The State Board for Educator Certification (SBEC) adopts new §§249.1-249.56, concerning Disciplinary Proceedings, Sanctions, and Contested Cases, including Enforcement of the Educator's Code of Ethics. Sections 249.1 and 249.14 are adopted with changes to the proposed text as published in the December 11, 1998, issue of the Texas Register (23 TexReg 12612). Sections 249.2-249.13 and §§249.15-249.56 are adopted without changes and will not be republished.

Proposed §249.1(7) and (8) were published in the Texas Register with the inadvertent omission of the title "Government Code" in the citations to statutory authority.

Proposed §249.14(d)(2)(D) contained a typographical error in which the word "authorized" was mistakenly printed instead of the word "unauthorized." Accordingly, the subparagraph of new Chapter 249 should read as follows:

(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; . . .

Under the new rules, the SBEC's Staff would investigate and litigate complaints on behalf of the education profession, public school students and their parents, and the State of Texas. The State Office of Administrative Hearings (SOAH) would conduct the adjudicative hearings for SBEC. After the hearing, the SOAH administrative law judge would recommend disposition of the case to the SBEC in the form of a "Proposal for Decision". The Board would make the final decision in the case and impose appropriate sanctions. The Board, however, would be limited by law in overruling or modifying the administrative law judge's Proposal for Decision.

The rules provide a range of possible actions the Board may take to regulate the preparation certification, continuing education, and standards of conduct of educators, including enforcement of the educator's code of ethics. Actions the Board may take under the new chapter include the denial, restriction, reprimand suspension, cancellation, or revocation of a certificate; the denial of admission of an educator preparation program; or the cancellation of an examinee's test registration or score.

No comments were received during the 30-day comment period beginning with the publication of the proposed rules in the December 11, 1998, issue of the Texas Register and ending January 9, 1999. The agency received one comment on December 10, the day before publication in the Texas Register . Directed more toward general implementation of new Chapter 249 rather than any specific changes to the rules themselves, the commenter suggested establishing local committees for code of ethics complaints, similar to the grievance committees set up under the State Bar of Texas' law discipline system. Such a network, however, would require considerable cooperation from the profession as well as possible additional funding for the agency.

Executive Summary for Reasoned Justification of New Chapter 249

On January 22, 1999, the State Board for Educator Certification (the SBEC or the board) adopted new 19 Texas Administrative Code Chapter 249. In conformance with the Administrative Procedure Act (APA), Government Code Chapter 2001, the new rules provide for disciplinary proceedings and sanctions, including enforcement of the educator's code of ethics, against certificate holders and others under the board's regulatory authority. With provisions for the smooth transition of pending cases, new Chapter 249 enables the SBEC to assume from the State Board of Education and Commissioner of Education responsibility for regulating the standards of conduct of educators, certificate applicants, certification test examinees, and educator preparation program candidates and attendees.

In developing Chapter 249, the SBEC and the board's staff considered information received from the State Board of Education, staff of the Commissioner of Education and the Commissioner of Higher Education, individual educators, members of the public, school law practitioners, and representatives of professional organizations, including the Association of Texas Professional Educators, Texas Association of School Personnel Administrators, Texas Association of School Administrators, Texas Association of School Boards, Texas Classroom Teachers Association, Texas Counselors Association, Texas Association of Secondary School Principals, Texas Elementary Principals and Supervisors Association, Texas Federation of Teachers, Texas Parent-Teacher Association, and the Texas State Teachers Association. During the drafting process, the agency's staff also considered information and data received from representatives of the Office of the Texas Attorney General, the State Office of Administrative Hearings, the Texas Guaranteed Student Loan Corporation, the Texas Department of Health, the Texas Department of Protective and Regulatory Services, the Texas Department of Insurance, and other professional and occupational licensing agencies, including the Texas State Board of Medical Examiners, the Texas State Board of Examiners of Psychologists, the Texas State Board of Pharmacy, and the Texas State Board of Public Accountancy.

Chapter 249 contains provisions for addressing misconduct by educators, certificate applicants, examinees of certification tests, and educator preparation program students and candidates. The new chapter establishes special procedures for enforcing the educator's code of ethics, which was previously adopted and appears separately in Chapter 247. Under the new rules, the SBEC may sanction the certificate of an educator, deny an applicant a certificate, cancel the scores or registration of an examinee, and deny an individual admission to or continuation in an educator preparation program. The new rules also contain provisions for dealing with holders of certificates erroneously issued by the agency.

To ensure due process of law, Chapter 249 establishes procedures for the intake, investigation, hearing, and decision of the types of cases noted above. The general provisions in Subchapter A establish, among other things, the authority and jurisdiction of the SBEC in imposing sanctions and taking other actions in disciplinary proceedings. The subchapter also states the purposes and applicability of the Chapter 249.

Subchapter B sets out the types of enforcement actions the SBEC will bring under Chapter 249 and provides guidelines for decision making by the administrative law judge and the board. In addition, this subchapter contains provisions for the receipt and investigation of information concerning misconduct by a person over whom the SBEC has jurisdiction as well as requirements for superintendents and others to report certain types of misconduct by educators and applicants for a certificate, including a known criminal history.

Subchapters C and D primarily address the hearing process, including pre-hearing matters like filings and discovery. A significant feature of the new rules is the use of the State Office of Administrative Hearings (SOAH or the office) to conduct the adjudicative hearings for the board in all disciplinary cases, including those involving enforcement of the educator's code of ethics.

As a necessary adjunct to choosing SOAH to conduct the contested case hearings, Chapter 249 adopts by reference SOAH's rules of procedure at 1 Texas Administrative Code Chapter 155 governing matters related to the hearing process, including discovery, in cases heard by the office. SOAH's rules apply only to matters that the SBEC has referred to the office. SOAH's rules establish a comprehensive set of guidelines concerning the practice and procedure for hearings in all cases referred to the office by its numerous referring agencies. In areas not covered by SOAH's rules, the SBEC developed additional procedural rules that do not prevent the operation of SOAH's rules governing matters related to hearing of cases referred to SOAH. For example, SOAH's rules do not affect the SBEC's rule specifying deadlines for filing exceptions to a proposal for decision (see new SBEC rule §249.37).

The board and representatives of the professional organizations believed the SBEC should be the final decision maker in disciplinary cases, including those brought under the code of ethics. Because the agency is new, enforcement policies need to be developed by the SBEC, the body the Legislature established in 1995 to regulate the standards of conduct of the education profession. For that reason, the board chose not to delegate final decision making authority to SOAH under the APA (Government Code, §2001.058(f)).

SOAH's rules will function to provide for a just, fair, and impartial adjudication of the rights and privileges of the parties under a consistent set of procedures for contested cases and other adjudicatory matters within the jurisdiction of the office and the board. Under SOAH rule §155.3, an administrative law judge (ALJ) will turn to the Texas Rules of Civil Procedure when the APA and the SOAH rules cannot resolve an issue. The same rule also allows an ALJ to modify or to supplement a procedural rule of the office when appropriate to promote the fair and efficient handling of the case without prejudicing parties' rights or contravening applicable statutes.

Subchapter E of new Chapter 249 deals with post-hearing procedures: the ALJ's proposal for decision and its submission to the SBEC, exceptions to the proposal, final decision by the board, and motion for rehearing.

Subchapter F of the new chapter contains special procedures for enforcing the educator's code of ethics. To help ensure a code of ethics complaint stating genuine issues of material fact receives a hearing, new Subchapter F establishes a two-tiered review process. First, the executive director will review the complaint for prior disposition, form, timeliness, and whether it alleges a violation of the code of ethics, assuming the complainant's version of events is true. If the executive director does not dismiss the complaint, then SOAH will conduct a hearing on its allegations. If the executive director does dismiss the complaint, then the complainant may appeal to a review committee comprised of three SBEC members, who may overturn the dismissal and order the complaint to a hearing before SOAH. After the hearing, the voting SBEC members who did not serve on the review committee would decide whether sanctions against the accused educator are appropriate.

Overall, the new rules are designed first and foremost to protect the safety and welfare of Texas schoolchildren and school personnel and to fairly and efficiently resolve disciplinary proceedings at the least expense possible to the parties and the state.

This chapter is generally adopted pursuant to the authority granted to the State Board for Educator Certification under the following provisions:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995.

(2) Chapter 21, Subchapter B, Education Code: §21.031 (relating to the board's establishment to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators); §21.039 (relating to the powers and duties of the executive director); §21.040(6) (relating to the board's duty to develop and implement policies defining the respective responsibilities of the board and board's staff); §21.040(8) (relating to the board's duty to execute interagency contracts to perform routine administrative functions); §21.041(a) (relating to the board's power to adopt rules as necessary for its own procedures); §21.041(b)(1) (relating to the board's power and duty to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code); §21.041(b)(4) (relating to the board's power and duty to propose rules that specify the requirements for the issuance and renewal of an educator certificate); §21.041(b)(7) (relating to the board's power and duty to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code); §21.041(b)(8) (relating to the board's power and duty to propose rules that provide for the enforcement of an educator's code of ethics); §21.042 (relating to the State Board of Education's review of board rules); §21.044 (relating to the board's power and duty to propose rules establishing requirements for educator preparation);

(3) Chapter 21, Education Code: §21.105 (relating to sanctions the board may impose against an educator who abandons a probationary contract); §21.160 (relating to sanctions the board may impose against an educator who abandons a continuing contract); and §21.210 (relating to sanctions the board may impose against an educator who abandons a term contract);

(4) Chapter 22, Subchapter C, Education Code (relating to criminal history records of applicants for and holders of educator certificates);

(5) Chapter 57, Subchapter C, Education Code (relating to nonrenewal of a certificate based on student loan default);

(6) Section 411.090, Government Code: (relating to the board's access to criminal history record information);

(7) Chapter 2001, Government Code (relating to adoption of agency rules and application of general rules of practice for formal and informal proceedings brought pursuant to the Administrative Procedure Act);

(8) Section 2051.001, Government Code (relating to adoption of seal by state commissions and boards);

(9) Articles 6252-13c and 6252-13d, Revised Civil Statutes, (relating to the denial or sanction of a state issued license based on a criminal conviction); and

(10) Chapter 232 (relating to suspension of certificate for child support arrears) and Chapter 261, Family Code (relating to the obligation of educators to report child abuse).

The justifications for individual sections of new Chapter 249 contain more specific references to legal authority.

Subchapter A. General Provisions.

§249.1. Board's Regulatory Authority.

New §249.1 sets out the general statutory authority under which the SBEC adopted new Chapter 249.

Statutory authority: The section of this new chapter is adopted under the authority of the following statutes and other law: Tex. Railroad Comm'n v. Lone Star Gas Co. , 844 S.W.2d 679, 685 (Tex. 1992) and Government Code, §2001.033(3), which requires the adoption of the rules in this chapter to be a valid exercise of the agency's legal authority.

§249.2. Sunset Provision.

The purpose of new §249.2 is to establish a schedule according to which the SBEC will review the provisions of new Chapter 249 in the future to determine whether they should be readopted, modified, or repealed. SBEC staff will file with the Texas Register notices of intent to review and readopt, amend, or repeal Chapter 249 in accordance with the schedule set out in new §249.2. Unless amended by future legislation, the sunset review of Chapter 249 will continue on a permanent, four-year cycle.

The rule is based on the premise that a sunset review process will ensure that the rules in Chapter 249 remain valid, reflecting current law and policies, and that the reasons for adopting or readopting the rules continue to exist. Rider 167 of House Bill 1, General Appropriations Act, 75th Texas Legislature, establishes a four-year sunset review cycle for all state agency rules, including new Chapter 249. Because Chapter 249 will become effective on or after September 1, 1997, it will be reviewed no later than four years after its effective date.

Statutory authority: The section of this new chapter is adopted under the authority of the following law: House Bill 1, Article IX-114, Section 167, 75th Legislature, which requires the agency to review the rules in this chapter at least every four years and readopt them or let them expire, unless modified before the scheduled sunset date.

§249.3. Definitions.

The purposes of new §249.3 are to provide the meanings of key terms used in new Chapter 249 in a convenient location, to ensure terms are used consistently throughout the chapter, and to avoid having to redefine or elaborate on the terms every time they appear. The definitions in the section apply to terms used in the new chapter, unless the context clearly indicates otherwise. For the convenience of persons mainly interested in code of ethics enforcement, new §249.46 defines key terms used in Subchapter F of the new chapter.

Because the chapter establishes a new system for regulating standards of conduct in the education profession, the definitions section will help persons affected by the new rules understand the application of Chapter 249 and enhance consistency in its implementation by SBEC staff and board members and SOAH ALJs.

In compiling the definitions in the section, the agency considered suggestions of interested parties; definitions and uses of similar terms found in the Administrative Procedure Act (Government Code, Chapter 2001); the Code Construction Act (Government Code, Chapter 311); the disciplinary proceedings rules of the State Board of Education and the Commissioner of Education at 19 Texas Administrative Code Chapters 137 and 157; the procedural rules of the State Office of Administrative Hearings at 1 Texas Administrative Code Chapter 155; the rules of other selected occupational regulatory agencies; and applicable case law.

Based on the information gleaned from these sources, the agency formulated definitions of key terms to be consistent with other laws affecting the agency's disciplinary proceedings, including the APA and SOAH's rules, and to be clear in their expression.

The definitions in the section of this new chapter are generally adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Administrative Procedure Act (Government Code, Chapter 2001); and Code Construction Act (Government Code, Chapter 311).

Set out below are justifications for definitions that are not: statutorily fixed or generally accepted legal terminology, such as contested case and petition ; shortened references to terms understandable in the context of the main sections where they appear, such as applicant ; or shortened references to or initialisms of self-evident, generally accepted terms, such as board or ALJ.

"Conviction"-The definition of "conviction" under new §249.3(21)-"an adjudication of guilt for a criminal offense"-is the standard one stated in case law for matters related to licensure:

These cases, statutes, and interpretive opinions reveal a clear pattern; whenever a "final conviction" disqualifies one from holding an office, exercising a privilege, or obtaining a license, the term should be understood as including all judgments involving an express adjudication of guilt , even if the punishment is suspended and the convicted individual is given probation.

(Emphasis added.) Welch v. State, Ex Rel. Long , 880 S.W.2d 79, 82 (Tex. App.-Tyler 1994, writ denied).

Likewise, the court in Easton v. Sanders , 67 F.3d 97, 100 (5th Cir. 1995) stated, "Clearly, it is the adjudication of guilt for a felony offense that triggers the Board's right to revoke a private investigator's license, not the probated sentence." (Emphasis added.)

The definition does not include compliance with the terms of deferred adjudication, for which, by the very nature of the sentence, no adjudication of guilt has occurred. The SBEC, however, may proceed against an individual based on the misconduct underlying the deferred adjudication, if not on the basis of a "conviction."

"Good moral character"-Under new Chapter 249, this term is a criterion for eligibility to be admitted to an educator preparation program, to hold or to renew a certificate, to reinstate a suspended certificate, and to remove or to modify a certificate restriction. The purpose behind the standard is to protect the safety and welfare of Texas schoolchildren and school personnel and to ensure student teachers, interns, and educators are morally fit and worthy to instruct or to supervise the youth of the state. For application in this chapter, the definition of "good moral character" in new §249.3(29) reflects character traits that have a rational connection with the individual's present fitness or capacity to be an educator and relates to the legitimate interests of Texas in protecting prospective students and school personnel and in safeguarding the system of education within the state. In addition to the authority cited above for new §249.3, the authority to impose such a standard is provided by the following case law: B&B Vending Co. v. City of El Paso , 408 S.W.2d 545, 549 (Tex. Civ. App.-San Antonio 1966, writ ref'd n.r.e.); Jordan v. State Bd. of Ins. , 160 Tex. 506, 334 S.W.2d 278 (1960); Marrs v. Matthews , 270 S.W. 586, 588 (Tex. Civ. App.-Amarillo 1925, writ ref'd n.r.e.).

