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)

November 20, 2015

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

SUMMARY: Texas Government Code, §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 adoption of 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 the Texas Government Code, §2001.039. The statutory authority for 19 TAC Chapter 157, Subchapter A, is the Texas Education Code (TEC), §31.151, and the Texas Government Code, §2001.004. The statutory authority for Subchapter D is the TEC, §21.252.

The Texas Government Code, §2001.039, requires all state agencies to review their rules at least once every four years.

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

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

PREVIOUS BOARD ACTION: The SBOE last adopted the review of 19 TAC Chapter 157, Subchapters A and D, in November 2011, finding that the reasons for initially adopting the rules continued to exist. In January 2012, the SBOE adopted amendments to Subchapter A that prohibited contact between SBOE members and parties to a State Office of Administrative Hearings (SOAH) hearing regarding administrative penalties and clarified when the SBOE would consider a proposal for decision. Subchapter D was also amended to standardize references to "independent hearing examiner" throughout the chapter and update requirements to reflect technological advances.

The review of 19 TAC Chapter 157 was presented to the Committee on School Initiatives for discussion in September 2015.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: Chapter 157, Subchapter A, establishes general rules for contested cases regarding administrative penalties for violations of textbook requirements under the Texas Government Code, Chapter 2001, and provides that these contested cases are heard by the 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 the 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.

Revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, are being presented to the SBOE for first reading and filing authorization. The revisions may include changes to the administrative penalties authorized under the TEC, §31.151, which may require future amendments to Chapter 157, Subchapter A.

No changes to Subchapter D are recommended as a result of the review.

RULE REVIEW: The Texas Education Agency (TEA) filed the notice of proposed review of 19 TAC Chapter 157, Subchapters A and D, with the Texas Register following the September 2015 SBOE meeting. If authorized by the SBOE, the TEA will file the notice of adopted review with the Texas Register following the November 2015 SBOE meeting. The notice of adopted review will state that the SBOE finds the reasons for adopting 19 TAC Chapter 157, Subchapters A and D, continue to exist. Any public comments received during the review of 19 TAC Chapter 157, Subchapters A and D, will also be filed.

The filing of the notice of adopted review stating that the reasons for adoption continue to exist would not preclude any amendments that may be proposed at different dates through a separate rulemaking process.

FISCAL IMPACT: None.

PUBLIC AND STUDENT BENEFIT: The rules in 19 TAC Chapter 157, Subchapter A, establish the procedural steps governing an administrative penalty instructional materials appeal to the SBOE. The rule in Subchapter D ensures that independent hearing examiners meet minimum experience, licensing, and ethical standards.

PROCEDURAL AND REPORTING IMPLICATIONS: None.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: None.

PUBLIC COMMENTS: Following the September 2015 SBOE meeting, notice of the proposed review of 19 TAC Chapter 157, Subchapters A and D, was filed with the Texas Register, initiating the official public comment period for the review. Following is a summary of the public comment received at the time this item was prepared. A summary of any additional public comments received regarding the proposed review will be provided to the SBOE during the November 2015 meeting.

Comment. A member of the public commented that independent hearing examiners should have a more comprehensive training program and a more in-depth training manual to ensure they are fully familiar with relevant laws and rules.

Agency Response. The agency agrees that independent hearing examiners need to receive adequate training to adjudicate the cases before them. Therefore, 19 TAC §157.41 specifies minimum qualifications an individual must meet to be certified as an independent hearing examiner, including experience in relevant areas of the law and continuing education that includes review of education law. In addition, the certification lasts only one year to ensure an unqualified independent hearing examiner may not continue to provide services. The current qualifications provide the necessary safeguards to ensure competent independent hearing examiners while ensuring a sufficient number of examiners to handle the relevant caseloads.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: None.

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

Nichole Bunker-Henderson, Deputy General Counsel
Legal Services

Attachments:
I. Statutory Citations (PDF, 29KB)
II. 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 (PDF, 31KB)