been the ongoing cost to each institution for monitoring each dropped course, determining whether it can be exempted or not, and enacting a policy and procedures for an appeals process. These ongoing costs, added to the initial costs to develop an inter-institutional tracking system, will pose a substantial strain on existing resources, and a number of institutional representatives have expressed their concerns even prior to the official comment period.

Dr. Stafford has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section would be in ensuring the timely progress of undergraduate students toward degree completion. There is no effect on small businesses. As outlined above, there are significant anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Joe Stafford, Assistant Commissioner for Academic Affairs and Research, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, TX 78711 or joe.stafford@thecb.state.tx.us Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendments are proposed under Texas Education Code, §51.907(e), enacted by SB 1231 (80th Regular Session, Texas Legislature), §1. The amendments were first heard at the July 2007 Board meeting for emergency adoption through authorization in SB 1231, §5.

The amendments will implement the provisions of SB 1231 §1, which establishes Texas Education Code §51.907.

§4.3.Definitions.

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

(1) - (10) (No change.)

(11) Dropped Course--A course in which an undergraduate student at an institution of higher education has enrolled for credit, but did not complete, under these conditions:

(A) the student was able to drop the course without receiving a grade or incurring an academic penalty;

(B) the student's transcript indicates or will indicate that the student was enrolled in the course past the deadline to add and drop prior to the census date; and

(12) [ ~~(11)~~ ] Degree program--Any grouping of subject matter courses which, when satisfactorily completed by a student, will entitle the student to a degree from an institution of higher education.

(13) [ ~~(12)~~ ] Faculty or professional staff of an institution of higher education--A non-classified, full-time employee who is a member of the faculty or staff and whose duties include teaching, research, administration or performing professional services, including professional library services.

(14) [ ~~(13)~~ ] Fiscal year--The State of Texas' fiscal year, September 1 through August 31.

(15) [ ~~(14)~~ ] Institution of higher education or institution--Any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education as defined in Texas Education Code, §61.003.

(16) [ ~~(15)~~ ] Interdisciplinary baccalaureate degrees--The Bachelor of General Studies degree (defined in paragraph (4) of this section) and such general degrees as liberal arts or humanities. These broad-based degrees vary in the amount of prescriptive structure but share the characteristics of flexibility for the student and interdisciplinary course selection.

(17) [ ~~(16)~~ ] Non-classified--An employee whose position is not controlled by the institution's classified personnel system or a person employed in a similar position if the institution does not have a classified personnel system.

(18) [ ~~(17)~~ ] Religious holy day--A holy day observed by a religion whose places of worship are exempt from property taxation under the Texas Tax Code, §11.20.

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

Filed with the Office of the Secretary of State on August 20, 2007.

TRD-200703741

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

19 TAC §4.10

The Texas Higher Education Coordinating Board proposes a new §4.10 concerning limitations on the number of courses that may be dropped under certain circumstances by undergraduate students. This rule was first adopted on an emergency basis at the Coordinating Board's July 19, 2007 meeting under the provisions of Senate Bill 1231 of the 80th Texas Legislature. The new §4.10 describes situations under which a student would be permitted to drop more than the six courses allowed by the provisions of §1 of SB 1231 (80th Regular Session, Texas Legislature), as part of the provisions of a new section of the Texas Education Code, §51.907.

The new section is proposed under Texas Education Code, §51.907(e), enacted by SB 1231 (80th Regular Session, Texas Legislature), §1. The new section was first heard at the July 2007 Board meeting for emergency adoption through authorization in SB 1231, §5.

The new section of rules will implement the provisions of SB 1231 §1, which establishes Texas Education Code §51.907.

§4.10.Limitations on the Number of Courses That May Be Dropped under Certain Circumstances by Undergraduate Students.

(a) Beginning with the fall 2007 academic term, and applying to students who enroll in higher education for the first time during the fall 2007 academic term or any term subsequent to the fall 2007 term, an institution of higher education may not permit an undergraduate student a total of more than six dropped courses, including any course a transfer student has dropped at another institution of higher education, unless:

(1) the institution has adopted a policy under which the maximum number of courses a student is permitted to drop is less than six; or

(2) the student shows good cause for dropping more than that number, including but not limited to a showing of:

(A) a severe illness or other debilitating condition that affects the student's ability to satisfactorily complete the course;

(B) the student's responsibility for the care of a sick, injured, or needy person if the provision of that care affects the student's ability to satisfactorily complete the course;

(C) the death of a person who is considered to be a member of the student's family or who is otherwise considered to have a sufficiently close relationship to the student that the person's death is considered to be a showing of good cause;

(D) the active duty service as a member of the Texas National Guard or the armed forces of the United States of either the student or a person who is considered to be a member of the student's family or who is otherwise considered to have a sufficiently close relationship to the student that the person's active military service is considered to be a showing of good cause;

(E) the change of the student's work schedule that is beyond the control of the student, and that affects the student's ability to satisfactorily complete the course; or

(F) other good cause as determined by the institution of higher education.

(b) For purposes of this section, a "member of the student's family" is defined to be the student's father, mother, brother, sister, grandmother, grandfather, aunt, uncle, nephew, niece, first cousin, step-parent, or step-sibling; a "person who is otherwise considered to have a sufficiently close relationship to the student" is defined to include any other relative within the third degree of consanguinity, plus close friends, including but not limited to roommates, housemates, classmates, or other persons identified by the student for approval by the institution, on a case-by-case basis.

(c) Each institution of higher education shall adopt a policy and procedure for determining a showing of good cause as specified in subsection (a) of this section and shall provide a copy of the policy to the Coordinating Board.

(d) Each institution of higher education shall publish the policy adopted under this section in its catalogue and other print and Internet-based publications as appropriate for the timely notification of students.

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

Filed with the Office of the Secretary of State on August 20, 2007.

TRD-200703742

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Subchapter I. NURSING EDUCATION PERFORMANCE INITIATIVE

19 TAC §§4.181 - 4.183

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new §§4.181 - 4.183, concerning an initiative to promote the retention and graduation of students enrolled in initial licensure nursing programs and to recognize those programs that achieve a graduation rate of 85 percent or more. The proposed changes are in response to S.B. 139, 80th Texas Legislature.

Dr. Joseph H. Stafford, Assistant Commissioner for Academic Affairs and Research, has determined that, for each year of the first five years the proposed new sections are in effect, there will not be any significant fiscal implications to state or local government as a result of these proposed new rules.

Dr. Stafford has also determined that, for each year of the first five years the proposed new sections are in effect, the public benefit anticipated as a result of administering the new sections would be in ensuring that a greater number of students would graduate from initial licensure nursing programs, thus helping to relieve the state's nursing shortage. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the new sections as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Joseph H. Stafford, Assistant Commissioner for Academic Affairs and Research, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, TX 78711 or joe.stafford@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The new sections are proposed under the Texas Education Code, §61.0901, which provide the Coordinating Board with the authority to establish rules for the grant programs.

The proposed new sections affect the Texas Education Code, §61.0901.

§4.181.Purpose and Authority.

The purpose of this subchapter is to describe the Board's initiative to promote the retention and graduation of students enrolled in initial licensure nursing programs and to recognize those programs that achieve a graduation rate of 85 percent or more. The Board is authorized to establish rules for this initiative under Texas Education Code §61.0901.

§4.182.Definitions.

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

(1) Board--The Texas Higher Education Coordinating Board.

(2) Commissioner--Commissioner of Higher Education.

(3) Initial licensure program--a sequence of nursing courses and learning experiences that prepares students for initial licensure as registered nurses.

(4) Nursing program--an educational entity of an institution of higher education or hospital that offers the courses and learning experiences of the initial licensure program.

(5) Institution of Higher Education--a public or independent university, community college or health-related institution that offers an initial licensure program that is approved by the Texas Board of Nursing.

(6) Hospital--a public or private hospital that offers an initial licensure program that is approved by the Texas Board of Nursing.

(7) Graduation rate--a calculation by the Texas Higher Education Coordinating Board that represents the percentage of first-time full-time students enrolled in an initial licensure program in a predefined academic cohort who are reported as graduates of the initial licensure program within:

(A) 36 months for generic initial licensure programs.

(B) 18 months for licensed vocational nurse to initial licensure transition programs.

(8) Best practices--strategies, activities or approaches that have been shown through research and evaluation to be effective and/or efficient.

§4.183.Nursing Education Performance Recognition Program.

The Board shall recognize nursing programs that are successful in retaining and graduating students from initial licensure programs:

(1) Eligibility for Recognition. To be eligible for Board recognition, a nursing program must:

(A) have an 85 percent graduation rate for the most current year for which rates are calculated by the Board.

(B) have an 85 percent NCLEX pass rate for the most current period for which pass rates are available from the Texas Board of Nursing.

(C) demonstrate best practices for retaining and graduating students from initial licensure programs as determined by the Board.

(2) Calculation of Graduation Rate. Board shall calculate graduation rates each year using admission and graduation data submitted by the Registrar of each institution of higher education. Institutions may review the preliminary results of the Board's calculation but may not submit revised data for calculation unless approved by the Commissioner.

(3) Demonstration of Best Practices:

(A) The nursing program shall:

(i) demonstrate to the Board through data collection efforts and analysis the specific strategies and activities that have contributed to a graduation and NCLEX pass rate of 85 percent or higher.

(ii) submit a plan for disseminating information about the best practices to nursing programs in the state.

(B) The Commissioner shall make the final determination of whether or not the program has demonstrated best practices.

(4) Method of Recognition. Nursing programs that meet eligibility requirements for recognition will be reported to the Texas Board of Nursing, Governor, and Texas Legislature each year and the names of their institutions will be posted on the Board's website. Recognized nursing programs are also eligible for incentive funding that shall be used only to increase enrollments and the number of graduates from initial licensure programs and to promote best practices in the state.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703691

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Chapter 5. RULES APPLYING TO PUBLIC UNIVERSITIES, HEALTH-RELATED INSTITUTIONS, AND/OR SELECTED PUBLIC COLLEGES OF HIGHER EDUCATION IN TEXAS

Subchapter B. ROLE AND MISSION, TABLES OF PROGRAMS, COURSE INVENTORIES

19 TAC §§5.21 - 5.23

The Texas Higher Education Coordinating Board proposes amendments to §§5.21, 5.22, and 5.23 concerning Rules Applying to Public Universities and/or Health-Related Institutions of Higher Education in Texas. Specifically, these amendments will add the three public colleges that are authorized to offer baccalaureate degrees. These proposed amendments add a definition for selected public colleges that recognizes those community colleges that are statutorily authorized to offer baccalaureate degrees in Texas. Also the change requires selected community colleges to follow the preliminary authority requirements before proposing new baccalaureate degree programs. Although we already require that public four-year higher education institutions secure preliminary authority prior to submitting proposals for bachelor's, master's and doctoral degree programs, no rule exists for community college that offer bachelor's degrees. These changes will incorporate community colleges for bachelor degree review.

Dr. Joseph H. Stafford, Assistant Commissioner for Academic Affairs and Research, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of this rule change.

Dr. Stafford has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section would be in ensuring the need and quality of new degree program offerings. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

The amendments are proposed under the Texas Education Code, §130.0012, which provides the Coordinating Board with authority for the selected public colleges to offer baccalaureate degrees in Texas.

The amendments affect the Texas Education Code, §130.0012.

§5.21.Purpose.

The purpose of this subchapter is to implement rules regarding the development of the role and mission for each public institution of higher education in Texas and for periodic review of the role and mission statements, the table of programs, and all degree and certificate programs offered by a public institution of higher education. Section 5.24(a) of this title (relating to Criteria and Approval of Mission Statements and Tables of Programs) applies to selected Public Colleges.

§5.22.Authority.

The authority for this subchapter is found in Texas Education Code, §§ 130.0012, 61.002(a) and (b) and Texas Education Code, §§61.051(d) and (e).

§5.23.Definitions.

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

(1) - (10) (No change.)

(11) Selected Public Colleges--Those public colleges authorized to offer baccalaureate degrees in Texas.

(12) [ ~~(11)~~ ] Statutory mission description--A statement of an institution's mission or purpose that is established directly in statute.

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

Filed with the Office of the Secretary of State on August 20, 2007.

TRD-200703743

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Subchapter C. APPROVAL OF NEW ACADEMIC PROGRAMS AND ADMINISTRATIVE CHANGES AT PUBLIC UNIVERSITIES, HEALTH-RELATED INSTITUTIONS, AND/OR SELECTED PUBLIC COLLEGES

19 TAC §§5.41 - 5.43

The Texas Higher Education Coordinating Board proposes amendments to §§5.41, 5.42, and 5.43 concerning Rules Applying to Public Universities and/or Health-Related Institutions of Higher Education in Texas. Specifically, these amendments will add the three public colleges that are authorized to offer baccalaureate degrees. These proposed amendments add a definition for selected public colleges that recognizes those community colleges that are statutorily authorized to offer baccalaureate degrees in Texas. Also the change requires selected community colleges to follow the preliminary authority requirements before proposing new baccalaureate degree programs. Although we already require that public four-year higher education institutions secure preliminary authority prior to submitting proposals for bachelor's, master's and doctoral degree programs, no rule exists for community college that offer bachelor's degrees. These changes will incorporate community colleges for bachelor degree review.

Dr. Stafford has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section would be in ensuring the need and quality of new degree program offerings. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

The amendments are proposed under the Texas Education Code, §130.0012, which provides the Coordinating Board with authority for the selected public colleges to offer baccalaureate degrees in Texas.

The amendments affect the Texas Education Code, §130.0012.

§5.41.Purpose.

The purpose of this subchapter is to describe the criteria and approval processes for degree and certificate programs and for administrative changes involving academic units. Criteria in §5.45 of this title (relating to Criteria for New Baccalaureate and Master's Degree Programs) apply to selected public colleges.

§5.42.Authority.

Texas Education Code, §61.051(e) provides that no new department, school, degree program, or certificate program may be added at any public institution of higher education except with specific prior approval of the Board. Texas Education Code, §61.055 requires a written certification of adequate financing be made before the Board approves any new department, school, or degree or certificate program. Texas Education Code, §130.0012 applies to selected public colleges.

§5.43.Definitions.

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

(1) - (8) (No change.)

(9) Selected Public Colleges--Those public colleges authorized to offer baccalaureate degrees in Texas.

(10) [ ~~(9)~~ ] Upper-division certificate program--A certificate program at a university or health-related institution that consists primarily of upper-division undergraduate courses.

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

Filed with the Office of the Secretary of State on August 20, 2007.

TRD-200703744

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Subchapter E. TEXAS GOVERNOR'S SCHOOLS

19 TAC §§5.91 - 5.96

The Texas Higher Education Coordinating Board proposes new §§5.91 - 5.96 concerning Texas Governor's Schools. Specifically, these new sections will set forth requirements for implementation of summer residential Texas Governor's Schools for high achieving high school students.

Dr. Glenda O. Barron, Associate Commissioner for Participation and Success, has determined that for each year of the first five years the section is in effect, there will not be any fiscal implications to state or local government as a result of enforcing or administering the rules.