"Law"-In addition to the United States and Texas Constitutions, state and federal statutes, regulations, rules, and relevant case law, new §249.3(33) includes "decisions and orders of the board and the commissioner of education" under the definition of "law." The SBEC's final decision in a disciplinary case is legally binding on and enforceable by the agency and the parties. The term is also significant when used, for instance, in new §249.4(a), relating to applicability: "In conjunction with the rules of practice and procedure of the office (1 Texas Administrative Code Chapter 155 (relating to Rules of Procedure)) and other applicable law , this chapter shall govern disciplinary matters before the board. . . ." The purpose of using "law" in such a way is to provide a foundation for decision making under Chapter 249. Past decisions of the commissioner in matters of educator discipline, including code of ethics enforcement, may offer valuable guidance in deciding cases under the new chapter. Further, the SBEC's own decisions in disciplinary cases may serve as precedents on which future ALJs and board members can rely in considering sanctions against educators. To carry out its legislative mandate, the SBEC admittedly may have to change policies and to depart from the decisions of the commissioner or a previous board. Because the board as a state agency has executive and rulemaking functions in addition to judicial, decision making functions, the doctrine of stare decisis is not as limiting for the SBEC as it is for the courts. But defining agency decisions as "law" will impel ALJs and SBEC members to provide reasonable explanations for diverging from them when reconsideration of policy necessitates a change.

"Moral turpitude"-In determining whether a crime or act involves moral turpitude for purposes under this chapter, the ALJ and the board will consider the nature of the offense or conduct as it bears on an applicant's or educator's moral fitness to enter or to continue in the education profession. The definition in new §249.3(36) offers guidelines to the SOAH judge and the SBEC for determining whether a crime or act involves "moral turpitude." The parts of the definition not referencing another rule or statute are derived from case law and a decision by the Commissioner of Education: Duncan v. Board of Disciplinary Appeals , 898 S.W.2d 759, 761 (Tex. 1995); Polk v. State , 865 S.W.2d 627, 630 (Tex. App.-Fort Worth 1993, writ ref'd); Tex. Comm'r of Education, Tex. Educ. Agency v. Sommerlad , Docket No. 023-TTC-995 (Jan. 26, 1996) at 3 (final order revoking teacher's certificate).

"Petitioner"-The definition in new §249.3(41) clarifies that the petitioner is the party with the burden of proof by a preponderance of the evidence in hearing before SOAH under this chapter. Section 2003.050, Government Code, provides that the SBEC's rules will govern procedural matters in hearings before SOAH as the office's rules allow. Because neither the APA nor the SBEC's enabling statute designate the party with the burden of proof, SOAH rule §155.41, related to procedure at hearing, defers the determination to the SBEC as the agency referring the case to SOAH. Under new Chapter 249, the determining principle is that the party with the burden of proof is the party seeking a change in the status quo, initiating proceedings, and asking the board for relief through a final decision, order, or other action. See, e.g. , J. Reese, ADMINISTRATIVE LAW: PRINCIPLES AND PRACTICE (West, 1995) at 427-28. Accordingly, the agency would have the burden of proof in asking the board to sanction an educator's certificate. But the applicant would have the burden in asking the board to order the executive director to issue a certificate.

"Unworthy to instruct or to supervise the youth of this state"-The term in §249.3(55) is derived from former §13.046(a)(2), Education Code, relating to suspension and cancellation of a teacher's certificate. The SBEC has added the words "or to supervise" to reflect the role a certified administrator plays on campus or in the school district. The former Education Code did not define the term, so the SBEC has chosen a meaning based on its application in disciplinary decisions by the Commissioner of Education. See , Tex. Comm'r of Education, Tex. Educ. Agency v. Sommerlad , Docket No. 023-TTC-995 (Jan. 26, 1996) at 3 (final order revoking certificate because of unworthiness to instruct) ("A person who accepts a teaching certificate from the state impliedly agrees to submit to tribunals created by the state to determine their fitness to continue enjoying the privilege granted.") Moreover, in Marrs v. Matthews , 270 S.W. 586, 588 (Tex. Civ. App.-Amarillo 1925, writ ref'd n.r.e.), the court said the Legislature's controlling purpose in authorizing a teacher's certificate to be sanctioned for "unworthiness" was to exclude "teachers who were found to be morally or mentally unfit." To reflect the SBEC's authority under §21.044, Education Code, over educator preparation programs and to protect the health, safety, and welfare of elementary and secondary school students, the board expanded the application of the term to include student teachers, interns, and others assigned to a school campus under the auspices of an educator preparation program.

§249.4. Applicability.

New §249.4 sets out the matters the new rules will control. New Chapter 249 will govern disciplinary matters involving educator certification, assessment, and preparation. Section 249.4 describes the types of proceedings that will arise under Chapter 249: denial or sanction of a certificate; enforcement of the educator's code of ethics; and other proceedings regarding the acts, omissions, or moral character of educator preparation candidates, certification-test examinees, and persons required to report an educator's misconduct or criminal history.

The new chapter, however, does not apply to matters related to the proposal or adoption of board rules under the Administrative Procedure Act (APA) or to internal personnel policies or practices of the executive director or the board. These matters will be addressed through other statutes and rules. Moreover, an SBEC member or employee who holds an educator certificate is not subject to sanctions under Chapter 249 for performing their duties on behalf of the board or staff. Otherwise, persons aggrieved by board or staff actions could vexatiously harass certified SBEC members and employees by bringing complaints against them under Chapter 249, complaints that would have nothing to do with the board or staff member's status as a certified educator.

Pursuant to new §249.4(b), the State Office of Administrative Hearings (the office) will conduct the contested case hearings in these matters. The decision to use SOAH to hear SBEC's cases instead of hearing them in-house was based on providing parties an objective, neutral, and cost-effective tribunal. Not having the final decision maker employ the trier of fact relieves pressure on the administrative law judge (ALJ) to favor the agency. Such an "arms'-length" arrangement helps to ensure objectivity and neutrality that promotes confidence in the hearing process. In addition, SOAH has a large pool of experienced ALJs to draw upon, whereas the SBEC would be limited by the Legislature's employment cap in the number of ALJs the agency could hire. In a survey of state agencies that had transferred their hearing functions to SOAH, 73 percent of the respondents said the transfer was smooth. Texas Senate Committee on State Affairs. "Report to the 75th Legislature on the Transfer of Administrative Hearings from Individual State Agencies to the State Office of Administrative Hearings" (Sept. 1, 1996) at 15.

Once the SBEC refers a case for hearing, SOAH's rules generally will control the proceedings under new Subchapters C (relating to prehearing matters) and D (relatin to hearing procedures). Having been tested in a variety of regulatory contexts, SOAH's rules provide fair, consistent procedures for the State and educators facing sanctions.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators as well as to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve student performance; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; §21.105(c), which authorizes the board to sanction an educator who abandons a probationary contract; §21.160(c), which authorizes the board to sanction an educator who abandons a continuing contract; §21.210(c), which authorizes the board to sanction an educator who abandons a term contract; and §22.083(c), which requires superintendents and certain other school officials to report the known criminal history of an educator or a certificate applicant to the SBEC;

(3) Family Code, §261.101, which requires educators to report suspected child abuse or neglect; and

(4) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.5. Purposes.

The purpose of new §249.5 is to set out the conceptual framework for new Chapter 249 and the ends the rules are designed to accomplish.

By setting out the purposes of Chapter 249, the new rule will help guide parties, ALJs, and board members in applying the sections of the new chapter, especially in those rare instances when the rules do not provide a clear-cut answer or procedure for an atypical or unanticipated issue.

In accordance with the court's opinion in State Board of Insur. v. Deffebach , 631 S.W.2d 794, 798 (Tex App.-Austin 1982, writ ref'd n.r.e.), new §249.5 helps ensure the disciplinary rules are in harmony with the general objectives and purposes of the SBEC's enabling statutes. Based on Chapter 21, Subchapter B, Education Code, the purposes section also guided the formulation of new Chapter 249. Representatives of professional educator organizations and school-law practitioners contributed suggestions during the development of the chapter, emphasizing the importance of new §249.5 in setting the tone for the disciplinary rules. The board believes the rule as adopted appropriately reflects both the regulatory mission of the agency and the worthy objective of resolving contested cases fairly and efficiently.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators as well as to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve student performance; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; and §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; and

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.6. Construction.

New §249.6 is intended to accomplish three goals: (1) to state the policy of the board that the provisions of new Chapter 249 should be construed in light of the objectives for which it was adopted; (2) to restate the law of construction regarding the words "includes" and "including," which are used throughout the new chapter; and (3) to declare each section of new Chapter 249 to be severable.

Subsection (a) of new §249.6 dovetails with SOAH's rule at 1 Texas Administrative Code §155.3(e), which provides for the ALJ to consult the SBEC's written policies in resolving procedural issues when the APA, case law, and SOAH's rules do not provide a clear answer. Among the most important policies to which the ALJ should refer are the purposes of Chapter 249 expressed in new §249.5.

Subsection (b) of the new rule is included because "includes" and "including" appear in so many places throughout the new chapter. The reason for the particular definition is to not exclude a material factor or consideration, applicable law, or relevant illustration simply because the rules did not anticipate or provide for all of them, unless the rule expressly limits its construction to the items enumerated. The general definition for "includes" and "including" is taken from §311.005(13) of the Code Construction Act (Chapter 311, Government Code). The Code Construction Act applies to rules adopted under the Education Code, including those in new Chapter 249. See §311.002(4), Government Code. Subsection (c) of new §249.6 asserts that, if the courts declare a provision in Chapter 249 to be invalid, rules that can still operate without the invalid provision remain in effect. This principle conforms with the holdings in Addison v. Holly Hill Fruit Products , 322 U.S. 607, 618-19, 64 S.Ct. 1215, 1222, 88 L.Ed. 1488 (1944), and Texas Dept. of Banking v. Restland Funeral Home, Inc. , 847 S.W.2d 680, 683-84 (Tex. App.-Austin 1993, no writ).

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.7. Signature Authority; Seal.

The purpose of new §249.7 is to provide an efficient means for signing orders under new Chapter 249 and to authorize the board to adopt an official seal.

For administrative efficiency, the SBEC may delegate to the chair the authority to sign final orders issued under Chapter 249 on behalf of the whole board. Additionally, the board may authorize the executive director to sign final orders disposing of disciplinary proceedings by agreement of the parties. Finally, to memorialize the official acts of the board under the new chapter and to authenticate them, new §249.7(c) allows the board to adopt an official seal.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.040(6), which requires the board to develop and to implement policies defining the respective responsibilities of the board and the board's staff, including the executive director; §21.041(a), which authorizes the board to adopt rules as necessary for its own procedures; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; and §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; and

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2051.001, which authorizes the SBEC to adopt a seal to authenticate official acts taken under new Chapter 249.

§249.8. Agreements to Be in Writing.

The purpose of new §249.8 is to allow parties to effectively resolve issues between them.

To be enforceable, an agreement between the parties would have to be filed in writing with the SBEC or SOAH. The new rule provides for exceptions offered by other provisions in new Chapter, such as §249.28, which allows the parties to enter stipulations on the record at a hearing before a SOAH ALJ. The rule is based on the premise that proceedings under new Chapter 249 can be streamlined fairly and effectively by permitting the parties to dispose of contested issues on their own as long as they reduce their agreements to writing so they can be enforced.

Requiring agreement to be in writing and filed as part of the record of the proceeding is an appropriate measure to avoid later misunderstandings as to the parties' agreements and to provide grounds for enforcement of the agreements by the parties, the ALJ, and the board. Putting agreements in writing also forces parties to carefully consider what they are agreeing and fosters a meeting of the minds over the terms of any agreement. Overall, new §249.8 promotes administrative efficiency by allowing the parties to resolve issues between them and provides a reasonable method of documenting agreements and ensuring compliance with them.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2001.056, which allows informal disposition of a contested case under new Chapter 249 by agreed settlement.

§249.9. Ex Parte Communications.

The purpose of new §249.9 is to declare the board's commitment to the proper determination of disciplinary cases under the new chapter and intolerance for improper means of influencing the final decision. The new rule complies with the general prohibition on ex parte communications contained in the APA (§2001.061(a), Government Code). The phrase "except as allowed by law" at the end of new §249.7's ban also comports with the APA's limited exceptions allowing ex parte communications.

Premises for rule: The rationale for prohibiting ex parte communications is based on the parties' rights to an unbiased decision-making process. Ex parte communications deprive parties of a concurrent occasion to inform the decision maker. The ex parte prohibition reflects the requirement that decisions be based only on evidence made part of the hearing record and not on any information outside that record.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §§2001.058(d) and 2001.061, which prohibits unauthorized ex parte communications in contested cases.

§249.10. Conduct and Decorum.

The purpose of new §249.10 is to establish fair and effective procedures for maintaining order during proceedings brought under new Chapter 249.

The new rule sets standards for proper behavior in disciplinary proceedings and adopts by reference SOAH's procedural rules regulating conduct and decorum in hearings, including 1 Texas Administrative Code §155.49. New §249.12 also authorizes the board chair and the ALJ to impose sanctions against parties and other individuals who violate the standards of conduct. The SBEC chair will have the same options for enforcing conduct and decorum at board meetings as an ALJ has for maintaining order during a hearing.

The rule is premised on the need for dignity and order in disciplinary proceedings so they may be justly and expeditiously resolved. In formulating the rule, the board or the SBEC staff considered the related rule of the State Board of Education and the Commissioner of Education, 19 Texas Administrative Code §157.1046, but found its length and detail inappropriate for inclusion without revision in new Chapter 249. New §249.10 adopts by reference SOAH's procedural rules, which give ALJs broad powers to maintain order. In addition, the parties' attorneys will be held to the standards set out in the Texas Disciplinary Rules of Professional Conduct, which do not need to be replicated verbatim in the new rule. For these reasons, the new rule is a succinct yet enforceable provision, which offers sufficient notice to all participants in disciplinary matters of the limits of acceptable behavior.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

Subchapter B. Enforcement Actions and Sanctions.

§249.11. Test Irregularities; Appeal; Sanctions.

The purpose of new §249.11 is to establish fair and efficient procedures for addressing suspected cheating on the professional examinations the SBEC administers.

When the agency obtains satisfactory evidence of cheating on a certification test, the SBEC's staff will cancel the score and notify the examinee, including in the notice the reasons for such action. The examinee will be offered a chance to show that he or she did not cheat on the test. If the agency refuses to reinstate the test score, the examinee may file an appeal within 30 calendar days of receiving the notice of score cancellation. ( See new §249.24, relating to filings with the agency.) The appeal is a request for a hearing before SOAH and a final decision by the board. Untimely appeals will be dismissed.

The SBEC staff will refer the examinee's appeal to SOAH, which will docket the case for hearing. The examinee will then have another 30 calendar days after receiving notice of the referral to file a petition with SOAH and to serve a copy on the SBEC's executive director. Failure to timely file the petition will result in its dismissal. The petition is a formal pleading that must comply with the requirements of new §§249.25 and 249.26, as well as SOAH's rules governing pleadings, including 1 Texas Administrative Code §155.29. Failure to timely file the petition in proper form will result in dismissal of the case and the score cancellation will stand. As is appropriate for any adjudicative proceeding under the APA, the ALJ and the agency as respondent are entitled to sufficient notice of the examinees' factual assertions and legal grounds for relief, which the petition is intended to provide.

As petitioner at the hearing before SOAH, the examinee will have the burden of proof by a preponderance of the evidence to show that the administrative denial should be overturned and that the individual is entitled to the relief requested. Following the hearing and the ALJ's issuance of a proposed ruling, the board will make the final decision in the matter. If the board finds cheating, the final order may prohibit the individual from taking the test again, in addition to canceling scores.

Based on prior experience in hearings conducted by the Texas Education Agency under the rules of the State Board of Education and the Commissioner of Education, the SBEC's enforcement staff found that the responsibilities of the aggrieved examinees in going forward and in assuming the burden of proof were not always clear. See, e.g. , 19 Texas Administrative Code §157.1051, relating to a petition for review by the commissioner. Further, the SBEC's enabling statutes in Subchapter B of Chaper 21, Education Code, do not establish the burden of proof. Thus, the board had to assign the burden of proof in formulating new Chapter 249.

Under new §249.11, the party with the burden of proof is the party seeking a change in the status quo, initiating proceedings, and asking the board for relief through a final decision, order, or other action. See , J. Reese, ADMINISTRATIVE LAW: PRINCIPLES AND PRACTICE (West 1995) at 427-28. The examinee does not come to the adjudicative hearing with a right, privilege, or property interest that the agency has taken away. Accordingly, the examinee would have the burden of going forward in requesting a hearing before SOAH and asking the board to overturn the administrative denial. The SBEC staff, however, is obliged to marshal satisfactory evidence supporting the factual and legal basis for canceling a score to show the agency did not act arbitrarily and capriciously.

