April 4, 2019 Committee on School Initiatives Item 1

Adoption of Review of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners
(Adoption of Review)

April 5, 2019

COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION

SUMMARY:
Texas Government Code (TGC), §2001.039, establishes a four-year rule review cycle for all state agency rules, including State Board of Education (SBOE) rules. This item presents the review of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners. Subchapter A establishes the procedures for appeals heard by the SBOE regarding administrative penalties for violations of textbook requirements. Subchapter D sets forth the certification criteria for independent hearing examiners who conduct due process termination, nonrenewal, and suspension without pay hearings at the school district level.

STATUTORY AUTHORITY:
The statutory authority for the rule review is TGC, §2001.039. The statutory authority for 19 TAC Chapter 157, Subchapter A, is Texas Education Code (TEC), §31.151, and TGC, §2001.004. The statutory authority for Subchapter D is TEC, §21.252(a).

TGC, §2001.039, requires all state agencies to review their rules at least once every four years.

TEC, §31.151, and TGC, §2001.004, authorize the adoption of procedural rules to govern SBOE administrative penalty hearings involving textbook publishers.

TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners.

The full text of statutory citations can be found in the statutory authority section of this agenda.

PREVIOUS BOARD ACTION: The review 19 TAC Chapter 157, Subchapters A and D, was presented to the Committee on School Initiatives at the January-February 2019 board meeting.

BACKGROUND INFORMATION AND JUSTIFICATION:
Chapter 157, Subchapter A, establishes general rules for contested cases regarding administrative penalties for violations of textbook requirements under the TGC, Chapter 2001, and provides that these contested cases are heard by the State Office of Administrative Hearings (SOAH). The SOAH will make findings of fact and conclusions of law and present a proposal for decision to the SBOE for consideration.

Chapter 157, Subchapter D, specifies certification criteria for independent hearing examiners such as license required, experience, continuing education, and annual recertification. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees. The board of trustees reviews the recommendation and votes on it.

Statute still requires the SBOE to provide a hearing prior to imposing a penalty for violation of TEC, §31.151. Statute still requires the SBOE to establish criteria for the certification of hearing examiners. Therefore, the reasons for initially adopting these provisions continue to exist.

If authorized by the SBOE, the Texas Education Agency (TEA) will file the adopted review with the Texas Register stating that the SBOE finds the reasons for adopting 19 TAC Chapter 157, Subchapters A and D, continue to exist.

ANTICIPATED REVISIONS TO RULES:
A proposed amendment to §157.41 is presented for discussion as a separate item in this agenda. The proposed amendment would allow the commissioner of education to take action against the certificate of an independent hearing examiner if the law firm with which the independent hearing examiner is associated meets criteria specified in the rule. This change would align the rule with TEC, §21.252.

PUBLIC COMMENTS:
The TEA filed the review of 19 TAC Chapter 157, Subchapters A and D, with the Texas Register following the January-February 2019 SBOE meeting. The public comment period on the proposed review began February 22, 2019 and ended March 29, 2019. At the time this item was prepared, no comments had been received regarding the review. Any public comments received will be provided to the SBOE during the April 2019 meeting. The SBOE will take registered oral and written comments on the proposed review at the committee meeting in April 2019 in accordance with the SBOE board operating policies and procedures.

MOTION TO BE CONSIDERED:
The State Board of Education:

Adopt the review of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners.

Staff Members Responsible:

Von Byer, General Counsel, Legal Services
Christopher Maska, TEA Ethics Advisor, Legal Services

Attachment:
Text of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners