TITLE 19.EDUCATION

Part 7. STATE BOARD FOR EDUCATOR CERTIFICATION

Chapter 233. CATEGORIES OF CLASSROOM TEACHING CERTIFICATES

19 TAC §233.12

The State Board for Educator Certification (SBEC) proposes an amendment to §233.12, relating to categories of classroom teaching certificates. The section addresses career and technology education (certificates not requiring experience and preparation in skills areas). The proposed amendment would establish in permanent rule the new TExES-based Business Education: Grades 6 - 12 certificate.

Texas Education Code (TEC), §21.041(b)(2), authorizes the SBEC to specify in rule the classes of educator certificates to be issued. Section 233.12, Career and Technology Education (Certificates not requiring experience and preparation in skills areas), establishes educator certificates for areas of Career and Technology Education. Section 233.12 also addresses prerequisites for teachers assigned to Career Investigation and Career Connections courses.

In January 2004, the SBEC approved, but not in rule, new TExES-based classroom teaching certificates for Agricultural Science and Technology, Business Education, Dance, Journalism, Marketing Education, Speech, and Theatre. The SBEC also took action to adopt the educator standards for these new certificates.

In December 2004, the SBEC discussed amendments to 19 TAC Chapter 233, Categories of Classroom Teaching Certificates, to establish the new certificates in rule, including the Business Education: Grades 6 - 12 certificate. In January 2005, the SBEC approved as proposed the amendments to include the new certificates in 19 TAC Chapter 233; however, due to a delay in the test development process, the Business Education: Grades 6 - 12 certificate was not included in the proposed rule changes. The TExES exam development was delayed due to stakeholder committee input to revise the test frameworks to ensure a quality exam.

Subsequent SBEC rule actions taken to adopt the new certificates were finalized in June 2006; however, the Business Education: Grades 6 - 12 certificate was not included since it was not a part of the original January 2005 proposal.

The proposed amendment to 19 TAC §233.12 would add the Business Education: Grades 6 - 12 certificate by rule and specify a date for issuance. The proposed amendment would also include language to encourage holders of the new business education certificate to attend and participate in a career and technology education professional development conference sponsored by the Texas Education Agency (TEA) during the first year of assignment. A technical edit would also be made to update the section title.

In November 2006, the SBEC adopted on an emergency basis an amendment to 19 TAC §233.12 that established the Business Education: Grades 6 - 12 certificate by rule with an effective date of November 13, 2006. The emergency rule was published in the November 24, 2006, issue of the Texas Register (31 TexReg 9555). During its January 2007 meeting, the SBEC approved an extension of the emergency effectiveness for an additional 60 days. The extension of emergency effectiveness was necessary to ensure that the emergency rule remains in effect until the permanent rule would take effect.

To address the issue of two separate standards for attending a professional development conference that exists in the emergency rule and in the proposed amendment to §233.12, the SBEC also took action at its January 2007 meeting to clarify that the proposed amendment to §233.12 as it relates to the professional development conference would apply to individuals who obtain the Business Education: Grades 6 - 12 certificate under the emergency rule. Holders of the Business Education: Grades 6 - 12 certificate issued under the emergency rule would only be encouraged and not required to attend a TEA sponsored career and technology education professional development conference.

Raymond Glynn, acting associate commissioner for educator quality and standards, has determined that for each year of the first five years the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Dr. Glynn has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be issuance of appropriate certificates to educators who demonstrate content mastery toward meeting the certification requirements. Students will also benefit by having a teacher who has met the required educator standards provide the classroom instruction. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment.

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

The amendment is proposed under TEC, §21.041(b)(2), which requires the SBEC by rule to specify the classes of certificates to be issued.

The proposed amendment implements TEC, §21.041(b)(2).

§233.12.Career and Technology Education (Certificates not requiring experience and preparation in a skill area [ skills areas ] ).

(a) - (f) (No change.)

(g) Business Education: Grades 6 - 12. The Business Education: Grades 6 - 12 certificate may be issued no earlier than November 8, 2006. The holder of the Business Education: Grades 6 - 12 certificate may teach all Business Education courses in Grades 6 - 12. Teachers are encouraged to attend and participate in a Texas Education Agency sponsored Career and Technology Education Professional Development Conference during the first year of assignment.

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

Filed with the Office of the Secretary of State on January 22, 2007.