Because of the SBEC's legal and contractual relationship with SOAH, the agency will be responsible for sending out the notice of hearing in accordance with the APA (§2001.052, Government Code), even though the aggrieved applicant is the party requesting the hearing.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.12. Administrative Denial; Appeal.

The purpose of the rule is to establish a fair and efficient process by which certain applicants aggrieved by SBEC staff decisions may receive a hearing before SOAH and a final decision by the board.

New §249.12 applies to individuals contesting the SBEC staff's administrative denial of the following applications: (1) admission to an educator preparation program; (2) certification or renewal; (3) reinstatement of a suspended certificate; or (4) removal or modification of certificate restrictions. As defined by new §249.3(2), an "administrative denial" is a decision or action by the agency's staff to deny the applications listed above based on evidence of a lack of good moral character or improper conduct. Certificate applicants, for instance, who have not satisfactorily completed required coursework or examinations would not be entitled to a hearing under this section or Chapter 249.

The agency will notify the applicant of the administrative denial and the reasons for it. The rejected applicant will have 30 calendar days from receiving the notice of denial in which to file an appeal requesting a hearing before SOAH and a final decision by the board. (See new §249.24, relating to filings with the agency.) An appeal not timely filed will be dismissed. The SBEC staff will refer the aggrieved applicant's appeal to SOAH, which will docket the case for hearing. The applicant will then have another 30 calendar days after receiving notice of the referral to file a petition with SOAH and serve a copy on the SBEC's executive director. Failure to timely file the petition will result in its dismissal. The petition is a formal pleading that must comply with the requirements of new §§249.25 and 249.26, as well as SOAH's rules governing pleadings, including 1 Texas Administrative Code §155.29. Failure to timely file the petition in proper form will result in dismissal of the case and the administrative denial will stand. As is appropriate for any adjudicative proceeding under the APA, the ALJ and the agency as respondent are entitled to sufficient notice of the applicant's factual assertions and legal grounds for relief, which the petition is intended to provide.

As petitioner at the hearing before SOAH, the aggrieved applicant will have the burden of proof by a preponderance of the evidence to show that the administrative denial should be overturned and that the individual is entitled to the relief requested. Following the hearing and the ALJ's issuance of a proposed ruling, the board will make the final decision in the matter.

Based on prior experience in hearings conducted by the Texas Education Agency under the rules of the State Board of Education and the Commissioner of Education, the SBEC's enforcement staff found that the responsibilities of the aggrieved applicants in going forward and in assuming the burden of proof were not always clear. See, e.g. , 19 Texas Administrative Code §157.1051, relating to a petition for review by the commissioner. Further, the SBEC's enabling statutes in Subchapter B of Chaper 21, Education Code, do not establish the burden of proof. Thus, the board had to assign the burden of proof in formulating new Chapter 249.

Under new §249.12, the party with the burden of proof is the party seeking a change in the status quo, initiating proceedings, and asking the board for relief through a final decision, order, or other action. See, J. Reese, ADMINISTRATIVE LAW: PRINCIPLES AND PRACTICE (West 1995) at 427-28. The applicant does not come to the adjudicative hearing with a right, privilege, or property interest that the agency has taken away. Accordingly, the applicant would have the burden of going forward in requesting a hearing before SOAH and asking the board to overturn the administrative denial. The SBEC staff, however, is obliged to marshal satisfactory evidence supporting the factual and legal basis for administratively denying an application to show the agency did not act arbitrarily and capriciously.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators as well as to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve student performance; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; and §21.048(a), which requires the board to propose rules providing comprehensive certification examinations; and

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.13. Cancellation of an Erroneously Issued Certificate.

The purpose of new §249.13 is to provide fair and efficient procedures for voiding a certificate the agency mistakenly issued to an individual who does not in fact meet the qualifications for certification.

Upon discovering an erroneously issued certificate, the SBEC's staff will notify the employing school district and ask the holder to return the certificate. The executive director will issue a valid certificate when the individual has in fact satisfied the requirements for certification. If the holder refuses to return the certificate, the agency may petition SOAH for a hearing. After hearing, the board may cancel the mistakenly issued certificate or validate it, thereby allowing the holder to continue enjoying the privileges of an educator under it. Through the decision making process in such cases, the board may establish criteria for canceling or invalidating an erroneously issued certificate and may fashion a remedy in appropriate cases under new §249.15(b), relating to certificate conditions and restrictions, that will serve the ends of justice as well as the education profession and students.

The rule arises from the possibility that the agency may occasionally issue a certificate by mistake without the holder having actually met the standards for certification. Agency staff may have misinterpreted certification rules in erroneously issuing the certificate, or the holder may have deceived the agency during the application process. In anticipation of such eventualities, the board prudently determined that procedures should be established that, on the one hand, treat fairly an individual who accepts and relies upon the issuance in good faith but that, on the other hand, uphold professional standards and protect students' welfare.

The State Board of Education (SBOE) and the Commissioner of Education had developed a similar rule for the Texas Education Agency (TEA) division responsible for teacher certification, 19 Tex. Admin. Code §137.586, which the board and the SBEC staff considered. The TEA rule, however, neither addressed the situation in which the holder refuses to return the erroneous certificate nor provided for a hearing or a final decision after hearing by the TEA's governing body or executive head. The SBEC staff and board also considered recent experience in dealing with a mistakenly issued certificate that came to light years after its issuance. The new rule, then, fills the gaps in §137.586 and incorporates flexible oversight in addressing issues that come out of such situations. In crafting the new rule, the SBEC balanced fairness to the individual mistakenly issued the certificate with the SBEC's duty under §21.031(b), Education Code, to "ensure that all candidates for certification . . . demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state."

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.14. Complaint, Required Reporting, and Investigation; Agency's Filing of Petition.

New §249.14(a) states the authority of the SBEC staff to investigate alleged misconduct under Chapter 249. In accordance with new §249.14(b) and (c), the SBEC enforcement staff may initiate investigations based on written complaints received from individuals or on other information, such as a criminal history provided by the DPS or a newspaper account of educator misconduct. In general disciplinary matters, the SBEC staff would need to verify allegations of misconduct before proceeding to hearing before SOAH.

New §249.14(d) imposes reporting requirements on superintendents of school districts and directors of charter schools, private schools, education service centers, and shared services arrangements. Pursuant to §22.083(c), Education Code, new §249.14(d)(1) requires these local education officials to report the known criminal histories of educators and certificate applicants to the agency. Carried over in substantially the same form as a rule originally adopted by the State Board of Education, new §249.14(d)(2) requires the officials to report certified employees whose terminations or resignations resulted from certain types of egregious misconduct, such as sexual or physical abuse of a child. School officials may report any type of educator misconduct; the new rule does not limit voluntary reporting of improper acts to those enumerated. But the SBEC, as the State Board of Education previously did, has determined that school officials should be held accountable for notifying certification authorities when misconduct that imperils safe and efficient school operations has led to a separation of employment and the likelihood that the offending educator will seek a position with another school district. The state has a legitimate interest in preventing offenders under the guise of educators from moving campus to campus in search of further criminal opportunities. The rule provides a reasonable means of achieving that end by alerting the SBEC to initiate an investigation and to sanction the educator's certificate if necessary.

New §249.14(f) tracks §§21.105(c), 21.160(c), and 21.210(c), Education Code, which authorize the SBEC to sanction educators who resign under contract without good cause. To ensure valid and timely referrals of such contract abandonment cases to the SBEC for disciplinary action, the new rule requires the school district (1) to have found the educator resigned without good cause; and (2) to report the matter to the agency within 30 days after the educator resigned. Because the new rule requires the board of trustees to determine "no good cause," the district could report the abandonment to meet the 30-day deadline before the local board makes its required finding.

For reasons of student and school personnel safety and welfare, new §249.14(g) allows the agency to prudently exercise the state's police powers by prioritizing cases to address the most serious allegations first. New §249.14(h) establishes the SBEC's sole authority to seek sanctions under new Chapter 249 and to refer disciplinary cases to SOAH for hearing. The SBEC's staff attorneys will represent the complainant on behalf of the agency, the State of Texas, and the education profession as a whole in any contested case hearing before SOAH. The state grants the privilege of certification and so should be solely responsible for taking it away. It is a traditional role of state agencies, not private parties, to exercise the state's police powers in regulating the standards of conduct of holders of state-granted licensees, including holders of educator certificates. Delegating enforcement authority to private entities or individuals differs from permissible outsourcing of investigative and litigation functions. In contracting for the performance of certain enforcement functions, the state would retain control over the contractor as its agent and hold the contractor accountable for performance and ensuring due process to the parties.

Further, it is the prerogative of the SBEC-not of an aggrieved individual-to request a proceeding to be docketed with SOAH. See , §2003.021(b), Government Code, which states that SOAH shall conduct a hearing in a contested case before a state agency. It is the public policy of the state through the APA to provide minimum standards of uniform practice for state agencies , not for aggrieved individuals acting independently of the agencies. Section 2001.001, Government Code. Thus, the APA anticipates that access to the hearing process will be through the state agency and not at the unilateral initiative of an aggrieved individual, such as the complainant in a code of ethics case. Accordingly, it is the responsibility of the SBEC to request the setting of a hearing, as contemplated by the §§2001.001 and 2003.021(b), Government Code.

In accordance with the APA (§2001.054, Government Code), the SBEC enforcement staff will provide affected individuals notice of the allegations against them and offer them an opportunity to show compliance with law.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; and §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; §§21.105(c), 21.160(c), and 21.210(c), which authorize the SBEC to sanction educator who resign under contract without good cause; and Chapter 22, Subchapter C, which authorizes the SBEC to obtain criminal history information about certificate applicants and holders and requires certain school officials to report known criminal history information about certificate applicants and holders to the SBEC; and

(3) Government Code, §411.090, which allows the SBEC to obtain from the Department of Public Safety any criminal history record information maintained by the department about a person who has applied to the board for a certificate; §2001.001, which declares the state's public policy is to provide minimum standards of uniform practice for state agencies; §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2003.021(b), which gives the SBEC the prerogative and the responsibility to request a proceeding to be docketed with SOAH; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.15. Disciplinary Action by Board.

The purpose of new §249.15 is to describe generally the forms of and grounds for disciplinary action available to the board under the new chapter.

New §249.15(a) lists sanctions available to the board in disciplining educators and others under the new chapter. The sanctions are similar to the ones that have been available to the Commissioner of Education, with a few exceptions. New §249.15(b) adds a new form of sanction, restriction, which may be placed on a certificate at issuance or renewal in lieu of outright denial or after hearing in lieu of other disciplinary action. By way of example, the board could restrict an educator from handling school monies after finding the individual mishandled finances entrusted to his or her care, like those from a fundraising activity, though the evidence did not show unlawful appropriation or misuse of the funds. After taking classes in fiscal management or related courses and receiving a recommendation from the employer, the educator might apply under new §249.45 to have the restriction lifted.

Another change to the commissioner's sanctions removes the one-year limit on suspensions. This change actually provides a less harsh option for some educators facing discipline because, without the longer available period, the board might have felt compelled to revoke the certificate rather than suspend it. Moreover, the sanctioned individual could apply under new §249.45 to have, say, a three-year suspension abated to two years after an appropriate length of time has expired, as determined by the board. In addition to the traditional forms of certificate sanctions-reprimand, suspension, and revocation-new §249.15(b) provides the SBEC flexibility in fashioning a remedy to help impaired educators regain the ability to perform their educational duties, while protecting the welfare of those on the school campus.

New §249.15(c) specifies the grounds for sanction, such as unworthiness to instruct or violation of a law or a provision of the educator's code of ethics. Paragraph (4) of new §249.15(c) provides sanctions for an educator's failure to report child abuse, as required by §261.101(b), Family Code, and new SBEC rule §249.14(d)(2)(A). Section 261.109 makes an educator's failure to report child abuse a Class B misdemeanor, so it is appropriate that the board should also be able to take action against the certificate of an educator who endangers the safety of schoolchildren through such dereliction of duty. Representatives of the professional organizations also informed the SBEC staff that some educators had intimidated other educators into not reporting suspected child abuse or not providing information to Child Protective Services during an investigation of abuse in the public schools. For that reason, the board added language making educators subject to disciplinary action if they hinder the reporting of child abuse to proper authorities.

Under new §§249.15(c)(4) and 249.14(e), a superintendent or other designated school official may be sanctioned for failing to report the known criminal history of an educator or a certificate applicant, as required by §22.083, Education Code, and new §249.14(d)(1). As previously noted with respect to new §249.14(e), the board may discipline a certified school official named in the rule for failing to timely report any of the matters set out in new §249.14(d)(2) or (3). The rationale for the reporting rule is to protect students by encouraging school officials to report educators who pose the greatest threat of harm and whom they have separated from employment because of serious misconduct. The board can then take appropriate action against the offenders' certificates and help prevent such individuals from assuming new positions with unwitting school districts.

New §249.15(d)(5) states the power of the board to sanction an educator for abandoning a contract, while new §249.15(d)(6) authorizes the board to discipline an educator who refuses to cooperate in an enforcement investigation arising under new Chapter 249. Non-cooperation that could warrant sanctions might include refusing to turn over requested documents in violation of the Texas Public Information/Open Records Act.

New §249.15(d) declares the power of the board to consider lawful grounds for sanctions other than those listed in new §249.15(c), such as child support arrears or student loan defaults. In these latter areas, the Congress and the Legislature have adopted strong public policy for sanctioning holders of professional and occupational licenses. With the myriad of laws that could be broken and the vicissitude of behavior to which some 300,000 certificate holders could exhibit, the new rules could not anticipate and identify every instance of improper conduct that reasonable minds would agree warrant disciplinary action. The new rule also states the SBEC's authority under §§2001.201 and 2001.202 to request the aid of the Texas Attorney General in enforcing the board's decisions by, say, seizing the sanctioned certificate or enjoining the employment of a sanctioned individual.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(2) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; §22.083, which requires superintendents of public schools and other designated school officials to notify the SBEC of the known, reported criminal history of an educator or certificate applicant; §21.105, which authorizes the board to sanction an educator who abandons a probationary contract; §21.160, which authorizes the board to sanction an educator who abandons a continuing contract; §21.210, which authorizes the board to sanction an educator who abandons a term contract);and §§57.49 and 57.491, which requires the agency to not renew the certificate of an educator who defaults on a guaranteed student loan;

(3) Family Code, Chapter 232, which requires the agency to suspend the certificate of an educator who is in arrears on court-ordered child support; and Chapter 260, Subchapter B, which requires educators to report child abuse; and

(4) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §§2001.201 and 2001.202, which authorize the Texas Attorney General to enforce the board's final decisions and orders.

§249.16. Eligibility of Persons with Criminal Convictions for a Certificate under Articles 6252-13c and 6252-13d, Revised Civil Statutes.

Implementing Articles 6252-13c and 6252-13d of the Revised Civil Statutes, new §249.16 establishes guidelines for determining what crimes are related to the education profession for purposes of denying or sanctioning a certificate. With a few minor changes, the rule is effectively a transfer of provisions from current 19 Tex. Admin. Code §230.414(a) through (d), which the board has repealed through a separate amendment. The changes that new §249.16 make to former §230.414 include the following:

The statutory citation to the Texas Controlled Substances Act is updated (new §249.16(b)(3); repealed §230.414(b)(4)).

The section of this new chapter is adopted under the authority of the following statutes:

(1) Revised Civil Statutes Articles 6252-13c and 6252-13d, which require the SBEC to determine whether a criminal conviction directly relates to the education profession and to issue guidelines that state the reasons educator certificates and other criteria that affect the decisions of the board;

(2) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Education Code Chapter 21, Subchapter B, §21.031, which requires the board to regulate and to oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; §21.041(b)(1), which requires the board to propose rules that provide for the regulation and general administration of Subchapter B, Chapter 21, Education Code; §21.041(b)(4), which requires the board to propose rules that specify the requirements for the issuance and renewal of an educator certificate; §21.041(b)(7), which requires the board to propose rules that provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code; §21.041(b)(8), which requires the board to propose rules that provide for the enforcement of an educator's code of ethics; §21.042, under which the State Board of Education reviewed the rule as proposed and did not reject it; and §21.044, which authorizes the board to propose rules establishing requirements for educator preparation; and

(4) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.17. Decision Making Guidelines.