Dr. Barron has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering these sections will be that high-achieving high school students will have opportunities to supplement their high school courses with curricular activities that will stimulate and deepen their intellectual curiosity in math, science, humanities, fine arts, and/or leadership and public policy. There is no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Glenda O. Barron, Associate Commissioner of Participation and Success, at P.O. Box 12788, Austin, Texas 78711, or Glenda.Barron@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The new sections are proposed under Texas Education Code, §61.07621, which provides the Coordinating Board with the authority to adopt rules to administer Texas Governor's Schools.

The new sections affect Texas Education Code, §61.07621.

§5.91.Purpose.

The purpose of this subchapter is to set forth requirements for implementation of summer residential Texas Governor's Schools for high achieving high school students.

§5.92.Authority.

Texas Education Code, §61.07621 authorizes the Coordinating Board to adopt rules to administer Texas Governor's Schools.

§5.93.Definitions.

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

(1) Board or Coordinating Board--The Texas Higher Education Coordinating Board.

(2) Commissioner--The Commissioner of Higher Education.

(3) Regional Education Service Centers--The public education centers whose duties are set forth in Texas Education Code, §§8.001 - 8.007.

(4) Eligible Institution--A Texas public senior college or university as defined in Texas Education Code, §61.003.

(5) Eligible Student--High-achieving high school students who are residents of Texas and can demonstrate intellectual curiosity about and a commitment to a rigorous and challenging academic program in the area(s) of a program offered by an eligible institution selected as a Texas Governor's School.

(6) Rising 11th or 12th Grade Students--Students who in a given academic year will complete the 10th or 11th grade and be promoted to the 11th or 12th grade, respectively, in the following academic year.

§5.94.Institutional and Student Eligibility.

(a) An eligible institution or institutions shall be selected to be a Texas Governor's School under procedures outlined by the Commissioner and set forth in a Request for Proposals or other competitive process soliciting proposals for Texas Governor's Schools.

(b) An approved Texas Governor's School must offer a summer residential program to eligible students that, at a minimum,

(1) has a duration of at least three weeks;

(2) includes an educational curricula in the area(s) of

(A) mathematics and science;

(B) humanities;

(D) leadership and public policy.

(c) Eligible students shall be selected based upon criteria outlined by the Commissioner and in accordance with Texas Education Code, §61.07621. Selected students shall reflect the same percentage of rising 11th and/or rising 12th grade students as are attending public high schools in each of the 20 regional education service centers.

§5.95.Award of Credit.

(a) An approved Texas Governor's School may offer college credit courses as part of its program according to guidelines established by the Commissioner and set forth in a Request for Proposals or other competitive process soliciting proposals for Texas Governor's Schools.

(b) An approved Texas Governor's School may not award high school credit.

(c) The home high school of a participating student in an approved Texas Governor's School may award high school credit to a student who successfully completes a Texas Governor's School course only through compliance with §74.26(a)(2) of this title (relating to Award of Credit).

§5.96.Funding.

(a) The amount and use of funding awarded to each approved Texas Governor's School shall be determined by the Commissioner.

(b) The funds shall be distributed to each approved Texas Governor's School in a manner and time to be prescribed by the Commissioner.

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

Filed with the Office of the Secretary of State on August 15, 2007.

TRD-200703644

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Chapter 21. STUDENT SERVICES

Subchapter CC. EARLY HIGH SCHOOL GRADUATION SCHOLARSHIP PROGRAM

19 TAC §21.953, §21.956

The Texas Higher Education Coordinating Board proposes amendments to §21.953 and §21.956 concerning the Early High School Graduation Scholarship Program. Specifically, the amendment to §21.953(b) reflects the effective date of House Bill 2383 of the 80th Texas Legislature, which is the date new program provisions went into effect. New §21.953(e) describes the process by which the Coordinating Board will measure enrollment periods for determining student eligibility for awards. Amendments to §21.956 also reflect the effective date of House Bill 2383 of the 80th Texas Legislature, which is the date new program provisions went into effect.

Ms. Lois Hollis, Assistant Commissioner for Student Services, has estimated that for the first year of the first five years the amendments are in effect, the fiscal impact will be approximately $1.5 million; the impact will drop to approximately $500,000 in the second year and become insignificant thereafter for the state. The funding will come from the Foundation Program and does not represent additional costs to the state.

Ms. Hollis has also determined that for each year of the first five years the amendments are in effect, the public benefits anticipated as a result of administering the sections will be the receipt of $1,000 awards by certain Texas public high school students who graduated between September 1, 2005 and June 15, 2007. To qualify, they must have graduated in no more than 45 months, having completed at least the Recommended High School Program with 30 or more hours of college credit. Without this rule change, they are unable to receive awards because their date of graduation (i.e., date they receive their diplomas) is a few days beyond the statutory limit of 45 months. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lois Hollis, P.O. Box 12788, Austin, Texas 78711, (512) 427-6465, Lois.Hollis@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The amendments are proposed under the Texas Education Code, §56.209, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter K, relating to the Early High School Graduation Scholarship Program.

The amendments affect Texas Education Code, §§56.201 - 56.210.

§21.953.Eligible Students.

(a) (No change.)

(b) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after September 1, 2005 but prior to June 15, 2007, [ ~~September 1, 2007,~~ ] must:

(1) - (4) (No change.)

(c) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after June 15, 2007, [ ~~September 1, 2007,~~ ] must:

(1) - (4) (No change.)

(d) (No change.)

(e) The months to graduation will be measured beginning with the student's first full month in ninth grade through the date the high school certifies as the date the student completes all the requirements for graduation.

§21.956.Award Amounts and Processing Cycle.

(a) (No change.)

(b) For students who graduate on or after September 1, 2005:

(1) the aggregate amount of state credit that may be awarded to a student through this program is:

(A) $2,000 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and graduated from high school in 36 consecutive months or less and an additional $1,000 if the person graduated with at least 15 hours of college credit; or

(B) $500 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and graduated from high school in more than 36 consecutive months but not more than 41 consecutive months and an additional $1,000 if the person graduated with at least 30 hours of college credit; or

(C) $1,000 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and, either:

(i) graduated prior to June 15, 2007, [ ~~September 1, 2007,~~ ] from high school in more than 41 consecutive months but not more than 45 consecutive months with at least 30 hours of college credit, or

(ii) graduated on or after June 15, 2007, [ ~~September 1, 2007,~~ ] from high school in more than 41 consecutive months but not more than 46 consecutive months with at least 30 hours of college credit.

(2) - (3) (No change.)

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703669

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Subchapter NN. EXEMPTION PROGRAM FOR VETERANS AND THEIR DEPENDENTS (THE HAZLEWOOD ACT)

19 TAC §21.2101

The Texas Higher Education Coordinating Board proposes amendments to §21.2101 concerning the Exemption Program for Veterans and their Dependents (The Hazlewood Act). Specifically, amendments to §21.2101(b) reflect changes to the Hazlewood Act as a result of the passage of Senate Bill 1640 by the 80th Texas Legislature, which entitles veterans and eligible children to receive both federal and state veterans education benefits in the same term if the value of the federal benefits do not exceed the value of the state benefit (tuition and fees other than property deposit and student service fees). Amendments to §21.2101(e) clarify the manner in which "attempted hours" are to be calculated for hours dropped after the first class day and prior to the census date.

Ms. Lois Hollis, Assistant Commissioner for Student Services, has estimated that for each year of the first five years the amendments are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

Ms. Hollis has also determined that for each year of the first five years the amendments are in effect, the public benefits anticipated as a result of administering the sections will be that veterans or their children will better understand their options in using the Hazlewood exemption. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment.

The amendment is proposed under the Texas Education Code, §54.203, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §54.203.

The amendments affect Texas Education Code, §54.203.

§21.2101.Hazlewood Act Exemption.

(a) (No change.)

(b) If the eligible veteran or child is entitled to federal veterans' education benefits during the term or semester for which he or she applies for the Hazlewood Act Exemption, he or she is entitled to receive both federal and state veterans benefits during the same time only if the value of the federal veteran's benefits is less than the value of the student's tuition and fees, less property deposit and student service fees. [ an institution shall first apply the federal veterans' education benefits to the payment of the applicable tuition and fees. If the sum of the semester's federal benefits is less than the amount of applicable tuition and fees, the value of the exemption may not exceed the portion of tuition and fees that is not covered by federal benefits. ]

(e) If the Hazlewood Act Exemption is used to pay for only a portion of the hours taken during a given term or semester, an institution shall deduct the number of hours taken in the semester or term from the 150 hours of eligibility in a manner that is proportionate to the share of the applicable tuition and fees that were subject to the exemption. For hours dropped prior to the census date, the hours attributed to the Hazlewood Act shall be proportionate to the share of tuition and fee charges paid for through the Hazlewood exemption during that term.

(f) - (h) (No change.)

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703670

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: October 25, 2007

For further information, please call: (512) 427-6114

Part 2. TEXAS EDUCATION AGENCY

Chapter 97. PLANNING AND ACCOUNTABILITY

Subchapter FF. COMMISSIONER'S RULES CONCERNING THE JOB CORPS DIPLOMA PROGRAM

19 TAC §97.2001

The Texas Education Agency (TEA) proposes an amendment to §97.2001, concerning the Job Corps diploma program. The section implements the requirements of the Texas Education Code (TEC), §18.006, added by Senate Bill 1395, 79th Texas Legislature, 2005, that requires the commissioner to develop and implement a system of accountability to rate the annual performance of the Job Corps diploma program. The section also adopts the most recently published Job Corps diploma program accountability procedures manual. The proposed amendment would adopt the Job Corps Diploma Program Accountability Manual , dated August 2007, and incorporate other applicable updates to the rule.

Effective December 10, 2006, the commissioner adopted 19 TAC §97.2001, exercising rulemaking authority over developing and implementing a system of accountability consistent with the TEC, Chapter 39, where appropriate, to be used in assigning an annual performance rating to Job Corps diploma programs consistent with the ratings assigned to school districts under the TEC, §39.072. Section 97.2001 includes the Job Corps Diploma Program Accountability Manual , dated September 2006, in rule as a figure. The intention is to annually update 19 TAC §97.2001 to refer to the most recently published Job Corps Diploma Program Accountability Procedures Manual .

The proposed amendment to 19 TAC §97.2001 would update the rule to adopt the new Job Corps Diploma Program Accountability Procedures Manual , dated August 2007, as a figure. The proposed amendment to adopt the new manual would prescribe the specific procedures, standards, and performance indicators by which Job Corps diploma programs will be evaluated and rated in 2008.

Revisions in the new manual include: (1) updates to year references to make the document current; (2) a change to the due date for data submission to the first Monday in December rather than specifying an exact date; (3) the addition of a new leaver code to address the need to account for students who enroll in distance education programs; (4) adjustment to the Economically Disadvantaged student group definition to be consistent with definitions used for public school accountability and applicability to the Job Corps diploma program; (5) removal of procedures regarding first-year, on-site visits since it is inapplicable to second-year programs; and (6) other applicable updates and clarifications.

The proposed amendment to 19 TAC §97.2001 would also update rule text, as follows. Subsection (a) would be modified to refer to the diploma program. Subsection (c)(3) would be revised to broaden reference to applicable assessments required for graduation. Subsection (d) would be updated to reference the 2007 Job Corps Diploma Program Accountability Procedures Manual , dated August 2007, and ratings issued in 2008. Subsection (d) would also be updated to establish that the manual adopted for each prior year would remain in effect for the respective school year.

The proposed amendment to 19 TAC §97.2001 would modify reporting requirements to address the characteristics of the students served by the Job Corps diploma program. Alternative collection methods were considered; however, based on the number and frequency of data submissions to the TEA, it was determined that electronic submission via the TEA Secure Environment (TEASE) would incur higher costs to the TEA than simple paper submission. The proposed amendment would not require additional paperwork beyond that already maintained.

Adrain Johnson, associate commissioner for school district services, has determined that for each year of the first five years the amendment is in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendment.

Dr. Johnson has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be to continue to inform the public of the existence of the procedure manual and current procedures, standards, and performance indicators by which the diploma programs are evaluated and rated. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

The public comment period on the proposal begins August 31, 2007, and ends September 30, 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register .

The amendment is proposed under the Texas Education Code, §18.006, which requires the commissioner to develop and implement a system of accountability consistent with the Texas Education Code, Chapter 39, where appropriate, to be used in assigning an annual performance rating to Job Corps diploma programs consistent with the ratings assigned to school districts under the Texas Education Code, §39.072.

The new section implements the Texas Education Code, §18.006.

§97.2001.Job Corps Diploma Program Accountability Procedures.

(a) Intent and purpose. The Job Corps diploma program develops and implements educational programs specifically designed for persons eligible for enrollment in a Job Corps training program established by the U.S. Department of Labor. The Job Corps diploma [ ~~training~~ ] program was established in order for eligible students to satisfy the requirements necessary to receive a high school diploma.

(b) Student eligibility. A person is eligible to participate in the Job Corps diploma program if the person is enrolled in an established Job Corps training program and has not satisfied the state requirements to receive a high school diploma. Any person enrolled in good standing in the Job Corps diploma program is eligible for programs or services under the Texas Education Code (TEC), Chapter 18. A person's eligibility for programs and services under the TEC, Chapter 18, does not make a person ineligible for an education program or service under any other chapter of the TEC.

(c) Program requirements. The TEC, §1.001, applies to a Job Corps diploma program operated by or under contract with the U.S. Department of Labor.

(1) The Job Corps diploma program shall provide a course of instruction that includes the required curriculum under the TEC, §28.002, §74.1 of this title (relating to Essential Knowledge and Skills), and §74.3 of this title (relating to Description of a Required Secondary Curriculum).

(2) The Job Corps diploma program shall offer, annually, at least all the courses required for an eligible student to graduate under the applicable minimum high school program described in Chapter 74 of this title (relating to Curriculum Requirements).

(3) A student enrolled in the Job Corps diploma program must satisfy the [ ~~secondary exit- level~~ ] assessments required for graduation under the TEC, §39.025, before receiving a high school diploma.

(d) Accountability procedures. Job Corps [ ~~corps~~ ] diploma program evaluations and ratings issued in 2008 [ ~~2007~~ ] are based upon specific procedures, standards, and performance indicators, which are described in the Job Corps Diploma Program Accountability Procedures Manual , dated August 2007, [ ~~September 2006,~~ ] provided in this subsection. The specific procedures, standards, and performance indicators used in the Job Corps Diploma Program Accountability Procedures Manual adopted for use prior to 2008 remain in effect for all purposes, including accountability, data standards, and audits, with respect to the applicable school year.

Figure: 19 TAC §97.2001(d) (.pdf)

[ ~~Figure: 19 TAC §97.2001(d)~~ ]

(e) Annual review. The Texas Education Agency (TEA) shall conduct an annual review to evaluate Job Corps diploma program performance based on indicators provided in the Job Corps Diploma Program Accountability Procedures Manual described in subsection (d) of this section. The diploma program shall comply with all applicable requirements of state laws and rules.

(f) Performance indicators. Annually, the commissioner of education shall review and determine the student performance indicators appropriate to the characteristics of the students served by the Job Corps diploma program. The performance of the Job Corps diploma program shall be evaluated on the basis of the specific indicators as determined by the commissioner of education.