TRD-200700149

Cristina De La Fuente-Valadez

Director, Policy Coordination

State Board of Educator Certification

Earliest possible date of adoption: March 4, 2007

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

Chapter 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES INCLUDING ENFORCEMENT OF THE EDUCATOR'S CODE OF ETHICS

Subchapter B. ENFORCEMENT ACTIONS AND GUIDELINES

19 TAC §249.14

The State Board for Educator Certification (SBEC) proposes an amendment to §249.14, relating to enforcement actions and guidelines. The section addresses complaints, required reporting, investigations, and the agency's filing of petitions. The proposed amendment would update the rule to reflect statutory changes and to add clarification regarding an investigative notice that may be placed on an educator's certification records. The provisions for an investigative notice would include assignment of priority levels based on the severity of allegations in the case.

Texas Education Code (TEC), §21.041(b)(7), authorizes the SBEC to adopt rules that provide for disciplinary proceedings for certificate holders. Section 249.14, Complaint, Required Reporting, and Investigation; Agency's Filing of Petition, specifies the current process to take complaints, requires reports of suspected misconduct, authorizes the investigation of certified educators, and allows the agency the ability to initiate contested case proceedings. As established in subsection (g), the rule provides staff with the ability to set priorities for its investigations based on the severity and immediacy of the allegation of misconduct as well as the likelihood of harm posed by the subject of the investigation.

The following proposed changes to 19 TAC §249.14 would improve and enhance the disciplinary investigation process.

Subsection (d) would be revised to clarify the definition of minor as a student or minor and the definition of permit as a license/permit. Proposed new subsection (d)(2)(F) would add specificity regarding the types of acts used for determining the termination of employment for a certificate holder. Subsection (g) would be revised to create a two-tiered prioritization system. Proposed new subsections (g)(1) and (2) would add specificity regarding the types of allegations and would assign a prioritization status based on the nature and severity of the allegation. Proposed new subsection (g)(3) would allow staff to change the prioritization based on information received after the investigation has been initiated and clarify that an investigative notice will not be created in response to allegations of a Priority 2 conduct. Proposed new subsection (g)(4) would add a definition for "serious testing violation."

Proposed new subsection (h) would address placement of an investigative notice on the certificate holder's certification records based on the severity of the allegations in each case.

Proposed new subsection (i) would establish the opportunity and manner through which an educator may show cause why an investigative notice should not be placed on his or her certification records. This process would include the requirement that the certificate holder be notified of an investigation at least ten days before placing a notice on his or her certification records.

Proposed new subsection (j) would establish time limits for an investigative notice and would define criminal matter for purposes of subsection (j).

Proposed new subsection (k) would specify the conditions for removal of an investigative notice.

Throughout 19 TAC §249.14, "executive director" has been changed to "Texas Education Agency staff" to reflect the assignment of the SBEC's administrative functions and services to the Texas Education Agency in TEC, §21.035. Proposed new subsection (m) has been added to track that statutory assignment. In addition, House Bill 1116, 79th Texas Legislature, Regular Session, 2005, repealed TEC, §21.039, which established the SBEC executive director position.

Existing subsection (h), relating to filing a petition, would be designated as new subsection (l) with technical edits made to the rule text.

Other technical edits including changing the section title to reflect the addition of an investigative notice provision would be proposed in 19 TAC §249.14.

Raymond Glynn, acting associate commissioner for educator quality and standards, has determined that, for each year of the first five years the amendment is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment. The proposed amendment would establish a process by which an investigative notice would be placed on an educator's certification records. The TEA currently performs this function; therefore, this is not a new function that would require a change in funding to accomplish.

Dr. Glynn has determined that, for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be adding clarity and specificity to the procedures that occur when an educator's certification record is under investigation. These rule changes would specify the type of conduct that indicates a potential risk to the health, safety, or welfare of students. Where this type of conduct may have occurred, the rules would provide for the prioritization and quick resolution of the allegations, while also providing the public school system with the information necessary to protect their students while the investigation is ongoing. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment.

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

The amendment is proposed under TEC, §21.041(b)(7), which requires the SBEC by rule to provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code.

The proposed amendment implements TEC, §21.041(b)(7).

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

(a) The Texas Education Agency (TEA) staff [ Staff ] may obtain and investigate information concerning alleged improper conduct by an educator, applicant, examinee, or other person subject to this chapter that would warrant the board denying relief to or taking disciplinary action against the person or certificate.

(b) (No change.)

(c) The TEA staff [ executive director and staff ] may also obtain and act on other information providing grounds for investigation and possible action under this chapter.

(d) A person who serves as the superintendent of a school district or the director of an open-enrollment charter school, private school, regional education service center, or shared services arrangement shall promptly notify in writing the board by filing a report with the TEA staff [ executive director ] within seven calendar days of the date the person first obtains or has knowledge of information indicating any of the following circumstances:

(1) (No change.)

(2) that a certificate holder was terminated from employment based on a determination that he or she committed any of the following acts:

(A) sexually or physically abused a student or minor or engaged in any other illegal conduct with a student or minor;

(B) - (C) (No change.)

(D) attempted by fraudulent or unauthorized means to obtain or to alter any certificate or license/permit [ permit ] that would entitle the individual to be employed in a position requiring such certificate or license/permit [ permit ] or to receive additional compensation associated with a position; [ or ]

(E) (No change.)

(F) solicited or engaged in sexual conduct or a romantic relationship with a student or minor; or

(3) that a certificate holder resigned and reasonable evidence supported a recommendation by the person to terminate a certificate holder because he or she committed one of the acts specified in paragraph (2) of this subsection.

(A) Before accepting an employee's resignation that, under this paragraph, requires a person to notify the board by filing a report with the TEA staff [ executive director ] , the person shall inform the certificate holder in writing that such a report will be filed and sanctions against his or her certificate may result as a consequence.

(B) A person required to comply with paragraph (3) of this subsection shall notify the governing body of the employing school district before filing the report with the TEA staff [ executive director ] .

(e) (No change.)

(f) The TEA staff [ agency ] shall not pursue sanctions against an educator who is alleged to have abandoned his or her contract in violation of the Texas Education Code (TEC), §§21.105(c), 21.160(c), or 21.210(c) , [ of the Act ] unless the board of trustees of the employing school district:

(1) renders a finding that good cause did not exist under the TEC, §§21.105(c)(2), 21.160(c)(2), or 21.210(c)(2) [ of the Act ] ; and

(2) submits a written complaint to the TEA staff [ agency ] within 30 calendar days after the educator separates from employment.

(g) To efficiently administer and implement the board's purpose under this chapter and the TEC [ Act ] , the TEA staff may set priorities for the investigation of complaints based on the severity and immediacy of the allegations and the likelihood of harm posed by the subject of the investigation. All cases accepted for investigation shall be assigned one of the following priorities:

(1) Priority 1: conduct that indicates a risk to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague, including but not limited to the following:

(A) any conduct constituting a felony criminal offense;

(B) indecent exposure;

(C) public lewdness;

(D) child abuse and/or neglect;

(E) possession of a weapon on school property;

(F) drug offenses occurring on school property;

(G) sale to or making alcohol or other drugs available to a student or minor;

(H) sale, distribution, or display of harmful material to a student or minor;

(I) certificate fraud;

(J) serious testing violations;

(K) deadly conduct; and

(L) conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.

(2) Priority 2: other conduct including but not limited to the following:

(A) any conduct constituting a misdemeanor criminal offense or testing violation which is not described as Priority 1 under paragraph (1) of this subsection;

(B) contract abandonment; and

(C) code of ethics violations.

(3) An investigative notice will not be placed on an educator's certification records on the basis of an allegation of Priority 2 conduct. The TEA staff may change a case's priority at any time based on information received.

(4) For purposes of this subsection, a serious testing violation is a failure to observe the requirements of test administration established by the commissioner of education in a manner that involves dishonesty or intent to affect the test score of a student or action that is calculated to effect the accountability rating of a school district or campus.

(h) After accepting a case for investigation, the TEA staff may place an investigative notice on the certificate holder's certification records stating that the certificate holder is currently under investigation for conduct described in subsection (g)(1) of this section. The placement of an investigative notice must follow the procedures set forth in subsection (i) of this section.

(i) Prior to placing an investigative notice on an educator's certification records, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.

(1) At least ten days before placing an investigative notice on the educator's certification records, the letter notifying the certificate holder of the investigation shall be mailed to the address provided to the TEA staff pursuant to the requirements set forth in §230.431 of this title (relating to Procedures in General).