The purpose of new §249.17 is to offer guidance to ALJs and board members in considering disposition of disciplinary cases under new Chapter 249.

These guidelines allow the ALJ and the SBEC to consider issues like severity and nature of the harm committed as well as the likelihood of it recurring; motive and premeditation; attempted concealment; prior disciplinary and criminal record; completion of a criminal sentence; and lack of remorse or initiative to correct the behavior.

The SBEC and agency staff analyzed factors regarding the relative expertise of SOAH ALJs and determined that the office's judges did not have a broad base of experience in dealing with educators. The Commissioner of Education, who formerly had jurisdiction over such cases before the creation of the SBEC, did not use SOAH to conduct hearings, instead employing in-house administrative law judges. Consequently, the SBEC determined that setting out guidelines for SOAH's ALJs to use in drafting proposals for decision would be helpful to the ALJs and would facilitate consistency in the disposition of cases. The SBEC is confident that over time SOAH's ALJs will acquire satisfactory knowledge and expertise in handling educator discipline cases.

The SBEC found the flexible nature of the guidelines to be more appropriate than a rigid approach like the federal sentencing guidelines or the penalty matrices used by the Texas Department of Agriculture for assessing sanctions against producers. Especially in the beginning stages of implementing the agency's new functions under Chapter 249, the board believes the ends of justice will be better served if ALJs and members can weigh mitigating as well as aggravating evidence under the guidance of new §249.17 without being strictly bound by preformulated results. Pursuant to §2001.058 (e)(1), the SBEC reserves discretion under the new rule to be the final arbiter of the proper application and interpretation of the decision making guidelines.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; and §2001.058(e)(1), which authorizes the SBEC to determine whether an ALJ properly applied or interpreted applicable agency rules and written policies provided under §2001.058(c).

Subchapter C. Prehearing Matters.

§249.18. Jurisdiction.

The purposes of the rule are to establish when a matter becomes a contested case under Chapter 249 and to adopt by reference SOAH's rule related to the office's acquiring jurisdiction over a case. When the SBEC's hearings coordinator receives a timely request for hearing, the coordinator will file a Request to Docket Case form with SOAH, which acquires jurisdiction over the case upon receipt of the form.

The determination of when a matter becomes a contested case is important because that is the point at which a party becomes entitled to an adjudicative hearing before SOAH and then to a final decision in the matter by the board. In formulating the rule, the SBEC and agency staff considered jurisdictional provisions in the APA and SOAH's rules of procedure. The staff also analyzed the need to centralize filings of requests for hearings within the agency to facilitate convenience for the parties, consistency and timeliness in processing referrals to SOAH, and tracking of cases. For these reasons, the board found the rule to be appropriate.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.19. Powers and Duties of ALJ.

The purpose of the rule is to establish the powers and duties of an administrative law judge (ALJ) in a contested case under Chapter 249. The rule adopts by reference SOAH's rules governing the powers and duties of an ALJ, the primary SOAH rule being §155.15. To ensure just and efficient hearings under Chapter 249, parties, their lawyers, and persons conducting the hearing must have a clear understanding of the extent of a judge's authority and responsibilities.

In formulating the rule, the SBEC and agency staff considered the powers and duties of SOAH's ALJs as set out in the APA and the office's rules, particularly SOAH rule §155.15. In addition to the routine powers of judges, SOAH rule §155.15 contained appropriate provisions for sanctioning parties or their lawyers who abused the process or disrupted the proceedings. The SBEC also analyzed the possibility of hiring an employee whose primary function would be to conduct adjudicative hearings under Chapter 249 rather than contracting with SOAH. However, the board decided in favor of SOAH because the office afforded parties an objective, neutral tribunal and enhanced the public perception of impartiality and fairness in the conduct of hearings.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; Chapter 2001, Subchapters C-F, which sets out various powers and duties of persons conducting hearings under the APA; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.20. Recusal and Disqualification of ALJs.

The purpose of the rule is to establish the grounds for the removal of an ALJ from a contested case under Chapter 249. The rule adopts by reference SOAH's rules governing removal of an ALJ, the primary SOAH rule being §155.17(b). In turn, §155.17(b) provides for recusal or disqualification of an ALJ on the same grounds and under the same circumstances as specified in Rule 18b (or its successor) of the Texas Rules of Civil Procedure.

An ALJ will occasionally face the issue of recusal or disqualification for a variety of reasons, including conflict of interest or ex parte communication. A rule specifying the grounds and circumstances warranting the removal of a judge is needed to ensure fairness in the proceedings while keeping parties from forum shopping through frivolous motions to recuse or disqualify.

In formulating the rule, the SBEC and agency staff considered the provisions of Texas Rule of Civil Procedure 18b, which ultimately will govern recusal or disqualification of an ALJ, and found the grounds and circumstances justifying removal to be appropriate. Rule 18b covers the situations in which an actual or perceived conflict of interest would compromise the integrity of a contested case hearing under new Chapter 249, including prior participation in a pending matter, personal bias or prejudice involving the matter or the parties, financial interest in the outcome, or relation by affinity or consanguinity to a party or to person who has a conflict of interest in the matter or a stake in its outcome. In particular, Rule 18b(2)(d) addresses the situation in which an ALJ formerly acting as an attorney in government service expressed an opinion on the merits of a pending disciplinary case to be decided by the SBEC.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.21. Substitution of ALJs.

The purpose of the rule is to establish the grounds for the substitution of an ALJ in a contested case under Chapter 249. The rule adopts by reference SOAH's rules governing substitution of an ALJ, the primary SOAH rule being §155.17(c).

Both the SBEC and SOAH acknowledge that circumstances might arise in which a judge could no longer continue to preside over a hearing or issue a proposal for decision after the close of a hearing. Such circumstances may involve the ALJ's temporary incapacity, separation from employment, or family emergency. A rule is needed to ensure an orderly transition and to avoid unnecessary delay or repetition of the proceedings.

In formulating the rule, the SBEC and agency staff considered the possibility that an ALJ may not be able to complete an assignment under Chapter 249 and the discretion of SOAH's chief judge to make an orderly substitution under §155.17(c) of the office's rules. In light of both considerations, the board found SOAH's rule allowing the substitute judge to use the existing record and not repeat prior proceedings to be appropriate.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.22. Classification of Parties; Current Addresses.

The purposes of the rule are to ensure parties are properly classified, to clarify that a petitioner is the party seeking relief under Chapter 249 and thus has the burden of proof, and to require parties to keep agency staff apprised of their current address. The presiding ALJ will treat parties according to their true status in the proceeding and thereby place the burden of proof on the actual petitioner, the party seeking a decision from the board to change the status quo. For example, agency staff asking the board to sanction a certificate would be the petitioner at hearing and have the burden of proof by a preponderance of the evidence. But an applicant whose certificate has been administratively denied at the staff level becomes the petitioner by requesting a hearing and asking the board to issue the certificate.

Parties will update their current addresses by notifying the agency's hearings coordinator or the staff investigator or attorney assigned to their case.

Pleadings and other papers filed under Chapter 249 should not be the sole determinants of party status. Rather, an objective standard is needed to allow the ALJ to accord true party status and to place the burden of proof on the proper party. The requirement that parties keep the agency apprised of their current address is needed so pleadings, discovery, and notices can be timely served on them. Further, the new default rule at §249.35 will work only if the board requires parties to maintain current address information with the agency.

In formulating the rule, the SBEC and agency staff considered the experiences of Texas Education Agency (TEA) hearing officers and staff attorneys that gave rise to a similar rule governing party status in disciplinary hearings conducted under the Commissioner of Education. As to maintaining current address information with the agency, the SBEC and agency staff took into account the necessity of being able to serve an individual party with important filings in a case, such as the notice of hearing and discovery. And under SOAH's construction of its own rule §155.55 relating to failure to attend hearing and default, an ALJ will not enter a default judgment unless the board has a rule requiring parties to maintain current address information with the SBEC. For these reasons, the board found the rule to be appropriate.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.051, which requires the SBEC to provide reasonable notice of hearing to every party; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.23. Representation of Parties.

The purposes of the rule are to establish who may act as the representative of a party and to ensure other parties and SOAH are notified of the representation. Under the new rule, representatives could provide notice of their representation by letter or by identifying themselves as such in papers they file in the case and serve on the office and other parties. Before hearing at an informal conference with SBEC enforcement staff held under Government Code §2001.054 to give certificate holders an opportunity to show compliance with the law, such respondents may be represented by someone who is not an attorney. At hearing before SOAH, however, only attorneys may represent parties who do not represent themselves pro se .

New §249.23 will be applied in harmony with new SOAH rule §155.21 (effective January 2, 1998) relating to representation of parties before the office. SOAH's rule allows parties to represent themselves or by "authorized representative," whom SOAH rule §155.5 defines as an attorney or another person "if authorized by applicable law." But the "applicable law" here-new SBEC rule §249.23-would not allow parties to designate somebody other than themselves or an attorney to represent them at hearing.

In an informal setting like a "show compliance" conference under Government Code §2001.054, a party's representative need not be an attorney for an orderly and meaningful discussion to occur. In a formal hearing before SOAH, however, a party should be represented by an attorney if the individual chooses not to represent himself or herself pro se . Qualified representatives must notify the office and other parties of their representation so they can meaningfully serve a party.

In formulating the rule, the board and SBEC staff considered the rules of procedure for hearings before SOAH as well as those before the Commissioner of Education, who has had authority over the disciplinary proceedings the SBEC will be assuming under new Chapter 249. The commissioner's rules allow a non-lawyer to act on behalf of a party during an adjudicative proceeding conducted by one of the commissioner's hearings examiners. But the SBEC gave more weight to SOAH's experience with party representatives and preference for lawyer representatives, as indicated by the unwillingness of the office to allow non-lawyer representation in its own revised rule, because SOAH's ALJs will be conducting the SBEC's hearings, not the commissioner's hearings examiners. Further, the APA at §2001.053 affords a party to a contested case the right to assistance of counsel, not to the aid of a non-lawyer. In a formal contested case hearing with complex rules of procedure and evidence, a party representative who is not an attorney would in most instances fail to aid the pro se party beyond what the party acting alone could do for himself or herself. Moreover, a non-lawyer representative who is emotionally affiliated with the party, such as a family member or close friend, presents a risk of impeding the efficient conduct of the hearing and injecting confusion into the proceedings. No oversight body like the State Bar of Texas governs the conduct of non-lawyer representatives and checks their overzealous representation with the threat of sanctions against their means of livelihood.

With respect to the requirement that representatives identify themselves as such to the office and other parties , the board or the SBEC staff considered the necessity of parties' being able to timely and appropriately serve filings on each other and the office, as required. Also taken into consideration was Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct for lawyers, which prohibits SBEC staff attorneys from knowingly communicating directly with another party if he or she is represented by counsel. For a case under Chapter 249 to proceed timely and fairly and so the non-SBEC party will not be prejudiced through a lack of communication or an improper communication, representatives must keep SBEC staff apprised of their identity as well as how they can be reached for discussions with SBEC's attorneys and served with legal papers on behalf of their clients.

For these reasons the board found the rule to be appropriate.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2001.053, which entitles a party in a contested case to the assistance of counsel, though the party may waive the right and the SBEC is not obliged to provide counsel.

§249.24. Filing or Serving Documents on the Agency or the ALJ.

The purposes of the rule are: to establish which documents must be filed as originals with the SBEC and how they are to be filed; and to adopt by reference SOAH's rules related to filing or serving documents on the ALJ (in particular, see SOAH rule §155.23).

New §249.24 conveniently provides the address of the agency's headquarters to which individuals appealing an administrative denial or cancellation of test scores may send their appeals and requests for hearing. In addition to the original, the agency will need four copies of a filing for purposes of records management, routing, and processing. SOAH rule §155.23(1)(A), relating to filing or serving documents on the ALJ, requires the originals of all pleadings and other documents requesting action or relief in a contested case to be filed with SOAH after the SBEC refers the case to the office. After a proposal for decision has been issued, originals of documents requesting relief are to be filed with the SBEC and a copy filed with the office. SBEC's new §249.24 specifies the documents that are to be filed as originals with the SBEC before the agency refers a case to the office and after the SBEC gets it back.

Overall, the new rule provides effective notice and means for filing originals with the entity having jurisdiction over the proceedings at different stages and ensures proper processing and record keeping of filings with the SBEC and SOAH.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.25. Pleadings.

The purposes of new §249.25 are to specify which pleadings are to be filed with SOAH; to provide for amended and supplemental pleadings; and to state the authority of SOAH's procedural rules governing pleadings. The new rule mainly serves as a digest of SOAH rule §155.29, relating to requirements for pleadings filed in contested cases before the office. SOAH's rule deals mostly with the form, content, timing, and purpose of motions. The SBEC's new §249.26, relating to petitions, and §249.27, relating to answers, set the primary standards for these pleadings.

New 249.25 provides for amended and supplemental pleadings, including trial amendments. The SBEC's new rules governing petitions and answers require parties to plead specific assertions and denials. Experience at hearing has shown, however, that a case may develop differently than originally pleaded. To that end, the new rule anticipates this possibility by clarifying the ALJ's discretion to allow trial amendments that conform the live pleadings to the evidence admitted. Under SOAH rule §155.29(a), the ALJ may grant requests for relief on the record at a hearing.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.26. Petition.

The purpose of new §249.26 is to establish the requirements for a petition filed in a contested case under the new chapter and to assign the burden of proof to the party filing the petition.

New §249.26 provides that the petitioner shall have the burden of proof by a preponderance of the evidence. Within the contested-case proceedings conducted by an administrative agency, one "must normally prove a fact by a preponderance of the evidence. . . . One can never prove a fact by something less than a preponderance of the evidence." Beaver Express Serv., Inc., v. Railroad Com'n of Texas , 727 S.W.2d 768, 775 n. 3 (Tex. App.-1987, writ denied), quoting 3 Davis, ADMINISTRATIVE LAW TREATISE, 255-256 (1980).

The new rule applies both to the SBEC and to an individual filing a petition. The required elements of the petition are designed to apprise the respondent, the ALJ, and the board of the complaining party's factual allegations and legal claims. Additionally, the new rule requires the petitioner to certify appropriate service of the petition to ensure the respondent receives notice of the matters asserted against the party.

New §249.6(b)(6) requires the agency to include a special notice in a petition seeking sanctions against a certificate holder. In conspicuous type, the notice will advise the respondent educator of the consequences for failing to timely file a written answer in proper form or to appear at hearing. The board found this requirement appropriate given the likelihood that some respondents may not have retained legal counsel when they receive the agency's petition.

The new rule also adopts by reference SOAH's rules regarding pleadings, including 1 Texas Administrative Code §155.29. Both SOAH's rules and new §249.26 include provisions requiring the petition to contain phone and address information so the petitioner can be reached for conferences and served with filings in the case. The rules also force the petitioner to have tried to resolve the dispute informally by requiring the petition to include a statement about attempted settlement.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.27. Answer.

The purpose of new §249.27 is to establish the requirements for an answer to a petition filed in a contested case under the new chapter.

New §249.27 is based on the related rule governing answers filed in contested cases heard before the Commissioner of Education, 19 Texas Administrative Code §157.1052. The rule has proven to be effective in establishing the contested issues in a case and is familiar to practitioners who have represented educators in certification actions before the commissioner.

The new rule applies both to the SBEC and to an individual party filing an answer. The required elements of the answer are designed to apprise the petitioner, the ALJ, and the board of the responding party's defenses. Additionally, the new rule requires the respondent to certify appropriate service of the answer to ensure the petitioner receives notice of the denials asserted against the allegations contained in the petition.

In requiring the respondent to specifically deny each allegation contained in the petition, new §249.27 comports with the requirements for answers established by Federal Rule of Procedure 8(b). As with the federal rule, the rationale behind new §249.27 is to require the respondent to give the petitioner notice of the defenses which the petitioner shall be called upon to meet and to limit the issues for hearing. See, White v. Smith , 91 F.R.D. 607 (W.D.N.Y.1981); Gulf Oil Corp. v. Bill's Farm Center, Inc. , 52 F.R.D. 114 (W.D.Mo.1970); Budd Co. v . U.S., 19 F.R.D. 346 (E.D.Pa.1956); Winslow v. National Elec. Products Corp. , 5 F.R.D. 126 (W.D.Pa.1946).