(1) The annual evaluation shall be based on, at a minimum, the following performance indicators:

(A) student performance on assessment instruments required under the TEC, §39.023;

(B) dropout rate for the grade levels served; and

(2) To the extent appropriate, the annual performance review shall incorporate other indicators from the Academic Excellence Indicator System (AEIS) under the TEC, Chapter 39.

(g) Accountability ratings and criteria. The procedures for determining the Job Corps diploma program accountability ratings are established in the Job Corps Diploma Program Accountability Procedures Manual described in subsection (d) of this section.

(1) The Job Corps diploma program performance on selected AEIS indicators shall be used by the TEA in determining the annual performance rating of the Job Corps diploma program.

(2) A performance rating assigned to the Job Corps diploma program may be appealed to the commissioner of education in accordance with the procedures established in the Job Corps Diploma Program Accountability Procedures Manual described in subsection (d) of this section.

(3) The commissioner of education may lower the Job Corps diploma program accountability rating based on the findings of an on-site investigation conducted under the TEC, §39.074.

(4) If a Job Corps diploma program is below any standard under the TEC, §39.073(b), the program is considered a low-performing program. If the Job Corps diploma program is low performing for a period of two consecutive years or more, the commissioner of education may close the program.

(h) Reporting of data. The Job Corps diploma program shall report to the TEA accountability data on a submission schedule determined by the TEA. Performance data shall be disaggregated with respect to student attributes as determined by the commissioner of education.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703718

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: September 30, 2007

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

Part 7. STATE BOARD FOR EDUCATOR CERTIFICATION

Chapter 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES

The State Board for Educator Certification (SBEC) proposes the repeal of §§249.1 and 249.45 - 249.56 and amendments to §§249.3 - 249.7, 249.9 - 249.15, 249.17 - 249.33, and 249.35 - 249.44, concerning disciplinary proceedings, sanctions, and contested cases, including the enforcement of the educator's code of ethics. The proposed amendments and repeals result from the SBEC's rule review conducted in accordance with Texas Government Code, §2001.039.

The SBEC rules in 19 TAC Chapter 249 are organized as follows: Subchapter A, General Provisions; Subchapter B, Enforcement Actions and Guidelines; Subchapter C, Prehearing Matters; Subchapter D, Hearing Procedures, Subchapter E, Posthearing Matters; and Subchapter F, Enforcement of the Educator's Code of Ethics. These subchapters provide for rules that establish guidelines and procedures for conducting investigations and disciplinary actions relating to educator misconduct.

TEC, §21.041(b)(7), authorizes the SBEC to adopt rules that provide for disciplinary proceedings for certificate holders. The SBEC proposes the following changes to 19 TAC Chapter 249 to improve and enhance the disciplinary investigation process and to align with statute.

Process Improvements

The proposed changes to Chapter 249 would streamline processes to make them more uniform and to reflect rules of practice before the State Office of Administrative Hearings (SOAH).

The proposed changes would make the process to initiate a contested case more uniform. The current rules provide for contested case hearings in several instances (see §§249.11, 249.12, 249.13, and 249.15). Each type of contested case has different filing requirements. The proposed changes would establish a uniform procedure where the party who bears the burden of proof would be required to file a petition that conforms to the requirements in the SBEC rules and the SOAH rules. The responding party would be required to file an answer that also conforms to the requirements in the SBEC rules and the SOAH rules. By requiring a petition and an answer in each type of contested case, the contested case process would be more efficient, because the petition and the answer would help focus the hearing on the issues that are contested.

The proposed changes would allow the petition and the answer to be filed before the case is referred to the SOAH. The current rules require the contested case to be filed with the SOAH before both the petition and answer have been filed. This requirement has led to many cases being filed at the SOAH that are subsequently dismissed because a party fails to make a required filing. The current rules also require an administrative law judge to issue a proposal for decision before the SBEC can take certain actions, even when the other party has defaulted. The proposed changes would allow the SBEC to take action directly in any default.

The process for canceling an erroneously issued certificate in §249.13 would be revised to reflect the use of the virtual certificate rather than a paper certificate. The current rules require a contested case hearing before the SBEC can cancel a certificate that is issued in error if the person does not return it. The proposed changes would allow the SBEC to cancel the certificate and treat the person who received the certificate as though the underlying application were administratively denied. That person would be able to appeal the administrative denial of their application.

The decision-making guidelines in §249.17 would be revised to simplify the analysis for assessing the appropriate penalty. The new guidelines would rely on six factors, rather than the 14 factors in the current rule. The proposed changes would focus more on the nature of the offense, and the changes would take into account the SBEC's obligation to deter future violations. The current rules list several factors that are redundant; require the SBEC to predict future behavior based on subjective evidence; require the SBEC to consider irrelevant factors, such as the person's ability to make restitution; and fail to identify key factors, such as whether the sanction will deter future misconduct. The proposed changes would also identify certain very serious offenses for which the appropriate penalty is the permanent revocation of the educator's certificate. These changes are shown in §249.17(d).

Elimination of Modification Process

The proposed changes would eliminate the open-ended process to modify sanctions contained in §249.45, which would make most SBEC actions final upon entry of an order. The current rules provide an open-ended process by which an educator can seek to modify any sanction that has previously been issued. The proposed repeal of §249.45 is necessary since §249.45 relies on many irrelevant factors, such as whether the certificate holder has paid child support or has received an offer of employment. Section 249.43 would still provide a procedure for reinstating a suspended certificate. Section 249.44 would also provide a procedure for reapplication following the revocation, cancellation, or denial of a certificate but would allow the SBEC to permanently revoke, deny, or accept a permanent surrender of a certificate. Also, the proposed changes in §249.44 would allow for a reapplication every five years, rather than every year.

Clarification of Notice Procedure

The proposed changes would clarify the manner in which the Texas Education Agency (TEA) staff would notify a person of an action taken under Chapter 249. Pursuant to the proposed changes in §249.30(c), the TEA staff would send the notice to the address that is supplied to the TEA pursuant to the certification rules and any other address that is known to the TEA. This would clarify existing policy that the TEA staff send notice to any address that the TEA staff is aware of, but that the TEA staff is not obligated to search for the person.

Dispositions Prior to Hearing

In instances where a petition and answer have been filed, but one of the parties fails to appear, the proposed changes in §249.35 would provide a procedure where the administrative law judge would abate the proceedings and defer to the SBEC for a disposition. Pursuant to §249.35(c), the SBEC would have the ability to grant a default order. The administrative law judge would dismiss the case from the docket when it receives notice that the SBEC has disposed of the case.

The rules allow the SBEC to dispose of cases before a hearing for a variety of reasons, including the unnecessary duplication of proceedings. The proposed changes would add §249.35(d) to allow the SBEC to dispose of a case if the matter has previously been determined in a hearing held pursuant to the TEC, Chapter 21, Subchapter G.

Exceptions to a Proposal for Decision

The proposed changes would add §249.37(d) to identify the reasons that a party may file exceptions to a proposal for decision.

Final Decisions and Orders

The proposed changes would modify §249.39(d) to clarify that the SBEC may adopt an order that modifies the findings of fact or conclusions of law contained in a proposal for decision as authorized by the Administrative Procedure Act. The proposed changes to §249.39(d) would also allow the SBEC to remand the matter back to the administrative law judge with instructions to make an essential finding of fact or to apply the correct burden of proof.

Appeals from Final Orders

The proposed changes would add §249.40(c) to identify the standard of review for appeals from a final order, which is the substantial evidence standard of review. The proposed changes would also add §249.40(d), which would make the party who appeals the decision responsible for the cost of transcribing the testimony and preparing the record.

Virtual Certificate

The proposed changes would add a definition of the term "virtual certificate" in §249.3(46), which would make the virtual certificate the official certification record. Throughout Chapter 249, modifications would also be made to reflect the use of the virtual certificate as the official certification record.

Quorum

The definition for the term "quorum" in §249.3(32) would mean a majority of all members of the SBEC (including non-voting members), consistent with the definition in the SBEC's operating policies and procedures and applicable law.

Administrative Denials

Two additional grounds relating to administrative denial would be added in §249.12. The proposed changes would provide for TEA staff to deny an application if it is fraudulent (§249.12(b)(3)) or if the applicant committed a crime relating to the duties of the teaching profession while the applicant's certificate was suspended (§249.12(b)(6)).

Disciplinary Actions

The list of actions that are grounds for disciplinary action against a certificate holder would be expanded in §249.15(b)(7) to include grounds for action listed in §249.14(g) and §249.12(b).

Cancellation of Scores from a Certification Examination

The proposed changes to §249.11(a) would allow the TEA staff to cancel an examinee's test scores and bar a person from retaking the test. The examinee would still be allowed to appeal as provided in the rule.

Mailbox Rule

Throughout Chapter 249, a rebuttable presumption would be created that mail is received five days after it has been mailed (see §§249.11(b), 249.26(c), and 249.27(a)).

Elimination of Unnecessary Provisions

Section 249.1, Board's Regulatory Authority, and several definitions in §249.3, Definitions, would be repealed as unnecessary.

Technical Changes

Throughout Chapter 249, numerous grammatical and technical changes would be made, such as the term "Agency" would be replaced with the term "TEA staff" and the term "Board" would be replaced with the term "State Board for Educator Certification." Also, statutory citation references would be updated and standardized to reflect current law and Texas Register formatting requirements. Sections would also be restructured for consistency and readability.

Changes to Comply with Senate Bill 9, 80th Texas Legislature, 2007

As a result of passage of SB 9, changes are recommended to §249.14. Language in subsection (h) would be amended to require an immediate notice be placed on an educator's certification record if the alleged conduct presents a risk to a student or minor. Also, subsection (i) would be amended to provide procedures for this immediate notice.

Additional Proposed Changes

The proposed amendments to 19 TAC Chapter 249 were presented for discussion at the May 2007 SBEC meeting. During the May meeting, the SBEC requested that staff conduct a stakeholder meeting to gather input from interested parties. A stakeholder meeting was held June 5, 2007. The agenda for the meeting included an overview of the draft amendments, and substantial agreement was reached. The following changes are the result of the meeting.

Language would be added to §249.15(a)(3) to clarify that a probated suspension for a set term may be issued by the SBEC. In §249.15(c) - (e), language would be modified to clarify that the filing of a petition and answer will take place before the case is filed before the SOAH; and if the certificate holder fails to file timely an answer, TEA staff may request that the SBEC enter a default order.

Language in §249.17(d) would be modified to: add specificity to the grounds for permanent revocation or denial; add a cross-reference for the term "solicitation of a romantic relationship," which is already defined in §249.14(m); use the term "criminal homicide" for consistency with the Texas Penal Code; and replace the term "drugs" with the more specific term, "controlled substance defined in the Texas Health and Safety Code, Chapter 481."

Language would be added in §249.18(c) to allow TEA staff to file a case with the SOAH at any time. This modification would allow staff to file its case without first exchanging pleadings with the certificate holder.

Language would be modified in §249.24 to further clarify that the date of filing is based on a rebuttable presumption set out in subsection (b). Also, new subsection (c) would be added to allow the parties to exchange documents electronically if both parties agree.

Language would be amended in §249.27(a) to clarify that a written answer shall be filed with the petitioner and in §249.27(e) to state that a dismissal based upon an answers' failure to comply with the requirements of §249.27 would need to be supported by a proposal for decision issued by an administrative law judge.

Language in §249.35 would be amended in subsection (c) to allow the SOAH in addition to the SBEC to dispose of a case; in subsection (d) to provide that findings of fact and testimony considered at an employment hearing held under the TEC, Chapter 21, are admissible in the administrative hearing, but not conclusive; and in subsection (e)(3) to add specificity that either party may be the certificate holder or applicant and that failure to appear for hearing would require the SOAH to abate the case so that the SBEC may enter a final order. Also, language would be modified in subsection (f) to clarify that, when the TEA staff requests the issuance of a default judgment from the SBEC, TEA staff would notify the affected educator that the SBEC will be considering the issuance of the default judgment. The certificate holder would have the ability to appear at that meeting to explain why the certificate holder defaulted, and the SBEC would have the ability to issue a default or to direct TEA staff to hold a contested case hearing.

Language in §249.37(d)(5) would be added to state that exceptions to a proposal for decision may be based on finding of fact that is not supported by substantial evidence.

Language in §249.43(a) would be amended to allow the person to apply for a duplicate certificate up to 30 days prior to the end of the suspension period.

Language in §249.44(a) would be added to state that, when a person whose certificate was previously surrendered or revoked reapplies, that person must comply with the current certification requirements, including having a recommendation from an approved program.

Sections 249.46 - 249.56 are proposed for repeal. The disciplinary rules currently allow for the prosecution of alleged violations of the educator's code of ethics. The stakeholders suggested that the procedural rules for the enforcement of the educator's code of ethics found in Chapter 249, Subchapter F, be eliminated and that TEA staff should be allowed to prosecute alleged violations of the educator's code of ethics through its disciplinary rules. The stakeholders agreed that the procedural rules for the educator's code of ethics have proved to be cumbersome and inefficient by requiring formal responses, dispositions, and appeals for each and every complaint filed and created unnecessary expenses for the educators and the school districts. The stakeholders agreed that the previous modifications to the procedural rules would allow a more efficient resolution by TEA staff, but noted that these reforms still required formal responses from educators for each and every complaint.

Dr. Raymond Glynn, associate commissioner for educator quality and standards, has determined that, for each year of the first five years the proposed amendments and repeals are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments and repeals. The proposed amendments and repeals to 19 TAC Chapter 249 will make the processing of contested cases more efficient. The proposed revisions will allow the TEA staff to process default cases without filing the cases at the SOAH, which will reduce the amount of SOAH billings. However, this cost savings will be offset by the ability of TEA staff to file additional contested cases at the SOAH as TEA staff work to reduce the backlog of contested cases.

Dr. Glynn has determined that, for each year of the first five years the proposed amendments and repeals are in effect, the public benefit anticipated as a result of enforcing the amendments and repeals will be streamlined procedures for prosecuting disciplinary cases, allowing for a quicker resolution of contested disciplinary cases. A quicker resolution of contested disciplinary cases would help ensure more accurate and reliable testimony of witnesses if the hearing is scheduled closer in time to the alleged act of misconduct. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendments and repeals.

Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to sbecrules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendments and repeals submitted under the Administrative Procedure Act must be received by the Department of Educator Quality and Standards, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Dr. Raymond Glynn, not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

Subchapter A. GENERAL PROVISIONS

19 TAC §249.1

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

The repeal is proposed under the Texas Education Code, §21.006(g), which requires the State Board for Educator Certification (SBEC) to propose rules that require the reporting of misconduct; §21.031(a), which gives the SBEC the authority to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.040(6), which allows the SBEC authority to develop and implement policies that define responsibilities of the SBEC; §21.040(8), which requires the SBEC to execute contracts for the performance of its administrative functions; §21.041(a), which allows the SBEC to adopt rules as necessary for its own procedures; §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)(4), which requires the SBEC to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the SBEC to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Texas Government Code, Chapter 2001; §21.041(b)(8), which requires the SBEC to propose rules that provide for the enforcement of an educator's code of ethics; §21.044, which requires the SBEC to propose rules to establish requirements and qualifications to obtain a certificate; §21.060, which allows the SBEC to suspend or revoke educator certificates based on the eligibility of persons convicted of certain offenses; §21.105(c), which allows the SBEC to impose sanctions against a teacher employed under a probationary contract; §21.160(c), which allows the SBEC to impose sanctions against a teacher employed under a continuing contract; §21.210(c), which allows the SBEC to impose sanctions against a teacher employed under a term contract; §22.082, which requires the SBEC to obtain criminal history records for an applicant for or holder of a teaching certificate; and §57.491(g), which requires the SBEC to not renew a certificate due to loan default on a guaranteed student loan; Texas Government Code, §411.090, which allows the SBEC to obtain criminal history record information from the Department of Public Safety of the State of Texas; §2001.058(f), which requires the SBEC to adopt rules and the application of general rules of practice for formal and informal proceedings brought pursuant to the Administrative Procedure Act, and §2051.001, which allows the SBEC to adopt a seal to attest an official document, certificate, or other written paper; Texas Family Code, §261.406(a), which requires the Texas Department of Family and Protective Services to investigate reports of possible abuse of a child in a public school, and §261.406(b), which requires the Department of Family and Protective Services to send a written report to the SBEC on investigations in schools for appropriate action; and Texas Occupations Code, §53.022, which requires the SBEC to determine whether a criminal conviction relates to an educator's ability to engage in the occupation; §53.023, which requires the SBEC to consider a set of factors to determine if the educator is fit to perform their duties; §53.024, which states that the licensing proceedings brought pursuant to chapter 53 are governed by the Administrative Procedure Act; §53.025, which requires the SBEC to issue guidelines to state the reasons a particular crime is considered to relate to educator certification and any other criterion that affects the decisions of the SBEC; §53.051, which requires the SBEC to notify a person in writing if the SBEC suspends or revokes a certificate or denies a person a license or the opportunity to be examined because of a prior conviction of a crime; and §53.052, which allows a person who has exhausted administrative remedies to file an action for judicial review within 30 days after the SBEC decision becomes final and appealable.

The proposed repeal implements the Texas Education Code, §§21.006(g); 21.031(a); 21.040(6) and (8); 21.041(a) and (b)(1), (4), (7), and (8); 21.044; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.082; and 57.491(g); Texas Government Code, §§411.090, 2001.058(f), and 2051.001; Texas Family Code, §261.406(a) and (b); and Texas Occupations Code, §§53.022, 53.023, 53.024, 53.025, 53.051, and 53.052.

§249.1.Board's Regulatory Authority.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703708

Raymond Glynn

Associated Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

19 TAC §§249.3 - 249.7, 249.9, 249.10

The amendments are proposed under the Texas Education Code, §21.006(g), which requires the State Board for Educator Certification (SBEC) to propose rules that require the reporting of misconduct; §21.031(a), which gives the SBEC the authority to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.040(6), which allows the SBEC authority to develop and implement policies that define responsibilities of the SBEC; §21.040(8), which requires the SBEC to execute contracts for the performance of its administrative functions; §21.041(a), which allows the SBEC to adopt rules as necessary for its own procedures; §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)(4), which requires the SBEC to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the SBEC to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Texas Government Code, Chapter 2001; §21.041(b)(8), which requires the SBEC to propose rules that provide for the enforcement of an educator's code of ethics; §21.044, which requires the SBEC to propose rules to establish requirements and qualifications to obtain a certificate; §21.060, which allows the SBEC to suspend or revoke educator certificates based on the eligibility of persons convicted of certain offenses; §21.105(c), which allows the SBEC to impose sanctions against a teacher employed under a probationary contract; §21.160(c), which allows the SBEC to impose sanctions against a teacher employed under a continuing contract; §21.210(c), which allows the SBEC to impose sanctions against a teacher employed under a term contract; §22.082, which requires the SBEC to obtain criminal history records for an applicant for or holder of a teaching certificate; and §57.491(g), which requires the SBEC to not renew a certificate due to loan default on a guaranteed student loan; Texas Government Code, §411.090, which allows the SBEC to obtain criminal history record information from the Department of Public Safety of the State of Texas; §2001.058(f), which requires the SBEC to adopt rules and the application of general rules of practice for formal and informal proceedings brought pursuant to the Administrative Procedure Act, and §2051.001, which allows the SBEC to adopt a seal to attest an official document, certificate, or other written paper; Texas Family Code, §261.406(a), which requires the Texas Department of Family and Protective Services to investigate reports of possible abuse of a child in a public school, and §261.406(b), which requires the Department of Family and Protective Services to send a written report to the SBEC on investigations in schools for appropriate action; and Texas Occupations Code, §53.022, which requires the SBEC to determine whether a criminal conviction relates to an educator's ability to engage in the occupation; §53.023, which requires the SBEC to consider a set of factors to determine if the educator is fit to perform their duties; §53.024, which states that the licensing proceedings brought pursuant to chapter 53 are governed by the Administrative Procedure Act; §53.025, which requires the SBEC to issue guidelines to state the reasons a particular crime is considered to relate to educator certification and any other criterion that affects the decisions of the SBEC; §53.051, which requires the SBEC to notify a person in writing if the SBEC suspends or revokes a certificate or denies a person a license or the opportunity to be examined because of a prior conviction of a crime; and §53.052, which allows a person who has exhausted administrative remedies to file an action for judicial review within 30 days after the SBEC decision becomes final and appealable.

The proposed amendments implement the Texas Education Code, §§21.006(g); 21.031(a); 21.040(6) and (8); 21.041(a) and (b)(1), (4), (7), and (8); 21.044; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.082; and 57.491(g); Texas Government Code, §§411.090, 2001.058(f), and 2051.001; Texas Family Code, §261.406(a) and (b); and Texas Occupations Code, §§53.022, 53.023, 53.024, 53.025, 53.051, and 53.052.

§249.3.Definitions.

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

~~[ ~~(1)~~ Act--the Texas Education Code, as amended.]~~

(1) [ ~~(2)~~ ] Administrative denial--a decision or action by the Texas Education Agency (TEA) staff [ ~~agency~~ ] to deny a person any of the following based on the withholding or voiding of certification test scores; the invalidation of a certification test registration; or evidence of a lack of good moral character or improper conduct:

(A) admission to an educator preparation program;

(B) certification (including certification following revocation, cancellation, or surrender of a previously issued certificate) or renewal of certification; or

~~[ ~~(D)~~ removal or modification of a sanction other than revocation, cancellation, or surrender.]~~

(2) [ ~~(3)~~ ] Administrative law judge (ALJ)-- [ ~~ALJ--administrative law judge;~~ ] a person appointed by the chief judge of the State Office of Administrative Hearings (SOAH) [ ~~office~~ ] under Texas Government Code, Chapter 2003 [ ~~of the Government Code~~ ] .

[ ~~(4)~~ Agency--the board acting through its executive director, staff, or agents, as distinguished from the board acting through its voting members in a decision making capacity. The term includes the executive director and his or her designee.]

~~[ ~~(5)~~ Agency headquarters--the main offices of the board's executive director and staff located at 1001 Trinity, Austin, Texas, 78701-2603.]~~

(3) [ ~~(6)~~ ] Answer--the initial responsive pleading filed in reply to factual and legal issues raised by a petition.

~~[ ~~(7)~~ APA--the Administrative Procedure Act, Chapter 2001, Government Code.]~~

(4) [ ~~(8)~~ ] Applicant--a party seeking any of the following from the TEA staff [ ~~agency~~ ] or the State Board for Educator Certification (SBEC): [ ~~board: admission to an educator preparation program;~~ ] issuance of a certificate (including issuance of a new certificate following revocation, cancellation, or surrender of a previously issued certificate); renewal of a certificate; or reinstatement of a suspended certificate[ ~~; or removal or modification of a sanction other than revocation, cancellation, or surrender. In a particular circumstance, an applicant may also be an educator or an examinee~~ ].

~~[ ~~(9)~~ Board --the State Board for Educator Certification acting through its voting members in a decision making capacity.]~~

~~[ ~~(10)~~ Board headquarters--the main offices of the board's executive director and staff located at 1001 Trinity Street, Austin, Texas, 78701-2603.]~~

~~[ ~~(11)~~ Board member(s)--one or more of the members of the board, appointed and qualified under the Act, §21.033.]~~

(5) [ ~~(12)~~ ] Cancellation [ ~~or canceled~~ ]--[ ~~the withholding or voiding of test scores; the invalidation of a test registration; the invalidation of a surrendered certificate in lieu of revocation;~~ ] the invalidation of an erroneously issued certificate.

(6) [ ~~(13)~~ ] Certificate--the whole or part of any certificate, permit, approval, endorsement, or similar form of permission issued by the TEA staff [ ~~executive director~~ ] or the SBEC [ ~~board~~ ] . The official certificate is the record of the certificate as maintained on the SBEC's website.

(7) [ ~~(14)~~ ] Certificate holder [ ~~or holder of a certificate~~ ] --a person who holds a certificate issued under the Texas Education Code (TEC), Chapter 21, Subchapter B[ ~~, Chapter 21, of the Act~~ ].

[ ~~(15)~~ Certificate requirement--any requirement, obligation, condition, or prerequisite prescribed by law, the board, or the executive director for the issuance of a certificate, including items such as required examinations, course transcripts, recommendations, information, or other documentation related to certification.]

(8) [ ~~(16)~~ ] Chair--the presiding officer of the SBEC [ ~~board~~ ] , elected pursuant to the TEC, §21.036 , [ ~~of the Act~~ ] or other person designated by the chair to act in his or her absence or inability to serve.

(9) [ ~~(17)~~ ] Chief judge--the chief administrative law judge of the SOAH [ ~~office~~ ].

(10) [ ~~(18)~~ ] Code of Ethics--the Code of Ethics and Standards of Practices for Texas Educators , pursuant to Chapter 247 of this title (relating to the Educators' Code of Ethics) [ ~~(19 Texas Administrative Code, Chapter 247 (relating to Educator's Code of Ethics))~~ ].

(11) [ ~~(19)~~ ] Complaint--a written statement submitted to the TEA staff [ ~~agency~~ ] that contains essential facts alleging improper conduct by an educator, applicant, or examinee, and provides grounds for sanctions.

(12) [ ~~(20)~~ ] Contested case--a proceeding under this chapter in which the legal rights, duties, and privileges of a party are to be determined by the SBEC [ ~~board~~ ] after an opportunity for an adjudicative hearing.

(13) [ ~~(21)~~ ] Conviction--an adjudication of guilt for a criminal offense. The term does not include the imposition of deferred adjudication for which the judge has not proceeded to an adjudication of guilt, except as provided by Code of Criminal Procedure, Article 42.12[ ~~, Code of Criminal Procedure~~ ].

~~[ ~~(22)~~ Day--a calendar day, unless otherwise specified in this chapter.]~~

(14) [ ~~(23)~~ ] Disciplinary proceedings--contested case proceedings before the TEA staff [ ~~agency~~ ], the SOAH [ ~~office~~ ], and the SBEC [ ~~board~~ ] that commence when a request for hearing is timely filed under this chapter.

(15) [ ~~(24)~~ ] Educator--a person who is required to hold a certificate issued under the TEC, Chapter 21, Subchapter B[ ~~, Chapter 21, of the Act~~ ].

(16) [ ~~(25)~~ ] Effective date-- as applied to a non-rulemaking decision or action by the SBEC or the TEA staff, the date the decision or action becomes final under the appropriate legal authority.

~~[ ~~(A)~~ as applied to this chapter upon the board's adoption, 20 days after the date on which it is filed in the office of the secretary of state, pursuant to the APA;]~~

~~[ ~~(B)~~ as applied to a non-rulemaking decision or action by the board or staff, the date the decision or action becomes final under the appropriate legal authority.]~~

(17) [ ~~(26)~~ ] Examinee--a person who registers to take or who takes a basic skills examination prescribed by the SBEC [ ~~board~~ ] for admission to an educator preparation program or a comprehensive examination prescribed by the SBEC [ ~~board~~ ] for a certificate.

~~[ ~~(27)~~ Executive director--the executive director employed by the board pursuant to §21.039 of the Act and other agency employees acting on behalf of the executive director.]~~

(18) [ ~~(28)~~ ] Filing--any written petition, answer, motion, response, other written instrument, or item appropriately filed with the TEA staff [ ~~agency~~ ], the SBEC [ ~~board~~ ], or the SOAH [ ~~office~~ ] under this chapter.

(19) [ ~~(29)~~ ] Good moral character--the virtues of a person as evidenced, at a minimum, by his or her not having committed crimes relating directly to the duties and responsibilities of the education profession as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Articles 6252-13c and 6252-13d, Revised Civil Statutes) or acts involving moral turpitude.

~~[ ~~(30)~~ Hearings coordinator--the staff person designated by the executive director to receive petitions and serve as the primary agency contact with the office.]~~

(20) [ ~~(31)~~ ] Informal conference--an informal meeting between the TEA [ ~~agency~~ ] staff and an educator, applicant, or examinee; the purpose of such a meeting being to give the person an opportunity to show compliance with all requirements of law for the granting or retention of a certificate or test score.

(21) [ ~~(32)~~ ] Invalidation [ ~~Invalidated or invalidation~~ ]--rendered void; lacking legal or administrative efficacy.

(22) [ ~~(33)~~ ] Law--the United States and Texas Constitutions, state and federal statutes, regulations, rules, relevant case law, and decisions and orders of the SBEC [ ~~board~~ ] and the commissioner of education.

(23) [ ~~(34)~~ ] Mail [ ~~or mailed~~ ] --certified United States mail, return receipt requested, unless otherwise provided by this chapter.

(24) [ ~~(35)~~ ] Majority [ ~~of the voting members present~~ ]--a majority of the voting members of the SBEC [ ~~board~~ ] who are present and voting on the issue at the time the vote is recorded.

(25) [ ~~(36)~~ ] Moral turpitude--improper conduct including, but not limited to, the following: dishonesty; fraud; deceit; theft; misrepresentation; deliberate violence; base, vile, or depraved acts that are intended to arouse or to gratify the sexual desire of the actor; drug or alcohol related offenses as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Articles 6252-13c and 6252-13d, Revised Civil Statutes) ; or acts constituting abuse or neglect under the Texas Family Code, §261.001 [ ~~of the Texas Family Code~~ ].

~~[ ~~(37)~~ Office--the State Office of Administrative Hearings.]~~

(26) [ ~~(38)~~ ] Party--each person named or admitted to participate in a contested case under this chapter.

(27) [ ~~(39)~~ ] Person--any individual, representative, corporation, or other entity, including the following: an educator, applicant, or examinee; the TEA staff [ ~~agency~~ ], SBEC [ ~~board~~ ], or SOAH [ ~~office~~ ]; any other agency or instrumentality of federal, state, or local government; or any public or non-profit corporation.

(28) [ ~~(40)~~ ] Petition--the written pleading filed by the petitioner in a contested case under this chapter.