(2) The letter notifying the certificate holder of the investigation shall include a statement of the alleged conduct which forms the basis for the investigative notice and shall provide the certificate holder the opportunity to show cause within ten days why the notice should not be placed on the educator's certification records.

(3) The TEA staff shall determine whether or not to place an investigative notice on the educator's certification records, taking into account the educator's response, if any, to the letter notifying the certificate holder of the investigation.

(j) An investigative notice is subject to the following time limits.

(1) An investigative notice may remain on the certification records of a certificate holder for a period not to exceed 240 calendar days.

(2) The TEA staff may toll this time limit if information is received indicating that there is a pending criminal matter related to the alleged act of misconduct that gives rise to the investigative notice. Upon receiving notice that the criminal matter has been resolved the tolling period shall end. For purposes of this subsection, a criminal matter includes an arrest, an investigation, or a prosecution by a criminal law enforcement agency.

(3) The TEA staff may toll this time limit if the matter is referred for a contested case hearing.

(k) The TEA staff shall remove an investigative notice from the certification records in the following situations.

(1) When a case's final disposition occurs within the time limits established in subsection (j) of this section, an investigative notice shall be removed.

(2) If the time limits for an investigative notice have been exceeded; and

(A) the certificate holder has made a written demand to the TEA staff that the investigative notice be removed because the time limits have been exceeded; and

(B) the TEA staff has failed to refer the matter to the State Office of Administrative Hearings for a contested case hearing within 30 calendar days from the date of receipt of the written demand to remove the investigative notice.

(l) [ (h) ] Only the TEA staff [ agency ] may file a petition seeking sanctions under §249.15 of this title (relating to Disciplinary Action by Board) [ chapter ] . Prior to [ the agency's ] filing a petition, the TEA staff [ agency ] shall mail to the certificate holder [ person ] affected by written notice of the facts or conduct alleged to warrant the intended action and shall provide the certificate holder [ person ] an opportunity to show compliance with all requirements of law [ for the retention of the certificate or other enjoyment ] .

(m) For purposes of this section, "TEA staff" means staff of the Texas Education Agency assigned by the commissioner of education to perform the board's administrative functions and services.

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

Filed with the Office of the Secretary of State on January 22, 2007.

TRD-200700150

Cristina De La Fuente-Valadez

Director, Policy Coordination

State Board for Educator Certification

Earliest possible date of adoption: March 4, 2007

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

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

19 TAC §§249.48 - 249.51

The State Board for Educator Certification (SBEC) proposes amendments to §§249.48 - 249.51, relating to enforcement of the educator's code of ethics. The sections establish provisions relating to time for filing of complaint, form of complaint, required service, local resolution, grounds for dismissal of a complaint by executive director or review committee, and executive director's review and notice. The proposed amendments would update the current rules to reflect statutory changes and allow the Texas Education Agency (TEA) staff assigned to handle the complaints on behalf of the SBEC the option to dismiss complaints by declining to pursue sanctions or by issuing a letter of caution.

Texas Education Code (TEC), §21.041(b)(7) and (8), authorize the SBEC to adopt rules providing for disciplinary proceedings and enforcing the educator's code of ethics. The rules in 19 TAC Chapter 249, Subchapter F, Enforcement of the Educator's Code of Ethics, specify the current process to resolve ethical disputes.

Currently, §249.48, Time for Filing of Complaint, establishes the time limit for the filing of an educator's code of ethics complaint as 90 calendar days after the date of the last act giving rise to the complaint. Section 249.49, Form of Complaint; Required Service; Local Resolution, specifies the information that must be included in a code of ethics complaint and verified by affidavit. This section also specifies that the complaint filed with the executive director must also be served on the educator at the same time via certified mail and that the superintendent or president of the board of trustees shall resolve a code of ethics complaint within 45 calendar days after receiving the notice in writing. Section 249.50, Grounds for Dismissal of a Complaint by Executive Director or Review Committee, establishes the grounds for dismissing all or part of a code of ethics complaint. Section 249.51, Executive Director's Review and Notice, establishes the requirements, including timelines, for reviewing code of ethics complaints.

The proposed amendments to 19 TAC Chapter 249, Subchapter F, Enforcement of the Educator's Code of Ethics, would modify the current resolution process for code of ethics complaints to address the following issues and to allow for a more efficient resolution.