The new rule also adopts by reference SOAH's rules regarding pleadings, including 1 Texas Administrative Code §155.29. Both SOAH's rules and new §249.27 include provisions requiring the petition to contain phone and address information so the respondent can be reached for conferences and served with filings and notices in the case.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.28. Stipulations.

The purpose of new §249.28 is to adopt by reference SOAH's rules of procedure governing stipulations, in particular 1 Texas Administrative Code §155.39. SOAH's rule §155.39 allows the parties to file written stipulations with the ALJ or to enter them on the record at hearing. The parties may stipulate to factual matters without the ALJ's approval, but they must obtain the ALJ's approval of stipulations on procedural matters. The rule is based on the premise that parties' stipulations on uncontested issues will streamline the hearing process.

In addition to SOAH's rule itself, the board or the SBEC's staff considered the adoption preamble of §155.39, as published at 22 Tex. Reg. 10205. SOAH agreed with one commenter's suggestion that the ALJ's approval was not needed for factual issues and, for adoption, accordingly changed the rule as originially proposed. If parties are willing to resolve contested factual issues between them, the ALJ is in no better position than they are to decide their validity and should not spend valuable hearing time further developing the evidence in second-guessing the parties.

However, the ALJ should retain discretion to approve stipulations on procedural matters, which may affect prior orders the ALJ has issued to efficiently conclude the hearing at hand or the ALJ's scheduling of other hearings. Requiring stipulations to be in filed in writing or entered on the record is an appropriate measure to avoid later misunderstandings as to the parties' agreements and to provide grounds for enforcement of the agreements by the parties and the ALJ. Overall, the new rule adopting SOAH's procedure governing stipulations promotes administrative efficiency by allowing the parties to resolve factual issues between them and provides appropriate oversight of procedural stipulations by the presiding judge.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.056, which allows informal disposition of a contested case under new Chapter 249 by stipulation; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.29. Discovery.

The purposes of the rule are to adopt by reference provisions of the APA and SOAH's rules related to discovery in administrative cases and to supplement them with the Texas Rules of Civil Procedure.

SOAH's rules, which Chapter 249 adopts by reference, allow parties to begin discovery immediately after SOAH receives a request to docket a case from the SBEC's hearings coordinator. The APA and SOAH's rules will govern discovery in cases referred to the office for hearing. When the APA and SOAH's rules cannot resolve an issue related to discovery, the Texas Rules of Civil Procedure will apply.

The APA and SOAH's rules establish the framework for the discovery process as well as the basic parameters for the various forms of discovery, but discovery issues probably will arise requiring further guidance, which the Texas Rules of Civil Procedure can provide.

In formulating the rule, the SBEC's staff considered the preamble to SOAH's adoption of its discovery rule, 1 Texas Administrative Code §155.31, as published at 22 Tex. Reg. 10205. In its comments, SOAH conceded the occasional need for additional guidance in resolving discovery issues. The SBEC's staff also considered the fact that the Texas Rules of Civil Procedure provide further guidance regarding how and where discovery is to be produced as well as more detailed procedures for production of documents, entry on land, and depositions than does the APA or SOAH's rules. For these reasons, the board found the rule to be appropriate.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

Subchapter D. Hearing Procedures.

§249.30. Notice of Contested Case Hearing.

The purpose of new §249.30 is to provide reasonable measures for notifying a private party in a contested case under new Chapter 249 of the scheduling of a hearing before SOAH.

The new rule will work in conjunction with the notice requirements in the APA (Government Code, §§2001.051 and 2001.052), which require the SBEC to provide reasonable notice of a hearing in a contested case at least 10 days before the hearing, and the procedural rules of SOAH (1 Texas Administrative Code §§155.25 and 155.27), which require the SBEC to serve the notice of hearing in accordance with the APA and to cite Chapter 155 of SOAH's rules in the notice. The SBEC staff will send the private party notice of hearing by U.S. mail, which, under 1 Texas Administrative Code §155.25(d)(3), the ALJ will presume was received at most five calendar days after the agency mailed it. The notice will contain the elements prescribed by §2001.052 of the APA, including the date, time, and place of the hearing; the legal authority and jurisdiction to hold the hearing; the laws applicable to the case; and a brief explanation of the matters in issue. Although the SBEC staff may request a hearing date or range of dates, the ALJ in the case will schedule the hearing.

New §249.30 is premised on the entitlement of each party to a contested case to a reasonable notice of hearing and an opportunity to present evidence and argument on each issue in the case.

Data or information considered in formulating rule: In developing the rule, the board or the SBEC staff considered the APA, SOAH's procedural rules, and applicable case law. During the proposal stage of SOAH's new procedural rules at 1 Texas Administrative Code Chapter 155 and contract negotiations with the office, the SBEC staff asked SOAH to be responsible for sending the notice of hearing because the ALJ would be scheduling it and so would have the most immediate knowledge of the time, date, and location. However, the office rejected the suggestion, taking the position that the time, date, and location could be efficiently conveyed to the SBEC and that the agency would be in the best position to describe the other items in the notice as required by§2001.052 of the APA requires. SOAH did not believe it was the responsibility of the ALJs to determine and to state in the notice of hearing a referring agency's position in a case or the particular laws upon which the agency was relying in, say, revoking or denying certification. For these reasons, the SBEC agreed that the agency should send out the notice of hearing.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §§2001.051 and 2001.052, which require the SBEC to provide reasonable notice of a hearing in a contested case; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.31. Venue.

The purpose of new §249.31 is to establish Austin as the site for all contested case hearings held under Chapter 249. At its facilities in Austin, SOAH will conduct the adjudicative hearing for every contested disciplinary case, including code of ethics enforcement cases, brought under the new chapter. SOAH currently hears cases in rooms reserved for the office's exclusive use in the Stephen F. Austin State Office Building at Seventeenth Street and North Congress Avenue in the Capitol Complex.

The rule is based on the premise that holding hearings in a single, central location is more administratively efficient than holding them at sites around the state.

In formulating the rule, the board and the SBEC's staff considered the following: agency resources, including the availability of investigative and legal staff to participate in hearings; SOAH's resources, including the availability of ALJs; and the impact on private parties, their attorneys, and witnesses to attend a hearing.

Unlike SOAH, the SBEC does not have field offices. Requiring the Austin-based legal staff to travel to the hometowns of individual parties or even to regional sites like educational service centers or SOAH field offices would reduce the number of hearings in which they could participate per month by one-third to one-half. Further, the Legislature has imposed travel restrictions on both the SBEC and SOAH.

SOAH has regional and local field offices around the state, but the ALJs at these locations are fully occupied conducting administrative driver's license revocation (ALR) hearings related to DWI arrests. Since 1993, the Legislature has greatly expanded SOAH's jurisdiction to conduct hearings for over 60 state agencies, including agencies such as the Public Utility Commission, the Texas Natural Resource Conservation Commission, the Texas Department of Transportation, the Texas Department of Insurance, the Department of Public Safety, and the Texas Department of Agriculture. Consequently, these additional responsibilities have significantly increased the demands on SOAH's ALJs to the point that making them travel to remote locations for SBEC proceedings would also reduce the number of educator disciplinary hearings that could be held each month.

Most private parties, on the other hand, will attend a single one or two-day hearing in Austin during their lifetimes. A large number of the school and administrative law attorneys who would represent individual parties reside and practice in the Austin area, especially those retained by the professional teacher organizations to represent their members. When the Commissioner of Education had authority over educator discipline hearings, they were all conducted in Austin, so this central venue is accepted by the profession. Additionally, witnesses subpoenaed for hearing will not by unduly burdened economically because they are paid expenses for travel, meals, and lodging as well as a per diem under the APA (Government Code, §2001.103).

Finally, SOAH's rule §155.153 states a preference for conducting hearings in Austin, with a special showing required for transfer to another location unless agreed to by all parties.

For these reasons, the SBEC found the new rule to be appropriate for establishing venue for hearings in contested disciplinary cases under Chapter 249, including code of ethics enforcement cases.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.32. Conduct and Record of Hearings.

The purpose of new §249.32 is to adopt by reference SOAH's rules of procedure for the actual conduct of the hearing and the making of a record of the hearing, in particular 1 Texas Administrative Code §155.41, relating to procedure at hearing, and 155.43, relating to making a record of contested cases.

Under SOAH's rule §155.41, the ALJ will exercise broad powers to control the hearing, including the mode and order of preliminary presentations, pending motions, opening statements, witness testimony and other evidence, and oral or written closing argument. The ALJ will not be able to shift the burden of proof upon a party in contravention of new Chapter 249. However, SOAH's rule §155.41(b) appropriately allows the ALJ the flexibility to change the usual order of presentation to create a clearer record. In certain types of cases, requiring the party with the burden of proof to proceed first would be impractical because information needed for presentation of the party's case is in the hands of the other party. For instance, the ALJ may find having the SBEC go first in a certification exam case would be more practical because the agency holds the evidence of test irregularity, even though the agency is the respondent and the examinee is the petitioner with the burden of proof in the case.

SOAH's rule §155.43 addresses making a record of contested case proceedings. The rule enables the parties and the ALJ to have certainty before the proceeding regarding the means that will be used to make the official record. Section 155.43 will allow the SBEC to continue to use a court reporter to make the official record at hearing, in accordance with the APA's requirement that the agency prepare the record for appeal, if any (§2001.175, Government Code). Appropriately, SOAH's rule does not require a record to be made for all prehearing conferences but allows the ALJ to discuss simple issues with parties, such as a joint request for continuance, in an expedited, economical way. The ALJ's order must reflect any action taken, so a record would not be needed. Further, §155.43 allows the SBEC to retain sole authority to assess the costs of a transcript, pursuant to §§2001.059 and 2001.177 of the APA.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

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

The purpose of the new rule is to provide a procedure for the use of deposition transcripts at hearing. The rule adopts by reference Texas Rule of Civil Procedure 207, which has been revised and renumbered as new Rule 203.6. As a result, the current successor to Rule 207 will apply to the use of depositions at hearing.

The APA does not provide detailed procedures for use of depositions at hearing, except to provide that they may be used regardless of whether the deponent was cross-examined (Government Code, §2001.102). SOAH's rules do not address use of depositions at hearing, other than to say that the ALJ may require the prefiling of written witness testimony, a rule is needed to fill the gap. Under SOAH rule §155.3(e), an ALJ may rely on the Texas Rules of Civil Procedure when the APA and the SOAH rules cannot resolve an issue.

The SBEC found that Texas Rule of Civil Procedure 207 provides an appropriate method for using deposition transcripts at hearing. The rule contains reasonable provisions for verification of the deposition transcript, permits sufficient development of factual issues by allowing the deposition of a witness who cannot appear in person to be used at hearing, and makes the hearing process more efficient by reducing repetitious testimony and the costs associated with live witness testimony. The successor Rule 203.6 of the Texas Rules of Civil Procedure does not significantly change Rule 207; in fact, the revisions in new Rule 203.6 make it more compatible with administrative hearings because it substitutes the more general term "proceeding" for "court proceeding" and "trial."

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2001.102, which entitles a party to use a deposition in a contested case hearing before SOAH under new Chapter 249.

§249.34. Consolidated Proceedings.

The purpose of new §249.34 is to provide a mechanism for two or more disciplinary cases to be combined into a single proceeding, if appropriate. A party may file a motion with the ALJ asking that separate cases be heard jointly if they involve common questions of law and fact, and if keeping them separate would be unnecessarily expensive, dilatory, or substantially unjust. A situation in which consolidation might be warranted would be one in which SBEC enforcement staff are seeking sanctions against two educators who participated in the same act. Another example would be a code of ethics case instigated by one educator against another one, and the respondent educator files a code of ethics complaint against the petitioner based on the same incident or series of events.

In formulating new §249.34, the SBEC staff based the rule on Texas Rule of Civil Procedure 174 and Federal Rule of Civil Procedure 42. In United States District Court for the Western District of Texas, the earlier pending case is preferred as the one into which the cases will be consolidated. U.S. DIST. CT.-W.D. L.C.R. §5, IOP-42. The reason for preferring the earlier case is that it is the oldest of the matters and contains the majority of pleadings. Id . Once consolidated all pleadings will be styled with the parties and case number of the lead case. Id .

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.35. Disposition Prior to Hearing; Default.

The purpose of new §249.35 is to establish appropriate provisions for disposing of cases prior to hearing and entering default judgments. In addition, the new rule adopts by reference SOAH's procedural rules governing disposition prior to hearing, default, and attendant relief, including those provisions found at 1 Texas Administrative Code §§155.37 (relating to mediated settlement conferences), 155.55 (relating to failure to attend hearing and default), and 155.57 (relating to summary disposition).

The executive director may sign settlement agreements, but only the board could summarily dismiss a case without a hearing on the merits or enter a default judgment. When the parties and the executive director agree to a settlement, the disposition does not need to be delayed and board does not need to be burdened. But when a party sustains dismissal for procedural reasons or through default, the board should be involved as the governing body responsible for ensuring due process and fair play.

The rule anticipates a default in two instances: (1) failure to file a timely answer in proper form; or (2) failure to appear at hearing following proper notice. If the respondent fails to answer but appears at hearing, the agency will be entitled to an automatic continuance. This provision in new §249.35(e)(2) is based on the experience and default rule of the Texas Department of Insurance, which also uses SOAH to conduct its contested case hearings. The justification is that the agency would be unfairly surprised at not having had prior notice of the defenses it was supposed to meet. Further, in the interests of economy and not unduly burdening witnesses, the SBEC enforcement staff would not have subpoenaed witnesses to appear at a hearing for a case in which the respondent had not answered and had thereby indicated an unwillingness to appear. The automatic continuance would then give the SBEC staff an opportunity to be apprised of the respondent's denials and to arrange for witnesses, if the ALJ does not enter default on the basis of failure to answer.

To comply with the APA's notice requirements (§§2001.051 and 2001.052, Government Code) and SOAH's rule predicating default on proper notice (§155.55), new Chapter 249 requires the parties to maintain current addresses with agency in §§249.22(c) (relating to current addresses of parties), 249.26(b)(5) (relating to current address of petitioner), 249.27(c) (relating to current address of respondent), 249.30(b) (relating to notice of hearing and current addresses of parties), and 249.49(a)(1) (relating to current address of code of ethics complainant).

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

Subchapter E. Posthearing Matters.

§249.36. Proposal for Decision.

The purposes of new §249.36 are to establish what the ALJ's proposal for decision will contain and to provide efficient procedures for the submission of the proposal and the disposition of matters arising thereafter.

The ALJ will not decide the outcome of a case but will make a recommendation in the form of a proposal for decision (PFD). The APA (§2001.058(b) and (c), Government Code) require the ALJ to consider the SBEC's applicable written rules and policies provided by the agency, including the decision making guidelines in new §249.17, the factors for modifying sanctions in new §249.45, and the grounds for dismissal of code of ethics complaints in new §249.50.

The ALJ will also prepare a proposed order based on the PFD. The board will make the final decision in a case, using the proposed order the ALJ provided or drafting a new one to reflect any changes to the PFD. In accordance with the APA (§2001.141, Government Code), the PFD must be in writing and contain findings of fact and conclusions of law. In addition to stating reasons for the decision and each finding of fact and conclusion of law, the PFD may include a procedural and factual history of the case, an analysis of the evidence, and a summary of the proposed decision.

The ALJ will send the original of the PFD to the board through the SBEC's executive director or general counsel, who will have copies distributed to SBEC members. The ALJ will also serve copies of the PFD on the SBEC's staff attorney assigned to the case and to the individual party who challenged the agency's action. The parties may file exceptions to the PFD and replies to exceptions to the PFD (see new §249.37). The ALJ may amend the PFD in response to exceptions and replies. To efficiently handle the submission, distribution, and consideration of the PFD, the new rule authorizes the SBEC's general counsel to establish appropriate procedures.