(29) [ ~~(41)~~ ] Petitioner--the party having the burden of proof by a preponderance of the evidence in any contested case hearing or proceeding under this chapter. The term includes the following persons:

(A) the TEA staff [ ~~agency~~ ];

(B) a person appealing the administrative cancellation of scores based on irregularities involving a TEA- [ ~~an agency~~ ]administered test; and

~~[ ~~(i)~~ admission to an educator preparation program;]~~

(i) [ ~~(ii)~~ ] certification (including certification following revocation, cancellation, or surrender of a previously issued certificate) or renewal of certification; or

(ii) [ ~~(iii)~~ ] reinstatement of a suspended certificate . [ ~~; or~~ ]

~~[ ~~(iv)~~ removal or modification of a sanction other than revocation, cancellation, or surrender.]~~

(30) [ ~~(42)~~ ] Presiding officer--the chair or acting chair of the SBEC [ ~~board~~ ].

(31) [ ~~(43)~~ ] Proposal for decision--a recommended decision issued by an ALJ [ ~~administrative law judge~~ ] in accordance with the Texas Government Code [ ~~APA~~ ] , §2001.062.

(32) [ ~~(44)~~ ] Quorum--a majority of the 14 [ ~~12 voting~~ ] members appointed to and serving on the SBEC [ ~~board~~ ] pursuant to the TEC, §21.033 [ ~~of the Act~~ ]; eight SBEC [ ~~seven voting board~~ ] members , as specified in the SBEC Operating Policies and Procedures .

(33) [ ~~(45)~~ ] Reinstatement--the reactivation to valid status of a certificate suspended by the SBEC [ ~~board~~ ]; the lifting or discharging of a suspension on a certificate.

(34) [ ~~(46)~~ ] Representative--a person representing an educator, applicant, or examinee in matters arising under this chapter; in a contested case proceeding before the SOAH [ ~~office~~ ], an attorney licensed to practice law in the State of Texas.

(35) [ ~~(47)~~ ] Reprimand--the SBEC's [ ~~board's~~ ] formal censuring of a certificate holder. [ : ]

(A) An [ an ] "inscribed reprimand" is a formal, published censure appearing on the face of the educator's virtual certificate. [ ~~official certification records;~~ ]

(B) A [ a ] "non-inscribed reprimand" is a formal, unpublished censure that does not appear on the face of the educator's virtual certificate [ ~~official certification record~~ ].

(36) [ ~~(48)~~ ] Revocation--a sanction imposed by the SBEC [ ~~board~~ ] permanently invalidating an educator's certificate.

(37) [ ~~(49)~~ ] Respondent--the party who contests factual or legal issues or both raised in a petition; the party filing an answer in response to a petition.

(38) [ ~~(50)~~ ] Sanction--

(A) a disciplinary action by the SBEC [ ~~board~~ ], including a restriction, reprimand, suspension, surrender, [ ~~cancellation,~~ ] or revocation of a certificate;

(B) a reasonable and lawful punitive measure imposed by the ALJ or presiding officer against a party, representative, or other participant involved in a disciplinary proceeding, hearing, or other matter under this chapter.

~~[ ~~(51)~~ Staff--employees of the board as a state agency and hired by the executive director.]~~

(39) State Board for Educator Certification--the SBEC acting through its voting members in a decision-making capacity.

(40) State Board for Educator Certification member(s)--one or more of the members of the SBEC, appointed and qualified under the TEC, §21.033.

(41) [ ~~(52)~~ ] Surrender--an educator's voluntary, permanent relinquishment and invalidation of a particular certificate in lieu of disciplinary proceedings under this chapter and possible revocation of the certificate.

(42) [ ~~(53)~~ ] Suspension [ ~~or suspend(ed)~~ ]--a sanction imposed by the SBEC [ ~~board~~ ] temporarily invalidating a particular certificate until reinstated by the SBEC [ ~~board~~ ].

(43) [ ~~(54)~~ ] Test administration rules or [ ~~and~~ ] procedures--rules and procedures governing professional examinations administered by the SBEC [ ~~board~~ ] through the TEA staff and a test contractor, including policies, regulations, and procedures set out in a test registration bulletin.

(44) Texas Education Agency staff--staff of the TEA assigned by the commissioner of education to perform the SBEC's administrative functions and services.

(45) [ ~~(55)~~ ] Unworthy to instruct or to supervise the youth of this state--the determination that a person is unfit to hold a certificate under the TEC, Chapter 21, Subchapter B, [ ~~Chapter 21, of the Act~~ ] or to be allowed on a school campus under the auspices of an educator preparation program.

(46) Virtual certificate--the official record of a person's certificate status as maintained on the SBEC's website.

§249.4.Applicability.

(a) In conjunction with the rules of practice and procedure of the State Office of Administrative Hearings (SOAH), [ ~~office~~ ] (1 Texas Administrative Code , Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] )) and other applicable law, this chapter shall govern disciplinary matters before the State Board for Educator Certification (SBEC) [ ~~board~~ ], including the following proceedings:

(1) sanctions sought against a certificate holder;

~~[ ~~(2)~~ enforcement of the code of ethics;]~~

(2) [ ~~(3)~~ ] appeals of administrative denials;

(3) [ ~~(4)~~ ] appeals of the administrative cancellation or withholding of test scores for alleged violation of test administration rules;

(4) [ ~~(5)~~ ] reinstatement of a suspended certificate;

~~[ ~~(6)~~ removal or modification of a sanction other than revocation, cancellation, or surrender;]~~

(5) [ ~~(7)~~ ] complaints of contract abandonment filed with the Texas Education Agency (TEA) staff [ ~~agency~~ ] pursuant to Texas Education Code (TEC), §§21.105(c), 21.160(c), or 21.210(c) [ ~~, of the Act~~ ]; and

(6) [ ~~(8)~~ ] sanctions sought against a certificate for the holder's knowing failure to report criminal history or other information required to be reported under the TEC, Chapter 22, Subchapter C[ ~~, Chapter 22, of the Act~~ ]; Texas Family Code, Chapter 261, Subchapter B[ ~~, Chapter 261, of the Texas Family Code~~ ]; or this chapter.

(b) The SOAH [ ~~office~~ ] shall conduct all contested case hearings held under this chapter.

(c) This chapter shall apply to any matter referred for a contested case hearing [ ~~to the office on or after the effective date of this chapter~~ ].

(d) This chapter does not apply to matters related to the proposal or adoption of the SBEC [ ~~board~~ ] rules under the Texas Government Code, Chapter 2001, [ ~~APA~~ ] or to internal personnel policies or practices of the TEA staff [ ~~executive director~~ ] or the SBEC [ ~~board~~ ] . The provisions of this chapter may not be used to seek sanctions against a member of the SBEC [ ~~board~~ ] or the TEA [ ~~agency's~~ ] staff acting in that capacity.

§249.5. Purpose [ ~~Purposes~~ ].

The purpose [ ~~purposes~~ ] of this chapter is [ ~~are as follows~~ ]:

(1) to protect the safety and welfare of Texas schoolchildren and school personnel;

(2) to ensure educators and applicants are morally fit and worthy to instruct or to supervise the youth of the state;

(3) to regulate and to enforce the standards of conduct of educators and applicants;

(4) to provide for disciplinary proceedings in conformity with the Texas Government Code, Chapter 2001, [ ~~APA~~ ] and the rules of practice and procedure of the State Office of Administrative Hearings [ ~~office~~ ];

(5) to enforce an educators' [ ~~educator's~~ ] code of ethics;

(6) to fairly and efficiently resolve disciplinary proceedings at the least expense possible to the parties and the state;

(7) to promote the development of legal precedents through State Board for Educator Certification (SBEC) [ ~~board~~ ] decisions to the end that disciplinary proceedings may be justly resolved; and

(8) to provide for regulation and general administration pursuant to the SBEC's [ ~~board's~~ ] enabling statutes.

§249.6.Construction.

(a) This chapter shall be liberally construed in conformity with the Texas Government Code, Chapter 2001, [ ~~APA~~ ] and the rules of practice and procedure of the State Office of Administrative Hearings [ ~~office~~ ] so as to achieve the purposes for which it was adopted, without changing the statutory jurisdiction, powers, or authority of the State Board for Educator Certification (SBEC) [ ~~board~~ ].

(b) "Includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.

(c) If any provision of this chapter is declared invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions of this chapter that can be applied without the invalid provision. To that end, the SBEC [ ~~board~~ ] declares the provisions of this chapter to be severable.

§249.7.Signature Authority; Seal.

(a) The State Board for Educator Certification (SBEC) [ ~~board~~ ] may delegate to the chair the authority to sign on behalf of a majority of the SBEC [ ~~board~~ ] members a decision made or order issued under this chapter.

(b) As provided by this chapter, the Texas Education Agency (TEA) staff [ ~~executive director~~ ] may sign final orders dismissing cases by agreement of the parties or by non-suit of the petitioner as well as those relating to other matters as provided by this chapter.

(c) The SBEC [ ~~board~~ ] and the TEA staff [ ~~executive director~~ ] may maintain a seal to authenticate their official acts under this title [ ~~chapter~~ ], including certifying copies of records showing decisions or orders of the SBEC [ ~~board~~ ] or the TEA staff [ ~~executive director~~ ]. The seal shall have a star with five points and the words "State Board for Educator Certification" on it.

§249.9.Ex Parte Communications.

Subjects, parties, their authorized representatives, or anyone else on a party's behalf shall not communicate or attempt to communicate with any State Board for Educator Certification [ ~~board~~ ] member regarding a complaint, investigation, or disciplinary proceeding under this chapter, except as allowed by law. The chair may impose sanctions against a violator of this section.

§249.10.Conduct and Decorum.

(a) Parties, authorized representatives, witnesses, and other persons involved in a proceeding, hearing, or other matter under this chapter shall conduct themselves with proper dignity, courtesy, and respect for the State Board for Educator Certification (SBEC), [ ~~board, executive director,~~ ] Texas Education Agency staff, administrative law judge (ALJ) [ ~~ALJ~~ ], and all other participants. Disorderly conduct shall not be tolerated. The rules of the State Office of Administrative Hearings (SOAH) [ ~~office~~ ] governing conduct and decorum under 1 Texas Administrative Code (TAC), Part 7 , Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) , shall also apply to matters referred to the SOAH [ ~~office~~ ].

(b) Authorized representatives shall observe the standards of conduct prescribed for their professions.

(c) The presiding officer or ALJ may impose sanctions against a violator of this section, including barring the person from attending further proceedings. Sanctions allowed by the rules of the SOAH [ ~~office~~ ] under 1 TAC, Part 7 [ ~~Texas Administrative Code~~ ], Chapter 155 , governing sanctions against a party or its representative and the grounds for them under that chapter are also available to the chair in any other proceeding before the SBEC [ ~~board~~ ] that is not conducted by the SOAH [ ~~office~~ ].

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703709

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

Subchapter B. ENFORCEMENT ACTIONS AND GUIDELINES

19 TAC §§249.11 - 249.15, 249.17

§249.11.Test Irregularities; Appeal; Sanctions.

(a) Upon satisfactory evidence that the examinee has violated test administration rules or procedures, the State Board for Educator Certification may cancel the examinee's test scores or registration and bar the person from being admitted to a future test administration. The Texas Education Agency (TEA) staff shall mail notice of this action to the examinee, and the examinee shall be given the opportunity to show compliance with test administration rules or procedures.

[ ~~(a)~~ The agency may administratively cancel the scores of an examinee because of test irregularities and shall mail written notice of such cancellation to the examinee, including the reasons for such action. The examinee shall be given the opportunity to show compliance with test administration rules or procedures.]

(b) The examinee may appeal the administrative cancellation of test scores by requesting a hearing before the State Office of Administrative Hearings (SOAH) [ ~~office~~ ]. The appeal of an administrative cancellation shall be in the form of a petition that complies in content and form with §249.26 of this title (relating to Petition) and 1 Texas Administrative Code, Part 7, §155.29 (relating to Pleadings) [ ~~request for hearing before the office~~ ] and shall be filed with the TEA staff [ ~~agency~~ ]. No appeal of an administrative cancellation shall receive a contested case hearing on the merits unless the petition [ ~~request for hearing~~ ] is received by the TEA staff [ ~~agency~~ ] within 30 calendar days after the person received written notice of the TEA staff's [ ~~agency's~~ ] action. It is a rebuttable presumption that the notice was received no later than five calendar days after mailing. The TEA staff [ ~~If supported by an ALJ's proposal for decision, the executive director~~ ] may dismiss an appeal not timely filed.

(c) The TEA staff shall send an answer to the petition to the examinee and shall refer the petition and answer to the SOAH for a contested case hearing.

[ ~~(c)~~ The agency shall mail to the examinee written notice of the referral of the matter to the office for further proceedings. Not later than 30 calendar days after receiving such written notice of the referral, the examinee shall file a petition with the office that complies in content and form with the requirements of this chapter and 1 Texas Administrative Code, Chapter 155 (relating to Rules of Procedure). At the time of filing with the office, a copy of the petition shall be served on the agency as respondent through the executive director by United States certified mail, return receipt requested. If supported by an ALJ's proposal for decision, the board may dismiss an examinee's petition not timely filed or in compliance with the applicable requirements under this chapter or 1 Texas Administrative Code, Chapter 155.]

[ ~~(d)~~ Upon satisfactory evidence that the examinee has violated test administration rules or procedures, the board may cancel the examinee's test scores or registration or bar the person from being admitted to a future test administration.]

§249.12.Administrative Denial; Appeal.

(a) This section applies to the denial of an application for certification (including certification following revocation, cancellation, or surrender of a previously issued certificate), the denial of an application for renewal of certification, or the reinstatement of a suspended certificate. This section does not apply to the denial of an application for a certificate that has been permanently revoked, denied, or surrendered.

~~[ ~~(a)~~ This section applies to the following matters:]~~

~~[ ~~(1)~~ admission to an educator preparation program;]~~

~~[ ~~(2)~~ certification (including certification following revocation, cancellation, or surrender of a previously issued certificate) or renewal of certification;]~~

~~[ ~~(3)~~ reinstatement of a suspended certificate; or]~~

~~[ ~~(4)~~ removal or modification of a restriction placed on a certificate.]~~

(b) The Texas Education Agency (TEA) staff [ ~~agency~~ ] may administratively deny any of the matters set out in subsection (a) of this section[ ~~, and the board may make the final decision in the matter~~ ] based on [ ~~upon~~ ] satisfactory evidence that:

(1) the person has committed a crime , an offense, or conduct that would constitute a crime or offense [ ~~or an offense~~ ] relating directly to the duties and responsibilities of the education profession;

(2) the person lacks good moral character; [ or ]

(3) the person filed a fraudulent application;

(4) [ ~~(3)~~ ] the person is unworthy to instruct or to supervise the youth of this state ; [ . ]

(5) the person failed to comply with an order issued by the State Board for Educator Certification or the TEA staff; or

(6) the person has committed a crime, an offense, or conduct that would constitute a crime or offense relating directly to the duties and responsibilities of the education profession while the person's certificate was suspended.