The current resolution process in rule is cumbersome and inefficient, resulting in a backlog of complaints. Many of the complaints could have been resolved on the local level, through another governmental entity that is responsible for the alleged violation, or could have been dismissed early if the alleged ethical violation did not rise to the level that would justify a sanction.

The educator's code of ethics also requires processing of complaints that claim violation of any state or federal statute or regulation. Many of these statutes and regulations are enforced by another state or federal agency, but the code of ethics processes do not require the complainant to resolve their complaint at the appropriate agency as a prerequisite to seeking sanctions against a certified educator. As a result, the SBEC is called on to interpret and make rulings on areas of the law outside of its subject matter expertise or responsibility.

Currently, the educator's code of ethics also does not allow for an expedited disposition when the alleged ethical violation is one that does not rise to the level that requires a state-issued sanction. The TEA staff should have the ability to dismiss complaints where staff has decided, as a matter of policy, that the alleged unethical behavior is not worthy of a sanction. For the purpose of efficiency, the TEA staff should be able to do this without requesting a response from the educator or making factual and legal findings.

In response to these issues, the following amendments are proposed to 19 TAC Chapter 249, Subchapter F, §§249.48 - 249.51.

Section 249.48 would be amended to modify the time limit for filing an educator's code of ethics complaint by allowing complaints to be filed after the date on which the complainant knew or should have known the date of the last act giving rise to the complaint.

Section 249.49 would be amended to add language to subsection (b) that would authorize staff to limit the volume of exhibits and require a clear reference to exhibits in a code of ethics complaint. This section would also be amended to add new subsection (e) to establish that TEA staff would be able to suspend consideration of a complaint pending resolution of a separate complaint by another agency with appropriate jurisdiction. Additional non-substantive, technical edits are also made to this section for clarity.

Section 249.50 would be amended to add new paragraph (5) to revise the factors used to determine dismissal of all or part of a code of ethics complaint to include allegations that do not warrant a sanction or only warrant a letter of caution. Additional non-substantive, technical edits are also made to this section for clarity.

Section 249.51 would be amended to add new subsection (e) to allow TEA staff to dismiss a code of ethics complaint if the alleged conduct warrants no sanctions or only a letter of caution to the educator. Additional non-substantive, technical edits are also made to this section for clarity.

Throughout 19 TAC §§249.48 - 249.51, "executive director" has been changed to "Texas Education Agency staff" to reflect the assignment of the SBEC's administrative functions and services to the TEA in TEC, §21.035. Proposed new subsection (g) has been added to track that statutory assignment. In addition, House Bill 1116, 79th Texas Legislature, Regular Session, 2005, repealed TEC, §21.039, which established the SBEC executive director position.

Raymond Glynn, acting associate commissioner for educator quality and standards, has determined that, for each year of the first five years the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments, although modifying the current process for resolving ethical disputes would result in a more efficient resolution process with the staff resources available.

Dr. Glynn has determined that, for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be implementing a more efficient and less costly process for resolving less serious educator misconduct complaints and redirecting resources to deal with more serious disciplinary complaints against educators. The proposed amendments would also support resolution of the code of ethics complaint at the local level. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendments.

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

The amendments are proposed under the following Texas Education Code sections: §21.041(b)(7), which requires the SBEC by rule to provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code and §21.041(b)(8), which requires the SBEC by rule to provide for the adoption, amendment, and enforcement of an educator's code of ethics.

The proposed amendments implement Texas Education Code, §21.041(b)(7) and (8).

§249.48.Time for Filing of Complaint.

A complaint under this subchapter shall be filed with the Texas Education Agency staff [ executive director ] no later than 90 calendar days after the date of the last act giving rise to the complaint or the date on which the complainant knew or should have known of the act, whichever is later .

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

(a) A complaint shall be verified by affidavit and shall include the information specified by this subsection:

(1) - (5) (No change.)

(6) a declaration that the complainant has informed in writing the educator against whom the complaint is being made as well as the superintendent or the president of the board of trustees of the district employing that educator, as appropriate under subsection (c) of this section, of the nature of the complaint, and providing the date [ dates ] upon which such written notification [ notifications ] occurred ; and[ ; ]

(7) (No change.)