New §249.36 is based on the premise that the board should be the final decision maker in disciplinary proceedings arising under new Chapter 249. On the one hand, the SBEC's enabling act at §21.031(a), Education Code, gives the board the power to regulate and oversee all aspects of the standards of conduct of certified educators, which includes the imposition of appropriate sanctions. On the other hand, the enabling act at §21.041(b)(7), Education Code, directs the board to conduct disciplinary proceedings in accordance with the APA.

As a new state agency, the SBEC has the responsibility to establish disciplinary policy for educators and others under the board's jurisdiction. The SBEC members were appointed for just such a task because of their experience and interest in the education profession. (The board is composed of teachers, school administrators, a school counselor, a college of education dean, representatives of the commissioners of education and higher education, and citizens who have served on local school boards or otherwise been intimately involved with public education and educators.)

Completely delegating the SBEC's statutory responsibility to SOAH by making the ALJ the final decision maker under §2001.058(f) of the APA would not be appropriate. The Governor did not appoint and the Texas Senate did not confirm SOAH's ALJs to serve as policy makers for the education profession, and SOAH did not hire their ALJs because of their expertise in the education field. By the same token, the SBEC's members do not have professional expertise in conducting hearings under the APA. SOAH's ALJs are trained to conduct APA hearings for a variety of agencies. Accordingly, having a qualified ALJ serve as the trier of fact and provide a recommended decision for the board to consider is a suitable arrangement that draws on the strengths of both the SBEC and SOAH while reserving to each their appropriate roles.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; §2001.141, which requires the ALJ's proposal for decision to contain written findings of fact and conclusions of law; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.37. Exceptions and Replies.

The purpose of new §249.37 is to establish efficient procedures with reasonable deadlines for the filing of exceptions to the ALJ's proposal for decision (PFD) and replies to the exceptions.

The party aggrieved by the ALJ's recommended disposition will have 30 calendar days after the issuance of the PFD in which to file exceptions to it. Replies to any exceptions will be due 50 calendar days after the PFD was issued, leaving the replying party with at least 20 days in which to file. Carried over from current 19 Texas Administrative Code §157.1058, relating to the filing of exceptions and replies in hearings before the Commissioner of Education, these familiar timelines were recommended by school-law practitioners, and the board found them reasonable. Exceptions and replies will be filed with the SBEC's general counsel, who will distribute them to board members.

The new rule establishes appropriate requirements for form, content, and citations to the record so the parties, the ALJ, and the board will understand clearly what the exceptions are challenging and what the replies are countering. The ALJ may amend the PFD in response to exceptions and replies, though the ALJ may do so through a letter to the board and the parties without reissuing a revised PFD.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.062, which provides opportunity for exceptions and replies and allows the SBEC to establish deadlines for the filing of exceptions and replies; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.38. Review and Presentation of Proposal to Board.

The purpose of new §249.38 is to establish conditions for the board's consideration of the administrative law judge's (ALJ's) proposal for decision (PFD) in a contested case brought under new Chapter 249.

The new rule requires the board to review the record of the hearing held before SOAH before making the final decision in a case. Although the APA (§2001.062(a), Government Code) does not require board members to read the record of the hearing, representatives of professional teacher organizations urged the board during the formulation stage to adopt a rule requiring members to base their final decision on a review of the record.

Though parties will not be making presentations to or filing briefs with the board, the presiding judge in a case may be asked to present the PFD to SBEC members during the public meeting of the board when the matter is posted for final action.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.39. Final Decisions and Orders.

The purpose of new §249.39 is to establish efficient procedures for the board to make the final decision in disciplinary proceedings brought under new Chapter 249.

The board will decide disciplinary cases under the new chapter at regularly scheduled public meetings. In making a final decision, the board will consider the ALJ's proposal for decision (PFD). The board will issue a written final decision, with findings of fact and conclusions of law separately stated. The board will explain in the final order the reasons for any changes to the PFD and provide appropriate citations to the record of the SOAH hearing in support of such changes.

New §249.39 is based on the premise that the board should be the final decision maker in disciplinary proceedings arising under new Chapter 249. Rationale for this approach is provided in the justification of new §249.36 and is incorporated by reference into this justification for new §249.39. The SBEC's enabling act at §21.031(a), Education Code, gives the board the power to regulate and oversee all aspects of the standards of conduct of certified educators, which includes the imposition of appropriate sanctions, if any. Section §21.041(b)(7), Education Code, requires the SBEC to propose rules that provide for disciplinary proceedings, including sanctions, in accordance with the APA. Under the APA (§2001.058(f), Government Code), the board could have chosen to designate the ALJ as the final decision maker in disciplinary cases, a choice which would have entailed the ALJ's imposing a sanction. But the board did not make that choice; instead, the board chose to retain full authority to determine appropriate sanctions in disciplinary cases brought under new Chapter 249.

Upholding the suspension of a physician's license, the court in Emory v. State Bd. of Medical Examiners , 748 F.2d 1023, 1026 (5th Cir. 1984), stated, "The determination of which sanction best serves statutory policies is committed to the administrative agency's discretion." In Fay-Ray Corp. v. Texas Alcoholic Beverage Com'n , 959 S.W.2d 362, 369 (Tex. App.-Austin 1998, no pet.), the court cited Emory v. State Bd. of Medical Examiners , 748 F.2d 1023, with approval, stating, "[ A ]n agency has broad discretion in determining which sanction best serves the statutory policies committed to the agency's oversight." In light of these policy considerations, the SBEC interprets the APA (§§2001.058(e), 2001.141, Government Code) to give the board broad discretion in imposing sanctions under new §249.39 and new Chapter 249.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; §2001.058(e), which authorizes the SBEC to change a proposal for decision or order issued by the ALJ; and §§2001.062, 2001.141, and 2001.142, which set conditions for the rendering and notification of the board's final decision in a contested case.

§249.40. Motion for Rehearing; Administrative Finality.

The purpose of new §249.40 is to briefly state the law that governs motions for rehearing and administrative finality. The APA (§§2001.145, 2001.146, Government Code) specifies the deadlines and procedures for filing and ruling on motions for rehearing, but the statute does not say what should be in the motion. As a result, applicable case law establishes requirements for the contents of the motion for rehearing.

Subsection (b) of new §249.40 encapsulates the legal principle as well as its justification regarding the sufficiency of motions for rehearing as developed through cases like Hooks v. Texas Dept. of Water Resources , 645 S.W.2d 874, 880 (Tex. App.-Austin 1983, writ ref'd n.r.e.):

Even if we assume Hooks' motion for rehearing states with sufficient particularity the legal basis of his three attacks upon the findings of fact which purport to support the final order of the agency, no assignment of error is directed at any particular finding of fact made or omitted by the agency. Thus, the result is the same whether the motion for rehearing fails to specify either the legal basis for the claim of error or the particular finding complained of: in either case, the agency is deprived of an opportunity to discover and correct the error, if any, or articulate a justification for its action.

New §249.40(b) also addresses the situation in which a party fails to appear at hearing and sustains a default judgment. The new rule prevents the defaulting party from using a motion for rehearing to overturn the judgment. The defaulting party's motion for rehearing would fail for lack of evidence in the record to support the motion.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; §§2001.144, 2001.145, and 2001.146, which govern the procedures for motions for rehearing and the determination of administrative finality; and §§2001.062, 2001.141, and 2001.142, which set conditions for the rendering and notification of the board's final decision in a contested case.

§249.41. Procedure for Reprimand; Restriction.

The purpose of new §249.41 is to establish fair and administratively efficient procedures for implementing the board's order under new Chapter 249 reprimanding or restricting an educator's certificate.

The new rule provides for the educator to be sent a copy of the board's final order or decision of the reprimand or restriction, pursuant to the APA (§2001.142, Government Code). Section 2001.142(b) of the APA also requires the agency to send the order or decision to the educator's counsel, if any. In addition, new §249.41 requires the agency to notify the educator's employing school district at the time of the board's order of an inscribed reprimand or certificate restriction. For inscribed reprimands and restrictions, the agency will demand the educator return the original and all copies of his or her certificates so they can be reissued with the reprimand or restriction on the face of them. Under new §249.15(d), the SBEC may request the aid of the Attorney General's office in securing the certificates. The inscribed reprimand or restriction will also appear on the educator's official records maintained by the agency.

A reprimand will not prohibit the sanctioned educator from teaching or serving as a school administrator. And although a restriction may limit the educator's enjoyment of privileges afforded by a certificate, the individual may still be allowed to teach or to serve as a school administrator under prescribed conditions. The purpose of noting an inscribed reprimand or certificate restriction on the face of the educator's certificate is to notify prospective school-district employers, parents, and the public so they may take appropriate measures to protect the health, safety, and welfare of students and school personnel based on the sanction information.

A non-inscribed reprimand will not be marked on the face of any of the educator's certificates or otherwise published, but the order of sanction will be available upon request pursuant to the Texas Public Information/Open Records Act (Ch. 552, Government Code). The agency may use a non-inscribed reprimand against the educator if he or she again appears as respondent in a disciplinary case under the new chapter, an appropriate measure to encourage the educator to be more circumspect in carrying his or her professional duties.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §§2001.062, 2001.141, and 2001.142, which set conditions for the rendering and notification of the board's final decision in a contested case.

§249.42. Procedure for the Suspension, Cancellation, or Revocation of a Certificate.

The purpose of new §249.42 is to establish fair and administratively efficient procedures for implementing the board's order under new Chapter 249 suspending, canceling, or revoking an educator's certificate. The new rule provides for the educator to be sent a copy of the board's final order or decision of the suspension, cancellation, or revocation, pursuant to the APA (§2001.142, Government Code). Section 2001.142(b) of the APA also requires the agency to send the order or decision to the educator's counsel, if any. In addition, new §249.42 requires the agency to notify the educator's employing school district at the time of the board's order suspending, canceling, or revoking the certificate.

The agency will demand the educator return the original and all copies of his or her certificates. Under new §249.15(d), the SBEC may request the aid of the Attorney General's office in securing the certificates. The sanction will also appear on the educator's official records maintained by the agency.

Through the SBEC's network of communication with Texas superintendents and other states' certification officials, the agency will notify them of the sanction to help prevent the former certificate holder from gaining employment in the schools through misrepresentation of his or her professional credentials.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §§2001.062, 2001.141, and 2001.142, which set conditions for the rendering and notification of the board's final decision in a contested case.

§249.43. Procedure for Reinstating a Suspended Certificate.

The purpose of new §249.43 is to establish fair and administratively efficient procedures for implementing the executive director's reinstatement of a suspended certificate. The new rule is based on the rule under which the Commissioner of Education handled reinstatements of suspended certificates, 19 Texas Administrative Code §137.583. Suspension is a temporary withdrawal of an educator's certificate for cause. The agency will retain the educator's file in its system in anticipation of restoring the certificate at some future time.

The process of reinstatement, as opposed to automatically reactivating the certificate once the suspension period has run, allows the agency to review the applicant's record since the board's order and to determine if the individual is fit to resume the duties of an educator and to be with children. After all, the individual will have been found to have committed a serious breach of professional and ethical behavior, if not a criminal offense, to have warranted suspension. If the certificate is reinstated, it is appropriate and fair for the agency to notify prospective employers of the educator's restoration to full or restricted status as a certificate holder.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.44. Reapplication Following Denial, Cancellation, or Revocation.

The purpose of new §249.43 is to establish fair and administratively efficient procedures for implementing the executive director's reinstatement of a Denial, Cancellation, or Revocation .

The board's decision to deny an application for certification is considered a final action without reconsideration of the original application. Cancellation and revocation are permanent withdrawals of an educator's certificate for cause, and the SBEC does so without anticipating restoration of the certificate, unlike in the case of a suspension. As distinguished from revocation, cancellation occurs when an educator voluntarily surrenders his or her certificate in lieu of revocation or when the agency has erroneously issued an individual a certificate. Because denial, cancellation, and revocation is considered to be permanent, the effect is to remove the applicant or the former certificate holder from the agency's system as an educator, though the board's disciplinary order will remain on file and become a factor in any reapplication review. To be certified, the individual whose application was denied or whose certificate was canceled or revoked for reasons of moral character, violation of law, or other misconduct must show the SBEC that the factors that resulted in the denial, cancellation, or revocation no longer exist. In such cases, the SBEC's first duty is to protect the health, safety, and welfare of students and other school personnel, not to provide a special entitlement to certification for someone who has already proved to be unworthy as an educator.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; §2001.058(e), which authorizes the SBEC to change a proposal for decision or order issued by the ALJ; and §§2001.062, 2001.141, and 2001.142, which set conditions for the rendering and notification of the board's final decision in a contested case.

§249.45. Factors for Modifying Sanctions.

The purpose of new §249.45 is to offer guidance to ALJs and board members in considering the modification of sanctions imposed under new Chapter 249.

Modification of sanctions is not available to individuals whose certificates have been revoked or canceled. The opportunity to apply for modification is primarily intended for educators whose certificates the board has suspended for over two years. Because the new rules do not carry over the one-year limit on suspension that was contained in the Commissioner of Education's disciplinary rules, allowing for modification fairly balances the extended period. The board may set a minimum time that must elapse before the sanctioned educator may apply for modification, so the agency will not be harassed or unduly burdened with vexatious or frivolous applications filed a few days, weeks, or months after the board issues the final order in a case.

The factors set out in new §249.45 allow the ALJ and the SBEC to consider issues like rehabilitation, restitution, and initiative to correct the behavior that resulted in sanctions. The guidelines in the new rule will help ALJs review petitions for modifications and draft related proposals for decision (PFD). Relying on the factors in new §249.45 will also help ensure consistency in PFDs and final decisions involving requested modifications of sanctions. Pursuant to §2001.058 (e)(1), the SBEC reserves discretion under the new rule to be the final arbiter of the proper application and interpretation of the decision making guidelines.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.058(b) and (c), which requires the ALJ to consider the SBEC's applicable written rules and policies provided by the agency; and §2001.058(e)(1), which authorizes the SBEC to determine whether an ALJ properly applied or interpreted applicable agency rules and written policies provided under §2001.058(c).

Subchapter F. Enforcement of the Educator's Code of Ethics.

Executive Summary for new Subchapter F of Chapter 249

The Code of Ethics and Standard Practices for Texas Educators was previously adopted effective March 1, 1998, and is found at 19 Texas Administrative Code Chapter 247. Since mid-1997, there has been no enforcement of the code of ethics because the Commissioner of Education ruled that he did not have jurisdiction and the SBEC had no procedures to hear or to decide such complaints. New Subchapter F of Chapter 249 provides the SBEC the means for now enforcing the educator's code of ethics.

To provide a fair and efficient method for enforcing the code of ethics and meaningfully resolving complaints alleging violations of the code, the SBEC developed a three-step review process involving the local school district, the SBEC's executive director, and a review committee composed of three board members. After a code of ethics complaint has been filed, the local school district-acting through the superintendent or the president of the board of trustees-has a 45-day opportunity in which to try to resolve the underlying problem that gave rise to the complaint without imposing sanctions against the accused educator's certificate.

If the complainant does not achieve satisfaction to dismiss or forward a complaint, is limited to a local effort at alternative dispute resolution, the action of SBEC's executive director will determination of whether the written complaint meets minimal requirements for timeliness, form, and stating a claim under the code of ethics. The executive director may either send the complaint to hearing or dismiss it. If the executive director dismisses the complaint, the complainant may appeal the decision to a review committee made up of three SBEC members, one of whom must be a teacher, one an administrator or counselor, and one a citizen member of the board. Like the executive director, the review committee may refer the complaint to hearing or dismiss it. In either case, the review committee's decision is final. This system will ensure that colorable complaints receive a hearing, while affording innocent educators some measure of protection from being forced to defend themselves against frivolous allegations.

SOAH will conduct hearings in code of ethics cases under the same procedures set out in Subchapter C and D of Chapter 249. The only difference would be the express availability of an affirmative defense based on the accused educator's having been acting "ethically and appropriately" within the course and scope of his or her employment when the alleged violation occurred.

§249.46. Definitions.

The purpose of the rule is to define important terms specifically related to enforcement of the educator's code of ethics as set out in Subchapter F of the new chapter. Because code of ethics enforcement differs in several respects from other disciplinary proceedings, a special definitions section is needed to help the public and parties understand how Subchapter F will work.

The definitions in the section of this new chapter are adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.47. Purpose and Scope.