(c) The TEA staff [ ~~agency~~ ] shall mail to the person whose application or request has been administratively denied written notice of the denial and the factual and legal reasons for it. The person shall be given an opportunity to show compliance with legal requirements [ ~~for the relief sought~~ ]. A person may appeal an administrative denial.

(d) The appeal of an administrative denial shall be in the form of a petition that complies in content and form with §249.26 of this title (relating to Petition) and 1 Texas Administrative Code, Part 7, §155.29 (relating to Pleadings). [ ~~request for hearing before the office and shall be filed with the agency.~~ ] No appeal of an administrative denial shall receive a contested case hearing on the merits unless the request for hearing is received by the TEA staff [ ~~agency~~ ] within 30 calendar days after the person received written notice of the TEA staff's [ ~~agency's~~ ] action. The TEA staff may dismiss an appeal that is not timely filed without further action. [ ~~If supported by an ALJ's proposal for decision, the executive director may dismiss an appeal not timely filed.~~ ]

(e) The TEA staff shall send an answer to the petition to the person appealing an administrative denial and shall refer the petition and answer to the State Office of Administrative Hearings for a contested case hearing.

[ ~~(e)~~ The agency shall mail to the person appealing an administrative denial written notice of the referral of the matter to the office for further proceedings. Not later than 30 calendar days after receiving such written notice of the referral, the person appealing an administrative denial shall file a petition with the office that complies in content and form with the requirements of this chapter and 1 Texas Administrative Code, Chapter 155 (relating to Rules of Procedure). At the time of filing with the office, a copy of the petition shall be served on the agency as respondent through the executive director by United States certified mail, return receipt requested. If supported by an ALJ's proposal for decision, the board may dismiss a petition not timely filed or in compliance with the applicable requirements under this chapter or 1 Texas Administrative Code, Chapter 155.]

§249.13.Cancellation of an Erroneously Issued Certificate.

(a) When satisfactory evidence indicates that a certificate was issued in error and the person issued the certificate has not fulfilled all certification requirements, the Texas Education Agency (TEA) staff [ ~~agency~~ ] shall cancel the certificate by updating the person's virtual certificate [ ~~demand the return of the certificate, which the executive director shall cancel upon receipt~~ ].

(b) The TEA staff [ ~~agency~~ ] shall notify the person and the person's employing school district, if any, that the person was issued a certificate in error, what actions the TEA staff have taken [ ~~agency may take~~ ] to cancel the erroneously issued certificate, and how the person can be issued a valid certificate.

[ ~~(c)~~ If the person who was issued the erroneously issued certificate fails to return the certificate, the agency may request a contested case hearing before the office. After opportunity for hearing and the issuance of a proposal for decision by an ALJ, the board may cancel the erroneously issued certificate.]

(c) [ ~~(d)~~ ] The TEA staff [ ~~agency~~ ] will issue the person a valid certificate when it receives satisfactory evidence that all certification requirements have been fulfilled. The person whose erroneously issued certificate has been cancelled may request a contested case hearing before the State Office of Administrative Hearings. The person whose certificate has been cancelled shall be deemed to have had their original application for the erroneously issued certificate administratively denied.

§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;

(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;

(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

(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, if the alleged conduct indicates a risk to the health, safety, or welfare of a student or minor, as described in subsection (g)(1) of this section, the TEA staff shall immediately [ ~~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 such an investigative notice must follow the procedures set forth in subsection (i) (1) of this section. After accepting a case for investigation, if the alleged conduct indicates a risk to the health, safety, or welfare of a parent of a student, fellow employee, or professional colleague, as described in subsection (g)(1) of this section, the TEA staff may place an investigative notice on the certificate holder's certification records stating that the certificate holder is currently under investigation. The placement of an investigative notice must follow the procedures set forth in subsection (i)(2) of this section.

(i) The following procedures must be followed for placing an investigative notice on the educator's certification records.

(1) At the time of placing an investigative notice on an educator's certification records for alleged conduct that indicates a risk to the health, safety, or welfare of a student or minor, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.

(A) Within ten days of 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).

(B) 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 be removed from the educator's certification records.

(2) Prior to placing an investigative notice on an educator's certification records for alleged conduct that indicates a risk to the health, safety, or welfare of a parent of a student, fellow employee, or professional colleague, as described in subsection (g)(1) of this section, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.

(A) 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.

(B) 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 remove or 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.

[ ~~(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;

(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.

§249.15.Disciplinary Action by State Board for Educator Certification [ ~~Board~~ ].

(a) Pursuant to this chapter, the State Board for Educator Certification (SBEC) [ ~~board~~ ] may take any of the following actions:

~~[ ~~(1)~~ require the withdrawal of a person from an educator preparation program;]~~

(1) [ ~~(2)~~ ] place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely or for a set term;

(2) [ ~~(3)~~ ] issue an inscribed or non-inscribed reprimand;

(3) [ ~~(4)~~ ] suspend a certificate for a set term or issue a probated suspension for a set term ; [ or ]

(4) [ ~~(5)~~ ] revoke or cancel, which includes accepting the surrender of, a certificate without opportunity for reapplication for a set term or permanently ; or [ . ]

(5) impose any additional conditions or restrictions upon a certificate that the SBEC deems necessary to facilitate the rehabilitation and professional development of the educator or to protect students, parents of students, school personnel, or school officials.

[ ~~(b)~~ The board may impose any additional conditions or restrictions upon a certificate that the board deems necessary to facilitate the rehabilitation and professional development of the educator or to protect students, parents of students, school personnel, or school officials.]

(b) [ ~~(c)~~ ] The SBEC [ ~~board~~ ] may take any of the actions listed in subsection (a) of this section [ ~~order disciplinary action against a person or certificate over which the board has jurisdiction upon a determination~~ ] based on satisfactory evidence that:

(1) the person has conducted school or education activities in violation of law;

(2) the person is unworthy to instruct or to supervise the youth of this state;

(3) the person has violated a provision of the educators' [ ~~educator's~~ ] code of ethics;

(4) the person has failed to report or has hindered the reporting of child abuse or the known criminal history of an educator as required by law and §249.14 of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; [ ~~Agency's~~ ] Filing of Petition);

(5) the person has abandoned a contract in violation of the Texas Education Code, §§21.105(c), 21.160(c), or 21.210(c) ; [ ~~, of the Act; or~~ ]

(6) the person has failed to cooperate [ ~~as provided by law~~ ] with the Texas Education Agency (TEA) [ ~~agency~~ ] in an investigation ; or [ ~~commenced under this chapter.~~ ]

(7) the person has committed an act described in §249.14(g) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition), §249.12(b) of this title (relating to Administrative Denial; Appeal), or §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Articles 6252-13c and 6252-13d, Revised Civil Statutes).

(c) The TEA staff may commence a contested case to take any of the actions listed in subsection (a) of this section by serving a petition to the certificate holder in accordance with this chapter describing the SBEC's intent to issue a sanction and specifying the legal and factual reasons for the sanction. The certificate holder shall have 30 calendar days to file an answer as provided in §249.27 of this title (relating to Answer).

(d) Upon the failure of the certificate holder to file a written answer as required by this chapter, the TEA staff may file a request for the issuance of a default judgment from the SBEC imposing the proposed sanction in accordance with §249.35 of this title (relating to Disposition Prior to Hearing; Default).

(e) If the certificate holder files a timely answer as provided in this section, the case will be referred to the State Office of Administrative Hearings (SOAH) for hearing in accordance with the SOAH rules; the Texas Government Code, Chapter 2001; and this chapter.

(f) [ ~~(d)~~ ] The provisions of this section are not exclusive and do not preclude consideration of other grounds or measures available by law to the SBEC [ ~~board~~ ] or the TEA staff [ ~~agency~~ ], including student loan default or child support arrears. The SBEC [ ~~board~~ ] may request the Office of the Attorney General to pursue available civil, equitable, or other legal remedies to enforce an order or decision of the SBEC [ ~~board~~ ] under this chapter.

§249.17. Decision-Making [ ~~Decision Making~~ ] Guidelines.

(a) Purpose. The purpose of these guidelines is to achieve the following objectives:

(1) to provide a framework of analysis for the Texas Education Agency (TEA) staff, the presiding administrative law judge (ALJ) [ ~~ALJ~~ ] , and the State Board for Educator Certification (SBEC) [ ~~board~~ ] in considering matters under this chapter;

(2) to promote consistency in the exercise of sound discretion by the TEA staff, the presiding ALJ, and the SBEC [ ~~board~~ ] in seeking, proposing, and making decisions under this chapter; and

(3) to provide guidance for the informal resolution of potentially contested matters.

(b) Construction and application. This section shall be construed and applied so as to preserve SBEC [ ~~board~~ ] members' discretion in making final decisions under this chapter. This section shall be further construed and applied so as to be consistent with the Texas Education Code (TEC) [ ~~Act~~ ], the rest of this chapter, and other applicable law, including SBEC [ ~~board~~ ] decisions and orders.

(c) Consideration. The following factors may be considered in seeking, proposing, or making a decision under this chapter:

(1) the seriousness of the violation;

(2) whether the misconduct was premeditated or intentional;

(3) attempted concealment of misconduct;

(4) prior misconduct;

(5) whether the sanction will deter future violations; and

~~[ ~~(1)~~ the type and severity of actual physical or mental harm to a student or to school personnel;]~~

[ ~~(2)~~ the severity of economic harm to a student, the parent(s) of a student, school personnel, a school official, school district, or the state, and the ability of the person causing the harm to make restitution;]

~~[ ~~(3)~~ premeditated or intentional misconduct;]~~

~~[ ~~(4)~~ misconduct;]~~

~~[ ~~(5)~~ motive;]~~

~~[ ~~(6)~~ attempted concealment of misconduct;]~~

~~[ ~~(7)~~ prior misconduct of a similar or related nature;]~~

~~[ ~~(8)~~ disciplinary or criminal history;]~~

~~[ ~~(9)~~ violation of a board order;]~~

~~[ ~~(10)~~ prior written reprimands, warnings, or admonishments from any governmental agency or official regarding misconduct or violation of laws pertaining to the educator;]~~

~~[ ~~(11)~~ likelihood of present harm or potential for continuing harm to students, parents of students, school personnel, or school or certification officials;]~~

~~[ ~~(12)~~ terms and status of probation, community supervision, community service, restitution, or other requirement or condition judicially imposed in connection with a criminal offense;]~~

~~[ ~~(13)~~ the likelihood of future misconduct of a similar or related nature as shown by:]~~

~~[ ~~(A)~~ lack of remorse;]~~

~~[ ~~(B)~~ failure to implement remedial measures to correct or alleviate harm arising from the misconduct; or]~~

~~[ ~~(C)~~ lack of rehabilitative motivation or potential; or]~~

(6) [ ~~(14)~~ ] any other relevant circumstances or facts.

(d) Permanent revocation or denial. Notwithstanding subsection (c) of this section, the SBEC shall permanently revoke the teaching certificate of any educator or permanently deny the application of any applicant if, after a contested case hearing, it is determined that the educator or applicant:

(1) engaged in or solicited any sexual contact or romantic relationship with a student or minor as defined in §249.14(m) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition);

(2) possessed or distributed child pornography;

(3) was registered as a sex offender;

(4) committed criminal homicide;

(5) possessed, transferred, sold, distributed, or conspired to possess, transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481, on school property; or

(6) committed any offense described in the TEC, §21.058.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703710

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

Subchapter C. PREHEARING MATTERS

19 TAC §§249.18 - 249.29

§249.18.Jurisdiction.

(a) A contested case commences under this chapter when a request for hearing is timely filed with the Texas Education Agency (TEA) staff [ ~~agency's hearings coordinator~~ ] .

(b) The TEA staff shall refer the case to the State Office of Administrative Hearings (SOAH) if the TEA staff determines:

(1) in an administrative denial case, the applicant has timely filed a petition pursuant to §249.12(d) of this title (relating to Administrative Denial; Appeal); or

(2) the certificate holder has timely filed an answer pursuant to §249.15(d) of this title (relating to Disciplinary Action by State Board for Educator Certification).

(c) Nothing in this section precludes the TEA staff from referring the case to the SOAH prior to the receipt of a petition or answer.

(d) [ ~~(b)~~ ] Jurisdiction of the SOAH [ ~~office~~ ] is determined by the administrative law judge [ ~~ALJ~~ ] under 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) and this chapter after the TEA staff has referred the case to the SOAH .

§249.19.Powers and Duties of Administrative Law Judge [ ~~ALJ~~ ] .

The powers and duties of an administrative law judge [ ~~ALJ~~ ] are determined by 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

§249.20.Recusal and Disqualification of Administrative Law Judge [ ~~ALJs~~ ] .

The recusal or disqualification of an administrative law judge [ ~~ALJ~~ ] shall be governed by 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

§249.21.Substitution of Administrative Law Judge [ ~~ALJs~~ ].

Substitution of an administrative law judge [ ~~ALJ~~ ] shall be governed by 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

§249.22.Classification of Parties; Current Addresses.

(a) Regardless of errors as to designation of a party, parties shall be accorded their true status in the proceeding.

(b) The petitioner in a contested case proceeding under this chapter and 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) is the party in a contested case seeking relief from the decision maker and requesting an adjudicative hearing with the State Office of Administrative Hearings [ ~~office~~ ]. The petitioner shall have the burden of proof to show by a preponderance of the evidence entitlement to such relief.

(c) Parties shall keep the Texas Education Agency (TEA) staff [ ~~agency~~ ] apprised of their current addresses and shall notify the TEA staff [ ~~agency~~ ] of a change of address within five calendar days of the effective date of such change.

§249.23.Representation of Parties.

(a) Representatives of parties shall notify the State Office of Administrative Hearings (SOAH) [ ~~office~~ ] and other parties of the representation.

(b) At an informal conference offered pursuant to the Texas Government Code, Chapter 2001 [ ~~APA~~ ], a person may be represented by a person who is not an attorney.

(c) Parties in contested cases before the SOAH [ ~~office~~ ] may represent themselves or be represented by an attorney licensed to practice law in the State of Texas.

§249.24.Filing or Serving Documents on the Texas Education Agency Staff [ ~~Agency~~ ] or the Administrative Law Judge [ ~~ALJ~~ ].

(a) The following original papers shall be filed with the Texas Education Agency (TEA) staff:

(1) appeal of an administrative denial;

(2) appeal of the imposition of an administrative sanction and request for a contested case hearing under this chapter;

(3) exceptions and replies to the proposal for decision of the administrative law judge (ALJ); and

(4) motions for rehearing.

~~[ ~~(a)~~ The following requirements govern the filing or service on the agency of documents related to a proceeding under this chapter:]~~

[ ~~(1)~~ The following original papers shall be filed with the agency: appeal of an administrative denial and request for a contested case hearing under this chapter; exceptions and replies to the ALJ's proposal for decision; and motions for rehearing. Such filings shall be directed to: Hearings Coordinator, State Board for Educator Certification, 1001 Trinity Street, Austin, Texas, 78701-2603. The date of filing shall be determined by the file stamp affixed by the agency.]