(b) The Texas Education Agency (TEA) staff [ executive director ] may develop a complaint form that complies with subsection (a) of this section. The TEA staff may limit the length and size of exhibits initially filed with a complaint and shall require specific citations to any voluminous exhibits.

(c) A complaint shall be filed with the TEA staff [ executive director ] and, at the time of filing, served on the educator accused of having violated the code of ethics and the superintendent of the school district employing the accused educator by certified United States mail, return receipt requested. If the superintendent is the educator alleged to have violated the code of ethics, then the complainant shall notify the president of the board of trustees of the district employing the accused superintendent. The agency shall also notify the accused educator of the filing of a complaint against him or her.

(d) (No change.)

(e) The TEA staff may suspend consideration of a complaint that the educator violated a state or federal statute or regulation pending resolution of a complaint by the TEA or another agency with jurisdiction over that statute or regulation.

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

Under §249.51 of this title (relating to Texas Education Agency Staff Review and Notice) and §249.52 of this title [ subchapter ] (relating to [ Executive Director's Review and Notes and ] Appeal; Review Committee), the Texas Education Agency (TEA) staff [ executive director ] or the review committee may dismiss all or part of a complaint only based on a determination that:

(1) the commissioner of education or commissioner's designee , [ executive director, ] review committee, State Office of Administrative Hearings [ office ] , or board or a court of competent jurisdiction has previously disposed of a similar complaint or petition based on the same alleged facts;

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

(4) the complaint was not timely filed; [ or ]

(5) the allegations in the complaint do not warrant a sanction, or only warrant a letter of caution; or

(6) [ (5) ] the complaint is frivolous as defined by §249.53 of this title [ subchapter ] (relating to Frivolous Complaints) .

§249.51. Texas Education Agency Staff [ Executive Director's ] Review and Notice.

(a) The Texas Education Agency (TEA) staff [ executive director ] shall review a complaint filed under this subchapter for possible dismissal. In conducting this review, the TEA staff [ executive director ] shall consider the complaint, a single response by the accused educator, and any additional information he or she may have requested from the complainant or the staff.

(b) Not later than 60 days after being notified of a complaint against him or her under §249.49 (d) [ (c) ] of this title [ subchapter ] (relating to Form of Complaint; Required Service; Local Resolution), the accused educator or his or her representative may file with the TEA staff [ executive director ] a single submission responding to the complaint.

(c) Not later than 130 calendar days after receiving a complaint filed under this subchapter, the TEA staff [ executive director ] shall notify appropriate staff, the complainant, and the accused educator of his or her disposition in accordance with the following:

(1) (No change.)

(2) approval of the complaint in whole or in part and ordering staff to file an appropriate petition on behalf of the complainant with the State Office of Administrative Hearings [ office ] within 90 days of the notice provided under this subsection.

(d) The TEA staff [ executive director ] may issue such further orders as are necessary to accomplish his or her intended disposition, including requiring the complainant to supplement the complaint and establishing consequences for failure to comply. The TEA staff [ executive director ] shall set a reasonable deadline for staff and the complainant to comply with an order under this subsection.

(e) The TEA staff may dismiss a complaint based on a determination that the conduct alleged in the complaint does not warrant a sanction. The TEA staff may also dismiss a complaint with a letter of caution to the educator that additional allegations of a similar nature could result in the approval of a complaint. A letter of caution provides guidance to the educator and is not a disciplinary action or sanction, may not be considered proof of the conduct alleged in any subsequent proceeding, and does not constitute a determination of the facts underlying the complaint.

(f) [ (e) ] The TEA staff [ executive director ] shall send a notice of disposition with related orders to the complainant and the accused educator by certified United States mail, return receipt requested. A notice reflecting a dismissal shall specify which of the grounds set out in §249.50 of this title (relating to Grounds for Dismissal of a Complaint by Texas Education Agency Staff [ Executive Director ] or Review Committee) the TEA staff [ executive director ] relied upon in making his or her decision.

(g) For purposes of this section, "TEA staff" means staff of the Texas Education Agency assigned by the commissioner of education to perform the board's administrative functions and services.

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

Filed with the Office of the Secretary of State on January 22, 2007.

TRD-200700151

Cristina De La Fuente-Valadez

Director, Policy Coordination

State Board for Educator Certification

Earliest possible date of adoption: March 4, 2007

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