The purpose of the rule is to establish the following: the jurisdiction of the SBEC over code of ethics enforcement proceedings; who is subject to Subchapter F, which will govern enforcement proceedings related to the educator's code of ethics; what types of complaints and cases Subchapter F applies to; who may file a complaint or a petition under the subchapter; how the rules in the subchapter relate to others in the rest of Chapter 249; and the availability of a copy of the subchapter to anyone who requests it.

APPLICABILITY: Subsections (a), (c), (d), (e), (g), and (h) address the applicability of new §249.47. The SBEC will begin enforcing the educator's code of ethics on the effective date of the subchapter. A complaint may be brought against an educator for violations of the current code of ethics, which became effective March 1, 1998, or for violations that occurred while the former code of ethics was in effect, from January 1, 1976, through February 28, 1998, and as amended effective September 1, 1988.

The rule makes Subchapter F applicable to both pending and future code of ethics complaints. Complaints filed on or after the effective date of the new enforcement rules will have to comply with all the requirements in the subchapter and be subject to all the grounds for dismissal under new §249.50. Complaints that are not dismissed by the executive director under §249.51 or by the review committee under §249.52 will go to hearing before the SOAH.

Complaints and petitions filed under the code of ethics based before the effective date of the subchapter will be considered for hearing, but the grounds for dismissing such "pre-filed" complaints will be limited because the complainants were not aware of all the requirements under the new rules when they filed their complaints. The grounds for dismissal of the pre-filed complaints will be limited to their having been previously disposed of or their failure to state a violation of the code of ethics. To expedite this limited review and to provide a full opportunity for proceeding to hearing, individuals with pending complaints will be asked to re-file their complaints in the form prescribed by new §249.49, which is designed to provide a standard format for complaints and to guide complainants in linking their allegations to provisions of the code of ethics. Because failure to state a claim under the code of ethics is a ground for dismissal of pre-filed complaints, having these complainants refile their claims using the new format prescribed by §249.49 will facilitate a fair and expeditious review of their allegations.

Petitions based on code of ethics complaints and already pending before SOAH on the effective date may be reviewed by the ALJ for dismissal only for failure to state a claim under the code of ethics.

In code of ethics cases brought under Subchapter F, the provisions of the subchapter prevail over the rest of new Chapter 249. However, if no conflict exists, other sections in the chapter may apply to code of ethics cases where Subchapter F is silent and a procedure or rule is needed to fill a gap.

To go out of Subchapter F and follow the general disciplinary proceedings provided for in Subchapters A through E, the agency's staff attorneys may file a petition alleging a code of ethics violation and another ground for sanction, such as unworthiness to instruct or a violation of law under new §249.15(c). This option enables the SBEC's staff to act more quickly in cases involving immediate, serious threats to the safety or welfare of students or other school personnel than could be done if they had to go through the review process under Subchapter F.

As is the case with the rest of Chapter 249, new Subchapter F may not be used to seek sanctions against the SBEC's members or staff for acts in the course of their duties for the agency. Individuals should not be allowed to try to intimidate or to retaliate against board members or staff by filing code of ethics complaints against those of them who are certified. In formulating the rule, §21.033(c) of the SBEC's enabling legislation was considered and the policy it expressed of providing immunity for board members who performed their duties in good faith. The SBEC extended the policy of immunity to certified board and staff members for purposes of enforcing the code of ethics so they could exercise their best judgment without the threat of harassing complaints being filed against them for acts that would have nothing to do with their having been certified as educators.

COMPLAINANTS: Under subsection (b) of the new rule, anyone may file a code of ethics complaint against an educator. When the Commissioner of Education decided code of ethics cases, only another educator could file an ethics complaint against an educator. Anyone may bring a complaint against an educator, including another educator, the parent of a student, or a member of the public. The Legislature established the SBEC to regulate the standards of conduct of educators (Education Code, §21.031(a)). To carry out that purpose, the Legislature further directed the SBEC to propose rules that provide for disciplinary proceedings and enforcement of the educator's code of ethics (Education Code, §21.041(b)(7), (8)). The agency's enabling legislation does not limit the SBEC to disciplinary proceedings or enforcement of the code of ethics for the benefit of educators. In the broader scheme, the public education mission and objectives of the State of Texas are directed toward ensuring students achieve their potential (Education Code, §4.001), a goal which the SBEC helps achieve by removing from the public schools educators who prove a threat to the well-being of students. Consequently, the SBEC's legal responsibilities extend beyond adjudicating workplace disputes between educators.

The general obligations of any occupational regulatory agency are to ensure that licensed practitioners demonstrate satisfactory level knowledge and skills and to protect the health, safety, and welfare of the public, especially the licensees' clients. In the case of educators, the clients are the students, parents, and community. The code of ethics comprises five principles, which serve as the foundation of the code. Two of the five principles address an educators' duties toward students and their parents and the communities in which they serve. Therefore, the whole code of ethics should be enforceable under Subchapter F, not just those parts dealing with relations between educators.

The SBEC's staff attorneys will represent the complainant on behalf of the agency, the State of Texas, and the education profession as a whole in any contested case hearing before SOAH. The state grants the privilege of certification and so should be solely responsible for taking it away. No other occupational regulatory agency has delegated the State's responsibility for investigating and trying disciplinary cases to private parties. Delegating investigative and prosecutorial powers differs from contracting with a private entity to help carry out those functions while retaining control over the contractor's discretion and making the contractor accountable to the agency and to the state for performance.

The APA, along with SOAH's rules, will govern procedural matters in code of ethics cases before SOAH because, for purposes of administrative efficiency and consistency, the SBEC did not want bifurcated procedural rules to apply to the agency's disciplinary proceedings before SOAH-one set for actions brought under Subchapters A through E of new Chapter 249 and another for code of ethics cases arising under Subchapter F.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.001, which declares the state's public policy is to provide minimum standards of uniform practice for state agencies; §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2003.021(b), which gives the SBEC the prerogative and the responsibility to request a proceeding to be docketed with SOAH; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.48. Time for Filing of Complaint.

The purpose of Section 249.48 provides a limitations period in which a code of ethics claim must be filed or be dismissed. The new rule will work in conjunction with new §249.49(a)(3), which requires a complainant to note the date of violation in the complaint, and new §249.50(4), which provides for dismissal of complaint that was not timely filed. Under new §249.48, complainants generally will have 90 calendar days from the last act alleged to have violated the code of ethics to file their complaints. The new rule, however, provides a grace period for filing complaints of 180 calendar days from the effective date of Subchapter F of new Chapter 249.

The new rule is to prevent stale claims and diminished evidence and to promote the timely disposition of complaints under the code of ethics. While formulating new §249.48, the board and the SBEC's staff considered the statements of representatives of professional educator groups who claimed that some limit should be set on the time for filing code of ethics complaints. By compelling the filing of an ethics complaint within a reasonable time, the new rule provides the responding party a fair opportunity to defend against allegations and claims while witnesses are available and evidence is fresh in their minds. See, Willis v. Maverick , 760 S.W.2d 642, 644 (Tex.1988).

The risk of witnesses becoming unavailable, especially students who move out of the school district, and the concern about an untenable situation between the parties being left to fester unresolved were also factors in the development of the rule. Because of the need to have such complaints dealt with expeditiously for the sake of all the parties while providing adequate time for a complainant to fill out the required complaint form, the board determined that 90 days from the date of the last violation of the code of ethics was a reasonable time in which to file.

The SBEC also believed justice would be served by allowing a longer limitations period during the beginning phase of code of ethics enforcement. Complainants who have previously filed complaints without being notified of the rule's 90-day limitations period should not be penalized by having their complaints summarily dismissed for not meeting the deadline. Additionally, the board recognized that many persons would not become immediately aware of the impact of the new rule upon its adoption or publication of such in the Texas Register . For that reason, all complainants will have at least up to 180 days after the effective date of new Subchapter F in which to file their code of ethics complaints.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

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

The purposes of new §249.49 are: (1) to establish a standard form for reporting alleged code of ethics violations; (2) to hold complainants accountable for filing a complaint by requiring complainants to verify the validity of their complaints and to have them notarized; (3) to ensure the accused educator and appropriate school officials are notified of a complaint's filing; and (4) to give local school officials an opportunity to meaningfully resolve the issue that gave rise to the filing of a complaint.

The agency has developed a complaint form that includes prompts and answer spaces for providing the information required by new §249.49. Complainants may use the agency-developed form or use another format that complies with the new rule. The complaint must be notarized, with the complainant swearing that all the information contained in the complaint is true and correct and that it is not frivolous. The complainant will file the original of the complaint with the SBEC's executive director at the agency's headquarters at 1001 Trinity, Austin, Texas 78701-2603. The complainant must serve copies of the complaint on the accused educator and the superintendent of the school district where the alleged violation occurred. If the superintendent is the accused educator, then the complaint must be served on the president of the school district's board of trustees. Filing the complaint with the executive director and service of copies on the accused educator and the superintendent or board president should be done by U.S. certified mail, return receipt requested.

After the complaint has been filed and served, the executive director will wait up to 50 days after receipt to decide whether it should be dismissed under new §§249.50, relating to grounds for dismissal, and 249.51, relating to the executive director. During this period, the superintendent or the local board president will have 45 days in which to resolve the underlying problem that led to the filing of the complaint. The additional five days the executive director must wait before dismissing a complaint or ordering it to hearing are to give the school official's written notice of the outcome of any resolution attempt time to reach the agency through the U.S. mail. To achieve a settlement, school officials may use formal or informal mediation or another alternative dispute resolution process of their choice or devise. The new rule does not dictate a particular method of resolution or require the parties to participate in it. The local resolution provision does not preempt a district's grievance process or require it to be held in abeyance pending an outcome under the new rule. The executive director may take action on the complaint under new §249.51 before the 50th day if before that time the complainant withdraws the complaint or the local school official notifies the agency that the district no longer employs the accused educator and so no meaningful opportunity exists locally to resolve the complaint.

The premises for the rule are that: (1) because a code of ethics complaint alone, without investigation by the SBEC's enforcement staff, may serve as the basis for a contested case hearing before SOAH, the complainant should be required to provide essential information regarding the alleged violation and to swear to the validity of the complaint; and (2) local school officials should be given the opportunity to resolve the problem underlying the complaint in a meaningful fashion that might not be achieved through sanctions against the accused educator's certificate.

During the formulation of the new rule, the board and the SBEC's staff considered the suggestions of organizations and attorneys representing parents of students and certified teachers, administrators, and counselors. The role of the board of trustees and the superintendent in personnel matters under the Education Code was considered. The agency's current caseload and the anticipated number of filings under the new rules were also factors in the development of new §249.47. Along with new §249.50(5), relating to dismissal of frivolous complaints, and new §249.53, relating to sanctions against educators who file frivolous complaints, new §249.49(a)(7) is based, in part, on Rule 11 of the Federal Rules of Civil Procedure. Rule 11 provides sanctions for filing a pleading or other paper in federal court without legal or factual basis or for an improper purpose, such as to harass.

To properly review a complaint for facial validity, the executive director and the review committee will need complete yet concise and logically related information on which to base their decisions. Once the executive director or the review committee orders a complaint to hearing, the SBEC staff will have to file a petition based on the complaint within 60 days of such order, so the usual investigative period for a case will be truncated. And because a complaint forwarded to hearing will form the basis of a petition filed with SOAH, the required elements of the complaint form were derived to provide as much information as was reasonable to ask for so a petition based on the complaint alone could be drafted relatively quickly. The tight deadlines for reviewing a complaint for dismissal or hearing and for filing a petition with SOAH are significant factors in light of the agency's current disciplinary case load of over 1,500 pending actions and the anticipated increase in filings once the new rules become widely known.

The complaint format under new §249.49 does not differ substantially from the one used by the Teachers Professional Practices Commission (PPC) when the advisory body to the Commissioner of Education was primarily responsible for receiving and reviewing code of ethics complaints. The only significant difference is that the PPC did not require the complainant to identify witnesses to the alleged violation. The agency considered the impact of witnesses being identified in the complaint, such as possible retaliation during the local resolution period discussed above, but concluded any witnesses would be identified anyway before hearing if the case was truly meritorious and was going to have a chance to succeed. The early identification of witnesses could facilitate the local resolution process by their helping establish facts both parties could acknowledge and thereby narrow the issues for mediation or hearing.

To impress upon potential complainants the seriousness of filing a complaint and to aid in holding them accountable for filing a groundless one, the new rule requires complaints to be signed under oath that all the information and declarations contained in them are true and correct and that the allegations are not frivolous. The PPC complaint form also required the complainant to verify the complaint under oath by a notary public.

Further, representatives of some professional educator administrator organizations and personnel administrator organizations maintain that it is fair, efficient, and in the best interests of the profession to give local school officials an opportunity to resolve code of ethics allegations. Board members with teaching, administrative, and policymaking experience in the public schools also believe that most minor disputes with an educator would not warrant certificate sanctions and that, in such cases, punitive measures likely would not resolve the core of the problem that led to the filing of a code of ethics complaint. Sections 11.151, 11.163, and 11.201 evidence state policy that local school officials are primarily responsible for overseeing and resolving personnel matters in their school districts, a factor in considering "educator-on-educator" code of ethics complaints. In short, the State of Texas is not always in the best position to address local issues regarding an educator's alleged misconduct, particularly in circumstances involving the administration of local policies or differences of opinion which present no immediate or substantial threat of harm to the complainant or others.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.50. Grounds for Dismissal of a Complaint by Executive Director or Review Committee.

The purpose of the new rule is to help prevent educators from being subjected to repetitive, unfounded, or untimely complaints under the educator's code of ethics. New §249.50 provides limited grounds for dismissing a code of ethics complaints. The rule will work in conjunction with new §249.51, relating to the executive director's review of complaints for dismissal, and new §249.52, relating to appeals of the executive director's dismissal to the review committee. In determining whether a complaint should be dismissed, both the executive director and the review committee will be limited to examining the face of the complaint and applying only the reasons for dismissal set out in new §249.50.

The premise for the rule is that the extent to which educators are subjected to unwarranted complaints should be minimized. The board and the SBEC's staff formulated the new rule based on information provided by representatives of professional educator organizations, current and former TEA staff who dealt with code of ethics cases under the Teachers' Professional Practices Commission and the Commissioner of Education, and the agency's staff investigators and attorneys who review complaints against educators. Also taken into account were the demands of time, money, and effort placed on accused educators to defend themselves against code of ethics complaints.

Given the limited resources of the agency and of accused educators, the SBEC determined that complaints reasonably should be required to meet certain minimal jurisdictional requirements. Obviously, educators should not be subjected to double jeopardy and the agency should not have to waste precious resources in dealing with a complaint that a proper authority has already disposed of. For the reasons stated in the justifications for new §249.49, relating to the form of the complaint, and new §249.53, relating to sanctions for frivolous complaints, the complaint should be complete, intelligible, and presented in such a manner that shows it is well-grounded and not filed for an improper purpose. Giving the benefit of the evidence to the complainant that the allegations in the complaint are true, the board found it reasonable to require the complainant to state a claim by logically showing how the accused educator's acts violated particular, related provisions of the code of ethics. For the reasons stated in the justification for new §249.48, related to the time for filing complaints, complaints should be timely filed or be dismissed so as to prevent loss of evidence and oppressive delays in disposition.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

§249.51. Executive Director's Review and Notice.

The purpose of new §249.51 is to provide a review process at the highest executive level to help ensure code of ethics complaints that are valid on their face receive a hearing and to dismiss those that are not.

After the local resolution period has expired under new §249.49, the SBEC's executive director may determine whether a complaint should be sent to hearing at SOAH or dismissed on one of the grounds listed in new §249.50. The executive director has a maximum of 70 calendar days after receiving the complaint to make such a determination. Should the local resolution period run the full 50 calendar days allotted for it, the executive director would have only 20 days after its expiration in which to make a decision about dismissal. For that reason, enforcement staff will begin looking at complaints soon after receipt so they can be prepared to answer the executive director's queries immediately after the local resolution period expires. The executive director may ask the SBEC staff or the complainant to provide additional information to facilitate the review under new §249.51 and set a deadline for response, with dismissal being a possible consequence for the failure to timely comply.