~~[ ~~(2)~~ For any original paper required to be filed with the agency, the original and four copies shall be filed.]~~

(b) It is a rebuttable presumption that the date of filing is the file stamp date affixed by the TEA staff.

(c) All papers may be filed with the TEA staff by any method allowed by the State Office of Administrative Hearings (SOAH) rules or any electronic transmission agreed to by the parties.

(d) [ ~~(b)~~ ] The filing of papers with the SOAH [ ~~office~~ ] or service of documents on the ALJ in contested cases shall be governed by 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ), unless modified by order of the ALJ as allowed by law.

§249.25.Pleadings.

(a) Pleadings [ ~~filed with the office~~ ] include petitions, answers, replies, exceptions, and motions. Regardless of any error in its designation, a pleading shall be accorded its true status in the proceeding in which it is filed.

(1) Amended and supplemental pleadings may be filed at such time so as not to operate as a surprise on the opposing party.

(2) The administrative law judge [ ~~ALJ~~ ] may allow a pleading to be amended during the contested case evidentiary hearing on the merits and shall do so freely when the trial amendment will facilitate determining the merits of the case but will not unduly prejudice the objecting party.

(b) In addition to this chapter, 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) shall also govern the following matters related to pleadings: [ the content generally of pleadings; purpose and effect of motions; general requirements for motions; responses to motions generally; motions to intervene; motions for continuance; responses to written motions for continuance; and amendment of pleadings. ]

(1) content generally of pleadings;

(2) purpose and effect of motions;

(3) general requirements for motions;

(4) responses to motions generally;

(5) motions to intervene;

(6) motions for continuance;

(7) responses to written motions for continuance; and

(8) amendment of pleadings.

§249.26.Petition.

(a) The party seeking relief and requesting a contested case hearing under this chapter shall file a petition with the Texas Education Agency staff [ ~~office~~ ]. The petitioner shall have the burden of proof by a preponderance of the evidence in all contested case proceedings brought under this chapter.

(b) The petition shall contain the following items:

(1) a statement of the legal authority and jurisdiction under which the disciplinary action is being sought and the hearing is to be held;

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

(3) a statement of the matters asserted;

(4) a statement regarding the failure of the parties to reach an agreed settlement of the matters asserted in the petition;

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

(6) if the petition imposes [ ~~seeks~~ ] sanctions against a certificate holder, a notification set forth as follows in capital letters and in at least 12 [ 10 ]-point boldface type: IF YOU DO NOT FILE A WRITTEN ANSWER TO THIS PETITION WITH THE TEXAS EDUCATION AGENCY STAFF [ ~~STATE OFFICE OF ADMINISTRATIVE HEARINGS~~ ] WITHIN 30 CALENDAR DAYS OF BEING SERVED WITH THIS PETITION, [ ~~ANY SCHEDULED HEARING MAY BE CANCELED AND~~ ] THE STATE BOARD FOR EDUCATOR CERTIFICATION MAY GRANT THE RELIEF REQUESTED IN THIS PETITION, INCLUDING REVOCATION OF YOUR CERTIFICATE BY DEFAULT. THE MATTERS ASSERTED IN THE PETITION WILL BE DEEMED ADMITTED UNLESS YOUR WRITTEN ANSWER SPECIFICALLY DENIES EACH ASSERTION PLED AND IS FILED WITHIN THE PRESCRIBED TIME PERIOD. IF YOU FILE A WRITTEN ANSWER BUT THEN FAIL TO ATTEND A SCHEDULED HEARING, THE STATE BOARD FOR EDUCATOR CERTIFICATION MAY GRANT THE RELIEF REQUESTED IN THIS PETITION, INCLUDING REVOCATION OF YOUR CERTIFICATE.

(c) The petition shall be served on the respondent by United States certified mail, return receipt requested , and [ ~~. The agency as petitioner shall also serve the petition on the respondent~~ ] by regular first-class United States mail. A certificate evidencing service shall be included in the petition. For purposes of this section and §249.27 of this title (relating to Answer [ ~~answers~~ ] ), it is a rebuttable presumption that a petition was served on the respondent no later than five calendar days after mailing.

~~[ ~~(d)~~ A petition that does not comply with the requirements of this chapter and 1 Texas Administrative Code, Chapter 155 (relating to Rules of Procedure) is subject to dismissal.]~~

§249.27.Answer.

(a) The party responding to a petition filed under this chapter shall file a written answer with the petitioner [ ~~office~~ ] within 30 calendar days after being served with such petition. For purposes of this section and §249.26 of this title (relating to Petition [ ~~petitions~~ ] ), it is a rebuttable presumption that a petition was served on the respondent no later than five calendar days after mailing. The [ ~~At the time of filing with the office, the~~ ] respondent shall serve [ ~~a copy of~~ ] the answer on the petitioner by United States certified mail, return receipt requested , and by regular first-class United States mail .

(b) The answer shall specifically admit or deny each allegation in the petition and shall plead all affirmative defenses.

(c) The answer shall contain the name, current mailing address, daytime telephone number, if any, and facsimile number, if any, of the respondent and the respondent's authorized representative.

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

(e) An answer that does not comply with the requirements of this section [ ~~chapter~~ ] and 1 Texas Administrative Code, Part 7, §155.29 [ ~~Chapter 155~~ ] (relating to Pleadings [ ~~Rules of Procedure~~ ]) may provide grounds for judgment in favor of the petitioner , if supported by a proposal for decision issued by an administrative law judge .

§249.28.Stipulations.

Stipulations shall be governed by 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

§249.29.Discovery.

The Texas Government Code, Chapter 2001; [ ~~APA,~~ ] 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures); [ ~~Procedure),~~ ] this chapter ; [ , ] and the Texas Rules of Civil Procedure, as applicable, shall govern discovery.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703711

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

Subchapter D. HEARING PROCEDURES

19 TAC §§249.30 - 249.33, 249.35

§249.30.Notice of [ ~~Contested Case~~ ] Hearing.

(a) The notice of [ ~~Notice of a contested case~~ ] hearing is governed by the Texas Government Code, Chapter 2001; [ ~~APA,~~ ] 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures); [ ~~Procedure),~~ ] and this chapter.

(b) The Texas Education Agency (TEA) staff [ ~~agency~~ ] may serve the notice of hearing by sending it certified, return receipt requested, and regular first-class United States mail to the party's last known address [ ~~as shown by the agency's records. An educator shall notify the agency of his or her current mailing address~~ ] .

(c) For purposes of this subsection, the last known address is the address supplied by the educator pursuant to §230.431(c) of this title (relating to Procedures in General) and any other address that is known to the TEA staff at the time that the notice is sent.

§249.31.Venue.

Hearings shall be conducted in Austin, Texas, at a site designated by the State Office of Administrative Hearings [ ~~office~~ ] in accordance with applicable law and 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

§249.32.Conduct and Record of Hearings.

The rules of the State Office of Administrative Hearings [ ~~office~~ ] under 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) shall govern the procedure at the hearing and the making of a record of a contested case.

§249.33.Use of Deposition Transcripts in Contested Case Hearings.

The use of deposition transcripts in contested case hearings shall be governed by Rule 203 [ ~~207~~ ] of the Texas Rules of Civil Procedure. The terms "court proceedings" and "trial" used in Rule 203 [ ~~207~~ ] are deemed to refer to "contested case hearing(s)" for purposes of applying this section and Rule 203 [ ~~207~~ ] to contested case hearings before the State Office of Administrative Hearings [ ~~office~~ ] .

§249.35.Disposition Prior to Hearing; Default.

(a) This chapter and 1 Texas Administrative Code (TAC) , Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ]) shall govern disposition prior to hearing, default, and attendant relief.

(b) The Texas Education Agency (TEA) staff [ ~~executive director~~ ] may issue and sign orders on behalf of the State Board for Educator Certification (SBEC) [ ~~board~~ ] resolving a case by waiver, stipulation, compromise, agreed settlement, consent order, agreed statement of facts, or any other informal or alternative resolution agreed to by the parties and not precluded by law.

(c) The SBEC or the State Office of Administrative Hearings (SOAH) [ ~~If supported by an ALJ's proposal for decision, the board~~ ] may dispose of a case prior to a contested case hearing on the merits on the following grounds: unnecessary duplication of proceedings; res judicata; withdrawal; mootness; lack of jurisdiction; failure of a party requesting relief to timely file or file in proper form a pleading that would support an order or decision in that party's favor; failure to comply with an applicable order, deadline, rule, or other requirement issued by the SBEC [ ~~board~~ ], the TEA staff [ ~~executive director~~ ], or the presiding administrative law judge (ALJ) [ ~~ALJ~~ ]; failure to state a claim for which relief can be granted; or failure to prosecute.

(d) In any contested case hearing conducted pursuant to this chapter, the findings made by a hearing examiner in a proceeding arising under the Texas Education Code, Chapter 21, Subchapter G, shall not be conclusive but, the record of such proceeding, including all testimony and evidence admitted in the hearing, as well as the findings of the hearing examiner, shall be deemed admissible in a proceeding brought pursuant to this chapter, and shall be considered by the ALJ and the SBEC in issuing a proposed or final decision.

(e) [ ~~(d)~~ ] For purposes of this chapter, the following [ ~~an event described in paragraphs (1) or (2) of this subsection~~ ] shall constitute a default [ ~~on the part of a respondent~~ ] in a contested case:

(1) the failure of the respondent to timely file a written answer in proper form as required by this chapter; [ or ]

(2) the failure of the petitioner in an administrative denial case to timely file a petition in proper form as required by this chapter; or

(3) [ ~~(2)~~ ] the failure of the certificate holder or applicant [ ~~the respondent~~ ] to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, regardless of whether a written answer or petition has been filed. In such event, the SOAH shall abate the case so that the SBEC may enter a final order in accordance with this chapter.

[ ~~(e)~~ In the event a respondent defaults, the petitioner may seek from the ALJ or the board or both the appropriate relief as provided by paragraphs (1)-(3) of this subsection, in addition to and in conformance with any remedies for default available under 1 Texas Administrative Code, Chapter 155:]

[ ~~(1)~~ Upon the failure to timely file a written answer in proper form as provided by §249.27 of this title (relating to answers) and 1 Texas Administrative Code, Chapter 155, the ALJ may propose entry of a default judgment against the respondent. The board may dispose of the case by entering a default judgment against the respondent and granting any relief requested in the petition, including the revocation of a certificate. Upon notice of the board's disposition, the ALJ shall dismiss the case from the office's docket.]

[ ~~(2)~~ The petitioner, upon oral or written motion, shall be entitled to a continuance of a contested case hearing for a reasonable period of time determined by the ALJ if all the following conditions exist:]

~~[ ~~(A)~~ the respondent has failed to timely file a written answer in proper form as provided by §249.27 of this title and 1 Texas Administrative Code, Chapter 155;]~~

~~[ ~~(B)~~ the board has not disposed of the case; and]~~

~~[ ~~(C)~~ both the petitioner and the respondent appear in person or by authorized representative on the date and time at a scheduled hearing before the office.]~~

[ ~~(3)~~ Upon the failure to appear in person or by authorized representative on the date and time at a scheduled hearing before the office, regardless of whether a written answer has been filed, the ALJ may propose entry of a default judgment against the respondent pursuant to 1 Texas Administrative Code, §155.55 (relating to failure to attend hearing and default) or abate proceedings in the case and defer to the board for disposition. The board may dispose of the case by entering a default judgment and granting any relief requested in the petition, including the revocation of a certificate. Upon notice of the board's disposition, the ALJ shall dismiss the case from the office's docket.]

(f) Upon the occurrence of an event of default as defined in this section, the SBEC may enter a default judgment, as authorized by the Texas Government Code, §2001.056, and 1 TAC, Part 7, §155.55, whether or not the case has been referred to the SOAH, upon 30 days calendar notice. It is a rebuttable presumption that the notice was served on the certificate holder or applicant no later than five days after mailing. The notice shall specify the factual and legal basis for imposing the proposed sanction. Prior to issuance of a default decision or order, the certificate holder may contest the issuance of a default judgment by written notice filed with the TEA staff or by written request to appear before the SBEC at an SBEC meeting to show good cause for failure to file an answer or appear at the contested case proceeding.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703712

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

Subchapter E. POSTHEARING MATTERS

19 TAC §§249.36 - 249.44

§249.36.Proposal for Decision.

(a) As appropriate, the presiding administrative law judge (ALJ) [ ~~ALJ~~ ] shall prepare a proposal for decision containing the following items:

(1) separately stated findings of fact and conclusions of law; and

(2) a proposed order , if requested in the Texas Education Agency (TEA) staff's notice of hearing .

(b) In an appeal of the imposition of an administrative sanction, the TEA staff may prepare a proposal for decision containing separately stated findings of fact, conclusions of law, and a proposed order if the respondent has failed to file a timely answer to the TEA staff's petition as required by §249.27 of this title (relating to Answer).

(d) [ ~~(c)~~ ] The ALJ shall submit the proposal for decision to the SBEC [ ~~board's headquarters~~ ], with a copy to each party.

(e) [ ~~(d)~~ ] Except as otherwise provided or prohibited by these rules and other applicable law, the SBEC's [ ~~board's~~ ] general counsel may issue procedural directives relating to matters that arise after the submission of the proposal for decision to the SBEC [ ~~board~~ ] and that are not delegated to the State Office of Administrative Hearings [ ~~office~~ ] for action or decision.

§249.37.Exceptions and Replies.

(a) A party who is aggrieved by the proposal for decision of the administrative law judge (ALJ) or the Texas Education Agency (TEA) staff [ ~~ALJ's proposal for decision~~ ] shall file any exceptions to the proposal for decision within 30 calendar days of the date of the proposal for decision. Any replies to the exceptions shall be filed by other parties within 50 calendar days of the proposal for decision. Exceptions and replies shall be:

(1) filed with the State Board for Educator Certification (SBEC) [ ~~board~~ ] by mailing, hand-delivering, or faxing them to the SBEC's [ ~~agency's~~ ] general counsel [ ~~at agency headquarters~~ ];

(2) served upon the other party by mail, hand-delivery, or fax; and

(3) served on the ALJ in accordance with 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures [ ~~Procedure~~ ] ).

(b) Any disagreement with a factual finding or conclusion of law in the proposal for decision not contained in an exception to the proposal shall be waived.

(c) Each exception or reply to a finding of fact or conclusion of law shall be concisely stated and shall summarize the evidence in support of each exception.

(1) Any evidence or arguments relied upon shall be grouped under the exceptions to which they relate.

(2) In summarizing evidence, the parties shall include a specific citation to the hearing record where such evidence appears or shall attach the relevant excerpts from the hearing record .

(3) Arguments shall be logical and coherent and citations to authorities shall be complete.

(d) Exceptions to the proposal for decision may be based on the following:

(1) the ALJ has made an incorrect conclusion of law;

(2) the ALJ has failed to make an essential fact finding;

(3) the ALJ applied the incorrect burden or standard of proof;

(4) the findings of fact do not support the conclusions of law; or

(5) the ALJ has made a finding of fact that is not supported by substantial evidence.

§249.38.Review and Presentation of Proposal to Board.