If the executive director approves the complaint for hearing, the SBEC's enforcement staff will have 60 calendar days in which to file a petition based on the complaint with SOAH. The petition and the accompanying docket request form initiate contested-case proceedings before SOAH. The new rule does not set a deadline for when SOAH must hold the hearing. The accused educator is not entitled to appeal the executive director's decision to send the case to hearing.

If the executive director dismisses the complaint, the complainant may appeal under new §249.51 to a review committee made up of three board members. If the complaint alleges violations of several provisions of the code of ethics, the executive director may approve or dismiss all or some of the charges. The complainant may appeal the dismissal of any charge alleging a violation of the code of ethics, even though the executive director approved others for hearing. Should the review committee grant the appealed charges, the SBEC's enforcement staff should still have time to include them in the petition with those the executive director initially approved, or, well before hearing, they could amend the original petition filed with SOAH to include the subsequently endorsed charges.

The executive director will notify both the complainant and the accused educator in writing of the outcome of his or her review under the new rule and explain the rationale for the decision.

While developing the rule, the board and the SBEC's staff took into account issues raised by the State Board of Education as well as professional teacher and administrator groups who wanted a fair, consistent process for determining which complaints under the code of ethics would go forward to hearing at SOAH and final decision by the board. Also considered were the procedures the Commissioner of Education and the Teachers Professional Practices Commission (PPC) when they had authority over code of ethics enforcement. In addition, the SBEC staff looked at the ways other occupational regulatory agencies reviewed complaints for disciplinary proceedings, including the Texas State Board of Public Accountancy, the Texas State Board of Medical Examiners, and the State Bar of Texas.

In response to concerns about the enforcement staff's discretion in deciding which cases would go forward, new §249.51 provides that the initial review of complaints will occur at the highest staff level of the agency, namely by the executive director. Additionally, the executive director will be limited to specific grounds for dismissal, which are listed in new §249.50. As a further check on staff decision making, a complainant may appeal the executive director's dismissal of a code of ethics complaint to a review committee made up of three board members, who will represent the agency's governing and policymaking body in their actions. Hence, the new rule eliminates the ability of staff to arbitrarily screen code of ethics complaints.

The board or the SBEC staff considered additional procedures but rejected them for reasons of administrative efficiency and practicality. Allowing the accused educator to respond during the review process or to appeal the executive director's approval of a complaint would, in effect, lead to a hearing before the executive director or the review committee but would not obviate the need for the formal evidentiary hearing before SOAH under the APA if the case continued forward. The result would be duplicative proceedings and unnecessary delay.

Allowing the complainant a further appeal from the review committee to the full board would not only delay proceedings but would irrevocably taint them unless SOAH were delegated final decision making authority. As it is, the members of the review committee will have to recuse themselves from participating in the final decision on a complaint they reviewed and sent to hearing because they will have been exposed to impermissible ex parte communications and other information that did not come to them as part of the record of the adjudicative hearing before SOAH. If the remaining nine voting board members considered the pre-hearing appeal of a dismissal by the review committee, they would have to recuse themselves as well from the final decision, an absurd result that would render Chapter 249 ineffective.

The board and representatives of the professional organizations believed the SBEC should be the final decision maker in disciplinary cases, including those brought under the code of ethics. Because the agency is new, enforcement policies need to be developed by the body the Legislature established to regulate the standards of conduct of the education profession, the SBEC, rather than SOAH.

The review process established for enforcement decisions under new §§249.50 and 249.51, relating to the review committee, provides sufficient checks and balances for the complainant and appropriate due process for the accused while being administratively feasible for the agency.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.52. Appeal; Review Committee.

The purposes of new §249.52 are to provide oversight of the executive director's dismissal of code of ethics complaints and to ensure complaints that are valid on their face receive a hearing.

A complainant may appeal the executive director's dismissal within 30 calendar days of receiving notice of the dismissal. The complainant must file the appeal with the executive director and serve copies of the appeal on the accused educator via U.S. certified mail, return receipt requested.

A review committee comprised of three SBEC members will consider the appeal. From the voting membership of the board, the SBEC chairman will appoint one teacher, one administrator or counselor, and one public citizen to serve on the review committee. The chairman will also designate one of the three committee members to serve as presiding chair for purposes of scheduling and conducting meetings. The review committee will meet as a body in a single location convenient to the members, and the meeting will be posted and open to the public under the Texas Open Meetings Act. The review committee, however, will not take public testimony. Instead, a member of the SBEC's staff will present the appeals by reciting the reasons for the executive director's dismissal and answer questions from the committee. The committee may issue an order asking the executive director to clarify the reasons for dismissal or the complainant to supplement the complaint.

If the review committee overturns the executive director's dismissal, the complaint will be forwarded to the SBEC's enforcement staff for them to file a petition with SOAH in 60 calendar days and thereby getting the case docketed for hearing before an ALJ. If the review committee upholds the executive director's dismissal, the complaint is finally denied with no opportunity for reconsideration or further appeal. The review committee could reject the complaint for the same reasons the executive director did or for different ones, but in any case the committee is limited to the grounds for dismissal listed in new §249.50. The review committee could approve some of the charges dismissed by the executive director and not others, but the committee could not reject charges the executive director had already approved for hearing. In dismissing a complaint in whole or in part, the review committee must explain its action, either affirming the executive director's reasons or finding new grounds. The review committee must decide the appeal within 45 calendar days of the executive director's dismissal or the complaint will be revived and processed for hearing before SOAH.

On behalf of the review committee, the executive director will notify the complainant and the accused educator of the committee's decision or of the automatic referral to SOAH if the committee did not act timely.

The premise for the rule is that a representative committee of board members provides appropriate oversight of the executive director's dismissal of code of ethics complaints. Because this rule and the previous one are so intertwined in their development and application, the justification for new §249.51, relating to the executive director's review of code of ethics complaints, is incorporated by reference into the justification for new §249.52.

In addition to the rationale set out above for new §249.51, the board and the SBEC staff determined that the makeup of the review committees would fairly represent the education profession and the public in their decision making.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.53. Frivolous Complaints.

New §249.53 is intended to discourage educators from filing groundless code of ethics complaints against each other by providing for sanctions against those who do. If the executive director under new §249.51, the review committee under new §249.52, or the ALJ finds that a code of ethics complaint was filed without merit, then the executive director may seek sanctions against the complainant pursuant to the procedures set forth in Subchapters A through E of new Chapter 249. The respondent complainant would be entitled to a hearing before SOAH and the board would make the final decision on any sanction.

The premise for the new rule is that some educators may file baseless code of ethics complaints solely for purposes of harassment, intimidation, or other oppressive reason. Representatives of professional organizations suggested the provision as a means of discouraging such unwarranted complaints by educators, over whom the board has jurisdiction to impose sanctions. Other than dismiss the case, the board could do nothing under new §249.53 to sanction a non-educator who filed a groundless code of ethics complaint.

However, under new §249.49(a)(7), all complainants must sign a notarized complaint verifying that, among other things, that the complaint is not frivolous. As a result, an educator or a non-educator who falsely declares in the complaint that it is not frivolous may be subject to prosecution for perjury or making a false entry in a government record under Chapter 37 of the Penal Code.

During the formulation of the new rule, the board and the SBEC's staff considered the suggestions of professional organizations representing certified teachers and administrators. Along with new §249.49(a)(7), relating to verification of nonfrivolous complaint, and new §249.50(5), relating to dismissal of frivolous complaints, new §249.53 is based, in part, on Rule 11 of the Federal Rules of Civil Procedure. Rule 11 provides sanctions for filing a pleading or other paper in federal court without legal or factual basis or for an improper purpose, such as to harass.

In addition, §§11.161 and 22.05, Education Code, recognize the risk of frivolous suits against school officials and educators and provides a remedy for their occurrence by giving the courts discretion to award court costs and attorney's fees. The SBEC has extended this concept to frivolous complaints filed under the code of ethics. Although the board does not have the authority to award costs or attorney's fees, new §249.53 provides a disincentive to the filing of frivolous complaints by allowing the board to impose sanctions against the certificate of an educator whose allegations are baseless.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.

§249.54. Petition and Answer.

PETITION: Under subsection (a) of new §249.54, the SBEC will be the petitioner in a contested code of ethics case before SOAH and have the burden of proof by a preponderance of the evidence, and the accused educator will be the respondent. Based on the complaint filed with the SBEC's executive director, the petition must conform to the requirements of new §249.26, which applies in the absence of a conflict with a provision of Subchapter F (pursuant to new §§249.4(a), (c) and 249.47(e)). The justification for not allowing individual complainants and their private attorneys to pursue sanctions without agency involvement has already been laid out above in the justification for §249.47 and is hereby incorporated by reference as though fully set forth in this portion of the preamble for §249.54.

NOTICE: Subsection (b) of the new rule provides reasonable assurance the complainant and the respondent in a contested code of ethics cases will receive notice of the filing of a petition with SOAH. The rule also provides for satisfactory proof of receipt, and it assigns responsibility for issuing the notice to the agency so there will be no confusion over SOAH's having that duty. Because the respondent will have already received notice of the complaint against him or her under new §249.49(c) and because new §249.22(c) requires the respondent to update the agency with his or her current address, it is reasonable to assume the respondent will have received the petition within five days of mailing, the same period SOAH adopted in a similar procedural rule at 1 Texas Administrative Code §155.25(d)(3). This rebuttable presumption is needed so the agency and the ALJ may proceed to default judgment against a respondent who intentionally avoids service by certified mail, return receipt requested, and fails to file an answer.

ANSWER: Subsection (c) of §249.54 provides a reasonable time in which the respondent must file an answer in a contested code of ethics case. The agency considered the deadline of 20 days to file a general denial answer in a civil suit under the Texas Rules of Civil Procedure but determined an extra 10 days would be appropriate given that a general denial is not sufficient under new §249.27(b), (d).

AFFIRMATIVE DEFENSE: Subsection (d) of the new rule provides an affirmative defense for respondent educators accused of having violated the code of ethics. Once a code of ethics case reaches SOAH, the respondent educator may raise the affirmative defense provided for by this section. The respondent should raise the defense in the original answer filed with SOAH, pursuant to new §249.27(b). If proven, the defense will act like an immunity, preventing the ALJ or the board from finding the respondent in violation of the code of ethics even though the complainant's account of what happened may be true. But the immunity is not automatic. The respondent will have the burden to prove the defense by a preponderance of the evidence. The defense has four main elements that must be proven: when the alleged code of ethics violation took place, the educator (1) must have been acting within the course and scope of his or her employment; (2) must have been exercising discretion; (3) must have been exercising discretion appropriately; and (4) must have been exercising discretion ethically. These elements are fact questions for the ALJ to rule on at hearing and for the board to finally decide. Expressly providing for this affirmative defense does not preclude the raising of others available at law.

In formulating the rule, the board and the SBEC's staff considered a similarly worded immunity provision for educators found in statute. Section 22.051, Education Code, provides, with limitations, qualified immunity from tort liability for professional school employees who were exercising judgment or discretion within their scope of employment when the allegedly tortious act occurred. The statute evinces a state policy of not allowing threat of liability to unduly inhibit educators in exercising discretion in carrying out their duties.

Also considered during the formulation stage were the statements from representatives of teacher and administrator organizations. Both groups acknowledged that code of ethics complaints would likely be filed over workplace disputes, including those arising over working conditions, appraisals, assignments, and contracts. Accordingly, subsection (d) of new §249.54 will afford a suitable defense to educators who make responsible employment decisions and will discourage the filing of vexatious complaints against them.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

§249.55. Proceedings before the Office.

The purpose of new §249.55 is to establish the same basic procedures for code of ethics cases that reach hearing before SOAH as are provided for other disciplinary proceedings governed by Subchapters A through E of new Chapter 249.

Once a code of ethics case reaches SOAH, it will be handled in the same manner as any other contested case proceeding. The parties are encouraged to resolve the disputed issues prior to hearing, but they must cooperate in arranging and paying for mediation: the agency is not required to assume the full cost of alternative dispute resolution. Moreover, the SBEC's enforcement staff is entitled to rely on the aid of the complainant in preparing for and presenting the case at hearing. The agency may refuse to proceed with a case if the complainant proves uncooperative, such as failing to provide needed information or to appear at the hearing.

The new rule is premised on the SBEC's determination that the parties to a code of ethics cases are as well served by SOAH and the rules governing proceedings before the office as are the parties in other cases brought under Subchapters A through E of new Chapter 249.

As previously set out in the executive summary for Chapter 249 and under the rules of Subchapter A through E of the new chapter, the justifications for using SOAH to conduct hearings and the procedures related thereto are incorporated by reference into the justification for new §249.55.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

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

The purposes of new §249.56 are: (1) to provide for the convenience of persons mainly interested in code of ethics cases a restatement of the basic procedures relating to the issuance of the administrative law judge's (ALJ's) proposal for decision (PFD), the board's decision, the range of sanctions, and notice of decision; and (2) to establish the requirement of recusal for review committee members.

In code of ethics cases, the ALJ's issuance of the PFD and the board's consideration of it will be the same as that for other disciplinary cases under new Chapter 249, with one exception. Board members who served on a review committee in a case must recuse themselves from participating in the final decision on it because they may have considered information not made a part of the official record of the adjudicative hearing on the matter before SOAH. To allow review committee members to deliberate or vote on a case arising out of a complaint they considered on appeal would violate the APA (§2001.141, Government Code), which requires the board's final decision to contain findings of fact that are based only on evidence presented at hearing or matters officially noticed. In a similar vein, review committee members would have been exposed to ex parte communications that would taint the full board's impartial decision-making process in violation of the APA (§2001.061(a), Government Code).

The range of available sanctions is the same in code of ethics cases as in other disciplinary actions against certificate holders, from reprimand to revocation. There is not much else the board could impose against an educator who is found to have violated the code of ethics than what is possible under other grounds for sanction, especially since the SBEC does not have statutory authority to impose fines.

As with decisions in other disciplinary proceedings, the board's decisions in code of ethics cases will be sent to the parties, and the board will publish the names of educators sanctioned for code of ethics violations, except for those who receive a non-inscribed reprimand. Motions for rehearing will be handled the same as in other cases under Chapter 249, pursuant to the APA and applicable case law.

The section of this new chapter is adopted under the authority of the following statutes:

(1) Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, §§1, 63, 78, effective May 30, 1995, which requires the board to propose rules as required by Education Code, Chapter 21, Subchapter B;

(3) Government Code, §2001.004, which requires the SBEC to adopt rules of practice stating the nature and requirements of all available formal and informal procedures; §2001.062, which provides for the ALJ to issue a proposal for decision in a code of ethics case and for the parties to file exceptions and replies; §2001.141, which provides for the board to issue a final decision in a code of ethic case; §2001.142, which requires the board to notify parties of the final decision in code of ethics cases; §2001.144-.146, which determine administrative finality and establish procedures for motions for rehearing in code of ethics cases; and §2003.050, which authorizes SOAH to adopt rules of procedure that govern matters related hearings the office conducts for the SBEC.

Subchapter A. General Provisions

19 TAC §249.1-249.10

The new rules are adopted under the following statutory provisions:

Senate Bill 1, Acts 1995, 74th Legislature, chapter 260, §§1, 63, 78, effective May 30, 1995.

Subchapter E, Chapter 21, Education Code: §21.105 (relating to sanctions the board may impose against an educator who abandons a probationary contract); §21.160 (relating to sanctions the board may impose against an educator who abandons a continuing contract); §21.210 (relating to sanctions the board may impose against an educator who abandons a term contract);

Subchapter C, Chapter 22, Education Code (relating to criminal history records of applicants for and holders of educator certificates);

Subchapter C, Chapter 57, Education Code (relating to nonrenewal of a certificate based on student loan default);

Subchapter F, Chapter 411, Government Code: §411.090 (relating to the board's access to criminal history record information);

Chapter 2001 (relating to adoption of agency rules and application of general rules of practice for formal and informal proceedings brought pursuant to the Administrative Procedure Act);

Subchapter A, Chapter 2051: §2051.001 (relating to adoption of seal by state commissions and boards);

Articles 6252-13c and 6252-13d, Revised Civil Statutes, (relating to the denial or sanction of a state issued license based on a criminal conviction); and

Chapter 232 (relating to suspension of certificate for child support arrears) and Chapter 261, Family Code (relating to the obligation of educators to report child abuse).