The State Board for Educator Certification (SBEC) [ ~~board~~ ] shall review the proposal for decision and any amended proposals for decision, the exceptions and any replies to exceptions, the relevant excerpts from the record of the hearing conducted by the State Office of Administrative Hearings [ ~~office~~ ] , and oral arguments by the parties (if any) before making a final decision or issuing an order in a case. The SBEC [ ~~board~~ ] may require the presiding administrative law judge [ ~~ALJ~~ ] to make a presentation on the proposal for decision at a public meeting of the SBEC [ ~~board~~ ].

§249.39.Final Decisions and Orders.

(a) The chair having certified a quorum present at a regularly scheduled State Board for Educator Certification (SBEC) [ ~~board~~ ] meeting, a majority vote of the voting members present shall be required to make a final decision on a proposal for decision or request for issuance of a default judgment , unless provided otherwise by this chapter.

(b) A copy of the SBEC's [ ~~board's~~ ] decision or order shall be delivered by hand or certified mail [ ~~mailed~~ ] to the parties or to their authorized representatives, as appropriate, and to the State Office of Administrative Hearings [ ~~office~~ ].

(c) All final decisions and orders of the SBEC [ ~~board~~ ] under this chapter shall be in writing and signed by the members of the SBEC [ ~~board~~ ] voting in favor of the decision or order or by the chair on behalf of the majority as allowed by this chapter. A final decision or order shall include findings of fact and conclusions of law separately stated. The findings of fact or conclusions of law may be adopted by reference to another document.

(d) The SBEC may adopt an order modifying findings of fact or conclusions of law in [ ~~board may change~~ ] a proposal for decision submitted by the administrative law judge (ALJ) [ ~~ALJ~~ ] in accordance with the Texas Government Code, Chapter 2001 [ ~~APA~~ ]. If the SBEC [ ~~board~~ ] adopts an order that differs from [ ~~changes~~ ] an ALJ's proposal for decision, the SBEC's [ ~~board's~~ ] final decision or order shall show how the proposal was changed and [ , ] state the specific reason and legal basis for a change[ ~~, and cite the portion of the hearing record supporting the change~~ ]. If the SBEC [ ~~board~~ ] changes a proposal for decision because no evidence in the record supports the ALJ's finding of fact or conclusion of law, then the SBEC [ ~~board~~ ] may cite the record as a whole for such a change. The SBEC may remand the matter back to the ALJ with specific instructions for the ALJ to determine an essential finding of fact or to apply the correct burden or standard of proof.

§249.40.Motion for Rehearing; Administrative Finality ; Appeal .

(a) A motion for rehearing of the State Board for Educator Certification's (SBEC's) [ ~~board's~~ ] decision in a contested case and the determination of administrative finality shall be governed by the Texas Government Code, Chapter 2001; [ ~~APA,~~ ] applicable case law ; [ , ] and this section.

(b) A motion for rehearing unsupported by satisfactory evidence shall be overruled. This subsection does not limit the overruling of a motion for rehearing on other grounds or by operation of law.

(c) Appeals from a final order of the SBEC shall be under the substantial evidence standard of review and governed by the Texas Government Code, Chapter 2001; applicable case law; and this section.

(d) The costs of transcribing the testimony and preparing the record for an appeal by judicial review shall be paid by the party who appeals.

§249.41.Procedure for Reprimand; Restriction.

(a) Notice. When the State Board for Educator Certification (SBEC) [ ~~board~~ ] reprimands an educator or restricts an educator's certificate, the Texas Education Agency (TEA) staff [ ~~agency~~ ] shall mail to the educator a copy of the SBEC's [ ~~board's~~ ] order.

(b) Inscribed reprimand.

(1) The TEA staff [ ~~agency~~ ] shall inscribe the reprimand upon the virtual certificate of the educator [ demand that the educator return all certificates or permits issued by the State of Texas as well as all copies of them and substitute a certificate provided by the agency showing the reprimand on the face of the certificate ].

(2) A record of the SBEC's [ ~~board's~~ ] action publicly reprimanding the educator shall become part of the educator's official certification records maintained by the TEA staff [ ~~agency~~ ].

(3) The TEA staff [ ~~agency~~ ] shall also notify the employing school district of the SBEC's [ ~~board's~~ ] order reprimanding the educator.

(1) The educator may retain all copies of all certificates or permits issued by the State of Texas as well as all copies of them without being required to substitute a certificate showing the reprimand.

(2) The SBEC's [ ~~board's~~ ] action reprimanding the certificate holder shall only become part of the person's confidential investigative/litigation case file maintained by the TEA staff [ ~~agency~~ ] and shall not be available for public inspection except as required by law.

(3) The TEA staff [ ~~agency~~ ], the presiding administrative law judge [ ~~ALJ~~ ], and the SBEC [ ~~board~~ ] may consider a non-inscribed reprimand in seeking, recommending, or ordering sanctions based on subsequently obtained evidence of improper or criminal conduct by the educator.

(d) Restriction.

[ ~~(1)~~ The agency shall demand that the educator return all certificates or permits issued by the State of Texas as well as all copies of them and substitute a certificate provided by the agency showing each restriction.]

(1) [ ~~(2)~~ ] A record of the SBEC's [ ~~board's~~ ] action restricting the educator's certificate shall be placed on the educator's virtual certificate and shall become part of the person's official records maintained by the TEA staff [ ~~agency~~ ].

(2) [ ~~(3)~~ ] The TEA staff [ ~~agency~~ ] shall notify the employing school district of the SBEC's [ ~~board's~~ ] order restricting the educator's certificate.

§249.42.Procedure for the Suspension, Surrender [ ~~Cancellation~~ ] , or Revocation of a Certificate.

(a) When the State Board for Educator Certification (SBEC) [ ~~board~~ ] issues an order of suspension, surrender [ ~~cancellation~~ ] , or revocation, the Texas Education Agency (TEA) staff [ ~~agency~~ ] shall mail a copy of the order to the person who formerly held the certificate.

(b) When an order of suspension, surrender [ ~~cancellation~~ ], or revocation becomes administratively final, the TEA staff [ ~~agency~~ ] shall mail to the former certificate holder notification of finality [ ~~and a demand that he or she return all certificates or permits issued by the State of Texas as well as all copies of them~~ ].

(c) A record of the SBEC [ ~~board~~ ] action suspending, canceling, or revoking the certificate shall be recorded on the educator's virtual certificate and shall become part of the person's official records maintained by the TEA staff [ ~~agency~~ ].

(d) The TEA staff [ ~~agency~~ ] shall also notify the employing school district of the SBEC's [ ~~board's~~ ] order when it becomes administratively final.

(e) The TEA staff [ ~~agency~~ ] shall notify all Texas school district superintendents and certification officers in each state or territory of the United States of the suspension, surrender [ ~~cancellation~~ ], or revocation by mailing a notice to any school district known to be employing the educator and by recording the action on the educator's virtual certificate .

§249.43.Procedure for Reinstating a Suspended Certificate.

(a) At the end of the suspension period designated by the State Board for Educator Certification (SBEC) [ ~~board~~ ], the person whose certificate was suspended may request that the Texas Education Agency (TEA) staff [ ~~executive director~~ ] reinstate the certificate by applying for a duplicate certificate up to 30 days prior to the end of the suspension period and paying the appropriate fee. The TEA staff shall run a criminal background check on the applicant for the duplicate certificate and may deny the reinstatement based on a subsequent criminal history or other misconduct occurring or discovered after the effective date of the order suspending the certificate .

(b) A record of reinstatement of the certificate shall become part of the educator's official certification records.

(c) The TEA staff [ ~~agency~~ ] shall notify all Texas school district superintendents and certification officers in each state or territory of the United States of the reinstatement of the certificate by updating the educator's virtual certificate to show that the period of the suspension has expired. The record of the prior suspension shall become part of the person's official records maintained by the TEA staff and shall be recorded as a prior disciplinary action on the educator's virtual certificate .

§249.44.Reapplication Following Denial, Surrender [ ~~Cancellation~~ ], or Revocation.

(a) Except as provided by this section, the Texas Education Agency (TEA) staff [ ~~agency~~ ] shall process and review in its usual and customary manner the certificate application of a person whose previous application was denied or whose certificate was revoked or surrendered [ ~~canceled or revoked~~ ] by the State Board for Educator Certification (SBEC) [ ~~board~~ ] under this chapter. Such an applicant shall be subject to the same requirements and qualifications as any other current applicant, as specified in Chapter 230 of this title (relating to Professional Educator Preparation and Certification), including recommendation from an approved educator preparation program, if applicable, and all other prerequisites for certification at the time the application is received. [ ~~For purposes of this section, the term "canceled" refers only to the surrender of a certificate in lieu of disciplinary action, including possible revocation.~~ ]

(b) A person whose certificate has been denied, surrendered [ ~~canceled~~ ], or revoked under this chapter shall not reapply for a certificate before the fifth [ ~~first~~ ] anniversary after the date of the SBEC's [ ~~board's~~ ] order denying, accepting a surrender [ ~~canceling~~ ], or revoking a certificate became administratively final. The TEA staff [ ~~executive director~~ ] shall reject without processing or further proceedings any application received in violation of this subsection.

(c) In addition to other sanctions available under this chapter, the SBEC [ ~~board~~ ] may order that a person whose certificate has been denied, surrendered [ ~~canceled~~ ], or revoked under this chapter shall not reapply for a certificate before a time period longer than five years [ ~~one year~~ ] after the order of denial, surrender [ ~~cancellation~~ ], or revocation became administratively final. The SBEC may order that a certificate be permanently revoked or surrendered or that an application be permanently denied. The TEA staff [ ~~executive director~~ ] shall reject without processing or further proceedings any application received in violation of such an order. A rejection pursuant to this section is not considered an administrative denial and is not subject to a contested case hearing.

(d) In reviewing a certificate application, the TEA staff [ ~~agency~~ ], the presiding administrative law judge [ ~~ALJ~~ ], and the SBEC shall [ ~~board may~~ ] consider prior SBEC [ ~~board~~ ] orders denying, accepting a surrender [ ~~canceling~~ ], or revoking a certificate previously applied for or held by the applicant. The applicant may not contest the underlying basis for the prior order.

~~[ ~~(e)~~ After investigation and opportunity for hearing under this chapter, the board may grant or deny, in whole or in part, the relief requested in the applicant's petition.]~~

(e) [ ~~(f)~~ ]A person whose petition for relief under this section has been denied by the SBEC [ ~~board~~ ], in whole or in part, shall not file a subsequent application or petition earlier than the fifth [ ~~first~~ ] anniversary of the effective date of such denial.

[ ~~(g)~~ The executive director shall reject without further proceedings any application or petition filed in violation of this section, any other applicable law, or related lawful contract or agreement.]

(f) [ ~~(h)~~ ] The TEA staff [ ~~agency~~ ] shall publish notice of any certificate issued to a person whose previous application was denied or whose certificate was canceled or revoked by the SBEC [ ~~board~~ ] under this chapter by updating the educator's virtual certificate .

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703713

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

19 TAC §249.45

§249.45.Factors for Modifying Sanctions.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703714

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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

Subchapter F. ENFORCEMENT OF THE EDUCATOR'S CODE OF ETHICS

19 TAC §§249.46 - 249.56

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

The repeals are proposed under the Texas Education Code, §21.006(g), which requires the State Board for Educator Certification (SBEC) to propose rules that require the reporting of misconduct; §21.031(a), which gives the SBEC the authority to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.040(6), which allows the SBEC authority to develop and implement policies that define responsibilities of the SBEC; §21.040(8), which requires the SBEC to execute contracts for the performance of its administrative functions; §21.041(a), which allows the SBEC to adopt rules as necessary for its own procedures; §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)(4), which requires the SBEC to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the SBEC to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Texas Government Code, Chapter 2001; §21.041(b)(8), which requires the SBEC to propose rules that provide for the enforcement of an educator's code of ethics; §21.044, which requires the SBEC to propose rules to establish requirements and qualifications to obtain a certificate; §21.060, which allows the SBEC to suspend or revoke educator certificates based on the eligibility of persons convicted of certain offenses; §21.105(c), which allows the SBEC to impose sanctions against a teacher employed under a probationary contract; §21.160(c), which allows the SBEC to impose sanctions against a teacher employed under a continuing contract; §21.210(c), which allows the SBEC to impose sanctions against a teacher employed under a term contract; §22.082, which requires the SBEC to obtain criminal history records for an applicant for or holder of a teaching certificate; and §57.491(g), which requires the SBEC to not renew a certificate due to loan default on a guaranteed student loan; Texas Government Code, §411.090, which allows the SBEC to obtain criminal history record information from the Department of Public Safety of the State of Texas; §2001.058(f), which requires the SBEC to adopt rules and the application of general rules of practice for formal and informal proceedings brought pursuant to the Administrative Procedure Act, and §2051.001, which allows the SBEC to adopt a seal to attest an official document, certificate, or other written paper; Texas Family Code, §261.406(a), which requires the Texas Department of Family and Protective Services to investigate reports of possible abuse of a child in a public school, and §261.406(b), which requires the Department of Family and Protective Services to send a written report to the SBEC on investigations in schools for appropriate action; and Texas Occupations Code, §53.022, which requires the SBEC to determine whether a criminal conviction relates to an educator's ability to engage in the occupation; §53.023, which requires the SBEC to consider a set of factors to determine if the educator is fit to perform their duties; §53.024, which states that the licensing proceedings brought pursuant to chapter 53 are governed by the Administrative Procedure Act; §53.025, which requires the SBEC to issue guidelines to state the reasons a particular crime is considered to relate to educator certification and any other criterion that affects the decisions of the SBEC; §53.051, which requires the SBEC to notify a person in writing if the SBEC suspends or revokes a certificate or denies a person a license or the opportunity to be examined because of a prior conviction of a crime; and §53.052, which allows a person who has exhausted administrative remedies to file an action for judicial review within 30 days after the SBEC decision becomes final and appealable.

The proposed repeals implement the Texas Education Code, §§21.006(g); 21.031(a); 21.040(6) and (8); 21.041(a) and (b)(1), (4), (7), and (8); 21.044; 21.060; 21.105(c); 21.160(c); 21.210(c); 22.082; and 57.491(g); Texas Government Code, §§411.090, 2001.058(f), and 2051.001; Texas Family Code, §261.406(a) and (b); and Texas Occupations Code, §§53.022, 53.023, 53.024, 53.025, 53.051, and 53.052.

§249.46.Definitions.

§249.47.Purpose and Scope.

§249.48.Time for Filing of Complaint.

§249.49.Form of Complaint; Required Service; Local Resolution.

§249.50.Grounds for Dismissal of a Complaint by Texas Education Agency Staff or Review Committee.

§249.51.Texas Education Agency Staff Review and Notice.

§249.52.Appeal; Review Committee.

§249.53.Frivolous Complaints.

§249.54.Petition and Answer.

§249.55.Proceedings before the Office.

§249.56.Board Decision and Orders; Publication of Sanctions.

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

Filed with the Office of the Secretary of State on August 17, 2007.

TRD-200703715

Raymond Glynn

Associate Commissioner, Educator Quality and Standards

State Board for Educator Certification

Earliest possible date of adoption: September 30, 2007

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